Opinion
No. COA11–674.
2012-05-1
STATE of North Carolina v. Deangelo Darne SMITH, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State. Daniel F. Read for defendant-appellant.
Appeal by defendant from judgments entered 1 December 2010 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 16 November 2011. Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State. Daniel F. Read for defendant-appellant.
GEER, Judge.
Defendant DeAngelo Darne Smith appeals from his convictions of possession with intent to sell or deliver cocaine and possession with intent to sell or deliver marijuana. Defendant primarily contends on appeal that the trial court erred in admitting various references to gang membership. Because the evidence of defendant's guilt, including a statement he gave to law enforcement, was overwhelming, he has failed to demonstrate sufficient prejudice, even assuming without deciding that the evidence should have been excluded.
Facts
The State's evidence at trial tended to show the following facts. On 10 February 2009, Detective N.J. Grimaldi and Sergeant G.J. Porterfield of the Raleigh Police Department were conducting surveillance of Haywood Street and Hay Lane from a rooming house on Haywood Street. The landlord at the rooming house had received complaints from residents about drug activities. In the room occupied by the officers, the condition of the windows and the window coverings made it possible for the officers to observe what occurred on the street without those on the street being able to see in. The surveillance was conducted during a clear day for approximately five hours.
Defendant arrived in the surveillance area between 10:30 a.m. and 11:00 a.m. Both officers conducting surveillance identified defendant at trial. They saw defendant engage in several “hand-to-hand transactions,” making some kind of exchange with people in cars or with pedestrians. Each exchange lasted less than two seconds. After an exchange, defendant would walk directly into a nearby store, remain a minute or two, and then either walk out or crack open the door and look around before emerging.
At one point, defendant walked to a blue pickup truck and met a man known as “Face.” The two men exchanged hand signals, some sort of salute, and greetings. Defendant then opened the passenger door, placed two baggies on the seat, and put a jacket on top of the baggies. Defendant closed the door, and Face drove away. The officers thought the substance in the baggies appeared to be marijuana. This interaction was captured on video and was shown at trial.
Shortly after 11:00 a.m., defendant walked up to a fence on the front lawn of the building next to the rooming house. He was about 20 feet away from the rooming house. Defendant picked up a plate (either paper or Styrofoam), placed a clear plastic baggie on the ground, put some leaves over the baggie, and then put the plate back down on top of the baggie.
Detective Grimaldi maintained surveillance of the plate, which he described as a “stash pile,” in order to ensure that no one else picked it up or took it away. Detective Grimaldi watched defendant's stash for approximately two hours until defendant was arrested. Defendant went back to the stash once, moved the leaves, picked up the bag, appeared to take something out, replaced the bag and leaves, and walked back to the street. No one else went to the stash location or even walked on the front lawn.
Uniformed officers detained defendant just off the sidewalk in front of the rooming house. Sergeant Steve Previtali with the Raleigh Police Department then located the plate. When he moved the plate, he observed a plastic bag containing other smaller bags, some of which contained a substance that looked like marijuana and others that held a hard, white substance he believed to be crack cocaine.
Detective Keith D. Heckman with the Raleigh Police Department interviewed defendant at about 2:00 p.m. on that same day. After being read his Miranda rights, defendant signed a written waiver of his rights. Detective Heckman took notes as defendant was making his statement and then memorialized that statement on the computer. Defendant admitted to having marijuana, purchasing cocaine for resale, being a gang member, and having an agreement with the gang leader to sell drugs in that area.
Defendant was indicted for possession with intent to sell or deliver cocaine and possession with intent to sell or deliver marijuana on 23 March 2009. He was also indicted as a habitual felon on 5 May 2009.
Defendant's first trial ended in a mistrial when jurors could not come to a unanimous verdict. At defendant's second trial, the jury found him guilty of possession with intent to sell or deliver cocaine and guilty of possession with intent to sell or deliver marijuana. Defendant then pled guilty to habitual felon status. Defendant was sentenced to two concurrent presumptive-range terms of 100 to 129 months imprisonment each. Defendant timely appealed to this Court.
I
Defendant first contends the trial court erred in admitting the drugs into evidence without the establishment of a chain of custody. When a party attempts to admit “real evidence”—physical evidence that played a direct part in the incident at issue, Black's Law Dictionary 639 (9th ed.2009)—“[a] detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.” State v. Campbell, 311 N.C. 386, 389, 317 S.E.2d 391, 392 (1984). “Further, any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility.” Id.
Here, defendant has made no claim that the evidence was altered. Therefore, a detailed chain of custody was not necessary. As for the chain of custody evidence, Sergeant Previtali testified that he took the plastic bag under the plate into custody. He put the eight small bags containing the white substance into a manila envelope and sealed, initialed, and dated the envelope. He sealed the four bags of what appeared to be marijuana in a similar envelope also with his initials and the date. He gave the envelopes to the Raleigh Police Department to be put into the evidence locker, where they were picked up by the crime lab for analysis.
