STATE OF NORTH CAROLINA
v. Catawba County
Nos. 03 CRS 9933
03 CRS 9934
ROBERT L. HARTGROVE
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 motion...is 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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