Appeal by defendants from judgments filed 21 August 2001 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 26 March 2003.
Attorney General Roy Cooper, by Assistant Attorneys General
Kathleen U. Baldwin and John G. Barnwell, for the State.
William B. Gibson for defendant-appellant Santiago Iberra
Torres.
D. Tucker Charnes for defendant-appellant Rey Espinoza
Morales.
BRYANT, Judge.
Santiago Ibarra Torres (Torres) and Rey Espinoza Morales
(Morales) (collectively defendants) appeal from judgments filed 21
August 2001 entered consistent with jury verdicts finding (A)
Torres guilty of (1) trafficking in cocaine by transportation and
(2) by possession, (3) possession with intent to sell and deliver
cocaine, and (4) conspiracy to traffic in cocaine and (B) Morales
guilty of the same offenses except for conspiracy to traffic incocaine.
Prior to trial, defendants asked to be represented by the same
attorney. The trial court inquired of each defendant as to whether
they had been advised of their entitlement to obtain separate
counsel, especially if the interests of one defendant differed from
those of the other. Both defendants replied they understood their
rights and wished to pursue joint representation.
The evidence presented at trial revealed that, a few days
prior to 11 April 2001, Officers Allen S. Wallace and Tom Kroh with
the Greensboro Police Department began to investigate Torres. The
officers met with Neil Blair (Blair), an informant who had bought
drugs from Torres on prior occasions and agreed to telephone Torres
to set up another transaction. When Blair telephoned Torres, he
initially talked about “purchasing keys,” which are “[k]ilos of
crack cocaine.” During the course of several telephone
conversations with Torres, Blair finally arranged for the purchase
of two ounces of cocaine for $1,800.00 with an understanding that
bigger purchases would follow. The exchange was to take place at
a certain car wash on 11 April 2001.
Prior to the exchange, Officer Wallace provided Blair with a
listening device that would allow the police to monitor his
conversation with Torres and also searched Blair and his vehicle to
ensure that he did not have any narcotics or money other than the
purchase money supplied to him by the police. Officers Wallace and
Kroh then followed Blair to the car wash. Ten to fifteen minutes
later, Torres arrived in his white SUV. The SUV pulled into a carwash bay out of the officers' view. Blair got out of his parked
vehicle and walked toward the SUV in which two Hispanic men, Torres
and Morales, were sitting. Torres, who was sitting on the
passenger side, stepped out of the SUV to talk to Blair. Morales
exited the vehicle shortly thereafter and climbed into the back of
the SUV where he retrieved a Ziploc plastic bag. He then
“reach[ed] over the front seat” and “handed the [package of] dope
to Santiago [(Torres)].” The package was dusty because it had been
kept in a vacuum cleaner that was located in the SUV. Torres
“dusted it off” and, giving it to Blair, said it was “good dope.”
Blair gave Torres the $1,800.00 in exchange.
Blair and Torres again started to talk about “keys” of
cocaine, which Torres agreed to sell to Blair for $25,000.00 per
kilogram. When Torres told Blair he “got it now” and appeared to
point to the SUV, Blair thought there were additional drugs in the
vehicle. Having been previously instructed to alert the police,
through use of the words “big dope,” if he saw or heard mention of
“any further cocaine” during his meeting with Torres, Blair gave
the arranged signal. In explaining why he did so, Blair testified
at trial that, in addition to what Torres had told him, he relied
on his past dealings with Torres. Specifically, Blair stated:
“knowing that he is a big dope dealer,” “the people that I know who
are big dope dealers, they get their stuff from Santiago,” and “all
the people that I know who have dealt with him.” Defendants
objected to this testimony as inadmissible character evidence under
Rule 404(a), but their objections were overruled by the trialcourt.
When the police moved in to arrest defendants, Torres told
Morales to be quiet. Officer Wallace's search of Torres revealed
the $1,800.00 purchase money located in Torres' pocket, a Motorola
pager, and a Sprint cellular telephone. The Sprint cell phone
contained fifty-two telephone numbers, including Blair's. Blair
was found in possession of a Ziploc plastic bag containing what was
later identified as 56.6 grams
(See footnote 1)
of cocaine. The police also
inspected the SUV for drugs but did not find any. The SUV search
did, however, yield a black notebook that contained “all kind[s] of
notations and numbers” as well as two pieces of paper with
telephone numbers on them and another cellular telephone. The
notebook, which served to record money transactions, names, pager
and telephone numbers, listed transfers of $15,000.00, $16,500.00,
$3,300.00, with a notation on the side that “appear[ed] to be the
word 'weed.'” The notebook recorded several other transactions,
noting amounts as high as $27,400.00.
