NO. COA02-801
Appeal by defendant from judgments dated 12 December 2001 by
Judge Zoro J. Guice, Jr. in Henderson County Superior Court. Heard
in the Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by William M. Polk, Director
Victims and Citizens Services, for the State.
Reita P. Pendry for defendant appellant.
BRYANT, Judge.
Richard Lee Peak (defendant) appeals from a judgment dated 12
December 2001 entered consistent with a jury verdict finding him
guilty of sale and delivery of cocaine, two counts of possession of
cocaine, and maintaining a place to keep a controlled substance.
The State's evidence at trial revealed that on 27 September
2000, Agent John Pace (Agent Pace), an alcohol law enforcement
agent stationed in the Henderson County area, was working
undercover with Officer Lyle Case (Officer Case) and Detective Todd
Letterman of the Hendersonville Police Department. Based upon a
drug complaint, Agent Pace traveled to defendant's apartment
located at 745 Florida Avenue in Hendersonville, North Carolina tomake a drug purchase from defendant. When Agent Pace arrived at
the apartment, he knocked on the door and defendant's girlfriend,
Rhonda Gabriel (Gabriel) opened it. Gabriel inquired of the agent
what he wanted, whereupon Agent Pace stated he had come to see
“Richard.” Gabriel invited the agent inside to wait for defendant.
Agent Pace entered the apartment, and he and Gabriel began to
converse. When Gabriel again asked what he wanted, Agent Pace
replied he wished to buy $40.00 worth of crack cocaine. Gabriel
and the agent continued to talk for about fifteen to twenty minutes
when Gabriel acknowledged that she knew why Agent Pace was there
and stated that they could “do it here if [he] want[ed].”
Defendant arrived about five minutes later and inquired of
Agent Pace who he was and what he wanted. When Agent Pace told
defendant he was interested in buying a $40.00 quantity of crack
cocaine, defendant motioned him toward the back bedroom. Once in
the bedroom, Agent Pace observed defendant place crack cocaine into
a crack pipe and begin to smoke it. Defendant shared the pipe and
its contents with Gabriel and then offered the pipe to the agent.
Agent Pace refused and again asked defendant about the crack
cocaine he wanted to purchase. Defendant said he would first have
to get the crack cocaine. Defendant and Agent Pace continued to
converse, during which time defendant offered Gabriel for various
sex acts. The two men agreed the agent would pay $40.00 for the
crack cocaine and $60.00 to have oral sex and intercourse with
Gabriel. Agent Pace gave defendant the $40.00, and, under the
guise of having to get more money from an ATM, Agent Pace left theapartment and met with Officer Case. The two officers picked up
some beer and cigarettes as requested by defendant, and Officer
Case gave Agent Pace more money. They then discussed that after
Agent Pace had given defendant the money, the agent would signal
officers to come in and make the arrest.
When Agent Pace returned to the apartment, Gabriel, now naked,
met him at the door. The agent accompanied Gabriel back to the
bedroom. Defendant directed the agent's attention to a dish with
several rocks. Agent Pace looked at the dish and asked, “Is it
good?” Defendant replied, “It's good stuff.” Pace paid defendant
$60.00 to complete the transaction for sex acts to be performed
with Gabriel. Agent Pace then pretended to check the front door
and gave the signal to the team of arresting officers. The
officers subsequently entered the residence and placed defendant,
Gabriel, and Agent Pace (to protect his identity) under arrest. A
search of the residence yielded crack cocaine and drug
paraphernalia, as well as the $60.00 Agent Pace had given
defendant to pay for the proposed sex acts with Gabriel. While
being booked, both defendant and Gabriel identified 745 Florida
Avenue as their address.
Defendant did not offer any evidence a trial. Gabriel took
the stand in her own defense. She testified in conformity with the
State's evidence, explaining she had witnessed the exchange of
money between defendant and Agent Pace for crack cocaine and sex
with her. She also stated she had observed defendant leave the
apartment for about five minutes after Agent Pace had left for theATM and return with crack cocaine. Gabriel denied agreeing to have
sex with Agent Pace. She maintained it was defendant who offered
her for sex in exchange for money. Gabriel testified defendant
threatened to harm her if she did not go along with his sex for
money proposition. She explained defendant had been abusive in the
past and she had reported those incidents to the police. She
confirmed that both she and defendant resided at the 745 Florida
Avenue residence.
_____________________________
The sole issue on appeal is whether defendant received
ineffective assistance of counsel. Specifically, defendant
contends his counsel was ineffective in that he failed to object
to: (I) the admission of certain hearsay evidence and (II)
testimony about uncharged offenses allegedly committed by
defendant.
To prevail on a claim of ineffective assistance of counsel,
the defendant must show the following: (1) “that counsel's
performance fell below an objective standard of reasonableness,”
and (2) “that the error committed was so serious that a reasonable
probability exists that the trial result would have been different
absent the error.”
State v. Blakeney, 352 N.C. 287, 307-08, 531
S.E.2d 799, 814-15 (2000).
