An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 October 2006
STATE OF NORTH CAROLINA
TONY VERNARD JONES,
Appeal by Defendant from judgment entered 1 April 2005 by
Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard
in the Court of Appeals 6 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
James N. Freeman, Jr., for Defendant-Appellant.
Defendant was indicted on 29 March 2004 on one count of sale
of a controlled substance and one count of possession with intent
to sell or deliver a controlled substance. Subsequently, Defendant
was indicted for being an habitual felon on 17 May 2004. At a
trial held in Mecklenburg County Superior Court between 28 March
and 30 March 2005, the evidence tended to show the following:
Charlotte-Mecklenburg Police Street Crimes Officer Robert Wise
testified that on 19 January 2004, he and Officer Eben Nesbitt were
conducting an undercover campaign operation to buy drugs at thePiedmont Courts housing development. When Officer Wise arrived
that afternoon at the housing development, he was flagged down by
an unknown individual. After inquiring of this individual where he
could find two rocks of crack cocaine, Officer Wise was approached
by Defendant, who told him that he had a Dub, street vernacular
for a twenty-dollar rock of crack cocaine. Defendant produced the
rock of crack cocaine from his mouth and exchanged it for a twenty-
dollar bill from Officer Wise.
After the exchange, Officer Wise left the scene and
immediately contacted Officer Nesbitt with a description of
Defendant. Officer Nesbitt, in uniform, then arrived and
approached Defendant about a probation violation. Defendant denied
that he was on probation and freely gave Officer Nesbitt his name
and date of birth. While Officer Nesbitt was speaking with
Defendant, Officer Wise drove by and confirmed Defendant's
identity. Officer Wise testified that he was able to identify
Defendant by sex, race, approximate age, and the type of clothing
he was wearing. Pursuant to the campaign[,] Officer Nesbitt did
not search Defendant or arrest him at that time. Distinguishing
this operation from a routine buy/bust[,] Officer Nesbitt
testified that an arrest was not made immediately after the drug
transaction because the purpose of these campaigns was to enable
the officers to return at a later date and make additional drug
purchases without arousing suspicion in the area.
On 22 January 2004, Officer Wise again confirmed the identity
of Defendant by a photograph contained in the police department'smainframe database. Defendant was not arrested until the campaign
was complete and the Grand Jury returned indictments against him.
After the trial, the jury returned verdicts finding Defendant
guilty of both crimes charged, and finding his status as an
habitual felon. Upon those verdicts, the trial court entered
judgment on 1 April 2005, sentencing Defendant within the
presumptive range to a minimum term of 101 months and a maximum
term of 131 months. From this judgment, Defendant appeals. For
the reasons set forth below, we find that Defendant received a fair
trial, free of prejudicial error.
Defendant makes the following arguments on appeal: (1) his
trial counsel's failure to object to any questions posed or
evidence presented by the prosecution, and failure to ask but one
question during jury voir dire, constituted ineffective assistance
of counsel; (2) the trial court committed plain error in allowing
the testimony of Officers Wise and Nesbitt concerning their
locating Defendant in the police department's computer database, as
such testimony was highly prejudicial; and, (3) the trial court
lacked jurisdiction to sentence Defendant as an habitual felon
because the indictment purporting to charge him as such was
First, we address Defendant's argument that trial counsel's
failure to object to the prosecutor's questions or exhibits and
failure to pose sufficient questions to the jury during voir dire
amounted to ineffective assistance of counsel. Specifically,Defendant argues that his trial counsel's failure to object to
testimony or exhibits regarding the existence of information about
Defendant in the police department's mainframe database, and
counsel's lone question to potential jurors of whether they could
be fair[,] could not have reflected any defense theory or trial
strategy, and consequently, constituted ineffective assistance of
Effective assistance of counsel in a criminal trial is
guaranteed by the Sixth Amendment to the United States Constitution
and by Article I, Sections 19 and 23 of the North Carolina
Constitution. State v. Durham, 74 N.C. App. 201, 328 S.E.2d 304
(1985). The burden to prove that performance by counsel fell short
of the required standard is a heavy burden for a defendant to bear.
