Appeal by defendant from judgments entered 1 December 2004 by
Judge Benjamin G. Alford in Superior Court, Carteret County. Heard
in the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
William Allen Nolon, Jr. (defendant) was convicted of
possession with intent to sell and deliver cocaine, keeping and
maintaining a building for the purpose of keeping and selling
controlled substances, and conspiracy to commit the felony of
possession with the intent to manufacture, sell and deliver
cocaine. The trial court sentenced defendant to two consecutive
terms of ten months to twelve months in prison.
At trial, Detective Mark Farlow (Detective Farlow) of the
Carteret County Sheriff's Department testified that he received
information from a confidential informant (the informant) that
Isaiah Williams was selling drugs from his mobile home located on
Lot 23 in the Ebb Tide Mobile Home Park (the mobile home). Theinformant agreed to participate in a controlled buy of drugs at the
mobile home. Detective Farlow searched the informant, secured the
informant's personal belongings, and gave the informant two twenty
dollar bills in marked money (the marked bills).
Detective Farlow testified that he observed the informant
enter the mobile home and leave about five minutes later.
Detective Farlow then met with the informant and recovered two
rocks of crack cocaine from the informant.
Detective Farlow further testified: "[The] informant advised
me that Isaiah [Williams] took the [marked bills], went into the
bedroom and gave the [marked bills] to another male subject who at
the time fit the description of [defendant] and Isaiah Williams
returned to the . . . informant and gave the crack cocaine to the
. . . informant." Defendant did not object to this testimony.
Sergeant Troy Edwards (Sergeant Edwards) testified that he
searched the mobile home and detained defendant. Sergeant Edwards
further testified that Detective Farlow examined money taken from
defendant's wallet and identified the marked bills. Defendant
Defendant first argues the trial court erred by denying his
motion to dismiss. Specifically, defendant argues there was
insufficient evidence that defendant entered into an agreement with
Isaiah Williams to possess cocaine. Defendant has limited his
argument to the conspiracy charge, thus abandoning any claim of
insufficient evidence to support the other two charges. See
N.C.R.App. P. 28(b)(6).
"A criminal conspiracy is an agreement between two or more
people to do an unlawful act or to do a lawful act in an unlawful
manner." State v. Morgan
, 329 N.C. 654, 658, 406 S.E.2d 833, 835
(1991). The State may establish an agreement by evidence tending
to show the existence of a mutual, implied understanding; the State
need not show an express agreement. Id
On a motion to dismiss for insufficiency of the evidence, a
trial court must determine "whether there is substantial evidence
of each essential element of the offense charged and of the
defendant being the perpetrator of the offense." State v. Vause
328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence
is relevant evidence that 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). A trial court views the
evidence in the light most favorable to the State, drawing all
inferences in the State's favor. Id
. at 584, 461 S.E.2d at 663.
"[T]he trial court should consider all evidence actually admitted,
whether competent or not, that is favorable to the State." State
, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996). Our Court
does not review the credibility of witnesses or the weight of the
testimony. State v. Buckom
, 126 N.C. App. 368, 375, 485 S.E.2d
319, 323, cert. denied
, Buckom v. North Carolina
, 522 U.S. 973, 139
L. Ed. 2d 326 (1997).
In the present case, Detective Farlow testified that Isaiah
Williams took the marked bills from the informant, went into abedroom, gave the marked bills to a man matching defendant's
description, and returned with crack cocaine. This testimony was
evidence that a reasonable mind could have accepted as adequate to
support the conclusion that defendant agreed with Isaiah Williams
to possess and sell cocaine. Defendant contends that Detective
Farlow's hearsay testimony was insufficient to show an agreement.
However, the trial court properly considered all admitted evidence
that was favorable to the State when it ruled upon defendant's
motion to dismiss. See Jones
, 342 N.C. at 540, 467 S.E.2d at 23.
Our Court does not weigh the testimony on appeal. See Buckom,
N.C. App. at 375, 485 S.E.2d at 323. We overrule defendant's
assignment of error.
