STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 02 CRS 205767-71
ELTON WOODROW HAMILTON
Attorney General Roy Cooper, by Special Deputy Attorney
General Christine M. Ryan, for the State.
Mary Exum Schaefer for defendant-appellant.
McGEE, Judge.
Defendant was indicted by a grand jury on 18 February 2002
for possession of drug paraphernalia, conspiracy to traffic in
cocaine, trafficking in cocaine, maintaining a place to keep
controlled substance, and possession of a schedule VI controlled
substance. A jury found defendant guilty of all five counts on 6
November 2002. The trial court imposed a sentence of thirty-five
to forty-two months in prison and a $50,000 fine. All of the
convictions were consolidated for sentencing purposes under
defendant's conviction of trafficking in cocaine.
The State's evidence at trial tended to show that at
approximately 6:13 p.m. on 6 February 2002, Officer Steven
Winterhalter (Officer Winterhalter) of the Charlotte-MecklenburgPolice Department saw defendant's car stopped in the roadway. The
evening was dark and rainy. Officer Winterhalter was concerned
that defendant was in need of assistance and he activated his car's
blue lights and shined a spotlight on defendant's vehicle. He
observed that the vehicle was occupied and as he drew nearer the
vehicle, he witnessed "furtive" movements from the passenger side
of the front seat toward the console and other passenger seat areas
within the car.
Defendant was seated in the driver's seat and Patrick
Hamilton, defendant's brother, was seated in the front right
passenger seat. When defendant rolled down his window, Officer
Winterhalter detected a strong odor of marijuana emanating from the
vehicle and observed what he believed to be a marijuana "blunt" in
the ashtray. After radioing for an additional police unit, Officer
Winterhalter asked defendant for his driver's license and vehicle
registration. Defendant provided his identification card from his
wallet, his driver's license from the visor above his head, and the
vehicle registration.
When Officer A.J. Watkins (Officer Watkins) arrived, Officer
Winterhalter informed defendant that he smelled marijuana and
requested defendant exit the vehicle. Defendant consented to a
search of his person and Officer Winterhalter found $623 in cash.
Officer Winterhalter placed defendant in his police car.
Officer Winterhalter returned to defendant's vehicle and
observed a box of plastic bags on the back seat. Patrick Hamilton
was subsequently searched and he was placed in Officer Watkins'spolice car. Both officers searched defendant's vehicle. Officer
Winterhalter examined the "blunt" and confirmed, based on his
experience and training, that it contained marijuana. The officers
found a plastic bag containing cocaine partially stuffed between
the front passenger seat and console and a second bag of cocaine
under the front left corner of the front passenger seat. White
powder was spilled on the floorboard of the front passenger side as
well as on the right side of the driver's seat. The officers'
search resulted in the discovery of a digital scale on the
floorboard of the passenger side, a razorblade in the console, 10.5
grams of marijuana in the change compartment to the left of the
steering column, a white bottle labeled "super mannitol," and a
flour sifter with a white powder residue in the trunk. Officer
Winterhalter knew from his training and experience that mannitol,
commonly used as a laxative or sweetener, was often mixed with a
controlled substance to increase its volume and decrease its
purity. A total of 99.85 grams of cocaine were found in the
vehicle. The officers photographed the interior of the vehicle.
Defendant explained that he was waiting to bring the car to a
nearby wrecker yard, that the mannitol was for his use, and that
all the white powder was only mannitol. As he was being
transported to the law enforcement center, defendant stated that he
knew better than to have the "real thing" and was simply selling
mannitol to individuals who believed it to be cocaine. Defendant
also indicated to Officer Winterhalter that he had been previously
incarcerated. Officer Watkins delivered Patrick Hamilton to thelaw enforcement center.
At the law enforcement center, defendant was read his Miranda
rights by Officer Jamie Almond (Officer Almond) and defendant
requested an attorney. Officer Almond terminated the interview and
left the room. Shortly thereafter, defendant requested Officer
Almond's presence and Officer Almond responded. Defendant asked
what were the charges against him and his brother. Officer Almond
told defendant that they were to be charged with trafficking in
cocaine. Defendant asserted that the mannitol was his alone, that
his brother had no knowledge of it, and that defendant had obtained
the substance from a stump near the roadway where he had stopped.
Defendant presented no evidence at trial. Defendant appeals.
In his first assignment of error, defendant contends that the
trial court committed plain error by improperly instructing the
panel of prospective jurors during voir dire on the presumption of
innocence.
N.C.R. App. P. 10(c)(4) provides that
[i]n criminal cases, a question which was not
preserved by objection noted at trial and
which was not preserved by rule or law without
any such action, nevertheless may be made the
basis of an assignment of error where the
judicial action questioned is specifically and
distinctly contended to amount to plain error.
