Evidence_hearsay--reputation of neighborhood for narcotics
The trial court erroneously allowed testimony about the reputation of a neighborhood for
drug dealing; evidence of the general reputation of a defendant's home or neighborhood in drug
cases constitutes inadmissible hearsay in North Carolina. Moreover, there exists the reasonable
possibility of a different result without the improper reputation evidence.
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury, for the State.
Brian Michael Aus for the defendant-appellant.
WYNN, Judge.
In North Carolina, the “general rule is that in a criminal
prosecution evidence of the reputation of a place or neighborhood
is ordinarily inadmissible hearsay.” State v. Weldon, 314 N.C.
401, 408, 333 S.E.2d 701, 705 (1985). In this case, the trial
court erroneously allowed testimony indicating Defendant was in a
neighborhood known as an “open air market for drugs.” Because we
conclude that had this error not been committed, there is a
reasonable possibility that a different result would have been
reached at trial, we grant Defendant a new trial.
The underlying facts tend to show that on the evening of 19
December 2002, Raleigh Police Officer M.E. Campos and Detective
James Hobby along with several Raleigh police officers and
detectives executed undercover drug buys in the area surroundingMartin and Freeman Streets in Raleigh, North Carolina. At
approximately 10:45 p.m., Officer Campos and Detective Hobby
traveled to Freeman Street in an unmarked Ford pick-up truck.
According to their testimony, they were immediately approached by
a black male wearing a navy blue jacket, blue jeans, tan work boots
and a black toboggan with the words “New York” in white on the
front. The individual also had “a little bit of a goatee.”
Officer Campos purchased from this individual what he believed to
be a twenty dollar amount of crack cocaine. Subsequent testimony
indicated the purported crack cocaine was actually Goody's Headache
Powder.
As the officers were leaving Freeman Street, they radioed a
description of the individual to other officers in the area for
arrest. Shortly thereafter, members of the Raleigh Police
Department Selective Enforcement Unit arrived in the Freeman and
Martin Street area and began looking for the described individual.
As there were several people fitting the description, two
individuals were initially detained including Defendant who was
detained and searched by Officers Charles Rosa and Christopher
Robb. However, after receiving notification the described
individual was being detained by other officers, Defendant was
released. Approximately five minutes later, Officers Robb and Rosa
were notified that they needed to locate Defendant again, as
Detective Hobby and Officer Campos indicated the other individual
was not the one who sold them the counterfeit drug. In response,
Officers Robb and Rosa went to a house on Freeman Street where they
thought the released individual could be located. At the house, the officers located, detained, frisked and
ordered Defendant to place his left hand on the top of his head.
As he did this, Officer Rosa noticed Defendant open his hand and
drop an item that appeared to be crack cocaine but was later
determined to be Goody's Headache Powder. Thereafter, Detective
Hobby and Officer Campos identified Defendant as the individual who
sold them the purported crack cocaine.
Based upon the State's evidence regarding the alleged sale of
the counterfeit drug to Detective Hobby and Officer Campos, a jury
acquitted Defendant of the charges for the sale of counterfeit
cocaine and the delivery of counterfeit cocaine. However, based
upon the State's evidence regarding Defendant's encounter with
Officers Rosa and Robb on the porch of the house at Freeman Street,
the jury found Defendant guilty of possession with intent to sell
counterfeit cocaine and possession with intent to deliver
counterfeit cocaine. The jury also found Defendant had attained
habitual felon status.
On appeal, Defendant contends the trial court erroneously
admitted testimony indicating Defendant was in a neighborhood known
as an 'open air market for drugs.' Specifically, Defendant
contends the trial court erroneously permitted testimony
characterizing the conduct and frequency of drug sales in the
residential area surrounding Freeman and Martin Streets in Raleigh,
North Carolina. We agree.
Defendant challenges the following testimony from Officer
Campos elicited by the prosecution:
Q: And how are street sales done for the most
part in Raleigh, particularly in the areaaround Martin and Freeman Street?
A: Usually groups of folks gather together.
They will have one or two crack-heads or crack
users.
MR. MANNING: Your Honor, I object.
THE COURT: Overruled. Go ahead.
MS. SHANDLES: Go ahead.
A: Usually street drug dealers will have one
or two crack users looking out for the police,
and most of them will stand on street corners
and they look for vehicular traffic driving by
and most of the time they try to flag you
down. They waive at you with their hands and
try to get your attention, try to get you to
stop.
MR. MANNING: Motion to strike the answer.
