{
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    "judges": [
      "Judges EAGLES and COZORT concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. THON JAIRO AGUDELO, and JESUS BEATON"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nDefendants Thon Jairo Agudelo and Jesus Beaton were each convicted of two counts of trafficking in cocaine and two counts of conspiring to traffic in cocaine. They were each sentenced to two 35-year prison terms, with the sentences to run concurrently, and were fined $250,000. Defendants appeal. We vacate the second conspiracy conviction of each defendant but find no other errors.\nI\nDefendants were arrested as a result of an intricate undercover police drug investigation. The State presented evidence that Detective Roger Laney of the Union County Sheriffs Department and Agent Mark Hawkins of the State Bureau of Investigation (S.B.I.) purchased marijuana from Don Flock and Brenda Huggett in October 1986. After the marijuana transaction was consummated, Detective Laney asked Flock and Huggett to aid him in purchasing a large quantity of cocaine.\nHuggett traveled to Miami, Florida to arrange the cocaine purchase through Jose Rodriguez and Elizabeth Chandros. Chan-dros and Rodriguez, in turn, contacted defendant Jesus Beaton. Defendant Beaton coordinated Rodriguez\u2019s and Chandros\u2019 efforts to acquire the cocaine. Defendant Beaton informed Rodriguez and Chandros that \u201cthe Columbian,\u201d Thon Jairo Agudelo, had the cocaine. Then defendant Beaton, accompanied by Rodriguez and Chandros, visited Luis Otero, who, in turn, contacted defendant Agudelo and arranged the transfer. Defendant Beaton, Rodriguez and Chandros then drove to defendant Agudelo\u2019s Miami apartment. Otero and defendant Agudelo also drove to the apartment. Defendants Beaton and Agudelo entered the apartment together but returned to their respective vehicles after approximately ten minutes.\nThe two groups then drove separately to Charlotte, North Carolina. When Chandros\u2019 party arrived in Charlotte, she telephoned Huggett to arrange accommodations. They obtained two rooms at the Ramada Inn. Room 511 was shared by Rodriguez and Chandros, and Room 509 was occupied by defendant Beaton. There was circumstantial evidence that defendant Beaton then telephoned Otero and defendant Agudelo who were sharing Room 202 at Travel Lodge. Upon instructions from defendant Beaton, Rodriguez went to Room 202 at Travel Lodge to pick up the cocaine which was contained in a bag identified by the Kentucky Fried Chicken trademark. Defendant Agudelo gave the bag to Rodriguez. Rodriguez gave the bag to Huggett. Huggett gave the bag to Flock. Flock examined the contents, tested the strength of the substance therein and gave the bag to Detective Laney and Agent Hawkins. The officers arrested Flock.\nFlock agreed to lead the officers to his source. Flock led the officers to Huggett by enticing her to meet him to accept the payoff for the sale. When Huggett arrived, she too was arrested. Huggett led the officers to Ramada Inn Rooms 509 and 511 where the officers arrested defendant Beaton, Rodriguez and Chandros. Chandros cooperated with the officers and told them that they had acquired the cocaine from defendant Agudelo who could be found in Travel Lodge Room 202. After a warrant was obtained, defendant Agudelo and Otero were arrested.\nDefendants raised eight issues on appeal.\nII\nDefendants first contend that the trial judge erred in denying their motions to dismiss the trafficking charges because the evidence was insufficient to support the verdict. Defendants argue that the State proceeded against them regarding the charges of trafficking in cocaine by possession, sale, and delivery on the theory that each man aided Don Flock in the sale and delivery of cocaine to Agent Hawkins and Detective Laney. However, they argue that neither of them was present when Flock sold or delivered the cocaine to Hawkins and Laney, and therefore they are not guilty of \u201caiding.\u201d\nDefendants misapprehend the law. Defendants may be convicted of the substantive offense of trafficking in cocaine if they were \u201caccessories before the fact.\u201d See N.C. Gen. Stat. Sec. 14-5.2; State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982). The elements of \u201caccessory before the fact\u201d are as follows: (1) defendant advised and agreed, or urged the parties or in some way aided them to commit the offense; (2) defendant was not present when the offense was committed; and (3) the principals committed the crime. State v. Sauls, 291 N.C. 253, 230 S.E. 2d 390 (1976), cert. denied, 431 U.S. 916, 53 L.Ed. 2d 226 (1977). Thus, under our law the State was not required to prove that defendants were, present during sale, delivery, or possession of the cocaine. The evidence, when considered in the light most favorable to the State, showed that defendants participated as accessories before the fact by aiding Don Flock. This assignment of error is overruled.