STATE OF NORTH CAROLINA
v
.
EMMETT BERNARD SHIPP
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly P. Hunt, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
EAGLES, Chief Judge.
Defendant, Emmett Bernard Shipp, appeals from judgment entered
in Mecklenburg County Superior Court upon a jury verdict finding
him guilty of one count of trafficking in heroin by possession;
three counts of possession of heroin with the intent to sell or
deliver; and three counts of selling heroin.
The State's evidence tended to establish that on 12 January
2000, the Charlotte-Mecklenburg Police Department was involved in
a 2-3 month long undercover drug investigation in the area
surrounding the intersection of Kohler Avenue and Statesville
Avenue in Charlotte, North Carolina. Officer Patrick Mulhall
(“Mulhall”) and Officer Michael Marlow (“Marlow”) of the Charlotte-
Mecklenburg Police Department's vice and narcotics division wereassigned to drive through the area and attempt to make undercover
purchases of heroin from street dealers who “flagged” them down.
On 12 January 2000, Mulhall drove with Marlow to the area of
Kohler Avenue and Statesville Avenue. While the officers were
stopped at an intersection, defendant, who was walking up the
street with another man, called out to the officers. Defendant
walked up to the driver's side of the car and asked Mulhall what
they wanted. Mulhall replied “two bags,” meaning heroin. Defendant
told Mulhall to meet him at “the top of the hill” and disappeared
from the officers' sight. After driving to the top of the hill, the
officers were met by several people in a green minivan. The
officers followed the van to a duplex on Olando Avenue where
defendant was standing in the front yard.
Once the officers stopped in front of the duplex, defendant
walked up to the driver's side of the car. Mulhall told defendant
they wanted “two bags” of heroin. Defendant walked over to a parked
gray Ford Tempo, retrieved something from the trunk and then placed
two “cellophane baggies” on the passenger door's armrest of the
officers' car. Mulhall and Marlow gave defendant fifty dollars:
Mulhall put twenty-five dollars on the car's dash while Marlow
handed twenty-five dollars to defendant directly. Defendant took
the money and told the officers to come back to the house and beep
the horn if they wanted “anything else.” Mulhall and Marlow then
left.
Mulhall placed the two cellophane baggies into a larger
evidence envelope and sealed it with tape. Mulhall then obtained acomplaint number for the incident and wrote this number on the
envelope, along with his initials and the letters “B/M.” Mulhall
turned the evidence over to the Charlotte-Mecklenburg Police
Department's (“CMPD”) property control facility with a request for
chemical analysis of the substance contained in the cellophane
baggies. Mulhall and Marlow then looked through books of police
photographs until they identified defendant as the person who sold
them the cellophane baggies.
At approximately 9:15 a.m. on 4 February 2000, Mulhall and
Marlow again drove through the area of Statesville Avenue and
Kohler Avenue seeking to make undercover purchases of heroin. This
time defendant was driving what appeared to be the same gray Ford
Tempo from which the officers had seen defendant retrieve the drugs
on 12 January 2000. Defendant came up behind the officers' car in
the Tempo and flashed his headlights. The officers stopped and
defendant pulled along side the officers' car. Defendant asked
Mulhall what they wanted. Mulhall said “two bags,” indicating
heroin. Defendant told the officers to follow him. He led the
officers back to the same duplex on Olando Avenue. Once there,
defendant got out of his car, walked over to the officers' car and
handed Mulhall two “bags” of heroin. Mulhall handed defendant fifty
dollars while Marlow discussed the possibly of purchasing larger
quantities of heroin from defendant in the future. This prompted
defendant to give the officers his pager number as well as a code
number to key in when they called. After receiving the number, the
officers left and turned the evidence over to CMPD property controlin virtually the same manner as on 12 January 2000, except this
time, defendant's name was written on the evidence envelope instead
of the descriptive initials, “B/M.”
