Docstoc

Brunson_ Larry Darnell

Document Sample
Brunson_ Larry Darnell Powered By Docstoc
					NO.COA09-976                            JUDICIAL DISTRICT 5

                NORTH CAROLINA COURT OF APPEALS
               *********************************




STATE OF NORTH CAROLINA      )
                             )
vs.                          )        FROM NEW HANOVER COUNTY
                             )        FILE NO. 08 CRS 50792
LARRY DARNELL BRUNSON        )



         **********************************************
                   DEFENDANT-APPELLANT‟S BRIEF
         **********************************************
                               -i-

                              INDEX

Table of Cases and Authorities . . . . . . . . . . . . . .   iv

Questions Presented . . . . . . . . . . . . . . . . . . .    1

Statement of the Case . . . . . . . . . . . . . . . . . .    2

Statement of the Grounds for Appellate Review . . . . . .    3

Statement of the Facts . . . . . . . . . . . . . . . . . .   3

Arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE
PILLS SEIZED DURING THE WARRANTLESS SEARCH OF
DEFENDANT FOR THE REASON THAT THE OFFICERS
LACKED REASONABLE SUSPICION TO DETAIN AND
QUESTION DEFENDANT. . . . . . . . . . . . . . . . . . . . . 6

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE
PILLS SEIZED DURING THE WARRANTLESS SEARCH OF
DEFENDANT FOR THE REASON THAT THE OFFICERS
DETAINED DEFENDANT FOR AN UNREASONABLE PERIOD
OF TIME IN VIOLATION OF THE 4th AMENDMENT TO
THE U.S. CONSTITUTION, ARTICLE I, SEC. 20 OF
THE NORTH CAROLINA CONSTITUTION, N.C.G.S.
15A-1113(b) AND 15A-974(2). . . . . . . . . . . . . . . . . 12

III. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE
PILLS SEIZED DURING THE WARRANTLESS SEARCH OF
DEFENDANT FOR THE REASON THAT THE OFFICERS HAD
NO PROBABLE CAUSE OR SEARCH WARRANT AUTHORIZING
THEM TO OPEN AND SEARCH THE UNMARKED PILL CONTAINER . . . . 14

IV. THE TRIAL COURT ERRED AND COMMITTED PLAIN
ERROR IN ALLOWING THE STATE’S EXPERT CHEMIST TO
STATE HER OPINION, WITHOUT TESTING, THAT THE 40
PILLS CONSISTED OF 38.2 GRAMS OF A PHARMACEUTICAL
PREPARATION CONTAINING HYDROCONDONE. . . . . . . . . . . .   20
                              -ii-

V. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION TO DISMISS THE TRAFFICKING
IN OPIUM OR HEROIN BY POSSESSING CHARGE AT
THE CLOSE OF ALL THE EVIDENCE ON THE GROUNDS
THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH
EVERY ELEMENT OF THIS CRIME AND THE DEFENDANT’S
IDENTITY AS THE PERPETRATOR. . . . . . . . . . . . . . . . . 27

VI. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION TO DISMISS THE TRAFFICKING
IN OPIUM OR HEROIN BY TRANSPORTING CHARGE AT
THE CLOSE OF ALL THE EVIDENCE ON THE GROUNDS
THAT ALL THE EVIDENCE WAS INSUFFICIENT TO
ESTABLISH EVERY ELEMENT OF THIS CRIME AND
THE DEFENDANT’S IDENTITY AS THE PERPETRATOR . . . . . . . . . 32
                                -iii-



CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .   33

CONTENTS OF APPENDIX . . . . . . . . . . . . . . . . . . .   34

APPENDIX A (SEARCH VOIR DIRE) . . . . . . . . . . . . . App. 1

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . .   35

                     **********************
                                -iv-

                   TABLE OF CASES AND AUTHORITIES

                                CASES

Commonwealth v. Dawson, 399 Mass. 465,
  504 N.E.2d 1056, 1057 (1987) . . . . . . . . . . . . . . . 32

Cook v. United States, 362 F.2d 548,
  at 549 (9th Cir. 1966) . . . . . . . . . . . . . . . . . . . 32

Cherry v. Harrell, 84 N.C.App 598, 605,
  353 S.E.2d 433, 438, disc rev denied,
  320 N.C. 167, 358 S.E.2d 49 (1987) . . . . . . . . . . . .     23

Florida v. Royer, 460 U.S. 491 at 500, 103 S.Ct 1319,
  75 L.Ed.2d 229 at 238 (1983) . . . . . . . . . . . . . . .     8

Howerton v. Arai Helmet, Ltd., 358 N.C. 440,
  597 S.E.2d 674 (2004) . . . . . . . . . . . . . . . . . . . 23

Minnesota v. Dickerson, 508 U.S. 366,
  113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) . . . . . . . . . .     17

State v. Anderson, 76 N.C.App. 434, 437,
  333 S.E.2d 762, 764 (1985) . . . . . . . . . . . . . . . . 30

State v. Barden, 356 N.C.316, 332,
  572 S.E.2d 108, 120-21 (2002). . . . . . . . . . . . . . .     6

State   v. Barnhill, 166 N.C.App. 228, 230,
  601   S.E.2d 215, 217, appeal dismissed
  and   disc. review denied, 359 N.C. 191,
  607   S.E.2d 646 (2004). . . . . . . . . . . . . . . . . . .   6

State v. Beveridge, 112 N.C. App. 688,
  436 S.E.2d 912 (1993), affirmed,
  336 N.C. 601, 444 S.E.2d 223 (1994) . . . . . . . . . . . . 10

State v. Broad, 296 N.C. 652, 252 S.E.2d 803 (1979) . . . . . 31

State v. Brooks, 337 N.C. 132, 140-41,
  446 S.E.2d 579, 585 (1994). . . . . . . . . . . . . . . . . 6
                               -v-

State v. Buchanan, 353 N.C. 332, 336,
  543 S.E.2d 823, 826 (2001) . . . . . . . . . . . . . .   . . 6

State v. Chadwick, 149 N.C.App. 200, 202,
 560 S.E.2d 207, 209. . . . . . . . . . . . . . . . . . . . . 6

State v. Conway, _____ N.C.App. _____, ____,
  669 S.E. 2d 40, 42 (2008) . . . . . . . . . . . . . . . . . 30

State v. Corriher, 184 N.C.App. 168, 170,
  645 S.E.2d 413, 415 (2007) . . . . . . . . . . . . . . . .   23

State v. Cummings, 346 N.C. 291, 314,
  488 S.E.2d 550, 563 (1997), cert. denied,
  522 U.S.1092, 139 L.Ed.2d 873 (1998). . . . . . . . . . . . 22

State v. Cunningham, 108 N.C.App. 185, 196,
  423 S.E.2d 802, 809 (1992) . . . . . . . . . . . . . . . . 30

State v. Curry, 171 N.C.App. 568, 574,
  615 S.E.2d 327,331 (2005) . . . . . . . . . . . . . . . . . 22

State v. Falana, 129 N.C.App. 813, 817,
  501 S.E.2d 358, 360, (1998), . . . . . . . . . . . . . . .   10

State v. Fisher, 141 N.C. App. 448,
  539 S.E.2d 677 (2000) . . . . . . . . . . . . . . . . . . . 9