At the end of the State's evidence, defendants made a motion
to dismiss for insufficiency of the evidence, which the trial court
denied. Torres then testified on his own behalf, stating he was
selling cellular telephones illegally, not drugs, and that the
notebook entries reflected these transactions. Morales did not
testify. At the end of all the evidence, Torres renewed his motion
to dismiss, and the trial court denied the motion. Following thejury verdict, the trial court consolidated Morales' convictions and
gave him a sentence of thirty-five to forty-two months. The trial
court arrested judgment on the possession with intent to sell and
deliver cocaine charge and imposed a sentence of thirty-five to
forty-two months on Torres for trafficking in cocaine by
transportation. The trial court then consolidated Torres'
trafficking in cocaine by possession and conspiracy convictions,
again imposing a sentence of thirty-five to forty-two months, which
was to run at the expiration of the trafficking by transportation
sentence.
____________________________
The issues are whether the trial court: (I) abused its
discretion in admitting statements about Torres' reputation as a
drug dealer; (II) erred in allowing defendants to be represented by
the same counsel; (III) erred in failing to arrest judgment on
Torres' conspiracy conviction in light of Morales' acquittal on the
same charge; and (IV) erred in denying Morales' motion to dismiss
due to insufficient evidence on the element of possession.
(See footnote 2)
I
Torres first takes issue with the admission of the followingstatements by Blair: “knowing that [Torres] is a big dope dealer,”
“the people that I know who are big dope dealers, they get their
stuff from Santiago,” and “all the people that I know who have
dealt with him.” Torres argued at trial that this testimony should
have been excluded under Rule 404(a) of the North Carolina Rules of
Evidence, which provides: “Evidence of a person's character or a
trait of his character is not admissible for the purpose of proving
that he acted in conformity therewith on a particular occasion.”
N.C.G.S. § 8C-1, Rule 404(a) (2001). Contrary to Torres'
contention, Blair's statements were not offered to show Torres
acted in conformity with his reputation as a drug dealer but to
explain his reason for believing more drugs were present in the SUV
and his subsequent signal to the police. During defendants' prior
cross-examination of Officer Wallace, defendants had placed in
issue Blair's credibility by questioning the reason for Blair's
belief that there were additional drugs in the SUV. As such,
Blair's statements were relevant to portray the events surrounding
the drug transaction.
See State v. Rannels, 333 N.C. 644, 658, 430
S.E.2d 254, 261 (1993) (where evidence tended to show the
circumstances under which the defendant's confession was made, it
was relevant and not impermissible character evidence). Moreover,
where “[t]he evidence cast[s] more light on [an] important
question[] than it [does] on [the] defendant's character[,] [i]ts
probative value . . . outweigh[s] its prejudicial effect under
Evidence Rule 403.”
Id. We thus conclude that the trial court did
not abuse its discretion in admitting Blair's statements for thepurpose of explaining his actions on 11 April 2001.
See State v.
Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987) (abuse of
discretion standard applied to review of Rule 404 and 403
challenge),
aff'd, 322 N.C. 467, 368 S.E.2d 386 (1998).
II
Torres next argues the trial court erred in allowing
defendants to proceed with joint representation since “the evidence
against Torres was much stronger than the evidence against his co-
defendant.” Torres contends that because defendants' trial counsel
“could [therefore] not effectively argue to the jury the innocence
of [d]efendant Morales without effectively destroying [d]efendant
Torres' case,” each defendant was denied his right to due process
and effective assistance of counsel. We disagree.
“Where a constitutional right to counsel exists, our Sixth
Amendment cases hold that there is a correlative right to
representation that is free from conflicts of interest.”
Wood v.
Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981).
“Requiring or permitting a single attorney to represent co-
defendants, often referred to as joint representation, is not per
se violative of constitutional guarantees of effective assistance
of counsel. This principle recognizes that in some cases multiple
defendants can appropriately be represented by one attorney.”
Holloway v. Arkansas, 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433
(1978). In
Cuyler v. Sullivan, the United States Supreme Court
considered whether (1) a state trial court must inquire into the
propriety of multiple, i.e. joint representation when no partylodges an objection and (2) the mere possibility of a conflict of
interest warrants the conclusion that the defendant was deprived of
his right to counsel.
Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed.
2d 333 (1980). The Supreme Court held that while state trial
courts have a duty to investigate timely objections to joint
representation,
the Sixth Amendment does not require “state courts
themselves to initiate inquiries into the propriety of multiple
representation in every case.”
Id.
at 346, 64 L. Ed. 2d at 345.
