An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-474 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Buncombe County Nos. 12 CRS 112 11 CRS 63583 11 CRS 63582 DERRICK EDDINGS, JR.
Appeal by Defendant from judgments entered 8 June 2012 by
Judge Laura J. Bridges and order entered 5 December 2012 by
Judge Gary M. Gavenus in Buncombe County Superior Court. Heard
in the Court of Appeals 8 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.
Anna S. Lucas, for Defendant.
DILLON, Judge.
Derrick Eddings, Jr., (“Defendant”) appeals from judgments
entered based on jury verdicts convicting Defendant of
possession of cocaine with intent to sell or deliver, possession
of drug paraphernalia, and trafficking in cocaine. Defendant
also appeals from the trial court’s order denying his post-trial -2- motion for appropriate relief. We conclude Defendant had a fair
trial, free from error, and we affirm the trial court’s denial
of Defendant’s motion for appropriate relief.
The evidence of record tends to show the following: On 11
November 2011, officers of the Asheville Police Department
conducted surveillance in a neighborhood in the city after an
informant gave the police department a tip about drug activity
at one house in the neighborhood. While they were conducting
surveillance, Defendant came out of the house, got into his car,
and drove away. Officer Brandon Morgan followed Defendant and
noticed a person in the passenger seat. The passenger was
holding a black duffel bag and was not wearing his seatbelt.
Because Officer Morgan was not in uniform and was in an
undercover vehicle, he radioed Sergeant Geoffrey Rollins to stop
the vehicle because the passenger was not wearing his seatbelt.
Sergeant Rollins got behind Defendant’s vehicle and initiated
the traffic stop.
Sergeant Rollins spoke to the passenger, who identified
himself as Keeve Crooks (“Crooks”), and who was holding a black
duffel bag and appeared very nervous. Defendant consented to a
search of the vehicle, and officers discovered crack cocaine in
the black duffel bag Crooks was holding. Crooks claimed -3- ownership of the crack cocaine discovered in the duffel bag.
Defendant was not charged and was allowed to leave.
Officer Morgan and Sergeant Rollins left the scene of the
traffic stop and traveled back to the house they had been
surveilling. Defendant’s family members were at the house when
officers arrived. The owner of the house, Defendant’s
grandmother, consented to the police searching the bedroom that
Defendant and his uncle shared. Officer Morgan found crack
cocaine in three individual packages zipped inside a pillow,
which was located between a futon and a computer stand.
Defendant was indicted on charges of trafficking in
cocaine, possession with intent to sell or deliver cocaine, and
possession of drug paraphernalia. Defendant’s case came on for
trial during the 5 June 2012 criminal session of Buncombe County
Superior Court.
At trial, Ms. Collin Andrews, a forensic chemist with the
State Bureau of Investigation, gave expert testimony as to the
identity of the substance discovered in the bedroom, testifying
that the weight of the substance was forty-seven grams and that
the substance was cocaine base.
In the trial court’s initial charge to the jury, it
instructed the jury on the definition of reasonable doubt as -4- follows: “A reasonable doubt is a doubt based on reason and
common sense arising out of some or all of the evidence that has
been presented, or lack or insufficiency of the evidence as the
case may be. Proof beyond a reasonable doubt is proof that fully
satisfies or entirely convinces you of the defendant’s guilt.”
During deliberations, the jury sent the trial court a note
asking what happened if the jury could not reach a verdict. One
juror also asked the trial court to explain reasonable doubt, to
which the trial court responded, “It’s a doubt based on reason
and common sense arising out of some or all of the evidence or
the lack or insufficiency of the evidence, whichever the case
may be, and you are to use your common sense and your reason to
come to a decision. It’s not absolute.” When asked by a juror,
“No hundred percent?” the trial court responded, “No hundred
percent. I think they went over reasonable doubt in their
arguments, and I can send back the definition of reasonable
doubt if you want that.” The jury foreperson said yes, and the
trial court continued, stating, “If you’re thinking that
reasonable doubt is that you absolutely know that something
happened, that is not reasonable doubt. It’s not a certain
thing, but you should have enough evidence to say that or that
you can infer from that this happened or that happened.” -5- Counsel for Defendant excepted to the trial court’s verbal
instruction, stating the following: “I will except to the
Court’s instruction, verbal instruction of the definition that
Your Honor just gave, because you did not include that it’s a
doubt that fully satisfies or entirely convinces you[.]” After
further discussion apart from the jury and with counsel for
Defendant and the State, the trial court decided to reinstruct
the jury on the definition of reasonable doubt, using the
pattern jury instruction. The jury was called back to the
courtroom, and the trial court reinstructed the jury as follows:
There was some concerns that I didn’t read the whole definition of reasonable doubt to you, so I’m going to read it to you as it states in the jury instruction. Reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant’s guilt.
