Appeal by defendant from judgments dated 26 January 2001 by
Judge Howard E. Manning, Jr. in Superior Court, Wake County. Heard
in the Court of Appeals 30 October 2002.
Attorney General Roy Cooper, by Assistant Attorney General
David G. Heeter, for the State.
John T. Hall, for defendant-appellant.
McGEE, Judge.
Jose Luis Macias (defendant) was charged with trafficking in
cocaine by possession and tracking in cocaine by transportation.
At trial, Miguel Uriv Rios (Rios) testified he met defendant
approximately three weeks before he and defendant were arrested.
Defendant told Rios, an admitted drug dealer, that he had some
cocaine and he gave Rios a sample.
Rios testified he was asked by an individual named Pajuan for
some cocaine. Defendant indicated that he could provide a kilo of
cocaine for the sale to Pajuan. Rios arranged for the sale of the
cocaine to Pajuan. Defendant said he wanted $24,000.00 for the
kilo of cocaine. Rios was to make $500.00 from the sale to Pajuan.
Rios and his girlfriend, Maria Castro Guzman (Guzman), metdefendant at a trailer off Highway 401 in Wake County on 2 August
2002. While at the trailer, defendant showed Rios the cocaine in
the trunk of defendant's white Honda. Rios and Guzman drove in
Rios' van from the trailer to a Sam's Club on South Saunders Street
in Raleigh. Defendant followed Rios' van to the Sam's Club in
defendant's white Honda. When Rios and defendant arrived at the
Sam's Club, defendant parked his car a few parking spaces away from
Rios' van. Rios exited his van and walked towards the Sam's Club.
Defendant opened up the trunk of his car and took out a couple of
white bags and placed them in Rios' van.
Pajuan changed the location of the transaction to the
Innkeeper Motel. When Rios got back into his van, defendant was
already sitting in the middle seat located behind Rios and Guzman.
Defendant had a white bag either under his feet or under the seat,
which Rios testified he believed contained cocaine. As Rios and
defendant were leaving the Sam's Club parking lot to drive to the
Innkeeper Motel, Raleigh police stopped them. Rios ran but was
apprehended a short distance away. Pajuan was a confidential
informant for the police. The police found a plastic bag
containing powder cocaine in the passenger compartment of the van,
where defendant had been sitting. Defendant stipulated that a
laboratory analysis showed the bag contained 993.1 grams of
cocaine.
Before defendant's trial, Rios pleaded guilty to trafficking
in cocaine by possession and trafficking in cocaine by
transportation. Rios testified that while he was in jail hereceived some letters in Spanish, which he understood were written
by defendant, who was also in the same jail. Rios testified that
while he and defendant were in the exercise yard at the jail,
defendant told him that he would write a letter to Rios. Rios saw
defendant hand letters to the "hall man" or "cleanup man" at the
jail, who delivered them to Rios.
On direct examination, Rios read the letters in Spanish and
then testified about them in English. Rios stated that through the
letters, defendant offered him $3,000.00 and either the white car
or the money from the sale of the white car, if he would take all
the blame for the drug transaction. Rios initially informed
defendant that he would accept the offer. However, Rios testified
that after defendant's wife had paid money into Rios' jail account,
for which Rios had the deposit receipt, Rios changed his mind and
rejected defendant's offer. When the letters were introduced into
evidence, English translations were attached to them. The
translations had been prepared by Officer Campos, who was fluent in
Spanish. Defendant did not object to admission of the letters or
the attached translations.
The first day of trial ended after Rios' direct examination
and a portion of his cross-examination had occurred. During the
first day of the trial, an interpreter, Gonzalo Herrera (Herrera),
sat behind Rios while he was testifying, in order to assist Rios if
any assistance was needed. Judge Howard E. Manning, Jr. replaced
Judge James Spencer, the trial judge from the first day of trial,
because Judge Spencer was ill. On the second day of the trial,defendant objected to Herrera assisting Rios during Rios' testimony
on the previous day. Defendant moved to strike Rios' testimony and
for a mistrial. The trial court determined that any assistance
Herrera gave Rios, although it was not clear that Herrera ever
translated anything for Rios, was rendered by Herrera only during
the last twenty-five minutes of the first day, while Rios was being
cross-examined by defendant's attorney. The trial court denied
defendant's motions but permitted defendant to begin his cross-
examination of Rios anew, using the court-appointed interpreter,
Bibi Rodriguez (Rodriguez), not Herrera, in case Rios needed
assistance.