Absent special circumstances, therefore, trial
courts may assume either that multiple
representation entails no conflict or that the
lawyer and his clients knowingly accept such
risk of conflict as may exist. Indeed, as the
Court noted in
Holloway, trial courts
necessarily rely in large measure upon the
good faith and good judgment of defense
counsel. “An 'attorney representing two
defendants in a criminal matter is in the best
position professionally and ethically to
determine when a conflict of interest exists
or will probably develop in the course of a
trial.'” Unless the trial court knows or
reasonably should know that a particular
conflict exists, the court need not initiate
an inquiry.
Id. at 347, 64 L. Ed. 2d at 345-46 (citations and footnotes
omitted).
In this case, there was no reason for the trial court to
believe a conflict existed that would require separate
representation. The trial court questioned defendants
individually, and both responded they were aware that, if they felt
conflicts of interests existed, they had the right to obtain
separate counsel. Neither defendant nor their attorney lodged an
objection at a later point in the trial. Furthermore, while Torresargues he was deprived of a fair trial because his trial counsel
could not effectively defend Morales without destroying Torres'
case, his brief points to no evidence in support of this
proposition. As such, Torres has failed to present both the
existence of an actual conflict and any resulting prejudice
therefrom.
See id. at 348, 64 L. Ed. 2d at 346-47 (“a defendant
who raised no objection at trial must demonstrate that an actual
conflict of interest adversely affected his lawyer's performance”);
State v. Yelton, 87 N.C. App. 554, 561, 361 S.E.2d 753, 758 (1987)
(“prejudice [from joint representation will] be presumed only upon
a demonstration 'that counsel “actively represented conflicting
interests” and that “an actual conflict of interest adversely
affected his lawyer's performance”'”) (quoting
Burger v. Kemp, 483
U.S. 776, 783, 97 L. Ed. 2d 638, 650 (1987)). Accordingly, the
trial court did not err in permitting joint representation.
III
Torres further raised the issue of whether his conspiracy
conviction should have been set aside based on Morales' acquittal
on this offense. “A criminal conspiracy is an agreement between
two or more people to do an unlawful act or to do a lawful act in
an unlawful manner.”
State v. Morgan, 329 N.C. 654, 658, 406
S.E.2d 833, 835 (1991).
The general rule is that if all participants
charged in a conspiracy have been legally
acquitted, except the defendant, then the
inconsistent charge or conviction against the
sole remaining defendant must be set aside.
The logic behind this rule is that if all but
one have been acquitted of conspiring with theothers charged, there are none left with whom
the remaining party could have agreed; without
an unlawful agreement there is no conspiracy.
State v. Gibson, 333 N.C. 29, 51, 424 S.E.2d 95, 107-08 (1992),
overruled on other grounds by State v. Lynch, 334 N.C. 402, 432
S.E.2d 349 (1993). We therefore agree with Torres and hold that
his conviction for conspiracy to traffic cocaine must be vacated.
IV
In his brief to this Court, Morales argues the trial court
erred in denying his motion to dismiss because there was
insufficient evidence on the element of possession.
In reviewing a defendant's motion to dismiss, the trial court
must determine whether, considered in the light most favorable to
the State, there is substantial evidence of each essential element
of the offense charged and that the defendant is the perpetrator.
State v. Cockerham, 129 N.C. App. 221, 223-24, 497 S.E.2d 831, 832
(1998). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
Possession is an essential element of the offenses of which Morales
was found guilty,
see N.C.G.S. § 90-95(h)(3) (2001), and may be
either actual or constructive,
State v. Bowens, 140 N.C. App. 217,
222, 535 S.E.2d 870, 873 (2000). A defendant has actual possession
of a substance if it is on his person, he is aware of its presence,
and either by himself or with others, he has the power and intent
to control its disposition or use.
State v. Crawford, 104 N.C.
App. 591, 600, 410 S.E.2d 499, 504 (1991). In this case, Morales contends the trial court only instructed
the jury on actual possession and the State did not present
substantial evidence thereof. We disagree and hold that there was
sufficient evidence on the element of actual possession. After
Torres stepped out of the SUV at the car wash to talk to Blair
about the drugs, Morales was the one who went into the back of the
SUV to retrieve the cocaine from inside of a vacuum cleaner. He
reached over the front passenger seat and handed the cocaine, which
was in a Ziploc plastic bag, to Torres. Torres in turn gave the
cocaine to Blair in exchange for the $1,800.00, telling him it was
“good dope,” and a conversation about “keys” ensued. Consequently,
there was sufficient evidence from which a reasonable juror could
conclude that Morales knew the plastic bag contained cocaine and
that he not only had actual, physical possession of it but also the
power and intent to control its disposition. We therefore overrule
this assignment of error.
No error in part and vacated in part and remanded for
resentencing.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
Footnote: 1