{ "id": 8523378, "name": "STATE OF NORTH CAROLINA v. JERRY LEWIS CUNNINGHAM", "name_abbreviation": "State v. Cunningham", "decision_date": "1992-12-15", "docket_number": "No. 9118SC818", "first_page": "185", "last_page": "198", "citations": [ { "type": "official", "cite": "108 N.C. App. 185" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "27 ALR4th 1188", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "877", "parenthetical": "defendant's silence while the prosecuting attorney makes a statement does not support an inference that defendant consented to the statement" } ], "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "pin_cites": [ { "page": "399-400", "parenthetical": "defendant's silence while the prosecuting attorney makes a statement does not support an inference that defendant consented to the statement" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "324 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "241", "parenthetical": "when asked if any of the three defendants had a prior criminal record, prosecutor's response that \"only Mr. Dearen\" had one constituted a stipulation that neither of the other two defendants had a criminal record and supported that fact in mitigation" } ], "opinion_index": 0 }, { "cite": "312 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756069 ], "year": 1985, "pin_cites": [ { "page": "579-80", "parenthetical": "when asked if any of the three defendants had a prior criminal record, prosecutor's response that \"only Mr. Dearen\" had one constituted a stipulation that neither of the other two defendants had a criminal record and supported that fact in mitigation" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0567-01" ] }, { "cite": "370 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "when prosecutor stated that defendant had eleven and fourteen-year-old convictions, defense counsel's response that defendant's record indicated no convictions for almost ten years constituted an admission that defendant did have the two older convictions" } ], "opinion_index": 0 }, { "cite": "322 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515177, 2515312, 2514514, 2516085, 2519448 ], "year": 1988, "pin_cites": [ { "parenthetical": "when prosecutor stated that defendant had eleven and fourteen-year-old convictions, defense counsel's response that defendant's record indicated no convictions for almost ten years constituted an admission that defendant did have the two older convictions" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0482-05", "/nc/322/0482-03", "/nc/322/0482-02", "/nc/322/0482-01", "/nc/322/0482-04" ] }, { "cite": "366 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522571 ], "year": 1988, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0431-01" ] }, { "cite": "307 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "159" } ], "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "pin_cites": [ { "page": "424-25" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "416 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "harmless beyond a reasonable doubt proper standard for violations of both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "331 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502533, 2498248, 2500400, 2499516, 2497727 ], "year": 1992, "pin_cites": [ { "parenthetical": "harmless beyond a reasonable doubt proper standard for violations of both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0290-01", "/nc/331/0290-04", "/nc/331/0290-05", "/nc/331/0290-02", "/nc/331/0290-03" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "12 L. Ed. 2d 747", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "pin_cites": [ { "parenthetical": "defendants have no unqualified right under the State constitution to \"an inspection of all papers and documents, if any, in the files of the [SBI]\"" } ], "opinion_index": 0 }, { "cite": "377 U.S. 978", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6280578, 6280805, 6281832, 6281074, 6281620 ], "year": 1964, "pin_cites": [ { "parenthetical": "defendants have no unqualified right under the State constitution to \"an inspection of all papers and documents, if any, in the files of the [SBI]\"" } ], "opinion_index": 0, "case_paths": [ "/us/377/0978-01", "/us/377/0978-02", "/us/377/0978-05", "/us/377/0978-03", "/us/377/0978-04" ] }, { "cite": "134 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "341", "parenthetical": "defendants have no unqualified right under the State constitution to \"an inspection of all papers and documents, if any, in the files of the [SBI]\"" } ], "opinion_index": 0 }, { "cite": "261 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572663 ], "year": 1964, "pin_cites": [ { "page": "192-93", "parenthetical": "defendants have no unqualified right under the State constitution to \"an inspection of all papers and documents, if any, in the files of the [SBI]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0181-01" ] }, { "cite": "358 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729697, 4724965, 