1. Evidence--hearsay_-not offered for truth of matter asserted--corroboration
The trial court did not err in a possession with intent to sell and deliver marijuana case by
allowing three officers to testify regarding statements made to them by another officer describing
the activities of defendant and others witnessed by that officer during a surveillance operation,
because: (1) the challenged testimony was offered not to prove the truth of the matters asserted
therein, but rather to explain the officers' conduct after they arrived at the scene; (2) the trial
court specifically instructed the jury that each officer's testimony was not offered for the truth of
the matter asserted; and (3) while an officer's trial testimony did not specifically denominate any
of the behavior as illegal drug activity, it cannot be said that the testimony of the other three
officers was not corroborative of the officer's testimony.
2. Sentencing-_improper punishment--exercising right to plead not guilty
The trial court erred by considering defendant's decision to plead not guilty to possession
with intent to sell and deliver marijuana in determining his sentence, resulting in imposition of a
harsher sentence based on defendant exercising his right to a jury trial on that charge, and the
case is remanded for a new sentencing hearing because the totality of the trial court's comments
evidenced an improper intent by the trial court to punish defendant for exercising his right to
plead not guilty.
Attorney General Roy Cooper, by Assistant Attorney General
Deborrah L. Newton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
ELMORE, Judge.
Antoine Denard Young (defendant) appeals his convictions of
possession with intent to sell and deliver marijuana and attaining
habitual felon status. Defendant also appeals from the sentence
imposed by the trial court following these convictions. For the
reasons stated herein, we find no prejudicial error in the guilt-innocence phase of defendant's trial, but vacate his sentence and
remand to the trial court for a new sentencing hearing.
The evidence presented by the State at trial tends to show the
following: At approximately 6:00 p.m. on 5 August 2001, Officer
Brett Moyer of the Winston-Salem Police Department was conducting
surveillance from a vacant house on East 17th Street across from
Cleveland Avenue Homes, a Winston-Salem public housing project in
an area routinely patrolled by Officer Moyer, when he observed
defendant, defendant's brother Robert Young, and five or six other
people across the street. Officer Moyer testified that defendant
was seated in a chair on the sidewalk next to a brown Pontiac
automobile which was parked at the curb. Robert was leaning
against the car, and the others were milling about on the sidewalk.
Officer Moyer observed, through binoculars, a black male approach
defendant. Defendant handed the black male what appeared to be a
“plastic bag with something in it” and the black male handed
defendant money, then walked away. Defendant handed the money to
Robert, and at that point Officer Moyer directed another officer
conducting the surveillance with him to begin videotaping the scene
across the street. This videotape was introduced into evidence at
trial and played for the jury. Officer Moyer testified that a
heavyset black female then approached defendant's chair and
appeared to converse with defendant. Both the black female and
defendant were moving their arms, but they were positioned in such
a way that Officer Moyer “couldn't see exactly what was
happening[.]” The black female then approached Robert and shookhis hand with a “palming handshake” in which she “cupped [her]
hand,” before walking away.
Officer Moyer testified that defendant then got up from his
chair and walked a short distance through an opening in a fence and
onto the Cleveland Avenue Homes property. Defendant approached one
of the buildings and bent low to the ground near a crawl space vent
at the building's base “for just a second” before standing up and
returning to the sidewalk area with “his hand up carrying something
in his hand.” While at the crawl space vent, defendant's back was
to Officer Moyer such that Officer Moyer “couldn't see[] . . .
what, if anything, [defendant] was doing.” Defendant then walked
over to the brown Pontiac parked at the curb near where he had been
sitting and got into the vehicle on the front passenger side, and
“got down low in the seat and . . . after a second” got out of the
car.