The substances in the bags were later confirmed to be cocaine and marijuana by Agent Amy Bommer, a forensic drug chemist with the City County Bureau of Identification (“CCBI”). Agent Bommer received the sealed envelopes directly from the CCBI's evidence custodian, who had received them earlier that day from the Raleigh Police Department's evidence custodian.
Both Sergeant Previtali and Agent Bommer identified the admitted evidence as the drugs involved in this case. Both testified that the drugs appeared to be in the same condition as when they each initially received them. This evidence was adequate to establish a chain of custody, and any weaknesses in that chain were for the jury to assess. The trial court, therefore, did not err in admitting the real evidence.
Defendant next contends that the trial court erred by admitting defendant's own statements regarding his gang membership and gang-related drug activities. We disagree.
Detective Heckman first testified without objection that defendant admitted the following facts:
What he told is that, I live with my mom at 2820–101 Deer Cove Lane. I walked to Haywood Street from the house today. I already had the four bags of marijuana with me when I got there but I bought eight rocks of crack for $40 from 2D. He went on to explain that he paid her $35 and that he owes her an additional five. I indicated in my statement here that the black female wearing the orange shirt, which he says was 2D, was identified as Desiree Diane Smith, date of birth was 10–6–1985. He further states that, I was selling the drugs to make some quick money.
Defendant did not object to the admission of this part of the statement in which he admits possession of cocaine and marijuana for resale.
Defendant includes in his brief a paragraph arguing that a statement reduced to writing is not admissible unless the defendant has indicated his acquiescence in its correctness. Defendant did not, however, object to the admission of the statement generally, and this theory was not the basis for his objection to the portion of the statement addressing gang membership. Since defendant does not specifically argue plain error with respect to this theory or admission of the statement generally, defendant's argument is not properly before this Court. See State v. Potts, ––––N.C.App. ––––, ––––, 702 S.E.2d 360, 361 (2010) (“Because defendant has not argued plain error, we cannot consider his argument and it is dismissed.”).
When Detective Heckman attempted to continue, defendant objected. After conducting a voir dire examination outside the presence of the jury, the judge ruled that the remainder of defendant's statement was relevant and that its probative value was not outweighed by any prejudicial effect. The entire statement was then read in front of the jury. The statement, as read by the detective, included the following:
I am a 9–Tre gang member. That block, meaning the 500 block of Haywood Street, is a BMG gang area and is controlled by Respect. I have an agreement with Respect, who is the leader of the gang in that area, that I can sell on the block because I grew up in Chavis Heights. People don't talk much around me because I'm a 9–Tre gang member but Respect trusts me a lot and I don't have to pay into the rent box.
On Sunday, 2–1 of 2009, I helped Respect bag up 31 separate 7 gram bags of marijuana. There is only a few 9–Tre guys that are on Haywood Avenue. They are Face and Murder. Those are the street names of two guys that are currently unidentified. Haywood Street has been a GKB controlled area. GKB, Gangster Killer Bloods, but GKB has become BMG, which stands for Black Mafia Gangster. Respect controls this gang. Under Respect is a guy named Alpha, whose name is Alpha Omega Privette.
If I need to get powder, powder cocaine, crack, crack cocaine or pills right now, I would call Alpha, Respect, or Brave. And I have in parentheses that Brave is a street name of an unidentified person. If I needed pills, I would call Alpha or Face. Face drives an old blue truck with a camper shell on top. He gets his pills and weed from V, which is Vernon Grimes, he said, you guys hit V's location on Selwyn Alley about a month ago and got some weed and pills.
Assuming, without deciding, that the trial court should have excluded this part of defendant's statement, we hold that defendant has failed to show that there is a reasonable possibility that, in the absence of this testimony, the jury would have found defendant not guilty. SeeN.C. Gen.Stat. § 15A–1443(a) (2011). In deciding whether defendant possessed cocaine and marijuana with intent to sell or deliver, the jury had before it defendant's admission of possession of cocaine and marijuana for resale; the transactions observed by the officers; a video that showed a hand-to-hand transaction involving a substance that looked like marijuana; and the drugs found in a hiding place visited only by defendant while making the hand-to-hand transactions. Given this evidence of defendant's guilt of the charges, we cannot find prejudicial the jury's hearing that defendant was also a gang member who obtained drugs from other gang members.