4729038, 4727993, 4729151 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0173-03", "/nc/320/0173-01", "/nc/320/0173-04", "/nc/320/0173-05", "/nc/320/0173-02" ] }, { "cite": "354 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169599 ], "year": 1987, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0056-01" ] }, { "cite": "398 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "327 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498880 ], "year": 1990, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0552-01" ] }, { "cite": "429 U.S. 545", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6890 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0545-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "prosecution has duty under the Due Process Clause to disclose evidence favorable to the defendant upon request" }, { "parenthetical": "prosecution has duty under the Due Process Clause to disclose evidence favorable to the defendant upon request" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "482 So. 2d 651", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7603151 ], "year": 1985, "pin_cites": [ { "parenthetical": "discovery statute similar in part to federal Rule 16 required more than the conclusory report of two experts in order to afford defendant an opportunity to prepare adequately for trial" } ], "opinion_index": 0, "case_paths": [ "/so2d/482/0651-01" ] }, { "cite": "516 F. Supp. 248", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5602187 ], "year": 1981, "pin_cites": [ { "parenthetical": "defendant entitled to copies of all scientific tests performed on cocaine pursuant to his request for \"any and all results\" of physical or mental examination or of tests" } ], "opinion_index": 0, "case_paths": [ "/f-supp/516/0248-01" ] }, { "cite": "54 Geo. L.J. 1276", "category": "journals:journal", "reporter": "Geo. L.J.", "year": 1966, "pin_cites": [ { "page": "1278" } ], "opinion_index": 0 }, { "cite": "182 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "347", "parenthetical": "because federal rules are the source of the North Carolina Rules of Civil Procedure, we look to the decisions of federal jurisdictions for guidance" } ], "opinion_index": 0 }, { "cite": "279 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566776 ], "year": 1971, "pin_cites": [ { "page": "292", "parenthetical": "because federal rules are the source of the North Carolina Rules of Civil Procedure, we look to the decisions of federal jurisdictions for guidance" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0288-01" ] }, { "cite": "74 L. Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "pin_cites": [ { "parenthetical": "Rule 16 of the Federal Rules of Criminal Procedure is the \"federal counterpart of our G.S. 15A-903\"" } ], "opinion_index": 0 }, { "cite": "459 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6495875 ], "year": 1982, "pin_cites": [ { "parenthetical": "Rule 16 of the Federal Rules of Criminal Procedure is the \"federal counterpart of our G.S. 15A-903\"" } ], "opinion_index": 0, "case_paths": [ "/us/459/1080-01" ] }, { "cite": "293 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "578", "parenthetical": "Rule 16 of the Federal Rules of Criminal Procedure is the \"federal counterpart of our G.S. 15A-903\"" }, { "page": "578" } ], "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "163", "parenthetical": "Rule 16 of the Federal Rules of Criminal Procedure is the \"federal counterpart of our G.S. 15A-903\"" }, { "page": "163-64" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "281 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "303 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575150 ], "year": 1981, "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0680-01" ] }, { "cite": "347 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "759", "parenthetical": "citations omitted" }, { "page": "760", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739612 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "147", "parenthetical": "citations omitted" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0141-01" ] } ], "analysis": { "cardinality": 1125, "char_count": 30727, "ocr_confidence": 0.757, "pagerank": { "raw": 3.0412194513042636e-07, "percentile": 0.8552736086157919 }, "sha256": "45d86644cbb5d48ab2e768e9b32cee45a9ea33086f0d6f909fc1d0b0956ed0e6", "simhash": "1:83abd66664492c53", "word_count": 4915 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and WALKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY LEWIS CUNNINGHAM" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals from a judgment entered 13 March 1991, which judgment is based on a jury verdict convicting defendant of conspiracy to commit the felony of sale and delivery of a controlled substance, N.C.G.S. \u00a7 90-98 (1990).