{ "id": 4103574, "name": "STATE OF NORTH CAROLINA v. EDWARD EUGENE POOLE, JR.", "name_abbreviation": "State v. Poole", "decision_date": "2012-10-16", "docket_number": "No. COA11-21-2", "first_page": "185", "last_page": "195", "citations": [ { "type": "official", "cite": "223 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": "365 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153563 ], "year": 2011, "opinion_index": -1, "case_paths": [ "/nc/365/0306-01" ] }, { "cite": "716 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": -1 }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "286", "parenthetical": "citation omitted" }, { "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "651 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639492 ], "year": 2007, "pin_cites": [ { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0867-01" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "881", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2004, "pin_cites": [ { "page": "122-23", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "700 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "159", "parenthetical": "citation and brackets omitted" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179551 ], "year": 2010, "pin_cites": [ { "page": "472", "parenthetical": "citation and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0463-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)(3) and (e)(9)" } ], "opinion_index": 0 }, { "cite": "690 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174673 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc-app/202/0674-01" ] }, { "cite": "702 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2010, "pin_cites": [ { "page": "237-38" }, { "page": "237" }, { "page": "237-38" }, { "page": "237-38" }, { "page": "238" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181403 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "427-28" }, { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0422-01" ] }, { "cite": "693 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2010, "pin_cites": [ { "page": "189" }, { "page": "189" }, { "page": "190" }, { "page": "189" }, { "page": "189" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176789 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "78" }, { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0068-01" ] }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "304", "parenthetical": "citations omitted" }, { "page": "304-05", "parenthetical": "citation omitted" }, { "page": "304" }, { "page": "304-05", "parenthetical": "citation omitted" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "year": 2009, "pin_cites": [ { "page": "452", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "361 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739107 ], "year": 2007, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0610-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "334", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "718 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2011, "pin_cites": [ { "page": "626" }, { "page": "627" }, { "page": "625" }, { "page": "627", "parenthetical": "emphasis added" }, { "page": "627" } ], "opinion_index": 0 }, { "cite": "365 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153563 ], "weight": 7, "year": 2011, "pin_cites": [ { "page": "311-12" }, { "page": "313" }, { "page": "309" }, { "page": "313" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0306-01" ] }, { "cite": "716 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "Poole i" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 869, "char_count": 25304, "ocr_confidence": 0.741, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1313497427842318 }, "sha256": "9bca1e6123acf0e8b250f68e59035d167555c3db8f30658f54a185c2f1ddeb2e", "simhash": "1:8a13443c18175c7e", "word_count": 3981 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ERVIN and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD EUGENE POOLE, JR." ], "opinions": [ { "text": "McGEE, Judge.\nEdward Eugene Poole, Jr. (Defendant) was convicted on 6 April 2010 of possession of a controlled substance in a local confinement facility and of having attained the status of an habitual felon. The trial court sentenced Defendant to 120 to 153 months in prison. Defendant appealed to this Court, and this Court filed an opinion 20 September 2011 granting Defendant a new trial. State v. Poole,_N.C. App._, 716 S.E.2d 268 (2011) (Poole i). The State filed a petition for writ of supersedeas and a petition for discretionary review, which motions the Supreme Court granted in an order dated 23 August 2012. The Supreme Court vacated the decision of this Court in Poole I and remanded to this Court for reconsideration in light of the Supreme Court's decisions in State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011), and State v. Lawrence,_N.C._, 723 S.E.2d 326 (2012).