III
Defendant also argues that the trial court erred in admitting evidence regarding the reputation of Haywood Street for drug dealing. Sergeant Porterfield testified without objection that the “500 block has been a known hangout for gang members for street level drug sales.” Sergeant Previtali testified without objection that Haywood Street is “a common hot spot that we have to address as far as drug and firearm violations.” Detective Grimaldi, over defendant's objection, testified that the 500 block of Haywood Street “was primarily a drug infested street, we've had numerous complaints from the citizens that live there complaining of different individuals selling narcotics in the street.”
“ ‘[I]t is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.’ “ State v. Augustine, 359 N.C. 709, 720, 616 S.E.2d 515, 525 (2005) (quoting State v. Nobles, 350 N.C. 483, 501, 515 S.E.2d 885, 896 (1999)). As defendant did not object to Sergeant Porterfield's or Sergeant Previtali's testimony characterizing the street, he waived his objection to Detective Grimaldi's testimony. Id. See also State v.. Wright, 302 N.C. 122, 125–26, 273 S.E.2d 699, 702 (1981) (“Whenever evidence is admitted over objection and the same or similar evidence is theretofore or thereafter admitted without objection, the objection is deemed waived.”).
We, therefore, review the admission of the testimony of the three officers for plain error under Rule 10(a)(4) of the Rules of Appellate Procedure. See, e.g., State v. Samuel, 203 N.C.App. 610, 618, 693 S.E.2d 662, 668 (2010) ( “Where a defendant has failed to make a timely objection at trial, the admission of evidence which is technically inadmissible will be treated as harmless unless plain error is shown.”).
“[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
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)).
Defendant contends that “evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay,” citing State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985). In Weldon, the trial court admitted evidence at a heroin trafficking trial “that defendant's house had a reputation as a place where heroin and other illegal drugs could be bought or sold.” Id. Our Supreme Court found that admission of this reputation evidence-a form of hearsay-was error, but that it was not prejudicial given the “abundant evidence of defendant's guilt.” Id. at 411, 333 S.E.2d at 707.
The State argues in this case that the neighborhood's reputation was not admitted for the truth of the matter asserted, but rather was admitted to explain the officers' actions. This Court has previously held that police officers may testify regarding an area's reputation for drug sales in order to explain the officers' presence without violating the hearsay rule. See State v. Blair, 181 N.C.App. 236, 246, 638 S.E.2d 914, 921 (2007) (holding testimony that “police ‘had numerous complaints of prostitution, street-level drugs, larcenies, shoplifting, robberies, assaults' “ was admissible to show why officers conducted surveillance there); State v. English, 171 N.C.App. 277, 284, 614 S.E.2d 405, 410 (2005) (holding that testimony regarding neighborhood's reputation for drug sales was not hearsay when it was offered to explain why officer was soliciting drugs from pedestrian in neighborhood). Here, the officers testified to the area's reputation for drug sales when explaining why they were conducting surveillance at the rooming house. Blair and English control, and the trial court, therefore, did not err in admitting the testimony.
In any event, we cannot conclude that the admission of this evidence was, in light of the other evidence, sufficiently prejudicial to constitute plain error. The evidence of defendant's guilt was abundant, and defendant cannot show that the reputation testimony had a “ ‘probable impact on the jury's finding that the defendant was guilty.’ “ Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting McCaskill, 676 F.2d at 1002).
IV
Defendant next contends that the trial court erred by overruling defendant's objection to testimony that defendant and another person exchanged “gang signs.” Sergeant Porterfield testified:
Q. Do you have any idea who—if there's any relationship between this individual you described as Face and Mr. Smith?
A. Do I have any relationship?
Q. Do you have any idea if the two of them have any sort of relationship?
A. Other than exchanging gang signs to each other
[DEFENSE COUNSEL]: Objection, your Honor. Move to strike that.
THE COURT: Motion to strike is denied. He can describe what he observed. Go ahead.
THE WITNESS: Other than them exchanging gang signs
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained. You can describe what you observed.
THE WITNESS: Okay. I observed hand signals being exchanged by the two gentlemen and some form of salute that they did to each other. Other than that, I cannot tell you what the other relationship is between the two.
It appears that the trial court ultimately sustained the objection to the reference to “gang signs,” but allowed Sergeant Porterfield to testify that defendant and the other individual exchanged hand signals. When an objection has been sustained, there is no basis to challenge it on appeal. State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991) (“[W]here the trial court sustains defendant's objection, he has no grounds to except.”).
Even if the trial court had not sustained the objection, any error was harmless. Defendant had admitted to possessing four bags of marijuana and having bought eight rocks of crack cocaine. He told the officers that he was selling the drugs to make some “quick money.” The officers' surveillance was consistent with defendant's confession—they saw numerous hand-to-hand exchanges, including the videotaped transaction in which defendant placed two baggies of what appeared to be marijuana on Face's truck seat. In addition, defendant was the only one to visit the stash of drugs hidden under the disposable plate. We do not believe that there is a reasonable possibility that in the absence of the reference to “gang signs,” the jury would have found defendant not guilty.
