State v. Pless , 263 N.C. App. 341 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-21
Filed: 18 December 2018
Iredell County, Nos. 12 CRS 56461, 64, 65
STATE OF NORTH CAROLINA
v.
HAROLD LEE PLESS, JR.
Appeal by defendant from judgment entered 27 July 2017 by Judge Julia Lynn
Gullett in Superior Court, Iredell County. Heard in the Court of Appeals 22 August
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Whitney H.
Belich, for the State.
William D. Spence for defendant-appellant.
STROUD, Judge.
Defendant appeals from convictions of several drug-related offenses. The trial
court did not err by denying defendant’s motion to suppress evidence regarding the
pretrial identification using his DMV photograph, and the trial court did not err by
admitting evidence of the identification and weight of the controlled substances from
a substitute analyst who did her own independent analysis of machine-generated
data. We therefore affirm the trial court’s denial of defendant’s motion to suppress
and find no error as to the admission of evidence.
STATE V. PLESS
Opinion of the Court
I. Background
Detective Jessica Jurney of the Iredell County Sheriff’s Office conducted an
undercover narcotics purchase with Sergeant Chris Walker of the Mooresville Police
Department in September of 2012. Detective Jurney was to meet a man known as
“Junior” at a McDonald’s restaurant to purchase the drugs. “Junior” arrived at the
McDonald’s parking lot in a gold Lexus. Detective Jurney interacted with him for
three or four minutes and successfully purchased what would later be identified as
oxycodone and heroin from defendant. A surveillance team from the Mooresville
Police Department including Sgt. Walker witnessed the transaction. The identity of
defendant was unknown at the time of the drug deal, but Sgt. Walker obtained
defendant’s name from a confidential informant. Several days after the transaction,
Sgt. Walker obtained a photograph of defendant from the Department of Motor
Vehicles (“DMV”) and showed it to Detective Jurney. Sgt. Walker also testified that
he had seen defendant on another occasion driving the same gold Lexus with the
same license plate number as the one he saw during the drug transaction.
Defendant was indicted on numerous drug related charges in December of
2012. Defendant pled guilty to these charges, but his plea was overturned by this
Court in 2016 based upon a sentencing error. On remand, defendant elected to have
a new trial, and Detective Jurney and Sgt. Walker identified defendant over objection
in court as the individual who sold the drugs to Jurney. Erica Lam, the forensic
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Opinion of the Court
chemist who tested the substances purchased from defendant, was not available to
testify during the trial since she had moved out of state.1 The State presented Lam’s
supervisor, Lori Knops, who independently reviewed Lam’s findings to testify
instead. The jury found defendant guilty of possession with intent to manufacture,
sell, or deliver heroin, sale of heroin, trafficking in opium or heroin by possession,
trafficking in opium or heroin by sale, possession with intent to sell or deliver
oxycodone, and sale of oxycodone. Judgment was entered against defendant on all
charges which were consolidated into a sentence of 70 months minimum to 84 months
maximum. Defendant gave notice of appeal in open court.
II. Motion to Suppress
“[Defendant] contends that the in-court identification of him by Ms. Jurney
and by Officer Walker should have been suppressed because the identifications were
unreliable; tainted by the impermissibly suggestive Department of Motor Vehicles
photograph.”
Standard of Review
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
1 Defendant had a separate trial for drug charges related to an October 2012 traffic stop which he also
appealed to this Court. State v. Pless, ___ N.C. App. ____, 817 S.E.2d 498 (2018) (unpublished). In the
2017 trial related to defendant’s October 2012 drug charges, Lam testified as an expert witness about
oxycodone pills found on defendant.
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STATE V. PLESS
Opinion of the Court
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).
“The trial court’s conclusions of law, however, are fully reviewable on appeal.” State
v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Analysis
Defendant does not challenge any of the trial court’s findings of fact in the
order but argues, “[a]lthough the court’s findings of fact 17 and 18 discuss the DMV
photo, the trial court failed to address whether or not this procedure was
impermissibly suggestive and, if it was, whether or not it was so impermissibly
suggestive that it created a very substantial likelihood of irreparable
misidentification.” We review the trial court’s conclusions of law de novo. Our
Supreme Court has described a two-step process for this issue:
This Court employs a two-step process in evaluating such
claims of denial of due process. First we must determine
whether an impermissibly suggestive procedure was used
in obtaining the out-of-court identification. If this question
is answered in the negative, we need proceed no further. If
it is answered affirmatively, the second inquiry is whether,
under all the circumstances, the suggestive procedures
employed gave rise to a substantial likelihood of
irreparable misidentification.
