Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/25/2022
E.g., 09/25/2022

In this Mecklenburg County case, defendant appealed his convictions for possession and sale of cocaine. Defendant argued that the trial court erred by (1) admitting testimony from State’s expert that in his opinion, the State’s exhibit was cocaine, (2) in instructing the jury regarding actual and constructive possession, and (3) failing to conditionally discharge the defendant due to his lack of prior convictions. The Court of Appeals found no error with (1) and (2), but remanded to the trial court for resentencing because defendant was eligible for conditional discharge.

In 2018 a confidential informant told an officer of the Charlotte-Mecklenburg Police Department that defendant was selling cocaine in the Charlotte area. Officers opened an investigation and set up a purchase of cocaine from defendant. In February of 2018, an officer purchased what appeared to be cocaine from defendant. After testing the substance, police arrested defendant and he was indicted on charges related to trafficking and sale of cocaine.

Reviewing defendant’s first issue on appeal, the court applied a plain error standard because defendant did not object to the expert’s opinion at trial. At trial the expert witness did not testify about the methodology of his “chemical analysis,” but did state that in his opinion, the substance in question was cocaine. Slip Op. at ¶11. Defendant argued that this did not meet the reliability test under by Rule of Evidence 702(a). Examining applicable precedent, the court explained “even assuming . . . that it was error for the trial court to allow [State’s expert] to testify that, in his opinion, the substance he tested was cocaine, the error did not amount to plain error because [State’s expert] testified that he performed a chemical analysis and testified to the results of that chemical analysis.” Slip Op. at ¶14, citing State v. Sasek, 271 N.C. App. 568 (2020).

Turning next to defendant’s argument about constructive possession, the court explained that even if the theory of constructive possession was not justified by the evidence admitted, overwhelming evidence in the record supported that defendant had actual possession of the cocaine. The court noted that “[t]he evidence of [d]efendant’s actual possession of the cocaine was sufficient to support [d]efendant’s convictions,” meaning defendant could not show plain error even if the instruction was an error by the trial court. Slip Op. at ¶17.

The court found merit in defendant’s final argument regarding conditional discharge, justifying a remand to the trial court for resentencing. Discussing the applicable statute, the court explained “according to the language of N.C.G.S. § 90-96(a), a trial court must place an eligible defendant under a conditional discharge, unless the trial court determines with a written finding . . . that the offender is inappropriate for a conditional discharge for factors related to the offense.” Slip Op. at ¶21. Here, the State argued that defendant’s “same-day conviction” for sale of cocaine made him ineligible for conditional discharge. Slip Op. at ¶22. The question of what “previously been convicted of” means for purposes of N.C.G.S. § 90-96(a) is not defined by statute. The court examined similar statutes and applicable precedent, arriving at the reasoning in a similar situation from State v. West, 180 N.C. App. 664 (2006), that joined convictions should not be considered as a prior conviction when applying N.C.G.S. § 90-96(a). Slip Op. at ¶29. Because N.C.G.S. § 90-96 calls for an opportunity to discuss defendant’s suitability for conditional discharge, and this was not done in defendant’s sentencing, the court vacated the conviction and remanded for a new resentencing hearing.  

In this case involving convictions for, among other offenses, sale of cocaine and delivery of cocaine, the trial court did not commit plain error in its application of G.S. 90-95 and in sentencing the defendant.  At sentencing, the trial judge arrested judgment on the conviction of delivering cocaine, a Class H felony, and consolidated other convictions into the single count of selling cocaine, a Class G felony.  On appeal the defendant argued that G.S. 90-95, which generally punishes the sale of cocaine more severely than the delivery of cocaine, is ambiguous as to the appropriate punishment for a judgment based on the “sale or delivery” of cocaine and that the rule of lenity requires that the lesser punishment be imposed.  Taking note of the North Carolina Supreme Court’s decision in State v. Moore, 327 N.C. 378 (1990) establishing that a defendant may not be convicted of both the sale and the delivery of a controlled substance when both offenses arise from a single transfer, the court held that the purpose of Moore was accomplished here by the trial judge arresting judgment on the delivery of cocaine conviction and that the defendant did not show that plain error occurred.

(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other individuals showed up to execute it. The defendant and the others were arrested when they produced what appeared to be cocaine during the drug transaction. The State proceeded on the acting in concert theory. The officer had twice purchased cocaine from the target at a Bojangles restaurant in Warsaw, North Carolina. He contacted the target again for a third purchase and the target agreed to sell him one ounce of cocaine for $1200 at the same location. When the officer arrived, the defendant and the other men appeared in a vehicle and waved the officer over to their car. The target told the officer by phone “them are my boys, deal with them” and hung up. One of the men in the car displayed a bag of white powder, which was weighed and determined by the men to be one ounce. The men then were arrested, before an actual delivery of the substance or exchange of money occurred. The white powder was later determined to be counterfeit cocaine. This was sufficient evidence of transferring a counterfeit controlled substance under both the attempted sale and delivery theories of transfer.

(2) When a defendant both sells and delivers a counterfeit controlled substance as part of the same transaction, only one conviction may obtain. The focus of the offense is a transfer, committed either by sale or delivery. Here, the defendant was improperly convicted of two offenses—attempted sale and attempted delivery—arising from a single transfer. However because the defendant did not raise the issue on appeal, it was not before the court. The court however noted that the defendant could raise the issue in a Motion for Appropriate Relief.

The trial court erred by sentencing the defendant for both selling marijuana and delivering marijuana when the acts occurred as part of a single transaction. 

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

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