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State v. Carter

Court of Appeals of North Carolina

August 15, 2017

STATE OF NORTH CAROLINA,
v.
GUSS BOBBY CARTER, Jr., Defendant.

          Heard in the Court of Appeals 21 February 2017.

         Appeal by Defendant from judgment entered 23 February 2016 by Judge Martin B. McGee in Cabarrus County, No. 14 CRS 054625 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Tiffany Y. Lucas, for the State.

          Mark Montgomery for Defendant-Appellant.

          INMAN, Judge.

         A trial court errs by allowing lay opinion testimony visually identifying a substance, crack cocaine, as a controlled substance. However, this error is not prejudicial when the State has presented expert testimony, based upon a scientifically valid chemical analysis, that the substance in question is a controlled substance.

         Guss Bobby Carter ("Defendant") appeals from a judgment entered 23 February 2016 upon his convictions following a jury trial for possession of cocaine, possession of drug paraphernalia, possession of an open container of alcohol in the passenger area of a motor vehicle, and for attaining habitual felon status. Defendant argues that the trial court committed plain error by admitting the opinion testimony of an officer who visually identified a controlled substance. Defendant also argues he received ineffective assistance of counsel due to his trial counsel's failure to object to the testimony. After careful review, we hold that Defendant has failed to demonstrate prejudice necessary to prevail on either argument.

         Factual and Procedural Background

         The evidence at trial tended to show the following:

         On 3 October 2014, Special Agent Chris Kluttz ("Agent Kluttz") of the North Carolina Department of Alcohol Law Enforcement ("ALE") pulled over a Ford Taurus traveling erratically on Interstate 85 after he spotted an open beer can in the passenger area. There were four individuals in the vehicle; Defendant was sitting in the front passenger seat. Upon smelling alcohol and seeing open containers, Agent Kluttz asked the driver to step out of the vehicle. Agent Kluttz searched the driver and found a glass pipe in his right front pants pocket, and placed the driver in handcuffs.

         Agent Kluttz then proceeded back to the vehicle and spoke briefly with Defendant before asking him to exit the vehicle. As Defendant stepped out, Agent Kluttz saw what he described as a "small baggie . . . of crack cocaine fall from [Defendant's] person . . . to the pavement . . . ." Agent Kluttz then placed Defendant under arrest.

         Defendant was indicted on 2 February 2015 for felony possession of cocaine, possession of drug paraphernalia, and possession of an open container of alcohol in the passenger area of a motor vehicle. Defendant was subsequently indicted on 17 August 2015 for having attained habitual felon status. Defendant's case was tried before a jury on 22 and 23 February 2016.

         At trial, the State presented testimonial evidence from Agent Kluttz in which he repeatedly identified the substance that fell from Defendant as "crack cocaine." Agent Kluttz based this identification on his training, experience working with the ALE, and his perceptions of the substance and packaging. Agent Kluttz was not tendered as an expert. The State introduced additional evidence in the form of a lab report and expert testimony by Jennifer McConnell ("McConnell"), a chemical analyst with the North Carolina State Crime Laboratory. McConnell testified that the results of her testing indicated that the substance in the bag was consistent with cocaine.

         The jury found Defendant guilty of possession of cocaine, possession of drug paraphernalia, and possession of an open container of alcohol in the passenger area of a motor vehicle. Defendant pleaded guilty to having attained habitual felon status. The trial court consolidated the convictions and sentenced ...


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