Opinion
No. COA09-763.
Filed March 16, 2010.
Wake County No. 07CRS56713.
Appeal by defendant from judgment entered 23 April 2008 by Judge Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 2 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for defendant-appellant.
Where defendant failed to file a motion to suppress the controlled substance and drug paraphernalia removed from his person at the hospital pursuant to Article 53 of Chapter 15A, defendant waived his right to contest the admission of this evidence on appeal. Defendant's argument that the trial court violated his constitutional rights by admitting evidence for which an appropriate chain of custody was not established will not be considered for the first time on appeal. The trial court did not admonish defendant in front of the jury when making evidentiary rulings. The trial court did not err by allowing three witnesses to give lay opinion testimony regarding drug paraphernalia. Defendant failed to move for a mistrial and plain error analysis is not available to defendants asserting that the trial court should have declared a mistrial sua sponte. The trial court did not err in failing to grant a continuance for defendant to subpoena an additional witness where defendant did not clearly move for a continuance and has made no showing of prejudice. The trial court did not err by sustaining the State's objection to the admission of defendant's medical record for lack of a proper foundation.
I. Factual and Procedural Background
On 9 August 2007, Rickie Anderson (defendant) was transported to the WakeMed emergency room by Garner EMS after a 911 call indicated that defendant was "unresponsive." Nicole Rice (Rice), a registered nurse, received defendant at the emergency room. Defendant was "[v]ery lethargic, very difficult to awaken." Neither EMS nor Rice were able to obtain any medical history from defendant. Rice determined that a full medical work-up was necessary to determine the cause of defendant's decreased level of consciousness. The work-up included an EKG for cardiac monitoring, cell count chemistries, and urinalysis.
In order to perform a full physical assessment and obtain a urine sample by catheter, Rice removed defendant's clothing. Rice inventoried the contents of his clothes to confirm his identification and to determine whether there was anything on his person that could be the cause of his condition. Rice found, inter alia, a metal pipe approximately six inches long. The pipe was cut on one end and the other end appeared to be burned. Rice "recognized [the pipe] as something that [she] would need to turn over to the WakeMed Police Department" and gave it to Officer Frank Kearney (Officer Kearney), a security officer.
Removal and inventory of a patient's clothes and possessions was standard protocol when a patient arrived at the WakeMed emergency room unresponsive.
Officer Kearney examined the metal pipe and found that it was clogged with two small, white, rock-like substances. Officer Kearney delivered the pipe and its contents to his supervisor, Lieutenant Dennis Mack (Lieutenant Mack). Lieutenant Mack placed the rock-like substances and the metal pipe into separate Ziplock bags and secured them in an evidence locker. These items were later submitted to the SBI for chemical analysis. The SBI laboratory determined that the substance found within the pipe was crack cocaine.
After he was discharged from the hospital, defendant was arrested and charged with possession of a schedule II controlled substance (cocaine) and possession of drug paraphernalia. His trial in superior court commenced on 22 April 2008. Defendant represented himself. The jury found defendant guilty of both charges. The trial court determined that defendant was a prior record level V for felony sentencing purposes. Defendant's convictions were consolidated for judgment and defendant was sentenced to an active prison term of 9 to 11 months with credit for time served of 259 days. Defendant appeals.
II. Pro se Defendant
At the outset, we note that defendant waived his right to counsel and represented himself at trial. Defendant appears to make the argument that his pro se status should be taken into consideration in our determination of whether the trial court committed reversible error. This Court has stated:
When a defendant represents himself, he gives up many of the traditional benefits associated with the right to counsel. . . . When a defendant elects to represent himself in a criminal action, the trial court is not required to abandon its position as a neutral, fair and disinterested judge and assume the role of counsel or advisor to the defendant. The defendant waives counsel at his peril and by so doing acquires no greater rights or privileges than counsel would have in representing him.
