Appeal by defendant from a judgment dated 3 September 2004 by
Judge Larry G. Ford in Cabarrus County Superior Court. Heard in
the Court of Appeals 7 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph Finarelli, for the State.
D. Tucker Charns for defendant-appellant.
BRYANT, Judge.
Stevelin Steele (defendant) appeals a judgment dated 3
September 2004 entered consistent with jury verdicts finding him
guilty of possession with intent to sell or deliver cocaine,
felonious sale of cocaine, and felonious delivery of cocaine. For
the reasons below, we find no error.
Facts
In early November 2003, an informant contacted Detective
Lawrence Lentz of the Concord Police Department, wanting to provide
assistance to the narcotics unit in exchange for some “help” on a
pending charge. The informant identified, by name, eight
individuals from whom the informant believed he could purchase
narcotics. On 5 November 2003, Lentz, another officer, theinformant, and Lieutenant Thomas Thompson of the Mooresville Police
Department met to arrange an operation to have the informant buy
illegal drugs in the Logan community that night.
Thompson accompanied the informant as they drove around buying
drugs. At one point, a man later identified as defendant
approached the informant and Thompson and sold Thompson two rocks
of cocaine for thirty dollars. Only the informant, Thompson and
the seller were present at the sale. Thompson and the informant
then went to a pre-arranged spot to turn over the cocaine to Lentz
and make an identification of the seller.
Lentz presented Thompson with a notebook of photographs of
about 100 to 150 young African-Americans, male and female, from the
local community. Thompson reviewed several pages in the notebook
and identified defendant as the man from whom he had bought the
cocaine. On 16 February 2004, defendant was arrested on charges
that he had possessed with the intent to sell and deliver two rocks
of crack cocaine, and did both sell and deliver that cocaine.
Procedural History
On 23 February 2004, the Grand Jury of Cabarrus County issued
an indictment charging defendant with: (I) possession with intent
to sell or deliver cocaine; (II) felonious sale of cocaine; and
(III) felonious delivery of cocaine. On 30 August 2004, at the
Criminal Session for Cabarrus County Superior Court, the Honorable
Larry G. Ford presiding, defendant was convicted by a jury of all
charges. The trial court arrested judgment in the charge of
delivery of cocaine and on 3 September 2004 imposed a sentence often to twelve months imprisonment, but suspended that sentence for
thirty months, placing defendant on supervised probation for thirty
months, with the special condition of Electronic House Arrest for
sixty days. Defendant appeals.
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Defendant raises the issues of: (I) whether defendant's trial
counsel's failure to request recordation of jury
voir dire, opening
statements and closing arguments constitutes ineffective assistance
of counsel; (II) whether the trial court erred in failing to,
sua
sponte, order recordation of jury
voir dire, opening statements and
closing arguments; (III) whether the trial court erred in allowing
testimony concerning the pre-trial identification of defendant; and
(IV) whether the trial court erred in failing to grant defendant's
motion to reveal the confidential informant. For the following
reasons, we find no error.
I
Defendant first argues his trial counsel's failure to request
recordation of jury
voir dire, opening statements and closing
arguments constitutes ineffective assistance of counsel (IAC). We
disagree.
To prevail on his IAC claim defendant must show that his
counsel's conduct fell below an objective standard of
reasonableness.
State v. Braswell, 312 N.C. 553, 561-62, 324
S.E.2d 241, 248 (1985) (citing
Strickland v. Washington, 466 U.S.
668, 80 L. Ed. 2d 674 (1984)). Defendant must satisfy the
following two-prong test: First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Braswell at 562, 324 S.E.2d at 248 (quotation omitted);
see also,
State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (“An
IAC claim must establish both that the professional assistance
defendant received was unreasonable and that the trial would have
had a different outcome in the absence of such assistance.”).
“[E]ven an unreasonable error[] does not warrant reversal of a
conviction unless there is a reasonable probability that, but for
counsel's errors, there would have been a different result in the
proceedings.”
Braswell at 563, 324 S.E.2d at 248.
Defendant does not show his trial counsel's performance was
deficient nor that he was prejudiced by the lack of recordation.
Defendant merely provides an opinion that trial counsel lacked any
legitimate justification for declining to request that jury
voir
dire, opening statements and closing arguments be recorded. This
Court has held that trial counsel's failure to request the
recording of jury
voir dire does not constitute ineffective
assistance of counsel.
State v. Crawford, 163 N.C. App. 122,
128-29, 592 S.E.2d 719, 724 (2004). As defendant does not cite to
any specific legal authority or precedent to support his contentionnor to any error that occurred during the unrecorded portions of
the trial, this assignment of error is overruled.
II
In his second assignment of error, defendant argues the trial
court erred by failing to order,
sua sponte, recordation of jury
voir dire, opening statements and closing arguments, depriving him
of meaningful appellate review and the effective assistance of
appellate counsel. We disagree.
This Court recently held it was not error where trial court
did not ensure “there was a complete recordation of jury selection,
the verbatim jury instructions from the court, bench conferences
and arguments of counsel.”
State v. Price, __ N.C. App. __, __,
611 S.E.2d 891, 898 (2005). Pursuant to section 15A-1241 of the
North Carolina General Statutes:
The trial judge must require that the reporter
make a true, complete, and accurate record of
all statements from the bench and all other
proceedings
except:
(1) Selection of the jury in
noncapital cases;
(2) Opening statements and final
arguments of counsel to the jury;
and
(3) Arguments of counsel on
questions of law.
N.C. Gen. Stat. § 15A-1241(a) (2003) (emphasis added). Upon its
own motion, a trial court may order recordation of the selection of
the jury in noncapital cases and the opening and final arguments to
the jury. N.C. Gen. Stat. § 15A-1241(b) (2003). Furthermore,
“[w]hen a party makes an objection to unrecorded statements orother conduct in the presence of the jury, upon motion of either
party the judge must reconstruct for the record, as accurately as
possible, the matter to which objection was made.” N.C. Gen. Stat.
