Opinion
No. COA13–94.
2013-08-6
STATE of North Carolina, v. Kenneth Shawn LUNSFORD.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant.
Appeal by defendant from judgment entered 2 August 2012 by Judge Henry W. Hight, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 4 June 2013. Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant.
ELMORE, Judge.
Kenneth Shawn Lunsford (defendant) was charged with one count of possession with intent to manufacture and/or sell and/or deliver marijuana, one count of trafficking in cocaine, and one count of possession with intent to sell and/or deliver cocaine. Prior to the presentation of evidence, the State elected not to proceed with the charge of possession with intent to manufacture and/or sell and/or deliver marijuana. The jury found defendant guilty of all remaining charges. Defendant was sentenced to a mandatory term of 175 to 219 months imprisonment for the trafficking conviction and, as a prior level III, to a consecutive term of ten to twelve months imprisonment for the possession with intent to sell and/or deliver cocaine conviction. Judgment and commitment were entered on 2 August 2012. Defendant now appeals. After careful consideration, we conclude that defendant received a trial free from error.
I. Factual Background
On 31 March 2009, Richard Marsh, a patrol and canine officer with the Burlington Police Department, received information regarding possible drug sales on Fitch Street in Burlington. In response, Officer Marsh, Officer Houck, and Officer Spell arranged to attempt a “knock and talk” at 908 Fitch Street, the residence of William Gattis. When the officers arrived at the residence, Officer Spell proceeded to the rear of the house, while Officer Houck knocked on the front door and Officer Marsh provided cover.
A young black male answered the door. Gattis, defendant, and a third black male came out of a bedroom door into the living room; Gattis allowed the officers into the residence. Upon entering, the officers smelled the odor of burning marijuana. Officer Marsh asked permission to search the house, which Gattis denied. Officer Marsh conducted a “protective sweep” of the house to assure that there were no armed suspects in the house. During his walk-through, Officer Marsh saw three bags of marijuana and a hookah pipe in plain view. Accordingly, the officers secured the suspects and obtained a search warrant.
After recovering cocaine, marijuana, cash, a handgun, and ammunition from the residence, the officers searched Gattis, defendant, and a third male. Defendant had over $7,000 in his pocket. After a blind sniff test by K–9 dogs, it was determined that the money had been in contact with narcotics. The officers then searched defendant's vehicle, which was parked outside.
Officer Maurice Hedgepeth of the Burlington Police Department's DEA task force conducted civil asset forfeiture of the $7,000. As protocol, sums over $5,000 are taken to the bank for counting; thus, on 1 April 2009, Officer Hedgepeth took the currency seized from defendant to Wachovia Bank, where it was counted by an electronic counting machine in the presence of two police officers and a bank representative. In exchange for the currency, Officer Hedgepeth was given a certified check made payable to the United States Marshal's Services.
Over defendant's objection at trial, Officer Hedgepeth testified that $7,830 was taken from defendant's person. Officer Hedgepath stated that a bank representative counted the money using a money-counting machine, made a record of it, and told him the total amount of money the machine had indicated. When asked, “[c]an you tell the jury specifically how much money and what denominations were counted,” Officer Hedgepeth referred to his contemporaneously prepared report: “it says: Seven 15 hundred—$7830, $200 in $100 bills. It had $100 in $50 16 bills, $5800 in $20 bills, $1140 in $10 bills and $590 in 17 $5 bills.” The trial court admitted Officer Hedgepeth's testimony regarding the amount of money and denominations of bills found on defendant's person.
II. Analysis
Defendant makes a five-part argument on appeal: (1) the trial court committed prejudicial error when it admitted testimony concerning the amount of money and the denominations of bills found on defendant's person; (2) the trial court committed prejudicial error when it admitted testimony concerning the out-of-court statement of a non-testifying bank representative; (3) the trial court committed prejudicial error when it permitted Officer Hedgepath to read statements contained in his report to the jury; (4) the trial court committed reversible error when it denied defendant's motion to suppress evidence of cash found on his person, where the State allegedly failed to establish a proper chain of custody; and (5) the trial court committed reversible error when it denied defendant's motion to suppress evidence of cash found on his person.
II. Analysis
A. Amount and Denomination
Defendant's first three arguments concern the trial court's admission of testimony regarding the amount of money found on defendant. First, defendant argues that the trial court committed prejudicial error when it admitted testimony concerning the amount of money and denominations of bills found on defendant's person. Defendant specifically argues that Officer Hedgepeth's testimony concerning the amount of money seized was hearsay on the basis that the bank representative, who relied on the printout from the money-counting machine, told Officer Hedgepeth the final sum confiscated from defendant. As such, defendant asserts that the printout itself is hearsay. We disagree.