Defendant also contends that the admission of this evidence constitutes ineffective assistance of counsel. However, because any error was harmless, we are not persuaded by defendant's claim that he received ineffective assistance of counsel. See State v. Phillips, 365 N.C. 103, 147–48, 711 S.E.2d 122, 153 (2011) (holding trial court's error harmless, and, therefore, that defense counsel's action did not constitute ineffective assistance as there was no prejudice to defendant), cert. denied, –––– U.S. ––––, 182 L.Ed.2d 176, 132 S.Ct. 1541 (2012).
V
Defendant next contends that the trial court erred in denying defendant's motion to dismiss. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). This Court must determine “ ‘whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). The trial court must consider all evidence “in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Defendant was charged with violation of N.C. Gen.Stat. § 90–95(a)(1) (2011), which prohibits possession with intent to sell or deliver a controlled substance. “The elements of possession with intent to sell and deliver 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).
Defendant contends that the State presented insufficient evidence of possession. “Possession of a controlled substance may be actual or constructive.” State v. Fuller, 196 N.C.App. 412, 421, 674 S.E.2d 824, 830 (2009). Actual possession occurs when a substance “is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.” State v. Reid, 151 N.C.App. 420, 428–29, 566 S.E.2d 186, 192 (2002).
In contrast, “ ‘[c]onstructive possession [of a controlled substance] occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the [controlled] substance.’ “ State v. Alston, 193 N.C.App. 712, 715, 668 S.E.2d 383, 386 (2008) (quoting State v. Wilder, 124 N.C.App. 136, 139–40, 476 S.E.2d 394, 397 (1996)), aff'd per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009). When a defendant did not have “exclusive possession of the place where the contraband [was] found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009).
Since defendant did not have exclusive possession of the front lawn where the plate was located, the State was required to present sufficient evidence of other incriminating circumstances in order to allow the jury to infer defendant constructively possessed the cocaine and marijuana under the plate. First and foremost, the State presented evidence that defendant admitted he brought the marijuana with him to Haywood Street and purchased the cocaine from someone else to resell. In addition, Detective Grimaldi watched as defendant picked up the plate, placed a baggie on the ground, and replaced the plate over the baggie. During the next two hours, defendant returned once to the plate, but no one else ever approached it. Officers also observed defendant making hand-to-hand transactions suggestive of drug transactions and, consistent with the practice of drug dealers having someone else hold their money, defendant would, after each transaction, walk into the corner store.
“Our appellate courts have previously held that similar circumstances—involving close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery—are sufficient to permit a jury to find constructive possession.” State v. Turner, 168 N.C.App. 152, 156, 607 S.E.2d 19, 22–23 (2005). See also State v. Ferguson, 204 N.C.App. 451, 460–61, 694 S.E.2d 470, 477–78 (2010) (finding following factors significant to prove constructive possession: that (1) defendant had specific or unique connection to place where drugs were found; (2) defendant behaved suspiciously, made incriminating statements admitting involvement with drugs, or failed to cooperate with police; and (3) defendant was in close proximity to location where drugs were found).
Given the incriminating circumstances presented at defendant's trial, reasonable jurors could have found that defendant had constructive possession of the cocaine and marijuana found under the plate. The trial court, therefore, properly denied the motion to dismiss.
VI
Finally, defendant contends that sentencing him as a habitual felon violates the Eighth Amendment prohibition on cruel and unusual punishment. Defendant argues that, given his youth, the sentence he received was excessive and grossly disproportionate to the severity of the crime for which defendant was convicted.
Defendant, however, acknowledges in his brief that this Court has previously rejected Eighth Amendment challenges to the sentencing scheme under the Habitual Felon Act. See State v. Hargrave, 198 N.C.App. 579, 589, 680 S.E.2d 254, 261 (2009) (observing that “ ‘[t]his Court and the North Carolina Supreme Court have consistently rejected Eighth Amendment challenges to habitual felon sentences' “ (quoting State v. Cummings, 174 N.C.App. 772, 776, 622 S.E.2d 183, 185–86 (2005))); State v. Clifton, 158 N.C.App. 88, 91, 95, 580 S.E.2d 40, 42, 45 (2003) (upholding a sentence of two consecutive terms of 168 to 211 months active imprisonment under the habitual felon statute when defendant committed two counts of nonviolent Class H felony).
In this case, defendant was not sentenced to 100 to 129 months imprisonment solely because of the 10 February 2009 crimes, but rather because of his criminal history. We, therefore, hold defendant's sentence is constitutional.
No error. Judges ROBERT C. HUNTER and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).