State v. Mahoney ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-716
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Hoke County
No. 10 CRS 052200
TINA MAHONEY
Appeal by defendant from judgment entered 8 February 2013
by Judge Richard T. Brown in Hoke County Superior Court. Heard
in the Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for defendant.
HUNTER, JR., Robert N., Judge.
Tina Mahoney (“Defendant”) appeals the 8 February 2013
judgment following a jury trial convicting her of conspiracy to
traffick in a controlled substance. Defendant argues that she
did not receive a fair trial because her case was joined with a
co-defendant for trial. We disagree and find no error.
I. Facts & Procedural Background
-2-
On 28 February 2011, Defendant was indicted for conspiracy
to traffick in a controlled substance. Defendant’s mother and
alleged co-conspirator, Flora Catherine Strickland, was indicted
that same day for trafficking in a controlled substance by
transport and by possession. On 4 June 2012, upon the State’s
motion, the trial court ordered that Defendant’s trial be joined
with that of Strickland. The trial was held at the 4 February
2013 session of Hoke County Superior Court, with the Honorable
Richard T. Brown presiding. The State’s evidence at trial
tended to show the following.
Lola McEachern, an alleged co-conspirator with Defendant
and Strickland, was a witness for the State. On 18 August 2010,
Defendant called McEachern and told her that a package would be
delivered the next day to 1307 Clan Campbell Avenue in Raeford,
a house owned by McEachern. McEachern was not living in the
house at the time, but she was going to be at the house to give
furniture to Strickland. Defendant first told McEachern the
package contained books. When McEachern questioned her honesty,
Defendant admitted that the package contained marijuana.
Defendant agreed to give McEachern marijuana and cash in
exchange for McEachern picking up the package.
-3-
The next day, 19 August 2010, McEachern picked up
Strickland and drove to a gas station, where they met Defendant.
Defendant paid for $10 worth of gas for McEachern’s car.
McEachern and Strickland then drove to 1307 Clan Campbell
Avenue.
During the day, Strickland was in contact by phone with
Defendant and Carlos Mahoney, Defendant’s husband. Strickland
used McEachern’s Assurance phone, which had Defendant’s number
stored in it. Defendant told Strickland that if a little brown
van delivered the package, leave it on the porch, get in the car
and leave the house. However, in a separate conversation, Carlos
Mahoney told Strickland to pick up the package regardless of the
circumstances.
The trial court informed the jury just before testimony
regarding the phone conversations that for any conversation
between Strickland and someone other than Defendant, the
testimony could only be considered against Strickland, not
Defendant. This meant that Strickland’s conversations with
Carlos Mahoney were only admitted against Strickland and were
not admitted against Defendant. The jury was asked to raise
their hands if they understood the instruction, and they did so.
-4-
The morning of 19 August 2010, Detective Kurt Stein of the
Fayetteville Police Department was checking parcels at UPS as
part of a routine check for narcotics being shipped into the
city. He noticed a package he thought was suspicious based on
its appearance and odor. It was addressed to Vincent Lim at
1307 Clan Campbell Avenue. In a lineup of packages, Detective
Stein’s K-9 alerted to the package addressed to Mr. Lim. A
records check by the Hoke County Sheriff’s Office showed that
the name Vincent Lim had no relationship to 1307 Clan Campbell
Avenue. After obtaining a search warrant, officers opened the
box and found marijuana.
That afternoon, Sergeant Greg Johnson of the Fayetteville
Police Department posed as a UPS delivery person, taking the
package to 1307 Clan Campbell Avenue. Sergeant Johnson knocked
on the door and, after there was no response, left the package
on the front porch.
McEachern testified that she opened the door, pulled the
package inside, put it in a closet, and went out to her car with
Strickland. McEachern and Strickland drove around the
neighborhood looking for anything out of the ordinary, such as
law enforcement. Defendant had told them to do this. When they
came back to the house, McEachern took a plastic storage tote
-5-
from her car, emptied it, and they both went into the house.
McEachern then put the marijuana in the tote, took it back
outside, and put it in her car. McEachern and Strickland then
drove away again.
Carlos Mahoney called Strickland and said there was a
tracking device in the package, so McEachern pulled the car over
to get rid of the package. Detective Don Bell of the
Fayetteville Police Department was following McEachern and
Strickland when he found their car stopped on the side of the
road. McEachern and Strickland were going to dispose of the
package in the woods, but instead brought the package back to
officers, where they were thereafter arrested.
