Opinion
No. COA02-1099
Filed 19 August 2003 This case not for publication
Appeal by defendant from judgment entered 22 May 2002 by Judge Russell J. Lanier, Jr. in Duplin County Superior Court. Heard in the Court of Appeals 23 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State. James M. Bell, for defendant-appellant.
Duplin County No. 01 CRS 51562.
Defendant Glennie Antonio Swann appeals from his conviction of trafficking in cocaine by possession and transportation and of conspiracy to traffic in cocaine. He argues (1) that the trial court erred in allowing a law enforcement officer to testify regarding sentences received for drug offenses not involving trafficking; (2) that the trial court erred in allowing a co-conspirator to testify that defendant had been dealing in drugs "for a long time"; and (3) that the trial court should have granted his motion to dismiss. We find no error in the evidentiary rulings and conclude that the motion to dismiss was properly denied.
Facts
On 19 May 2000, Agent Kelly Daughtry and Sergeant Michael Stevens of the Duplin County Sheriff's Office and Detective Eddie Eubanks of the Lenoir County Sheriff's Department met with a confidential informant ("CI") to set up an undercover narcotics buy. The CI arranged to purchase the narcotics from Michael Sloan.
Sloan testified that after receiving a telephone call from "the guy that wanted two ounces of crack," he agreed to meet the buyer at a BP station in Kenansville. Detective Eubanks, in an undercover capacity, and the CI drove to the BP station with Agent Daughtry and Sergeant Stevens conducting surveillance of the drug purchase. Eubanks and the CI sat inside their car until a champagne-colored, four-door car containing Sloan and another man, Anthony Williams, pulled up in front of them. After Sloan requested that the drug deal be relocated "down the road," Detective Eubanks and the CI left the BP and followed Sloan to an intersection where Sloan asked them to wait while he went to get the drugs. According to Sloan's testimony, he told them that he had to go to "Glennie['s] house" to get the crack.
Sloan and Williams then drove to defendant Glennie Swann's home. Williams testified that after they arrived, Sloan went into the trailer for about ten minutes. When he came out, Sloan told Williams that they needed to wait because defendant was coming with them. After approximately five minutes, defendant came out and got into the car with them. Sloan asked defendant "did he have it" and Swann replied, "yes." Williams drove Sloan and Swann back to the CI and Eubanks.
Eubanks and the CI were at the intersection with the hood of the car raised as if they were having car trouble. When the champagne-colored car pulled up behind them, Williams was driving the car, Sloan was in the front passenger seat, and defendant was sitting in the back. Sloan testified that, at that point, "Glennie gave me the crack and I got out. He was sitting in the back. I don't know where he got it from. When [we] got there, he pulled it out and gave it to me." Williams confirmed that Sloan asked defendant for the drugs and defendant handed them to Sloan.
Sloan got out of the champagne-colored car and climbed into the back seat of Eubanks' car. Eubanks placed scales on the center console between the passenger seat and the driver's seat. Sloan placed one bag on the scales and it weighed 29.1 grams. Eubanks picked up that bag and a second bag was placed on the scale that also weighed 29.1 grams. Eubanks handed Sloan $2,400.00. Sloan returned to the car with Williams and defendant and handed defendant $1,800.00 because, according to Sloan, "that's what he charged [him]."
The two bags contained crack cocaine. Later weighing confirmed that each bag actually weighed approximately 28.9 grams. This was the third sale that Sloan had made to undercover officers within two months.
Almost a year later, on 6 April 2001, Detective Stevens approached Sloan who chose to give a statement. Sloan identified defendant as the source of the drugs he sold, including the drugs sold on 19 May 2000. Sloan was not immediately arrested because it was understood that he would cooperate with the officers. When Sloan did not cooperate, he was arrested in July 2001. In addition, Williams, who was also identified by Sloan, was arrested in August 2001.
Defendant was ultimately indicted, based on the 19 May 2000 transaction, for felonious trafficking in drugs by manufacturing, transporting, possession, sale, and delivery; conspiracy to traffic in drugs; and maintaining a place to keep controlled substances. The court dismissed the charges for trafficking by manufacturing and for the maintaining a place to keep controlled substances. The jury found defendant guilty of trafficking in cocaine by possession and transportation and of conspiracy to traffic in cocaine.
I Defendant has failed to comply with Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure with respect to two of his assignments of error. Rule 28(b)(6) provides:
"Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R. App. P. 28(b)(6) (emphasis added). In his brief, defendant has argued, but cited no authority supporting his position, that (1) the trial court erred in allowing Detective Mike Stevens to express his opinion regarding whether people, who are about to be charged, often give statements with inconsistencies; and (2) the trial court committed reversible error by giving confusing jury instructions. Because defendant has cited no authority for these two arguments, they are deemed abandoned.
II
In his first assignment of error, defendant argues that the trial court erred in overruling defendant's objection to testimony by Special Agent Daughtry regarding whether active sentences are given to defendants convicted of drug offenses less serious than a trafficking drug offense. We need not decide whether, as defendant argues, Agent Daughtry's testimony constituted inadmissible opinion testimony because defendant opened the door to this testimony on recross-examination.
During the cross-examination of Agent Daughtry, defense counsel emphasized that Sloan, the target of the undercover operation on 19 May 2000, had made three sales to undercover officers and yet was not arrested until more than a year later. On redirect, the prosecutor asked Agent Daughtry, without objection, whether, in her experience as an officer, that scenario was common. After responding "yes," Agent Daughtry, again without objection, explained why:
For several different reasons, one being in order to get a trafficking amount of controlled substance you have to have over 28 grams. The first two purchases that we made from Mr. Sloan were not trafficking levels; therefore, we wanted to continue to try to get a trafficking level charge against him.
