112 N.C. App. 410 | N.C. Ct. App. | 1993
Defendant Jerry Glenn Baker was indicted on 24 June 1991 in a two count bill of indictment on the charges of trafficking in cocaine by possessing at least 200 grams but less than 400 grams of cocaine and conspiring to commit the felony of possession of at least 200 grams but less than 400 grams of cocaine. A jury found defendant not guilty on the charge of trafficking in cocaine by possessing at least 200 grams but less than 400 grams of cocaine, and guilty on the charge of conspiring to commit the felony of possession of at least 200 grams but less than 400 grams of cocaine. Defendant filed notice of appeal to this Court.
Evidence presented by the State tended to show the following: Witnesses Harry Robert Gautier and Donald Ray Thompson had histories of dealing in illegal drugs; they formed a partnership in 1988 for the purpose of buying and selling cocaine, splitting
Gautier spoke with defendant in late 1989 and told defendant that he and Thompson were no longer dealing in small amounts of cocaine and that defendant should contact Hugh Earl Stroud if he wanted small amounts of cocaine.
Gautier saw defendant at the County Line Grocery sometime in early November 1989. At that time, Gautier told defendant that Gautier would sell defendant a quarter kilogram
In early 1990, Gautier and Thompson were arrested and charged with various drug-related offenses. Gautier and Thompson testified that they agreed to provide substantial assistance to the State in return for special consideration for their assistance at their sentencing hearing. As part of this assistance, Thompson and Gautier went to visit with defendant on 30 May 1990, at which time Thompson wore a concealed tape recorder. While at defendant’s home, Thompson, Gautier and defendant conversed concerning drug transactions, including the purchase of the quarter kilogram of cocaine which defendant made from Gautier and also concerning the possibility of defendant getting Thompson and Gautier some cocaine from Bill Moyers. Thompson and Gautier later delivered this tape to
At trial, Thompson and Gautier both identified the tape and listened to it, testifying that the tape was a fair and accurate recordation of the conversation they held with defendant. Bill Moyers also testified at trial for the State.
Officer Best testified the tape was the one used to record the conversation between the defendant, Thompson and Gautier. He further testified the tape had been in his exclusive care and custody from 30 May 1990 until the date of trial.
A voir dire hearing was held during which Steven G. Surratt from the North Carolina State Bureau of Investigation gave testimony concerning the authentication of a transcript of a tape. Surratt testified the transcript presented by the State of the taped conversation between the defendant, Thompson and Gautier was a fair and accurate rendition.
The tape was played for the jury and the jury was provided with copies of the transcript in order to follow the tape. The defendant did not introduce any evidence.
In response to defendant’s pre-trial motions for discovery of his statements in possession of the State, defendant was given a one page statement of four paragraphs. Each paragraph was a separate statement by different persons (Thompson, Gautier, and two statements by Moyers) as to statements made by the defendant or involving the presence of the defendant. During jury selection, the State gave defendant excerpts from grand jury testimony given by these witnesses as to these statements. At trial, these witnesses testified to the contents of these statements as well as other statements.
A voir dire hearing was held at trial on defendant’s request to determine whether there existed statements of defendant which had not already been provided to defendant and which should have been provided pursuant to North Carolina General Statutes § 15A-903(a)(2) (1988). The trial court found “as a matter of law . . . the District Attorney, in compliance with G. S. 15A-903(a)(2) of the North Carolina General Statutes has complied with the statute in divulging the substance of any oral statements relative to the subject matter of the case made by the defendant, regardless of to whom the statement is made.” Later in the proceeding, the
Defendant first argues the trial court committed prejudicial error when it denied defendant’s repeated discovery requests which were made at trial pursuant to North Carolina General Statutes § 15A-903 on the grounds that defendant, by the clear wording of the discovery statute, was entitled to the material requested.
North Carolina General Statutes § 15A-903 provides in pertinent part:
(a) Statement of Defendant. — Upon motion of a defendant, the court must order the prosecutor:
(2)To divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody or control of the State, the existence of which is known to the prosecutor or becomes known to him prior to or during the course of trial[.]