Thereafter, the jury resumed deliberation. The jury found
Defendant guilty of all charges, and the trial court entered
judgments consistent with the jury’s verdicts, consolidating the
possession of cocaine with intent to sell or deliver conviction
and the possession of drug paraphernalia conviction, for which
Defendant was sentenced to six to eight months incarceration, -6- and entering a separate judgment for the trafficking in cocaine
conviction, for which Defendant was sentenced to 35 to 45 months
incarceration, to be served consecutively.
Several days after Defendant was convicted in this case,
the State learned that Ms. Andrews, the chemical analyst who
testified at trial, had failed a test proctored to her under the
Forensic Sciences Act. On 11 June 2012, the State notified
Defendant. On 26 June 2012, Defendant filed a motion for
appropriate relief, requesting that the judgments be set aside
and the charges dismissed, based on the State’s inability to
present a qualified expert to establish an essential element of
the charges, or, in the alternative, to award a new trial. The
trial court, pursuant to a motion by the State, ordered that the
substances be reanalyzed. At the hearing on Defendant’s motion
for appropriate relief, SBI Special Agent Michael Piwowar
testified that he reanalyzed the substance on 2 July 2012, and
that the substance was crack cocaine weighing 42.9 grams. Mr.
Piwowar acknowledged that Ms. Andrews had testified that the
substance weighed 47 grams, but that the difference could have
been attributable to evaporation of water from the substance.
The trial court denied Defendant’s motion for appropriate
relief. -7- Defendant appeals from the judgments and the order denying
his motion for appropriate relief.
I: Jury Instruction on Reasonable Doubt
In Defendant’s first argument on appeal, he contends the
trial court committed error by instructing the jury on the
definition of reasonable doubt. Defendant specifically contends
the trial court defined reasonable doubt incorrectly and
incompletely, in a manner that resulted in the State’s burden of
proof being lowered. We believe the trial court’s instruction
does not constitute reversible error.
When an alleged error in a jury instruction is properly
preserved by exception at trial, our Court reviews the jury
instructions de novo. State v. Foye, __ N.C. App. __, __, 725
S.E.2d 73, 79 (2012) (citation omitted). “The charge of the
court must be read as a whole[.] . . . It will be construed
contextually, and isolated portions will not be held prejudicial
when the charge as [a] whole is correct. If the charge presents
the law fairly and clearly to the jury, the fact that some
expressions, standing alone, might be considered erroneous will
afford no grounds for reversal.” State v. Hooks, 353 N.C. 629,
634, 548 S.E.2d 501, 505 (2001), cert. denied, 524 U.S. 1155,
151 L. Ed. 2d 1018 (2002). “The charge will be held to be -8- sufficient if it presents the law of the case in such manner as
to leave no reasonable cause to believe the jury was misled or
misinformed[.]” State v. Blizzard, 169 N.C. App. 285, 296-97,
610 S.E.2d 245, 253 (2005) (citation and quotation marks
omitted). “Under such a standard of review, it is not enough
for the appealing party to show that error occurred in the jury
instructions; rather, it must be demonstrated that such error
was likely, in light of the entire charge, to mislead the jury.”
Id. (citation and quotation marks omitted). “If . . . it is
sufficiently clear that no reasonable cause exists to believe
that the jury was misled or misinformed, any exception to it
will not be sustained even though the instruction could have
been more aptly worded.” State v. Maniego, 163 N.C. App. 676,
685, 594 S.E.2d 242, 248 (2004) (citation omitted).
While “no particular formation of words is necessary to
properly define reasonable doubt,” “the instructions, in their
totality, must not indicate that the State’s burden is lower
than ‘beyond a reasonable doubt.’” State v. Taylor, 340 N.C.
