Opinion
No. 04-1120.
Filed 18 October 2005.
Mecklenburg County No. 03 CRS 239026.
Appeal by defendant from judgment entered 25 May 2004 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 April 2005.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State. Carlton, Rhodes Carlton, by Gary C. Rhodes, for defendant-appellant.
Defendant Kevin David Wilson appeals from his conviction of trafficking in marijuana in excess of 50 pounds but less than 2,000 pounds, in violation of N.C. Gen. Stat. § 90-95(h)(1)(b) (2003). Based on our review of the record, we hold that defendant received a trial free of prejudicial error.
Facts
On 15 August 2003, Randy Coggins, the office manager of the Roadway Express terminal in Charlotte, became suspicious that a crate waiting for pick-up might contain contraband. The crate raised "red flags" because of (1) its unusually sturdy construction, (2) phone calls Roadway Express had received checking on the progress of the shipment, (3) the fact that the crate was marked for pick-up instead of delivery, (4) the expensive shipping charge, and (5) the fact that the freight charges were not billed to a company that had an existing credit account with Roadway Express. The crate indicated that it had been shipped from "All American Auto Parts" in Carson, California and was addressed to "JN Auto Service," purportedly located at 5287 Albermarle Road in Charlotte . Roadway Express employees called the Charlotte-Mecklenburg Police Department on the morning of 15 August 2003.
Narcotics Detective Daniel Phillips, a K-9 officer, brought his dog to perform a drug sniff of the crate, and the dog alerted them to the presence of drugs. After notifying the other officers at the terminal of the dog's alert, Phillips left to obtain a search warrant for the crate. The remaining officers waited at the terminal for someone to claim the crate.
While Detective Phillips was gone, defendant arrived at the terminal at approximately 11:00 a.m., driving a cargo van that had been rented by Millicent McMillan. The terminal operations manager, Steve Pate, made a copy of defendant's driver's license before accompanying him to the loading dock. Defendant paid Pate for the shipping charges on the crate with three "moneygrams" listing JN Auto Service as the purchaser and totaling $1,033.43. Pate loaded the crate into defendant's van with a fork lift.
Once the crate was loaded on the van, the police arrested defendant. Roadway Express employees and the officers then unloaded the crate from the van and moved it to the terminal's maintenance shop so that it could be opened. Detective Phillips soon arrived with the search warrant and executed the warrant by — as the State has described it — "reading [the warrant] in the presence of the crate, and not to the defendant." Phillips neither read the warrant to defendant, who was not present in the maintenance shop, nor provided him with a copy of the warrant. When the crate was sawed open, officers found 10 bales of marijuana, ultimately determined to weigh 493.5 pounds.
In a search of defendant incident to his arrest, officers found on defendant's person $189.00 and a piece of paper with the name "Gloria Marsh" written on it. "Gloria Marsh" was the name listed as the contact person on the crate's shipping papers and was the name of one of the callers who had telephoned Roadway Express to check on the progress of the shipment of the crate. Officers also asked defendant if they could check his cell phone. After he agreed, the officers learned that defendant had received an incoming call from "CENTS" at 10:42 a.m. that morning and had made an outgoing call to "CENTS" ten minutes later. It was determined that "CENTS" had the same phone number as Millicent McMillan who had rented the van for defendant. McMillan claimed that she rented the van so that defendant could move furniture.
After defendant's arrest, officer Michael Harris attempted to locate 5287 Albemarle Avenue, the address listed for the recipient of the crate. Harris discovered that no such address existed. Officers also learned that the terminal had received two other shipments from "All American Auto Parts" or "All American Wheel" to"JN Auto Service," with one picked up on 10 July 2003 and the other picked up on 31 July 2003. Coggins, the Roadway Express office manager, recalled that the substantial shipping charges for the two July shipments had been paid in cash, which was a rare occurrence. McMillan had rented a van on 10 July 2003, although she denied renting a van for defendant on any day other than 15 August 2003.
