in the Court of Appeals 21 February 2017.
by Defendant from judgment entered 23 February 2016 by Judge
Martin B. McGee in Cabarrus County, No. 14 CRS 054625
Attorney General Joshua H. Stein, by Assistant Attorney
General Tiffany Y. Lucas, for the State.
Montgomery for Defendant-Appellant.
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.
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
and Procedural Background
evidence at trial tended to show the following:
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
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.
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
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.
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 ...