State v. Freeman, 185 N.C.App. 408,
  648 S.E.2d 876, 881-82 (2007), appeal dismissed,
  362 N.C. 178, 657 S.E.2d 663, reconsideration
  denied, 362 N.C. 178, 657 S.E.2d 666 (2008). . . . . . . .   25

State v. Ghaffar, 93 N.C.App. 281, 288,
  377 S.E.2d 818, 823 (1989). . . . . . . . . . . . . . . . . 13

State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995) . . . . . 22

State v. Harris, 178 N.C.App. 723, 725
  632 S.E.2d 534, 536, affd., 361 N.C. 400,
  646 S.E.2d 526 (2007) . . . . . . . . . . . . . . . . . . . 28

State v. Horne, 158 N.C.App. 117, 120,
  580 S.E.2d 80, 83 (2003), disc. rev. denied,
  360 N.C. 294, 628 S.E.2d 9 (2006) . . . . . . . . . . . . . 6
                              -vi-


State v. Curtis Allen Jackson, N.C. Court of Appeals
  file number COA08-1517, filed August 18, 2009 . . . . . . . 10

State v. Jacobs, 162 N.C.App. 251, 256,
  590 S.E.2d 437, 442 (2004) . . . . . . . . . . . . . . . . 13

State v. Llamas-Hernandez, 189 N.C.App 640, 651,
  659 S.E.2d 79, 85, reversed for reasons stated
  in the dissenting opinion, 363 N.C. 8,
  673 S.E.2d 659 (2009)   . . . . . . . . . . . . . . . . . . 24

State v. Lynch, 327 N.C. 210,
  393 S.E. 2d 811 (1990).   . . . . . . . . . . . . . . . . . 28

State v. Malloy, 309 N.C. 176,
  305 S.E.2d 718 (1983). . . . . . . . . . . . . . . . . . .   28

State v. McClendon, 350 N.C. 630,
  636-37, 517 S.E.2d 128, 132 (1999) . . . . . . . . . . . .   8

State v. Miller, COA08-1530, filed July 7, 2009 . . . . . . . 8

State v. Myers,181 N.C.App. 310, 313,
  639 S.E.2d 1, 3 (2007) . . . . . . . . . . . . . . . . . .   29

State v. Myles, 188 N.C.App. 42, 47 654 S.E.2d 752,
  755; affirmed 362 N.C.344, 661 S.E.2d 732 (2008) . . . . .   8

State v. Parker, 183 N.C. App. 1, 7,
  644 S.E.2d 235, 240 (2007) . . . . . . . . . . . . . . . .   6

State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986) . . . . .   30

State v. Reynolds, 161 N.C.App. 144, 147,
  587 S.E.2d 456, 458-9 (2003) . . . . . . . . . . . . . . .   6
                                 -vii-

State v. Ridgeway, 137 N.C.App. 144,147,
  526 S.E.2d 682, 685 (2000) . . . . . . . . . . . . . . . .    20

State v. Rinck, 303 N.C. 551, 558-562
  280 S.E.2d 912, 919-21 (1981). . . . . . . . . . . . . . .    7

State v. Scott, 356 N.C. 591,
  573 S.E.2d 866, (2002) . . .    . . . . . . . . . . . . . .   28

State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980) . . . . .    28

State v. Thomas, 81 N.C.App. 200, 343 S.E.2d 588,
  review denied, 318 N.C. 287, 347 S.E.2d 469 (1986) . . . .    16

State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998) . . . . . 28

State v. Jimmy Waylon Ward, N.C. Court of Appeals
  file number COA08-978, filed August 18, 2009 . . . . . . .    26

State v. Washington, 141 N.C.App.354.
  540 S.E.2d 388 (2000) . . . . . . . . . . . . . . . . . .     20

State v. Watkins, 337 N.C. 437, 441,
  446 S.E.2d 67,70 (1994)   . . . . . . . . . . . . . . . . .       8

State v. White, 104 N.C.App. 165, 171,
  408 S.E.2d 871, 875 (1991) . . . . . . . . . . . . . . . .    23

State v. Williams, 154 N.C.App 176,
  571 S.E.2d 619 (2002). . . . . . . . . . . . . . . . . . .    27

State v. Wise, 117 N.C. App. 105,
  449 S.E.2d 774 (1994). . . . . . . . . . . . . . . . . . .    19
                             -viii-

                            STATUTES

N.C.G.S. 8C-1, Rule 702 . . . . . . . . . . . . . . . . . . 23

N.C.G.S. 15A-974(2) . . . . . . . . . . . . . . . . . . . . 13

N.C.G.S.15A-1113(b) . . . . . . . . . . . . . . . . . . . . 13

N.C.G.S. 15A-1227 . . . . . . . . . . . . . . . . . . . . . 27

N.C.G.S. 90-95(c), (a)(2)(2007) . . . . . . . . . . . . . . 24

N.C.G.S. 90-95(H)(4) . . . . . . . . . . . . . . . . . . .    29

North Carolina Constitution, Article I, Section 20 . . . .    7

United States Constitution, 4TH Amendment . . . . . . . . .   7



                            TREATISES


Rubin, Arrest, Search and Investigation in
  North Carolina, 3rd Ed.,(2003). . . . . . . . . . . . . .   18

Jessica Smith, North Carolina Crimes, 6th Ed.,
  2007, page 605 . . . . . . . . . . . . . . . . . . . . .    29
NO.COA09-976                                JUDICIAL DISTRICT 5

                NORTH CAROLINA COURT OF APPEALS
               *********************************


STATE OF NORTH CAROLINA         )
                                )
vs.                             )         FROM NEW HANOVER COUNTY
                                )         FILE NO. 08 CRS 50792
LARRY DARNELL BRUNSON           )


         **********************************************
                   DEFENDANT-APPELLANT‟S BRIEF
         **********************************************

                          QUESTIONS PRESENTED


     I. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING THE
WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE OFFICERS
LACKED REASONABLE SUSPICION TO DETAIN AND QUESTION DEFENDANT?

     II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION
TO SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING
THE WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE
OFFICERS DETAINED DEFENDANT FOR AN UNREASONABLE PERIOD OF TIME
IN VIOLATION OF THE 4th AMENDMENT TO THE U.S. CONSTITUTION,
ARTICLE I, SEC. 20 OF THE NORTH CAROLINA CONSTITUTION, N.C.G.S.
15A-1113(b) AND 15A-974(2)?

     III. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION
TO SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING
THE WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE
OFFICERS HAD NO PROBABLE CAUSE OR SEARCH WARRANT AUTHORIZING
THEM TO OPEN AND SEARCH THE UNMARKED PILL CONTAINER?

     IV. DID THE TRIAL COURT ERR AND COMMIT PLAIN ERROR IN
ALLOWING THE STATE’S EXPERT CHEMIST TO STATE HER OPINION,
WITHOUT TESTING, THAT THE 40 PILLS CONSISTED OF 38.2 GRAMS OF A
PHARMACEUTICAL PREPARATION CONTAINING HYDROCONDONE?
                               -2-

     V. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S
MOTION TO DISMISS THE TRAFFICKING IN OPIUM OR HEROIN BY
POSSESSING CHARGE AT THE CLOSE OF ALL THE EVIDENCE ON THE
GROUNDS THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH EVERY
ELEMENT OF THIS CRIME AND THE DEFENDANT’S IDENTITY AS THE
PERPETRATOR?