State v. Brincefield, 43 N.C. App. 49, 52, 258 S.E.2d 81, 83-84, disc. review denied, 298 N.C. 807, 262 S.E.2d 2 (1979). In the instant case, the trial court explained and defendant understood that in proceeding as a pro se defendant: (1) the trial court would not help him in any way when his case was in front of the jury and (2) he would be "held to the same standard as an attorney practicing law[.]"
III. Illegal Search and Seizure
In his first argument, defendant contends the trial court committed plain error by "allowing the admission of evidence and testimony regarding the evidence produced as a result of an illegal
search in violation of [defendant's] constitutional rights." We disagree.
Defendant failed to file a pretrial motion to suppress the controlled substance and drug paraphernalia collected at the hospital on the basis that it was obtained in violation of his Fourth Amendment rights and did not object to this evidence when it was presented at trial. See N.C. Gen. Stat. § 15A-974(1) (2007) ("Upon timely motion, evidence must be suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina."); N.C. Gen. Stat. § 15A-975(a) (2007) ("In superior court, the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under subsection (b) or (c)."). The "exclusive method" of challenging the admissibility of evidence on the grounds that it was unlawfully obtained in violation of the defendant's constitutional rights is to make a motion to suppress which complies with the requirements of Article 53 of Chapter 15A. N.C. Gen. Stat. § 15A-979(d) (2007); State v. Jones, 157 N.C. App. 110, 113, 577 S.E.2d 676, 678 (2003). Our appellate courts have held that by failing to make a motion that complies with these requirements, defendants "waive their rights to contest on appeal the admission of evidence on constitutional or statutory grounds." State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261, 264 (1984) (citations omitted); State v. Tate, 300 N.C. 180, 183, 265 S.E.2d 223, 226 (1980); State v. Davis, 97 N.C. App. 259, 263, 388 S.E.2d 201, 203, aff'd per curiam, 327 N.C. 467, 396 S.E.2d 324 (1990). Thus, by failing to make a motion to suppress this evidence based upon constitutional grounds pursuant to N.C. Gen. Stat. § 15A-974, defendant has waived any argument pertaining to this issue on appeal. This assignment of error is dismissed.
IV. Chain of Custody
In his second argument, defendant contends the trial court committed plain error in violation of defendant's constitutional rights by allowing the admission of the controlled substance and drug paraphernalia into evidence because an appropriate chain of custody was not established. We disagree.
In his brief, defendant does not articulate how any alleged weakness in the State's chain of custody amounted to a violation of his constitutional rights. Further, any constitutional objection would have to be raised and passed upon at trial for the issue to be properly considered on appeal. See State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003) ("Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." (citation omitted)), cert. denied, 541 U.S. 944, 158 L. Ed. 2d 370 (2004).
We also note that "any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility." State v. Campbell, 311 N.C. 386, 389, 317 S.E.2d 391, 392 (1984) (citations omitted). This assignment of error is dismissed.
V. Alleged Admonishing of Defendant
In his third argument, defendant contends the trial court committed plain error in admonishing defendant regarding his mistakes in procedure and evidence multiple times in front of the jury. We disagree.
We note that "[t]he statutory prohibitions against expressions of opinion by the trial court contained in N.C.G.S. § 15A-1222 and N.C.G.S. § 15A-1232 are mandatory. A defendant's failure to object to alleged expressions of opinion by the trial court in violation of those statutes does not preclude his raising the issue on appeal." State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (citations omitted).
This Court has explained that "[t]rial judges . . . have a duty of absolute impartiality and must avoid even the `slightest intimation of an opinion,' as `every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury.'" State v. Baldwin, 141 N.C. App. 596, 602, 540 S.E.2d 815, 820 (2000) (internal citation and quotation omitted). However, "a remark by the court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial." State v. Lednum, 51 N.C. App. 387, 389, 276 S.E.2d 920, 922 (quotation omitted), disc. review denied, 303 N.C. 317, 281 S.E.2d 656 (1981).
Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. In a criminal case, reversible error results where the jury may rationally infer from the trial judge's action an expression of opinion as to the defendant's guilt or the credibility of a witness.
Baldwin, 141 N.C. App. at 602, 540 S.E.2d at 820 (citations and emphasis omitted).
