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  "name": "STATE OF NORTH CAROLINA v. ELISHA LEE MONTFORD",
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      "Judges JOHN and EDMUNDS concur."
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      "STATE OF NORTH CAROLINA v. ELISHA LEE MONTFORD"
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      {
        "text": "LEWIS, Judge.\nDefendant was indicted on two counts of sale and delivery of cocaine, in violation of N.C. Gen. Stat. \u00a7 90-95(a)(1). The first count was based upon a cocaine sale to Larry Godwin, a police informant, that occurred on 23 January 1997. The second count was based upon a cocaine sale to Mr. Godwin that occurred on 14 February 1997. On 5 May 1997, the grand jury also returned an habitual felon indictment against defendant. The two sale and delivery counts were thereafter consolidated for trial, and defendant made no motion to sever the two offenses. Defendant was then tried at the 3 September 1997 Session of Carteret County Superior Court, where a jury convicted him of both sale and delivery offenses. Defendant now appeals, bringing forth four arguments.\nIn his first assignment of error, defendant contests the consolidation of the two sale and delivery offenses for trial. Specifically, he contends that the trial court had no authority to join the offenses because there was no transactional connection between the two cocaine sales. We disagree.\nUnfortunately, our case law with respect to joinder of offenses has been rather muddled. Our Legislature has implemented the following rule regarding joinder of offenses:\nTwo or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\nN.C. Gen. Stat. \u00a7 15A-926(a) (1999). Pursuant to this rule, a two-step analysis is required for all joinder inquiries. First, the two offenses must have some sort of transactional connection. State v. Corbett, 309 N.C. 382, 387, 307 S.E.2d 139, 143 (1983). Whether such a connection exists is a question of law, fully reviewable on appeal. State v. Holmes, 120 N.C. App. 54, 61, 465 S.E.2d 915, 920, disc. review denied, 342 N.C. 416, 465 S.E.2d 545 (1995). If such a connection exists, consideration then must be given as to \u201cwhether the accused can receive a fair hearing on more than one charge at the same trial,\u201d i.e., whether consolidation \u201chinders or deprives the accused of his ability to present his defense.\u201d State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). This second part is addressed to the sound discretion of the trial judge and is not reviewable on appeal absent a manifest abuse of that discretion. Holmes, 120 N.C. App. at 62, 460 S.E.2d at 920. We hold that joinder satisfies both parts here.\nWith respect to the transactional connection inquiry, we point out that, under prior law, such a connection could be established merely if the two offenses were similar in character. N.C. Gen. Stat. \u00a7 15A-926, Official Commentary. Under present law, however, similarity of crimes alone is insufficient to create the requisite transactional connection. State v. Bracey, 303 N.C. 112, 117, 277 S.E.2d 390, 393 (1981). Rather, consideration must be given to several factors, no one of which is dispositive. These factors include: (1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; and (4) the unique circumstances of each case. State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985), aff\u2019d per curiam, 316 N.C. 188, 340 S.E.2d 105 (1986).\nHere, the offenses for which defendant was being tried are identical, sale and delivery of cocaine. Furthermore, the facts involved in each offense are nearly identical. Both involved selling cocaine to the same person, Mr. Godwin. Both involved the same place of sale, defendant\u2019s mobile home. And both involved the same quantity of cocaine sold, i.e., fifty dollar\u2019s worth. Finally, only three weeks elapsed between the commission of each offense.\nIn this regard, we find State v. Styles, 116 N.C. App. 479, 448 S.E.2d 385 (1994), disc. review denied, 339 N.C. 620, 454 S.E.2d 265 (1995), particularly illustrative. In that case, the trial judge consolidated two drug offenses for trial, possession of marijuana with intent to sell and sale of marijuana to a minor, even though the two offenses occurred more than a month apart. Id. at 480, 448 S.E.2d at 386. We held that the requisite transactional connection existed because both offenses shared a common thread of facts and a common motive. Id. at 482, 448 S.E.2d at 387. Specifically, we reasoned, \u201cThe \u2018common thread\u2019 is the selling and distribution of marijuana. The \u2018scheme\u2019 was to sell the illegal substance for profit.\u201d Id. Similarly, this case involves a common thread of selling cocaine and a common scheme of doing so for a profit. Accordingly, the requisite transactional connection exists. See also State v. Bracey, 303 N.C. at 118, 277 S.E.2d at 394 (holding that three robberies over a ten-day span shared a transactional connection); State v. Breeze, 130 N.C. App. 344, 355, 503 S.E.2d 141, 148 (holding that ten different robberies over a two-month span shared a transactional connection), disc. review denied, 349 N.C. 532, 526 S.E.2d 471 (1998).