On recross-examination, defense counsel asked: "What's the significance of getting a trafficking charge against them rather than the usual sell and delivery of cocaine?" Agent Daughtry answered: "Because with the trafficking charge we hope to get active jail time." The court sustained an objection to defense counsel's follow-up remark, "And it doesn't matter how much drugs people sell to children — kids — in between that time?"
On redirect examination, the prosecutor asked Agent Daughtry to explain to the jury "why it's important to spend the time and to look for a target in regards to a trafficking amount versus just any drugs out on the street?" Agent Daughtry responded, "Most of the time any drugs out on the street, anything less than a trafficking level amount of a controlled substance, they're not going to get jail time." After overruling defense counsel's objection to Agent Daughtry's statement, the trial court allowed Agent Daughtry to continue her explanation: "It has been my experience that for street level amounts of drugs, anything less than trafficking amounts, if they do not have an extensive criminal history, we're only looking at probation. . . ."
It was thus defense counsel on recross-examination who asked the critical question: "What's the significance of getting a trafficking charge against them rather than the usual sell and delivery of cocaine?" The testimony to which defendant objects in this assignment of error is the answer to the very question that defense counsel posed. In response to this question, Agent Daughtry explained that trafficking leads to an active sentence; in the later testimony challenged by defendant, she simply clarified that a sell and delivery charge would likely lead only to probation. This Court has previously held that when the challenged testimony is simply an elaboration on the answer given to a cross-examination question, that testimony is properly admitted. In State v. Bright, 320 N.C. 491, 495, 358 S.E.2d 498, 500 (1987), the defendant asked an expert witness during cross-examination why he had recommended that the child not be returned to her mother. The defendant then objected when the district attorney elicited otherwise inadmissible opinion testimony by asking the expert to explain further the reason for his recommendation. This Court ruled that "defendant `opened the door' to the complained-of elaboration on redirect examination." Id. Here, Agent Daughtry's testimony was simply an admissible elaboration of her testimony on recross-examination.
Moreover, our Supreme Court "permits the introduction of evidence to dispel favorable inferences [for the defendant] arising from defendant's cross-examination of a witness." State v. Johnston, 344 N.C. 596, 608, 476 S.E.2d 289, 296 (1996). In State v. Barber, 120 N.C. App. 505, 512, 463 S.E.2d 405, 410 (1995), disc. review denied, 342 N.C. 896, 467 S.E.2d 906 (1996), this Court found no error when a law enforcement officer gave his personal opinion that the victim's omission from her statement of certain details was "quite common" because "[t]he defense `opened the door' by suggesting poor investigative work, and [the officer] was simply attempting to reestablish her credibility by explaining why some details were left out of her report." Similarly, here, Agent Daughtry's explanatory testimony resulted from a need to rebut the defense's suggestion that the officers were, by waiting, wrongly leaving an active drug dealer on the streets. The challenged testimony helped restore the officers' credibility by explaining the rationale for their strategy. See also State v. Jolly, 332 N.C. 351, 366, 420 S.E.2d 661, 670 (1992) (when cross-examination focused on the lack of any paraffin test, deputy sheriff could explain, on redirect, even though he was not qualified as an expert witness, that he had not had a test done because he did not believe, based on his observations, that she had fired a gun).
This assignment of error is overruled.
III Defendant contends that the trial court erred in overruling his objection to Michael Sloan's testimony that he knew defendant had been dealing drugs for a long time. Defendant argues only that, in violation of Rule 602 of the North Carolina Rules of Evidence, there is no evidence that Sloan had personal knowledge that defendant was a drug dealer. We disagree.
On cross-examination, defense counsel established that Sloan had purchased the drugs sold to the undercover officers from defendant and that he was buying his drugs from defendant four or five years prior to the trial. This testimony, elicited by defendant, was sufficient to meet the requirements of establishing personal knowledge for Sloan's subsequent testimony that defendant had "been dealing in [drugs] for a long time." See N.C. Gen. Stat. § 8C-1, Rule 602 Commentary (2001) ("Preliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony."). In any event, in light of the evidence brought out on cross-examination and the other evidence of guilt, we find any error to be harmless.
IV
Finally, defendant argues that the trial court committed reversible error by overruling defendant's motion to dismiss at the conclusion of the presentation of all the evidence. In considering a motion to dismiss in a criminal case, the trial judge must decide whether there is substantial evidence of each element of the offense charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In reviewing a trial court's denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in the evidence in favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).
Defendant was convicted of trafficking in cocaine by possession and transportation, a violation of N.C. Gen. Stat. § 90-95(h)(3) (2001); and conspiracy to traffic in cocaine, a violation of N.C. Gen. Stat. § 90-95(i) (2001). Under N.C. Gen. Stat. § 90-95(h)(3), "[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as `trafficking in cocaine. . . .'" Under N.C. Gen. Stat. § 90-95(i), "[t]he penalties provided in subsection (h) of this section shall also apply to any person who is convicted of conspiracy to commit any of the offenses described in subsection (h) of this section."
A review of the record reveals substantial evidence of each element of these crimes. While defendant argues that "it is virtually impossible to believe that Detective Eubanks could identify defendant as the man in the back of William[s'] car" two years earlier, defendant has disregarded the testimony of Sloan and Williams. Sloan and Williams testified that they went to defendant to obtain the drugs needed for the sale, that defendant carried the drugs to the location of the undercover buy, that defendant gave the drugs (which weighed 57.8 grams) to Sloan to deliver to Eubanks and the CI, that Sloan received $2,400.00 for the drugs, and that Sloan then paid defendant $1,800.00 for the drugs. In short, the State presented ample evidence to support each element of the crimes.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).