Opinion
No. COA08-680.
Filed May 5, 2009.
Martin County Nos. 04 CRS 50480 50483.
Appeal by Defendants from judgments entered 5 December 2007 by Judge William C. Griffin, Jr. in Superior Court, Martin County. Heard in the Court of Appeals 3 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn L. Strange and Assistant Attorney General Robert D. Croom, for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for Defendant Vernon Morrell Smith; Russell J. Hollers III for Defendant Joe Louis Brown, Jr.
A jury found Defendant Vernon Morrell Smith and Defendant Joe Louis Brown, Jr. guilty of conspiracy to traffic in more than 400 grams of cocaine on 5 December 2007. The trial court sentenced each to a term of 175 months to 219 months in prison. Defendants Smith and Brown appeal.
The State presented the following evidence at trial. Augustus MaGee (Agent MaGee), a special agent with the Office of Inspector General, United States Postal Service (U.S.P.S.), stationed in LosAngeles, California testified to the following. In April 2004, Agent MaGee became aware of a person by the name of "Vernon Smith, Jr." (Smith, Jr.) who was cashing postal money orders at a post office in Los Angeles. The money orders were purchased in Richmond, Virginia. Agent MaGee and a narcotics task force officer with the Los Angeles Police Department set up surveillance at Smith, Jr.'s home on 27 April 2004. The officers observed Smith, Jr. leave his residence with another male. The two men went to the post office where Smith, Jr. cashed a money order from Richmond, Virginia for $500.00. Agent MaGee seized the money order after it was cashed by Smith, Jr. The money order was from someone named "James Smith."
Throughout the record on appeal, Augustus MaGee's name is sometimes spelled as Augustus "McGee."
Smith, Jr. left the post office and went to a Target store. He was observed in Target purchasing a heat-sealing device used to seal plastic. Smith, Jr. then returned to his home. He later left his home and was observed carrying a pink plastic baby tub that appeared to have a blanket inside. The tub was wrapped in clear plastic. Agent MaGee again followed Smith, Jr. from his home to the post office where Smith, Jr. cashed another money order for $500.00. This money order was also from Richmond, Virginia and was also from someone named "James Smith." Smith, Jr. next went into the Mail Connection, a commercial mailbox receiving agency, where an officer saw Smith, Jr. give the pink plastic baby tub to an employee. The officer observed the employee "box up [the pink plastic baby tub] and place it into a large brown cardboard box." Smith, Jr. next went to the Westchester post office in Los Angele where he mailed the box. Agent MaGee seized the box at the post office. The box was addressed to "Sandi Mitchell, 2448 West Island Road, Williamston, North Carolina." The return address on the box was "Jessie Mitchell, 3840 West Manhattan Beach Boulevard, Lawndale, California." This return address was later determined to be fictitious. A narcotics detection dog from the Los Angeles Police Department sniffed the box and indicated the possibility of a controlled substance inside the box. Agent MaGee obtained a search warrant and then opened the box. Inside the box, Agent MaGee found a pink plastic baby tub with a baby blanket inside. The blanket was wrapped around a medium-sized bundle containing what was later identified as one kilo of cocaine. Agent MaGee then repackaged the box and contacted postal inspectors in Raleigh, North Carolina. Agent MaGee spoke with Postal Inspector Luis Castrillon (Agent Castrillon) and forwarded the box to Raleigh postal inspectors for further investigation.
Agent Castrillon testified that after speaking with Agent MaGee, he contacted the Williamston Post Office and the Martin County Sheriff's Office regarding the investigation to let them know a controlled delivery of the package was planned for 30 April 2004. Marsha Bowen (Bowen), the rural letter carrier for the postal route, drove her vehicle during the controlled delivery. Agent Castrillon rode in the backseat of Bowen's vehicle. Brian Edmondson (Officer Edmondson), chief investigator for the Martin County Sheriff's Office, along with several other local law enforcement officers, were in nearby vehicles. Bowen delivered the box to 2448 West Island Road to a "Samuel Bland." Bowen and Agent Castrillon then drove away.