The jury found defendant guilty of one count of trafficking in
cocaine by possession and one count of trafficking in cocaine by
transportation. Defendant appeals from the convictions.
I.
Defendant argues the trial court erred in refusing to allow
a qualified interpreter of Spanish to English to testify about an
alternative translation of certain letters introduced by the State,
on the grounds that the trial court's actions violated defendant's
state and federal constitutional rights to due process and equal
protection.
At the close of the State's evidence, defendant called the
court-appointed interpreter, Rodriguez, as a witness to challenge
the interpretation of certain words in the letters introduced by
the State. Defendant specifically contested the interpretation of
the Spanish word "papales" and a phrase about his codefendants. Defendant contended that the word "papales" could not mean
thousands of dollars in money, as the State translation stated.
The trial court ruled that the interpreter would not be
permitted to testify as to the meaning of the word "papales." The
trial court stated that defendant had the opportunity to cross-
examine Rios about the letters and Officer Campos' translations of
the letters, and that defendant had ample chance to contest the
State's translation of the word "papales." The trial court stated
defendant was attempting to directly challenge testimony by Rios
concerning the letters long after the letters and Rios' translation
of the word "papales" had been admitted without objection. In
fact, during the cross-examination of Rios, defendant directly
challenged Rios' translation of the words in question before the
jury. During cross-examination, Rios disagreed with defendant's
translation of the word "papales," but he agreed with defendant's
characterization of the phrase concerning the codefendants.
Despite the unusual nature of the proceedings, defendant's
only assignment of error concerning the use of translators and the
translations offered is that the trial court's refusal to allow the
court-appointed translator to testify about alternative meanings of
the word "papales" and a few other phrases in the letters violated
defendant's state and federal constitutional rights to due process
and equal protection. The scope of review on appeal is limited to
those issues presented by assignment of error.
Koufman v. Koufman,
330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991) (citing N.C.R. App.
P. 10(a)). As defendant states in his brief, defendant failed toraise these constitutional issues at trial. "Constitutional issues
not raised and passed upon at trial will not be considered for the
first time on appeal."
State v. Gainey, 355 N.C. 73, 87, 558
S.E.2d 463, 473,
cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___
(2002) (citing
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517,
519 (1988)). This assignment of error is overruled.
II.
Defendant next argues that the trial court erred by denying
his motion to dismiss the charges for insufficiency of the
evidence. In
State v. King, our Supreme Court stated that
[t]he law concerning motions to dismiss is
well settled. "If there is substantial
evidence-whether direct, circumstantial, or
both-to support a finding that the offense
charged has been committed and that the
defendant committed it, the case is for the
jury and the motion to dismiss should be
denied."
State v. Locklear, 322 N.C. 349,
358, 368 S.E.2d 377, 383 (1988). Substantial
evidence is that evidence which a reasonable
mind might accept as adequate to support a
conclusion.
State v. Vause, 328 N.C. 231, 400
S.E.2d 57 (1991). The evidence must be viewed
in the light most favorable to the State, and
the State must receive every reasonable
inference to be drawn from the evidence.
State v. Powell, 299 N.C. 95, 261 S.E.2d 114
(1980). Any contradictions or discrepancies
arising from the evidence are properly left
for the jury to resolve and do not warrant
dismissal.
Id. at 99, 261 S.E.2d at 117.
State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
Defendant was charged with trafficking in cocaine by
possession and trafficking in cocaine by transportation in
violation of N.C. Gen. Stat. § 90-95(h)(3). The two essential
elements of trafficking in cocaine by possession are that "[t]he[cocaine] must be possessed, and the [cocaine] must be knowingly
possessed."
State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701,
702 (1985) (quoting
State v. Rodgers, 32 N.C. App. 274, 278, 231
S.E.2d 919, 922 (1977)). "A person [has] 'possession' of [cocaine]
within the meaning of G.S. 90-95 if they have the power and intent
to control it; possession need not be actual."
State v. Rich, 87
N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citing
State v.
