STATE OF NORTH CAROLINA
v
.
EDWARDO MARTINEZ
Roy Cooper, Attorney General, by David R. Minges, Assistant
Attorney General, for the State.
Hosford & Hosford, PLLC, by Geoffrey W. Hosford for defendant-
appellant.
THOMAS, Judge.
Defendant, Edwardo Martinez, appeals a jury verdict finding
him guilty of conspiracy to commit the felony of trafficking in
marijuana where the quantity is in excess of ten pounds but less
than fifty pounds. Among defendant's five assignments of error is
that the trial court erred by allowing the State to introduce out-
of-court statements to impeach the testimony of a co-defendant.
For the reasons discussed herein, we find no error.
The State's evidence tended to show the following: On 18
August 1999, Burgaw Police Detective Keith Hinkle (Hinkle) spokewith Agent Robert Zapetta (Zapetta) of the Combined Governmental
Drug Enforcement and Crime Task Force. Zapetta, who was in Texas,
advised Hinkle that a package containing a controlled substance was
being delivered by overnight mail to Burgaw from Texas. He also
provided Hinkle with the package's tracking number. Hinkle went to
the Federal Express office in Wilmington the next day and matched
the tracking number to a large cardboard box, addressed to “Eric
Coob” at 508 Smith Street, Burgaw, North Carolina.
Hinkle and Agent Blane Hicks (Hicks) of the State Bureau of
Investigation (SBI) utilized the Wilmington Police Canine Unit to
check six boxes. After one of the dogs “alerted on” the box to
Coob, Hinkle returned to Burgaw and obtained a search warrant.
Upon opening the box, he discovered shipping material, a strong
aroma of coffee grounds, and two cellophane-wrapped packages of
marijuana. The marijuana collectively weighed approximately
thirty-five pounds.
SBI Agent Audria Bridges (Bridges), wearing a Federal Express
uniform, then delivered the box to the address listed. Fabian
Treto (Treto) signed for it. The name “Eric Coob” was fictitious.
Afterwards, the Pender County Sheriff's Department executed a
search warrant at the residence.
Treto was arrested for, inter alia, conspiring to traffic
marijuana. After being advised of his Miranda rights, Treto toldpolice that he owed defendant money for previous marijuana
purchases. According to Treto, defendant had asked that he accept
the package for him as a way of making payment. Treto agreed.
Following their interrogation of Treto, the police listened to and
recorded a telephone conversation between him and defendant.
During the call, Treto informed defendant the package had arrived
and defendant acknowledged it contained marijuana.
Later the same day, Hicks arrested defendant at his place of
work. Defendant waived his Miranda rights and admitted asking
Treto to accept the package of marijuana for him. However,
defendant also told police he arranged the drop off at Treto's
house at the behest of a man named “Puya” who was to pay him
$1,200. The police were never able to locate “Puya.”
During a search of defendant, police found a list of names
with dollar amounts beside them. Defendant explained that the
amounts were how much he was owed for marijuana that he had sold to
the individuals.
The defense presented no evidence during the guilt/innocence
phase and moved to dismiss based on insufficiency of the evidence.
The motion, however, was denied.
Defendant was found guilty of conspiracy to commit the felony
of trafficking in marijuana where the quantity is in excess of ten
pounds but less than fifty pounds. N.C. Gen. Stat. § 90-95(h)(1)(a) (1999). He was sentenced to a minimum of twenty-five
months and a maximum of thirty months in prison.
By defendant's first assignment of error, he argues the trial
court erred in allowing the State to introduce out-of-court
statements to impeach Treto, a co-defendant. We disagree.
During the State's evidence, Treto said he did not know what
was in the package. Subsequently, SBI Agent Steve Zawistowski
(Zawistowski) testified that Treto did know what the package
contained.
A: Treto stated that Lalo, who is Eduardo
Martinez, requested him to take delivery of a
package of marijuana.
Q: He didn't tell you to take the package of
coffee?
A: No. He knew what was in the package.
Q. Or a package of oregano?
A. No, sir.
Q: Did Mr. Treto ever indicate to you that
he didn't know what was in that package?
A: No sir.
Q: Did you have to open that package for him
and surprise him and let him know that he had
$84,000 worth of marijuana in his living room?
MR. HARRELL: Objection as to whether he
was surprised.
MR. DAVID: I think that's relevant,
Your Honor.
THE COURT: Overruled.
Q: You may answer, sir. Was Fabian Treto
ever surprised to learn he had marijuana in
his presence in that box?
A: I don't think we ever showed him the
marijuana at all, and all our discussions was
[sic] about marijuana. He already knew what
was in that package.
Defendant contends the State's questioning of whether Treto knew
there was marijuana in the box was a “mere subterfuge” to get
otherwise inadmissible evidence before the jury to prove
conspiracy, citing State v. Hunt, 324 N.C. 343, 378 S.E.2d 754
(1989), recon. denied, 339 N.C. 741, 457 S.E.2d 304 (1995), cert.
denied, 531 U.S. 945, 148 L. Ed. 2d 276 (2000).
