State v. Allen
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-290 NORTH CAROLINA COURT OF APPEALS Filed: 7 October 2014 STATE OF NORTH CAROLINA v. Mecklenburg County No. 12 CRS 233035-36, 599 13 CRS JAMEL LAPOINTE ALLEN, Defendant. Appeal by defendant from judgments entered 28 August 2013 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 August 2014. Attorney General Roy Cooper, by Special Deputy General Terence D. Friedman, for the State. Appellate Defender Staples S. Hughes, by Appellate Defender Anne M. Gomez, for defendant. Attorney Assistant -2ELMORE, Judge. On 28 August 2013, a jury found Jamel Lapointe Allen (defendant) guilty of possession of a firearm by a felon and of possession of drug paraphernalia. attaining the status of a Defendant pleaded guilty to habitual felon. The trial court sentenced defendant to 60 to 84 months imprisonment for the possession of firearm by felon charge, concurrent to a sentence of 60 days imprisonment for possession of drug paraphernalia. Defendant raises five evidentiary issues on appeal. After careful consideration, we hold that defendant received a trial free from prejudicial error. I. The State first called Charlotte-Mecklenburg Police Background Officer Daniel Bignall Department. with Officer the Bignall testified that he was assigned to the Freedom Division Focus Mission Team, a violent crime suppression unit that patrol[s] areas where we prostitution. have problems with robbers, drugs, [and] On 26 July 2012, Officer Bignall and eight to eleven additional officers executed a search warrant at 3136 Timberbrook entered Drive, through apartment. a Apartment sliding B in glass Charlotte. door in the The rear officers of the Officer Bignall testified he entered Bedroom Number -31 (bedroom 1) and found defendant sitting on the bed. Defendant and a female who was also present in the apartment were moved to the living room and read their Miranda warnings. Officer Bignall searched bedroom 1 and found defendant s criminal record and paperwork from the DMV with defendant s name on it in the closet. otherwise contained Officer Bignall noted that the closet only men s clothing. Officer Bignall confiscated two digital scales, sandwich baggies, and a razor blade from the top of the dresser and defendant s cell phone, which was sitting on the bed. Officer Brandon Williamson with the Freedom Division Focus Mission Team participated in the execution of the search warrant at the bedroom Timberbrook 1 defendant. and The apartment. located ID a listed Blaire Lane, Charlotte. North Officer Williamson Carolina defendant s ID address searched belonging as 6039 to Mary Officer Williamson noted that the dry- cleaning in the closet was tagged with the first four letters of defendant s last name and the invoice had defendant s full name on it. When he lifted the mattress, Officer Williamson uncovered a Smith & Wesson semi-automatic firearm with built-in laser sight. A loaded magazine for the firearm was next to it. When asked, -4 was there anything else in that room that indicated that someone [besides defendant] was using that room[?] , Officer Williamson Officer responded, No, not that I observed. Williamson testified that defendant admitted in an interview he had touched and held the firearm but denied owning it. Officer Alex Saine, also with the Freedom Division Focus Mission Team, testified that defendant was found in bedroom 1 and the female was found in a second bedroom. participated in the search of bedroom 1. Officer Saine He discovered a safe in the closet that contained defendant s birth certificate and other documents in defendant s name. Officer Saine testified that in an interview, defendant initially referred to the cell phone found on the bed in bedroom 1 as his. However, when confronted with evidence that the phone s home screen displayed a picture of the firearm, all of the sudden he didn t know about the phone. When asked about a video of the firearm on the phone, defendant again denied that the cell phone was his. Officer Saine testified that the cell phone video showed a male holding the Smith & Wesson firearm showing it off for the camera. There was narrating, and the video was shot in bedroom 1. a male voice -5Rachael Scott, DNA analyst for the Charlotte-Mecklenburg Police Department s crime laboratory, testified that defendant s DNA profile was found on the grip of the firearm as well as on the magazine. Based on the evidence, defendant was indicted on charges of possession of a firearm by a felon, possession with intent to sell or deliver a controlled substance, and possession of drug paraphernalia. However, the controlled substance did not test positive as a narcotic. the charge of possession with The State therefore dismissed intent to sell or deliver a controlled substance. Defendant testified on his own behalf at trial. alleged that at no time did he reside at the Defendant Timberbrook apartment. He stated that he went to the Timberbrook apartment on 26 July 2012 to pick up Charmane Reddy, a friend who needed a ride to work. After dropping Ms. Reddy off, defendant testified that he returned to the Timberbrook address