State v. McLamb , 71 N.C. App. 220 ( 1984 )

321 S.E.2d 465 (1984)

STATE of North Carolina
v.
Roy McLAMB.

No. 8412SC200.

Court of Appeals of North Carolina.

November 6, 1984.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant.

WELLS, Judge.

First, defendant assigns error to the refusal of the trial court to allow defendant to exercise a peremptory challenge to a juror who, after the jury was impaneled, informed the court that she had made an incorrect response on voir dire as to whether she knew any of the state's witnesses. The events on which this assignment is based were as follows. After the jury was impaneled and opening statements had been made by the state, but before the presentation of evidence, the trial judge indicated that a juror had admitted that she knew the state's witness Mary Sue Hammonds, stating that she had previous business dealings with Hammonds. Defendant's counsel then pointed out to the court that Hammonds was to be one of the state's chief witnesses and asked that the juror be removed for cause. After an examination by the trial court into the juror's relationship with Hammonds, this request was denied. Defendant's counsel then sought to remove the juror by exercising his last remaining peremptory challenge. This motion was also denied. The trial court's refusal to allow defendant to exercise his peremptory challenge denied defendant a fair trial and was reversible error. See State v. Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984).

In his next argument, defendant contends that the conspiracy indictment was fatally defective because it failed to state the name of the person to whom defendant agreed to sell cocaine or, alternatively, to state that the person's name was unknown, relying on State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971). In Bennett the court held that an indictment for sale (of a controlled substance) must state the name of the person to whom the sale was made or must allege in the alternative that the name of the person was unknown. We reject defendant's argument and refuse to extend the Bennett rule as to sale to indictments for conspiracy to sell and deliver controlled substances. In this case, the indictment charged defendant with conspiring with Hammonds and others "to sell or deliver cocaine." These allegations were sufficient to put defendant on notice as to the charge against him. See State v. Bowen, 56 N.C.App. 210, 287 S.E.2d 458, disc. rev. denied, 305 N.C. 588, 292 S.E.2d 7 (1982).

Defendant's argument, however, has led us to an examination of the record proper, which discloses other errors. Each indictment in this case alleged the offenses of sale or delivery, in the disjunctive. This was incorrect. State v. Helms, 247 N.C. 740, 102 S.E.2d 241 (1958), State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953).^[1] Defendant not having moved to dismiss, he waived this defect for purposes of trial. State v. Kelly, 13 N.C.App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972). In this case, however, the verdicts submitted to the jury were also in the disjunctive, i.e., guilty of "possession with intent to sell or deliver"; guilty of "sale or delivery"; and guilty of conspiracy to "sell or deliver." These verdicts, being inherently ambiguous, do not support the judgments, State v. Albarty, supra, State v. Creason, 68 N.C.App. 599, 315 S.E.2d 540 (1984), and require a new trial.^[2]

For the reasons stated, there must be a

New trial.

ARNOLD and HILL, JJ., concur.

NOTES

[1] We are aware that in State v. Rozier, 69 N.C. App. 38, 316 S.E.2d 893, cert. denied, N.C. (filed October 12, 1984), another panel of this court has reached a different result. The Rozier court did not mention or discuss either Helms or Albarty.

[2] We are aware that in Rozier another panel of this court apparently failed to find any fault with similar disjunctive verdicts. The Rozier court did not mention or discuss either Albarty or Creason. We follow Creason.