Defendant cites to fifteen pages of the transcript to support his argument that the trial judge improperly admonished him in front of the jury. However, defendant has failed to specifically identify the statements made by the trial judge upon which he bases his argument. Having reviewed the record, we hold that the trial judge was simply making evidentiary rulings pertaining to defendant's proffer of his medical record and his request to publish the controlled substance and drug paraphernalia to the jury. The trial court also overruled defendant's general objection to the State's closing argument, which was made after the argument had concluded. The trial court did not make any statement that could reasonably be construed as an expression of opinion as to defendant's guilt or the credibility of a witness. Id. This argument is without merit.
VI. Opinion Testimony
In his fourth argument, defendant contends the trial court committed plain error by allowing State witnesses to give expert testimony without qualifying or being tendered as expert witnesses pursuant to Rule 702 of the Rules of Evidence. Defendant bases this argument upon Rice's, Officer Kearney's, and Lieutenant Mack's testimony that "the tube found in [defendant's] clothing was a crack pipe or item used to smoke cocaine." We disagree.
Analysis under Rule 702 is unnecessary because these witnesses were permitted to give lay opinion testimony pursuant to Rule 701. N.C. Gen. Stat. § 8C-1, Rule 701 (2007) provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
"A lay witness must have a basis of personal knowledge for his opinion. However, a `[p]reliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony.'" State v. Givens, 95 N.C. App. 72, 79, 381 S.E.2d 869, 873 (1989) (quoting N.C. Gen. Stat. § 8C-1, Rule 602, commentary) (alteration original). "As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible." State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991).
A. Nurse's Testimony
Rice testified that when she found the metal pipe on defendant's person, she "recognized it as something that [she] would need to turn over to the WakeMed Police Department." Rice had worked as a registered nurse for five years, based this assessment on her "experience in the emergency room," and stated that she had "come in contact with objects like this before that were classified as paraphernalia." Nowhere in her testimony did Rice classify the metal pipe as a "crack pipe" or an item used to smoke cocaine. Rice's testimony was rationally based on her perceptions while working as a nurse in the emergency room and her testimony was helpful to the jury in determining a fact in issue.
B. Officers' Testimony
Officer Kearney testified that Rice brought the metal pipe to him and that he found it was clogged with two small, white, rock like substances. Officer Kearney hand-carried the pipe to his superior. The prosecutor then asked Officer Kearney: "What kind of training do you have with drugs in particular through your police training?" Officer Kearney responded: "Well, as I said, I worked ten years in prison, and unfortunately we did have cause to — to have drugs — you know, find drugs on inmates. And through my experiences at the hospital, I have come in contact with objects like this that were used to smoke crack cocaine."
Lieutenant Mack testified that he had worked at WakeMed for four years and that on 9 August 2007 Officer Kearney had contacted him in reference "to an item of drug paraphernalia that was found on a patient in the emergency department." He further testified that the "metal tube . . . is consistent from what [he had] seen before to be used as drug paraphernalia." As to why Lieutenant Mack considered this object to be drug paraphernalia, he stated "[t]he darkened areas on the ends are consistent with being burn marks from it being lit with a lighter, and the flared end makes it easier to insert items inside of it." Lieutenant Mack testified that he had experience with these types of pipes at the hospital previously.
We hold this lay opinion testimony was rationally based on their perceptions while working as law enforcement officers and it is helpful to the jury in determining a fact in issue. The admission of the challenged testimony was not error. See State v. Tate, 187 N.C. App. 593, 600, 653 S.E.2d 892, 897 (2007) ("Before we determine whether or not to engage in plain error analysis, we first must determine whether the admission of the testimony constitutes error." (citation omitted)). This argument is without merit.
VII. Mistrial
In his fifth argument, defendant contends the trial court erred by failing to declare a mistrial when one of the jurors briefly spoke to the prosecutor. We disagree.
