79 N.C. App. 444 | N.C. Ct. App. | 1986
Lead Opinion
We note at the outset that the .appellate defender continues to violate Rule 10(c) of the Rules of Appellate Procedure which in pertinent part provides, “[e]ach assignment of error . . . shall state plainly and concisely and. without argumentation the basis upon which error is assigned.” The assignments of error are not “plain and concise and without argumentation.”
Defendant first undertakes to bring forward and argue questions purportedly raised by assignments of error four, five and six, based on ten exceptions noted in the record. Five of these exceptions have been noted in the record by a stamp bearing the following legend: “No OBJECTION STATED AT TRIAL.” Such an exception presents no question for review. The indiscriminate use of such a stamp demonstrates a disregard of our appellate process and we disapprove of such a practice.
Exceptions six and nine, purportedly supporting assignments of error four and five, are noted in the record after defendant was asked a series of questions on cross examination to which defendant did not object. Defendant did, however, object to two specific questions where the court made no ruling. Defendant did not move to strike the answers, which were in no way prejudicial to defendant.
Exception eight, purportedly supporting assignment of error six, relates to an objection to a question asked defendant on cross-examination, which the court sustained. Defendant was hardly prejudiced by this ruling.
Exceptions fifteen and sixteen, also purportedly supporting assignment of error six, relate to the court’s allowing the State to offer into evidence and pass to the jury a photograph of defend
Assignments of error four, five and six are without merit.
By assignment of error one, based on exception one, defendant contends that the trial court erred in allowing the SBI chemist to testify that the substance she examined was cocaine. Defendant’s argument based on this assignment of error does not relate in any way to the witness’ competency to testify that the substance she analyzed was cocaine. This assignment of error is without merit.
Finally, based on assignments of error one, two, eight and nine, defendant argues that “the trial court erred in denying defendant’s motion to dismiss the charges because the State failed to prove that the substance analyzed by Agent Miller was the same as that taken from defendant or that the substance tested was a controlled substance.” Agent Johnson testified that she purchased two aluminum foil packets from defendant for $25.00 each, placed them in her pocket, and later placed them in an “evidence bag” which she labeled with her initials and the case number. She placed the bag in her briefcase and later mailed the bag in a manila envelope to the SBI lab. SBI Chemist Miller testified that she received the envelope in the mail, analyzed the contents, placed her initials and case number on the bag and returned the contents to Agent Johnson. Agent Johnson further testified that upon receiving the bag in the mail, she locked it in her file cabinet until the day of the trial. Both the chemist and the undercover agent identified the bag at trial by their initials and the case number. This evidence is sufficient to establish a chain of custody and to show that the foil packet purchased by Johnson was the substance analyzed by Miller. Miller testified that the substance she received, analyzed, and mailed to Agent Johnson was, in her opinion, “cocaine.” This evidence was sufficient for the jury to conclude that defendant sold Agent Johnson a controlled substance in violation of G.S. 90-95.
These assignments of error have no merit.
No error.
Concurrence Opinion
concurring in result.
I concur in the result only. By stamping the record with the notation, no objection made at trial, the appellate defender appeared to be following the requirement stated in State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983) that a party must alert the appellate court that no action was taken by counsel at trial before asserting plain error or that a defect affected a substantial right which may be noticed although not brought to the attention of the trial judge. For this reason, I do not concur in the second paragraph of the majority opinion.