Defendant next argues the trial court committed plain error by
admitting the marked bills into evidence without requiring the
State to call the informant as a witness. Specifically, defendant
argues that "[t]he informant was at the heart of this case, and the
trial court should not have permitted introduction of evidence
derived from [the informant's] testimony without also requiring
[the informant's] presence on the witness stand." Defendant
properly assigned plain error to this issue.
Our Supreme Court has stated that
[p]lain error includes error that is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done; or grave error
that amounts to a denial of a fundamental
right of the accused; or error that has
resulted in a miscarriage of justice or in the
denial to [the] appellant of a fair trial.
State v. Gregory
, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996)
(citing State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). Under the plain error rule, a "defendant is entitled to
a new trial only if the error was so fundamental that, absent the
error, the jury probably would have reached a different result."
State v. Jones
, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
Because defendant argues the trial court should not have
allowed the introduction of the marked bills without requiring the
the informant to testify at trial, we address whether the trial
court erred by failing to require the presence of the informant.
Defendant concedes he did not seek disclosure of the informant's
identity and did not object to Detective Farlow's testimony
regarding the informant's statements. Defendant also concedes he
solicited details of the informant's statements during cross-
examination of Detective Farlow. Defendant made no attempt prior
to trial, or during trial, to identify the informant or to request
the informant's presence at trial. Moreover, although defendant
argues "it became clear" at trial that the trial court should have
either (1) required the presence of the informant or (2) struck the
introduction of the marked bills, defendant did not raise an
objection at trial and has not shown at what point "it became
clear" that the trial court should have intervened. For the
reasons stated above, the trial court did not err by not requiring
the presence of the informant and therefore did not commit plain
error by admitting the introduction of the marked bills as
evidence. We overrule this assignment of error.
Defendant next argues the trial court erred by denying
defendant's objection to the State's closing argument. In its
closing argument, the State argued as follows:
You'll remember [defense counsel] asked did
anybody mention [defendant]. Well, not by
name but the . . . informant said he went in
there and he gave the money to Isaiah Williams
who gave the money to an unidentified black
man wearing a silver and gold (sic) shirt who
gave Isaiah the cocaine, who then delivered
the cocaine _
[DEFENSE COUNSEL]: Objection. Not the
THE COURT: Overruled.
[THE STATE]: Who was wearing the silver and
black shirt, the unknown black man involved in
that negotiation, involved in that
transaction, Mr. Dallas Cowboys jersey
Defendant specifically argues the State improperly characterized
the evidence because Detective Farlow did not testify that the
informant said defendant gave Isaiah Williams the cocaine.
"Trial counsel is allowed wide latitude in argument to the
jury and may argue all of the evidence which has been presented as
well as reasonable inferences which arise therefrom." State v.
, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert.
, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999). Where an
opposing party objects to a closing argument as improper, we must
determine whether the trial court abused its discretion by
overruling the objection. Jones
, 355 N.C. at 131, 558 S.E.2d at
106. We first determine whether the remarks were improper. Id
. If the remarks were improper, we determine whether a defendant was
In the present case, while the informant did not say that
defendant gave the cocaine to Isaiah Williams, this was a
reasonable inference from the informant's statement. Detective
Farlow testified the informant said he gave the marked bills to
Isaiah Williams, who then took the money into a bedroom and gave
the money to a person matching defendant's description.
Thereafter, Isaiah Williams returned with cocaine and gave it to
the informant. It was reasonable to infer that when Isaiah
Williams gave the money to defendant, defendant gave the cocaine to
Isaiah Williams. The State's argument was not improper.
Moreover, even assuming, arguendo
, that the State improperly
characterized the evidence, defendant was not prejudiced. The
trial court instructed the jury as follows:
Now, if in the course of making a final
argument a lawyer attempts to restate a
portion of the evidence and your recollection
of that evidence differs from that of the
lawyer, you are, in recalling and remembering
the evidence, to be guided exclusively by your
own recollection of the evidence.
Accordingly, we overrule this assignment of error.