     VI. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S
MOTION TO DISMISS THE TRAFFICKING IN OPIUM OR HEROIN BY
TRANSPORTING CHARGE AT THE CLOSE OF ALL THE EVIDENCE ON THE
GROUNDS THAT ALL THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH
EVERY ELEMENT OF THIS CRIME AND THE DEFENDANT’S IDENTITY AS THE
PERPETRATOR?

                      STATEMENT OF THE CASE

    Defendant, Larry Darnell Brunson, was convicted of the

class C felonies of trafficking in opium or heroin by possession

and trafficking in opium or heroin by transporting and the

infraction of improper passing at the March 23, 2009, Criminal

Session of the Superior Court of New Hanover County, the

Honorable Jay D. Hockenbury, Superior Court Judge presiding.

    Judge Hockenbury consolidated all charges and sentenced

defendant to an active term of 225 months minimum and 279 months

maximum in the custody of the North Carolina Department of

Corrections.

    The defendant gave oral notice of appeal in open court on

March 27, 2009 (T-p-20). The Transcript Order was delivered to

the Court Reporter on April 3, 2009 (R-p-23). Trial transcript

was delivered on April 21, 2009 (R-p-24); notice of appeal

transcript was delivered on July 20, 2009 (T-p-24A). Order was
                                -3-

entered by the trial court extending time for service of the

Record on Appeal until June 25, 2009 (R-p-26). Proposed Record

on Appeal was served on the State of North Carolina on June 15,

2009 (R-p-34); settled by stipulation and agreement on July 14,

2009 (R-p-35); filed in the Court of Appeals on July 23, 2009;

and docketed on August 5, 2009.

          STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

     Pursuant to Appellate Rule 28 (b)(4), jurisdiction for this

appeal is granted from N.C.G.S. 15A-1444.   This Court has

jurisdiction over this appeal by virtue of N.C.G.S. 7A-27(b) and

N.C.G.S. 15A-1442.   Defendant gave oral notice of appeal in open

court (R-p-20).   This appeal is from a final Order.

                      STATEMENT OF THE FACTS

     On January 16, 2008, at about 4:29 p.m. Wilmington Police

officer, Peter Oehl, saw defendant on Dawson Street at the

intersection of 8th Street in the City of Wilmington.    Officer

Oehl observed defendant‟s gray vehicle improperly pass a stopped

vehicle and almost hit his unmarked police vehicle as he entered

the intersection. (T-p-42). Officer Oehl got in behind

defendant‟s vehicle, activated his blue light and siren, and

pulled defendant‟s vehicle over.   The officer walked over to

defendant‟s vehicle and observed defendant to be nervous.
                                 -4-

(T-p-44). Defendant told the officer he had a problem with his

brakes. (T-p-45).    Officer Oehl became suspicious that defendant

was involved in some other “type of suspicious activity.” Office

Oehl testified that the other officers arrived “just as I was

pulling—asking him to step out of the vehicle.” (T-p-46).

       When outside his car, defendant reached into the right side

pocket of his jacket.    Officer Oehl cautioned defendant not to

put his hands in his pocket while he was talking to him. (T-p-

46).    Officer Oehl then asked defendant if he could search his

vehicle and him. (T-p-47). Defendant said he could search his

vehicle but not him.    Officer Oehl said that was fine but he was

going to “pat him down.” Officer Oehl turned defendant around

and had him raise his hands up, and as he began the pat down,

defendant took his right hand and went for his right jacket

pocket. (T-p-48, 89). “And that‟s when Officer O‟Donnell grabed

his arm and Officer Innella went into this pocket to see why he

kept trying to reach in there.” (T-p-90, lines 22-24).    When

Officer O‟Donnell grabbed and elevated defendant‟s arms he

thereby prevented him from going to his right pocket.

(T-p-116,7). “Officer Innella pulled out three items.    He pulled

out a cell phone, a cell phone charger, and a pill bottle, brown

in color, that had no label on it, with what appeared to be some

type of white pills.” (T-p-91, line 16-22). Officers Innella and
                                -5-

Oehl opened the pill bottle and saw the pills to be white in

color with “M360” stamped on them. (T-p-92, 130).   Officer Oehl

counted 40 pills but did not know what kind of pills they were.

Officer Oehl called New Hanover Hospital Pharmacy and found the

pills to be hydrocondone, an opium derivative. (T-p-99).

Officer Oehl charged defendant with trafficking in opiates by

possession and by transportation as well as improper passing.

(T-p-99,100).

    SBI drug chemist, Brittany Dewell, testified that she

weighed the 40 pills, identified the tablet markings on them,

but performed no chemical analysis on the tablets. (T-p-142).

Ms. Dewell used a Micromedics database of pharmaceutical

preparations to identify tablets according to their markings,

color, and shape. (T-p-143).   Ms. Dewell testified that as a

result of her weighing and comparing the tablets with the

database, the 40 tablets were 38.2 grams of a pharmaceutical

preparation known as hydrocondone, which is a Schedule III

substance, an opium derivative. (T-p-145).

    Defendant offered no evidence.

    The jury returned verdicts of guilty on all counts.
                                 -6-

                              ARGUMENTS

     I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING THE
WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE OFFICERS
LACKED REASONABLE SUSPICION TO DETAIN AND QUESTION DEFENDANT.

    ASSIGNMENT OF ERROR NO. 6, R-p-29

    EXCEPTION NO. 6, T-p-86

                        STANDARD OF REVIEW

     The trial court’s findings of fact regarding a motion to
suppress are conclusive and binding on appeal if supported by
competent evidence, even if the evidence is conflicting. This
Court determines if the trial court’s findings of fact support
its conclusions of law. State v. Horne, 158 N.C.App. 117, 120,
580 S.E.2d 80, 83 (2003), disc. rev. denied, 360 N.C. 294, 628
S.E.2d 9 (2006); State v. Buchanan, 353 N.C. 332, 336, 543
S.E.2d 823, 826 (2001); State v. Brooks, 337 N.C. 132, 140-41,
446 S.E.2d 579, 585 (1994). However, the trial court’s
conclusions of law on a motion to suppress are reviewable de
novo, and must support the order denying the motion. State v.
Barnhill, 166 N.C.App. 228, 230, 601 S.E.2d 215, 217, appeal
dismissed and disc. review denied, 359 N.C. 191, 607 S.E.2d 646
(2004); State v. Chadwick, 149 N.C.App. 200, 202, 560 S.E.2d
207, 209. Conclusions of law “must be legally correct,
reflecting a correct application of applicable legal principles
to the facts found.” State v. Barden, 356 N.C.316, 332, 572
S.E.2d 108, 120-21 (2002). A trial court’s conclusion that a
police officer had either probable cause or reasonable suspicion
to detain or search a defendant is reviewable on appeal de novo.
State v. Parker, 183 N.C.App 1, 7, 644 S.E.2d 235, 240 (2007).

    Officer Oehl, after observing defendant‟s automobile

improperly pass, was apparently justified in stopping defendant

in order to give him a traffic citation for the infraction of

improper passing.   State v. Reynolds, 161 N.C.App. 144, 147, 587

S.E.2d 456, 458-9 (2003); State v. Parker, 183 N.C.
                               -7-

App. 1, 7, 644 S.E.2d 235, 240 (2007). Defendant contends,

however, that after stopping defendant the officers exceeded

their lawful authority in delaying, detaining, interrogating,

and searching defendant‟s pill container, and that the fruits of

the search should, therefore, have been suppressed. See State v.