“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen.Stat. § 8C–1, Rule 801(c) (2011). “When preserved by an objection, a trial court's decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson, 209 N.C.App. 682, ––––, 706 S.E.2d 790, 797 (2011) (citation omitted).
In the instant case, Officer Hedgepeth's statements were based on his personal knowledge and concerned a transaction that he witnessed. He first testified that it was his duty to take the seized money to Wachovia and have it counted for DEA purposes. Thus, he brought the money to a bank representative at Wachovia, witnessed it being counted, and recalled the total to be approximately $7,830.00. The fact that he learned the total amount from the bank representative who read a printout does not render his testimony hearsay. It does not violate the hearsay rule to testify to a transaction the declarant witnessed.
Assuming arguendo that Officer Hedgepeth's testimony is hearsay, it falls within an exception to the hearsay rule. Rule 803(6) of the North Carolina Rules of Evidence is the business records exception to the hearsay rule and provides:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
N.C. Gen.Stat. § 8C–1, Rule 803(6) (2011).
“Business records are admissible as an exception to the hearsay rule if made in the regular course of business, at or near the time of the transaction involved, and ... authenticated by a witness who is familiar with them and the system under which they were made[ .]” State v. Frierson, 153 N.C.App. 242, 246, 569 S.E.2d 687, 689 (2002) (citations and quotations omitted). “Trustworthiness is the foundation of the business records exception.” State v. Miller, 80 N.C.App. 425, 429, 342 S.E.2d 553, 556 (1986) (citation omitted).
While we have not previously specifically ruled on whether a printout from a bank money-counting machine falls under the business record exception, this Court has allowed similar records to fall under this exception. In State v. Sneed, testimony that National Crime Information Center (NCIC) printouts provided proof that the defendant possessed a stolen firearm qualified under the business records exception as a database compilation. State v. Sneed, 210 N.C.App. 622, 630–31, 709 S.E.2d 455, 461 (2011). In Sneed, while the law enforcement witness was not a custodian of records and could not testify that they were made in the regular course of business, the regularity of preparation of information in the database provided a sufficient foundation. Id.; see also Cooper v. Commonwealth, 54 Va.App. 558, 568, 680 S.E.2d 361 (Va.Ct.App.2009) (holding that even though a person with personal knowledge of the facts input into the NCIC database had not testified, admission of the report under the business records hearsay exception was proper because “evidence show[ed] the regularity of preparation of the records and reliance on them by their preparers or those for whom they are prepared.”)). Similarly, in State v. Miller, blood test results were held to “constitute a record made in the usual course of business, [when] made contemporaneously with the events and recorded by one with authority to do so[.]” State v. Miller, 80 N.C.App. at 425, 429, 342 S.E.2d 553, 556 (1986).
Had the printout from the money-counting machine been admitted into evidence, it would fall under the business record exception to the hearsay rule. The printout was made in the regular course of business, at or near the time of the transaction involved, and authenticated by Officer Hedgepeth, a witness who was familiar with the system. Accordingly, Officer Hedgepeth's testimony was admissible because of his familiarly with the process, the reliability of the source of information, and the lack of any suspicion of untrustworthiness.
Again, assuming arguendo that the admission of the testimony concerning the amount of money found on defendant was in error, it was harmless error. Whether defendant was carrying $5,000 or $7,380 on his person was not determinative of the outcome in the case. “In order to show prejudicial error, an appellant must show there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.” State v. Martin, 322 N.C. 229, 238–39, 367 S.E.2d 618, 623–24 (1988). Defendant failed to show that but for the purported error, there would be a different outcome. Accordingly, we conclude that the trial court did not err by admitting testimony concerning the amount of money found on defendant.
B. Non-testifying Witness Statement
In his second argument, defendant contends that the trial court committed prejudicial error when it admitted, over defendant's objections, testimony concerning the out-of-court statement made by a non-testifying bank representative. As such, defendant argues that this testimony violated his Sixth Amendment right to confront the evidence against him. Defendant specifically contends that “the State used Officer Hedgepeth's testimony to put before the jury evidence of a non-testifying bank representative's statement regarding the amount of cash and sheer number of particular bills found on [defendant].” We disagree.
We initially note that “[t]he right of confrontation is not absolute and admission of reliable hearsay is not violative of the right of confrontation.” Miller, 80 N.C.App. at 430, 342 S.E.2d at 556 (citation omitted). Because business records do not constitute testimonial evidence, their admission does not violate confrontation rights. State v. Windley, 173 N.C.App. 187, 194, 617 S.E.2d 682, 686 (2005).
Our response to defendant's second issue is the same as set forth above. Officer Hedgepeth's statements regarding the amount of money confiscated from defendant did not constitute hearsay. However, if they did, they were 1) admissible under an exception to the hearsay rule, and 2) did not constitute prejudicial error.
