Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 7630SC314

Attorney(S)

Attorney General Edmisten, by Assistant Attorney General Alfred N. Salley, for the State. Creighton W. Sossoman for defendant appellant.

See more information ...

Smart Summary

State of North Carolina v. Mitchell Wayne Lankford, No. 7630SC314 (N.C. Ct. App. Oct. 6, 1976)

Factual and Procedural Background

Defendant Mitchell Wayne Lankford was indicted on two counts: (1) felonious sale and delivery of a controlled substance (marijuana) and (2) possession of marijuana with intent to sell and deliver. At trial the State produced two witnesses: undercover SBI agent Howard Conard, who testified that on 17 April 1975 at about 8:15 p.m. at "Greek's Place" in Waynesville he purchased a plastic bag containing marijuana from the defendant after the defendant retrieved a brown paper bag from a pickup truck; and SBI Agent Dan Crawford, who testified about Conard's report of the incident and corroborated Conard's account. It was stipulated the substance weighed 20.5 grams and was marijuana (Schedule VI). A defense witness (Jack Harris) testified to an alibi — that he had borrowed defendant's truck and left defendant at home studying. The jury found the defendant guilty on both counts. The trial court sentenced defendant to 30 months on the sale count and two years suspended on the possession-with-intent count. Defendant appealed; the appeal was heard in the Court of Appeals on 26 August 1976, and judgment below was entered 14 November 1975 in Haywood County.

Legal Issues Presented

Whether the trial court erred in failing to give a limiting instruction concerning portions of Agent Crawford's testimony about what Conard had told him.
Whether the trial court erred in its jury instructions because it initially failed to summarize the evidence before the jury retired and later gave a brief summary after recalling the jury.
Whether the sale and possession-with-intent counts (involving the same marijuana) constitute separate offenses such that convictions and separate punishments are permissible.
Whether the State's cross-examination of a defense witness (Jack Harris) about his prior silence regarding the defendant's alibi was improper.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The defendant argued he was entitled to a limiting instruction restricting the jury's use of Agent Crawford's testimony concerning what Conard told him.
The defendant contended the trial court's jury charge was insufficient because the judge initially failed to summarize the evidence before the jury retired and the later summary was merely the parties' contentions rather than a proper recital of the evidence required by G.S. 1-180; the bifurcated or disjointed instructions, the defendant asserted, confused the jury to his prejudice.
The defendant argued that the two statutory counts (sale and possession with intent) could not be treated as separate offenses where the same evidence was used to convict on each count and there was no separate evidence of possession with intent to distribute.
The defendant asserted the State's cross-examination of defense witness Jack Harris about his failure to inform authorities of the alibi before trial was prejudicial and improper, relying on the principle that a defendant's silence cannot be used against him.