Bowen testified to the following. Samuel Bland (Bland) resided at 2448 West Island Road. Prior to April 2004, Bowen had delivered packages from California addressed to Bland at 2448 West Island Road. Bowen pulled into 2448 West Island Road to make the delivery on 30 April 2004. Defendant Brown was standing in the driveway with Bland. Bowen delivered the box to Bland and then pulled out of the driveway. She observed Damon Moore and Defendant Smith following behind her in a white vehicle. Bowen had observed them following her on at least three previous occasions when she had made deliveries to the residences of Bland or Damon Moore. The white vehicle passed Bowen's vehicle, and Bowen was able to identify the passenger as Defendant Smith, and so informed Agent Castrillon.
Agent Castrillon was again called to testify and stated that Bowen told him she had seen Damon Moore and Defendant Smith following her in a similar manner prior to 30 April 2004. After Bowen informed Agent Castrillon of Defendant Smith's identity, Agent Castrillon quickly exited Bowen's vehicle and got into Officer Edmondson's vehicle. Agent Castrillon and Officer Edmondson then pursued the white vehicle, using lights and sirens. Two or three miles down the road, Damon Moore and Defendant Smith pulled over and were apprehended by Agent Castrillon and Officer Edmondson. The officers identified Damon Moore as the driver of the white vehicle and Defendant Smith as the passenger. Agent Castrillon further investigated the money orders and recovered copies of twenty-four money orders, all of which were purchased in Richmond, Virginia and negotiated in Los Angeles, California. "Vernon Smith" was listed as the payor on two of the money orders and "Joe L. Brown" was listed as the payor on five of the money orders. The payees listed on the money orders were: "Vernon Smith" on fifteen of the money orders; "Joe L. Brown, Jr." on eight of the money orders; and "Donna Smith" on one of the money orders. The total amount of the twenty-four money orders was $16,125.00.
On the money orders listing "Vernon Smith" as the payor or the payee, the following identifying information associated with Defendant Smith appeared: (1) Defendant Smith's driver's license number was listed on a money order purchased on 20 January 2004; (2) Defendant Smith's address was listed for the payee on the money order purchased on 25 February 2004; and (3) unspecified identifying information connected to Defendant Smith was listed on the money order cashed on 8 March 2004. Donna Smith, who appeared as a payor twice and a payee once, was identified as the ex-wife of Defendant Smith, although her address was the same as the address associated with Defendant Smith.
Pursuant to a plea agreement, Bland testified for the State to the following. Bland's wife had worked with Damon Moore and had introduced Bland to Defendant Brown. Three or four months prior to 30 April 2004, Defendant Brown asked Bland to receive a package for him in exchange for $200.00. Bland was supposed to give the package he received on 30 April 2004 to Defendant Brown in exchange for $200.00. Defendant Brown arrived at Bland's house on the morning of 30 April 2004 approximately ten minutes before Bowen delivered the box. Bland and Defendant Brown were arrested before Bland was paid for receiving the box. Bland admitted at the time of his arrest that he knew the package he was to receive would have drugs in it.
Defendant Smith did not present any evidence at trial.
Defendant Brown testified on his own behalf that he paid Melvin Moore to take care of Defendant Brown's grandmother's house in North Carolina. Defendant Brown was in North Carolina the weekend of 29-30 April 2004 for the purpose of paying Melvin Moore $200.00, and planned to give Melvin Moore the $200.00 on 30 April 2004.
Defendant Brown used money orders in business transactions involving his father because his father had "messed up" his bank account. Defendant Brown also had a disagreement with his bank regarding fees for his gas station and he decided to use money orders for safety purposes. Defendant Brown had also considered getting into the business of low-rider cars and had bought $10,000.00 worth of money orders. Defendant Brown denied telling Agent Castrillon that he gave the cash from the money orders to Smith, Jr. to buy drugs to send to North Carolina, or Virginia, or "to give to a Mexican." Defendant Brown said his lawyer had told him to tell the police a story and he would "get six months, and . . . be out." Defendant Smith filed a motion to suppress and to dismiss the indictment against him on 24 January 2006. The trial court denied Defendant Smith's motion.
At the conclusion of the trial, but before instructions to the jury were given, Defendant Smith moved for a mistrial on the basis of the State's "repeated arguments that the jury should consider matters that took place in California." Defendant Smith also moved to reopen the special requests for jury instructions to ask the trial court to specifically instruct the jury on the language in State v. Minter, 111 N.C. App. 40, 432 S.E.2d 146 (1993). The trial court denied both of Defendant Smith's motions.
