STATE OF NORTH CAROLINA
v
.
Mecklenberg County
Nos. 00 CRS 26471-75,
JAMIE ARREOLA GUEVARA 00 CRS 160567-68
Attorney General Roy Cooper, by Special Deputy Attorney
General Victoria L. Voight, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Dean Paul Loven, for defendant-appellant.
McGEE, Judge.
Jamie Arreola Guevara (defendant) was found guilty on 7
November 2001 of three counts of trafficking in cocaine, two counts
of conspiracy to traffic in cocaine, and one count of sale of
cocaine in violation of N.C. Gen. Stat. § 90-95. The trial court
found defendant to have a prior record level I and imposed two
consecutive sentences of imprisonment for a minimum of thirty-five
months and a maximum of forty-two months, and two $50,000 fines.
[R., 28-31] Defendant appeals. Subsequent to trial, defendant pled
guilty to a separate pending count of trafficking in cocaine and
received a consecutive sentence of a minimum of thirty-five months
and a maximum of forty-two months imprisonment and a $50,000 fine
on that judgment. The State's evidence at trial tended to show that on 19 May
2000, Detective Douglas M. Moore (Detective Moore) of the
Charlotte-Mecklenburg Police Department was introduced by a
confidential informant to Gabriel Martinez (Martinez) for the
purpose of purchasing cocaine. Detective Moore and the informant
had arranged the 19 May meeting to occur between 10:30 and 11:00
a.m. at a McDonald's Restaurant located at Idlewood and
Independence Boulevard.
Detective Moore and the informant arrived at approximately
10:25 a.m. and shortly thereafter, Martinez arrived alone. While
seated in Detective Moore's car, Martinez and Detective Moore
discussed Detective Moore's interest in purchasing half an ounce of
cocaine from Martinez. Martinez informed Detective Moore that he
did not have the cocaine with him at that time. Martinez invited
Detective Moore to follow him to where the cocaine was located, but
Detective Moore declined and refused to give Martinez the purchase
money before completion of the sale. Martinez drove away in his
vehicle to retrieve the cocaine.
Martinez returned with defendant about fifteen to twenty
minutes later and parked adjacent to Detective Moore's vehicle.
Martinez approached Detective Moore's car and sat in the passenger
seat, while defendant remained in Martinez's car. Martinez
indicated he had the cocaine and he and Detective Moore discussed
the price of the cocaine. Martinez then communicated in Spanish
with defendant about the price. After inspecting and weighing the
cocaine, Detective Moore handed Martinez $500 for the cocaine andasked Martinez about purchasing additional cocaine. Martinez again
spoke in Spanish to defendant, who responded in Spanish. Martinez
informed Detective Moore that he could get him anything he wanted
but would not "front" the sale. Detective Moore and the informant
drove away.
Detective Moore contacted Martinez on 22 May 2000 and arranged
the purchase of five ounces of cocaine at 11:00 a.m. at Martinez's
place of employment, the Tire Kingdom, on Independence Boulevard.
Shortly after Detective Moore's arrival at the store, Martinez used
a cell phone to make a call and defendant arrived about twenty
minutes later. Defendant sat in Detective Moore's car and pulled
out a large bag of cocaine. Detective Moore gave defendant the
purchase money and defendant told Detective Moore that he could get
"other stuff" for him. Defendant gave Defective Moore a pager
number where he could be reached.
Detective Moore contacted defendant on 25 and 26 May 2000 to
arrange the purchase of nine ounces of cocaine. Detective Moore
recorded the two telephone conversations he had with defendant
regarding the sale. The audiotapes were played for the jury at
trial. Defendant asked Detective Moore to meet him at a Mexican
restaurant on Central and Kilbourne at noon. At the agreed time,
Detective Moore, defendant, and a friend of defendant's entered the
restaurant. Defendant handed Detective Moore a large bag of
cocaine.
