State v. Lane

458 S.E.2d 19, 119 N.C. App. 197, 1995 N.C. App. LEXIS 400
CourtCourt of Appeals of North Carolina
DecidedJune 6, 1995
DocketNo. 9416SC657
StatusPublished

This text of 458 S.E.2d 19 (State v. Lane) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lane, 458 S.E.2d 19, 119 N.C. App. 197, 1995 N.C. App. LEXIS 400 (N.C. Ct. App. 1995).

Opinion

McGEE, Judge.

In November 1992, Lloyd Stephen Lane was incarcerated in the Robeson County Department of Correction. The morning of 4 November, defendant and two other inmates were scheduled to leave the prison on work detail. After defendant was seated on a transport van, one of the other inmates received permission to return to the prison to obtain cold medication from the prison nurse. The officer in charge, Sergeant Byron Walters, searched the inmate before allowing him to re-enter the prison.

Defendant also requested to return to the prison to obtain medication from the nurse. As defendant walked toward the building, he attempted to bypass Sergeant Walters. The sergeant called defendant back outside the prison gate and began to search him. The defendant pushed the sergeant’s hand away when the sergeant felt around defendant’s left pants pocket. Defendant then took something clear out of his pocket and put it into his mouth. Sergeant Walters ordered [200]*200the defendant to hand over the object but the defendant did not comply and began walking away from the sergeant towards the van. Sergeant Walters followed him and repeatedly ordered him to give up the object he had placed in his mouth. At the rear of the van, the defendant stopped and ran his hand back over his mouth. He brought his hand back down to his side and stepped over to his left. Sergeant Walters looked on the ground and found a “little, clear, plastic cellophane bag” containing a hard rock substance. When the sergeant picked up the bag, it felt moist to the touch. Sergeant Walters asked the defendant if the bag belonged to him and if he had anything else in his mouth. Defendant took a brown tablet from his mouth and said it was a vitamin.

The defendant asked Sergeant Walters if they could speak in private. He asked the sergeant to “give him a break” because his mother “would have a heart attack” if she found out about it. Sergeant Walters refused and turned the plastic bag over to the prison contraband officer. The bag and its contents were tested by the State Bureau of Investigation and found to contain crack cocaine.

Defendant was indicted 14 December 1992 for possession of crack cocaine in violation of N.C. Gen. Stat. § 90-95. On 1 March 1994, defendant was convicted of felonious possession of a controlled substance and sentenced to five years imprisonment. From this judgment, defendant appeals.

I. Testimony of Detective Mickey Biggs

On 19 November 1992, defendant filed a motion for discovery under N.C. Gen. Stat. §§ 15A-902 and 15A-903 requesting, among other things, access to “[a]ll results or reports of physical or mental examination or of tests, measurements or experiments, made in connection with the case. ...” The State complied with the discovery request but did not disclose the substance of the testimony to be offered by Lumberton Police Detective Mickey Biggs. Over the defendant’s objection, the State called Detective Biggs as an expert witness to testify on the subject of fingerprint identification. Defendant contends the State failed to disclose during discovery “the evidence to which Detective Mickey Biggs testified to at trial” and this violated defendant’s constitutional rights and G.S. 15A-903(e). We disagree.

The court accepted Detective Biggs as an expert in the field of fingerprint identification. Detective Biggs was given State’s Exhibit Number 1 and asked if he had ever seen or examined it before. [201]*201Detective Biggs answered he had not seen the evidence until that day. He was asked to describe the evidence and replied that it looked like “a small cellophane bag used for packaging controlled substances.” Detective Biggs then testified in general terms about packages similar to State’s Exhibit Number 1 and how difficult it is to retrieve “a classifiable print” from such a package. He gave a general explanation of the overall process of collecting, analyzing and identifying “classifiable” fingerprints. During cross-examination, Detective Biggs further explained it would be difficult to obtain identifiable fingerprints from this particular cellophane bag because it had been twisted, severely crumpled and appeared to be burned on one end.

N.C. Gen. Stat. § 15A-903(e) (1988) states:

Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. . . .

While this statute requires the State to allow defendant access to any results, reports of physical or mental examinations, tests, measurements or experiments made in connection with the case, Detective Biggs did not conduct any tests in preparation for this trial and he did not testify regarding any test results or examinations specific to this case. He formulated his opinion as to the cellophane bag based on an examination made for the first time at trial. Defendant had ample opportunity to thoroughly cross-examine Detective Biggs about his opinion at trial.

Defendant also argues Detective Biggs was allowed to testify as an expert witness “concerning matters [about] which he lacked personal knowledge,” those being DNA testing of saliva. Defendant contends this testimony was contrary to the North Carolina Rules of Evidence' on expert witnesses, and unduly prejudiced him thereby entitling him to a new trial. We disagree.

The State’s direct examination of Detective Biggs was about fingerprint identification in general. Detective Biggs was received by the court only as a latent fingerprint expert and not as a DNA specialist. It was only upon cross-examination by the defendant that Detective [202]*202Biggs discussed DNA analysis. Defense counsel asked him a series of general questions as to whether saliva tests can be conducted for identification purposes and whether an identification can be made using DNA tests. The detective testified he had received some training in the collection of DNA samples but no training in conducting DNA testing. Detective Biggs admitted he did not know if there were sufficient samples in this case for some other expert to make a DNA test. Since defendant “opened the door” during cross-examination, the State appropriately clarified DNA testing procedures by asking follow-up questions during redirect examination of Detective Biggs. State v. Brown, 64 N.C. App. 637, 644-46, 308 S.E.2d 346, 350-51 (1983), aff'd, 310 N.C. 563, 313 S.E.2d 585 (1984). Finally, we note the trial court sustained defendant’s objections when the State asked a question on DNA testing that was clearly outside the scope of expertise of Detective Biggs.

II. Jury Instructions on Constructive Possession

Defendant next argues the trial court erred because there was insufficient evidence to support a jury instruction on the doctrine of constructive possession. The trial court instructed the jury on both actual and constructive possession. The court’s jury instruction included the following:

Now, members of the jury, possession of a substance may be either actual or constructive.

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Related

State v. Brown
308 S.E.2d 346 (Court of Appeals of North Carolina, 1983)
State v. Hunter
254 S.E.2d 521 (Supreme Court of North Carolina, 1979)
State v. Thorpe
390 S.E.2d 311 (Supreme Court of North Carolina, 1990)
State v. Brown
313 S.E.2d 585 (Supreme Court of North Carolina, 1984)

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Bluebook (online)
458 S.E.2d 19, 119 N.C. App. 197, 1995 N.C. App. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lane-ncctapp-1995.