THE COURT: Overruled. Denied.
Officer Campos further testified:
Q: And during the period of time that you have
been working in that area [Martin and Freeman
Street] the last three years, can you give us
an idea of approximately how many drug
arrests--cocaine arrests specifically you have
made in that area?
MR. MANNING: Objection.
THE COURT: Overruled.
THE WITNESS: I--I have made a number of drug
arrests in that area. I couldn't give an
exact number, but I have made many arrests in
the 700 block, the 800 block, and the 300
block of Freeman Street as well.
Q: BY MS. SHANDLES: Are we talking--
MR. MANNING: Motion to strike the answer.
THE COURT: Denied.
Q: BY MS. SHANDLES: Officer, are we talking in
the nature of one or two or ten or twenty or
dozens of arrests?
MR. MANNING: Objection.
THE COURT: Overruled.
THE WITNESS: I would say no less than fifteen,
twenty arrests just made by compass officers.
Usually two or three officers involved.
MR. MANNING: Motion to strike.
THE COURT: Denied.
Q: BY MS. SHANDLES: Have you found that as
well as people selling crack cocaine in that
area, that people also occasionally sell
things as crack cocaine that are not in fact
cocaine?
MR. MANNING: Objection.
THE COURT: Wait a minute. I am thinking about
that.
MR. MANNING: Motion to strike the answer he
just gave.
THE COURT: Well, overruled. Motion to strike
denied.
Q: MS. SHANDLES: Now you get to answer.
A: Yes. A lot of times people would sell
counterfeit crack cocaine.
MR. MANNING: Motion to strike the answer.
THE COURT: Denied.
Defendant also challenges the following testimony from Detective
Hobby:
Q: For how long have you worked in that area
[Martin and Freeman Streets]?
A: I rode a beat in that area for
approximately a year and a half back when I
was on uniformed division and that's a strong
period as far as trying to work for drugs. We
have--I have probably been on at least three
or four searches in that area alone since I
have been in drugs and vice.
MR. MANNING: Objection.
THE COURT: It's not responsive, but I will
allow it. Overruled at the same time.
In further testimony, Detective Hobby testified:
Q: In your experience have you found that in
Raleigh, in the area of Martin and Freeman
Street, that not only crack cocaine is sold,
but also things that are sold as crack cocaine
but turn out not to be?
MR. MANNING: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
MR. MANNING: Motion to strike the answer.
THE COURT: Denied.
Detective Hobby also testified:
Q: BY MS. SHANDLES: And are you aware of why
Martin and Freeman Street has been targeted on
those occasions by the police department?
A: Because it is an open air market for drugs.
MR. MANNING: Objection.
THE COURT: Overruled.
THE WITNESS: Numerous complaints from
citizens, normal patrols. There is a high
percentage of drug arrests made in that area.
Q: BY MS. SHANDLES: Were you working--
MR. MANNING: Objection.
THE COURT: Overruled.
The general rule in North Carolina regarding evidence of the
reputation of a home or neighborhood is that such evidence is
inadmissible hearsay. State v. Weldon, 314 N.C. 401, 333 S.E.2d
701 (1985); State v. Tessnear, 265 N.C. 319, 144 S.E.2d 43 (1965);
State v. Crawford, 104 N.C. App. 591, 598, 410 S.E.2d 499, 503
(1991). In support of its contention that the evidence wasadmissible, the State relies upon State v. Stevenson, 136 N.C. App.
235, 523 S.E.2d 734 (1999). In Stevenson, this Court upheld the
admission of evidence regarding the reputation of an area known as
an area for dealing drugs because the State's theory was the
defendant committed robbery in order to buy drugs. This Court
stated that “evidence that defendant went to a place known for
dealing drugs immediately after the robbery is relevant to show
motive.” Stevenson, 136 N.C. App. at 241, 523 S.E.2d at 737.
However, in State v. Weldon, in distinguishing other cases,
our Supreme Court rejected the notion that “the reputation of a
place is admissible to show the intent or guilty knowledge of one
charged with illicit possession of contraband in that place.”
