An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 04 CRS 053548 - 053549
Appeal by defendant from judgments entered 7 July 2005 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 29 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
David Childers, for defendant-appellant.
Daniel Palestino (defendant) appeals from judgment entered
after a jury found him to be guilty of trafficking in marijuana,
knowingly maintaining a place in violation of controlled substance
act, trafficking in methamphetamine, and possession with intent to
sell and deliver marijuana. We find no error.
The State's evidence tended to show in February and March 2004
the Winston-Salem Police Department established surveillance of an
apartment located at 4558 June Avenue, due to their suspicion that
the apartment was being used as a stash house for illegal drugs.
Police observed defendant entering the apartment with a key on 27
February and 2 March 2004. On 19 March 2004, police approacheddefendant in the parking lot of the apartment building. Defendant
produced a key to the apartment and told the officers that the last
time he was in the apartment he observed a big bag of marijuana in
the closet. Defendant possessed approximately $4,000.00 in cash on
his person. Police obtained consent to search the apartment from
the lessee. Upon a search of the apartment, police found: (1)
methamphetamine; (2) marijuana; (3) digital scales; (4) a fire safe
containing $7,520.00; (5) a plastic bag full of crack cocaine in
the pocket of a white leather coat; (6) a bottle of acetone; and
(7) receipts in defendant's name for gasoline and rental furniture.
At trial, North Carolina State Bureau of Investigation Special
Agent Sheila Bayler (Agent Bayler) was tendered and accepted as
an expert in the field of chemistry specializing in the analysis of
evidence to determine if material is a controlled substance. Over
defendant's objection, Agent Bayler testified based upon notes and
reports prepared by Agent Michael Gurdziel. She proffered her
opinion that State's Exhibit 5 contained fifty-one-and-two-tenths
pounds of marijuana and State's Exhibit 1 contained twenty-eight-
and-two-tenths grams of amphetamine and methamphetamine.
A jury found defendant guilty of trafficking in marijuana,
knowingly maintaining a place in violation of Controlled Substances
Act, trafficking in methamphetamine, possession with intent to sell
and deliver marijuana, and possession with intent to sell and
deliver methamphetamine. The trial court consolidated the
convictions and sentenced defendant to consecutive sentences of
thirty-five to forty-two months and seventy to eighty-four monthsimprisonment. Defendant appeals.
Defendant's sole argument on appeal is the trial court
violated his Sixth Amendment right to confront the witnesses
against him by allowing Agent Bayler to testify regarding the
results of the chemical analysis performed on evidence seized based
upon field notes and test results of another agent.
Defendant's remaining assignments of error are not addressed
in his brief to this Court and are deemed abandoned. N.C.R. App.
P. 28(b)(6) (2006).
III. Crawford v. Washington
Defendant relies on the decision of Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177 (2004), to support his contention
that admission of Agent Bayler's testimony violated his Sixth
Amendment guarantee to confront the witnesses against him.
Defendant acknowledges this Court's decision in State v. Delaney,
171 N.C. App. 141, 613 S.E.2d 699 (2005).
In Delaney, a State Bureau of Investigation agent testified as
an expert in the analysis of controlled substances and offered an
opinion of the identity of substances taken from the defendant's
property based upon testing conducted by a colleague who was not
called to testify. 171 N.C. App. at 142, 613 S.E.2d at 700. This
Court concluded that expert testimony based on analysis conducted
by someone other than the testifying expert does not violate a
defendant's right to confrontation under Crawford rationale. Id.
at 144, 613 S.E.2d at 701. We recognized, under well-settled law,that an expert may base an opinion on tests performed by others in
the field and noted that the defendant in Delaney was allowed the
opportunity to cross-examine the testifying agent regarding his
opinions. 171 N.C. App. at 144, 613 S.E.2d at 701. Defendant,
however, asserts that the well-settled law relied upon in its
reasoning of Delaney is inconsistent with Crawford and Agent
Bayler's testimony was inadmissible hearsay evidence.
We are bound by this Court's decision in Delaney and conclude
that Agent Bayler's testimony about the results of analysis
conducted by Agent Gurdziel is non-testimonial under Crawford and
does not violate the Confrontation Clause. Id.; see State v.
Forte, 360 N.C. 427, 629 S.E.2d 137 (2006) (The defendant's right
of confrontation under Crawford was not violated by admission of
reports filed by a State Bureau of Investigation agent who did not
testify at trial.). In State v. Walker, we held the testimony of
an expert regarding a forensic firearms report conducted by another
agent, and the admission of such a report, did not violate the
defendant's right to confrontation. 170 N.C. App. 632, 635, 613
S.E.2d 330, 333, disc. rev. denied, 359 N.C. 856, 620 S.E.2d 196
(2005). This assignment of error is overruled.
The trial court did not err in allowing Agent Bayler to
testify and offer her opinion based upon tests performed by another
agent where defendant was afforded the right to fully cross examine
Agent Bayler. Defendant received a fair trial, free from
prejudicial errors he preserved, assigned, and argued. No Error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***