\nIII\nDefendants next contend that the trial judge erred in entering judgments for multiple conspiracies against them because the evidence revealed only one agreement. We agree. In State v. Rozier, 69 N.C. App. 38, 316 S.E. 2d 893, cert. denied, 312 N.C. 88, 321 S.E. 2d 907 (1984), this court held that where each act is the product of but one agreement, only one conspiracy may be charged. We therefore vacate the second conspiracy conviction against each defendant. However, because the trial judge imposed the minimum sentence for each conviction and provided that the sentences run concurrently, we do not remand for resentencing.\nIV\nDefendants next contend that the trial judge erred in admitting testimony regarding the results of laboratory analysis of the seized substance because the State failed to demonstrate the validity and reliability of the tests.\nAgent McSwain, a chemist at the State Bureau of Investigations\u2019 crime laboratory, testified that he personally conducted two tests to identify the substance seized. He testified that he obtained an infra-red spectrum of samples and conducted microcrys-talline tests on a portion of the powdered substance. He described his expertise in administering these tests, but he did not explain how the tests worked, i.e., how results were obtained or whether the tests were reliable. He testified that the tests revealed that the substance was cocaine. In our view, the foundation met the minimum requirement for admission of results from scientific tests. Equally important, however, defendants failed to inquire into the reliability of the tests during voir dire or cross-examination as they were permitted to do under Rule 705 of the N.C. Rules of Evidence. The State\u2019s position is also buttressed by other evidence that the substance was cocaine. Don Flock testified, without objection by defendants, that the substance was extremely strong cocaine. This assignment of error is overruled.\nV\nDefendants next contend that the trial judge erred by admitting the Ramada Inn telephone records in evidence. They argue that the State failed to demonstrate the trustworthiness of the records.\nThe telephone records of the Ramada Inn were admitted under Rule 803(6), the business records exception, of the North Carolina Rules of Evidence. The records were introduced through the testimony of Greg Clark who was employed as a \u201cfront office person\u201d at Ramada Inn during October 1986. Clark testified that the records were produced by a machine installed for that purpose by the telephone company. The machine registered the room number from which each call from the hotel was made, the time the call began and ended, and the phone number that was called. Other hotel personnel had access to the records, and Clark had no idea when the machine was last checked for maintenance.\nWe do not subscribe to the view urged by defendants that the records were untrustworthy simply because they were recorded by a machine as opposed to a person. See State v. Springer, 283 N.C. 627, 197 S.E. 2d 530 (1973) (computer printout cards are admissible as business records so long as the foundation shows trustworthiness). We are troubled, however, by the fact that the machine\u2019s accuracy had not been verified. Thus, we hold that the foundation was insufficient to admit the evidence as business records. Nevertheless, there was substantial circumstantial evidence which indicated that defendant Beaton was communicating with defendant Agudelo and Luis Otero. Soon after defendant Beaton placed a telephone call in Rodriguez\u2019s presence, he gave Rodriguez a note advising him where to find defendant Agudelo to receive the cocaine. Thus the error was harmless.\nVI\nDefendants next contend that the trial judge erred by joining their cases for trial. Defendants argue that they were prejudiced because evidence was admitted against one of them which was inadmissible against the other. Specifically, defendant Beaton contends he was prejudiced by the admission of evidence seized from defendant Agudelo\u2019s hotel room, and both contend each was prejudiced by the admission of hearsay that was admissible only against the other.\nThe trial judge has broad discretion in ruling on the matter of severance. State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976); State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). The test for determining whether a trial judge abused his discretion is \u201cwhether the conflict in defendants\u2019 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.\u201d State v. Nelson, 298 N.C. 573, 587, 260 S.E. 2d 629, 640 (1979), cert. denied, 446 U.S. 929 (1980).