\nFacts\nThe evidence at trial tended to show that Defendant was employed as a tree cutter by Travis Sanderson (Mr. Sanderson). Defendant testified to the following. Defendant had a falling out with Mr. Sanderson and was fired by him. Defendant called Mr. Sanderson a few days later and asked to be paid for work he had performed. Mr. Sanderson told Defendant that when he found more work, he would \u201cget back\u201d to Defendant. Mr. Sanderson later called Defendant and told Defendant that he had \u201cpicked up\u201d a girl and that the girl wanted Mr. Sanderson to get her some drugs. Defendant was a recovering drug addict, did not want to purchase drugs for Mr. Sanderson, and initially refused to do so. Mr. Sanderson called Defendant several more times and eventually approached Defendant in person.\nMr. Sanderson promised to employ Defendant on a large tree-cutting job, but only if Defendant obtained drugs for him. Defendant agreed. At trial, Mr. Sanderson testified that he had contacted law enforcement officers in order to work as an informant to arrange a drug transaction with Defendant as a target. Mr. Sanderson admitted he made up the story about a woman seeking drugs.\nMr. Sanderson\u2019s drug deal with Defendant occurred on 6 October 2008 in the parking lot of a fast-food restaurant. Mr. Sanderson met with Defendant and gave him $300.00 to buy the drugs. Defendant drove away and returned several hours later with a bag he said contained the drugs. Defendant got into Mr. Sanderson\u2019s truck and put the bag in the center console. Defendant testified that Mr. Sanderson retrieved the bag, handed Defendant a piece of the substance contained in the bag, and got out of his truck waving the bag. Defendant realized he was about to be arrested and put the piece Mr. Sanderson had given him in his mouth. Defendant was arrested by police officers working with Mr. Sanderson. Mr. Sanderson turned the bag containing the rest of the drugs over to the officers.\nDefendant testified at trial that, while he was sitting on the ground during the arrest, he told police officers three times that Mr. Sanderson had given him \u201cevidence.\u201d Defendant had his first appearance on 7 October 2008, and told the district court judge that he had a piece of evidence that Mr. Sanderson had given him and that he wanted to give it to his lawyer. The district court judge told the bailiff to take Defendant to speak with his lawyer, but the bailiff instead returned Defendant to the detention facility. Defendant then got the attention of a jailer, who took him to Lieutenant Ivey Eubanks (Lt. Eubanks). Defendant gave the substance to Lt. Eubanks.\nDefendant was charged with possession with the intent to sell or distribute cocaine, selling and distributing cocaine, and possession of a controlled substance in a local confinement facility. Defendant filed notice of his intent to raise the defense of entrapment.\nAt trial, the State presented the testimony of Special Agent Nancy Gregory (Agent Gregory) of the North Carolina State Bureau of Investigation (SBI), who testified as to the results of a lab test performed on the substance that had been in Defendant\u2019s possession. Agent Gregory testified that Special Agent Brittany Dewell (Agent Dewell), performed a chemical analysis of the substance in the bag which Mr. Sanderson retained and gave to the police officers. Agent Gregory testified that the substance in the bag was crack cocaine. Agent Gregory also testified that the substance in Defendant\u2019s possession while Defendant was in the jail was \u201ca separate case analyzed by a different chemist at the laboratory.\u201d Agent Gregory did not identify that chemist, nor did she state that she had reviewed that chemist\u2019s work. The record on appeal shows that this lab report was prepared by Agent Amanda Howell (Agent Howell). However, Agent Gregory testified that the item retrieved from Defendant was also a cocaine-based substance. Defendant did not object to Agent Gregory\u2019s testimony. The item retrieved from Defendant was admitted into evidence as the State\u2019s Exhibit 3-A (Exhibit 3-A), and the bag containing Exhibit 3-A was admitted as State\u2019s Exhibit 3 (Exhibit 3).