Opinion
No. 05-818.
Filed April 18, 2006.
Carteret County Nos. 04 CRS 51119-51121.
Appeal by defendant from judgments entered 1 December 2004 by Judge Benjamin G. Alford in Superior Court, Carteret County. Heard in the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State. McAfee Law, P.A., by Robert J. McAfee, for defendant-appellant.
William Allen Nolon, Jr. (defendant) was convicted of possession with intent to sell and deliver cocaine, keeping and maintaining a building for the purpose of keeping and selling controlled substances, and conspiracy to commit the felony of possession with the intent to manufacture, sell and deliver cocaine. The trial court sentenced defendant to two consecutive terms of ten months to twelve months in prison.
At trial, Detective Mark Farlow (Detective Farlow) of the Carteret County Sheriff's Department testified that he received information from a confidential informant (the informant) that Isaiah Williams was selling drugs from his mobile home located on Lot 23 in the Ebb Tide Mobile Home Park (the mobile home). The informant agreed to participate in a controlled buy of drugs at the mobile home. Detective Farlow searched the informant, secured the informant's personal belongings, and gave the informant two twenty dollar bills in marked money (the marked bills).
Detective Farlow testified that he observed the informant enter the mobile home and leave about five minutes later. Detective Farlow then met with the informant and recovered two rocks of crack cocaine from the informant.
Detective Farlow further testified: "[The] informant advised me that Isaiah [Williams] took the [marked bills], went into the bedroom and gave the [marked bills] to another male subject who at the time fit the description of [defendant] and Isaiah Williams returned to the . . . informant and gave the crack cocaine to the . . . informant." Defendant did not object to this testimony.
Sergeant Troy Edwards (Sergeant Edwards) testified that he searched the mobile home and detained defendant. Sergeant Edwards further testified that Detective Farlow examined money taken from defendant's wallet and identified the marked bills. Defendant appeals.
I.
Defendant first argues the trial court erred by denying his motion to dismiss. Specifically, defendant argues there was insufficient evidence that defendant entered into an agreement with Isaiah Williams to possess cocaine. Defendant has limited his argument to the conspiracy charge, thus abandoning any claim of insufficient evidence to support the other two charges. See N.C.R.App. P. 28(b)(6).
"A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). The State may establish an agreement by evidence tending to show the existence of a mutual, implied understanding; the State need not show an express agreement. Id.
On a motion to dismiss for insufficiency of the evidence, a trial court must determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A trial court views the evidence in the light most favorable to the State, drawing all inferences in the State's favor. Id. at 584, 461 S.E.2d at 663. "[T]he trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State." State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996). Our Court does not review the credibility of witnesses or the weight of the testimony. State v. Buckom, 126 N.C. App. 368, 375, 485 S.E.2d 319, 323, cert. denied, Buckom v. North Carolina, 522 U.S. 973, 139 L. Ed. 2d 326 (1997).
In the present case, Detective Farlow testified that Isaiah Williams took the marked bills from the informant, went into a bedroom, gave the marked bills to a man matching defendant's description, and returned with crack cocaine. This testimony was evidence that a reasonable mind could have accepted as adequate to support the conclusion that defendant agreed with Isaiah Williams to possess and sell cocaine. Defendant contends that Detective Farlow's hearsay testimony was insufficient to show an agreement. However, the trial court properly considered all admitted evidence that was favorable to the State when it ruled upon defendant's motion to dismiss. See Jones, 342 N.C. at 540, 467 S.E.2d at 23. Our Court does not weigh the testimony on appeal. See Buckom, 126 N.C. App. at 375, 485 S.E.2d at 323. We overrule defendant's assignment of error.
II.
Defendant next argues the trial court committed plain error by admitting the marked bills into evidence without requiring the State to call the informant as a witness. Specifically, defendant argues that "[t]he informant was at the heart of this case, and the trial court should not have permitted introduction of evidence derived from [the informant's] testimony without also requiring [the informant's] presence on the witness stand." Defendant properly assigned plain error to this issue.
Our Supreme Court has stated that
[p]lain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to [the] appellant of a fair trial.State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Under the plain error rule, a "defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
Because defendant argues the trial court should not have allowed the introduction of the marked bills without requiring the the informant to testify at trial, we address whether the trial court erred by failing to require the presence of the informant. Defendant concedes he did not seek disclosure of the informant's identity and did not object to Detective Farlow's testimony regarding the informant's statements. Defendant also concedes he solicited details of the informant's statements during cross-examination of Detective Farlow. Defendant made no attempt prior to trial, or during trial, to identify the informant or to request the informant's presence at trial. Moreover, although defendant argues "it became clear" at trial that the trial court should have either (1) required the presence of the informant or (2) struck the introduction of the marked bills, defendant did not raise an objection at trial and has not shown at what point "it became clear" that the trial court should have intervened. For the reasons stated above, the trial court did not err by not requiring the presence of the informant and therefore did not commit plain error by admitting the introduction of the marked bills as evidence. We overrule this assignment of error.
III.
Defendant next argues the trial court erred by denying defendant's objection to the State's closing argument. In its closing argument, the State argued as follows:
You'll remember [defense counsel] asked did anybody mention [defendant]. Well, not by name but the . . . informant said he went in there and he gave the money to Isaiah Williams who gave the money to an unidentified black man wearing a silver and gold (sic) shirt who gave Isaiah the cocaine, who then delivered the cocaine —
[DEFENSE COUNSEL]: Objection. Not the evidence.
