{ "id": 11095992, "name": "STATE OF NORTH CAROLINA v. CHARLIE JAMES MACKEY", "name_abbreviation": "State v. Mackey", "decision_date": "2000-05-02", "docket_number": "No. COA99-650", "first_page": "734", "last_page": "740", "citations": [ { "type": "official", "cite": "137 N.C. App. 734" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "241 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0407-01" ] }, { "cite": "299 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521539 ], "year": 1983, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0425-01" ] }, { "cite": "448 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524532 ], "year": 1994, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0445-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(a)(1)", "parenthetical": "it is unlawful for any person to \"manufacture, sell or deliver ... a controlled substance. . . .\" " } ], "opinion_index": 0 }, { "cite": "196 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "739", "parenthetical": "stating the \"essential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he is better qualified than the jury to form an opinion on the subject matter to which his testimony applies.\"" } ], "opinion_index": 0 }, { "cite": "283 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559216 ], "year": 1973, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0462-01" ] }, { "cite": "394 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "282" }, { "page": "283", "parenthetical": "citations omitted" }, { "page": "283" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524548 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "663" }, { "page": "663" }, { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0658-01" ] }, { "cite": "522 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "334-35" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242623 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0682-01" ] }, { "cite": "241 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "294 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "241 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "672" } ], "opinion_index": 1 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "pin_cites": [ { "page": "415" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0407-01" ] } ], "analysis": { "cardinality": 702, "char_count": 15319, "ocr_confidence": 0.744, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33194946886864835 }, "sha256": "d5dace42f5d1bf77ef3dbbb7a676b8a1fa1836eb30c98c509c9307ab80576ba1", "simhash": "1:05b9f8e977ca0d6a", "word_count": 2565 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judge HORTON dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLIE JAMES MACKEY" ], "opinions": [ { "text": "WYNN, Judge.\nA Hyde County jury found Charlie James Mackey guilty of Possession With Intent to Sell and Deliver Cocaine, and Sale and Delivery of Cocaine. On appeal, we find no error in his trial.\nThe State\u2019s evidence showed that Art Manning, a retired police officer, worked with, undercover drug investigations throughout the State for over thirty years. On 15 November 1996, he assisted the Hyde County Sheriffs Department in an undercover drug operation by purchasing crack cocaine from the defendant on two separate occasions.\nFirst, at approximately 6:00 p.m., the defendant asked Manning to step outside of a poolroom where he further asked \u201cwas he looking\u201d. Manning, understanding that \u201clooking\u201d indicated that a person wanted to purchase drugs or cocaine lines, replied that he was \u201clooking.\u201d Manning then purchased two \u201c20\u2019s,\u201d \u2014 pieces of crack cocaine worth twenty dollars \u2014 from the defendant.\nSecond, at approximately 11:00 p.m., Darryl Shelby asked Manning to step outside of the same poolroom and like the defendant he further asked Manning if he was \u201clooking.\u201d Manning responded that he was \u201clooking\u201d for \u201ca couple of 50\u2019s\u201d \u2014 pi\u00e9ces of crack cocaine worth fifty dollars each. Shelby stated, \u201cAs soon as my man gets back, I\u2019ll take care of you.\u201d At around 11:10 p.m., the defendant drove up in a 1994 Dodge van. Shelby told Manning, \u201cWait right here for me. We have got to go cut it up.\u201d After the men finished cutting the cocaine, Shelby got out of the van, walked up to Manning and stated, \u201cWalk over to the van. My man C.J.\u2019s got you two 50\u2019s.\u201d Manning walked over to the van and purchased the two \u201c50\u2019s\u201d from the defendant.