State v. Smith

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accord ance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-473 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Randolph County Nos. 10 CRS 16-25 CHUCKY DENNIS SMITH Appeal by defendant from judgments entered 8 November 2012 by Judge Craig Croom in Randolph County Superior Court. Heard in the Court of Appeals 30 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State. Ryan McKaig for defendant-appellant. HUNTER, Robert C., Judge. A jury found defendant possession with intent counts sale or of consolidated to sell delivery defendant s guilty or of offenses of five deliver cocaine. into counts cocaine The three each and trial judgments of five court and sentenced him to three consecutive prison terms totaling 75 to 90 months. Defendant gave notice of appeal in open court. -2While working with the Randolph County Sheriff s Office, confidential informant Brian Chriscoe made five controlled purchases of crack cocaine from defendant on 19 and 28 August and 3, 17, and 23 September 2009. Lieutenant supervised Chriscoe in these transactions. Lt. Joyce vehicle and his fellow officers before providing him with David Joyce On each occasion, searched Chriscoe and his $100 cocaine. to buy the After completing a purchase, Chriscoe returned to Lt. Joyce s location to be relieved of the drugs, debriefed, and paid $100 for his services. Chriscoe with a On 19 digital August audio 2009, Lt. recorder activity through an open telephone line. Joyce and outfitted monitored his On the four subsequent occasions, Chriscoe was equipped with the open phone line as well as a wide-angle digital camera mounted in his vehicle. On appeal, defendant challenges the admission into evidence of copies of the audio and video recordings of Chriscoe s drug purchases. Defendant raised a timely objection exhibits on the ground of inadequate foundation. dire hearing, the trial court overruled the the footage from the witness stand, these After a voir objection allowed the recordings to be played for the jury. narrated to and Chriscoe explaining the -3course of each transaction with defendant. The State also introduced still photographs taken from the video. Initially, we note that defendant has failed to present the contested record exhibits on appeal to this states Court that for "[a]ll review. Although exhibits tendered the or admitted into evidence . . . are made a part of this Record on Appeal and shall be transmitted to the Clerk of the Court of Appeals . . . at the request of received no exhibits in this case. either party[,] we have Nor is there any indication that defendant requested the transmission of these exhibits to this Court by the clerk of superior court. unable to impact. examine the evidence to Therefore, we are determine its prejudicial See N.C. Gen. Stat. § 15A-1443(a) (2011). Any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. N.C. Gen. Stat. § 897 (2011). To lay a proper foundation for the introduction of videotapes, a party may use: (1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purposes); (2) proper testimony concerning the checking and operation of the video camera and the -4chain of evidence concerning the videotape; (3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing (substantive purposes); or (4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed. State v. Lawson, 159 N.C. App. 534, 539-40, 583 S.E.2d 354, 358 (2003) (internal quotation marks omitted). Thus, there are three significant areas of inquiry for a court reviewing the foundation for admissibility of a videotape: (1) whether the camera and taping system in question were properly maintained and were properly operating when the tape was made, (2) whether the videotape accurately presents the events depicted, and (3) whether there is an unbroken chain of custody. State v. Cook, __ N.C. App. __, __, 721 S.E.2d 741, 746 (quoting State v. Mason, 144 N.C. App. 20, 26, 550 S.E.2d 10, 15 (2001)), appeal dismissed and disc. review denied, 365 N.C. 563, 724 S.E.2d 917, (2012). Lt. Joyce testified that he was familiar with the operation of the audio recorder and video camera, and that he checked the equipment on each occasion that it was used to make sure that it was in working order[.] He reviewed the original audio and -5video recordings the day they were made and found they fairly and accurately represent[ed] what he had heard during the transactions via the open phone line and from Chriscoe at his debriefings. Lt. Joyce then turned the equipment over to Detective Jason Hunter or Detective Barney Maness to download the recordings. The audio was downloaded from the recorder on the day of the transaction. Lt. Joyce described the transfer of the audio file to disk as