Opinion
No. COA11–1129.
2012-04-3
STATE of North Carolina v. Jasmine N. CORBETT, Defendant.
Roy Cooper, Attorney General, by Steven Armstrong, Assistant Attorney General, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
Appeal by defendant from judgments entered 19 August 2010 by Judge R. Stuart Albright in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 March 2012. Roy Cooper, Attorney General, by Steven Armstrong, Assistant Attorney General, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.
MARTIN, Chief Judge.
Defendant Jasmine N. Corbett appeals from judgments entered upon jury verdicts finding her guilty of three counts of felonious drug trafficking by the unlawful possession, sale, and delivery of 500 dosage units of 3, 4–methylenedioxymethamphetamine (“MDMA”). We find no error.
The evidence presented at trial tended to show that, in June 2008, Detective Jeffrey Fletcher with the Charlotte–Mecklenburg Police Department's Vice and Narcotics Division was working undercover in a “buy bust” operation, in which “an undercover officer purchases narcotics from a dealer” and arrests the subject after the transaction is completed.
On 11 June 2008, Detective Fletcher contacted defendant by telephone in an attempt to purchase thirty MDMA tablets, commonly known as “Ecstasy.” Detective Fletcher testified, without objection, that defendant agreed to sell him thirty Ecstasy pills for $220 later that same day at the BP gas station on the corner of West and Remount in Charlotte, North Carolina. Detective Fletcher—known as “J” to defendant—arrived at the location at the designated time. Defendant—known as “Juicy” to the detective—told Detective Fletcher that she was in a white SUV. The detective saw the vehicle that defendant described in the parking lot, but did not see defendant exit the vehicle; instead, the detective observed an African–American male, who was later identified as defendant's boyfriend, Devonte “D.J.” Howard, alight from the white SUV. D.J. then entered the front passenger's side of the detective's vehicle and gave him thirty Ecstasy pills in exchange for $220. D.J. then informed the detective that he “could contact Juicy if [he] wanted some more pills.” Detective Fletcher did not arrest either D.J. or defendant that day, in order to allow the investigation to continue. According to Detective Fletcher, the conversations he had with defendant by telephone on 11 June were recorded, and such recordings were admitted into evidence without objection.
A few days later, Detective Fletcher contacted defendant to arrange another transaction, in which defendant agreed to sell the detective 120 Ecstasy pills for $900. Through a series of telephone calls, defendant and Detective Fletcher arranged to meet on 17 June 2008 at 5:30 p.m. at a different location. When the detective arrived at the location, he saw defendant's boyfriend D.J. exit a black vehicle. D.J. then entered the front passenger's side of Detective Fletcher's vehicle and gave the detective 120 Ecstasy pills in exchange for $900. At the conclusion of this transaction, the detective told D.J. that he wanted to get “a larger amount of pills.” D.J. said that “it could occur,” but said that “[h]e just needed to check with his people about getting more than [300 pills].” D.J. then told Detective Fletcher that he could contact defendant to arrange the logistics of the next transaction.
Just over a week after the second transaction, Detective Fletcher contacted defendant again by telephone to arrange a third transaction, in which defendant agreed to sell Detective Fletcher 550 Ecstasy pills. On 24 June 2008, Detective Fletcher called defendant and the two arranged for the detective to pick up defendant in his vehicle so that they could travel together to meet the person or persons from whom defendant was to acquire the pills. At around 4:20 p.m., Detective Fletcher picked up defendant and drove to a McDonald's located at Independence Boulevard and Albemarle Road in North Charlotte. Defendant then exited the detective's vehicle, walked to the passenger's side of a blue van parked nearby, and returned to the detective's car less than a minute later with a burgundy Burberry men's cologne box. When Detective Fletcher opened the box, he saw five individually wrapped bags that each contained “a large quantity of pills.” He then gave defendant $2,000, at which time the arrest team descended upon the scene and arrested defendant and the occupants of the blue van from whom defendant received the pills.
The State's forensic chemist, Ann Charlesworth, received the pills collected as evidence from the scene. Since the pills in evidence included pills of different colors affixed with different markings and imprints, Ms. Charlesworth sorted the pills into eight groups of like colors and imprints and then photographed the pills in their respective groups. After counting the pills several times, Ms. Charlesworth concluded that there were exactly 500 pills. Ms. Charlesworth then performed a preliminary “color test” on a sampling of pills from each of the eight groupings to “point [her] in the right direction for confirming the identity of the substance.” Ms. Charlesworth then did “an extraction to get the actual chemical analysis” of one pill from each of the eight groupings to determine the “confirmed identity” of each sampled pill; each pill that was analyzed tested positive for a mixture of MDMA or Ecstasy and methamphetamine.
