1. Criminal Law--joinder--sale and delivery of cocaine--transactional connection
The trial court did not err in consolidating for trial the two sale and delivery of cocaine
offenses under N.C.G.S. § 15A-926(a) because: (1) the two offenses have a transactional
connection since the offenses are identical, both involved selling cocaine to the same person, both
involved the same place of sale, both involved the same quantity of cocaine sold, and only three
weeks elapsed between the commission of each offense; and (2) joinder of the offenses did not
impede defendant's ability to receive a fair trial and to put on his defense since the State used the
same witnesses for both offenses, the same evidence would have been introduced had the trials
been separate, and the evidence of the other offense would have been admissible at each trial
under N.C.G.S. § 8C-1, Rule 404(b) to show intent and/or knowledge.
2. Indictment and Information--amendment--habitual felon--harmless error
Although defendant contends the trial court improperly permitted the State to amend its
habitual felon indictment by inserting “in North Carolina” after each listed felony when the original
indictment listed that defendant's three prior felony convictions occurred in Carteret County, any
perceived error was harmless because the original indictment itself was not flawed since the
association of Carteret County with North Carolina at the top of the indictment, coupled with the
subsequent listing of Carteret County as the locale of the prior felony convictions, is sufficient to
indicate the state against whom the prior felonies were committed as required by N.C.G.S. § 14-
7.3.
3. Evidence--prior crime or act--drug sales--intent--common plan or purpose--identity
The trial court did not err in a case involving two sale and delivery of cocaine offenses by
denying defendant's motion for a mistrial based on the admission of testimony from a detective
that the informant had previously been arrested for buying cocaine from defendant and agreed to
help the police catch defendant, because the evidence of defendant's prior drug sales was
admissible under N.C.G.S. § 8C-1, Rule 404(b) to prove intent, to show a common plan or
purpose, and to identify defendant as the one selling the cocaine.
4. Constitutional Law--effective assistance of counsel--failure to request jury
instruction on defendant's silence
Defendant was not denied effective assistance of counsel in a case involving two sale and
delivery of cocaine offenses by his counsel's failure to request that the jury be instructed on
defendant's failure to testify at trial because: (1) the absence of this instruction did not arise to the
level of plain error since the trial court is not required to instruct on a defendant's silence unless a
specific request has been made; and (2) counsel may choose no instruction in order not to
emphasize defendant's silence.
5. Constitutional Law--effective assistance of counsel--sentencing hearing--failure to
call witnesses
Defendant was not denied effective assistance of counsel in a case involving two sale and
delivery of cocaine offenses by his counsel's failure to call any witnesses at defendant's sentencing
hearing because counsel made a short argument advocating lenient sentencing, and the Court ofAppeals has previously held that total silence
by defense counsel at a sentencing hearing cannot be
grounds for ineffective assistance.
6. Constitutional Law--effective assistance of counsel--failure to cross-examine a
witness--strategic and tactical decision
Defendant was not denied effective assistance of counsel in a case involving two sale and
delivery of cocaine offenses by his counsel's failure to cross-examine a detective about a wire that
was placed on an informant during one of the drug sales, which apparently malfunctioned,
because strategic and tactical decisions are the exclusive province of the lawyer after consultation
with his client.
Attorney General Michael F. Easley, by Assistant Attorney
General K.D. Sturgis, for the State.
James Q. Wallace, III for defendant-appellant.
LEWIS, Judge.
Defendant was indicted on two counts of sale and delivery of
cocaine, in violation of N.C. Gen. Stat. § 90-95(a)(1). The first
count was based upon a cocaine sale to Larry Godwin, a police
informant, that occurred on 23 January 1997. The second count was
based upon a cocaine sale to Mr. Godwin that occurred on 14
February 1997. On 5 May 1997, the grand jury also returned an
habitual felon indictment against defendant. The two sale and
delivery counts were thereafter consolidated for trial, and
defendant made no motion to sever the two offenses. Defendant was
then tried at the 3 September 1997 Session of Carteret County
Superior Court, where a jury convicted him of both sale and
delivery offenses. Defendant now appeals, bringing forth four
arguments.
[1]In his first assignment of error, defendant contests theconsolidation of the two sale and delivery offenses for
trial.