THE COURT: Overruled.
[THE STATE]: Who was wearing the silver and black shirt, the unknown black man involved in that negotiation, involved in that transaction, Mr. Dallas Cowboys jersey himself, [defendant].
Defendant specifically argues the State improperly characterized the evidence because Detective Farlow did not testify that the informant said defendant gave Isaiah Williams the cocaine.
"Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom." State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999). Where an opposing party objects to a closing argument as improper, we must determine whether the trial court abused its discretion by overruling the objection. Jones, 355 N.C. at 131, 558 S.E.2d at 106. We first determine whether the remarks were improper. Id. If the remarks were improper, we determine whether a defendant was prejudiced. Id.
In the present case, while the informant did not say that defendant gave the cocaine to Isaiah Williams, this was a reasonable inference from the informant's statement. Detective Farlow testified the informant said he gave the marked bills to Isaiah Williams, who then took the money into a bedroom and gave the money to a person matching defendant's description. Thereafter, Isaiah Williams returned with cocaine and gave it to the informant. It was reasonable to infer that when Isaiah Williams gave the money to defendant, defendant gave the cocaine to Isaiah Williams. The State's argument was not improper.
Moreover, even assuming, arguendo, that the State improperly characterized the evidence, defendant was not prejudiced. The trial court instructed the jury as follows:
Now, if in the course of making a final argument a lawyer attempts to restate a portion of the evidence and your recollection of that evidence differs from that of the lawyer, you are, in recalling and remembering the evidence, to be guided exclusively by your own recollection of the evidence.
Accordingly, we overrule this assignment of error.
IV.
Defendant argues "[t]he trial court committed plain error by failing to intervene ex mero motu during the State's closing argument to prevent the [State] from testifying about crack cocaine `culture' and from shifting the burden of proof from the State to . . . defendant." "The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." Jones, 355 N.C. at 133, 558 S.E.2d at 107. "In determining whether the [State's] argument was grossly improper, this Court must examine the argument in the context in which it was given and in light of the overall factual circumstances to which it refers." State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d 599, 609, cert. denied, Tyler v. North Carolina, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997). An improper closing argument may not be prejudicial if there is overwhelming evidence of the defendant's guilt. State v. McEachin, 142 N.C. App. 60, 70-71, 541 S.E.2d 792, 800, appeal dismissed and disc. review denied, 353 N.C. 392, 548 S.E.2d 152 (2001).
In the present case, defendant did not object to those portions of the State's closing argument that defendant now challenges. We therefore determine whether the State's remarks were grossly improper. Defendant argues the State improperly detailed a crack cocaine culture in which crack cocaine is "[t]he most powerful substance" in the world and has "destroyed entire neighborhoods." The State then described Camden, New Jersey, as having a "60 percent unemployment rate" due to crack cocaine.
The State then argued as follows:
The reason [crack cocaine] has this power is because it is so addictive that people who get hooked on it have to have it to the exclusion of every single other human urge, whether it be sex, food, anything. . . . For a five minute euphoria, people have been known to break into houses, kill people, sell their bodies, sell their girlfriend's [sic] bodies just to get five minutes of pleasure.
The State also described the relationship between crack cocaine addicts and the suppliers who exercise power over them.
In State v. Love, 131 N.C. App. 350, 507 S.E.2d 577 (1998), aff'd per curiam, 350 N.C. 586, 516 S.E.2d 382 (1999), cert. denied, Love v. North Carolina, 528 U.S. 944, 145 L. Ed. 2d 280 (1999), the defendant was convicted of several cocaine offenses. Id. at 352, 507 S.E.2d at 579. During its closing argument, the State argued as follows:
How much misery is contained in this bag? How many families would do without for what is contained in this bag? How many children will be abused or go without or neglected [sic] because of what is in this bag, and how does it get to people to be used?
Id. at 359, 507 S.E.2d at 583. The defendant argued the trial court erred by allowing the State's comments. Id. at 358-59, 507 S.E.2d at 583. However, our Court held that, in light of the standard of review, the State's arguments were not grossly improper. Id. at 359, 507 S.E.2d at 583-84.
In the present case, the State also made several generalized comments regarding the addictive nature of cocaine. The State's comments in the present case were similar to the comments made by the State in Love. Moreover, Detective Farlow's testimony, in conjunction with Sergeant Edwards' testimony, was overwhelming evidence of defendant's guilt. Accordingly, the State's closing argument was not grossly improper.
Defendant also argues that, during its closing argument, the State improperly questioned why defendant did not produce witnesses at trial to corroborate defendant's testimony. However, in State v. Howard, 320 N.C. 718, 360 S.E.2d 790 (1987), our Supreme Court held that "it is permissible for the [State] to bring to the jury's attention `a defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State.'" Id. at 728, 360 S.E.2d at 796 (quoting State v. Mason, 317 N.C. 283, 287, 345 S.E.2d 195, 197 (1986)). Our Supreme Court has also held that the State's comments upon a defendant's failure to produce alibi witnesses to corroborate the defendant's alibi did not constitute an impermissible comment on the defendant's failure to testify. State v. Young, 317 N.C. 396, 415, 346 S.E.2d 626, 637 (1986). The State's comments on defendant's failure to produce witnesses to corroborate defendant's defense theory or to refute the State's evidence was not error.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).