\nThe defendant presented evidence that when Manning made the undercover purchases, he was neither accompanied by any of the officers with the Hyde County Sheriff Department neither wore any recording devices nor was he frisked by the officers. The defendant also presented evidence that Manning frequently smoked the drugs; shared the drugs with a paid confidential informant; and purchased drugs in one place, but labeled them for another place.\nThe defendant also attempted to tender Kenneth Johnson \u2014 an employee of Blackman Detective services and a retired police officer of 30 years \u2014 as an expert witness in drug investigation procedures. The following colloquy occurred during the trial:\nThe Court: Okay. Mr. Philbeck, tell me in your own words what you intend to elicit from this witness.\nMr. Philbeck: Your Honor, for our case, and this is important, and we looked at the actual drug undercover operation here. Major Johnson has extensive experience, 30 years of experience in this, and has taught. His experience I think could be unmatched in this state. He can talk about standards of drug investigations. He can talk about how they operate and what is a good undercover operation and what is a poor operation at the buy/sell level, at the informant level, buy/sell, from that end. . . . and, without Major Johnson testifying as to certain standards that are important and universal \u2014 it\u2019s not just a Raleigh thing; it\u2019s for any drug operation \u2014 -he can help that jury understand. Without him, I can\u2019t argue to the jury what was a good investigation or \u2022 what was not good from the buy/sell level, and I got to have that covered in fairness to Mr. Mackey as far as what he faces. . . .\nThe trial court did not allow Johnson\u2019s testimony upon finding that the standard used in drug investigations was not a consequential fact that would aid the jury in its determination of the case.\nFrom his convictions, the defendant appealed.\nOn appeal, the defendant contends that the trial court erred in refusing to: (1) allow Johnson to testify as an expert witness and (2) accept Johnson\u2019s testimony as an offer of proof to preserve the record for appellate review.\nFirst, the defendant argues that Johnson\u2019s testimony should have been admitted as expert testimony for drug investigation procedures.\nThe admissibility of expert witness testimony is governed by Rule 702 of the North Carolina Rules of Evidence.\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702 (1992); see also State v. Bowers, 135 N.C. App. 682, 522 S.E.2d 332 (1999).\n\u201cUsually, a determination of whether a witness is qualified as an expert is exclusively within the discretion of the trial court and will not be reversed absent a complete lack of evidence to support its ruling.\u201d Bowers, 135 N.C. App. at 685, 522 S.E.2d at 334-35. Nonetheless, an expert\u2019s testimony will only be admissible if the testimony is helpful to the jury. See State v. Huang, 99 N.C. App. 658, 663, 394 S.E.2d 279, 282 (1990); see also State v. Mitchell, 283 N.C. 462, 467, 196 S.E.2d 736, 739 (1973) (stating the \u201cessential question in determining the admissibility of opinion evidence is whether the witness, through study or experience, has acquired such skill that he is better qualified than the jury to form an opinion on the subject matter to which his testimony applies.\u201d)\nEvidence is relevant if it \u2018has any logical tendency, however slight, to prove the fact at issue in the case.\u2019. . . It is relevant if it can assist the jury in \u2018understanding the evidence.\u2019\nHuang, 99 N.C. App. at 663, 394 S.E.2d at 283 (citations omitted).\nIn the present case, the record contained evidence that Manning purchased crack cocaine from the defendant on two separate occasions on 16 November 1996. This evidence was sufficient to prove the substantive offenses for which the defendant was charged\u2014 Possession With Intent to Sell and Deliver Cocaine and Sale and Delivery of Cocaine. See N.C. Gen. Stat. \u00a7 90-95(a)(1) (1993) (it is unlawful for any person to \u201cmanufacture, sell or deliver ... a controlled substance. . . .\u201d ).\nThe only purpose for admitting the proposed testimony was to challenge the undercover procedures used by Manning in obtaining the drugs from the defendant. However, the record already contained evidence that Manning used the drugs from the buys and evidence regarding the procedures used in the undercover drug operation. The jury had the ability, on its own, to assess Manning\u2019s credibility given this evidence. See Huang, 99 N.C. App. at 663, 394 S.E.2d at 283. Thus, the trial court\u2019s refusal to admit this testimony did not constitute an abuse of discretion.