NO. COA09-975 TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
vs. ) FROM MECKLENBURG COUNTY
) 07CRS 74700; 244227
)
RENNY DEANJELO MOBLEY )
)
______)
********************************************
DEFENDANT-APPELLANT’S BRIEF
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i
INDEX
PAGE
TABLE OF AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 2
STATEMENT OF THE FACTS ...... 3
ARGUMENTS ...... 5
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE AND PUBLISH TO THE JURY STATE’S EXHIBIT 13 AS THIS WAS NOT PROPERLY AUTHENTICATED OR IDENTIFIED(ASSIGNMENT OF ERROR NO.1, Rp.25) ...... 5
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST HIM BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE. (ASSIGNMENT OF ERROR NO. 2, Rp.25) . .9
CONCLUSION ...... 13
CERTIFICATE OF SERVICE ...... 14
ii
CASES TABLE OF AUTHORITIES PAGE
In re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879(2002). . .6
NC Dept. of Envt. & Natural Resources v. Carroll,
358 NC 649 (2004)...... 5,9
Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585,
339 S.E.2d. 799 (1986)...... 8
Stanton v. Brame, 136 N.C. App. 170,523 S.E.2d 424(1999).9
State v. Abernathy, 295 N.C. 147,244 S.E.2d 373(1978). . 10
State v. Jones, 137 N.C. App. 221,527 S.E.2d 700,
disc. rev. denied, 352 N.C. 153, 544 S.E.2d 235(2000). . 6
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). 10
State v. Morgan, 329 N.C. 654,406 S.E.2d 833(1991). . . .10
State v. Mullen,98 N.C. App. 472,391 S.E.2d 520(1990). .7
State v. Nettles, 170 N.C. App. 100,612 S.E.2d 172,
disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005).9
State v. Richards, 294 N.C. 474,242 S.E.2d 844(1978). . .6
State v. Swinson,___ N.C. App. ___, 562 S.E.2d 608(2002). 11
State v. Williams, 288 N.C. 680,220 S.E.2d 558(1975). . .6
Wilson v. Bellamy, 105 N.C. App. 446,414 S.E.2d.347(1992).7,8
STATUTES
N.C.G.S. 7A-27(b) ...... 2
N.C.G.S. § 8C-1, Rule 901(a)...... 5
N.C.G.S. § 8C-1, Rule 901(b)(5)...... 7
N.C.G.S. § 90-87(6)(b)...... 11
N.C.G.S. § 90-95(a)(2)...... 11
OTHER AUTHORITIES
1 Stansbury’s N.C. Evidence § 96(Brandis Rev. 1973). . . .6
NO. COA09-975 TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
vs. ) FROM MECKLENBURG COUNTY
) 07CRS 74700; 244227
)
RENNY DEANJELO MOBLEY )
)
______)
DEFENDANT-APPELLANT’S BRIEF
********************************************
QUESTIONS PRESENTED
I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE AND PUBLISH TO THE JURY STATE’S EXHIBIT 13 AS THIS WAS NOT PROPERLY AUTHENTICATED OR IDENTIFIED?
II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST HIM BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE?
STATEMENT OF THE CASE
Mr. Mobley was indicted for one count of conspiracy to sell a counterfeit controlled substance on 11 August 2008 and of obtaining the status of being a habitual felon on 3 December 2007. The Defendant’s case was called for hearing at the 9 February 2009 session of Criminal Superior Court for Mecklenburg County before the Honorable James W. Morgan. On or around 11 February 2009 the jury returned a verdict finding the Defendant guilty of the conspiracy charge, and the Defendant subsequently pled guilty to obtaining the status of habitual felon. The trial court entered the judgment on 11 February 2009, sentencing Defendant to a minimum of 92 months and a maximum of 120 months in the Department of Corrections. The Defendant gave timely notice of appeal from the judgment of the trial court on 24 February 2009. The transcript was ordered on 30 March 2009 and was mailed to the parties on 11 May 2009.
The final record on appeal was filed with the North Carolina Court of Appeals on 23 July 2009 and docketed on 5 August 2009. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 7 August 2009.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given by the Defendant on 24 February 2009.
