State v. Eddings ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA13-474
    NORTH CAROLINA COURT OF APPEALS
    Filed: 7 January 2014
    STATE OF NORTH CAROLINA
    v.                                      Buncombe County
    Nos. 12 CRS 112
    11 CRS 63583
    11 CRS 63582
    DERRICK EDDINGS, JR.
    Appeal by Defendant from judgments entered 8 June 2012 by
    Judge Laura J. Bridges and order entered 5 December 2012 by
    Judge Gary M. Gavenus in Buncombe County Superior Court.                      Heard
    in the Court of Appeals 8 October 2013.
    Attorney General Roy Cooper, by Assistant Attorney General
    John F. Oates, Jr., for the State.
    Anna S. Lucas, for Defendant.
    DILLON, Judge.
    Derrick Eddings, Jr., (“Defendant”) appeals from judgments
    entered     based     on    jury    verdicts      convicting      Defendant       of
    possession of cocaine with intent to sell or deliver, possession
    of drug paraphernalia, and trafficking in cocaine.                      Defendant
    also appeals from the trial court’s order denying his post-trial
    -2-
    motion for appropriate relief.                  We conclude Defendant had a fair
    trial, free from error, and we affirm the trial court’s denial
    of Defendant’s motion for appropriate relief.
    The evidence of record tends to show the following:                             On 11
    November       2011,   officers       of   the        Asheville       Police    Department
    conducted surveillance in a neighborhood in the city after an
    informant gave the police department a tip about drug activity
    at one house in the neighborhood.                      While they were conducting
    surveillance, Defendant came out of the house, got into his car,
    and drove away.          Officer Brandon Morgan followed Defendant and
    noticed    a    person    in   the    passenger            seat.   The    passenger       was
    holding a black duffel bag and was not wearing his seatbelt.
    Because    Officer       Morgan      was   not        in    uniform     and    was   in   an
    undercover vehicle, he radioed Sergeant Geoffrey Rollins to stop
    the vehicle because the passenger was not wearing his seatbelt.
    Sergeant Rollins got behind Defendant’s vehicle and initiated
    the traffic stop.
    Sergeant     Rollins      spoke      to    the       passenger,    who    identified
    himself as Keeve Crooks (“Crooks”), and who was holding a black
    duffel bag and appeared very nervous.                        Defendant consented to a
    search of the vehicle, and officers discovered crack cocaine in
    the   black     duffel    bag     Crooks        was    holding.          Crooks      claimed
    -3-
    ownership of the crack cocaine discovered in the duffel bag.
    Defendant was not charged and was allowed to leave.
    Officer Morgan and Sergeant Rollins left the scene of the
    traffic    stop   and     traveled   back     to    the    house   they   had    been
    surveilling.      Defendant’s family members were at the house when
    officers    arrived.         The     owner    of     the     house,    Defendant’s
    grandmother, consented to the police searching the bedroom that
    Defendant and      his    uncle shared.            Officer Morgan found crack
    cocaine in three individual packages zipped inside a pillow,
    which was located between a futon and a computer stand.
    Defendant       was     indicted    on     charges       of    trafficking    in
    cocaine, possession with intent to sell or deliver cocaine, and
    possession of drug paraphernalia.              Defendant’s case came on for
    trial during the 5 June 2012 criminal session of Buncombe County
    Superior Court.
    At trial, Ms. Collin Andrews, a forensic chemist with the
    State Bureau of Investigation, gave expert testimony as to the
    identity of the substance discovered in the bedroom, testifying
    that the weight of the substance was forty-seven grams and that
    the substance was cocaine base.
    In     the    trial    court’s     initial      charge    to    the   jury,    it
    instructed the jury on the definition of reasonable doubt as
    -4-
    follows:        “A reasonable doubt is a doubt based on reason and
    common sense arising out of some or all of the evidence that has
    been presented, or lack or insufficiency of the evidence as the
    case may be. Proof beyond a reasonable doubt is proof that fully
    satisfies or entirely convinces you of the defendant’s guilt.”
