Opinion
No. COA 14–942.
04-07-2015
STATE of North Carolina v. Kevin Crawford GUNTER.
Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State. Jarvis John Edgerton, IV, for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State.
Jarvis John Edgerton, IV, for defendant.
ELMORE, Judge.
On 22 November 2013, a jury found defendant guilty of conspiracy to manufacture methamphetamine, possession of methamphetamine, manufacturing methamphetamine, and possession of methamphetamine precursor chemicals. The trial court entered two consecutive judgments, each sentencing defendant to 110–141 months of active imprisonment. After careful consideration, we hold that defendant received a trial free of prejudicial error.
I. Facts
On 22 January 2010, law enforcement officers Jerry Presnell, Jim Schick, and Mark Mease (the officers) arrived at 51 Bird View Lane to arrest Kevin Crawford Gunter (defendant) pursuant to an order for arrest for a failure to appear on a felony probation violation. Officer Schick approached the residence and knocked on the front door. Christopher Lindsey (co-defendant) answered the door and Officer Schick asked for defendant. Co-defendant called out defendant's name and invited Officer Schick inside the living room. Defendant entered the living room with a pair of cutting pliers and batteries in his hands, and Officer Schick informed him about the order for arrest. At that moment, Detective Mease heard “raised voices and arguing.” He observed defendant and Officer Schick standing close to each other with codefendant approaching them. Detective Mease then assisted Officer Schick in handcuffing defendant “for officer safety and pursuant to arrest[.]” The officers also detained co-defendant. The officers noticed a smell emanating from the residence, and co-defendant stated that he and defendant “were painting in the garage.” Codefendant invited the officers to look inside the garage through a large pane glass window.
At trial, the officers testified about a statement made by co-defendant to Detective Mease after Detective Mease looked through the window. Co-defendant did not testify for the State, and when defendant called him as a witness, he invoked his Fifth Amendment right against self-incrimination to all substantive questions. Officer Presnell testified to the following:
PROSECUTOR: What did you observe happen with Detective Mease?
OFFICER PRESNELL: Detective Mease went in and looked [into the garage], and he came back and he requested—he asked the other subject there, [co-defendant], he said he wanted to speak with [co-defendant].
PROSECUTOR: Okay. And then what happened?
OFFICER PRESNELL: And so—well, [co-defendant] went over there to where Mease was in the dining room.
PROSECUTOR: All right. Then what happened?
OFFICER PRESNELL: He asked him point-blank if that was a meth lab or if that was what was that [sic] in the garage, and he stammered. And then he asked him pointblank, ‘Is that a meth lab?’
PROSECUTOR: Okay. Then what happened?
OFFICER PRESNELL: [Co-defendant] acknowledged that it was, from what I can recall.
Officer Schick testified:
OFFICER SCHICK: [Detective Mease] approached [codefendant] ... and asked him if that was a lab, for officer safety.
PROSECUTOR: Okay. Did he indicate what kind of lab he was asking about?
OFFICER SCHICK: Meth lab.
PROSECUTOR: Okay. And in your training and experience as a law enforcement officer, what is ‘meth’ short for?
OFFICER SCHICK: Methamphetamine.
PROSECUTOR: Okay. And did Mr. Lindsey respond to Detective Mease's question?
OFFICER SCHICK: He said, ‘Yes, it is.’
Finally, Detective Mease testified about his conversation with co-defendant:
DETECTIVE MEASE: I asked [co-defendant] if I could speak to him in the kitchen area[.] ... I walked [codefendant] in there and asked him for officer safety, which is common practice for us, I said, “Is that a meth lab?”
PROSECUTOR: And did he respond?
DETECTIVE MEASE: He said yeah, that [defendant] was cooking meth in there.
DEFENSE COUNSEL: Objection, your Honor.
THE TRIAL COURT: Sustained.
In response to learning about the presence of a meth lab, the officers evacuated everyone from the house due to safety concerns. The officers secured a search warrant and contacted the State Bureau of Investigation (S.B.I.) to conduct a hazardous materials clean-up.
After law enforcement searched the garage and the residence and conducted forensic testing of the contents found therein, defendant was indicted on felony counts of conspiracy to manufacture methamphetamine, trafficking in methamphetamine by possession, possession of methamphetamine, trafficking in methamphetamine by manufacturing, possession of methamphetamine precursor chemicals, and manufacturing methamphetamine. The jury found defendant not guilty of both trafficking charges and guilty of the remaining charges.
II. Analysis
a.) Constitutional and Hearsay Issues
Defendant argues the trial court erred by admitting co-defendant's prior statements through the officers' testimony at trial. Specifically, defendant asks this Court to review a Constitutional argument that the admission of co-defendant's prior statements through the officers' testimony violated his Sixth Amendment right to confront and cross-examine a witness. He also argues the officers' testimony regarding co-defendant's statements constituted inadmissible hearsay. Defendant requests that we review the Constitutional and hearsay issues for plain error.
Generally, a failure to object to an issue at the trial level precludes appellate review of that issue. SeeN.C. R.App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”). However, we “review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “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.” State v. Jordan, 333 N.C. 431, 440, 426 S.E .2d 692, 697 (1993). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and quotation marks omitted).