STATEMENT OF THE FACTS
On 19 September 2007 Charlotte Mecklenburg police officer Stephen Whitesel was conducting a “street level buy bust” in the West Boulevard- Remount Road area of Charlotte, near the airport. As he rode by slowly he saw Mr. Mobley along with twenty or so people on a porch. Mr. Mobley spoke to an individual later identified as Rakeem McCullough, and McCullough went into the apartment. McCullough came back, and then he and Mobley approached the car which had pulled over. Whitesel told Mobley and McCullough that he needed “40”. McCullough appeared leery, but Mobley told him that Whitesel was “straight” and not police. McCullough reached down into a garbage bag and produced what Whitesel thought was $20 worth of cocaine for $40. Whitesel later found out that the substance was not cocaine, nor any other controlled substance. (Tpp.41;43;44;45;47;69)
Whitesel never heard Mr. Mobley say anything to McCullough other than the guys were not police. In addition to Mr. Mobley and McCullough, a third individual, Murphy, was found and arrested behind the apartments after the sale. Murphy had garbage bags and other materials similar to what McCullough had sold him. Murphy also had the marked bills in his possession. Whitesel never saw Mr. Mobley speak to Murphy and Mr. Mobley did not have any marked bills in his possession when arrested. (Tpp.79;80-1)
On that same day, Tammy Post of the Charlotte Mecklenburg police department was assigned to the same buy bust operation to retrieve and transport suspects arrested after the operation. She came up and saw other officers had engaged in a foot chase with Rakeem McCullough and “took him down” and arrested him. As she looked around, she noticed Mr. Mobley standing about fifteen feet away against a fence. She and officer Harriston went up and asked Mr. Mobley for some identification and then arrested him without incident. (Tpp.123;124;125)
Jamie Brantley from the Charlotte Mecklenburg Sheriff’s office was asked to retrieve some telephone calls that were made from booking on the date Mr. Mobley was arrested. Brantley indicated that though the calls are maintained on a hard drive at the jail site, a contractor, Global Tel Link, maintains the recording system. Brantley was unaware if the calls could in any way be altered after recorded. She also indicated that there was no identifying information on this call since it came from booking, no prisoner identification number (“PID”) was attached to it. The sole basis for identifying the call as being Mr. Mobley was the fact that his PID number later called the phone number this call went to, and by voice recognition, though she admitted she was not a voice recognition expert. (Tpp.127;132;137;138)
ARGUMENTS
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE AND PUBLISH TO THE JURY STATE’S EXHIBIT 13 AS THIS WAS NOT PROPERLY AUTHENTICATED OR IDENTIFIED(ASSIGNMENT OF ERROR NO.1, Rp.25)
On voir dire, the deputy sheriff who made a copy of the alleged telephone calls from booking at the jail admitted that the call recording system was maintained by a contractor who was not present to testify. She did not know if the calls could be altered in any way. There was no way to independently identify who was making the call other than voice recognition, which she was not an expert in. The tape of the call was not properly authenticated or identified, and its admission was reversible error.
Standard of Review
The admissibility of evidence is a question of law, requiring a de novo review by the Appellate court. Under this standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. NC Dept. of Envt. & Natural Resources v. Carroll, 358 NC 649 (2004).
Argument
N.C.G.S. § 8C-1, Rule 901(a) requires that before evidence is found to be admissible, the requirements of identification or authentication must be met; i.e., evidence must be sufficient to “support a finding that the matter in question is what its proponent claims.” In discussing the admissibility of telephone conversations, our Supreme Court has stated:
“Before a witness may relate what he heard during a telephone conversation with another person, the identity of the person with whom the witness was speaking must be established.” State v. Williams, 288 N.C. 680, 698, 220 S.E.2d 558, 571 (1975). “If the call was from the person whose identity is in question, the mere fact that he represented himself to be a certain person is not enough” to identify him as that person, 1 Stansbury’s N.C. Evidence § 96, p. 310 (Brandis Rev. 1973) (hereinafter “Stansbury”); accord, State v. Williams, supra. “Identity of the caller may be established by testimony that the witness recognized the caller’s voice, or by circumstantial evidence.” State v. Williams, supra, 288 N.C. at 698, 220 S.E.2d at 571.
