State v. Ward
| Decision Date | 18 August 2009 |
| Docket Number | No. COA08-978.,COA08-978. |
| Citation | 681 S.E.2d 354 |
| Parties | STATE of North Carolina v. Jimmy Waylon WARD. |
| Court | North Carolina Court of Appeals |
Paul F. Herzog, Fayetteville, for Defendant.
Jimmy Waylon Ward (Defendant) appeals a judgment entered 14 January 2008 based upon his convictions for six counts of trafficking in opium based on indictments returned in File Nos. 06 CrS 60670 and 06 CrS 60685,1 and single counts of intentionally maintaining a dwelling for keeping or selling controlled substances,2 possession of cocaine, and intentionally maintaining a vehicle for the keeping or selling controlled substances, which reflected charges set out in the first, second, and third counts of the indictment returned in File No. 06 CrS 60686.3 The trial court's judgment also reflected a jury verdict convicting Defendant of possession of Ritalin with the intent to sell or deliver, possession of Xanax with the intent to sell or deliver, and possession of Valium with the intent to sell or deliver, which were charged in the first, second, and third counts of the indictment returned in File No. 06 CrS 60687, and possession of drug paraphernalia, which was charged in the fourth count of the indictment returned against Defendant in File No. 06 CrS 60689. The jury also convicted Defendant of possessing Oxycodone with the intent to sell or deliver, which was charged in the third count of the indictment returned in File No. 06 CrS 60688.4 After accepting the jury's verdict, the trial court arrested judgment in connection with Defendant's conviction for possessing Oxycodone with the intent to sell or deliver. The trial court consolidated all of the remaining charges for judgment5 and imposed an active term of ninety to one hundred and seventeen months imprisonment in the custody of the North Carolina Department of Correction as required by N.C. Gen.Stat. § 90-95(h)(4)b. The trial court also required Defendant to pay a $100,000.00 fine. From this judgment, Defendant appeals.
We grant Defendant a new trial on certain charges based on our belief that the trial court erred by (1) allowing the admission of evidence relating to prior bad acts for which Defendant had been acquitted and (2) admitting testimony identifying certain drugs as controlled substances based on a visual identification process. As a result, we remand this case to the trial court for a new trial on certain charges and modification of the judgment entered against Defendant to reflect the outcome of any new trial conducted with respect to these charges and any other corrections that should be made to the judgment in light of our decision.
On 22 August 2006, Mandy Pope (Pope) visited the New Hanover County Sheriff's Office for the purpose of discussing Defendant's drug-related activities with law enforcement officers. Pope had known Defendant for approximately two and one-half years, and had purchased prescription pain medications for her own use and that of her mother from him on a regular basis.
At the request of Officer Chris Robinson (Officer Robinson), Pope telephoned Defendant and arranged to meet him for the purpose of buying pain medications. Pope was provided with a recording device, which she carried in her purse, and $300, part of which was to be used in her transaction with Defendant.
Officer Nancy Willaford (Officer Willaford) accompanied Pope to Carolina Beach Exxon in a minivan. Defendant met them there in a black Monte Carlo. Pope got out of the minivan and entered the car driven by Defendant, while Officer Willaford stayed in the minivan.
Following a short conversation with Pope, Defendant exited the Monte Carlo and opened the trunk. Upon returning to the passenger compartment, Defendant sold thirty blue, oval-shaped pills to Pope for $180. Pope testified that the pills she purchased from Defendant were Lorcets. Before leaving, Pope agreed to meet Defendant for sex in an hour.
After Defendant drove away, Pope and Officer Willaford returned to the New Hanover County Sheriff's Office. The thirty blue, oval-shaped pills that Pope received from Defendant were turned over to the officers. At that point, Officer Robinson procured a warrant for Defendant's arrest. A search warrant for Defendant's home, which was located at 6514 Myrtle Grove Road, was issued on the following day.
As investigating officers undertook surveillance of Defendant's home, Officer Robinson identified Defendant as the driver of a vehicle outside the residence and conducted an investigatory stop of that vehicle. The officers discovered three pill bottles and a small amount of cash on Defendant's person at that time. One pill bottle bore Defendant's name, and another bore the name of Manuel Ward.
According to Defendant, the car was owed by Manuel Ward, his cousin from California. Defendant denied knowing what was in the trunk, stated that the trunk was broken, and claimed that he did not have access to it. A search of the trunk resulted in the seizure of several bottles containing various substances and cash. In addition, another prescription bottle and additional cash were discovered below the carpeting in the trunk.
A subsequent search of Defendant's home revealed the presence of prescription bottles bearing several different names, some of which contained pills and others which did not; a white, rock-like substance, which was later identified as cocaine; digital scales with a chalky residue; fictitious identification cards; and firearms. A prescription bottle bearing the name of Manuel Ward that contained ninety-three pills was seized from a large storage shed outside Defendant's home.
