Opinion
No. 07-1144.
Filed April 15, 2008.
Wayne County No. 05 CRS058661-62.
Appeal by defendant from judgments entered 31 January 2007 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 19 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Sue Genrich Berry, for defendant-appellant.
Rigoberto Rosales-Villa ("defendant") appeals from judgments entered after a jury found him to be guilty of: (1) trafficking in cocaine by possession, delivery, and selling pursuant to N.C. Gen. Stat. § 90-95(h)(3) and (2) conspiracy to traffic in cocaine pursuant to N.C. Gen. Stat. § 90-95(i). We find no error.
I. Background
On 6 October 2005, the Wayne County Sheriff's Office Drug Enforcement Unit and Goldsboro Police Department officers, collectively known as the Goldsboro/Wayne County Drug Squad ("officers"), conducted a "buy bust" at defendant's residence. A "buy bust" is a procedure where an undercover officer or a confidential informant purchases drugs from a suspected drug dealer with marked money.
Prior to 6 October 2005, officers received information from Terrell Mack Edwards ("Edwards") that an individual known as "Cecil" was selling a substantial amount of cocaine in the New Hope area. "Cecil" was later identified as defendant. On 5 October 2005, the officers instructed Edwards to call defendant and arrange a cocaine purchase. Edwards complied, but defendant was unable to provide Edwards with the cocaine until the following day. On 6 October 2005, defendant met Edwards at Food Lion on New Hope Road, left the parking lot, and drove to defendant's mobile home.
Through surveillance, officers observed defendant and Edwards enter defendant's residence at approximately 3:11 p.m. At approximately 3:58 p.m., officers observed a red and white Ford pick-up truck drive up to defendant's residence. The driver of the vehicle was identified as Firmin Ramirez ("Ramirez"). Defendant had spoken with Ramirez the day before and asked if Ramirez could supply him with cocaine. Ramirez had obtained the cocaine and was delivering it to defendant when officers saw his vehicle approach defendant's residence.
Defendant walked outside, retrieved the package of cocaine from Ramirez, and went back inside his residence. Approximately ten minutes later, defendant walked back outside and handed Ramirez $4, 800.00 in cash, the agreed-upon price. Ramirez put the money into a bag and placed the bag inside his toolbox located in the bed of his truck. While this transaction took place, Edwards exited defendant's residence and left the area. Edwards contacted the officers and informed them that "the deal was done and that the money was being divided up[.]" Officers entered defendant's yard and arrested defendant and Ramirez.
Defendant was indicted on five counts: (1) trafficking cocaine by possession; (2) trafficking cocaine by transporting; (3) trafficking cocaine by delivery; (4) trafficking cocaine by selling; and (5) conspiracy to traffic cocaine. A jury found defendant to be guilty of all charges except trafficking cocaine by transporting.
The trial court sentenced defendant to concurrent terms of a minimum of seventy months to a maximum of eighty-four months imprisonment for each trafficking conviction. The trial court imposed a consecutive sentence of a minimum of seventy months to a maximum of eighty-four months imprisonment for defendant's conspiracy to traffic cocaine conviction. Defendant appeals.
II. Issues
Defendant argues the trial court erred by: (1) allowing defendant to be tried before a jury in the absence of an indictment or waiver of indictment; (2) overruling defendant's objection to testimonial evidence during trial; and (3) responding to questions from the jury without returning to open court.
III. Indictment
Defendant argues the trial court erred by allowing defendant to be tried before a jury in the absence of an indictment or waiver of indictment. Defendant abandons this assignment of error in his brief: "[t]he undersigned, having been provided a document identified as the missing indictment by the Office of the Clerk of Court, abandons this assignment of error." This assignment of error is dismissed.
IV. Testimonial Evidence
Defendant argues the trial court erred by overruling defendant's objection to testimonial evidence regarding: (1) "an unrelated drug investigation" in which Goldsboro Police Officer Brady Thompson ("Officer Thompson") was shot and (2) Wayne County Sheriff Deputy Brian Dawson's ("Sergeant Dawson") opinion on whether it was unusual for drug dealers to hide their illegal narcotics on property not connected to them. We disagree.
A. Standard of Review
"The standard of review for this Court assessing evidentiary rulings is abuse of discretion. A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Hagans, 177 N.C. App. 17, 23, 628 S.E.2d 776, 781 (2006) (internal citations and quotations omitted).
