Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 April 2007
STATE OF NORTH CAROLINA
v. Catawba County
Nos. 05 CRS 2011
CHAZTANIOUS LINTAYE BLACKBURN 05 CRS 2015
Appeal by defendant from judgments entered 12 January 2006 by
Judge David S. Cayer in Catawba County Superior Court. Heard in
the Court of Appeals 26 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General J.
Bruce McKinney, for the State.
Brian Michael Aus for defendant appellant.
Chaztanious Lintay Blackburn (defendant) appeals from trial
court judgments entered consistent with jury verdicts finding him
possession with intent to sell and deliver cocaine, sale
and delivery of cocaine, and of being an habitual felon. We
determine defendant received a fair trial, free from prejudicial
On 7 February 2005, the Catawba County grand jury indicted
defendant on charges of possession with intent to sell and deliver
cocaine, sale and delivery of cocaine, and of being an habitual
felon. At trial, beginning on 11 January 2006, the State
introduced evidence tending to show the following: DetectiveSergeant Melissa Johnson testified she was working with the Hickory
Police Department as an undercover agent during September of 2004.
She stated she met with defendant on the 15th and 21st of September
and on the 4th and 14th of October that year. Defendant objected to
this testimony, but the trial court overruled the objection.
Detective Johnson then related that she called a telephone number
on 21 September 2004 which defendant had given to her the previous
week. When defendant returned her call about fifteen minutes
later, Detective Johnson told defendant that she was looking to
buy a quarter, the same thing from the previous time. They agreed
to meet at a car wash, and Detective Johnson arrived there at 8:55
p.m. Detective Johnson said the vehicle which she was driving was
equipped with four video cameras and a microphone.
Upon defendant's arrival at the car wash, he pulled alongside
Detective Johnson's vehicle and told her that he would be back
shortly after taking care of two other ladies behind her at the car
wash. Defendant subsequently returned and got into the passenger
side of Detective Johnson's vehicle. Detective Johnson said she
had not expected him to get into her vehicle because they
previously spoke beside each other in cars. Defendant then
handed Detective Johnson what was later identified as 6.31 grams of
cocaine base or crack cocaine, and she gave $280.00 to defendant.
Defendant also gave Detective Johnson a new telephone number with
which to contact him.
After defendant got out of her vehicle, Detective Johnson
drove away. She met with narcotics officers, and she turned overthe drugs which she had purchased from defendant to Investigator
Patrick Clark. Detective Johnson identified defendant in open
court as the individual from whom she had purchased the drugs. She
also testified that her transaction with defendant was recorded by
the video cameras and the microphone in her vehicle, and the
videotape was played for the jury.
At the close of the State's evidence, defendant moved to
dismiss the charges for lack of evidence. The trial court denied
the motion, and defendant declined to present any evidence. After
the jury found defendant guilty of the two substantive offenses,
the State presented evidence to prove defendant's habitual felon
status. The jury then found defendant to be an habitual felon, and
the trial court imposed two consecutive sentences having a combined
term of 240 to 306 months' imprisonment. Defendant appeals.
Defendant contends the trial court committed plain error by
permitting Detective Johnson to testify that: (1) she had met with
defendant prior to the date of the alleged offense; (2) she was
looking to buy the same amount of drugs as the previous time; and
(3) they had met on two occasions following the date of the alleged
offense. We disagree.
In order to prevail under a plain error analysis, a defendant
must show an 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. Bagley
321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied
, 485U.S. 1036, 99 L. Ed. 2d 912 (1988)
. Defendant complains that the
trial court failed to conduct a balancing test under N.C. R. Evid.
403 after it overruled his initial objection and that it should
have given a limiting instruction as to the N.C. R. Evid. 404(b)
Here, even if the contested evidence was inadmissible,
defendant has not shown that the jury would have reached a
different verdict because of the overwhelming evidence of
defendant's guilt. For example, the sale and delivery of the
cocaine by defendant on 21 September 2004 was recorded by video and
audio equipment in the officer's vehicle. Also, the transaction
was under surveillance by other officers. Accordingly, we disagree
with defendant's contentions.
No prejudicial error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***