State v. Campbell
| Decision Date | 20 September 2022 |
| Docket Number | COA21-143 |
| Parties | STATE of North Carolina v. James Edward CAMPBELL, III, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew Baptiste Holloway, for the State.
William D. Spence, Kinston, for defendant-appellant.
¶ 1 Expert testimony must comply with the requirements of North Carolina Rule of Evidence 702. Here, where an expert testified that he performed a chemical analysis and further testified as to the result of the chemical analysis, the trial court did not plainly err.
¶ 2 To carry its burden in proving possession of a controlled substance, the State may prove actual or constructive possession. Where, as here, there is overwhelming evidence of actual possession of a controlled substance, a trial court's error in instructing the jury on constructive possession does not amount to plain error.
¶ 3 Unless a statutory exception applies, N.C.G.S. § 90-96 requires trial courts to conditionally discharge defendants who are convicted of eligible drug offenses and who have no previous convictions for drug offenses. Previous convictions do not include joined convictions, and Defendant was entitled to conditional discharge under N.C.G.S. § 90-96 for his possession of cocaine conviction because he had no disqualifying previous convictions. We remand to the trial court for resentencing.
¶ 4 In January 2018, a confidential informant told Detective Jordan Buehler of the Charlotte-Mecklenburg Police Department that Defendant, James Edward Campbell, III, was selling cocaine in the Charlotte area. In response, Buehler opened an investigation. As a part of the investigation, the confidential informant provided Buehler's phone number to Defendant. Thereafter, Defendant initiated a text-message conversation with Buehler wherein they coordinated a time and place for Buehler to purchase 31.5 grams of cocaine from Defendant.
¶ 5 On 7 February 2018, the day of the transaction, Buehler arrived at the agreed-upon location and texted Defendant "I'm here." Defendant walked to Buehler's vehicle, entered the vehicle, produced a small amount of what appeared to be cocaine, and confirmed that Buehler brought the correct amount of money. Defendant then exited Buehler's vehicle. Thereafter, Defendant returned to Buehler's vehicle, produced "a clear bag with [a] white powder substance inside of it" ("State's Exhibit 5"), and took Buehler's money. Equipment inside Buehler's vehicle recorded audio and video of the transaction between Defendant and Buehler. This recording was played for the jury at trial. In addition, other surveillance officers testified to observing the transaction from a distance.
¶ 6 On 31 May 2018, Defendant was arrested and subsequently indicted on charges of trafficking cocaine by possession, trafficking cocaine by transportation, and trafficking cocaine by sale. At Defendant's trial, the State's expert, Mark Jackson, a forensic chemist at the Charlotte-Mecklenburg Police Department Forensic Crime Lab, testified to examining State's Exhibit 5. Jackson testified at trial that:
[JACKSON:] In this case after I weighed [State's Exhibit 5,] I performed a powder test that also requires a gas chromatography
mass spectrometry or GCMS for short.
¶ 7 At the close of the State's evidence, the trial court conducted a charge conference. At the charge conference, the trial judge began to discuss proposed jury instructions and stated, In response, both counsel for the State and counsel for Defendant said, "Yes, Your Honor." Thereafter, the trial judge responded, The trial court instructed on actual and constructive possession.
¶ 8 Following Defendant's trial, the jury found Defendant guilty of the lesser included charge of possession of cocaine and the lesser included charge of sale of cocaine. Thereafter, the trial court sentenced Defendant to an active term of imprisonment within the presumptive range of 13-24 months on the conviction for sale of cocaine. The trial court also imposed a consecutive sentence of 6-17 months on the conviction for possession of cocaine, which was suspended for 30 months of supervised probation. Defendant timely appeals.
¶ 9 Defendant argues that (A) the trial court committed plain error by allowing Jackson to state that, in his opinion, State's Exhibit 5 was cocaine; (B) the trial court committed plain error by instructing the jury on the theory of constructive possession because the theory was not supported by the evidence; and (C) the trial court erred by imposing a supervised probation sentence on his conviction of possession of cocaine rather than a conditional discharge under N.C.G.S. § 90-96.
¶ 10 Defendant argues that the trial court committed plain error by allowing Jackson to state that, in his opinion, State's Exhibit 5 was cocaine.1 Specifically, Defendant argues that Jackson did not testify to performing a "chemical analysis" and that Jackson's opinion testimony did not satisfy the three-prong reliability test under Rule 702(a) of our Rules of Evidence.
¶ 11 Since our review is limited to plain error, we ask whether a "fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326 (2012). "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.’ " Id. (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375 (1983) ). "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.’ " Id. (quoting Odom , 307 N.C. at 660, 300 S.E.2d 375 ). Here, Defendant has not demonstrated plain error in light of our decisions in State v. Piland , 263 N.C. App. 323, 339-40, 822 S.E.2d 876 (2018), and State v. Sasek , 271 N.C. App. 568, 574-75, 844 S.E.2d 328, disc. rev. denied , 376 N.C. 543, 851 S.E.2d 49 (2020).
¶ 12 "[A] criminal defendant fail[s] to establish plain error" in admitting expert opinion testimony as to the identity of a controlled substance "when an expert testifie[s] that a chemical analysis was performed, but the evidence ‘lack[ed] any discussion of that analysis.’ " Sasek , 271 N.C. App. at 574, 844 S.E.2d 328 (quoting Piland , 263 N.C. App. at 339, 822 S.E.2d 876 ). In Piland , the defendant was discovered in possession of a pill bottle containing a large quantity of white tablets. Piland , 263 N.C. App. at 326, 822 S.E.2d 876. The State's expert testified that she "performed a chemical analysis" and, based on the results, determined that the pills she examined were hydrocodone; however, her testimony "lack[ed] any discussion of that analysis." Id. at 338-39, 822 S.E.2d 876. The defendant in Piland argued that the trial court committed plain error in admitting the expert testimony under Rule 702(a) because the expert "did not identify the test she performed, describe how she performed it, or explain[ ] why she considered it reliable[,]" but simply said she "performed a chemical analysis." Id. at 339, 822 S.E.2d 876.
¶ 13 While we held in Piland that "it was error for the trial court not to properly exercise its gatekeeping function of requiring the expert to testify to the methodology of her chemical analysis[,]" we made clear that "the error d[id] not amount to plain error because the expert testified that she performed a ‘chemical analysis’ and [testified] as to the results of that chemical analysis."2 Id. at 339-40, 822 S.E.2d 876 ; see Sasek , 271 N.C. App. at 574, 844 S.E.2d 328.
¶ 14 We reach the same conclusion here. Even assuming that the trial court erred in admitting Jackson's testimony under Rule 702(a), the error did not amount to plain error. Although Jackson did not explicitly use the words "chemical analysis," he explicitly testified to using a "gas chromatography mass
spectrometry test or GCMS for short[.]" We have previously treated an expert's testimony to "perform[ing] a ‘gas chromatography
mass spectrometer ’ test" to be testimony of performing a chemical analysis. See
Sasek , 271 N.C. App. at 570, 574-75, 844 S.E.2d 328. Therefore, even assuming, arguendo, that it was error for the trial court to allow Jackson to testify that, in his opinion, the substance he tested was cocaine, the error did not amount to plain error because Jackson testified that he performed a chemical analysis and testified to the results of that chemical analysis. Sasek , 271 N.C. App. 568, 844 S.E.2d...
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