State v. Smith

• Court: Court of Appeals of North Carolina
• Decided: December 20, 2022
• Docket: 22-257
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-848

No. COA22-257

Filed 20 December 2022

Sampson County, Nos. 19 CRS 50518-50519

STATE OF NORTH CAROLINA

v.

JERMELLE LEVAR SMITH

Appeal by Defendant from judgments entered 27 October 2021 by Judge

Imelda J. Pate in Sampson County Superior Court. Heard in the Court of Appeals 5

October 2022.

Epstein Sherlin PLLC by Drew Nelson, for Defendant-Appellant.

Attorney General Joshua H. Stein by Assistant Attorney General Stacey A. Phipps, for the State.

WOOD, Judge.

¶1 Defendant Jermelle Levar Smith (“Defendant”) appeals from judgments

entered upon a jury verdict of guilty of three counts of trafficking opium or heroin,

one count of possession with the intent to sale or deliver oxycodone, and one count of

selling or delivering a Schedule II controlled substance. Defendant contends that the

trial court erred by allowing the jury to view video recorded by a non-testifying

confidential informant without first redacting the date and time-stamp from the STATE V. SMITH

Opinion of the Court

video. For the reasons below, we conclude Defendant received a fair trial free from

error.

I. Factual and Procedural Background

¶2 On 23 February 2018, the Sampson County Sheriff’s Office conducted an

undercover drug operation involving Defendant. Deputy Alphus Fann, Jr., (“Deputy

Fann”), a 12-year veteran of the Sheriff’s department, lead the operation and Deputy

Crystal Gore (“Deputy Gore”), a 16-year law enforcement officer, assisted. The

deputies utilized two confidential informants, Mr. Figueroa and Mr. Cruz,

(“collectively, informants”), to conduct the purchasing of a controlled substance from

Defendant. Figueroa had previous drug charges.

¶3 On the day of the undercover operation and prior to arriving at the location

where the transaction would occur, the deputies provided Figueroa with buy money

and outfitted Cruz with a watch featuring an internal video camera. Deputy Fann

checked the device to ensure there was not data already on it and verified it was

blank. The watch operates like a flash drive and connects to a computer via a USB

plug so the recordings can be downloaded. A video recording can be deleted by the

wearer of the device, but it cannot be edited or altered. Before leaving for the location

where they would be meeting Defendant, the deputies searched both informants and

their vehicle for weapons and drugs. STATE V. SMITH

¶4 During the transaction, the deputies continued to surveil the informants from

nearby. The video recording taken by the watch worn by Cruz showed the following:

the informants entered a home, engaged Defendant, and subsequently exchanged

money in return for a baggie containing eleven white pills. Once this transaction was

completed, the informants returned the watch and the pills to the awaiting deputies

and were searched again.

¶5 Thereafter, Deputy Fann downloaded the watch’s video recording to his work

computer located at the Sheriff’s office and erased it from the device to prepare it for

use by another officer. On 25 February 2019, the State Crime Lab confirmed that the

newly purchased pills contained oxycodone. The following day, Deputy Fann

reviewed the video and recognized Defendant, with whom he had prior “dealings.”

The video recording displayed a time-stamp with the date of 23 February 2018 and

utilized military time to indicate when the recording occurred. The time-stamp

remained on the bottom of the screen throughout the entire video.

¶6 On 9 September 2019, Defendant was indicted for three counts of trafficking

opium or heroin, one count of possession with the intent to sell or deliver oxycodone,

and one count of selling or delivering oxycodone, a Schedule II controlled substance.

The matters were joined for trial, and a jury trial was conducted from 25 through 27

October 2021. During pretrial motions, the State reported to the trial court that its

confidential informants were unavailable to testify, as Mr. Figueroa was “believed to STATE V. SMITH

be out of the country” and Mr. Cruz had an outstanding warrant for his arrest and

could not be located.

¶7 During jury selection, the State informed the trial court he had learned Mr.

Figueroa contacted Deputy Fann that afternoon and reported that he, the informant,

was currently in Duplin County. After discussing this issue with the trial court, the

State explained that he planned to move forward without calling Mr. Figueroa as a

witness. Defendant’s trial counsel stated she had no objection to that approach.

