Initially we note that defendant's brief contains arguments
supporting only seven of his original ten assignments of error in
the record on appeal. The assignments of error for which noarguments are made are deemed abandoned pursuant to N.C.R. App. P.
28(b)(6). Therefore, we limit our review to the assignments of
error properly preserved by defendant on appeal.
The issues on appeal are: (I) whether the trial court erred
in failing to suppress the results of the search warrant; (II)
whether the trial court erred in denying defendant's motion to
dismiss the possession charges; (III) whether the trial court erred
in admitting controlled substances into evidence; (IV) whether
defendant was denied his right to discovery by failure of the State
to disclose information supporting the lab analysis and conclusions
concerning the controlled substances; (V) whether the trial court
committed plain error in bringing only the jury foreperson into the
courtroom to answer a question from the jury; (VI) whether the
trial court committed plain error by failing to arraign defendant
as to habitual felon status prior to the close of the State's
evidence; and (VII) whether the trial court committed plain error
in sentencing defendant as an habitual felon.
Defendant contends that the trial court erred in failing to
suppress the results of the search warrant as the warrant was not
supported by probable cause. We disagree.
“Statutory and constitutional provisions relating to search
warrants prohibit their issuance except upon a finding of probable
cause for the search.”
State v. Campbell, 282 N.C. 125, 128-29,
191 S.E.2d 752, 755 (1972)(citing U.S. Const. amend. IV; G.S.
15-25(a)). “Probable cause means reasonable grounds to believe
that the proposed search will reveal the presence of the objectssought upon the premises to be searched and that those objects will
aid in the apprehension or conviction of the offender.”
State v.
Marshall, 94 N.C. App. 20, 26, 380 S.E.2d 360, 364,
appeal
dismissed and disc. review denied, 325 N.C. 275, 384 S.E.2d 526
(1989).
The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set forth
in the affidavit before him, including the
'veracity' and 'basis of knowledge' of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a
crime will be found in a particular place. And
the duty of a reviewing court is simply to
ensure that the magistrate had a substantial
basis for concluding that probable cause
existed.
Illinois v. Gates, 462 U.S. 213, 238-9, 76 L. Ed. 2d 527, 548-9
(1983) (quotation and citation omitted). An informant's
reliability and basis of knowledge are relevant considerations in
the overall analysis.
Id.
Under the totality of circumstances analysis required by
Gates, we hold there was a substantial basis for the magistrate's
finding of probable cause in the instant case. The information
supplied by Lucas establishes, against his penal interest, that he
possessed crack and had purchased crack from the defendant.
“Admissions of crime, like admissions against proprietary
interests, carry their own indicia of credibility -- sufficient at
least to support a finding of probable cause to search.”
United
States v. Harris, 403 U.S. 573, 583-4, 29 L. Ed. 2d 723, 734
(1971). The description of defendant and defendant's residencealso support Lucas' credibility.
See State v. Smothers, 108 N.C.
App. 315, 318, 423 S.E.2d 824, 826 (1992) (firsthand observation by
informant and explicit and detailed description of alleged
wrongdoing entitles informant's tip to greater weight than might
otherwise be the case). Officer Watts corroborated Lucas'
description of defendant and defendant's residence and such
corroboration is important in evaluating the informant's
reliability.
See State v. Earhart, 134 N.C. App. 130, 134, 516
S.E.2d 883, 886,
appeal dismissed, 351 N.C. 112, 540 S.E.2d 372
(1999). Applying the totality of the circumstances test and giving
proper deference to the decision of the magistrate to issue the
search warrant as proscribed by
Gates, we hold that there was a
substantial basis for the finding of probable cause and the trial
court did not err by failing to suppress the results of the search
warrant.
Defendant next argues the trial court erred in denying
defendant's motion to dismiss the possession charges as there was
insufficient evidence of constructive possession of any controlled
substances by defendant, and there was testimony identifying the
owner of the controlled substances that were found. We do not
agree.
In ruling upon a motion to dismiss, the trial court must view
the evidence in the light most favorable to the State, which is
entitled to every reasonable inference to be drawn therefrom.
State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002),
cert.
denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). “If there is'substantial evidence' of each element of the charged offense and
of defendant being the perpetrator of the offense, the motion
should be denied.”
State v. Rich, 87 N.C. App. 380, 382, 361
S.E.2d 321, 323 (1987)
. “Substantial evidence is that amount of
evidence which a reasonable mind might accept as adequate to
support a conclusion.”
Id.
To convict an individual of possession with intent to sell and
deliver a controlled substance, the State must prove that (1)
defendant possessed the controlled substance, and (2) intended to
sell or distribute it. N.C. Gen. Stat. § 90-95(a)(1) (2005);
State
v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985).
Possession may be actual or constructive.