Officer Moyer testified that throughout the surveillance he
had been in radio contact with his “arrest team,” which consisted
of Winston-Salem Police Department patrol officers T.G. Porter,
Mark Bollinger, and Steven Snyder, relating to them his
observations and giving a physical description of both defendant
and Robert. After observing defendant get into and out of the car,
Officer Moyer requested that the arrest team come to the scene and
take defendant and Robert into custody. Officers Porter,
Bollinger, and Snyder arrived minutes later, and defendant and
Robert were taken into custody without incident. At trial, Officers Porter, Bollinger, and Snyder were each
allowed to testify, over defendant's objection, regarding Officer
Moyer's descriptions to them of the activity he observed during his
surveillance operation. Before this portion of each officer's
testimony, the trial court instructed the jury that this testimony
was received only for corroborative purposes or for determining
Officer Moyer's credibility. Officer Porter testified that after
he arrived at the scene, Officer Moyer told him that defendant had
engaged in some activity at the crawl space vent of the nearby
Cleveland Avenue Homes building. Officer Porter then “walked over
to the crawl space and . . . looked in and found a clear, plastic
bag with four small Ziploc bags in it containing a green vegetable
material. . . . [I]t was marijuana.” Officer Porter testified
that this was “consistent with the way individuals will package
marijuana or other narcotics for sale[.]” Officer Bollinger
testified as to Officer Moyer's description of the interaction
between the black female and defendant and Robert. Officer
Bollinger also testified that his search incident to the arrest of
Robert revealed that Robert was carrying $192.00, mostly in small
bills, and that Robert did not have any drugs or drug paraphernalia
on his person. Finally, Officer Snyder testified that after
Officer Moyer described to him defendant getting in and out of the
brown Pontiac parked on the curb near where defendant had been
sitting, Officer Snyder searched the car and found a small Ziploc
bag containing marijuana under the front passenger seat. Officer
Snyder also testified that his search incident to the arrest ofdefendant revealed no money, drugs, or drug paraphernalia on
defendant's person.
At trial, the parties stipulated that the green vegetable
matter seized by the officers from the crawl space vent and the car
was marijuana, weighing a total of 6.6 grams. Defendant presented
no evidence. After the jury returned its verdict finding defendant
guilty of possession with intent to sell and deliver marijuana,
defendant pled guilty to being a habitual felon. The trial court
found no aggravating or mitigating factors and sentenced defendant
from the presumptive range to between 96 and 125 months
imprisonment. Defendant timely filed notice of appeal on 31
October 2002.
[1] By his first assignment of error, defendant contends that
the trial court committed reversible error by allowing Officers
Porter, Bollinger, and Snyder to testify regarding statements made
to them by Officer Moyer describing the activities of defendant and
others witnessed by Officer Moyer during the surveillance
operation. Defendant argues that because the testimony of each
officer contains some additional details not present in Officer
Moyer's testimony, the challenged testimony went beyond
corroboration of Officer Moyer's testimony and instead constituted
inadmissible hearsay. We disagree.
The State asserts, and we agree, that the challenged testimony
of Officers Porter, Bollinger, and Snyder as to observations
related to them by Officer Moyer from his surveillance was offered
not to prove the truth of the matters asserted therein, but ratherto explain the officers' conduct after they arrived at the scene.
We note at the outset that the trial court specifically instructed
the jury that each officer's testimony was not offered for the
truth of the matter asserted. The officers' conduct upon arrival
included searching the crawl space vent area and the Pontiac, both
areas Officer Moyer described to the arrest team as having been
visited by defendant immediately before the arrest team was called
in, and arresting defendant after marijuana was found in both
locations.
Our Supreme Court has stated that:
[t]he North Carolina Rules of Evidence define
“hearsay” as “a statement, other than one made
by the declarant while testifying at the trial
or hearing, offered in evidence to prove the
truth of the matter asserted.” N.C.G.S. §
8C-1, Rule 801(c) (1999). Out-of-court
statements that are offered for purposes other
than to prove the truth of the matter asserted
are not considered hearsay. Specifically,
statements are not hearsay if they are made to
explain the subsequent conduct of the person
to whom the statement was directed.
State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert.
denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002) (citations omitted)
(emphasis added); see also State v. Canaday, 355 N.C. 242, 248, 559
S.E.2d 762, 765 (2002).
