State v Richardson, (05-1128) 07/05/2006

Appeal by defendant from judgment entered 15 April 2005 by Judge Thomas D. Haigwood in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2006.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Kevin Anderson, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    HUNTER, Judge.

    Ramont Lowell Richardson, Jr. (“defendant”) appeals from judgment of the trial court entered upon a jury verdict finding him guilty of possession with intent to sell or deliver cocaine, sale of cocaine, and conspiracy to sell cocaine. Defendant contends the trial court erred in (1) denying his motion to dismiss based on sufficiency of the evidence; (2) coercing the jury to reach a unanimous verdict; and (3) sustaining objections by the State. For the reasons stated herein, we find no error in the judgment of the trial court.
    Detective A. L. Donbrowo (“Detective Donbrowo”) testified she was a detective in the Vice and Narcotics Division of the Winston-Salem Police Department. On the evening of 19 October 2004, Detective Donbrowo drove an unmarked vehicle on Old Greensboro Road in an effort to locate individuals selling drugs. As a member of a team of undercover narcotics officers, Detective Donbrowo stated her “function that particular night was to ride through . . . an area . . . to see if [she] got approached by an individual and if [she was] offered narcotics for sale.” The other members of her team were assembled nearby in an unmarked van, ready to arrest any individuals identified by Detective Donbrowo as selling narcotics.
    As Detective Donbrowo drove down Old Greensboro Road, Stephen Cunningham (“Cunningham”) waved his hand and called to her. Detective Donbrowo turned around and lowered her window to speak with Cunningham, who asked what she wanted. Detective Donbrowo inquired “if he had a twenty or if he knew where [she] could get a twenty.” Detective Donbrowo explained that “[a] twenty is a common street term for a twenty-dollar piece of crack cocaine.” Cunningham responded that “he knew where [she] could get some, he had a piece on him, but he wanted a ride to where [they] could go get some.” Detective Donbrowo did not allow Cunningham into her vehicle for security reasons, but followed him instead to where a group of four or five individuals, including defendant, stood beside a vehicle parked on the side of the street. Detective Donbrowo remained in her vehicle as Cunningham approached the group. Cunningham walked directly to defendant, who handed him a small item. Holding the item in his fist, Cunningham returned to Detective Donbrowo, who gave him a twenty-dollar bill with therecorded serial number “C75755349C.” Cunningham then handed Detective Donbrowo a small piece of crack cocaine and returned to the group.
    Detective Donbrowo contacted members of her team and relayed descriptions of Cunningham and defendant, who were subsequently arrested. When officers searched defendant, they found marijuana and the twenty-dollar bill used in the drug transaction.
    Detective Michael Cardwell (“Detective Cardwell”) was a member of Detective Donbrowo's team and observed the interaction between defendant and Cunningham from his position in the nearby van. Detective Cardwell testified that, as Cunningham first approached the group of individuals, defendant “took a step away from the other two towards him. They met. A hand-to-hand exchange took place.” Cunningham then turned and “walked immediately to Detective Donbrowo's vehicle.” Detective Cardwell testified that Cunningham did not put his hand in his pocket or “approach any bush or any vehicle or any other person between the time he left the Defendant and the time he got to Detective Donbrowo[.]” After Detective Donbrowo left, Detective Cardwell and other officers exited the van and arrested defendant and Cunningham. Cunningham “had actually begun to walk away from that group towards the Old Greensboro Road” when the officers stopped him.
    Testifying on behalf of defendant, Cunningham stated he was in possession of ten dollars' worth of crack cocaine when he first encountered Detective Donbrowo. According to Cunningham, some of the cocaine was hidden in his sock, and a small piece was in hispocket. Cunningham testified that, as no one in the group he approached had any cocaine to sell, he decided to sell some of his own. He reached down, removed a piece of the cocaine from his sock, and offered it to Detective Donbrowo. Upon cross- examination, however, Cunningham stated he removed the cocaine from his pocket, not his sock. Cunningham stated he approached defendant because he wanted to exchange Detective Donbrowo's twenty-dollar bill for two ten-dollar bills. Defendant was arrested before he could make the exchange, however. Cunningham denied having received any cocaine from defendant on this particular occasion, but admitted he had purchased cocaine from defendant in the past. Cunningham also testified he pled guilty to selling, possessing, and conspiring to sell cocaine.
    Upon consideration of the evidence, the jury found defendant guilty of possession with intent to sell or deliver cocaine, selling cocaine, and conspiracy to sell cocaine. The trial court consolidated the charges and imposed a sentence of fifteen to eighteen months of imprisonment. Defendant appeals.
    By his first assignment of error, defendant contends there was insufficient evidence that he possessed cocaine, and the trial court therefore erred in denying his motion to dismiss the charges against him. Defendant contends that, as neither Detective Donbrowo nor Detective Cardwell directly observed the particular item exchanged between Cunningham and defendant, there was no proof that he gave Cunningham the crack cocaine sold to DetectiveDonbrowo. Defendant cites the testimony by Cunningham in support of his position. There is no merit to this argument.
    The State produced substantial evidence that defendant sold Detective Donbrowo the cocaine handed to her by Cunningham. The evidence tended to show that Detective Donbrowo informed Cunningham she was looking for “a twenty.” Cunningham led Detective Donbrowo directly to the group where defendant was standing. As Cunningham approached the group, defendant stepped forward to meet him, and a “hand-to-hand exchange” immediately took place. Cunningham then returned directly to Detective Donbrowo and gave her a piece of crack cocaine. Detective Cardwell testified that Cunningham did not place his hands in his pocket between the time he received the item from defendant and the time he handed the item to Detective Donbrowo. Cunningham then gave Detective Donbrowo the item in his hand, which was crack cocaine. Detective Donbrowo gave Cunningham a twenty-dollar bill, which he gave to defendant. Defendant possessed the twenty-dollar bill when he was stopped by the officers.
    Although Cunningham testified that the officers interrupted before defendant had the chance to make change for him, Detective Cardwell testified Cunningham was already walking away from the group when the officers approached. Cunningham could not explain this inconsistency, nor was he consistent on the issue of whether he removed the cocaine from his sock or his pocket. Cunningham stated he had known defendant and his family since defendant was born; he also admitted that he had purchased cocaine from defendantin the past. Thus there were ample grounds for the jury to doubt the veracity of Cunningham's statements. We overrule this assignment of error.
    By further assignment of error, defendant argues the trial court “impermissibly coerced the jury into reaching a unanimous verdict.” During deliberations, the jury sent a note to the trial court stating the following: “'We find ourselves at an 11/1 impasse. The one holding the minority position states there is no possibility of his changing his mind. How long do we continue to deliberate given that all minds are made up?'” The trial court then informed both attorneys of the instructions it intended to provide the jury. Defendant did not object to the instruction. At 5:07 p.m., the trial court then instructed the jury as follows:
            Ladies and gentlemen of the jury, let me say this to you. Your foreperson has informed me that you so far have been unable to arrive at a unanimous verdict. I want to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason these matters over together as reasonable men and women and attempt to reconcile your differences if you can without surrender of conscientious convictions, but you should not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