The opinion does not contain a detailed account of the State's separate legal arguments beyond the record evidence and the trial court's rulings described by the appellate opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938)	When evidence is competent for one purpose only and not another, the objecting party must request a limiting instruction to restrict the jury's consideration to the competent aspect.	Applied to hold defendant was not entitled to a limiting instruction because he made only a general objection and did not request the limiting instruction.
Stansbury's N.C. Evidence, 79 (Brandis Revision 1973)	Textual authority reiterating the procedural rule that a limiting instruction must be requested when evidence is admissible for a restricted purpose.	Used to support the holding that absence of a request bars entitlement to a limiting instruction.
Faison v. Trucking Co., 266 N.C. 383, 146 S.E.2d 450 (1966)	Trial judge must recite the evidence and may not rely solely on the contentions of the parties in instructing the jury.	Cited as authority for the requirement, but the court found the judge's later recital (though brief) complied with G.S. 1-180.
Bulluck v. Long, 256 N.C. 577, 124 S.E.2d 716 (1962)	Same general principle: judicial recital of evidence required rather than reliance solely on party contentions.	Cited alongside Faison to show the legal standard; court held the trial judge met the requirement in context.
Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967)	A charge to the jury must be read and considered in its entirety and not in detached fragments.	Applied to evaluate the challenged, bifurcated charge and to conclude that the charge read as a whole was sufficient.
Houston v. Rivens, 22 N.C. App. 423, 427, 206 S.E.2d 739, 742 (1974)	An inaccuracy in instruction is not prejudicial when, from the charge construed contextually, the jury could not have been misled.	Used to support the conclusion that any inaccuracy or disjointed nature of the charge did not prejudice defendant.
State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973)	Authority addressing whether two statutory offenses (sale and possession with intent) may be separately punished when related to the same transaction.	Relied upon to reject defendant's contention and to support treating sale and possession-with-intent as distinct offenses under G.S. 90-95.
State v. Chavis, 232 N.C. 83, 59 S.E.2d 348 (1950)	Earlier articulation of the contention that identical facts cannot support separate punishments for related statutory offenses.	Quoted in Cameron and used in the court's discussion distinguishing statutory component offenses and upholding separate punishments.
State v. Midgett, 214 N.C. 107, 198 S.E. 613	Authority recognizing statutory offenses as distinct even when one component (possession) is incident to another act (transportation/sale).	Quoted in the Cameron/Chavis discussion and used to support the legislative distinction between separate statutory offenses.
State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971)	Questions designed to impeach a witness, if relevant, are permissible within the court's discretion.	Applied to uphold the trial court's allowance of cross-examination aimed at impeaching the defense witness's alibi testimony.
Stansbury's N.C. Evidence, 38; Stansbury's N.C. Evidence, 46 (Brandis Revision 1973)	Textual authority on impeachment and the use of silence or conduct inconsistent with testimony to discredit a witness.	Used to support the proposition that the witness's prior silence regarding the alibi was a proper subject for impeachment.
State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975)	Held the State may not offer a defendant's silence during police investigation as evidence of guilt or to impeach defendant as a witness (Fifth Amendment right against self-incrimination).	Cited by defendant seeking extension of Williams; court distinguished Williams because Williams concerned the defendant's own silence, whereas here the silence was that of a defense witness, to whom the privilege does not extend.

Court's Reasoning and Analysis

The court addressed each assignment of error in turn and based its rulings strictly on the trial record and controlling authorities cited in the opinion.

1) Limiting Instruction: The court observed Agent Crawford's testimony recounting Conard's statements was admissible for the limited purpose of corroborating Conard's undercover purchase testimony. However, the defendant made only a general objection at trial and did not request a limiting instruction. The court applied the procedural rule (State v. Ray; Stansbury) that when evidence is admissible for a restricted purpose, the objecting party must request a limiting instruction; without such a request the defendant was not entitled to one. The assignment of error was overruled.

2) Jury Instructions and Summary of Evidence: The court acknowledged the trial judge initially omitted a summary of the evidence before the jury retired but then recalled the jury after approximately two minutes and gave supplementary instructions. The judge prefaced his recital by stating he would give his recollection of the evidence only to the extent necessary to explain the applicable law. The court reviewed controlling authority requiring the judge to recite the evidence (Faison; Bulluck) and the rule that a charge must be considered in its entirety (Gregory). Concluding that G.S. 1-180 requires only that sufficient evidence be stated "to the extent necessary to explain the application of the law," the court held the judge's brief recitation was sufficient. The court also held that, read in context, the charge was coherent and any inaccuracy was not prejudicial (Houston). Those assignments of error were overruled.

3) Separate Offenses — Sale and Possession with Intent: The court relied on State v. Cameron (and the authorities discussed therein, including State v. Chavis and State v. Midgett) to conclude statutory offenses of sale and possession with intent are distinct and may support separate convictions and punishments. The court explained, relying on Cameron, that sale is a single act occurring at a specific time while possession with intent is a continuing offense; thus the jury could infer possession with intent from the fact of sale and the surrounding facts (defendant accessing the truck, retrieving a paper bag, producing the plastic bag of marijuana, keeping the paper bag). The defendant's motions attacking the possession-with-intent count were found to be without merit.

4) Cross-Examination of Defense Witness Regarding Prior Silence: The court treated the prosecutor's questions to defense witness Jack Harris about whether he had told authorities of the alibi prior to trial as impeachment aimed at discrediting the witness's testimony. Citing State v. Dawson and Stansbury, the court found such impeachment questions permissible and within the trial court's discretion. The court distinguished State v. Williams (which prohibits use of a defendant's own silence during investigation against the defendant) on the ground that Williams protects the defendant but the privilege against self-incrimination does not extend to the defendant's witnesses. Therefore, permitting questions about the witness's prior silence did not violate the privilege and was not reversible error.