Defendant was tried for the drug sales that occurred on 19 May
2000 and 22 May 2000. Originally, defendant was to also be tried for the 26 May 2000 sale. However, due to a defective indictment,
trial on that charge was delayed, but evidence pertaining to the 26
May 2000 sale was admitted at the trial of the 19 and 22 May 2000
sales for the purpose of showing a scheme or plan and the jury was
given a limiting instruction. At trial, defendant presented no
evidence. Subsequent to trial, defendant pled guilty to the charge
of trafficking in cocaine related to the events of 26 May 2000.
Defendant first argues that the trial court erred in making an
impermissible expression of opinion in violation of N.C. Gen. Stat.
§ 15A-1222, 1232. A judge may not express an opinion in the
presence of a jury on any question of fact to be decided by the
jury. N.C. Gen. Stat. § 15A-1222 (2003). Nor may a judge in
instructing a jury state an opinion as to whether or not a fact has
been proved. N.C. Gen. Stat. § 15A-1232 (2003).
In the case before us, during voir dire of perspective jurors,
the trial judge asked the State, "I did not ask whereabouts in this
County these offenses occurred, do you know?" After the State
responded, the trial judge then remarked, "So, that is where the
offenses took place." Defendant now contends that the trial judge
should have used the phrase "alleged" offenses, and because the
trial judge failed to do so, his statement reflected an opinion
presented to the jury as to the guilt of defendant, which is a
decision left to the jury.
At trial, defendant did not object to the trial judge's
statements and now asserts plain error upon appeal. Defendant's
reliance on plain error is misplaced. Our Supreme Court haspreviously held that, "'[p]lain error analysis applies only to
instructions to the jury and evidentiary matters.'" State v.
Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (quoting
State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000),
cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000)), cert.
denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Specifically as to
voir dire, our Supreme Court has declined "'to extend application
of the plain error doctrine to situations in which the trial court
has failed to give an instruction during jury voir dire which has
not been requested.'" Greene, 351 N.C. at 567, 528 S.E.2d at 578
(quoting State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-110
(1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)).
Plain error review has also been held inapplicable where a party
failed to object to statements of the opposing party made during
jury voir dire. Cummings, 352 N.C. at 613, 536 S.E.2d at 47. In
accordance with the determinations of our Supreme Court, plain
error is not an appropriate basis for our review of an objection to
the trial court's statements made during jury voir dire.
Defendant's first assignment of error is overruled.
Defendant also argues the trial court abused its discretion
under N.C. Gen. Stat. § 8C-1, Rules 402, 403 and 404(b) in
admitting evidence of defendant's subsequent drug transaction on 26
May 2000, to which, following the trial of the 19 and 22 May 2000
sales, defendant pled guilty.
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, beadmissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has
held that Rule 404(b) states
"a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged."
State v. Barnett, 141 N.C. App. 378 , 389, 540 S.E.2d 423, 431
(2000) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990), cert. denied, 421 S.E.2d 360 (1992)), disc. review
denied, 353 N.C. 527, 549 S.E.2d 552 (2001).
"The use of evidence under Rule 404(b) is guided by two
[further] constraints: 'similarity and temporal proximity.'" State
v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001)
(quoting Barnett, 141 N.C. App. at 389-390, 540 S.E.2d at 431
(citations omitted)), cert. denied, 354 N.C. 222, 554 S.E.2d 647
(2001). Finally, once a trial court has determined the evidence is
admissible under Rule 404(b), the court must still decide whether
there exists a danger that unfair prejudice substantially outweighs
the probative value of the evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2003). "That determination is within the sound discretion of
the trial court, whose ruling will be reversed on appeal only when
it is shown that the ruling was so arbitrary that it could not have
resulted from a reasoned decision." Bidgood, 144 N.C. App. at 272,
550 S.E.2d at 202. In this case, defendant argues the trial court erred in
admitting testimony concerning the drug transaction between
defendant and Detective Moore on 26 May 2000, for which defendant
entered a guilty plea following his convictions for the 19 and 22
May 2000 sales. The record shows that the evidence of the later
drug deal was offered into evidence and admitted for the limited
purpose of showing "that there existed in the mind of the defendant
a plan, scheme, system, or design involving the crimes charged in
the[se] cases." A limiting instruction was given to the jury at
the close of all evidence.