C. Recorded Recollection
Third, defendant argues that the trial court committed prejudicial error in allowing Officer Hedgepeth to read from his report regarding the various bill denominations on the ground that such statements constitute hearsay. We disagree.
Under N.C. Gen.Stat. § 8C–1, Rule 803(5), “[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately” is not excluded by the hearsay rule, even though the declarant is available as a witness, if the memorandum or record is “shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.” N.C. Gen.Stat. § 8C–1, Rule 803(5) (2011). “The rule applies in an instance where a witness is unable to remember the events which were recorded, but the witness recalls having made the entry at a time when the fact was fresh in her memory, and the witness knew she recorded it correctly.” State v. Spinks, 136 N.C.App. 153, 158–59, 523 S.E.2d 129, 133 (1999). See, e.g., State v. Moody, 345 N.C. 563, 580, 481 S.E.2d 629, 637–38 (1997) (holding that it was permissible under Rule 803(5) for an SBI agent to read from a narrative report prepared from his notes where the agent testified that the report refreshed his recollection of his interview with the defendant).
During trial, Officer Hedgepeth testified that he prepared a contemporaneous report to document the counting. He also stated that the report would serve to refresh his memory regarding the denominations; he then read from a portion of the report: “Wachovia electronic counters were utilized with a bank representative. And it says: Seven hundred—$7830, $200 in $100 bills. It had $100 in $50 bills, $5800 in $20 bills, $1140 in $10 bills and $590 in $5 bills.” This report was used to refresh his recollection, and his testimony “comported with the exceptions to the hearsay rule and, thus, was properly admitted and used at trial.” Id. at 580, 481 S.E.2d at 638.
D. Chain of Custody
In his fourth argument, defendant contends that the trial court committed reversible error when it denied his motion to suppress evidence of cash found on his person because the State's evidence failed to establish a proper chain of custody. We disagree.
The term “chain of custody” references the foundation that must be laid before real evidence is admitted at trial: “Before real evidence may be received into evidence, the party offering the evidence must first satisfy a two-pronged test. The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change.” State v. McAllister, 190 N.C.App. 289, 296, 660 S.E.2d 247, 252 (2008) (citations and quotations omitted). In general, admitting evidence “is at the trial court's discretion, and any weak links in a chain of custody relate only to the weight to be given the evidence and not to its admissibility.” State v. Stevenson, 136 N.C.App. 235, 242, 523 S.E.2d 734, 738 (1999) (citation omitted). “Although a defendant may point to gaps or flaws in the chain of custody or procedure, a showing that the evidence was tampered with or altered is generally required for a reversal of the trial court's decision to admit the evidence.” State v. Hyman, 153 N.C.App. 396, 400, 570 S.E.2d 745, 748 (2002).
Here, the State did not admit the confiscated money into evidence; thus, it was not charged with showing a chain of custody. We note that the record indicates that Officer Hedgepeth followed the standard DEA procedure in handling the seizure of funds over $5,000. He testified that all confiscated “money is held on by the police department, but it's witnessed by me the next day to go get that money and put into a, a[sic] U.S. marshal's check.” Even if defendant properly challenged the chain of custody, he has failed to show any gaps or flaws that would justify a reversal. As it stands, this argument is without merit.
E. Improper Search and Seizure
Finally, defendant argues that the trial court committed reversible error when it denied his motion to suppress evidence of cash found on his person because defendant was seized and searched without probable cause. We disagree.
Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
A warrantless arrest is lawful if based upon probable cause, and permitted by state law. State v. Wooten, 34 N.C.App. 85, 88, 237 S.E.2d 301, 304 (1977). “An officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence. Facts establishing probable cause must be sufficient to justify the issuance of an arrest warrant even though one has not been requested prior to the arrest.” State v. Mills, 104 N.C.App. 724, 728, 411 S.E.2d 193, 195 (1991) (quotation and citation omitted).
In the case sub judice, the officers smelled the odor of marijuana upon entering the residence. A lawful search resulted in the recovery of cocaine, marijuana, cash, a handgun, and ammunition. Given the (1) reported drug activity in the area, (2) the odor of burning marijuana, (3) the recovery of cocaine, marijuana, cash, and a handgun during the search, and (4) the attempt by defendant to flee the scene, we conclude that the officers had probable cause to search defendant. A reasonable person acting in good faith could believe a search of defendant's person would reveal evidence of criminal activity. Accordingly, trial court did not commit reversible error in denying defendant's motion to suppress.
III. Conclusion
In sum, the trial court did not err in admitting testimony concerning the amount of money and the denominations of bills found on defendant, in admitting testimony concerning the out-of-court statement of a non-testifying bank representative, or in permitting Officer Hedgepeth to read statements contained in his report to the jury. Furthermore, the trial court did not err in denying defendant's motion to suppress the evidence. Accordingly, we conclude that defendant received a trial free from error.
No error. Chief Judge MARTIN and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).