52, 59, 455 S.E.2d 859, 862-63 (1995) (citing Victor v.
Nebraska, 511 U.S. 1, 5, 127 L. Ed. 2d 583, 590 (1994)). -9- In its charge to the jury, the trial court initially gave
the definition of reasonable doubt contained in N.C.P.I. – Crim.
101.10 (2013), which states as follows:
The defendant has entered a plea of “not guilty.” The fact that the defendant has been [indicted] [charged] is no evidence of guilt. Under our system of justice, when a defendant pleads “not guilty,” the defendant is not required to prove the defendant’s innocence; the defendant is presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt.
A reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented, or lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant’s guilt.
Id. When a juror asked for reasonable doubt to be again
defined, the trial court’s definition “could have been more
aptly worded.” Maniego, 163 N.C. App. at 685, 594 S.E.2d at
248. After a discussion with counsel for Defendant and the
State, the trial court reinstructed the jury on the definition
of reasonable doubt, again using N.C.P.I. – Crim. 101.10. We
find this case similar to State v. Foye, __ N.C. App. __, 725
S.E.2d 73 (2012), in which this Court stated, “we cannot see how
the additional language that ‘nothing can be proved 100 percent -10- basically,’ when viewed together with the correct pattern jury
instruction, lowered the burden to less than reasonable doubt or
otherwise prejudiced defendant.” Id. at __, 725 S.E.2d at 80.
Construing the jury charge in this case contextually and as a
whole, we believe the charge presents the law fairly and clearly
to the jury, and although some expressions, standing alone,
might be considered erroneous, those expressions afford no
grounds for reversal in this case, see Hooks, 353 N.C. at 634,
548 S.E.2d at 505, because we do not think there was reasonable
cause to believe the jury was misled or misinformed, see
Blizzard, 169 N.C. App. at 296-97, 610 S.E.2d at 253. This
argument is without merit.
II: Ineffective Assistance of Counsel
In Defendant’s second argument on appeal, he contends
Defendant was provided ineffective assistance of counsel when,
on cross-examination, defense counsel opened the door for
allegedly prejudicial testimony to be introduced, which the
parties had stipulated was inadmissible and would not be
admitted at trial. We find Defendant’s argument without merit.
“To prevail on a claim of ineffective assistance of
counsel, a defendant must first show that his counsel’s
performance was deficient and then that counsel’s deficient -11- performance prejudiced his defense.” State v. Allen, 360 N.C.
297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 166
L. Ed. 2d 116 (2006) (citations and quotation marks omitted).
“Deficient performance may be established by showing that
counsel’s representation fell below an objective standard of
reasonableness.” Id. “Generally, to establish prejudice, a
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id.
“Decisions concerning which defenses to pursue are matters
of trial strategy and are not generally second-guessed by this
Court.” State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440,
472 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003)
(citations omitted).
In this case prior to trial, Defendant filed a motion to
suppress and motion in limine requesting that the trial court
prohibit the State from introducing evidence pertaining to the
information contained in the anonymous tip that led to
Defendant’s arrest, which was stipulated to by the State.
On direct examination, Officer Morgan testified that he
went to perform surveillance on a particular neighborhood based
on a tip about drug activity. No testimony was introduced -12- concerning the contents of the tip. On cross-examination,
however, counsel for Defendant asked Officer Morgan more
specific questions about the anonymous tip, including
information regarding the make and model of Defendant’s car.
Defense counsel asked, “[a]nd turns out also that that tip gave
you information that perhaps [Defendant] hides his drugs in his
vehicle; isn’t that correct?” Officer Morgan responded, “That’s
correct.” Counsel then attempted to elicit testimony from
Officer Morgan to confirm that there were no drugs “hidden”
inside Defendant’s vehicle when he was stopped. On redirect
examination, the State asked Officer Morgan questions regarding
the information contained in the tip, including the statement
that “there [were] narcotics being sold out of the house at
night.” Officer Morgan also said the tip was possibly from a
family member, and “[t]here was a total of three, possible four
calls from the same individual actually wanting to know why we
hadn’t done something about it yet.” The State put on record
that Defendant “opened the door” for the State’s questions
regarding the contents of the anonymous tip.
