State v McClure, (05-619) 01/03/2006

    On 12 May 2003 a Mecklenburg County grand jury indicted defendant for the offenses of conspiracy to sell a controlled substance, sale of a controlled substance, and possession with intent to sell or deliver a controlled substance. These charges were tried together on 3 January 2005 in Mecklenburg County Superior Court.    The State presented evidence at trial tending to show the following: On 7 March 2003 two undercover detectives, Detective Allman and Detective Lipscomb, were attempting to purchase drugs from individuals on the streets at the intersection of Smallwood and Trade Streets in Charlotte. As they drove around the area, Malik Whitney (Mr. Whitney) called out to the detectives, and signaled to them. At that time, Detective Allman noticed defendant standing behind Mr. Whitney. Mr. Whitney approached the car and proceeded to have a conversation with Detective Lipscomb, whereupon the detective asked for twenty dollars worth of crack cocaine. Mr. Whitney yelled something to defendant and walked from the car to where defendant was standing. Defendant then reached into the crotch of his pants, retrieved something out of his pants and handed it directly to Mr. Whitney. Mr. Whitney then returned to the car and placed a rock of cocaine in Detective Lipscomb's hand.
    At trial the State entered into evidence as State's exhibit #3 an envelope containing a substance, and State's exhibit #4, the substance purported to be the cocaine purchased on the date in question. Detective Allman testified that Detective Lipscomb turned the crack cocaine over to him whereupon it was secured in a small evidence envelope and then taken to Property Control at the police station. He identified the envelope by the numbers placed on the envelope and testified that the only change in appearance from the last time he saw the envelope was that it had been opened at the bottom which is what the lab would do to test the substance inside. He further testified at trial that State's exhibit #4appeared to be the cocaine that was purchased on the date in question and in substantially the same condition except that the single rock of cocaine had broken up and was not originally placed in plastic as it appeared at trial. Defendant objected to the admission of State's exhibit #4 claiming that a proper foundation had not been laid. The court overruled the objection and admitted State's exhibits #3 and #4. Tony Aldridge, the State's expert, also testified that he received State's exhibit #3 in one piece with no tears and that he cut along the bottom to test the substance inside, which he determined to be cocaine. He then repackaged the cocaine and returned it in its altered state to State's exhibit #3 and returned it to Property Control for storage purposes until trial.
    Defendant was asked by counsel during direct examination whether this was the first occasion he had been charged with a drug-related matter and defendant responded he had a possession charge which he believed came off his record pursuant to N.C. Gen. Stat. § 90-96. Counsel then further asked defendant whether he had been charged with anything else since that time and defendant stated he had not. On cross-examination the following questioning took place regarding defendant's assertion that he had not been charged with anything else:
        Q: Now, you did say when Mr. Smith, your attorney, asked you if you have been charged with anything since this occurrence, and you said no. . .

        A: Yes.
        Q: . . .but isn't it true that you have been charged with two separate cocaine charges, one on December the 24th of 2004, the incident date, and one on September the 22nd of 2004, possession of a cocaine charge?

        A: I have not been charged with nothing.

        Q: You haven't been charged with anything?

        A: Huh-uh (no).

        Q: You have never been arrested for those charges?

        A: Huh-uh (no). I have not been convicted.

        Q: Right. But you have been charged?

        A: No.

        Q: You said to Mr. Smith that you have not been around drugs and you have not had anything to do with drugs?

        A: I mean I was charged and they pending. . .

        Q: They are pending?

        A: Yeah. They are pending, but I have not been convicted of those charges.

    At the close of all the evidence, but before the jury heard closing arguments, a juror (Ms. Ellis) sent a note to the judge indicating that she may know defendant's girlfriend. The State requested that the alternate juror selected by both the State and defendant be impaneled in place of Ms. Ellis and the judge granted this request. The judge did not question Ms. Ellis regarding her knowledge of defendant's girlfriend. The jury returned a verdict of guilty on the charges of conspiracy to sell cocaine, selling cocaine, and possession with the intent to sell or deliver cocaine.             Defendant now appeals.

