Opinion
No. COA15-1164
04-19-2016
STATE OF NORTH CAROLINA v. REGINALD L. LANE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Paul F. Herzog for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Wake County, Nos. 11 CRS 220843, 14 CRS 1442 Appeal from judgment entered 13 February 2015 by Judge James E. Hardin, Jr. in Wake County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State. Paul F. Herzog for defendant-appellant. GEER, Judge.
Defendant Reginald L. Lane appeals from multiple convictions relating to his possession and sale of narcotics. On appeal, defendant primarily argues that the trial court committed plain error by failing to give the jury a limiting instruction in connection with the admission of evidence of prior bad acts under Rule 404(b) of the Rules of Evidence. We find the trial court was not required to give a limiting instruction absent defendant's request and, therefore, did not commit plain error. Defendant also argues that he was provided ineffective assistance of counsel ("IAC") because his attorney did not request such a limiting instruction. However, defendant has failed to show that his counsel's performance fell below an objective standard of reasonableness or prejudiced defendant in any way. We, therefore, find no error occurred.
Facts
The State's evidence tended to show the following facts. On 1 and 2 September 2011, Sergeant Frank Patercity of the Raleigh Police Department used a confidential informant "to make a controlled purchase of pills" from defendant. Both purchases occurred at a Wal-Mart parking lot near Triangle Town Center Mall in Raleigh, North Carolina. On each occasion, Sergeant Patercity equipped the informant with an audio transmitter, provided him with the purchase money, and performed surveillance from an unmarked vehicle.
On 1 September 2011, defendant arrived in the Wal-Mart parking lot in a pickup truck. The informant entered defendant's truck and paid him $60.00 for two pills. From the informant's audio device, Sergeant Patercity heard defendant say "that he was overstocked with the pills . . ., explaining the lower-than-average price." After completing the transaction, the informant exited the pickup truck and walked to a pre-arranged location to surrender the pills to Sergeant Patercity. Sergeant Patercity also saw the pickup truck leaving the parking lot.
On 2 September 2011, Sergeant Patercity gave the informant five $20 bills with which to purchase three pills from defendant for $90.00. The informant phoned defendant from the Wal-Mart parking lot, and defendant arrived "moments later" in a gray Nissan Altima. The informant entered defendant's vehicle to make the purchase. Because defendant did not have change, the two men went into the Wal-Mart to obtain two $10 bills for one of the informant's $20 bills and returned to defendant's car to complete the transaction. Sergeant Patercity overheard defendant "making remarks about the quantity of pills at his residence, stating that he, quote-unquote, had them 'flowing like a faucet.' " Defendant also engaged the informant in "conversation . . . about how to get a heroin user addicted to the product being sold and then raising the price." After the transaction, Sergeant Patercity recovered the three pills from the informant.
Detective Shannon Davidson of the Raleigh Police Department assisted Sergeant Patercity with surveillance of the controlled purchases on 1 and 2 September 2011. From her unmarked vehicle, Detective Davidson saw a green pickup truck arrive in the Wal-Mart parking lot on 1 September 2011, and saw the confidential informant enter and exit the truck. Maintaining visual contact with the truck, Detective Davidson saw a "quick meeting between the green pickup truck and [a] red Toyota Camry," after which the Camry followed the truck out of the parking lot onto Fox Road. The vehicles proceeded eastbound to Fox Haven Place and parked in front of the 7000 building. Detective Davidson observed a male, later identified as defendant, enter Apartment 104. "After a few minutes," defendant emerged from the apartment and had "a quick exchange" with the occupant of the Camry before returning to the apartment.
On 2 September 2011, Detective Davidson began her surveillance at 7000-104 Fox Haven Place. After Sergeant Patercity radioed her that the informant "had made a call to purchase the pills," she saw defendant exit Apartment 104 and leave in a gray Nissan Altima. She reported this activity to Sergeant Patercity but stayed at her location. "Within a few minutes," Sergeant Patercity confirmed the arrival of the gray Altima in the Wal-Mart parking lot. After the informant completed his purchase, Sergeant Patercity notified Detective Davidson of the gray Altima's departure. "[O]ne to two minutes" later, she saw the Altima "park in front of 7000 Fox Haven Place, and then [defendant] went back into Apartment 104."
Sergeant Patercity obtained a warrant to search 7000-104 Fox Haven Place on 3 September 2011, and assembled a team to execute the warrant at 12:39 a.m. on 4 September 2011. Inside the two-bedroom apartment, officers found defendant and an elderly woman. Officers seized the following items from one of the bedrooms: 17 grams of marijuana; a digital scale containing marijuana residue; 47 oxycodone pills with an approximate total weight of 7.3 grams in an unlabeled prescription bottle; a bottle of morphine with a net weight of 33.58 grams; a bottle of haloperidol; multiple additional bottles of unknown liquids; $120.00 in currency found under the bed; a black LG cellular phone; a letter addressed "to Mr. Reginald Lane at P.O. Box 340 in Salters South Carolina[;]" and a wallet belonging to defendant that contained $457.00 in cash, including four of the five $20 bills provided to the informant to make the purchase on 2 September 2011. Detective Davidson also observed men's clothing and shoes in this bedroom.
