Summary
In Wilkerson, Judge Wynn wrote, and the North Carolina Supreme Court agreed: "[E]ven if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, the inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403."
Summary of this case from United States v. ThorneOpinion
No. COA00-1090
Filed 5 February 2002
1. Evidence — prior crimes or acts — drug activity and convictions
The trial court did not abuse its discretion in a possession with intent to sell or deliver cocaine and trafficking in cocaine case by admitting testimony regarding defendant's prior drug activity and prior drug convictions even though defendant did not testify at trial, because: (1) the evidence was not unfairly prejudicial under N.C.G.S. § 8C-1, Rule 403 and the trial court gave a proper limiting instruction; (2) the other crimes were sufficiently similar since all occurred at the same location, defendant was present, all involved cocaine, and the prior convictions occurred within a year of the present offenses; and (3) the testimony of the underlying facts and circumstances leading to defendant's prior convictions was relevant and admissible under N.C.G.S. § 8C-1, Rule 404(b) to show intent to sell and knowing possession of cocaine.
2. Criminal Law — instructions — no expression of opinion — totality of circumstances
The trial court did not commit plain error in a possession with intent to sell or deliver cocaine and trafficking in cocaine case by allegedly commenting upon the evidence during the trial court's instructions to the jury with respect to defendant's 15 June 1994 statement at the time of his arrest, because: (1) the trial court properly instructed the jury that it must consider all of the evidence presented and that defendant's statement was admissible only for the limited purpose for which it was allowed into evidence; and (2) the totality of circumstances revealed that the trial court's instructions did not constitute an impermissible expression of opinion on the evidence.
Judge WYNN dissenting.
Appeal by defendant from judgment entered 16 November 1995 by Judge Howard R. Greeson, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 22 August 2001.
Attorney General Roy Cooper, by Assistant Attorney General Jeffrey M. Seigle, for the State. Lisa Miles, for defendant-appellant.
I. Facts
The State's evidence at trial tended to establish that on 25 January 1995, Eunice Tolar ("Tolar") purchased cocaine from Ronnie Hayze Wilkerson ("defendant"), for the Eden Police Department, at 133 Roosevelt Street, Eden, North Carolina.
On 26 January 1995, a search warrant was executed at 133 Roosevelt Street. During the search, a test tube containing cocaine was found in defendant's pocket. Cocaine was also found in the commode and a crack pipe was found in a bedroom.
Officer Reese Pyrtle ("Officer Pyrtle"), of the Eden Police Department, testified that he assisted with the search of the residence and that he had previously searched the residence at 133 Roosevelt Street pursuant to a search warrant on 15 June 1994. Officer Pyrtle testified that he found cocaine inside a test tube in the kitchen trash can and that defendant was found in the kitchen when he arrived to conduct the 1994 search. After voir dire and withdrawal of defendant's objection, Officer Pyrtle read the following statement made by defendant on 15 June 1994 to the jury:
I purchased eighty dollars worth of powder cocaine . . . then I decided to cook the powder up into crack. When I was cooking the powder into crack that is when the officers came up with the search warrant. I don't sell drugs. I buy powder cocaine because you get more cocaine for your money.
Special Agent Windy Long ("Agent Long"), with the North Carolina Bureau of Investigation, testified that on 11 October 1994 and 12 October 1994, she made undercover purchases of crack cocaine from defendant at 133 Roosevelt Street.
After both Pyrtle and Long testified, Shelby Newcomb, the Deputy Clerk of Court, testified that defendant had prior convictions for: (1) possession of cocaine on 15 June 1994, (2) possession with intent to sell or deliver cocaine on 11 October 1994, and (3) sale and delivery of cocaine on 11 October 1994.
Defendant did not testify or offer any evidence at trial. The jury found defendant guilty of possession with intent to sell or deliver cocaine and trafficking in cocaine. Defendant was sentenced to a minimum of thirty-five months and a maximum of forty-two months for trafficking in cocaine and a minimum of ten months and maximum of twelve months for possession with intent to sell or deliver to be served at the expiration of the previous sentence. Defendant's retained counsel failed to perfect his appeal. This Court granted certiorari upon petition of his present counsel. We hold there was no error.
