State v. Winslow

389 S.E.2d 436 (1990) 97 N.C. App. 551

STATE of North Carolina
v.
Frankie WINSLOW.
STATE of North Carolina
v.
Jovahnie Wiggins WINSLOW.

No. 891SC682.

Court of Appeals of North Carolina.

March 20, 1990.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. D. Sigsbee Miller, Raleigh, for State.

Linwood Hedgepeth and Georgia H. Goslee, Baltimore, for defendants-appellants.

ARNOLD, Judge.

Defendants first assign error to the trial court's granting of the State's motion for joinder of defendants for trial. Defendants had objected to the joinder in an off-the-record bench conference. N.C.Gen.Stat. § 15A-927(c)(2) requires the court to deny joinder of defendants for trial whenever it is necessary to promote or achieve a fair determination of guilt or innocence. Whether defendants should be tried jointly or separately is a question addressed to the sound discretion of the trial judge. State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987). Absent a showing that a defendant has been deprived of a fair trial by joinder, the trial judge's ruling on the question will not be disturbed on appeal. Id.

Defendants argue that the joint trial prejudiced them in that each was precluded from presenting certain defenses that would have incriminated the other: first, the defense that the other possessed all the cocaine and second, the defense that, while he or she possessed some cocaine, the amount possessed was less than the 28 grams required for a trafficking in cocaine conviction. In support of this argument, Frankie points to the discrepancy between Bazemore's voir dire testimony that Frankie had said the master bedroom was "his and his wife's" and Bazemore's testimony before the jury that Frankie had said the bedroom was "his." Frankie argues this redaction of his statement denied him the defense that he possessed some amount under 28 grams of cocaine.

Antagonism between two defendants' defenses does not necessarily warrant severance. State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980). "The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." Id.

In State v. Cook, 48 N.C.App. 685, 686, 269 S.E.2d 743, 744, disc. rev. denied, 301 N.C. 528, 273 S.E.2d 456 (1980), defendant Whitaker testified that, while he had been present at the murder scene, co-defendant Cook had killed the victim. Defendant Cook's evidence identified co-defendant Whitaker as the gunman. Id. This Court, while recognizing that these defenses were antagonistic, concluded that both defendants still received a fair trial because the State had presented "ample evidence to support a conviction of either or both defendants of [victim's] murder." Id. at 688, 269 S.E.2d at 745.

Similarly, had each defendant here defended on the grounds that he or she possessed only some or none of the cocaine, their defenses would have been antagonistic. However, as discussed further under defendants' next assignment of error, the State presented ample evidence that each defendant constructively possessed all the cocaine. Given all the evidence, defendants would have received a fair trial even if each had presented defenses tending to incriminate the other. The trial court did not, therefore, abuse his discretion in joining the defendants for trial.

Under this same assignment of error, defendants also argue that the joinder was in error because they were represented by the same attorney. No objection was made at trial to defendants' attorney's joint representation. "In order to establish a conflict of interest violation of the constitutional right to effective assistance of counsel, `a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.'" State v. Howard, 56 N.C.App. 41, 46, 286 S.E.2d 853, 857, disc. rev. denied, 305 N.C. 305, 290 S.E.2d 706 (1982) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)).

Defendants argue that their attorney's performance was adversely affected on the same grounds that they argue they were prejudiced by their joinder for trial, that is, that each was precluded from defending with evidence that he or she possessed only some or none of the cocaine. Again, given the strong evidence that each defendant constructively possessed all the cocaine, we are not persuaded by the argument that defendants were prejudiced by having one attorney who did not present these defenses. This assignment of error has no merit.

In their next assignment of error, defendants argue that the trial court erred by failing to submit the lesser-included offense of possession of cocaine to the jury. Defendants argue that the evidence of the amount of cocaine each defendant possessed was equivocal. We disagree.

Felonious possession of cocaine requires proof of possession of one gram or more of cocaine, N.C.Gen.Stat. § 90-95(d)(2), while trafficking in cocaine by possession requires proof of possession of 28 grams or more of cocaine. N.C.Gen. Stat. § 90-95(h)(3). No instruction is required on a lesser-included offense when the State's evidence is positive as to each element of the crime charged and there is no evidence showing the commission of a lesser-included offense. State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). Here, the evidence was clear that each defendant had constructive possession of all 52.3 grams of cocaine.

Constructive possession of contraband material exists when there is no actual possession of the material, but there is an intent and capability to control its disposition. State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984). Where possession of the premises is non-exclusive, constructive possession of contraband materials may not be inferred without other incriminating circumstances linking a defendant to the contraband. Id. at 569, 313 S.E.2d at 589.

Defendants Frankie and Jovahnie shared their house with each other and their two sons, so each defendant's possession was non-exclusive. However, there were other incriminating circumstances showing each defendant's intent and capability to control the cocaine. Defendants emerged together from the master bedroom where all the cocaine was found. The bedroom contained clothing and furnishings indicating both defendants lived there. Cocaine, drug paraphernalia and large amounts of cash were seized from the bedroom and hall. The following evidence linked Frankie in particular to the cocaine: he admitted that he lived in the master bedroom and that drugs would be found there; he provided the key to the safe containing cocaine; and he had $476 in cash in his pockets. The following evidence linked Jovahnie in particular to the cocaine: her dresser contained cocaine and lactose, $700 in cash, and a notepad with information on cocaine sales; she was seen dropping $1,000 as the officers entered the bedroom and a total of $1,400 was found in envelopes labelled with the name "Jo." The foregoing evidence is sufficient for the jury to infer that each defendant constructively possessed all 52.3 grams of cocaine. Since the State's evidence is positive as to the amount of cocaine each defendant possessed and there was no evidence that either defendant possessed an amount less than 28 grams, the trial court was correct in refusing to submit the lesser-included offense of possession of cocaine to the jury.

Defendants next assign error to the admission of testimony from SBI Agent Bazemore regarding Calvin Hyman's purchase of one and a half ounces of cocaine from defendants' residence several hours before the search. Defendants argue that there was no evidence showing that one or both defendants, rather than someone else in the house, sold the cocaine to Hyman. We disagree. Bazemore gave Hyman $2,500 in SBI special funds to make the cocaine purchase. Before the search of defendants' house, Bazemore recovered $600 of those funds from Hyman. The search of defendants' bedroom revealed the remaining $1,900. This evidence was sufficient to connect defendants with the earlier purchase. The trial court did not err in admitting evidence of that earlier purchase to show that defendants knowingly possessed the cocaine which was the basis of the trafficking charge.

In their last assignment of error, defendants argue that evidence of Hyman's cocaine purchase from their residence was used both to prove an element of the charged crimes and to aggravate their sentences in violation of N.C.Gen.Stat. § 15A-1340.4(a)(1). We do not agree. The trial court admitted evidence of Hyman's cocaine purchase from defendants to show that defendants' possession of cocaine was knowing or intentional. The trial court aggravated each defendants' sentence with the non-statutory factor that both defendants "had the specific intent to sell the quantity of cocaine [they] possessed at the time of the search of [their] residence," citing State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986). Evidence that defendants possessed 52.3 grams of cocaine as well as a variety of packaging materials support this finding. See State v. Williams, 307 N.C. 452, 456-57, 298 S.E.2d 372, 375 (1983). Therefore, evidence used to prove an element of the crime was not also used to support an aggravating factor.

No error.

JOHNSON and ORR, JJ., concur.