\nThe trial court instructed the jury on the defense of entrapment with respect to the charges of possession with the intent to sell or distribute (PWISD) and selling and distributing a controlled substance. However, the trial court instructed the jury that the defense of entrapment did not apply to the charge of possession of a controlled substance in a local confinement facility. The jury found Defendant not guilty of PWISD and not guilty of selling and distributing a controlled substance. The jury found Defendant guilty of possession of a controlled substance in a local confinement facility.\nAnalysis\nDefendant first argues:\nThe trial court committed plain error in admitting the testimony of SBI Agent Nancy Gregory in regard to an alleged controlled substance . . . and also admitting the laboratory report on which Agent Gregory relied in her testimony . . . because the laboratory report at issue had been prepared by a non-testifying SBI agent and Agent Gregory testified solely based on the laboratory report prepared by the non-testifying agent, in violation of . . . Defendant\u2019s right to confrontation guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution.\u201d\nIn light of our Supreme Court\u2019s decisions in State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011) and State v. Lawrence, __N.C._, 723 S.E.2d 326 (2012), we disagree.\nAt trial, Defendant failed to object to the admission of Agent Gregory\u2019s testimony identifying Exhibits 3 and 3-A as a schedule II, cocaine-based substance, and to the lab report upon which Agent Gregory\u2019s testimony was based. Defendant argues, however, that the trial court\u2019s admission of Agent Gregory's testimony and the lab report was plain error.\nIn 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.\nN.C.R. App. P 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007).\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error \u201chad a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Moreover, because plain error is to be \u201capplied cautiously and only in the exceptional case,\" the error will often be one that \u201cseriously affect[s] the fairness, integrity or public reputation of judicial proceedings!)]\u201d\nLawrence,_N.C. at_, 723 S.E.2d at 334 (citations omitted).\n\u201cThe Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant.\u201d State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citations omitted). \u201c[F]orensic analyses qualify as \u2018testimonial\u2019 statements, and forensic analysts are \u2018witnesses\u2019 to which the Confrontation Clause applies.\u201d Id. at 452, 681 S.E.2d at 304-05 (citation omitted). This bar to the admission into evidence of forensic analyses performed by non-testifying analysts, whom a defendant has not had a prior opportunity to cross-examine, applies to in-court testimony as well as to documents containing forensic analyses, such as lab reports. Id. at 451-52, 681 S.E.2d at 304.\nIn State v. Brewington, 204 N.C. App. 68, 78, 693 S.E.2d 182, 189 (2010), this Court stated a four-part test for determining whether forensic analysis evidence runs afoul of the Confrontation Clause. Under the four-part test, our Court must:\n(1) determine whether the [evidence] at issue is testimonial; (2) if the [evidence] is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant; (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert\u2019s report or analysis; and (4) if the testifying expert summarized another non-testifying expert\u2019s report or analysis, determine whether the admission of the [evidence] through another testifying expert is reversible error.\nId. Applying this test, the Brewington Court found that a lab report prepared by a non-testifying analyst was inadmissible because the defendant did not have a prior opportunity to cross-examine the non-testifying analyst. Id. at 78-79, 693 S.E.2d at 189. This Court further found that it was \u201cclear from the testimony of [the testifying analyst] that she had no part in conducting any testing of the [alleged controlled] substance, nor did she conduct any independent analysis of the substance.\u201d Id. at 80, 693 S.E.2d at 190. Accordingly, this Court determined that the testifying analyst in Brewington:\nmerely reviewed the reported findings of [the non-testifying agent], and testified that if [the non-testifying agent] followed procedures, and if [the non-testifying agent] did not make any mistakes, and if [the non-testifying agent] did not deliberately falsify or alter the findings, then [the testifying agent] \u201cwould have come to the same conclusion that she did.\u201d\nId. Because the defendant had not been afforded the opportunity to cross-examine the non-testifying analyst, the Brewington Court held that the admission into evidence of the testifying analyst\u2019s testimony also violated the Confrontation Clause. Id.