Rinck, 303 N.C.551, 558-562, 280 S.E.2d 912, 919-21 (1981).

     Specifically, defendant-appellant contends that the trial

court erred in refusing to suppress evidence of the 40

hydrocondone pills seized by officer Oehl for the reasons that:

     (1) Once the officers stopped defendant for the infraction

of improper passing, they lacked reasonable suspicion to detain

and question defendant about matters unrelated to the improper

passing (Argument I).

     (2) The officers detained defendant for an unreasonable

period of time in violation of the 4th Amendment to the United

States Constitution, Article I, Section 20 of the North Carolina

Constitution, N.C.G.S. 15A-1113(b) and N.C.G.S. 15A-974(2)

(Argument II).

     (3) The officers unlawfully opened and examined the

contents of the defendant‟s unmarked pill container without

probable cause and/or a search warrant authorizing them to do

so. (Argument III).
                                -8-

    In this Argument I, defendant-appellant contends that the

evidence of the 40 hydrocondone pills should have been

suppressed for the reason that the officers lacked reasonable

suspicion to detain and question defendant about matters

unrelated to the infraction of improper passing.

    The Fourth Amendment protection against unreasonable

seizures or detention of a person extends to “brief

investigatory detentions such as those involved in the stopping

of a vehicle.”   State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d

67,70 (1994). The constitutional protection against unreasonable

searches and seizures requires the scope of the ensuing

detention to “be carefully tailored to its underlying

justification.” Florida v. Royer, 460 U.S. at 500, 75 L.Ed.2d at

238. Once the officer has addressed the reason for the stop,

further detention may be justified only by additional grounds

that provide a “reasonable and articulable suspicion, based on

specific and articulable facts, that criminal activity is

afoot.” State v. McClendon, 350 N.C. 630, 636-37, 517 S.E.2d

128, 132 (1999). Nervousness alone is insufficient to justify a

reasonable suspicion. State v. McClendon, 350 N.C. 630, 636-37,

517 S.E.2d 128, 132 (1999); State v. Myles, 188 N.C.App. 42, 47

654 S.E.2d 752, 755; affirmed 362 N.C.344, 661 S.E.2d 732

(2008); but see State v. Miller, COA08-1530, filed July 7, 2009.
                               -9-

    “Once the original purpose of the stop has been addressed,

there must be grounds which provide a reasonable and articulable

suspicion in order to justify further delay.”    State v. Myles,

188 N.C.App. 42, 45, 654 S.E.2d 752, 754; affirmed 362 N.C. 344,

661 S.E.2d 732 (2008).

    In State v. Myles, supra, Trooper Gilmore of the Highway

Patrol stopped the vehicle wherein defendant was riding as a

passenger because the driver had weaved in her lane.   This

indicated the driver might be impaired.   Once stopped, however,

the trooper found no evidence of impairment.    The Court found

that Trooper Gilmore lacked a “reasonable and articulable

suspicion of criminal activity” in order to further delay and

detain defendant; and that because defendant was

unconstitutionally detained, the search of defendant‟s rented

vehicle was unlawful. In State v. Fisher, 141 N.C. App. 448,

539 S.E.2d 677 (2000), the appellate court held that while the

officers properly stopped, detained, and questioned defendant

about his driving while his license had been revoked, the

evidence revealed that the officers “did not possess reasonable

suspicion based upon objective facts to detain defendant for

investigatory measures outside the scope of the initial traffic

stop.” Fisher, 141 N.C.App. @ 459, 539 S.E.2d @ 685, and

therefore, the trial court properly suppressed evidence
                               -10-

subsequently found as a result of a canine sniff. See also State

v. Falana, 129 N.C.App. 813, 817, 501 S.E.2d 358, 360, (1998),

where the trooper‟s reasons for extending the traffic stop

beyond the issuance of a warning ticket “were insufficient to

support a further detention of defendant once the warning ticket

was issued . . .” and State v. Beveridge, 112 N.C. App. 688, 436

S.E.2d 912 (1993), affirmed, 336 N.C. 601, 444 S.E.2d 223

(1994), where officers continued to unconstitutionally search

defendant‟s pockets even after they knew he had no weapon.

    In further support of this Argument, defendant-appellant

cites and relies upon State v. Curtis Allen Jackson, N.C. Court

of Appeals file number COA08-1517, filed August 18, 2009.     In

Jackson, Deputy Bradley of the Rutherford County Sheriff‟s

Department stopped the vehicle wherein the defendant was riding

on suspicion that the driver had no operator‟s license. After

the traffic stop was “pretty much over” (the driver did have a

valid license) and without any “reasonable, articulable

suspicion that criminal activity may be afoot.” Deputy Bradley

inquired as to whether there was anything illegal in the

vehicle.   The subsequent search of the vehicle led to discovery

of cocaine and a gun.   Defendant argued on appeal that the trial

court erred in denying defendant‟s motion to suppress because

the cocaine and the weapon were the fruits of an unlawfully
                               -11-

extended and thus unconstitutional seizure.    The Court of

Appeals agreed holding the weapon and the cocaine were in fact

fruits of the illegal extended detention and search.

    In the trial below, Officer Oehl testified at trial, and

the court found facts which show that: When he observed the

Defendant‟s minor traffic infraction of improper passing, he

activated his blue light and siren.    Defendant immediately

pulled his car over.   Officer Oehl approached defendant‟s

vehicle and engaged in conversation.    Defendant explained about

a problem with his car‟s brakes. Officer Oehl felt defendant to

be nervous. Officer Oehl testified that, “I talked to him for

just a few minutes before I became suspicious that he may be

involved in some type of suspicious activity (although why he

became suspicious and exactly what he became suspicious of was

never explained).” (T-p-45).   Officer Oehl then asked defendant

(as was the case in Jackson) if he had any guns or illegal

weapons and to get out of his vehicle.    Once out of his vehicle,

defendant was asked to submit to a search of his vehicle and his

person (T-p-83,8). All as a result of an improper passing

infraction.

    Defendant-appellant contends that Officer Oehl should have

given him a ticket for improper passing when he first stopped

his vehicle and then let defendant be on his way. Officer Oehl
                               -12-

violated defendant‟s Fourth Amendment rights by detaining and

interrogating him because the facts known to him when the

traffic stop was completed did not give rise to a reasonable,

articulable suspicion of any criminal activity. Defendant had

committed no crime known to Officer Oehl and defendant‟s

nervousness alone was insufficient to justify the detention and

continued interrogation.   Officer Oehl‟s subsequent search of

defendant and the pill container was unlawful and defendant‟s

motion to suppress should have been allowed.

     II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING THE
WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE OFFICERS
DETAINED DEFENDANT FOR AN UNREASONABLE PERIOD OF TIME IN
VIOLATION OF THE 4th AMENDMENT TO THE U.S. CONSTITUTION, ARTICLE
I, SEC. 20 OF THE NORTH CAROLINA CONSTITUTION, N.C.G.S. 15A-
1113(b) AND 15A-974(2).

