State v Carrothers, (03-275) 05/18/2004

Appeal by defendant from judgments entered 5 July 2002 by Judge Lindsay R. Davis, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 3 December 2003.

Attorney General Roy Cooper, by Assistant Attorney General Clinton C. Hicks, for the State.

Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

    McGEE, Judge.

    Timothy Warren Carrothers (defendant) was found guilty on 3 July 2002 of trafficking by possessing, trafficking by transporting, and conspiracy to traffic by possessing more than 500 dosage units but less than 1000 dosage units of methylenedioxymethamphetamine (MDMA, i.e., ecstasy), in violation of N.C. Gen. Stat. § 90-95. The trial court consolidated the two trafficking offenses and sentenced defendant to a minimum of seventy months and a maximum of eighty-four months imprisonment. The trial court also sentenced defendant to a minimum of seventy months and a maximum of eighty-four months for the conspiracy conviction, to be served consecutively with the two trafficking offenses. Defendant appeals.    The State's evidence at trial tended to show that defendant became acquainted with Russell Cobb (Cobb) around the end of 2000. Defendant met Cobb when defendant was a patient at a chiropractic clinic owned by Cobb's father, where Cobb worked as a massage therapist. Cobb and defendant had opportunities to talk because defendant came to the clinic for treatment on a regular basis. After Cobb and defendant "became comfortable with each other," they began discussing ecstasy. Cobb testified that both he and defendant had used ecstasy in the past and that defendant had access to the drug. Cobb further testified that James Holder (Holder), another man he met through the chiropractic clinic, wanted to purchase ecstasy in large amounts. Holder was acting as an informant for the police to provide substantial assistance for prior criminal charges. Cobb stated that defendant and Holder did not want to meet one another so Cobb "helped facilitate the exchange." Holder wanted a thousand ecstasy pills. Cobb testified that he asked defendant how many pills he could get and defendant responded, "[a]s many as you want." Cobb told defendant he knew someone who wanted a thousand ecstasy pills and defendant called Cobb a few days later to inform him he had the pills.
    Defendant called Cobb at work on 15 January 2001 to tell Cobb he had the pills and that he would meet Cobb at the Ruby Tuesday restaurant on Wendover Avenue in Greensboro, North Carolina. Cobb left work at 7:00 p.m. to go to the restaurant parking lot and Holder called Cobb to say he was coming as well. At the Ruby Tuesday restaurant, defendant got into Cobb's car and handed Cobbthe pills. Cobb called Holder who arrived at the restaurant shortly thereafter and parked in front of Cobb's vehicle. Cobb got out of his car and into Holder's car. Cobb showed the pills to Holder who then stepped out of the car to supposedly retrieve the money from the trunk. Cobb then "heard cars screeching up" and "voices" and he "didn't know what was going on," so he "grabbed the pills and jumped out through the driver door and ran" and then "let go of [the pills]." Cobb was briefly chased by police and then arrested.
    Detective Kyle Shearer (Det. Shearer) with the Vice and Narcotics Unit of the Greensboro Police Department testified that he and another officer were assigned to perform surveillance on 15 January 2001. Det. Shearer and his partner positioned themselves in a shopping center parking lot just east of the Ruby Tuesday restaurant. Det. Shearer saw Cobb arrive in the parking lot and park in the "furthest place from the establishment[.]" Det. Shearer testified he saw defendant walk from the restaurant or from behind the parking lot area and get into Cobb's car on the passenger's side. About four or five minutes later, Det. Shearer observed the informant, Holder, enter the parking lot in a white Honda. Cobb then exited his car and entered the passenger's side of Holder's car. Holder and Cobb drove out of Det. Shearer's eyesight. Det. Shearer was then instructed to "go ahead and move in." He and his partner arrested defendant.
    Detective J.E. Armstrong (Det. Armstrong) of the Vice and Narcotics Unit testified that he was assigned as a secondaryblocking vehicle. Det. Armstrong and another officer were instructed "to move in and arrest Mr. Cobb and detain Mr. Holder." Det. Armstrong testified that when he first observed Cobb, he saw "a plastic bag or two. It was something flying in the air hitting the ground." Det. Armstrong continued his testimony by stating, "it just looked like something flying through the air. But when I went back, it was some plastic bags containing numerous white pills which from my training and experience I believed to be MDMA or Ecstasy." Det. Armstrong's identification of the pills as ecstasy was later confirmed by Agent H.T. Raney, Jr., of the State Bureau of Investigation.
    We first note defendant has failed to present an argument in support of assignments of error numbers two, three, five, and six and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Defendant first argues in assignment of error number one that the trial court abused its discretion in denying defendant's motions for a mistrial. Defendant argues that his motions for a mistrial should have been granted because of statements by two witnesses concerning defendant's prior involvement with law enforcement authorities and the criminal justice system. Pursuant to N.C. Gen. Stat. § 15A-1061 (2003), "[t]he judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case."
        The standard of review for the denial of a motion for a mistrial has been stated by theSupreme Court as follows:

        "It is well settled that the decision of whether to grant a mistrial rests in the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of discretion. . . . [A] trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision."

State v. Scott, 150 N.C. App. 442, 450, 564 S.E.2d 285, 292, disc. review denied, 356 N.C. 443, 573 S.E.2d 508 (2002) (quoting State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986) (citations omitted)).
    Defendant challenged the testimony of Det. Shearer and of Cobb. Det. Shearer described defendant after his arrest in the following manner: "He wasn't overly excited. He wasn't surprised. I mean he did __ he was compliant. He was cooperative. And act like he may have dealt with police before[.]" Defendant's objection and motion to strike were both sustained but defendant's motion for mistrial was denied. In addition, defendant objected to a portion of Cobb's testimony. Cobb expressed concern about his safety and the safety of his family by stating that he "made up a story initially" about where he had gotten the ecstasy because he "wanted to protect [himself] and [his] family from any kind of violence." When asked whether his concerns about violence were "grounded in anything that [he] had seen of [defendant][,]" Cobb responded, "[j]ust that [defendant] had been to prison before[.]" Again, defendant's objection and motion to strike were granted but his motion for mistrial was denied.     Defendant argues that the testimony by both witnesses violates Rule 404 of the North Carolina Rules of Evidence. Subsection (a) prohibits the introduction of character evidence "for the purpose of proving that he acted in conformity therewith on a particular occasion[.]" N.C. Gen. Stat. § 8C-1, Rule 404(a) (2003). Subsection (b) states that "[e]vidence 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." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003).
    In the case before us, the testimony elicited by the State did suggest that defendant had previously committed other crimes. However, in both instances, the trial court sustained defendant's objection and motion to strike and instructed the jury to disregard the testimony.
        "When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991). "'In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict.'" State v. Hunt, 287 N.C. 360, 374, 215 S.E.2d 40, 49 (1975) (quoting State v. Strickland, 229 N.C. 201, 207, 49 S.E.2d 469, 473 (1948)). "Whether instructions can cure the prejudicial effect of such statements must depend in large measure upon the nature of the evidence and the particular circumstances of the individual case." Id. at 375, 215 S.E.2d at 49.