¶8 During Deputy Fann’s testimony, the State sought to introduce into evidence

the video recording taken from the watch, which captured the transaction between

Defendant and the informants. Defendant’s trial counsel objected to the introduction

of the video on the basis that the recording contained statements by the unavailable

confidential informants and such statements were inadmissible hearsay. Voir dire

was conducted outside the presence of the jury and subsequently, the trial court

overruled Defendant’s objection and allowed the video recording portion of the exhibit

to be played for the jury without audio. Defendant’s trial counsel renewed her

objection to its admission. The State introduced additional exhibits which were still-

frame images from the video. Each image also featured the same date and time-

stamp text as that on the video recording.

¶9 Defendant was convicted of three counts of trafficking opium or heroin, with a

consolidated sentence of seventy to ninety-three months, and one count of possession STATE V. SMITH

with intent to sale or deliver oxycodone and one count of selling or delivering a

Schedule II controlled substance with a consolidated sentence of seventeen to thirty

months. The trial court ordered both sentences to run consecutively. Defendant gave

oral notice of appeal on 27 October 2021.

II. Appellate Jurisdiction

¶ 10 Defendant failed to comply with Rule 7 of our Rules of Appellate Procedure

and filed a petition for writ of certiorari with this Court. According to Rule 7(b), an

appellant is required to serve the documentation concerning his transcript order

within fourteen days of giving notice of appeal. N.C. R. App. P. 7(b). Here, the trial

court appointed an appellant defender. Defendant’s appellant counsel filed his notice

of appearance on 24 January 2022, more than fourteen days after Defendant’s trial

counsel entered oral notice of appeal at the conclusion of his jury trial. Appellant

counsel ordered the production of the transcript that same day, and the record

indicates the trial transcript was produced on 27 January 2022 and delivered prior

to the 31 January 2022 deadline set by the Appellate Entries. Defendant’s failure to

comply with Rule 7(b) did not delay or prejudice the State. Therefore, in our

discretion, we grant Defendant’s petition for writ of certiorari.

III. Discussion

A. Standard of Review

¶ 11 While Defendant’s trial counsel objected to the State introducing the watch’s STATE V. SMITH

video recording on the basis of a hearsay objection, her objection did not address the

date and time-stamp appearing on the recording. Instead, Defendant’s counsel

objected as follows:

Although it’s a DVD that purports to be an audio and video regarding the two confidential informants, it still contains alleged statements made by these individuals who are not here and cannot be cross-examined, but their statements that are contained on this audio and video CD would be attempted to be introduced into evidence as to what was said and what occurred on that occasion, and that’s definitely the definition of hearsay. More importantly, they’re not available for the defense to be able to cross- examine them on the issue of whether or not it is, in fact, true or not.

Although Defendant’s trial counsel did not make an objection as to the date and time-

stamp theory as a violation of hearsay, an appellate court may review “unpreserved

issues for plain error when they involve either (1) errors in the judge’s instructions to

the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996). In accordance with Rule 10 of our Rules of

Appellate Procedure, “an issue that was not preserved by objection noted at trial and

that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C. R.

App. P. 10. Here, Defendant’s brief specifically and distinctly asserts the trial court’s

admission of the State’s exhibits amounted to plain error. Therefore, we review the STATE V. SMITH

admissibility of the State’s evidence for plain error.

¶ 12 Plain error arises when the error is “so basic, so prejudicial, so lacking in its

elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th

Cir. 1982), cert. denied, 459 U.S. 1018, 103 S. Ct. 381, 74 L. Ed. 2d. 513 (1982)).