Hunt states that a prosecutor may not use a witness's
statement under the guise of impeachment for the primary purpose of
placing before the jury substantive evidence which is not otherwise
admissible. See Whitehurst v. Wright, 592 F.2d 834, 839-40 (5th
Cir. 1979); United States v. Dobbs, 448 F.2d 1262 (5th Cir. 1971).
In Hunt, the statements were admitted for both substantive and
impeachment purposes. “[S]uch a scheme merely serves as a
subterfuge to avoid the hearsay rule.” United States v. Hogan, 763
F.2d 697, withdrawn in part on other grounds, 771 F.2d 82 (5th Cir.
1985).
The danger in this procedure is obvious. The
jury will hear the impeachment evidence, which
is not otherwise admissible and is not
substantive proof of guilt, but is likely to
be received as such proof. The defendant thus
risks being convicted on the basis of hearsay
evidence that should bear only on a witness's
credibility.
Id. Hearsay is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence toprove the truth of the matter asserted.” N.C. R. Evid. 801.
“Hearsay is not admissible except as provided by statute or by
these rules.” N.C. R. Evid. 802.
A prior inconsistent statement is admissible to contradict a
witness's testimony, although it may not be considered as
substantive evidence. State v. Green, 296 N.C. 183, 250 S.E.2d 197
(1978). A statement constitutes substantive evidence when it is
“adduced for the purpose of proving a fact in issue[.]” Black's
Law Dictionary 1429 (6th ed. 1990). A statement is impeachment
evidence when it is “given for the purpose of discrediting a
witness[.]” Id. Here, immediately before Zawistowski's testimony,
the trial court gave a limiting instruction to the jury regarding
the earlier statement.
THE COURT: I'm going to give the jury
an instruction -- give me a moment here -- on
this kind of testimony. Let's see here. All
right, ladies and gentlemen of the jury,
listen to this instruction. When evidence has
been received tending to show that, at an
earlier time, a witness made a statement which
may be consistent with or may conflict with
his testimony at this trial, you must not
consider such earlier statement as evidence of
the truth of what was said at that earlier
time because it was not made under oath at
this trial.
If you believe such earlier statement was
made and it is consistent or does conflict
with the testimony of the witness at this
trial, then you may consider this, together
with all other facts and circumstances bearing
upon the witness' truthfulness, in decidingwhether you will believe to disbelieve his
testimony at this trial.
There is no evidence that the State's primary purpose in eliciting
the testimony from Zawistowski was to evade the hearsay rule.
Further, there was other evidence of the conspiracy elsewhere,
including defendant's statement to the police and Treto's
testimony. In accordance with the trial court's instruction, the
statement was not admitted for substantive purposes and would have
otherwise been admissible because of the prior inconsistent
statement exception to the hearsay rule. We therefore reject
defendant's argument.
By defendant's second assignment of error, he argues the trial
court committed plain error in allowing the State to introduce the
contents of the recorded telephone conversation between defendant
and Treto. We disagree.
Defendant contends he deserves a new trial under this
assignment because: (1) the tape was not authenticated; (2) the
State did not follow the factors set out in State v. Lynch, 279
N.C. 1, 181 S.E.2d 561 (1971), to determine whether the tape was
admissible; (3) Zawistowski's summarization of the tape violated
the best evidence rule; and (4) the tape was irrelevant.
Plain error is “fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot havebeen done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th
Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d
513 (1982)).
First, the proponent of an audiotape must authenticate it by
showing that it is what the proponent claims. N.C. R. Evid.
901(a). In State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991),
our Supreme Court held that testimony as to the accuracy of a tape
recording based on personal knowledge is sufficient to authenticate
because the recording was legal and contained competent evidence.
Here, Zawistowski testified that he was present when the
conversation was taking place and that he had listened to it
several times since the original recording. He further testified
that in order to legally record a conversation in North Carolina,
the police need the consent of one of the parties. Treto,
according to Zawistowski, gave consent.
As to defendant's second argument under this assignment of
error, State v. Lynch, supra, was superceded and the seven-factor
test was replaced by Rule 901 of the North Carolina Rules of
Evidence. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).
Rule 901 provides, in pertinent part:
(a) General provision.--The requirement of
authentication or identification as acondition precedent to admissibility is
satisfied by evidence sufficient to support a
finding that the matter in question is what
its proponent claims.
....
(6) Telephone Conversations.--Telephone
conversations, by evidence that a call was
made to the number assigned at the time by the
telephone company to a particular person or
business, if (A) in the case of a person,
circumstances, including self-identification,
show the person answering to be the one
called, or (B) in the case of a business, the
call was made to a place of business and the
conversation related to business reasonably
transacted over the telephone.
N.C. R. Evid. 901(a)(6). Those provisions were complied with here.
