{ "id": 8526987, "name": "STATE OF NORTH CAROLINA v. FOTIOS KAMTSIKLIS", "name_abbreviation": "State v. Kamtsiklis", "decision_date": "1989-06-20", "docket_number": "No. 883SC834", "first_page": "250", "last_page": "261", "citations": [ { "type": "official", "cite": "94 N.C. App. 250" } ], "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": "340 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "464" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "306 S.E. 2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763838 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0451-01" ] }, { "cite": "300 S.E. 2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519317 ], "year": 1983, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0023-01" ] }, { "cite": "341 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719265, 4714405, 4718935, 4716283, 4715262 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0595-03", "/nc/315/0595-02", "/nc/315/0595-05", "/nc/315/0595-01", "/nc/315/0595-04" ] }, { "cite": "335 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "66" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522019 ], "year": 1985, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0292-01" ] }, { "cite": "255 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "369" } ], "opinion_index": 0 }, { "cite": "297 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570457 ], "year": 1979, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0388-01" ] }, { "cite": "367 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "306 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526451 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0177-01" ] }, { "cite": "250 S.E. 2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552239 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0359-01" ] }, { "cite": "359 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "775" } ], "opinion_index": 0 }, { "cite": "320 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723431 ], "year": 1987, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0626-01" ] }, { "cite": "316 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "311 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681917 ], "year": 1984, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0183-01" ] }, { "cite": "181 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "377 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486332 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0233-01" ] }, { "cite": "343 S.E. 2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "316 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695646 ], "year": 1986, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0630-01" ] }, { "cite": "300 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565397 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0645-01" ] }, { "cite": "313 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "558" }, { "page": "599" }, { "page": "558-559" }, { "page": "559" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "356 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742661, 4740409, 4739060, 4748564, 4745657 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0677-04", "/nc/319/0677-03", "/nc/319/0677-05", "/nc/319/0677-02", "/nc/319/0677-01" ] }, { "cite": "352 S.E. 2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167877 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0150-01" ] } ], "analysis": { "cardinality": 868, "char_count": 24999, "ocr_confidence": 0.737, "pagerank": { "raw": 3.947537094218011e-07, "percentile": 0.9036862766902627 }, "sha256": "21a8984b3dfa59387c0b372e63f66844c0a4dc98c41a4b512c17fff506081709", "simhash": "1:4d6bc123761edd76", "word_count": 4075 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WELLS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FOTIOS KAMTSIKLIS" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward nine issues on appeal. We find that the trial court erred in allowing more than one conspiracy charge to go to the jury. The trial court also erred in sentencing defendant for his conviction on conspiracy to sell to a term in excess of the statutory mandatory minimum without finding any aggravating factors. Accordingly, we arrest judgment on the conviction for conspiracy to transport cocaine and vacate the sentence and remand for resentencing on the conviction of conspiracy to sell cocaine. We find no other error.\nDefendant first argues that the four separate conspiracies for which he was charged were, in fact, only a single conspiracy and that his conviction for more than that single conspiracy violated his right to be free from double jeopardy. The State concedes that this court\u2019s opinion in State v. Worthington, 84 N.C. App. 150, 352 S.E. 2d 695, disc. rev. denied, 319 N.C. 677, 356 S.E. 2d 785 (1987), mandates that only one conspiracy charge should have been submitted to the jury. Accordingly, we arrest judgment as to defendant\u2019s conviction for conspiracy to transport cocaine.