1. Evidence--videotape--undercover cocaine buys
The trial court did not err in a prosecution for trafficking in cocaine, possession of
cocaine with intent to sell and deliver, and selling cocaine by admitting into evidence the State's
videotape which recorded undercover buys of cocaine, because: (1) a proper foundation was laid
to authenticate the videotape; and (2) even if the trial court erred in failing to conduct a voir dire,
such error was not prejudicial when the evidence portrayed on the videotape was merely
cumulative and served to corroborate the testimony of three officers as well as the physical
evidence gathered from each undercover buy.
2. Discovery--marked money--undercover cocaine buys
The trial court did not abuse its discretion in a prosecution for trafficking in cocaine,
possession of cocaine with intent to sell and deliver, and selling cocaine by denying defendant's
request to exclude the marked money seized from defendant although defendant requested
disclosure of the evidence but was not informed of the State's intent to offer it into evidence until
the day before trial, because: (1) defendant did not request additional time to examine the money;
(2) defendant had an opportunity to inspect the money but chose not to do so; and (3) defendant
was not prejudiced.
3. Witnesses--qualifications--volunteer deputy testifying as law enforcement officer
The trial court did not err in a prosecution for trafficking in cocaine, possession of
cocaine with intent to sell and deliver, and selling cocaine by denying defendant's motion for a
new trial based on a volunteer deputy testifying as a law enforcement officer, because: (1)
defendant failed to object to the deputy's qualifications as a witness at trial and has not shown
that the deputy lacks any requirements set forth by the Rules of Evidence for a witness; and (2)
the deputy had personal knowledge since he was an eyewitness to the undercover buys, making
him competent to testify as a lay witness regardless of his qualifications as a law enforcement
officer.
4. Drugs--sale of cocaine--sufficiency of indictment
Even though defendant contends the indictment for 98 CRS 1697 states that defendant
sold cocaine to one undercover officer while the evidence at trial indicated that another
undercover officer negotiated for the purchase and later handed the bag of cocaine over to the
undercover officer named in the indictment, the indictment pertaining to this sale is not subject to
dismissal because the record supports that both undercover officers were involved in the buy.
5. Drugs--possession of cocaine--sufficiency of indictment
Although defendant contends the indictment for 98 CRS 1701 and 98 CRS 1703 charged
that defendant possessed different amounts of cocaine from that established by the State's
evidence at trial, the trial court properly denied dismissal of these charges because the amount
charged and amounts testified to weigh 28 grams or more of cocaine as required by N.C.G.S. §
90-95(h)(3).
6. Drugs--trafficking in cocaine--jury instruction--amount of cocaine--no plain error
The trial court did not commit plain error by instructing the jury on the charge of
trafficking in cocaine under N.C.G.S. § 90-95(h)(3)(a) that the amount of cocaine defendant
knowingly possessed had to be more than 28 but less than 200 grams of cocaine in order for
defendant to be found guilty, rather than the proper instruction of 28 grams or more of cocaine,
because: (1) the State pointed out this error and the trial court corrected the instruction; and (2)
defendant was not prejudiced in light of the trial court's prompt instructions which corrected the
error.
Attorney General Michael F. Easley, by Assistant Attorney
General Mark J. Pletzke, for the State.
Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford, for
defendant-appellant.
WALKER, Judge.
On 30 July 1999, defendant was convicted of two counts of
trafficking in cocaine by sale, two counts of trafficking in
cocaine by possession, three counts of possessing cocaine with
intent to sell and deliver and three counts of selling cocaine.
These convictions were consolidated for judgment and defendant
received two consecutive sentences of a minimum of 35 months and a
maximum of 42 months.
