Opinion
No. COA09-1417
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgment entered 30 March 2009 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Haral E. Carlin for defendant-appellant.
Mecklenburg County Nos. 08 CRS 26076, 07 CRS 210160, 07 CRS 210161.
Defendant Abel William Harris appeals from his convictions of possession of a Schedule I controlled substance, possession of marijuana, and being a habitual felon. On appeal, defendant primarily contends that the trial court improperly refused to order the State to provide him with a copy of his criminal record and erred in denying his motion for a continuance based on the lack of discovery related to the habitual felon indictment. Defendant has, however, failed to show that he suffered any specific prejudice from the lack of discovery, especially in light of the fact that (1) his trial counsel in this case had also represented him with respect to two of the three felony offenses forming the basis for the habitual felon indictment, (2) his counsel had an opportunity to review copies of the judgments prior to the habitual felon phase of the trial, and (3) defendant ultimately stipulated to all of the felony convictions. Since we find defendant's remaining contentions also unpersuasive, we hold that defendant received a trial free of prejudicial error.
Facts
At trial, the State's evidence tended to show the following facts. On 3 March 2007, Officer Watts, Sergeant Sloop, and Officer Gerson of the Charlotte-Mecklenburg Police Department were directing traffic at the Cricket Arena. Sergeant Sloop stopped a gold Chevrolet Monte Carlo driven by Joey Williams. Defendant was a passenger in the vehicle. As Sergeant Sloop approached the driver's side of the vehicle, and Officer Watts approached the passenger side, Williams rolled down the vehicle's window and a puff of smoke smelling strongly of marijuana came out.
Sergeant Sloop asked Williams whether there was marijuana in the car, and he said no. Officer Watts told Williams that if there was marijuana in the car and he handed it over to the officers, they would write him a citation and let him go without arresting him. On the other hand, Officer Watts warned, if the officers had to search the vehicle and subsequently found marijuana, he could be arrested at the scene. According to Officer Watts, Williams then handed him a marijuana cigarette. Sergeant Sloop, however, testified that it was defendant who gave Officer Watts the marijuana cigarette.
Sergeant Sloop asked both men to step out of the vehicle. Officer Watts searched defendant and found pills in a plastic bag in his right front jacket pocket. He also found a plastic bag containing marijuana in his left front jacket pocket. A search of the car uncovered more pills and what appeared to be crack cocaine in a plastic bag in the passenger side door handle. Upon subsequent testing, the pills tested positive for 3,4-Methylenedioxymethamphetamine, also known as MDMA or Ecstasy, while the other substance tested positive for cocaine.
Defendant was arrested and charged with one count of possession of a Schedule VI controlled substance (marijuana) and one count of possession of a Schedule I controlled substance (Ecstasy). On 21 April 2008, defendant was also indicted for having reached habitual felon status. When the case was called for trial on 2 February 2009, defendant's attorney made an oral request for a continuance on the grounds that he had not received any discovery on the habitual felon charge. Defense counsel contended that the State should have given him copies of the judgments for the convictions being used to support the habitual felon charge.
In response, the prosecutor informed the trial court that he had faxed an updated structured sentencing sheet to defense counsel's office on 31 January 2009. The prior record level worksheet listed each of defendant's prior convictions and the CRS file numbers for each conviction; it also identified those convictions on which the State intended to rely for the habitual felon charge by an asterisk. The prosecutor showed a copy of the fax to defendant's attorney and the trial judge and said that he would make copies of the judgments available to defendant's attorney immediately, although he pointed out that defendant's attorney could also obtain copies of the judgments from the clerk of court's office. The trial court denied the motion to continue.
The case proceeded to trial first on the underlying charges of possession of marijuana and possession of 3,4- Methylenedioxymethamphetamine, and, on 6 February 2009, the jury found defendant guilty of both charges. Before the trial on the habitual felon charge began, also on 6 February 2009, defendant's attorney renewed his request for discovery as to defendant's alleged habitual felon status and moved to dismiss the charge on the grounds that counsel had not received copies of the underlying felony judgments in discovery. Defense counsel admitted, however, that he had previously, during the trial, been given the opportunity to look at the judgments and that the clerk's office had given him a copy of one of the judgments and a printout showing the other two predicate convictions. After the trial court denied the motion to dismiss, defendant moved to continue the habitual felon proceedings. The trial court also denied the motion to continue.