However, a prerequisite to this Court engaging in a plain error
review, which is narrow in scope, is the determination that the
jury instruction constitutes "error" at all. State v. Torain, 316
N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93
L. Ed 2d 77 (1986); State v. Bailey, 157 N.C. App. 80, 84, 577S.E.2d 683, 687 (2003)(citations omitted).
In explaining the legal concept of the presumption of
innocence to the pool of prospective jurors in this case, the trial
court stated:
Under our system of justice a defendant who
pleads not guilty is not required to prove his
innocence but is presumed to be innocent.
This presumption remains with the defendant
throughout the trial until the jury selected
to hear the case is convinced from both the
facts and the law beyond a reasonable doubt of
the guilt of defendant. [T. pp. 10-11]
Defendant failed to object to the instruction at trial, but now
argues that the trial court's instruction amounted to an improper
comment by the trial court as to the guilt of defendant, in
violation of N.C. Gen. Stat. § 15A-1222. Defendant points to the
inclusion of the word "until" in the instruction as an indication
to the jury by the trial court that the trial court regarded
defendant's guilt to be a foregone conclusion. Defendant suggests
that the trial court should have instructed the jury that the
presumption of innocence remains with defendant unless at some
point the jury determines defendant's guilt of the crime charged.
"'[I]n evaluating whether a judge's comments cross into the
realm of impermissible opinion, a totality of the circumstances
test is utilized.'" State v. Anthony, 354 N.C. 372, 402, 555
S.E.2d 557, 578 (quoting State v. Larrimore, 340 N.C. 119, 155, 456
S.E.2d 789, 808 (1995)), cert. denied, 354 N.C. 575, 559 S.E.2d 184
(2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). When
a defendant argues that the trial court's comments denied him a
fair trial, it is a defendant's burden to show prejudice in orderto receive a new trial. Anthony, 354 N.C. 372, 555 S.E.2d 557.
In this case, defendant presents no direct argument as to why
the trial court's use of "until" resulted in an impermissible
suggestion by the trial court indicating defendant's culpability.
The phrase "innocent until proven guilty" is among the most common
of legal phrases in our lexicon and is often repeated in the
decisions of our appellate courts. Compare State v. Cunningham,
333 N.C. 744, 746, 429 S.E.2d 718, 719 (1993)("[W]e review the
entire, albeit lengthy, transcript of her voir dire testimony
regarding defendant's right to be presumed innocent until proven
guilty by the State."); State v. Williams, 288 N.C. 680, 688, 220
S.E.2d 558, 565 (1975)("There is no vested right to the rule of
evidence that everyone shall be presumed innocent until proved
guilty, which prevents the legislature . . . ." (citations
omitted)). In State v. Mabery, 283 N.C. 254, 255, 195 S.E.2d 304,
305 (1973), our Supreme Court found no error with the trial court's
instruction which stated, "I will preface that instruction by
saying that the defendant is presumed to be innocent until the
contrary, that is, his guilt is proved to your satisfaction beyond
a reasonable doubt." See also State v. Brackett, 218 N.C. 369, 11
S.E.2d 146 (1940). More recently, our Supreme Court once again
found no error with the trial court's instruction that "[t]he
defendant is presumed to be innocent. This presumption goes with
him throughout the trial and until the jury is satisfied of his
guilt beyond a reasonable doubt." State v. Miller, 344 N.C. 658,
671, 477 S.E.2d 915, 923 (1996). There is no constitutional or statutory requirement that the
trial court employ certain words or phrases in instructing the jury
on the meaning of reasonable doubt. See Id. (citing Victor v.
Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583 (1994) ). The idiom,
"innocent until proven guilty," is fundamental to our societal and
legal conceptions of reasonable doubt. We conclude that the trial
court did not err. Defendant's assignment of error number two is
without merit.
Defendant next assigns error to the trial court's decision to
permit the State to redact the co-defendant's statement to
Officers Winterhalter and Almond as recorded in their respective
police reports. Neither the State nor defendant called the co-
defendant, Patrick Hamilton, as a witness. At the time of
defendant's trial, his co-defendant had pled guilty and was
imprisoned.
In support of the State's motion to redact those portions from
the officers' reports relaying the comments of the co-defendant
explaining the events of 6 February 2002, the State correctly
argued that such comments amounted to hearsay under the
circumstances and were thus inadmissible.
A prosecutor is prohibited by the Sixth
Amendment to the United States Constitution
and Article I Section 23 of the North Carolina
Constitution from introducing any hearsay
evidence in a criminal trial unless two
requirements are met. The prosecution must
show both the necessity for using the hearsay
testimony and the inherent trustworthiness of
the original declaration.
State v. Gregory, 78 N.C. App. 565, 568, 338 S.E.2d 110, 112(1985), disc. review denied, 316 N.C. 382, 342 S.E.2d 901 (1986);
State v. McNeill, 140 N.C. App. 450, 459, 537 S.E.2d 518, 524
(2000). The State is under no compulsion to offer hearsay evidence
in its case-in-chief.
Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218
(1963) , mandates that the State disclose "evidence [that] is
material either to guilt or to punishment." The State here
complied with Brady and presented the officers' statements in their
entirety to defendant prior to trial and within the appropriate
time. Even assuming arguendo that the co-defendant's statements
were in fact exculpatory, we fail to see merit in defendant's
argument that the State was somehow compelled to then offer that
evidence at trial. No barrier existed to prevent defendant from
proffering the evidence at trial in his defense either by a
subpoena served on the co-defendant or by an applicable hearsay
exception.
Furthermore, we find defendant's interpretation of the jury's
questions regarding the redacted reports to be misplaced. The jury
read the officers' reports during trial, but was not in possession
of the reports at the time of deliberations. The jury submitted to
the trial court a question reading: "Is the redact[ed] report in
its entir[e]ty allowed to be consider[ed] by the jury as evidence?"
Not fully understanding the jury's question, the trial court had
the jury return to the courtroom. The dialogue that followed
indicated that the jury was inquiring whether it might consider the
oral statements contained in the officers' reports. The jury didnot request to actually have access to the unredacted portions of
the reports. This assignment of error is overruled.
In his final assignment of error, defendant contends that the
trial court erred by denying his motion for a mistrial after
Officer Winterhalter testified that defendant "apparently had been
in prison before."
After defendant's arrest, and in transit to the law
enforcement center, defendant repeatedly muttered that the white
powder was mannitol, to which Officer Winterhalter responded by
asking defendant why he possessed the mannitol. Defendant, who had
not yet been apprised of his rights, replied that he had been
incarcerated for eight years and knew better than to have the "real
thing." Defendant's statement was included in the redacted
version of Officer Winterhalter's report and the officer
paraphrased defendant's response at trial.
After a hearing outside the presence of the jury, the trial
court provided a curative instruction:
Ladies and gentlemen of the jury, just prior
to me sending you into the jury room the
defendant had made an objection to a statement
by the officer concerning testimony of the
officer that included words to the effect
apparently [sic] while the defendant was in
prison.
I'm going to overrule the objection but I'm
also going to instruct you that you may not
convict the defendant based on something he
may or may not have done in the past.
Do each of you understand that? Let the record
reflect that all twelve members of the jury
and the alternate have nodded yes.
Upon review of the transcript, there appear to be twostatements by defendant at issue. The first involves defendant's
remark that "he knew better than to have the real thing." That
statement was deemed admissible by the trial court as a hearsay
exception, although the trial court did not specify what exception
applied. The second statement by defendant concerns Officer
Winterhalter's testimony at trial which indicated defendant's past
criminal history. The officer based his testimony upon defendant's
response that he had been previously incarcerated. This later
matter is the one contested by defendant upon appeal. Defendant
explicitly argues that the State was prohibited from introducing
evidence of his prior criminal record to impeach him when he did
not testify, and that he was thus highly prejudiced by the
admission. Defendant presents no argument as to the trial court's
determination that statements were admissible as an exception to
the hearsay rule. Thus, our inquiry is limited to the
admissibility and impact of Officer Winterhalter's testimony as to
defendant's criminal record.
N.C. Gen. Stat. § 15A-1061 (2003) proscribes that "[t]he
judge must declare a mistrial upon the defendant's motion if there
occurs during the trial an error . . . resulting in substantial and
irreparable prejudice to the defendant's case." Even assuming that
the trial court erred in permitting Officer Winterhalter to testify
as to defendant's criminal history, after a careful review of the
record as a whole, we conclude that the admission resulted in no
prejudicial effect. See State v. Wilson, 311 N.C. 117, 128, 316
S.E.2d 46, 53 (1984) (witnesses' references to defendant's pastincarceration were inadmissible where the defendant did not
testify, but even cumulatively the testimony admitted in error
failed to amount to a prejudicial effect); State v. Morgan, 111
N.C. App. 662, 668, 432 S.E.2d 877, 881 (1993) (evidence of the
defendant's reputation as a drug dealer was inadmissible under the
circumstances, but given the great weight of evidence against him,
there was no reasonable possibility the jury would have concluded
otherwise). The trial court provided an appropriate curative
instruction, and we presume the jury followed that instruction.
State v. Allen, 141 N.C. App. 610, 615, 541 S.E.2d 490, 494 (2000),
disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001). In light
of the overwhelming evidence against defendant and the trial
court's curative instruction, we fail to see any reasonable
possibility that the jury would have held differently. See Morgan,
111 N.C. App. 662, 432 S.E.2d 877. Defendant's assignment of error
number three is overruled.
Finally, defendant has failed to present any argument in
support of his assignment of error number four and it is therefore
deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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