Opinion
No. 06-259.
Filed January 2, 2007.
Appeal by Defendants from judgment entered 24 August 2005 by Judge A. Moses Massey in Superior Court, Forsyth County. Heard in the Court of Appeals 31 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General, Harriet F. Worley, and Special Deputy Attorney General, Christine M. Ryan, for the State. Jarvis John Edgerton, IV, for defendant-appellant Alfredo Martinez Bracamontes. M. Alexander Charns for defendant-appellant Jose Ivan Bracamontes Cruz.
Forsyth County No. 04 CRS 62625, 62626.
The underlying facts pertinent to the issues presented on appeal tend to show that Winston-Salem Detectives Jose Gomez and Chris Spain received an anonymous tip that two individuals were selling methamphetamine at an apartment. The subsequent search of that apartment, the legality of which is not challenged by this appeal, yielded 178 grams of methamphetamine with an estimated street value of $44,000.00.
At trial, Detective Gomez testified that he and Detective Spain, dressed in plain clothes, twice went to the apartment on October 2004, met co-defendants Alfredo Martinez Bracamontes and Jose Bracamontes Cruz, identified themselves as police officers, and asked for permission to enter and search the apartment. Defendant Bracamontes consented to the detectives' search of the apartment.
Afterwards, the detectives called for Winston-Salem K-9 Police Officer Melly to bring her dog Drak to search the apartment for methamphetamine. Although Defendant Bracamontes indicates in his brief that he objected to the search of the apartment by Officer Melly and her dog, the legality of that search is not an issue presented on appeal. The detectives found in a jacket, in a bedroom closet, several clear plastic bags which were later determined to contain 178 grams of crystal methamphetamine. In addition, Officer Spain found, in the apartment living room, a backpack containing United States currency, hand scales, rolling paper, and a shirt with a small amount of drugs.
Contrary to their pleas of not guilty, both Defendants were found guilty of conspiring to traffic methamphetamine, trafficking methamphetamine, and maintaining a vehicle, dwelling, or place resorted to for the use of, or to keep, or sell a controlled substance in violation of the North Carolina Controlled Substances Act. From these convictions, Defendants appealed.
In separate briefs filed before this Court, Co-Defendants contend (I) the trial court committed plain error by re-instructing the jury on conspiracy to traffic methamphetamine by possession; (II) it was ineffective assistance of counsel not to request complete recordation of the entire trial and not to contest evidence discovered by a search of the residence that exceeded the scope of the consent to search; and (III) the trial court erred when it allowed Detective Gomez to opine that drug dealers don't leave drugs with people who do not know their full names.
I.
Defendants first contend the trial court committed plain error by re-instructing the jury on the conspiracy to traffic methamphetamine by possession. They argue the trial court's re-instruction failed to limit the conspiracy to the particular offense and theory alleged in the indictment. We disagree.
Plain error is error that amounts to the denial of a fundamental right or is "so lacking in its elements that justice cannot have been done[.]" State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001) (citations omitted), cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002). To prevail under the plain error analysis, a defendant must show that there was error, and that absent the error, the jury would have reached a different result. Id.
On appeal, Defendants argue the trial court's re-instruction on the word "conspiracy" expanded the grounds on which each defendant could be found guilty beyond the parameters set by the indictment, and as such, the trial court's clarification amounted to plain error. We are not persuaded.
A charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct. If the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal.
State v. McWilliams, 277 N.C. 680, 684-85, 178 S.E.2d 476, 479 (1971) (internal citations omitted).
Here, the indictments stated, in pertinent part:
[T]he defendant . . . unlawfully, willfully, and feloniously did conspire with [Co-Defendant] and persons known and unknown to commit the felony of trafficking to possess 28 grams or more, but less than 200 grams of Methamphetamine.
Regarding this charge, the trial court initially instructed the jury, in pertinent part, as follows:
For you to find the Defendant, either Defendant guilty of this offense the State must prove three things beyond a reasonable doubt:
First, that the Defendant . . . entered into an agreement.
Second, that the agreement was to commit trafficking in methamphetamine by possession of 28 grams or more but less than 200 grams of methamphetamine.
. . .
And third, the State must prove beyond a reasonable doubt as to — as to the conspiracy charge against each Defendant . . . with the other Defendant, intended that the agreement be carried out at the time it was made.
Neither Defendant objected to this instruction on the grounds that it was beyond the scope of the charges stated in the indictment or otherwise.