\nIn the instant case, defendants were charged with conspiracy and other related crimes. The activities of each of them and the other participants in furtherance of the conspiracy were admissible against them both. Thus, evidence seized in defendant Agu-delo\u2019s room was likewise admissible against both defendants. Although the transcript contains a few hearsay statements, in light of the great abundance of the evidence and the intricacy of the operation, we hold that the trial judge did not abuse its discretion in this case. This assignment of error is overruled.\nVII\nDefendant Beaton alone next contends that the trial judge erred in admitting, over his objection, testimony concerning the discovery of drug paraphernalia in the motel room occupied by Rodriguez and Chandros. Defendant argues that the evidence was irrelevant. We agree. However, Rodriguez had testified previously, without objection, that he used cocaine in his hotel room and that he received a small amount of cocaine from defendant Beaton earlier in the day. Thus, any harm caused by the inadmissible evidence was negligible. In light of all the evidence, we do not believe defendant was prejudiced by the erroneously admitted evidence.\nVIII\nDefendants next contend that the trial judge erred by failing to conduct a proper inquiry into the prosecutor\u2019s motives for exercising peremptory challenges to exclude prospective black jurors. Defendant Beaton objected to the exclusion of blacks from the venire. After hearing the prosecutor\u2019s explanations, the trial judge overruled the objection. The prosecutor proceeded to excuse more blacks and defendant objected again. The trial judge then ruled that because defendants were Hispanic, not black, they were not entitled to challenge the exclusion of blacks under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69 (1986) or State v. Cofield, 320 N.C. 297, 357 S.E. 2d 622 (1987).\nDefendants argue, that notwithstanding their inability to raise an Equal Protection challenge to the jury selection process, the Sixth Amendment to the U.S. Constitution guarantees an impartial jury to all citizens and that this guarantee gives standing to all defendants to challenge the use of peremptory challenges to exclude prospective jurors based solely on race. Moreover, defendants argue, the North Carolina Constitution, in Article I, Sections 19 and 26, mandates fairness and equality in the jury selection process. See Cofield. The question whether defendants may raise a Sixth Amendment challenge to the racially motivated exercise of peremptory challenges is an open one. See Teague v. Lane, 820 F. 2d 832 (7th Cir. 1987), cert. granted, \u2014 U.S. \u2014, \u2014 L.E. 2d \u2014 (No. 87-5259, March 7, 1988). Indeed, the degree to which the North Carolina Constitution constrains racially motivated use of peremptory challenges in this case is open as well. Only two justices addressed this issue in Cofield. In his opinion concurring in the result, Justice Mitchell, joined by Justice Whichard, said:\n. . . Nor do I believe that the people intended that, in order to raise questions concerning alleged violations of this section, a person must be a member of any cognizable racial or ethnic group. Instead, the intent of the people of North Carolina was to guarantee absolutely unto themselves that in all cases their system of justice would be free of both the reality and the appearance of racism, sexism and other forms of discrimination in these twilight years of the Twentieth Century. (Emphasis in original.)\n320 N.C. at 310, 357 S.E. 2d at 630.\nHowever, even if defendants had standing to raise such an issue, defendants would have the threshold requirement of making a prima facie showing that exclusion was based on race. See, e.g., McCray v. Abrams, 750 F. 2d 1113 (2d Cir. 1984), cert. denied, 471 U.S. 1097, 85 L.Ed. 2d 837 (1985). The record here is inadequate for us to address this issue. The record does not show the racial composition of the jury, the number of blacks who were excluded, nor the extent to which the excluded jurors were otherwise qualified to serve.\nThis assignment of error is overruled.\nIX\nDefendant Agudelo finally contends that the trial judge erred in admitting the evidence seized from his motel room and automobile because the search warrant was not based on probable cause. Defendant argues that the affidavit on which the warrant was based was insufficient because nothing in the warrant attested to the reliability of the informant. We disagree. The warrant was obtained during a continuing investigation after the informant, Chandros, was taken into custody for her participation in the suspected crime. Such statements have inherent indicia of reliability. See US. v. Harris, 403 U.S. 573, 29 L.Ed. 723 (1971); State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984). This assignment is overruled.\nIn summary, we vacate the second conspiracy conviction against each defendant; we find no other prejudicial error.\nJudgment is vacated in part.\nJudges EAGLES and COZORT concur.",
        "type": "majority",
        "author": "BECTON, Judge."