State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984) (citations omitted).
Relevant factors for determining whether the identification procedures were
impermissibly suggestive include: “the opportunity of the witness to view the criminal
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Opinion of the Court
at the time of the crime, the witness’ degree of attention, the accuracy of the witness’
prior description of the criminal, the level of certainty shown by the witness, and the
time between the offense and the identification.” State v. Johnson, 161 N.C. App. 68,
73, 587 S.E.2d 445, 448 (2003) (citation omitted).
Some of the relevant findings of fact are:
4. Investigator Jurney was provided with information
from the informant and then observed a black male with a
stocky to heavy set build and a bald head walk across the
parking lot of the McDonald’s parking lot and get into a
gold in color Lexus motor vehicle. The black male was alone
in the vehicle.
5. Investigator Jurney approached the black male
while he was in the vehicle and had a conversation with
him.
6. Investigator Jurney then gave the black male
$230.00 in pre-recorded buy money and the black male
gave her 19 pills and a plastic bag containing a brown
powder substance. Investigator Jurney was anticipating to
purchase oxycodone and heroin. The contraband appeared
to Investigator Jurney to be consistent with oxycodone and
heroin, based upon her training, education and experience.
7. At the time of this transaction, Investigator Jurney
had been working as an undercover officer for
approximately 1 year and had conducted dozens of
undercover purchases of controlled substances.
Investigator Jurney knew the importance of identifying the
correct suspect.
8. Investigator Jurney was able to observe the suspect,
continuously throughout the drug transaction, which
lasted 3 to 4 minutes at least and had an unobstructed view
of the suspect during this time.
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Opinion of the Court
9. Investigator Jurney was at an arm’s length and was
able to see the suspects [sic] face through the open window
of the vehicle in which the suspect was seated.
10. At the conclusion of the drug transaction,
Investigator Jurney exchanged telephone numbers with
the suspect and watched the suspect drive away.
Investigator Jurney paid close attention to the suspect in
order to be able to identify the suspect at a later time.
11: Ms. Jurney identified the defendant in Court as the
person who sold the contraband to her on September 7,
2012 and indicated that there was no doubt that it was the
defendant who sold the contraband to her.
12. Investigator Walker was part of the surveillance
team providing security for Investigator Jurney on
September 7, 2012.
13. Investigator Walker’s view of the suspect was not
obstructed. Investigator Walker observed the interaction
between the suspect and Investigator Jurney from a
distance of approximately 25 – 30 yards.
14. Investigator Walker knows that correctly
identifying a suspect in a criminal investigation is of the
utmost importance.
15. Investigator Walker observed the gold in color Lexus
in the McDonald’s parking lot. Investigator Walker
observed a stocky black male with a bald head near the
vehicle. Investigator Walker made arrangements with the
confidential informant for the drug transaction to occur
and knew that the subject’s nickname was “Junior.”
16. A few days after the drug transaction, Investigator
Walker then obtained what was believed to be the suspect’s
name (Harold Pless) from the confidential informant and
requested that another employee of the Mooresville Police
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STATE V. PLESS
Opinion of the Court
Department perform a name search of “Harold Pless.”
17. Investigator Walker was provided a DMV photo of
the defendant and recognized the defendant as the
individual who sold the pills and suspected heroin to
Investigator Jurney on September 7, 2012.
18. Investigator Walker then contacted Investigator
Jurney and showed her the single DMV photo of the
defendant. Investigator Jurney identified the photo of the
defendant and confirmed that the defendant was the
subject who sold her the contraband.
19. On October 5, 2012, Investigator Walker saw the
defendant in the same McDonald’s parking lot near the
intersection of US Highway 21 and Gateway Blvd.,
Mooresville, NC. The defendant was operating the same
gold in color Lexus motor vehicle and the defendant was
placed under arrest.