The State's evidence tends to show the following: Around the
beginning of November 1997, the Pender County Sheriff's Department
(sheriff's department) and the State Bureau of Investigation (SBI)
began a narcotics investigation which involved “undercover buys” of
cocaine by Deputy John Dixon (Dixon) of the sheriff's department
and Agent Steven Zolastowski (Zolastowski) of the SBI. The
investigation was supervised by Deputy Billy Sanders (Sanders) of
the sheriff's department. During each undercover buy, Dixon andZolastowski wore plain clothes, traveled in an undercover vehicle
and posed as drug buyers. In addition, Dixon was wired with
devices underneath his clothing to enable Sanders, who remained in
a surveillance vehicle near each transaction, to listen to and make
audio and video recordings of each transaction.
In the early evening hours of 30 January 1998, Dixon,
Zolastowski and an informant met defendant at a garage in the Union
Bethel Church Road area to conduct a sale of cocaine that had been
pre-arranged a few days earlier. After negotiating a price with
Zolastowski and Dixon for the cocaine, defendant delivered it to
Dixon and Zolastowski paid defendant.
Dixon also made additional undercover buys of cocaine from
defendant in February, March, and on two occasions in April of
1998. At this last buy on 4 April 1998, before Dixon left the
garage, the members of the sheriff's department surrounded the
garage and searched several people, including defendant. The money
found in defendant's pockets matched money marked by the sheriff's
department which Dixon had given to defendant in exchange for
cocaine the previous day.
At the close of the State's evidence, defendant filed a motion
for nonsuit for all charges, which the trial court allowed as to
two counts of conspiring to traffic in cocaine, two counts of
trafficking in cocaine by manufacture, one count of possessing with
intent to sell or deliver cocaine, one count of selling cocaine,
one count of delivering cocaine, and four counts of maintaining a
place to keep a controlled substance. Defendant did not offer any
evidence and the jury returned guilty verdicts in the remainingcharges.
[1]Defendant's first assignment of error concerns the
admission into evidence of the State's videotape which recorded the
undercover buys. Defendant contends the trial court committed
reversible error by admitting the videotape into evidence for the
following reasons: (1) it was not properly authenticated; (2) the
trial court denied defendant's request for a voir dire regarding
its foundation; (3) it contained inadmissible statements by third
parties; and (4) its probative value was substantially outweighed
by its prejudicial effect.
In support of his contention that the videotape was not
properly authenticated, defendant cites State v. Lynch, 279 N.C. 1,
181 S.E.2d 561 (1971)(superseded by Rule 901 of our Rules of
evidence enacted in 1983, as stated in State v. Stager, 329 N.C.
278, 406 S.E.2d 876 (1991)) and argues the trial court should have
used its test for authentication. We note that Lynch, which was
decided prior to the adoption of the North Carolina Rules of
Evidence, did not involve the admission of a videotape but set
forth a seven-pronged test “[t]o lay a proper foundation for the
admission of a defendant's recorded confession or incriminating
statement . . . .” Id. at 17, 181 S.E.2d at 571 (citations
omitted). In addition, our Supreme Court has “conclude[d] that the
authentication requirements of Rule 901 [of our Rules of Evidence]
have superseded and replaced the seven-pronged Lynch test.”
Stager, 329 N.C. at 317, 406 S.E.2d at 898 (citation omitted). In
Stager, it was held “[u]nder Rule 901, testimony as to accuracybased on personal knowledge is all that is required to authentic
ate
a tape recording, and a recording so authenticated is admissible if
it was legally obtained and contains otherwise competent evidence.”
Id., citing 2 Brandis on North Carolina Evidence § 195, at 132 (3d
ed. 1988).
In addressing the admissibility of a videotape, this Court has
established the following four-pronged test:
The prerequisite that the offeror lay a proper
foundation for the videotape can be met by: (1)
testimony that the motion picture or video tape
[sic] fairly and accurately illustrates the
events filmed (illustrative purposes); (2)
“proper testimony concerning the checking and
operation of the video camera and the chain of
evidence concerning the videotape . . .”; (3)
testimony that “the photographs introduced at
trial were the same as those [the witness] had
inspected immediately after processing,”
(substantive purposes); or (4) “testimony that
the videotape had not been edited, and that the
picture fairly and accurately recorded the
actual appearance of the area 'photographed.'”
