STATE OF NORTH CAROLINA
v
.
Cabarrus County
No. 01 CRS 17471; 17473; 22539
HOWARD DANIEL HILTON
Roy Cooper, Attorney General, by Melissa L. Trippe, Special
Deputy Attorney General, for the State.
Reita P. Pendry for defendant-appellant.
STEELMAN, Judge.
Defendant, Howard Daniel Hilton, appeals convictions for
possession of cocaine and conspiring to sell and deliver cocaine.
For the reasons discussed herein, we find no error.
The evidence presented at trial tended to show that Dustin
Mouton, in collaboration with local law enforcement, attempted to
purchase drugs from defendant. Mouton asked defendant to sell him
two and one half ounces of cocaine, and defendant agreed to provide
the cocaine in exchange for $3,000.00. The sale was to take place
on the afternoon of 29 May 2001. Mouton contacted the Cabarrus
County Sheriff's Department to inform them of the agreement, and
they provided money for Mouton to purchase the cocaine. On 29 May 2001, defendant contacted Billy Stanback, whom
defendant knew as “Dune,” about supplying defendant with two and
one half ounces of cocaine. Defendant agreed to pay Stanback
$2,850.00 for the cocaine. Stanback obtained the cocaine from
Jesse Walker and promised to pay Walker $2,500.00 after he sold the
cocaine to defendant.
After Stanback obtained the cocaine, he and another man picked
defendant up at defendant's residence. They drove to a parking lot
at Auto Zone and Bi-Lo on Highway 29 in Concord to meet Mouton.
They drove around the parking lot to check for police officers.
Then, Stanback threw the cocaine out the car window in the vicinity
of some bushes. They then picked up Mouton, and defendant
retrieved the cocaine and conducted the drug transaction in the
back seat of Stanback's car while Stanback drove around the parking
lot.
Mouton and the defendant had an argument over who should count
the money. Instead of wearing a wire, the police had Mouton leave
his cell phone on so they could monitor the transaction. The
Sheriff's Department instructed Mouton to count the money aloud as
he paid for the cocaine as a signal to the detectives that Mouton
had seen the cocaine. When the detectives heard Mouton counting
the money, they went to Stanback's car, arrested everyone inside
the car, and retrieved the cocaine and money. The drugs were sent
to the State Bureau of Investigation for analysis and confirmed to
be cocaine base, weighing 75.2 grams. Defendant was indicted for trafficking in cocaine by
possession, a class G felony under N.C. Gen. Stat. § 90-
95(h)(3)(a), trafficking in cocaine by transportation, also a class
G felony under N.C. Gen. Stat. § 90-95(h)(3)(a), conspiracy to sell
and deliver cocaine, and being an habitual felon. On the
trafficking in cocaine by possession charge, the jury found
defendant guilty of the lesser included offense of felonious
possession of cocaine. The jury also found defendant guilty of
felonious conspiracy to sell and deliver cocaine. Defendant was
found not guilty on the charge of trafficking in cocaine by
transportation. Following the return of the jury's verdict,
defendant pled guilty to being an habitual felon. Defendant was
sentenced to two consecutive active sentences having a minimum term
of 107 months and a maximum term of 138 months. Defendant appeals.
In his first assignment of error, defendant argues the trial
court erred in denying his motion to dismiss the charge of
trafficking by possession at the close of the state's evidence and
again at the close of all the evidence. We disagree.
In considering a motion to dismiss, the only issue for the
trial court is whether there is substantial evidence of each
essential element of the charged offense and of the defendant being
the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d
920, 925 (1996). Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.
State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
The court must consider the evidence in the light most favorable tothe State and give the State the benefit of every reasonable
inference from that evidence. State v. Jaynes, 342 N.C. 249, 274,
464 S.E.2d 448, 463 (1995). Contradictions and discrepancies in
the evidence are for the jury to resolve and do not warrant
dismissal. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199
(1995).
To obtain a conviction for the class G felony of trafficking
in cocaine by possession, the State must prove: (1) defendant
knowingly possessed cocaine, and (2) the cocaine weighed 28 grams
or more and less than 200 grams. State v. White, 104 N.C. App.