Defendant argues "[t]he trial court committed plain error by
failing to intervene ex mero motu
during the State's closing
argument to prevent the [State] from testifying about crack cocaine
'culture' and from shifting the burden of proof from the State to
. . . defendant." "The standard of review for assessing allegedimproper closing arguments that fail to provoke timely objection
from opposing counsel is whether the remarks were so grossly
improper that the trial court committed reversible error by failing
to intervene ex mero motu
, 355 N.C. at 133, 558 S.E.2d at
107. "In determining whether the [State's] argument was grossly
improper, this Court must examine the argument in the context in
which it was given and in light of the overall factual
circumstances to which it refers." State v. Tyler
, 346 N.C. 187,
205, 485 S.E.2d 599, 609, cert. denied
, Tyler v. North Carolina
522 U.S. 1001, 139 L. Ed. 2d 411 (1997). An improper closing
argument may not be prejudicial if there is overwhelming evidence
of the defendant's guilt. State v. McEachin
, 142 N.C. App. 60, 70-
71, 541 S.E.2d 792, 800, appeal dismissed and disc. review denied
353 N.C. 392, 548 S.E.2d 152 (2001).
In the present case, defendant did not object to those
portions of the State's closing argument that defendant now
challenges. We therefore determine whether the State's remarks
were grossly improper. Defendant argues the State improperly
detailed a crack cocaine culture in which crack cocaine is "[t]he
most powerful substance" in the world and has "destroyed entire
neighborhoods." The State then described Camden, New Jersey, as
having a "60 percent unemployment rate" due to crack cocaine. The
State then argued as follows:
The reason [crack cocaine] has this power is
because it is so addictive that people who get
hooked on it have to have it to the exclusion
of every single other human urge, whether it
be sex, food, anything. . . . For a five
minute euphoria, people have been known tobreak into houses, kill people, sell their
bodies, sell their girlfriend's [sic] bodies
just to get five minutes of pleasure.
The State also described the relationship between crack cocaine
addicts and the suppliers who exercise power over them.
In State v. Love
, 131 N.C. App. 350, 507 S.E.2d 577 (1998),
aff'd per curiam
, 350 N.C. 586, 516 S.E.2d 382 (1999), cert.
, Love v. North Carolina
, 528 U.S. 944, 145 L. Ed. 2d 280
(1999), the defendant was convicted of several cocaine offenses.
. at 352, 507 S.E.2d at 579. During its closing argument, the
State argued as follows:
How much misery is contained in this bag? How
many families would do without for what is
contained in this bag? How many children will
be abused or go without or neglected [sic]
because of what is in this bag, and how does
it get to people to be used?
. at 359, 507 S.E.2d at 583. The defendant argued the trial
court erred by allowing the State's comments. Id
. at 358-59, 507
S.E.2d at 583. However, our Court held that, in light of the
standard of review, the State's arguments were not grossly
. at 359, 507 S.E.2d at 583-84.
In the present case, the State also made several generalized
comments regarding the addictive nature of cocaine. The State's
comments in the present case were similar to the comments made by
the State in Love
. Moreover, Detective Farlow's testimony, in
conjunction with Sergeant Edwards' testimony, was overwhelming
evidence of defendant's guilt. Accordingly, the State's closing
argument was not grossly improper.
Defendant also argues that, during its closing argument, theState improperly questioned why defendant did not produce witnesses
at trial to corroborate defendant's testimony. However, in State
, 320 N.C. 718, 360 S.E.2d 790 (1987), our Supreme Court
held that "it is permissible for the [State] to bring to the jury's
attention 'a defendant's failure to produce exculpatory evidence or
to contradict evidence presented by the State.'" Id
. at 728, 360
S.E.2d at 796 (quoting State v. Mason
, 317 N.C. 283, 287, 345
S.E.2d 195, 197 (1986)). Our Supreme Court has also held that the
State's comments upon a defendant's failure to produce alibi
witnesses to corroborate the defendant's alibi did not constitute
an impermissible comment on the defendant's failure to testify.
State v. Young
, 317 N.C. 396, 415, 346 S.E.2d 626, 637 (1986). The
State's comments on defendant's failure to produce witnesses to
corroborate defendant's defense theory or to refute the State's
evidence was not error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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