State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909
(1998), citing State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d
604, 608 (1988), reversed on other grounds, 326 N.C. 37, 387 S.E.2d
450 (1990). This test is consistent with Rule 901 of our Rules of
Evidence, which provides in pertinent part “[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.”
N.C.R. Evid. 901(a)(1999).
Notwithstanding that Rule 901 has superseded Lynch's seven-
pronged test for authenticity of a tape recording, our SupremeCourt has held “Lynch clearly continues to govern the issue of
deleting improper material from a tape before it is played to a
jury.” State v. Gibson, 333 N.C. 29, 41, 424 S.E.2d 95, 102
(1992)(citations omitted)(holding the substance of tape was
admissible despite trial court's error in not conducting a voir
dire), overruled on other grounds by State v. Lynch, 334 N.C. 402,
432 S.E.2d 349 (1993). Therefore, under Lynch, the trial court
must “conduct a voir dire, rule on all questions of admissibility
and order the tape to be edited or redacted as necessary.” Id.
This is necessary “to keep out irrelevant, prejudicial or otherwise
inadmissible material.” Id. Once admitted by the trial court,
videotapes may be used “for both substantive and illustrative
purposes.” Cannon, 92 N.C. App. at 254, 374 S.E.2d at 608, citing
N.C. Gen. Stat. § 8-97.
Here, the State sought to establish authentication of the
videotape and a foundation for its admissibility through the
following evidence: (1) Dixon pretested the video camera he
operated to ensure it would work properly during each undercover
buy; (2) because the same eight millimeter videotapes were used to
record all undercover buys in the area, including undercover buys
not involving defendant, Dixon removed each videotape from the
camera immediately after each undercover buy and gave it to
Sanders; (3) Sanders then copied each undercover buy involving
defendant onto one of two marked VHS videotapes; (4) the
videotapes were then consolidated into a third videotape which wasadmitted at trial, and which did not contain inactive segments
characterized as “dead time;” (5) other than recording the eight
millimeter videotapes onto a VHS videotape, the video recordings
were not altered in any way; (6) all videotapes were kept in a
locked file cabinet which was under the control of Sanders; (7)
the videotape presented at trial accurately depicted the scenes
where buys from defendant occurred; and (8) the videotape would
assist Dixon and Sanders in explaining their testimonies to the
jury.
In response to defendant's objection to the videotape being
admitted at trial on the basis that it is not the original, but “a
dub of a dub of a dub[,]” the trial court concluded as follows:
. . . I think that a copy of the dubbing is
all right, provided that it does not alter
what was originally depicted in reference to
this matter and provided that the original is
available so that if the defendant wishes to
offer the original, he can. But if the
subject matter is not altered in any way, then
I think that the copy can be offered . . . .
We agree the trial court determined a proper foundation was
laid to authenticate the videotape. Even if the trial court erred
in failing to conduct a voir dire, such error was not prejudicial,
as the evidence portrayed on the videotape was merely cumulative
and served to corroborate the testimonies of Dixon, Sanders and
Zolastowski, as well as the physical evidence gathered from each of
the undercover buys. This assignment of error is therefore
overruled.
[2]In his next assignment of error, defendant contends that
because he had no notice of the State's intention to present themarked money seized from him as evidence, the trial court abused
its discretion in denying his request to exclude it. Although
defendant contends he requested disclosure of such evidence on 28
April 1998, he was not informed of the State's intention to offer
marked money into evidence until the day before the trial in July
1999.
The disclosure of evidence by the State is governed by N.C.
Gen. Stat. § 15A-903 (1999) which provides in pertinent part:
(d) Documents and Tangible Objects.--Upon
motion of the defendant, the court must
order the prosecutor to permit the
defendant to inspect and copy or
photograph books, papers, documents,
photographs, motion pictures, mechanical
or electronic recordings, buildings and
places, or any other crime scene,
tangible objects, or copies or portions
thereof which are within the possession,
custody, or control of the State and
which are material to the preparation of
his defense, are intended for use by the
State as evidence at the trial, or were
obtained from or belong to the defendant.