\nThe evidence presented by the State established that on 6 September 1990, defendant, Juanita Simmons (Simmons), Vanessa Young (Young), Ronald Hubbard (Hubbard), and Ella Jackson (Jackson) were in Hubbard\u2019s apartment at 303-A Avalon Road in Greensboro smoking crack cocaine. At approximately 11:30 p.m., several men drove into the parking lot. Young was standing outside, and according to Simmons\u2019 testimony, the men talked to Young about purchasing drugs. Young returned to the apartment, and Simmons obtained a \u201cfifty,\u201d or one piece of cocaine -worth $50.00, from defendant and took it outside to one of the men. The man told Simmons that he needed more crack becau.se he had his friends with him, and Simmons returned to the apartment and obtained another \u201cfifty\u201d from defendant. Simmons gave both of the pieces of crack to the man in exchange for $100.00 in cash. She returned to the apartment and gave the money to defendant, then left the apartment with defendant and Jackson. Simmons was arrested when she and defendant returned to the apartment later that evening.\nDetective Fulmore of the Vice/Narcotics Division of the Greensboro Police Department testified that on 6 September 1990, he and Detectives Reece, Phifer, and McMinn were involved in an undercover drug investigation in southeastern Greensboro. As part of that investigation, the police officers drove to an apartment located at 303-A Avalon Road at approximately 11:30 p.m. and discussed with Young, who was standing outside of the apartment, the possibility of purchasing drugs. Young went inside the apartment and Simmons emerged and approached the officers\u2019 car. Detective Fulmore purchased two white rock-like substances from Simmons for $100.00 in cash. Detective Phifer placed distinct folds in the bills used by Detective Fulmore to purchase the drugs.\nDetective Fulmore returned to the apartment with additional officers approximately thirty to forty minutes after the initial drug purchase. When police knocked on the apartment door, Young answered and allowed them to enter. Hubbard testified that he was present when the police entered and was also present when defendant gave Simmons the two $50.00 pieces of crack. cocaine to sell to the officers. Hubbard also saw Simmons give the proceeds of the sale to defendant. Hubbard gave the officers permission to search the premises. Simmons and defendant returned to the apartment while the officers were conducting the search. Detective Phifer conducted a pat-down search of defendant and found $312.00 in cash. Included in that amount were the folded bills in the denominations used by Detective Fulmore to purchase the rock-like substance from Simmons. Detective Phifer testified that defendant told him that he had purchased the two pieces of rock-like substance for $80.00 from an area called \u201cThe Hill.\u201d\nThe State Bureau of Investigation (SBI) conducted a laboratory analysis of the rock-like substance purchased from Simmons. Nancy Higgins (Higgins), a special agent with the SBI and a forensic drug chemist, performed a series of tests on the substance which revealed that the substance, weighing 0.4 grams, contained cocaine, a Schedule II controlled substance. Defendant was indicted for conspiracy to commit the sale and delivery of a controlled substance.\nPrior to trial, upon request by defendant, the State provided defendant with a laboratory report which contained the following information: (1) the item submitted for analysis: \u201cplastic bag containing off-white hard material\u201d; (2) the type of analysis requested: \u201canalyze for controlled substances\u201d; (3) the results of the analysis: \u201ccocaine base \u2014Schedule II; weight of material \u2014 0.4 gram\u201d; and (4) the disposition of evidence: \u201cthe unconsumed portion of the evidence is being retained for pick-up.\u201d Several days prior to trial, defendant filed a motion pursuant to N.C.G.S. \u00a7 15A-903(e) to discover all of the testing procedures and data derived as a result of the chemist\u2019s tests and examination of the rock-like substance purchased from Simmons. This motion was not ruled on until trial. On a motion by the State, defendant\u2019s case was joined for trial with that of Young, who was also charged with conspiracy to commit the sale and delivery of cocaine. Young was represented by Greensboro Assistant Public Defender Robert O\u2019Hale (O\u2019Hale), and defendant was represented by Greensboro Assistant Public Defender Frederick Lind (Lind). Defendant unsuccessfully moved to sever the cases on the ground that O\u2019Hale had advised Lind that O\u2019Hale might be put in the position of having to attack defendant at trial in order to defend Young. Defendant renewed his motion to sever during trial and unsuccessfully moved for a mistrial based on the trial court\u2019s denial of his motions to sever.