The cases of Defendant Smith and Defendant Brown were joined for trial. A jury found each guilty of conspiracy to traffic in more than 400 grams of cocaine on 5 December 2007. Defendants appeal.
I.
Defendant Smith raises three issues on appeal. We consider each of Defendant Smith's arguments.
A.
Defendant Smith first argues that the trial court's denial of his motion to suppress and to dismiss his indictment violated his constitutional and statutory rights. We disagree.
Defendant Smith filed a motion to suppress and to dismiss his indictment on 24 January 2006. We first address Defendant Smith's argument as it applies to his motion to dismiss the indictment. N.C. Gen. Stat. § 15A-952 provides that a motion to dismiss an indictment must be made at or before the time of arraignment if a written request is filed for arraignment. . . . If a written request for arraignment is not filed, then [the] motion . . . must be filed not later than 21 days from the date of the return of the bill of indictment as a true bill. N.C. Gen. Stat. § 15A-952(c) (2007); see N.C. Gen. Stat. § 15A-955 (2007). The record in this matter is void of a written request for arraignment. A notice of return of bill of indictment dated 6 July 2004 was filed in Defendant Smith's case. Thus, in order to have been timely filed, the motion to dismiss the indictment should have been filed within twenty-one days of the notice of return of bill of indictment — no later than 27 July 2004. See N.C.G.S. § 15A-952(c). Defendant Smith's motion to dismiss the indictment was filed on 24 January 2006 and thus was not timely filed. Therefore, Defendant Smith has waived his claim on this issue.
We next address Defendant Smith's argument with regard to his motion to suppress. Defendant Smith argues that his detainment by Agent Castrillon and Officer Edmondson constituted an arrest and that the officers did not have probable cause to make such an arrest. The State contends that law enforcement's original detention of the vehicle in which Defendant Smith was riding constituted a stop, for which reasonable suspicion was required. Upon stopping the vehicle, probable cause was established when Defendant Smith identified himself as "Vernon Smith," due to Officer Edmondson's prior knowledge of "Vernon Smith" from the investigation of the U.S.P.S.
"The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures." State v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001). "It applies to seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994). Only unreasonable investigatory stops are unconstitutional. See Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 899 (1968). "An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)). "In determining whether reasonable suspicion existed for a stop or frisk, a trial court must consider the totality of the circumstances." State v. Stone, 179 N.C. App. 297, 302, 634 S.E.2d 244, 248 (2006).
An arrest, however, requires more than a reasonable suspicion of criminal activity. N.C. Gen. Stat. § 15A-401(b)(1) (2007) provides that "[a]n officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence." Our Supreme Court has held that the existence of probable cause "depends upon `whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145 (1964)).
Thus, we must first determine whether Defendant Smith's detainment constituted a stop for which reasonable suspicion was required or an arrest for which probable cause was required. "`The test for determining whether an individual is in custody or under arrest is whether, under the totality of the circumstances, the "suspect's freedom of action is curtailed to a degree associated with formal arrest."`" State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 194 (2001) (quoting Park v. Shiflett, 250 F.3d 843, 850 (4th Cir., 2001)). "`[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Glenn-Robinson v. Acker, 140 N.C. App. 606, 613, 538 S.E.2d 601, 608 (2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980)). "`A seizure becomes an arrest when "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest."`" Id. at 614-15, 538 S.E.2d at 609 (internal citations omitted).
In the present case, the detainment of the vehicle in which Defendant Smith was a passenger constituted a stop for which a reasonable suspicion of criminal activity was required. Agent Castrillon and Officer Edmondson pursued the vehicle in which Defendant Smith was a passenger with lights flashing and sirens sounding. The vehicle stopped after driving two or three miles, and Defendant Smith was identified as "Vernon Smith," at which time he was placed under arrest, for which probable cause was required.