    ASSIGNMENT OF ERROR NO. 6A, R-p-30

    EXCEPTION NO. 6A, T-p-86

     STANDARD OF REVIEW: The applicable standard of review is
set forth in Argument I, above and is incorporated herein by
reference.
                              -13-

     Defendant-appellant contends that even if further detention

and interrogation was justified (See Argument I, above which

argues that it was not justified), still, the duration of the

further detention in this case was unreasonable,

unconstitutional, and in violation of the 4th Amendment to the

Unites States Constitution, Article I, section 20 of the North

Carolina Constitution, N.C.G.S.15A-1113(b) and N.C.G.S. 15A-

974(2). See State v. Jacobs, 162 N.C.App. 251, 256, 590 S.E.2d

437, 442 (2004); and State v. Ghaffar, 93 N.C.App. 281, 288, 377

S.E.2d 818, 823 (1989), for a similar argument.

     N.C.G.S.15A-1113(b) provides that: “A law enforcement

officer who has probable cause to believe a person has committed

an infraction may detain the person for a reasonable period in

order to issue and serve him a citation.”   N.C.G.S. 15A-974(2)

provides that evidence must be suppressed if it is obtained as a

result of a substantial violation of the provisions of Chapter

15A of the North Carolina General Statutes.

     Rather than issuing a citation for improper passing as

required/allowed by law, Officer Oehl, after stopping defendant,

engaged in conversation, requested defendant to step out of his

vehicle, requested to search his vehicle and his person,

searched the inside of defendant‟s vehicle (T-p-46, 47), “patted

down” defendant, looked inside defendant‟s pill container (T-p-
                              -14-

62), and called New Hanover Hospital Pharmacy to determine the

identity of the pills (T-p-84).   Only then was defendant

arrested (T-p-54,62) and charged with trafficking (T-p-56), and

thereafter, (finally) cited by Officer Oehl for the infraction

of improper passing “which (was) my original reason for pulling

him over.” (T-p-56, line 22, 23; T-p-84, line 24).

     Defendant-appellant contends that Officer Oehl deprived

defendant of rights guaranteed to him by the 4th Amendment to the

United States Constitution and Article I, Section 20 of the

North Carolina Constitution by his unreasonable detention and,

further, violated N.C.G.S. 15A-1113(b) and 974(2) by failing to

issue and serve the improper passing citation on him within the

required “reasonable period.” The trial court therefore erred in

refusing to suppress evidence of the 40 hydrocondone pills.

     Defendant-appellant again cites State v. Curtis Allen

Jackson, supra, (See Argument I) in support on this Argument II.

     III. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE OF THE 40 HYDROCONDONE PILLS SEIZED DURING THE
WARRANTLESS SEARCH OF DEFENDANT FOR THE REASON THAT THE OFFICERS
HAD NO PROBABLE CAUSE OR SEARCH WARRANT AUTHORIZING THEM TO OPEN
AND SEARCH THE UNMARKED PILL CONTAINER

     ASSIGNMENT OF ERROR NO. 7, R-p-30
     ASSIGNMENT OF ERROR NO. 3, R-p-28

     EXCEPTION NO. 7, T-p-86
     EXCEPTION NO. 3, T-p-86 (lines 8-11)
                                 -15-

     STANDARD OF REVIEW: The applicable standard of review is
set forth in Argument I, above and is incorporated herein by
reference.

    The trial court found the following facts relative to this

Argument III, to wit: (1) while defendant was sitting in his

car, Officer Oehl asked him if he had any guns, knives or

illegal weapons.   Officer Oehl noticed that defendant attempted

to reach into the right side pocket of his jacket on at least

two occasions while sitting in his car (T-p-83); (2) Officer

Oehl asked defendant to get out of his car and asked defendant

if he could search his car and his person.     Defendant consented

to the search of his car but not his person.    While this

conversation was going on, defendant reached into his right

front jacket pocket at least two more times (T-p-84); (3) when

other officers arrived, Officer Oehl attempted to pat down the

defendant, and defendant reached again into his right jacket

pocket.   Officer O‟Donnell grabbed defendant‟s arm before it

could go into his pocket.   Officer O‟Donnell reached into

defendant‟s   pocket and pulled out a cell phone and a pill

bottle with no label (T-p-84).

    Officer Oehl described the pill bottle at trial as “brown

in color, that had no label on it, with what appeared to be some

type of white pills.” (T-p-91).    Officer Oehl then testitifed

that he “opened up the pill bottle and looked at them. They were
                               -16-

white in color, they had M360 stamped on them or inscribed on

them.   The defendant was placed under arrest.” (T-p-92,

lines 8-11).   Officer O‟Donnell testified that he examined the

contents of the unlabeled prescription bottle but was unable to

identify its contents.   (T-p-119).

     Even if the officers were justified in going into

defendant‟s jacket pocket under these circumstances, still,

finding no weapons, only a cell phone and a brown unlabeled pill

container, they were not legally authorized to then open and

look inside the pill container without probable cause and/or a

search warrant (and the officers had neither).

     In support of this Argument III, defendant cites and relies

on   State v. Beveridge, 112 N.C. App. 688, 436 S.E.2d 912

(1993), affirmed, 336 N.C.601, 444 S.E.2d 223 (1994), State v.

Thomas, 81 N.C.App. 200, 343 S.E.2d 588, rev. denied, 318 N.C.

287, 347 S.E.2d 469 (1986), and State v. Wise, 117 N.C. App.

105, 449 S.E.2d 774 (1994).

     In State v. Beveridge, supra, defendant was a passenger in

a car stopped for D.W.I. Defendant was asked to exit the car and

was subjected to a “pat-down” search for weapons.   The searching

officer felt a plastic baggie in defendant‟s front pocket.    The

officer then asked the defendant to turn out the contents of his

pocket and, when he did, he observed defendant conceal something
                               -17-

in his hand.   The officer asked defendant what he had in his

hand and observed a white powder substance within the baggie.

The Court held the cocaine seized from the defendant was the

fruit of a constitutionally impermissible search relying on

Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124

L.Ed.2d 334 (1993).   “The officer‟s continued exploration of

respondent‟s pocket after having concluded that it contained no

weapon was unrelated to the sole justification for the search .

. . the protection of the police officer and others nearby.”

    As in Beverage, once the officers determined that the

defendant had only a cell phone and a pill container in his

pocket, the continued exploration into the pill container was in

no way related to the protection of the officers, the sole

justification for the search, nor of the infraction of improper

passing, the reason for the stop.

    In State v. Thomas, 81 N.C.App. 200, 343 S.E.2d 588 (1986),

S.B.I. narcotics agents apparently noticed suspicious behavior

on defendant‟s part while waiting for his luggage at Greensboro

Regional Airport.   The agents saw defendant pick up a large

American Tourister suitcase and start to walk out of the

terminal. The agents approached defendant, asked him for

identification and explained that they were conducting a
                               -18-

narcotics investigation and sought his cooperation. Defendant

appeared “very nervous.”   Agent Turbeville asked Defendant,

“Do you have anything on you that you shouldn‟t have?” Defendant

replied, “Yes [pause] I might have.” Agent Turbeville asked

defendant to consent to a search of his person and luggage.

Defendant refused. Agent Turbeville then placed defendant under

arrest for “possession of controlled substances.”   The agents

then searched defendant‟s suitcase and found twenty-five one

pound packages of marijuana. On these facts the Court of Appeals

held that the warrantless search of defendant‟s suitcase was in

violation of the 4th Amendment of the United States Constitution.

