State v. Caldwell

PHILLIPS, Judge.

Defendant contends the trial court erred in four respects. His first three contentions have no merit, but his fourth does and a new trial is required.

The meritorious contention is based on the District Attorney’s argument to the jury. McAllister, the alleged co-conspirator, was not present during the trial, and thus did not testify in support of the State’s theory. In his closing argument, defense counsel questioned why the State failed to call McAllister as a witness. In his argument, the District Attorney stated that McAllister was in jail and that when he asked McAllister to testify he answered in an unpleasant manner. Defendant objected to these remarks, but his objection was overruled. No evidence regarding McAllister’s whereabouts had been presented, although he was quoted, to defendant’s detriment, by some of the State’s witnesses. Though counsel is allowed wide latitude in arguing cases to the jury, the bounds do not include presenting prejudicial facts not introduced into evidence. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). By so-arguing, the District Attorney, in effect, testified that McAllister was in jail and uncooperative, and the jury could have easily inferred therefrom that McAllister was in jail because he had been convicted of the offenses that defendant was being tried for. From the earliest time, “traveling outside the record” in jury argument has been disapproved by our courts. State v. Goode, 132 N.C. 982, 43 S.E. 502 (1903). The prejudicial effect of these ill-advised remarks is, we think, self-evident.

Though we hold that they have no merit, we briefly discuss defendant’s other contentions, since the questions might be raised at retrial. Defendant’s first contention is that undercover agent Conerly’s testimony regarding certain statements that McAllister made to him concerning defendant’s participation in the drug deal was erroneously received into evidence. But the testimony was offered for the limited purpose of showing only that the statements were made, and the court so instructed the jury. This did not violate the hearsay rule. 1 Brandis N.C. Evidence § 141 (2d ed. 1982).

The next contention is that the evidence was insufficient to prove the conspiracy charge. In our opinion, the evidence viewed favorably to the State, as the law requires, contains substantial evidence of every material element of the charge, State v. Locklear, 304 N.C. 534, 284 S.E. 2d 500 (1981), and defendant’s motion to dismiss the charge of conspiracy was properly denied. The evidence tended to show that: Conerly, an undercover agent, was introduced to McAllister and sought to purchase a quarter pound of marijuana; after obtaining a car, McAllister, Willie Wilson, the driver of the car, Conerly and Conerly’s informant drove to defendant’s house, Conerly, Wilson and the informant remaining in the car while McAllister went to the house and talked with defendant. McAllister and defendant then left in another car and when they returned about thirty minutes later, McAllister gave Conerly a bag containing $60 worth of marijuana and Conerly gave McAllister $60. McAllister then gave some of this money to defendant, who was standing by the carport approximately thirty feet from where the drug transaction occurred. This evidence covered in a very substantial way, we believe, all the elements of conspiring to sell and deliver marijuana, and submitting the issue to the jury was not error. The argument that the evidence becomes sufficient to convict only by stacking inference on inference, in violation of State v. LeDuc, 306 N.C. 62, 291 S.E. 2d 607 (1982), is rejected. The cases are not similar. In LeDuc there was only circumstantial evidence to link the defendant to the conspiracy; no evidence put him at the criminal scene and there was no evidence that he received any money from the transaction; whereas, in this case, there was evidence not only that defendant was present when the illicit transaction occurred, but that he received money from it as well.

Defendant finally contends that his conviction was improper because of the Wharton Rule. Under the Wharton Rule when a substantive offense necessarily requires the participation of two people and no more than two people are shown to have been involved in the agreement to commit the offense, the charge of conspiracy will not lie. State v. Langworthy, 92 Wash. 2d 148, 594 P. 2d 908 (1979); 4 Charles E. Torcía, Wharton’s Criminal Law § 731 (14th Ed. 1981). Defendant contends that even if there was sufficient evidence from which the jury could find that he agreed to obtain marijuana for the undercover agent, he was not guilty of conspiracy because only two people were involved in the crime. The claim is based on the premise that McAllister acted as agent for the buyer of the marijuana, and that therefore they were but one person legally. We cannot agree. One of the hallmarks of a conspiracy is that each conspirator is an agent for the others. Furthermore, there was evidence that defendant and McAllister conspired to sell marijuana to some third person. The fact that the third person approached McAllister for aid in purchasing the marijuana does not mean that McAllister and the third person must be considered as one.

New trial.

Judges ARNOLD and JOHNSON concur.