\nDefendant next argues that the trial court erred in allowing the State\u2019s oral motion to amend the conspiracy indictments. The indictments initially charged that the conspiracies occurred \u201con or about May 6, 1987 through May 12, 1987.\u201d The amended indictments changed the time of the conspiracies to a period beginning on April 19, 1987 until May 12, 1987. Defendant argues that this amendment deprived him of his right to be tried on the charges returned by the grand jury. Furthermore, he contends that upon amendment of the indictments he was deprived of sufficient notice to prepare a defense.\nG.S. 15A-923(e) provides that \u201c[a] bill of indictment may not be amended.\u201d In State v. Price, 310 N.C. 596, 598, 313 S.E. 2d 556, 558 (1984), our Supreme Court stated that an amendment was \u201cany change in the indictment which would substantially alter the charge set forth in the indictment.\u201d The trial court in Price had allowed the State to amend a murder indictment by alleging the date of the offense rather than the date of the victim\u2019s death. There the court stated that \u201cbecause the change did not \u2018substantially alter the charge set forth in the indictment\u2019 \u201d the amendment was not violative of G.S. 15A-923(e). Id. at 599, 313 S.E. 2d at 558-559. [Emphasis in original.] Here the conspiracy charges have not been substantially altered by changing the dates recited in the indictments.\nDefendant further claims that because the amendments occurred on the morning of trial he was deprived of sufficient notice to prepare a defense. We disagree. Defendant correctly states that error occurs when time is material to the indictment and an amendment would deprive defendant of the opportunity to prepare his defense. See id. Ordinarily, the precise dates of a conspiracy are not essential to the indictment because the crime is complete upon the meeting of the minds of the confederates. State v. Christopher, 307 N.C. 645, 300 S.E. 2d 381 (1983). Furthermore, defendant did not raise an alibi defense or any other defense which would make time critical to his defense. See Price at 599, 313 S.E. 2d at 559. Accordingly, we overrule this assignment of error.\nDefendant\u2019s third assignment of error concerns the trial court\u2019s instructions on the substantive offenses. Defendant argues that the trial court erred in failing to give his requested instructions. He contends that his tendered instructions clarified that the jury could convict him of the substantive counts of the indictment based solely on the evidence of events allegedly occurring on May 12, 1987. We note that the trial court \u201cis not required to give a requested instruction in the exact language of the request,\u201d State v. Paige, 316 N.C. 630, 662, 343 S.E. 2d 848, 867 (1986), so long as the substance of defendant\u2019s requested instruction is given. See also State v. Ball, 324 N.C. 233, 377 S.E. 2d 70 (1989). Here the trial court instructed the jury concerning the dates the offenses occurred and, more specifically, stated that \u201cI would also charge you that the defendant is not on trial for any offence [sic] not charged in the indictments which are before you in this trial.\u201d The trial court\u2019s instruction was correct and in substance covered the points requested by defendant.\nNext, defendant argues that the trial court erred in allowing into evidence four tape recordings which were played for the jury. Specifically defendant contends that the State did not lay a proper foundation for the tapes\u2019 admission, that the trial court failed to review the tapes on voir dire in order to delete irrelevant and prejudicial material on the tapes, and failed to direct the court reporter to record what was heard when the tapes were played for the jury. Upon a careful review of this assignment of error, we find no prejudicial error.\nDefendant argues that the State failed to properly authenticate the tape recordings as required by State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971). Our Supreme Court there set the following prerequisites for the admission of a tape recording:\n(1) that the recorded testimony was legally obtained and otherwise competent; (2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded; (3) that the operator was competent and operated the machine properly; (4) the identity of the recorded voices; (5) the accuracy and authenticity of the recording; (6) that defendant\u2019s entire statement was recorded and no changes, additions, or deletions have since been made; and (7) the custody and manner in which the recording has been preserved since it was made.\nId. at 17, 181 S.E. 2d at 571.