State v. Graham ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-423
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Richmond County
No. 10 CRS 52627
ALICE DEWANNA GRAHAM
Appeal by defendant from judgment entered 6 November 2013
by Judge Mark Klass in Richmond County Superior Court. Heard in
the Court of Appeals 22 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Gore, III, for the State.
Jon W. Myers for defendant-appellant.
McCULLOUGH, Judge.
Defendant Alice Dewanna Graham appeals from a judgment
entered upon a jury verdict finding her guilty of trafficking in
cocaine by possession. The trial court sentenced defendant to a
mandatory term of 70 to 84 months imprisonment. Defendant
appeals.
At trial, the State’s evidence tended to show that in
September 2010 law enforcement officers set up a controlled buy
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of cocaine targeting Anthony McLaurin. On 13 September 2010 an
informant telephoned McLaurin to set up a drug deal wherein
McLaurin would supply the informant with several ounces of
cocaine. The deal was ultimately set to be conducted at a strip
mall in Rockingham, North Carolina, on 15 September 2010, and
the informant was instructed to look for a gray Ford Explorer.
Under the surveillance of law enforcement officers, the
informant drove to the strip mall and entered a gray Ford
Explorer. Defendant sat in the driver’s seat and was the only
person in the vehicle apart from the informant. The informant
briefly exited the Ford Explorer, signaling law enforcement
officers to move in. Officers took defendant into custody and
found a package containing nine ounces of cocaine on the front
passenger floorboard of the Ford Explorer.
Defendant now argues the trial court erred by allowing into
evidence testimony from the informant that he knew defendant
from previous encounters where she delivered drugs to him.
Defendant asserts that the trial court should have excluded the
testimony because the court had already sustained an objection
to similar testimony. We disagree.
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During the State’s questioning of its informant, the
prosecutor inquired as to the informant’s prior acquisitions of
cocaine:
Q And who normally brings the drugs when you
order it?
A Well - like bring it?
Q Yes, sir.
A She brought it to me like –-
Immediately upon hearing the informant implicate defendant as
the person who had previously brought him the drugs, defendant’s
trial counsel objected and the trial court excused the jury from
the courtroom. The court then conducted a voir dire of the
informant and heard arguments from counsel as to whether it
should allow the informant’s testimony under Rules 403 and
404(b) of the North Carolina Rules of Evidence. The court
sustained defendant’s objection, whereupon it called the jury
back into the courtroom and the State proceeded with its
questioning of the informant.
Shortly thereafter, the informant again implicated
defendant as the person who brought him cocaine in prior
transactions:
Q Let’s talk a little about your
relationship with Anthony McLaurin, who
was the subject of the drug transaction.
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How long have you known Anthony?
A It was probably -- When I was in school.
Probably since like 2007.
Q Was it unusual for him to send somebody
else to bring the drugs when you ordered
it?
A I used to get it from him. But during that
time he would –-
Q He’d send other people?
A Yeah. He would send her - just her. That’s
the only other person I seen besides him.
Defendant’s trial counsel did not object to this second
identification of defendant as the person who would bring
cocaine to the informant, and defendant now argues it was error
for the trial court to allow the second identification into
evidence.
We first address the standard of review under which
defendant’s argument will be decided. Generally, “[w]here
evidence is admitted without objection, the benefit of a prior
objection to the same or similar evidence is lost, . . . [and a]
defendant is entitled to relief . . . only if he can demonstrate
plain error.” State v. Berry, 143 N.C. App. 187, 193, 546
S.E.2d 145, 151 (quotations and citations omitted), disc. review
denied, 353 N.C. 729, 551 S.E.2d 439 (2001). Defendant,
however, argues her objection to the first instance in which the
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informant identified her as a person who brought him cocaine was
sufficiently contemporaneous with the second instance that she
was not required to renew the objection to the second
identification. See State v. Hazelwood, 187 N.C. App. 94, 652
S.E.2d 63 (2007). However, the first identification of
defendant by the informant was made before her objection and,
because she failed to make a motion to strike the testimony
after her objection was sustained, she waived her objection and
the testimony remained in evidence. See State v. Price, 301
N.C. 437, 451, 272 S.E.2d 103, 112-13 (1980); see also State v.
Gamez, ___ N.C. App. ___, ___, 745 S.E.2d 876, 877, (“Where
inadmissibility of testimony is not indicated by the question,
but appears only in the witness’ response, the proper form of
objection is a motion to strike the answer, or the objectionable
part of it, made as soon as the inadmissibility is evident.
When counsel objects after a witness has answered the question
and fails to make a motion to strike, the objection is waived.”
(citations and quotation marks omitted)), disc. review denied,
367 N.C. 256, 749 S.E.2d 848 (2013). Accordingly, regardless of
whether or not defendant’s initial objection was sufficiently
contemporaneous to the second identification, defendant waived
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the objection and this Court will only review her argument under
the plain error standard of review.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affects the fairness,
integrity or public reputation of judicial
proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations, quotation marks, and brackets omitted); see also
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)
(“Under the plain error rule, defendant must convince this Court
not only that there was error, but that absent the error, the
jury probably would have reached a different result.”).
Here, even assuming admission of the second identification
was error, defendant cannot show the prejudice necessary to
establish plain error. Defendant waived her objection to the
first identification by not moving to strike the informant’s
testimony, and thus evidence that defendant had previously
brought cocaine to defendant was already before the jury.
Defendant does not challenge the admissibility of the first
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identification, and thus we cannot say the second identification
had a probable impact on the jury’s verdict. Accordingly, we
hold defendant received a fair trial, free from prejudicial
error.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).