to get something to eat and 20 minutes later the police came. Defendant testified that he had personal items in bedroom, for storage basically. Defendant stated that many of the personal items in bedroom 1 belonged to Defendant bedroom 1. his denied deceased storing father, the including digital scale the and dry-cleaning. firearm in -6II. Analysis A. Motion for Mistrial Defendant contends the trial court erred in failing to grant his motion for a mistrial after Officer Saine testified that defendant was arrested for possession of cocaine. Defendant argues that the admission of Officer Saine s testimony violated the North Carolina Rules of Evidence and resulted in substantial and irreparable prejudice to him. We disagree. Under N.C. Gen. Stat. § 15A 1061 (2013), a mistrial is warranted when there occurs during the trial . . . conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant s case. The trial court s denial of a motion for mistrial is reviewed only for manifest abuse of discretion. State v. King, 343 N.C. 29, 45, 468 S.E.2d 232, 242 (1996). The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. . . . In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the -7Court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. This is also the rule when unresponsive answers of a witness include incompetent prejudicial statements and the court on motion or ex mero motu instructs the jury they are not to consider such testimony. Whether the prejudicial effect of such incompetent statements should be deemed cured by such instructions depends upon the nature of the evidence and the circumstances of the particular case. State v. Aycoth, 270 N.C. 270, 272 73, 154 S.E.2d 59, 60 61 (1967) (citations and quotations omitted). Because the substance seized from the Timberbrook apartment did not dismissed test the positive charge of as an illegal possession narcotic, with intent the to State sell or deliver a controlled substance prior to trial and agreed not to reference the charge at trial. The evidence at issue here was elicited when the State specifically asked Officer Saine on what charges was defendant arrested. possession of a firearm by Officer Saine responded: a felon, [and] For possession of cocaine. Defendant immediately objected to this testimony, but the trial court overruled the objection. During a bench -8conference motion the for trial mistrial court but testimony from the record. reconsidered--denying agreeing to strike defendant s the contested As such, the trial court issued the following curative instruction: Ladies and gentlemen, the testimony just prior to the break by the officer, the defendant was charged with a particular offense, is stricken. The fact that someone has been charged with something is no evidence of guilt, and you re to disregard the officer s answer about what the defendant was charged with. That answer is not to influence your decision in its weighing or is to play any part in your deliberations. Defendant contends that the knowledge that [he] had been arrested for possession of cocaine was so highly prejudicial it could not be erased instruction. Scott, 331 contention. degree rape. from the jurors We are not persuaded. N.C. 39, 413 S.E.2d 787 minds with a curative Defendant cites State v. (1992) to support his In Scott, the defendant was on trial for secondThe State elicited testimony from an acquaintance of the defendant who testified that the defendant had raped her two years earlier under similar circumstances. S.E.2d at 788. Id. at 41, 413 The defendant had been tried and acquitted of the alleged rape. evidence Our Supreme Court held that that that defendant committed a prior -9alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403. Id. at 42, 413 S.E.2d at 788. When the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under the rule as a matter of law. Id. at 43, 413 S.E.2d at 789. In Scott, the link between the inadmissible evidence and the crime with which the defendant was charged was certain and unmistakable. defendant was corroborate trial. Here, arrested the There Officer for additional is Saine s possession evidence little if any mere of the statement cocaine State connection that does not presented at between the incompetent evidence and the crimes tried in the instant case. We hold there is no reason to believe that defendant was prejudiced by the admission of this evidence or that the jury depended upon this evidence in any way to arrive at the guilty verdict. The error was cured by prompt and adequate action by the trial court, since the presumption is that jurors will -10understand and comply with the instructions of the court. State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975). Accordingly, the trial court did not abuse its discretion in denying defendant s motion for a mistrial. B. Testimony of Job Duties Defendant next argues that the trial court erred in allowing the officers to testify that they were assigned to the Freedom Division Focus Team, which is a street drug interdiction unit and street a violent crime level drug crimes suppression within murders, rapes, and robberies. unit the that Freedom investigates Division and We disagree. We note at the outset that defendant did not object to the admission of the contested testimony at trial. review this argument for plain error. As such, we A reversal for plain error is only appropriate in the most exceptional cases. State v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005). Plain error should be applied only when the defendant proves that, 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[.] 