At approximately 10:30 a.m. on 4 February 2000, Marlow paged
defendant and arranged to purchase one gram of heroin for $250. The
officers then drove to the duplex on Olando Avenue where defendant
lived. Defendant met the officers at their car. Following a brief
conversation, defendant gave Mulhall the heroin and Marlow gave
defendant $250. The officers left and turned the evidence over to
CMPD property control.
On 24 February 2000, Mulhall and Marlow met Arnell Huffman in
the parking lot of Wayne Supermarket to purchase $1500 worth of
heroin. Huffman got into the officers' car and directed them to
drive to a residential area of North Pine Street. Huffman then got
out of the officers' car and walked across North Pine Street where
he met defendant and engaged in a brief conversation. Following
this conversation, both Huffman and defendant walked back to the
officers' car. Defendant briefly engaged Mulhall in conversation
and then walked to the passenger side of the car and did the same
to Marlow. Defendant told Marlow that the heroin the officers were
supposed to buy was actually going to cost $1600 instead of $1500
as previously agreed. Defendant attributed the increase to a
“misquote” in the price on the part of Huffman. Defendant then
handed Marlow a bag containing approximately six grams of heroin.
In return, Marlow gave defendant $1600. Following the exchange, theofficers returned to the police department where the evidence was
turned over to CMPD property control.
For the events that occurred on 12 January 2000, defendant was
indicted on one count of sale of a controlled substance and one
count of possession with intent to sell or deliver a controlled
substance. For the events of 4 February 2000, defendant was
indicted on two counts of sale of a controlled substance and two
counts of possession with intent to sell or deliver a controlled
substance. For the events of 24 February 2000, defendant was
indicted on one count of trafficking in drugs by possession.
Defendant was convicted on all counts and sentenced to 115-125
months imprisonment and a $50,000 fine. Defendant appeals.
Defendant first argues that there was a fatal variance between
the allegations in the bills of indictment and the trial court's
instructions to the jury. The sale indictment stemming from the
events of 12 January 2000 charged that defendant “did unlawfully,
willfully and feloniously sell to P.J. Mulhall and M.D. Marlow, a
controlled substance, to wit: heroin . . . .” (Emphasis added.)
The two sale indictments stemming from the events that occurred on
4 February 2000 charged that defendant “did unlawfully, willfully
and feloniously sell to P.J. Mulhall, a controlled substance, to
wit: heroin . . . .” (Emphasis added.) The trial court, in a
single charge as to all of the sale offenses, gave the following
instruction to the jury:
The defendant has been accused of selling heroin, a
controlled substance. Now I charge that for you to find
the defendant guilty of selling heroin, a controlled
substance, the State must prove beyond a reasonable doubtthat the defendant knowingly sold heroin to P.J. Mulhall
or M.D. Marlow or both, as the case may be, exchanging
heroin for money, would be a sale of a controlled
substance. So I charge that if you find from the evidence
beyond a reasonable doubt, that on or about the alleged
date, the defendant knowingly sold heroin to P.J. Mulhall
or M.D. Marlow or both, as the case may be, it would be
your duty to return a verdict of guilty as charged.
(Emphasis added.)
Defendant argues that because two of the indictments allege
that “only P.J. Mulhall” was the purchaser of the heroin and the
remaining indictment alleged that “both P.J. Mulhall and M.D.
Marlow” were the purchasers; the trial court's instruction that
defendant could be convicted if the jury found that he “sold heroin
to P.J. Mulhall or M.D. Marlow or both,” amounted to plain error.
Defendant contends that by instructing the jury in the disjunctive
“or” where the indictment charges in the conjunctive “and,” the
trial judge submitted the case to the jury on a theory not charged
in the bills of indictment. We disagree.
The plain error standard requires a defendant to make a
showing that absent the erroneous instruction, a jury
would not have found him guilty of the offense charged.
To rise to the level of plain error, the error in the
instructions must be 'so fundamental that it denied the
defendant a fair trial and quite probably tilted the
scales against him.'
State v. Lancaster, 137 N.C. App. 37, 46, 527 S.E.2d 61, 68
(2000)(citations omitted), disc. review denied in part, 352 N.C.
