1. Evidence_-officer giving payments to informant for bills after cooperation and prior
to trial--credibility
The trial court did not err in a trafficking in cocaine by possession and transportation case
by denying defendant's motion to dismiss the charges based on a police officert's payments
totaling $350.00 to the State's material witness for her bills several weeks after the witness
cooperated in the operation that led to defendant's arrest and prior to his trial, because: (1) both
the witness and the officer were subjected to vigorous cross-examination on the issue of the
payments, and it is the province of the jury to assess and determine witness credibility; and (2)
the evidence does not support defendant's characterization of the two payments as a quid pro
quo payment for her testimony since they were not made to secure either her cooperation in
defendant's arrest or her testimony at trial.
2. Appeal and Error--preservation of issues--failure to object--inaudible audiotape
Although defendant contends the trial court erred in a trafficking in cocaine by
possession and transportation case by allowing the State to play for the jury during its case-in-
chief an audiotape recorded by an informant during her 9 July 2002 trip to and from Charlotte
with defendant even though defendant contends the tape was inaudible, defendant failed to
preserve this issue for review because although defendant objected to admission of the tape into
evidence prior to a proper foundation being laid, defendant did not object to the State playing the
tape for the jury after the trial court ruled that it had been properly authenticated.
3. Evidence--audiotape--different machine used to play tape
The trial court did not abuse its discretion in a trafficking in cocaine by possession and
transportation case by allowing the jury during its deliberations to listen to portions of an
audiotape, recorded by an informant during her 9 July 2002 trip to and from Charlotte with
defendant, on a machine different from the one used to play the same tape during the State's
case-in-chief, because: (1) defendant does not allege that the tape itself was enhanced or altered
in any way between the time it was played during the State's case-in-chief and during the jury's
deliberations, and nothing in the record suggested that such was the case; and (2) the very fact
that the jury asked to listen to portions of the tape three separate times during its deliberations,
and to change seats within the jury box in order to give each juror a chance to sit as close as
possible to the tape player, indicates that the second machine did nothing to enhance the tape's
clarity.
Attorney General Roy Cooper, by Assistant Attorney General
James C. Holloway, for the State.
SIGMON SIGMON & ISENHOWER, by Gene Sigmon for defendant-
appellant.
ELMORE, Judge.
William Duggie Brice (defendant) appeals from judgment entered
upon jury verdicts finding him guilty of one count each of
trafficking in cocaine by possession and trafficking in cocaine by
transportation. For the reasons stated herein, we conclude that
defendant received a fair trial, free of prejudicial error.
The evidence presented by the State at trial tended to show
that in early July 2002 Beverly Jobe contacted Lieutenant Tracy
Ledford of the Maiden Police Department and informed him that she
had a problem using crack cocaine and wanted to stop. Jobe told
Lieutenant Ledford that she “needed away from [defendant]” because
defendant regularly provided her with crack cocaine. Lieutenant
Ledford in turn contacted Sergeant Robert Curtis Moore of the
Maiden Police Department and related to Sergeant Moore what Jobe
had told him regarding Jobe's use of crack cocaine provided by
defendant.
On 8 July 2002, Sergeant Moore and Investigator Bart
Lowdermilk of the Catawba County Sheriff's Department met with Jobe
at her apartment, where she reiterated both her desire to stop
using crack cocaine and her claim that defendant often provided her
with drugs. Sergeant Moore asked Jobe “if she could assist in
setting up a situation where the narcotics division was aware that
controlled substances were going to be transported or brought back
to [defendant's] residence.” Jobe informed Sergeant Moore thatdefendant was going to drive her to Charlotte on 9 July 2002, where
defendant intended to buy drugs and after which they would return
to defendant's home in Maiden. According to Jobe, she had
previously accompanied defendant on eight or nine similar trips.
On 9 July 2002, Sergeant Moore provided Jobe with a small tape
recorder, which Jobe agreed to carry in her purse in order to
record any conversation during the drive to and from Charlotte.
Defendant picked up Jobe from her apartment and they drove in
defendant's car to Charlotte, where Jobe testified that defendant
purchased rock and powder cocaine. Jobe testified that, per
defendant's instruction, she placed the drugs between her legs
while seated in the front passenger seat of defendant's car, and
they returned to Maiden. Maiden police officers resumed their
surveillance of defendant's car as it re-entered Catawba County,
and as defendant and Jobe neared defendant's home, Maiden Police
Sergeant Michael Eaker pulled behind defendant's car and activated
his blue lights. Jobe testified that defendant “kept yelling to
[her] to put the dope in [her] pants” before pulling over.
Sergeant Eaker was quickly joined at the scene by other
officers, including Sergeant Moore and Investigator Lowdermilk, and
both defendant and Jobe were asked to step out of the car.