378 (1983) State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, (citations and quotations omitted) (alteration in -11original). An appellate court must be convinced by the defendant that absent the error the jury probably would have reached a different verdict. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C. Gen. Stat. § 8C 1, Rule 401 (2013). Generally, all relevant evidence is admissible, N.C. Gen. Stat. § 8C 1, Rule 402, but evidence that has not been connected tendency to the to crime prove inadmissible. charged any fact and in which issue [has] [is] no logical irrelevant and State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 29 (1991). Here, Officer Bingal testified that he worked on the Freedom Division Focus Mission Team, which is a unit with uniformed lieutenants patrol and us where occurred. . . . We re a basically. patrol robberies, warrants. tell uniformed We drugs, to police go where violent crime areas where prostitution. Officer [sic] Brandon We we do Williamson car, crime and spikes have suppression have a unit, problems lot of testified the with search he was -12 assigned to the Freedom Division in their Focus Mission Team, where he investigated [m]urders, prostitution, and weapon offenses. the division. to the rapes, robberies, drugs, Basically street crimes in Lastly, Officer Saine testified he was assigned Freedom Division, Focus Mission Team, which is basically a street crimes unit, or also known as a Street Drug Interdiction Unit. We investigate street level drug crimes with the Freedom Division. On appeal, the crux of defendant s issue is that the foregoing testimony constituted inadmissible character evidence tending to show that defendant was a hardened criminal. Defendant contends that the officers testimony lacked relevance and had nothing to do with [defendant s] guilt or innocence. Further, defendant contends that he was irreparably prejudiced by its admission. In support of his argument, defendant relies on State v. Hinton, a case in which this Court held that it was error to allow Sergeant Bray to make ninety-one references to gangs or gang-related activity when the gang-related testimony had no tendency to make any fact of consequence more likely than not. State v. Hinton, ___ N.C. App. ___, ___, 738 S.E.2d 241, 246 (2013). -13Defendant s reliance on Hinton is misplaced. in Hinton was premised on the Our holding well-established rule that evidence of membership in [a gang] organization may only be admitted if relevant to the defendant s guilt. the gang-related evidence charged in the Hinton inadmissible. Id. at was never Id. connected to Because the crime case, we held that it was irrelevant and 246-47. In the instant case, the testifying officers were merely explaining their role with the Charlotte-Mecklenburg Police Department on the Freedom Division Focus Mission Team, which included investigating murders, rapes, robberies, point drugs, during prostitution, trial was it and suggested weapon offenses. that defendant At was perpetrator of crimes beyond which he had been charged. no the There was no reason for the jury to conclude defendant was a murderer or rapist or an otherwise hardened criminal. The trial court did not err. C. Best Evidence Rule Defendant next contends that the trial court violated the best evidence rule when it permitted Officer Saine to testify to the contents of the video found on defendant s cell phone when the video itself was allegedly available. We agree that the trial court may have violated the best evidence rule (assuming -14the cell phone video was available to be shown in court). However, such error did not constitute prejudicial error. According to our Rules of Evidence, [t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, provided in these rules or by statute. Rule 1002 (2013). The best except as otherwise N.C. Gen. Stat. § 8C-1, evidence rule requires that secondary evidence offered to prove the contents of a recording be excluded whenever the original recording is available. State v. York, 347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997). At that he trial, Officer watched a Saine video testified on on direct defendant s cell examination phone defendant was arrested: Q. Did you ever have an opportunity to watch that video? A. Yes. Q. Was it from the same phone that we were talking about? A. Yes. Q. And video? what did you actually see on the A. There s a male holding this pistol and just showing it off for the camera. There is a male voice in the background more or less narrating what s going on. The background of the video obviously was taken after -15in the defendant's bedroom. Q. Was it showing the same setup