THE STATE OF NORTH CAROLINA
v
.
Alamance County
No. 03 CRS 056303
DONTE LEE JACOBS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Spurgeon Fields, III, for the State.
Bryan Gates, for defendant-appellant.
JACKSON, Judge.
Defendant, Donte Lee Jacobs, was arrested and charged with
possession with intent to sell and/or deliver a controlled
substance (cocaine) and sale of a controlled substance (cocaine).
The charges resulted from an undercover drug buy made two and a
half months earlier by Officer Hedgepeth (“Hedgepeth”) of the
Graham, North Carolina Police Department. Defendant was tried and
convicted of both charges. Defendant was sentenced to fifteen to
eighteen months confinement on the possession with intent to sell
and/or deliver conviction. Judgment was continued on the sale of
a controlled substance conviction. Defendant gave notice of appeal
in open court. At trial the State's evidence tended to show that on 23 April
2003, Hedgepeth was working in plainclothes attempting to make drug
purchases on Elm Street in Graham, North Carolina. In his attempts
to make these purchases, Hedgepeth was told by a woman called
“Purple” he could obtain a “20”- meaning a twenty dollar piece of
crack cocaine - at a white house on Elm Street. When Hedgepeth
arrived at the house he asked a black male outside the house about
obtaining a “20.” The man took Hedgepeth inside where Hedgepeth
observed another black male crouched over a table or television
along with two other people engaged in what Hedgepeth believed to
be a drug transaction.
Hedgepeth testified he purchased a rock of cocaine from the
black male he saw crouched over the table for twenty dollars. When
the person who brought him into the house began arguing with the
male from whom he had purchased the drugs, Hedgepeth left the
location. In his report on the transaction, Hedgepeth described
the subject from whom he purchased the drugs as a black male
wearing a “black do-rag and shorts.” He did not mention any facial
hair in his description.
On the following day, 24 April 2003, Hedgepeth was shown a
faxed copy of a driver's license photograph by Corporal Frost
(“Frost”) of the Graham Police Department and asked if the person
shown was the individual from whom Hedgepeth had purchased the
crack cocaine. Hedgepeth positively identified the individual in
the photograph as the person from whom he had bought the crack the
previous day in the white house on Elm Street. Hedgepeth was notshown any additional photographs. The State was allowed to
introduce the photograph into evidence over defendant's objection.
Hedgepeth further testified he subsequently returned to the
location several times and made additional drug buys, but did not
see defendant at the location again.
At trial, the State offered North Carolina State Bureau of
Investigation (“SBI”) Special Agent Richard Wagoner (“Agent
Wagoner”) as an expert in forensic drug chemistry. Agent Wagoner
was admitted by the trial court as an expert in the area of
forensic drug chemistry without objection. Agent Wagoner did not
conduct the analysis on the substance submitted to the SBI
laboratory in connection with defendant's case himself. However,
the agent who had conducted the analysis, Special Agent Kelly Page
(“Agent Page”), was unavailable to testify at trial because she was
attending additional training. Agent Wagoner testified that he was
able to use the notes and test results contained in the lab file to
form an opinion that the substance analyzed was a controlled
substance. Agent Wagoner further testified regarding the
procedures used by the SBI lab for testing suspected controlled
substances. The State then asked Agent Wagoner if his opinion was
consistent with Agent Page's findings. Agent Wagoner responded
that it was and defendant objected. Defendant's objection was
overruled. The State then moved to admit the lab report prepared
by Agent Page into evidence. The report was admitted over
defendant's objection. Defendant assigns as error: (1) the trial court's admission of
the test results of the State's chemical analyst who did not
testify at trial, over defendant's objection, in violation of
defendant's Sixth Amendment rights; (2) the admission of an in
court identification of defendant that allegedly was tainted by an
improper prior identification of defendant by the witness as plain
error; and (3) the State's use of peremptory challenges, over
defendant's objection to impermissibly exclude blacks from the
jury. As defendant fails to set forth or present any argument or
authority in support of his third assignment of error in his brief,
it is deemed abandoned. N.C. R. App. Rule 28(b)(6)(2005); Venable
v. Vernon, 162 N.C. App. 702, 707, 592 S.E.2d 256, 259 (2004).
Defendant first argues that the in-court identification of
defendant by Hedgepeth was tainted by an impermissibly suggestive
identification procedure used prior to trial. This assignment of
error has not been properly preserved for appellate review,
however, and is not considered. “In order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, objection or motion, stating the specific
grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C. R. App.