In the present case, defendant first challenges the testimony
of Officers Porter, Bollinger, and Snyder that Officer Moyer told
each of them, prior to their arrival at the scene, that he had
observed defendant involved in illegal drug activity. Defendant
argues that because Officer Moyer never testified that he observed
anything which he could positively identify as drugs during hissurveillance, this testimony from the three arresting officers went
so far beyond corroboration of Officer Moyer's testimony as to
constitute inadmissible hearsay. However, we conclude that this
testimony from each officer was offered not to prove that defendant
was engaged in illegal drug activity, but rather to explain (1) why
the arrest team was called to the scene and (2) each officer's
subsequent conduct upon arrival, which consisted of Officer Porter
searching the crawl space vent area and seizing marijuana found
therein packaged in a manner indicative of sale; Officer Bollinger
arresting Robert and seizing $192.00, mostly in small bills, from
his person; and Officer Snyder searching the Pontiac, seizing
marijuana therefrom, and arresting defendant. Accordingly, this
testimony does not constitute inadmissible hearsay under the
authority of Gainey and Canaday. Moreover, we disagree with
defendant's contention that this testimony did not corroborate
Officer Moyer's testimony.
While defendant correctly asserts that Officer Moyer never
testified that he observed anything he could positively identify as
illegal drugs during his surveillance, Officer Moyer did testify
that he observed a black male approach defendant and hand defendant
money in exchange for a “plastic bag with something in it,” and
that defendant then handed the money to Robert. Officer Moyer also
testified that he observed a black female who first conversed with
defendant while their arms were moving, then approached Robert and
shook his hand with a “palming handshake” in which she “cupped
[her] hand,” before walking away. Officer Moyer further testifiedthat he observed defendant walk to the crawl space vent area, bend
low to the ground for a second, stand up and raise his hand with
something in it, walk to the Pontiac parked near the curb, get in
and sit low in the seat briefly, then get out of the car. While
Officer Moyer's trial testimony did not specifically denominate any
of this behavior as “illegal drug activity,” we cannot say that the
testimony of Officers Porter, Bollinger, and Snyder that Officer
Moyer, in summoning them to arrest defendant, so characterized the
totality of the behavior he described at trial is not corroborative
of Officer Moyer's testimony.
Defendant next challenges, on the same grounds, specific
portions of each officer's testimony. First, defendant excepts to
the trial court's admission of the following testimony by Officer
Porter:
Q. [by the Assistant District Attorney]: Did you
have any communication with Officer Moyer at
that time?
A. Yes, ma'am.
Q. And what did he say to you?
A. . . . He advised us that, as we were arriving,
[defendant] approached the little crawl space
vent --
Q. Yes, sir.
A. -- and had dropped something into that vent or that
crawl space area.
[DEFENDANT'S TRIAL COUNSEL]: Objection.
THE COURT: This testimony is offered for
corroborative purposes. It's not offered for
the truth of the matter asserted. You may
proceed. Objection overruled.
Q. So, after he indicated that there was some
activity at the crawl space, what did you do,
Officer?
A. I walked over to the crawl space.
Q. And tell the members of the jury what you
found[] . . . .
A. . . . So, I walked over to the crawl
space and I looked in and found a clear,
plastic bag with four small Ziploc bags
in it containing a green vegetable
material.
We again note that the trial court instructed the jury that
this testimony was not offered for the truth of the matter
asserted. The transcript reveals that immediately after eliciting
Officer Porter's testimony regarding Officer Moyer's statement to
him about defendant's activity at the crawl space vent, the
prosecutor proceeded to question Officer Porter about his
subsequent search of the crawl space vent area. She did not follow
up on Officer Porter's testimony that Officer Moyer told him that
defendant “had dropped something” into the crawl space vent area,
which was admittedly different from Officer Moyer's testimony, from
which the reasonable conclusion could be drawn that defendant
instead took something out of the crawl space vent. Again, we
conclude that this testimony from Officer Porter was offered not
for the truth of the matter asserted, but rather to explain Officer
Porter's actions, taken subsequent to Officer Moyer's statement to
him about defendant's activity at the crawl space vent, of
approaching the crawl space vent, searching it, and seizing
therefrom marijuana packaged in a manner which he testified was
indicative of sale. Accordingly, this testimony does notconstitute inadmissible hearsay. Gainey, 355 N.C. at 87, 558
S.E.2d at 473; Canaday, 355 N.C. at 248, 559 S.E.2d at 765.