\nThis Court applied Brewington's four-part test in State v. Williams, 208 N.C. App. 422, 702 S.E.2d 233 (2010). In Williams, we determined that the testimony of a chemist identifying a substance as cocaine-based was inadmissible. The Williams decision focused on (1) the fact that the chemist\u2019s testimony was based upon an inadmissible lab report prepared by a different non-testifying chemist; and (2) that the testifying chemist did not personally perform any tests or witness any tests being performed on the alleged cocaine-based substance. Id. at 427-28, 702 S.E.2d at 237-38. In reaching its holding, the Williams Court noted that, in State v. Hough, 202 N.C. App. 674, 690 S.E.2d 285 (2010), this Court reached a different conclusion where a forensic chemist\u2019s testimony \u201cwas substantively the same as the' testimony given by the expert\u201d in both Brewington and Williams. Id. at 427, 702 S.E.2d at 237. However, the Williams Court concluded that Brewington correctly emphasizes the importance of cross-examination as a tool to expose, among other things, the care (or lack thereof) with which a chemist conducted tests on a substance.\u201d Id.\nIn the present case, Defendant argues that both Exhibits 3 and 3-A, as well as the testimony of Agent Gregory based upon the same lab report, were inadmissible. The lab report prepared by Agent Howell was a forensic analysis prepared for the prosecution of a criminal charge and was therefore \u201ctestimonial\u201d evidence. Locklear at 452, 681 S.E.2d at 304-05 (citation omitted). Agent Howell was unavailable to testify at trial because she \u201cwas not released from a subpoena from another county[.]\u201d The State has failed to show that Defendant was given a prior opportunity to cross-examine Agent Howell. Accordingly, the admission into evidence of the lab report violated Defendant\u2019s confrontation right. See id. at 452, 681 S.E.2d at 305.\nDefendant also argues that Agent Gregory\u2019s testimony, based upon the inadmissible lab report, was likewise inadmissible. In the present case, Agent Gregory testified concerning her review of a forensic analysis performed by another agent in connection with the prosecution of a criminal charge; Agent Gregory\u2019s testimony was therefore \u201ctestimonial.\u201d Agent Gregory\u2019s testimony was based upon the lab report prepared by Agent Howell, and as noted above, the State has failed to show that Defendant was given a prior opportunity to cross-examine Agent Howell. We must therefore determine whether Agent Gregory \u201cwas offering an independent opinion or merely summarizing another non-testifying expert\u2019s report or analysis].]\u201d Brewington, 204 N.C. App. at 78, 693 S.E.2d at 189.\nAgent Gregory testified that Exhibit 3-A was analyzed by a chemist, other than herself, in the SBI laboratory. Although Agent Gregory testified that she reviewed \u201cthe case file . . . before it was published to the officers,\u201d the record contains no indication that Agent Gregory personally performed or witnessed any tests performed on Exhibit 3-A. Notably, Agent Gregory testified that she was called in at 11:00 a.m. on the day of trial to serve as a \u201csubstitute analyst\u201d in place of Agent Howell, who had originally been subpoenaed to testify in Defendant\u2019s case. As in Williams, we find the following facts to be decisive: there is no indication in the record that Agent Gregory performed any tests on Exhibit 3-A, nor is there any indication that Agent Gregory was present when Agent Howell performed tests on Exhibit 3A. See Williams, 208 N.C. App. at 427-28, 702 S.E.2d at 237-38. We therefore conclude that Agent Gregory was \u201cmerely summarizing another non-testifying expert\u2019s report or analysis[,]\u201d Brewington, 204 N.C. App. at 78, 693 S.E.2d at 189, and that the admission of Agent Gregory\u2019s testimony was error.\nFinally, we must determine \u201cwhether the admission of the [evidence] through another testifying expert is reversible error.\u201d Id. Defendant argues that the erroneous admission of the lab report and Agent Gregoiy\u2019s testimony identifying Exhibit 3-A as cocaine constituted plain error because, without the admission of that evidence, the State would have failed to meet its burden of proving every element of the offense \u2014 possession of a controlled substance in a local confinement facility \u2014 beyond a reasonable doubt. Defendant specifically argues that, without the improperly admitted evidence, the State failed to prove that Exhibit 3-A was a controlled substance. We disagree.