Baize, 71 N.C. App. 521, 323 S.E.2d 36 (1984),
disc. review denied,
313 N.C. 174, 326 S.E.2d 33 (1985)). Further, the State need not
show that the defendant owned the cocaine or was the only
individual with access to it.
Id. (citations omitted). "[T]he
State may overcome a motion to dismiss . . . by presenting evidence
which places the accused 'within such close juxtaposition to the
narcotic drugs as to justify the jury in concluding that the same
was in his possession.'"
State v. Harvey, 281 N.C. 1, 12-13, 187
S.E.2d 706, 714 (1972) (citations omitted).
Similarly the two essential elements of trafficking in cocaine
by transportation are that (1) the defendant must have transported
the cocaine, and (2) the defendant must have transported the
cocaine knowingly.
See State v. Outlaw, 96 N.C. App. 192, 385
S.E.2d 165 (1989),
disc. review denied, 326 N.C. 266, 389 S.E.2d
118 (1990). Transportation is "'any real carrying about or
movement from one place to another.'"
Id. at 197, 385 S.E.2d at
168 (quoting
Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122, 67
L. Ed. 894, 901 (1923)).
"A conviction for trafficking in cocaine
by transportation requires that the State show a 'substantialmovement.'"
State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d
394, 397 (1996) (quoting
State v. Greenidge, 102 N.C. App. 447,
451, 402 S.E.2d 639, 641 (1991)). "Our courts have determined that
even a very slight movement may be 'real' or 'substantial' enough
to constitute 'transportation' depending upon the purpose of the
movement and the characteristics of the areas from which and to
which the contraband is moved."
State v. McRae, 110 N.C. App. 643,
646, 430 S.E.2d 434, 436,
disc. review denied, 334 N.C. 625, 435
S.E.2d 347 (1993) (citation omitted). "A determination of whether
there has been 'substantial movement' involves consideration of
'
all the circumstances surrounding the movement'"
State v.
Manning,
139 N.C. App. 454, 468, 534 S.E.2d 219, 228 (2002),
aff'd
per curiam, 353 N.C. 449, 545 S.E.2d 211 (2001)
(quoting
Greenidge,
102 N.C. App. at 451, 402 S.E.2d at 641).
In
State v. Outlaw, the defendant was stopped by law
enforcement as he was backing out of his driveway with cocaine in
his truck.
96 N.C. App. 192, 197, 385 S.E.2d 165, 168-69 (1989).
Our Court held there was sufficient evidence to sustain a charge of
trafficking, where the evidence tended to show the defendant would
have continued on in the car if the agent had not pulled him over.
Id.
Viewing the evidence in the light most favorable to the State
and drawing all reasonable inferences in its favor, the evidence
tended to show that defendant told Rios he could provide a kilo of
cocaine for Rios to sell to Pajuan; defendant had cocaine in the
trunk of his car; defendant carried a plastic bag from the trunk ofhis car; and when defendant got into Rios' van, he put the bag
either under his feet or under the seat. When the location of the
drug sale changed from the Sam's Club parking lot, defendant and
Rios drove in Rios' van out of that parking lot towards the new
location of the proposed sale. When police stopped Rios' van,
there was a plastic bag containing powder cocaine in the passenger
area of the van where defendant had been sitting. Defendant
stipulated that the cocaine found was approximately one kilogram.
Evidence also tended to show that defendant paid money into Rios'
account in order to get Rios to take the blame for the crimes. We
hold that viewing the evidence in a light most favorable to the
State, the trial court did not err in denying defendant's motion to
dismiss.
III.
Defendant next argues the trial court erred in admitting, over
defendant's objection, the testimony of Detective Greg Baker that
Detective Baker believed Rios was telling the truth during
questioning by Detective Baker. Defendant contends that N.C. Gen.
Stat. § 8C-1, Rules 608 and 405(a), when read together, prohibit
expert opinion testimony as to the credibility of a witness.
"The trial court has wide discretion in determining whether
expert testimony is admissible" and the decision is normally within
the sound discretion of the trial court.
State v. Owen, 133 N.C.
App. 543, 549, 516 S.E.2d 159, 164,
disc. review denied, 351 N.C.
117, 540 S.E.2d 744 (1999). We review such decisions for an abuse
of discretion.