\nThe State does not dispute that it failed to present evidence as to the Lynch prerequisites. Rather, the State contends that it complied with Rule 901 of the North Carolina Rules of Evidence which the State claims now provides a different method of authenticating tape recordings. In pertinent part, G.S. 8C-1, Rule 901 provides:\n(a) General provision. \u2014 The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\n(b) Illustrations. \u2014By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:\n(5) Voice Identification. \u2014 Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.\nSee also 2 Brandis on North Carolina Evidence, section 195 (3d ed. 1988).\nIn addition, the State concedes that the rules of evidence do not abolish the Lynch requirement that the trial court conduct a voir dire to hear the recordings so that irrelevant and prejudicial material may be deleted. The State does not address the trial court\u2019s decision not to record what was heard in the courtroom when the tape recordings were played for the jury. However, the State contends that defendant has not demonstrated that he was prejudiced by the error, if any.\nWe need not decide here whether the rules of evidence have overruled the requirements for authenticating tape recordings as set forth in Lynch. Even assuming arguendo that the trial court committed error the defendant has failed to demonstrate how any error under this assignment of error was prejudicial. G.S. 15A-1443(a); State v. Toomer, 311 N.C. 183, 191, 316 S.E. 2d 66, 71 (1984). The tape recordings here are cumulative in that they repeat Dale Varnum\u2019s testimony. Each of the recordings were made by means of a body recorder concealed on Varnum\u2019s person. Varnum had previously testified in detail as to each conversation recorded and played for the jury. We overrule this assignment of error.\nIn defendant\u2019s fifth assignment of error he contends that the trial court erred in allowing Agent Duber\u2019s testimony that, in 1986, the defendant had threatened to kill him. In authenticating the tape recordings during direct examination Agent Duber testified that he could recognize defendant\u2019s voice, \u201c[b]ecause you don\u2019t forget the voice of a person who tells you they are going to kill you.\u201d Defendant objected to Agent Duber\u2019s statement, claimed that it was extremely prejudicial, and moved for a mistrial. The trial court denied defendant\u2019s motion for a mistrial but instructed the jury that Agent Duber\u2019s testimony in this regard could be used only for identifying the voices on the tapes. Given defendant\u2019s assertions concerning the poor audibility and quality of the tapes, we find no error in allowing the State\u2019s witness to explain why defendant\u2019s voice would be so recognizable to him.\nMoreover, even if this was error it was harmless error. The trial court properly limited the use of this portion of Agent Duber\u2019s testimony. We must assume that the jury complied with the trial court\u2019s instruction. In addition, the evidence is so overwhelmingly against the defendant that we are not convinced that \u201chad the error in question not been committed, a different result would have been reached at the trial.\u201d G.S. 15A-1443(a).\nDefendant\u2019s sixth assignment of error claims that the defendant did not receive an unbiased trial from a neutral and detached judge. Defendant argues that upon being told that no plea arrangement would be forthcoming,- the trial judge \u201cdisplayed a prejudice against the defendant.\u201d The incident occurred in the judge\u2019s chambers after the jury had been impaneled. Defendant\u2019s attorney claims that the trial judge slammed a piece of paper on the table, angrily indicated that if the case could not be settled it would be tried, and in an angry tone made a statement indicating that he did not believe the negotiations were being conducted in good faith. The district attorney stated that the trial judge was concerned about the jury doing nothing while the plea bargaining was ongoing. The trial judge stated that he had been \u201ccurt\u201d and that he felt frustrated by what he perceived to be a waste of more than two hours of the jurors\u2019 time. Defendant moved for a mistrial, but never moved that the trial judge be disqualified.\nG.S. 15A-1223 sets forth the criteria for disqualifying a judge from any criminal proceeding. In particular, G.S. 15A-1223(c) provides that \u201c[a] motion to disqualify must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon to show the grounds for disqualification.\u201d Because the defendant failed to move for the trial judge\u2019s disqualification, we determine here only whether the trial judge should have recused himself.\nIn State v. Fie, 320 N.C. 626, 627, 359 S.E. 2d 774, 775 (1987), our Supreme Court stated that \u201cthe burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.