Weldon, 314 N.C. at 410, 333 S.E.2d at 706. In Weldon, in
reversing this Court's opinion that testimony from a police officer
that the defendant's home had a reputation as a place where heroin
and other illegal drugs could be bought or sold was admissible, our
Supreme Court stated “the applicable general rule is that in a
criminal prosecution evidence of the reputation of a place or
neighborhood is ordinarily inadmissible hearsay.” 314 N.C. at 408,
333 S.E.2d at 705. In rejecting this Court's holding that
“evidence concerning the reputation of a place or neighborhood is
admissible where it goes to show the intent of the person charged,”
the Supreme Court stated this Court's reliance upon State v. Lee,
51 N.C. App. 344, 276 S.E.2d 501 (1981) was misplaced as Lee was
based upon improper authority, State v. Chisenhall, 106 N.C. 676,
11 S.E. 518 (1890). Weldon, 314 N.C. at 408-10, 333 S.E.2d at 705-
07. Rather, our Supreme Court stated the general rule in thisState may be found in State v. Tessnear, 265 N.C. 319, 144 S.E.2d
43 (1965). In Tessnear, our Supreme Court stated that “North
Carolina is included among those jurisdictions which hold that
evidence of the general reputation of defendant's premises is
inadmissible in prosecutions for liquor law violations involving a
charge of unlawful sale or possession of intoxicants at particular
premises.” Tessnear, 265 N.C. at 322; 144 S.E.2d at 46.
Similarly, evidence of the reputation of Defendant's home or
neighborhood in drug cases constitutes inadmissible hearsay. See
State v. Weldon, 314 N.C. 401, 333 S.E.2d 701 (1985); State v.
Crawford, 104 N.C. App. 591, 410 S.E.2d 499 (1991); State v.
Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989). Accordingly, the
trial court erroneously allowed the admission of testimony
regarding the reputation of the Freeman and Martin Street area of
Raleigh, North Carolina.
As stated in Crawford, however, “errors not amounting to
constitutional violations do not warrant a new trial unless there
is a reasonable possibility that, had the error in question not
been committed, a different result would have been reached at the
trial out of which the appeal arises. See N.C.G.S. § 15A-1443
(2001). If there is overwhelming evidence of defendant's guilt or
an abundance of other evidence to support the State's contention,
the erroneous admission of evidence is harmless.” Crawford, 104
N.C. App. at 598, 410 S.E.2d at 503.
Under N.C. Gen. Stat. § 90-95(a)(2), to obtain a conviction
of possession with intent to sell and deliver a counterfeit
controlled substance, the State must prove (1) that defendantpossessed a counterfeit controlled substance, and (2) that
defendant intended to “sell or deliver” the counterfeit controlled
substance. N.C. Gen. Stat. § 90-95(a)(2)(2001); see State v.
Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985)(listing the
elements of possession with intent to sell or deliver a controlled
substance under N.C. Gen. Stat. § 90-95(a)(1)). Our General
Statutes define 'counterfeit controlled substance' as:
Any substance which is by any means
intentionally represented as a controlled
substance. It is evidence that the substance
has been intentionally misrepresented as a
controlled substance if the following factors
are established:
1. The substance was packaged or delivered in
a manner normally used for the illegal
delivery of controlled substances.
2. Money or other valuable property has been
exchanged or requested for the substance, and
the amount of that consideration was
substantially in excess of the reasonable
value of the substance.
3. The physical appearance of the tablets,
capsules or other finished product containing
the substance is substantially identical to a
specified controlled substance.
N.C. Gen. Stat. § 90-87(6)(b)(2001).
In this case, Defendant was charged with crimes arising from
two separate events_- (1) the sale and delivery of counterfeit
crack cocaine to Detective Hobby and Officer Campos for $20.00 and
(2) possession with intent to sell and possession with intent to
deliver counterfeit crack cocaine based upon a search conducted by
Officers Robb and Rosa of Defendant's person at a house located on
Freeman Street. The jury acquitted Defendant of the sale and
delivery of counterfeit crack cocaine to Officer Campos andDetective Hobby.
“A verdict may be given significance and a proper
interpretation by reference to the indictment, the evidence, and
the instructions of the court.” State v. Hampton, 294 N.C. 242,
248, 239 S.E.2d 835, 839 (1978); see also State v. Whitley, 208
N.C. 661, 664, 182 S.E. 338, 340 (1935)(stating “it is the rule
with us, both in civil and criminal actions, that a verdict may be
given significance and correctly interpreted by reference to the
pleadings, the facts in evidence, admissions of the parties, and
the charge of the court”); State v. Hemphill, 273 N.C. 388, 390,
160 S.E.2d 53, 55 (1968)(stating “a verdict must be responsive to
the issue or issues submitted by the court”).
