Opinion
No. COA12–74.
2012-09-4
STATE of North Carolina v. Warren Cleveland GIBSON, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Daniel S. Hirschman, for the State. William B. Gibson, for defendant-appellant.
Appeal by defendant from judgments entered on or about 29 September 2011 by Judge Gregory Bell in Superior Court, Scotland County. Heard in the Court of Appeals 7 June 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Daniel S. Hirschman, for the State. William B. Gibson, for defendant-appellant.
STROUD, Judge.
Warren Cleveland Gibson (“defendant”) appeals from his convictions for possession with intent to sell and deliver cocaine and the sale of cocaine. For the following reasons, we find no prejudicial error in defendant's trial.
I. Background
On 7 February 2011, defendant was indicted for possession with intent to sell and deliver cocaine, selling and delivering cocaine, maintaining a vehicle for keeping and selling a controlled substance, and attaining the status of habitual felon. Defendant was tried on these charges at the 26 September 2011 Criminal Session of Superior Court, Scotland County. The State's evidence tended to show that, in early November 2010, Detective Earl Lee Haywood, Jr., a narcotics officer with the Scotland County Sheriff's Office, asked Michael Clark to identify individuals “involved in the narcotics trade.” Mr. Clark had previously acted as a police informant. Mr. Clark identified defendant as a person “that he believed that he could purchase drugs from[.]”
The State dismissed the charge of maintaining a vehicle for keeping and selling a controlled substance.
On 14 December 2010, under the supervision of Detective Haywood, Mr. Clark initiated contact with defendant and arranged a cocaine buy at Mr. Clark's residence. Mr. Clark agree to and was fitted with a hidden camera system, which included audio and video capabilities. From a concealed location approximately sixty feet away, Detective Haywood observed a pickup truck with one male occupant pull into the drive way at Mr. Clark's residence. Detective Haywood stated that he identified defendant as the person in the truck “due to past encounters.” Detective Haywood testified that he saw Mr. Clark converse with, hand money to, and receive something from defendant. Defendant then drove away from Mr. Clark's residence and Detective Haywood watched Mr. Clark walk directly to Detective Haywood's location. Mr. Clark delivered to Detective Haywood a “small plastic bag containing [a] white rock like type substance.” Detective Haywood testified that he was able to “maintain eye contact” with Mr. Clark during the whole transaction. Detective Haywood conducted a “field preliminary test” of the contents of the plastic bag, obtained a warrant for defendant's arrest, and sent the contents in the plastic bag for analysis. Detective Haywood further testified that he did not immediately arrest defendant but “before I had a chance to arrest [defendant], he got picked up.” Following this statement by Detective Haywood, defense counsel, outside the presence of the jury, moved for a mistrial arguing that Detective Haywood's testimony that he could identify the man who arrived at Mr. Clark's residence as defendant based on “past encounters,” and that, before he could arrest defendant, defendant was “picked up” improperly influenced the jury to believe that defendant had been arrested. After hearing both parties' arguments, the trial court denied defendant's motion for a mistrial.
Mr. Clark testified that he knew defendant. The State notified the trial court and defendant, outside the presence of the jury, of its intention to offer Mr. Clark's testimony that he knew defendant because he had purchased crack cocaine from defendant at Mr. Clark's residence four different times within the past 12 months. Defendant objected and the trial court allowed the State to perform a voir dire of Mr. Clark; after hearing both sides' arguments, the trial court ultimately allowed this testimony. The trial court noted defendant's objection, brought the jury back in, and instructed the jury to consider this evidence for the limited purpose of showing the identity of the person who committed the crime charged. Mr. Clark then testified before the jury, after being asked how he knew defendant, that he “had bought crack cocaine from [defendant] four times prior to December 14th.” Mr. Clark further testified that on 14 December 2010, he met with Detective Haywood to make “arrangements to make a buy of narcotics from [defendant][;]” he gave Detective Haywood permission to place a hidden video camera on his person; he called defendant to tell him that he wanted to buy a “twenty dollar piece” of crack cocaine; defendant arrived at his residence 15 minutes later in a pickup truck; he walked up to defendant's truck, reached in his pocket, and handed defendant two ten dollar bills; defendant then handed Mr. Clark “a twenty dollar piece of crack cocaine[;]” defendant then left his residence; Mr. Clark, while holding the crack cocaine in his hand, walked to where Detective Haywood was hiding; and Detective Haywood took the cocaine out of his hand and put it in an envelope. Nicole Manley, a drug chemist with the North Carolina State Bureau of Investigation Crime Lab, testified that she conducted an analysis of the contents of that plastic bag and it contained less than a tenth of a gram of “cocaine base, otherwise known as crack[.]” The State also played for the jury the video recording of the transaction between defendant and Mr. Clark. Defendant did not testify or present any evidence at trial.