\u201d Here defendant did not move for the trial judge\u2019s disqualification. In addition, this particular incident demonstrates impatience but is not sufficient to demonstrate substantial evidence of \u201cpersonal bias, prejudice or interest on the part of the judge.\u201d\nIn addition, defendant argues that \u201ca party has a right to be tried before a judge whose impartiality cannot reasonably be questioned.\u201d Id. The circumstances here do not reasonably warrant questioning the judge\u2019s impartiality. We overrule this assignment of error.\nDuring Andy Noble\u2019s testimony on direct examination the defendant objected to the relevance of certain testimony. The trial court responded, \u201c[w]ell, it\u2019s all part of the conspiracy so it can come in,\u201d and overruled the objection. Defendant argues that this statement made in the jury\u2019s presence constituted an opinion of the defendant\u2019s guilt and denied him a fair trial. We disagree.\nWhile a judge may not express his opinion on a question of fact before the jury, G.S. 15A-1222, not every improper remark requires a new trial. State v. Guffey, 39 N.C. App. 359, 250 S.E. 2d 96 (1979). Citing our decision in State v. Sidbury, 64 N.C. App. 177, 306 S.E. 2d 844 (1983), defendant argues that because the trial judge\u2019s remarks go to a central issue in the case, the existence of a conspiracy, he is entitled to a new trial. Defendant bears the burden of showing that he was prejudiced. State v. Weeks, 322 N.C. 152, 367 S.E. 2d 895 (1988). We must determine whether the remark deprived him of a fair trial \u201cin light of all attendant circumstances.\u201d State v. Faircloth, 297 N.C. 388, 392, 255 S.E. 2d 366, 369 (1979). Though it was unnecessary for the trial court to respond as quoted, we hold that this single remark in a trial which lasted longer than a week did not deprive defendant of a fair trial.\nOn the morning following the announcement of the jury\u2019s verdicts, the trial court held the sentencing hearing. Defendant claims that the trial court erred in refusing to continue the hearing in order to allow defendant time to provide the State with \u201csubstantial assistance\u201d so that he might be eligible for a reduced sentence pursuant to G.S. 90-95(h)(5). He also argues that the information he gave to the State was substantial assistance.\nWe do not believe defendant\u2019s assistance constituted \u201csubstantial assistance\u201d as contemplated by G.S. 90-95(h)(5). The State argues that because some of the statements given by defendant were false, there could be doubts raised as to defendant\u2019s credibility in subsequent proceedings. Furthermore, our courts have recognized that the \u201csubstantial assistance\u201d statute is \u201cpermissive, not mandatory, and that defendant has no right to a lesser sentence even if he does provide what he believes to be substantial assistance.\u201d State v. Perkerol, 77 N.C. App. 292, 301, 335 S.E. 2d 60, 66 (1985), disc. rev. denied, 315 N.C. 595, 341 S.E. 2d 36 (1986).\nIn addition, we hold that the trial court is not required, as a matter of law, to continue a sentencing hearing so that the defendant may be afforded an opportunity to provide the State with substantial assistance. This court recognized in State v. Willis, 61 N.C. App. 23, 41, 300 S.E. 2d 420, 430, modified, 309 N.C. 451, 306 S.E. 2d 779 (1983), that G.S. 90-95(h)(5) is \u201ca post-conviction form of plea bargaining.\u201d The statute does not guarantee any criminal defendant that the State will, in fact, participate in this form of plea bargaining. This assignment of error is without merit.\nDefendant\u2019s final assignment of error argues that the trial court erred in sentencing him to two consecutive forty year terms for trafficking in cocaine without finding any aggravating factors. The trial court consolidated the four trafficking counts into two judgments for sentencing. Defendant contends that where the trial court sentences a defendant to a prison term in excess of the statutory minimum he must make findings in aggravation and mitigation.\nThe trial court need not make findings in aggravation and mitigation when two or more convictions are consolidated for judgment so long as the term pronounced does not exceed the total of the presumptive terms for each conviction. G.S. 15A-1340.4(b). In addition, the Supreme Court has stated that in those cases where a mandatory minimum sentence is established, \u201cthe minimum sentence set out in the criminal statute becomes the presumptive sentence for purposes of sentencing under the Fair Sentencing Act.