Defendant concedes in his brief that he "did not move the court for a mistrial upon being informed that a juror approached State's counsel and asked a question during a recess." Because defendant failed to move for a mistrial, this issue is not properly preserved for appeal. State v. Ginyard, 334 N.C. 155, 160, 431 S.E.2d 11, 14 (1993). Plain error review is not available to defendants asserting that the trial court failed to declare a mistrial sua sponte. State v. Replogle, 181 N.C. App. 579, 582, 640 S.E.2d 757, 760 (2007); State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004).
Even if defendant had properly preserved this issue for appeal, his argument is without merit. N.C. Gen. Stat. § 15A-1061 (2007) provides that the trial court "must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." (emphasis added). In the instant case, the prosecutor informed the trial court that during a brief recess, a woman approached her to ask who the people were sitting in the gallery. The prosecutor inquired into whether the woman was a juror in this case. When the woman answered in the affirmative, the prosecutor stated, "I don't believe I can talk to you." Defendant stated that he would like to know which juror was involved. The prosecutor identified the juror in question and clarified what had been said. Defendant had nothing further on this issue. The trial court's inquiry into this matter was sufficient to show that there had been no conduct inside or outside the courtroom, which resulted in "substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061. This argument is without merit.
VIII. Additional Witness and Medical Records
In his final argument, defendant contends the trial court erred by denying defendant the opportunity to call an additional witness during his case in chief and denying defendant's motion to admit his medical record into evidence. We disagree.
A. Failure to Subpoena Witness
A review of the transcript shows defendant mistakenly subpoenaed Lieutenant Moore of the Garner Police Department instead of Officer Miller, who responded to the 911 call. Defendant asked the trial court: "[I]s it possible that I was mistaken in getting the right officer here; that I would like to get Officer Miller here?" The trial court responded: "The parties are responsible for getting the necessary witnesses here. I don't have anything to do with that." The trial court then asked defendant if he had further witnesses. Defendant reiterated that he would like to call Officer Miller, but that he had subpoenaed the wrong person. Defendant then stated, "I have no further witnesses."
Defendant now argues the trial court should have allowed "a brief recess" to determine whether defendant could have summoned Officer Miller to the courtroom. We disagree. First, defendant did not clearly make a motion for a recess or continuance and, thus, the trial court made no definitive ruling. Second, it is well-established that "a motion for continuance is ordinarily addressed to the discretion of the trial court and its ruling will not be disturbed absent a showing of abuse of discretion." State v. Howes, 19 N.C. App. 155, 157, 198 S.E.2d 86, 88 (1973). Third, a denial of a motion for continuance is only grounds for a new trial if the defendant can show "that the denial was erroneous and that his case was prejudiced as a result of the error." State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 596 (1988) (citation omitted). Defendant made no showing of the potential facts to be established by Officer Miller's testimony and therefore cannot show prejudice. See Howes, 19 N.C. App. at 157, 198 S.E.2d at 88 (discerning no abuse of discretion in a denial of a motion for continuance where the defendant "did not undertake to show the nature of the facts he proposed to establish by [the additional witnesses'] testimony"). This argument is without merit.
B. Admission of Medical Record
Defendant also argues the trial court erred by sustaining the State's objections to the admission of defendant's medical record for lack of a proper foundation. We disagree.
Hospital records are admissible under the business records exception to the hearsay rule with the proper foundation. To lay the proper foundation, the hospital librarian or custodian of the record or other qualified witness must testify to the identity and authenticity of the record and the mode of its preparation, and show that the entries were made at or near to the time of the act, condition or event recorded, that they were made by persons having knowledge of the data set forth, and that they were made ante litem motam. State v. Smith, 157 N.C. App. 493, 496-97, 581 S.E.2d 448, 450 (2003) (internal citation and quotation omitted).
Rice reviewed defendant's purported medical record and stated "[i]t appears to be a copy of an emergency room chart with your name on it. However, it is not — I can't say where it came from." Rice could not say whether the report was a true and certified copy from WakeMed medical records or that it had not been altered in some way. The document was properly excluded from the evidence. This argument is without merit.
No error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).