Defendant was indicted with trafficking in marijuana in excess of 50 pounds but less than 2,000 pounds in violation of N.C. Gen. Stat. § 90-95(h)(1) (2003). The jury found defendant guilty and the trial court sentenced him to a term of 35 to 42 months imprisonment. Defendant timely appealed.
I
Defendant first contends that the trial court erred in denying his motion to suppress the marijuana. Defendant argues that the police's failure to comply with the statutory requirements for executing a search warrant invalidated the search leading to the recovery of the marijuana. Defendant further argues that if the search was invalid, then defendant's consent to seizure of his cell phone and its contents was invalid as well.
N.C. Gen. Stat. § 15A-252 (2003) provides: "Before undertaking any search or seizure pursuant to the warrant, the officer must read the warrant and give a copy of the warrant application and affidavit to . . . the person in apparent control of the premises or vehicle to be searched." The trial court, however, found — and the parties do not contest — that Detective Phillips read the search warrant in the presence of the crate, but not to defendant. Although N.C. Gen. Stat. § 15A-254 (2003) also required the police to give defendant a receipt listing the items seized, it is undisputed that defendant was never provided with a receipt. Finally, N.C. Gen. Stat. § 15A-257 (2003) requires the police to return to the clerk of court a written, signed, and sworn inventory of items seized pursuant to the warrant "without unnecessary delay." Here, the trial court found that Detective Phillips did not file his return of the warrant until nine months after the search.
The State does not dispute these statutory violations, but contends they do not justify exclusion of the marijuana under North Carolina's exclusionary rule as codified in N.C. Gen. Stat. § 15A-974 (2003). In the absence of a constitutional violation, a court must exclude the evidence if "[i]t is obtained as a result of a substantial violation of the provisions of this Chapter [the Criminal Procedure Act]." N.C. Gen. Stat. § 15A-974(2) (emphasis added). Under this statute, the existence of a substantial violation alone does not mandate suppression of evidence. The evidence must be suppressed only "where there is a causal connection between the violation and the evidence obtained." State v. Vick, 130 N.C. App. 207, 219, 502 S.E.2d 871, 879, appeal dismissed and disc. review denied, 349 N.C. 376, 525 S.E.2d 464 (1998). See also State v. Richardson, 295 N.C. 309, 323, 245 S.E.2d 754, 763 (1978) ("[I]f the challenged evidence would have been obtained regardless of [the] violation . . ., such evidence has not been obtained `as a result of' such official illegality and is not, therefore, to be suppressed by reason of G.S. 15A-974(2).") .
Although the violations in this case were substantial, there is no causal connection between those violations and the police's recovery of the marijuana. Even if the search warrant had been read to defendant before the search of the crate, the police would still have uncovered the marijuana. See Vick, 130 N.C. App. at 219, 502 S.E.2d at 879 ("Even assuming that this violation was `substantial,' however, the evidence in Defendant's apartment was not obtained `as a result' of the officers' failure to strictly comply with the language of the statute, because the evidence would still have been obtained had the officers given Defendant a copy of the warrant prior to their search."). Further, we can perceive no causal relationship in this case between (1) the officers' failure to give defendant a receipt for the seized marijuana or to timely return the warrant and (2) the seizure of the marijuana. The trial court, therefore, did not err in denying the motion to suppress the marijuana.
Since the exclusionary rule did not invalidate the search, defendant's consent to the search of his cell phone stands. Defendant argues alternatively that the officers "had ample opportunity to conduct an investigation by separate discovery into any relevant phone records." Defendant cites no authority suggesting that a voluntary consent is ineffective when police have other means of discovering the same evidence. The mere fact a defendant was in custody at the time his consent to search was obtained does not automatically negate the effectiveness of that consent. State v. Cobb, 295 N.C. 1, 17, 243 S.E.2d 759, 769 (1978). While the fact of custody does place a heavier burden on the State to prove voluntariness, id. at 18, 243 S.E.2d at 769, in this case, defendant has not contended that his consent was in any way involuntary. The trial court, therefore, also properly denied defendant's motion to suppress the information obtained from his cell phone.