Considering the totality of the circumstances, the law enforcement officers had a reasonable suspicion that Defendant Smith was involved in criminal activity. Bowen recognized Defendant Smith from prior deliveries to the residences of Bland and Damon Moore and, on at least three prior occasions, she had seen Defendant Smith following her after she made deliveries. Additionally, the vehicle in which Defendant Smith was a passenger failed to stop immediately when being pursued by a police vehicle with its lights flashing and sirens sounding. When the vehicle did stop, Defendant Smith was identified as "Vernon Smith," a name known to be involved in a scheme based on the activities of Vernon Smith, Jr. in California. Moreover, Defendant Smith was apprehended in close proximity to the area where the package containing cocaine was delivered. Thus, the facts were sufficient to create a reasonable suspicion that Defendant Smith was involved in criminal activity. Upon being identified as "Vernon Smith," probable cause existed for the law enforcement officers to conduct a warrant less arrest of Defendant Smith. Accordingly, the trial court did not err in admitting evidence derived from Defendant Smith's arrest and in denying Defendant Smith's motion to suppress.
B.
Defendant Smith next argues that the trial court erred in denying his motion to dismiss the charge of conspiracy to traffic400 grams or more of cocaine based on insufficiency of the evidence. We disagree.
"On a defendant's motion for dismissal on the ground of insufficiency of the evidence, the trial court must determine only 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. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "`Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."`" State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (quoting State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982)). "The evidence must be considered in the light most favorable to the state; all contradictions and discrepancies therein must be resolved in the state's favor; and the state must be given the benefit of every reasonable inference to be drawn in its favor from the evidence." Id.
Defendant Smith was found guilty of conspiracy to traffic 400 grams or more of cocaine pursuant to N.C. Gen. Stat. § 90-95(h)(3)(c). "A criminal conspiracy is an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means." State v. Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998). "Direct proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence." State v. Aleem, 49 N.C. App. 359, 363, 271 S.E.2d 575, 578 (1980). "A conspiracy `may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'" State v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000) (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
In the present case, the trial court instructed the jury that:
[Defendant Smith] in this case has been accused of conspiracy to traffic in cocaine in an amount more than 400-400 grams or more. For you to find that — a defendant guilty of this offense, the State must prove the following things beyond a reasonable doubt: first, with regard to [Defendant Smith], the State must satisfy you beyond a reasonable doubt that
[Defendant Smith] and Joe Louis Brown and Samuel Earl Bland entered into an agreement; second, that that agreement was to traffic in cocaine.
Defendant Smith argues the State failed to present sufficient evidence that he entered into an agreement with Bland and Defendant Brown to traffic more than 400 grams of cocaine. We disagree.
Giving the State the benefit of all reasonable inferences as we are required to do, the circumstantial evidence presented at trial tended to show the following with regard to an agreement between Defendant Smith, Bland, and Defendant Brown: First, the State presented evidence that Defendant Smith's son mailed the package containing 999 grams of cocaine to Williamston, North Carolina, where Defendant Smith was arrested. The State also presented evidence that Defendant Smith possessed a California identification card that indicated Defendant Smith and Smith, Jr. resided at the same address from where the cocaine was mailed. Defendant Smith was in a vehicle in close proximity to Bland's home when Bowen delivered the package to Bland. Law enforcement officers found a receipt in Defendant Brown's wallet which identified "Vernon Smith" as the payee of a $500.00 money order. In California, Defendant Smith cashed over $4,000.00 in money orders that were purchased in Richmond, Virginia. Defendant Smith and Defendant Brown cashed money orders that, combined, totaled over $6,000.00.
Considering the above facts in their totality, there was substantial evidence for the jury to conclude that Defendant Smith, Bland, and Defendant Brown conspired to traffic through the mail approximately one kilogram of cocaine from California to Williamston, North Carolina. We hold that the trial court did not err in denying Defendant Smith's motion to dismiss.
C.
Lastly, Defendant Smith argues the trial court abused its discretion by denying his motion to re-open the requests for special jury instructions that the jury should not consider conduct by individuals in California not charged in the conspiracy. We disagree.
Ordinarily, "[t]he choice of instructions given to a jury `is a matter within the trial court's discretion and will not be overturned absent a showing of abuse of discretion.'" State v. Shepherd, 156 N.C. App. 603, 607, 577 S.E.2d 341, 344 (2003) (quoting State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002)). However, Defendant Smith's motion was based on the constitutional ground of notice guaranteed by Article I, section 23 of the North Carolina Constitution. (T p. 426). In State v. Brower, our Supreme Court, in reviewing a motion for continuance, held that although "a motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling is not subject to review absent abuse of discretion[,]" Brower, 289 N.C. 644, 660, 224 S.E.2d 551, 562 (1976), where "the motion is based on a right guaranteed by the federal and state constitutions, the question presented is one of law and not of discretion and the ruling of the trial court is reviewable on appeal." Id. Accordingly, we review the trial court's denial of Defendant Smith's motion to re-open the requests for special jury instructions de novo.