    During   deliberations,          the    jury        sent   the   trial    court       a    note
    asking what happened if the jury could not reach a verdict.                                One
    juror also asked the trial court to explain reasonable doubt, to
    which the trial court responded, “It’s a doubt based on reason
    and common sense arising out of some or all of the evidence or
    the lack or insufficiency of the evidence, whichever the case
    may be, and you are to use your common sense and your reason to
    come to a decision. It’s not absolute.”                      When asked by a juror,
    “No hundred percent?” the trial court responded, “No hundred
    percent.    I    think    they    went        over     reasonable       doubt    in       their
    arguments, and I can send back the definition of reasonable
    doubt if you want that.”               The jury foreperson said yes, and the
    trial    court     continued,          stating,        “If   you’re      thinking         that
    reasonable      doubt    is    that     you    absolutely        know    that    something
    happened,    that    is    not    reasonable          doubt.     It’s    not    a   certain
    thing, but you should have enough evidence to say that or that
    you   can   infer       from   that      this       happened     or     that    happened.”
    -5-
    Counsel   for     Defendant       excepted     to   the     trial    court’s      verbal
    instruction,      stating       the   following:      “I     will    except       to   the
    Court’s instruction, verbal instruction of the definition that
    Your Honor just gave, because you did not include that it’s a
    doubt that fully satisfies or entirely convinces you[.]”                           After
    further discussion apart from the jury and with counsel for
    Defendant and the State, the trial court decided to reinstruct
    the   jury   on    the    definition      of    reasonable     doubt,       using      the
    pattern   jury     instruction.         The    jury   was    called       back    to   the
    courtroom, and the trial court reinstructed the jury as follows:
    There was some concerns that I didn’t read
    the whole definition of reasonable doubt to
    you, so I’m going to read it to you as it
    states in the jury instruction.    Reasonable
    doubt is a doubt based on reason and common
    sense arising out of some or all of the
    evidence that has been presented or lack or
    insufficiency of the evidence as the case
    may be. Proof beyond a reasonable doubt is
    proof that fully satisfies or entirely
    convinces you of the defendant’s guilt.
    Thereafter,       the    jury    resumed       deliberation.        The    jury    found
    Defendant guilty of all charges, and the trial court entered
    judgments consistent with the jury’s verdicts, consolidating the
    possession of cocaine with intent to sell or deliver conviction
    and the possession of drug paraphernalia conviction, for which
    Defendant was sentenced to six to eight months incarceration,
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    and entering a separate judgment for the trafficking in cocaine
    conviction, for which Defendant was sentenced to 35 to 45 months
    incarceration, to be served consecutively.
    Several days after Defendant was convicted in this case,
    the State learned that Ms. Andrews, the chemical analyst who
    testified at trial, had failed a test proctored to her under the
    Forensic Sciences Act.              On 11 June 2012, the State notified
    Defendant.     On     26    June    2012,    Defendant   filed   a   motion   for
    appropriate relief, requesting that the judgments be set aside
    and the charges dismissed, based on the State’s inability to
    present a qualified expert to establish an essential element of
    the charges, or, in the alternative, to award a new trial.                    The
    trial court, pursuant to a motion by the State, ordered that the
    substances be reanalyzed.            At the hearing on Defendant’s motion
    for   appropriate     relief,       SBI     Special    Agent   Michael   Piwowar
    testified that he reanalyzed the substance on 2 July 2012, and
    that the substance was crack cocaine weighing 42.9 grams.                     Mr.
    Piwowar acknowledged that Ms. Andrews had testified that the
    substance weighed 47 grams, but that the difference could have
    been attributable to evaporation of water from the substance.
    The   trial   court        denied    Defendant’s      motion   for   appropriate
    relief.
    -7-
    Defendant appeals from the judgments and the order denying
    his motion for appropriate relief.
    I: Jury Instruction on Reasonable Doubt
    In Defendant’s first argument on appeal, he contends the
    trial    court    committed   error   by    instructing   the   jury   on   the
    definition of reasonable doubt.            Defendant specifically contends
    the     trial    court   defined   reasonable     doubt    incorrectly      and
    incompletely, in a manner that resulted in the State’s burden of
    proof being lowered.          We believe the trial court’s instruction
    does not constitute reversible error.