\nAt trial, in support of his earlier discovery motion, defendant introduced as voir dire exhibits the form used by Higgins to indicate the various tests performed by Higgins on the rock-like substance and the result of each (referred to by Higgins at trial as her \u201cnotes\u201d), as well as a graph depicting an infrared scan of the substance, the scan being one of the tests performed by Higgins. The discovery motion was denied by the trial court. The trial court also denied a motion by defendant to suppress evidence, specifically $312.00 in cash, seized from his person. Defendant also moved for a mistrial based on the prosecutor\u2019s questioning of Hubbard regarding whether Hubbard had seen defendant with drugs prior to the day on which defendant was arrested, and based on the prosecutor\u2019s comment during his closing argument that crack cocaine \u201cis a problem in our community and in every other community.\u201d\nThe jury convicted defendant as charged, however, it acquitted Young. At sentencing, the following exchange took place:\nThe COURT: All right. What, if any, prior criminal record does this defendant have?\n[THE PROSECUTOR]: Your Honor, this defendant, at 89 Cr 75412, was convicted of loitering for the purpose of drug-related activity. That was on 12/20/1989. He was subsequently convicted of resisting and obstructing a public officer at 89 Cr 75411. He was convicted on the same date, Your Honor. That is the defendant\u2019s prior record to date.\nThe COURT: All right, Mr. Lind.\nMr. LlND: Judge, we\u2019d object to the loitering. That doesn\u2019t carry 60 days.\nThe COURT: Well, is that a city ordinance or \u2014\nMr. LIND: City ordinance.\nThe COURT: All right, I\u2019ll disregard the loitering.\nThe trial court found as an aggravating sentencing factor that defendant has a criminal record punishable by more than sixty days\u2019 imprisonment. The court found no sentencing factors in mitigation, and sentenced defendant to a prison term of six years, a term in excess of the presumptive term. The trial court denied defendant\u2019s motion to arrest judgment based on the alleged failure of the indictment to allege every element of the offense charged. Defendant appeals.\nThe issues are whether (I) the trial court abused its discretion by granting the State\u2019s motion for joinder of defendant and Vanessa Young for trial and by denying defendant\u2019s motion to sever his trial from that of Young; (II) defendant was entitled to pretrial discovery of the chemist\u2019s laboratory form indicating the various tests performed on the rock-like substance at issue and the results thereof, and the graph of the infrared scan and, if so, whether the trial court\u2019s refusal to order production of such documents upon motion by defendant constitutes reversible error; and (III) defendant effectively stipulated to the prosecutor\u2019s assertion that defendant has a prior conviction for a criminal offense punishable by more than sixty days\u2019 confinement.\nI\nDefendant argues that the trial court\u2019s grant of the State\u2019s motion for joinder and its denial of his motions to sever his trial from that of Vanessa Young, and for a mistrial based on the court\u2019s refusal to sever the trials, deprived him of a fair trial. We disagree.\nJoinder\nThe trial court, in its discretion, may join two defendants for trial upon written motion of the prosecutor (1) when each of the defendants is charged with accountability for each offense, or (2) when the several offenses charged were part of a common scheme or plan or of the same act or transaction, or were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. N.C.G.S. \u00a7 15A-926(b) (1988). The joinder of two defendants charged with the same crime or crimes is not only permissible under Section 15A-926, but \u201cpublic policy strongly compels consolidation as the rule rather than the exception.\u201d State v. Belton, 318 N.C. 141, 147, 347 S.E.2d 755, 759 (1986) (citations omitted).\nThe record in the instant case indicates that at least one of the statutory prerequisites for joinder is present in that the offense with which both defendant and Young were charged was part of the same act or transaction. And although the record contains no evidence of a written motion for joinder by the State, we assume that it was properly made in light of the fact that defendant does not contend otherwise. See Belton, 318 N.C. at 147 n.2, 347 S.E.2d at 759 n.2 (where defendant does not contest joinder on the ground that written motion was not made by prosecution, Court assumes proper motion was made).\nSeverance\nWhen a defendant moves for severance of multiple defendants who have been joined for trial, the trial court must grant the motion whenever (1) if before trial, it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants, or, (2) if during trial, it is found necessary to achieve a fair determination of the guilt or innocence of that defendant. N.C.G.S. \u00a7 15A-927(c) (1988). A trial court\u2019s denial of a defendant\u2019s motion to sever trials is discretionary, and will not be disturbed unless the defendant shows that the joinder has deprived him of a fair trial. State v. Porter, 303 N.C. 680, 688, 281 S.E.2d 377, 383 (1981).