In part, this is because we presume that trial counsel's
representation is within the boundaries of acceptable professional
conduct. State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406
(2004) (citation omitted).
To successfully establish ineffective assistance of counsel,
a 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, reh'g denied, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984)). To meet this burden, a defendant
must satisfy a two-part test established by the United States
Supreme Court and adopted by our Supreme Court in Braswell.
First, the defendant must show that counsel's
performance was deficient. This requiresshowing 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, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland,
466 U.S. at 687, 80 L. Ed. 2d at 693). It is not enough for
Defendant to show only that the errors had some conceivable effect
on the outcome of the proceeding. Virtually every act or omission
of counsel would meet that test[.] Strickland, 466 U.S. at 693, 80
L. Ed. 2d at 697 (citation omitted). Error does not warrant
reversal 'unless there is a reasonable probability that, but for
counsel's errors, there would have been a different result in the
proceedings.' State v. Cummings, ___ N.C. App.___, ___, 622 S.E.2d
183, 186 (2005) (quoting Braswell, 312 N.C. at 563, 324 S.E.2d at
248). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694,
80 L. Ed. 2d at 698.
Assuming arguendo that Defendant's trial counsel erred in
allowing, without objection, the officers' testimony regarding
their locating Defendant's information in the department's
mainframe database, or in allowing Defendant's picture from the
database to be admitted in evidence without objection, or that
trial counsel should have more actively participated during jury
voir dire, because of the amount and nature of the evidence againstDefendant, he fails to demonstrate prejudice, and thus, does not
meet the second prong of the Strickland test.
Both officers involved in the campaign testified to their
identification of Defendant based on their personal observation and
interaction with him. Officer Wise unequivocally described his
purchase of a twenty-dollar rock of crack cocaine from Defendant
and testified that subsequent to the drug purchase, he drove by and
confirmed Defendant's identity while Officer Nesbitt and Defendant
were conversing. Moreover, both officers could identify Defendant
by age, sex, race, and the distinctive clothing he wore at the
time. Additionally, on 22 January 2004, Officer Wise again
confirmed Defendant's identity by viewing his picture in the police
department's mainframe database.
Based on the overwhelming evidence against Defendant, it is
inconceivable that the jury would have reached a different result,
even if trial counsel had asked additional questions during jury
voir dire and even if he had successfully secured exclusion of the
officers' comments regarding the police department's computer
database. Therefore, we hold that Defendant was not prejudiced by
any alleged errors committed by his trial counsel. This assignment
of error is overruled. See, e.g., State v. Adams, 156 N.C. App.
318, 326, 576 S.E.2d 377, 383, disc. review denied, 357 N.C. 166,
580 S.E.2d 698 (2003) (finding no prejudice from alleged error
because there was such overwhelming evidence of defendant's
Defendant next contends the trial court committed plain error
in allowing the testimony of Officers Wise and Nesbitt concerning
their locating Defendant in the police department's mainframe
database, where information on persons previously arrested was
stored, as such testimony was an improper and highly prejudicial
comment on Defendant's prior arrest record.
As a general rule, failure to object to alleged errors in the
admission of evidence during trial precludes raising those errors
on appeal. N.C. R. App. P. 10(b)(1). Defendant has waived
appellate review of these issues by his failure to object to the
testimony at trial; he therefore now asks this Court to review the
issue for plain error. N.C. R. App. P. 10(c)(4).
Plain error arises when the error is 'so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done[.]' State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002
(4th Cir.)(footnote omitted), cert. denied, 459 U.S. 1018, 74 L.
Ed. 2d 513 (1982)). In order for Defendant to successfully
demonstrate plain error on the part of the trial court, he must
'convince this Court not only that there was error, but that
absent the error, the jury probably would have reached a different
result.' State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12
(quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697
(1993)(citation omitted)), cert. denied, 531 U.S. 1019, 148 L. Ed.