With respect to unpreserved Constitutional confrontation issues, the appellate courts of this State have been inconsistent in utilizing plain error review. See State v. Jones, 176 N.C.App. 678, 684, 627 S.E.2d 265, 269 (2006) (declining to address the merits of the defendant's Sixth Amendment Constitutional argument for plain error “[b]ecause defendant did not raise these [C]onstitutional issues at trial”); but see State v. Waddell, 351 N.C. 413, 417, 527 S.E.2d 644, 647 (2000) (“Notwithstanding defendant's lack of objection, and thus failure to preserve this issue for appellate review, we will review the Sixth Amendment confrontation question addressed by the opinion of the Court of Appeals for plain error.”).
Although our case law diverges on this issue, we will review defendant's unpreserved constitutional issue for plain error because our Supreme Court has repeatedly elected to do so. See id; see also State v. Mize, 315 N.C. 285, 294–95, 337 S.E.2d 562, 568–69 (1985) ; State v. Lemons, 352 N.C. 87, 92, 530 S.E.2d 542, 545 (2000). Defendant's hearsay issue is also subject to plain error review. See State v. Petty, 100 N.C.App. 465, 470, 397 S.E.2d 337, 341 (1990) (determining whether the admission of hearsay constituted plain error).
Here, defendant did not object when co-defendant's statements were offered at trial by Officers Presnell and Schick. Thus, we review for plain error their testimony that, according to co-defendant, the garage contained a methamphetamine (meth) lab. However, when Detective Meese testified that co-defendant told him the garage contained a meth lab and defendant “was cooking meth in there[,]” defendant objected, and the trial court sustained the objection. Thus, we will not address the admissibility of Detective Meese's testimony because plain error review is inapplicable as a result of defendant's timely objection. Additionally, under these circumstances, defendant cannot argue that the trial court erred by admitting Detective Meese's testimony when the trial court ruled in his favor and sustained his objection.
Assuming arguendothat Officers Presnell and Schick's trial testimony (that co-defendant told them the garage was a meth lab) violated defendant's Sixth Amendment confrontation right and constituted impermissible hearsay, defendant has failed to establish plain error. The State offered a plethora of evidence to show the garage contained a meth lab. Elizabeth Reagan, a special agent and forensic chemist with the North Carolina State Crime Laboratory testified that she conducted tests on numerous materials and compounds in the residence. Her tests indicated the presence of guaifenesin, pseudoephedrine and methamphetamine. She concluded that “the combination of pseudoephedrine and methamphetamine indicates to me that this was a clandestine manufacturing operation because that's the only circumstance that I know of where those two compounds would be found together.” Detective Mease, a clandestine lab certification holder qualified to assess labs, was satisfied that a meth lab existed in the garage during his encounter with defendant and co-defendant based on the presence of materials used in the process of manufacturing methamphetamine, such as glass jars containing coffee filters with a cloudy liquid, a lithium battery, and pliers in defendant's hands. He also smelled toluene, a solvent used in the manufacturing process of methamphetamine. Special agent Brad Casanova, a forensic chemist with the S.B.I. during the time of this investigation, went to 51 Bird View Lane and determined the specific method being employed at the meth lab at that location. He testified that “[b]ased on the items I found and the analysis of the evidence later at the lab, I determined that the ... Nazi method, which is a Birch reduction of pseudoephedrine to methamphetamine was being used.”
Thus, even if the admission of Officer Presnell and Schick's testimony regarding co-defendant's prior statements was error, other evidence established the presence of a meth lab in the garage. Thus, the absence of Officer Presnell and Schick's testimony would probably not have altered the jury's decision. Accordingly, defendant's plain error argument fails.
b.) Rule 2
Defendant also contends the officers' testimony about co-defendant's statements were initially admitted on a conditional basis for corroborative purposes with the understanding that co-defendant would later testify substantively, and the officers' testimony would corroborate co-defendant's testimony. Because codefendant asserted his Fifth Amendment right at trial, defendant argues, the officers' testimony about co-defendant's statements were inadmissible. Notwithstanding our ruling that any erroneous admission of Officer Presnell and Schick's testimony was not plain error, defendant asks us to apply Appellate Rule 2 to allow a de novoreview of the issue based on a theory that the State acted intentionally and in bad faith by offering co-defendant's statements through the officers while purportedly knowing that co-defendant would not testify.
North Carolina Appellate Procedure Rule 2 states:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C. R.App. P.R. 2. However, “Rule 2 ... must be invoked cautiously” in “exceptional circumstances[.]” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (citation and quotation marks omitted).
In our discretion, we decline to invoke Rule 2 in the present case to allow for a de novoreview of defendant's evidentiary issue on appeal. The record reveals no exceptional circumstance to exercise our authority under Rule 2, and we have already addressed the merits of defendant's appeal under a plain error standard of review. Accordingly, our refusal to invoke Rule 2 will not result in a manifest injustice to defendant.
III. Conclusion
In sum, even if the trial court erred by admitting co-defendant's statements through the testimony of Officers Presnell and Schick, any such error did not constitute plain error. Additionally, we decline to invoke Rule 2 to allow for a de novoreview of this evidentiary issue on appeal.
No prejudicial error.
Judges GEER and INMAN concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 22 November 2013 by Judge Marvin P. Pope in Haywood County Superior Court. Heard in the Court of Appeals 18 February 2015.