II
Defendant next argues that the trial court erred in admitting evidence suggesting that defendant had picked up two prior shipments from the terminal on 10 July 2003 and 31 July 2003. Defendant contends that this evidence was character evidence that was inadmissible under Rule 404(b) of the Rules of Evidence. We disagree.
Rule 404(a) provides generally with respect to "character evidence" that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. . . ." With respect to specific acts, Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.
As a leading commentator has explained, "[c]haracter comprises the actual qualities and characteristics of an individual, the peculiar qualities impressed by nature and habit on the person, which distinguish him from others." 1 Kenneth S. Broun, Brandis Broun on North Carolina Evidence § 86 (6th ed. 2004) (internal quotation marks omitted).
With respect to the packages picked up on 10 and 31 July 2003, the record contains no evidence as to what those packages contained. The only evidence offered regarding those packages is that they had the same sender and the same recipient as the 15 August 2003 crate, that cash was paid for the shipping charges, and that they were comparable in size to the 15 August 2003 crate. Defendant does not explain how the evidence regarding those two packages reflected on his character. Indeed, the evidence does not pertain to any quality, trait, or characteristic of defendant. See State v. Bogle, 324 N.C. 190, 200, 376 S.E.2d 745, 751 (1989) ("[E]vidence of the lack of prior convictions is not evidence of a `trait of character' but is merely evidence of a fact. It does not address a trait of defendant's character. Whereas being `law-abiding' addresses one's trait of character of abiding by all laws, a lack of convictions addresses only the fact that one has not been convicted of a crime." (emphases omitted)). Even if we assume, arguendo, that the evidence falls within the scope of Rule 404, the trial court still did not err in allowing the admission of the evidence regarding the two prior packages. Defendant mistakenly asserts that Rule 404(b) is "a general rule of exclusion"; our courts have consistently held that Rule 404(b) is a "general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). We hold that the 10 and 31 July 2003 packages constituted admissible evidence of defendant's knowledge and also of a common scheme or plan.
Defendant also argues that even if the evidence was properly admitted, the trial court erred (1) in waiting until the final charge to the jury to give his requested limiting instruction and (2) in not particularizing the purposes for which the evidence could be considered. Since we have held that this evidence did not constitute character evidence and, therefore, no limiting instruction was necessary, defendant cannot demonstrate prejudice from the manner in which the instruction was given.
First, the addressee for all three packages was JN Auto Service at 5287 Albemarle Road. The State offered evidence that this address did not exist. The jury could reason that if defendant picked up the two prior packages, he could not have delivered them to the fictitious address and thus could not, on 15 August 2003, have been innocently attempting to deliver the package to the addressee. See State v. Freeman, 79 N.C. App. 177, 181, 339 S.E.2d 56, 58 (holding that evidence of prior bad checks was admissible under Rule 404(b) in a bad check case since "[i]f defendant had been involved with schemes of this type before, his assertions of ignorance and mistake hold less weight"), cert. denied, 317 N.C. 338, 346 S.E.2d 114 (1986), overruled on other grounds, 346 N.C. 262, 485 S.E.2d 619 (1997).
Second, this evidence suggested that over 36 days, defendant had picked up three packages, each with the same sender and the same fictitious recipient, each weighing several hundred pounds, and each paid for with cash or money orders (all untraceable). This evidence would permit the jury to find that the 15 August 2003 package was part of a common plan or scheme. See, e.g., State v. Montford, 137 N.C. App. 495, 501, 529 S.E.2d 247, 252 (holding that evidence of prior drug transactions between an informant and the defendant were admissible under Rule 404(b) to prove a common plan or scheme), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000); State v. Trueblood, 46 N.C. App. 545, 547, 265 S.E.2d 664, 666 (1980) (holding that evidence "of a series of transactions carried out by this defendant and his coconspirators in pursuance of their plan and design to sell and deliver cocaine" was admissible under Rule 404(b)).