Once the suitcase had been reduced to the S.B.I. agent‟s

exclusive control, his search could no longer be justified as

incident to defendant‟s arrest and the agents could not lawfully

search it without first obtaining a search warrant.   (See

Professor Farb‟s criticism of this case in Arrest, Search and

Investigation in North Carolina, 3rd Ed., (2003) page 363.

Nevertheless, Thomas was apparently the law of North Carolina on

the date of defendant‟s arrest and, defendant contends, supports

this Argument III.)

     As in State v. Thomas, once Officers O‟Donnell and Oehl

obtained exclusive possession of the pill container from

defendant in this case, and knew that it contained no gun or
                               -19-

dangerous weapon, they could not lawfully open it and examine

its contents without first obtaining a search warrant.

    In State v. Wise, 117 N.C. App. 105, 449 S.E.2d 774 (1994),

Trooper Ashby of the Highway Patrol stopped defendant after

seeing him speeding 62 mph in a 45 mph zone on South Boulevard

in Charlotte. When Trooper Ashby approached defendant‟s car he

observed defendant grab his midsection “between his stomach and

beltline.” Trooper Ashby requested defendant get out of his car

and the Trooper patted down the defendant.   Trooper Ashby felt a

“round cylinder object” which was not a weapon in the area where

defendant had grabbed.   Defendant was then placed in the front

seat of the Trooper‟s vehicle and asked “what he had grabbed?”

This prompted defendant to reach inside his jacket and hand

Trooper Ashby a white, non-transparent Bayer Aspirin bottle.

Trooper Ashby became suspicious, opened the bottle, looked

inside, and saw what he believed to be rock cocaine.    Trooper

Ashby then placed defendant under arrest for possession of rock

cocaine.   The issue on appeal was whether or not Trooper Ashby,

even if he had lawful possession of the aspirin bottle, had

authority to open the bottle and search its contents.    The Court

held that Trooper Ashby could have searched the bottle only if

defendant had consented (he had not) or “if the officer had
                               -20-

probable cause to search the bottle.”   “The facts in this case

support nothing more than a suspicion that the defendant was

transporting drugs in the aspirin bottle.” The trial court erred

in denying defendant Wise‟s motion to suppress cocaine.

    As in Wise, defendant-appellant contends that Officers Oehl

and O‟Donnell had, at the very best, only a suspicion that the

defendant-appellant was possessing and/or transporting

hydrocondone in the pill container and the trial court erred in

refusing to suppress the 40 hydrocondone pills.

IV. THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN ALLOWING
THE STATE’S EXPERT CHEMIST TO STATE HER OPINION, WITHOUT
TESTING, THAT THE 40 PILLS CONSISTED OF 38.2 GRAMS OF A
PHARMACEUTICAL PREPARATION CONTAINING HYDROCONDONE.

    ASSIGNMENT OF ERROR NO. 11, R-p-33 (See Addendum to
                                Record on Appeal)

    EXCEPTION NO. 11, T-pp-145 lines 12-24

     STANDARD OF REVIEW The standard of review on appeal for the
admissibility of expert testimony is abuse of discretion. State
v. Washington, 141 N.C.App.354. 540 S.E.2d 388 (2000). However,
since defendant did not object at trial, the standard of review
is plain error. State v. Ridgeway, 137 N.C.App. 144,147, 526
S.E.2d 682, 685 (2000).

    In order to prove the substance found in defendant‟s pill

container was the controlled substance, opium or heroin, the

State called Ms. Brittany Dewell, a drug chemist employed by the

S.B.I.   Ms. Dewell testified that her job was to “analyze

evidence for the presence or absence of controlled substances.”
                               -21-

(T-p-134, lines 1-2). The District Attorney asked Ms. Dewell:

Q. What exactly did you do as far as the analysis of the

contents? Did you perform an analysis?

A. I opened this envelope, I poured the pills out of the bottle,

I weighed them.   I then identified the tablet markings on them,

and reported that.

Q. Did you perform any further tests as to the contents of

State‟s Exhibit 1B (the pills suspected of containing

hydrocondone)?

A. No, I performed no chemical analysis on the tablets.

(T-p-142, lines 15-23).

    Basically, Ms. Dewell looked at the markings on the pills

and the color and shape of the pills and compared that with

information in a “database of pharmaceutical preparations”

called “Micromedics” maintained by the S.B.I. Lab. (T-p-143).

By comparison of the submitted pills with the pills pictured in

the database, Ms. Dewell stated her opinion to be that the 40

submitted tablets consisted of 38.2 grams of a pharmaceutical

preparation containing dihydrocodeinone which is another

chemical name for hydrocondone which is an opiate derivative

(T-p-145) and a Schedule III controlled substance.

    Since defendant made no objection to Ms. Dewell‟s opinion

at trial (although defendant did make the trial Court aware of
                              -22-

this problem through his motion to dismiss which immediately

followed Ms. Dewell‟s testimony (T-p-158,9)), plain error

analysis is the applicable standard of review. In plain error

review, appellant must show that:

“After reviewing the entire record, it can be said the claimed
error is a „fundamental error, something so basic, so
prejudicial, so lacking in elements that justice cannot have
been done,‟ or „where [the error] is grave error which amounts
to a fundamental right of the accused,‟ or the error has
„resulted in a miscarriage of justice or in the denial to
appellant of a fair trial‟ or where the error is such as to
„seriously affect the fairness, integrity or public reputation
of judicial proceedings‟ or where it can be fairly said „the
(instructional) mistake had a probable impact on the jury‟s
finding that the defendant was guilty.‟” State v. Curry, 171
N.C.App. 568, 574, 615 S.E.2d 327,331 (2005). “In meeting the
heavy burden of plain error analysis, a defendant must convince
this Court, with support from the record, that the claimed error
is so fundamental, so basic, so prejudicial, or so lacking in
its elements that absent the error the jury would have reached a
different result.” State v. Cummings, 346 N.C. 291, 314, 488
S.E.2d 550, 563 (1997), cert. denied, 522 U.S.1092, 139 L.Ed.2d
873 (1998).

See State v. Miller, COA08-1530, filed July 7, 2009, where the

Court of Appeals reviewed for plain error when appellant had

failed to object to the admissibility of narcotic

evidence at trial.

    In evaluating the admissibility of expert testimony, North

Carolina uses the three-step analysis announced in State v.

Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), to wit: (1) whether

the expert‟s proffered method of proof is sufficiently reliable

as an area for expert testimony; (2) whether the expert is
                              -23-

qualified; and (3) whether his testimony is relevant.    State v.

Corriher, 184 N.C.App. 168, 170, 645 S.E.2d 413, 415 (2007);

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674

(2004)

    Defendant-appellant contends that while Ms. Dewell‟s

testimony may have been relevant, she was qualified as a

chemical analysist not as a “pill comparison” expert. The

District Attorney asked her no qualifying questions about her

ability to identify the composition of suspected controlled

substances by sight or comparison.

    Under N.C.G.S. 8C-1, Rule 702, the test for admissibility

of an expert‟s opinion is whether the jury can receive

appreciable help from the expert witness. State v. White, 104

N.C.App. 165, 171, 408 S.E.2d 871, 875 (1991) (where the

expert‟s opinion that the substance “could” contain cocaine was

admissible since based on a positive preliminary test result.)

Baseless speculation can never assist he jury under Rule 702.