165, 168, 408 S.E.2d 871, 873-74 (1991); see also N.C. Gen. Stat.
§ 90-95(h)(3) (2003). A defendant has possession of cocaine when
“he has both the power and intent to control its disposition or
use.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
In this case, the State met its burden of proving beyond a
reasonable doubt that defendant had both the power and intent to
control the disposition of the cocaine. Defendant was authorized
by Stanback, who provided him with the cocaine, to make the sale to
Mouton. He was to receive $3,000.00 for the cocaine and was to pay
$2,850.00 to Stanback. Further, after Stanback and defendant
picked up Mouton, defendant retrieved the cocaine from the bushes
and delivered it to Mouton to consummate the transaction.
Defendant's power and intent to control the disposition of the
cocaine is evident in his handing it over to Mouton in exchange for
money. Thus, there was substantial evidence from which a jurycould reasonably find defendant possessed the cocaine. This
assignment of error is without merit.
Defendant failed to preserve his remaining assignments of
error for appellate review because he did not object to these
issues at trial. See N.C.R. App. Pro. 10(b)(1) (2003) (“In order
to preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion
. . . .”). Thus, this Court is limited to a plain error review of
these issues. State v. Turner, 98 N.C. App. 442, 447, 391 S.E.2d
524, 527 (1990). To prevail on plain error review, a defendant
must show that (i) a different result probably would have been
reached but for the error, or (ii) the error was so fundamental as
to result in a miscarriage of justice or denial of a fair trial.
State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
This Court can reverse for plain error only in exceptional cases.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
In his second assignment of error, defendant argues the trial
court committed plain error in instructing the jury on the charge
of conspiracy. We disagree.
A conspiracy is an unlawful agreement between two or more
persons to do an unlawful act or to do a lawful act in an unlawful
way or by unlawful means. State v. Horton, 275 N.C. 651, 656, 170
S.E.2d 466, 469 (1969), cert. denied, 398 U.S. 959, 26 L. Ed. 2d
545, 90 S. Ct. 2175 (1970). For a conspiracy to occur, there must
be a “union of wills” between two or more persons. Id. at 657, 170
S.E.2d at 470. A conspiracy cannot occur between a defendant andone who feigns acquiescence in a crime. State v. Wilkins, 34 N.C.
App. 392, 400, 238 S.E.2d 659, 665, cert. denied, 294 N.C. 187, 241
S.E.2d 516 (1977). “If an undercover agent acts in conjunction
with more than one person to violate a law, however, his
participation will not preclude a conviction of the others for a
conspiracy among themselves.” Id.
On plain error review of a jury instruction, this Court “must
examine the entire record and determine if the instructional error
had a probable impact on the jury's finding of guilt.” Odom, 307
N.C. at 661, 300 S.E.2d at 379. This Court may only reverse for
plain error if the jury would probably have reached a different
verdict absent the erroneous instruction. Id. at 660, 300 S.E.2d
at 378.
The court gave the following instructions to the jury
regarding the conspiracy charge against defendant:
So I charge that if you find from the evidence
beyond a reasonable doubt that on or about the
alleged date the defendant agreed with Dustin
Mouton and others to commit the crime of
selling or delivery of cocaine, and that the
defendant, Dustin Mouton, and others intended
at the time the agreement was made that it
would be carried out, it would be your duty to
return a verdict of guilty as charged
(emphasis added).
Defendant argues that because Mouton was working with law
enforcement, this instruction was plain error. However, a review
of the whole record in this case shows that an agreement to sell
drugs to Mouton existed between defendant and Stanback. The
State's evidence indicated that after defendant agreed to sell
drugs to Mouton, he contacted Stanback, who arranged to obtain twoand one half ounces of cocaine from Walker. These men agreed that
after defendant received $3,000.00 for the cocaine from Mouton,
defendant would pay Stanback $2,850.00, and Stanback would pay
Walker $2,500.00. On the day of the sale, Stanback got the cocaine
from Walker and drove with defendant to the location where the sale
was to take place. Together, defendant and Stanback picked up
Mouton and attempted to sell him the cocaine. These facts are
sufficient for a jury to find a conspiracy to sell and deliver
cocaine between Stanback and defendant. Thus, there was no plain
error in the court's instructions to the jury.