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    "attorneys": [
      "Attorney General Lacy H. Thornburg by Special Deputy Attorney General Daniel F. McLawhom for the State.",
      "Purser, Cheshire, Parker, Hughes, and Dodd by Gordon Wi-denhouse for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THON JAIRO AGUDELO, and JESUS BEATON\nNo. 8720SC682\n(Filed 19 April 1988)\n1. Criminal Law \u00a7 10.2\u2014 trafficking in cocaine \u2014accessories before the fact \u2014 sufficiency of evidence\nDefendants could properly be convicted of trafficking in cocaine, though they were not present when the cocaine was actually sold or delivered, where the evidence showed that defendants participated as accessories before the fact. N.C.G.S. \u00a7 14-5.2.\n2. Conspiracy \u00a7 8\u2014 one agreement \u2014 judgments for multiple conspiracies improper\nThe trial judge erred in entering judgments for multiple conspiracies against defendants where the evidence revealed only one agreement; however, because the judge imposed the minimum sentence for each conviction and provided that the sentences run concurrently, the case is not remanded for resentencing.\n3. Narcotics g 3.1\u2014 laboratory analysis of seized substance \u2014 validity and reliability of tests\nIn a prosecution for trafficking and conspiring to traffic in cocaine, there was no merit to defendants\u2019 contention that the trial judge erred in admitting testimony regarding the results of laboratory analysis of the seized substance because the State failed to demonstrate the validity and reliability of the tests, since an SBI chemist testified that he performed two tests on the substance, named those tests, described his expertise in administering those tests but did not explain how the tests worked, and testified that the tests revealed that the substance was cocaine; defendants failed to inquire into the reliability of the tests during voir dire or cross-examination; and the person who sold the substance to undercover agents testified that it was extremely strong cocaine.\n4. Criminal Law \u00a7 80.1\u2014 telephone records generated by machine \u2014 reliability not shown \u2014 admission as harmless error\nIn a prosecution for trafficking and conspiring to traffic in cocaine, telephone records of a hotel were improperly admitted under the business records exception where the records were produced by a machine, but several hotel personnel had access to the records, and the hotel employer testifying with regard to the records had no idea when the machine was last serviced; however, the error was harmless where there was other evidence showing the same facts which the telephone records showed. N.C.G.S. \u00a7 8C-1, Rule 803(6).\n5. Criminal Law 8 92.1\u2014 trafficking and conspiring to traffic in cocaine \u2014 joinder of cases against two defendants proper\nThe trial judge did not abuse his discretion in joining for trial cases against the two defendants for trafficking and conspiring to traffic in cocaine where evidence of activities of each was admissible against the other, and evidence seized from one defendant\u2019s room was admissible against both.\n6. Criminal Law 8 162\u2014 evidence improperly admitted \u2014 similar evidence previously admitted without objection\nOne defendant was not prejudiced by the erroneous admission of testimony concerning the discovery of drug paraphernalia in a motel room occupied by two of the participants in a cocaine conspiracy, since one of the participants had previously testified without objection that he used cocaine in his hotel room.\n7. Constitutional Law 8 60; Jury 8 7.14\u2014 peremptory challenges based on race\u2014 failure of record to show\nDefendants failed to make a prima facie showing that the prosecutor\u2019s exercise of his peremptory challenges was based on race where the record did not show the racial composition of the jury, the number of blacks who were excluded, or the extent to which the excluded jurors were otherwise qualified to serve.\n8. Searches and Seizures 8 24\u2014 statements from informer in custody \u2014 reliability \u2014sufficiency of affidavit to support search warrant\nThere was no merit to defendant\u2019s contention that the affidavit on which a search warrant was based was insufficient because nothing in the warrant attested to the reliability of the informant, since the warrant was obtained during a continuing investigation after the informant was taken into custody for her participation in the suspected crime, and such statements have inherent in-dicia of reliability.\nAppeal by defendants from F. F. Mills, Judge. Judgment entered 20 March 1987 in Superior Court, Union County. Heard in the Court of Appeals 11 December 1987.\nAttorney General Lacy H. Thornburg by Special Deputy Attorney General Daniel F. McLawhom for the State.\nPurser, Cheshire, Parker, Hughes, and Dodd by Gordon Wi-denhouse for defendant-appellants."
  },
  "file_name": "0640-01",
  "first_page_order": 668,
  "last_page_order": 676
}