“Under the plain error rule, defendant must convince this Court not only that there

was error, but that absent the error, the jury probably would have reached a different

result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). “To show

that an error was fundamental, a defendant must establish prejudice—that, after

examination of the entire record, the error had a probable impact on the jury’s finding

that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326,

334 (2012) (citation and internal quotation marks omitted); see State v. Santillan, 259

N.C. App. 394, 401, 815 S.E.2d 690, 695 (2018) (holding a prerequisite to a plain error

analysis requires the appellate court to first find prejudice against the defendant,

meaning “the error had a probable impact on the jury’s finding that the defendant

was guilty.”). Defendant has the burden to prove that the trial court committed plain

error. N.C. Gen. Stat. § 15A-1443 (2021); see also State v. Parker, 354 N.C. 268, 290,

553 S.E.2d 885, 901 (2001).

B. Hearsay

¶ 13 Defendant claims for the first time on appeal that the State’s exhibits which STATE V. SMITH

contain a date and time-stamp constitute inadmissible hearsay. According to

Defendant, each date and time-stamp is a “non-verbal statement made by the

unavailable informant who filmed the alleged transaction and was offered to prove

the truth of the matter asserted.”

¶ 14 Hearsay is defined as a “statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.C. Gen. Stat. § 8C-1, R. 801(c). “A ‘statement’ may be a written or oral

assertion or non-verbal conduct intended by the declarant as an assertion.” State v.

Satterfield, 316 N.C. 55, 58, 340 S.E.2d 52, 54 (1986) (citation omitted). An act, such

as a gesture, can be a statement for purposes of applying rules concerning

hearsay. Id.; State v. Fulcher, 294 N.C. 503, 517, 243 S.E.2d 338, 348 (1978).

Further, a declarant is a person who makes a statement.” N.C. Gen. Stat. § 8C-1, R.

801(b) (emphasis added). “An assertion of one other than the presently testifying

witness is hearsay and inadmissible if offered for the truth of the matter

asserted.” Livermon v. Bridgett, 77 N.C. App. 533, 540, 335 S.E.2d 753, 757 (1985).

“If a statement is offered for any other purpose, it is not hearsay and is admissible.”

State v. Frierson, 153 N.C. App. 242, 245, 569 S.E.2d 687, 689 (2002) (quoting State

v. Dickens, 346 N.C. 26, 46, 484 S.E.2d 553, 564 (1997)).

¶ 15 Defendant alleges that the date and time-stamps are out-of-court statements

demonstrating that the video and images were taken on 23 February 2018 and were STATE V. SMITH

“made by the [confidential informant] who produced the video,” but did not testify at

trial. Defendant’s argument is misplaced because the confidential informant was not

the declarant of the video’s date and time-stamp “statement.”

¶ 16 Deputy Fann confirmed that the confidential informant merely “operat[ed]”

the watch as an agent of the Sampson County Sheriff’s Office but was not the

declarant of the video. While the individual wearing the watch was able to point it

at certain areas, according to Deputy Fann, the wearer is not “able to tap the watch

to pull up certain information,” such that the undercover informant could not

manipulate or edit the recording. The wearer of the watch is unable to turn off the

device, because law enforcement does not “show [the confidential informant] the

sequence on how to do that.” In fact, the confidential informant maintained no control

of the recording device because Deputy Fann prepared and activated the device for

the confidential informant to wear and Deputy Gore seized the watch and stopped

the device’s recording because the confidential informant did not have the ability to

turn off the watch on his own. Thus, “whatever [the watch] captures . . . is turned

over to [the Sheriff’s Office], that’s what it captured.”

¶ 17 Deputy Fann explained that neither the watch nor the video recording is

subject to being edited and described the watch as working “almost like an auxiliary

. . . it’s an auxiliary plug that you plug directly into the device. The USB plugs into

the computer, and you can extract it off the watch to the computer.” STATE V. SMITH

¶ 18 In reference to the date and time-stamp appearing on the State’s exhibits,

Deputy Fann testified that the “date is accurate,” but he did not “believe the time-

stamp is . . . [ the Sheriff’s Office] don’t [sic] have a way to correct it, so [it] . . . shows

up by itself.” The testimony at trial makes clear that neither the Sampson County

Sheriff’s Office nor the confidential informant had control over whether a date and

time-stamp appears on the video recordings. “In other words, [this] information was

generated instantaneously by the computer without the assistance or input of a

person.” United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005).

