State v. Stallings

• Decision Date: 21 April 2020
• Docket Number: No. COA19-636,COA19-636
• Citation: 843 S.E.2d 310,271 N.C.App. 148
• Parties: STATE of North Carolina v. Kenneth Christopher STALLINGS, Defendant.
• Court: North Carolina Court of Appeals

271 N.C.App. 148

843 S.E.2d 310

STATE of North Carolina

v.Kenneth Christopher STALLINGS, Defendant.

No. COA19-636

Court of Appeals of North Carolina.

Filed: April 21, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Benjamin T. Spangler, for the State.

Daniel J. Dolan, for Defendant-Appellant.

INMAN, Judge.

Defendant Kenneth Christopher Stallings ("Defendant") appeals from a judgment entered following a jury verdict finding him guilty of possession with intent to sell or deliver marijuana, possession of marijuana drug paraphernalia, and trafficking in methamphetamine. On appeal, Defendant contends that the trial court: (1) lacked subject matter jurisdiction to try him on the charge of trafficking in methamphetamine because the relevant charging document—an information superseding an earlier indictment—was not filed prior to trial; and (2) committed plain error in failing to give a jury instruction on guilty knowledge sua sponte . After careful review, we hold that Defendant has failed to demonstrate reversible error.

I. FACTUAL AND PROCEDURAL HISTORY

The evidence at trial tends to show the following:

On the afternoon of 19 September 2017, Officer Senaria Smith of the Greensboro Police Department responded to a call from a security company about a possible break-in at a house on Gatewood Avenue. When she arrived at the home, she heard a noise from inside and noticed that the side door had been forced open. Concerned that a person could still be in the home, Officer Smith drew her sidearm and called for backup.

Additional officers arrived a short time later and conducted a protective sweep of the house. In the course of the sweep, Officer Smith observed a scale and narcotics on the kitchen counter, a plastic bag with a crystalline substance on the floor, and a hole in the laundry room wall with plastic baggies inside.

Defendant arrived at the house as police were leaving. Officer Smith asked him if he lived there. Defendant replied that he did and stated that he had a roommate named "Michael—uh—Smith."

Police informed Defendant that officers had found evidence of narcotics in plain view during their protective sweep. Defendant responded by asking, "More than weed?" When the officers described the additional narcotics, Defendant said, "I don't know about all that." He then told police that he was trying to call Michael Smith.

Defendant cooperated with police and signed a form consenting to a search of the home. In the bedroom Defendant identified as his roommate's, Officer Smith found a stack of paperwork bearing only Defendant's name. A Greensboro drug and vice detective, Harvey Harris, arrived a short time later to assist Officer Smith. Detective Harris observed two substances—one crystalline and the other consistent with marijuana—on the scale on the kitchen counter. Next to the scale, Detective Harris saw a bag containing a crystalline substance inside a pill bottle bearing Defendant's name. He also observed plastic bags, including a bag of marijuana, nearby, as well as a marijuana cigarette in the ashtray of the living room. Searches by other officers turned up another bag of marijuana in a bedroom. Detective Harris also located the plastic bag that Officer Smith had seen on the floor of the laundry room and noticed it contained a crystalline substance.

Detective Harris asked Defendant who lived there. Defendant confirmed that his name was on the lease and utility bills. Detective Harris further questioned Defendant about the crystalline substances which appeared to be methamphetamine, and Defendant said he and Michael Smith both stayed there. Detective Harris asked Defendant for a picture of Michael Smith, which he was unable to provide. Defendant stated that Michael Smith's phone had been cut off, and that he did not know any of his roommate's friends or relatives. He denied dealing in methamphetamines or any illegal narcotics but admitted to smoking marijuana.

Asked to identify items in the house belonging to his roommate, Defendant was unable to specifically identify anything other than a green toothbrush with a travel cap located in the bathroom. The officers concluded their search of the house after recovering the following items: (1) the plastic bag from the laundry room floor, which contained methamphetamine; (2) the clear plastic bags in a cut out area of the laundry room wall; (3) the digital scale with marijuana and a crystalline substance; (4) the pill bottle with Defendant's name on it and a bag of methamphetamine inside; (5) the bag of marijuana and a box of plastic bags on the kitchen counter; (6) the marijuana roach in the living room; (7) a bag of marijuana from one of the bedrooms; (8) $1,247 in cash in a bedroom closet; (9) the paperwork with Defendant's name on it; (10) Defendant's phone; (11) an additional iPhone from one of the bedrooms; and (12) a tablet computer that Defendant claimed as his. Defendant was taken into custody following the search, and Officer Smith and Detective Harris both recorded the above events with body cameras.

