{ "id": 6815416, "name": "STATE OF NORTH CAROLINA v. BILLY WAYNE WARD", "name_abbreviation": "State v. Ward", "decision_date": "2013-04-02", "docket_number": "No. COA12-1125", "first_page": "386", "last_page": "393", "citations": [ { "type": "official", "cite": "226 N.C. App. 386" } ], "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": "653 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639999 ], "year": 2007, "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0892-01" ] }, { "cite": "557 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "547" }, { "page": "554" }, { "page": "547", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380605 ], "year": 2001, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0549-01" ] }, { "cite": "407 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552935 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0363-01" ] }, { "cite": "522 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "106" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241898 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "548" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0543-01" ] }, { "cite": "688 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "834", "parenthetical": "noting that by failing to object at trial to the admission of a testimonial lab report, the defendant failed to preserve the issue for appeal" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175335 ], "year": 2010, "pin_cites": [ { "page": "497", "parenthetical": "noting that by failing to object at trial to the admission of a testimonial lab report, the defendant failed to preserve the issue for appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0490-01" ] }, { "cite": "728 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(g)" }, { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "588 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957951 ], "year": 2003, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0382-01" ] }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "82", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "37", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "196 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "283 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559249 ], "year": 1973, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0479-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "572 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "102", "parenthetical": "citing State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999); Porter v. Suburban Sanitation Serv., Inc., 283 N.C. 479, 490, 196 S.E.2d 760, 767 (1973)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511250 ], "year": 2002, "pin_cites": [ { "page": "416", "parenthetical": "citing State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999); Porter v. Suburban Sanitation Serv., Inc., 283 N.C. 479, 490, 196 S.E.2d 760, 767 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0415-01" ] }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "year": 2004, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "304", "parenthetical": "citing Crawford v. Washington, 541 U.S. 36, 68 (2004)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "year": 2009, "pin_cites": [ { "page": "452", "parenthetical": "citing Crawford v. Washington, 541 U.S. 36, 68 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319", "parenthetical": "citing Mann Media, Inc. v. Randolph City. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647", "parenthetical": "citing Mann Media, Inc. v. Randolph City. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "187 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375393 ], "year": 2007, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0593-01" ] } ], "analysis": { "cardinality": 818, "char_count": 17684, "ocr_confidence": 0.724, "pagerank": { "raw": 9.562025562381326e-08, "percentile": 0.5254323707675621 }, "sha256": "66ead3c49dfee266bbf5cf197c5c7672b8f9c71491df71636ee6635d66bc67b6", "simhash": "1:1adb3468f07ebdfb", "word_count": 2827 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge STEELMAN concurs with separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. BILLY WAYNE WARD" ], "opinions": [ { "text": "HUNTER JR., Robert N., Judge.\nBilly Wayne Ward (\u201cDefendant\u201d) appeals from a judgment sentencing him to 90-117 months imprisonment following a jury verdict convicting him of Trafficking Oxycodone by Possession. On appeal, Defendant argues the trial court committed plain error by allowing a \u201csubstitute analyst to testify concerning lab results,\u201d in violation of his Sixth Amendment right to confrontation. Additionally, Defendant contends he was denied the effective assistance of counsel. For the following reasons, we dismiss without prejudice Defendant\u2019s ineffective assistance of counsel claim, and find no prejudicial error with respect to Defendant\u2019s other arguments.\nI. Factual & Procedural History\nOn 12 April 2010, Defendant paid Sergeant Brandon Jones (\u201cSergeant Jones\u201d), an undercover narcotics investigator with the Alamance County Sherriff\u2019s Office, seven pills of oxycodone in exchange for property that was represented as stolen. Defendant paid Sergeant Jones two pills for wood products and five pills in exchange for a freezer. These seven pills were sent to the State Bureau of Investigation (\u201cSBI\u201d) Lab for analysis. Special Agent Kristin Kirkland (\u201cAgent Kirkland\u201d) performed an analysis of the seven pills on 12 April 2010. Agent Kirkland\u2019s analysis determined that the seven pills contained 3.2 grams of oxycodone, a schedule II opium derivative. Agent Kirkland\u2019s analysis was transcribed into an SBI Lab report labeled State\u2019s Exhibit No. 10.