State v. Richards, 294 N.C. 474, 480, 242 S.E.2d 844, 849 (1978). See alsoIn re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879 (2002)(no proper identification of caller’s voice and no circumstantial evidence which would lead to his identification); State v. Jones, 137 N.C. App. 221, 229, 527 S.E.2d 700, 705, disc. rev. denied, 352 N.C. 153, 544 S.E.2d 235(2000)(identification deemed insufficient where witnesses who testified about the calls did not recognize the caller’s voice and simply accepted the caller’s self-identification).
In the present case, no witness testified that could have provided proper identification of Mr. Mobley’s voice. Deputy Brantley made the CD of the phone call from the recording system kept at the Mecklenburg County jail. She admitted that she was not a voice recognition expert, and that because this call originated in booking, there was no PID attached to it which usually allowed them to identify the prisoner making the call. She had no personal knowledge of whether or not Mr. Mobley made a call from booking that day, and what his location was throughout the day. (Tpp.137-38)
Deputy Brantley testified that her only basis for identifying the call as coming from Mr. Mobley was that later on Mr. Mobley’s PID made calls to the same phone number as the phone number called on State’s exhibit number 13. Also, Deputy Brantley testified that though the hard drives for the calls are located at the jail facility, they are maintained by Global Tel Link, a contractor hired by the Sheriff’s office. Brantley was unaware how they are maintained and did not know if they could be altered in any way after recording. No one from Global Tel Link testified. (Tpp.136-7)
In Wilson v. Bellamy, 105 N.C. App. 446, 414 S.E.2d. 347(1992), this Court held the trial court properly refused to allow a witness to authenticate a voice he heard on a telephone call. This Court recognized: "G.S. § 8C-1, Rule 901(b)(5) provides for the authentication or identification of a voice where there is '[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.'" Id. at 462, quotingState v. Mullen,98 N.C. App. 472, 477, 391 S.E.2d 520, 523 (1990).
In Wilson, the witness indicated that he had spoken to the alleged caller in person on a couple of occasions. However, on cross examination he indicated that he only knew the voice on the phone because the caller identified himself. This Court upheld the trial court’s decision to not allow the witness to authenticate the call as the witness “failed to show that he had an opinion as to the identity of the caller based upon hearing the voice at any time under circumstances connecting it with the speaker other than the phone call.” Id. at 463. When there is no other credible evidence to authenticate the caller, the evidence is inadmissible hearsay. Id.; See Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d. 799 (1986).
In the present case, there was even less authentication than in Wilson. Deputy Brantley did not testify that she had ever even spoken to Mr. Mobley before. When asked if she knew what Mr. Mobley’s voice sounds like she stated that the voice on the booking call sounded like the voice from other calls from his PID number, but she was not a voice recognition expert. There was no evidence that she had directly spoken to Mr. Mobley before. There also was no distinguishing characteristic, such as a PID number to tie this call to Mr. Mobley. The only thing that tied the call to Mr. Mobley appears to be that this call was made to the same phone number that later calls from his PID were made.
The State failed to properly authenticate the taped phone call admitted as State’s exhibit number 13 into evidence. As such, it was inadmissible hearsay and its admission was reversible error. Wilson supra.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST HIM BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE. (ASSIGNMENT OF ERROR NO. 2, Rp.25)
There was absolutely no evidence, direct or circumstantial, presented at trial that Mr. Mobley was aware that the substance sold to undercover officers was counterfeit. As such, the trial court erred in not granting his Motion to Dismiss at close of the State’s case in chief and again at close of all the evidence.