Holding and Implications

NO ERROR.

Holding: The Court of Appeals overruled each of the defendant's assignments of error: (a) the defendant was not entitled to a limiting instruction regarding Agent Crawford's corroborative testimony because no limiting instruction was requested; (b) the trial court's brief recital of the evidence after recalling the jury satisfied G.S. 1-180 and the charge read as a whole was not prejudicially disorganized; (c) the sale and possession-with-intent counts were properly treated as separate statutory offenses and could each support conviction and separate punishment; and (d) the cross-examination of the defense witness regarding his prior silence was a permissible form of impeachment and did not implicate the defendant's Fifth Amendment privilege.

Direct consequences: The appellate court found no reversible error in the trial proceedings and thereby left the trial court's convictions and sentences undisturbed. The opinion does not announce any new legal rule beyond its application of existing precedent and statutes cited.

Decision authored by Judge Morris. Judges Vaughn and Clark concurred.

Show full summary ...

STATE OF NORTH CAROLINA v. MITCHELL WAYNE LANKFORD

1. Narcotics 4.5; Criminal Law 95 — evidence admissible for restricted purpose — failure to request limiting instruction When evidence competent for one purpose only and not for another is offered, it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent; therefore, defendant in this prosecution for possession and sale of marijuana was not entitled to a limiting instruction with respect to an SBI agent's testimony which corroborated testimony of an undercover SBI agent, since defendant failed to request such instruction.

2. Narcotics 4.5 — jury instructions — summary of evidence sufficient In a prosecution for possession and sale of marijuana where the trial court failed to summarize the evidence before the jury retired but recalled the jury after approximately two minutes to give them additional instructions, the court's summary of the evidence, though brief, was sufficient to state the evidence to the jury in conformance with G.S. 1-180.

3. Narcotics 1 — possession and sale of same marijuana — two separate offenses Defendant was properly tried and convicted for two separate offenses of possession and sale of the same marijuana. G.S. 90-95.

4. Criminal Law 89 — testimony concerning defendant's alibi — cross-examination for impeachment The trial court in a prosecution for possession and sale of marijuana did not err in allowing the State to cross-examine a defense witness for the purpose of impeaching the witness's testimony regarding defendant's alibi.

5. Constitutional Law 33; Criminal Law 88 — silence of defendant's witness — cross-examination proper Since a defendant's privilege against self-incrimination does not extend to defendant's witnesses as well, the trial court did not err in allowing the State to cross-examine a defense witness as to why he had remained silent concerning defendant's alibi until the trial.

Defendant was charged in a two-count indictment with (1) felonious sale and delivery of a controlled substance, to wit, marijuana, and (2) possession of marijuana with intent to sell and deliver. The jury returned a verdict of guilty on both counts, and the defendant was sentenced to a term of 30 months on the first count and two years suspended on the second count.

At trial, the State called two witnesses. The first witness, Howard Conard, testified, inter alia, that on 17 April 1975, he was employed as an undercover agent for the State Bureau of Investigation (S.B.I.) for the purpose of purchasing controlled substances in Haywood County. At approximately 8:15 p.m. on 17 April 1975, he went to "Greek's Place," a tavern located in the Town of Waynesville, and saw a man inside known to Conard as "Charley." Conard inquired as to whether "Charley" had any marijuana for sale, whereupon "Charley" approached the defendant, who was sitting in a nearby booth, and began conversing with him. Defendant got up and went outside but returned shortly thereafter. Conard and "Charley" went over to the booth where defendant was seated, sat down, and for a few minutes discussed purchasing a bag of marijuana. After a while, defendant got up, nodded to Conard, and started for the exit once again. Conard also arose from his seat and went outside, followed by the defendant. Defendant walked to the rear of the parking lot, and stopped at a dark colored pickup truck. He took a set of keys from his pocket, unlocked the door to the truck, and reached inside, removing a brown paper bag. Defendant then reached in the bag and produced a plastic bag containing a green vegetable material, which he handed to Conard. Conard handed the defendant a twenty-dollar bill, and the two parted. Conard went to his home, wrote a report of the incident and called SBI Agent Dan Crawford. At approximately 11:05 p.m. that night, Conard met with Crawford at the Highway Patrol office in Clyde, filed his report and turned over the plastic bag.