Defendant Smith argues the trial court erred by failing to instruct the jury not to consider matters that took place in California involving Smith, Jr., Defendant Smith's ex-wife, and other individuals. In State v. Minter, our Court held that "the trial court erred in instructing the jury that they could find the defendant guilty of conspiracy without limiting the conspiracy to one with the co-conspirator[.]" Minter, 111 N.C. App. 40, 42, 432 S.E.2d 146, 148 (1993). In Minter, the jury instructions
included a statement that, "if you find from the evidence and beyond a reasonable doubt that on or about the alleged date that the defendant agreed with at least one other person . . . [to commit the offense] and that the defendant and at least one other person intended at the time the agreement was made that it would be carried out, then it would be your duty to return a verdict of guilty. . . ." Id. Because the evidence in Minter tended to show that the defendant may have conspired with individuals in addition to the named co-conspirator, the charge "put the defendant on trial for an offense additional to that named in the bill of indictment[,]" and we, therefore, ordered a new trial. Id. at 403, 432 S.E.2d at 148; see also State v. Mickey, 207 N.C. 608, 178 S.E. 220 (1935).
Defendant Smith argues that based on our holding in Minter, he was entitled to a special jury instruction that the jury should not consider others who were not in the conspiracy. The present case is distinguishable from Minter, however. First, the trial court instructed the jury that the charged conspiracy was only among Defendant Smith, Defendant Brown, and Bland. In its instructions, the trial court did not reference any other individuals who may have been discussed during testimony. Furthermore, the indictment specifically set out that Defendant Smith was in a conspiracy with Defendant Brown and Bland. Although the evidence presented at trial included the actions of individuals other than Defendant Smith and the named co-conspirators, the State never argued that these other individuals were involved in the charged conspiracy. Accordingly, the denial of Defendant Smith's motion to re-open requests for special instructions was not analogous to the jury instructions in Minter. The trial court did not err in its jury instructions.
II.
Defendant Brown raises two questions on appeal. We consider each of Defendant Brown's arguments.
A.
Defendant Brown first assigns as error the trial court's denial of his motion for continuance. Defendant Brown argues the trial court's denial of his motion to continue on the ground that Defendant Brown's counsel was not prepared for trial was in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and sections 19 and 23 of Article I of the North Carolina Constitution. We disagree.
In most circumstances, a motion to continue is addressed to the sound discretion of the trial court, and absent a manifest abuse of that discretion, the trial court's ruling is not reviewable. However, when a motion to continue raises a constitutional issue, as in the instant case, the trial court's ruling is fully reviewable by an examination of the particular circumstances of each case. Generally, the denial of a motion to continue, whether a constitutional issue is raised or not, is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error. Rogers, 352 N.C. at 124, 529 S.E.2d at 675 (internal citations omitted).
In determining whether to grant a continuance, the trial court should consider, inter alia, the following factors: (1) Whether the failure to grant a continuance would be likely to result in a miscarriage of justice; (2) Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that more time is needed for adequate preparation. N.C. Gen. Stat. § 15A-952(g) (2007).
In considering whether denial of a motion for continuance was prejudicial in State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 336 (1993), our Supreme Court held that prejudice is presumed "without inquiry into the actual conduct of the trial" when "the likelihood that any lawyer, even a fully competent one, could provide effective assistance" is remote. [ United States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667 (1984)]. A trial court's refusal to postpone a criminal trial rises to the level of a Sixth Amendment violation "only when surrounding circumstances justify" this presumption of ineffectiveness. Id. at 661-62, 80 L. Ed. 2d at 669-670.
In order to establish that a denial of a motion for continuance constituted a violation of a defendant's federal and state constitutional rights, "a defendant must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense." Id.
Defendant Brown's motion to continue was based on the following:
Defendant Brown was indicted on 28 June 2004 for conspiracy to traffic in cocaine by possession. At the time of Defendant Brown's indictment, he was represented by Ms. Smallwood, who was subsequently disbarred.
