An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-506


Filed: 3 January 2006


v .                         Cabarrus County
                            No. 04 CRS 2797

    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.


    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.

    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.

    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.

    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.

    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.

    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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