follows: Just once we get back, it s a USB drive, plug it in the computer and download it to a disk. The camera also recorded onto an internal memory files could be downloaded via a USB port. from which Lt. Joyce explained that Detective Hunter downloaded some of [the files] there in the office when we got back, but the bigger one[s] . . . our computer would not download[.] Lt. Joyce gave the camera to Detective Maness to download these larger files onto DVDs. Joyce did not recall the downloaded from the camera. exact day when the files Lt. were However, he reviewed the downloaded files received from Detective Maness and found that they were the same as the original recordings. Neither the audio nor the video recordings were edited in any way prior to trial. We hold that the State laid a proper foundation for the audio and video recordings. Lt. Joyce confirmed the equipment -6was tested and recording. depicting found to be in working He also attested to the events recorded, order prior the recordings the identical to each accuracy in nature of the original recordings and the downloaded copies, and the lack of edits made to the recordings. See State v. Collins, __ N.C. App. __, __, 716 S.E.2d 255, 259 (2011); State v. Mewborn, 131 N.C. App. 495, 498-99, 507 S.E.2d 906, 909 (1998). Although Lt. Joyce did not provide a detailed chain of custody, it sufficed to show the recordings remained in the control of a small number of persons within the sheriff s office. Fleming, 350 N.C. 109, 131, 512 See generally State v. S.E.2d 720, 736 (1999) ( A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered. Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility. ) (citation and quotation marks omitted). Defendant violated his also Sixth claims the Amendment admission right to of the recordings confrontation under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), because he was denied the opportunity to cross-examine -7Detectives Likening Hunter1 the two and Maness detectives about to the the downloading process. non-testifying forensic analysts in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, __ U.S. __, 180 L. Ed. 2d 610 (2011), defendant argues that [Lt.] Joyce was incapable of testifying to the techniques and procedures used by Detectives Maness and Hunter when they downloaded, converted, and prepared the audio and video for presentation at trial. See generally State v. Ortiz-Zape, __ N.C. __, __, 743 S.E.2d 156, 159-62 (2013) (summarizing case law on the admissibility of testimonial certification[s] and reports prepared by non- testifying experts). Because he failed to raise this constitutional issue at trial, defendant argues that the trial court committed plain error. See N.C.R. App. P. 10(a)(4). However, although his brief to this Court quotes the plain error standard of review, defendant suggests that the Crawford violation requires us to reverse his convictions unless the State demonstrates that it was harmless beyond a reasonable doubt. We disagree. [D]efendant s failure to object at trial and properly preserve the constitutional issue for appeal requires us to review this 1 We note that Detective Hunter did testify and submit to crossexamination at trial. -8potential constitutional error under the plain error standard of review, not the constitutional error standard . . . . State v. Lemons, 352 N.C. 87, 95, 530 S.E.2d 542, 547 (2000) (emphasis added). To establish fundamental error plain having a finding that [he] was guilty. error, defendant probable impact must on show the a jury s State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and quotation marks omitted). We find no merit to defendant s Crawford claim and thus no plain error by the trial court. Unlike the non-testifying analysts in Melendez-Diaz and Bullcoming, Detectives Hunter and Maness did not in any manner evaluate or certify the downloaded recordings. See Bullcoming, __ U.S. at __, 180 L. Ed. 2d at 616-17; Melendez-Diaz, 557 U.S. at 311, 174 L. Ed. 2d at 321-22. They thus proffered no information testimonial under Crawford. 173 N.C. App. (concluding Crawford that or presented the not 270, 275-76, surrogate could be deemed See generally State v. Lawson, 619 non-testimonial Confrontation that S.E.2d 410, statements Clause). testimony do 413-14 not Moreover, for the (2005) implicate Lt. Joyce detectives, Bullcoming, __ U.S. at __, 180 L. Ed. 2d at 616, but his own independent assessment of the recordings and the downloaded -9copies. was Inasmuch as the mere act of downloading a digital file not defendant s a testimonial Sixth statement, Amendment right implicated. No error. Judges BRYANT and McCULLOUGH concur. Report per Rule 30(e). neither to Crawford nor confrontation was

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