¶ 19 North Carolina has not specifically addressed whether computer records

generally constitute hearsay. Other courts, however, have addressed the issue, and

we find the analysis in those cases to be instructive. “When considering the potential

hearsay implications of computer records, courts have drawn a distinction between

“computer-generated” and “computer-stored” records.” Commonwealth v. Royal, 46

N.E.3d 583, 587 (Mass. App. Ct. 2016); see People v. Holowko, 486 N.E.2d 877, 878-

89 (Ill. 1985); State v. Armstead, 432 So. 2d 837, 839-840 (La. 1983); State v.

Kandutsch, 799 N.W.2d 865, 879 (Wis. 2011). “The distinction between computer-

stored and computer-generated records depends on the manner in which the content

was created — by a person or by a machine.” Royal, 46 N.E.3d at 587.

¶ 20 Computer-generated records “are those that represent the self-generated

record of a computer’s operations resulting from the computer’s programming.” STATE V. SMITH

Kandutsch, 799 N.W.2d at 878. Therefore, “[b]ecause computer-generated records,

by definition, do not contain a statement from a person, they do not necessarily

implicate hearsay concerns.” Commonwealth v. Thissell, 928 N.E.2d 932, 937 n.13

(Mass. 2010); see Baker v. State, 117 A.3d 676, 683 (Md. Ct. Spec. App. 2015) (“When

records are entirely self-generated by the internal operations of the computer, they

do not implicate the hearsay rule because they do not constitute a statement of a

‘person.’ ”). In contrast, computer-stored records “constitute hearsay because they

merely store or maintain the statements and assertions of a human being.”

Kandutsch, 799 N.W.2d at 878 (citation omitted).

¶ 21 Applying this analysis to the facts of this case, we hold that the date and time-

stamp on the State’s exhibits do not constitute hearsay. Here, the date and time-

stamps are purely computer-generated records, “created solely by the mechanical

operation of a computer and [does] not require human participation.” Commonwealth

v. Davis, 168 N.E.3d 294, 310 (Mass. 2021) (citation omitted). As in this case, the

date and time-stamp is “automatically generated in response to a human action[,]”

like the turning on of a device or recording of a video, “but requires no actual human

input or discretion in their generation.” Commonwealth v. Hopper, 2022 Mass. App.

LEXIS 469 at *13-14 (Mass. App. Ct. 2022) (unpublished) (holding that the time and

date stamps recording on Facebook Messenger messages admitted into evidence did

not constitute hearsay). STATE V. SMITH

¶ 22 Because the electronic hardware of the device automatically generated the

video recording’s date and time-stamp, the date and time-stamp on the watch’s video

does not constitute “a statement made by the person who produced the video.”

Pursuant to our Rules of Evidence, the hearsay rule applies only to out-of-court

statements and is defined as a person’s “oral [assertion], written assertion, or

nonverbal conduct of a person, if it is intended by him as an assertion.” N.C. Gen.

Stat. § 8C-1, R. 801. Hence, the relevant assertion was not made by a person; it was

made by a machine. Accordingly, the machine generated date and time-stamp on the

State’s exhibits—the video taken by the confidential informant on the Sheriff’s

Office’s camera watch, and subsequent still-frame images from the video — do not

constitute hearsay. See Hamilton, 413 F.3d at 1142-43 (concluding that the

computer-generated header information accompanying pornographic images

retrieved from the Internet was not a hearsay statement because there was no

“person” acting as a declarant); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.

2003) (concluding that an automatically generated time-stamp on a fax was not a

hearsay statement because it was not uttered by a person). Further, the Deputy who

activated the device and prepared it for the informant to wear was present in court

and, in fact, testified about the date and time-stamp. Therefore, there was no error,

much less plain error, in the trial court admitting the date and time-stamped video

and still-frame images into evidence. STATE V. SMITH

IV. Conclusion

¶ 23 For the above stated reasons, we hold the trial court did not err in admitting

the date and time-stamped video and still-frame images into evidence as State’s

exhibits. We hold that automatically computer-generated date and time-stamps are

not hearsay statements and therefore, admissible. Accordingly, we conclude

Defendant received a fair trial free from error.

NO ERROR.

Judge JACKSON concurs.

Judge GRIFFIN concurs in result only.