State v. Rowsey, 343 N.C. 603, 627, 472 S.E.2d 903, 916 (1996), cert. denied, 519 U.S. 1151, 137 L. Ed. 2d 221 (1997).
    Defendant cites State v. Wilson, 311 N.C. 117, 316 S.E.2d 46(1984), in arguing that it was improper to admit evidence about defendant having been in prison. In Wilson, three separate witnesses made references to the defendant having been in prison and having committed the armed robbery. Wilson, 311 N.C. at 126- 27, 316 S.E.2d at 53. "[T]he trial judge promptly gave a curative instruction admonishing the jury not to consider that evidence." Id. at 127, 316 S.E.2d at 53. Although our Supreme Court stated that "evidence concerning [the defendant's] bad character was not admissible[,]" the Court held "that the prejudicial effect, if any, of the incompetent evidence was cured by the trial judge's instructions." Id. at 127-28, 316 S.E.2d at 53. Similarly, in the case before us, the trial court instructed the jury to disregard the testimony. "The jury is presumed to have followed the trial court's instructions." State v. Watts, 357 N.C. 366, 375, 584 S.E.2d 740, 747 (2003), cert. denied, ___ U.S. ___, 158 L. Ed. 2d 370 (2004). Accordingly, any prejudicial effect was cured by the trial court's instructions.
    In addition, defendant cites State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987), arguing that it is error for a witness to testify that he or she is afraid of a defendant. Defendant relies on this case to support his argument that he was entitled to a new trial on the basis of Cobb's testimony that he feared for his safety and the safety of his family. In Bell, the witness stated she was still afraid of the defendant on the day she testified. Bell, 87 N.C. App. at 636, 362 S.E.2d at 294. Our Court found that such testimony should not have been admitted, but stated, "thiserror, standing alone, was not prejudicial." Id. There was no mention in Bell that the trial court gave a curative instruction. Despite the lack of an instruction, our Court still found no prejudicial error.
    Defendant also cites State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), for the assertion that it is reversible error to question a defendant about a prior arrest or indictment. In Williams, our Court held that
        for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense.

Williams, 279 N.C. at 672, 185 S.E.2d at 180. However, in the case before us, defendant did not testify and was consequently not cross-examined on impermissible matters. Accordingly, Williams is not relevant to our analysis.
    Thus, regarding defendant's first argument, we hold that in light of the curative instruction provided by the trial court, it did not err in denying defendant's motions for a mistrial. This assignment of error is overruled.
    Defendant next argues in assignment of error number four that the trial court erred in failing to give defendant's requested instruction on informant testimony. "When a party requests a jury instruction, the trial court is obligated to so instruct if the instruction is a correct statement of the law and the evidencesupports it." Cap Care Grp., Inc. v. McDonald, 149 N.C. App. 817, 823, 561 S.E.2d 578, 582, disc. review denied, 356 N.C. 611, 574 S.E.2d 676 (2002); see also State v. Cuevas, 121 N.C. App. 553, 559, 468 S.E.2d 425, 429, disc. review denied, 343 N.C. 309, 471 S.E.2d 77 (1996). In the case before us, defendant requested that the pattern jury instruction regarding the use of informants be submitted to the jury. Defendant argued to the trial court that the officers involved were essentially undercover agents because they had an informant working with them. Defendant argues that since "the jury considered evidence obtained directly from an informant, the requested instruction was appropriate" and should have been given. For the reasons stated below, we find this argument to be without merit.
    Defendant's requested jury instruction stated:
        You may find from the evidence that a State's witness is interested in the outcome of this case because of his activities as an [informer] [undercover agent]. If so, you should examine such testimony with care and caution in light of that interest. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

N.C.P.I. __ Crim. 104.30 (emphasis added). Although Holder was an informant for the police, Holder was not a witness in defendant's trial. Accordingly, such an instruction was not warranted with respect to Holder.
    Similarly, the instruction was not mandated as a result of the testimony of the various officers with the Greensboro Police Department. State v. Moose, 101 N.C. App. 59, 398 S.E.2d 898(1990), disc. review denied, 328 N.C. 575, 403 S.E.2d 519 (1991), is instructive on this issue. In Moose, the defendant argued that the instruction on undercover agents/informants was required. Moose, 101 N.C. App. at 69, 398 S.E.2d at 904. In Moose, the officer had simply received information from an informant that the defendant had a large amount of cocaine at his business. Id. at 62, 398 S.E.2d at 900. This Court held that the officer "did not engage in trafficking in cocaine, for which the defendant was convicted, in an undercover capacity and thus, the defendant was not entitled to the undercover agent instruction." Id. at 70, 398 S.E.2d at 904.
    Similarly, in the case before us, the officers did receive information from an informant and utilize him to execute a drug transaction. However, the officers were not actually involved in the operation other than to perform surveillance and arrest defendant and Cobb. Since the officers were not acting in an undercover capacity, the requested instruction was not warranted. Accordingly, this argument is without merit.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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