STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 03 CRS 76832-34
DONOVAN SHELTON DUNSTON
Attorney General Roy Cooper, by Assistant Attorney General
Donna B. Wojcik, for the State.
Brian Michael Aus for defendant-appellant.
CALABRIA, Judge.
Donovan Shelton Dunston (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of conspiracy to sell
cocaine, conspiracy to deliver cocaine, trafficking in cocaine by
transportation, and trafficking in cocaine by possession. We
vacate the conspiracy charge in 03 CRS 076832 and remand for
resentencing.
On 3 January 2003, the City of Raleigh Police Department
(“Raleigh P.D.”) started surveillance of Shannon Harris (“Harris”)
based on information received from informants and from an
investigation involving an individual named Corey Plummer
(“Plummer.”) Plummer agreed to participate in a sting operation
conducted by Raleigh P.D. on that evening, and Raleigh P.D.arranged for Plummer to purchase two ounces of cocaine from Harris.
Raleigh P.D. then taped the phone conversation between Plummer and
Harris. Harris testified that he did not have the quantity of
cocaine that Plummer requested, so he called defendant to inquire
whether he had access to the requested amount. Defendant confirmed
that he had two ounces of cocaine, and Harris picked up defendant
from his house. While Harris and defendant were in Harris's
vehicle, defendant handed Harris the cocaine, and Harris placed the
cocaine in his pocket. When they arrived at Plummer's residence,
Plummer was not home, and his nephew answered the door. Harris
left the cocaine with Plummer's nephew. Raleigh P.D. conducted
surveillance of this transaction and subsequently obtained the
cocaine.
Plummer then called Harris and told him that he would meet him
at Vincent's Pizza in order to pay for the cocaine. Harris became
suspicious and told defendant that he would not go to obtain the
money from Plummer. Defendant took Harris's truck and went to
obtain the money. Raleigh P.D. observed defendant arrive and
obtain the money from Plummer. Police officers followed defendant
to Harris's location.
On 27 March 2003, Harris was arrested on federal drug
conspiracy charges. Harris pled guilty, cooperated with law
enforcement, and received a reduced sentence. Harris told
Detective Cohr of the Raleigh P.D. (“Cohr”) that defendant had
accompanied him on 3 January 2003. During a subsequent
investigation, Sergeant Kennon of the Raleigh P.D. (“Kennon”)recognized a photograph of defendant as the man he observed at
Vincent's Pizza. Harris corroborated Kennon's identification of
defendant.
Defendant was indicted on conspiracy to sell cocaine,
conspiracy to deliver cocaine, trafficking in cocaine by
transportation, and trafficking in cocaine by possession. A jury
found defendant guilty of all charges. The trial court
consolidated the trafficking offenses for judgment and sentenced
defendant to a minimum of 35 months and a maximum of 42 months in
the North Carolina Department of Correction. The trial court also
consolidated the conspiracy charges and sentenced defendant to a
minimum of 16 months and a maximum of 20 months in the North
Carolina Department of Correction to run at the expiration of the
trafficking sentence. Defendant appeals.
I. Testimony as to the Credibility of Harris
Defendant initially argues that the trial court “committed
plain error by permitting Sergeant Kennon and Detective Cohr to
vouch for the credibility of Shannon Harris.” Our courts have
“applied the plain error analysis only to instructions to the jury
and evidentiary matters.” State v. Atkins, 349 N.C. 62, 81, 505
S.E.2d 97, 109 (1998). “[T]he term 'plain error' does not simply
mean obvious or apparent error[.]” State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983). “[T]o reach the level of 'plain
error' contemplated in Odom, the error . . . must be 'so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than itotherwise would have reached.'” State v. Collins, 334 N.C. 54, 62,
431 S.E.2d 188, 193 (1993) (citations omitted). We have also noted
that “the test for 'plain error' places a much heavier burden upon
the defendant than that imposed by [N.C. Gen. Stat. § 15A-1443]
upon defendants who have preserved their rights by timely
objection. This is so in part at least because the defendant could
have prevented any error by making a timely objection.” State v.
Bellamy, __ N.C. App. __, __, 617 S.E.2d 81, 91 (2005).
At trial, Kennon testified as follows:
MS. SHANDLES: And when he was first arrested,
did he cooperate with you at all?
KENNON: Yes, ma'am.
MS. SHANDLES: Was that immediate or was it
several months after that when he actually
made statements?
KENNON: His statements were recorded later.
His cooperation, immediately, were actually
more proactive where he identified his source
for cocaine. And we were able to arrest that
source the night that we arrested [Harris].
MS. SHANDLES: And did he give other
information other than what he told you about
what happened on the 3rd of January?
KENNON: Yes, ma'am.
MS. SHANDLES: When you looked into the
information that he supplied you with, did you
find at any point that he had not been
truthful with you?
KENNON: No, ma'am.
. . .
MS. SHANDLES: Did Shannon Harris speak to you
or were you present when he was spoken to
about what happened on the 3rd of January,
2003?
KENNON: Yes, ma'am.
MS. SHANDLES: And what did you hear Mr.
Shannon Harris say about that?
KENNON: After I made the identification [of
defendant] from the photograph, I was curious
if he would tell the truth about that. So
when we arrested him, I asked him, said who
was with you that day that [Plummer] bought
the two ounces from you? He said [defendant]. And I said yeah, that's what I thought. And
that was the extent of it.
Detective Cohr testified:
MS. SHANDLES: And when you spoke to him
[Harris] on the evening of his arrest, what
did he tell you about what had happened on
January the 3rd of 2003 with this Defendant?
COHR: We did not go into great detail
concerning January 3rd. He briefly mentioned
the name of [defendant] accompanying him that
day, but we did not fully interview him
concerning that date because he had
information regarding a separate case that we
were immediately working that evening.
