STATE OF NORTH CAROLINA,
No. 05 CRS 252887
JABARI DONTAVIUS WATSON,
The State presented substantial evidence that defendant committed the offense of a sale of a controlled substance, and the trial court properly denied defendant's motion to dismiss. Testimony concerning the character of a neighborhood was used to explain the witness's subsequent conduct. The trial court did not abuse its discretion in limiting defendant's questions of the jurors.
Kenneth S. Broun, Brandis and Broun on North Carolina Evidence §
80, at 232-33 (6th ed. 2004).
In this case, in response to Narvaez's inquiry about purchasing some marijuana, defendant directed him to go across the street. Defendant then directed his attention to three bags of marijuana lying on the ground and stated the price to be twenty dollars. Upon defendant's instructions, Narvaez left a twenty-dollar bill on the ground and departed. At that point, a sale of the three bags of marijuana was consummated. See State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001), holding that a sale in the context of the Controlled Substance Act means the exchange of a controlled substance for money or any other form of consideration. What happened to the twenty-dollar bill after Narvaez left is immaterial to whether the State provided substantial evidence of the sale of a controlled substance. This argument is without merit.
In his second argument, defendant contends that the trial court erroneously admitted hearsay testimony regarding the reputation of the neighborhood where the offense was committed. We disagree.
In the admission of evidence, the trial court's decision on motions made pursuant to Rule 403 are binding on appeal, unless the dissatisfied party shows that the trial court abused its discretion. State v. Chapman, 359 N.C. 328, 348, 611 S.E.2d 794, 811 (2005). Defendant must show that the trial court's ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Allen, 322 N.C. 176, 189, 367 S.E.2d 626, 633 (1988). Hearsay is inadmissible when it is offered for proving the truth of the matter. State v. Allred, 131 N.C. App. 11, 17, 505 S.E.2d 153, 157 (1998). However, it is not considered inadmissible when offered to show the subsequent conduct of a person. State v. Jackson, 64 N.C. App. 715, 716, 308 S.E.2d 360, 361 (1983) (quoting State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979)). Defendant cites us to the cases of State v. Springs, 184 N.C. 768, 114 S.E. 851 (1922), and State v. Tessnear, 265 N.C. 319, 144 S.E.2d 43 (1965), asserting that they are analogous to the instant case. We find each of them to be distinguishable. Springs held that inadmissible hearsay of the reputation of defendant's place was prejudicial to the outcome of the trial for the charge of possession of spirituous liquor. 184 N.C. at 772, 114 S.E. at 853. Tessnear held that reversible error occurred when inadmissible hearsay of the reputation of defendant's residence was used to find him guilty of possession of nontaxpaid whiskey. 265 N.C. at 322, 144 S.E.2d at 46. The use of reputation in Springs and Tessnear was prejudicial because it was used to show that the defendants possessed a controlled substance rather than sold a controlled substance. See Springs, 184 N.C. at 772, 114 S.E. at 851; Tessnear, 265 N.C. at 320-21, 144 S.E.2d at 45.
In the instant case, Narvaez stated that he was in that particular neighborhood because it was a hot spot for drug activity. This statement was not used for the truth of the matter, but rather to explain why Narvaez was at a particular place. The trial court did not abuse its discretion in admitting this evidence .
We further note that the burden is on the defendant to show a reasonable possibility that had the alleged error not occurred, a different result would have been reached at trial. State v. Hames, 170 N.C. App. 312, 317, 612 S.E.2d 408, 412 (2005). In the instant case, defendant does not articulate how he was prejudiced by thisalleged error. He has not met this burden, and as such, this argument is without merit.
In his third argument, defendant contends that the trial court erred in sustaining the State's objection to certain questions during the jury voir dire. We disagree.
The trial court has broad discretion to see that a competent, fair, and impartial jury is impaneled, and its rulings in that regard will not be reversed absent a showing of an abuse of its discretion. State v. Conaway, 339 N.C. 487, 508, 453 S.E.2d 824, 837-38, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). [W]hile counsel is allowed wide latitude in examining jurors on voir dire, the form of counsel's questions is within the sound discretion of the trial court. State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995). Defendant must show the ruling to be so arbitrary that it could not have been the result of a reasoned decision. Allen, 322 N.C. at 189, 367 S.E.2d at 633.
Defendant assigns as error the sustaining of State's objections to the following questions:
[DEFENSE]: If you were to hear -- and I'll also address this question with [prospective juror], if you were to hear in the case, and you probably will hear that [defendant] was at least aware of some marijuana and directed one of the officers to some marijuana. What do you think about that? Do you feel that that - - just the involvement or knowledge _
THE COURT: Sustained.
[DEFENSE] : When you heard that this was a sale of marijuana case, what did you think? What was your first impression?
THE COURT: Sustained. Ask your next
question[.] . . .
: Obviously in this case you all
are going to be asked to listen to all the
evidence and determine what you believe to be
true and then to apply the law to the facts as
you decide that they are. So I want to talk
to you all about how you determine the truth
in this case. In this case, [defendant] will
not be testifying. Is there anyone who has a
problem with that?
THE COURT: Sustained.
[DEFENSE] : Is there anyone who feels that they would have to hear from [defendant] in order to make a decision in this case? Does everyone here understand that there may be many reasons why a person who is charged with a crime may elect not to testify?
[PROSECUTOR] : Objection.
THE COURT: Sustained[.] . . .
[DEFENSE] : Also, there will be times during the trial that I may object to the introduction of evidence, potentially inadmissible evidence, that I may ask to be heard by the judge outside of your presence. Is there anything about that, that any of you -- I just ask that you won't hold any of that against [defendant].
THE COURT: Sustained[.]
Outside the presence of the jury, the trial judge discussed his ruling with counsel and advised defense counsel that the questions were improper stake-out questions. He further went overwith counsel how to properly ask the questions upon resumption of jury selection.
Counsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided. Counsel should not argue the case in any way while questioning the jurors. Counsel should not engage in efforts to indoctrinate, visit with or establish 'rapport' with jurors.
State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980).
In this case, we do not find that the trial court's rulings
rise to the level of an abuse of discretion. This argument is
NO ERROR .
Judges ELMORE and STROUD concur.
Report per Rule 30(e).
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