Opinion
No. COA11–1599.
2012-08-7
STATE of North Carolina v. Anthony Jermaine CALDWELL, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State. Gilda C. Rodriguez for defendant-appellant.
On writ of certiorari to review the judgment entered 20 April 2010 by Judge Christopher M. Collier in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State. Gilda C. Rodriguez for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Anthony Jermaine Caldwell (“defendant”) appeals from judgment entered upon his convictions for possession of a firearm by a felon, misdemeanor breaking or entering, carrying a concealed weapon, and having attained the status of an habitual felon. After careful review, we find no error.
On 29 May 2008, Officer David Lafranque of the Charlotte–Mecklenburg Police Department was assigned to a street crimes task force when he came across defendant while on patrol. Officer Lafranque testified that he pulled his patrol car into a parking lot and observed defendant and another man starting to walk in the opposite direction. Officer Lafranque parked his car and began to follow them. He testified that when defendant saw him, he “started holding the right side of his pocket.” Officer Lafranque attempted to talk with defendant, but defendant turned and ran away. Officer Lafranque gave chase, identified himself as a policeman, and ordered defendant to stop. Officer Lafranque stated that he kept a close eye on defendant's hands, and the entire time he was running, defendant was holding his right pocket.
Defendant ran towards a building and forced his way inside one of the apartments. Officer Lafranque knocked on the door and Kenyatta Bell opened the door. Bell told Officer Lafranque that defendant, whom she did not know, had run into her apartment. Bell testified at trial that defendant was holding a gun and ran into her kitchen. Officer Lafranque entered the apartment and started calling for defendant from the doorway. Defendant soon came down the stairs of the two-story apartment and Officer Lafranque handcuffed him. After Officer Lafranque arrested defendant, he asked Bell for permission to search the apartment. Bell consented. Officer Lafranque asked Bell where defendant ran to when he entered the apartment, and she told him defendant ran into the kitchen. Upon searching the kitchen, Officer Lafranque found a Colt .45 revolver on a top cabinet shelf.
On 20 April 2010, defendant was convicted by a jury of misdemeanor breaking or entering, carrying a concealed weapon, and possession of a firearm by a felon. Defendant subsequently pled guilty to having attained habitual felon status. The trial court consolidated the convictions for judgment and sentenced defendant to a term of 93 to 121 months imprisonment. On 6 May 2011, this Court granted defendant's petition for writ of certiorari.
Defendant argues that the trial court committed plain error when it allowed Abby Moeykens, a DNA analyst for the Charlotte–Mecklenburg Police Department, to testify that a DNA profile obtained from the handgrip of the firearm found at Bell's residence “was consistent with a mixture of at least two individuals” and defendant “could not be excluded as a possible contributor to that mixture.” Defendant contends that Moeykens' testimony regarding the lab report and its conclusions violated his constitutional right to confront the witnesses against him because her testimony “did not reveal any personal knowledge of the underlying data and only served to summarize [another laboratory technician's] report.”
We initially note that defendant did not object to Moeykens' testimony at trial. Therefore, we review defendant's arguments under plain error. See State v. Lemons, 352 N.C. 87, 95, 530 S.E .2d 542, 547 (2000) (“defendant's failure to object at trial and properly preserve the constitutional issue for appeal requires us to review this potential constitutional error under the plain error standard of review, not the constitutional error standard ....”), cert. denied, 531 U.S. 1091, 148 L.E.2d 698 (2001). Our Supreme Court recently stated:
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]”
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations omitted).
Here, even assuming arguendo that the trial court erred by admitting Moeykens' testimony, we conclude that the alleged error does not constitute plain error. The evidence demonstrates that: (1) Officer Lafranque observed defendant entering Bell's home with something concealed in his right pocket; (2) Bell testified that after defendant entered the apartment, he ran into the kitchen with a gun and tried to hide it in a cabinet; and (3) Officer Lafranque recovered a gun from a kitchen cabinet. The evidence presented, absent the testimony challenged by defendant on appeal, was prima facie evidence of defendant's possession of a firearm. Furthermore, Moeykens did not testify that defendant's DNA sample was a definitive match with the DNA material obtained from the recovered firearm. Instead, Moeykens merely testified that defendant “could not be excluded as a possible contributor to that mixture.” We conclude that, under these facts, defendant has failed to sustain his burden of showing that absent Moeykens' testimony the jury probably would have returned a different verdict. Thus, defendant “cannot show the prejudicial effect necessary to establish that the error was a fundamental error” or that the error affected “the fairness, integrity, or public reputation of judicial proceedings.” Id. at ––––, 723 S.E.2d at 335. Accordingly, we find no error.
No error. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).