    When an alleged error in a jury instruction is properly
    preserved by      exception    at trial, our Court reviews the jury
    instructions de novo.         State v. Foye, __ N.C. App. __, __, 
    725 S.E.2d 73
    , 79 (2012) (citation omitted).              “The charge of the
    court must be read as a whole[.] . . .               It will be construed
    contextually, and isolated portions will not be held prejudicial
    when the charge as [a] whole is correct.           If the charge presents
    the law fairly and clearly to the jury, the fact that some
    expressions, standing alone, might be considered erroneous will
    afford no grounds for reversal.”            State v. Hooks, 
    353 N.C. 629
    ,
    634, 
    548 S.E.2d 501
    , 505 (2001), cert. denied, 
    524 U.S. 1155
    ,
    
    151 L. Ed. 2d 1018
     (2002).            “The charge will be held to be
    -8-
    sufficient if it presents the law of the case in such manner as
    to leave no reasonable cause to believe the jury was misled or
    misinformed[.]”        State v. Blizzard, 
    169 N.C. App. 285
    , 296-97,
    
    610 S.E.2d 245
    ,    253    (2005)    (citation     and   quotation   marks
    omitted).      “Under such a standard of review, it is not enough
    for the appealing party to show that error occurred in the jury
    instructions; rather, it must be demonstrated that such error
    was likely, in light of the entire charge, to mislead the jury.”
    
    Id.
     (citation and quotation marks omitted).                  “If . . . it is
    sufficiently clear that no reasonable cause exists to believe
    that the jury was misled or misinformed, any exception to it
    will not be sustained even though the instruction could have
    been more aptly worded.”         State v. Maniego, 
    163 N.C. App. 676
    ,
    685, 
    594 S.E.2d 242
    , 248 (2004) (citation omitted).
    While “no particular formation of words is necessary to
    properly define reasonable doubt,” “the instructions, in their
    totality, must not indicate that the State’s burden is lower
    than ‘beyond a reasonable doubt.’”            State v. Taylor, 
    340 N.C. 52
    ,   59,   
    455 S.E.2d 859
    ,   862-63   (1995)     (citing   Victor   v.
    Nebraska, 
    511 U.S. 1
    , 5, 
    127 L. Ed. 2d 583
    , 590 (1994)).
    -9-
    In its charge to the jury, the trial court initially gave
    the definition of reasonable doubt contained in N.C.P.I. – Crim.
    101.10 (2013), which states as follows:
    The defendant has entered a plea of “not
    guilty.”   The fact that the defendant has
    been [indicted] [charged] is no evidence of
    guilt. Under our system of justice, when a
    defendant pleads “not guilty,” the defendant
    is not required to prove the defendant’s
    innocence; the defendant is presumed to be
    innocent. The State must prove to you that
    the defendant is guilty beyond a reasonable
    doubt.
    A reasonable doubt is a doubt based on
    reason and common sense, arising out of some
    or all of the evidence that has been
    presented, or lack or insufficiency of the
    evidence, as the case may be. Proof beyond
    a reasonable doubt is proof that fully
    satisfies or entirely convinces you of the
    defendant’s guilt.
    
    Id.
         When   a   juror   asked     for   reasonable   doubt   to   be     again
    defined,   the     trial   court’s    definition   “could   have     been    more
    aptly worded.”       Maniego, 163 N.C. App. at 685, 
    594 S.E.2d at 248
    .     After a discussion with counsel for Defendant and the
    State, the trial court reinstructed the jury on the definition
    of reasonable doubt, again using N.C.P.I. – Crim. 101.10.                      We
    find this case similar to State v. Foye, __ N.C. App. __, 
    725 S.E.2d 73
     (2012), in which this Court stated, “we cannot see how
    the additional language that ‘nothing can be proved 100 percent
    -10-
    basically,’ when viewed together with the correct pattern jury
    instruction, lowered the burden to less than reasonable doubt or
    otherwise prejudiced defendant.”                      
    Id.
     at __, 
    725 S.E.2d at 80
    .
    Construing the jury charge in this case contextually and as a
    whole, we believe the charge presents the law fairly and clearly
    to   the    jury,       and   although         some   expressions,         standing    alone,
    might      be    considered        erroneous,         those       expressions      afford    no
    grounds for reversal in this case, see Hooks, 
    353 N.C. at 634
    ,
    
    548 S.E.2d at 505
    , because we do not think there was reasonable
    cause      to    believe      the       jury    was     misled      or   misinformed,       see
    Blizzard, 169 N.C. App. at 296-97, 
    610 S.E.2d at 253
    .                                       This
    argument is without merit.
    II: Ineffective Assistance of Counsel
    In    Defendant’s            second      argument      on    appeal,    he     contends
    Defendant was provided ineffective assistance of counsel when,
    on   cross-examination,              defense      counsel         opened    the     door     for
    allegedly        prejudicial        testimony         to   be     introduced,      which    the
    parties         had    stipulated        was     inadmissible        and    would     not    be
    admitted at trial.            We find Defendant’s argument without merit.