\nAlso on 12 April 2010, Magistrate Wendy N. Sheldon issued a search warrant for Defendant\u2019s residence. The warrant was executed on 13 April 2010. The search yielded, among other things, two medicine bottles and an envelope with pills enclosed. Jennifer Lindley (\u201cMs. Lindley\u201d), a chemical analyst with the SBI, analyzed the contents of the two medicine bottles. One bottle contained fourteen tablets; the other contained twenty-two tablets. Ms. Lindley\u2019s analysis found that the combined thirty-six tablets from the two bottles contained a total of 16.4 grams of oxycodone. Ms. Lindley did not analyze the eight tablets found in the envelope, pursuant to the SBI\u2019s policy of ceasing further analysis once a sufficient drug weight to sustain a trafficking charge has been reached. The analysis of the pills found in Defendant\u2019s home formed the basis of Defendant\u2019s indictment for Trafficking by Possession. The transaction between Defendant and Sergeant Jones formed the basis of Defendant\u2019s indictment for Delivery of Oxycodone.\nThe matters came on for trial together at the 27 February 2012 session of Alamance County Superior Court. At trial, Ms. Lindley testified regarding her personal analysis of the contents of the two medicine bottles. Shortly thereafter, Judge Manning excused the jury from the courtroom to conduct a voir dire examination of Ms. Lindley.\nDuring voir dire, Ms. Lindley was asked about the SBI Lab Report prepared by Agent Kirkland detailing the analysis of the seven pills obtained by Sergeant Jones on 12 April 2010, which constituted the primary evidence related to Defendant\u2019s Delivery of Oxycodone charge. Ms. Lindley stated she had not reviewed Agent Kirkland\u2019s notes.\nJudge Manning then informed Defendant\u2019s attorney (\u201cMr. Watkins\u201d) that Ms. Lindley would not be testifying as to Agent Kirkland\u2019s report or to the contents of pills Agent Kirkland analyzed. Nevertheless, Judge Manning emphasized to Mr. Watkins that Ms. Lindley had already testified that the pill bottles she had personally analyzed contained an amount of oxycodone sufficient to sustain the trafficking conviction.\nMr. Watkins then informed the court that Defendant would stipulate that the pills analyzed in Agent Kirkland\u2019s report were indeed oxyco-done, noting that \u201call of [the pills] are the same.\u201d Judge Manning then asked Defendant directly if he would stipulate that the pills Defendant gave to Sergeant Jones were oxycodone. Defendant said \u201c[y]es.\u201d\nThe State then discussed with Judge Manning how to properly introduce Agent Kirkland\u2019s lab report. Judge Manning concluded the voir dire and allowed the jury back into the courtroom. Upon the jury\u2019s return, the State questioned Ms. Lindley regarding Agent Kirkland\u2019s report (State\u2019s Exi\u00fcbit No. 10). Agent Kirkland\u2019s report was subsequently admitted into evidence without objection.\nOn 29 February 2012, a jury convicted Defendant of (1) Trafficking by Possession and (2) Delivery of Oxycodone. The trial court sentenced Defendant to 90-117 months imprisonment for the Trafficking by Possession conviction. At the State\u2019s request, the trial court arrested judgment on Defendant\u2019s conviction for Delivery of Oxycodone. Defendant filed a notice of appeal on 2 March 2012.\nII. Jurisdiction & Standard of Review\nAs Defendant appeals from the final judgment of a superior court, an appeal of right lies with this Court pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\nThis Court reviews alleged violations of constitutional rights de novo. State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007). Under de novo review, this Court \u201cconsiders the matter anew and freely substitutes its own judgment for that of the [trial court].\u201d In re Greens of Pine Glen Ltd. P\u2019ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph City. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).\nIII. Analysis\nWe first note that Defendant is objecting only to the introduction of evidence related to his conviction for Delivery of Oxycodone, for which judgment has been arrested at the request of the State. The admission of the challenged evidence (the Kirkland Report and Ms. Lindley\u2019s testimony regarding it) had no bearing on the admissibility of Ms. Lindley\u2019s testimony regarding her own analysis of the pills which formed the basis of Defendant\u2019s Trafficking by Possession conviction. Accordingly, we are confused as to why Defendant\u2019s appellate counsel concludes in her brief that the \u201cjudgment for trafficking should be vacated and remanded.\u201d Nevertheless, we address the merits of Defendant\u2019s arguments.\nDefendant first contends that the trial court committed plain error by allowing Ms. Lindley to testify to the results of the chemical analysis performed by Agent Kirkland (the \u201cKirkland report\u201d). Defendant argues allowing Ms. Lindley to testify in this manner violated his Sixth Amendment right to confront and cross-examine the witnesses against him, which he had not waived. We disagree.