Defendant Brown was then represented by Jamal Summey (Mr. Summey). Mr. Summey was allowed to withdraw from the case on 29 January 2007. In its order allowing Mr. Summey to withdraw, the trial court found that "[Defendant Brown] has acknowledged that he can immediately obtain alternative counsel and the granting of the motion will not cause delay."
The trial court also found that "[Defendant Brown] has acknowledged that he has inspected the discovery provided by the state which his attorney produced in court." In addition, the trial court's order permitting Mr. Summey to withdraw ordered that "[Defendant Brown] shall immediately retain counsel of his choice and notify the District Attorney when he has done so[,]" and that "[Defendant Brown] shall appear at the next session of court to provide assurance that he has obtained substitute counsel."
The trial court appointed Kathryn Fagan (Ms. Fagan) on 6 September 2007 to represent Defendant Brown. The trial court noted:
The [trial court] is . . . aware personally that [Defendant Brown] repeatedly appeared, I don't know how many times after Mr. Summey was allowed to withdraw, promising me he was going to hire another lawyer time after time after time at administrative sessions. He never — he'd always come back with no lawyer. Ultimately the [trial court], trying to see that [Defendant Brown's] rights were preserved, insisted that he fill out an affidavit of indigency which indicated he was indigent and appointed Ms. Fagan to represent him.
Ms. Fagan was appointed to represent Defendant Brown almost three months prior to trial. The State provided discovery to Ms. Fagan on 31 October 2007. In the week prior to trial, on 29 and 30 November 2007, the State provided Defendant Brown with the curriculum vitae of its forensic chemist, copies of a United States Postal money order to Defendant Smith, and notes from an interview with Bowen. The State provided Defendant Brown with summaries of money orders on 3 December 2007.
Defendant Brown filed his motion for continuance on the morning of the trial, 3 December 2007. In support of his motion, Defendant Brown cited the following:
1. The above styled case is set for trial on December 3, 2007.
2. Counsel for Defendant was appointed this matter at the September Administrative Session of Superior Court.
3. Counsel for Defendant had numerous matters on the Superior Court calendars in November of 2007.
4. The State mailed discovery in this matter on October 31, 2007 which was received by the Defense in the first week of November.
5. Defense counsel was in Superior Court for much of November and unable to meet with her client and prepare for this matter.
6. As of the Friday before trial, discovery is still being provided by the State via email and USPS[.]
7. Although counsel acknowledges that this is a very old case, due to her recent involvement and lack of opportunity to prepare a continuance is imperative.
A hearing on Defendant Brown's motion for continuance was held on 3 December 2007. Ms. Fagan stated that she "never had a chance to really speak with [her] client until just last Thursday where he met [her] in court in Plymouth and [they] went over a few things." The following exchange occurred between the trial court and Ms. Fagan:
THE COURT: What is it that you need to do on
[Defendant Brown's] behalf?
MS. FAGAN: Well, I understand that there are a couple of witnesses that [Defendant Brown] wants me to talk to that he only told me about . . . this morning.
THE COURT: Did [Defendant Brown] tell you about them . . . in Plymouth?
MS. FAGAN: I didn't hear about them in Plymouth, but I — what — what we concluded in Plymouth was that I obviously needed a lot more time to go through this with both [Defendant Brown] and just by myself with the paperwork.
In his brief, Defendant Brown argues Ms. Fagan was prejudiced by the State providing discovery at "the eleventh hour." However, the issue of discovery is not raised by Defendant Brown's assignments of error, and is thus not preserved for our review. "Our scope of appellate review is limited to those issues set out in the record on appeal." N.C.R. App. P. 10(a). Thus, in considering the trial court's denial of Defendant Brown's motion to continue, we will consider Ms. Fagan's opportunity for preparation for trial, which is the basis of Defendant Brown's first assignment of error.
"The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (citing State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981)). Defendant Brown has failed to demonstrate how he was prejudiced by the denial of his motion to continue. Defendant Brown's only example of how his defense was impaired was that Ms. Fagan had been unable to prepare Defendant Brown for his testimony and advise him of the consequences of providing testimony that was inconsistent from his past statements, which is not a basis for granting Defendant Brown a new trial.
Furthermore, Defendant Brown has failed to allege any further trial preparation his counsel could have conducted had his motion to continue been granted. Ms. Fagan and Defendant Brown did not identify the witnesses they wished to interview but were unable to interview given the time restraints, nor could they explain how additional testimony from other witnesses could have aided Defendant Brown's defense. Thus, we hold Defendant Brown has failed to show he was prejudiced by the trial court's denial of his motion to continue. This assignment of error is overruled.