Even if evidence is admissible for a proper purpose under Rule 404(b), a trial court must still determine whether the evidence is more probative than prejudicial under Rule 403. State v. Schultz, 88 N.C. App. 197, 202, 362 S.E.2d 853, 857 (1987), aff'd per curiam, 322 N.C. 467, 368 S.E.2d 386 (1988). Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial judge and "abuse of that discretion will be found on appeal only if the ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision." State v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998) (internal quotation marks omitted), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779, 119 S. Ct. 2376 (1999). In light of the relevance of the prior shipments to defendant's knowledge and to rebutting defendant's suggestion that he was an innocent delivery man, when considered with the lack of evidence that the prior shipments were in any way unlawful, we hold that the trial court did not abuse its discretion.
III
Defendant contends that the trial court made a number of errors relating to the State's handwriting expert witness: (1) the denial of defendant's motion for a continuance or, alternatively, a mistrial; (2) the denial of defendant's motion in limine; and (3) the acceptance of a stipulation between the State and defendant regarding the expert's handwriting analysis. Defendant's arguments focus on the fact that the State did not furnish the expert's report to defendant until after the first day of trial. Upon receipt of the report, defendant moved for a mistrial or, in the alternative, for a continuance to allow him an opportunity to hire his own expert. Subsequently, defendant also made a motion in limine to exclude the testimony of the expert witness. The trial court denied all of defendant's motions.
Before the expert testified, the State and defendant entered into a stipulation in which they agreed that if the State's expert witness, Jeffrey S. Taylor, were called to testify, he would testify that he compared the signatures on (1) a Roadway Express visitor log and delivery receipts dated 10 July 2003 and 31 July 2003 with (2) signatures known to have been made by defendant. The stipulation then stated "[t]hat Mr. Taylor's opinion is that the defendant probably signed his name where it appears on the Vistor's Log and the two Delivery Receipts." The State offered the stipulation as part of its case; Taylor did not testify.
A trial court's decision regarding a motion for a continuance is reviewed for abuse of discretion. State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). Defendant does not assert any basis for his motion for a mistrial or his motion in limine apart from his lack of an opportunity to hire his own expert witness — the same basis for the motion for a continuance.
N.C. Gen. Stat. § 15A-903 (2003) provides that "[u]pon motion of the defendant," a trial court must order disclosure of any expert opinions or tests in the possession or control of the State. The record does not contain any indication that defendant filed a motion seeking disclosure regarding the State's expert prior to trial. Instead, the record reveals that on 30 April 2004, the State filed a motion to compel defendant to provide handwriting exemplars. The trial court granted this motion on 5 May 2004. Defendant did not file any motion for disclosure until 20 May 2004, the morning of the trial. The State produced the handwriting expert's report on the same date. Under these circumstances, defendant has failed to demonstrate that the trial court's denial of his motion for a continuance was an abuse of discretion. Defendant argues on appeal, however, that he particularly needed an expert witness because the report "disclosed for the first time that the expert had compared Defendant's signature with a photocopy of Defendant's driver's license, and had concluded that the signature on the license was of questionable origin." He asserts that he "was entitled to sufficient opportunity to refute this potentially damaging testimony." Since this opinion of the expert was never admitted into evidence, defendant has failed to demonstrate any prejudice.
Finally, defendant argues that the trial court committed plain error in allowing the admission of the stipulation between the State and defendant. Defendant, however, may not assign error to his own stipulation. See N.C. Gen. Stat. § 15A-1443(c) (2003) ("A defendant is not prejudiced by . . . error resulting from his own conduct."). In any event, defendant's sole argument is that the stipulation's statement that defendant "probably" signed his name to the visitor's log and the two delivery receipts lacked "the requisite degree of certainty required of expert testimony." Defendant has cited no authority for his argument. The law is to the contrary. As explained in Johnson v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 49, 575 S.E.2d 797, 802, disc. review denied, 357 N.C. 251, 582 S.E.2d 271 (2003), "[t]he degree in which an expert testifies . . ., be it `probable' or `most likely' or words of similar import, goes to the weight of the testimony rather than to its admissibility." The assignments of error relating to the expert witness are, accordingly, overruled.