Sergeant Moore and Investigator Lowdermilk each testified that they
then observed the drugs in plain view on the passenger seat. Both
defendant and Jobe were then arrested. Defendant was charged with,
and subsequently indicted for, trafficking in cocaine by
possession, trafficking in cocaine by transportation, andmaintaining a vehicle for keeping or selling a controlled
substance. Sergeant Moore testified that Jobe was taken into
custody at the scene “[f]or safety reasons” because he feared that
defendant might threaten or attempt to harm Jobe if defendant
became aware that Jobe had cooperated with the police. Jobe was
charged with trafficking in cocaine by possession, but the charge
was subsequently dropped. While still at the scene, Jobe gave
Sergeant Moore the recording device and audiotape she had used to
record conversation between herself and defendant during the trip.
At trial, Jobe testified on direct examination that about a
month after defendant's arrest, she got behind on her bills and
called Sergeant Moore and “asked him if he would help me . . . keep
my bills caught up so I wouldn't lose my apartment.” Sergeant
Moore testified that he gave her $100.00 on that occasion and
another $250.00 after she called approximately two months later and
asked for additional help with her bills. Sergeant Moore testified
that the funds came from the Catawba County Sheriff's Department.
The audiotape which Jobe recorded by leaving the tape recorder
running in her purse during her 9 July 2002 trip to Charlotte with
defendant was admitted into evidence. Sergeant Moore testified
that he was able to identify the voices of defendant and Jobe on
the tape, and that the quality of the recording was “[o]n a scale
of zero or one to ten . . . three to four maybe[.]” Sergeant Moore
testified that music from the car's radio was also audible on the
tape. The tape was then played in its entirety for the jury.
Thereafter, the State rested, and defendant presented no evidence. Defendant renewed his earlier motion to dismiss on the grounds that
Jobe, the State's witness, had been paid by the State, and also
moved to dismiss for insufficiency of the evidence. The trial
court denied both motions and, following the evening recess, the
jury was instructed and began its deliberations the next morning.
During deliberations, the jury asked to hear the first and
last ten minutes of the tape again. Because the device which had
been used to play the tape during the State's case-in-chief was no
longer available, the prosecutor arranged to have another tape
player brought to the courtroom. The trial court overruled
defendant's objection to the use of a tape player different from
the one used during the State's evidence, and the requested
portions of the tape were played for the jury. After the first ten
minutes were played, the jury foreman noted that some of the jurors
were having trouble hearing and asked if the jurors could switch
seats and hear a portion of the first ten minutes again. The trial
court allowed the jurors in the back row of the jury box to switch
with the jurors in the front row and played the requested portion
again, followed by the tape's last ten minutes. Defense counsel
then moved for a mistrial, which the trial court denied. After
further deliberations, the jury asked to hear the tape's first ten
minutes again. The trial court, over defense counsel's objection,
allowed the jury's request.
The jury thereafter completed its deliberations and returned
guilty verdicts on the trafficking in cocaine by possession and
trafficking in cocaine by transportation charges, and a not guiltyverdict on the maintaining a vehicle for keeping or selling a
controlled substance charge. The trial court sentenced defendant
to between 35 and 42 months imprisonment on each conviction, with
the sentences to run concurrently. Defendant appeals.
[1] By his first assignment of error, defendant contends the
trial court erred by denying his motion to dismiss based on
Sergeant Moore's payment of $350.00 to the State's material
witness, Jobe, several weeks after Jobe cooperated in the operation
that led to defendant's arrest and prior to his trial. Defendant
notes that this is an issue of first impression in North Carolina
and urges this Court to fashion a rule whereby “[a] witness cannot
be paid for testimony in a civil or criminal trial[.]” The only
authority defendant cites in support of this argument is dicta from
a Ninth Circuit Court of Appeals decision stating that “[a]
prosecutor who does not appreciate the perils of using rewarded
criminals as witnesses risks compromising the truth-seeking mission
of our criminal justice system.” United States v. Bernal-Obeso,
989 F.2d 331, 333 (9th Cir. 1992). However, we find it significant
that the Bernal-Obeso court, after acknowledging that “our criminal
justice system could not adequately function without information
provided by informants and without their sworn testimony in certain
cases[,]” Bernal-Obeso, at 334, further stated as follows:
[t]hus, we have decided on balance not to prohibit, as
some have suggested, the practice of rewarding
self-confessed criminals for their cooperation, or to
outlaw the testimony in court of those who receive
something in return for their testimony. Instead, we
have chosen to rely on (1) the integrity of government
agents and prosecutors not to introduce untrustworthy
evidence into the system, Berger v. United States, 295U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), United
States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct.
2392 (1976); (2) trial judges and stringent discovery
rules to subject the process to close scrutiny, United
States v. Heath, 260 F.2d 623, 626 (9th Cir. 1958); (3)
defense counsel to test such evidence with vigorous cross
examination, Davis v. Alaska, 415 U.S. 308, 316, 39 L.
Ed. 2d 347, 94 S. Ct. 1105 (1974) (“Cross examination is
the principle means by which the believability of a
witness and the truth of his testimony are tested.”),
United States v. Butler, 567 F.2d 885, 890 (9th Cir.
1978); and (4) the wisdom of a properly instructed jury
whose duty it is to assess each witness's credibility and
not to convict unless persuaded beyond a reasonable doubt
of the accused's guilt.
Bernal-Obeso, 989 F.2d at 335.