2d 498 (2000). Plain error
is always to be applied cautiously and only in
the exceptional case where, after reviewingthe entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where [the error] is grave error which
amounts to a denial of a fundamental right of
the accused, or the error has 'resulted in a
miscarriage of justice or in the denial to
appellant of a fair trial' or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting McCaskill, 676
F.2d at 1002 (footnotes omitted)). Based upon a thorough review of
the complete transcript of the proceedings herein, we are satisfied
that this case does not meet the standard for plain error reversal.
At trial, the following exchange, concerning Defendant's
information in the police department's mainframe database, occurred
between the Assistant District Attorney (Ms. Sumwalt) and Officer
Q. Okay. And, Officer Nesbitt (sic), at
some point in this investigation, did you
further your investigation by trying to
do another means of confirming your
identification of the Defendant?
A. Yes, ma'am. What is routinely done by an
undercover officer once we get back to
the office and do our paperwork, either
that day or a couple days later we will
always pull up a picture to see if there
is a picture in our data base [sic], just
to see if there is one, and in this case
. . . .
MS. SUMWALT: Well, Your Honor, if I could
approach with State's Exhibit
COURT: You may.
Q. Officer Wise, I want you to take a moment
and look at what has been marked as
State's Exhibit 9. Q. Do you recognize that photograph?
A. Yes, I do.
Q. And is that the photograph that you
looked at to further your investigation
in this case?
A. Yes, ma'am. It is.
Q. And is that a photograph that you pulled
up when you searched the name of Tony
A. That is correct.
. . . .
Q. And did you take a look at that
A. Yes, I did.
Q. And did you recognize a person in that
A. Yes, ma'am.
Q. And who did you recognize that photograph
to be of?
A. This is the same person that sold me the
drugs on January 19 __ that's the one.
Q. And, Officer Wise, obviously you had seen
Officer Nesbitt talking to the person
that sold drugs to you, correct?
A. That is correct.
Q. So, that was one of the identification
processes on the scene on January 19, is
A. Yes, ma'am. That is correct.
Q. So, this was sort of another second means
of corroborating that identification?
A. Yes, ma'am. That is correct.
Q. And do you recall when you printed out
that photograph, or when that particular
photograph was printed out?
A. Yes, ma'am. This was printed out on
January the 22nd, 2004[.]
Q. So, that was within a few days of the
actual incident where you purchased the
cocaine from the Defendant?
A. Yes, ma'am. That is correct.
After this exchange, the photograph of Defendant that was printed
from the police department's database was admitted in evidence.
Later in the trial, Officer Nesbitt was also questioned byAssistant District Attorney Sumwalt regarding the photograph of
Q. And, Officer Nesbitt, when you __ after
you received the Defendant's name and
date of birth and you verified that
through the computer, did you at some
point go look up a picture of the
A. I didn't find the picture. I mean, I
didn't look up the picture, but I saw the
picture that Officer Wise pulled up...
A. ...two or three days later, and I ID'ed
him from that picture at that time.
Officer Nesbitt then confirmed that the picture of Defendant
previously admitted in evidence was the same picture that he used
to identify Defendant several days after the drug transaction. On
cross-examination, Officer Nesbitt testified regarding the database
he used to check Defendant's information when he confronted
Defendant regarding an alleged parole violation:
Q. When you question people like this and
ask them their name ...
A. Uh-huh (yes).
Q. ...do people give you false names?
A. It has been done, but if you have ever
been arrested in Mecklenburg County, your
name is in that mainframe and if you give
me a false name and it comes back, then I
can right quick tell you, you know, that
you gave me a bad name. . . .
Defendant contends the testimony of the officers and the exhibit of
his photograph from the mainframe were admitted in violation of
N.C. Gen. Stat. § 8C-1, Rule 404(a). Rule 404(a) provides that,
with limited exceptions, [e]vidence of a person's character or a
trait of his character is not admissible for the purpose of proving
that he acted in conformity therewith on a particular occasion[.]N.C. Gen. Stat. § 8C-1, Rule 404(a) (2005). Specifically,
Defendant argues that the officers' testimony and the picture of
Defendant impermissibly provided evidence which allowed the jury to
infer that because Defendant had previously been arrested, he must
have committed the crime for which he is currently charged.
