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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
Nos. 05 CRS 002013-14
CHAZTANIOUS LINTAY BLACKBURN
(See footnote 1)
Appeal by Defendant from judgment entered 1 March 2006 by
Judge Richard D. Boner in Superior Court, Catawba County. Heard in
the Court of Appeals 22 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Robert K. Smith, for the State.
Brian Michael Aus, for the defendant-appellant.
When an audiotape or videotape is being used for the sole
purpose of illustrating the testimony of a witness, it may be
properly admitted through testimony of personal knowledge that it
fairly and accurately depicts or records the events in question.
(See footnote 2)
Because the State offered such evidence as foundation for the
admission of an audiotape and videotape in this case, we find noerror.
On 14 October 2004, Sergeant Melissa Johnson of the
Taylorsville Police Department, working with Investigator Patrick
Clark of the Hickory Police Department, telephoned Defendant
Chaztanious Lintay Blackburn
and left a message on his voice mail.
When Defendant returned her call a short time later, Sergeant
Johnson told him she wanted to purchase two ounces of crack cocaine
from him. Although Defendant informed Sergeant Johnson that he did
not have that amount available for sale, they agreed to instead
exchange $1,140 for approximately thirty-seven grams of crack
cocaine. They then arranged to meet at a car wash on Highway 127
in Hickory. That conversation was recorded on an audiotape by
Sergeant Johnson drove an undercover vehicle to the car wash
and parked, and Defendant arrived shortly thereafter in a gold- and
bronze-colored Chevrolet Caprice with spinning rims. At trial,
Sergeant Johnson testified that she and Defendant again spoke on
the telephone after they had both arrived at the car wash. He
requested that she come to his vehicle, as he was concerned that
she might have a video recorder in her car. After going to
Defendant's vehicle, Defendant instructed Sergeant Johnson to find
the cocaine on top of the contents of a nearby trash can. She
retrieved the cocaine, got a set of scales from her car, and sat
with Defendant in his vehicle.
According to Sergeant Johnson's testimony, she gave Defendant
the agreed-upon $1,140 and returned to her vehicle
after confirmingthe weight of the cocaine. She then signaled to the surveillance
team that the transaction had occurred, and Defendant was arrested.
Following his arrest, Defendant was searched, and Investigator
Clark recovered $1,167.21 in cash; the serial numbers of $1,140 of
that currency matched those of the currency Sergeant Johnson had
used to pay Defendant. The chunks of an off-white in color
substance turned in by Sergeant Johnson were submitted for testing
by the State Bureau of Investigation and later determined to be
cocaine. Four cameras on Sergeant Johnson's undercover car
recorded her telephone conversation with Defendant while they were
both at the car wash, as well as her returning to the car twice,
but the cameras did not capture any actual exchange with Defendant,
as his vehicle was parked away from Sergeant Johnson's car.
Sergeant Johnson's testimony as to the chain of events of 14
October 2004 was corroborated at trial by Investigator Clark, as
well as by Sergeant Brian Adams of the Hickory Police Department,
who also participated in the surveillance of Defendant.
Investigator Clark was present when Sergeant Johnson initially
telephoned Defendant; he and Sergeant Adams also heard Sergeant
Johnson's conversation with Defendant in Defendant's vehicle, but
that conversation was not recorded, and neither officer witnessed
the transaction directly.
At the conclusion of the State's evidence, Defendant declined
to present any evidence. The jury then returned guilty verdicts
for trafficking in cocaine by sale, by possession, and by delivery,
and for being an habitual felon. After entering judgment on theverdicts, the trial court sentenced Defendant in the presumptive
range to one hundred thirty-six to one hundred seventy-three
months' imprisonment, to be served at the expiration of the
sentence Defendant was then serving on other charges,
Defendant $50,000 and attorney's fees.
Defendant now appeals, arguing the trial court erred and
committed plain error, respectively, by admitting an audiotape and
a videotape into evidence without a proper foundation being laid.
Defendant first contends that the trial court erred and
plainly erred by admitting into evidence the audiotape of the
telephone conversation between Sergeant Johnson and Defendant
without a proper foundation being laid. We disagree.
Under the North Carolina Rules of Evidence, a witness's
testimony as to the accuracy of an audio recording, based on that
witness's personal knowledge, is all that is required to
authenticate that audio recording. N.C. Gen. Stat. § 8C-1, Rule
901 (2005); see also State v. Stager, 329 N.C. 278, 317, 406 S.E.2d
876, 898 (1991) (finding audiotape admissible so long as legally
obtained and otherwise competent, including witness identification
of voices). Additionally, there is no mandated statutory procedure
for the introduction of such evidence. Although a trial court will
typically conduct voir dire in the absence of the jury, find
facts, and thereupon determine the admissibility of the evidence,
the failure to do so does not necessarily render the evidence
incompetent. State v. Sharratt, 29 N.C. App. 199, 201, 223 S.E.2d906, 907, disc. review denied, 290 N.C. 554, 226 S.E.2d 512 (1976).