Defendant next challenges admission of the following testimony
by Officer Bollinger, characterizing it as inadmissible hearsay:
Q. [by the Assistant District Attorney]: What
information did you have about the activity
that was being investigated on August 5th of
2001?
A. By radio traffic we were told that several
subjects were involved in what appeared to be
drug activity in the 1700 or -- excuse me --
thousand block of 17th Street, East 17th. We
were given --
[DEFENDANT'S TRIAL COUNSEL]: Objection.
THE COURT: Overruled. Ladies and gentlemen,
this is not offered for the truth of the
matter asserted. This officer is testifying
as to what another officer heard [sic].
You're to consider the evidence as presented
in this courtroom to determine whether there
was something illegal going on or not. You
may proceed, [Assistant District Attorney].
Q. Officer, if you would tell the members of the
jury[] . . . about what information you
received upon arriving at the 1000 block of
East 17th Street.
A. Basically, I was just told -- I was given a
description of a -- of a subject involved in
activity and was told to respond to that area
and take that person into custody.
Q. And did you get any information about what
activity specifically had been afoot, so to
speak?
A. What I was told was that a -- a female --
well, I was given some descriptions. I was
told that a black female would get a small bag
of what appeared to be marijuana from a --
from a black male subject, and I was given his
description, and that they -- that the female
would take the marijuana to a, what appeared
to be, a buyer and that the -- a transactionwould take place and that the female would, in
turn, take the money that she had obtained and
hand it off to a different subject, a third
party.
Q. Were you just given a description of the black
male and what he was wearing that she received
something from?
A. I was told that the -- well, I was told that
the -- that she would receive items from the -
- or the marijuana, what appeared to be
marijuana, from a black male wearing a white
T-shirt and blue jeans, and that, in turn, she
would take the -- the money that she got back
and hand it to a black male wearing blue jean
shorts and a white T-shirt that had a red
emblem on it.
Q. When you arrived on the scene, did you find
people who matched those descriptions?
A. Yes, ma'am.
Q. Were those persons taken into custody?
A. Yes, ma'am.
Again, we note that the trial court instructed the jury that
this testimony was not offered for the truth of the matter
asserted. The transcript indicates that immediately after
eliciting Officer Bollinger's testimony regarding what Officer
Moyer told him about the interaction between the black female and
defendant and Robert, the prosecutor's line of questioning turned
to Officer Bollinger's subsequent arrival at the scene, visual
identification of defendant and Robert, and arrest of Robert.
Again, the prosecutor did not follow up on Officer Bollinger's
testimony that Officer Moyer told him that the black female would
“get a small bag of what appeared to be marijuana” from defendant
and “take the marijuana to . . . what appeared to be a buyer” andthen “take the money that she had obtained and hand it off to”
Robert, which testimony contained some additional details not
present in Officer Moyer's trial testimony about his observations
regarding the interaction between the black female and defendant
and Robert. We note that while Officer Moyer's testimony on this
point was less detailed, a reasonable conclusion that the black
female was serving as a “middleman” in drug transactions involving
defendant could nevertheless be drawn from Officer Moyer's
testimony that the black female first approached defendant in such
a way that she obstructed Officer Moyer's view, conversed with him
while moving her arms, and then moved towards Robert and shook his
hand with a “palming handshake.”
Again, we conclude that the challenged testimony from Officer
Bollinger was offered not for the truth of the matter asserted, but
rather to explain his actions, taken subsequent to Officer Moyer's
statement to him about the interaction between defendant and Robert
and the black female, of responding to the scene, visually
identifying defendant and Robert, placing Robert under arrest, and
seizing incident to the arrest $192.00 in mostly small bills from
Robert's person. We therefore conclude that Officer Bollinger's
testimony on this point does not constitute inadmissible hearsay.
