1. Evidence--expert testimony--relevance--usefulness to jury
The trial court did not err in a cocaine prosecution by excluding the testimony of a
defense expert on drug investigative procedures as irrelevant. The roles of the undercover
officer and the Sheriff in this case require no expert explanation; the jury was perfectly capable
of interpreting the State's evidence. Testimony regarding the credibility of a witness is not
admissible and defendant did not intend to elicit testimony addressing either material elements of
the offenses charged or a material defense. Even assuming that the testimony was admissible
under N.C.G.S. § 8C-1, Rule 702, the trial court has wide discretion in determining the
admissibility of expert testimony and did not abuse that discretion in this case.
2. Evidence--offer of proof--not necessary--dialogue with court
There was no prejudicial error in a cocaine prosecution in the trial court's refusal of
defendant's offer of proof where the dialogue of defense counsel and the court was sufficient to
establish the essential content or substance of the witness's testimony.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 137 N.C. App. 734, 530
S.E.2d 306 (2000), finding no error in judgments entered
5 November 1998 by Duke, J., in Superior Court, Hyde County.
Heard in the Supreme Court 14 September 2000.
Michael F. Easley, Attorney General, by Douglas A. Johnston,
Special Deputy Attorney General, for the State.
Steven P. Rader for defendant-appellant.
WAINWRIGHT, Justice.
On 9 February 1998, Charlie James Mackey (defendant) was
indicted for possession with intent to sell and deliver cocaine
and the sale and delivery of cocaine. On 8 June 1998, defendant
was again indicted for the same offenses in connection with a
second sale of cocaine. Defendant was tried before a jury at the
2 November 1998 Criminal Session of Superior Court, Hyde County.
On 5 November 1998, the jury found defendant guilty of allcharges, and the trial court imposed consecutive sentences of ten
to twelve months' imprisonment for each charge. Defendant
appealed to the North Carolina Court of Appeals. On 2 May 2000,
the Court of Appeals, with one judge dissenting, found no error.
State v. Mackey, 137 N.C. App. 734, 530 S.E.2d 306 (2000).
Defendant appeals to this Court from the decision of the Court of
Appeals on the basis of the dissent.
The State's evidence at trial tended to show that on
15 November 1996, Art Manning (Manning), a retired police
officer, was assisting the Hyde County Sheriff's Department.
Manning was operating in an unpaid, undercover capacity. Sheriff
David Mason (Sheriff Mason) of Hyde County requested that Manning
assist him with drug trafficking investigations within the
jurisdiction. Pursuant to the undercover campaign, Manning was
instructed to purchase drugs from anyone who was selling them.
Prior to his involvement with the Hyde County Sheriff's
Department, Manning worked for thirty years with undercover drug
investigations throughout the state.
Operating with the Hyde County Sheriff's Department, Manning
purchased crack cocaine from defendant on two separate occasions.
During the evening of 15 November 1996, between 6:00 and 6:30
p.m., Manning entered Blount's Playground, a small bar and
poolroom located between Swan Quarter and Engelhard. While
playing pool with Ricky Spencer (Spencer), a paid confidential
informant, defendant motioned for Manning to step outside.
Spencer had previously introduced Manning and defendant to each
other. Once outside, defendant asked Manning was he looking,and Manning stated that he was. Manning understood that
looking was terminology indicating a desire to purchase drugs.
Manning walked with defendant to his light-blue 1994 Dodge
van. Defendant entered the van, rolled down the window, and told
Manning that he had some 20's, pieces of crack cocaine worth
twenty dollars each. Manning stated, I'll take a couple.
Manning and defendant then drove down the road in separate
vehicles. Thereafter, defendant pulled into a driveway, and
Manning pulled onto the side of the road. Manning walked to
defendant's van window, and defendant handed Manning two off-
colored white rock-like substances. Manning handed defendant
two twenty dollar bills, at which time defendant departed in the
direction of Blount's Playground.
After the transaction, Manning contacted Sheriff Mason and
they met at a predetermined location at 9:30 p.m. Manning placed
the substances he purchased from defendant into an evidence bag
that Sheriff Mason was holding. Manning then dictated a
debriefing report. Sheriff Mason wrote down everything Manning
reported. Manning told Sheriff Mason that defendant was wearing
a blue and orange ball cap, a dark blue jacket, blue jeans, and
white tennis shoes. Manning also described defendant as a black
male, approximately 27 years old, 70 inches tall, 160 pounds,
with black hair, brown eyes and a medium build. Manning later
testified that he had no doubt the person who sold him drugs was
defendant.