    On appeal, defendant first contends that he received ineffective assistance of counsel when his attorney questioned him on direct examination regarding prior conviction and pending charges. We disagree.
    A defendant's constitutional right to counsel includes the right to effective assistance of counsel. See State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The test for determining whether a criminal defendant has received effective assistance of counsel is the same under both the federal and state constitutions. Id. This test has two components. First, defendant must show counsel's performance fell below an objective standard of reasonableness. Braswell, 312 N.C. at 562, 324 S.E.2d at 248. Second, defendant must show that “'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Id. (citation omitted). Accordingly, the determinant inquiry is whether a reasonable probability exists that, absent counsel's deficient performance, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).
    In the instant case, defendant's counsel asked on direct examination whether this was the first time defendant had been charged with a drug-related crime. After defendant responded that he had been charged with another drug-related crime, defensecounsel went on to ask whether he had been charged with anything else and defendant answered no. Defendant was then impeached by the State.
    Even if we assume arguendo that counsel's performance was deficient, it is apparent that the result would not have been different in the absence of counsel's alleged errors. The evidence in this case was substantial. Two eyewitnesses, Detectives Allman and Lipscomb identified defendant at trial as the person who reached into his pants, pulled something out and handed the object to Mr. Whitney who came directly back over to the car and placed crack cocaine in the officer's hand. Detective Allman immediately recognized the person handing the object to Mr. Whitney as defendant at the scene and Detective Lipscomb was able to identify defendant as the same person he observed at the scene of the drug deal. We detect no likelihood that absent the complained-of performance during defense counsel's direct examination of defendant, the result in this trial would have been different. Therefore, this assignment of error is overruled.

    Defendant next contends that it was error for the trial court to admit State's exhibit #4 because a proper foundation was not laid. We disagree.
    A party offering real evidence must satisfy a two-pronged test before it can be received into evidence at trial. “'The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone nomaterial change.'” State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999) (citation omitted). It is within the trial court's sound discretion to determine the standard of certainty required to prove that the item offered was the item involved in the incident in its unaltered condition. Id. “'A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.'” Id. (citation omitted). However, weak links in the chain of custody only pertain to the weight to be given to the evidence and not to its admissibility. Id.
    In the instant case, Detective Allman testified that the crack cocaine was placed by defendant in the hands of Mr. Whitney, then directly into the hands of Detective Lipscomb and then turned over as evidence to Detective Allman. He further testified that once in possession of the crack cocaine, he secured it in a small evidence envelope and took the item to property control at the police station. Upon being shown State's exhibit #3, he identified it as the envelope in which he placed the evidence. He identified it by the numbers placed on the envelope and further testified that the only change in appearance from the last time he saw the envelope was that it had been opened at the bottom which was consistent with lab procedure in testing the substance inside. Upon being shown State's exhibit #4 Detective Allman testified that it appeared to be the cocaine that was purchased on the date in question and in substantially the same condition except that the single rock ofcocaine had broken up and that it was not originally placed in plastic as it appeared at trial. Moreover, Tony Aldridge, the State's expert, testified that he received State's exhibit #3 in one piece with no tears and that he cut along the bottom to test the substance inside, which he determined to be cocaine. He then returned the cocaine in its altered state to State's exhibit #3 and returned it to property control for storage purposes until trial.
    Where the evidence was sufficient to reasonably support the conclusion that the substance analyzed was the same as that obtained from defendant, then the substance was properly admissible. See State v. Callahan, 77 N.C. App. 164, 168, 334 S.E.2d 424, 427 (1985). Defendant's contention to the contrary is feckless. This assignment of error is overruled.

    Lastly, defendant contends that the trial court erred in excusing a juror prior to closing arguments without determining her ability to be impartial. We disagree.
    N.C. Gen. Stat. § 15A-1215(a) “allows the trial court to replace a juror with an alternate juror should the original one become disqualified or be discharged for some reason.” State v. Richardson, 341 N.C. 658, 672-73, 462 S.E.2d 492, 502 (1995). It is within the discretion of the trial judge as to what inquiry to make in determining whether substantial and irreparable prejudice to the defendant would result. Richardson, 341 N.C. at 673, 462 S.E.2d at 502. “Absent a showing that the trial court's decision was soarbitrary that it could not have been the result of a reasoned decision, the decision must stand.” Id.
    In the instant case, at the close of all the evidence, Ms. Ellis sent a note to the judge indicating that she may know defendant's girlfriend. After a request by the State to impanel the alternate juror in her place, the judge granted this request without questioning Ms. Ellis regarding her knowledge of defendant's girlfriend. Defendant does not suggest that the alternate juror who actually served was in any way incompetent to do so or objectionable to such defendant. It would not be in the best interest of justice to hold it error for a trial judge to replace a juror who could possibly prejudice defendant with an alternate juror who was selected by both the State and defendant. See State v. Kirkman, 293 N.C. 447, 453, 238 S.E.2d 456, 460 (1977) “The purpose of selecting alternate jurors is to permit a trial to proceed although one of the impaneled twelve becomes ill or otherwise unable to serve.”). This assignment of error is without merit.
    Accordingly, we find that defendant did not receive ineffective assistance of counsel where it cannot be said that the result of the trial was not reliable, State's exhibit #4 was properly admitted into evidence, and the trial judge did not err in replacing a juror with the alternate juror without first questioning the former.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***