State v. Trueblood

265 S.E.2d 664, 46 N.C. App. 545, 1980 N.C. App. LEXIS 2869
Court of Appeals of North Carolina·Decided May 6, 1980·No. No. 7912SC1173·Published·Cited by 1 cases

Opinion

MORRIS, Chief Judge.

Defendant brings forward and argues in his brief four assignments of error. The first is directed to the denial by the court of defendant’s motion to suppress all evidence against defendant which was, according to defendant, taken in violation of the Posse Comitatus Act. This question was fully discussed and decided against defendant in State v. Trueblood, 46 N.C. App. 541, 265 S.E. 2d 662 (1980). No useful purpose would be served by repeating that discussion here. The resolution of the question against defendant in that companion case involving other transactions and charges resulting from the same investigation is decisive and controlling here. This assignment of error is overruled.

The indictment charged that defendant, on or about 5 March 1979, conspired with one Im Suk Dawson and others to sell and deliver cocaine. Over defendant’s objections, the court admitted evidence which set out chronologically the meeting of Agent Allcox with defendant, the meetings of the conspirators, their trips to New York to purchase cocaine and then the delivery of that cocaine. Defendant assigns as prejudicial error the admission of this evidence contending that the evidence proved the commission of prior criminal acts by defendant and allowed the State to inject into the trial evidence of defendant’s character when he had not raised the issue of character. It is quite true that the evidence tends to show the commission of crimes by defendant and results in a showing of a bad character. Without question the evidence was prejudicial as is true of most evidence against a defendant charged with crime. Nevertheless the court did not commit reversible error in admitting the evidence.

In his discussion of the subject, Professor Brandis, in 1 Stansbury’s N. C. Evidence § 91 (Brandis rev. 1973), p. 288, said:

[547]*547This is commonly supposed to be a somewhat difficult and complex field, marked out by a general rule of exclusion and a series of exceptions. It is submitted, however, that the rule is in fact a simple one which, when accurately stated, is subject to no exceptions: Evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it shows him to have been guilty of an independent crime. (Emphasis added.)

Here the evidence to which defendant objected was clearly admissible to prove “the existence of a plan or design to commit the offense charged. . . .” Id. at § 92, p. 297. See also 1 Jones on Evidence § 162 (5th ed. 1958). The evidence was but a part of a series of transactions carried out by this defendant and his co-conspirators in pursuance of their plan and design to sell and deliver cocaine. In State v. Duncan, 290 N.C. 741, 228 S.E. 2d 237 (1976), defendant was charged with burglary in the first degree and common law robbery. His primary contention on appeal was that State’s witnesses were allowed to testify, over defendant’s objection, with respect to their association with defendant in the commission of other breaking and enterings and thefts in this State and others over a period of two years prior to the occurrence for which defendant was tried. The Court, in finding no error in the admission of the testimony, noted that the general rule prohibits the offering of evidence tending to show that the accused has committed other crimes where he has not taken the stand, and thereby placed his general character and credibility in issue.

However, . . ., numerous exceptions to this rule are also well established. One is that such evidence may be admissible to identify the defendant as a perpetrator of the crime with which he is presently charged. Another is that such evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.

[548]*548290 N.C. at 745, 228 S.E. 2d at 239. See also State v. Forney, 38 N.C. App. 703, 248 S.E. 2d 747 (1978), and cases there cited. This assignment of error is overruled.

It is difficult to ascertain the basis of defendant’s assignment of error No. 3. We find the following in the Record under assignment of error No. 3: “For failure of the Court to sustain defendant’s objections and grant defendant’s motions to strike conclusionary testimony and incompetent testimony concerning the exact nature of suspected controlled substances.” The assignment of error refers to exception Nos. 5, 10, 14, 19, 21 (R. p. 31, 35, 37, 39, 40). On R. pp. 30-31, we find the following:

(Over the objection of Mr. Barfield which was overruled by the Court.) Exception No. 5.
Mr. Allcox stated that on January 29th he met with Trueblood and Dawson at the restaurant. Christopher Russell accompanying Agent Allcox to the restaurant. Major True-blood was seated beside me in the booth. During the meal the conversation with Chris Russell, Major Trueblood asked where was the cocaine. Chris Russell stated that the two ounces of cocaine was in his boot. At this time Chris Russell stomped his foot under the booth where I and Major True-blood were seated and Major Trueblood removed the plastic bag containing 2 ounces of cocaine. At that time he handed me the package containing the cocaine and I put it in my pocket. We then left the restaurant and myself, Chris Russell, Major Trueblood and Im Suk Dawson got into my vehicle. At that time I paid Major Trueblood the sum of fourteen hundred fifty dollars, twelve hundred of it was for marijuana he had given me on Friday. Two hundred and fifty was for the cocaine over three thousand dollars I had paid him on Friday.

Rule 9(c)(1), North Carolina Rules of Appellate Procedure, provides:

Where error is assigned with respect to the admission or exclusion of evidence, the question and answer form shall be utilized in setting out the pertinent questions and answers”,

and Rule 10(b)(1) requires that

[549]*549[e]ach exception shall be set out immediately following the record of judicial action to which it is addressed and shall identify the action, without any statement of grounds or argumentation, by any clear means of reference.”

It is abundantly clear that defendant has failed to comply with these rules.

If defendant’s position is that at these places in the trial the court allowed the witness to refer to a substance as cocaine without qualification as an expert, the defendant did not request a finding by the court with respect to the witness’s expertise and gave no ground for his general objection. In any event, no prejudice resulted in view of the subsequent testimony of the chemist that the substance was indeed cocaine.

This assignment of error is without merit and overruled.

Finally, defendant urges that the court should have granted his motion to dismiss the conspiracy charges because there was insufficient evidence to go to the jury. This assignment of error is also without merit.

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State v. Trueblood, 265 S.E.2d 664, 46 N.C. App. 545, 1980 N.C. App. LEXIS 2869 (N.C. Ct. App. 1980).

265 S.E.2d 664 (State v. Trueblood) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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