State v. Davenport, No. COA06-1092 (N.C. App. 9/4/2007)
| Decision Date | 04 September 2007 |
| Docket Number | No. COA06-1092,COA06-1092 |
| Parties | STATE OF NORTH CAROLINA v. TIMOTHY DOUGLAS DAVENPORT. |
| Court | North Carolina Court of Appeals |
William D. Auman for Defendant.
On 21 April 2006, a jury found Timothy Douglas Davenport ("Defendant") guilty of selling or delivering cocaine, possession with intent to sell or deliver cocaine, and being an habitual felon. The Honorable Nathaniel J. Poovey entered judgment on 23 April 2006 and sentenced Defendant to a minimum term of 120 months and a maximum term of 153 months in prison. Defendant appealed in open court upon entry of the judgment.
At trial, the State's evidence tended to show that on 19 January 2005, Officer Chris Howington and other Shelby Police Department ("S.P.D.") narcotics detectives were conducting controlled narcotics buys with the aid of a confidential and reliable informant, Winnifred Pettis ("Pettis"). Before each controlled buy, the officers searched Pettis's car and body, gave him money for the buy, and then wired him with an audio and video camera. The audio was real time, allowing the officers to hear what was being said as the buy occurred. The video was viewed later. The officers directed Pettis where to go to make the narcotics purchases.
On 19 January 2005, Defendant was not the intended target of the undercover purchase. However, the targeted seller was not home, and Pettis was not able to make the purchase as directed by the S.P.D. officers. As Pettis was about to leave the intended target's home, Defendant "flagg[ed] [Pettis] down" and entered Pettis's car. Defendant and Pettis knew each other from the local community college. Pettis informed Defendant that he wanted to purchase $20.00 worth of crack cocaine. Pettis and Defendant returned to Defendant's house. At the house, Defendant went into a back room to retrieve the cocaine, and upon exiting the back room, the men completed the drug sale.
While Defendant's attorney was cross-examining Officer Howington, the following exchange occurred:
Defendant's counsel: . . . How many days prior to that had you been involved in this operation?
Officer Howington: We do controlled buys. We just go out and make buys . . . . We had made previous buys from Mr. Davenport — Defendant's counsel: Objection. Move to strike and move for a mistrial.
The Court: Objection overruled. Motion to strike denied. Motion for a mistrial denied.
Officer Howington's testimony continued, and when his testimony concluded, Defendant's attorney renewed his objection and motion for mistrial based on the reference to previous buys made from Defendant.1 In opposition to the motion for mistrial, the State argued, out of the presence of the jury, that mistrial was not appropriate because nothing was mentioned about Defendant's prior convictions or criminal record, and Officer Howington "thought he was making a genuine response to [the] question." After reviewing the transcript, the trial court ruled that Officer Howington's reply was not responsive to the question. The court then sustained Defendant's objection. However, Defendant's attorney refused a limiting instruction offered by Judge Poovey directing the jury to disregard the comment. Judge Poovey again denied Defendant's motion for a mistrial, concluding the error was not "so prejudicial that it would require a mistrial at this time." Upon the court's denial of the motion for mistrial, under Rule 404(b) of the North Carolina Rules of Evidence, the State offered further testimony from Officer Howington and other witnesses about another controlled buy made from Defendant on 13 January 2005.2 Unlike the buy on 19 January, where Defendant sought out Pettis on the street, on 13 January Pettis suggested to the S.P.D. officers that he should go to Defendant's home to attempt to make a drug purchase. Pettis knocked at Defendant's door and told Defendant that he wanted to buy $40.00 worth of crack cocaine. Defendant went into his bedroom, shut the door, and soon came out with the cocaine. Upon his return, the men completed the narcotics sale. To guard against prejudice to Defendant, the trial judge instructed the jury that evidence of the previous drug buy was admitted solely for the purpose of showing that Defendant had the intent and common plan to commit the crime with which he was charged. The judge specifically instructed that the evidence was not offered to show that Defendant had a general propensity to commit the crime.