Agent Crawford was the State's second witness. He testified, inter alia, that at approximately 11:05 p.m. on 17 April 1975, he met with Howard Conard at the Highway Patrol office in Haywood County. Over objection, Crawford then testified as to the substance of the meeting in which Conard told him of the incident involving the defendant.

It was stipulated that the substance in question consisted of 20.5 grams of marijuana, a Schedule VI controlled substance. Other relevant facts are set out in the opinion below.

MORRIS, Judge.

Defendant assigns as error the failure of the trial judge to give limiting instructions to the jury as to the portions of Agent Crawford's testimony which related to his meeting with Conard. Agent Crawford's statements regarding what Conard told him on the night in question were clearly admissible to corroborate Conard's version of the transaction involving the defendant. The record reveals that defendant made only a general objection to the introduction of the testimony and did not request a limiting instruction at trial. "It is a well recognized rule of procedure that when evidence competent for one purpose only and not for another is offered it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent." State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938); Stansbury's N.C. Evidence, 79 (Brandis Revision 1973). Without a request therefor, defendant was not entitled to a limiting instruction. This assignment of error is overruled.

Defendant's next assignment of error relates to the court's instructions to the jury. In the initial portion of the charge, the judge instructed as to the law but failed to summarize the evidence before the jury retired. Apparently realizing his omission, the judge recalled the jury after approximately two minutes had passed and then gave them additional instructions. During these supplementary instructions the judge recited the evidence as follows:

". . . the State has offered evidence which it contends tends to show, that on the 17th of April 1975, Officer Conard went to the Greek's Place, here in Haywood County, and while there he met the defendant and bought from him a quantity of marijuana from the sum of $20.00. On the other hand, as the Court recalls, the defendant has offered evidence which he contends tends to show that on the 17th of April, 1975, he was not at the Greek's Place; that he never sold any marijuana to Howard Conard or anyone else, and had never sold or engaged in the sale of marijuana."

Immediately preceding this, the court told the jury:

"Members of the jury, you were brought back from the jury room for the purpose of additional instructions. Under the laws of this State it is required that the Judge give you at least a brief summary of the evidence and then apply the law to that evidence as the Court recalls that evidence to be. Now, at this point, I simply want to give you my recollection of what a part of the evidence offered by the parties tends to show, but only to the extent necessary to enable me to explain or apply the applicable law."

Defendant maintains that the charge was insufficient on the ground that the jury was instructed only as to the contentions of the parties. It is true that North Carolina has held that the judge, in his instructions to the jury, must recite the evidence and may not rely solely on the contentions of the parties. Faison v. Trucking Co., 266 N.C. 383, 146 S.E.2d 450 (1966); Bulluck v. Long, 256 N.C. 577, 124 S.E.2d 716 (1962). However, although the trial judge used language which suggests he instructed only as to the parties' contentions, the record reveals that he then went further and did in fact review the evidence presented at trial. The record further reveals that the court specifically instructed the jury that the next ensuing instructions would be his recollection of the evidence. G.S. 1-180 does not require that the trial judge state all the evidence to the jury, but only such evidence "to the extent necessary to explain the application of the law thereto. . . ." We hold that the recitation of the evidence here, though brief, was sufficient to state the evidence to the jury in conformance with G.S. 1-180.

Defendant further contends that the bifurcated instructions were so disorganized and disjointed that the jury was confused to the prejudice of the defendant. The first portion of the charge, standing alone, did not contain a recital of the evidence as required by G.S. 1-180. However, a charge to the jury must be read and considered in its entirety and not in detached fragments. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967). We believe that the charge as a whole contained a statement of the evidence to the extent necessary to explain the application of the law arising thereon. Furthermore, the charge read as a whole was sufficiently coherent and no prejudice resulted to the defendant. "An inaccuracy in the instruction will not be held prejudicial error when it is apparent from the charge, construed contextually, that the jury could not have been misled." Houston v. Rivens, 22 N.C. App. 423, 427, 206 S.E.2d 739, 742 (1974). Accordingly, defendant's assignments of error relating to the jury instructions are overruled.