as where the defendant was found? A. Yes. Q. And the gun that was shown on the video, did it look the same as the gun that was collected from the bedroom? A. Yes. Q. And what about it was so similar? A. The size of it, as well as the red dot sight that s a feature of that pistol. MR. OSHO: Your Honor, at this time I believe all this is hearsay, and because it was heard. THE COURT: I m sorry? MR. OSHO: Your Honor, I believe the video is here. That would be the best evidence for the jury[.] [The officer s opinion as to the contents of the video] would be hearsay, your Honor. THE COURT: Well, sustained. From the record it is unclear whether the cell phone video was in fact available at trial. Defendant merely stated he believed the video was present at trial, and there was no additional Assuming, discussion without as to deciding, whether that it the should admission be of admitted. Officer -16Saine s testimony erroneous and concerning violated unconvinced that reaching different a reached. this the the error contents best the evidence probably verdict of than rule, resulted it video we are the jury would have in otherwise was State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citation and quotation omitted). The State presented sufficient evidence of defendant s constructive possession of the firearm irrespective of Officer Saine s testimony pertaining to the contents of the cell phone video. Possession constructive. of a v. Boyd, State S.E.2d 192, 196 (2002). firearm 154 may N.C. [] be App. 302, actual or 307, 572 Constructive possession of an item exists when a person does not have the item in physical custody, but . . . nonetheless has the power and intent to control its disposition. State v. Young, 190 N.C. App. 458, 460, 660 S.E.2d 574, 576 (2008). Specifically, the State presented the testimonial three evidence of law enforcement defendant was discovered in bedroom 1. officers that Bedroom 1 also contained numerous personal items belonging to defendant, including his ID, birth record, food-stamp card, and firearm was under the mattress and scales were found on the dresser in bedroom 1. The clothing. certificate, The Smith criminal & Wesson found -17firearm tested positive for defendant s DNA. There was evidence presented that defendant referred to the confiscated cell phone as his, until law enforcement officers pointed out that the home screen displayed a photograph of the firearm. There was evidence that defendant admitted to having touched and played with the firearm, but denied owning it. Based on the totality of the circumstances, the State s evidence showing defendant s ownership or control of the contraband establishes sufficient incriminating circumstances to support a conclusion that defendant constructively possessed the contraband. Id. at 461, 660 S.E.2d at 577. Even if Officer Saine s testimony regarding the cell phone video had been struck from the record or if the video itself had been shown, the jury probably would not have reached a different verdict. Walker, supra. D. Officer Saine s Testimony In defendant s final two arguments, he contends that the trial court committed reversible error in admitting portions of Officer Saine s testimony. he was irreparably In particular, defendant avers that prejudiced by the admission of Officer Saine s testimony pertaining to (1) a description of the items found in the safe as dominion items which suggest who the safe -18belongs to, (2) his references to bedroom 1 as the defendant s bedroom, (3) and his testimony certificate was found in the safe. that defendant s birth The core of defendant s argument is that, without the admission of this evidence, the State would have been unable to prove constructive possession of the contraband. Given the We disagree. State s evidence of detailed in the preceding discussion, constructive possession and our conclusion that the State presented sufficient evidence to support the jury s determination that defendant constructively possessed contraband, we overrule defendant s final two arguments. the There was sufficient evidence for the jury to find that defendant constructively possessed the contraband irrespective of Officer Saine s testimony. E. In sum, the trial court Conclusion did not err in (1) denying defendant s motion for mistrial; (2) allowing the officers to testify to their duties with the Freedom Division Focus Team; and (3) allowing Officer Saine to describe the contents of the safe as dominion items, call bedroom 1 defendant s bedroom, and testify that defendant s birth certificate was found in the safe. The State presented sufficient competent evidence that -19defendant constructively possessed the contraband. Assuming arguendo that the cell phone video was available at trial, the trial court violated the best evidence rule by allowing Officer Saine to testify to the contents of the video. error did not constitute prejudicial error. hold that defendant received a trial error. No prejudicial error. Judges CALABRIA and STEPHENS concur. Report per Rule 30(e). free However, this Accordingly, we from prejudicial
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