(emphasis added). In addition, our Supreme Court has held:
When a party fails to comply with [a
discovery] order, the trial court may grant a
continuance or a recess, prohibit the
violating party from introducing the non-
disclosed evidence, or enter any other
appropriate order. Because the trial court is
not required to impose any sanctions for abuse
of discovery orders, what sanctions to impose,
if any, is within the trial court's
discretion[,] including whether to admit or
exclude evidence not disclosed in accordance
with a discovery order.
State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988)
(citations omitted).
In State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825 (1989),defendant argued “the trial court erred i
n denying [her] motion to
strike and overruling [her] objections to the admission of evidence
which consisted of photographs of the area in which defendant had
been seen driving . . . [since] the State did not make these
photographs available to [her] before trial, even though [she]” had
requested them. Id. at 289, 382 S.E.2d at 828-29. This Court
found the trial court did not abuse its discretion regarding its
admission of the photographs because they “were made available to
defendant before they were introduced into evidence, defendant did
not request that the court allow her additional time to examine
these photographs after she had obtained access to them, and
defendant has not alleged that the prosecuting attorney acted in
bad faith.” Id. at 290, 382 S.E.2d at 829.
Similarly in the instant case, although the marked money was
made available to defendant shortly before trial, defendant did not
request additional time to examine it. The trial court found that
upon being made aware of the marked money, defendant had an
opportunity to inspect it but chose not to do so. Defense counsel
stated, “I am not contending that there was any lack of good faith”
on the part of the State. When the trial court asked defense
counsel what prejudice defendant would suffer from the admission of
the marked money, he answered “it could be extremely detrimental to
my client's case[,]” referring to the parties' one and one-half
years of preparation before trial. In denying defendant's motion
to exclude the evidence, the trial court stated:
It's still clear to me that, while [the marked
money] was made available, it wasn't made
available in a timely manner; however, it hasbeen made available before, at least the day
before, the jury has been impaneled, and the
Court finds that the defendant has not
suffered any specific prejudice as a result of
any delay in notice of this item and, as a
result, the Court is going to deny the motion.
We agree with the trial court that defendant was not prejudiced by
the admission of the marked money into evidence.
[3]We next address defendant's contention that a new trial is
warranted by the trial court's error in allowing Dixon, a volunteer
deputy, to testify as a law enforcement officer. In support of his
contention, defendant asserts although Dixon had not yet completed
training to qualify as a certified law enforcement officer at the
time of the undercover buys, he was allowed to testify as a sworn,
certified officer. Defendant further asserts he was thereby
prejudiced because this testimony unfairly lent credibility to
Dixon by creating a false impression to the jury about his
qualifications and experience during the undercover buys.
We first note the competency of a witness to testify is a
matter which rests in the sound discretion of the trial court in
light of its observation of the particular witness. State v.
Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987). In addition, Rule 601
establishes a minimum standard for competency of a witness as to
his capacity to understand and relate, under the obligations of an
oath, facts which will assist the jury in determining the truth.
N.C.R. Evid. 601 (1999); Hicks, 319 N.C. 84, 352 S.E.2d 424. Rule
602 further requires that a witness have personal knowledge of the
matter to which he testifies. N.C.R. Evid. 602 (1999); State v.
Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986) (holding that personalknowledge of a witness was established by her testimony that she
heard defendant make the statements in question and had the ability
to hear him make the statements).
Defendant failed to object to Dixon's qualifications as a
witness at trial and has not shown that Dixon lacks any
requirements set forth by our Rules of Evidence for a witness. As
an eyewitness to the undercover buys, Dixon had personal knowledge.
He was therefore competent to testify regarding the undercover buys
as a lay witness, regardless of his qualifications as a law
enforcement officer.