\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) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). The U.S. Supreme Court has applied the holding in Crawford to \u201ctestimonial\u201d lab reports, holding that \u201c[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence [is] error Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009). Nevertheless, \u201c[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.\u201d Id. at 314 n.3.\n\u201cIn order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C. R. App. R 10(a)(1). Furthermore, \u201c[a] constitutional issue not raised at trial will generally not be considered for the first time on appeal.\u201d Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (citing State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999); Porter v. Suburban Sanitation Serv., Inc., 283 N.C. 479, 490, 196 S.E.2d 760, 767 (1973)).\nWhen a criminal defendant fails to properly object at trial, \u201cthe burden is on the party alleging error to establish its right to review; that is, that an exception, \u2018by rule or law was deemed preserved or taken without any such action,\u2019 or that the alleged error constitutes plain error.\u201d State v. Walker, 316 N.C. 33, 37, 340 S.E.2d 80, 82 (1986) (emphasis added).\nPlain error is \u201calways to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done\u2019 State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis in original). \u201cUnder 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.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).\nHere, Defendant made no objection to either Ms. Lindley\u2019s testimony regarding the Kirkland report or the subsequent admission of the Kirkland report itself into evidence. Indeed, Defendant stipulated that the pills given to Sergeant Jones and subsequently analyzed by Agent Kirkland contained oxycodone. Because Defendant stipulated that the pills contained oxycodone, \u201cany error in the admission of the evidence as to the nature of the substance . . . cannot rise to the level of plain error.\u201d State v. Baldwin, 161 N.C. App. 382, 389, 588 S.E.2d 497, 503 (2003). Accordingly, Defendant\u2019s argument in this respect is overruled.\nDefendant additionally contends the State failed to comply with the notice requirements of N.C. Gen. Stat. \u00a7 90-95(g) (2011). Section 90-95(g) allows the State to admit into evidence a certified SBI chemical analysis report without relying on the testimony of the analyst who actually performed the analysis. However, before doing so, the State must (1) notify the Defendant of its intent to use the report fifteen business days prior to the proceeding; and (2) Defendant\u2019s attorney must have failed to file a written objection to the report. See N.C. Gen. Stat. \u00a7 90-95(g).\nIn the case sub judice, the record is not clear as to whether the State gave Defendant the requisite fifteen-day notice regarding its intent to introduce the Kirkland report. In his appeal, Defendant notes, \u201c[i]t is the State\u2019s burden to show that it has complied with the requirements of N.C.G.S. \u00a7 90-95(g)(l), and that a defendant has waived his constitutional right to confront a witness against him.\u201d State v. Whittington, _ N.C. App. _, _, 728 S.E.2d 385, 390 (2012). However, this case is readily distinguishable from Whittington.\nUnlike Whittington, the record in the instant case confirms Defendant failed to object at all to Ms. Lindley discussing the Kirkland report. In fact, both Defendant and Defendant\u2019s counsel stipulated to the very substance of the Kirkland report (i.e., that the seven pills given to Sergeant Jones were in fact oxycodone). Thus, Defendant has not preserved the issue for appellate review. See N.C. R. App. P. 10(a)(1); see also State v. Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010) (noting that by failing to object at trial to the admission of a testimonial lab report, the defendant failed to preserve the issue for appeal).\nDefendant also claims his \u201cstipulation was not a knowing and intelligent waiver of his right to confront Agent Kirkland. \u201d However, this Court has previously rejected the contention that the \u201cacceptable consent [for an in-trial concession] requires the same formalities as mandated by statute for a plea of guilty.\u201d State v. Perez, 135 N.C. App. 543, 548, 522 S.E.2d 102, 106 (1999). Where a Defendant has been \u201cadvised of the need for his authorization for the concession,\u201d has \u201cdiscussed the concession with his counsel,\u201d and has \u201cacknowledged that his counsel had made the argument desired by him,\u201d such consent has been held to not violate the Sixth Amendment right against self-incrimination. Id. (citing State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991)).\nHere, the record belies Defendant\u2019s contention that his stipulation was not a \u201cknowing and intelligent waiver.\u201d The trial court was explicit in announcing to Defendant that Ms. Lindley would not testify as to Agent Kirkland\u2019s report without Defendant\u2019s consent. Nevertheless, Defendant\u2019s attorney stated, \u201cmy client says that he\u2019ll stipulate that they\u2019re oxycodone. He says all of [the pills] are the same.