An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                         -2-
       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.
                                           -3-
    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.
                                     -4-
    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
                                          -5-
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. . .
                                 -6-
. 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,
                                    -7-
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
                                         -8-
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
                                        -9-
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
                                          -10-
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.
                                        -11-
      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.
                                           -12-
       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
                                 -13-
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).