Defendant's driver's license, which was issued in February 2011, did not list the apartment at 7000-104 Fox Haven Place as his home address. Sergeant Patercity testified that, based on his experience, suspects charged with drug crimes "very seldom" reside at the residence listed on their driver's license.
After waiving his Miranda rights, defendant told Sergeant Patercity, "I don't sell drugs, man. I use." Sergeant Patercity recognized defendant's deep, gravelly voice as the voice he heard conversing with the informant during the controlled purchases on 1 and 2 September 2011. Defendant was not charged with a crime for either of the transactions with the confidential informant; nor were the pills purchased by the informant submitted for laboratory analysis.
A jury found defendant guilty of two counts of trafficking in opium by possession, one count of possession with intent to sell or deliver marijuana, and one count of intentionally maintaining a dwelling for the purpose of keeping or selling a controlled substance. The trial court consolidated the offenses for judgment and sentenced defendant to an active prison term of 225 to 279 months. Defendant timely appealed to this Court.
I
Defendant first contends the trial court committed plain error by failing to instruct the jury that it could consider the evidence of his sale of pills to the informant on 1 and 2 September 2011 only for the purposes countenanced by Rule 404(b). He claims that absent a limiting instruction to explain that evidence of "prior bad acts" could not be used to prove the bad character of the accused, "the jurors were left with the distinct impression that [he] was a 'bad' person with a propensity to deal in illegal drugs." While defendant concedes he did not request such an instruction at trial, and therefore failed to preserve this issue for appeal pursuant to Rule 10(a)(2) of the Rules of Appellate Procedure, defendant contends the court's failure to provide proper guidance to the jury " 'seriously affect[s] the fairness, integrity or public reputation' " of his trial and, therefore, amounts to plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
Under Rule 404(b),
[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.It is well settled that "Rule 404(b) is a clear general rule of inclusion." State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (internal citation and quotation marks omitted). It presents a non-exclusive list of the "numerous purposes for which evidence of prior acts may be admitted," subject only to the restriction that the evidence must be " 'relevant to any fact or issue other than the defendant's propensity to commit the crime.' " Id. (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 853 (1995)).
We find defendant's argument without merit. Defendant does not challenge the admissibility of his transactions with the informant under Rule 404(b). " 'The admission of evidence, competent for a restricted purpose, will not be held error in the absence of a request by defendant for a limiting instruction.' " State v. Goforth, 170 N.C. App. 584, 589, 614 S.E.2d 313, 316 (2005) (quoting State v. Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988)). More importantly, "[s]uch an instruction is not required to be given unless specifically requested by counsel." Id. (emphasis added). Because no limiting instruction is required in the absence of a request from counsel, we cannot say the trial court erred, much less committed plain error, by failing to give the instruction sua sponte. Without a request from defendant, it was not for the court to anticipate all of the potential purposes for which the jury could properly consider the evidence under Rule 404(b).
Defendant has also failed to present a proper claim of plain error under Rule 10(a)(4) of the Rules of Appellate Procedure. Since issuing its decision in Odom, our Supreme Court has clarified that a defendant arguing plain error "must establish prejudice -- that, after examination of the entire record, the error 'had a probable impact on the jury's finding that the defendant was guilty.' " State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378). As defendant has not undertaken the task of establishing prejudice under the Lawrence standard, he has failed to meet his burden. Cf. State v. Cummings, 352 N.C. 600, 636, 637, 536 S.E.2d 36, 61 (2000) (holding defendant's allegation of plain error and his "bare assertion that the claimed error is so fundamental that justice could not have been done" was insufficient to "meet the spirit or intent of the plain error rule").
II
Defendant next argues that his counsel's failure to request a Rule 404(b) limiting instruction regarding the transactions on 1 and 2 September 2011 violated his constitutional right to effective assistance of counsel. In reviewing claims of IAC, we employ the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted for state constitutional purposes in State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985). Defendant must show that (1) his counsel's performance fell " 'below an objective standard of reasonableness[,]' " and (2) "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " State v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068)).
We find no reasonable probability of a more favorable outcome for defendant had his counsel sought a limiting instruction. Under Rule 404(b), the jury was free to consider defendant's sale of the pills to the informant as evidence of (1) defendant's knowledge of the narcotics in the apartment's bedroom; (2) his intent to sell the marijuana found in the bedroom; and (3) his intent to use the apartment for the purpose of keeping or selling a controlled substance, in violation of N.C. Gen. Stat. § 90-108(a)(7) (2015). Given these permissible purposes, we find it improbable that the jury found defendant guilty by considering this evidence for an impermissible purpose such as defendant's bad character or general proclivity to engage in criminal activity. Absent a showing of the prejudice required by Strickland and Braswell, defendant's IAC claim is overruled. See State v. Sutton, 169 N.C. App. 90, 95-96, 609 S.E.2d 270, 274 (2005) (finding defense counsel's failure to request a limiting instruction for evidence admitted under Rule 404(b) did not prejudice defendant and, therefore, did not amount to IAC).
NO ERROR.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).