State v. Lane
State v. Lane
Opinion of the Court
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
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.
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
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.
A person has actual possession of a substance if he has it on his person, is aware of it’s [sic] presence and has both the power and intent to control it’s [sic] disposition or use.
A person has constructive possession of a substance if he does hot have it on his person, but is aware of it’s [sic] presence and has both the power and intent to control it’s [sic] disposition or use.
A person’s awareness of the presence of the substance and his power and intent to control it’s [sic] disposition or use may be shown by direct evidence or it may be inferred from the circumstances.
Assuming, arguendo, the constructive possession charge to the jury was improper, this was not prejudicial error because the court properly instructed the jury about actual possession, which may be shown by direct evidence or inferred from the circumstances. State v. Thorpe, 326 N.C. 451, 454, 390 S.E.2d 311, 313 (1990).
III. Closing Arguments
Defendant’s contention that the trial court judge made improper rulings during closing arguments is unsupported by the record. There is nothing in thé trial transcript that supports defendant’s claim that the prosecutor violated N.C. Gen. Stat. § 15A-1230 (1988) by injecting his experience and personal beliefs as to the truth of the evidence, or by arguing matters which were outside the record. The control of closing arguments by the prosecution and defense counsel is left to the discretion of the trial judge, and his rulings will not be disturbed in the absence of abuse of discretion. State v. Hunter, 297 N.C. 272, 278, 254 S.E.2d 521, 524 (1979).
In support of his contention, defendant objects to the prosecutor’s statement that “DNA testing I submit to you is not an inexpensive type test. And I’d submit to you that’s the type of test that you use when you have rape.. ..” This statement does not constitute an injection of experience or personal belief as to the truth of the evidence, nor does it involve matters that were outside of the record. As already discussed, the DNA issue initially arose when defendant questioned the lack of any DNA testing by law enforcement officials.
Defendant’s other argument that the court erred in sustaining the prosecution’s objections during defense counsel’s closing argument is also without merit. Defense counsel misled the jury when he said, “[defendant] can’t call an expert from Raleigh” since a defendant has the right to call experts and to subpoena potential witnesses himself. The court properly exercised its discretion in sustaining the State’s objections to the statement.
For the foregoing reasons, we find defendant’s final argument questioning the sufficiency of the evidence to be without merit and we overrule this assignment of error.
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