While in jail, McEachern called Defendant, who assured her
that she was trying to get McEachern out, but that McEachern’s
family was not helping out. Strickland was in another jail cell
and yelled to McEachern that they were going to get her out of
jail. Strickland was released from jail before McEachern.
While still in jail, McEachern received a letter which appeared
to be signed by Strickland’s youngest daughter. McEachern,
however, believed that Strickland herself wrote the letter. The
letter expressed that someone was working to get McEachern out
of custody, stating that “she is trying hard to get you out. . .
-6-
. She’s waiting for some money to get here. . . . She wants you
out just as bad as you want to get out. Nobody wants to help
you.” The letter went on to reference a phone call, saying,
“She is mad that you hung up on her on the phone . . . . We know
that you are upset, but don’t take it out on one person that is
trying to help you.” The letter did not identify who “she”
referred to.
The trial court instructed the jury at the time the letter
was introduced that it only related to Strickland and could not
be considered against Defendant. When the exhibit was received
into evidence, the jury was again reminded that it was to be
considered only against Strickland and not against Defendant.
On 8 February 2013, the jury found Defendant guilty of
conspiracy to traffick marijuana. Defendant was sentenced to
25–30 months imprisonment. Defendant gave oral notice of appeal
before Judge Brown.
II. Jurisdiction & Standard of Review
As Defendant appeals from the final judgment of a superior
court, an appeal of right lies with this Court pursuant to N.C.
Gen. Stat. § 7A-27(b)(1) (2013).
We review the trial court’s decision to join defendants for
trial for abuse of discretion. State v. Rasor, 319 N.C. 577,
-7-
581, 356 S.E.2d 328, 331 (1987) (“Whether defendants should be
tried jointly or separately pursuant to these provisions is a
matter addressed to the sound discretion of the trial judge.”).
III. Analysis
Defendant argues that she was deprived of a fair trial
because she was joined with Strickland for trial. We disagree.
N.C. Gen. Stat. § 15A-926 (2013) allows defendants to be
joined for trial when the offenses charged “[w]ere part of a
common scheme or plan;” or “[w]ere part of the same act or
transaction;” or “[w]ere so closely connected in time, place,
and occasion that it would be difficult to separate proof of one
charge from proof of the others.” N.C. Gen Stat. § 15A-
926(b)(2)b.. The trial court in the present case found that the
offenses charged against Strickland and Defendant met all three
criteria in the statute and thus ordered the offenses to be
joined for trial.
“[A] trial court’s decision on the question of joinder of
two defendants is a discretionary ruling and will only be
disturbed if defendant demonstrates that joinder deprived him of
a fair trial.” State v. Wilson, 108 N.C. App. 575, 589, 424
S.E.2d 454, 462 (1993). “A defendant may be deprived of a fair
-8-
trial where evidence harmful to the defendant is admitted which
would not have been admitted in a severed trial.” Id.
Defendant argues she did not receive a fair trial because
there were three things harmful to her that should have been
admissible against Strickland only: (1) evidence of Carlos
Mahoney’s telephone conversations with Strickland; (2) the
letter to McEachern, which McEachern said came from Strickland;
and (3) evidence of Defendant’s telephone conversations with
Strickland.
The first two were introduced against Strickland only, and
the trial court gave limiting instructions regarding both.
“[L]imiting instructions ordinarily eliminate any risk that the
jury might have considered evidence competent against one
defendant as evidence against the other.” State v. Paige, 316
N.C. 630, 643, 343 S.E.2d 848, 857 (1986). “It would be unusual
for all evidence at a joint trial to be admissible against both
defendants, and we often rely on the common sense of the jury,
aided by appropriate instructions of the trial judge, not to
convict one defendant on the basis of evidence which relates
only to the other.” Id.
Our Courts have previously examined the volume and nature
of the evidence admissible against only a joined co-defendant in
-9-
determining whether the defendant received a fair trial.
