STATE OF NORTH CAROLINA
v
.
Montgomery County
No. 03 CRS 51253
QUALO LOWERY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Barbara A. Shaw, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
JACKSON, Judge.
Qualo Lowery (“defendant”) appeals his conviction of
possession of a controlled substance (marijuana) on the premises of
a penal institution and habitual felon on 30 March 2005 in
Montgomery County Superior Court.
On 8 July 2003, Officers Tucker and Martindale conducted a
random search of defendant's cell at Southern Correctional Center
in Troy, North Carolina. During the search, Officers Tucker and
Martindale recovered a substance believed to be marijuana from a
pair of pants in defendant's one-man cell. Officer Tucker
transferred defendant to segregation. The officers continued their
search and discovered more of the suspicious substance in another
pair of pants. Officers Tucker and Martindale gave the substance to Sergeant
Moore, who called the Troy Police Department. Officer Lucas of the
Troy Police Department responded to Southern Correctional Center
for the purpose of investigating the discovery of the substance.
Sergeant Moore gave the substance to Officer Lucas who mailed it to
the State Bureau of Investigation (“S.B.I.”) crime lab in Raleigh.
S.B.I. Agent Baxter tested the substance and determined that the
substance was 3.4 grams of marijuana. Agent Baxter repackaged the
substance and returned it to the Troy Police Department.
A grand jury indicted defendant on 29 March 2004 for felony
possession of marijuana in a prison or jail and on 18 October 2004
for habitual felon. On 28 March 2005, the Honorable W. David Lee
presided over defendant's jury trial. The jury found defendant
guilty of possession of a controlled substance on the premises of
a penal institution and guilty of habitual felon. Judge Lee
sentenced defendant to a term of eighty-four to 110 months
imprisonment in the Department of Corrections. Defendant appeals
to this Court.
On appeal, defendant argues two assignments of error: (1) the
trial court erred in admitting and publishing the State's exhibits
3A (the marijuana) and 4 (Agent Baxter's analysis report) because
there was an insufficient chain of custody; and (2) the trial court
erred in failing to admit evidence of a continuing investigation of
prison staff for possession of marijuana on relevancy grounds. For
the reasons stated below, we find no error. We first address whether the trial court erred in admitting
and publishing the State's exhibits 3A and 4 because there was an
insufficient chain of custody. It is well established that a
defendant's failure to make a timely objection results in a waiver
of his right to assert the alleged error upon appeal. See State v.
McDougall, 308 N.C. 1, 9, 301 S.E.2d 308, 314, cert. denied, 464
U.S. 865, 78 L. Ed. 2d 173 (1983). “'An objection is timely only
when made as soon as the potential objector has the opportunity to
learn that the evidence is objectionable.'” Main St. Shops, Inc.
v. Esquire Collections, Ltd., 115 N.C. App. 510, 515, 445 S.E.2d
420, 422 (1994)(quoting 1 Kenneth S. Broun, Brandis & Broun on
North Carolina Evidence § 19, at 79 (4th ed. 1993)).
When inadmissibility is not apparent immediately, the
objection and a motion to strike should be made as soon as the
inadmissibility becomes known, such as when it is the response
rather than the question which is objectionable, or when the
admissible evidence later becomes inadmissible for some reason.
See State v. Jones, 347 N.C. 193, 215, 491 S.E.2d 641, 654 (1997)
(error not preserved when defendant failed to move to strike
objectionable testimony); Ziglar v. Ziglar, 226 N.C. 102, 103, 36
S.E.2d 657, 658 (1946) (no error when plaintiff failed to move to
strike evidence relevant to subsequently withdrawn cross-
complaint). However, when evidence is admitted generally, which is
competent for some purposes, but not necessarily for all purposes,
such admission “'will not be held reversible error in the absence
of a request at the time that its admission be restricted.'” Statev. Sawyer, 283 N.C. 289, 297, 196 S.E.2d 250, 255 (1973)(quoting 7
Strong N.C. Index 2d, Trial § 17).
In the present case, defendant failed to object when the State
introduced exhibits 3A and 4 into evidence. However, defendant
argues that his chain of custody objection arose when the State
sought to publish exhibits 3A and 4 to the jury without Sergeant
Moore's testimony. Nonetheless, defendant failed to object to the
admission of the exhibits at the time the exhibits were offered for
admission into evidence. Furthermore, defendant failed to make a
motion to strike the exhibits, and failed to request that their
admission be restricted in any way. Because defendant failed to
object, we are limited to reviewing for plain error.
Plain error is error “'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. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118
(1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681
(2000)(quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244,
251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
The facts of this case show that a green leafy substance was
discovered in defendant's one-man cell at a time when defendant was
present. Officers Tucker and Martindale testified that they
discovered this substance in the pockets of pants found in
defendant's one-man cell, and gave the substance to Sergeant
Moore. Although Sergeant Moore did not testify, Officer Lucas of
the Troy Police Department testified that he received the substancefrom Sergeant Moore. Agent Baxter testified that she received the
substance from the Troy Police Department, and the substance tested
positive as marijuana. This evidence alone is sufficient for a
jury to find that marijuana was found in defendant's possession.
Introduction of the actual marijuana and Agent Baxter's lab report
only serve to corroborate the statements made by the witnesses.
“[A]ny weak links in the chain of custody relate only to the weight
to be given evidence and not to its admissibility.” State v.
Campbell, 311 N.C. 386, 389, 317 S.E.2d 391, 392 (1984)(citing
State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976)). The
trial court in this case recognized the weakness in the chain of
custody, and specifically allowed defense counsel to argue the weak
link in closing arguments. Therefore, defendant was not prejudiced
by admission and publication of State's exhibits 3A and 4 without
Sergeant Moore's testimony.
Second, we address whether the trial court erred in failing to
admit evidence of a continuing investigation of prison staff for
possession of marijuana on relevancy grounds. “To prevail on a
contention that evidence was improperly excluded, either a
defendant must make an offer of proof as to what the evidence would
have shown or the relevance and content of the answer must be
obvious from the context of the questioning.” State v. Geddie, 345
N.C. 73, 95, 478 S.E.2d 146, 157 (1996), cert. denied, 522 U.S.
825, 139 L. Ed. 2d 43 (1997)(citing State v. Barton, 335 N.C. 741,
749, 441 S.E.2d 306, 310 (1994)). On direct examination, defense counsel asked Officer Lucas the
following:
[Defense Counsel]: Are you aware if there was an ongoing
investigation at Southern Correctional regarding possession of
marijuana by staff?
[Prosecutor]: Object to the relevance.
[The Court]: That's sustained.
[Defense Counsel]: No further questions.
In the present case, defense counsel failed to make an offer
of proof as to what the evidence would have shown. Furthermore,
the relevance and content of the answer was not obvious from the
context of the questioning. Therefore, the issue was not properly
preserved for appeal, and we lack sufficient information to review
defendant's assignment of error. Accordingly, this assignment of
error is dismissed.
NO ERROR.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***