In the present case, defendant appears to argue that Jobe's
request and receipt of money from Sergeant Moore after her
cooperation in defendant's arrest but before trial rendered her
testimony so inherently unreliable that the court erred in denying
defendant's motion to dismiss. We are not persuaded. Our Rules of
Evidence provide that “[a] witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.”
N.C. Gen. Stat. § 8C-1, Rule 611(b) (2003). Our review of the
trial transcript indicates that both Jobe and Sergeant Moore were
subjected to vigorous cross-examination on the issue of Sergeant
Moore's payments to Jobe. Our Supreme Court has stated that it is
a “long-standing principle in our jurisprudence . . . that it is
the province of the jury, not the court, to assess and determine
witness credibility.” State v. Hyatt, 355 N.C. 642, 666, 566
S.E.2d 61, 77 (2002), cert denied, 537 U.S. 1133, 154 L. Ed. 2d 823
(2003). We also find it significant that the evidence does not support
defendant's characterization of Sergeant Moore's two payments
totaling $350.00 to Jobe as a quid pro quo payment for her
testimony. Jobe testified that “[she] was already going to testify
against [defendant]” when she “asked [Sergeant Moore] for some
money to help [her] pay [her] bills . . . [Sergeant Moore] didn't
ask [her] to do anything.” Jobe testified that at the time she
asked Sergeant Moore for money, she was separated from her husband
and her drug dependency kept her from working. Jobe also testified
that prior to defendant's arrest, she relied on him to periodically
give her money for, among other things, groceries. Sergeant Moore
testified that he gave money to Jobe because approximately a month
after defendant's arrest, Jobe “contacted [him], advised she was
behind in some bills, and asked if there was anything we could
possibly do.” Sergeant Moore further testified that he received a
bill from the City of Maiden stating that Jobe was behind on her
power bill and threatening to discontinue service if it was not
paid, and that upon Jobe's payment of the bill he received a
receipt from the city. This testimony supports the State's
contention that Sergeant Moore's payments to Jobe were not made to
secure either her cooperation in defendant's arrest or her
testimony at trial.
We conclude that defendant's first assignment of error is
without merit.
By his second assignment of error, defendant contends the
trial court erred by (1) allowing the State, during its case-in-chief, to play for the jury the audiotape recorded by Jobe during
her 9 July 2002 trip to and from Charlotte with defendant, on the
grounds that the tape was inaudible; and (2) allowing the jurors to
hear portions of the same tape again during their deliberations, on
the grounds that the tape was played using a machine different from
the one used during the State's evidence. At the outset we note
that because defendant has improperly raised multiple issues of law
in this single assignment of error, this assignment of error is
subject to dismissal. N.C.R. App. P. 10(c)(1); State v. Williams,
350 N.C. 1, 9, 510 S.E.2d 626, 633, cert. denied, 528 U.S. 880, 145
L. Ed. 2d 162 (1999). However, we elect to use our discretion
pursuant to Rule 2 of our Rules of Appellate Procedure and consider
both issues of law raised by this assignment of error.
[2] Defendant first argues that the trial court erred by
allowing the State to play the tape during its case-in-chief, on
the grounds that the tape was inaudible. Defendant objected to
admission of the tape into evidence prior to a proper foundation
being laid; however, after the trial court ruled that it had been
properly authenticated defendant did not object to the State
playing the tape for the jury. Defendant has therefore failed to
preserve this issue for appellate review. N.C.R. App. P. 10(b)(1);
State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616-17 (1996).
[3] Defendant next asserts that the trial court erred by twice
allowing the jury, during its deliberations, to listen to portions
of the tape on a machine different from the one used to play the
same tape during the State's case-in-chief. In his brief,defendant argues that playing the tape on a different machine
during deliberations constituted the improper introduction of “new
evidence” by the State, apparently on the grounds that the tape was
more audible when played on the second machine, and that defendant
should have been given the opportunity to rebut this “new evidence”
pursuant to N.C. Gen. Stat. § 15A-1226(a) (2003).
In North Carolina, “[t]he manner of the presentation of
evidence is largely in the discretion of the trial judge. His
control of the case will not be disturbed absent a manifest abuse
of discretion.” State v. Harris, 308 N.C. 159, 168, 301 S.E.2d 91,
97 (1983). In denying defendant's motion for a mistrial after the
tape was played on the different machine for the jury during its
deliberations, the trial judge stated that he “couldn't personally
tell any difference between what [he] heard today and what [he]
heard yesterday.” Defendant does not allege that the tape itself
was enhanced or altered in any way between the time it was played
during the State's case-in-chief and during the jury's
deliberations, and we discern nothing in the record suggesting that
such was the case. The very fact that the jury asked to listen to
portions of the tape three separate times during their
deliberations, and to change seats within the jury box in order to
give each juror a chance to sit as close as possible to the tape
player, indicates that the second machine did nothing to enhance
the tape's clarity. We are unable to say on these facts that the
trial court abused its discretion in allowing the jury, during its
deliberations, to hear the tape played on a machine different fromthe one used during the State's case-in-chief. Accordingly, this
assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
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