Id. at
549, 516 S.E.2d at 164. Detective Baker testified that
[w]e re-Mirandized [Rios] with the Spanish
version and we asked him the initial questions
again, just asked him to tell us about the
incident that had just occurred. He again
told me that they went to Sam's to buy a car
stereo. And at that point I told him that we
knew about what was going on than he was
letting on [sic]. And I told him that he
needed to start telling the truth, and I
believe from thereafter he did.
Defendant argues that Detective Baker's qualifications as an expert
in law enforcement, even though he was never tendered as an expert,
caused the jury to give undue weight to his statement that Rios was
being truthful during his questioning. In limited circumstances,
a witness can be considered an expert even if that witness is never
formally qualified as an expert witness.
See State v. McCoy, 105
N.C. App. 686, 414 S.E.2d 392 (1992) (noting that, given an agent's
opinions were based on many years of personal experience in the
field of narcotics, admission of testimony based on that experience
amounted to a finding by the trial court that the witness had
certain expertise beyond that of the average juror). Defendant
bases his argument on N.C. Gen. Stat. § 8C-1, Rules 405(a) and 608,
which if "read together, forbid an expert's opinion as to the
credibility of a witness."
State v. Heath, 316 N.C. 337, 342, 341
S.E.2d 565, 568 (1986).
In
State v. Richardson, 346 N.C. 520, 488 S.E.2d 148 (1997),
cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998),
the
defendant argued that the trial court erred by allowing a police
officer and an agent of the State Bureau of Investigation to
testify that a key witness was telling the truth when he was beingquestioned.
Id. at 533-34, 488 S.E.2d at 156. The defendant
argued that by using such inadmissible character evidence to
strengthen the witness's testimony, the State violated N.C.G.S. §
8C-1, Rules 405 and 608.
Richardson, 346 N.C.
at 534, 488 S.E.2d
at 156. The police officer "testified that officers had 'checked
out' [the witness's] story, 'taking care to make sure he was
telling us the truth.'"
Id. The officer further testified that
"in his opinion, [the witness] had told him the truth."
Id. The
State Bureau of Investigation agent "similarly testified that it
appeared that [the witness's] story was true."
Id.
Our Supreme Court
concluded that the police officer and the
State Bureau of Investigation agent "were not giving character
testimony, but rather explaining their investigation following
[the] defendant's implication of [the witness]."
Id. The Court
stated that the officer "was not commenting on [the witness's]
general credibility; he merely told the jury that he believed [the
witness] had told the truth during the investigation."
Id. We
recognize the fine line between opinion testimony as to a witness's
general credibility and the evidence in
Richardson. Although in
Richardson the Supreme Court went on to discuss that any assumed
error would be harmless before overruling the defendant's
assignment of error
, we apply the logic employed by the Supreme
Court in the analogous case before us.
Detective Baker was not providing general character testimony
in this case, rather he was explaining the course of defendant's
questioning. Detective Baker was not commenting on Rios' generalcredibility, he was simply saying that he believed Rios was telling
the truth about the alleged incidents during the questioning after
Detective Baker told Rios that he "knew about what was going on."
We thus determine that the trial court did not abuse its discretion
in admitting Detective Baker's testimony.
Even assuming
arguendo that the trial court erred in admitting
Detective Baker's testimony, defendant must show sufficient
prejudice from the admission of the evidence to entitle him to a
new trial.
State v. Teeter, 85 N.C. App. 624, 632, 355 S.E.2d 804,
809,
disc. review denied, 320 N.C. 175, 358 S.E.2d 67 (1987).
Defendant is only entitled to a new trial if he can show a
reasonable probability that, had the error not occurred, a
different result would have been reached.
Id. (citing N.C. Gen.
Stat. § 15A-1443(a)). Defendant has failed to show a sufficient
likelihood that a different result would have occurred at trial had
the testimony of Detective Baker concerning his belief about Rios's
statements during questioning been excluded. This assignment of
error is overruled.
Defendant argues in his brief that the trial court erred in
failing to include language in the verdict sheet indicating he was
guilty of trafficking in cocaine in an amount greater more than 400
grams; however, defendant did not assign this as error and did not
object to it in the trial court below. This argument is not
properly before this Court and therefore we do not address it.
N.C.R. App. P. 10(a) (2002).
No error. Judges HUDSON and BIGGS concur.
Report per Rule 30(e).
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