State v Garibay, (05-444) 05/02/2006

Appeal by defendant from judgment entered 11 October 2004 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 28 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

Paul F. Herzog for defendant-appellant.

    ELMORE, Judge.

    Maria De Jesus Garibay (defendant) was indicted for trafficking in cocaine by possession, trafficking in cocaine by manufacture, and possession of drug paraphernalia. The State's evidence at trial tended to show that on 26 June 2002 Lieutenant Tim McLawhorn (McLawhorn) of the Beaufort County Sheriff's Department was conducting a surveillance of defendant's residence. Defendant shared a trailer with her husband, Armando Felix (Felix), and their five children. McLawhorn observed defendant leave her store around 9:00 p.m. in a white Crown Victoria. About ten or fifteen minutes later, McLawhorn rode by defendant's trailer and did not see the Crown Victoria. At approximately 9:30 p.m., McLawhorn observed defendant drive up to her trailer in a blueNissan Quest van. The van was then moved and parked behind a garage further from McLawhorn's position of surveillance.
    At approximately 4:15 a.m. on 27 June 2002, McLawhorn drove by defendant's trailer and saw that the hood and the driver and passenger doors of the van were open but no interior lights were on inside the vehicle. Felix walked from the van into the trailer and returned from the trailer carrying a box. A few minutes later Felix carried the box back to the trailer. Defendant walked from the van to the trailer carrying a small object. Approximately five minutes later, Felix left the trailer and walked into the garage. He remained inside for about twelve to fifteen minutes. McLawhorn observed Felix holding a shovel and heard scraping sounds. Felix then retrieved a broom and swept some dirt behind a car in a corner of the garage before returning to the trailer.
    McLawhorn returned later that morning with other law enforcement officers in order to execute a search warrant. The officers knocked on the door of defendant's trailer, and several children answered the door. The officers entered and found defendant and Felix together in the master bedroom. Felix was taken into custody based upon pre-existing arrest warrants and an INS detainer. An officer interpreted as McLawhorn spoke with defendant. McLawhorn asked defendant whether there were drugs, guns, or money on the property. Defendant responded that her husband had given her $20,000.00 the night before, and then led the officers to a paper bag filled with cash. She stated that she did not know where her husband had gotten the money.     The officers began to search the garage and discovered a hollowed-out area near where Felix had been standing earlier. Inside that area, the officers retrieved a package of cocaine in brick form and a plastic container holding jewelry, bank records, and a deed to the property in defendant's name. McLawhorn asked defendant if the brick of cocaine was the object her husband was carrying earlier from the van, and defendant stated that it was. The officers found another package of cocaine inside defendant's trailer.
    At trial, McLawhorn read the results of a laboratory report from the State Bureau of Investigation (SBI) showing that the substances from the garage and the trailer were cocaine. The SBI chemical analyst who generated the report did not testify at trial. The report indicated that the brick of cocaine found buried in the garage weighed 435.4 grams and that the smaller bag of cocaine found inside the trailer weighed 19 grams.
    At the close of the State's evidence, the trial court dismissed the charges of trafficking in cocaine by manufacture and possession of drug paraphernalia. The jury returned a guilty verdict on the remaining charge of trafficking in cocaine by possession. The trial court sentenced defendant to 175 to 219 months imprisonment. Defendant gave timely notice of appeal to this Court.

    First, defendant contends that permitting McLawhorn to testify to the results of the SBI laboratory report violated theConfrontation Clauses of the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution. Defendant argues that the information contained within the report is testimonial evidence under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). The State asserts that defendant has waived her right of confrontation by failing to comply with the requirements of N.C. Gen. Stat. § 90- 95(g).
    Section 90-95(g) of the Controlled Substances Act provides a procedural step that a defendant in a criminal proceeding may take to preserve an objection to the admission of a chemical analysis report of a controlled substance:
        Whenever matter is submitted to the North Carolina State Bureau of Investigation Laboratory . . . for chemical analysis to determine if the matter is or contains a controlled substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication in all proceedings in the district court and superior court divisions of the General Court of Justice as evidence of the identity, nature, and quantity of the matter analyzed. Provided, however, that a report is admissible in a criminal proceeding in the superior court division or in an adjudicatory hearing in juvenile court in the district court division only if:

            (1) The State notifies the defendant at least 15 days before trial of its intention to introduce the report into evidence under this subsection and provides a copy of the report to the defendant, and

            (2) The defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the report into evidence.
        Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.

