State v. Mahoney

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-716

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Hoke County

No. 10 CRS 052200

TINA MAHONEY

Appeal by defendant from judgment entered 8 February 2013

by Judge Richard T. Brown in Hoke County Superior Court. Heard

in the Court of Appeals 20 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General

Thomas H. Moore, for the State.

Unti & Lumsden LLP, by Sharon L. Smith, for defendant.

HUNTER, JR., Robert N., Judge.

Tina Mahoney (“Defendant”) appeals the 8 February 2013

judgment following a jury trial convicting her of conspiracy to

traffick in a controlled substance. Defendant argues that she

did not receive a fair trial because her case was joined with a

co-defendant for trial. We disagree and find no error.

I. Facts & Procedural Background

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On 28 February 2011, Defendant was indicted for conspiracy

to traffick in a controlled substance. Defendant’s mother and

alleged co-conspirator, Flora Catherine Strickland, was indicted

that same day for trafficking in a controlled substance by

transport and by possession. On 4 June 2012, upon the State’s

motion, the trial court ordered that Defendant’s trial be joined

with that of Strickland. The trial was held at the 4 February

2013 session of Hoke County Superior Court, with the Honorable

Richard T. Brown presiding. The State’s evidence at trial

tended to show the following.

Lola McEachern, an alleged co-conspirator with Defendant

and Strickland, was a witness for the State. On 18 August 2010,

Defendant called McEachern and told her that a package would be

delivered the next day to 1307 Clan Campbell Avenue in Raeford,

a house owned by McEachern. McEachern was not living in the

house at the time, but she was going to be at the house to give

furniture to Strickland. Defendant first told McEachern the

package contained books. When McEachern questioned her honesty,

Defendant admitted that the package contained marijuana.

Defendant agreed to give McEachern marijuana and cash in

exchange for McEachern picking up the package.

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The next day, 19 August 2010, McEachern picked up

Strickland and drove to a gas station, where they met Defendant.

Defendant paid for $10 worth of gas for McEachern’s car.

McEachern and Strickland then drove to 1307 Clan Campbell

Avenue.

During the day, Strickland was in contact by phone with

Defendant and Carlos Mahoney, Defendant’s husband. Strickland

used McEachern’s Assurance phone, which had Defendant’s number

stored in it. Defendant told Strickland that if a little brown

van delivered the package, leave it on the porch, get in the car

and leave the house. However, in a separate conversation, Carlos

Mahoney told Strickland to pick up the package regardless of the

circumstances.

The trial court informed the jury just before testimony

regarding the phone conversations that for any conversation

between Strickland and someone other than Defendant, the

testimony could only be considered against Strickland, not

Defendant. This meant that Strickland’s conversations with

Carlos Mahoney were only admitted against Strickland and were

not admitted against Defendant. The jury was asked to raise

their hands if they understood the instruction, and they did so.

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The morning of 19 August 2010, Detective Kurt Stein of the

Fayetteville Police Department was checking parcels at UPS as

part of a routine check for narcotics being shipped into the

city. He noticed a package he thought was suspicious based on

its appearance and odor. It was addressed to Vincent Lim at

1307 Clan Campbell Avenue. In a lineup of packages, Detective

Stein’s K-9 alerted to the package addressed to Mr. Lim. A

records check by the Hoke County Sheriff’s Office showed that

the name Vincent Lim had no relationship to 1307 Clan Campbell

Avenue. After obtaining a search warrant, officers opened the

box and found marijuana.

That afternoon, Sergeant Greg Johnson of the Fayetteville

Police Department posed as a UPS delivery person, taking the

package to 1307 Clan Campbell Avenue. Sergeant Johnson knocked

on the door and, after there was no response, left the package

on the front porch.

McEachern testified that she opened the door, pulled the

package inside, put it in a closet, and went out to her car with

Strickland. McEachern and Strickland drove around the

neighborhood looking for anything out of the ordinary, such as

law enforcement. Defendant had told them to do this. When they

came back to the house, McEachern took a plastic storage tote

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from her car, emptied it, and they both went into the house.

McEachern then put the marijuana in the tote, took it back

outside, and put it in her car. McEachern and Strickland then

drove away again.

Carlos Mahoney called Strickland and said there was a

tracking device in the package, so McEachern pulled the car over

to get rid of the package. Detective Don Bell of the

Fayetteville Police Department was following McEachern and

Strickland when he found their car stopped on the side of the

road. McEachern and Strickland were going to dispose of the

package in the woods, but instead brought the package back to

officers, where they were thereafter arrested.