Cherry v. Harrell, 84 N.C.App 598, 605, 353 S.E.2d 433, 438,

disc rev denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

    Defendant-appellant contends that S.B.I. chemist Ms.

Dewell‟s opinion that the 40 pills were hydrocondone was not

based on sufficiently reliable testing procedures and was at
                                 -24-

best incomplete and speculative. There is no way that Ms. Dewell

could have given a valid, reliable opinion, one helpful to the

jury, as to the contents of the 40 pills unless she had tested

at least one of the group of pills to see if it did, in fact,

contain any amount of the controlled substance hydrocondone.

Powder and pills purchased and sold as controlled substances do

not always turn out to be as represented.   See Llamas-Hernandez,

infra, 189 N.C. App. @ 646-7, 659 S.E.2d @ 83, “. . . the ease

with which a person may pass off a counterfeit controlled

substance as an actual controlled substance has prompted our

General Assembly to enact legislation making it a Class I felony

to “create, sell or deliver, or possess with intent to sell or

deliver, a counterfeit controlled substance. N.C.G.S. 90-95(c),

(a)(2)(2007).”

    The trial court committed plain error in failing to strike,

ex mero motu, the opinion of Agent Dewell on the composition of

the pills taken from defendant‟s pill container; further, the

trial court should have then instructed the jury to disregard

her opinion.

    In support of this argument, defendant-appellant cites

State v. Llamas-Hernandez, 189 N.C.App 640, 651, 659 S.E.2d 79,

85, reversed for reasons stated in the dissenting opinion, 363

N.C. 8, 673 S.E.2d 659 (2009).    In Llamas-Hernandez, although a
                                -25-

chemical analysis had been performed, the report was not offered

in evidence at the trial.   Instead, two police officers, based

exclusively on their visual inspection, were allowed to testify

that the substance was cocaine.   The majority Opinion felt that

an opinion that white powder is cocaine based solely on the

witness‟s visual examination was little more than speculation

but felt bound by the prior decision in State v. Freeman,

185 N.C.App. 408, 648 S.E.2d 876, 881-82 (2007), appeal

dismissed, 362 N.C. 178, 657 S.E.2d 663, reconsideration denied,

362 N.C. 178, 657 S.E.2d 666 (2008).   Judge Steelman‟s dissent

discussed the legislative intent that expert testimony be

required, developed through chemical testing and analysis, to

establish that a questioned substance is (or is not), in fact, a

controlled substance, and that he would therefore hold lay

opinion as to the chemical composition of a white powder to be

inadmissible and, with no evidence before the jury of the nature

of the white powder, defendant‟s motion to dismiss should have

been allowed.    Judge Steelman‟s dissent was adopted by the

Supreme Court.

    Defendant-appellant contends that in this appeal, as in

Llamas-Hernandez, the identification of suspected pills based

solely on visual comparison is inherently unreliable. Opinion

testimony on the chemical composition of a suspected pill based
                              -26-

solely on visual comparison without scientific testing is not

admissible from a lay person nor an expert witness. Had the

trial judge excluded Ms. Dewell‟s opinion, there is at least a

reasonable probability (if not an absolute certainty) that there

would have been a different result.   Without her inadmissible,

unreliable, speculative testimony there would have been no

evidence that any of the pills contained hydrocondone and

defendant‟s motion to dismiss the trafficking charges would have

been allowed. The trial court committed plain error in allowing

S.B.I. agent Dewell to give her opinion on the chemical

composition of the pills taken from defendant‟s pill container.

    Defendant further cites and relies on State v. Jimmy Waylon

Ward, N.C. Court of Appeals file number COA08-978, filed August

18, 2009, where, in a similar case (also from New Hanover

County) The Court of Appeals found error in the State‟s expert

chemist‟s “visual inspection of the tablets and fragments in

question and a comparison of the information gained through that

process to material contained in a medical reference book.” This

approach to identifying the questioned substance was deemed not

sufficiently reliable. (See Ward, pages 41-2.) Defendant-

appellant contends, based on State v. Jim Waylon Ward, that he

is also entitled to a new trial based on the trial judge‟s plain

error in admitting the State‟s expert chemist‟s testimony
                              -27-

identifying the 40 pills in question as controlled substances

based solely of a visual identification process rather than

chemical alalysis.

     V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION
TO DISMISS THE TRAFFICKING IN OPIUM OR HEROIN BY POSSESSING
CHARGE AT THE CLOSE OF ALL THE EVIDENCE ON THE GROUNDS THAT THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH EVERY ELEMENT OF THIS
CRIME AND THE DEFENDANT’S IDENTITY AS THE PERPETRATOR.

    ASSIGNMENT OF ERROR NO. 9, R-p-32

    EXCEPTION NO. 9, T-p-159,163

                       STANDARD OF REVIEW

     The standard of review on appeal of the denial of a
criminal defendant’s motion to dismiss for insufficient evidence
is whether the State has offered substantial evidence to show
the defendant committed each element required to be convicted of
the crime charged. State v. Williams, 154 N.C.App 176, 178, 571
S.E.2d 619,620 (2002).

    In this assignment of error and argument, defendant-

appellant contends that all the evidence presented by the State

was insufficient to establish every element of the charge of

trafficking in opium or heroin by possessing and, therefore,

this charge should have been dismissed at the close of all the

evidence pursuant to N.C.G.S. 15A-1227.

    Upon a defendant‟s motion to dismiss, “[T}he question for

the trial court is whether there is substantial evidence of (1)

each essential element of the offense charged, or of a lesser

offense included therein, and (2) of defendant‟s being the
                                 -28-

perpetrator of the offense.” State v. Scott, 356 N.C. 591, 595,

573 S.E.2d 866, 868 (2002); State v. Lynch, 327 N.C. 210, 215,

393 S.E. 2d 811, 814 (1990). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980).     In reviewing the trial court‟s

ruling, the appellate court must evaluate the evidence in the

light most favorable to the State and resolve all contradictions

in favor of the State.    State v. Malloy, 309 N.C. 176, 179, 305

S.E.2d 718, 720 (1983).   The ultimate question is “whether a

reasonable inference of the defendant‟s guilt may be drawn from

the circumstances.”   State v. Malloy, 309 N.C. 176, 179, 305

S.E.2d 718, 720 (1983).   If the evidence supports a reasonable

inference of defendant‟s guilt, it is up to the jury to decide

whether there is proof beyond a reasonable doubt.     State v.

Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998).     However,

if the evidence is “sufficient only to raise a suspicion or

conjecture as to either the commission of the offense or the

identity of the defendant as the perpetrator, the motion to

dismiss must be allowed.”     Malloy, 309 N.C. at 179, 305 S.E.2d

at 720. “This is true even though the suspicion aroused by the

evidence is strong.” Id. See State v. Harris, 178 N.C.App. 723,

725, 632 S.E.2d 534, 536, affd. 361 N.C. 400, 646 S.E.2d 526
                              -29-

(2007); and State v. Myers, 181 N.C. App. 310, 313, 639 S.E.2d

1, 3 (2007).

     The trial court charged the jury that to find the defendant

guilty the State must prove “First, that the defendant knowingly

possessed hydrocondone.” (T-p-172, and see page 174 for the same

instruction on trafficking by transporting). See N.C.G.S. 90-

95(H)(4) and Jessica Smith, North Carolina Crimes, 6th Ed., 2007,

page 605, for discussion of the elements of this crime.