20. Investigator Walker identified the defendant in
Court as the person who sold the contraband to Ms. Jurney
on September 7, 2012.
The trial court then made these conclusions of law regarding the
identification2:
2. In evaluating the likelihood of irreparable
misidentification, the Court considers:
a. the opportunity of the witness to view the
criminal at the time of the crime;
b. the witness’ degree of attention;
c. the accuracy of the witness’ prior description;
2 See Barnette v. Lowe’s Home Ctrs. Inc., 247 N.C. App. 1, 6, 785 S.E.2d 161, 165 (2016). Most of these
are actually findings of fact although they are identified in the order as conclusions of law, but
defendant does not challenge the factual portions of the conclusions of law. (“Regardless of how they
may be labeled, we treat findings of fact as findings of fact and conclusions of law as conclusions of law
for purposes of our review.”).
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Opinion of the Court
d. the level of certainty demonstrated at the
confrontation;
e. the time between the crime and the
confrontation.
3. Both Investigator Walker and Investigator Jurney
had direct and unobstructed views of the suspect.
4. Both Investigator Walker and Investigator Jurney
were paying close attention to suspect because correctly
identifying the perpetrator is of the utmost importance.
5. Both Investigator Walker and Investigator Jurney
were certain in their identification of the defendant as the
perpetrator.
6. Although there was a long period of time between
the time of the offense and the confrontation, both
Investigator Walker and Investigator Jurney recorded
detailed notes of
the event and identified the defendant as the perpetrator
by looking at a DMV photo within a few days of the
occurrence.
7. Based upon the totality of the circumstances, the
defendant’s motion should be denied.
It is obvious that the trial court did not “fail to address” whether the
identification was impermissibly suggestive based upon the trial court’s detailed
findings of fact and recitation of the factors it must consider to determine this exact
issue. But defendant is correct that the trial court did not make an explicit conclusion
of law that the identification procedure was not impermissibly suggestive. Instead,
the trial court listed the factors in conclusion of law 2 and then made separate
findings of ultimate fact as to each factor in conclusions of law 3 through 6. The trial
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Opinion of the Court
court’s ultimate findings on the factors show that the trial court did address the
identification procedure and implicitly concluded it was not impermissibly
suggestive. The conclusions of law could be worded more clearly, but we have no
doubt as to the meaning and substance.
Defendant cites to State v. Smith, 134 N.C. App. 123, 516 S.E.2d 902 (1999), in
support of his argument that the “evidence presented during voir dire and the facts
found, however, show that the DMV’s photo procedure was irreparably suggestive
and resulted in a strong possibility of misidentification and violation of due process.”
But again, defendant does not challenge the findings of fact, just the trial court’s
analysis of those facts. And this case differs from Smith, where this Court found the
use of a high school yearbook to identify a defendant to be impermissibly suggestive
when “[d]efendant’s picture was the only picture of a black male on the page, and
defendant’s name was printed below his picture and clearly visible.” 134 N.C. App.
at 127, 516 S.E.2d 902, 906. (“[The Officer] knew that the suspect she was attempting
to identify was a black male, and [a confidential informant] had previously told her
defendant’s name as it appeared under his photo.”).
Defendant also relies on State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120,
(2002), and State v. Knight, 282 N.C. 220, 192 S.E.2d 183 (1972), for the premise that
“[s]ingle-photo identifications are inherently suggestive.” But there is no absolute
prohibition of using a single photograph:
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STATE V. PLESS
Opinion of the Court
In Simmons v. United States, 390 U.S. 377, 88 S.Ct.
967 (1968), the Court refused to prohibit absolutely the use
of identification by photograph and instead held that “each
case must be considered on its own facts, and that
convictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set
aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable
misidentification.”
Knight, 282 N.C. at 225, 192 S.E.2d at 287.
The present case also differs from State v. Jones, where this Court found the
use of a single photo was impermissibly suggestive. In Jones, an agent was shown a
picture “some seven months after the incident occurred, after the witness had been
notified that he would be receiving a photograph of the defendant and with the
defendant’s name written on the back[.]” 98 N.C. App. 342, 347, 391 S.E.2d 52, 56
(1990). Here, the DMV photo was shown to Detective Jurney only days after the
purchase took place, and she neither knew defendant’s name nor was it on the photo.