In the present case, the trial court instructed the jury on
the sale and delivery of counterfeit crack cocaine as follows:
In Count Three, the defendant has been charged
with selling a counterfeit controlled
substance. As to this count, I instruct you
that you may determine defendant's guilt or
innocence as to this Count Three only as it
relates to the alleged sale of the substance
identified as State's Exhibit 1. The State
offered no evidence that defendant sold the
substance identified as State's Exhibit 1A and
you should not consider such exhibit in
relation to this Count Three.
In this regard, for you to find the defendant
guilty of this offense, the State must prove
two things to you beyond a reasonable doubt.
First, that the defendant knowingly sold
counterfeit crack cocaine to Officer M.E.
Campos of the Raleigh Police Department,
representing it to be crack cocaine, a
controlled substance.
Second, that the substance sold was a
counterfeit controlled substance. . . .
So, I charge you as to this Count Three thatif you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the defendant knowingly sold counterfeit
crack cocaine to Officer M.E. Campos of the
Raleigh Police Department, representing it to
be crack cocaine, a controlled substance, and
that the substance sold was a counterfeit
controlled substance, it would be your duty to
return a verdict of guilty as to this Count
Three.
. . .
If you do not so find, or if you have a
reasonable doubt as to one or more of these
things, it would then be your duty to return a
verdict of not guilty of this Count Three.
The trial court rendered similar instructions as to Count Four of
the indictment, the delivery of counterfeit crack cocaine. In both
instructions, the trial court limited the jury's deliberations of
these counts to the alleged sale of counterfeit crack cocaine to
Officer Campos by Defendant. Thereafter, the jury rejected the
State's evidence that Defendant sold and delivered counterfeit
crack cocaine to Officer Campos and returned verdicts of not guilty
on those charges.
Thus, in light of the trial court's instructions limiting the
consideration of the evidence of the alleged sale and delivery of
a counterfeit substance to Officer Campos, the jury's verdict of
not guilty of the sale and delivery of a counterfeit substance to
Officer Campos, and in the absence of the erroneously admitted
reputation evidence, the remaining evidence tended to show that:
Officers Rosa and Robb initially detained Defendant while other
officers detained another individual. The officers frisked
Defendant for weapons and conducted a pat-down but found neither
weapons nor drugs_-real or counterfeit. After hearing they haddetained the wrong individual, the officers released Defendant and
watched him walk to a house on Freeman Street. Shortly thereafter,
Officers Robb and Rosa were notified that a mistake had been made
and they needed to locate the individual they had initially
detained and released. The officers went to the house where they
had seen Defendant go and found Defendant sitting in a chair on the
front porch conversing with a group of five to six people.
After removing Defendant from the porch, Officer Robb, who was
standing behind Defendant, began searching him. As Defendant
raised his left hand towards the top of his head, Officer Rosa saw
Defendant drop something from his left hand and land two feet
behind him. Officer Robb did not see anything drop from
Defendant's hand. Upon the arrival of Detective Hobby and Officer
Campos for the show-up, Officer Rosa handed the contraband to
Officer Campos and indicated the item was part of his case.
Although the alleged contraband looked like crack cocaine, it
was counterfeit--i.e., Goody's Headache Powder. After initially
characterizing this item as a “dosage unit,” Officer Campos later
testified that this item was known as a $50 flip, “which is a rock
that you buy on the streets for $50 and you cut it up and you make
five pieces out of it and you go back out in the street and you
sell each piece for $20 and you make $100 out of it. That's why
it's called a $50 flip because you double your profit.” However,
this particular “rock” was not broken into smaller units for sale.
Officer Rosa further testified the counterfeit cocaine was packaged
in a clear torn piece of a plastic baggy. He testified that “if
they are purchasing [crack cocaine], it's usually not packaged andit's been taken out of a package. But if they are carrying it,
it's either in plastic, clear plastic.”
We hold that under this evidence, there is a reasonable
possibility that, had the erroneous reputation evidence not been
admitted, the jury would have reached a different result at trial.
Indeed, the evidence tends to show only that defendant possessed an
unbroken dosage unit of a counterfeit substance while sitting on
the front porch of a house socializing with five to six people. A
jury could therefore conclude that Defendant merely possessed a
substance with the appearance of a counterfeit controlled
substance. In that instance, North Carolina law would require
acquittal because the mere possession of a counterfeit controlled
substance is not a crime. See N.C. Gen. Stat. § 90-95(a)(2001).
(See footnote 1)
Accordingly, we conclude admission of the neighborhood's reputation
was not harmless error as there was not overwhelming evidence of
defendant's guilt.
New trial.
Judges McGEE and TYSON concur.
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