\nNext, the defendant argues that the trial court erred when it refused to allow him to make an offer of proof regarding Johnson\u2019s testimony, thereby depriving him of preserving a proper record for appeal.\n\u201cIt is fundamental that trial counsel be allowed to make a trial record sufficient for appellate review.\u201d State v. Brown, 116 N.C. App. 445, 447, 448 S.E.2d 131, 132 (1994); see State v. Rudd, 60 N.C. App. 425, 427, 299 S.E.2d 251, 253 (1983).\nA judge should be loath to deny an attorney his right to have the record show the answer a witness would have made when an objection to the question is sustained. In refusing such a request the judge incurs the risk (1) that the Appellate Division may not concur in his judgment that the answer would have been immaterial or was already sufficiently disclosed by the record, and (2) that he may leave with the bench and bar the impression that he acted arbitrarily.\nState v. Chapman, 294 N.C. 407, 415, 241 S.E.2d 667, 672 (1978).\nIn the case at bar, although the trial court did not allow Johnson to testify, the trial court did give the defense counsel several opportunities during the trial to describe the content of proposed testimony. For instance, the following dialogue took place during the trial:\nMR. Pi-iilbeck: Okay. Your Honor, respectfully, could I make the request that you hear from Major Johnson himself, just a brief synopsis of what he would testify by way of his offer of proof just to make sure that we have exactly what he\u2019s going to testify to on the record? If you deny it, Your Honor, that\u2019s fine. I just want to get it on the record that I\u2014\nThe Court: Yes, I understand that. I have asked you to state \u2014 I assume that you know what your witness is going to say on the stand. Now, I don\u2019t want to \u2014 you know, to waste my time sitting here listening to the procedures in Raleigh. I\u2019m not going to do that.\nMr. Philbeck: It\u2019s statewide procedures\u2014\nThe Court: Or statewide procedures \u2014 Now, if he\u2019s going to get up here and say that he waited too long, three and a half hours is too long, before he delivered the dope to the sheriff that\u2019s irrelevant.\nMr. Philbeck: That\u2019s part of what he would say, Your Honor.\nThe Court: Well, now, what is the other part? I\u2019ve asked you to tell me what he\u2019s going to say.\nMr. Philbeck: This control mechanism. This whole case\u2014\nThe Court: Oh, the control mechanism.\nMr. Philbeck: Yes, sir. This whole case revolves from the State the credibility of Mr. Manning.\nThe Court: What aspects of the control mechanism?\nMr. Philbeck: Whether \u2014 how drugs, you know, one theory is that and there\u2019s some evidence that Mr. Manning was sharing some of the drugs or some drugs, however he received them, at some point in time from other drug dealers in this area. He denied that. The procedures that control this are put in place to prevent that from happening. I think the jury should hear that.\nThe Court: Mr. Philbeck, the Court is going to find that that would not assist the jury in any finding of fact. If the jury determine, finds as fact, that the undercover agent did in fact share controlled substances, which they have ample evidence before them to find if they wish to find that, then how is \u2014 I think by their own common sense they know that that\u2019s improper and would destroy the credibility of the undercover agent, and to have somebody to come in and testify to that, they don\u2019t need that. It\u2019s not going to be able to assist them in anything. They already know that\u2019s wrong. . . .\nFrom this dialogue, we are able to determine that the defense counsel sufficiently forecasted the content of the proposed testimony. Therefore, if any error resulted from the trial court\u2019s refusal to allow Johnson to testify, such error was harmless and did not deprive the defendant of a trial record sufficient for appellate review.\nThe defendant received a fair trial, free from prejudicial error.\nNo error.\nJudge SMITH concurs.\nJudge HORTON dissents in a separate opinion.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Horton\ndissenting.\nIn this prosecution for the possession and sale of illicit drugs, the State relied on the testimony of a former police officer with 30 years of experience in undercover drug investigations. Defendant sought to attack the credibility of the State\u2019s witness through the testimony of Major Johnson, also a retired police officer with 30 years of experience. Defendant contended that the State\u2019s witness substantially departed from usual and customary undercover procedures, and that his testimony about drug purchases from defendant was suspect. The trial court found that Johnson\u2019s testimony would not assist the jury, and declined to allow defendant to place the testimony of Johnson on the record. The majority hold that the trial court\u2019s refusal to allow Johnson\u2019s testimony was not an abuse of discretion, and the trial court\u2019s refusal to allow defendant to place the excluded testimony in the record was not prejudicial error. I respectfully dissent from both holdings.