On 29 September 2011, a jury found defendant guilty of possession with intent to sell cocaine and sale of cocaine. Defendant pled guilty to attaining habitual felon status on 29 September 2011. The trial court accepted defendant's plea and sentenced him within the mitigated range for each count, imposing two consecutive terms of 108 to 139 months of imprisonment. Defendant filed written notice of appeal on 3 October 2011. On appeal, defendant argues that the trial court committed reversible error in (1) denying his motion for a mistrial after Detective Haywood testified about “past encounters” with defendant and defendant's having been “picked up” before Detective Haywood had an opportunity to arrest defendant and (2) admitting, notwithstanding its limiting instruction, “identity” evidence concerning Mr. Clark's past drug transactions with defendant. On 17 February 2012, defendant filed a petition for writ of certiorari with this Court.
II. Petition for Writ of Certiorari
In his petition, defendant acknowledges that his written notice of appeal was procedurally defective because it was not accompanied by a certificate of service in violation of North Carolina Rule of Appellate Procedure 4(a)(2) (stating that a party may appeal a criminal judgment or order by “filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties. ...”). N.C.R.App. P. 4(c) permits service of copies of the notice of appeal to be made pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure, which mandates that all papers presented for filing
contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service shall appear on or be affixed to the papers filed.
N.C. R.App. P. 26(d). After careful review of the record on appeal, we agree with defendant that there is no certificate of service included in the record on appeal showing that the appeal had been served upon all parties. The compliance with the requirements of N.C. R.App. P. 4(a)(2) is jurisdictional. State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320 (2005), appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). Without proper notice of appeal, this Court does not have jurisdiction to hear the appeal, and the appeal is subject to dismissal. Id.
Defendant asks this Court, if it will not review his direct appeal, to treat his appeal as a petition for writ of certiorari, grant that petition, and review the merits of his case in order “to prevent injustice” towards him and “to further the interests of judicial economy.” The State filed a response to defendant's petition on 14 February 2012, taking no stance regarding the adequacy of defendant's notice of appeal. This Court can grant a petition for writ of certiorari to allow review of a trial court's judgment under three circumstances:
when the right to prosecute an appeal has been lost by failure to take timely action, when no right of appeal from an interlocutory order exists, or for review pursuant to N.C. Gen.Stat. § 15A–1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
N.C. R.App. P. 21(a)(1). As noted above, defendant lost his right to appeal by failing to timely serve his notice of appeal with a certificate of service properly attached; such delay is one of the three circumstances in which this Court has the discretion to issue a writ of certiorari. Accordingly, we chose to exercise our discretion and grant defendant's petition for writ of certiorari and review defendant's substantive arguments.
The State asks that, if this Court grants defendant's petition for writ of certiorari, our review should be limited to issues that permissibly can be raised on appeal pursuant to N.C. Gen.Stat. § 15A–1444. N.C. Gen.Stat. § 15A–1444(a)(2010) states that “[a] defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.” N.C. Gen.Stat. § 15A–1444 also limits the issues that can be challenged on appeal from a defendant who has entered a plea of guilty. SeeN.C. Gen.Stat. § 15A–1444(a2) and (e). Here, defendant pled not guilty and was convicted of his two underlying felony's; he pled guilty to obtaining the status of habitual felon. Defendant makes no arguments on appeal challenging his guilty plea, but only raises arguments challenging the underlying felony convictions, to which he would be “entitled to appeal as a matter of right.” SeeN.C. Gen.Stat. § 15A–1444(a). Therefore, none of the restrictions in N.C. Gen.Stat. § 15A–1444 regarding entry of a plea of guilty would be applicable to this appeal. As we have granted defendant's petition for writ of certiorari, we turn to address the substantive arguments raised on appeal.