Defendant also argues that the trial court must have found the identification
procedure to be impermissibly suggestive because the order addressed both of the two
steps of the analysis but the second step would not be necessary based upon a
conclusion of law that the procedure was not impermissibly suggestive. See Hannah,
312 N.C. at 290, 322 S.E.2d at 151 (“If this question is answered in the negative, we
need proceed no further. If it is answered affirmatively, the second inquiry is whether,
under all the circumstances, the suggestive procedures employed gave rise to a
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STATE V. PLESS
Opinion of the Court
substantial likelihood of irreparable misidentification.” (citations omitted)). The trial
court concluded that the identification procedure was not impermissibly suggestive,
as discussed above. Defendant is correct that the trial court need not have addressed
the reliability of the identification under the totality of the circumstances, given its
prior determination regarding the identification procedure, but the trial court did not
err by ruling upon this issue. In addition, if the trial court did not in fact conclude
that the identification procedure was not impermissibly suggestive, the trial court
did not err in its alternative conclusion that the identification was reliable under the
totality of the circumstances.
While we recognize that it is the better practice to use multiple photos in a
photo identification procedure, the trial court did not err in its conclusion that, in this
case, the use of a single photo was not impermissibly suggestive. And even if the
procedure was impermissibly suggestive, the trial court’s findings of fact also support
a conclusion that the procedure did not create “a substantial likelihood of irreparable
misidentification.” The trial court’s findings of fact in this order are supported by
competent evidence, and these factual findings support the trial court’s ultimate
conclusions of law.
III. Expert Testimony
Defendant argues that the trial court erred by allowing expert testimony on
the weight and identification of the pills as oxycodone and the powder as heroin.
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STATE V. PLESS
Opinion of the Court
Because the State’s expert had an independent basis for her testimony, we find no
error in allowing her to testify.
Standard of Review
Prior to trial, the State notified defendant it intended to call Knops to testify
as to the weights and identification of the pills and powder. Defendant filed a motion
in limine asking to exclude testimony from the State’s expert, Knops, because the
actual analysis of the pills and powder were done by another expert who has since
moved out of state. The trial court denied defendant’s motion in limine, and, at trial,
he objected to the introduction of Knops’s testimony regarding the brown powder, but
failed to object to her testimony regarding the pills.
“In order to preserve a question for appellate review, a party must have
presented the trial court with a timely request, objection or motion, stating the
specific grounds for the ruling sought if the specific grounds are not apparent.” State
v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P.
10(a)(1). “In criminal cases, 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(a)(4). 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
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Opinion of the Court
N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). “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).
Analysis
Our Supreme Court has stated that “when an expert gives an opinion, the
expert is the witness whom the defendant has the right to confront. In such cases,
the Confrontation Clause is satisfied if the defendant has the opportunity ‘to fully
cross-examine the expert witness who testifies against him[.]’” State v. Ortiz-Zape,
367 N.C. 1, 9, 743 S.E.2d 156, 161 (2013) (citation and quotation marks omitted).
Further, “the expert must present an independent opinion obtained through his or
her own analysis and not merely ‘surrogate testimony’ parroting otherwise
inadmissible statements.” Id. (citing Bullcoming v. New Mexico, 564 U.S. 647, 652,
131 S. Ct. 2705, 2710 (2011)). However, “machine-generated raw data, if truly
machine-generated, are not statements by a person, they are neither hearsay nor
testimonial.” Id. at 10, 743 S.E.2d at 162 (citation and quotation marks omitted).
Here, Erica Lam performed the forensic chemistry analysis on the evidence
purchased from Defendant. However, Lam moved out of state and was not available
to testify at trial about the results of her chemical analysis. The State called Lori
Knops, Lam’s supervisor, to testify about the results of the tests on the evidence
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STATE V. PLESS
Opinion of the Court
obtained from defendant. After voir dire on Knops’s proposed testimony, the trial
court concluded:
In this matter, the Court does believe that scientific
and technical and other specialized knowledge will assist
the trier of fact in understanding the evidence in order to
determine a fact in issue, that this witness is qualified as
an expert by knowledge, skill, experience, training, and
education. The Court does find that her testimony is based
on sufficient facts or data, that her testimony is a product
of reliable principles and methods, and the witness has
applied the principles and methods reliable to the facts of
this case, and so the Court therefore will allow her to testify
as to her findings. Court will exclude the prior testimony
of Ms. Lam as to the pills, but will allow this witness to
testify as to her peer review and her findings based on the
information of Ms. Lam.