State v. Perry, 316 N.C.
87, 96, 340 S.E.2d 450, 456 (1986). A person constructively
possesses a substance “when, while not having actual possession, he
has the intent and capability to maintain control and dominion over
that thing.”
State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476,
480 (1986). “As with other questions of intent, proof of
constructive possession usually involves proof by circumstantial
evidence.”
Id. “Where [controlled substances] are found on the
premises under the control of an accused, this fact, in and of
itself, gives rise to an inference of knowledge and possession
which may be sufficient to carry the case to the jury on a charge
of unlawful possession.”
State v. Harvey, 281 N.C. 1, 12, 187
S.E.2d 706, 714 (1972).
This Court has held the State may show a
defendant had constructive possession by producing evidence that a
defendant “maintained the premises as a residence, or had someapparent proprietary interest in the premises or the controlled
substance.”
State v. Hamilton, 145 N.C. App. 152, 156, 549 S.E.2d
233, 235 (2001). “However, unless the person has exclusive
possession of the place where the narcotics are found, the State
must show other incriminating circumstances before constructive
possession may be inferred.”
State v. Davis, 325 N.C. 693, 697,
386 S.E.2d 187, 190 (1989).
In the instant case, officers seized a court document
indicating defendant resided at the house where the contraband was
found. The evidence also indicates defendant was on the porch of
the residence with his juvenile son. As an officer was taking
defendant into custody, the officer observed crack cocaine within
arm's reach of defendant and marijuana within two feet of defendant
on the porch of the residence. Officers also discovered crack
cocaine in the kitchen of the residence. Based on the foregoing,
we conclude the trial court did not err in denying defendant's
motion to dismiss.
Defendant next asserts the trial court erred by allowing
controlled substances into evidence because the chain of custody
was not established. We disagree.
It is well established that a two-prong test must be satisfied
before real evidence is properly admitted. “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 no material change.”
State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984).
“Determining the standard of certainty required to show that theitem offered is the same as the item involved in the incident and
that it is in an unchanged condition lies within the trial court's
sound discretion.”
State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d
720, 736 (1999). “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.”
Campbell, 311 N.C. at 389, 317 S.E.2d at
392. Weak links in the chain of custody go to the weight to be
given the evidence and not its admissibility.
Id.
In the case
sub judice, the officers identified the items at
issue as the same items seized and in the same condition.
Defendant has not alleged the evidence has been altered and the
evidence was admitted at trial without objection. We conclude the
trial court did not err in admitting the controlled substances in
evidence.
Defendant next contends he was denied his constitutional and
statutory right to discovery by the failure of the State to
disclose information supporting the SBI lab analysis and
conclusions. We decline to consider this argument because
defendant did not preserve this issue for appellate review. N.C.R.
App. P. 10(b)(1) requires a party to have presented the trial court
with a timely request, objection or motion, stating the specific
grounds for the ruling sought if the specific grounds are not
apparent in order to preserve the issue for appellate review.
There is nothing in the record before us which indicates the trial
court had anything before it concerning the State's alleged failureto disclose information supporting the SBI laboratory analysis.
“This Court will not consider arguments based upon matters not
presented to or adjudicated by the trial tribunal.”
State v.
Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).
Defendant next argues the trial court erred in “bringing just
the jury foreperson into the courtroom during deliberations to
answer a question sent from the jury room.” We are not persuaded
that any error occurred or, if there was error, that the error was
so fundamental that the jury would have reached a different verdict
absent the error.
The jury sent a message to the judge that there had been a
mistake in filling out the verdict sheet. The following colloquy
occurred:
THE COURT: The deputy indicated that the jury
had reached a verdict but I guess it was the
foreperson told the deputy that they had made
a mistake in filling the verdict form sheet
out. Is that correct?
DEPUTY: That's correct, Your Honor.
THE COURT: And I didn't want to act on that
without coming in and doing it on the record.
I would be inclined to just tell them to
correct the verdict sheet to reflect whatever
their unanimous verdict is. Does the State
want to be heard on that?
MS. MILLER: That's fine, Your Honor. I think
that would be sufficient. Just make sure they
did it right.
MR. HUNN: And I guess they would be required
to probably scratch out and initial the
mistake if they marked it incorrectly.
THE COURT: That's right. Now I can bring
them all back in here or I can bring the
foreperson back in.
MS. MILLER: I think the foreperson would be
sufficient.
MR. HUNN: That would be fine with me, Your
Honor.
Thus, defendant, through counsel, agreed that only the foreperson
return to the courtroom for instructions on how to correct the
verdict form. On appeal, however, defendant argues the trial
court's action constitutes plain error and is thereby subject to
review by this Court.
“A plain error is one so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached.”
