State v. Mackey

• Decision Date: 06 October 2000
• Docket Number: No. 244A00.,244A00.
• Citation: 352 N.C. 650,535 S.E.2d 555
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charlie James MACKEY.

535 S.E.2d 555

352 N.C. 650

STATE of North Carolina v. Charlie James MACKEY.

No. 244A00.

Supreme Court of North Carolina.

October 6, 2000.

Michael F. Easley, Attorney General, by Douglas A. Johnston, Special Deputy Attorney General, for the State.

Steven P. Rader, Washington, 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 all charges, 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 Darryl Selby (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 that Spencer 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.

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 drug investigation 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 drug operation—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

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