It should be noted that “the habitual felon indictment is necessarily ancillary to the indictment for the substantive felon[ies],” and “[t]he effect of such a proceeding is to enhance the punishment of those found guilty of in the past.” State v. Cheek, 339 N.C. 725, 727, 453 S.E.2d 862, 863 (1995) (citations and quotation marks omitted).
III. Motion for a Mistrial
Defendant asserts that the trial court committed reversible error and abused its discretion in denying his motion for a mistrial after Detective Haywood testified about “past encounters” with defendant and defendant's having been “picked up” before Detective Haywood had an opportunity to arrest defendant because the entry of the contested testimony into evidence violated N.C. Gen.Stat. § 8C–1, Rules 404(a), 404(b), and 403.
A. Standard of Review
This Court should review the trial court's denial of defendant's motion for a mistrial for abuse of discretion. State v. McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980). While deferring largely to the trial court's judgment, a trial court “must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen.Stat. § 15A–1061 (2010). “[A] motion for mistrial must be granted if there occurs an incident of such a nature that it would render a fair and impartial trial impossible under the law.” McCraw, 300 N.C. at 620, 268 S.E.2d at 179 (citation omitted).
B. Analysis
Specifically, defendant argues that this testimony violated N.C. Gen.Stat. § 8C–1, Rule 404(a) as “an impermissible attempt to besmirch the character of the accused[.]” As to Rule 404(b), defendant argues that this testimony planted “in the minds of the jurors the notion that that the Defendant was a criminal who, on that particular occasion was acting ‘in conformity therewith’ his nefarious past.” Finally, as to Rule 403, defendant argues that Detective Haywood's testimonial statements should have been excluded, as “whatever probable value Haywood's gratuitous comments might have had to proving [defendant] was guilty of the charged drug offenses was outweighed by the prejudice to the accused by making him come across as a shady character who lives on the wrong side of the law.”
N.C. Gen.Stat. § 8C–1, Rule 404(a) states generally, as a rule of exclusion that “[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]” See State v. Bogle, 324 N.C. 190, 201, 376 S.E.2d 745, 751 (1989). Rule 404(b) states, in pertinent part, that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen.Stat. § 8C–1, Rule 404(b). This Court conducts a “fact-based inquiry” when reviewing a trial court's ruling based on Rule 404(b). State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 158 (2012). Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990) (emphasis in original). While Rule 404(b) lists some admissible purposes, this list “is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.” State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852–53 (citation omitted), cert. denied,516 U.S. 994, 133 L.Ed.2d 436 (1995). Accordingly, this Court has held that
The exceptions listed in Rule 404(a)(1), (2), and (3) are inapplicable to the case before us.
[e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
State v. Handy, 331 N.C. 515, 531–32, 419 S.E.2d 545, 554 (1992) (citation and quotation marks omitted).
Following a determination of the admissibility of evidence under Rule 404(b), the trial court must evaluate whether the possibility of unfair prejudice substantially outweighs the probative value of the evidence pursuant to N.C. Gen.Stat. § 8C–1, Rule 403 (2009). State v. Stevenson, 169 N.C.App. 797, 800, 611 S.E.2d 206, 209 (2005). “That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision.” Id. at 800–01, 611 S.E.2d at 209 (citation and quotation marks omitted).
State v. Khouri, ––– N.C.App. ––––, ––––, 716 S.E.2d 1, 8 (2011); N.C. Gen.Stat. § 8C–1, Rule 403.