The State then called the custodian of records for the clerk's office who identified certified copies of the three indictments for the predicate felony offenses listed in the habitual felon indictment and the judgments for those offenses. Defendant presented no evidence, the trial court denied defendant's renewed motion to dismiss the habitual felon charge, and the jury convicted defendant of being a habitual felon. The trial court then entered a prayer for judgment continued until the State prayed judgment.
On 30 March 2009, the trial court conducted a sentencing hearing. Prior to the hearing, the State and defense counsel signed the stipulation on the prior record level worksheet with defendant stipulating to all of the convictions listed, including each of the felonies relied upon in the habitual felon indictment. The trial court sentenced defendant to a presumptive-range term of 116 to 149 months imprisonment. Defendant timely appealed to this Court.
I
Defendant contends with respect to the possession of marijuana conviction that the trial court improperly admitted into evidence (1) the marijuana cigarette seized by officers when defendant was arrested and (2) the envelope into which the officers allegedly placed the cigarette upon seizure. Defendant points out that real evidence — an object playing an "actual, direct role in the incident giving rise to the trial" — must be identified as being the same object in fact involved in the incident in order to be admissible at trial. State v. Harbison, 293 N.C. 474, 483, 238 S.E.2d 449, 454 (1977). The party seeking admission of the real evidence must also show that the object "has undergone no material change in its condition" since the incident in which the object was involved. Id.
At trial in this case, Officer Watts testified that State's Exhibit 2 was the actual marijuana cigarette handed to him on 3 March 2007. Officer Watts placed the cigarette on the trunk of the car in which defendant was riding. According to Officer Watts, Officer White picked up the marijuana cigarette from the trunk and placed it in an envelope, which Officer Watts identified as State's Exhibit 1. Officer Watts testified that the envelope was then sealed, taped, initialed by Officer White with the date and the officer's code number, and turned in to the police department's property control office. Officer Watts explained that the property control office is a secured room and that the only people who have access to the room are the people who actually work inside it. Officer Watts, who does not have access to the property control room, checked the evidence out the day before the trial. He confirmed that the envelope and the cigarette were in the same or substantially similar condition as on 3 March 2007.
This testimony is sufficient to lay the foundation for admission of the marijuana cigarette and the evidence envelope. See State v. McAllister, 190 N.C. App. 289, 299, 660 S.E.2d 247, 253 (2008) (holding real evidence was admissible when sheriff's detective testified that officers collected items of evidence from victim's bedroom, placed items into sealed containers, assigned the items sequential numbers, and placed containers in sheriff's department's locked evidence storage area).
Defendant contends, however, that a continuous chain of custody was not established because there was conflicting evidence as to whether the driver or defendant handed the marijuana cigarette to Officer Watts and, in any event, the officer who placed the cigarette in the envelope and whose initials appeared on the evidence envelope did not testify. This Court has held, however, that "[a] detailed chain of custody has to be established `only if the evidence offered is not readily identifiable or is susceptible to alteration and such alteration has been alleged.'" State v. Greenlee, 146 N.C. App. 729, 732, 553 S.E.2d 916, 918 (2001) (quoting State v. Brown, 101 N.C. App. 71, 75, 398 S.E.2d 905, 907 (1990)). Weak links in the chain of custody "relate to the weight of the evidence, not its admissibility." Id.