\nHaving concluded that the two drug offenses shared a transactional connection, we next ascertain whether joinder of the offenses impeded defendant\u2019s ability to receive a fair trial and put on his defense. Silva, 304 N.C. at 126, 282 S.E.2d at 452. We conclude that it did not. First of all, the State used the same witnesses to present the evidence as to both offenses. Furthermore, the same evidence would have been introduced had the trials been separated. Specifically, evidence of the January drug sale still would have been admissible at a trial on just the February drug charge (and vice versa), because such evidence would have been admissible under Rule 404(b) to show intent and/or knowledge. See State v. Richardson, 36 N.C. App. 373, 375, 243 S.E.2d 918, 919 (1978) (\u201cIn drug cases, evidence of other drug violations is relevant and admissible if it tends to show plan or scheme, disposition to deal in illicit drugs, knowledge of the presence and character of the drug, or presence at and possession of the premises where the drugs are found.\u201d). Accordingly, the trial court did not abuse its discretion in concluding that defendant\u2019s ability to receive a fair trial was not hindered by consolidation.\nIn his second assignment of error, defendant argues that the trial court improperly permitted the State to amend his habitual felon indictment. The original indictment listed three previous felonies for which defendant had been convicted, but did not specifically state that such felonies had been committed against the State of North Carolina. Instead, the indictment simply listed that the convictions had occurred in Carteret County. The prosecutor thereafter sought to amend the indictment by inserting \u201cin North Carolina\u201d after each listed felony. The trial court allowed the amendment. However, we need not even address the amendment issue, as we conclude that the original indictment itself was not flawed and thus any attempt to correct that perceived flaw was harmless.\nN.C. Gen. Stat. \u00a7 14-7.3 sets forth the pleading requirements for an habitual felon indictment. Specifically, that statute states:\nAn indictment which charges a person with being an habitual felon must set forth . . . the name of the state or other sovereign against whom said felony offenses were committed ....\nN.C. Gen. Stat. \u00a7 14-7.3 (1999). However, our courts have not required rigid adherence to this rule. In fact, \u201cthe name of the state need not be expressly stated if the indictment sufficiently indicates the state against whom the felonies were committed.\u201d State v. Mason, 126 N.C. App. 318, 323, 484 S.E.2d 818, 821 (1997). This is so because the main purpose of the felony indictment is simply to provide notice to the defendant that he will be tried as a recidivist. State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d 156, 157 (1990).\nHere, the original indictment sufficiently indicated the state against whom the prior felonies were committed. \u201cState of North Carolina\u201d explicitly appears at the top of the indictment, followed by \u201cCarteret County.\u201d Thus, Carteret County is clearly linked with the state name. Although \u201cState of North Carolina\u201d does not again appear when the prior felonies are set out, \u201cCarteret County\u201d does \u2014 as the locale of the prior felony convictions. The association of Carteret County with North Carolina at the top of the indictment, coupled with the subsequent listing of Carteret County as the locale of the prior felony convictions, is sufficient to indicate the state against whom the prior felonies were committed. Because the original indictment itself was not flawed, any issue with respect to amending that indictment is essentially moot, for the amendment could not have in any way prejudiced defendant.\nNext, defendant contests the trial court\u2019s denial of his motion for mistrial based upon an alleged improper admission of evidence in violation of Rule 404(b). During the State\u2019s case-in-chief, the prosecutor questioned Detective M.L. Arter as to how Mr. Godwin came to be an informant for the police. Detective Arter testified that Mr. Godwin had previously been arrested for buying cocaine and that he agreed to help the police catch the individual who sold him the cocaine, namely defendant. Defendant argues that this testimony was inadmissible as evidence of a prior cocaine sale between defendant and Mr. Godwin for which defendant was not on trial. We conclude that admission of this evidence was proper and therefore uphold the trial court\u2019s ruling on defendant\u2019s motion for mistrial.