Opinion
No. COA03-425
Filed April 6, 2004 This case not for publication
Appeal by defendant from judgments entered 30 October 2002 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Steven A. Armstrong, for the State. Bryant Krager, P.A., by Duane K. Bryant, for defendant-appellant.
Guilford County, Nos. 02CRS023525, 02CRS083322, 02CRS083327.
Christopher Rashawn Baker ("defendant") appeals judgments sentencing him to 151 to 191 months imprisonment for trafficking by possession more than fifty pounds of marijuana, trafficking by transportation more than ten pounds of marijuana, and pleading guilty to being an habitual felon. For the reasons stated herein, we conclude the trial court did not err.
On 30 April 2002, Deputy M.H. Carrier ("Deputy Carrier") of the Guilford County Sheriff's Department stopped defendant after observing defendant driving a vehicle without wearing a seatbelt. When Deputy Carrier asked for defendant's driver's license and vehicle registration, defendant produced a valid registration, but responded he did not have his license. Although defendant told the deputy his North Carolina driver's license number, he was arrested for failing to actually carry the license while operating a vehicle.
After securing defendant in the patrol car, Deputy Carrier searched defendant's vehicle. A substance, believed to be marijuana, was found in two bags on the front passenger floor board. Defendant's vehicle was towed away following the search. Thereafter, Deputy Carrier secured a search warrant for defendant's residence, which resulted in the seizure of additional contraband Defendant was indicted later that day for trafficking by possession and by transportation of a controlled substance, as well as being an habitual felon.
On 13 September 2002, defendant filed a motion to suppress all the fruits of the search of his vehicle and residence. A hearing was held on 16 September 2002 at which, based on the evidence offered, the court made the following findings of fact relating to the events that took place prior to defendant being stopped for the seatbelt violation:
1) That Deputies with the Guilford County Sheriff's Department initiated a narcotic investigation involving the Defendant based upon information received through a confidential source.
2) That such investigation included extended surveillance observations of the Defendant's activities and background confirmation of his residential address and criminal history.
3) That on April 30, 2002 at or about 1:30 pm and in the course of the ongoing investigation, Deputy M.H. Carrier, assigned to mobile surveillance of the Defendant, observed that the Defendant was operating his car . . . while not wearing his seatbelt, this being in violation of G.S. 20-135.2A.
4) That Deputy Carrier communicated his observation to the lead investigating officer . . . wherein it was determined that the Deputy would attempt to execute a traffic stop of the Defendant.
Additional evidence offered at the suppression hearing, but not listed in the trial court's findings of fact, was that prior to stopping defendant, Deputy Carrier had observed defendant carrying two bags to his vehicle that were believed to contain contraband Deputy Carrier had also learned from earlier briefings that defendant was a duly licensed driver in North Carolina. The court concluded Deputy Carrier (1) had probable cause to stop defendant for failing to wear a seatbelt, (2) lawfully arrested defendant for failing to carry a driver's license, and (3) lawfully searched defendant's vehicle incident to his arrest. Thus, defendant's motion to suppress was denied.
The matter came on for trial on 28 October 2002. Essentially, the same evidence presented at the suppression hearing was offered at trial. Additional evidence presented included the testimony of SBI chemical analyst Richard Waggoner, Jr. ("Waggoner"), an expert in forensic chemistry. Waggoner was a "substitute witness" for SBI chemical analyst H.T. Raney, Jr. ("Raney"), the retiring analyst that originally tested, identified, and weighed the substances found in defendant's vehicle and residence. Waggoner testified that based on his review of the relevant lab reports produced by Raney, he was of the opinion that the substances found in defendant's vehicle and residence were marijuana in the weights listed on those reports. Defendant offered no evidence at the trial.
I.
By his first assignment of error, defendant essentially argues the trial court erred in denying his motion to suppress the fruits of both searches because his arrest for failure to carry a driver's license was a pretext for the initial search. Thus, defendant contends (1) Deputy Carrier lacked probable cause to arrest him, (2) the arrest violated his due process rights, and (3) his arrest was unreasonable under the North Carolina Constitution. We disagree.
[A] trial court's findings of fact in a suppression hearing are binding on the appellate courts when supported by competent evidence. This Court must determine whether these findings of fact support the trial court's conclusions of law, and if so, the trial court's conclusions of law are binding on appeal.
State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57 (1995) (citations omitted). "An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence." State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994).
Here, the evidence offered showed that Deputy Carrier stopped defendant's vehicle after personally observing defendant operating that vehicle without wearing a seatbelt. Failure to do so constitutes an infraction under our general statutes. See N.C. Gen. Stat. § 20-135.2A(e) (2003). "In North Carolina an officer may stop and issue a citation to any motorist who `he has probable cause to believe has committed a[n] . . . infraction.'" State v. Hamilton, 125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (1997) (quoting N.C. Gen. Stat. § 15A-302(b) (1988)).
