Opinion
No. COA09-1154
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments signed 18 March 2009 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 22 February 2010.
Roy Cooper, Attorney General, by David P. Brenskelle, Special Deputy Attorney General, for the State. Bryan Gates, for defendant-appellant.
Pitt County No. 08 CRS 052944.
The State's evidence at trial tended to show that on 16 March 2008, while attempting to serve a warrant on defendant for an incident of domestic violence, police officers Johnathan Young ("Officer Young") and R.C. Coggins ("Officer Coggins") noticed a vehicle matching the description of defendant's vehicle coming down the street towards the dead end. There appeared to be a driver and a passenger inside. The vehicle stopped in a driveway, the interior light came on, and the passenger side door opened and then shut. Then the vehicle pulled out of the driveway and toward Officer Young and Officer Coggins, at which time the officers stopped the vehicle. The officers asked defendant to exit the vehicle. At this time, they smelled the odor of marijuana coming from the vehicle.
Officer Coggins went to the driveway where defendant's vehicle had stopped and located a Scotchguard can that had a false bottom. Officer Young testified that the can had not been there when they used the driveway previously to turn their own vehicle around, and no other cars used the driveway between the time they used it and the time when defendant used it. Officer Coggins twisted off the bottom of the can and found six small bags of marijuana. Defendant was arrested on the outstanding warrant and searched. He was found to have three hundred and ninety-four dollars in his possession, including sixteen twenty-dollar bills. Defendant gave the officers permission to search his vehicle. Inside the vehicle, Officer Young found a burned marijuana cigarette in the ashtray, four cigars, and fabric softener sheets. As a result of the collection of this evidence, both defendant and his passenger were charged.
Defendant was indicted on charges of possession with intent to manufacture, sell and deliver marijuana in violation of N.C.G.S. § 90-95(a)(1) and possession of drug paraphernalia in violation of N.C.G.S. § 90-113.22. He was found guilty by a jury of both charges. His prior record level on the possession with intent to manufacture, sell and deliver marijuana charge was determined to be IV, and his prior record level on the possession of drug paraphernalia charge was found to be III. For the conviction of possession with intent to manufacture, sell and deliver marijuana, defendant was sentenced within the presumptive range to a minimum term of 8 months and a maximum term of 10 months imprisonment. On the conviction of possession of drug paraphernalia, defendant was ordered to be imprisoned for 120 days. This sentence was to run consecutively to the sentence imposed on the possession with intent to manufacture, sell and deliver marijuana conviction. Defendant gave notice of appeal in open court.
Defendant's first assignment of error relates to the trial court's comments during the cross-examination of Officer Young. The relevant portion of the cross-examination is set forth below:
Q. . . . Now, the cigars, did you do any fingerprint testing on the packaging of those?
A. No, I did not.
Q. Did you submit those cigars to any fingerprint testing?
A. No, I did not.
Q. What about DNA testing?
A. No.
Q. So no one did any fingerprint testing or DNA testing on those cigars?
A. That's correct.
THE COURT: Did you do any kind of radioactivity isotope test done?
A. No, sir.
THE COURT: You didn't?
A. No, sir.
THE COURT: All right. Go ahead.
Defendant challenges the trial court's remarks under N.C.G.S. § 15A-1222 which states a "judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (2009).
The trial judge may, however, properly question a witness in order to clarify and promote a proper understanding of his or her testimony. Such questioning of witnesses amounts to prejudicial error only when a jury could reasonably infer that by their tenor, frequency, or persistence the questions and comments intimated an opinion as to the witnesses' credibility, the defendant's guilt, or as to a factual controversy to be resolved by the jury.
State v. Redfern, 98 N.C. App. 129, 131, 389 S.E.2d 846, 847 (1990) (citation omitted). "Nevertheless, when remarks from the bench tend to belittle and humiliate counsel, defendant's case can be seriously prejudiced in the eyes of the jury." State v. Frazier, 278 N.C. 458, 462, 180 S.E.2d 128, 131 (1971). "While not every improper remark will require a new trial, a new trial may be awarded if the remarks go to the heart of the case." State v. Sidbury, 64 N.C. App. 177, 179, 306 S.E.2d 844, 845 (1983).
"Whenever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N.C.G.S. §§ 15A-1222 and 15A-1232, the error is preserved for review without objection due to the mandatory nature of these statutory prohibitions." State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005), cert. denied, 549 U.S. 855, 166 L. E. 2d 96 (2006). Defendant argues that "[t]he mocking nature of the [trial court's] remark discredited [his] defense." We disagree.
The ownership of the cigars does not go to "the heart of the case," and thus, we do not believe the trial court's statement with regard to this evidence was prejudicial. Sidbury, 64 N.C. App. at 179, 306 S.E.2d at 845. Defendant was indicted for possession of marijuana and plastic bags to store the marijuana. He was not charged with possession of the cigars, nor were the cigars alleged to be drug paraphernalia. The theory of defendant's defense was that the drugs belonged to the passenger, which is why defense counsel pursued this line of questioning. The passenger had already testified that the cigars belonged to him. Therefore, the questions directed to Officer Young concerning DNA evidence or fingerprinting, conducted to show, ostensibly, that the cigars belonged to the passenger, were not material to the defendant's guilt or innocence. Accordingly, the trial court's comments, although arguably improper, were not prejudicial and we overrule this assignment of error.