While in jail, McEachern called Defendant, who assured her

that she was trying to get McEachern out, but that McEachern’s

family was not helping out. Strickland was in another jail cell

and yelled to McEachern that they were going to get her out of

jail. Strickland was released from jail before McEachern.

While still in jail, McEachern received a letter which appeared

to be signed by Strickland’s youngest daughter. McEachern,

however, believed that Strickland herself wrote the letter. The

letter expressed that someone was working to get McEachern out

of custody, stating that “she is trying hard to get you out. . .

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. She’s waiting for some money to get here. . . . She wants you

out just as bad as you want to get out. Nobody wants to help

you.” The letter went on to reference a phone call, saying,

“She is mad that you hung up on her on the phone . . . . We know

that you are upset, but don’t take it out on one person that is

trying to help you.” The letter did not identify who “she”

referred to.

The trial court instructed the jury at the time the letter

was introduced that it only related to Strickland and could not

be considered against Defendant. When the exhibit was received

into evidence, the jury was again reminded that it was to be

considered only against Strickland and not against Defendant.

On 8 February 2013, the jury found Defendant guilty of

conspiracy to traffick marijuana. Defendant was sentenced to

25–30 months imprisonment. Defendant gave oral notice of appeal

before Judge Brown.

II. Jurisdiction & Standard of Review

As Defendant appeals from the final judgment of a superior

court, an appeal of right lies with this Court pursuant to N.C.

Gen. Stat. § 7A-27(b)(1) (2013).

We review the trial court’s decision to join defendants for

trial for abuse of discretion. State v. Rasor, 319 N.C. 577,

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581, 356 S.E.2d 328, 331 (1987) (“Whether defendants should be

tried jointly or separately pursuant to these provisions is a

matter addressed to the sound discretion of the trial judge.”).

III. Analysis

Defendant argues that she was deprived of a fair trial

because she was joined with Strickland for trial. We disagree.

N.C. Gen. Stat. § 15A-926 (2013) allows defendants to be

joined for trial when the offenses charged “[w]ere part of a

common scheme or plan;” or “[w]ere part of the same act or

transaction;” or “[w]ere so closely connected in time, place,

and occasion that it would be difficult to separate proof of one

charge from proof of the others.” N.C. Gen Stat. § 15A-

926(b)(2)b.. The trial court in the present case found that the

offenses charged against Strickland and Defendant met all three

criteria in the statute and thus ordered the offenses to be

joined for trial.

“[A] trial court’s decision on the question of joinder of

two defendants is a discretionary ruling and will only be

disturbed if defendant demonstrates that joinder deprived him of

a fair trial.” State v. Wilson, 108 N.C. App. 575, 589, 424

S.E.2d 454, 462 (1993). “A defendant may be deprived of a fair

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trial where evidence harmful to the defendant is admitted which

would not have been admitted in a severed trial.” Id.

Defendant argues she did not receive a fair trial because

there were three things harmful to her that should have been

admissible against Strickland only: (1) evidence of Carlos

Mahoney’s telephone conversations with Strickland; (2) the

letter to McEachern, which McEachern said came from Strickland;

and (3) evidence of Defendant’s telephone conversations with

Strickland.

The first two were introduced against Strickland only, and

the trial court gave limiting instructions regarding both.

“[L]imiting instructions ordinarily eliminate any risk that the

jury might have considered evidence competent against one

defendant as evidence against the other.” State v. Paige, 316

N.C. 630, 643, 343 S.E.2d 848, 857 (1986). “It would be unusual

for all evidence at a joint trial to be admissible against both

defendants, and we often rely on the common sense of the jury,

aided by appropriate instructions of the trial judge, not to

convict one defendant on the basis of evidence which relates

only to the other.” Id.

Our Courts have previously examined the volume and nature

of the evidence admissible against only a joined co-defendant in

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determining whether the defendant received a fair trial.

