State v. Hargrave

• Decision Date: 04 August 2009
• Docket Number: No. COA09-85.,COA09-85.
• Citation: 680 S.E.2d 254
• Parties: STATE of North Carolina v. Kevin Maurice HARGRAVE.
• Court: North Carolina Court of Appeals

680 S.E.2d 254

STATE of North Carolina v. Kevin Maurice HARGRAVE.

No. COA09-85.

Court of Appeals of North Carolina.

August 4, 2009.

Appeal by defendant from judgment entered 1 May 2008 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 10 June 2009.

Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State.

Hartsell & Williams, P.A., by Christy E. Wilhelm, Concord, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Kevin Maurice Hargrave ("defendant") appeals from judgment entered in accordance with jury verdicts finding him guilty of: (1) "giving a false name to a law enforcement officer"; (2) "selling cocaine"; (3) "driving a motor vehicle on a public highway while license has been suspended or revoked"; (4) "delivering cocaine"; (5) "possession of cocaine with the intent to sell or deliver"; and (6) having attained habitual felon status. With regards to his prior record level, defendant stipulated that he was "a level four for felony sentencing" and "a level three for misdemeanor sentencing[.]" The trial court arrested judgment on the conviction of delivering cocaine, consolidated all of the remaining convictions into one Class C felony for sentencing purposes, and sentenced defendant to an active term of 120 to 153 months imprisonment, which was in the presumptive range for a defendant with a prior record level of IV. N.C. Gen.Stat. § 15A-1340.17(c) (2007). After careful review, we find no error.

I. Background

The State's evidence tended to show that either shortly before midnight on 30 November 2007 or shortly after midnight on 1 December 2007, Peter Paul Bruno ("Mr.Bruno") contacted defendant to buy cocaine. The two men met at approximately 12:50 a.m. in the parking lot of Bethpage Grocery, which was closed. Defendant's and Mr. Bruno's cars were the only vehicles in the lot, and the two men sat and talked prior to completing their transaction. Mr. Bruno gave defendant fifty dollars in exchange for at least two crack rocks. Deputy D.L. Logan ("Deputy Logan") spotted the two cars parked side by side and became suspicious when he saw Mr. Bruno either exit from or lean into the passenger's side of defendant's car. Upon further investigation, Deputy Logan spotted cocaine in Mr. Bruno's car. At this point, Deputy Logan called for back up, which arrived shortly thereafter and included Sergeant M.T. Grier ("Sergeant Grier") and Officer Brent Rowland ("Officer Rowland"). Mr. Bruno admitted to Deputy Logan that he was there to buy cocaine from defendant and that he had paid defendant with two twenty-dollar bills and two five-dollar bills in exchange for the cocaine.

Deputy Logan's attention then turned to defendant, who appeared nervous and whose "hands [were] shaking." Defendant then lied to Deputy Logan about his name because his license was revoked. Deputy Logan found $551 on defendant, which was all neatly bundled except for two twenty-dollar bills and two five-dollar bills. This corroborated Mr. Bruno's statement that he had just completed a drug sale with defendant. Shortly thereafter, Officer Rowland spotted a baggie containing smaller baggies of cocaine on the ground outside the front driver's side door of defendant's car. Defendant was then arrested. A subsequent chemical analysis performed by Misty Icard ("Ms.Icard") of the SBI determined that the substances found near defendant's car and those found in Mr. Bruno's car were cocaine base.

Other facts necessary to the understanding of this case are set out in the opinion below.

II. Analysis

A. Opinion Testimony

Officer Witnesses

First, defendant alleges that the trial court erred by allowing officers Logan, Grier, and Rowland to give lay opinion testimony that the cocaine was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on defendant were indicative of drug sales. Specifically, defendant contends that before the officers could give this opinion testimony, they needed to be presented and qualified as experts. We disagree.

As an initial matter, we note that defendant technically waived his right to appeal this issue because he failed to object to the testimony of Sergeant Grier and Officer Rowland on this ground. "Where evidence is admitted over objection, and the same evidence ... is later admitted without objection, the benefit of the objection is lost." State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984); see also State v. Jolly, 332 N.C. 351, 361-62, 420 S.E.2d 661, 667-68 (1992); State v. Oxendine, 224 N.C. 825, 828, 32 S.E.2d 648, 649 (1944). Here, all three officers testified 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 all indicative of drug sales. While defendant objected to Deputy Logan's testimony because he was not an expert, he did not object to Officer Rowland's testimony and only objected to Sergeant Grier's testimony on the ground of relevance. Therefore, technically, this issue is not properly before us.