    “To       prevail       on    a    claim     of      ineffective      assistance       of
    counsel,         a    defendant         must    first      show     that    his     counsel’s
    performance           was   deficient       and   then      that     counsel’s      deficient
    -11-
    performance prejudiced his defense.”                     State v. Allen, 
    360 N.C. 297
    , 316, 
    626 S.E.2d 271
    , 286, cert. denied, 
    549 U.S. 867
    , 
    166 L. Ed. 2d 116
     (2006) (citations and quotation marks omitted).
    “Deficient         performance      may     be     established      by    showing        that
    counsel’s         representation     fell       below    an   objective        standard    of
    reasonableness.”             
    Id.
        “Generally, to establish prejudice, a
    defendant must show that there is a reasonable probability that,
    but       for    counsel’s    unprofessional        errors,       the    result    of     the
    proceeding would have been different.”                    
    Id.
    “Decisions concerning which defenses to pursue are matters
    of trial strategy and are not generally second-guessed by this
    Court.”          State v. Prevatte, 
    356 N.C. 178
    , 236, 
    570 S.E.2d 440
    ,
    472 (2002), cert. denied, 
    538 U.S. 986
    , 
    155 L. Ed. 2d 681
     (2003)
    (citations omitted).
    In this case prior to trial, Defendant filed a motion to
    suppress and motion in limine requesting that the trial court
    prohibit the State from introducing evidence pertaining to the
    information         contained       in    the     anonymous       tip    that      led    to
    Defendant’s arrest, which was stipulated to by the State.
    On    direct    examination,     Officer       Morgan    testified      that     he
    went to perform surveillance on a particular neighborhood based
    on    a    tip    about    drug    activity.        No   testimony       was    introduced
    -12-
    concerning    the   contents    of   the    tip.      On   cross-examination,
    however,     counsel   for     Defendant     asked    Officer    Morgan     more
    specific     questions       about   the     anonymous        tip,     including
    information regarding the make and model of Defendant’s car.
    Defense counsel asked, “[a]nd turns out also that that tip gave
    you information that perhaps [Defendant] hides his drugs in his
    vehicle; isn’t that correct?”         Officer Morgan responded, “That’s
    correct.”      Counsel   then    attempted     to    elicit    testimony    from
    Officer Morgan to confirm that there were no drugs “hidden”
    inside Defendant’s vehicle when he was stopped.                      On redirect
    examination, the State asked Officer Morgan questions regarding
    the information contained in the tip, including the statement
    that “there [were] narcotics being sold out of the house at
    night.”     Officer Morgan also said the tip was possibly from a
    family member, and “[t]here was a total of three, possible four
    calls from the same individual actually wanting to know why we
    hadn’t done something about it yet.”                The State put on record
    that   Defendant    “opened    the   door”    for    the   State’s     questions
    regarding the contents of the anonymous tip.
    Defendant relies on State v. Baker, 
    109 N.C. App. 643
    , 
    428 S.E.2d 180
    , disc. review denied, 
    334 N.C. 435
    , 
    433 S.E.2d 180
    (1993), in support of the proposition that “opening the door” to
    -13-
    the     evidence     in   this     case        fell     below     the     standard     of
    reasonableness.       In Baker, counsel for the defendant made errors
    pertaining to the “handling of the defendant’s prior convictions
    and the resulting jury instruction.”                   Id. at 645, 428 S.E.2d at
    478.     Specifically, counsel represented to the jury, in his
    opening statement and during the trial, that the defendant had
    no    criminal     record.      The   prosecution         responded      by   filing    a
    motion    to     introduce   the      defendant’s        criminal       record,   which
    showed     that     the   defendant,           in     fact,     had     several   prior
    convictions, including felonious breaking and entering, larceny,
    possession of amphetamine drugs, and operating a motor vehicle
    with a suspended license.             The convictions were twenty-five to
    twenty-nine years old, and the trial court stated, “I believe it
    would not have been admissible save and except for what you told
    this jury.”        Id. at 647, 428 S.E.2d at 479.                     During the trial
    court’s charge to the jury in Baker, the trial court instructed
    that “[y]ou may consider any prior criminal convictions and/or
    prior acts tending to show a lack of truthfulness as well as
    showing truthfulness, but I specifically instruct you that any
    prior    convictions      may    only     be    considered       on     the   issue    of
    credibility or believability. Other than that, they may not be
    considered by you for any other purpose in the case itself.”