680, 545 S.E.2d 723 (2000).
Defendant correctly asserts that “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. Redd, 144N.C. App. 248, 256, 549 S.E.2d 875, 881 (2001). Furthermore, “'[i]t
is a well-established rule in this jurisdiction that it is error,
generally prejudicial, for the trial judge to permit a jury to
convict upon some abstract theory not supported by the bill of
indictment.'” State v. Tucker, 317 N.C. 532, 537-38, 346 S.E.2d
417, 420 (1986)(quoting State v. Taylor, 301 N.C. 164, 170, 270
S.E.2d 409, 413 (1980)). Therefore, “the trial court should not
give instructions which present to the jury possible theories of
conviction which are either not supported by the evidence or not
charged in the bill of indictment.” State v. Taylor, 304 N.C. 249,
274, 283 S.E.2d 761, 777 (1981), cert. denied, 463 U.S. 1213, 77 L.
Ed. 2d 1398 (1983). However, after careful review of the record and
trial transcript, we conclude that the trial court's instruction
did not present the jury with theories of conviction not charged in
the bill of indictment.
We are guided by State v. Lancaster, 137 N.C. App. 37, 527
S.E.2d 61 (2000). In Lancaster, defendant was charged with
kidnapping by an indictment which alleged the offense was
perpetrated by “unlawfully confining, restraining and removing [the
victim] from one place to another without her consent.” Id. at 46,
527 S.E.2d at 67 (emphasis added). The trial court's instructions
to the jury stated in pertinent part that “[i]f you find from the
evidence beyond a reasonable doubt that . . . the defendant
unlawfully confined a person, restrained a person, or removed a
person from one place to another . . . it would be your duty toreturn a verdict of guilty . . . .” Id. at 46, 527 S.E.2d 68
(emphasis added).
The defendant in Lancaster argued, as defendant does here,
that the conjunctive allegations of the indictment and the trial
court's disjunctive instructions to the jury ran afoul of our
Supreme Court's holding in State v. Tucker, 317 N.C. 532, 346
S.E.2d 417 (1986). However, the Lancaster court distinguished
Tucker on grounds that the indictment in Tucker limited the alleged
kidnapping to one theory, while the jury instructions allowed for
a conviction based on a different theory than the one set out in
the indictment. Lancaster, 137 N.C. App. at 47, 527 S.E.2d at 68.
The Lancaster court went on to hold that where the indictment
charged defendant in the conjunctive, i.e., “with kidnapping by
'confining, restraining and removing,'” a jury instruction in the
disjunctive, which permitted conviction “upon a showing of either
confining, restraining or removing” was permissible because it was
not based upon “an 'abstract theory not supported by the bill of
indictment.'” Id.(emphasis added). We conclude that Lancaster is
controlling.
Here, indictment 00 CrS 124301 charges that defendant sold
heroin to “P.J. Mulhall and M.D. Marlow.” Applying Lancaster, a
conviction would be permitted upon a showing that defendant sold
heroin to either Mulhall, Marlow or both. Therefore, the
instruction in the disjunctive did not permit conviction on an
abstract theory, not supported by the bill of indictment as to that
charge. Moreover, although the indictments in 00 CrS 124295 and 00CrS 124298 charged that defendant sold heroin only to “P.J.
Mulhall,” we cannot say the trial court's instruction in this case
allowed for conviction on any theory other than those alleged in
the respective indictments.
It should be noted that the trial court instructed the jury as
to all three indictments in one single charge. Furthermore, the
trial court followed the disjunctive charge with the words “as the
case may be.” The inclusion of this language limited the jury to
convicting defendant only upon the theories reflected in the
respective indictments. Finally, the verdict sheets for 00 CrS
124295 and 00 CrS 124298 also indicate that conviction was
expressly limited to the theory charged in the indictments. In each
case the jury was presented with only two choices: “Guilty of sale
of heroin . . . to P.J. Mulhall” or “Not guilty.” On this record,
we conclude that the trial court's instruction did not have a
probable impact on the jury's finding of defendant's guilt.
