Appeal by defendant from judgment entered 10 May 2001 by Judge
Loto G. Caviness in Henderson County Superior Court. Originally
scheduled to be heard in the Court of Appeals on 17 September 2002.
Reassigned to this panel by order dated 16 January 2003 of Chief
Judge of the North Carolina Court of Appeals.
Attorney General Roy Cooper, by Assistant Attorney General
Frank G. Swindell, Jr., for the State.
James L. Goldsmith, Jr., for defendant appellant.
TIMMONS-GOODSON, Judge.
Alfred Williams (“defendant”) appeals from his conviction of
felony possession of cocaine. For the reasons discussed herein, we
hold that defendant is entitled to a new trial.
The State's evidence at trial tended to show the following: On
14 August 2000, Officer Joshua Howard (“Officer Howard”) was
patrolling the Green Meadows area of Henderson County. While on
patrol, Officer Howard observed Mr. Coleman (“Coleman”) operating
a vehicle and defendant riding on the passenger side. Coleman
stopped the vehicle in front of a house, defendant got out of the
vehicle, entered the residence, and Coleman continued to drive.
Officer Howard testified that he was familiar with the residencedue to “numerous drug arrest[s]” conducted in and around the
property. After defendant got out of the vehicle, Officer Howard
followed Coleman as he drove “around the block,” and then returned
to retrieve defendant. Officer Howard considered the actions of
Coleman and defendant “extremely suspicious” and therefore he
continued to follow Coleman. Officer Howard testified that
Coleman's vehicle did not possess a license plate and he waited
until he reached a “safe location” before stopping Coleman for a
traffic violation. Upon making the traffic stop, Officer Howard
learned that Coleman did not have a driver's license; had several
vehicle registration violations; and a protective pat down of
Coleman revealed that he was in possession of a hypodermic needle.
Coleman was placed under arrest.
After placing Coleman under arrest, Officer Howard instructed
defendant to exit the vehicle. A protective pat down of defendant
yielded no contraband or weapons, but Officer Howard noticed a
“blob of tissue paper that really stuck out” on the “passenger side
front door,” which was “real wet.” According to testimony from
Officer Howard, he “felt [the tissue] was something suspicious” and
he confiscated “the tissue” for further analysis, but did not
arrest defendant. Officer Howard described the front interior of
Coleman's vehicle as “not at all clean,” contained “drinks and
things,” and it “appeared [as if] somebody [had gone] to a fast
food restaurant.”
Upon returning to the police station, Officer Howard noticed
that “the wet tissue” had what he “felt was saliva on” it as if “ithad been in someone's mouth.” Subsequently, Officer Howard sent
the “tissue paper” to the State Bureau of Investigation (“SBI”) for
testing. The test results revealed that the “tissue” contained “.1
gram of cocaine base.” As a result, an arrest warrant was issued
for defendant, and he was subsequently charged with possession of
cocaine.
At trial, the State offered testimony, pursuant to North
Carolina General Statutes § 8C-1, Rule 404(b), from Melody Harding
Lamontaine (“Lamontaine”), an inmate in the custody of the
Sheriff's Department. According to Lamontaine, on 22 April 2000,
approximately four months prior to defendant's arrest, she was
acting as an informant for Agent John Pace (“Agent Pace”).
Lamontaine testified that she was assisting Agent Pace in gathering
information on individuals engaged in selling illegal narcotics.
At the direction of Agent Pace, Lamontaine contacted defendant by
telephone and initiated a meeting to purchase drugs from him.
Lamontaine testified that she met defendant in a parking lot, where
he was sitting on the passenger side of a vehicle driven by a
female. During the meeting, defendant took out a “black pill
container” with a “lid on it” and sold Lamontaine “five rocks of
cocaine.” After making the purchase, Lamontaine returned to Agent
Pace and gave him the “five rocks of cocaine.”
At trial, Agent Pace testified on behalf of the State to
corroborate the testimony give by Lamontaine. Agent Pace testified
that on 22 April 2000 he was employed with Alcohol and Law
Enforcement. He further testified that he witnessed Lamontaineenter a vehicle with defendant, exit that same vehicle, and then
return to him with “five white colored rocks,” which he then gave
to Officer Lyle Case of the Hendersonville Police Department. The
“five white colored rocks” were sent to SBI where they were
determined to be cocaine. According to Agent Pace, defendant was
never charged with or indicted for a crime in connection with the
22 April 2000 incident with Lamontaine.
After the jury found defendant guilty of felony possession of
cocaine, defendant admitted his status as a habitual felon.
Defendant was sentenced to an active term of imprisonment for a
minimum period of 107 to a maximum period of 138 months. From this
conviction and resulting sentence, defendant appeals.