\u201d State v. Perry, 316 N.C. 87, 110, 340 S.E. 2d 450, 464 (1986). The statutory mandatory minimum sentence for each conviction of trafficking in more than 400 grams of cocaine is 35 years in prison. G.S. 90-95(h)(3)(c). Since each of the 40 year sentences pronounced is less than the total of the presumptive terms of the consolidated convictions, the trial court\u2019s sentences for the substantive offenses were lawful.\nDefendant further argues that the trial court erred in sentencing him to consecutive 40 year terms for conspiracy to transport cocaine and conspiracy to sell cocaine. Because we arrest judgment on the conviction for conspiracy to transport, we need not discuss the sentence pronounced for that offense. However, the State concedes that the trial court erred when it sentenced defendant to a term in excess of the statutory mandatory minimum sentence without finding any factors in aggravation. We agree and, accordingly, we vacate the sentence imposed as a result of defendant\u2019s conviction for conspiracy to sell and remand for a new sentencing hearing.\nFor the foregoing reasons we arrest judgment as to defendant\u2019s conviction for conspiracy to transport more than 400 grams of cocaine and we vacate defendant\u2019s sentence for conspiracy to sell and remand for a new sentencing hearing. We find no error in the remaining convictions.\nVacated and remanded in part; no error in part.\nChief Judge HEDRICK and Judge WELLS concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Associate Attorney General G. Lawrence Reeves, Jr., for the State.", "Glover & Petersen, by James R. Glover; Perry W. Martin for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FOTIOS KAMTSIKLIS\nNo. 883SC834\n(Filed 20 June 1989)\n1. Constitutional Law \u00a7 34\u2014 conviction for four conspiracies \u2014 one conspiracy in fact \u2014double jeopardy violation\nDefendant\u2019s conviction for conspiracy to transport cocaine was arrested where defendant was charged with four separate conspiracies which were, in fact, only a single conspiracy.\n2. Indictment and Warrant \u00a7 12.2\u2014 conspiracy \u2014 indictments\u2014 amended to change dates \u2014no error\nThe trial court did not err in a prosecution for conspiracy, possession, delivery, sale, and transportation of in excess of 400 grams of cocaine by allowing the State\u2019s oral motion to amend the conspiracy indictments to change the dates of the alleged offenses because the charges were not substantially altered by changing the dates recited in the indictments. Even though the dates were changed the morning of the trial, defendant did not raise an alibi defense or any other defense which would make time critical to his defense; ordinarily, the precise dates of the conspiracy are not essential to the indictment because the crime is complete upon the meeting of the minds of the confederates.\n3. Criminal Law \u00a7 119\u2014 narcotics \u2014 requested instructions \u2014 not given \u2014 no error\nThe trial court did not err in a prosecution for conspiracy and possession, delivery, sale, and transportation of cocaine by failing to give defendant\u2019s requested instructions clarifying that the jury could convict him based solely on the evidence of events allegedly occurring on a particular date where the trial court instructed the jury concerning the dates the offenses occurred and stated that defendant was not on trial for any offense not charged in the indictments. The court\u2019s instruction was correct and in substance covered the points requested by defendant.\n4. Criminal Law \u00a7 70\u2014 narcotics trafficking \u2014 tape recording \u2014 admissible\nThere was no prejudicial error in a narcotics prosecution in the admission of four tape recordings which were played for the jury where the recordings were cumulative in that they were made by means of a body recorder and the person on whom the recorder was concealed had previously testified in detail as to each conversation recorded and played for the jury.\n5. Criminal Law \u00a7 67\u2014 recognition of defendant\u2019s voice \u2014 result of prior threat \u2014no prejudicial error\nThere was no prejudicial error in a narcotics prosecution in the admission of an agent\u2019s testimony that defendant had threatened to kill him where, while authenticating tape recordings during direct examination, the agent testified that he could recognize defendant\u2019s voice because \u201cyou don\u2019t forget the voice of a person who tells you they are going to kill you.\u201d Given defendant\u2019s assertions concerning the quality of the tapes, the court found no error in allowing the State\u2019s witness to explain why defendant\u2019s voice was so recognizable; moreover, the trial court properly limited the use of this portion of the testimony and the evidence was overwhelmingly against the defendant. N.C.G.S. \u00a7 15A-1443(a).