Nevertheless, even if we assume, arguendo, that defendant preserved this issue for our review, as discussed infra, we find that the trial court did not err in admitting this testimony.

Defendant cites State v. Fletcher and State v. Chisholm in support of his contention that in order for an officer to provide opinion testimony of the type in question, he or she must first be formally qualified as an expert. State v. Fletcher, 92 N.C.App. 50, 56-57, 373 S.E.2d 681, 685-86 (1988); State v. Chisholm, 90 N.C.App. 526, 528-29, 369 S.E.2d 375, 377 (1988). While these cases provide that an officer can give expert opinion testimony as to whether a substance was marijuana and whether marijuana was packaged for private use, they do not hold that it is always necessary for officers to be formally qualified as experts in order for such testimony to be admissible.

Furthermore, in State v. Bunch, 104 N.C.App. 106, 408 S.E.2d 191 (1991), this Court held that lay witnesses can present opinion testimony if said testimony is relevant and based on personal knowledge:

Under N.C. Gen.Stat. § 8C-1 Rule 701 (1988), opinion testimony from a lay witness is permitted when it is "rationally based on the perception of the witness" and is helpful to the jury. As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible.

Id. at 110, 408 S.E.2d at 194 (quoting N.C. Gen.Stat. § 8C-1 Rule 701 (1988)). This Court applied this principle to the law enforcement testimony regarding drug transactions in Bunch and in State v. Hart, 66 N.C.App. 702, 311 S.E.2d 630 (1984). See Bunch, 104 N.C.App. at 110, 408 S.E.2d at 194 (holding that an officer can give opinion testimony as a lay witness as to the common practice in drug sales of having one person hold the money and another hold the drugs); Hart, 66 N.C.App. at 703, 311 S.E.2d at 631 (holding that an officer can give opinion testimony as a lay witness that chemicals found in the defendant's home were often used in the heroin trade).

Here, the testimony of each of the officers in the instant case was based on personal experience and was helpful to the jury in deciding whether the cocaine was for sale. At the time of trial, Deputy Logan had been employed for nearly four years with the sheriff's office, had completed courses in drug investigation, had passed basic law enforcement training, and had worked with the narcotics team. Sergeant Grier had nearly twenty-one years of law enforcement experience, had supervised the patrol division for the previous six years, had worked as a vice narcotics officer for nine years, and had participated in undercover narcotics operations. Officer Rowland had six-and-a-half years of training as an officer, had completed basic law enforcement training, had completed approximately 1500 hours of in-service training, and had previously worked with vice narcotics on cases. As in Hart and Bunch, the officers' respective testimony was based on personal knowledge of drug practices. The testimony was also relevant because the fact that defendant had cocaine packaged for sale increases the likelihood that he was selling cocaine. Accordingly, we hold that the trial court did not err in admitting this testimony.

Lab Technician's Expert Testimony

Next, defendant asserts that the trial court erred by admitting testimony from the State's lab technician, Ms. Icard, who testified that the substances found by law enforcement contained cocaine. Specifically, defendant appears to contend that Ms. Icard was unqualified to provide expert testimony as to the chemical analysis because she does not have an advanced degree. We disagree.

When an expert witness is proffered, the trial court must conduct a three-step inquiry: "(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citations omitted). Here, defendant only questions whether Ms. Icard was qualified to be an expert and appears to assert that she was not because she did not possess an advanced degree. Notably, defendant does not cite a single case to support his argument that an advanced degree is necessary to provide this type of expert testimony.

In holding that the trial court did not abuse its discretion in admitting testimony from an SBI agent, this Court declared in Jenkins:

[T]he general rule is that the determination of whether a witness qualifies as an expert is a factual one which is ordinarily within the exclusive province of the trial judge whose finding will not be disturbed unless there is no competent evidence to support it or an abuse of discretion. One is qualified as an expert if, through...