Accordingly, this assignment of error is rejected.
Defendant next argues that the trial court improperly denied
his motion to dismiss in case numbers 00 CrS 124298 and 00 CrS
124300, based on insufficiency of the evidence. Defendant contends
that neither officer “actually identified” the heroin sold to them
during the second transaction that occurred on 4 February 2000
because Officer Marlow testified that State's Exhibit No. 8 was
“the alleged heroin that was purchased from Mr. Shipp approximately
11:30 hours on the 24th of February,” instead of the 4th of February.
Defendant further argues that the State's evidence was insufficientto show that the substance that was purchased was “actually
heroin.” We disagree.
It is well established that when ruling on a motion to dismiss
for insufficiency of the evidence,
the trial court is required to interpret the evidence in
the light most favorable to the State, drawing all
reasonable inferences in the State's favor. The
defendants' motion must be denied if the State has
offered substantial evidence against defendant of every
essential element of the crime charged. 'Substantial
evidence' is defined as that amount of relevant evidence
that a reasonable mind might accept as adequate to
support a conclusion. The test of the sufficiency of
evidence to withstand dismissal is the same whether the
State's evidence is direct, circumstantial, or a
combination of the two.
State v. Porter, 303 N.C. 680, 685-86, 281 S.E.2d 377, 381-82
(1981)(citations omitted). Defendant's own evidence, if favorable
to the State, may also be considered in ruling on the motion. State
v. Green, 310 N.C. 466, 468, 312 S.E.2d 434, 435-36 (1984).
Here, both Officer Marlow and Officer Mulhall testified on
direct examination that they purchased heroin from defendant at
approximately 11:30 a.m. on 4 February 2000. Marlow further
testified that immediately after the purchase was complete, he
sealed the heroin (State's Exhibit No. 8) in an evidence envelope
(State's Exhibit No. 7); obtained a complaint number; wrote the
complaint number on the evidence envelope; and submitted both the
evidence envelope and the evidence contained in it to CMPD property
control. Marlow testified that the sequence of numbers in the
complaint number (“2000-0204-120503") indicated that the number had
been issued on 4 February 2000 at 12:05 p.m. Willie Earl Rose, a
criminalist with the Charlotte-Mecklenburg Police Department'scrime lab, testified as an expert in the area of forensic chemistry
and controlled substance identification. Rose testified that he
performed a chemical analysis of State's Exhibit No. 8 and found it
to be 0.48 grams of heroin. Finally, defendant himself testified
that he sold heroin to Mulhall and Marlow on 4 February 2000. We
conclude there is ample evidence in the record to reasonably
support the conclusions that: (1) defendant sold State's Exhibit
No. 8 to Mulhall and Marlow on 4 February 2000; and (2) that the
substance sold was heroin. Accordingly, the trial court properly
denied defendant's motion to dismiss.
Defendant next argues that the trial court committed plain
error by failing to correct improper statements made by the
prosecutor during closing argument.
Defendant first contends that the prosecutor improperly
asserted her personal opinion as to the credibility of a witness by
arguing:
I'm going to submit to you that the officers were
telling the truth. And he sold it them to him. He didn't
even blame it on Mr. Huffman. That's the most likely
story he could give you. Wasn't me. Must have been him.
He didn't even say that. Don't want to talk about it.
Didn't sell drugs. No more.
So it's going to come down to who you believe. It's
not identity. He told you that this photograph right here
was him. The person that they went back and identified
was him.
Defendant next contends that the prosecutor engaged in
uncomplimentary conduct toward defense counsel by arguing:
Now Miss El-Khouri, and I like her, we're good friends
outside the courtroom. It's her job to give you some
smoke screens and to say hey, look at the monkey. Hey,look at the pretty bird. Don't look at what's right in
front of you.
Defendant next contends that the prosecutor's portrayal of him
as a car with faulty brakes improperly led the jury to base its
decision on passion and prejudice, rather than the evidence.