After completing the debriefing, Manning returned to
Blount's Playground and engaged in a conversation with DarrylSelby (Selby). At approximately 11:00 p.m., Selby asked Manning
to step outside. Once outside, Selby asked Manning if he was
looking. Manning stated that he was looking for a couple of
50's, pieces of crack cocaine worth fifty dollars each. Selby
stated, As soon as my man gets back, I'll take care of you. At
approximately 11:10 p.m., defendant arrived in the same 1994
Dodge van that Manning had seen defendant operating during the
previous drug sale.
After defendant arrived, Selby stated, Wait right here for
me. We have got to go cut it up. Selby and defendant returned
at approximately 11:29 p.m., in the same 1994 Dodge van. Selby
exited the vehicle, walked to Manning and stated, Walk over to
the van. My man C.J.'s got your two 50's. When Manning walked
to the van, defendant handed him a clear, small Ziplock bag
containing two large and three small off-white rock-like
substances. At 11:30 p.m., Manning handed defendant four twenty
dollar bills and two ten dollar bills. After that transaction,
Manning met with Sheriff Mason for another debriefing report at
2:30 a.m. on 16 November 1996.
At trial, Manning testified on cross-examination that he has
an independent recollection of what took place on the evening of
15 November 1996, but he used the notes made by Sheriff Mason to
be absolutely accurate. Defendant's counsel elicited testimony
from Manning that Hyde County is one of the toughest counties to
break into as an undercover informant because dope is sold
out of houses. However, Spencer, a confidential informant, was
able to help him in this regard. Manning further testified thatSpencer introduced him to defendant before the buy and that
Spencer was the only person accompanying Manning on the night he
purchased the drugs. Manning also testified that he was not
shown photos of defendant before the buys, was not wearing any
recording devices, did not use marked bills, and was not frisked
by the Sheriff after the buys.
Defendant presented the following evidence about Manning's
undercover activities and his personal drug use: that Manning
smoked drugs, occasionally smoking drugs with Spencer, and that
Manning purchased drugs from one person but labeled them as
coming from another person.
On redirect examination, Manning testified that it is
difficult to work drugs in Hyde County because people in the
drug trade deal out of residences or make deliveries. Manning
stated that you have to know the drug dealers to work drugs
successfully. Manning also explained that he did not use marked
bills because, in order to maintain his cover and continue the
operation, arrests could not be made immediately after the drug
sales. Manning further testified that he did not give drugs to
Spencer.
[1]In defendant's first assignment of error, he contends
the Court of Appeals erred in affirming the trial court's refusal
to allow Kenneth Johnson (Johnson) to testify as an expert
witness. We disagree.
At trial, defense counsel attempted to tender Johnson, an
employee of Blackmon Detective Services and a retired police
officer of thirty years, as an expert witness in druginvestigation procedures. The trial court did not allow
Johnson's testimony. Defendant argues that the State's entire
prosecution was based on the testimony of Manning and that
defendant should have been able to attack Manning's credibility
by offering expert testimony about undercover police procedures.
During the trial, the following dialogue occurred:
THE COURT: Okay. Mr. Philbeck [defense counsel],
tell me in your own words what you intend to elicit
from this witness.
. . . .
MR. PHILBECK: Your Honor, for our case, and this
is important, and we looked at the actual drug
undercover operation here. Major Johnson has extensive
experience, 30 years of experience in this, and has
taught. His experience I think could be unmatched in
this state. He can talk about the standards of drug
investigations. He can talk about how they operate and
what is a good undercover operation and what is a poor
operation at the buy/sell level, at the informant
level, buy/sell level, from that end. He's been a part
of this. He has extensive experience with
implementation and coordination of five major
undercover operations. These operations consisted of
over 1532 arrests, one million dollar's [sic] worth of
illicit drugs seized, and five hundred thousand
dollar's [sic] worth of stolen property recovered. He
organized and supervised the first major crimes task
force unit while with the Raleigh Police Department.
He has been involved -- he's looked at his own officers
and investigated his own officers. He's brought forth
and investigated corruption with his own organization
from officers who make buys and get so wrapped into it
that they lose sight of what they're there for. He has
extensive professional affiliations and professional
certifications. He is an instructor of criminal
justice training. He's been on numerous committees
which deal[] with law enforcement, the drug
investigation area. And, he has plenty of additional
training, including the Narcotic Unit Commander School,
I'd like to point out, from the University of Georgia.