Defendant relies on State v. Baker, 109 N.C. App. 643, 428
S.E.2d 180, disc. review denied, 334 N.C. 435, 433 S.E.2d 180
(1993), in support of the proposition that “opening the door” to -13- the evidence in this case fell below the standard of
reasonableness. In Baker, counsel for the defendant made errors
pertaining to the “handling of the defendant’s prior convictions
and the resulting jury instruction.” Id. at 645, 428 S.E.2d at
478. Specifically, counsel represented to the jury, in his
opening statement and during the trial, that the defendant had
no criminal record. The prosecution responded by filing a
motion to introduce the defendant’s criminal record, which
showed that the defendant, in fact, had several prior
convictions, including felonious breaking and entering, larceny,
possession of amphetamine drugs, and operating a motor vehicle
with a suspended license. The convictions were twenty-five to
twenty-nine years old, and the trial court stated, “I believe it
would not have been admissible save and except for what you told
this jury.” Id. at 647, 428 S.E.2d at 479. During the trial
court’s charge to the jury in Baker, the trial court instructed
that “[y]ou may consider any prior criminal convictions and/or
prior acts tending to show a lack of truthfulness as well as
showing truthfulness, but I specifically instruct you that any
prior convictions may only be considered on the issue of
credibility or believability. Other than that, they may not be
considered by you for any other purpose in the case itself.” -14- Id. at 648, 428 S.E.2d at 479. This was at odds with the trial
court’s statement at the time the prior records were introduced:
“[I]t’s received for the limited purpose of dispelling what
could be a false impression that counsel said was inadvertently
created.” Id. (emphasis in original). Counsel did not object
to the trial court’s instruction, and “allowed the jury to be
instructed that they could only consider the defendant’s prior
convictions as they may or may not impugn on the defendant’s
credibility.” Id. at 648, 428 S.E.2d at 479. This Court held,
on the foregoing facts, that “defense counsel’s conduct was in
error and deprived the defendant of a fair trial.” Id. at 649,
428 S.E.2d at 480.
We believe this case is distinguishable from Baker. Here,
the theory of the State’s case against Defendant depended on
Defendant’s constructive possession of drugs in a shared
bedroom. In order to provoke doubt, counsel for Defendant
needed to show that the police officers were focused on
Defendant to the exclusion of other suspects. It is conceivable
that counsel for Defendant sought to achieve this by revealing
factual inconsistencies contained in the tips, even though the
evidence would have been otherwise inadmissible. “In reviewing
an ineffective assistance claim, we resist the urge to second- -15- guess trial counsel’s actions.” State v. Augustine, 359 N.C.
709, 733, 616 S.E.2d 515, 532 (2005), cert. denied, 548 U.S.
925, 165 L. Ed. 2d 988 (2006). “Because counsel is given wide
latitude in matters of strategy, . . . defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy[.]” Id.
(citations and quotation marks omitted). This, we believe,
Defendant has failed to do. We do not believe, on the facts of
this case, that counsel was objectively unreasonable.
III: Motion for Appropriate Relief
In Defendant’s final argument, he contends that the trial
court improperly denied Defendant’s motion for appropriate
relief, and that Defendant is entitled to a new trial. We
disagree.
Our standard of review for a motion for appropriate relief
is well established. “When a trial court’s findings on a motion
for appropriate relief are reviewed, these findings are binding
if they are supported by competent evidence and may be disturbed
only upon a showing of manifest abuse of discretion.” State v.
Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation
omitted). “However, the trial court’s conclusions are fully
reviewable on appeal.” Id. -16- In March 2011, our Legislature enacted the Forensic
Sciences Act, requiring all forensic science professionals in
the State Crime Lab to obtain individual certification
consistent with the International Organization for
Standardization. 2011 N.C. Sess. Law 19 § 4; 2011 N.C. Sess.
Law 307 § 8. On 14 June 2012, after the trial in this case,
counsel for Defendant was notified by the District Attorney that
Ms. Andrews failed her certification test. Defendant filed a
motion for appropriate relief arguing he should be awarded a new
trial because Ms. Andrews should not have been qualified as an
expert.