________________________
In his sole issue for review, defendant argues that the trial
court erred in admitting testimony from Lamontaine under North
Carolina General Statutes § 8C-1, Rule 404(b). Defendant contends
that testimony of his alleged prior drug sale in order to show
motive and intent to possess cocaine was inadmissible. We conclude
that the admission of testimony from Lamontaine was prejudicial
error requiring that defendant be granted a new trial.
Rule 404(b) of the North Carolina Rules of Evidence provides
in pertinent part:
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). “We have held that
Rule 404(b) is a rule of inclusion, subject to the single exception
that such evidence must be excluded if its
only probative value is
to show that defendant has the propensity or disposition to commit
an offense of the nature of the crime charged.”
State v. Berry,
___ N.C. App. ___, 573 S.E.2d 132, 143 (2002);
see State v. Coffey,
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). In drug cases,
evidence of other drug violations is often admissible to prove many
of the purposes under Rule 404(b).
State v. Montford, 137 N.C.
App. 495, 501, 529 S.E.2d 247,
cert. denied, 353 N.C. 275, 546
S.E.2d 386 (2000). In order to admit evidence under the exception
for motive, the prior act must “'pertain[] to the chain of events
explaining the context, motive and set-up of the crime' and 'form[]
an integral and natural part of an account of the crime . . .
necessary to complete the story of the crime for the jury.'”
State
v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998)
(quoting
State v. Agee,
326 N.C. 542, 548, 391 S.E.2d 171, 174-75 (1990)),
cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). “In each
case, 'the burden is on the defendant to show that there was no
proper purpose for which the evidence could be admitted.'”
State
v. Willis, 136 N.C. App. 820, 823, 526 S.E.2d 191, 193 (2000)
(quoting
State v. Moseley, 338 N.C. 1, 32, 449 S.E.2d 412, 431
(1994)).
In
Willis, over the defendant's objection, the trial court
admitted evidence of the defendant's previous conviction of common
law robbery to show his identity,
modus operandi, motive, and theexistence of a common plan or scheme.
Id. at 822, 526 S.E.2d at
193. This Court concluded that the similarity between the past
robbery and the robbery for which defendant was charged was nearly
non-existent, because there was no evidence concerning the manner
in which the previous robbery was carried out.
Id. at 823, 526
S.E.2d at 193-94. This Court further concluded that the admission
of the prior common law robbery conviction was prejudicial error in
that it only went to show the defendant's character to commit
common law robbery.
Id.
In the case at bar, the testimony provided by Lamontaine
detailed an alleged drug transaction which took place four months
prior to defendant's arrest for possession of cocaine. However,
the similarity between the alleged drug sale to Lamontaine and the
crime for which defendant is charged in this case is non-existent.
The manner in which the alleged 22 April 2000 transaction was
carried out was in no way similar to the matter before this Court.
Testimony from Lamontaine revealed the following: (1) on one
occasion she met defendant who was the passenger in a vehicle
operated by a female; (2) defendant produced a “black pill
container;” and (3) gave her “five rocks of cocaine” in exchange
for a sum of money. However, testimony from Officer Howard reveals
that in the case before this Court (1) defendant was the passenger
in a car driven by a male; (2) defendant went into a residence and
then returned to the vehicle; (3) defendant possessed no drugs or
weapons at the time he was stopped by Officer Howard; (4) during
the traffic stop, defendant was in close proximity to a “piece oftissue,” which tested positive for cocaine. The only commonality
between the alleged crime described by Lamontaine and the matter in
this case is that both incidents involved defendant riding as a
passenger in a vehicle. The testimony from Lamontaine failed to
show that the alleged 22 April 2000 sale of drugs by defendant was
relevant to show defendant's motive and intent to commit the crime
at issue here. The only relevance of the testimony from Lamontaine
was to illustrate defendant's predisposition toward drug
violations, which is a purpose forbidden by Rule 404(b).
Therefore, the admission of testimony from Lamontaine was
erroroneous.
In the present case, the evidence supporting defendant's
possession of cocaine while perhaps sufficient to support a
conviction on a theory of constructive possession was not
conclusive. The “wet tissue” containing the small quantity of
cocaine was located in the passenger side door of a vehicle owned
by Coleman. The evidence at trial described the state of the
vehicle's interior as “not at all clean” and cluttered with “fast
food” items. Thus, there is a reasonable possibility that had
Lamontaine's testimony not been allowed, a different result may
have been reached in defendant's trial. We hold that the admission
of Lamontaine's testimony was prejudicial to the right of defendant
to a fair trial.
New trial.
Judges WYNN and ELMORE concur.
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