During deliberations, the jury passed a note to the trial court stating, "(1) Clarify definition of `conspiring' (2) Relation of Bedroom to Bathroom." Following a discussion with counsel outside the presence of the jury, the trial court thereafter instructed the jury that, [t]he answer to your first question is that I am simply going to say this to you, it's a sort of review of what you were told earlier: A person commits the offense of conspiracy to commit a crime by entering into an agreement with at least one other person, in this case the allegation is that each Defendant entered into an agreement with the other Defendant to commit an — so, the elements in a nutshell of conspiracy to commit a crime are, that a person enters into an agreement with at least one other person to commit an unlawful act with the intent at the time by the Defendant and at least one of the others that the agreement be carried out.
The trial court's definition of conspiracy was a generic one and within the context of the initial jury instruction. Moreover, the additional instruction did not expand the scope of the grounds upon which guilt could be ascertained. As such, the trial court's instruction on conspiracy did not amount to plain error. Accordingly, we find no merit to this issue.
II.
Defendants next assert that "it was ineffective assistance of counsel to not request complete recordation of the entire trial and not contest evidence discovered by a search of the residence that exceeded the scope of the consent to search." However, in their briefs, Defendants "concede that the present state of the law does not support this argument" and that they raise this "issue at this time for preservation purposes." We agree that this Court decided this issue in State v. Verrier, ___ N.C. App. ___, 617 S.E.2d 675 (2005). Accordingly, we reject this assignment of error.
III.
Defendants next contend the trial court erred when it allowed Detective Gomez to opine that drug dealers don't leave forty-four thousand dollars worth of drugs with people who do not know their full name. We disagree.
Under Rule 701 of the 2005 North Carolina Rules of Evidence, a layperson may testify to his opinion where "his testimony . . . is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." Furthermore, "evidence helpful to a clear understanding of his testimony or the determination of a fact in issue" is relevant evidence under Rule 401 of the 2005 North Carolina Rules of Evidence.
On appeal, Defendants argue Detective Gomez's statement, that forty-four thousand dollars worth of drugs is not going to be left with Defendants by a person Defendants only know as Nani, was (a) not based on first hand knowledge or observation nor was it (b) helpful to a clear understanding of his testimony or the determination of the fact in issue. We are not persuaded.
The facts here are analogous to those addressed by this Court in State v. Bunch, 104 N.C. App. 106, 408 S.E.2d 191 (1991). In Bunch, an undercover agent working for the Bertie-Hertford-Northampton Tri-County Drug Task Force testified against the defendant on a charge of sell and delivery of cocaine. Id. According to the facts, the agent approached two men and indicated that he wanted to buy a user amount of cocaine. Id. The defendant told the agent to "drop the money on the ground." Id. The agent placed twenty dollars on the ground after which the defendant handed a tinfoil packet to the other man, who in turn picked up the twenty dollars and handed the tinfoil packet, which contained crack cocaine, to the agent. Id. At trial, the agent testified "it was common practice in drug transactions in [Hertford County] for one person to hold the money and for another person to carry the drugs. The purpose for such practice was that in the event of an arrest, one individual would not have possession of both the money and the drugs." Id. at 110, 408 S.E.2d at 194.
The defendant in Bunch argued on appeal that it was error for the trial court to admit testimony concerning the common practices of drug dealers. This Court disagreed, holding instead that the agent's testimony "was relevant, based on personal knowledge, and non-prejudicial," and, accordingly, "the trial judge did not err in admitting the police officer's testimony." Id. at 110, 408 S.E.2d at 194; see also State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989) (holding that" [a] lay witness must have a basis of personal knowledge for his opinion. However, a preliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony.").
Here, Detective Gomez testified that he was employed with the Winston-Salem Police Department since January 1999; assigned to special investigations division, vice and narcotics section; approaching his third year "doing narcotics investigation"; and had made "over a hundred arrests in the field of narcotics." Detective Gomez further testified to his familiarity with crystal methamphetamine and estimated, based on his training and experience, the 178 grams found in Defendant Bracamontes apartment had a street value of forty-four thousand dollars.
Following the discovery of methamphetamine in his apartment, Defendant Bracamontes stated the drugs came from a Hispanic male named Nani, who had dropped the drugs off at his apartment. At trial, Detective Gomez opined that, "it's been my training and experience that forty-four thousand dollars worth of crystal methamphetamine is not just going to be given to any person by whom you just . . . know by the name of Nani."
Given Detective Gomez's testimony regarding his experience making narcotic arrests, we reason that Detective Gomez's testimony was relevant, based on personal knowledge, and non-prejudicial. Accordingly, we hold the trial judge did not err in admitting Detective Gomez's testimony.
We have further reviewed the additional issues presented by Defendant Cruz in his brief and find them to be wholly without merit.
No error.
Judges HUDSON and STEPHENS concur.
Report per rule 30(e).
The judges participated and submitted this opinion for filing prior to 1 January 2007.