STATE OF NORTH CAROLINA
v. Northampton County
Nos. 05 CRS 1434-35
YVETTE PAMELA JACKSON
Attorney General Roy Cooper, by Assistant Attorney General Ann
W. Matthews, for the State.
Sue Genrich Berry for defendant-appellant.
STEELMAN, Judge.
Yvette Pamela Jackson (“defendant”) contends on appeal that
the trial court erred by admitting allegedly testimonial, hearsay
evidence in violation of Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 177 (2004), despite defendant's failure to object at trial
or preserve the question for our review. We find no error.
The State presented evidence tending to show that on 21
January 2005, law enforcement officers were executing a search
warrant at Richard Wheeler's residence on the basis of information
from an informant that drugs were being sold. Because the
telephone at the residence continued to ring while the police
officers were there , the officers decided to initiate an undercoveroperation to arrest people who came to buy or sell drugs while
their search continued.
Defendant called the residence around 6:00 or 7:00 p.m. that
evening and asked to speak with Wheeler. Agent Roy Ball spoke with
defendant and initially identified himself as Wheeler. When
defendant challenged his identification, Agent Ball then said he
was a neighbor of Wheeler. Defendant said Wheeler had called her
earlier and wanted some Ecstasy. She told Agent Ball that she had
twenty tablets and that she might be able to obtain more.
Approximately ten minutes after the first conversation, Agent Ball
called defendant back. As a result of their conversation,
defendant came to the residence with fourteen “buttons” of Ecstasy
and informed Agent Ball that the price was twenty dollars apiece.
Agent Ball handed money to defendant, and she handed the pills to
him. As defendant was counting the money, Agent Ball informed her
that she was under arrest.
Captain George Reed, who was also at the residence executing
the search warrant, entered the room at that time and took
possession of the pills. He placed them in a plastic bag and
ultimately sent the pills to the SBI laboratory to be analyzed.
Captain Reed later received the pills from the SBI laboratory along
with a lab sheet which stated the weight and content of the pills.
He testified, “[t]he results of the examination . . . shows three
and four MED for Ecstasy. It tested positive.” Following
defendant's cross-examination of Captain Reed, the State moved to
admit the envelope, the plastic bag, the pills and the SBIlaboratory report into evidence. The trial court received those
exhibits into evidence without objection from defendant.
At the close of the State's evidence, defendant moved to
dismiss the charges. Following the trial court's denial of the
motion, defendant testified on her own behalf. Defendant renewed
her motion to dismiss at the close of all the evidence, and the
trial court again denied her motion.
On 25 April 2006, a jury found defendant to be guilty of
possession with intent to sell or deliver
methylenedioxyamphetamine, sale and delivery of
methylenedioxyamphetamine, and possession of drug paraphernalia.
The trial court imposed an active sentence of ten to twelve months
for the sale charge and a consecutive sentence of six to eight
months on the remaining charges. The second sentence was
suspended, and defendant was placed on supervised probation.
Defendant appeals.
In her sole argument on appeal, defendant contends the trial
court erred by denying her motion at the close of the evidence to
dismiss the charges of possession with the intent to sell and
deliver and of sale or delivery of methylenedioxyamphetamine for
insufficiency of the evidence. We disagree.
Citing Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed.
177, 199 (2004), defendant asserts the introduction of the SBI
laboratory report violated her Sixth Amendment right to confront
the witnesses against her. She reasons that the “admission at
trial of testimonial evidence made by a non-testifying person”violated her confrontation rights. State v. Forte, 360 N.C. 427,
434, 629 S.E.2d 137, 142-43 (2006) (citing Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177 (2004)). Specifically, she argues
that the laboratory report, which was the only proof that the drug
she possessed and distributed was three, four
methylenedioxyamphetamine, was not competent and admissible
evidence because the SBI chemist who prepared the report did not
testify at trial. Defendant's argument is not persuasive.
“The constitutional right of an accused to be confronted by
the witnesses against him is a personal privilege which he may
waive expressly or by a failure to assert it in apt time even in a
capital case.” State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d
241, 246 (1985) (emphasis added). Defendant here failed to object
to the introduction of the laboratory report at the time of its
introduction despite being given an opportunity to do so by the
trial court.
Because defendant concedes that she failed to object to the
admissibility of the laboratory report at trial, our Court can only
review the trial court's admission of the evidence for plain error
under N.C.R. App. P. 10(c)(4): “In order to prevail under the
plain error rule, [the] defendant must convince this Court that
there was error and that absent the error, the jury probably would
have reached a different verdict.” State v. Thomas, 350 N.C. 315,
348, 514 S.E.2d 486, 506, cert. denied, Thomas v. North Carolina,
528 U.S. 1006, 145 L. Ed. 2d 388 (1999)). When a defendant offers
no objection to evidence at trial, she must show “there was noproper purpose for which the evidence could be admitted.” State v.
Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert.
denied, Golphin v. North Carolina, 532 U.S. 931, 149 L. Ed. 2d 305
(2001)).
Defendant has waived her opportunity for plain error review of
this issue. N.C. R. App. P. 10(c)(4) requires that an assignment
of error be “specifically and distinctly contended to amount to
plain error.” See Id.; State v. Bell, 359 N.C. 1, 27, 603 S.E.2d
93, 111 (2004). Defendant altogether failed to assert plain error
in her assignment of error. She therefore failed to properly
preserve this issue for appellate review.
We further note that defendant failed to raise her
constitutional claim at trial, claiming for the first time on
appeal a violation of his constitutional right to confrontation
under Crawford. “[C]onstitutional error will not be considered for
the first time on appeal.” State v. Chapman, 359 N.C. 328, 366,
611 S.E.2d 794, 822 (2005).
We conclude that the trial court did not err by denying
defendant's motion at the close of the evidence to dismiss the
charges for insufficiency of the evidence, because defendant did
not properly object to the admissibility of the evidence at trial,
or properly preserve the constitutional question for our review.
NO ERROR.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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