And, if you look at the purpose of witness testimony,
expert witness testimony, it's to help the jury
understand, and, without Major Johnson testifying as to
certain standards that are important and universal --
it's not just a Raleigh thing; it's for any drugoperation -- he can help that jury understand. Without
him, I can't argue to the jury what was a good
investigation or what was not good from the buy/sell
level, and I got to have [sic] that covered in fairness
to Mr. Mackey as far as what he faces. It goes totally
to our theory of the case and it is very important that
we have that. I'd be glad to submit a resume, if I
could, of the [M]ajor, and you can see what his
background and qualifications are.
THE COURT: Is that all you have?
MR. PHILBECK: Yes, sir.
MR. NORTON [prosecutor]: If Your Honor please,
the question is not what this gentleman did in Raleigh,
whether or not he investigated officers, but the
question is what occurred in this case. He's talking
about some standard that they teach in Raleigh or some
community college that has no relevance to what we are
trying here. He either bought dope from him or he
didn't.
MR. PHILBECK: Your Honor, if I may address the
Court. We have at issue the things like where
Mr. Manning has testified that he had two or three
operations going on at the same time. I don't have my
notes handy right here --
THE COURT: Let me ask you this. Let me cut it to
the chaff [sic]. Mr. Philbeck, I want you to tell me
how this evidence that you're offering is relevant to
the determination of a consequential fact in the
litigation in this case.
MR. PHILBECK: Your Honor, it deals with
standards; it deals with the mentality of Mr. --
THE COURT: That's not a consequential fact. . . .
[Y]ou have got to show that it's relevant to the
determination of a consequential fact in this case. If
you'll just tell me what that is, I'll allow it in. If
you cannot tell me, I won't. I'll have the witness
stand down, and we are going to go on with the case.
MR. PHILBECK: Your Honor, the consequential fact
is whether . . . Mr. Mackey sold drugs to Mr. Manning.
THE COURT: Was this man present?
MR. PHILBECK: No, sir. . . . Mr. Manning
testified as to what he thinks he saw. He gave a
report some three and a half hours later . . . to the
sheriff as to what he saw. He was also handling othercases within . . . that period of time. How do we know
he has the information correct? How do you know he
really saw Mr. Mackey? He testified that he wasn't
really that familiar with Mr. Mackey before.
THE COURT: I just want to interrupt you just a
minute. That is no [sic] consequential fact that's
been mentioned yet. Now, they are all propositions
that you are perfectly capable of submitting to the
jury in a closing argument or elicit from testimony
from people that were present[,] either in direct- or
cross-examination, as you've done very well this
morning. But insofar as this witness is concerned, I
need to know the consequential fact that's going to aid
the jury in the determination of this case.
MR. PHILBECK: And that's it, Your Honor.
Standards. It's not a Raleigh thing, as Mr. Norton
says. It's a universal standard and were they being
met because those standards are to help ensure that the
person that sells the drugs is actually the person who
is charged, and that's a fact of consequence.
THE COURT: Well, Mr. Philbeck, the Court is going
to find that the testimony that you have said that you
want to elicit from this witness, I'm going to find
that that testimony is irrelevant.
Rule 702 of the North Carolina Rules of Evidence governs the
admissibility of expert witness testimony as follows:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion.
N.C.G.S. § 8C-1, Rule 702(a) (1999) (emphasis added).
Defendant argues that the seven-part standard for admission
of expert evidence derived from State v. Huang, 99 N.C. App. 658,
663, 394 S.E.2d 279, 282-83, disc. rev. denied, 327 N.C. 639, 399
S.E.2d 127 (1990), applies in the instant case: (1) the witness'
qualifications include knowledge, skill, experience, training, or
education; (2) the testimony must be helpful to the jury; (3) the
scientific technique upon which the opinion is based must beestablished and recognized; (4) the evidence must be relevant;
(5) the evidence must pass the Rule 403 balancing test; (6) the
evidence may be in the form of an opinion but may not state a
legal conclusion; and (7) expert testimony regarding the
credibility of a witness is not admissible.
We note at the outset that subsection (7) above specifically
provides that testimony regarding the credibility of a witness is
not admissible. See id. at 663, 394 S.E.2d at 283. Nonetheless,
defendant contends that Johnson should have been allowed to
testify for that very purpose.
This Court has previously summarized the Rules of Evidence
governing admission of expert testimony as follows:
Expert testimony is properly admissible when it can
assist the jury in drawing certain inferences from
facts and the expert is better qualified than the jury
to draw such inferences. State v. Evangelista, 319
N.C. 152, 163, 353 S.E.2d 375, 383 (1987). In applying
the rule, the trial court is afforded wide discretion
and will be reversed only for an abuse of that
discretion. Further, under Rule 403 even relevant
evidence may properly be excluded by the trial court if
its probative value is outweighed by the danger that it
would confuse the issues before the court or mislead
the jury. Whether to exclude expert testimony for this
reason also rests within the sound discretion of the
trial court, which will be reversed only for an abuse
of discretion.