State v. Fowler, 157 N.C. App. 564, 566, 579 S.E.2d 499, 501 (2003)
(quotation and citations omitted). “A prerequisite to our engaging
in a 'plain error' analysis is the determination that the
[evidence] complained of constitutes 'error' at all.”
State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479
U.S. 836, 93 L. Ed. 2d 77 (1986). “Before deciding that an error
by the trial court amounts to 'plain error,' the appellate court
must be convinced that absent the error the jury probably would
have reached a different verdict.”
State v. Walker, 316 N.C. 33,
39, 340 S.E.2d 80, 83 (1986). We are not so convinced in this
case. Defendant has failed to meet the heavy burden of plain error
review by showing that the jury probably would have reached a
different verdict absent the alleged error. The assignment of
error is overruled. Next, defendant argues the trial court committed plain error
in failing to arraign defendant as to habitual felon status prior
to the close of the State's evidence requiring that this court
vacate the habitual felon sentence. We disagree.
N.C. Gen. Stat. § 15A-928(c)(2005) provides, in pertinent
part:
After commencement of the trial and before the
close of the State's case, the judge in the
absence of the jury must arraign the defendant
upon the special indictment or information,
and must advise him that he may admit the
previous conviction alleged, deny it, or
remain silent.
“The purpose of section 15A-928 is to insure that the defendant is
informed of the previous convictions the State intends to use and
is given a fair opportunity to either admit or deny them or remain
silent.”
State v. Jernigan, 118 N.C. App. 240, 244, 455 S.E.2d
163, 166 (1995).
“'Where there is no doubt that a defendant is
fully aware of the charge against him, or is in no way prejudiced
by the omission of a formal arraignment, it is not reversible error
for the trial court to fail to conduct a formal arraignment
proceeding.'”
Id. (quoting
State v. Smith, 300 N.C. 71, 73, 265
S.E.2d 164, 166 (1980))
.
In the instant case, defendant was formally arraigned on the
habitual felon charge on February 3, 2005, after the verdicts were
entered. Defendant waived reading of the indictment and entered a
plea of not guilty. Defendant did not object to the lack of notice
of the State's intention to charge him as an habitual felon, or the
validity of the underlying previous convictions. Through counsel,defendant acknowledged that he knowingly waived reading of the
indictments, understood the charges against him, and understood his
right to have the jury determine the issues. Under the facts of
the instant case, we hold the trial court did not commit plain
error in failing to arraign defendant prior to the close of the
State's evidence.
Lastly, defendant contends the trial court committed plain
error in sentencing him as an habitual felon because the sentence
violates his state and federal rights not to be subject to cruel
and unusual punishment. We disagree.
“Our Supreme Court has rejected Eighth Amendment challenges to
'legislation which is designed to identify habitual criminals and
which authorizes enhanced punishment.'”
State v. Quick, 170 N.C.
App. 166, 170, 611 S.E.2d 864, 866 (2005)(quoting
State v. Todd,
313 N.C. 110, 119, 326 S.E.2d 249, 254 (1985). “Only in
exceedingly unusual non-capital cases will the sentences imposed be
so grossly disproportionate as to violate the Eighth Amendment's
proscription of cruel and unusual punishment.”
State v. Ysaguire,
309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). This Court has
upheld the statutory scheme of the Habitual Felon Act numerous
times.
See, e.g. State v. McDonald, 165 N.C. App. 237, 599 S.E.2d
50,
disc. review denied, 359 N.C. 195, 608 S.E.2d 60 (2004),
cert.
denied, ___ U.S. ___, 161 L. Ed. 2d 748 (2005);
State v. Clifton,
158 N.C. App. 88, 580 S.E.2d 40,
cert. denied, 357 N.C. 463, 586
S.E.2d 266 (2003);
State v. Hensley, 156 N.C. App. 634, 577 S.E.2d
417,
disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003). “[O]ur Court must continue to apply the grossly disproportionate
principle, remembering that only in exceedingly unusual non-capital
cases will the sentences imposed be so grossly disproportionate as
to violate the Eighth Amendment's proscription of cruel and unusual
punishment.”
Clifton, 158 N.C. App. at 94, 580 S.E.2d at 45
(quotations and citations omitted).
Under the facts of the case
sub judice, “the standard of an
'exceedingly rare' and 'extreme' case, in which the 'grossly
disproportionate' principle would be violated” is not met.
Id.
The underlying convictions for the habitual felon charge included:
(1) possession with intent to sell and/or deliver cocaine; (2)
breaking and entering a motor vehicle; and (3) larceny. Defendant
received a sentence of 120-153 months as an habitual felon. In
light of the nature of defendant's offense and his lengthy criminal
history, we conclude the sentence imposed on defendant for
attaining habitual felon status is not so “grossly
disproportionate” as to constitute cruel and unusual punishment.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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