Gainey, 355 N.C. at 87, 558 S.E.2d at 473; Canaday, 355 N.C. at
248, 559 S.E.2d at 765.
Finally, defendant challenges admission of the following
testimony by Officer Snyder, also characterizing it as inadmissible
hearsay: Q. [by the Assistant District Attorney]: Did
Officer Moyer direct you to any other area
where [defendant] had been to search?
A. Yes. Right adjacent to where there was a
fence line and beyond that on the housing
authority side, there's some vents, some -- I
guess they would be like basement vents to the
-- to the bottom of the building. [Officer
Moyer] [d]irected me to that area where he
told me via radio that [defendant] had gone
back and forth to that area, that he believed
that's where he was keeping his marijuana.
[DEFENDANT'S TRIAL COUNSEL]: Objection, move
to strike.
THE COURT: Objection overruled. Ladies and
gentlemen, once again, his testimony is
offered for corroborative purposes. You may
consider it as it corroborates what the
witness testified to previously. If it's
inconsistent with it, you can consider it as
it effects the credibility of the witness.
You may proceed.
Q. After Officer Moyer told you he believed that
there was marijuana in the crawl space, was a
search conducted of the crawl space?
[DEFENDANT'S TRIAL COUNSEL]: Objection to the
form.
THE COURT: Overruled.
A. Yes, there was.
Q. What was located in the crawl space, Officer?
[DEFENDANT'S TRIAL COUNSEL]: Objection.
THE COURT: Overruled.
A. There was a small bag with some . . . $10 bags
of marijuana. . . .
Q. Did you conduct a search of the vehicle that
had been parked where [defendant] was
standing?
A. Yes. Upon Officer Moyer advising me that he
had also observed [defendant] go to the frontpassenger area of his vehicle towards the
floorboard area and under his seat, I had
responded to that area upon information
Officer Moyer gave me and found a bag of
marijuana under the -- in that area also.
As with the challenged portions of Officer Porter's and
Officer Bollinger's testimony, we note that the trial court
instructed the jury that this testimony was not offered for the
truth of the matter asserted. The transcript indicates that
immediately after eliciting Officer Snyder's testimony that Officer
Moyer told him to search the crawl space vent area because Officer
Moyer believed “that's where [defendant] was keeping his
marijuana,” Officers Porter and Snyder proceeded to do so, where
they recovered marijuana packaged in a manner consistent with its
sale. Officer Snyder then testified that he searched the brown
Pontiac “[u]pon Officer Moyer advising me that he had also observed
defendant go to the front passenger area of his vehicle towards the
floorboard area and under his seat,” and recovered marijuana from
that location as well. As with the challenged testimony from
Officers Porter and Bollinger, we conclude that this testimony from
Officer Snyder was offered not for the truth of the matter
asserted, but rather to explain his actions, taken subsequent to
Officer Moyer's statements to him about his observations of
defendant's activity at the crawl space vent and in the front seat
of the brown Pontiac. We therefore conclude that the challenged
portion of Officer Snyder's testimony does not constitute
inadmissible hearsay. Gainey, 355 N.C. at 87, 558 S.E.2d at 473;
Canaday, 355 N.C. at 248, 559 S.E.2d at 765. Defendant's first assignment of error is overruled.
[2] Turning to his second assignment of error, defendant
contends that the trial court improperly considered defendant's
decision to plead not guilty to the possession with intent to sell
and deliver marijuana charge in determining his sentence, resulting
in imposition of a harsher sentence because defendant exercised his
right to a jury trial on that charge. We agree.
Regarding the influence on a trial court's sentence of a
criminal defendant's decision to not plead guilty and to pursue a
jury trial, this Court has previously stated:
Although a sentence within the statutory limit
will be presumed regular and valid, such a
presumption is not conclusive. State v.
Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465
(1977). “If the record discloses that the
[trial] court considered irrelevant and
improper matter in determining the severity of
the sentence, the presumption of regularity is
overcome, and the sentence is in violation of
[the] defendant's rights.” Id. A defendant
has the right to plead not guilty, and “he
should not and cannot be punished for
exercising that right.” Id. at 712-13, 239
S.E.2d at 465. Thus, “[w]here it can be
reasonably inferred the sentence imposed on a
defendant was based, even in part, on the
defendant's insistence on a jury trial, the
defendant is entitled to a new sentencing
hearing.” State v. Peterson, 154 N.C. App.
515, 517, 571 S.E.2d 883, 885 (2002).
State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003),
disc. review allowed, 358 N.C. 157, 593 S.E.2d 83 (2003).
In the present case, our review of the record indicates that
while hearing pre-trial motions, the trial court discussed with
defense counsel defendant's prior record level. Following this
discussion, the trial court stated as follows: Now, [defendant], if you pled straight up, I
know the State is not going to offer you any
pleas, but if you pled straight up I'd
sentence you at the bottom of the mitigated
range. But that's -- that's about as good as
we can get with these habitual felons[] . . .
. (emphasis added)
The trial court then proceeded to discuss the likelihood that
evidence of defendant's prior drug convictions would be admissible
should defendant pursue a jury trial, as well as the futility of an
instruction to the jury not to consider defendant's previous drug
activity as evidence of his guilt on the current charge. The trial
court then stated as follows to defense counsel:
Now, if you go to trial and he's convicted,
I'll be perfectly honest with you, I'm not
going to sentence him -- I doubt I would
sentence him in the aggravated range. I may,
but it just depends upon how bad it is, but he
definitely would probably get a sentence in
the -- he would definitely get a sentence in
the presumptive range. I probably wouldn't go
back to the mitigated range since I'm offering
this now prior to trial, but I'll let you
think about it, unless you already know that
he's not interested in it.
Defendant thereafter chose not to plead guilty and exercised
his right to a jury trial on the marijuana possession with intent
to sell and deliver charge. After the jury returned its guilty
verdict on that charge, defendant pled guilty to having attained
habitual felon status. The trial court then proceeded to
sentencing, stating as follows:
All right. [Defense counsel], you care to be
heard on behalf of your client? I believe I
previously indicated what the Court's position
would be at sentencing, but I'll still
consider whatever you have to say.
Following defense counsel's brief argument for imposition of
a mitigated sentence, the trial court found no aggravating or
mitigating factors and, pursuant to the sentence enhancement
required by defendant's habitual felon plea, imposed a sentence
from the presumptive range for a class C felony. See N.C. Gen.
Stat. § 14-7.6 (2003); see also N.C. Gen. Stat. § 15A-1340.17(c),
(d) (2003).
We conclude that because it can be “reasonably inferred” on
this record that defendant's sentence was based, at least in part,
on his refusal to plead guilty and to instead pursue a jury trial,
defendant is entitled to a new sentencing hearing. Peterson, 154
N.C. App. at 517, 571 S.E.2d at 885. Before the jury was
empaneled, the trial court informed defendant that if he entered a
plea of guilty to the possession with intent to sell and deliver
charge, the trial court would “sentence [defendant] at the bottom
of the mitigated range.” The trial court then warned defendant
that if he instead pursued a jury trial which resulted in a
conviction, defendant “would definitely get a sentence in the
presumptive range” and that the trial court “probably wouldn't go
back to the mitigated range since I'm offering this now prior to
trial[.]” We note that while these statements were made after a
discussion of defendant's prior offense history, the record does
not indicate that the trial court had yet been made aware of what
evidence, if any, might exist to support any of the statutory
factors in support of a mitigated sentence. Following defendant's
conviction on the drug charge and subsequent guilty plea on thehabitual felon charge, the trial court stated that it had
“previously indicated what the Court's position would be at
sentencing” before imposing a sentence from the presumptive range,
which was, indeed, consistent with its pre-trial expression of
intent should defendant pursue a jury trial. We hold that the
totality of these comments evidence an improper intent by the trial
court to punish defendant for exercising his right to plead not
guilty. State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465
(1977). We therefore remand this matter to the trial court for a
new sentencing hearing.
No error in trial, vacate and remand for resentencing.
Judges BRYANT and CALABRIA concur.
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