\nMere inconsistencies in defenses do not necessarily amount to the kind of antagonism between defendants joined for trial that deprives one or the other of a fair trial. Rather, the defenses must be \u201cso irreconcilable that \u2018the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty\u2019 . . . [or] so discrepant as to pose an evidentiary contest more between defendants themselves than between the State and the defendants . . . [resulting in a] spectacle where the State simply stands by and witnesses \u2018a combat in which the def\u00e9ndants [attempt] to destroy each other.\u2019 \u201d\nBelton, 318 N.C. at 148, 347 S.E.2d at 760 (citations omitted).\nIn the instant case, defendant points to testimony elicited by O\u2019Hale on cross-examination of Detectives Reece and Phifer as being \u201cvery damaging to the defendant.\u201d However, our review of the transcript reveals otherwise. O\u2019Hale elicited nothing on cross-examination of Detective Reece which could be considered \u201cdamaging\u201d or prejudicial to defendant. O\u2019Hale asked Detective Reece only one question regarding defendant: \u201cOkay. [Defendant] never said anything at all about Vanessa Young, did he?\u201d Detective Reece responded, \u201cHe never did.\u201d Detective Phifer testified on cross-examination by O\u2019Hale that defendant had given a statement to police in which he admitted purchasing drugs from \u201cThe Hill\u201d area for $80.00 in an attempt to sell them for $100.00 in order to make a $20.00 profit. However, identical testimony had previously been elicited by the prosecutor in her direct examination of Detective Phifer. Co-defendant Young did not testify at trial.\nThe testimony elicited by O\u2019Hale regarding defendant\u2019s statement to police \u2014 the only evidence elicited by O\u2019Hale which could be deemed prejudicial to defendant \u2014 was properly elicited by the State at defendant\u2019s consolidated trial, and could have been properly elicited by the State if defendant had been tried alone. Moreover, the evidence against Young was weak and resulted in her acquittal. Thus, defendant cannot contend that his association with Young prejudiced the jury against him. In sum, defendant has failed to show that the trial court\u2019s denial of his motion to sever his trial from that of Young deprived him of a fair trial.\nII\nDefendant argues that the trial court erred by denying his motion to discover the tests performed on, and the data derived therefrom, the rock-like substance sold to police officers on the night in question. According to defendant, the copy of a laboratory report provided by the SBI indicating that the substance analyzed was cocaine base and weighed 0.4 grams is a mere conclusion of the chemical examiner as to the presence of a certain controlled substance and is insufficient to enable defense counsel to adequately prepare for trial, thereby depriving defendant of his right to due process of law, a fair trial, confrontation, and the right to compulsory process as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and of his rights under Article 1, Sections 19 and 23 of the North Carolina Constitution.\nWhether a criminal defendant is entitled to a chemist\u2019s laboratory tests performed during a controlled substance analysis, and the data derived- therefrom, is an issue of first impression for our Courts.\nStatutory Right to Criminal Discovery of Scientific Tests\nIn North Carolina, several different categories of the State\u2019s case are available to a criminal defendant pursuant to statute. See N.C.G.S. \u00a7 15A-903 (1988). North Carolina Gen. Stat. \u00a7 15A-903, enacted in 1973, provides in pertinent part:\n(e) Reports of Examinations and Tests. \u2014 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. . . .\nN.C.G.S. \u00a7 15A-903(e) (1988). The Official Commentary to Section 15A-903 indicates that Section 15A-903 was patterned after Federal Rule of Criminal Procedure 16, which was initially adopted in 1946 and amended several times thereafter. See N.C.G.S. \u00a7 15A-903 (1988), Official Commentary; see also State v. Brown, 306 N.C. 151, 163, 293 S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982) (Rule 16 of the Federal Rules of Criminal Procedure is the \u201cfederal counterpart of our G.S. 15A-903\u201d). Accordingly, cases and commentary construing Rule 16 provide guidance regarding the proper construction of Section 15A-903(e). Cf. Brewer v. Harris, 279 N.C. 288, 292, 182 S.E.2d 345, 347 (1971) (because federal rules are the source of the North Carolina Rules of Civil Procedure, we look to the decisions of federal jurisdictions for guidance). Federal Rule 16 contains the following provision:\n(D) Reports of Examinations and Tests. Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.\nFed. R. Crim. P. 16(a)(1)(D). Under both Section 15A-903(e) and federal Rule 16, the disclosure of discoverable \u201cresults or reports\u201d of examinations or tests is mandatory. See N.C.G.S. \u00a7 15A-903(e) (1988) (upon motion of defendant, the trial court must order access by defendant to results or reports); Fed. R. Crim. P. 16 advisory committee\u2019s note, 1974 amendment.