II. Issues
The issues presented are: (1) whether the trial court erred in admitting testimony regarding defendant's prior drug activity and prior drug convictions and (2) whether the trial court committed plain error in its comment upon the evidence.
III. Admission of Prior Drug Activity and Prior Convictions
Defendant contends that he was unfairly prejudiced by the admission of the underlying facts and circumstances of his prior drug activities and subsequent convictions. We disagree.
Defendant's reliance on Rule 609 of the Rules of Evidence is misplaced. Rule 609 governs the use of evidence of criminal convictions for purposes of impeachment. "When a defendant appears as a witness at trial, evidence of the defendant's past convictions may be admissible for the purpose of attacking the defendant's credibility as a witness. Such evidence, however, is not admissible as substantive evidence to show the defendant committed the crime charged." State v. McEachin, 142 N.C. App. 60, 69, 541 S.E.2d 792, 799 (2001) (citations omitted); see also State v. Holston, 134 N.C. App. 599, 606, 518 S.E.2d 216, 221 (1999) ("Rule 609 allows a defendant's prior convictions to be offered into evidence when he takes the stand and thereby places his credibility at issue.") (emphasis added).
Defendant did not testify or offer any evidence at trial and the evidence of his prior convictions was not being offered for purposes of impeachment under Rule 609. Instead, the State offered the evidence for admission under N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999), which states:
Evidence 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.
This rule 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). Therefore, evidence of bad conduct and prior crimes is admissible under Rule 404(b) "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, 853 (1995). A prior bad act or crime is sufficiently similar to warrant admissibility under Rule 404(b) if there are "some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes." State v. Sokolowski, 351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999) (citations omitted). The similarities between the two situations need not "rise to the level of the unique and bizarre" but "must tend to support a reasonable inference that the same person committed both the earlier and later acts." Id.
Even where such evidence is relevant, the ultimate test of its admissibility is whether its probative value is substantially outweighed by the danger of unfair prejudice. See N.C. Gen. Stat. § 8C-1, Rule 403 (1999); State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995); State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989). "Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree." Coffey, 326 N.C. at 281, 389 S.E.2d at 56. Whether to admit or exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and the trial court's decision to admit such evidence will only be disturbed upon a showing of abuse of discretion. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992).
In the present case, defendant was charged with possession with intent to sell or deliver cocaine and trafficking in cocaine. Intent and knowledge are elements of these offenses which must be proven by the State. See N.C. Gen. Stat. §§ 90-95(a)(1) and (h)(3) (1999). "Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused." State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 366 (1954). Officer Pyrtle testified to the underlying facts and circumstances which led to defendant's conviction for possession of cocaine on 15 June 1994. The trial court gave a proper limiting instruction to the jury that defendant's statement from 15 June 1994 is to be considered only as evidence of intent and knowledge.
After the trial court denied defendant's request to suppress, Agent Long testified to the underlying facts and circumstances which led to defendant's convictions for possession with intent to sell or deliver cocaine and for sale and delivery of cocaine on 11 October 1994. The trial court held that the testimony was admissible under Rule 404(b) to show intent and knowledge and was not unfairly prejudicial under Rule 403. The trial court again instructed the jury to consider this evidence for intent or knowledge and not to prove the offense for which defendant was being tried.
We conclude that the other crimes were sufficiently similar: (1) all occurred at 133 Roosevelt Street, (2) defendant was present, (3) all involved cocaine, and (4) the prior convictions occurred within a year of the present offenses. We also conclude that the testimony of the underlying facts and circumstances leading to defendant's prior convictions was relevant to show intent to sell and knowing possession of cocaine.