\nThe offense of possession of a controlled substance in a local confinement facility requires proof that a defendant was in possession'of a controlled substance. See N.C. Gen. Stat. \u00a7 90-95(a)(3) and (e)(9) (2009). As explained above, in Williams, 208 N.C. App. at 427-28, 702 S.E.2d at 237-38, this Court held that expert testimony identifying evidence as cocaine was admitted in error. The Williams Court then determined that, other than the improperly admitted evidence, the only proof offered to show the identity of the substance was the testimony of two police officers who identified the substance as \u201ccrack cocaine\u201d and a statement by the defendant admitting that the substance was cocaine. Id. at 428, 702 S.E.2d at 238. The Williams Court concluded that the \u201ctestimony of defendant and police officers alone, despite both officers\u2019 credentials and experience, [wa]s insufficient to show that the substance possessed was cocaine. The State must still present evidence as to the chemical makeup of the substance.\u201d Id. (citations omitted).\nThe Supreme Court addressed this issue in Nabors. In Nabors, the State presented lay testimony as evidence of the defendant\u2019s possession of cocaine, but did not present expert testimony as to the chemical analysis of the substance. Nabors, 365 N.C. at 311-12, 718 S.E.2d at 626. This Court concluded that the State\u2019s evidence was insufficient to prove an essential element of the crime because of the absence of expert testimony \u201c \u2018to establish the identity of the controlled substance beyond a reasonable doubt.\u2019 \u201d State v. Nabors, 207 N.C. App. 463, 472, 700 S.E.2d 153, 159 (2010) (citation and brackets omitted).\nThe Supreme Court reversed this Court\u2019s decision on the grounds that, \u201cwhile the State has the burden of proving every element of the charge beyond a reasonable doubt, when a defense witness\u2019s testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony[.]\u201d Nabors, 365 N.C. at 313, 718 S.E.2d at 627.-The Supreme Court ultimately held that \u201cthe testimony of defendant\u2019s witness, which identified as cocaine the items sold to the undercover operative, provided evidence of a controlled substance sufficient to withstand defendant\u2019s motion to dismiss.\u201d Id. The Supreme Court further noted that, \u201c[assuming arguendo that admission of the lay testimony was error, defendant cannot satisfy his burden of showing plain error inasmuch as his own evidence established that the substance sold was cocaine.\u201d Id.\nOur reading of Williams and Nabors compels us to conclude that a defendant\u2019s statement that he was in possession of a certain controlled substance is sufficient to satisfy the State\u2019s burden of proving that element of the offense. However, we note that in Nabors, the defense witness\u2019 testimony arose in the following exchange during his direct examination:\n\u201cQ. Did you have cocaine?\nA. Yes, sir.\u201d\nNabors, 365 N.C. at 309, 718 S.E.2d at 625.\nIn the present case, Defendant testified that he had a \u201cpiece of dope ... in the jail[.]\u201d Defendant also answered affirmatively when he was asked on cross-examination: \u201cYou had the drugs in your pocket in the jail[?]\u201d Martin Jones (Officer Jones), of the Detention Division, Carteret County Sheriff\u2019s Office, testified that he observed Lt. Eubanks retrieve a \u201c[y] ello wish rock-like substance\u201d from Defendant\u2019s pocket, and Lt. Eubanks similarly testified that he retrieved a \u201cyellowish in color, rock type\u201d substance that was consistent with being crack cocaine. The statements of Defendant, Officer Jones, and Lt. Eubanks were the only proof offered as to the identity of Exhibit 3-A, other than the improperly admitted lab report and testimony of Agent Gregory.\nIn Nabors, the Supreme Court instructed that \u201cwhen a defense witness\u2019s testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony[.]\u201d Nabors, 365 N.C. at 313, 718 S.E.2d at 627 (emphasis added). We must therefore determine whether Defendant\u2019s own statement that he had \u201ca piece of dope\u201d amounted to a \u201ccharacterizfation of] a putative controlled substance as a controlled substance\u201d for the purposes of satisfying the State\u2019s burden of proof.\nWe are unable to find any evidence in the record offered by the defense regarding a definition of the term \u201cdope.\u201d Black\u2019s Law Dictionary\u2019s complete definition of \u201cdope\u201d is as follows: \u201c1. A thick liquid used esp. for medicinal purposes. 2. Slang. A drug, esp. a narcotic.\u201d Black\u2019s Law Dictionary 563 (9th ed. 2009). Nonetheless, it is clear from the context of this case that Defendant was referring to the item he placed in his mouth during his arrest. In the context of this case, including Defendant\u2019s having agreed to purchase \u201cdrugs\u201d for Mr. Sanderson, however reluctantly, it is clear that Defendant was referring to some illicit substance.