    -14-
    Id. at 648, 428 S.E.2d at 479.                This was at odds with the trial
    court’s statement at the time the prior records were introduced:
    “[I]t’s    received     for    the       limited    purpose     of    dispelling       what
    could be a false impression that counsel said was inadvertently
    created.”       Id. (emphasis in original).                  Counsel did not object
    to the trial court’s instruction, and “allowed the jury to be
    instructed that they could only consider the defendant’s prior
    convictions as they may or may not impugn on the defendant’s
    credibility.”        Id. at 648, 428 S.E.2d at 479.                  This Court held,
    on the foregoing facts, that “defense counsel’s conduct was in
    error and deprived the defendant of a fair trial.”                           Id. at 649,
    428 S.E.2d at 480.
    We believe this case is distinguishable from Baker.                            Here,
    the theory of the State’s case against Defendant depended on
    Defendant’s      constructive            possession     of    drugs     in    a   shared
    bedroom.        In   order    to    provoke       doubt,     counsel    for    Defendant
    needed     to   show   that        the    police      officers       were    focused    on
    Defendant to the exclusion of other suspects.                        It is conceivable
    that counsel for Defendant sought to achieve this by revealing
    factual inconsistencies contained in the tips, even though the
    evidence would have been otherwise inadmissible.                        “In reviewing
    an ineffective assistance claim, we resist the urge to second-
    -15-
    guess trial counsel’s actions.”             State v. Augustine, 
    359 N.C. 709
    , 733, 
    616 S.E.2d 515
    , 532 (2005), cert. denied, 
    548 U.S. 925
    , 
    165 L. Ed. 2d 988
     (2006).            “Because counsel is given wide
    latitude in matters of strategy, . . . defendant must overcome
    the presumption that, under the circumstances, the challenged
    action   might     be   considered    sound     trial   strategy[.]”       
    Id.
    (citations   and    quotation     marks   omitted).     This,    we   believe,
    Defendant has failed to do.          We do not believe, on the facts of
    this case, that counsel was objectively unreasonable.
    III: Motion for Appropriate Relief
    In Defendant’s final argument, he contends that the trial
    court    improperly     denied    Defendant’s     motion   for   appropriate
    relief, and that Defendant is entitled to a new trial.                      We
    disagree.
    Our standard of review for a motion for appropriate relief
    is well established.       “When a trial court’s findings on a motion
    for appropriate relief are reviewed, these findings are binding
    if they are supported by competent evidence and may be disturbed
    only upon a showing of manifest abuse of discretion.”                 State v.
    Lutz, 
    177 N.C. App. 140
    , 142, 
    628 S.E.2d 34
    , 35 (2006) (citation
    omitted).     “However, the trial court’s conclusions are fully
    reviewable on appeal.”      
    Id.
    -16-
    In   March     2011,        our    Legislature     enacted      the   Forensic
    Sciences Act, requiring all forensic science professionals in
    the   State     Crime       Lab     to    obtain      individual      certification
    consistent       with        the         International       Organization        for
    Standardization.        2011 N.C. Sess. Law 19 § 4; 2011 N.C. Sess.
    Law 307 § 8.         On 14 June 2012, after the trial in this case,
    counsel for Defendant was notified by the District Attorney that
    Ms. Andrews failed her certification test.                    Defendant filed a
    motion for appropriate relief arguing he should be awarded a new
    trial because Ms. Andrews should not have been qualified as an
    expert.
    In its order denying Defendant’s motion, the trial court
    found, inter alia, as follows:                 During the trial, Ms. Andrews
    was   offered   by    the    State       as   an   expert   witness    in   forensic
    chemistry, without objection by Defendant; she testified that
    the total weight of the controlled substance submitted to her
    was 47 grams; and that the substance contained therein was crack
    cocaine.      After the trial, the Office of the District Attorney
    in Buncombe County learned Ms. Andrews had failed an exam given
    to her in an effort to comply with the Forensic Sciences Act.
    The Office immediately informed counsel for the Defendant of
    this information on 13 June 2012.                  The substance was retested by
    -17-
    Mr. Piwowar, who determined that the controlled substance was
    crack cocaine with a total weight of 42.9 grams, well in excess
    of the 28 grams necessary to convict Defendant.
    Based    on   the   findings,   the    trial   court   concluded   as   a
    matter of law the following:
    1. The Defendant        received       a   fair   and
    impartial trial.
    2. The Defendant’s Constitutional              rights
    were not violated or denied.