Defendant's remaining assignments of error, pertaining to his
indictments, consist of the following: (1) the trial court erred
by denying his motion for nonsuit as to the charges in 98 CRS 1697,
98 CRS 1701 and 98 CRS 1703 because the State's evidence varies
fatally from the indictments; (2) the trial court erred in denying
his motion to dismiss the charges in 98 CRS 1701 and 98 CRS 1703
because the State failed to charge a crime; and (3) the trial
court committed plain error by re-instructing the jury on charges
not in the indictments as well as on theories not alleged in the
indictments.
At the outset, we note the standard of review for a motion for
nonsuit or to dismiss charges against a criminal defendant is
“whether there is substantial evidence of each essential element of
the offense charged (or of a lesser offense included therein), and
of the defendant being the one who committed the crime.” State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984)(citations
omitted). “Substantial evidence is such relevant evidence as areasonable mind might accept as adequate to support a conclusion
.”
Id. (citation omitted). Furthermore,
the evidence is to be considered in the light
most favorable to the State; the State is
entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal; and all of the evidence actually
admitted, whether competent or incompetent,
which is favorable to the State is to be
considered by the court in ruling on the
motion.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980),
citing State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State
v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).
In this State, an indictment for the sale and/or delivery of
a controlled substance must accurately name the person to whom the
defendant allegedly sold or delivered the controlled substance, if
that person is known. State v. Ingram, 20 N.C. App. 464, 466, 201
S.E.2d 532, 534 (1974)(citation omitted). “[W]here the bill of
indictment alleges a sale to one person and the proof tends to show
only a sale to a different person, the variance is fatal.” Id.
This is because the State's proof must conform to the specific
allegations contained in the indictment, or it is insufficient to
convict defendant of the crime charged, thus warranting a motion to
dismiss. State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890,
894, cert. denied, 444 U.S. 874, 62 L. Ed. 2d 102 (1979)(citations
omitted).
[4]Defendant first contends the indictment for 98 CRS 1697
states that defendant sold cocaine to Dixon, while the evidence attrial indicated that Zolastowski negotiated for the purchase and
later handed the bag of cocaine over to Dixon. The State asserts
and the record supports that both Dixon and Zolastowski were
involved in the buy, such that the naming of Dixon is sufficient.
The indictment pertaining to this sale is therefore not subject to
dismissal on this basis.
[5]Second, defendant contends that the indictment for 98 CRS
1701 and 98 CRS 1703 charged that defendant possessed different
amounts of cocaine from that established by the State's evidence at
trial. However, in both cases, the amount charged and amounts
testified to weigh “28 grams or more of cocaine” pursuant to N.C.
Gen. Stat. § 90-95(h)(3)(1999). Dismissal of these charges was
therefore properly denied.
[6]We now address whether the trial court erred in
instructing the jury on charges not contained within the bills of
indictment. The record reveals that when the trial court first
instructed the jury on whether defendant was guilty of trafficking
in cocaine under N.C. Gen. Stat. § 90-95(h)(3)(a), it erroneously
stated the amount of cocaine defendant knowingly possessed had to
be “more than 28 but less than 200 grams of cocaine” in order for
defendant to be found guilty, rather than “28 grams or more of
cocaine.” The State pointed out this error and the trial court
corrected the instruction.
We note that defendant failed to object to the trial court's
corrected jury instructions but now contends on appeal the trial
court committed plain error resulting in prejudice to him. See
State v. Keys, 87 N.C. App. 349, 356, 361 S.E.2d 286, 290 (1987)(citation omitted)(holding defendant's failure to object to jury
instructions precluded her from raising instructional issue on
appeal unless trial court's charge was plain error). After
careful review, we conclude defendant was not prejudiced in light
of the trial court's prompt instructions which corrected the error.
In sum, defendant received a fair trial free of prejudicial
error.
No error.
Judges BIGGS and SMITH concur.
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