At trial, after Sergeant Johnson had already testified as to
her recollection of the telephone conversation and subsequent
transaction with Defendant, the following exchange took place :
[PROSECUTOR]: Showing you what's been marked
as State's Exhibit 1, I'll ask you if you can
[JOHNSON]: That's the tape, I believe, that we
used when I made the phone calls.
Q: Have you had a chance to listen to State's
Q: Does State's Exhibit 1 fairly and
accurately record conversations that you had
with the defendant on the 14th of October of
1004, around 10:00 o'clock?
A: Yes, it does.
Q: Could you use State's Exhibit 1 to
illustrate your testimony?
A: Yes, I could.
The prosecutor then offered the audiotape into evidence;
defense counsel objected to its introduction, the trial court asked
if it was being offered as substantive evidence. The prosecutor
responded that it was not, and the trial court then offered -
unrequested - a limiting instruction that the audiotape was
admitted for the limited purpose of illustrating [Sergeant
Johnson's] testimony if, in fact, you find that this exhibit
illustrates the testimony. You may not consider it for any other
Sergeant Johnson's testimony was sufficient to authenticate
the audiotape; additionally, the trial court's limiting instruction
cured any potential error. The audiotape merely corroborated the
earlier substance of Investigator Clark's and Sergeant Johnson's
testimony as to the content of the telephone conversation withDefendant. This assignment of error is overruled.
Defendant next argues that the trial court committed plain
error by admitting into evidence the videotape from Sergeant
Johnson's undercover car without a proper foundation being laid.
Because Defendant failed to object at trial
to the admission
into evidence of the videotape, he now contends its admission was
plain error, an error so basic, so prejudicial, so lacking in its
elements that justice cannot have been done or having a probable
impact on the jury's finding that the defendant was guilty. State
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal
citation and quotation omitted).
We have previously noted that [v]ideotapes are admissible in
evidence for both substantive and illustrative purposes[.] State
, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909 (1998)
The foundation for videotapes may properly be laid through:
(1) testimony that the motion picture or video
tape fairly and accurately illustrates the
events filmed (illustrative purposes); (2)
proper testimony concerning the checking and
operation of the video camera and the chain of
evidence concerning the videotape . . .; (3)
testimony that the photographs introduced at
trial were the same as those [the witness] had
inspected immediately after processing,
(substantive purposes); or (4) testimony that
the videotape had not been edited, and that
the picture fairly and accurately recorded the
actual appearance of the area 'photographed.'
(quoting State v. Cannon
, 92 N.C. App. 246, 254, 374 S.E.2d
604, 608 (1988) (citations omitted), rev'd on other grounds
, 326N.C. 37, 387 S.E.2d 450 (1990)).
In the instant case, Investigator Clark testified that his
responsibilities included set[ting] up the undercover vehicle and
mak[ing] sure that we have tapes for the officer, that he had
provided Sergeant Johnson with a tape and a recorder prior to her
conversations with Defendant, and that the undercover car was
equipped with an audio and video recorder.
identified the videotape at trial and stated that it fairly and
accurately depicted and recorded the telephone conversations
between Sergeant Johnson and Defendant at the car wash and her
activities in the parking lot that took place inside her undercover
The trial court admitted the videotape into evidence and -
again unrequested - gave the jury a limiting instruction to
consider the videotape only for the purpose of illustrating
Sergeant Johnson's testimony.
As with the audiotape, Sergeant Johnson's and Investigator
Clark's testimony were enough to authenticate the videotape.
Additionally, the trial court's limiting instruction cured any
potential prejudice to Defendant. This assignment of error is
Judges TYSON and CALABRIA concur.
Report by Rule 30(e).
We note that, in the judgment and commitment entered
against him, Defendant's name is listed as Chaztanious Lintay
Blackburn, which we use here. However, in the indictments
against him, and in his brief submitted to this Court,
Defendant's name is spelled as Chaztanious Lintaye Blackburn.
N.C. Gen. Stat. § 8C-1, Rule 901 (2005); State v. Smith
152 N.C. App. 29, 38, 566 S.E.2d 793, 800, cert. denied
, 356 N.C.
311, 571 S.E.2d 208 (2002).
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