\nUnder our Rules of Evidence, \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d N.C.R. Evid. 404(b). As previously pointed out, in drug cases, evidence of other drug violations is often admissible to prove many of these purposes. Richardson, 36 N.C. App. at 375, 243 S.E.2d at 919. The evidence here was admissible for at least three such purposes. First, it was admissible to prove intent. See State v. Johnson, 13 N.C. App. 323, 325, 185 S.E.2d 423, 425 (1971) (allowing evidence of a prior transaction between defendant and an informant to prove intent), appeal dismissed, 281 N.C. 761, 191 S.E.2d 364 (1972). Second, such evidence could be used to prove a common plan or scheme. See State v. Trueblood, 46 N.C. App. 545, 547, 265 S.E.2d 664, 666 (1980) (allowing evidence of prior cocaine purchases between defendant, his co-conspirators, and an undercover officer because such evidence \u201cwas but a part of a series of transactions ... in pursuance of their plan and design to sell and deliver cocaine\u201d). And finally, evidence of the prior drug sale here was admissible to identify defendant as the one selling the cocaine. See State v. Shields, 61 N.C. App. 462, 464, 300 S.E.2d 884, 886 (1983) (allowing evidence of a prior marijuana sale between defendant and an undercover officer to prove identity). Accordingly, we reject defendant\u2019s argument.\nFirst, defendant claims his counsel was ineffective in failing to request that the jury be instructed on his decision not to testify at trial. We disagree. \u201c[I]n order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge.\u201d State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545 (1988). Here, absence of an instruction as to defendant\u2019s silence cannot be said to have created plain error in the charge because a trial judge is not required to instruct on a defendant\u2019s silence unless a specific request has been made. See State v. Cawthorne, 290 N.C. 639, 649, 227 S.E.2d 528, 534 (1976). Counsel may well choose no instruction so as not to emphasize the defendant\u2019s silence. Defendant\u2019s first ground for ineffective assistance is without merit.\nIn his final assignment of error, defendant claims he was denied effective assistance of counsel in violation of the Sixth Amendment. In order to substantiate a claim for ineffective assistance, a defendant must demonstrate two things: (1) his counsel\u2019s performance was deficient such that his counsel was basically not functioning as legal \u201ccounsel\u201d at all; and (2) he was prejudiced by his counsel\u2019s ineffectiveness in such a way that he was deprived of a fair trial \u2014 \u201ca trial whose result is reliable.\u201d State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). A stringent standard of proof is required to substantiate ineffective assistance claims. State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974). In fact, our Supreme Court has cautioned that relief based upon such claims should be granted only when counsel\u2019s assistance is \u201cso lacking that the trial becomes a farce and mockery of justice.\u201d State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403 (1981), disc. review denied, 304 N.C. 732, 288 S.E.2d 804 (1982). With these principles in mind, we now consider defendant\u2019s claim for ineffective assistance here.\nSecond, defendant claims ineffective assistance based upon his counsel\u2019s failure to call any witnesses at his sentencing hearing. We have previously rejected this as a ground in a case where the defense counsel was completely silent at the sentencing hearing. See State v. Taylor, 79 N.C. App. 635, 637, 339 S.E.2d 859, 861, disc. review denied, 317 N.C. 340, 346 S.E.2d 146 (1986). Here, although no witnesses were called, counsel did make a short argument advocating lenient sentencing. If total silence cannot be grounds for ineffective assistance, then this situation surely clears the hurdle.\nLast, defendant asserts he was denied effective assistance because his counsel did not cross-examine Detective Arter about a wire that was placed on Mr. Godwin during one of the drug sales, which apparently malfunctioned. \u201c \u2018The decisions on what witnesses to call, whether and how to conduct cross-examination, . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.\u2019 Trial counsel are necessarily given wide latitude in these matters.\u201d State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (emphasis added) (citation omitted), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Given this wide latitude in matters regarding cross-examination, we conclude that the failure to cross-examine Detective Arter about the wire did not render defense counsel\u2019s assistance constitutionally defective. See State v. Swindler, 129 N.C. App. 1, 10, 497 S.E.2d 318, 323-24 (holding no ineffective assistance when defense counsel did not cross-examine certain witnesses regarding matters that might have exposed inconsistencies in the State\u2019s case), aff\u2019d per curiam, 349 N.C. 347, 507 S.E.2d 284 (1998); State v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985) (holding no ineffective assistance when defense counsel did not cross-examine a prison guard regarding his prior inconsistent statements), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986).\nIn sum, we conclude that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges JOHN and EDMUNDS concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General K.D. Sturgis, for the State.",
