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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 March 2007
STATE OF NORTH CAROLINA
Appeal by defendant from judgment entered 7 July 2005 by Judge
Kenneth C. Titus in Wake County Superior Court. Heard in the Court
of Appeals 11 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General Ann
B. Wall, for the State.
Russell J. Hollers III, for defendant appellant.
Defendant Abu-Bakr Rahman appeals judgment entered after a
jury verdict of guilty of trafficking in cocaine by possession,
trafficking in cocaine by delivery, trafficking in cocaine by
transportation, and trafficking in cocaine by sale. We determine
there was no error.
On 19 April 2005, Abu-Bakr Rahman (defendant) was indicted
for trafficking in cocaine by possession, trafficking in cocaine by
delivery, trafficking in cocaine by transportation, and trafficking
in cocaine by sale. The case was tried before a jury during the 5
July 2005 Criminal Session of the Superior Court of Wake County.
The State presented evidence at trial which tended to show thefollowing: On 7 October 2004, Detective Sam Wilson (Detective
Wilson), a Wake County Sheriff's Department investigator, went to
a parking lot shared by Miami Subs and Waffle House to engage in a
drug transaction. Detective Wilson parked his unmarked car in a
lighted area of the parking lot. A team consisting of Detective
Chad Hines, Deputy Boris Neal, a SWAT team and other investigators
in unmarked cars was also present in the area.
A man known to Detective Wilson as Eddie and defendant
walked up to Detective Wilson's car from behind the Miami Subs
restaurant. Defendant got into Detective Wilson's vehicle while
Eddie stood in front of it. Defendant then used Detective
Wilson's scales to measure out about 40 to 44 grams of cocaine from
a package he produced which weighed approximately 66 grams. Then
defendant gave the repackaged cocaine to Detective Wilson.
Detective Wilson paid defendant $1,500.
Defendant got out of Detective Wilson's vehicle. Defendant
and Eddie went to a vehicle that was parked near the Waffle House
and got in it. As defendant drove out of the parking lot,
Detective Wilson radioed its license plate number to Detective Chad
Hines, who wrote it down.
Subsequently, defendant was taken into custody and transported
to the Wake County Sheriff's Office. At the Sheriff's office,
while looking through a two-way mirror, Detective Wilson identified
defendant as the man from whom he had purchased cocaine earlier in
the evening. While defendant was at the Sheriff's Office, he was
searched and eight bills totaling $270 were found in hispossession. The serial numbers of the bills found on defendant
matched some of the bill serial numbers recorded by Detective
Wilson before he went to make the undercover drug purchase.
Warrants were then drawn up for defendant's arrest on charges
related to the cocaine sale to Detective Wilson. The substance
defendant sold to Detective Wilson was later identified as 42.8
grams of cocaine by Amy Bommer, a City County Bureau of
Investigation forensic drug chemist, who was qualified at trial as
an expert in forensic chemistry.
The jury returned guilty verdicts on trafficking in cocaine by
delivery, sale, transportation, and possession. Defendant was
sentenced to imprisonment for a minimum of thirty-five months and
a maximum of forty-two months.
At the outset, the North Carolina Rules of Appellate Procedure
require an appellant's brief to contain a full and complete
statement of the facts. N.C. R. App. P. 28(b)(5). In the instant
case, defendant's statement of the facts was much too abbreviated.
Defendant included five assignments of error in the record on
appeal. Defendant briefed only three of the assignments of error,
and therefore the remaining assignments of error are abandoned.
N.C. R. App. P. 28(b)(6). Two of the assignments of error that
were briefed will be discussed under part I, while the remaining
assignment of error that was briefed will be discussed under part
Defendant contends that the trial court committed plain error
by (1) allowing testimony that defendant was part of a larger drug
investigation and by (2) allowing Detective Wilson to testify that
he was afraid that defendant was going to rob him. We disagree.
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
N.C. R. App. P. 10(c)(4). Before an error by the trial court
amounts to 'plain error,' we must be convinced that absent the
error the jury probably would have reached a different verdict.
State v. Waddell, 351 N.C. 413, 419, 527 S.E.2d 644, 648-49 (2000).
Therefore, the test for 'plain error' places a much heavier burden
upon the defendant than that imposed upon those defendants who have
preserved their rights on appeal by timely objection. Id. at 419,
527 S.E.2d at 649.
We are not convinced that absent the challenged testimony the
jury probably would have reached a different verdict. Defendant
was charged with the separate offenses of trafficking in cocaine by
possession, delivery, transportation and sale in violation of N.C.
Gen. Stat. § 90-95(h) (2005). N.C. Gen. Stat. § 90-95(h)(3)(a)
Any person who sells, manufactures, delivers,
transports, or possesses 28 grams or more of
cocaine ... shall be guilty of a felony, which
felony shall be known as "trafficking incocaine" and if the quantity of such substance
or mixture involved:
a. Is 28 grams or more, but less than 200
grams, such person shall be punished as a
Class G felon and shall be sentenced to a
minimum term of 35 months and a maximum
term of 42 months in the State's prison
and shall be fined not less than fifty
thousand dollars ($50,000)[.]
After reviewing the record, we conclude there was sufficient
evidence that defendant would have been convicted even if the
evidence in question was not admitted. For example, Detective
Wilson testified that defendant delivered the cocaine by bringing
it to Detective Wilson in Detective Wilson's car. Detective Wilson
testified that defendant possessed the cocaine when he produced it,
measured its weight, repackaged it and sold it to Detective Wilson.
Detective Wilson further testified that he purchased about 44 grams
of cocaine from defendant. In addition, Detective Wilson testified
that defendant did not sell all of the cocaine that defendant
possessed. Finally, Detective Wilson testified defendant left the
Detective's car, got into a parked car, and drove off. This
evidence, along with other evidence in the record and transcript,
illustrates that the jury would probably not have reached a
different verdict even if it was error by the trial court to allow
the contested evidence. Therefore, we disagree with defendant's
Defendant contends that his trial counsel's failure to object
to testimony that (1) defendant was a part of a larger drug
investigation and that (2) an officer was afraid defendant was
going to rob him, denied him his right to the effective assistance
of counsel. We disagree.
A defendant's right to counsel includes the right to the
effective assistance of counsel. State v. Braswell
, 312 N.C. 553,
561, 324 S.E.2d 241, 247 (1985). When a defendant attacks his
conviction on the basis that counsel was ineffective, he must show
that his counsel's conduct fell below an objective standard of
reasonableness. Strickland v. Washington
, 466 U.S. 668, 687-88, 80
L. Ed. 2d 674, 693, reh'g denied
, 467 U.S. 1267, 82 L. Ed. 2d 864
(1984). In order to meet this burden a defendant must satisfy a
First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable
. (Emphasis added).
, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted).
Thus, if a reviewing court can determine at the outset that there
is no reasonable probability that in the absence of counsel's
alleged errors the result of the proceeding would have been
different, then the court need not determine whether counsel'sperformance was actually deficient. Id.
at 563, 324 S.E.2d at
In the instant case, there is no reasonable probability that
the result of the proceeding would have been different had the
contested testimony not been allowed by the trial court. The
contested testimony involved references to the larger drug
operation and Detective Wilson's feelings about possibly being
robbed. Even if this testimony was not allowed, there still would
have been testimony regarding defendant selling around 40 grams of
cocaine to Detective Wilson. In addition, there would have been
testimony regarding defendant carrying the cocaine, measuring it,
and repackaging it. Thus, there is no reasonable probability that
the result of the trial would have been any different.
Accordingly, we disagree with defendant's contention.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
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