B. Officer Thompson's Testimony
During defendant's trial, the following testimony of Officer Thompson was admitted over defendant's objection:
[ADA]: Is it fair to say that you've done numerous operations like this one that was done October 5th through the 6th of 2005?
[Officer Thompson]: Yes, ma'am, that's correct. I've been the undercover person that made the purchases, I've participated in arresting the people that were selling the drugs.
[ADA]: And I guess it's fair to say you know first-hand the dangers associated with the drug business in trying to stamp out the drug business; is that true?
[Officer Thompson]: Yes ma'am, that's correct.
[ADA]: And how is that that you know the dangers?
[Officer Thompson]: On March the 15th of 2006, I was shot in a drug raid.
[ADA]: Was that —
[Defense Counsel]: I'd object and move to strike that as irrelevant to this trial.
[The Court]: The objection is overruled.
[ADA]: Was that in a type of situation that was similar to this one that occurred October the 5th or the — on the 6th of 2005?
[Officer Thompson]: Yes, ma'am, it was similar. The only difference is we were executing a search warrant.
[ADA]: What does that mean? To execute a search warrant?
[Officer Thompson]: In other words, we had a search warrant drawn up. We were to go to someone's house and —
[Defense Counsel]: Again, I'd object and move to strike as irrelevant to this trial.
[The Court]: The objection is overruled.
. . . .
[ADA]: When you heard that the deal has been done what did you do then?
[Officer Thompson]: Well, Sergeant Peters drove to the residence from our location and I immediately got out and assisted with the arrest, and once everybody was under control on the outside I immediately ran into the house to make sure nobody was inside.
[ADA]: Now why did you do that?
[Officer Thompson]: In case there's other people inside that could be involved in the operation, and we want to get them under control and in cuffs for their safety and ours also.
[ADA]: Did that seem sort of scary that that's the situation you were in when you got shot?
[Officer Thompson]: Yes. —
[Defense Counsel]: Objection.
[The Court]: The objection is overruled.
[Officer Thompson]: Yes, ma'am, but somebody has to do it. If not nobody — — no telling who could get shot or hurt.
Defendant argues that this portion of Officer Thompson's testimony was "entirely irrelevant" and "designed to engender sympathy for the State and prejudice against the [d]efendant." We disagree.
Only relevant evidence is admissible at trial. N.C. Gen. Stat. § 8C-1, Rule 402 (2005). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). "In criminal cases, Rule 401 should be broadly construed so that all evidence which may shed any light on the alleged crime is admitted." State v. Prevatte, 356 N.C. 178, 250, 570 S.E.2d 440, 480 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003). Here, Officer Thompson testified regarding the standard procedure of conducting a protective sweep of a defendant's residence following an arrest in drug trafficking cases. Officer Thompson's testimony clarified why this procedure was conducted at defendant's residence and why the procedure is important to officer safety.
Presuming arguendo Officer Thompson's testimony was irrelevant, defendant has failed to show any prejudice resulting from its admittance. This Court has stated:
The admission of irrelevant evidence is generally considered harmless error. The defendant has the burden of showing he was prejudiced by the admission of the evidence. In order to show prejudice, defendant must meet the statutory requirements of [N.C. Gen. Stat. §] 15A-1443(a) [(2005)]:
A defendant is prejudiced by errors . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.
State v. Melvin, 86 N.C. App. 291, 297, 357 S.E.2d 379, 383 (1987) (emphasis supplied) (internal citations and quotations omitted). In his brief, defendant states Officer Thompson's testimony was elicited to prejudice him, but fails to make an argument to support a showing that the jury would have reached a different verdict had Officer Thompson's testimony been excluded. Defendant failed to carry his burden of showing he was prejudiced by the admission of Officer Thompson's testimony. This assignment of error is overruled.
C. Sergeant Dawson's Testimony
During direct examination, Sergeant Dawson testified over defendant's general objection that, based on his experience in the drug trade, it is "a very common practice for drug dealers and people that are selling drugs, to No. 1, hide their illegal narcotics off of any property that may not be connected to them, whether it is buried." Sergeant Dawson further testified that Ramirez had been observed traveling to a particular tree and retrieving cocaine from a hole in the ground near the tree. Sergeant Dawson opined that if someone had stolen the rest of "the stash," Ramirez would have been held responsible by the supplier. Defendant made two general objections in response to this portion of Sergeant Dawson's testimony.
Defendant argues the trial court erred by overruling his general objections because Sergeant Dawson's testimony was based upon mere speculation and conjecture. We disagree.