\nWhile Defendant\u2019s testimony concerning his having been in possession of \u201cdope\u201d or \u201cdrugs\u201d does not in any way indicate what type of \u201cdope\u201d or \u201cdrugs\u201d he was in possession of or indicate what schedule of controlled substance was involved, we hold that it does clearly provide evidence of Defendant\u2019s having been in possession of a controlled substance. Because Defendant was charged only with having been in possession of a controlled substance in a local confinement facility, we conclude Defendant\u2019s \u201cown evidence established that the substance was\u201d a controlled substance. Nabors, 365 N.C. at 313, 718 S.E.2d at 627. We therefore conclude that Defendant has not \u201csatisfied his burden of showing plain error\u201d arising from the erroneous admission of the lab report and Agent Gregory\u2019s testimony identifying Exhibit 3-A as cocaine. Id.\nIneffective Assistance of Counsel\nDefendant also argues that he received ineffective assistance of counsel. \u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citation omitted). \u201cDeficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness.\u201d Id. (citation and quotation marks omitted). \u201cGenerally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Id. (citations and quotation marks omitted).\nIn the present case, Defendant argues that his trial counsel\u2019s failure to object to the admission of the lab report and Agent Gregory\u2019s identification testimony constituted ineffective assistance of counsel. As stated above, Defendant must show that his trial counsel\u2019s failure to object prejudiced him. Id. In light of Nabors, which was decided after Defendant\u2019s trial, and after our Court\u2019s first opinion in this matter, a determination of whether Defendant was prejudiced by his trial counsel\u2019s failure to object will involve an analysis of the evidence offered by defense witnesses concerning the identity of the controlled substance and his counsel\u2019s trial strategy. Defendant has not made any arguments in his original brief concerning that aspect of this case.\nIt is well established that ineffective assistance of counsel claims \u201cbrought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.\nState v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (citation omitted). We therefore dismiss Defendant\u2019s claim for ineffective assistance of counsel without prejudice to his ability to file a motion for appropriate relief in the trial court.\nNo plain error in part, dismissed in part.\nJudges ERVIN and McCULLOUGH concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Janette S. Nelson, for the State.", "Paul Y.K. Castle for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD EUGENE POOLE, JR.\nNo. COA11-21-2\n(Filed 16 October 2012)\n1. Constitutional Law \u2014 right to confrontation \u2014 nontestifying analyst\u2019s lab report \u2014 possession of controlled substance in local confinement facility \u2014 no plain error\nThe trial court did not commit plain error by erroneously admitting a lab report and an agent\u2019s, testimony identifying an exhibit as cocaine based on a nontestifying analyst\u2019s report. Because defendant was charged only with having been in possession of a controlled substance in a local confinement facility, defendant\u2019s own statement that he had \u201ca piece of dope\u201d established that the substance was a controlled substance.\n2. Constitutional Law \u2014 effective assistance of counsel \u2014 claim dismissed without prejudice\nDefendant\u2019s claim of ineffective assistance of counsel was dismissed without prejudice to his ability to file a motion for appropriate relief in the trial court.\nAppeal by Defendant from judgment entered 6 April 2010 by Judge Jack W. Jenkins in Superior Court, Carteret County. This case was originally heard in the Court of Appeals on 16 August 2011, and an unpublished opinion was issued 20 September 2011, State v. Poole, _N.C. App._, 716 S.E.2d 268 (2011). Upon discretionary review granted by the Supreme Court and by order dated 23 August 2012 the Supreme Court vacated this Court\u2019s decision and remanded the case to the Court of Appeals for reconsideration in light of the Supreme Court\u2019s decisions in State v. Nabors, 365 N.C. 306 (2011), and State v. Lawrence,_. N.C.._. (2012).\nAttorney General Roy Cooper, by Assistant Attorney General Janette S. Nelson, for the State.\nPaul Y.K. Castle for Defendant." }, "file_name": "0185-01", "first_page_order": 195, "last_page_order": 205 }