\n6. Judges \u00a7 5; Criminal Law \u00a7 99\u2014 plea bargaining \u2014 judge\u2019s remark \u2014 recusal unnecessary\nThe trial court did not err by not recusing himself in a narcotics prosecution where the judge was told in chambers after the jury had been impaneled that no plea arrangement would be forthcoming, the trial judge slammed a piece of paper on the table, angrily indicated that if the case could not be settled, it would be tried, and in an angry tone made a statement indicating that he did not believe the negotiations were being conducted in good faith. The trial judge stated that he had been curt and felt frustrated by what he perceived to be a waste of more than two hours of the jurors\u2019 time. Because defendant did not move for the trial judge\u2019s disqualification, the determination here is only whether the trial judge should have recused himself, and while this incident demonstrates impatience, it is not sufficient to demonstrate substantial evidence of personal bias, prejudice or interest on the part of the judge.\n7. Criminal Law \u00a7 99.3\u2014 narcotics conspiracy \u2014 judge\u2019s comment while admitting evidence \u2014no error\nDefendant in a narcotics prosecution was not deprived of a fair trial where, while overruling an objection, the trial court stated \u201cit\u2019s all part of the conspiracy so it can come in.\u201d Although it was unnecessary for the trial court to respond as quoted, this single remark in a trial which lasted longer than a week did not deprive him of a fair trial.\n8. Criminal Law \u00a7\u00a7 138.13, 138.37\u2014 sentencing hearing \u2014 refusal to continue \u2014 no substantial assistance\nThe trial court did not err in a narcotics prosecution by refusing to continue the sentencing hearing in order to allow defendant time to provide the State with substantial assistance so that he might be eligible for a reduced sentence or by-failing to find that the information defendant gave to the State was of substantial assistance. The State argued that some of the statements given by defendant were false and there could be doubts as to defendant\u2019s credibility in subsequent proceedings; N.C.G.S. \u00a7 90-95(h)(5) is permissive, not mandatory, and defendant has no right to a lesser sentence even if he does provide what he believes to be substantial assistance; and the trial court is not required as a matter of law to continue a sentencing hearing so that defendant may be afforded an opportunity to provide the State with substantial assistance.\n9. Criminal Law \u00a7 138.14\u2014 consolidated sentences \u2014 no aggravating factors \u2014term in excess of statutory minimum\nThe trial court did not err by sentencing defendant to two consecutive forty-year terms for trafficking in cocaine without finding any aggravating factors where the trial court consolidated four trafficking counts into two judgments per sentencing. The statutory mandatory minimum sentence for each conviction of trafficking in more than 400 grams of cocaine is thirty-five years in prison; since each of the forty-year sentences pronounced is less than the total of the presumptive terms of the consolidated convictions, the trial court\u2019s sentences were lawful. N.C.G.S. \u00a7 90-95(h)(3)c.\n10. Criminal Law \u00a7 138.14\u2014 trafficking in cocaine \u2014 sentence in excess of statutory minimum \u2014no aggravating factors \u2014 error\nThe trial court erred when sentencing defendant for conspiracy to sell cocaine by sentencing defendant to a term in excess of the statutory mandatory minimum without finding any factors in aggravation.\nAPPEAL by defendant from Currin, Judge. Judgments entered 4 February 1988 in Superior Court, PlTT County. Heard in the Court of Appeals 20 March 1989.\nThis is a criminal case in which defendant was convicted of possession, delivery, sale, and transportation of in excess of 400 grams of a mixture containing cocaine as well as four separate conspiracies leading to the commission of the offenses listed.\nThe trial court arrested judgment in two of the conspiracy charges, conspiracy to possess and conspiracy to deliver more than 400 grams of cocaine. The trial court consolidated the charges of sale and delivery of cocaine for judgment and sentenced defendant to a forty year prison term and a $250,000 fine. The trial court also consolidated the possession and transportation offenses and sentenced defendant to another forty year term, to be served consecutively, and another $250,000 fine. As to the remaining charges of conspiracy to sell and conspiracy to transport, the trial court sentenced defendant to two consecutive forty year terms. From the judgments entered, defendant appeals.\nAttorney General Thornburg, by Associate Attorney General G. Lawrence Reeves, Jr., for the State.\nGlover & Petersen, by James R. Glover; Perry W. Martin for the defendant-appellant." }, "file_name": "0250-01", "first_page_order": 280, "last_page_order": 291 }