Opinion
No. 04-1064.
Filed 15 November 2005.
Forsyth County Nos. 02 CRS 10092; 02 CRS 51618.
Appeal by defendant from judgment entered 24 July 2003 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 26 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., for the State. Samuel L. Bridges for defendant-appellant.
Defendant Recio Lamont Harris was convicted of possession of cocaine and pled guilty to having achieved the status of habitual felon. Defendant's sole argument on appeal is that the trial court erred in admitting testimony regarding the criminal background of a person who was arrested at the same time as defendant. Because defendant did not specifically object to the admission of the testimony, has not demonstrated plain error, and affirmatively elicited the same information on cross-examination, we hold that defendant received a trial free of prejudicial error.
Facts
The evidence presented at trial tended to show that on the morning of 12 February 2003, Detective K.L. Jones of the Winston-Salem Police Department went to the Hampton Inn on University Parkway as part of her drug interdiction duties. In the hotel's parking lot, Detective Jones noticed a familiar-looking Nissan 300. The detective called to verify the Nissan 300's registration and entered the hotel to review its guest registration cards. The card filled out by the guest in Room 213 caught the detective's attention, and she decided to begin surveillance on that room.
After about five or 10 minutes of surveillance, Kenyon Grooms, who was known to Detective Jones, exited Room 213 with an unknown individual and got into the Nissan 300. Grooms entered the driver's side and drove the vehicle out of the parking lot. Detective Jones, aware that Grooms' driver's license was revoked, radioed for a uniformed officer to stop him.
Once the car was stopped, Detective Jones approached the passenger side of the vehicle and spoke with defendant, who was the passenger. Detective Jones noticed immediately a "big odor of marijuana" emanating from the stopped vehicle. The detective had defendant exit the vehicle and instructed the uniformed officer to arrest Grooms for driving on a revoked driver's license. After Grooms was placed under arrest, Detective Jones searched his vehicle. In the ashtray between the seats, she found a warm marijuana "blunt." As Detective Jones was placing defendant and Grooms under arrest for possession of marijuana, defendant asked, "[H]ow can you do that? We smoked it earlier."
Defendant was transported to the magistrate's office, where he was strip-searched. The search yielded a banded roll of cashtotaling $437.00 in defendant's left jacket pocket and some small pieces of what was later determined to be cocaine in his left front pants pocket. As a result, defendant was also charged with possession of cocaine. When notified of the additional charge, defendant stated that he had "snorted" it the night before.
The jury found defendant guilty of possession of cocaine, and defendant pled guilty to having attained the status of habitual felon. The trial court sentenced defendant to a presumptive sentence of 94 to 122 months imprisonment.
Discussion
Defendant argues on appeal that the trial court erred in admitting testimony of Detective Jones regarding Kenyon Grooms' prior criminal activity. Defendant points to the following testimony on direct examination of Detective Jones:
Q. So as a result of looking at that card and getting information off of it, what did you do?
A. I started conducting surveillance on room 213 because I was familiar with the occupant that had registered in that room.
Q. All right. So as you began to conduct your surveillance, were you also familiar with that subject's face?
A. Yes, I was.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. And is that a subject you were going to be looking for?
A. Yes, he's been involved in several violations of controlled substances and we're very familiar with this subject in the unit that I work in.
Q. And when you began your surveillance did you have a name as well that you were looking for?
A. Yes, I did.
Q. What was the subject's name?
A. Kenyon Grooms.
(Emphasis added.) Defendant argues that Detective Jones' testimony regarding Grooms' activities was erroneously admitted over his objection because it was irrelevant and included hearsay.
The basis for defense counsel's objection to the question regarding whether the detective was familiar with Grooms' face is not apparent from the record. More importantly, there was no objection to the question that elicited the challenged testimony nor any motion to strike that testimony, which was not necessarily responsive to the question. See State v. Reid, 322 N.C. 309, 312, 367 S.E.2d 672, 674 (1988) (holding that defendant's objection and motion to strike after the witness had answered the question came too late to preserve the objection for appellate review).
In his assignments of error, defendant alternatively contended that the admission of the evidence constituted plain error. In the absence of a timely objection, we may only review the admission of the testimony for plain error. See N.C.R. App. P. 10(c)(4) ("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 isspecifically and distinctly contended to amount to plain error."). Nevertheless, we hold that defendant has failed to demonstrate "`that a different result probably would have been reached but for'" any error. State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641, 121 S. Ct. 1660 (2001). The State offered evidence of cocaine residue in defendant's pocket, and defendant spontaneously stated that he had "snorted" the cocaine the night before. Defendant has not explained how the characterization of Grooms' activities made a dispositive difference in the jury's conviction of defendant for possession of cocaine.
Moreover, defendant affirmatively elicited the same information later on cross-examination.
Q: As part of your investigation once you went to the motel register, this man Grooms was known to you, is that right?
A: Yes, sir.
. . . .
Q: . . . Grooms was well known to you?
A: Yes.
Q: And he's apparently some sort of dealer in crack or whatever — in cocaine?
A: Yes, sir. He's a dealer in Winston-Salem.
"It is well settled that `[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.'" State v. Frogge, 351 N.C. 576, 582-83, 528 S.E.2d 893, 898 (quoting State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984)), cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000). There is no suggestion in the record, and defendant does not argue, that this cross-examination was designed to blunt the effect of Detective Jones' testimony on direct examination and would not otherwise have been conducted. Because defendant elicited the same information on cross-examination, defendant cannot meet his burden of showing plain error. Accordingly, the assignment of error is overruled.
We also note that despite defendant's assertion of plain error in the heading for his argument, he provides no specific analysis in his brief in support of his assertion that the claimed error is so fundamental that justice could not have been done. Defendant has, therefore, waived appellate review of this issue. See Cummings, 352 N.C. at 637, 536 S.E.2d at 61 ("By simply relying on the use of the words `plain error' as the extent of his argument in support of plain error," a defendant fails to make an effective argument for plain error and thereby waives appellate review.).
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).