Specifically, he contends that the trial court had no authority to
join the offenses because there was no transactional connection
between the two cocaine sales. We disagree.
Unfortunately, our case law with respect to joinder of
offenses has been rather muddled. Our Legislature has implemented
the following rule regarding joinder of offenses:
Two or more offenses may be joined in one
pleading or for trial when the offenses,
whether felonies or misdemeanors or both, are
based on the same act or transaction or on a
series of acts or transactions connected
together or constituting parts of a single
scheme or plan.
N.C. Gen. Stat. § 15A-926(a) (1999). Pursuant to this rule, a two-
step analysis is required for all joinder inquiries. First, the
two offenses must have some sort of transactional connection.
State v. Corbett, 309 N.C. 382, 387, 307 S.E.2d 139, 143 (1983).
Whether such a connection exists is a question of law, fully
reviewable on appeal. State v. Holmes, 120 N.C. App. 54, 61, 465
S.E.2d 915, 920, disc. review denied, 342 N.C. 416, 465 S.E.2d 545
(1995). If such a connection exists, consideration then must be
given as to "whether the accused can receive a fair hearing on more
than one charge at the same trial," i.e., whether consolidation
"hinders or deprives the accused of his ability to present hisdefense." State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449
, 452
(1981). This second part is addressed to the sound discretion ofthe trial judge and is not reviewable on appeal absent a manifest
abuse of that discretion. Holmes, 120 N.C. App. at 62, 460 S.E.2d
at 920. We hold that joinder satisfies both parts here.
With respect to the transactional connection inquiry, we point
out that, under prior law, such a connection could be established
merely if the two offenses were similar in character. N.C. Gen.
Stat. § 15A-926, Official Commentary. Under present law, however,
similarity of crimes alone is insufficient to create the requisite
transactional connection. State v. Bracey, 303 N.C. 112, 117, 277
S.E.2d 390, 393 (1981). Rather, consideration must be given to
several factors, no one of which is dispositive. These factors
include: (1) the nature of the offenses charged; (2) any
commonality of facts between the offenses; (3) the lapse of time
between the offenses; and (4) the unique circumstances of each
case. State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26
(1985), aff'd per curiam, 316 N.C. 188, 340 S.E.2d 105 (1986).
Here, the offenses for which defendant was being tried are
identical, sale and delivery of cocaine. Furthermore, the facts
involved in each offense are nearly identical. Both involved
selling cocaine to the same person, Mr. Godwin. Both involved the
same place of sale, defendant's mobile home. And both involved the
same quantity of cocaine sold, i.e., fifty dollar's worth.
Finally, only three weeks elapsed between the commission of each
offense.
In this regard, we find State v. Styles, 116 N.C. App. 479,
448 S.E.2d 385 (1994), disc. review denied, 339 N.C. 620, 454S.E.2d 265 (1995), particularly illustrative. In that case, the
trial judge consolidated two drug offenses for trial, possession of
marijuana with intent to sell and sale of marijuana to a minor,
even though the two offenses occurred more than a month apart. Id.
at 480, 448 S.E.2d at 386. We held that the requisite
transactional connection existed because both offenses shared a
common thread of facts and a common motive. Id. at 482, 448 S.E.2d
at 387. Specifically, we reasoned, "The 'common thread' is the
selling and distribution of marijuana. The 'scheme' was to sell the
illegal substance for profit." Id. Similarly, this case involves
a common thread of selling cocaine and a common scheme of doing so
for a profit. Accordingly, the requisite transactional connection
exists. See also State v. Bracey, 303 N.C. at 118, 277 S.E.2d at
394 (holding that three robberies over a ten-day span shared a
transactional connection); State v. Breeze, 130 N.C. App. 344, 355,
503 S.E.2d 141, 148 (holding that ten different robberies over a
two-month span shared a transactional connection), disc. review
denied, 349 N.C. 532, 526 S.E.2d 471 (1998).
Having concluded that the two drug offenses shared a
transactional connection, we next ascertain whether joinder of the
offenses impeded defendant's ability to receive a fair trial and
put on his defense. Silva, 304 N.C. at 126, 282 S.E.2d at 452. We
conclude that it did not. First of all, the State used the same
witnesses to present the evidence as to both offenses.