B.
Defendant Brown also argues the trial court erred by admitting evidence of his plea negotiations with the State and denying Defendant Brown's motion for a mistrial in violation of N.C. Gen. Stat. § 8C-1, Rule 410 and N.C. Gen. Stat. § 15A-1025. We disagree.
"The standard of review for admission of evidence over objection is whether it was admissible as a matter of law, and if so, whether the trial court abused its discretion in admitting the evidence." State v. Bodden, ___ N.C. App. ___, ___, 661 S.E.2d 23, 27 (2008). N.C. Gen. Stat. § 8C-1, Rule 103 (2007) requires that error may not be predicated on a ruling which admits evidence unless a timely objection appears of record. "Where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995). "The admission of evidence without objection . . . waives prior or subsequent objection to the admission of evidence of a similar character." State v. Jones, 137 N.C. App. 221, 232, 527 S.E.2d 700, 707 (2000). "Our standard of review when examining a trial court's denial of a motion for mistrial is abuse of discretion." State v. Simmons, ___ N.C. App. ___, ___, 662 S.E.2d 559, 561 (2008) (citing State v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000)).
N.C. Gen. Stat. § 8C-1, Rule 410 (2007) provides that "[a]ny statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn" is not admissible against the defendant who participated in the plea discussions. Similarly, N.C. Gen. Stat. § 15A-1025 (2007) also provides that "[t]he fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings." Defendant Brown argues on appeal that testimony regarding the 28 February 2005 discussion with Agent Castrillon and Defendant Brown's sworn statement was improperly admitted because this discussion was a plea discussion.
Defendant Brown argues that during his cross-examination by the State, he denied talking to Smith, Jr. about mailing marijuana to Richmond, Virginia. Thereafter, the following exchange occurred:
[THE STATE:] So when you told Agent Castrillon that
[you were planning to mail marijuana to Richmond], you were lying to him?
[DEFENDANT BROWN:] Sir, my lawyer told me to tell them a story. He said you'll get six months, and you'll be out.
They — it seemed that the District Attorney was not trying to drop this case. I really didn't have — there was no real evidence against me, but it was looking as if I might have something to do with it. Defense counsel objected to the above testimony from Defendant Brown, and the trial court overruled the objection. Following a bench conference, the State continued with its cross-examination of Defendant Brown:
In response to Defendant Brown's objection to this testimony, an unrecorded bench conference was held. The trial court's ruling on Defendant Brown's objection does not appear in the record. However, because the State continued to question Defendant Brown regarding his conversation with Agent Castrillon on 28 February 2005 and Defendant Brown's sworn statement, we can assume Defendant Brown's objection was overruled.
[THE STATE:] All right. Now — so this talk about Smith, Jr. mailing you some weed is just a story; is that — is that your testimony?
[DEFENDANT BROWN:] Yes, sir. That was the story that Agent Castrillon he had decided — well, he made up a story as to how he thought this particular operation was supposed to go or whatever.
[THE STATE:] And did you just go with it?
[DEFENDANT BROWN:] After my lawyer came to me and handed me a blank plea agreement and said here, sign this, sign this, sign this.
[THE STATE:] I'm not asking about your plea agreement, Mr. Brown. I'm asking about what you told Agent Castrillon.
On redirect examination, Defendant Brown provided further testimony as to his discussion with Agent Castrillon and his sworn statement:
[DEFENSE COUNSEL:] Why did [your former attorney] suggest that you go along with the police — the police version of what they think happened?
[DEFENDANT BROWN:] Well, he was saying that the evidence was close. It was — it looked like I might have done it, and it looked like I might not have done it, and the jury —
[DEFENSE COUNSEL:] Did they offer you any kind of plea agreement?
[THE STATE:] Well, objection, Your Honor.
[DEFENDANT BROWN:] Yes.
[THE COURT:] Overruled.
[DEFENSE COUNSEL:] And was that plea agreement similar to what Mr. Bland was offered?
[DEFENDANT BROWN:] Yes, it was, exactly the same.
[DEFENSE COUNSEL:] So you could have taken six months and not faced the possibility of 20 years; is that right?