     Defendant-appellant contends the State failed to offer

substantial evidence that the substance found in defendant‟s

pill container was in fact opium or heroin as alleged in the

indictment (R-p-4). Defendant-appellant contends that Ms.

Dewell‟s opinion (that the 40 submitted tablets consisted of

38.2 grams of a pharmaceutical preparation containing

dihydrocodeinone which is another chemical name for hydrocondone

which is an opiate derivative (T-p-145) and a Schedule III

controlled substance) was inadmissible (as set forth in Argument

IV above) and, in any event, insufficient to carry the case to

the jury.

     On cross-examination, Ms. Dewell admitted that the S.B.I.

lab had the technology and capability to test the chemical

components of the pills, but she had not done so in this case.
                                -30-

(T-p-150).   Apparently it would have required a written request

from the District Attorney‟s Office to secure a chemical

analysis (T-p-153) since the number of pills submitted in this

case was less than 101. (T-p-154). Defendant moved to dismiss at

the close of the State‟s evidence (T-p-158, 159, renewed at page

163) on the grounds that the State failed to prove “that the

pills are what they‟re purported to be.” (T-p-158, 159).

    Defendant-appellant contends that some form of chemical

testing and analysis is required to sufficiently prove that

pills suspected of containing controlled substances do, in fact,

contain the controlled substance alleged in the indictment and

that Ms. Dewell‟s opinion based on visual comparison is not

sufficient to carry the State‟s case to the jury.

    In State v. Conway, _____ N.C.App. _____, ____, 669 S.E. 2d

40, 42 (2008), testing showed that suspected substances

contained detectible amounts of methamphetamine. In State v.

Anderson, 76 N.C.App. 434, 437, 333 S.E.2d 762, 764 (1985), at

least 3 of the 14 packets of powder involved were chemically

analyzed.    See also State v. Perry, 316 N.C. 87, 340 S.E.2d 450

(1986), where at least a part of the whole had been tested by

the State‟s expert chemist.    In State v. Cunningham, 108

N.C.App. 185, 196, 423 S.E.2d 802, 809 (1992) the S.B.I. Chemist

performed a Marquis test, a cobalt thiocyanate test, a
                               -31-

microcrystalline test, and an infrared spectroscopy test on the

suspected substance.

    Here, the expert chemist simply looked at the submitted

pills, compared their appearance with similar pills in a

chart/database, and when she determined a match, stopped

everything and concluded the submitted pills contained the opium

derivative, hydrocondone.   Defendant-appellant contends that the

trial court should have refused this evidence ex mero motu as

set forth in Argument IV above which is incorporated herein by

reference.   Without this unfounded opinion there would have been

absolutely no evidence whatsoever as to the identity of the

composition of the 40 pills.

    In State v. Broad, 296 N.C. 652, 252 S.E.2d 803 (1979), the

white powdery substance purchased from defendant was mailed to

the S.B.I. Lab in Raleigh for analysis.   Although an analysis

was apparently performed and returned, it was not offered in

evidence. Instead, the State relied on the testimony of special

agent Adcox who testified that “Two of the three substances I

purchased from Mr. Broad were MDA, the third was not a

controlled substance.”   On appeal, the Court held that the

Defendant‟s motion to dismiss should have been granted for the

reason that the State failed to offer substantial evidence that

the substance distributed by defendant was, in fact, the
                              -32-

controlled substance charged in the bill of indictment.

Defendant-appellant contends that like Broad, there was no

proper chemical analysis of the suspected pills and, therefore,

there was no substantial evidence that the 40 pills from

defendant‟s pill container were opium or heroin as alleged in

the indictment.

     Reference is made to the appellate court‟s observations on

the inherent unreliability of visual inspections in Cook v.

United States, 362 F.2d 548, at 549 (9th Cir. 1966) “. . .

whether or not a powder or substance is a narcotic cannot be

determined by a mere inspection of its outward appearance”; and

in Commonwealth v. Dawson, 399 Mass. 465, 504 N.E.2d 1056, 1057

 (1987), “. . . it would be a rare case in which a witness‟s

statement that a particular substance looked like a controlled

substance would alone be sufficient to support a conviction.”

See also State v. Jimmy Waylon Ward, supra.

     VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION
TO DISMISS THE TRAFFICKING IN OPIUM OR HEROIN BY TRANSPORTING
CHARGE AT THE CLOSE OF ALL THE EVIDENCE ON THE GROUNDS THAT ALL
THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH EVERY ELEMENT OF THIS
CRIME AND THE DEFENDANT’S IDENTITY AS THE PERPETRATOR.

     ASSIGNMENT OF ERROR NO. 10, R-p-32

     EXCEPTION NO. 10, T-p-159,163

The STANDARD OF REVIEW is set forth in Argument V above and is
incorporated herein by reference.
                              -33-

    Defendant-appellant contends that trial court erred in

denying defendant‟s motion to dismiss the trafficking by

transporting charge for the same reasons as set forth in

Argument V above (trafficking by possession). Argument V above

and the authorities therein contained are incorporated herein by

reference in support of this Argument VI.

                           CONCLUSION

    Based upon the foregoing arguments, defendant-appellant

respectfully requests the North Carolina Court of Appeals to

vacate, set aside, dismiss, and reverse his convictions of

trafficking in opium or heroin by possession and by transporting

and the verdicts and Judgments and Commitments entered thereon

and the sentence imposed upon defendant and to dismiss all

felony charges against defendant-appellant.

    Respectfully submitted this ____ day of__________, 2009.

                   ___________________________
                    William D. Spence
                    Attorney for Appellant
                    106 W. King St.
                    P.O. Box 1230
                    Kinston, NC 28503
                    Tel. No. 252-522-3444
                    NC Bar No. 4117
                                -34-


                        CONTENTS OF APPENDIX

APPENDIX A:    Voir Dire - search
              (Arguments I, II, and III)   . . . . . . . App. 1-36
                                -35-

                       CERTIFICATE OF SERVICE

    I hereby certify that the foregoing defendant-appellant‟s

Brief in the case of State of North Carolina vs. Larry Darnell

Brunson (North Carolina Court of Appeals file number COA09-976)

has this day been duly filed by placing the same in an envelope

addressed to the Clerk of the North Carolina Court of Appeals,

P.O. Box 2779, Raleigh, N.C., 27602, first-class postage

prepaid, and depositing the same in an official depository under

the exclusive care and custody of the U.S. Postal Service, in

accordance with Rule 26(a) of the North Carolina Rules of

Appellate Procedure.

    I further hereby certify that a copy of the foregoing Brief

has this day been duly served upon the State of North Carolina

by placing a copy of the Brief in an envelope, first-class

postage prepaid, and depositing it in an official depository

under the exclusive care and custody of the U.S. Postal Service,
                               -36-

addressed as follows:


Mr. Stanley G. Abrams
Assistant Attorney General
Department of Transportation
Attorney General‟s Office
1505 Mail Service Center
Raleigh, N.C. 27699-1505

    This ___________day of September, 2009.




________________________________
William D. Spence,
Attorney for Appellant
P.O. Box 1230
Kinston, N.C. 28503
Tel No. 252-522-3444
N.C. Bar No. 4117

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:4
posted:8/26/2011
language:English
pages:46