Defendant next argues that, despite the statutory designation of separate and distinct offenses (G.S. 90-95), the two counts of sale of marijuana and possession of marijuana for sale cannot be separate and distinct offenses where, as here, the same evidence is used to convict on each count; and, further, that because there was no separate evidence of possession with intent to distribute, defendant's motions to dismiss and to set aside the verdict as to that count should have been allowed. The Supreme Court, in State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973), effectively disposed of this contention. There the Court (at 199) noted the defendant's contention in State v. Chavis, 232 N.C. 83, 59 S.E.2d 348 (1950), "that it is not competent to find the defendant guilty of two offenses and fix separate punishments therefor when the facts constituting the two purported crimes are identical, the possession being physically necessary to the act of transportation." The Court quoted from the opinion of Justice Seawell:

"Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes. Neither in fact nor law are they the same. State v. Midgett, 214 N.C. 107, 198 S.E. 613. They are not related as different degrees or major and minor parts of the same crime and the doctrine of merger does not apply. The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either. When the distinction between the offenses is considered in the light of their purpose, vastly different social implications are involved and the impact of the crime of greater magnitude on the attempted suppression of the liquor traffic is sufficient to preserve the legislative distinction and intent in denouncing each as a separate punishable offense."

The sale of a controlled substance is a specific act and occurs only at one specific time. However, the possession of that controlled substance with the intent to sell it is a continuing offense from the time it was unlawfully obtained until the time the possessor divests himself of the possession. State v. Cameron, supra. The fact that a sale occurred was sufficient evidence for the jury to infer that defendant had possessed the marijuana with intent to sell it, particularly in view of the evidence that the marijuana was in defendant's truck, that he went to the truck, took the keys from his pocket, unlocked the door, and took from the truck a paper bag from which he withdrew a plastic bag containing the marijuana which he sold to the agent. He could have possessed the marijuana for an hour or less or a week or more. The length of time is immaterial. Nor did he hand the agent the paper bag. He retained the brown paper bag and gave the agent only the plastic bag of marijuana which he took from the brown paper bag.

These contentions of defendant are without merit.

Defendant's final assignment of error relates to the State's cross-examination of defense witness Jack Harris. Harris testified, inter alia, that he had been defendant's roommate on the night in question, that he had borrowed and was in possession of defendant's truck at the time the sale of marijuana took place, and that he had left defendant at home studying while he borrowed defendant's truck. On cross-examination, the State asked Harris whether he had told the authorities of defendant's alibi at any time prior to trial. The court allowed the witness to answer, over objection, and defendant contends that the admission of this testimony constituted prejudicial error. Again, we disagree.

The questions to which defendant objected were intended to impeach the witness's testimony regarding defendant's alibi. Questions designed to impeach the witness, if relevant, may cover a wide range and are permissible within the discretion of the court. State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971); Stansbury's N.C. Evidence, 38 (Brandis Revision 1973). "The silence of the witness in the face of another person's statement, or any other conduct inconsistent with his testimony may be used to discredit him." Stansbury's N.C. Evidence, 46 (Brandis Revision 1973). The witness's failure to inform the authorities of facts which would have tended to absolve his roommate of any criminal wrongdoing was a proper subject for impeachment by the State during cross-examination. Accordingly, we find no abuse of discretion by the trial judge in permitting this line of questioning.

Even though the line of questioning was proper for impeachment purposes, defendant further contends that the admission of the testimony regarding the witness's previous silence constitutes reversible error and cites State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975), as authority for this position. In Williams, the North Carolina Supreme Court held that the State could not offer defendant's silence during the police investigation as evidence of his guilt or for the purpose of impeaching defendant as a witness. This holding was based on the defendant's right against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Section 23, of the North Carolina Constitution. Defendant urges us to extend the rule of Williams to the instant case. Here, however, the questions were being asked not of the defendant, but of the defendant's witness. Obviously, the defendant's privilege against self-incrimination does not extend and apply to defendant's witnesses as well. Therefore, this assignment of error is overruled.

No error.

Judges VAUGHN and CLARK concur.

STATE v. LANKFORD