As defendant does not point to any allegation that the cigarette was not readily identifiable or that it was altered, defendant has failed to demonstrate that a detailed, continuous chain of custody was needed. Since defendant's issues regarding the chain of custody relate to the weight of the evidence and not its admissibility, the trial court properly admitted the evidence. See State v. Berryman, 170 N.C. App. 336, 339-40, 612 S.E.2d 672, 675 (2005) (finding foundation sufficient when officer testified that crack pipe and crack cocaine rocks were same items he recovered from defendant and were in substantially same condition; holding that "any weakness in the chain of custody was for the jury to weigh"), aff'd, 360 N.C. 209, 624 S.E.2d 350 (2006).
II
With respect to the habitual felon conviction, defendant contends that the trial court erred in denying his motion for a continuance and in not ruling that the State had violated his statutory and constitutional discovery rights by failing to provide defense counsel, within a reasonable time prior to trial, with documents relating to defendant's status as a habitual felon. Defendant argues that the State, by not providing discovery, "denied the defendant the opportunity to investigate and determine the validity of the indictment alleging [defendant] to be a habitual felon offender."
We need not decide, in this case, whether a defendant's criminal record is subject to the discovery requirements since defendant has failed to demonstrate that he was prejudiced by the lack of discovery. See State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 588 (1994) (applying harmless error analysis when discovery statute violated). A showing of prejudice is also a prerequisite to obtaining a new trial based on the denial of a motion for a continuance. See State v. Flint, ___ N.C. App. ___, ___, 682 S.E.2d 443, 447 (2009) ("`To demonstrate that the time allowed [to prepare for trial] was inadequate, the defendant must show how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.'" (quoting State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808, 123 S. Ct. 894 (2003))).
With respect to the issue of prejudice, defendant argues only that he "could not adequately and effectively investigate the underlying felonies or cross-examine the clerk of court that testified on behalf of the State." In arguing that he was prejudiced by the State's waiting until the eve of trial to provide the felony judgments, defendant cites State v. Barlowe, 157 N.C. App. 249, 255, 578 S.E.2d 660, 664, disc. review denied, 357 N.C. 462, 586 S.E.2d 100 (2003), in which this Court granted a new trial when the trial court denied the defendant's motion to continue after the State waited until nine days before trial to provide her with a report by a blood stain expert. In Barlowe, 157 N.C. App. at 257, 578 S.E.2d at 665, the denial of the motion to continue prejudiced the defendant because by the time she got the requested discovery, she had only a few days to prepare to cross-examine the State's key expert on a critical and highly technical piece of evidence.
Here, on 5 February 2009, prior to the habitual felon phase of the trial, defendant served a motion seeking to have the names of defense counsel and the prosecutor redacted from the judgments for the three habitual felon predicate felonies. That motion reveals that defendant's trial counsel in this case had also been defendant's attorney for two of the three predicate felonies. In addition, counsel stated in that motion that he had obtained a copy of the judgment for one of the felonies from the clerk's office, but that the files were not available for the other two felonies. The motion acknowledged that counsel was, in any event, able to review the State's copies of all three felony judgments on 3 February 2009. Further, prior to sentencing, defense counsel stipulated in writing to defendant's prior record level and all of the underlying convictions, including the three felonies that were the basis for the habitual felon indictment.
By virtue of the nature of the charge of attaining the status of a habitual felon, defendant was on notice that the State would be using his prior convictions, and the indictment identified the date and nature of each felony forming the basis for the charge. Defendant fails to provide any explanation of how he was prejudiced with respect to the two felony convictions on which he was represented by the same counsel as in this trial. We do not understand why defense counsel would need the assistance of discovery in order to investigate convictions on which he had in fact been defendant's counsel. See State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990) ("[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate."), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062, 111 S. Ct. 977 (1991).
With respect to the third conviction, because of defendant's stipulation during sentencing (after ample time for any investigation), there is no dispute that defendant was in fact convicted of that felony. Defendant offers no suggestion of any specific issues he would have investigated or any lines of cross-examination he could have pursued had he received a copy of the judgment for that conviction earlier than 3 February 2009 or had he been given additional time through a continuance. Defendant has, therefore, failed to demonstrate any specific prejudice he suffered from the failure to provide discovery in connection with the habitual felon indictment or from the denial of his motion for a continuance.
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).