THE STATE OF NORTH CAROLINA
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.
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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