Knops was tendered as an expert in “forensic chemistry” without objection and
testified about the procedure at the lab where she and Lams worked (“NMS”):
Q Now, could you tell us, what is the process by which
NMS Labs goes about determining whether something that
is suspected of being a controlled substance is in fact a
controlled substance?
A A series of tests are conducted on the unknown
substance. Essentially it’s a two-part test. The first would
be a preliminary or a presumptive test to essentially
dictate what confirmatory test is used, and that is, the
second part is to do a confirmatory test.
Knops stated a peer review was performed on Lam’s reports, and Knops personally
reviewed the peer review. She stated that a peer review’s purpose is to “look at the
data that is produced and to formulate your opinion as to the result, and if that result
matches the result that was produced by the working analyst.” Defendant did not
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STATE V. PLESS
Opinion of the Court
object to Knops’s testimony regarding the substance of the pills. However, defendant
did object to the identification of the heroin and the weight of the pills and the
introduction of Knops’s report, which contained in part:
Case ID Numbers:
16-WIN-019752 (Agency Number: 2012004651, Date of
Offense: 09/07/2012)
Name/DOB: Pless Jr. Harold Lee (09/30/1971)
. . . The case file for Laboratory Report, 16-WIN-019752
was reviewed by myself on July 24, 2017. I reviewed the
analytical results of the above-listed Laboratory Reports
and affirm the following:
16-WIN-019752
Lab Item #1 – Heroin, confirmed; 1 sample tested, Weight
0.45 g (+/- 0.01 g)
Lab Item #2 – Acetaminophen and Oxycodone, confirmed;
Weight 9.45 g (+/- 0.01 g); 1 sample tested, Weight 0. 52 g
(+/- 0.01 g)
a. Identity of the Substances
The situation presented here as to Knops’s testimony regarding State’s
Exhibits 3 and 4, identified as oxycodone and heroin, is identical to State v. Ortiz-
Zape, 367 N.C. 1, 743 S.E.2d 156.
[Knops] analyzed the data pertaining to the seized
substance[s] and gave her independent expert opinion that
the substance was [heroin and Oxycodone]. Defendant had
the opportunity to cross-examine the witness against him:
[Knops]. The admission of an independent expert opinion
based on the expert’s own scientific analysis is not the type
of evil the Confrontation Clause was designed to prevent.
Id. at 14, 743 S.E.2d at 165.
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STATE V. PLESS
Opinion of the Court
Knops’s opinion on the identity of the heroin and oxycodone resulted from her
independent analysis of Lam’s data:
Q And did you review Ms. Lam’s, the work product and
the raw data that was generated relative to the testing of
State’s Exhibit 3?
A I did.
Q Based on your review of those items and your visual
inspection of the tablets now, did you form an opinion
satisfactory to yourself as to what those tablets are?
A Yes, I did.
Q What is it?
A Acetiminophen [sic] and Oxycodone tablet.
....
Q Based upon your review of, of the peer review, and
of the analyses as noted in the data generated by NMS
Labs and Ms. Lam, did you form an opinion satisfactory to
yourself as to whether, as to what the identity of the
substance is contained in State’s Exhibit 4?
A Yes, I did.
Q What is it?
[Defendant’s Counsel]: Object.
THE COURT: Overruled.
A That State’s Exhibit 4 is heroin.
We find no error as to the identification of the oxycodone and the heroin.
b. Weight of the Substances
Knops was also questioned by the State about the weight of the pills:
Q Now, does that [your report] reference the weight,
the collective weight of all pills?
A Yes, it does.
Q Which is what?
[Defendant’s Counsel]: Object. This goes back to the earlier
motion.
THE COURT: Overruled.
Q Go ahead.
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Opinion of the Court
A The collective weight was 9.45 grams.
Q Now, could you tell us, please, whether -- you didn’t
yourself put them on a balance and weigh them yourself?