Our Supreme Court has stated:
A general objection, when overruled, is ordinarily not adequate unless the evidence, considered as a whole, makes it clear that there is no purpose to be served from admitting the evidence. Counsel claiming error has the duty of showing not only that the ruling was incorrect, but must also provide the trial court with a specific and timely opportunity to rule correctly. State v. Jones, 342 N.C. 523, 535-36, 467 S.E.2d 12, 20 (1996) (citation omitted). See also N.C.G.S. § 8C-1, N.C. R. Evid. 103(a)(1).
State v. Williams, 355 N.C. 501, 576-77, 565 S.E.2d 609, 652 (2002) (emphasis supplied), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). In Williams, the Court concluded, "defendant's generalobjection . . . was not adequate to preserve this assignment of error properly for appellate review." 355 N.C. at 577, 565 S.E.2d at 652. See also State v. Johnson, 105 N.C. App. 390, 395, 413 S.E.2d 562, 565, disc. rev. denied, 332 N.C. 348, 421 S.E.2d 158 (1992); State v. Perry, 69 N.C. App. 477, 481-82, 317 S.E.2d 428, 432 (1984); State v. Edwards, 49 N.C. App. 547, 557, 272 S.E.2d 384, 391 (1980).
Defendant must give the trial court an opportunity to rule on any asserted error by stating a specific objection. Defendant's general objection to the content of Sergeant Dawson's testimony without an underlying basis is insufficient to properly preserve this assignment of error for appellate review. Williams, 355 N.C. at 577, 565 S.E.2d at 652. This assignment of error is dismissed.
V. Additional Jury Instructions
Defendant argues the trial court erred by giving additional instructions when it responded to questions from the jury without returning to open court and without first giving the parties an opportunity to be heard. We disagree.
N.C. Gen. Stat. § 15A-1234 (2005) states, in relevant part:
(c) Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard. The parties upon request must be permitted additional argument to the jury if the additional instructions change, by restriction or enlargement, the permissible verdicts of the jury. Otherwise, the allowance of additional argument is within the discretion of the judge.
(d) All additional instructions must be given in open court and must be made a part of the record.
After reviewing this statute, our Supreme Court stated, "the requirements set forth in subsection (c) do not apply when the court merely repeats a previous instruction . . . [and] [a]s long as the trial court is merely repeating a previous instruction, it is not necessary for the judge to give the parties an opportunity to be heard prior to reinstruction." State v. Weathers, 339 N.C. 441, 456, 451 S.E.2d 266, 274 (1994).
During deliberations, the jury sent the trial judge two handwritten questions. The jury's first question stated: "Does walking from the truck to house constitute trafficking? [I]s this transporting? [E]ven if the residence doesn't change?" The trial judge responded, "You, the jury must answer these questions." Thus, the trial court properly left this question of fact to be resolved by the jury. As noted above, the jury found defendant to be not guilty of trafficking cocaine by transporting.
The jury's second question stated, "Does unanimous decision have to be reached on all 5 counts for a guilty verdict?" To this question, the trial judge responded, "[e]ach count is considered separately. A unanimous decision must be reached on any count for a guilty verdict as to that count."
In the trial court's initial jury instructions, the trial judge stated: "I instruct you that a verdict is not a verdict until all 12 jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote." It is clear from the record, the trial court was merely repeating his previous instruction that the jury must render a unanimous decision as to each charge. Because the trial court repeated a previous instruction, it was not required to inform the parties or give the parties an opportunity to be heard pursuant to N.C. Gen. Stat. § 15A-1234. Id. The record shows the jury unanimously found defendant to be guilty of some charges and not guilty of others. This assignment of error is overruled.
VI. Conclusion
Defendant abandoned his first assignment of error and it is therefore dismissed. Defendant failed to carry his burden of showing he was prejudiced by the admission of Officer Thompson's testimony. Defendant's general objections to Sergeant Dawson's testimony were insufficient to properly preserve that assignment of error for appellate review.
The trial court did not give "additional instructions" when it responded to two questions submitted by the jury during deliberations. The trial court merely repeated a previous instruction and was not required to inform the parties or give the parties an opportunity to be heard pursuant to N.C. Gen. Stat. § 15A-1234. Id. Defendant received a fair trial, free from prejudicial errors he preserved, assigned, and argued. We find no error in the jury's verdicts or the judgments entered thereon.
No error.
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).