MS. SHANDLES: Is that something that was_ you
had to work on right away or would have it
gone away?
COHR: Yes, that information was very recent
and current and had to be followed up on
immediately or it would not come to a
conclusion later if we didn't work on it that
evening.
MS. SHANDLES: And based on the information Mr.
Harris gave you on March 26 of 2003, did you,
in fact, conduct an investigation and make an
arrest that day or later that night?
COHR: Yes, that evening he gave information
concerning a Defendant by the name of Anthony
Balbuena. He advised that he could order one
kilogram or a thousand grams of cocaine from
Anthony Balbuena. He, in fact, did so that
evening. We conducted a controlled delivery
and effectively arrested Anthony Balbuena that
evening. I recovered a thousand grams of
cocaine and $46,000 in money[.]
. . .
MS. SHANDLES: So what Shannon Harris told you
that day that he was arrested, turned out, in
fact, to be true?
COHR: Credible and reliable information, yes.
MS. SHANDLES: And did he during_-between the
time he was arrested and the time you sat down
and actually formally debriefed him, had a
long interview, did he give other information
to the police that also was found to be
believable and credible and true?
COHR: Yes, ma'am.
MS. SHANDLES: On how many occasions did he
give information to you where you, in fact,
you were able to make arrests or to findpeople who were in possession of quantities of
drugs?
COHR: I think we did a total of three
interviews with Shannon Harris, the last being
September the 9th of 2003. The information
Shannon gave was on approximately eight
subjects that resulted in federal and state
arrest warrants. Of the eight federal
defendants that Harris gave information on,
all eight have entered a plea of guilty in
federal court.
Regarding defendant's assignment of error that it was
impermissible for the officers to vouch for the credibility of
Harris, we consider whether the officers' testimony was permissible
lay witness testimony. Under the North Carolina Rules of Evidence,
“A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter[.]” N.C. R. Evid. 602 (2003). “If [a]
witness is not testifying as an expert, his testimony in the form
of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue.” N.C. R. Evid. 701
(2003). “In combination, these provisions seem to mean that
personal knowledge must be shown to qualify a lay witness to
testify to 'facts,' and if he goes beyond 'facts' to 'opinions or
inferences,' the testimony must be rational and helpful as
indicated.” 1 Kenneth S. Broun, Brandis & Broun on North Carolina
Evidence § 175 (5th ed. 1998). The majority of the officers'
testimony related to corollary matters of whether Harris had
provided information to officers in the past that turned out infact to be true and credible. Accordingly, all testimony that
related to facts within the officers' personal knowledge were
permissible under N.C. R. Evid. 602 (2005).
Some portions of the testimony could, arguably, be
characterized opinions or inferences as opposed to facts. Our
courts have noted that it is generally improper for one witness to
state opinions or inferences regarding the credibility of another
witness. Bellamy, __ N.C. App. at __, 617 S.E.2d at 91. This is
so because it is within the province of the jury to determine the
credibility of witnesses, State v. Holloway, 82 N.C. App. 586,
587, 347 S.E.2d 72, 73-74 (1986), and one witness's testimony
regarding the credibility of another witness, is not normally
“helpful” within the meaning of N.C. R. Evid. 701. See State v.
Robinson, 355 N.C. 320, 335, 561 S.E.2d 245, 255 (2002). However,
even assuming arguendo that some testimony at issue was improper,
it does not rise to the level of plain error in this case,
particularly because the testimony related to corollary incidents
as opposed to Harris's trial testimony. As such, we hold
defendant's first assignment of error is without merit.
Defendant next argues that “the trial court committed plain
error by allowing Kennon to testify that he identified a photograph
of Mr. Dunston after interviewing a non-testifying witness who had
provided him with the names of known associates of Harris.” Kennon
testified as follows:
MS. SHANDLES: How did you identify who had
picked up the money that day, that it was this
Defendant?
KENNON: During the investigation we arrestedan individual named Jimmy Gill. And after
debriefing him, I immediately went through _
MR. GREGORY: Objection.
THE COURT: Overruled.
MS. SHANDLES: Go ahead.
KENNON: I immediately started looking at the
photographs_
MR. GREGORY: Objection.
KENNON: _ of known associates.
THE COURT: Overruled.
KENNON: _ of Mr. Harris.
MS. SHANDLES: Known associates of Mr. Harris?
KENNON: Yes, ma'am. I pulled a picture of
this individual [defendant] and immediately
recognized him as being the one that took the
money on January 3rd at Vincent's Pizza.
Defendant argues that admission of this testimony was plain error
because “the evidence derived from Gill's debriefing was offered to
establish the truth of the matter asserted, i.e., that Mr. Dunston
was a known associate of the drug dealer Harris.” Defendant
further argues that this testimony was in violation of his Sixth
Amendment right to confrontation. The testimony at issue, however,
includes no out-of-court statements that were offered for the truth
of the matter asserted; rather, Kennon only stated that after
speaking to Gill he looked at pictures of known associates of
Harris. This testimony did not amount to hearsay or violate
defendant's right of confrontation. Accordingly, we hold
defendant's assignment of error is without merit.
In his last argument, defendant argues that the trial court
erred when it denied defendant's motion to dismiss the charge of
conspiracy to deliver cocaine made at the close of all evidence.
The State concedes, and we agree, that the charge of conspiracy to
deliver cocaine, 03 CRS 076832, must be vacated in this case. Accordingly, we vacate the judgment in 03 CRS 076832 and remand for
resentencing.
Because defendant has failed to argue his remaining
assignments of error on appeal, they are abandoned pursuant to N.C.
R. App. P. 28(b)(6) (2005).
No error in part; vacate the conspiracy to deliver cocaine
conviction and remand for resentencing.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).
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