Opinion
No. COA10-239
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 12 June 2009 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 29 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.
Thomas Reston Wilson for defendant-appellant.
Wake County Nos. 08 CRS 20548-49.
Defendant was found guilty of trafficking in cocaine by possession of 105 grams of the substance and of conspiracy to traffic in cocaine by possession of 105 grams of cocaine. The convictions were consolidated for judgment and defendant was sentenced to a minimum term of thirty-five months and a maximum term of forty-two months in prison. Defendant appeals.
The State's evidence tends to show that a confidential informant working on behalf of the Raleigh Police Department contacted defendant by telephone on 5 April 2008 and asked for defendant's assistance in purchasing "tomatoes," a code word for cocaine. Defendant responded that he would talk to a friend in Burlington. The following day the informant met defendant at a fish market and asked defendant to try to obtain as much as four ounces of cocaine for him at the price of $750.00 per ounce.
As a result of a series of telephone calls on 8 April 2008 between defendant and the informant, defendant agreed to obtain four ounces of cocaine at a total price of $3,000.00. Defendant instructed the informant to come to his house. About an hour after the informant arrived at defendant's residence, a white Ford Explorer vehicle rolled into the driveway. A man exited the passenger side of the vehicle carrying a bag containing cocaine. Both the informant and defendant looked at the bag. As the informant went to retrieve the money to pay for the cocaine, police officers who were maintaining surveillance arrived at the scene. Defendant directed the man to throw the bag away as the officers approached.
An officer retrieved a plastic sandwich bag from the ground and subsequently submitted the bag and its contents for laboratory analysis. The officer also found in the console of the Ford Explorer a digital scale commonly used for weighing drugs. Laboratory analysis of the substance in the bag revealed it to be 105 grams of cocaine.
Defendant presented evidence tending to show that in March 2008, he and his wife were having trouble paying their household bills. In early April 2008, he received a disconnection notice from Progress Energy. Around the same time, he was contacted by the confidential informant, who initially asked defendant whether he was looking for work. The informant later called defendant and talked to him about drugs. Defendant told the informant that he did not know anyone who had them.
Defendant subsequently encountered the confidential informant at the fish market. Defendant showed the informant the disconnection notice and told him about his financial woes. After viewing the disconnection notice, the informant offered to loan defendant $100.00 if defendant would assist him in obtaining two to four ounces of cocaine. Defendant told the informant that he could not help him. The informant persisted in asking defendant to help him obtain some cocaine. Defendant asked another person whether he knew someone who sold drugs. This person, whom defendant identified as "Bernade," told defendant that he would ask around and call him back. Bernade called back later and informed defendant that he had found someone and that he would come to his house that night. Defendant relayed this information to the confidential informant and asked the informant to follow through with the loan.
The informant drove over to defendant's residence. Bernade, accompanied by another man, arrived in a white vehicle. Bernade opened the trunk of the vehicle and asked the informant whether he was the person who wanted to purchase drugs. When the informant replied affirmatively, Bernade handed the informant a bag. The informant opened the bag and tasted the contents. Telling them he had to get the money, the informant returned to his vehicle and opened the trunk. About that time a white van approached them very fast. Bernade threw the bag down and police officers, pointing guns, approached the men. One officer grabbed defendant and threw him to the ground.
The sole issue presented is whether the trial court erred by refusing to admit into evidence a summary exhibit extracting from the confidential informant's telephone records calls made to defendant and received from defendant. Defendant sought admission of the exhibit pursuant to N.C. Gen. Stat. § 8C-1, Rule 1006, which provides:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
N.C. Gen. Stat. § 8C-1, Rule 1006 (2009). Under this rule, a summary or chart is admissible if it is "an accurate summarization of the underlying material[.]" Coman v. Thomas Manufacturing Co., 105 N.C. App. 88, 91, 411 S.E.2d 626, 628 (1992) (citation omitted). The decision whether to admit evidence pursuant to Rule 1006 is within the trial court's discretion. See Marley v. Graper, 135 N.C. App. 423, 431, 521 S.E.2d 129, 134 (1999). Defendant argues the trial court abused its discretion by not admitting into evidence chart he prepared summarizing the telephone calls between defendant and the informant.
"Abuse of discretion occurs where the court's ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision." State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993). In denying defendant's request, the trial court observed that the rule applied when the original document "cannot conveniently be examined in court . . . because of the voluminous nature" of the document. The parties stipulated that the actual telephone records were admissible, and pursuant to that stipulation, the court admitted the records into evidence and distributed them to the jury for review. The jury examined the records in court. The record does not reflect that the jurors had any difficulty in reviewing the records. Counsel conceded that the records of approximately 150 telephone calls, were not as voluminous as in cases he had tried in the past. Finally, the trial court did allow defendant to use the summary in making his closing argument to the jury. Under these circumstances, we conclude that the trial court made a reasoned decision and did not abuse its discretion.
No error.
Chief Judge MARTIN concurs.
Judge JACKSON concurred in this opinion prior to 31 December 2010.
Report per Rule 30(e).