Our courts have held that it is not error to admit the underlying facts and circumstances that formed the basis of defendant's prior convictions. See State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), disc. review denied, 353 N.C. 527, 549S.E.2d 552 (2001); State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628, 392 S.E.2d 136 (1990); State v. Winslow, 97 N.C. App. 551, 389 S.E.2d 436 (1990); State v. Rosario, 93 N.C. App. 627, 379 S.E.2d 434 (1989).
Our courts have also held that it is not error to admit the fact of defendant's prior convictions. See State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000); State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000); State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861, disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000); State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001); State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998); State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250 (1987).
Our courts have also held that it is proper to admit both: (1) testimony of the underlying facts and circumstances and (2) that defendant had been convicted for the bad act under Rule 404(b). See State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998); State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131 (2001).
In Hipps, defendant was indicted for first-degree murder. Defendant did not testify or offer any evidence during the guilt-innocence phase of trial. Hipps, 348 N.C. at 387, 501 S.E.2d at 632. The State presented evidence that defendant had been convicted of murder in 1978 and details about the similarities between the 1978 and 1995 murders. Id. Our Supreme Court found that: (1) the evidence tended to show that defendant had both knowledge and intent when he committed the crime, (2) the seventeen year time lapse was not too remote for its admissibility, (3) there was no abuse of discretion by the trial court in concluding that the probative value outweighed any prejudicial effect, as the trial court was "careful to give a proper limiting instruction to the jury", and (4) the evidence was properly admitted under Rule 404(b). Id. at 405-06, 501 S.E.2d at 642.
This Court, in Barkley, affirmed the admission of court records showing that defendant had been convicted of rape in 1990 and testimony by the victim who accused defendant of raping her. Barkley, 144 N.C. App. at 521-22, 551 S.E.2d at 136. Defendant did not offer evidence at trial. Id. at 517, 551 S.E.2d at 134. This Court stated that "[e]vidence of prior crimes is admissible." Id. at 522, 551 S.E.2d at 136. We concluded that: (1) the similarities between the rapes supported a reasonable inference that the crimes were committed by the same person, (2) the six year time lapse was not too remote to affect admissibility, and (3) the trial court did not err in admitting both the victim's testimony and the record of conviction pursuant to Rule 404(b) and Rule 403. Id. at 522, 551 S.E.2d at 136-37 (citing State v. Murillo, 349 N.C. 573, 595, 509 S.E.2d 752, 765 (1998) (quoting State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991)).
Federal Rule of Evidence 404(b) is substantially similar to our Rule 404(b). Many federal courts have held that evidence of a prior conviction is admissible for a proper purpose even though defendant did not testify. See United States v. King, 768 F.2d 586, 588 (4th Cir. 1985) (defendant's prior convictions for dispensing cocaine were admissible on issues of intent and absence of mistake under Rule 404(b)); United States v. Naylor, 705 F.2d 110, 111-12 (4th Cir. 1983) (defendant's prior conviction for attempted theft of a motor vehicle was admissible under Rule 404(b) on the issue of knowledge since it was an essential element of the crime charged); United States v. Bibo-Rodriguez, 922 F.2d 1398, 1401-02 (9th Cir. 1991) (defendant's subsequent arrest after the charged offense for transporting marijuana was admissible under Rule 404(b) to show knowledge); United States v. Mehrmanesh, 689 F.2d 822, 830-33 (9th Cir. 1982) (defendant's prior conviction for possession of cocaine was admissible to show intent and knowledge under Rule 404(b)).
The dissent focuses on the issue of introduction of "the bare fact of defendant's prior conviction" absent the underlying facts and circumstances, which is not before us. The question presented in this appeal is whether evidence of the underlying facts and circumstances of defendant's prior drug activities and subsequent convictions is admissible.
The dissent would abolish the Rule 403 balancing test as it finds that the admission of defendant's subsequent convictions for his prior drug activity is "inherently prejudicial." Our Supreme Court directly addressed this issue in Hipps, stating that defendant had not demonstrated an abuse of discretion as the trial court gave a proper limiting instruction to the jury. Hipps, 348 N.C. at 405-06, 501 S.E.2d at 642.
