North Carolina Lawyers Weekly
Even if the trial court should have granted defendant’s motion to strike his accomplice’s testimony, any such error was not prejudicial given the state’s other evidence that defendant was trafficking heroin.
We find no prejudicial error in defendant’s convictions for trafficking by possession of 28 grams or more of heroin and trafficking by transportation of 28 grams or more of heroin.
At defendant’s retrial, seven years after his arrest, his accomplice authenticated a written statement she had made two days after the arrest, in which she said, “[W]hen I seen [sic] the blue lights[,] that’s when [defendant] throws me a bag[,] tells me to stuff it[,] and I put the bag in my pants.”
When the prosecutor asked her more questions about the night of the arrest, the accomplice invoked her Fifth Amendment right against self-incrimination. The trial court ruled that the privilege was not available to the accomplice, who had completed her probation and was protected by the prohibition against double jeopardy. The trial court denied defendant’s motion to strike the accomplice’s testimony.
When the prosecutor again questioned the accomplice about the night of the arrest, she claimed not to recall.
Even if the trial court should have granted defendant’s motion to strike, the error was not prejudicial given the state’s other evidence: Police Sergeant Marcus McPhatter testified concerning his observations of defendant’s suspicious behavior upon exiting the “China Bus” and during his time at a nearby Shell station. Detective Matthew O’Hal testified that defendant appeared “[e]xtremely nervous” during the traffic stop, to the point that Detective O’Hal “even noticed from outside the vehicle beads of sweat pouring down his face.” Leo, Detective O’Hal’s drug-trained canine, alerted to the possible presence of narcotics in the front and rear right-side passenger seats, where defendant and his accomplice had been sitting just prior to the dog sniff of the vehicle. Corporal Monique Starling testified regarding her conversation with the accomplice, during which the accomplice divulged that defendant and his brother “told her to hide” the drugs and admitted that she had concealed them “down the front of her pants.” And finally, the accomplice’s handwritten statement that she provided to law enforcement officers—which directly implicated defendant—was admitted into evidence without objection.
No prejudicial error.
State v. Baskins (Lawyers Weekly No. 012-023-23, 10 pp.) (Valerie Zachary, J.) Appealed from Guilford County Superior Court (Nathan Gwyn, J.) Joseph Hyde for the state; Richard Costanza for defendant. N.C. App. Unpub.