            Further, I want to say to each of you that there's no reason to believe that another jury at another time will be in any better position to resolve the issues before you -- before them than -- that are presently before you.

            Now, ladies and gentlemen of the jury, we're going to continue to work this evening. If you folks need an opportunity to make some phone calls, I will certainly want to give you folks that opportunity.

The jury resumed deliberations at 5:37 p.m. and returned its unanimous verdict at 6:20 p.m.
    Defendant contends the trial court should have ended its instructions with the admonition to the jury to “not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Defendant also argues that the trial court's statement “we're going to continue to work this evening” implied that the jury would have to deliberate until it reached a verdict, regardless of the amount of time such deliberation would require. Defendant contends the trial court's actions amounted to improper coercion. We do not agree.
    “In deciding whether the trial court coerced a verdict by the jury, the appellate court must look to the totality of the circumstances.” State v. Porter, 340 N.C. 320, 335, 457 S.E.2d 716, 723 (1995). “Some of the factors considered are whether the trial court conveyed an impression to the jurors that it was irritated with them for not reaching a verdict and whether the trial court intimated to the jurors that it would hold them until they reached a verdict.” Id.
    Here, defendant did not object to the instructions, and he must therefore show plain error to prevail. This he cannot do. The decision to instruct a potentially deadlocked jury rests within the sound discretion of the trial court. Id. at 336, 457 S.E.2d at724. Moreover, the trial court's instructions complied with N.C. Gen. Stat. § 15A-1235, which contains the guidelines for such instruction. See N.C. Gen. Stat. § 15A-1235; State v. Moore, 77 N.C. App. 553, 556, 335 S.E.2d 535, 537 (1985) (“[t]he instructions provided by G.S. 15A-1235 are guidelines for the trial judge and need not be given verbatim”). Contrary to defendant's assertions, there is no requirement that the trial court end its instructions with an emphasis on not surrendering convictions. Further, the trial court's statement that “we're going to continue to work this evening” was not coercive. See Porter, 340 N.C. at 335-37, 457 S.E.2d at 724-25 (holding that the trial court's statements that “'we've got all the time in the world'” and “'we've got all week'” were not coercive). We overrule this assignment of error.
    Finally, defendant argues the trial court erred when it sustained objections by the State to questions concerning the reasons Cunningham decided to plead guilty to the drug charges against him. Defendant contends Cunningham's answers were not hearsay, but were proper to explain his subsequent conduct. Defendant, however, failed to object to the trial court's ruling, nor did he make an offer of proof. State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755, 758 (1997) (noting that in order to preserve appellate review, the significance of the excluded evidence must appear in the record and a specific offer of proof is required). This issue is therefore not preserved for appellate review and is dismissed.    We hold the trial court did not err in denying defendant's motion to dismiss. We also find no error in the trial court's instructions to the jury. We dismiss defendant's final assignment of error.
    No error.
    Judges McGEE and STEPHENS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***