Furthermore, the same evidence would have been introduced had the
trials been separated. Specifically, evidence of the January drugsale still would have been admissible at a trial on just the
February drug charge (and vice versa), because such evidence would
have been admissible under Rule 404(b) to show intent and/or
knowledge. See State v. Richardson, 36 N.C. App. 373, 375, 243
S.E.2d 918, 919 (1978) ("In drug cases, evidence of other drug
violations is relevant and admissible if it tends to show plan or
scheme, disposition to deal in illicit drugs, knowledge of the
presence and character of the drug, or presence at and possession
of the premises where the drugs are found."). Accordingly, the
trial court did not abuse its discretion in concluding that
defendant's ability to receive a fair trial was not hindered by
consolidation.
[2]In his second assignment of error, defendant argues that
the trial court improperly permitted the State to amend his
habitual felon indictment. The original indictment listed three
previous felonies for which defendant had been convicted, but did
not specifically state that such felonies had been committed
against the State of North Carolina. Instead, the indictment
simply listed that the convictions had occurred in Carteret County.
The prosecutor thereafter sought to amend the indictment by
inserting "in North Carolina" after each listed felony. The trial
court allowed the amendment. However, we need not even address the
amendment issue, as we conclude that the original indictment itself
was not flawed and thus any attempt to correct that perceived flaw
was harmless.
N.C. Gen. Stat. § 14-7.3 sets forth the pleading requirementsfor an habitual felon indictment. Specifically,
that statute
states:
An indictment which charges a person with
being an habitual felon must set forth . . .
the name of the state or other sovereign
against whom said felony offenses were
committed . . . .
N.C. Gen. Stat. § 14-7.3 (1999). However, our courts have not
required rigid adherence to this rule. In fact, "the name of the
state need not be expressly stated if the indictment sufficiently
indicates the state against whom the felonies were committed."
State v. Mason, 126 N.C. App. 318, 323, 484 S.E.2d 818, 821 (1997).
This is so because the main purpose of the felony indictment is
simply to provide notice to the defendant that he will be tried as
a recidivist. State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d
156, 157 (1990).
Here, the original indictment sufficiently indicated the state
against whom the prior felonies were committed. "State of North
Carolina" explicitly appears at the top of the indictment, followed
by "Carteret County." Thus, Carteret County is clearly linked with
the state name. Although "State of North Carolina" does not again
appear when the prior felonies are set out, "Carteret County" does
-- as the locale of the prior felony convictions. The association
of Carteret County with North Carolina at the top of the
indictment, coupled with the subsequent listing of Carteret County
as the locale of the prior felony convictions, is sufficient to
indicate the state against whom the prior felonies were committed.
Because the original indictment itself was not flawed, any issuewith respect to amending that indictment is essentially moot, for
the amendment could not have in any way prejudiced defendant.
[3]Next, defendant contests the trial court's denial of his
motion for mistrial based upon an alleged improper admission of
evidence in violation of Rule 404(b). During the State's case-in-
chief, the prosecutor questioned Detective M.L. Arter as to how Mr.
Godwin came to be an informant for the police. Detective Arter
testified that Mr. Godwin had previously been arrested for buying
cocaine and that he agreed to help the police catch the individual
who sold him the cocaine, namely defendant. Defendant argues that
this testimony was inadmissible as evidence of a prior cocaine sale
between defendant and Mr. Godwin for which defendant was not on
trial. We conclude that admission of this evidence was proper and
therefore uphold the trial court's ruling on defendant's motion for
mistrial.
Under our Rules of Evidence, "[e]vidence 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." N.C.R.
Evid. 404(b). As previously pointed out, in drug cases, evidence
of other drug violations is often admissible to prove many of these
purposes. Richardson, 36 N.C. App. at 375, 243 S.E.2d at 919. The
evidence here was admissible for at least three such purposes.
First, it was admissible to prove intent. See State v. Johnson, 13N.C. App. 323, 325, 185 S.E.2d 423, 425 (1971) (allowing evidence
of a prior transaction between defendant and an informant to prove
intent), appeal dismissed, 281 N.C. 761, 191 S.E.2d 364 (1972).
