State v Powell, 168 NC App 597 (04-127) 02/15/2005

Appeal by defendant from judgment entered 9 September 2003 by Judge Kenneth F. Crow in Duplin County Superior Court. Heard in the Court of Appeals 19 October 2004.

Attorney General Roy Cooper, by Director of Victims and Citizens Services, William M. Polk, for the State.

Thomas E. Fulghum for defendant-appellant.

    ELMORE, Judge.

    Defendant was convicted of trafficking in cocaine by sale, delivery, possession, and transport, each a separate crime. All of the crimes arose from one controlled buy of more than 28 grams of cocaine on 5 June 2001.
    Detective Billy Luter of the Greene County Sheriff's Department participated in an undercover controlled buy of cocaine from defendant at the direction of State Bureau of Investigations Agent Kelly Daughtry, the agent in charge of the operation. The officers were working with a confidential informant who lead them to the home of Linda Morrisey. Det. Luter executed an undercover buy of marijuana from Morrisey, but also inquired about purchasingsome cocaine. Morrisey told him that she would contact someone who could deliver the cocaine. Eventually a black male arrived at the house in a Nissan 300 Z. After speaking with Det. Luter, the man pulled cocaine from a straw hat that he was wearing. Together, Det. Luter and the man weighed the cocaine and Det. Luter exchanged the money for the cocaine. Some time later, after an investigation into the identity of the seller, defendant was arrested and indicted for trafficking in cocaine.
    Defendant's first assignment of error regards the testimony of Agent Daughtry. Agent Daughtry was the State's first witness and was monitoring the operation's progress via a wire on Detective Luter and radio communications with another surveillance team who could actually see the Morrisey residence. Among other things, Agent Daughtry testified that Sergeant Smith of the Duplin County Sheriff's Department, an officer in the surveillance team, radioed “that Mr. Powell [defendant] had arrived in the Nissan 300 ZX.” Both parties agree that this statement is hearsay, but it was admitted at trial as corroborative testimony dependant upon the State calling Sgt. Smith. The State never called Sgt. Smith and defendant contends this was error requiring a new trial. The State concedes that the statement's admission was error since Sgt. Smith was never called to testify, but argues that the error was harmless.
    Thus, the issue before the Court is whether the admission of this statement was prejudicial error, error that if not committed creates a reasonable possibility the result of the trial would havebeen different. State v. Allen, 127 N.C. App. 182, 488 S.E.2d 294 (1997); State v. Jones, 98 N.C. App. 342, 391 S.E.2d 52 (1990); N.C. Gen. Stat. § 15A-1443(a) (2003). We cannot hold that the exclusion of the statement regarding the out-of-court identification would have resulted in a different outcome. Det. Luter, the person who conducted a face-to-face buy with defendant, testified just after Agent Daughtry. He made a positive in-court identification of defendant as the person who sold him the drugs. This identification was not objected to by defendant. It is a reasonable possibility that this testimony carried more weight with the jury than the hearsay statement of identification.   (See footnote 1)
    Defendant's next arguments regard the weight of the cocaine sold: that the trial court erred in 1) denying his request to weigh the cocaine on scales in front of the jury, and 2) denying his motion to strike testimony about the cocaine's weight. Det. Luter testified that at the time of sale he weighed the cocaine defendant had given him on small electronic scales and it weighed 28.3 grams. According to the State Bureau of Investigations Forensic Chemist who performed the analysis of the substance recovered from defendant approximately one month after the sale, it weighed 28.30 grams at arrival and upon finishing her tests the cocaine weighed28.26 grams. Defendant argues that since the weight of the substance approached the statutory minimum for the offense, following State v. Anderson, 57 N.C. App. 602, 608, 292 S.E.2d 163, 167, disc. review denied, 306 N.C. 559, 294 S.E.2d 372 (1982), he should have had the opportunity to weigh the substance before the jury. We do not read Anderson, or State v. Diaz, 88 N.C. App. 699, 365 S.E.2d 7 (1988), to support defendant's argument that he should be able to weigh the cocaine in front of the jury. Further, defendant does not dispute that the quantity of the controlled substance contemplated by the statute is its weight at the time of the offense, not over two years later at trial. Finally, the trial court, in discussing its ruling, found that the scales produced by defendant to weigh the substance did not appear reliable and were not the same as those used by the officers or the forensic chemist. Accordingly, in reviewing the record, we determine that the trial court did not abuse its discretion in determining that defendant's exhibition was irrelevant.
    As to the denial of defendant's motion to strike, we have determined the trial court did not err. When attempting to prove the weight of a controlled substance this Court has previously noted that “ordinary scales, common procedures, and reasonable steps to ensure accuracy must suffice.” Diaz, at 702, 365 S.E.2d at 9. We first note that defendant did not object when Agent Daughtry, Det. Luter, and Lt. Daniel Stevens testified to the weight of the cocaine. The motion to strike came after a proffered in-court determination of the cocaine's weight out of the presenceof the jury. Without addressing the timing of this motion, we will examine its substance, which went to the fact that the scales on which the weight was determined were not properly calibrated. Defendant offered nothing in support of his motion and each person testifying to the weight of the cocaine also testified of some measure they took to ensure an accurate reading. As such, the trial court did not err in determining the admissibility of these statements of weight. Rather, defendant properly questioned the amount of reliance the jury should place on all examinations of the weight by cross-examining each witness who testified on their ability to judge an accurate reading.
    Defendant's last argument is that the trial court erred in denying his request to instruct the jury on the lesser included offenses of simple possession based on the weight of the cocaine closely approaching the statutory minimum for trafficking and the fact that bicarbonate was present in the drug that, according to testimony, might have drawn in moisture which would have added to the weight. We find this contention without merit.
    Foremost, N.C. Gen. Stat. § 90-95(h)(3) (2003), makes the quantity of “any mixture containing” cocaine to be the determinative inquiry, not just the controlled substance in its purest form. See also State v. Willis, 61 N.C. App. 23, 37-38, 300 S.E.2d 420, 429 (1983) (denial of lesser included offense instructions proper where mixture was only 30 percent heroin). Here, the State's chemist testified on cross-examination that the mixture was 90 to 93 percent pure cocaine, and that while highlevels of moisture were present, she never testified the moisture content in defendant's cocaine mixture had pushed the weight of the overall substance above 28 grams. Defendant, while challenging the credibility of the witnesses testifying to the weight of the cocaine, never produced evidence that the weight was anything other than what each State's witness testified that it was: 28.30 grams. Without more, a mere denial of the elements supporting the charge against defendant does not entitle him to an instruction on lesser included offenses. State v. White, 104 N.C. App. 165, 168-70, 408 S.E.2d 871, 874 (1991) (distinguishing State v. Siler, 310 N.C. 731, 314 S.E.2d 547 (1984), which found no error in instructing a jury on the lesser included offenses of trafficking where no evidence was offered as to the actual weight of the substance defendant knowingly possessed) (quoting State v. Maness, 321 N.C. 454, 461, 364 S.E.2d 349, 353 (1988)).
    While we recognize that three-tenths of a gram is comparatively minuscule to the larger figure of 28 grams, it is still legally sufficient to maintain a conviction for trafficking charges. In accord, we have determined that defendant's trial was free of prejudicial error.
    No error.
    Judges McGee and McCullough concur.
    Report per Rule 30(e).

Footnote: 1