Defendant was indicted on one count each of felonious drug trafficking by the unlawful possession, sale, and delivery of 500 or more but less than 1000 dosage units of MDMA, commonly known as Ecstasy. The matter was tried before a jury, which found defendant guilty on each of the three charges. The trial court sentenced defendant to the statutorily-mandated range of 70 months to 84 months imprisonment for each offense, and ordered defendant to serve the three sentences consecutively. Defendant appeals.
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I.
Defendant first contends the trial court erred by allowing the State to introduce evidence regarding transactions between Detective Fletcher and defendant occurring on 11 June and 17 June 2008, prior to the transaction for which defendant was charged. Defendant asserts the evidence was inadmissible and the court abused its discretion when it ruled that defendant “opened the door” to the presentation of the evidence.
“[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.” State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). Thus, “[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.” Id. Moreover, “[s]tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law,” State v. Gobal, 186 N.C.App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008), and “a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001), supersedeas denied and disc. reviews denied and dismissed as moot, 355 N.C. 216, 560 S.E.2d 141–42 (2002); see alsoN.C. Gen.Stat. § 15A–1443(c) (2011) (“A defendant is not prejudiced by ... error resulting from his own conduct.”). Additionally, “[i]t is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979).
In the present case, during cross-examination, defense counsel asked Detective Fletcher, “And isn't it correct that you have purchased ecstasy from [defendant's boyfriend] Devontay [sic] Howard ... on different occasions?” After sustaining the State's objections to this line of questioning, outside of the presence of the jury, the court and defense counsel had the following exchange:
THE COURT: So you want to elicit that testimony to explain—and correct me if I'm wrong—you want to elicit this testimony to explain why this officer called [defendant] on June 24?
MR. EMRY: Yes, Your Honor.
THE COURT: And you want—and specifically, you want to elicit prior acts of [defendant's boyfriend] before June 24 to explain why this officer might have called [defendant] on June 24?
MR. EMRY: Yes.
(Emphasis added.) After hearing further argument from the parties on the issue, the court instructed defense counsel as follows:
Mr. Emry, you're doing it with your eyes wide open. You pursue this line of questioning, I do find it to be relevant. It explains why this officer called [defendant], but you can't just get your points out. You opened the door to allow the State to explain if there are other reasons for this—if there are no other reasons for this officer to have called [defendant], fine, but in the court file that we've already talked about, this officer has had two prior transactions where he called [defendant] and arranged for the sale of ecstasy, allegedly, and if that—either one of those two instances factored in on why he called [defendant], you are opening the door to that.
Nevertheless, in spite of the court's cautionary statements, when the jury returned to the courtroom, defense counsel again asked Detective Fletcher, “[I]sn't it true that you've previously, prior to this occasion, purchased ecstasy from [defendant's boyfriend] Devontay [sic] Howard?” Defense counsel then asked the detective whether defendant's cell phone number was “used in those previous transactions” and invited Detective Fletcher to confirm that “June 23rd was not the first time that [the detective] called” defendant's cell phone number. Consequently, on re-direct and without objection, the prosecutor questioned Detective Fletcher as follows:
Q. When was the first time that you had called that phone number?
A. June 11th.
....
Q. And could you explain the details of that conversation that you had with [defendant] on June 11th?
A. On that day, I contacted [defendant] in reference to purchase 30 pills.
Q. Thirty pills of what?
A. MDMA. Thirty pills of ecstasy pills.
....
Q. ... What was her response to your request to purchase 30 pills of ecstasy?
A. She agreed to sell me the 30 pills of ecstasy.
Q. Did she give you a specific price?
A. $220 for 30 pills.
Q. Did you and [defendant] set up a specific location and time for this transaction to be completed?
A. Yes, we did.
Then, still without objection from defendant, the detective proceeded to describe how he coordinated and executed the 11 June 2008 transaction with defendant. The State then introduced into evidence and published to the jury the audio recordings of Detective Fletcher's phone calls with defendant from 11 June; when specifically asked by the court whether defense counsel had any objection to the evidence offered by the State, counsel replied, “No objection.” The detective similarly testified, without objection, about how he and defendant coordinated and executed the 17 June 2008 transaction for 120 Ecstasy pills.
“Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (internal quotation marks omitted), cert. denied,547 U.S. 1073, 164 L.Ed.2d 523 (2006). After reviewing the record, we conclude the trial court did not abuse its discretion by determining that defendant had “opened the door” regarding defendant's involvement in the 11 June and 17 June drug transactions with Detective Fletcher during her cross-examination of the detective. Moreover, since defendant failed to object when the now-challenged testimony was elicited from Detective Fletcher regarding both prior transactions, and failed to object when the audio recordings of the telephone conversations between the detective and defendant coordinating the 11 June drug transaction were admitted into evidence and presented to the jury, we conclude that any objection that may have been properly made with respect to this evidence, and any error that the court may have made as to its admissibility under North Carolina's evidentiary Rules 401, 403, or 404(b), has been waived. Defendant's argument is overruled.