    3. The “newly discovered evidence[,]” .           . .
    that Special Agent Andrews had failed             the
    examination, would not have resulted in           her
    not being qualified as an expert in               the
    field of Forensic Chemistry.
    4. That the analysis of the controlled
    substances by both Special Agent Andrews and
    Special Agent Piwowar were conducted in
    accordance with widely accepted reliable
    principles and methods and were and are
    admissible.
    5. That the “newly discovered evidence” was
    not withheld by the State but was made known
    to   the  Defendant   immediately  upon  the
    District Attorney[’s]    office being made
    aware of the evidence.
    6. That the “newly discovered evidence”
    merely tends to impeach or discredit the
    testimony of Special Agent Andrews and only
    goes to the weight and not the admissibility
    of her testimony.
    7. That the “newly discovered evidence” is
    not of such a nature that a different result
    will probably be reached at a new trial. To
    -18-
    the contrary, evidence at a new trial would
    again establish sufficient evidence for a
    jury to find beyond a reasonable doubt that
    the defendant possessed more than 28 grams
    but   less  than  200   grams  of  cocaine,
    possessed the cocaine with the intent to
    sell and deliver it and possessed drug
    paraphernalia.
    The   trial    court   also    stated    that   the    admission    of   evidence
    regarding     Ms.   Andrews’    exam    failure   would     probably     not   have
    resulted in a different outcome given the other evidence at
    trial, including Defendant’s own admission to an officer prior
    to his arrest that he possessed about an ounce and a half of
    cocaine, which is equal to 42.525 grams.
    On appeal, Defendant does not argue that the trial court’s
    findings of fact are not supported by the evidence.                       Rather,
    Defendant contends that under State v. Allen, __ N.C. __, __,
    
    731 S.E.2d 510
    , 520 (2012), disc. review denied, 
    366 N.C. 415
    ,
    
    732 S.E.2d 582
     (2012), the State was required to disclose the
    information concerning Ms. Andrews’ failure of her certification
    test.     In Allen, this Court explained Brady v. Maryland, 
    373 U.S. 83
    , 
    10 L. Ed. 2d 215
     (1963), in which the United States
    Supreme   Court     held   that   “suppression        by   the   prosecution     of
    evidence favorable to an accused . . . violates due process
    where the evidence is material either to guilt or to punishment,
    irrespective of the good faith or bad faith of the prosecution.”
    -19-
    
    373 U.S. at 87
    , 
    10 L. Ed. 2d at 218
    .                            “To establish a Brady
    violation,        a       defendant       must    show   (1)    that       the    prosecution
    suppressed evidence; (2) that the evidence was favorable to the
    defense; and (3) that the evidence was material to an issue at
    trial.”        State v. McNeil, 
    155 N.C. App. 540
    , 542, 
    574 S.E.2d 145
    , 147 (2002), disc. review denied, 
    356 N.C. 688
    , 
    578 S.E.2d 323
     (2003) (citing Brady v. Maryland, 
    373 U.S. 83
    , 
    10 L. Ed. 2d 215
     (1963)).              “Evidence is considered ‘material’ if there is a
    ‘reasonable probability’ of a different result had the evidence
    been disclosed.”             State v. Berry, 
    356 N.C. 490
    , 517, 
    573 S.E.2d 132
    , 149 (2002) (citation omitted).
    In     Defendant’s          brief    on    appeal,      he   contends       that   “the
    defense     had       a    right    to     the    information       that    the    testifying
    chemical analyst did not pass the certification exam”; however,
    Defendant concedes that he “is not asserting that the District
    Attorney’s Office possessed this information prior to trial[,]
    [b]ut    it     is        clear    from     the    record   that      the    results      were
    available in January of 2012 and the SBI did not disclose the
    information to the District Attorney.”                         Defendant also contends
    that the results of Ms. Andrews’ failed examination “would have
    been    the    subject        of    cross-examination          questions         directed   to
    impeach her qualifications[.]”
    -20-
    We believe Defendant’s argument must fail.     At most, we
    believe Defendant has shown that the newly discovered evidence
    may have changed the verdict; however, we do not believe there
    was a “‘reasonable probability’ of a different result had the
    evidence been disclosed” at the time of the trial in this case.
    Berry, 356 N.C. at 517, 
    573 S.E.2d at 149
     (emphasis added).   We
    affirm the trial court’s order denying Defendant’s motion for
    appropriate relief.
    NO ERROR, in part; AFFIRMED, in part.
    Judge McGEE and Judge McCULLOUGH concur.
    Report per Rule 30(e).