There is sufficient similarity and proximity in time between
the 26 May 2000 sale and the two prior transactions on 19 and 22
May 2000 that the evidence is admissible under Rule 404(b).
Detective Moore and defendant were parties to each drug deal, the
subject matter throughout the series of sales was cocaine, and the
sales occurred over the course of seven days.
Based on these similarities, and the trial court's limitation
that the evidence was admitted only as relevant to show intent,
plan, scheme, system or design involving the sales of 19 and 22
May, we find that the trial court did not abuse its discretion in
admitting the evidence concerning the events of 26 May 2000.
Defendant's second assignment of error is overruled.
Defendant argues in his third assignment of error that he was
denied effective assistance of counsel when defense counsel failed
to object to the introduction of evidence of the 26 May 2000 sale.
Beyond asserting the assignment of error in his brief, defendantfails to present an argument in support of his contention that
there was ineffective assistance of counsel. Appellate review is
limited to those assignments of error that are properly set out in
the record on appeal in conformity with N.C.R. App. P. 10(a).
Also, N.C.R. App. P. 28(a) states that the function of a brief is
for a party to present the arguments and authorities upon which the
party's position relies. "These Rules are mandatory, and their
violation subjects an appeal to dismissal." Talley v. Talley, 133
N.C. App. 87, 89, 513 S.E.2d 838, 839, disc. review denied, 350
N.C. 599, 537 S.E.2d 495 (1999). Defendant presents no argument in
his brief to support his third assignment of error and it is deemed
abandoned. N.C.R. App. P. 28(b)(6).
In his fourth assignment of error, defendant argues that the
trial court erred by denying his motion to dismiss one of the
charges of conspiracy at the close of the evidence. Defendant
contends that the evidence presented at trial was indicative of an
open-ended sale of drugs where there was but one agreement, and
thus one conspiracy, overriding the sales of 19 May 2000 and 22 May
2000. See State v. Choppy, 141 N.C. App. 32, 40, 539 S.E.2d 44, 50
(2000) ("Several factors determine the number of conspiracies_the
objectives of the conspiracies, the time interval between them, the
number of participants, and the number of meetings."), disc. review
denied, 353 N.C. 384, 547 S.E.2d 817 (2001); see State v. Griffin,
112 N.C. App. 838, 437 S.E.2d 390 (1993) (there was only one
ongoing conspiracy to smuggle drugs involving a series of different
offenses committed over time). However, at trial, defendant'sbasis for the motion to dismiss the conspiracy charge stemming from
the transaction of 19 May 2000 was that the State failed to present
sufficient evidence of the existence of a conspiracy agreement to
which defendant was a party. Therefore, the argument presented to
the trial court is dissimilar to that presented on appeal.
"In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context." N.C.R. App. P. 10(b)(1); see also State v.
Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Defendant's
theory presented at trial controls in construing the record and in
determining the validity of exceptions taken. See State v. Hunter,
305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Hence, "[a]
defendant may not swap horses after trial in order to obtain a
thoroughbred upon appeal." State v. Benson, 323 N.C. 318, 322, 372
S.E.2d 517, 519 (1988). This issue is not appropriate for
appellate review. Defendant's assignment of error number four is
overruled.
Defendant failed to present an argument in support of his
assignments of error five, six, seven and eight and they are
therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
In defendant's ninth assignment of error, he contends that the
trial court erred in permitting the State to play State's Exhibit
No. Eight, an audiotape of two conversations between defendant and
Detective Moore concerning the cocaine sale of 26 May 2000. As wenoted previously, the 26 May 2000 sale was not the subject of the
trial at issue. Defendant argues that the recordings were
inadmissible under N.C. Gen. Stat. § 8C-1, Rules 402-404 and that
their presentation was prejudicial. Because defendant failed to
object to the admission of the evidence at trial, he now requests
a plain error review on appeal.