[DEFENDANT BROWN:] Yes, ma'am.
[DEFENSE COUNSEL:] So that story that — that version of what the police thought happened was starting to look pretty good, wasn't it?
[DEFENDANT BROWN:] Yes, it was.
[DEFENSE COUNSEL:] Why did you back out?
[DEFENDANT BROWN:] Because I started feeling bad inside. I was like I'm — I'm allowing myself to be convicted of a crime that I didn't do, and it's not right.
Following Defendant Brown's testimony, the State again called Agent Castrillon to the stand. Agent Castrillon described his discussion with Defendant Brown on 28 February 2005 as follows:
Basically we sat down, and we told him we were going to take his statement based on the fact that there was a possible plea, basically what we call a debrief.
Okay. In these debriefs we expect the individuals to be truthful with us because again that plea is contingent on their truthfulness.
Okay. [These are] the handwritten notes that I took based on that statement: On February 28, 2005, I, Joe Louis Brown, provided the following statement to Postal Inspectors Luis Castrillon and Augustus MaGee.
In determining whether the trial court erred in admitting evidence of a plea discussion, we apply a two-part test: (1) whether the defendant's communications with law enforcement constituted a "plea discussion," and (2) whether the contested testimony resulted in prejudice to the defendant, entitling him to a new trial. State v. Walker, 167 N.C. App. 110, 120, 605 S.E.2d 647, 655 (2004) (applying two-part test, holding the trial court erred in admitting evidence of letters between the defendant and the district attorney and awarding the defendant a new trial). "`[P]lea bargaining implies an offer to plead guilty upon condition.'" State v. Curry, 153 N.C. App. 260, 264, 569 S.E.2d 691, 694 (2002) (quoting U.S. v. Porter, 821 F.2d 968, 976-97 (4th Cir. 1987)). "The purpose of N.C. Gen. Stat. § 15A-1025 is to `facilitate plea discussions and agreements by protecting both defendants and prosecuting officials from being penalized for engaging in practices which are consistent with the objectives of the criminal justice system.'" Walker, 167 N.C. App. at 123, 605 S.E.2d at 656 (quoting State v. Wooten, 86 N.C. App. 481, 482, 358 S.E.2d 78, 78 (1987) (internal quotation marks omitted).
In Walker, the defendant had been convicted of robbery with a dangerous weapon and assault inflicting serious injury. Id. at117, 605 S.E.2d at 653. Our Court held the defendant was prejudiced where the prosecutor repeatedly brought to the jury's attention letters between the defendant and the district attorney where the defendant "offered to plead guilty to the charges in several of the letters, stated he had made a big mistake, and was willing to confess what he had done and who planned the robbery."
Id. at 123, 605 S.E.2d at 656. Walker is distinguishable from the present case, however.
Assuming arguendo that Defendant Brown's statement constituted a plea agreement, Defendant Brown has failed to show he was prejudiced by the admission of this evidence. Unlike the defendant in Walker, the testimony regarding the sworn statement Defendant Brown provided to Agent Castrillon did not include evidence of a wish to plead guilty, a willingness to confess, or a showing of remorse. Defendant Brown's statement only contained information about the details of his involvement with Defendant Smith and Bland. Defendant Brown's testimony did not indicate he was trying to confess, but instead demonstrated that he was being told to accept a plea bargain for a crime he claimed not to have committed. Furthermore, much of the testimony which Defendant Brown now argues was in error was either volunteered by Defendant Brown or solicited by defense counsel. "A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2007).
Also, there was overwhelming evidence presented at trial connecting Defendant Brown to the conspiracy to traffic in cocaine. Defendant Brown was standing in the driveway with Bland when the package containing cocaine was delivered on 30 April 2004. Defendant Brown was the named payee on eight of the money orders associated with the charged conspiracy. Lastly, Bland testified that Defendant Brown had asked Bland to receive a package for him in exchange for $200.00. Considering the overwhelming evidence of Defendant Brown's guilt, we cannot hold he was prejudiced by the testimony regarding his statement to Agent Castrillon.
The trial court did not err by admitting evidence of this discussion or by denying Defendant Brown's motion for mistrial.
Defendants Smith and Brown did not argue their remaining assignments of error on appeal and therefore these assignments of error are deemed abandoned pursuant to N.C.R. 28(b)(6).
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).