At trial, Special Agent Irvin Lee Allcox (Special Agent Allcox), a chemist employed by the State Bureau of Investigation, testified as an expert in the field of the chemical analysis of drugs and forensic chemistry. Special Agent Allcox testified that he performed a chemical analysis or visual examination of the evidence seized from Defendant, Defendant's car, Defendant's home, and the storage shed outside Defendant's home. According to Special Agent Allcox, these substances included Cocaine, Dihydro code inone (an opium derivative), Hydrocodone (an opium derivative), Oxycodone (an opium derivative)6, Amphetamine (Adderall), Alprazolam (Xanax), Diazepam (Valium), Carisoprodol (Soma)7, and Methylphenidate (Ritalin). Special Agent Allcox identified certain of the seized substances based upon a chemical analysis.8 However, Special Agent Allcox identified certain other substances on the basis of a visual examination of the size, shape, color of and markings on the tablets in question.9
Defendant denied possessing most of the drugs found at 6514 Myrtle Grove Road. Defendant testified that the drugs might have belonged to Manuel Ward or Manuel Ward's girlfriend. Defendant claimed to have last seen Manuel Ward not long before his arrest. In addition, Manuel Ward's sister, Pearl Bellerose (Bellerose), testified that Manuel Ward left Wilmington fifteen years before the trial, came back to Wilmington seven to eight months prior to the trial, and then returned to Spokane, Washington. Defendant also presented evidence tending to show that he had filled prescriptions at local pharmacies, including multiple refills for Oxycodone and Hydrocodone. According to Defendant, some of the bottles seized on 23 August 2006 contained his personal prescription medications.
On 23 and 24 August 2006, warrants for arrest were issued charging Defendant with six counts of trafficking in opium; single counts of maintaining a vehicle and dwelling for the purpose of keeping and selling various prescription medications, possession of cocaine with the intent to sell and deliver, possession of Ritalin with the intent to sell and deliver, possession of Xanax with the intent to sell and deliver, possession of Valium with the intent to sell and deliver, possession of Lortab with the intent to sell and deliver, possession of Percocet with the intent to sell and deliver, possession of Oxycodone with the intent to sell and deliver, possession of Adderall with the intent to sell and deliver, and possession of drug paraphernalia; and two counts of possession of Lorcet with the intent to sell and deliver. On 25 September 2006, the New Hanover County grand jury returned true bills of indictment charging Defendant with six counts of trafficking in opium, maintaining a dwelling for the purpose of keeping and selling various prescription medications and cocaine, possession of cocaine with the intent to sell and deliver, maintaining a vehicle for the purpose of keeping and selling various prescription medications, possession of Ritalin with the intent to sell and deliver, possession of Xanax with the intent to sell and deliver, possession of Valium with the intent to sell and deliver, possession of Lortab with the intent to sell and deliver, possession of Percocet with the intent to sell an deliver, possession of Oxycodone with the intent to sell and deliver, two counts of possession of Lorcet with the intent to sell and deliver, possession of Adderall with the intent to sell and deliver, and possession of drug paraphernalia.
The cases against Defendant came on for trial at the 7 October 2008 session of the New Hanover County Superior Court. At the conclusion of the State's evidence, the trial court granted Defendant's motion to dismiss the possession of Lortab with the intent to sell and deliver charge, the possession of Lorcet with the intent to sell and deliver charges, and the possession of Adderall with the intent to sell and deliver charge. After hearing all of the evidence and the trial court's instructions, the jury...
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... ... Gen. Stat. 8C-1, Rule 404(b), it must have some relevance to the issue of the defendant's guilt of the crime for which he or she is on trial." State v. Ward, _ N.C. App. _, _, 681 S.E.2d 354, 361, aff'd, 364 N.C. 133, 694 S.E.2d 738 (2010) (citing N.C. Gen. Stat. 8C-1, Rule 401 (2009)). The evidence in question must be relevant to some issue other than the defendant's "propensity or disposition to commit an offense of the nature of the crime ... ...
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State Of North Carolina v. Ferguson, COA09-1048.
... ... In essence, Defendant argues that ... Llamas-Hernandez prohibits reliance on the drug identification approach employed by Officer Smith in this case. Aside from the fact that nothing in Judge Steelman's dissent in ... Llamas-Hernandez or our subsequent decision in ... State v. Ward, --- N.C. ----, ----, 681 S.E.2d 354, 370 (2009) (stating that “the identification of marijuana is different in both degree and kind from the identification of prescription medications”), casts any doubt on the continued vitality of ... Fletcher, nothing in the plain error jurisprudence of ... ...
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