Defendant specifically cites the following argument:
[MS. WEST] Can you go back home knowing you've just
put that dangerous car back on the road. Cause that's
what you're doing. You're putting Mr. Shipp who is an
admitted drug dealer, he sold drugs twice, back on the
street. He's dangerous to you.
MS. EL-KHOURI: Objection.
THE COURT: Overruled.
MS. WEST: He's dangerous to you. He's dangerous to
your family. And he's dangerous to everybody around you,
just like that car that you put on the road when you
bought it from the salesman.
Finally, defendant contends that because there was no
testimony as to what would constitute an individual “hit” of
heroin, the prosecutor argued matters outside the record by saying:
These two baggies, you can assume, is about a hit each.
This weighed point 09. Don't look like a lot, a little
bit of powder, two hits. Err on the side of caution.
We'll say one hit is point 05 of a gram. This is 5.53.
Ladies and gentlemen, this is a little more than 111 hits
of heroin.
Although defendant did not object at trial, he argues that “due to
the inflammatory and highly prejudicial nature of the prosecutor's
argument, the trial court should have intervened ex mero motu to
cure the prejudice . . . .” We disagree.
“Trial counsel are granted wide latitude in the scope of jury
argument, and control of closing arguments is in the discretion of
the trial court.” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480,487 (1992). “Counsel may argue the facts in evidence together with
all reasonable inferences that may be drawn therefrom in presenting
counsel's side of the case.” State v. Abraham, 338 N.C. 315, 338,
451 S.E.2d 131, 143 (1994). “Further, for an inappropriate
prosecutorial comment to justify a new trial, it 'must be
sufficiently grave that it is prejudicial error.'” Soyars, 332 N.C.
at 60, 418 S.E.2d at 487-88 (quoting State v. Britt, 291 N.C. 528,
537, 231 S.E.2d 644, 651 (1977)).
Where defendant fails to object to an alleged impropriety
in the State's argument and so flag the error for the
trial court, 'the impropriety . . . must be gross indeed
in order for this court to hold that a trial judge abused
his discretion in not recognizing and correcting ex mero
motu an argument which defense counsel apparently did not
believe was prejudicial when he heard it.'
Abraham, 338 N.C. at 338, 451 S.E.2d at 143 (quoting State v.
Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979)). “In
determining whether the prosecutor's argument was grossly improper,
this Court must examine the argument in the context in which it was
given and in light of the overall factual circumstances to which it
refers.” State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d 599, 609
(1997), cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997). “To
prevail under a plain error analysis, a defendant must establish
not only that the trial court committed error, but that absent the
error, the jury probably would have reached a different result.”
State v. Perkins, ___ N.C. App. ___, ___, 571 S.E.2d 645, 648
(2002).
After carefully reviewing the prosecutor's entire argument,
paying particular attention to those portions to which defendantnow assigns error, we conclude the prosecutor's argument was not so
grossly improper as to require the trial judge to intervene ex mero
motu. Moreover, defendant has not established that the jury
probably would have reached a different result. Accordingly, this
assignment of error is rejected.
Finally, defendant argues that the trial court improperly
denied his motion to sever the trial of the 12 January 2000
offenses. Defendant first argues that the offenses in this case
lacked the requisite connection to be joined for trial. We
disagree.
“It is well established that a trial court's ruling on the
consolidation or severance of cases is discretionary and will not
be disturbed absent a showing of abuse of discretion.” State v.
Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985), rev'd on
other grounds, 323 N.C. 306, 372 S.E.2d 704 (1988). “[T]wo or more
offenses may be joined for trial when the offenses are based on the
same act or transaction, or a series of acts or transactions
connected together or constituting parts of a single scheme or
plan.” State v. Manning, 139 N.C. App. 454, 458, 534 S.E.2d 219,
223 (2000), disc. review denied, 353 N.C. 273, 546 S.E.2d 385
(2000). “A defendant is not prejudiced by the joinder of two crimes
unless the charges are 'so separate in time and place and so
distinct in circumstances as to render the consolidation unjust and
prejudicial to defendant.'” State v. Howie, 116 N.C. App. 609,
615, 448 S.E.2d 867, 871 (1994) (quoting State v. Hammond, 112 N.C.App. 454, 458, 435 S.E.2d 798, 800 (1993), disc. review denied, 335
N.C. 562, 441 S.E.2d 126 (1994).