A I did not.
Q Based upon your review of the work product that
was generated in the original analysis, and based upon
your visual inspection of the pills, as you sit here right now,
could you tell the jury whether you had an opinion
satisfactory to yourself as to whether 9.45 grams was
consistent with the weight of the pills as they appeared?
A: It’s consistent, yes.
On cross-examination, defendant’s counsel asked Ms. Knops about how she obtained
the weight of the substances:
Q And the same thing is true with the weight that was
recorded for the heroin; is that right?
A Yes. There wasn’t any notes as to anyone observing
her while she performed the test.
Q And so the weight in your report for both the pills
and the heroin was essentially repeated from Ms. Lam’s
report?
A Yes.
Q Is that correct?
A Yes, it was from my review of her weights obtained
on that balance tape.
On redirect, Knops restated her opinion:
My opinion is State’s 3 contained acetiminophen [sic] and
Oxycodone with a weight of the 9.45 grams. And by looking
at the evidence here today and these tablets, that weight is
consistent with what I am visually seeing right now.
Because weight is machine generated, it is neither hearsay nor testimonial, and the
trial court did not err by allowing Knops’s testimony on the weight of the substances
or her report to be admitted into evidence. See id. at 10, 743 S.E.2d at 162
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Opinion of the Court
(“[C]onsistent with the Confrontation Clause, if ‘of a type reasonably relied upon by
experts in the particular field,’ N.C.R. Evid. 703, raw data generated by a machine
may be admitted for the purpose of showing the basis of an expert’s opinion.”). Knops
provided an independent basis for her opinion. The admission of Knops’s testimony
did not violate defendant’s confrontation rights, so the trial court did not err by
allowing this evidence.
IV. Conclusion
We affirm the trial court’s denial of defendant’s motion to suppress and hold
that the trial court did not err by allowing Knops’s testimony on the identification
and weights of the substances or admitting Knops’s report into evidence.
AFFIRMED IN PART; NO ERROR IN PART.
Judge ZACHARY concurs.
Judge MURPHY concurs in the result by separate opinion.
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No. COA18-21 – State v. Pless
MURPHY, Judge, concurring in result by separate opinion.
I concur with the Majority’s analysis as to the motion to suppress, but concur
in result only as to its analysis of Defendant’s second argument, regarding expert
testimony and the Confrontation Clause. Where a party fails to raise a constitutional
issue at trial, such a challenge cannot ordinarily be considered for the first time on
appeal. State v. Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010). Here,
Defendant did not raise a Confrontation Clause challenge at trial, so the issue is not
properly before us on appeal.
In Davis, we held:
As Defendant failed to object at trial to any of the
aforementioned testimony, Defendant failed to preserve for
appeal the argument that the evidence was erroneously
admitted. See N.C. R. App. P. 10(b)(1) (“In order to preserve
a question for appellate review, a party must have
presented to the trial court a timely ... objection ... stating
the specific grounds for the ruling the party desired the
court to make....”). “Moreover, because [D]efendant did not
‘specifically and distinctly’ allege plain error as required by
North Carolina Rule of Appellate Procedure 10(c)(4),
[D]efendant is not entitled to plain error review of this
issue.” State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d
756, 757 (2005) (citing N.C. R. App. P. 10(c)(4)).
Furthermore, “[a] constitutional issue not raised at trial
will generally not be considered for the first time on
appeal.” Anderson v. Assimos, 356 N.C. 415, 416, 572
S.E.2d 101, 102 (2002). While this Court may pass upon
constitutional questions not properly raised at the trial
level in the exercise of its supervisory jurisdiction “[t]o
prevent manifest injustice [,]” N.C. R. App. P. 2, because
there was copious unchallenged evidence before the jury
that the substance at issue was cocaine, including . . .
STATE V. PLESS
MURPHY, J., concurring
unchallenged testimony, we decline to invoke Rule 2 in this
case.
Id. Our holding and analysis in Davis is indistinguishable from the instant case.
Therefore, I would not reach the Defendant’s argument regarding Ms. Knop’s expert
testimony. Consequently, I agree with the Majority’s ultimate determination that
Defendant received a fair trial, free from error, and concur in the mandate.
2