After stopping defendant, Deputy Carrier arrested him for failing to carry a driver's license while operating a vehicle. "`[A drivers] license shall be carried by the licensee at all times while engaged in the operation of a motor vehicle.' Failure to carry one's license at all times while engaged in the operation of a motor vehicle is a misdemeanor" and provides sufficient probable cause to place the driver under arrest. Johnston, 115 N.C. App. at 714-15, 446 S.E.2d at 138 (citations omitted). Therefore, simply because Deputy Carrier knew that defendant had a valid driver's license (though not in defendant's possession), did not negate this statutory requirement or diminish probable cause to support defendant's arrest.
Finally, the evidence showed that immediately following defendant's arrest, Deputy Carrier searched defendant's vehicle and found two bags of marijuana. "Incident to a lawful arrest, an officer may search the passenger compartment of a vehicle and the containers therein without a search warrant." State v. Cornelius, 104 N.C. App. 583, 588, 410 S.E.2d 504, 508 (1991) (citing New York v. Belton, 453 U.S. 454, 460, 69 L.Ed.2d 768, 775 (1981)). Accordingly, defendant's contentions as to his first assigned error are without merit, and the motion to suppress was properly denied.
II.
Defendant also assigns error to the trial court allowing Waggoner to testify regarding the identification and weight of the substances seized as a "substitute witness" for Raney, the retiring analyst that actually accumulated the data and produced the lab reports. Defendant initially contends the State did not follow the proper procedure for the independent admission of Raney's reports because the State failed to provide advance written notice of its intent to admit the reports in Raney's absence. See N.C. Gen. Stat. § 90-95(g) (2003). While the record does not indicate the State complied with Section 90-95(g), the trial transcript clearly indicates that the actual reports were never admitted into evidence by the State. Thus, the reports were simply used by Waggoner in reaching his expert opinion as to whether the substances seized were actually marijuana in the weights determined.
Defendant further contends the trial court erred in allowing testimony by Waggoner concerning lab reports produced by Raney. Defendant asserts that (1) the reports on which Waggoner's testimony was based were inadmissible hearsay, and (2) defendant's Sixth Amendment confrontation rights were violated because he was not allowed to confront and cross-examine Raney. We disagree.
"It has been held traditionally that an expert's opinion is not admissible if based on hearsay evidence." State v. Huffstetler, 312 N.C. 92, 106, 322 S.E.2d 110, 119 (1984). However, "[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field." State v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). The expert's opinion may also be based on facts that would otherwise be inadmissible. Id. In either instance, "the basis for the expert's opinion is not hearsay, since it is not offered as substantive evidence." Huffstetler, 312 N.C. at 107, 322 S.E.2d at 120.
Morever, in Huffstetler, our Supreme Court addressed whether a defendant's Sixth Amendment right to confront his accuser was violated when he could not cross-examine the person who actually performed all the tests on which an expert witness based her opinion. After determining the tests were inherently reliable, the Huffstetler Court used the following analysis to conclude the defendant's constitutional right was not violated:
The admission into evidence of expert opinion based upon information not itself admissible into evidence does not violate the Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination. . . . In such cases the defendant will have the right to fully cross-examine the expert witness who testifies against him. He will be free to vigorously cross-examine the expert witness . . . concerning the procedures followed in gathering information and the reliability of information upon which the expert relies in forming his opinion. The jury will have plenary opportunity . . . to understand the basis for the expert's opinion and to determine whether that opinion should be found credible. The opportunity to fully cross-examine the expert witness testifying against him will insure . . . that the defendant's right to confront and cross-examine his accusers guaranteed by the Sixth Amendment is not denied.
Id. at 108, 322 S.E.2d at 120-21. See also State v. Carmon, 156 N.C. App. 235, 576 S.E.2d 730, per curiam aff'd, 357 N.C. 500, 586 S.E.2d 90 (2003).
In the case sub judice, Waggoner was tendered and accepted without objection as an expert on the testing of controlled substances. Thereafter, Waggoner testified that he could render an expert opinion based on lab reports produced by Raney because the reports were inherently reliable in analyzing and subsequently identifying controlled substances. His testimony laid a sufficient foundation to support the admission of his expert opinion, and defendant does not argue that Waggoner was not qualified to rely on those reports to give opinion testimony. See State v. Gary, 78 N.C. App. 29, 38, 337 S.E.2d 70, 76 (1985). Following Waggoner's opinion testimony, defendant's counsel vigorously cross-examined Waggoner as to the chain of custody of the substances (marijuana) found in defendant's vehicle and residence, the way in which the substances were subsequently received by the testing lab, and the procedures followed by the lab analyst in determining the identity and weight of those substances. From all this testimony, the jury had ample opportunity to determine whether the basis for Waggoner's expert opinion was credible. Thus, the trial court did not err in admitting Waggoner's expert testimony or violate defendant's Sixth Amendment rights by doing so.
No error. Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).