We have previously addressed in this opinion defendant's
argument that evidence of subsequent criminal activity involving
defendant should have been excluded by the trial court and we
concluded that there was no error in the admission. Under these
circumstances, the content of the audiotape merely corroborates the
testimony of Detective Moore as to the events of 26 May 2000.
There is no prejudicial error where the content of an audiotape is
cumulative in that the party recording the conversation has already
testified in detail as to the conversation recorded and the
recording was played to the jury. See State v. Kamtsiklis, 94 N.C.
App. 250, 380 S.E.2d 400, disc. review denied, 325 N.C. 711, 388
S.E.2d 466 (1989). As in Kamtskilis, the witness's testimony was
merely affirmed by the recordings. The trial court did not err in
admitting the audiotapes. Defendant's ninth assignment of error is
overruled.
In defendant's tenth and final assignment of error, he argues
the trial court committed plain error in permitting the State to
play the audiotape. Defendant notes the absence of a proper
foundation for admission of the tape and the trial court's failure
to receive the exhibit into evidence. Defendant argues that,despite proper authentication of the audiotape by the testimony of
Detective Moore, the lack of a stated purpose for introduction
denied defendant the opportunity to object to its admission.
Defendant further points out that no limiting instruction
pertaining to Rule 404(b) was given at the time the jury heard the
audiotape, but was instead given at the close of all the evidence.
A witness' testimony as to the accuracy of an audio recording,
based on that witness' personal knowledge, is all that is required
in authenticating an audio recording pursuant to N.C. Gen. Stat. §
8C-1, Rule 901 (2003). See State v. Stager, 329 N.C. 278, 406
S.E.2d 876 (1991) (audiotape admissible so long as legally obtained
and otherwise competent); see also State v. Jeeter, 32 N.C. App.
131, 230 S.E.2d 783, disc. review denied, 292 N.C. 268, 233 S.E.2d
394 (1977). However, there is no mandated statutory procedure for
introduction of such evidence. Typically, the trial court will
conduct a voir dire, "in the absence of the jury, find facts, and
thereupon determine the admissibility," of the proffered evidence.
State v. Sharratt, 29 N.C. App. 199, 201, 223 S.E.2d 906, 907,
disc. review denied, 290 N.C. 554, 226 S.E.2d 512 (1976). The
failure to conduct a voir dire does not necessarily render the
evidence incompetent. Id.
We note the better practice in introducing evidence at trial
is to: (a) mark the exhibit for identification, (b) stand and ask
the trial court's permission to approach the witness, (c) show the
exhibit to the opponent, (d) show the exhibit to the trial court,
(e) approach the witness stand, show the exhibit to the sponsoringwitness and lay the foundation for admission, (f) have the exhibit
formally received into evidence, and finally (g) ask permission to
publish to the jury. Carol B. Anderson, North Carolina Trial
Practice § 10-6 (Michie Law Pub. 1996).
In the case before us, following Detective Moore's testimony
that he had recorded the two telephone conversations with
defendant, the State requested permission to approach Detective
Moore, which was granted. State's Exhibit No. Eight was handed to
Detective Moore and he was asked a series of questions for the
purpose of identification. The State then asked to play the
audiotape and the trial court responded, "Go ahead." After asking
and receiving permission to approach with the audiotape recording,
the State played the audiotape for the jury. Defendant failed to
object to the playing of the audiotape.
Although a formal process of introduction of the audiotape was
not followed at trial and a limiting instruction was not given
until the close of all the evidence, we find that defendant was not
unduly prejudiced by the absence thereof and the trial court did
not err in playing the audiotape for the jury. This assignment of
error is overruled.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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