Following Defendant's arrest, police searched Defendant's phone and discovered text messages that indicated Defendant sold marijuana. Lab reports later confirmed that the substance found in the plastic bag in the laundry room was methamphetamine. Officers continued to monitor Defendant's home for two weeks following the break-in in an attempt to locate and identify Michael Smith; those efforts ultimately proved unsuccessful, and no person named "Michael Smith" was ever located.

A Guilford County grand jury returned two indictments on 19 February 2018. The first indictment, filed in file number 17 CRS 86100, charged Defendant with one count each of trafficking in MDMA and maintaining a dwelling for keeping and selling MDMA; the second indictment, filed in file number 17 CRS 86101, charged him with one count of possession with intent to sell marijuana and one count of possession of marijuana paraphernalia. Both cases came on for trial on 7 January 2019 and were consolidated at the outset of proceedings.

The trial court called in prospective jurors and questioned them about any undue hardships warranting deferral of jury service. It next informed the venire of the charges brought against Defendant, the date of the alleged offenses, and Defendant's plea of not guilty. The trial court sat twelve potential jurors in the jury box and asked if they had any connection with the judge, the attorneys, Defendant, and any potential witnesses. It then turned the voir dire questioning over to the State, but the prosecutor instead requested a bench conference. The trial court excused the venire, at which point the prosecutor pointed out that the allegations in the indictment in file number 17 CRS 86100 concerned MDMA rather than the methamphetamine ultimately shown on the lab reports:

[THE STATE]: [T]he substance in the lab report is methamphetamine. It is not 3, 4-MDMA, which is what was identified.

....

Now, at this point, we have two choices: I can dismiss that charge, because we have not impaneled a jury, and I can reindict and [have] Mr. Stallings go through the arrest process again, or I — or we can do it on a bill of information. However, Your Honor knows and his attorney knows, that's totally up to Mr. Stallings at this point.

....

[DEFENDANT'S COUNSEL]: Like [the prosecutor] ... I have been prepping this thing about a month, and I read that twice as well, several times. And it is what it is. I would like an opportunity just to step back in the conference room and talk to my client with regard to the options in the case. I think the options that [the prosecutor] stated in open court are accurate.

THE COURT: [Defendant's counsel], you take all the time you need.

Over an hour later, the parties returned to the courtroom and proceedings resumed. Defendant's counsel informed the Court that, after discussing their options and "the risks and benefits of both the bill of information and a delay," Defendant agreed to proceed by information charging him with trafficking methamphetamine and had signed a waiver of indictment and statutory notice normally required for the new charge. The trial court pointed out that it had previously denied Defendant's pre-trial motion for a continuance and recusal and noted that Defendant would essentially receive that relief if he decided against waiving reindictment. Defendant's counsel confirmed on the record that his client nonetheless wished to proceed on the information. Consistent with that understanding, the prosecutor read into the record the allegations in the new bill of information—charging Defendant with only one count of trafficking methamphetamine—and informed the court that "at the same time, I'll be filing a dismissal in the MDMA [indictment]."

With the new information in hand, the trial court called the prospective jurors back into the room and informed them of the new charge. Following jury selection, the jury was empaneled, and the trial proceeded in ordinary fashion. Officer Smith and Detective Harris both testified to their experiences with Defendant on the day of the break-in, and the footage from their body cameras was submitted into evidence during the State's presentation. Defendant did not testify in his defense, but he did call a man named Tyrone Brown as a witness. Mr. Brown testified that he: (1) was the roommate that lived in the house with Defendant; (2) had brought the methamphetamine into the house without Defendant's knowledge; and (3) hid the methamphetamine in the laundry room and pill bottle. When asked what room he stayed in, Mr. Brown testified "all of them[,]" and testified that he kept clothes in closets in both rooms.

After the close of evidence and during the jury charge, the trial court gave the standard instruction on narcotics trafficking, which did not include any specific instruction on guilty knowledge. The jury ultimately convicted Defendant on all counts. Defendant now appeals.

II. ANALYSIS...