Opinion
No. COA02-1173
Filed 6 May 2003 This case not for publication
Appeal by defendant from judgments entered 24 January 2002 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State. J. Clark Fischer for defendant appellant.
Mecklenburg County Nos. 01 CRS 9675 01 CRS 9676 01 CRS 9677 01 CRS 9678.
Defendant appeals his convictions, following a jury trial, for trafficking in cocaine by possession, trafficking in cocaine by sale, trafficking in cocaine by delivery, and conspiracy to traffic in cocaine. We find no error.
The State's evidence tended to show Charlotte-Mecklenburg Police Officer W.D. Carey (Carey) made undercover cocaine purchases from defendant and his associates, Romero and Sergio Hernandez, on 22 February 2001 and 5 March 2001. Carey testified that he bought an ounce of cocaine from defendant for nine hundred dollars ($900.00) on 22 February 2001 in the parking lot of Kilborne Park, at a meeting arranged by a confidential reliable informant. When Carey met defendant, he was sitting in the passenger's seat of a grey van driven by Sergio. As Carey approached the van, Sergio asked him, "[D]o you have it? You got it?" Carey replied, "Show me something[,]" and saw defendant hand Sergio the cocaine. After they had completed the transaction, defendant introduced himself to Carey as "Raul[.]" Carey asked defendant about making additional purchases, and the two men exchanged telephone numbers.
Carey telephoned defendant later that day to report his satisfaction with the cocaine and to see if he could purchase more. Defendant met Carey at a Mexican goods' store at 7:00 p.m. and sold him an additional quantity of cocaine for one thousand six hundred dollars ($1,600.00). Carey asked defendant and the Hernandezes if they could get him a kilogram of the drug at a "good price[.]" He was told that the men would need "about a week" to arrange a deal of that size.
Carey received a call from defendant at 11:30 p.m. on 4 March 2001. Defendant said he had the cocaine and asked Carey to come for it immediately. Carey arranged to meet defendant the next morning at a Walmart store. They agreed that Carey would purchase half of the kilo for sixteen thousand dollars ($16,000.00). Defendant called Carey on his cellular phone the following morning. He told Carey that he would be wearing a Miami Dolphins jacket and would be standing either in front of the Walmart or in the parking lot beside the van. Carey pulled into the parking lot and saw defendant with Sergio. They led Carey to the van. When Carey asked defendant for the drugs, Sergio lifted his shirt to reveal a large ziplock bag containing smaller bags of cocaine. Carey gave the take down signal as he examined the contraband. Uniformed officers arrived and arrested everyone at the scene.
In his lone argument on appeal, defendant challenges Carey's testimony identifying his voice on the 4 March 2001 telephone call. Defendant's initial objection to Carey's identification testimony was sustained by the trial court, as follows:
[CAREY:] On the 4th of March, 2001, . . . I received a phone call from the person I [k]now as Raul.
[DEFENSE COUNSEL]: OBJECTION.
THE COURT: SUSTAINED, without some foundation.
In response to the court's ruling, the prosecutor asked Carey about his prior face-to-face and telephonic conversations with defendant on 22 February 2001. Carey testified that, based upon these interactions, he was able to recognize defendant by voice. The prosecutor again asked Carey about the identity of the caller on 4 March 2001, as follows:
[PROSECUTOR:] So, on March 4th, when you received a phone call from someone who identified himself as Raul, did you have a recognition of that voice, on the other end?
[CAREY:] Yes ma'am. I did.
[PROSECUTOR:] And, whose voice did you recognize it to be?
[CAREY:] It was that of [defendant].
Defendant did not object to this testimony and thus waived his earlier objection. Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence. See State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985).
The North Carolina Rule of Appellate Procedure 10(c)(4) provides that:
In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4). Defendant has not argued plain error on appeal. Therefore, his assignment of error is overruled.
Assuming arguendo that he had properly preserved the issue for appeal, we note that there nevertheless was sufficient evidentiary support for Carey's voice identification testimony under North Carolina Rule of Evidence 901(a) and (b)(5). Particularly, Carey's testimony establishing the basis for his familiarity with defendant's voice, as well as the topic of the call and defendant's subsequent consistent conduct were sufficient foundation for the voice identification. See Ingle v. Allen, 69 N.C. App. 192, 198, 317 S.E.2d 1, 4, disc. review denied, 311 N.C. 757, 321 S.E.2d 135 (1984); see also State v. Williams, 288 N.C. 680, 698, 220 S.E.2d 558, 571 (1975) ("Identity of the caller may be established by testimony that the witness recognized the caller's voice, or by circumstantial evidence"). Any issue regarding the strength of the identification was a question of fact for the jury. Ingle, at 198, 317 S.E.2d at 4 (citing State v. Coleman, 270 N.C. 357, 364, 154 S.E.2d 485, 490 (1967)).
Defendant's remaining assignments of error are not addressed in his brief to this Court and are therefore deemed waived under the North Carolina Rules of Appellate Procedure, Rule 28(a).
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).