State v. Anderson, 322 N.C. 22, 28, 366 S.E.2d 459, 463
(citations omitted), cert. denied, 488 U.S. 975, 102 L. Ed. 2d
548 (1988); accord State v. Harden, 344 N.C. 542, 556, 476 S.E.2d
658, 665 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483
(1997). We have also stated that the 'essential question in
determining the admissibility of opinion evidence is whether the
witness, through study or experience, has acquired such skillthat he is better qualified than the jury to form an opinion on
the subject matter to which his testimony applies.' State v.
Tyler, 346 N.C. 187, 204, 485 S.E.2d 599, 608, cert. denied, 522
U.S. 1001, 139 L. Ed. 2d 411 (1997) (quoting State v. Mitchell,
283 N.C. 462, 467, 196 S.E.2d 736, 739 (1973)).
Applying the foregoing principles to the present case, we
agree with the majority opinion of the Court of Appeals that the
trial court properly excluded the expert testimony proffered by
defendant. The roles of Manning and the Sheriff require no
expert explanation. The jury was perfectly capable of
interpreting the State's evidence about the actions of defendant
and the undercover officer. The Court of Appeals correctly
determined that the jury had the ability, on its own, to assess
the evidence, and that the trial court, therefore, did not abuse
its discretion in excluding the testimony of Johnson. Mackey,
137 N.C. App. at ___, 530 S.E.2d at 309. Moreover, the expert's
testimony would not have assisted the jury and might have
confused the issues and resulted in a trial within a trial. As
the Court of Appeals majority correctly stated:
The only purpose for admitting the proposed
testimony was to challenge the undercover procedures
used by Manning in obtaining the drugs from the
defendant. However, the record already contained
evidence that Manning used the drugs from the buys and
evidence regarding the procedures used in the
undercover drug operation. The jury had the ability,
on its own, to assess Manning's credibility given this
evidence.
Id.
In the instant case, defendant was charged with several
violations of N.C.G.S. § 90-95(a)(1), which makes it unlawful forany person to manufacture, sell or deliver, or possess with
intent to manufacture, sell or deliver, a controlled substance.
N.C.G.S. § 90-95(a)(1) (1999). The essential elements of
N.C.G.S. § 90-95(a)(1) were established by the State's proof of
the following facts: Defendant asked Manning if he wanted to
purchase drugs. Thereafter, defendant sold two pieces of rock-
like substance to Manning for forty dollars. Later that evening,
defendant sold Manning five pieces of rock-like substance in
exchange for one hundred dollars. The substances obtained from
each transaction were later determined to be crack cocaine, a
controlled substance.
Defendant intended to have Johnson testify regarding the
standards of an undercover operation and proper investigative
techniques. Defendant did not, however, intend to elicit
testimony from the proposed expert witness addressing either
material elements of the offenses charged or a material defense.
Based on the above facts, the proposed testimony is irrelevant.
Pursuant to Rule 702, no expert testimony as to the credibility
of Manning would assist the trier of fact to understand the
evidence or to determine a fact in issue. Moreover, [t]his
Court has repeatedly held that N.C.G.S. § 8C-1, Rule 608 and
N.C.G.S. § 8C-1, Rule 405(a), when read together, forbid an
expert's opinion testimony as to the credibility of a witness.
State v. Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 843 (1994),
cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995); see State
v. Aguallo, 318 N.C. 590, 598, 350 S.E.2d 76, 81 (1986).
The fact at issue in the instant case was whether defendantviolated N.C.G.S. § 90-95(a)(1). None of the proposed expert
testimony would have been directed at the proof of this relevant
fact. Moreover, no expert opinion on drug investigation
standards was needed to show that a sale of cocaine took place.
Rather, the proposed testimony would have shifted the focus of
the trial from defendant's activities and sale of drugs to an
irrelevant investigatory process which would potentially confuse
the issues to the jury. We note that the trial court pointed out
that Manning was permitted to testify, not as an expert, but
because he observed the cocaine transactions that led to the
arrest of defendant. Therefore, the trial judge properly
recognized that defendant's challenge to the supposed
deficiencies of the techniques used by Manning did not relate to
any consequential fact in this case.