\nBecause of the extraordinarily high probative value generally assigned by jurors to expert testimony, of the need for intensive trial preparation due to the difficulty involved in the cross-examination of expert witnesses, and of the inequality of investigative resources between prosecution and defense regarding evidence which must be analyzed in a laboratory, federal Rule 16 has been construed to provide criminal defendants with broad pretrial access to a wide array of medical, scientific, and other materials obtained by or prepared for the prosecution which are material to the preparation of the defense or are intended for use by the government in its case in chief. See Daniel A. Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L.J. 1276, 1278 (1966). Such material includes not only conclusory reports by chemists indicating that an \u201canalysis\u201d revealed the presence of a controlled substance, but also the results of any tests performed or procedures utilized by the chemists to reach such a conclusion. Id.; see also 2 A.B.A. Standards for Criminal Justice, Commentary to Standard 11-2.1(a)(iv) (2d ed. 1980 & Supp. 1986) (advocating pretrial access by defense counsel to \u201crelevant tests\u201d to enable counsel to determine that the tests performed were appropriate and to become familiar with test procedures); Fed. R. Crim. P. 16 advisory committee\u2019s note, 1974 amendment (indicating that the term \u201cany results or reports\u201d is to be given a liberal, not a restricted construction); United States v. Penix, 516 F. Supp. 248 (W.D. Okla. 1981) (defendant entitled to copies of all scientific tests performed on cocaine pursuant to his request for \u201cany and all results\u201d of physical or mental examination or of tests); State v. Burgess, 482 So. 2d 651 (La. Ct. App. 1985) (discovery statute similar in part to federal Rule 16 required more than the conclusory report of two experts in order to afford defendant an opportunity to prepare adequately for trial).\nAs previously discussed, the relevant portion of Section 15A-903(e) provides that, upon motion by defendant, the court must order the prosecutor to allow defendant access to \u201cresults or reports . . . of tests . . . made in connection with the case . . . [and] within the possession, custody, or control of the State . . . .\u201d Like federal Rule 16(a)(1)(D), Section 15A-903(e) must be construed as entitling a criminal defendant to pretrial discovery of not only conclusory laboratory reports, but also of any tests performed or procedures utilized by chemists to reach such conclusions. However, unlike under federal Rule 16(a)(1)(D), no requirement exists that such information be material to the preparation of the defense or intended for use by the State in its case in chief.\nConstitutional Right To Criminal Discovery of Scientific Tests\nUnited States Constitution\nWith the exception of evidence falling within the realm of the Brady rule, see Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963) (prosecution has duty under the Due Process Clause to disclose evidence favorable to the defendant upon request), there is no general right to discovery in criminal eases under the United States Constitution, thus a state does not violate the Due Process Clause of the Federal Constitution when it fails to grant pretrial disclosure of material relevant to defense preparation but not exculpatory. 2 Charles A. Wright, Federal Practice and Procedure: Criminal 2d \u00a7 252 (1982) (citing Weatherford v. Bursey, 429 U.S. 545, 51 L. Ed. 2d 30 (1977)); 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure \u00a7 19.3(a) (1984 & Supp. 1991).\nNorth Carolina Constitution\nAlthough the extent to which a criminal defendant is entitled to discovery under the United States Constitution seems to be well-settled, the scope of a defendant\u2019s right to discovery in a criminal case under Article I, Section 19 of the North Carolina Constitution has not been well-defined by our Courts. Despite the fact that our Courts are bound by federal court decisions construing the Due Process Clause of the United States Constitution, such decisions do not control an interpretation by our Courts of the Law of the Land Clause contained in the North Carolina Constitution. McNeil v. Harnett County, 327 N.C. 552, 563, 398 S.E.2d 475, 481 (1990). Thus, our Courts have recognized a criminal defendant\u2019s due process right in limited circumstances to inspect the crime scene, see Brown, 306 N.C. at 163-64, 293 S.E.2d at 578, and to have an independent chemical analysis performed upon seized substances. See State v. Jones, 85 N.C. App. 56, 65-66, 354 S.E.2d 251, 257, disc. rev. denied, 320 N.C. 173, 358 S.E.2d 61 (1987).\nThe record in the instant case indicates that Agent Higgins performed a number of tests on the substance at issue, including a Marquis test, a cobalt thiocyanate test, a microcrystalline test, and an infrared spectroscopy. Higgins entered the result of each of these tests on a one-page -form. In addition, Higgins generated a graph during her performance of the infrared spectroscopy. The trial court denied defendant pretrial access to both the form and the graph. On direct examination at trial, using the form, Higgins testified regarding her performance of \u201call of these different tests.