In his third assignment of error, defendant argues that the
trial court committed plain error regarding the testimony of Dustin
Mouton. Defendant contends that the trial court made three errors
regarding Mouton's testimony: (1) by suggesting that the State
immunize Mouton; (2) by allowing the State to ask Mouton if he had
been threatened or promised something in exchange for his
testimony; and (3) by failing to instruct the jury that Mouton had
been granted immunity by the State. We disagree.
When the State questioned Mouton about defendant, Mouton
invoked his Fifth Amendment rights against self-incrimination.
Outside the presence of the jury, the trial court questioned Mouton
about whether he had been granted immunity in exchange for
testifying against defendant. Both the State and Mouton
acknowledged that Mouton had not been, and would not be, charged
for any events that occurred on 29 May 2001. The trial judge thenordered Mouton to answer the State's questions regarding his
interaction with defendant.
Defendant argues that the trial court's comments and questions
regarding Mouton's immunity run afoul of the requirement of
absolute judicial impartiality. See State v. Smith, 328 N.C. 99,
133, 400 S.E.2d 712, 731 (1991). However, the trial court's
conversation with Mouton occurred entirely outside the presence of
the jury. Therefore, it would be impossible for the jury to have
been prejudiced by the questions asked by the court. See State v.
Cummings, 352 N.C. 600, 619, 536 S.E.2d 36, 51 (2000) (declining to
extend application of the plain error doctrine to statements made
by trial counsel, outside the presence of the jury, during witness
voir dire), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
Moreover, the jury knew Mouton was working for the police, based
upon the testimony of Detective Tim Parker. Knowing Mouton
participated in the transaction at the request of the police, the
jury would not likely believe Mouton would later be charged in
connection with that transaction. Thus, defendant has not shown
that the jury would have probably reached a different outcome
absent the court's actions. This assignment of error is without
merit.
Defendant also contends that the trial court should have
intervened when Mouton denied that he had been threatened or that
promises had been made to him in exchange for his testimony against
defendant. Assuming arguendo that the trial court should have
intervened, there is other evidence in the record from which thejury could convict defendant. For instance, Stanback also
testified regarding the events leading up to the sale on 29 May
2001. The evidence from Stanback's testimony was sufficient for a
jury to convict defendant of conspiracy and trafficking in cocaine.
In light of the other ample evidence against him, defendant has
failed to make the necessary showing that he was prejudiced by
Mouton's testimony. This assignment of error is without merit.
Defendant also contends that the trial court committed plain
error in not instructing the jury that Mouton had been granted
immunity.
There are two distinct types of immunity set forth in the
provisions of Article 61 of Chapter 15A of the General Statutes.
The first type, a formal grant of immunity, is found in N.C. Gen.
Stat. § 15A-1052 (2003). Under this statute, the court issues a
grant of immunity upon application of the district attorney. N.C.
Gen. Stat. § 15A-1052(a). This application may only be made after
the district attorney informs the attorney general “of the
circumstances and his intent to make an application.” N.C. Gen.
Stat. § 15A-1052(b). Subsection (c) of N.C. Gen. Stat. § 15A-1052
requires the presiding judge to inform the jury of the grant of
immunity prior to the testimony of the witness, and to instruct the
jury “as in the case of interested witnesses.” N.C. Gen. Stat. §
15A-1052(c).
The second type of immunity, known as “quasi-immunity,” is
found in N.C. Gen. Stat. § 15A-1054 (2003). Under this statute,
there is no formal application for immunity or notice requirement. The district attorney is vested with the discretion to agree to
charge reductions and sentence concessions. N.C. Gen. Stat. § 15A-
1054(a). The district attorney must provide notice of the
arrangement to counsel representing the defendant against whom the
testimony is offered. N.C. Gen. Stat. § 15A-1054(c). Upon motion
of the defendant asserting surprise, the court must grant a recess.
