STATE OF NORTH CAROLINA
v. Richmond County
Nos. 02 CRS 272, 1548
KENDRICK ANDREW WALL
Attorney General Roy Cooper, by Assistant Attorney General
Newton G. Pritchett, Jr., for the State.
Jeffrey Evan Noecker for defendant-appellant.
MARTIN, Chief Judge.
Defendant Kendrick Andrew Wall was indicted upon charges of
possession with intent to manufacture, sell and deliver cocaine,
and sale or delivery of cocaine. He was subsequently indicted upon
the charge of being an habitual felon.
The evidence presented at trial tended to show the following:
On 17 January 2002, Deputy Philip Sweatt of the Richmond County
Sheriff's Department contacted Wanda Smith, a confidential source
of information, to see if she would make a controlled buy of
illegal drugs, after numerous complaints of drug activity at 687
Midway Road had been received. Smith agreed; after searching Smith
to make sure she had nothing on her person, Deputy Sweatt droppedSmith off at the address.
Smith walked up to the mobile home at the address and knocked
on the door, and defendant answered the door. Smith told defendant
she wanted to purchase a $20.00 rock of crack cocaine. Defendant
took a small bottle out of his pocket, gave Smith a rock of crack
cocaine, and Smith gave defendant $20.00. Smith then left the
residence, was picked up by Deputy Sweatt, gave him the rock of
cocaine and told him what happened. The material given to Smith by
defendant was later determined to be 0.19 grams of crack cocaine.
Smith identified the defendant at trial as the man who sold her the
cocaine.
The jury convicted defendant of possession with intent to sell
or deliver cocaine and sale or delivery of cocaine. Defendant
subsequently admitted his status as an habitual felon and was
sentenced to a term of 133 to 169 months imprisonment. Defendant
appeals.
__________________
We first consider whether the trial court erred by allowing
Deputy Sweatt to testify as to Smith's reliability as a
confidential informant. Deputy Sweatt testified that “every time
I've asked [Smith] about anything, whether she has done it or not,
she has always been honest with me about that.” Defendant contends
that the testimony was in violation of Rule 608 because Smith's
character for truthfulness had not been attacked in any way.
We agree with defendant that the trial court erred by allowing
Deputy Sweatt to testify regarding Smith's reliability. Rule608(a) of the Rules of Evidence states that:
The credibility of a witness may be attacked
or supported by evidence in the form of
reputation or opinion as provided in Rule
405(a), but subject to these limitations: (1)
the evidence may refer only to character for
truthfulness or untruthfulness, and (2)
evidence of truthful character is admissible
only after the character of the witness for
truthfulness has been attacked by opinion or
reputation evidence or otherwise.
N.C.G.S. § 8C-1, Rule 608(a)(emphasis added). Deputy Sweatt's
testimony as to Smith's reliability was inadmissible here because
Smith's character for truthfulness had not yet been attacked.
Although defendant asked Deputy Jimmy Dunn whether Smith had any
prior record for drugs, Deputy Dunn answered that he did not know
Smith. Thus, there was no testimony on the record attacking Smith.
Furthermore, defendant's question related to a prior record for
drugs, and did not attack Smith's character for truthfulness. See
State v. Braxton, 352 N.C. 158, 195, 531 S.E.2d 428, 450
(2000)(conduct probative of character for truthfulness would
include “'use of false identity, making false statements on
affidavits, applications or government forms (including tax
returns), giving false testimony, attempting to corrupt or cheat
others, and attempting to deceive or defraud others.'”).
The error, however, does not entitle defendant to a new trial,
as there is no reasonable possibility that a different result would
have been reached had the testimony been excluded. N.C.G.S. § 15A-
1443(a); see State v. Hardy, 104 N.C. App. 226, 238, 409 S.E.2d 96,
102 (1991). Smith testified that she purchased drugs from
defendant, identified him in court, and defendant was able to fullycross-examine both Deputy Sweatt and Smith. Moreover, defendant
admitted to Deputy Sweatt that he sold a “$20.00 piece of crack
cocaine” to a “white girl.” Accordingly, defendant has failed to
show prejudice and the assignment of error is overruled.
Defendant next argues that the trial court erred by
instructing the jury in the disjunctive and submitting a jury
verdict form that permitted the jury to find him guilty of sale or
delivery of cocaine. Defendant contends that based on the
instructions and verdict form, it is impossible to know whether the
jury reached a unanimous verdict as to whether the defendant sold
cocaine to Smith, or merely delivered cocaine to her.
After careful review of the record, briefs and contentions of
the parties, we find no error. Our Supreme Court has stated that
it is “one criminal offense to 'sell or deliver' a controlled
substance under N.C.G.S. § 90-95(a)(1).” State v. Moore, 327 N.C.
378, 382, 395 S.E.2d 124, 127 (1990). “Whether the defendant is
tried for transfer by sale, by delivery, or by both, the jury in
such cases should determine whether the defendant is guilty or not
guilty of transferring a controlled substance to another person.”
Id. at 382-83, 395 S.E.2d at 127. In analyzing G.S. 90-95(a)(1),
the Court in Moore reasoned that:
The legislature intended that there be one
conviction and punishment under the statute
for defendants who transfer, i.e., "sell or
deliver," a controlled substance. The
transfer by sale or delivery of a controlled
substance is one statutory offense, the
gravamen of the offense being the transfer of
the drug. So long as each juror finds that
the defendant transferred the substance,
whether by sale, by delivery, or by both, thedefendant has committed the statutory offense,
and no unanimity concerns are implicated.
Id. at 383, 359 S.E.2d at 127 (citations omitted)(emphasis added).
Accordingly, we find no error.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***