As to defendant's third argument under this assignment of
error, the best evidence rule applies when the contents of a
writing or recording are at issue. See N.C. R. Evid. 1002. Here,
the contents of the recorded conversation are not being disputed by
defendant and, in fact, Zawistowski actually listened to the
original conversation. He was competent to testify from that
alone. Additionally, defendant never moved at any time to have the
tape played for the jury. When determining plain error, a
defendant must show that but for the alleged error, the jury would
have returned a different verdict. State v. Sierra, 335 N.C. 753,
440 S.E.2d 791 (1994). In light of the overwhelming evidence
against defendant, as well as defendant's own admission, we holdthat defendant has not shown that if the tape had been played, the
jury probably would have reached a different verdict.
As to his final argument under this assignment of error,
relevancy is governed by Rules 402 and 403 of the North Carolina
Rules of Evidence. Rule 402 states “[a]ll relevant evidence is
admissible . . . . Evidence which is not relevant is not
admissible.” N.C. R. Evid. 402. Rule 403 provides, in pertinent
part, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice[.]” N.C. R. Evid. 403. Nonetheless, we hold that the
evidence was not unduly prejudicial. We therefore find no plain
error in the admission of the tape and reject defendant's argument.
By defendant's third assignment of error, he argues the trial
court erred in allowing the State to introduce into evidence the
papers found on him which contained the names of those who had
purchased marijuana and the amounts due. We disagree.
Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. R. Evid. 401. In the instant case,
one of the names on a document was that of Treto, the State's
primary witness. That paper corroborated the testimony of Hicks,who arrested defendant, as well as the testimony of Treto, and
showed a relationship between Treto and defendant. It was
therefore relevant and admissible as substantive evidence to show
defendant's intent and design. See N.C. R. Evid. 401. See
generally, State v. Kilgore, 65 N.C. App. 331, 308 S.E.2d 876
(1983). We accordingly reject defendant's argument.
By defendant's fourth assignment of error, he argues the trial
court erred in denying his motions for nonsuit and appropriate
relief. We disagree.
In State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773 (2001),
this Court held that:
[a] motion for nonsuit in a criminal case
requires consideration of the evidence in the
light most favorable to the State, and the
State is entitled to every reasonable
intendment and every reasonable inference to
be drawn therefrom. [citation omitted].
Contradictions and discrepancies are for the
jury to resolve and do not warrant nonsuit.
“If there is substantial evidence-whether
direct, circumstantial, or both-to support a
finding that the offense charged has been
committed and that defendant committed it, a
case for the jury is made and nonsuit should
be denied.”
Id. at 286, 548 S.E.2d at 780 (quoting State v. McKinney, 288 N.C.
113, 117, 215 S.E.2d 578, 581-82 (1975)).
In the instant case, it was shown that defendant and Tretowere conspiring to commit the offense charged. There was evidence
that: (1) Treto had a history of drug transactions with defendant;
(2) defendant did not want to receive the package; (3) Treto
accepted the package, addressed to “Eric Coob” at his home; (4)
Treto knew that part of his $1,400 marijuana debt to defendant
would be forgiven for accepting the package; and (5) Treto knew the
package contained marijuana.
A criminal conspiracy can be shown by direct or circumstantial
evidence. State v. Rozier, 69 N.C. App. 38, 316 S.E.2d 893, cert.
denied, 312 N.C. 88, 321 S.E.2d 907 (1984). An express agreement
need not be shown if a mutual, implied understanding is evident.
Id. We hold that the trial court did not abuse its discretion when
it denied defendant's motion for nonsuit and appropriate relief
because the State presented substantial evidence that defendant
committed conspiracy to transport more than ten but less than fifty
pounds of marijuana. Therefore, this assignment of error is
rejected.
By defendant's fifth and final assignment of error, he argues
the trial court committed plain error by instructing the jury on
the offense of conspiracy to commit trafficking by transporting
more than ten but less than fifty pounds of marijuana when the
grand jury had issued an indictment for conspiracy to committrafficking by transporting thirty-five pounds of marijuana. We
disagree.
Defendant failed to object to the instruction at trial so we
analyze this issue under plain error. As aforementioned, plain
error is “fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done." State
v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote
omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
In State v. Epps, 95 N.C. App. 173, 381 S.E.2d 879 (1989), the
defendant was indicted for trafficking 35.1 grams of cocaine. This
Court held that the indictment was sufficient although the
statutory offense provides a range of more than 28 but less than
200 grams of cocaine.
It is not the function of the indictment to
bind the hands of the State with technical
rules of pleading; rather its purposes are to
identify clearly the crime[,] . . . [put] the
accused on reasonable notice . . . and to
protect the accused from being jeopardized by
the State more than once for the same offense.
Id. at 176, 381 S.E.2d at 881 (quoting State v. Sturdivant, 304
N.C. 293, 311, 283 S.E.2d 719, 731 (1981)). Likewise, in the
instant case, defendant was put on reasonable notice. He does not
claim any difficulty in preparing for trial and there is nopossibility that he was confused about the offense charged.
Accordingly, we reject defendant's argument and find no error.
NO ERROR.
Judges WYNN and HUDSON concur.
*** Converted from WordPerfect ***