\u201d The trial court denied defendant\u2019s request for a recess in order to review some of \u201cthe items\u201d to which Higgins referred in her testimony, but allowed defendant time to review the documents during his cross-examination of Higgins.\nIn sum, the sole document provided to defendant before trial by the State was the SBI \u201claboratory report.\u201d This report, which basically is limited to a statement that the material analyzed contained cocaine, reveals only the ultimate result of the numerous tests performed by Agent Higgins. As such, it does not enable defendant\u2019s counsel to determine what tests were performed and whether the testing was appropriate, or to become familiar with the test procedures. We conclude that the information sought by defendant is discoverable pursuant to Section 15A-903(e) and the North Carolina Constitution, cf. State v. Goldberg, 261 N.C. 181, 192-93, 134 S.E.2d 334, 341, cert. denied, 377 U.S. 978, 12 L. Ed. 2d 747 (1964) (defendants have no unqualified right under the State constitution to \u201can inspection of all papers and documents, if any, in the files of the [SBI]\u201d), and therefore the trial court erroneously denied defendant\u2019s motion for pretrial discovery of these documents. Defendant in this case has no federal constitutional right to such discovery because there is no evidence that the information was exculpatory.\nHowever, even under the heightened standard of review applied by this Court to constitutional errors, the State has met its burden of showing that the trial court\u2019s failure to grant defendant\u2019s discovery request was harmless beyond a reasonable doubt. See N.C.G.S. \u00a7 15A-1443(b) (1988); State v. Wallace, 104 N.C. App. 498, 505, 410 S.E.2d 226, 230 (1991), disc. rev. denied, 331 N.C. 290, 416 S.E.2d 398 (1992) (harmless beyond a reasonable doubt proper standard for violations of both federal and state constitutions). This is so because the State presented overwhelming evidence of defendant\u2019s guilt, including testimony from others present at the apartment on the night in question that defendant and others were \u201csmoking crack\u201d and \u201cgetting high\u201d (tending to corroborate Higgins\u2019 testimony that the substance seized was indeed cocaine) and testimony from police officers that defendant admitted that he purchased drugs from \u201cThe Hill\u201d to resell prior to being arrested.\nIll\nDefendant argues that the trial court committed reversible error by finding as an aggravating sentencing factor that defendant has a prior conviction for a criminal offense punishable by more than sixty days\u2019 confinement. Specifically, defendant contends that the trial court\u2019s finding is based on the mere unsworn assertion by the prosecutor of defendant\u2019s criminal record, which as a matter of law cannot support such a finding.\nUnder the Fair Sentencing Act, N.C.G.S. \u00a7 15A-1340.1 et seq., the trial court may not, absent a stipulation of the parties, find as an aggravating factor a defendant\u2019s prior conviction where the only evidence to support it is the prosecutor\u2019s mere assertion that the factor exists. See N.C.G.S. \u00a7 15A-1340.4(e) (1988) (prior conviction may be proved by stipulation or by presentation of either the original or a certified copy of the court record of the prior conviction); State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983). However, a defense counsel\u2019s response to the prosecutor\u2019s assertion of a prior conviction can in certain cases constitute a stipulation or an admission that the defendant indeed has the convictions represented by the State. State v. Brewer, 89 N.C. App. 431, 436, 366 S.E.2d 580, 583, disc. rev. denied, 322 N.C. 482, 370 S.E.2d 229 (1988) (when prosecutor stated that defendant had eleven and fourteen-year-old convictions, defense counsel\u2019s response that defendant\u2019s record indicated no convictions for almost ten years constituted an admission that defendant did have the two older convictions); State v. Albert, 312 N.C. 567, 579-80, 324 S.E.2d 233, 241 (1985) (when asked if any of the three defendants had a prior criminal record, prosecutor\u2019s response that \u201conly Mr. Dearen\u201d had one constituted a stipulation that neither of the other two defendants had a criminal record and supported that fact in mitigation); see also State v. Canady, 330 N.C. 398, 399-400, 410 S.E.2d 875, 877 (1991) (defendant\u2019s silence while the prosecuting attorney makes a statement does not support an inference that defendant consented to the statement).\nIn the instant case, in response to the prosecutor\u2019s statement at sentencing that defendant has prior convictions of loitering and resisting a public officer, defense counsel stated, \u201cJudge, we\u2019d object to the loitering. That doesn\u2019t carry sixty days.