Compare Wilson, 108 N.C. App. at 589, 424 S.E.2d at 462 (finding

a defendant deprived of a fair trial where he was forced to sit

through two and one-half days of testimony from eleven witnesses

which was not admissible against him), with State v. Ellison,

213 N.C. App. 300, 314–15, 713 S.E.2d 228, 238 (2011) (finding

no abuse of discretion in joining defendant where evidence

inadmissible against one defendant was only “a portion of the

testimony provided by two witnesses” and “lasted only a matter

of minutes”), aff’d, 366 N.C. 439, 738 S.E.2d 161 (2013). In

the present case, the evidence admissible only against

Strickland is limited to a few phone conversations Strickland

had with Carlos Mahoney and the letter purportedly written by

Strickland. The evidence here was far less than Wilson and was

also less than that in Ellison, as it constituted only a portion

of the testimony of one witness, McEachern.

Defendant cites to Bruton v. United States, 391 U.S. 123,

127–28 (1968), in which the United States Supreme Court found

that the confession of a co-defendant implicating the defendant

could not be introduced in a joint trial, even with a limiting

instruction. The Court recognized that in many cases, the jury

is expected to follow the limiting instructions and a joined

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defendant is not denied a fair trial by the inclusion of

evidence inadmissible against him. Id. at 135. However, the

Court held that in certain circumstances, the risks and

consequences are so great that even a limiting instruction

cannot ensure a fair trial. Id. Bruton found those

circumstances where the “powerfully incriminating extrajudicial”

confession of a co-defendant was put before the jury in a joint

trial. Id. at 135–36. The Court found that the incriminating

statements were “devastating to the defendant” and that their

credibility was “inevitably suspect” due to the nature of a

confessing suspect having a motive to blame others. Id. at 136.

Because the evidence was so incriminating and the confession

suspect, the Court held that even with a limiting instruction,

the defendant had been deprived of a fair trial. Id. at 136–37.

The present case lacks the circumstances present in Bruton.

First, the evidence admitted against Strickland is not a

confession or statement to law enforcement, and as such it lacks

the “inevitably suspect” nature of the testimony in Bruton. In

addition, in contrast to Bruton, neither the evidence regarding

Carlos Mahoney nor the letter to McEachern was “powerfully

incriminating” or “devastating” to Defendant.

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Defendant argues that the evidence of Strickland’s phone

conversations with Carlos Mahoney was “highly prejudicial”

because Carlos Mahoney was her husband and this evidence

“created an additional link for the jury between [Defendant] and

the drug scheme.” However, the evidence of Defendant’s husband

being involved did not implicate Defendant. A person is not

implicated in a crime merely because their spouse was involved.

In addition, in the present case there was abundant evidence

admissible against Defendant of her mother’s involvement. The

“additional link” that her husband was involved was not

“powerfully incriminating” or “devastating” to Defendant’s case.

Although Defendant suggests in her brief that the letter

purportedly from Strickland implied Defendant was upset about

McEachern’s arrest, nothing in the letter mentions Defendant,

and McEachern testified that the letter only incriminated

Strickland, not Defendant. This evidence, therefore, did not

implicate Defendant at all.

Because the jury received proper limiting instructions, and

because the considerations in Bruton do not apply, we find

Defendant was not deprived of a fair trial where evidence was

admitted against Strickland and not against Defendant.

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Defendant also argues that testimony regarding her phone

conversations with Strickland should not have been admitted

because it was hearsay. McEachern’s testimony regarding

Strickland’s phone conversations with Defendant came in as

statements by a co-conspirator in furtherance of the conspiracy.

The statements were admitted against both Defendant and

Strickland. Declarations “made by a party to a criminal

conspiracy during the course of and in pursuit of the goals of

the illegal scheme” are admissible despite a hearsay objection.

State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977).

Defendant once again argues that under Bruton, McEachern’s

testimony should not have been admissible. However, as a

statement of a co-conspirator in furtherance of the conspiracy,

McEachern’s testimony regarding Strickland’s statements about

phone conversations with Defendant would have been admissible

against Defendant even if there was no joinder. State v. Fink,

92 N.C. App. 523, 528, 375 S.E.2d 303, 306 (1989) (Statements

“made during and in furtherance of the conspiracy, would have

been admissible against—and as damaging to—each of the

defendants whether they were tried separately or jointly.”).

Since the statements would have been admissible against

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Defendant separately, she was not denied a fair trial by their

inclusion in the joined trial.

Because Defendant received a fair trial, we find that the

trial court did not abuse its discretion in joining Strickland

and Defendant for trial.

IV. Conclusion

For the foregoing reasons, we find

NO ERROR.

Judges ROBERT C. HUNTER and CALABRIA concur.

Report per Rule 30(e).