Officer Scott Champion, who was the officer responsible for wiring Pettis with the audio and video equipment during the 19 January 2005 buy, also testified. He stated that while it was possible for Pettis to manipulate the equipment, Pettis did not do so. Pettis testified about the events on 19 January 2005 and denied manipulating the audio and video equipment. On cross—examination, Pettis admitted using drugs until he received treatment in 2004. He denied using drugs while working as an informant. He also admitted previous convictions for misdemeanor breaking and entering and possession of stolen goods.
At the close of the evidence, Defendant's attorney made a motion to dismiss based on the sufficiency of the evidence. The trial judge denied this motion. The jury found Defendant guilty of possession with intent to sell or deliver cocaine, and selling or delivering cocaine. The jury then heard testimony from Assistant Clerk of Court Brenda Day, who recounted Defendant's prior felony convictions from 26 September 1995, 3 December 1999, and 26 June 2000. Defendant thereupon moved to dismiss the habitual felon charge, and Judge Poovey denied the motion. Defendant was then found guilty of being an habitual felon. From the judgment entered upon these convictions, Defendant appeals. For the reasons stated herein, we hold that Defendant received a fair trial, free of error.
As a threshold matter, we must address the State's argument that Defendant's appeal should be dismissed for failure to comply with Rules 28(b)(5) and 28(b)(6) of the North Carolina Rules of Appellate Procedure. Specifically, the State asserts that Defendant's brief fails to comply with the mandates of the Rules because Defendant provided an incomplete and misleading statement of the facts and because Defendant failed to provide the applicable standard of review for two of the three questions presented. Rule 28(b)(5) requires that an appellant's brief contain a "full and complete . . . summary of all material facts underlying the matter in controversy which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be." N.C. R. App. P. 28(b)(5). The State contends that Defendant's brief does not comply with Rule 28(b)(5) because the statement of the facts fails to indicate that certain testimony at issue on appeal was elicited on cross-examination and because Defendant neglected to address the curative instruction offered by the trial court. We disagree. Although Defendant's brief does not provide an exhaustive statement of the facts, and although we are troubled by Defendant's inaccurate representation concerning Officer Howington's testimony and omission of the offered curative instruction, we hold that Defendant's brief contains minimally sufficient information from which this Court can "understand all questions presented for review[.]" Therefore, Defendant's brief complies with Rule 28(b)(5), and Defendant's appeal is not subject to dismissal on this basis.
The State next argues that two of Defendant's arguments should be dismissed because Defendant failed to address the standard of review, in violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. While we agree with the State that Defendant's brief does not comply with Rule 28(b)(6), we conclude that this violation does not warrant dismissal.
Rule 28(b)(6) states in pertinent part that [t]he argument shall contain a concise statement of the applicable standard(s) of review for each question presented, which shall appear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented.
N.C. R. App. P. 28(b)(6). In State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (quotation marks and citations omitted), our Supreme Court recognized that "[i]t is well settled that the Rules of Appellate Procedure are mandatory and not directory." However, the Court concluded that not "every violation of the rules . . . require[s] dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure." Id. Rule 34(b)(3) allows a Court of the appellate division to impose "any other sanction deemed just and proper" when there has been a violation of the appellate rules. N.C. R. App. P. 34(b)(3).
In his first argument, Defendant contends that the standard of review when this Court examines a trial court's decision to deny a motion for a mistrial is an abuse of discretion. However, Defendant fails to define "abuse of discretion." Even more concerning is Defendant's treatment of his next argument through which he attacks the propriety of the trial court's decision to admit in evidence, under Rules 403 and 404(b) of the North Carolina Evidence Code, testimony regarding Defendant's prior drug sale. While Defendant cites case law that has interpreted each Rule and provides analogous cases that...
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