The dissent states it is "implied" that: (1) since evidence of defendant's prior convictions is admissible only under Rule 609 then evidence of the underlying facts and circumstances of defendant's prior convictions is admissible only under Rule 404(b) and (2) Rule 403 "envisions a comparison of facts and circumstances, rather than charges and convictions."
Justice O'Connor, dissenting in Old Chief v. United States, 519 U.S. 172, 196, 136 L.Ed.2d 574, 597 (1997), stated that Federal Rule 404(b) "contemplates the admission of evidence of prior crimes" for purposes other than to show the character of a person in order to show conformity therewith. Both our courts and the federal courts have recognized the admissibility of prior convictions when: (1) relevant to an issue other than character, (2) the probative value substantially outweighs the prejudicial impact, and (3) the trial court gives a limiting instruction to offset any potential for prejudice.
Finally, the dissent argues that the existence of other evidence of defendant's intent and knowledge reduces the probative value of defendant's prior convictions. The other evidence being testimony of defendant's prior drug activity did not conclusively establish intent and knowledge. The defense offered at trial was that defendant used drugs and was around drugs but did not sell drugs. Defendant asserted this theory in his 1994 statement, which was read to the jury, and on cross-examination of Agent Long that defendant was not the individual who delivered the drugs but was merely present at 133 Roosevelt Street during the sale. Evidence of defendant's prior drug convictions was highly probative to establish intent and knowledge.
We hold that the trial court did not abuse its discretion in admitting the testimony of defendant's prior drug activity nor in admitting the fact that defendant was convicted for said drug activity. This assignment of error is overruled.
IV. Judicial Comment Upon the Evidence
Defendant's final contention is that the trial court's instructions to the jury, with respect to defendant's 15 June 1994 statement, constituted improper judicial comment on the evidence and warrants a new trial. We disagree.
During deliberations, the jury asked to see the statement defendant made at the time of his arrest on 15 June 1994. Before sending the statement into the jury room with the jurors, the trial court instructed the jury as follows:
I want to caution you of two things ladies and gentlemen of the jury. First matter is that I am going to let you take this to the jury room as it was requested but you are not to alter it in any way and you are not to give it any undue weight. You have asked for it and obviously you feel that it is necessary but please don't put any undue importance on it. You are to consider all of the evidence in this case. All of the evidence is important. Second, my recollection of that statement is that it pertained to a June, 1994, incident. I must remind you, and I will remind you, once again, you may consider that statement in as much as it was received, for the limited purpose which I allowed it to begin with.
"The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C. Gen. Stat. § 15A-1222 (1999). A totality of the circumstances test is used to determine whether a judge's comments constitute impermissible opinion. State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). Since defendant claims that he was deprived of a fair trial by the judge's statements, he "has the burden of showing prejudice in order to receive a new trial." State v. Gell, 351 N.C. 192, 207, 524 S.E.2d 332, 342, cert. denied, 531 U.S. 867, 148 L.Ed.2d 110 (2000). Finally, the trial court's words "`may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred.'" State v. Chandler, 342 N.C. 742, 752, 467 S.E.2d 636, 641 (1996) (quoting State v. McWilliams, 277 N.C. 680, 684-85, 178 S.E.2d 476, 479 (1971)).
Defendant failed to object to the instructions given by the trial court, which generally operates to preclude raising the error on appeal. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985); N.C.R. App. P. 10(b)(1) (1999). However, defendant has specifically and distinctly contended plain error on appeal as allowed pursuant to N.C.R. App. P. 10(c)(4) (1999).
In this case, the trial court properly instructed the jury that they must consider all of the evidence presented and that defendant's statement was admissible only for the limited purpose for which it was allowed into evidence. Based on the totality of circumstances, we hold that the trial court's instructions did not constitute an impermissible expression of opinion on the evidence. This assignment of error is overruled.
No error.
Judge HUNTER concurs.
Judge WYNN dissents.