Assuming arguendo that the expert testimony is the sort
permitted under Rule 702, the trial judge properly exercised his
discretion. As we stated in Anderson, the trial court is
afforded wide discretion in determining the admissibility of
expert testimony and will be reversed only for an abuse of that
discretion. Anderson, 322 N.C. at 28, 366 S.E.2d at 463. No
abuse of that discretion took place in this case. The trial
court's decision was justified on the grounds that the testimony
would not be helpful to the jury's understanding; it was
irrelevant; it had insufficient probative value on the facts to
be proved; and it violated the rule prohibiting expert testimony
on a witness' credibility. Accordingly, this assignment of error
is overruled. [2]In defendant's second assignment of error, he contends
the Court of Appeals erred in finding no error as to the trial
court's refusal of defendant's offer of proof of the testimony of
Johnson. We disagree.
We have recognized that
in order for a party to preserve for appellate review
the exclusion of evidence, the significance of the
excluded evident must be made to appear in the record
and a specific offer of proof is required unless the
significance of the evidence is obvious from the
record. . . . [T]he essential content or substance of
the witness' testimony must be shown before we can
ascertain whether prejudicial error occurred.
State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)
(emphasis added); accord State v. Hamilton, 351 N.C. 14, 19, 519
S.E.2d 514, 518 (1999), cert. denied, __ U.S. __, 146 L. Ed. 2d
783 (2000). Although it is always the better practice to excuse
the jury and complete the record in open court through the words
of the proposed witness, this Court has specifically stated that
there may be instances where a witness need not be called and
questioned in order to preserve appellate review of excluded
evidence. Simpson, 314 N.C. at 370, 372, 334 S.E.2d at 60, 61;
see State v. Chapman, 294 N.C. 407, 415, 241 S.E.2d 667, 672
(1978). We have also stated that while the trial court denied
full offer of proof, it allowed defense counsel to articulate
what defendant's showing would have been by identifying witnesses
and presenting a detailed forecast of evidence for the record.
State v. White, 349 N.C. 535, 567, 508 S.E.2d 253, 273 (1998),
cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999).
In the instant case, the trial court did give defense
counsel several opportunities to describe the content of theproposed testimony at issue. The following dialogue took place
during the trial:
MR. PHILBECK: Okay. Your Honor, respectfully,
could I make the request that you hear from Major
Johnson himself, just a brief synopsis of what he would
testify by way of his offer of proof just to make sure
that we have exactly what he's going to testify to on
the record? If you deny it, Your Honor, that's fine.
I just want to get it on the record that I --
THE COURT: Yes, I understand that. I have asked
you to state -- I assume that you know what your
witness is going to say on the stand. Now, I don't
want to -- you know, to waste my time sitting here
listening to the procedures in Raleigh. I'm not going
to do that.
MR. PHILBECK: It's statewide procedures --
THE COURT: Or statewide procedures -- Now, if
he's going to get up here and say that he waited too
long, three and a half hours is too long, before he
delivered the dope to the sheriff that's irrelevant.
MR. PHILBECK: That's part of what he would say,
Your Honor.
THE COURT: Well, now, what is the other part?
I've asked you to tell me what he's going to say.
MR. PHILBECK: This control mechanism. This whole
case --
THE COURT: Oh, the control mechanism.
MR. PHILBECK: Yes, sir. This whole case revolves
from the State the credibility of Mr. Manning.
THE COURT: What aspects of the control mechanism?
MR. PHILBECK: Whether -- how the drugs, you know,
one theory is that and there's some evidence that
Mr. Manning was sharing some of the drugs or some
drugs, however he received them, at some point in time
from other drug dealers in this area. He denied that.
The procedures that control this are put in place to
prevent that from happening. I think the jury should
hear that.
THE COURT: Mr. Philbeck, the Court is going to
find that that would not assist the jury in any finding
of fact. If the jury determine[s], finds as fact, thatthe undercover agent did in fact share controlled
substances, which they have ample evidence before them
to find if they wish to find that, then how is -- I
think by their own common sense they know that that's
improper and would destroy the credibility of the
undercover agent, and to have somebody to come in and
testify to that, they don't need that. It's not going
to be able to assist them in anything. They already
know that's wrong.
We hold that this dialogue, along with the previously noted
dialogue, is sufficient to establish the essential content or
substance of the witness' testimony, Simpson, 314 N.C. at 370,
334 S.E.2d at 60, as well as its obvious irrelevance. Assuming
arguendo that an offer of proof should have been allowed, we hold
there is no reasonable possibility that the trial court's ruling
affected the result at trial, and any error in this regard was
harmless pursuant to N.C.G.S. § 15A-1443(a). This assignment of
error is overruled.
We conclude that defendant received a fair trial, free from
prejudicial error. For the foregoing reasons, we affirm the
decision of the Court of Appeals.
AFFIRMED.
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