An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1294


Filed: 21 June 2005


v .                         Craven County
                            No. 03 CRS 52717

    Appeal by defendant from judgment entered 25 March 2004 by Judge Jerry Braswell in Craven County Superior Court. Heard in the Court of Appeals 19 May 2005.

    George E. Kelly, III for defendant-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

    STEELMAN, Judge.

    On 7 May 2003 defendant was with other individuals in a single-wide trailer in New Bern when the New Bern Police Department secured and searched the trailer pursuant to a warrant. As officers struggled to handcuff defendant, Sergeant Edward Preston saw defendant spit some objects out of his mouth into a trash can. Sergeant Preston retrieved the objects, which were off-white rocks in small individual plastic bags, as well as another bag containing a leafy green substance. All the bags were wet, though the other items in the trash can were dry. Sergeant Preston gave the bags to Detective Brooks, who was responsible for the evidence collected. Detective Brooks secured the evidence, and when he returned to his office he weighed the items and placed them in evidence envelopes,and placed the evidence in a locker. The evidence was later submitted to the SBI for testing, which determined the items consisted of 2.8 grams of cocaine base and 5.2 grams of marijuana. Defendant went to trial and was found guilty on 25 March 2004 of one count of possession with intent to sell or deliver cocaine and one count of possession of less than one-half ounce of marijuana. Defendant stipulated to being an habitual felon. Defendant received an active prison sentence of 95 to 123 months. From these judgments defendant appeals.
    In his first assignment of error, defendant argues that the trial court erred in allowing into evidence an SBI lab report without authentication or the testimony of the individual who did the actual analysis in violation of the Sixth Amendment to the United States Constitution. We disagree.
    After Detective Brooks had already testified without objection that the bags that defendant had spit into the waste can contained marijuana and crack cocaine, the State sought to admit the SBI lab report which identified these items as marijuana and crack cocaine. Defendant asked to view the report, then requested to approach the bench. After an unrecorded conference at the bench between defendant, the State and the trial court, the trial court asked on record: “What says the defense with respect to State's Exhibit 1, 2, 3, 4, and 5?” (Exhibit 5 was the SBI report, 1 was the New Bern Police Department manila evidence envelope, 2 was the SBI manila evidence envelope, 3 was plastic bags containing the crack cocaine, and 4 was plastic bags containing the marijuana). Defendantanswered: “We object to the introduction of these exhibits, Your Honor.” The trial court overruled this general objection and the report was admitted. Defendant now argues that the admission of this report violated the confrontation clause of the Sixth Amendment as addressed in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) in that he was not permitted to cross-examine anyone from the SBI who was responsible for testing the materials and producing the report. Defendant's general objection at trial was not sufficient to preserve this constitutional argument for appeal. State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002); State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). This assignment of error is without merit.
    In defendant's second assignment of error, he argues that the trial court committed plain error in allowing the defendant to stipulate to habitual felon status as it aggravated defendant's sentence and should have been tried by a jury or pled to with a transcript of plea in compliance with Blakely v. Washington, 542 U.S. __, 159 L. Ed. 2d 403 (2004). We agree.
    Without addressing defendant's Blakely argument, we hold that the trial court erred in not establishing that the defendant was knowingly and voluntarily entering a plea of guilty to being an habitual felon. State v. Edwards, 150 N.C. App. 544, 550, 563 S.E.2d 288, 291 (2002); State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001); State v. Williams, 133 N.C. App. 326, 515 S.E.2d 80 (1999). The State acknowledges that the trial court erred in allowing defendant to stipulate to habitual felon status. Wetherefore reverse the defendant's conviction for being an habitual felon, and remand for a new hearing on that matter and for resentencing.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***