Detective Haywood's “past encounters” statement does not constitute evidence of defendant's “nefarious” character, in violation of Rule 404(a) because it is too vague and could have been referencing wholly innocuous interactions between Detective Haywood and defendant. Likewise, this evidence would have been admissible under Rule 404(b) as identity evidence, as it showed that Detective Haywood knew and could identify defendant as the person he saw at Mr. Clark's residence. Also, given the vague nature of this comment, the trial court did not abuse its discretion in allowing this evidence as the unfair prejudice of this statement did not outweigh its probative value in violation of Rule 403. Accordingly, this testimony need not have been excluded under Rules 404(a), 404(b), or 403. Also, Detective Haywood's testimony that defendant was “picked up” before Detective Haywood could arrest him, would have been admissible pursuant to Rule 404(b) as “an integral and natural part of an account of the crime, or [was] necessary to complete the story of the crime for the jury.” See Handy, 331 N.C. at 531, 419 S.E.2d at 554. While this statement says nothing directly about defendant's character pursuant to Rule 404(a), a jury could infer “picked up” to mean that defendant was detained or arrested during an unrelated event, suggesting that defendant was frequently involved in criminal activity.
Even assuming arguendo that it was error, “[t]he defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983) (citation omitted). The defendant has the burden of showing that he was prejudiced by the admission of the evidence. State v. Atkinson, 298 N.C. 673, 683, 259 S.E.2d 858, 864 (1979). Under N.C. Gen.Stat. § 15A–1443(a) (2010), a defendant is prejudiced “when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at. trial[.]” Likewise, as noted above, for the admission of this testimony to be grounds for a mistrial it must amount to “substantial and irreparable prejudice to the defendant's case.” SeeN.C. Gen.Stat. § 15A–1061. Even assuming arguendo that the introduction of this testimony violated Rule 404(a), we hold that defendant has failed to meet his burden to show that he was prejudiced by the introduction of this evidence given the overwhelming evidence of defendant's guilt.
Defendant was convicted by a jury of both possession with intent to sell and deliver cocaine and the sale of cocaine, in violation of N.C. Gen.Stat. § 90–95(a)(1) (2010), which provides in relevant part:
[I]t is unlawful for any person: (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]
The elements of possession with intent to sell and deliver cocaine are “1) possession, 2) of a controlled substance, and 3) with intent to sell or deliver, which may be inferred from the amount or packaging.” State v. Peoples, 167 N.C.App. 63, 67, 604 S.E.2d 321, 324 (2004). “The crime of possession requires that the contraband be in the custody and control of the defendant and subject to his disposition.” Id. (quotation marks and citation omitted). In the context of this statute, “sale” is defined as “a transfer of property for a specified price payable in money.” State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985) (emphasis in original). N.C. Gen.Stat. § 90–87(7) (2010) defines “delivery” as “the actual constructive, or attempted transfer from one person to another of a controlled substance[.]” Here, both Detective Haywood and Mr. Clark testified regarding the transaction that took place between Mr. Clark and defendant. Detective Haywood stated that he gave two ten dollar bills to Mr. Clark for the transaction. He observed Mr. Clark called defendant and asked to buy some cocaine from him. From a hidden location, Detective Haywood observed defendant's truck pull into Mr. Clark's driveway a short time later; Mr. Clark talked with, handed money to, and receive something from defendant. After defendant left the residence, Mr. Clark walked up to Detective Haywood and handed him a “small plastic bag containing [a] white rock-like type substance[.]” Mr. Clark's testimony confirmed Detective Haywood's account of the transaction, as he stated that he previously knew defendant; he called defendant on the day in question requesting to buy a “twenty dollar piece” of crack cocaine; 15 minutes later defendant arrived at his residence; he handed defendant two ten dollar bills; defendant handed him what he believed was “a twenty dollar piece of crack cocaine[;]” and, after defendant left his residence, he walked to Detective Haywood and gave him the cocaine that he had just purchased. The jury was also allowed to view the video footage of the drug transaction. The drug chemist analyzed the substance given to Mr. Clark by defendant and determined it to be less than a tenth of a gram of “cocaine base otherwise known as crack[,]” which would be considered a controlled substance pursuant to N.C. Gen.Stat. § 90–90(1)(d) (2010). Thus, considering the overwhelming evidence against him, defendant was not prejudiced by any error committed by the trial court in introducing this testimony by Detective Haywood, see Alston, 307 N.C. at 339, 298 S.E.2d at 644, and the trial court did not abuse its discretion in denying defendant's motion for a mistrial. See McCraw, 300 N.C. at 620, 268 S.E.2d at 179. Defendant's argument is overruled.
