Not overruled or negatively treated on appealinfoCoverage
North Carolina Court of AppealsMay 18, 2004
595 S.E.2d 815 (N.C. Ct. App. 2004)
595 S.E.2d 815164 N.C. App. 414

No. COA03-1092

Filed May 18, 2004 This case not for publication

Appeal by defendant from judgment entered 20 March 2003 by Judge W. David Lee in Richmond County Superior Court. Heard in the Court of Appeals 10 May 2004.

Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State. Jeffrey Evan Noecker for defendant-appellant.

Richmond County Nos. 02 CRS 272, 1548.

Defendant Kendrick Andrew Wall was indicted upon charges of possession with intent to manufacture, sell and deliver cocaine, and sale or delivery of cocaine. He was subsequently indicted upon the charge of being an habitual felon.

The evidence presented at trial tended to show the following: On 17 January 2002, Deputy Philip Sweatt of the Richmond County Sheriff's Department contacted Wanda Smith, a confidential source of information, to see if she would make a controlled buy of illegal drugs, after numerous complaints of drug activity at 687 Midway Road had been received. Smith agreed; after searching Smith to make sure she had nothing on her person, Deputy Sweatt dropped Smith off at the address.

Smith walked up to the mobile home at the address and knocked on the door, and defendant answered the door. Smith told defendant she wanted to purchase a $20.00 rock of crack cocaine. Defendant took a small bottle out of his pocket, gave Smith a rock of crack cocaine, and Smith gave defendant $20.00. Smith then left the residence, was picked up by Deputy Sweatt, gave him the rock of cocaine and told him what happened. The material given to Smith by defendant was later determined to be 0.19 grams of crack cocaine. Smith identified the defendant at trial as the man who sold her the cocaine.

The jury convicted defendant of possession with intent to sell or deliver cocaine and sale or delivery of cocaine. Defendant subsequently admitted his status as an habitual felon and was sentenced to a term of 133 to 169 months imprisonment. Defendant appeals.

We first consider whether the trial court erred by allowing Deputy Sweatt to testify as to Smith's reliability as a confidential informant. Deputy Sweatt testified that "every time I've asked [Smith] about anything, whether she has done it or not, she has always been honest with me about that." Defendant contends that the testimony was in violation of Rule 608 because Smith's character for truthfulness had not been attacked in any way.

We agree with defendant that the trial court erred by allowing Deputy Sweatt to testify regarding Smith's reliability. Rule608(a) of the Rules of Evidence states that:

The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

N.C.G.S. § 8C-1, Rule 608(a) (emphasis added). Deputy Sweatt's testimony as to Smith's reliability was inadmissible here because Smith's character for truthfulness had not yet been attacked. Although defendant asked Deputy Jimmy Dunn whether Smith had any prior record for drugs, Deputy Dunn answered that he did not know Smith. Thus, there was no testimony on the record attacking Smith. Furthermore, defendant's question related to a prior record for drugs, and did not attack Smith's character for truthfulness. See State v. Braxton, 352 N.C. 158, 195, 531 S.E.2d 428, 450 (2000) (conduct probative of character for truthfulness would include "`use of false identity, making false statements on affidavits, applications or government forms (including tax returns), giving false testimony, attempting to corrupt or cheat others, and attempting to deceive or defraud others.'").

The error, however, does not entitle defendant to a new trial, as there is no reasonable possibility that a different result would have been reached had the testimony been excluded. N.C.G.S. § 15A-1443(a); see State v. Hardy, 104 N.C. App. 226, 238, 409 S.E.2d 96, 102 (1991). Smith testified that she purchased drugs from defendant, identified him in court, and defendant was able to fully cross-examine both Deputy Sweatt and Smith. Moreover, defendant admitted to Deputy Sweatt that he sold a "$20.00 piece of crack cocaine" to a "white girl." Accordingly, defendant has failed to show prejudice and the assignment of error is overruled.

Defendant next argues that the trial court erred by instructing the jury in the disjunctive and submitting a jury verdict form that permitted the jury to find him guilty of sale or delivery of cocaine. Defendant contends that based on the instructions and verdict form, it is impossible to know whether the jury reached a unanimous verdict as to whether the defendant sold cocaine to Smith, or merely delivered cocaine to her.

After careful review of the record, briefs and contentions of the parties, we find no error. Our Supreme Court has stated that it is " one criminal offense to `sell or deliver' a controlled substance under N.C.G.S. § 90-95(a)(1)." State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990). "Whether the defendant is tried for transfer by sale, by delivery, or by both, the jury in such cases should determine whether the defendant is guilty or not guilty of transferring a controlled substance to another person." Id. at 382-83, 395 S.E.2d at 127. In analyzing G.S. 90-95(a)(1), the Court in Moore reasoned that:

The legislature intended that there be one conviction and punishment under the statute for defendants who transfer, i.e., "sell or deliver," a controlled substance. The transfer by sale or delivery of a controlled substance is one statutory offense, the gravamen of the offense being the transfer of the drug. So long as each juror finds that the defendant transferred the substance, whether by sale, by delivery, or by both, the defendant has committed the statutory offense, and no unanimity concerns are implicated.

Id. at 383, 359 S.E.2d at 127 (citations omitted) (emphasis added). Accordingly, we find no error.

No error.

Judges McGEE and BRYANT concur.

Report per Rule 30(e).