      "James Q. Wallace, III for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ELISHA LEE MONTFORD\nNo. COA99-530\n(Filed 18 April 2000)\n1. Criminal Law\u2014 joinder \u2014 sale and delivery of cocaine\u2014 transactional connection\nThe trial court did not err in consolidating for trial the two sale and delivery of cocaine offenses under N.C.G.S. \u00a7 15A-926(a) because: (1) the two offenses have a transactional connection since the offenses are identical, both involved selling cocaine to the same person, both involved the same place of sale, both involved the same quantity of cocaine sold, and only three weeks elapsed between the commission of each offense; and (2) joinder of the offenses did not impede defendant\u2019s ability to receive a fair trial and to put on his defense since the State used the same witnesses for both offenses, the same evidence would have been introduced had the trials been separate, and the evidence of the other offense would have been admissible at each trial under N.C.G.S. \u00a7 8C-1, Rule 404(b) to show intent and/or knowledge.\n2. Indictment and Information\u2014 amendment \u2014 habitual felon \u2014 harmless error\nAlthough defendant contends the trial court improperly permitted the State to amend its habitual felon indictment by inserting \u201cin North Carolina\u201d after each listed felony when the original indictment listed that defendant\u2019s three prior felony convictions occurred in Carteret County, any perceived error was harmless because the original indictment itself was not flawed since the association of Carteret County with North Carolina at the top of the indictment, coupled with the subsequent listing of Carteret County as the locale of the prior felony convictions, is sufficient to indicate the state against whom the prior felonies were committed as required by N.C.G.S. \u00a7 14-7.3.\n3. Evidence\u2014 prior crime or act \u2014 drug sales \u2014 intent\u2014common plan or purpose \u2014 identity\nThe trial court did not err in a case involving two sale and delivery of cocaine offenses by denying defendant\u2019s motion for a mistrial based on the admission of testimony from a detective that the informant had previously been arrested for buying cocaine from defendant and agreed to help the police catch defendant, because the evidence of defendant\u2019s prior drug sales was admissible under N.C.G.S. \u00a7 8C-1, Rule 404(b) to prove intent, to show a common plan or purpose, and to identify defendant as the one selling the cocaine.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to request jury instruction on defendant\u2019s silence\nDefendant was not denied effective assistance of counsel in a case involving two sale and delivery of cocaine offenses by his counsel\u2019s failure to request that the jury be instructed on defendant\u2019s failure to testify at trial because: (1) the absence of this instruction did not arise to the level of plain error since the trial court is not required to instruct on a defendant\u2019s silence unless a specific request has been made; and (2) counsel may choose no instruction in order not to emphasize defendant\u2019s silence.\n5. Constitutional Law\u2014 effective assistance of counsel \u2014 sentencing hearing \u2014 failure to call witnesses\nDefendant was not denied effective assistance of counsel in a case involving two sale and delivery of cocaine offenses by his counsel\u2019s failure to call any witnesses at defendant\u2019s sentencing hearing because counsel made a short argument advocating lenient sentencing, and the Court of Appeals has previously held that total silence by defense counsel at a sentencing hearing cannot be grounds for ineffective assistance.\n6. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to cross-examine a witness \u2014 strategic and tactical decision\nDefendant was not denied effective assistance of counsel in a case involving two sale and delivery of cocaine offenses by his counsel\u2019s failure to cross-examine a detective about a wire that was placed on an informant during one of the drug sales, which apparently malfunctioned, because strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.\nAppeal by defendant from judgments entered 4 September 1997 by Judge Jerry R. Tillett in Carteret County Superior Court. Heard in the Court of Appeals 23 February 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General K.D. Sturgis, for the State.\nJames Q. Wallace, III for defendant-appellant."
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