Id.
In this case, there was no formal application for immunity
made to the court, nor was there any notice given to the attorney
general. Upon being called to the witness stand, the witness
Mouton, after stating his name, pled the Fifth Amendment of the
United States Constitution in response to the next question from
the assistant district attorney. The presiding judge excused the
jury from the courtroom and conducted a hearing concerning Mouton's
testimony. The court ascertained that Mouton had no pending
charges. The court then asked the assistant district attorney
whether Mouton would be charged with any crime relating to the
events giving rise to the charges against defendant. The court was
advised that the State would not bring such charges. The court
then instructed Mouton that he would be required to answer the
State's questions. This was a grant of quasi-immunity by the
district attorney under N.C. Gen. Stat. § 15A-1054.
Where there is no evidence of a formal grant of immunity, the
provisions of N.C. Gen. Stat. § 15A-1052(c) are not applicable.
State v. Maynard, 65 N.C. App. 81, 84, 308 S.E.2d 665, 668 (1983),
disc. rev. denied, 310 N.C. 628, 315 S.E. 2d 694 (1984). Sincedefendant and his attorney were present when the grant of immunity
was made, the notice requirements of N.C. Gen. Stat. § 15A-1054
were complied with. Defendant made no motion for a recess upon
learning of the grant of immunity.
The trial court did not commit plain error in failing to
comply with the provisions of N.C. Gen. Stat. § 15A-1052(c). This
assignment of error is without merit.
In his final assignment of error, defendant argues the trial
court committed plain error in allowing the State to examine
Stanback about his guilty plea arising from the same incident for
which defendant was charged. We disagree.
It would clearly be improper for the State to present the
mere fact of Stanback's plea to the jury without calling Stanback
as a witness. State v. Cameron, 284 N.C. 165, 168, 200 S.E.2d 186,
189 (1973), cert. denied, 418 U.S. 905, 41 L.Ed. 2d 1153 (1974).
The basis for this holding in Cameron was twofold: (1) evidence
competent against one person is not necessarily competent against
another charged with the same crime; and (2) it would “deprive a
defendant of his constitutional rights of confrontation and cross-
examination.” Id.
In Cameron, our Supreme Court held that since the co-defendant
testified, there was no deprivation of the constitutional right to
confront and cross-examine the witness. Id. at 170, 200 S.E.2d at
190. The Court noted that the admission of evidence that the
witness intended to plead guilty at a future date was equivalent to
evidence that a co-participant had in fact entered a guilty plea. Id. at 168, 200 S.E.2d at 189. The Court held that “in view of the
witness' sworn testimony, which amounted to a detailed and
unequivocal admission of his guilt, we are unable to perceive how
a statement of his intention to confirm this sworn, public
confession by a subsequent plea of guilty could be prejudicial
error.” Id. at 170, 200 S.E.2d at 190.
In the instant case, Stanback testified in open court and was
subjected to cross-examination by defense counsel. Further, even
assuming arguendo that the trial court erred in allowing the State
to elicit testimony of Stanback's guilty plea, it did not rise to
the level of plain error. In light of Stanback's detailed
testimony about the events of 29 May 2001, the admission of his
guilty plea would not have resulted in a different verdict in the
trial. Nor can it be said that the error was so fundamental as to
result in a miscarriage of justice or deprive defendant of a fair
trial. This assignment of error is without merit.
Finally, we note that one of the underlying felonies
supporting defendant's habitual felon status in case 01 CRS 22539
was possession of cocaine and that one of the three felonies
constituting defendant's status as a habitual felon was possession
of cocaine. In State v. Jones, our Supreme Court held that
possession of cocaine was a felony. __ N.C. __, __ S.E.2d __
(2004). Possession of cocaine was a proper underlying felony in
one of the habitual felon judgments and was properly used as one of
the three prior felonies constituting habitual felon status in each
of the judgments. NO ERROR.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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