Opinion
No. COA12–1351.
2013-05-7
STATE of North Carolina v. Kenneth FULLER, Defendant.
Attorney General Roy A. Cooper, III by Special Deputy Attorney General Hilda Burnett–Baker, for the State. M. Alexander Charns, for defendant-appellant.
Appeal by defendant from Judgment entered 9 May 2012 by Judge Linwood O. Foust in Superior Court, Mecklenburg County. Heard in the Court of Appeals 11 April 2013. Attorney General Roy A. Cooper, III by Special Deputy Attorney General Hilda Burnett–Baker, for the State. M. Alexander Charns, for defendant-appellant.
STROUD, Judge.
Kenneth Fuller (“defendant”) appeals from a jury conviction of possession with intent to sell or deliver cocaine. Defendant argues the trial court erred in denying his motion to suppress evidence. Defendant further argues the trial court erred in allowing the State to enter into evidence phone recordings of defendant and erred in not allowing defendant to enter into evidence an officer's handwritten transcription of these phone recordings. Because defendant has failed to preserve these issues for our review, we have no basis on which to find error.
I. Background
Police arrested defendant on or about 20 April 2011 for unlawfully, willfully, and feloniously selling and delivering crack cocaine. Defendant filed a motion to suppress the crack cocaine and other evidence found in the apartment on or about 15 March 2012, which the trial court denied.
The evidence presented at the hearing on the motion to suppress generally showed that police responded to a tip from an apartment manager of drug activity in an apartment rented to Mark Jameson. The trial court found that a woman in the apartment allowed the police to enter and told them that defendant was inside and that he smoked crack. The police found defendant in the bathroom with a bag of crack cocaine his hand. No evidence was presented that defendant resided at that apartment.
Defendant pleaded not guilty and the case went to jury trial. The State's evidence at trial included photos of the bag of cocaine; a black case and money found in the bathroom with defendant; the cocaine from the bag; a report confirming that the substance in the bag was cocaine; and recordings of phone calls made from the Mecklenburg County Jail which were identified based upon unique identification numbers assigned to defendant. The court would not allow defendant to enter into evidence a handwritten transcript made by Officer Eubanks of the phone call recordings.
The jury found defendant guilty of felony possession with intent to sell or deliver cocaine on 9 May 2012. Defendant was sentenced to 11–14 months of confinement in the Division of Adult Correction. Defendant gave timely notice of appeal in open court.
II. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress evidence admitted at trial. Because defendant did not properly preserve this issue for appeal, we do not address the merits of his argument.
“[A] pretrial motion to suppress evidence is not sufficient to preserve for appellate review the issue of whether the evidence was properly admitted if the defendant fails to object at the time the evidence is introduced at trial.” State v. Harwood, ––– N.C.App. ––––, ––––, 727 S.E.2d 891, 896 (2012) (citation omitted); but see State v. Golphin, 352 N.C. 364, 405–06, 533 S.E.2d 168, 198–99 (2000) (addressing the merits of defendant's appeal pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure where the trial court denied defendant's motion to suppress a statement, and the defendant did not object at the time the statement was offered into evidence), cert. denied sub nom Golphin v. North Carolina, 532 U.S. 931, 149 L.Ed.2d 305 (2001). Here, defendant did not object at the time evidence was presented at trial that such evidence was the fruit of a warrantless search and seizure and we decline to address the appeal under Rule 2. Therefore, this argument was not properly preserved for appeal.
III. Admission of Phone Call
Defendant next argues that under N.C. Gen.Stat. § 8C–1, Rule 901(a), the telephone conversation submitted by the State as exhibit 7 was not authenticated and that the admission of that evidence constituted reversible error. Specifically, defendant argues that the State did not provide evidence that it was defendant's voice on the recording.
We review the trial court's determination to admit or exclude evidence for abuse of discretion. State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). “Where a party states the ground of his objection to evidence below he cannot rely upon a different ground in this court.” Renn v. Seaboard Air Line Ry., 170 N.C. 128, 141, 86 S .E. 964, 970 (1915) (citation and quotation marks omitted), aff'd, 241 U.S. 290, 60 L.Ed. 1006 (1916).
Here, defendant objected at trial to the admission of the recorded phone calls on the grounds that the witness, a Mecklenburg County Sheriff's Office employee responsible for maintaining the jail's phone recordings, was not the proper witness to admit a CD containing the recordings as a business record. On appeal, defendant abandons this argument and instead contends that the trial court abused its discretion in admitting the calls because they had not been properly authenticated by evidence identifying the defendant's voice on the recording, under Rule 901.
It is true that even if the recordings were not excludable as hearsay under Rule 802, they must still be properly authenticated under Rule 901, see State v. Stager, 329 N.C. 278, 315, 317, 406 S.E.2d 876, 897–98 (1991), but defendant did not object on that ground at trial. At trial, defendant's objection was solely based upon the State's attempt to admit its compilation of the jail phone calls as a business record, arguing that it was a record of the telephone company and not the sheriff's department:
You know, the correct person to come to say this went through our system is Global Tel. And if this had been internal, if they had their own system and, you know, they handle this, they can say this is our system; this is what we have control of. But this goes through Global Tel, and a Global Tel rep should come and say this come [sic] through our system.
Defendant did not raise any objection under Rule 901 that his voice the recording was not properly identified. The trial court properly addressed only the objection defendant made. Defendant does not argue that the admission of this evidence constitutes plain error. Therefore, this issue has also not been preserved for our review.
IV. Exclusion of Officer's Notes
Defendant argues the trial court should have allowed defendant to enter into evidence a copy of the investigating officer's handwritten transcription of a phone recording made while defendant was in jail, and that defendant's attorney should have been able to cross-examine the State's witness on what he recalled defendant saying in those calls using the transcription. Defendant also argues that the exclusion of this evidence violated defendant's Sixth Amendment confrontation rights.
Defendant cites no cases and includes no reasoning to support his confrontation and cross-examination arguments. Therefore, we consider these issues abandoned. N.C.R.App. P. 28(b)(6) (“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.”).
As to the exclusion of the officer's transcription, Defendant has not included this document in the record on appeal and it is not obvious from the record what the significance of the officer's handwritten transcription of the phone calls admitted into evidence could be. As discussed above, the actual recordings of the phone calls were in evidence and the jury heard them; if defendant's argument was that the officer's testimony regarding the calls reflected some misunderstanding of the content of the calls, he would still be able to demonstrate this based upon the recordings themselves. Indeed, according to the trial exhibit log, defendant did not proffer the transcription as an exhibit at trial. Therefore, he failed to preserve this issue for our review. See State v. Kuplen, 316 N.C. 387, 412, 343 S.E.2d 793, 807 (1986) (“[T]the defendant has not shown in the record what the witness' answer would have been to this question and thus how it was relevant. By this omission, he has failed to show prejudice by the exclusion of the testimony.”); State v. Norman, 196 N.C.App. 779, 783, 675 S.E.2d 395, 398 (“In order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.” (citation, quotation marks, and brackets omitted)), disc. rev. denied, 363 N.C. 587, 683 S.E .2d 382 (2009).
The transcript shows that the officer's transcription was marked for identification as defense exhibit 3, but the evidence log shows that it was never proffered. Exhibit 3 in the log is a photo of cocaine and a razor blade.
V. Conclusion
None of the issues raised by defendant on appeal have been properly preserved for our review. He has therefore given us no basis on which to find error below.
NO ERROR. Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).