Second, such evidence could be used to prove a common plan or
scheme. See State v. Trueblood, 46 N.C. App. 545, 547, 265 S.E.2d
664, 666 (1980) (allowing evidence of prior cocaine purchases
between defendant, his co-conspirators, and an undercover officer
because such evidence "was but a part of a series of transactions
. . . in pursuance of their plan and design to sell and deliver
cocaine"). And finally, evidence of the prior drug sale here was
admissible to identify defendant as the one selling the cocaine.
See State v. Shields, 61 N.C. App. 462, 464, 300 S.E.2d 884, 886
(1983) (allowing evidence of a prior marijuana sale between
defendant and an undercover officer to prove identity).
Accordingly, we reject defendant's argument.
In his final assignment of error, defendant claims he was
denied effective assistance of counsel in violation of the Sixth
Amendment. In order to substantiate a claim for ineffective
assistance, a defendant must demonstrate two things: (1) his
counsel's performance was deficient such that his counsel was
basically not functioning as legal "counsel" at all; and (2) he was
prejudiced by his counsel's ineffectiveness in such a way that he
was deprived of a fair trial -- "a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
A stringent standard of proof is required to substantiate
ineffective assistance claims. State v. Sneed, 284 N.C. 606, 613,201 S.E.2d 867, 871 (1974). In fact, our Supreme Court has
cautioned that relief based upon such claims should be granted only
when counsel's assistance is "so lacking that the trial becomes a
farce and mockery of justice." State v. Pennell, 54 N.C. App. 252,
261, 283 S.E.2d 397, 403 (1981), disc. review denied, 304 N.C. 732,
288 S.E.2d 804 (1982). With these principles in mind, we now
consider defendant's claim for ineffective assistance here.
[4]First, defendant claims his counsel was ineffective in
failing to request that the jury be instructed on his decision not
to testify at trial. We disagree. "[I]n order to show ineffective
assistance of counsel because of the failure to request jury
instructions, the defendant must show that without the requested
instructions there was plain error in the charge." State v. Swann,
322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988). Here, absence of an
instruction as to defendant's silence cannot be said to have
created plain error in the charge because a trial judge is not
required to instruct on a defendant's silence unless a specific
request has been made. See State v. Cawthorne, 290 N.C. 639, 649,
227 S.E.2d 528, 534 (1976). Counsel may well choose no instruction
so as not to emphasize the defendant's silence. Defendant's first
ground for ineffective assistance is without merit.
[5]Second, defendant claims ineffective assistance based upon
his counsel's failure to call any witnesses at his sentencing
hearing. We have previously rejected this as a ground in a case
where the defense counsel was completely silent at the sentencing
hearing. See State v. Taylor, 79 N.C. App. 635, 637, 339 S.E.2d859, 861, disc. review denied, 317 N.C. 340, 346 S.E.2d 146 (
1986).
Here, although no witnesses were called, counsel did make a short
argument advocating lenient sentencing. If total silence cannot be
grounds for ineffective assistance, then this situation surely
clears the hurdle.
[6]Last, defendant asserts he was denied effective assistance
because his counsel did not cross-examine Detective Arter about a
wire that was placed on Mr. Godwin during one of the drug sales,
which apparently malfunctioned. "'The decisions on what witnesses
to call, whether and how to conduct cross-examination, . . . and
all other strategic and tactical decisions are the exclusive
province of the lawyer after consultation with his client.' Trial
counsel are necessarily given wide latitude in these matters."
State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979)
(emphasis added) (citation omitted), overruled on other grounds by
State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Given this
wide latitude in matters regarding cross-examination, we conclude
that the failure to cross-examine Detective Arter about the wire
did not render defense counsel's assistance constitutionally
defective. See State v. Swindler, 129 N.C. App. 1, 10, 497 S.E.2d
318, 323-24 (holding no ineffective assistance when defense counsel
did not cross-examine certain witnesses regarding matters that
might have exposed inconsistencies in the State's case), aff'd per
curiam, 349 N.C. 347, 507 S.E.2d 284 (1998); State v. Seagroves, 78
N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985) (holding no
ineffective assistance when defense counsel did not cross-examinea prison guard regarding his prior inconsistent statements), disc.
review denied, 316 N.C. 384, 342 S.E.2d 905 (1986).
In sum, we conclude that defendant received a fair trial, free
from prejudicial error.
No error.
Judges JOHN and EDMUNDS concur.
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