Compare Wilson, 108 N.C. App. at 589, 424 S.E.2d at 462 (finding
a defendant deprived of a fair trial where he was forced to sit
through two and one-half days of testimony from eleven witnesses
which was not admissible against him), with State v. Ellison,
213 N.C. App. 300, 314–15, 713 S.E.2d 228, 238 (2011) (finding
no abuse of discretion in joining defendant where evidence
inadmissible against one defendant was only “a portion of the
testimony provided by two witnesses” and “lasted only a matter
of minutes”), aff’d, 366 N.C. 439, 738 S.E.2d 161 (2013). In
the present case, the evidence admissible only against
Strickland is limited to a few phone conversations Strickland
had with Carlos Mahoney and the letter purportedly written by
Strickland. The evidence here was far less than Wilson and was
also less than that in Ellison, as it constituted only a portion
of the testimony of one witness, McEachern.
Defendant cites to Bruton v. United States, 391 U.S. 123,
127–28 (1968), in which the United States Supreme Court found
that the confession of a co-defendant implicating the defendant
could not be introduced in a joint trial, even with a limiting
instruction. The Court recognized that in many cases, the jury
is expected to follow the limiting instructions and a joined
-10-
defendant is not denied a fair trial by the inclusion of
evidence inadmissible against him. Id. at 135. However, the
Court held that in certain circumstances, the risks and
consequences are so great that even a limiting instruction
cannot ensure a fair trial. Id. Bruton found those
circumstances where the “powerfully incriminating extrajudicial”
confession of a co-defendant was put before the jury in a joint
trial. Id. at 135–36. The Court found that the incriminating
statements were “devastating to the defendant” and that their
credibility was “inevitably suspect” due to the nature of a
confessing suspect having a motive to blame others. Id. at 136.
Because the evidence was so incriminating and the confession
suspect, the Court held that even with a limiting instruction,
the defendant had been deprived of a fair trial. Id. at 136–37.
The present case lacks the circumstances present in Bruton.
First, the evidence admitted against Strickland is not a
confession or statement to law enforcement, and as such it lacks
the “inevitably suspect” nature of the testimony in Bruton. In
addition, in contrast to Bruton, neither the evidence regarding
Carlos Mahoney nor the letter to McEachern was “powerfully
incriminating” or “devastating” to Defendant.
-11-
Defendant argues that the evidence of Strickland’s phone
conversations with Carlos Mahoney was “highly prejudicial”
because Carlos Mahoney was her husband and this evidence
“created an additional link for the jury between [Defendant] and
the drug scheme.” However, the evidence of Defendant’s husband
being involved did not implicate Defendant. A person is not
implicated in a crime merely because their spouse was involved.
In addition, in the present case there was abundant evidence
admissible against Defendant of her mother’s involvement. The
“additional link” that her husband was involved was not
“powerfully incriminating” or “devastating” to Defendant’s case.
Although Defendant suggests in her brief that the letter
purportedly from Strickland implied Defendant was upset about
McEachern’s arrest, nothing in the letter mentions Defendant,
and McEachern testified that the letter only incriminated
Strickland, not Defendant. This evidence, therefore, did not
implicate Defendant at all.
Because the jury received proper limiting instructions, and
because the considerations in Bruton do not apply, we find
Defendant was not deprived of a fair trial where evidence was
admitted against Strickland and not against Defendant.
-12-
Defendant also argues that testimony regarding her phone
conversations with Strickland should not have been admitted
because it was hearsay. McEachern’s testimony regarding
Strickland’s phone conversations with Defendant came in as
statements by a co-conspirator in furtherance of the conspiracy.
The statements were admitted against both Defendant and
Strickland. Declarations “made by a party to a criminal
conspiracy during the course of and in pursuit of the goals of
the illegal scheme” are admissible despite a hearsay objection.
State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977).
Defendant once again argues that under Bruton, McEachern’s
testimony should not have been admissible. However, as a
statement of a co-conspirator in furtherance of the conspiracy,
McEachern’s testimony regarding Strickland’s statements about
phone conversations with Defendant would have been admissible
against Defendant even if there was no joinder. State v. Fink,
92 N.C. App. 523, 528, 375 S.E.2d 303, 306 (1989) (Statements
“made during and in furtherance of the conspiracy, would have
been admissible against—and as damaging to—each of the
defendants whether they were tried separately or jointly.”).
Since the statements would have been admissible against
-13-
Defendant separately, she was not denied a fair trial by their
inclusion in the joined trial.
Because Defendant received a fair trial, we find that the
trial court did not abuse its discretion in joining Strickland
and Defendant for trial.
IV. Conclusion
For the foregoing reasons, we find
NO ERROR.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).