IV. Identity Evidence
Defendant next contends that the trial court violated N.C. Gen.Stat. § 8C–1, Rules 404(b) and 403 in allowing into evidence Mr. Clark's testimony that he knew defendant from purchasing “crack cocaine from [defendant] four times prior” for the purpose of showing the identity of the person who committed the crime charged. As stated above, we conduct a “fact-based inquiry” when reviewing a trial court's ruling based on Rule 404(b), see Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 158, and review a trial court's ruling pursuant to Rule 403 for an abuse of discretion. See Khouri, ––– N.C.App. at ––––, 716 S.E.2d at 8.
Specifically, defendant argues that the introduction of Mr. Clark's testimony that he knew defendant because he had purchased “crack cocaine from [defendant] four times prior” violated Rule 404(b) because it “only served to suggest to the jurors that on December 14th, [defendant] was a person of criminal character who had the propensity to engage in the type of conduct for which he was being tried.” He further argues that this was unnecessary testimony but “the prejudice to the Defendant of this evidence was enormous, especially in a situation where the actual hand-to-hand transaction described by the State's witness did not show upon on the video tape that was shown to the jury.”
As noted above, Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen.Stat. § 8C–1, Rule 404(b). Rule 404(b) is “a clear general rule of inclusion ” which is “subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” Coffey, 326 N.C. at 278, 389 S.E.2d at 54. In addition to the purposes listed in the statute, Rule 404(b) permits evidence to be admissible even if it is “not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, ... or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.” Handy, 331 N.C. at 531–32, 419 S.E.2d at 554 (citation and quotation marks omitted). Following its determination regarding admissibility under Rule 404(b), the trial court must make a Rule 403 determination, “whether the possibility of unfair prejudice substantially outweighs the probative value of the evidence [.]” Khouri, ––– N.C.App. at ––––, 716 S.E.2d at 8.
Here, the State notified the trial court and defendant, outside the presence of the jury, of its intention to offer Mr. Clark's testimony that he knew defendant because he had purchased crack cocaine from defendant at Mr. Clark's residence four different times within the past 12 months. Defendant objected to the admission of this evidence. The trial court heard arguments from both sides and allowed the State to perform a voir dire of Mr. Clark; after again hearing arguments from both sides, the trial court ultimately allowed this testimony. The trial court noted defendant's objection, brought back in the jury, and instructed the jury to consider this evidence for the limited purpose of showing the identity of the person who committed the crime charged. Mr. Clark then testified before the jury, after being asked how he knew defendant, that he “had bought crack cocaine from [defendant] four times prior to December 14th.”
Contrary to defendant's argument that the only purpose of this testimony was to show defendant's character, Mr. Clark's testimony that defendant had purchased “crack cocaine from [defendant] four times prior” was also probative to show that Mr. Clark was identifying defendant as the person that he bought crack cocaine from on the day in question and the basis for that knowledge. SeeN.C. Gen.Stat. § 8C–1, Rule 404(b); Coffey, 326 N.C. at 278, 389 S.E.2d at 54. This statement also explained the extent of that knowledge and how defendant knew to drive to the location of defendant's residence on the day in question, which would be “necessary to complete the story of the crime for the jury.” See Handy, 331 N.C. at 531–32, 419 S.E.2d at 554. Therefore, the introduction of this evidence did not violate Rule 404(b). Although defendant contends that this testimony was “unnecessary[,]” he fails to make any argument that its probative value was “substantially outweighed” by the danger of unfair prejudice. The record shows that the trial court carefully considered its ruling allowing in this evidence by conducting an inquiry into the issue, hearing arguments regarding the probative value and its prejudicial effects from each side, permitting a voir dire of Mr. Clark, and hearing further arguments from both parties before making its ruling to allow this testimony into evidence. Also, before allowing Mr. Clark to testify, the trial court gave a limiting instruction to the jury that “[t]his evidence will be received solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed at all.” Therefore, based on the record before us, we cannot say that the trial court abused its discretion in permitting this testimony into evidence. Defendant's argument is overruled.
For the foregoing reasons, we find no prejudicial error in defendant's trial.
NO PREJUDICIAL ERROR. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).