Opinion
No. 07-1275.
Filed 5 August 2008.
Wake County Nos. 05 CRS 082876, 05 CRS 082877.
Appeal by defendant from judgment entered on or about 1 March 2007 by Judge Ronald L. Stephens in Superior Court, Wake County. Heard in the Court of Appeals 21 July 2008.
Attorney General Roy A. Cooper III, by Assistant Attorney General Donald W. Laton, for the State. Kimberly P. Hoppin for defendant-appellant.
Defendant was charged with "four counts of trafficking cocaine, one by sale, one by possession, one by delivery and one by transportation." Defendant was appointed an attorney, and on 11 January 2007 filed a pre-trial motion for funds for an independent laboratory analysis of the weight of the cocaine at issue in his case. On 14 February 2007, the trial court denied defendant's motion in a pre-trial hearing.
Beginning on 28 February 2007, defendant was tried by a jury on the four counts of trafficking cocaine. Upon defendant's motion to dismiss at the close of the State's evidence, the trial court dismissed the charge of trafficking by transportation, but denied the motion as to the other charges. Upon defendant's motion to dismiss at the close of all the evidence, the trial court dismissed the charge of trafficking by delivery, but denied the motion as to the remaining two charges. On or about 1 March 2007, the jury found defendant guilty of two counts of trafficking 28 grams or more but less than 200 grams of cocaine, one by possession and one by sale. The trial court sentenced defendant to 35 to 42 months imprisonment and imposed a $50,000.00 fine. Defendant appeals.
Defendant first argues that "the indictment charging . . . [defendant] with trafficking in cocaine by sale was fatally defective for failing to state the name of the person to whom the cocaine was allegedly sold and the judgment entered for this charge must be vacated." We agree.
The North Carolina General Statutes provide that a defendant is guilty of the class G felony of "trafficking in cocaine" if the defendant sold, manufactured, delivered, transported or possessed cocaine in an amount of 28 grams or more, but less than 200 grams. N.C. Gen. Stat. § 90-95(h)(3)(a) (2005). Both the North Carolina Supreme Court and Court of Appeals have held that when a defendant is charged with the sale or delivery of narcotics, the indictment must state the name of the person to whom the defendant allegedly sold or delivered the narcotics or must allege in the alternative that the name of the person is unknown. See, e.g., State v. Bennett, 280 N.C. 167, 168-69, 185 S.E.2d 147, 148-49 (1971) (arresting judgment based on the indictment charging unlawful sale of narcotics when indictment failed to state sufficient facts because it did not allege the name of the person to whom the sale was made or that his/her name was unknown); State v. Calvino, 179 N.C. App. 219, 221-22, 632 S.E.2d 839, 842 (2006) (vacating defendant's conviction for sale and delivery of cocaine because indictment was fatally flawed in that it did not state the name of the person to whom defendant allegedly sold narcotics when the State knew the name of the individual); State v. Wall, 96 N.C. App. 45, 49, 384 S.E.2d 581, 583 (1989) ("[A]n indictment for the sale and/or delivery of a controlled substance must accurately name the person to whom the defendant allegedly sold or delivered, if that person is known.").
Here, the indictment charging defendant with trafficking in cocaine by sale alleges that on or about the 4th day of August? 2005, in the county named above the defendant named above unlawfully, willfully, and feloniously did traffick [sic] by selling 28 grams or more but less than 200 grams of cocaine, a controlled substance which is included in Schedule II of the North Carolina Controlled Substances Act.
The indictment alleges neither the name of the person to whom defendant allegedly sold the cocaine in question, nor that the name of the person was unknown. Accordingly, the indictment is fatally flawed in that it fails to allege the name of the person to whom the cocaine was sold or that the person was unknown, and thus the judgment must be vacated. See, e.g., Bennett, 280 N.C. 167, 185 S.E.2d 147; Calvino, 179 N.C. App. at 221, 632 S.E.2d at 842; Wall at 49, 384 S.E.2d at 583. We remand this matter for entry of judgment and resentencing on the charge of trafficking by possession of 28 grams or more but less than 200 grams of cocaine. See State v. Stone street, 243 N.C. 28, 31, 89 S.E.2d 734, 737 (1955) ("Where two or more indictments or counts are consolidated for the purpose of judgment, and a single judgment is pronounced thereon . . . the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count.").
Defendant also argues "the trial court erred in denying . . . [defendant's] motion for [funds for an] independent lab analysis" of the weight of the cocaine at issue. We disagree.
"[W]hether an expert should be appointed at the expense of the State to assist an indigent defendant is within the sound discretion of the trial judge and his decision thereon will not be reversed on appeal absent a showing of abuse of that discretion." State v. Massey, 316 N.C. 558, 562, 342 S.E.2d 811, 814 (1986) (citation omitted). "Abuse of discretion occurs when a trial court's ruling was manifestly unsupported by reason and thus could not have been the result of a reasoned decision." State v. Jordan, 149 N.C. App. 838, 842, 562 S.E.2d 465, 467-68 (2002) (citation omitted).
In order to receive state-funded expert assistance, an indigent defendant must make a particularized showing that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case. Furthermore, the State is not required by law to finance a fishing expedition for the defendant in the vain hope that `something' will turn up. Mere hope or suspicion that such evidence is available will not suffice.
State v. McNeill, 349 N.C. 634, 650, 509 S.E.2d 415, 424 (1998) (internal citations and internal quotation marks omitted), cert. denied, 528 U.S. 838, 145 L.Ed.2d 87 (1999).
Here, defendant did not make a particularized showing that he would be denied a fair trial without the expert assistance or that such assistance would materially help him in the preparation of his case. Defendant's argument as to why his motion should have been granted is entirely centered on the unsubstantiated belief that the weight of the cocaine at issue would be different if re-weighed. Defendant's argument is merely a request for the State to fund "a fishing expedition[,]" see McNeill at 650, 509 S.E.2d at 424, in the hope that exculpatory evidence will turn up. Defendant has not shown that the trial court abused its discretion in denying his motion for an independent analysis of the weight of the cocaine. These arguments are overruled.
Affirmed in part, vacated in part, and remanded for entry of judgment and resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).