Based on the testimony provided, Defendant's argument that
Rule 404(a) was violated is not persuasive. The testimony of
Officer Wise in no way directs or even infers a relationship
between Defendant's information in the database and a prior arrest
record. Moreover, Officer Nesbitt's testimony regarding the
database that he used to check Defendant's information was elicited
on cross-examination, and there was not a sufficient connection
made between the database used by Officer Wise to that used by
Officer Nesbitt. Therefore, the link between the testimony of the
officers or the photograph of Defendant and any Rule 404(a)
violation is tenuous at best.
However, even assuming arguendo that this evidence was
admitted in violation of Rule 404(a), Defendant has failed to show
that the alleged error affected his fundamental rights, that there
was a miscarriage of justice, or that absent the alleged error, the
jury probably would have reached a different result. On the
contrary, we find no plain error in the admission of the evidence
because, as we have previously stated, the evidence establishing
Defendant's guilt is overwhelming. It is incomprehensible that,
even without the alleged erroneously admitted evidence, the jury
would have reached a different result. See, e.g., State v. Melton,___ N.C. App. ___, ___, 625 S.E.2d 609, 613 (finding no plain error
when there was overwhelming evidence of defendant's guilt),
appeal dismissed, 360 N.C. 542, ___ S.E.2d ___ (2006). We
therefore overrule this assignment of error.
By his final argument, Defendant contends that the trial court
did not have jurisdiction to sentence him as an habitual felon
because the indictment purporting to charge him as such was
facially invalid. On 17 May 2004, the Grand Jury indicted
Defendant for being an habitual felon, relying in part that on or
about January 17, 1992, [Defendant] did commit the felony of
possession of firearm by felon, in violation of N.C.G.S. 14-415,
and that on or about February 11, 1992, [Defendant] was convicted
of the felony of possession of firearm by felon[.]
Defendant asserts that possession of a firearm by a felon is
a status conviction, and use of this type of conviction to
enhance Defendant's status to that of an habitual felon violates
his constitutional rights. Defendant concedes that this Court has
held that possession of a firearm by a felon is a substantive
offense under North Carolina law, but asks the Court to reconsider
its prior rulings. We decline to do so.
Under North Carolina law,
[i]t shall be unlawful for any person who has
been convicted of a felony to purchase, own,
possess, or have in his custody, care, or
control any handgun or other firearm with a
barrel length of less than 18 inches or an
overall length of less than 26 inches, or any
weapon of mass death and destruction as
defined in G.S. 14-288.8(c). Every person violating the provisions of this
section shall be punished as a class G felon.
N.C. Gen. Stat. . 14-415(a)(2003). This Court has held that N.C.
Gen. Stat. § 14-415(a) creates a substantive criminal offense,
complete and definite in its description. State v. Bishop, 119
N.C. App. 695, 698, 459 S.E.2d 830, 832 (citing State v. McNeill,
78 N.C. App. 514, 337 S.E.2d 172 (1985), disc. review denied, 316
N.C. 383, 342 S.E.2d 904 (1986)), appeal dismissed and disc. review
denied, 341 N.C. 653, 462 S.E.2d 518 (1995). Further, it is well
settled that convictions for possession of a firearm by a felon may
be used as a predicate for habitual felon status. State v. Glasco,
160 N.C. App. 150, 585 S.E.2d 257, disc. review denied, 357 N.C.
580, 589 S.E.2d 356 (2003).
Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by
a higher court. In re Appeal from Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989) (citations omitted). Therefore, we
reconsider this issue. Accordingly, we hold that the trial
court did not err when it imposed an enhanced sentence based on
Defendant's status as an habitual felon.
NO PREJUDICIAL ERROR.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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