State v. Haqq

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-813
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Catawba County
No. 12 CRS 3753
TAJI SHAREEF HAQQ
Appeal by defendant from judgments entered 1 April 2013 by
Judge Timothy S. Kincaid in Catawba County Superior Court.
Heard in the Court of Appeals 11 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Donna B. Wojcik, for the State.
Russell J. Hollers III, for defendant-appellant.
CALABRIA, Judge.
Taji Shareef Haqq (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of trafficking in
cocaine by sale and trafficking in cocaine by possession. We
find no prejudicial error.
On 27 July 2011, Investigator Jonathan Dunigan
(“Investigator Dunigan”) of the Lincoln County Sheriff’s Office
-2-
(“LCSO”) arranged a drug transaction with defendant via
telephone. Subsequently, Investigator Dunigan and LCSO
Investigator Mauricio Sing (“Investigator Sing”) met with
Investigator Chad Killian of the Catawba County Sheriff’s Office
and received $1,500 to purchase cocaine from defendant. They
then drove in an undercover vehicle to defendant’s residence in
Catawba County to conduct the transaction.
When the officers arrived at the residence, defendant
approached their vehicle and informed Investigator Dunigan, with
whom he had previously conducted drug transactions, that he was
waiting for the drugs to arrive. A few minutes later,
Investigator Sing handed defendant the $1,500 and defendant
retrieved approximately 35.7 grams of cocaine and gave it to
Investigator Dunigan. The officers then left defendant’s
residence.
On 19 March 2012, defendant was indicted for trafficking in
cocaine by sale, trafficking in cocaine by transportation,
trafficking in cocaine by possession and possession with intent
to sell or deliver (“PWISD”) cocaine based upon the 27 July 2011
transaction. Beginning 25 March 2013, defendant was tried by a
jury in Catawba County Superior Court. After the jury was
impaneled, the trial court instructed the jurors to rely upon
-3-
their own memories of the evidence because they would be unable
to view video or transcripts of any witness testimony during the
trial.
At the close of all the evidence, the State voluntarily
dismissed the PWISD cocaine charge. On 1 April 2013, the jury
returned verdicts finding defendant guilty of trafficking in
cocaine by sale and trafficking in cocaine by possession. The
jury found defendant not guilty of trafficking in cocaine by
transportation. The trial court sentenced defendant to two
consecutive sentences of a minimum of 35 months to a maximum of
42 months in the North Carolina Division of Adult Correction.
Defendant appeals.
Defendant’s sole argument on appeal is that the trial court
erred by informing the jury prior to trial that it would be
unable to view transcripts of the trial during deliberations. We
agree, but find that the error was not prejudicial.
N.C. Gen. Stat. § 15A-1233(a) states:
If the jury after retiring for deliberation
requests a review of certain testimony or
other evidence, the jurors must be conducted
to the courtroom. The judge in his
discretion, after notice to the prosecutor
and defendant, may direct that requested
parts of the testimony be read to the jury
and may permit the jury to reexamine in open
court the requested materials admitted into
evidence. In his discretion the judge may
-4-
also have the jury review other evidence
relating to the same factual issue so as not
to give undue prominence to the evidence
requested.
N.C. Gen. Stat. § 15A-1233(a) (2013). “Our Supreme Court has
held that it is error for the trial court to refuse to exercise
its discretion pursuant to this statute ‘upon the ground that
the trial court has no power to grant the motion in its
discretion.’” State v. Johnson, 164 N.C. App. 1, 18-19, 595
S.E.2d 176, 186 (2004) (quoting State v. Barrow, 350 N.C. 640,
646, 517 S.E.2d 374, 378 (1999)). As our Supreme Court
explained in State v. Ashe, the trial court always has the
discretion to allow the jury to review testimony by utilizing
the following procedure: “The usual method of reviewing
testimony before a transcript has been prepared is to let the
court reporter read to the jury his or her notes under the
supervision of the trial court and in the presence of all
parties.” 314 N.C. 28, 35 n.6, 331 S.E.2d 652, 657 n.6 (1985).
In Johnson, the trial court instructed the jury prior to
trial that “[t]here is no transcript to bring back there. She
might get one typed in a month. ... So, we don't have anything
that can bring it back there to you.” 164 N.C. App. at 19, 595
S.E.2d at 187 (emphasis omitted). This Court held that the
-5-
trial court erred by informing the jury prior to trial that it
was not possible to provide a transcript:
While the statute refers solely to requests
made by the jury for review of certain
testimony or evidence, we nonetheless find
that the purpose and intent of the statute
are violated in this case since the trial
court's pretrial comments could have
foreclosed the jury from making a request
for such testimony or evidence. Thus, we
find error even without a request by the
jury.
Id. at 20, 595 S.E.2d at 187.
In the instant case, the trial court instructed the jury
prior to trial that “[w]e don’t do videotapes of witnesses after
the trial is over. We don’t do transcripts of the witnesses
after the trial’s over simply because it takes about four, five,
six weeks to get a transcript. So you’re going to be required,
in all probability, to rely on your memory.” This statement by
the trial court cannot be materially distinguished from the
statement held to be erroneous in Johnson. Accordingly, the
trial court violated N.C. Gen. Stat. § 15A-1233(a) when it
informed the jury prior to trial that it would be unable to
review transcripts of witness testimony.
Nevertheless, defendant is only entitled to relief if the
trial court’s erroneous instruction was prejudicial. Defendant
bears the burden of proving that “there is a reasonable
-6-
possibility that, had the error in question not been committed,
a different result would have been reached at the trial . . . .”
N.C. Gen. Stat. § 15A-1443(a) (2013).
“It is only prejudicial error to deny the jury an
opportunity to ask to review certain testimony or evidence where
the defendant can show that (1) such testimony or evidence
involved issues of some confusion and contradiction, and (2) it
is likely that a jury would want to review such testimony.”
Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187 (internal
quotations and citation omitted). In the instant case, defendant
was convicted of trafficking in cocaine by sale and trafficking
in cocaine by possession based upon his transaction with
Investigator Dunigan and Investigator Sing on 27 July 2011.
Defendant does not point to any contradictions or confusion in
the evidence regarding the substance of these two offenses.
Instead, he points out that (1) audio and video recording
devices worn by the officers failed to operate during the 27
July 2011 transaction; and (2) that there was no evidence that
law enforcement recovered the exact $1,500 provided to defendant
in exchange for the cocaine. These ancillary issues do not
create any confusion regarding whether defendant was guilty of
trafficking.
-7-
Both Investigator Dunigan and Investigator Sing testified
that they met with defendant on 27 July 2011. At this meeting,
they provided him with $1,500 in exchange for approximately 35.7
grams of cocaine. Moreover, the investigators’ testimony was not
contradicted by any other witness or evidence at trial. In light
of this unchallenged testimony, defendant has failed to
demonstrate a reasonable possibility that, had the trial court
not erred, a different result would have been reached at the
trial. This argument is overruled.
Defendant received a fair trial, free from prejudicial
error.
No prejudicial error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).