II.
Defendant next contends the trial court erred by refusing to instruct the jury on the lesser trafficking offenses of selling, delivering, and possessing 100 or more but less than 500 dosage units of MDMA in violation of N.C.G.S. § 90–95(h)(4b)(a). Although defendant concedes that “[t]he evidence showed precisely 500 pills were involved in this transaction,” defendant asserts that, because Ms. Charlesworth's testimony “about the make-up of the pills left room for doubt about whether each and every one of the 500 pills contained ecstacy [sic],” and because only eight of the 500 pills were actually chemically analyzed, the court was required to instruct the jury on the lesser trafficking offenses. We disagree.
“The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime,” but “whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.” State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322,cert. denied,498 U.S. 871, 112 L.Ed.2d 155 (1990). “[T]he lesser included offense must be submitted only when a defendant presents evidence thereof or when the State's evidence is conflicting.” State v. Bullard, 97 N.C.App. 496, 498, 389 S.E.2d 123, 124,disc. review denied, 327 N.C. 142, 394 S.E.2d 181 (1990).
In the present case, on cross-examination, the State's forensic chemist, Ms. Charlesworth, was asked whether “there is a statistical possibility that at least 1 of the other 492 pills is not, in fact, [MDMA or Ecstasy],” to which she replied, “Yes.” On re-cross, Ms. Charlesworth was again asked whether “it is possible that of the 500 pills, that one or more of the pills contains no [MDMA or Ecstasy],” to which Ms. Charlesworth replied, “That is a possibility.” Nevertheless, on re-direct, when asked her opinion as to whether the same chemicals of MDMA or Ecstasy and methamphetamine were present in each of the 500 pills recovered from the scene, Ms. Charlesworth testified as follows: “I have not analyzed every pill in the grouping, but I feel that I did a representative sample to conclude that all the pills contain the same chemicals.” When asked if this was her “expert opinion,” Ms. Charlesworth answered, “Yes.” Since “[t]he mere contention that the jury might accept the State's evidence in part and might reject it in part is not sufficient to require submission to the jury of a lessor offense,” State v. Black, 21 N.C.App. 640, 643–44, 205 S.E.2d 154, 156 (emphasis added), aff'd, 286 N.C. 191, 209 S.E.2d 458 (1974), we are not persuaded that, based on this challenged testimony alone, the court was required to instruct the jury on the lesser offenses defined in N.C.G.S. § 90–95(h)(4b)(a).
Additionally, defendant relies on State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), to suggest that Ms. Charlesworth's inspection of the 492 “untested” pills was insufficient to confirm that those pills contained MDMA or Ecstasy. In Ward, the Court stated that “the expert witness testimony required to establish that the substances introduced here are in fact controlled substances must be based on a scientifically valid chemical analysis and not mere visual inspection.” Ward, 364 N.C. at 142, 694 S.E.2d at 744 (emphasis added); see also id. at 147, 694 S.E.2d at 747 (holding that, “[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required”). However, in Ward, the Court also expressly provided that “common sense limit[ed its] holding regarding the scope of the chemical analysis that must be performed,” and that “[a] chemical analysis of each individual tablet is not necessary.” See Ward, 364 N.C. at 148, 694 S.E.2d at 747 (emphasis added). Instead, the scope of the chemical analysis required “may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.” See id.
Our courts have consistently held that, “[w]hen a random sample from a quantity of tablets or capsules identical in appearance is analyzed and is found to contain contraband, the entire quantity may be introduced as the contraband.” State v. Wilhelm, 59 N.C.App. 298, 303, 296 S.E.2d 664, 667 (1982), disc. review denied, 307 N.C. 702, 301 S.E.2d 395 (1983). In the present case, the State did not merely “rely upon a visual inspection of pills” to determine that each of the 500 pills collected as evidence contained MDMA or Ecstasy and methamphetamine. See State v. Dobbs, ––– N.C.App. ––––, ––––, 702 S.E.2d 349, 351 (2010). Rather, after sorting the pills into eight groupings of like colors and imprints, Ms. Charlesworth performed a preliminary “color test” on a sample from each grouping. The number of pills color-tested from each grouping was equivalent to the square root of the total number of pills in that grouping. For example, State's Exhibit 5 contained 71 pills, so Ms. Charlesworth color-tested eight (8) pills from that grouping, which is the amount equivalent to the rounded-down whole number value of the square root of 71 or 8.42. Once the number of pills to be color-tested in each grouping was determined, Ms. Charlesworth took a razor blade and shaved off a portion of each pill selected from the respective groupings into a small dish, to which she added chemicals “to watch the color change occur.” Her analysis of each sample tested produced two different colors, an orange color and a black color, “each representing a positive color response for MDMA and methamphetamine.”