N.C. Gen. Stat. § 90-95(g) (2005). Defendant does not dispute that she received a copy of the report and that she failed to notify the State at least five days prior to trial that she objected to its introduction into evidence. Instead, defendant argues that N.C. Gen. Stat. § 90-95(g) is unconstitutional because it requires criminal defendants to take affirmative steps to protect their confrontation rights and lacks a safeguard to ensure that a waiver of a defendant's confrontation rights is knowing and voluntary.
    Foremost, we note that defendant failed to make an objection to the trial court's admission of the contents of the laboratory report based upon her right of confrontation. Defendant's objection at trial to chain of custody was insufficient to preserve a constitutional challenge to the admission of the State's testimony. See N.C.R. App. P. 10(b)(1); State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003) (“Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.”), cert. denied, 541 U.S. 944, 158 L. Ed. 2d 370 (2004). Defendant's contention that the right of confrontation is fundamentally different in nature than other constitutional rights which may be waived by inaction of trial counsel is unpersuasive. A defendant's right of confrontation may be waived by a failure to timely assert it. See State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985) (“The constitutional right ofan accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case.”) (citing State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969)); State v. English, 171 N.C. App. 277, 282, 614 S.E.2d 405, 409 (2005). Defendant's assignment of error is overruled.

    Next, defendant contends that the trial court erred in denying her motion to dismiss the charge of trafficking in cocaine by possession of more than 400 grams of cocaine. Defendant argues that there was insufficient evidence to support a determination that she constructively possessed the 454-gram brick of cocaine. The trial court's review of a motion to dismiss has been stated as follows:
        In determining the sufficiency of the evidence to withstand a motion to dismiss and to be submitted to the jury, the trial court must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is such relevant evidence as is necessary to persuade a rational juror to accept a conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000). The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993).

State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003).    To support a conviction on a theory of constructive possession of a controlled substance, the State must establish that the defendant had “both the power and intent to control its disposition or use[.]” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal quotations omitted). When the controlled substance is found on the defendant's property, an inference arises that the defendant had knowledge and possession of the substance. Id. “However, unless the [defendant] has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.” Id.
    Here, the State's evidence established that defendant owned the property where the cocaine was found. However, defendant did not have exclusive possession of the property, as she shared it with her husband and children. Thus, we must determine if the evidence, viewed in the light most favorable to the State, shows other incriminating circumstances such that the jury could infer constructive possession of the cocaine.
    Defendant cites primarily to State v. Alston, 131 N.C. App. 514, 508 S.E.2d 315 (1998). In Alston, the defendant was a passenger in a truck registered in his brother's name and being driven by his wife. When an officer approached the vehicle, one of the defendant's children inside the vehicle said, “Daddy's got a gun.” Id. at 515, 508 S.E.2d at 316. The officer walked over to the passenger side where the defendant was sitting and observed a handgun on top of the console between the driver and passengerseats. The evidence showed that the defendant's wife purchased and owned the handgun. Id. at 518, 508 S.E.2d at 318-19. The defendant argued that there was insufficient evidence of his possession of the handgun. This Court held that, although the defendant and his wife had equal access to the gun on the console between their two seats, there was insufficient additional incriminating evidence connecting the defendant to the gun. Id.     The facts of Alston are distinguishable. In the instant case, the State does not rely solely upon evidence that defendant and her husband had equal access to the garage where the brick of cocaine was located. There was other evidence to support an inference of constructive possession: First, defendant owned the property on which the brick of cocaine was found by the officers. Second, officers observed Felix carrying a heavy object from the van, and then observed defendant carrying a small package in her hands from the van to the trailer. Third, the brick of cocaine was found buried with a container that held personal papers belonging to defendant. Fourth, when asked by officers whether the brick of cocaine found buried in the garage was the package that her husband took out of the van, defendant replied that it was. Fifth, defendant showed officers a paper bag containing $20,000.00 in cash located inside her trailer. We hold that there was sufficient evidence of other incriminating circumstances such that the jury could infer that defendant constructively possessed the cocaine found buried in the hollowed-out area of the garage.

    Finally, defendant contends that the trial court erred in failing to allow a continuance for defendant to hire new counsel. Defendant concedes that she never expressly asked the court for a continuance to hire new counsel, but argues nonetheless that her statement that she was not satisfied with her representation implied a request for a continuance.
    The record reveals that defendant's case came on for trial on 11 October 2004. Before the jury was impaneled, the trial court inquired into defendant's statement that she wanted to discharge her counsel, Ms. Privette. Ms. Privette was retained by defendant in August of 2003. Defendant stated that her attorney had advised her to plead guilty and that this made her uncomfortable. Defendant told the trial court that she wanted an attorney from another county and that she did not know how long it would take to get another attorney to represent her. The trial court ruled that defendant could either proceed with Ms. Privette or have her bond revoked and remain in jail until she hired another attorney.
    Assuming that defendant's statements to the court implied a motion for a continuance, we reject her contention that she is entitled to a new trial. Ordinarily, a trial court's ruling on a motion for a continuance is reviewed for an abuse of discretion. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). However, when a motion for a continuance raises a constitutional right, the appellate court reviews the ruling on the motion as a question of law. Id. Even so, the defendant is entitled to a new trial based upon the erroneous denial of a motion for a continuanceonly where the defendant shows prejudice. Id. Here, defendant has failed to show that she was prejudiced by the trial court's ruling. Defendant does not point to any portion of the record indicating that her case was prejudiced as a result of Ms. Privette's representation. Defendant's final assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).