IV
Defendant also contends that the trial court erred by allowing a police officer to testify about prior inconsistent statements made by Millicent McMillan. When testifying at trial, McMillan denied that she ever told the police or the district attorney that she had rented vans for defendant on more than one occasion. The State then offered the testimony of Officer Beaver to the contrary:
Q: And what did she tell you with regard to previous van rentals?
Mr. Butler: Objection.
The Court: Overruled.
The Witness [Officer Beaver]: She said that she had rented vehicles for Mr. Wilson previously, and that he had also indicated that he needed to move furniture on those days.
When McMillan testified that she had only rented a van for defendant on one occasion, the State was permitted to attempt to impeach that testimony by asking her about her prior statements to the police and district attorney. State v. Riccard, 142 N.C. App. 298, 302, 542 S.E.2d 320, 322, cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001). When, however, McMillan denied having made such prior statements, "the State [could] not impeach that denial by introducing evidence of the prior statement." Id. at 303, 542 S.E.2d at 323. Once McMillan "`denie[d] having made a prior inconsistent statement . . . the prior statement concern[ed] only a collateral matter, i.e., whether the statement was ever made.'" Id. (emphases omitted) (quoting State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993)). See also State v. Williams, 322 N.C. 452, 456, 368 S.E.2d 624, 626 (1988) (holding that whether a witness made a prior inconsistent statement "is clearly collateral" and that the State was prohibited from calling witnesses to testify that the witness made the prior statement).
The trial court thus erred in admitting Beaver's testimony regarding McMillan's prior statements. In order to prevail on appeal, however, defendant is required to show that "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." N.C. Gen. Stat. § 15A-1443(a). In light of the evidence that defendant had signed for the prior packages, we can see no "reasonable possibility" that the jury would have reached a different result if it had not heard that McMillan previously stated that she made multiple van rentals for defendant. The identity of the person who supplied the vehicle defendant used to pick up the earlier shipments does not appear to be a material fact. The trial court's error was, therefore, harmless.
V
Finally, defendant argues that the trial court erred in denying his motion to dismiss. Defendant argues that the evidence was insufficient to show that defendant had actual or constructive knowledge that the crate contained marijuana. We disagree.
In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). "`Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.'" Robinson, 355 N.C. at 336, 561 S.E.2d at 255 (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)). The trial court must view all of the evidence presented "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
Here, the jury could infer knowledge from evidence that defendant had previously picked up two similar shipments from the same sender addressed to the same fictitious business and address. Those shipments counter defendant's contention that he was innocently attempting to deliver the crate to the recipient since he necessarily must have known that the business and address did not exist and nonetheless continued to pick up packages and deliver them to some unspecified location. Further, defendant paid for the crate with money orders purchased by the non-existent business and used a van that he had a friend rent purportedly so that he could move furniture, a false reason. For the other two shipments, defendant paid the very substantial shipping charges in cash, a rare method of payment for Roadway Express. The use of cash and the fictitious business and address made tracing of the recipient unlikely. Collectively, this evidence would allow the jury to conclude that defendant knew the contents of the crate. See State v. Clark, 137 N.C. App. 90, 96, 527 S.E.2d 319, 323 (2000) (holding that the defendant's actions showed an understanding of the nature of the contents of a package when the package was addressed for shipment to a false address and had no return address, the defendant waited in the area of the false address, and the defendant behaved both as if he desired to obtain the package and as if he knew that taking possession would be dangerous); State v. Sanders, 95 N.C. App. 494, 504, 383 S.E.2d 409, 415 (holding that the defendant's false explanation about a check's origin when negotiating a check constituted circumstantial evidence that the defendant knew she possessed forged checks), disc. review denied, 325 N.C. 712, 388 S.E.2d 470 (1989). Therefore, the issue of defendant's guilt was properly submitted to the jury.
No error.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).