Standard of Review
The standard of review on a motion to dismiss a charge which was properly ruled upon is de novo. The question is whether the evidence presented was substantial as a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of law are reviewed de novo. Stanton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Under a de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
Argument
Mr. Mobley was charged with conspiracy to sell a counterfeit controlled substance. "A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835(1991). In a prosecution for conspiracy, "the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice" to withstand defendant's motion to dismiss. Id. The existence of a conspiracy may be established by circumstantial evidence or "established by a number of indefinite acts, each of which, standing alone, might have little weight, but taken collectively, they point unerringly to the existence of a conspiracy." State v. Abernathy, 295 N.C. 147, 165, 244 S.E.2d 373, 384 (1978).
In order to obtain a conviction of possession with intent to sell and deliver a counterfeit controlled substance under N.C.G.S. § 90-95(a)(2), the State must prove "(1) that defendant possessed a counterfeit controlled substance, and (2) that defendant intended to 'sell or deliver' the counterfeit controlled substance." State v. Swinson,___ N.C. App. ___, 562 S.E.2d 608 (2002); see N.C. Gen. Stat. § 90-95 (a)(2) (2001); see also N.C.G.S. § 90-87(6)(b)(2001)
(providing that a counterfeit controlled substance is any substance intentionally misrepresented as a controlled substance).
As argued at trial, there was simply no evidence that Mr. Mobley knew that the substance sold to Officer Whitesel was counterfeit, as is required under the statute. No one saw Mr. Mobley have a conversation with anyone but McCullough, prior to the purchase. When Mobley motioned to Whitesel to park, he did not tell McCullough to go and get anything for them. Whitesel testified that McCullough had disappeared into the apartment by himself and when he came back out, Mr. Mobley walked up to their car with him and told McCullough that Whitesel was “straight and not a cop.” (Tp.46)
Officer Whitesel, an experienced officer who had done hundreds of undercover drug buys, believed he had purchased $20 worth of crack cocaine for $40. Only after the lab reports came back did he know it was counterfeit. Officer Whitesel further testified that five minutes after the buy bust when the arrests were made, Mr. Mobley had no marked currency on his person. The only person with marked currency was Murphy, the person located behind the apartments with garbage bags and other materials similar to what McCullough had brought out to them. Whitesel never saw Mr. Mobley speak to Murphy, nor did he see Mr. Mobley go into the apartment at any time. Further, besides him telling McCullough that Whitesel was not an officer, he did not hear him say anything to McCullough. (Tpp.76;78;79; 80-1)
On the jail call admitted as State’s exhibit number 13 (See Argument I above), Mr. Mobley stated on the call that he should not have been “messing with that crack”. This evidence was presented during the State’s case in chief and clearly rebuts any presumption that Mr. Mobley knew that this substance was counterfeit as required by the statute. (Tp.151)
There was no evidence that Mr. Mobley had any idea that the substance sold to Officer Whitesel was counterfeit. There is no evidence that he ever had the contraband in his possession. There is no evidence that he did anything but tell the Officers to park, and assure McCullough that the Officers were o.k. The State failed to provide any evidence Mr. Mobley had knowledge that the substance sold to the officers was counterfeit, an essential element to convict him under this statute. As such, his motion to dismiss should have been allowed.
CONCLUSION
The Defendant respectfully requests that this Court reverse the trial court as argued above, and remand to the trial court for entry of an order dismissing the charge of conspiracy to sell a counterfeit controlled substance, and the habitual felon indictment or in the alternative a new trial.
This the 8th day of September, 2009.
/s James N. Freeman, Jr. submitted electronically per Rule 26
James N. Freeman, Jr.
Attorney for Defendant-Appellant
Renny Deanjelo Mobley
Post Office Box 347
Elkin, North Carolina 28621
Telephone: (336) 835-4407
State Bar No.:18188
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the Defendant-Appellant’s Brief and Appeal Information Sheet by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s), and addresses stated below, which is/are the last known address(es) and by depositing said envelope and its contents in the United States Mail at Elkin, North Carolina.
Larissa S. Williamson
Assistant Attorney General
Post Office Box 629
Raleigh, NC 27602-0629
This the 8th day of September, 2009
/s James N. Freeman, Jr.
James N. Freeman, Jr.
Post Office Box 347
Elkin, North Carolina 28621
State Bar No. 18188
Telephone: (336) 835-4407