In State v. Manning, 139 N.C. App. 454, 534 S.E.2d 219 (2000),
defendant was charged in a total of fifteen different drug
trafficking offenses, which occurred on four separate dates over
six months. Defendant argued that joinder of the offenses was
improper because (1) there was no connection between the offenses;
and (2) it effectively “strengthen[ed] evidence of defendant's
guilt on the weaker counts with evidence from the stronger counts.”
Id. at 460, 534 S.E.2d at 223. This Court rejected defendant's
argument, finding that the evidence indicated that “defendant had
a common, continual method of transacting drug sales,” based on
“the same pattern of operation between defendant and the informant
. . . during this time.” Id. at 461, 534 S.E.2d at 224. In
reaching this conclusion, the Manning court relied on the following
factors: (1) Defendant always retrieved the drugs from a location
“on or near his property”; (2) Defendant “would often plan the
exchange . . . ahead of time; (3) Defendant “always took cash in
payment”; and (4) Defendant “almost always” delivered the drugs in
clear plastic bags. Id.
Here, defendant was charged with seven drug offenses involving
both the possession and sale of heroin. The offenses occurred on
three separate dates over the course of less than two months. The
evidence further indicated that defendant and his associates
frequently patrolled the area of Kohler and Statesville Avenues, an
area that was known for heroin trafficking. Their purpose was toapproach potential buyers to direct them to defendant's residence
on Olando Avenue and sell those buyers heroin. Defendant also
arranged drug sales in advance, both through his associates as well
as through the use of a numerical pager and pre-designated codes.
Moreover, defendant almost always retrieved the heroin from either
his residence or from a gray Ford Tempo that he drove and kept on
the property of his residence.
We conclude the evidence was sufficient to indicate that the
acts or transactions were either connected together or constituted
parts of a single scheme or plan to distribute heroin. We hold that
the trial court did not abuse its discretion by consolidating all
of the charges for trial.
Defendant next contends that severance of the charges was
required to promote a fair determination of his guilt or innocence
of each offense. Defendant submits that because the officers'
reports concerning the 12 January 2000 offense identified the
seller only as a “black male,” the identity of the perpetrator of
that offense was in issue. Defendant contends that joinder was
improper because it prevented him from choosing not to testify as
to the 12 January 2000 offenses in order to make the State prove
his identity as the perpetrator. We disagree.
A defendant fails to show abuse of discretion on the part of
the trial judge in joining two offenses for trial where
“defendant's only assertion of possible prejudice is that he might
have elected to testify in one of the cases and not in the others.”
State v. Sutton, 34 N.C. App. 371, 374, 238 S.E.2d 305, 307 (1977),disc. review denied, 294 N.C. 186, 241 S.E.2d 521 (1978). “The
defendant seeking to overturn the discretionary ruling must show
that the joinder has deprived him of a fair trial.” State v.
Porter, 303 N.C. 680, 688, 281 S.E.2d 377, 383 (1981).
Here, defendant has failed to show either that the trial court
abused its discretion or that joinder deprived him of a fair trial.
Mulhall testified that on 12 January 2000, he and Marlow purchased
heroin from a black male. Following the 12 January 2000 purchase,
Mulhall and Marlow identified defendant by viewing a book of police
photographs. Mulhall further identified defendant as the seller in
open court. Finally, defendant himself admitted that he was the
person in the photograph the officers used to identify him.
Accordingly, this assignment of error is rejected.
We hold that defendant received a fair trial, free from
prejudicial error.
No error.
Judges TYSON and THOMAS concur.
*** Converted from WordPerfect ***