§ 15A-1241(c) (2003).
Section 15A-1241 provides defendant with adequate means to
protect his rights and preserve his objections for appellate review
should an error occur during an unrecorded portion of his trial.
Again, defendant cites no authority for his argument that the trial
court was
required to order the recordation of jury
voir dire,
opening statements and closing arguments. Nor does defendant point
to any error that occurred during the unrecorded portions of the
trial. This assignment of error is overruled.
III
Defendant next argues the trial court erred in allowing
testimony regarding the pre-trial, photographic line-up
identification of defendant. Defendant contends the photographic
line-up was constitutionally unreliable because there was no effort
to put together persons of similar physical characteristics. We
disagree.
“[T]he introduction of testimony concerning an out-of-court
photographic identification must be excluded where . . . the
procedure used is impermissibly suggestive, even though that
suggestiveness does not require exclusion of the in-court
identification itself under the
Simmons test.”
State v. Knight,
282 N.C. 220, 227, 192 S.E.2d 283, 288 (1972). Under
Simmons:
[E]ach case must be considered on its own
facts, and that convictions based oneyewitness identification at trial following a
pretrial identification by photograph will be
set aside on that ground only if the
photographic identification procedure was so
impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable
misidentification.
Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247,
1253 (1968);
see also, State v. Rogers, 355 N.C. 420, 432, 562
S.E.2d 859, 868 (2002) (“Whether an identification procedure is
unduly suggestive depends on the totality of the circumstances.”).
Factors to be used in determining whether a pre-trial
identification was impermissibly suggestive when using a
photographic line-up include the pertinent aspects of the
photographic array, including the “similarity of appearance of
those in the array and any attribute of the array tending to focus
the witness' attention on any particular person therein.”
Rogers,
355 N.C. at 432, 562 S.E.2d at 868. If the identification
procedures are found to be impermissibly suggestive, “the Court
must then determine whether the [suggestive] procedures created a
substantial likelihood of irreparable misidentification.”
State v.
Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001).
In the instant case, the totality of the circumstances of
Lieutenant Thompson's identification of defendant reveals that the
out-of-court identification of defendant was not impermissibly
suggestive. Thompson saw defendant's face from the front passenger
seat when defendant first looked into the vehicle in which Thompson
was riding. Thompson then had a second opportunity to observe
defendant's face when defendant reached into the vehicle to takeThompson's money in exchange for two rocks of crack cocaine.
Although the entire transaction lasted about one minute, Lieutenant
Thompson was “looking at the [d]efendant” the entire time.
Twenty minutes after the transaction, Thompson was handed a
notebook of photographs and was asked if the person who had sold
him the cocaine was pictured in it. The photographs in the
notebook used by Thompson to identify defendant contained mostly
photographs of African-American persons which were arranged
alphabetically. There was no testimony that Thompson knew the
photographs were arranged alphabetically and Thompson specifically
indicated that he had never met defendant before that evening.
There was typically one photograph on both the front and back
of each page in the notebook and the photograph of defendant had no
mention of his name. Thompson was given the notebook opened to a
to a spot eight to ten pages back from defendant's photograph.
Thompson then paged through the notebook, reviewed the photographs
on each page and ultimately identified defendant as the seller.
Of the sixteen photographs preceding defendant's in the
notebook, fourteen were of young black men while two were of black
women. There is no indication in the trial transcript that the men
in those photographs did or did not resemble defendant in terms of
age, skin color or other physical characteristics. Furthermore,
there is no evidence that, during the identification procedure,
Thompson's attention was improperly focused on defendant's
photograph. Therefore, the photograph identification procedureswere not impermissibly suggestive and this assignment of error is
overruled.
IV
Defendant lastly argues the trial court erred in denying his
motion to reveal the informant where the undercover officer and the
informant were the only witnesses to the alleged crime. Defendant
correctly argues the disclosure of the informant's identity must be
disclosed if the informant can “testify as to the details
surrounding the
actual crime” or “played an integral part and would
have firsthand knowledge of the criminal offenses defendant was
charged with.”
State v. Parks, 28 N.C. App. 20, 25, 220 S.E.2d
382, 386 (1975);
State v. Johnson, 81 N.C. App. 454, 458, 344
S.E.2d 318, 321 (1986). However, at trial defendant did not raise
the issue of the informant's identity, but, upon oral motion,
requested the trial court compel the State to produce the informant
to testify and be cross-examined pursuant to
Crawford v.
Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004).
Defendant primarily argued that, under
Crawford, he had the
constitutional right to confront and cross-examine the informant
who had made an out-of-court identification of defendant on the
night of the offense. The trial court denied defendant's motion.
“[T]o 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 . . . .” N.C. R. App. P. 10(b)(1)
(emphasis added). “[A] contention not raised and argued in thetrial court may not be raised and argued for the first time in the
appellate court.”
Wood v. Weldon, 160 N.C. App. 697, 699, 586
S.E.2d 801, 803 (2003),
disc. review denied, 358 N.C. 550, 600
S.E.2d 469 (2004). Furthermore, a defendant “may not swap horses
after trial in order to obtain a thoroughbred upon appeal.”
State
v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988);
see also,
State v. Smarr, 146 N.C. App. 44, 55-56, 551 S.E.2d 881, 888 (2001)
(where defendant advanced a theory supporting a motion to suppress
on appeal that was not one of two theories raised before the trial
court, the issue was not properly before this Court). Defendant
has waived appellate review as to this issue because he did not
properly present the issue upon which he bases his argument to the
trial court for a ruling. This assignment of error is overruled.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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