If the square root did not yield a whole number, any remainder value below “.5” was rounded down to the next nearest whole number, so that the number of pills color-tested was equal to the next lower whole number, while any remainder value equal to “.5” or above was rounded up and required color-testing a number of pills equal to the next higher whole number.
After completing the preliminary color tests on samples from each of the eight groupings, Ms. Charlesworth then selected one pill from each of the eight groups and did two different extractions on each pill in order to confirm each pill's chemical identity, which involved crushing the sample pills, applying different solvents, and analyzing the chromatography of each sample. Ms. Charlesworth testified, without objection, that each pill subjected to these procedures contained MDMA or Ecstasy and methamphetamine, that the procedure of random sampling is standard in the field of forensic chemistry, and that it was her expert opinion that the pills tested were a representative sample of all of the pills in evidence in this case and that each of the 500 pills contained the same chemical compounds. Accordingly, we conclude that the procedures performed by Ms. Charlesworth, coupled with a visual inspection of the remaining 492 pills for likeness in color, shape, and markings or imprints, see State v. Myers, 61 N.C.App. 554, 556, 301 S.E.2d 401, 402 (1983), cert. denied, 311 N.C. 767, 321 S.E.2d 153 (1984), were sufficient to confirm the chemical identity of each of the 500 pills in evidence as containing MDMA or Ecstasy and methamphetamine. Accordingly, we conclude the arguments advanced by defendant with respect to this issue on appeal are meritless.
III.
Finally, defendant contends the trial court's order that defendant serve her three mandatory sentences of 70 months to 84 months consecutively constituted an abuse of discretion. “When multiple sentences of imprisonment are imposed on a person at the same time[,] ... the sentences may run either concurrently or consecutively, as determined by the court.” N.C. Gen.Stat. § 15A–1354(a) (2011). “[O]rdinarily on sentencing decisions appellate courts do not substitute their judgment for that of the trial court.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 440 (1983).
Defendant concedes in her brief that the offenses for which she was convicted “might constitute three separate trafficking crimes involving ecstacy [sic] under the interpretations of [N.C.G.S. § ] 90–95(h)(4b) [ (b) ],” and does not dispute that each conviction carries a mandatory term of imprisonment of 70 months to 84 months. SeeN.C. Gen.Stat. § 90–95(h)(4b)(b) (2011) (providing that a person convicted of felonious drug trafficking by the unlawful possession, sale, or delivery of 500 or more but less than 1000 dosage units of Ecstasy “shall be sentenced to a minimum term of 70 months and a maximum term of 84 months” imprisonment). However, defendant protests that these acts “hardly represent conduct deserving of consecutive punishment, especially where the amount (500 pills) was the barest minimum necessary to constitute Level II trafficking in ecstacy [sic].” Nevertheless, before pronouncing its sentence for each of defendant's three convictions, the trial court advised defendant as follows:
Based on the jury's verdict in this case, Ms. Corbett, I think your attorney did a fine job for you in this case considering the facts. And having had the opportunity to listen to the evidence that was brought forward by the State, pictures are worth a thousand words and the videos even more than that, and you were caught, for lack of a better term, redhanded with everything. The audio is equally damaging. I understand your attorney's request for extraordinary mitigation and helping the detectives, but I've considered that and I will absolutely not do that. You took the stand and accused a police officer of lying. I don't find what you've done in this case is extraordinary. In this case what is extraordinary is your level of involvement in the drug trade here in Charlotte. You are a one-woman crime wave. When the detective needed to set up a deal, he called you and you set it up. You did everything you could to help facilitate—you're shaking your head no, ma‘am. I've seen the video and I've heard the audio. You were the main contact, and while I can understand your attorney regarding how drug deals are prosecuted, but that's what happens when you get involved with things like this. And it is shocking how much Ecstasy you helped facilitate to bring into the Charlotte area. That's why these laws are here, and in my discretion I'm going to enter the following [sentences].
Based on a review of the record before us and in spite of defendant's attempt to minimize her participation in the 24 June 2008 transaction involving the possession, sale, and delivery of 500 dosage units of MDMA or Ecstasy and methamphetamine, we are not persuaded by defendant's allegation that the trial court “exaggerated [the] significance” of these offenses. Accordingly, we conclude that the trial court's decision to sentence this defendant to serve three consecutive sentences of 70 to 84 months imprisonment for convictions on three counts of felonious drug trafficking was not an abuse of the court's discretion.
No error. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).