Defendant's second assignment of error alleges a lack of foundation for Officer Young's testimony that dryer sheets are often used to hide the scent of drugs. Officer Young testified that he had basic law enforcement training and training on narcotics investigations. He then testified that dryer sheets were found in defendant's car and that dryer sheets are "used to mask the scent of marijuana or other types of drugs." This Court has allowed officers to testify as lay witnesses in drug transaction cases. See State v. Hart, 66 N.C. App. 702, 703, 311 S.E.2d 630, 631 (1984) (declining to find error when a police officer testified, although not qualified as an expert, that certain chemicals found in defendant's home could be used in the heroin trade). For their testimony to be admissible, it must be "relevant and based on personal knowledge." State v. Hargrave, ___ N.C. App. ___, ___, 680 S.E.2d 254, 258 (2009). Here, the officer's testimony was based on his personal knowledge gained from his law enforcement and narcotics training, and it was additionally relevant to the charged offenses as it made it more likely that defendant was guilty of possessing drugs. Id. at ___, 680 S.E.2d at 258 (finding that an officer was allowed to testify that "the cocaine was packaged as if for sale, the total amount of cash on defendant, and the number of twenty-dollar bills on defendant were indicative of drug sales" when it was established that the officers had personal knowledge of this fact based on their law enforcement and narcotics training and the testimony was relevant to the charge).
Even if the admission of such testimony was erroneous, we fail to see how it could have been prejudicial. An error is only prejudicial if "there is a reasonable possibility that the evidence complained of might have contributed to the conviction." State v. Givens, 95 N.C. App. 72, 79, 381 S.E.2d 869, 873 (1989) (internal quotation marks omitted). In the present case, Officer Young smelled the odor of marijuana emanating from the car, and Officer Coggins found drugs in a can that had once been inside the car. Thus, the presence of the drugs was shown by other evidence, making the challenged testimony unnecessary to prove the possession with intent to manufacture, sell and deliver marijuana charge. In addition, the dryer sheets are not listed in the indictment as drug paraphernalia, and thus were not essential to proving the possession of drug paraphernalia charge. We, therefore, overrule this assignment of error.
Defendant's final assignment of error asserts that the trial court erred in refusing to permit cross-examination concerning bias on the part of Officer Young and Officer Coggins. "On appeal, the trial court's decision to limit cross-examination is reviewed for abuse of discretion, and rulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced." State v. Jacobs, 172 N.C. App. 220, 228, 616 S.E.2d 306, 312 (2005) (internal quotation marks omitted). However, "[c]ross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party." State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901, 903 (1954). But, if counsel is able to elicit the testimony that was previously forbidden, there is no error. State v. Crabb, 55 N.C. App. 172, 179, 284 S.E.2d 690, 695 (1981) (no error when witness later answered the question defendant was prevented from asking). Moreover, "in order for the propriety of the exclusion to be reviewed on appeal, the record must sufficiently show what the purport of the evidence would have been." State v. Letterlough, 53 N.C. App. 693, 698, 281 S.E.2d 749, 753 (1981) (internal quotation marks omitted), cert. denied, 297 S.E.2d. 402 (1982).
The line of questioning during the cross-examination of both officers was intended to show a predisposition on the part of the officers to assume "that money found on arrestees was evidence of drug sales." With regard to Officer Young, defense counsel asked:
Q. Detective Young, do you have any money in your pocket?
A. I do not have any money.
Q. Okay. Have you ever arrested someone before that had money in their pockets?
A. Yes, I have.
Q. Have you ever arrested someone before and charged them with a criminal offense that had money in their pocket that was not drug related?
A. No, I have not.
After this question, defense counsel proceeded to ask, "So in your time as a law enforcement officer you never arrested anybody that had money in their pocket that was not drug related?" The officer answered, "If they had money in their pocket." Then, the trial court sustained an apparent objection. With regard to Officer Young's testimony we conclude that there was no error on the part of the trial court by limiting the cross-examination because the officer had already answered the same question, although phrased differently, and this Court has been given no forecast as to what else the officer may have testified had the cross-examination been allowed to continue. Crabb, 55 N.C. App. at 179, 284 S.E.2d at 695; Letterlough, 53 N.C. App. at 698, 281 S.E.2d at 753.
With regard to Officer Coggins, defense counsel asked, "Officer Coggins, do you have any money in your pocket?" In response, he stated, "I'm sure I have some." Then the trial court stated, "That's irrelevant and immaterial." As with Officer Young, we also find no error in the limitation of this testimony; Officer Coggins answered the question asked and defendant has not presented a forecast of what other testimony could have been elicited. Crabb, 55 N.C. App. at 179, 284 S.E.2d at 695; Letterlough, 53 N.C. App. at 698, 281 S.E.2d at 753. Therefore, we overrule this assignment of error.
No error.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).