An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA05-66


Filed: 17 January 2006


         v.                        Catawba County
                                Nos. 03 CRS 9933
                                    03 CRS 9934                                     

    Appeal by defendant from judgment entered 20 August 2004 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 9 January 2006.
    Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.

    Nancy R. Gaines for defendant-appellant.

    CALABRIA, Judge.

    Robert L. Hartgrove (“defendant”) was convicted of felony possession of cocaine and attaining the status of a habitual felon. Defendant appeals the trial court's denial of his motion for appointment of an independent expert to evaluate the evidence seized from his person during a search incident to arrest. We find no error.
    The State presented evidence tending to show: on 11 April 2003, officer Mike Burgin (“Burgin”) and Lieutenant Whisnant with the Hickory Police Department personally served defendant with outstanding arrest warrants. While searching defendant incident to arrest, officers found in defendant's pocket a Goody's headachepowder envelope containing five pieces of “an off-white, solid material” that the officers believed to be crack cocaine. Defendant told the officers that the substance was “bread” he was holding for someone else.
    At trial, Officer Burgin testified that in processing and weighing the envelope and its contents, a weight of 0.5 grams was recorded. The officer placed the envelope and its contents in an evidence locker accessed only by evidence technicians. Investigator Gene Walker, an evidence technician with the Hickory Police Department, testified that he packaged and transmitted the evidence seized from defendant to the State Bureau of Investigation (“SBI”) laboratory in Asheville for analysis. Nancy Somrak, an evidence technician for the SBI, received the package and presented it to Agent Robin Narehood (“Narehood”), a forensic drug chemist. Narehood emptied the contents of the package onto a scale and documented the weight of the substance as 0.3 grams. Narehood conducted chemical analysis of the substance and determined it to be cocaine base, a Schedule II controlled substance. She returned the package to the evidence technician, who mailed it back to the Hickory Police Department.
    On 10 August 2004 defendant filed a motion seeking to obtain funds to have an independent examination conducted of the evidence seized. As ground for his motion, defendant stated he “knows that the items seized were not cocaine base and, because he is indigent needs funds to have the items independently analyzed.” He made no further showing. The trial court denied his motion, defendant wasfound guilty, and was sentenced to a term of imprisonment from 126 months to 161 months in the custody of the North Carolina Department of Correction. Defendant appeals.
    The State is required to provide an indigent defendant “with counsel and the other necessary expenses of representation.” N.C. Gen. Stat. § 7A-450(b) (2003) (emphasis added). The assistance of an expert is a necessary expense of representation if it is shown that “(1) [the defendant] will be deprived of a fair trial without the expert assistance or (2) there is reasonable likelihood that it will materially assist [the defendant] in the preparation of his defense.” State v. Johnson, 317 N.C. 193, 198, 344 S.E.2d 775, 778 (1986)). The expert need not be provided “unless the defendant 'makes a threshold showing of specific necessity for the assistance of the expert' requested.” State v. Moore, 321 N.C. 327, 335, 364 S.E.2d 648, 652 (1988) (quoting State v. Penley, 318 N.C. 30, 51, 347 S.E.2d 783, 795 (1986). The determination of whether the defendant has made the requisite showing is within the discretion of the trial court. State v. Mills, 332 N.C. 392, 400, 420 S.E.2d 114, 117 (1992). In making its determination “the trial court should consider all the facts and circumstances known to it at the time the made.” State v. Gambrell, 318 N.C. 249, 256, 347 S.E.2d 390, 394 (1986). However, “undeveloped assertions that the requested assistance would be 'essential' to preparing an adequate defense fall short of the required 'threshold showing of specific necessity' for expert assistance.” State v. Tucker, 329 N.C. 709, 719, 407 S.E.2d 805, 811 (1991).    After hearing arguments of counsel, the trial court entered an order finding defendant failed to produce affidavits or evidence to corroborate, support or substantiate his assertion that the evidence seized was bread crumbs rather than cocaine. Further, the court found, in accordance with Johnson, supra, that defendant failed to make a particularized showing that he was deprived of a fair trial without the assistance of an expert witness or that there was a reasonable likelihood an independent expert would materially assist in the preparation of defendant's case. Thus, the trial court denied defendant's motion.
    We find no abuse of discretion. Other than his unsupported assertion that the substance was not cocaine but bread crumbs, defendant failed to allege or show any specific documented facts to question the reliability or accuracy of the analysis conducted by the SBI chemist. We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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