Rule 10(b)(1)(2005); see State v. Eason, 328 N.C. 409, 420, 402
S.E.2d 809, 814 (1991).
Here, defendant's assignment of error pertains to the in court
identification of defendant. However, defendant never objected to
that identification. Defendant argues that the error in allowingthe in-court identification was that it was tainted by the improper
and suggestive identification procedure used by the police in
initially identifying defendant as the perpetrator. Defendant
failed to object to any of Hedgepeth's testimony regarding the
initial identification of defendant. Defendant's sole objection to
the line of questioning regarding defendant's identification
regarded the photo used by Hedgepeth in making the identification.
Defendant never stated the specific grounds for his objections to
the photo, however. In fact, when asked if he wished to be heard
after making an objection to the photo, defendant's attorney
replied, “No, your Honor.”
“In criminal cases, a question which was not preserved by
objection noted at trial and which is not deemed preserved by rule
or law without any such action, nevertheless may be made the basis
of an assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error.”
N.C. R. App. P. Rule 10(c)(4) (2005). In this assignment of error
defendant contends that “[t]he admission was plainly erroneous.”
Defendant does not, however, present any argument in his brief that
but for the admission of the in-court identification a different
result would have been reached or that the error was so fundamental
that it resulted in a miscarriage of justice or denied him a fair
trial, one of which is required for this Court to conclude that a
trial court has committed plain error. State v. Bishop, 346 N.C.
365, 385, 488 S.E.2d 769, 779 (1997). As defendant failed to object to Hedgepeth's in-court
identification of defendant, any error regarding that
identification has not been properly preserved for our review.
Also, although defendant makes some attempt to contend in his
assignments of error that Hedgepeth's in-court identification of
defendant amounted to plain error, his failure to argue plain error
in his brief waives appellate review of his contention that the
trial court committed plain error. N.C. R. App. P. Rule
28(a)(2005); State v. Scercy, 159 N.C. App. 344, 354, 583 S.E.2d
339, 345, appeal dismissed and rev. denied, 357 N.C. 581, 589
S.E.2d 363 (2003). Accordingly, this assignment of error is
dismissed.
Defendant next argues that the trial court erred in allowing
Agent Wagoner to testify regarding the results of Agent Page's
analysis of the substance determined to be cocaine. Defendant
contends that the trial court violated his right to confront the
witness against him guaranteed under the Sixth Amendment of the
United States Constitution by allowing the results of Agent Page's
analysis into evidence through Agent Wagoner's testimony when Agent
Page was not subject to cross-examination. Defendant primarily
relies upon the recent United States Supreme Court decision
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d
177 (2004), in support of his argument.
In Crawford, the Supreme Court held that the testimonial
statements of witnesses who are not subject to cross-examination at
trial are admissible only when the declarant is unavailable and thedefendant had a prior opportunity to cross-examine the declarant.
However, in Crawford, the Court explicitly stated that its holding
did not apply to evidence that was admitted for purposes other than
the truth of the matter asserted. Id. at 60, 158 L. Ed. at 198.
Our case law in North Carolina has established that testimony
regarding information relied upon by an expert in forming his
opinion is not hearsay as it is not offered as substantive
evidence. State v. Jones, 358 N.C. 330, 348, 595 S.E.2d 124, 136,
cert. denied, 125 S. Ct. 659, 160 L. Ed. 2d 500 (2004). The
opinion ultimately formed by the expert, and not the basis thereof,
is the substantive evidence. State v. Fair, 354 N.C. 131, 162, 557
S.E.2d 500, 522 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d
162 (2002). An expert's opinion may be based upon tests performed
by persons other than the testifying expert if the tests are of a
“type reasonably relied on by exerts in [that] field.” Id.
In the case sub judice, Agent Wagoner was admitted as an
expert in forensic drug chemistry without objection and was himself
subject to cross-examination. Agent Wagoner testified regarding
the testing procedures used in the analysis of the suspected
controlled substance and defendant made no argument that the tests
were not of a type reasonably relied on by experts in that field.
Accordingly, Agent Wagoner's testimony regarding the results of the
tests conducted by Agent Page, having been offered as the basis for
his expert opinion and not for the truth of the matter asserted,
was not hearsay and was properly admitted. We find no error in theadmission of Agent Wagoner's testimony regarding the results of
Agent Page's test results.
Dismissed in part, no error in part.
Judges MARTIN and HUDSON concur.
Report per Rule 30(e).
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