In its order denying Defendant’s motion, the trial court
found, inter alia, as follows: During the trial, Ms. Andrews
was offered by the State as an expert witness in forensic
chemistry, without objection by Defendant; she testified that
the total weight of the controlled substance submitted to her
was 47 grams; and that the substance contained therein was crack
cocaine. After the trial, the Office of the District Attorney
in Buncombe County learned Ms. Andrews had failed an exam given
to her in an effort to comply with the Forensic Sciences Act.
The Office immediately informed counsel for the Defendant of
this information on 13 June 2012. The substance was retested by -17- Mr. Piwowar, who determined that the controlled substance was
crack cocaine with a total weight of 42.9 grams, well in excess
of the 28 grams necessary to convict Defendant.
Based on the findings, the trial court concluded as a
matter of law the following:
1. The Defendant received a fair and impartial trial.
2. The Defendant’s Constitutional rights were not violated or denied.
3. The “newly discovered evidence[,]” . . . that Special Agent Andrews had failed the examination, would not have resulted in her not being qualified as an expert in the field of Forensic Chemistry.
4. That the analysis of the controlled substances by both Special Agent Andrews and Special Agent Piwowar were conducted in accordance with widely accepted reliable principles and methods and were and are admissible.
5. That the “newly discovered evidence” was not withheld by the State but was made known to the Defendant immediately upon the District Attorney[’s] office being made aware of the evidence.
6. That the “newly discovered evidence” merely tends to impeach or discredit the testimony of Special Agent Andrews and only goes to the weight and not the admissibility of her testimony.
7. That the “newly discovered evidence” is not of such a nature that a different result will probably be reached at a new trial. To -18- the contrary, evidence at a new trial would again establish sufficient evidence for a jury to find beyond a reasonable doubt that the defendant possessed more than 28 grams but less than 200 grams of cocaine, possessed the cocaine with the intent to sell and deliver it and possessed drug paraphernalia.
The trial court also stated that the admission of evidence
regarding Ms. Andrews’ exam failure would probably not have
resulted in a different outcome given the other evidence at
trial, including Defendant’s own admission to an officer prior
to his arrest that he possessed about an ounce and a half of
cocaine, which is equal to 42.525 grams.
On appeal, Defendant does not argue that the trial court’s
findings of fact are not supported by the evidence. Rather,
Defendant contends that under State v. Allen, __ N.C. __, __,
731 S.E.2d 510, 520 (2012), disc. review denied, 366 N.C. 415,
732 S.E.2d 582 (2012), the State was required to disclose the
information concerning Ms. Andrews’ failure of her certification
test. In Allen, this Court explained Brady v. Maryland, 373
U.S. 83, 10 L. Ed. 2d 215 (1963), in which the United States
Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” -19- 373 U.S. at 87, 10 L. Ed. 2d at 218. “To establish a Brady
violation, a defendant must show (1) that the prosecution
suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at
trial.” State v. McNeil, 155 N.C. App. 540, 542, 574 S.E.2d
145, 147 (2002), disc. review denied, 356 N.C. 688, 578 S.E.2d
323 (2003) (citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d
215 (1963)). “Evidence is considered ‘material’ if there is a
‘reasonable probability’ of a different result had the evidence
been disclosed.” State v. Berry, 356 N.C. 490, 517, 573 S.E.2d
132, 149 (2002) (citation omitted).
In Defendant’s brief on appeal, he contends that “the
defense had a right to the information that the testifying
chemical analyst did not pass the certification exam”; however,
Defendant concedes that he “is not asserting that the District
Attorney’s Office possessed this information prior to trial[,]
[b]ut it is clear from the record that the results were
available in January of 2012 and the SBI did not disclose the
information to the District Attorney.” Defendant also contends
that the results of Ms. Andrews’ failed examination “would have
been the subject of cross-examination questions directed to
impeach her qualifications[.]” -20- We believe Defendant’s argument must fail. At most, we
believe Defendant has shown that the newly discovered evidence
may have changed the verdict; however, we do not believe there
was a “‘reasonable probability’ of a different result had the
evidence been disclosed” at the time of the trial in this case.
Berry, 356 N.C. at 517, 573 S.E.2d at 149 (emphasis added). We
affirm the trial court’s order denying Defendant’s motion for
appropriate relief.
NO ERROR, in part; AFFIRMED, in part.
Judge McGEE and Judge McCULLOUGH concur.
Report per Rule 30(e).