\nWhen the trial court sustains an objection to a question, it is basic learning that the trial court ordinarily should permit counsel to place in the record the answer to the question so that an appellate court might properly review the action of the trial court. \u201cIndeed, an exception to the action of the trial court will be worthless on appeal unless the answer is thus preserved.\u201d State v. Chapman, 294 N.C. 407, 415, 241 S.E.2d 667, 672 (1978). Our Rules of Civil Procedure require that in civil cases tried before the jury, the trial court \u201con request of the examining attorney shall order a record made of the answer the witness would have given.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 43(c) (1999). Certainly due process demands no less in a criminal trial.\nOur Supreme Court ruled in Chapman that the failure of the trial court to allow counsel to complete the record was a \u201cregrettable judicial mistake,\u201d but ruled that the trial court\u2019s error was not prejudicial because the witness had already \u201canswered the question sufficiently to demonstrate the immateriality of the inquiry. ...\u201d Chapman, 294 N.C. 415, 241 S.E.2d 672. Here, the majority hold that defense counsel made a sufficient forecast of the expert testimony he sought to offer, so that any error by the trial court was not prejudicial. I cannot say on this record that the testimony of the expert witness would not have assisted the jury in assessing the credibility of the key witness for the State. The undercover witness for the State had worked in undercover drug investigations for more than 30 years. Testimony which apparently would have shown that, despite his long experience in such undercover investigations, the State\u2019s witness significantly departed from proper police procedure in making undercover drug buys, would seem to bear on both his credibility and the weight to be given his testimony by the jury. Because the excluded testimony is not before us, we cannot properly review the actions of the trial court in excluding the testimony. In these circumstances where there are serious questions about the relevancy and materiality of certain testimony, and the trial court\u2019s ruling prevents the defendant from bringing the proffered testimony before us for proper review, we should resolve all such threshold evidentiary questions in favor of the defendant and remand for a new trial. Accordingly, I vote to do so.", "type": "dissent", "author": "Judge Horton" } ], "attorneys": [ "Wilkinson & Rader, RA., by Steven P. Rader, for the defendant.", "Michael F Easley, Attorney General, by Douglas A. Johnston, Special Deputy Attorney General, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLIE JAMES MACKEY\nNo. COA99-650\n(Filed 2 May 2000)\n1. Evidence\u2014 expert testimony \u2014 usefulness to jury\nThe trial court did not abuse its discretion in a cocaine prosecution by not admitting defendant\u2019s expert witness testimony on drug investigatory procedures where the only purpose of the testimony was to challenge the undercover procedures used in obtaining drugs from defendant, but the record already contained evidence regarding the procedures used in the undercover operation and that the undercover investigator had used the drugs from the buys. The jury had the ability to assess the investigator\u2019s credibility on its own.\n2. Evidence\u2014 offer of proof \u2014 denied\u2014content of proffered testimony apparent\nThere was no prejudicial error in a cocaine prosecution where the court excluded testimony from a defense expert on undercover procedures and refused to allow an offer of proof. Defense counsel forecast the content of the proposed testimony and defendant was not deprived of a trial record sufficient for appellate review.\nJudge Horton dissenting.\nAppeal by defendant from judgment entered 5 November 1998 by Judge W. Russell Duke, Jr., in Superior Court, Hyde County. Heard in the Court of Appeals 30 March 2000.\nWilkinson & Rader, RA., by Steven P. Rader, for the defendant.\nMichael F Easley, Attorney General, by Douglas A. Johnston, Special Deputy Attorney General, for the State." }, "file_name": "0734-01", "first_page_order": 766, "last_page_order": 772 }