(f) Statements of State’s Witnesses:
(2) After a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the State to produce any statement of the witness in the possession of the State that relates to the subject matter as to which the witness has testified. If the entire contents of that statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
(3) If the State claims that any statement ordered to be produced under this section contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the State to deliver that statement for the inspection of the court in camera. Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness. With*415 that material excised, the court shall then direct delivery of the statement to the defendant for his use. If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and if the trial results in the conviction of the defendant, the entire text of the statement shall be preserved by the State and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to á defendant pursuant to this subsection, the court, upon application of the defendant, may recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial.
(5) The term “statement,” as used in subdivision (2) [and] (3) . . . in relation to any witness called by the State means
a. A written statement made by the witness and signed or otherwise adopted or approved by him;
b. A stenographic, mechanical, electrical or other recording, or a transcription thereof, that is a substantially verbatim recital or an oral statement made by the witness and recorded contemporaneously with the making of the oral statements.
In State v. Brown, 306 N.C. 165, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed.2d 642 (1982), our Supreme Court made reference to State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977), in which the Court “established the rules for our trial courts to follow in instances where a specific request is made at trial for disclosure of evidence in the State’s possession that is obviously relevant, competent and not privileged.” Brown, 306 N.C. at 165-66, 293 S.E.2d at 579. The Court in Brown went on to note that Justice Copeland in Hardy stated “justice requires the judge to order an in camera inspection when a specific request is made at trial for disclosure of evidence in the State’s possession that is obviously relevant, competent and not privileged. The relevancy for impeachment purposes of a prior statement of a material State’s witness is obvious.” Id. (Citations omitted.)
Defendant next argues the trial court erred when it denied defendant’s motion to dismiss on the ground the conspiracy charge merged into the trafficking charge, and on the ground there was insufficient evidence presented by the State on both charges.
A conspiracy is an agreement between two or more persons to commit an unlawful act or to commit a lawful act in an unlawful way. State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986). It is well established that the crime of conspiracy does not merge into the substantive offense which results from the conspiracy’s furtherance and that a defendant may be properly sentenced for both offenses. State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980). “To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object; rather, a mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense. The conspiracy is the crime and not its execution.” State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978). An overt act is not necessary to complete the crime of conspiracy; “[a]s soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete.” Id.
Further, “[i]t is well-established that the testimony of a co-conspirator is competent to establish a conspiracy[.]... In considering a motion to dismiss, the trial court is concerned only with the sufficiency of the evidence, not with the weight of the evidence.” Lowery, 318 N.C. at 71, 347 S.E.2d at 741 (citations omitted). We find the testimony of co-conspirator Gautier was sufficient to withstand defendant’s motion to dismiss on the ground there was insufficient evidence of the charge of conspiracy presented by the State.
Defendant next argues the trial court committed prejudicial error when it denied the defendant’s request that the jury be instructed on lesser included offenses.
“The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed.” State v. Siler, 66 N.C. App. 165, 166, 311 S.E.2d 23, 24, aff’d as modified, 310 N.C. 731, 314 S.E.2d 547 (1984). “When the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element, no instruction on a lesser included offense is required.” State v. Hall, 305 N.C. 77, 84, 286 S.E.2d 552, 556 (1982); see also State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979). Applying these rules to the facts herein, we note the tape of the conversation at defendant’s home
Defendant next contends the trial court erred when it allowed the tape of alleged statements made by the defendant and a transcript of the tape into evidence on the grounds the tape was not properly authenticated, and was acquired by violation of the state and federal constitutional rights of the defendant.
The tape was authenticated pursuant to North Carolina General Statutes § 8C-1, Rule 901 (1992), which reads:
(a) General provision. — The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. — By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(5) Voice Identification. — Identification of a voice, whether heard firsthand or through mechanical or electronic transmis- - sion or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
Our Supreme Court has stated “[ujnder Rule 901, testimony as to accuracy based on personal knowledge is all that is required to authenticate a tape recording, and a recording so authenticated is admissible if it was legally obtained and contains otherwise competent evidence.” State v. Stager, 329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991). The facts herein show that at trial, Thompson and Gautier both identified the tape and listened to it, testifying that the tape was a fair and accurate recordation of the conversation they held with defendant. This was sufficient to meet the State’s burden of authentication.
We choose not to address defendant’s constitutional argument, as this argument was not raised in the trial court.
In the trial of defendant’s case, we find no error.
No error.
. A half ounce is approximately fourteen (14) grams.
. A quarter kilogram is approximately 250 grams.