\u201d Such a response is unequivocal and is tantamount to an admission or stipulation that defendant has the prior convictions asserted by the State, and, accordingly, we reject this assignment of error.\nWe have reviewed defendant\u2019s remaining assignments of error, and have determined that they are either without merit or do not constitute prejudicial error entitling defendant to a new trial.\nNo error.\nJudges WYNN and WALKER concur.\n. A defendant currently enjoys a concomitant statutory right to inspect the crime scene and to independently analyze seized substances. See N.C.G.S. \u00a7 15A-903(d), (e) (1988).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L. Joyner, for the State.", "Assistant Public Defender Frederick G. Lind for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY LEWIS CUNNINGHAM\nNo. 9118SC818\n(Filed 15 December 1992)\n1. Criminal Law \u00a7 321 (NCI4th)\u2014 conspiracy to sell and deliver controlled substance \u2014 joinder of defendants for trial \u2014no error\nThe trial court did not err in a prosecution for conspiracy to sell and deliver crack by joining two defendants for trial where at least one of the statutory prerequisites for joinder is present in that the offense with which both defendants were charged was part of the same act or transaction. Although the record contains no evidence of a written motion for joinder by the State, the Court assumed that the motion was properly made because defendant did not contend otherwise. N.C.G.S. \u00a7 15A-926(b).\nAm Jur 2d, Trial \u00a7\u00a7 157-175.\n2. Criminal Law \u00a7 339 (NCI4th)\u2014 conspiracy to sell and deliver controlled substance \u2014 motion to sever trials \u2014no prejudice from denial\nA defendant in a prosecution for conspiracy to sell and deliver crack failed to show that the trial court\u2019s denial of his motion to sever deprived him of a fair trial where the only evidence elicited by his co-defendant\u2019s counsel (O\u2019Hale) which could be deemed prejudicial to defendant was properly elicited by the State at defendant\u2019s consolidated trial and could have been properly elicited by the State if defendant had been tried alone. Moreover, the evidence against the co-defendant (Young) was weak and resulted in her acquittal.\nAm Jur 2d, Trial \u00a7\u00a7 157-175.\n3. Criminal Law \u00a7 105 (NCI4th)\u2014 conspiracy to sell and deliver controlled substance \u2014discovery of tests \u2014report furnished insufficient \u2014no prejudice\nThere was no prejudice in a prosecution for conspiracy to sell and deliver crack where the sole document provided to defendant before trial was the SBI \u201claboratory report,\u201d which revealed only the ultimate result of the numerous tests performed and did not enable defense counsel to determine what tests were performed, whether the testing was appropriate, or to become familiar with the test procedures. The information sought by defendant was discoverable pursuant to N.C.G.S. \u00a7 15A-903(e) and Article I, Section 19 of the North Carolina Constitution but not under the United States Constitution because there was no evidence that the information was exculpatory; however, the State met its burden of showing that the trial court\u2019s failure to grant defendant\u2019s discovery request was harmless beyond a reasonable doubt because the State presented overwhelming evidence of defendant\u2019s guilt.\nAm Jur 2d, Depositions and Discovery \u00a7 449.\nRight of accused in state court to have expert inspect, examine, or test physical evidence in possession of prosecution \u2014 modern cases. 27 ALR4th 1188.\n4. Criminal Law \u00a7 1097 (NCI4th)\u2014 conspiracy to sell and deliver controlled substance \u2014sentencing\u2014prosecutor\u2019s statement of prior convictions \u2014defense counsel\u2019s response \u2014stipulation or admission\nThe trial court did not err when sentencing defendant for conspiracy to sell or deliver crack by finding as an aggravating factor that defendant had a prior conviction punishable by more than sixty days\u2019 confinement where, in response to the prosecutor\u2019s statement at sentencing that defendant has prior convictions of loitering and resisting a public officer, defense counsel stated, \u201cJudge, we\u2019d object to the loitering. That doesn\u2019t carry sixty days.\u201d Such a response is unequivocal and is tantamount to an admission or stipulation that defendant has the prior convictions asserted by the State. N.C.G.S. \u00a7 15A-1340.4(e).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAppeal by defendant from judgment entered 13 March 1991 in Guilford County Superior Court by Judge Julius A. Rousseau, Jr. Heard in the Court of Appeals 16 October 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Lorinzo L. Joyner, for the State.\nAssistant Public Defender Frederick G. Lind for defendant-appellant." }, "file_name": "0185-01", "first_page_order": 213, "last_page_order": 226 }