\u201d The trial judge then asked Defendant to confirm that he would stipulate that the pills Defendant gave to Sergeant Jones in exchange for the freezer and wood products (i.e. the pills subsequently analyzed by Agent Kirkland) were oxycodone. Defendant said \u201c[y]es,\u201d to this inquiry, admitting that the pills were oxycodone.\nThis on-the-record exchange suggests that Defendant had discussed this stipulation with his attorney, was aware of the need for his verbal consent, and that the attorney was arguing Defendant\u2019s case in a manner of which Defendant had approved. See Perez, 135 N.C. App. at 548, 522 S.E.2d at 106; State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991). As such, we hold Defendant\u2019s actions to be a knowing and intelligent waiver of his right to confront Agent Kirkland.\nFinally, Defendant alleges he was denied the effective assistance of counsel. We dismiss this argument without prejudice to the right of Defendant to file a motion for appropriate relief in the trial court.\n\u201cIn general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.\u201d State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). \u201cOur Supreme Court has instructed that should the reviewing court determine [that ineffective assistance of counsel] claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant\u2019s rights to reassert them during a subsequent MAR proceeding.\u201d Id. at 554, 557 S.E.2d at 547 (quotation marks and citation omitted).\nIn the instant case, we are limited to the record before us to determine whether trial counsel\u2019s decision to allow his client to stipulate as to the contents of the pills constituted a trial strategy. The record does not disclose whether this decision was a trial strategy. We therefore dismiss these issues without prejudice to the right of Defendant to file a motion for appropriate relief.\nNO ERROR.\nJudge GEER concurs.\nJudge STEELMAN concurs with separate opinion.\n. Agent Kirldand was unavailable as a witness.", "type": "majority", "author": "HUNTER JR., Robert N., Judge." }, { "text": "STEELMAN, Judge,\nconcurring.\nI concur in the majority opinion in this case, but write separately because I believe that the arguments raised by counsel for the defendant on appeal are disingenuous, and that counsel should be sanctioned.\nOn appeal, counsel has a duty to make a fair presentation of the case to the Court. See N.C.R. App. R 34(a)(3). While counsel has the duty to zealously represent his or her client, the duty does not grant to counsel carte blanche to distort the facts of a case or to make misleading arguments.\nOn appeal, defendant asks that his \u201cconviction and judgment for Delivering Schedule II Controlled Substance Oxycodone to Undercover Officer... be vacated and dismissed and the defendant\u2019s conviction and judgment for trafficking should be vacated and remanded for a new trial. \u201d Since the trial court arrested judgment in case 10 CRS 52312, delivery of oxycodone to an undercover officer, that case is not properly before this Court. However, in the case that is properly before this Court, case 10 CRS 52305, trafficking in opium, defendant argues that the admission of Kirkland\u2019s report was in error and mandates a new trial. However, Kirkland\u2019s report did not deal with the drugs that were the basis of the trafficking charge. As to that charge, the analyst that tested those drugs, Lindley, testified at trial.\nIn arguing cases before an appellate court, counsel has a duty to apply the law to the facts of the case, not to twist the facts so that they fit a legal theory that will allow them to prevail in the case.\nI would impose sanctions upon counsel for the defendant pursuant to N.C.R. App. P. 34(a)(3) based upon a gross disregard of \u201cthe requirements of a fair presentation of the issues to the appellate court.\u201d I would further require that counsel for the defendant submit a copy of this opinion to the Office of the Appellate Defender.", "type": "concurrence", "author": "STEELMAN, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.", "Heather L. Rattelade, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLY WAYNE WARD\nNo. COA12-1125\nFiled 2 April 2013\n1. Constitutional Law \u2014 right to confrontation \u2014 testimony\u2014 chemical analysis performed by another agent\nThe trial court did not commit plain error in a trafficking oxyco-done by possession case by allowing a SBI chemical analyst to testify to the results of the chemical analysis performed by another SBI agent. Because defendant stipulated that the pills contained oxyco-done, any error in the admission of the evidence as to the nature of the substance could not rise to the level of plain error.\n2. Constitutional Law \u2014 effective assistance of counsel \u2014 claim dismissed without prejudice\nDefendant\u2019s effective assistance of counsel claim was dismissed without prejudice to the right of defendant to file a motion for appropriate relief in the trial court.\nJudge STEELMAN concurring in separate opinion.\nAppeal by defendant from judgment entered 29 February 2012 by Judge Howard E. Manning in Alamance County Superior Court. Heard in the Court of Appeals 27 February 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.\nHeather L. Rattelade, for defendant-appellant." }, "file_name": "0386-01", "first_page_order": 396, "last_page_order": 403 }