In
State v. Braswell, our Supreme Court
explained that the defendant must show more than mere deficient
performance by counsel, but that “'counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.'”
State v. Braswell, 312 N.C.553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted
). Mere
allegations surrounding matters of trial tactics, without more, are
not sufficient to meet this test.
State v. Piche, 102 N.C. App.
630, 638, 403 S.E.2d 559, 564 (1991).
I
Defendant first contends his trial counsel was ineffective
because he failed to object to testimony regarding an anonymous tip
received by the Hendersonville Police Department indicating
defendant and Gabriel were selling drugs at their 745 Florida
Avenue residence. Defendant argues such testimony was inadmissible
hearsay. We disagree.
This Court has held that information from confidential
informants about drug activity at a particular residence may be
admissible into evidence so long as that testimony is not offered
to prove drug activity was actually occurring at the residence.
See State v. Saunders, 64 N.C. App. 350, 352, 307 S.E.2d 197, 199
(1983). The police officer in
Saunders testified he began an
investigation of the defendant's residence after being informed by
confidential, reliable sources of drug activities at the residence.
Similarly, in the present case, Agent Pace and Officer Case
testified they had received a tip regarding drug activities at the
residence of defendant and Gabriel and, as a consequence, the
Hendersonville Police Department conducted an undercover
investigation of activities at that residence. As this evidence
was offered to explain why police officers decided to investigate
the activities at the residence of defendant and Gabriel, and notto show that drugs were indeed being sold at the residence, the
statements were not hearsay.
See id.
II
Defendant also argues his trial counsel was ineffective
because he failed to object to the admission of testimony about how
defendant abused Gabriel and offered her for sex in exchange for
money.
The admissibility of evidence regarding “other crimes, wrongs,
or acts” is determined by application of N.C. Gen. Stat. § 8C-1,
Rules 404(b), 402, 401, 403, 104(b) and 105.
State v. Haskins, 104
N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991). That is, “[t]he
evidence must be offered for a proper purpose, must be relevant,
must have probative value that is not substantially outweighed by
the danger of unfair prejudice to the defendant, and, if requested,
must be coupled with a limiting instruction.”
Id. Rule 404(b)
provides that relevant evidence of other crimes, wrongs or acts
“may . . . 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.G.S.
§ 8C-1, Rule 404(b) (2001). Rule 404(b) has been noted to be a
rule of inclusion and not exclusion.
State v. Coffey, 326 N.C.
268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) evidence is
“subject to the weighing of probative value versus unfair prejudice
mandated by Rule 403.”
State v. Agee, 326 N.C. 542, 549, 391 S.E.2d
171, 175 (1990). To that end, our Supreme Court noted in
Coffey,
that evidence which is probative of the State's case is necessarilyprejudicial to the defendant; “the question is one of degree.”
Coffey, 326 N.C. at 281, 389 S.E.2d at 56. “Whether to exclude
evidence under Rule 403 is a matter left to the sound discretion of
the trial court.”
Id.
In this case, defendant takes issue with his trial counsel's
failure to object to: (a) the testimony of Agent Pace and Officer
Case that defendant, in return for $60.00, offered Gabriel for sex
and (b) Gabriel's testimony that defendant had previously committed
various acts of violence on her, resulting in her fear of
defendant. We conclude that the testimony regarding defendant's
offer of Gabriel for sex in exchange for money was indeed relevant
to show the existence of a plan or design to commit the offenses
charged, or at least, to accomplish a goal of which the offense
charged was a part. Moreover, Gabriel's testimony that defendant
had previously abused her and that she was afraid of him was
relevant to explain why she did not object openly to defendant's
offer of sex with her for money. The testimony tends to show that
it was defendant's common plan or scheme to offer Gabriel for sex
during drug transactions. In fact, Gabriel testified defendant had
previously offered her for sex in exchange for money and told her
“things would happen” if she did not cooperate. Further, Gabriel's
previous attempts to resist defendant had resulted in severe
beatings. Gabriel testified that when Agent Pace went to the
apartment on 27 September 2000, she knew why he was there and told
him that they could “do it here if [he] want[ed].” While not a
part of the crime charged, such evidence was admissible inasmuch asit “'pertain[ed] to the chain of events explaining the context,
motive and set-up of the crime . . . necessary to complete the
story of the crime for the jury.'”
Agee, 326 N.C. at 548, 391
S.E.2d at 174-75 (citation omitted
). While necessarily
prejudicial, we believe that the probative value of this evidence
far outweighs any prejudice to defendant. Accordingly, this
evidence was properly admitted by the trial court.
Since the subject evidence was properly admitted at trial and
a counsel's performance can only be deficient if it falls “below an
objective standard of reasonableness,”
Blakeney, 352 N.C. at 307,
531 S.E.2d at 815, it follows that trial counsel's failure to
object to the admission of admissible evidence cannot form the
basis of an ineffective assistance of counsel claim. Defendant's
argument in this regard therefore fails.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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