An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1000
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Person County
Nos. 12 CRS 1794—95
NATHANIEL HAWTHORNE SMITH, II,
Defendant.
Appeal by defendant from judgment entered 27 March 2013 by
Judge Michael R. Morgan in Person County Superior Court. Heard
in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas D. Henry, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for defendant-
appellant.
BRYANT, Judge.
Where defendant introduces evidence of a prior arrest, the
State is entitled to introduce evidence in explanation or
rebuttal thereof, even though the rebuttal evidence would be
otherwise inadmissible. Defendant cannot claim ineffective
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assistance of counsel where it cannot be demonstrated that the
actions of his counsel fell below an objective standard of
reasonableness or were so prejudicial as to affect the outcome
of his trial.
On 20 March 2012, a confidential informant notified
Investigator Gill of the Person County Sheriff’s Office that he
had spoken with defendant Nathaniel Hawthorne Smith about
purchasing marijuana. After an exchange of text messages, the
informant arranged to buy marijuana from defendant that
afternoon at a nearby park. Investigator Gill met with the
informant for a “pre-buy meeting” during which a small video
camera was affixed to the informant’s shirt. The informant was
then driven to a drop-off point to walk to the park.
As the informant entered the park, he saw defendant exit a
car, place a bag on the ground near the car, and then get back
into the car. The informant approached the car, asked defendant
for a “quarter bag,” and after handing defendant $60.00, was
directed to pick-up the bag lying on the ground. Upon
completing the sale, defendant drove away, and the informant
contacted Investigator Gill.
Investigator Gill returned to the park to pick-up the
informant and conduct a “post-buy meeting.” At this meeting,
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the informant told Investigator Gill what had transpired during
the buy, gave him the bag, and was relieved of the video camera.
The bag was determined to contain 7.9 grams of marijuana.
On 10 September 2012, defendant was indicted on one count
each for sale and delivery of a schedule VI controlled
substance; possession with intent to sell and deliver a schedule
VI controlled substance; sale and delivery of a controlled
substance within 1000 feet of a public park; and possession of
drug paraphernalia. On 27 March 2013, defendant was convicted
of all four charges and sentenced to a prison term of 36 to 56
months. Defendant appeals.
_____________________________
On appeal, defendant argues (I) that the trial court erred
in allowing the State to inquire about defendant’s prior arrest
and (II) that the trial court deprived defendant of effective
assistance of counsel.
I.
Defendant first argues that the trial court erred in
allowing the State to inquire into his prior arrest involving
marijuana. We disagree.
In arguing that the trial court erred in permitting the
State to question Investigator Gill about defendant’s prior
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arrest involving marijuana, defendant contends that the trial
court violated Rule 404(b) of our Rules of Evidence by
improperly admitting character evidence. We disagree, as it was
defendant himself who opened the door to permitting the State to
question Investigator Gill about his prior arrest.
[E]vidence which is otherwise
inadmissible is admissible to explain or
rebut evidence introduced by defendant.
This is true even if a defendant admits
evidence during cross-examination of a
State's witness, prompting the State to
introduce otherwise inadmissible evidence in
rebuttal. Therefore, where a defendant
examines a witness so as to raise an
inference favorable to defendant, which is
contrary to the facts, defendant opens the
door to the introduction of the
State's rebuttal or explanatory evidence
about the matter.
State v. O’Hanlan, 153 N.C. App. 546, 561, 570 S.E.2d 751, 761
(2002) (citations omitted). “The phrase ‘opening the door’
refers to the principle that where one party introduces evidence
as to a particular fact or transaction, the other party is
entitled to introduce evidence in explanation or rebuttal
thereof, even though such latter evidence would be incompetent
or irrelevant had it been offered initially.” State v. Rose, 335
N.C. 301, 337, 439 S.E.2d 518, 538 (1994) (citation, quotation
and bracket omitted), overruled on other grounds by State v.
Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).
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Here, defendant opened the door during his cross-
examination of Investigator Gill:
Q. Okay. Investigator Gill, you would admit
that the suspect who allegedly sold this
marijuana was on camera in this video for a
matter of seconds?
A. Correct.
Q. And at the time it was kind of dark. They
were sitting in a vehicle when it happened,
correct?
A. Correct.
Q. And at times, really, only part of their
face was showing, correct?
A. Yup. One side of the face.
Q. And it was just based on those few
seconds that you say you identified
[defendant] as being the person on that
video?
A. That's correct.
Q. And when had been the last time you had
seen [defendant] in person prior to watching
that video?
A. I'm not exactly sure on the date. The
last time I seen him, he was actually in my
office talking to me.
Q. But you don't know how long that had
been?
A. No, sir. I don't. He was in there talking
to me in reference to assisting us.
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Through this line of questioning, defendant sought to undermine
Investigator Gill’s credibility by attempting to create the
impression that Investigator Gill’s identification of defendant
was not clear and positive. Defendant did not object nor move
to strike Investigator Gill’s testimony that defendant had been
“in [my office] talking to me in reference to assisting us.”
Before beginning redirect, the State announced its intent to
question Investigator Gill about his comments concerning
defendant being “in [my office] talking to me in reference to
assisting us.” The trial court noted the following in its Rule
403 analysis:
Well, I do recall that when the
question was asked by defense counsel of the
witness, when was the last time that the
witness had seen the defendant, the response
was by the witness that the witness saw the
defendant last in the witness' office and
then the witness added at the very end when
the witness offered himself as a
confidential informant. There was no
objection based on nonresponsive [sic] or
irrelevancy. So, that's on the record. The
State has got a right to explore whatever
comes out on cross. That is in the record.
So, that's there. So, I got [sic] to afford
the State an opportunity to do that,
exploration if it so desires on redirect.
So, I will allow that.
Now, to the extent that I got fuller
information concerning what happened as a
result, the State can explore it if it
wishes. If there's an objection on it, I'll
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rule on it in the context in which it
occurs. If it does come out that there was a
matter that was ultimately resolved by way
of dismissal, then, if it gets to that
extent on the record, then certainly, um,
I'll allow [counsel for defendant] to tie up
what the ultimate resolution of that was,
but because it was explored to some extent
on cross, then I've got to allow the State
the opportunity to say what it has to say
about it on redirect.
So, I will allow the subject to be
explored on redirect because it was explored
on cross, and I'll take whatever objections
may occur based on the context in which it
arises.
On redirect, Investigator Gill testified that the reason
defendant came into his office offering assistance was because
defendant had been arrested after marijuana was found in his car
during a traffic stop. Investigator Gill stated that defendant
offered to assist with another investigation and signed a
confidential informant packet.
“[T]he objective of redirect examination is to clarify the
subject matter of the direct examination and any new matter
elicited on cross-examination[.]” State v. Price, 301 N.C. 437,
452, 272 S.E.2d 103, 113 (1980) (citation omitted). By
eliciting testimony as to how Investigator Gill could have been
positive in his identification of defendant as the person seen
on camera selling marijuana, defendant opened the door for the
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State to seek an explanation of this testimony on redirect.
Accordingly, the trial court did not err in allowing the State
to inquire into the circumstances under which Investigator Gill
had seen and talked to defendant.
Defendant further argues that he was unfairly prejudiced by
the trial court’s allowing the State to question Investigator
Gill about defendant’s prior arrest involving marijuana.
Defendant contends that had the testimony concerning defendant’s
prior arrest involving marijuana not been admitted, a different
result would have been reached at his trial. We disagree, as
the case against defendant for the 20 March 2012 marijuana
offense was not based solely on his prior arrest involving
marijuana.
The State presented evidence to the jury which tended to
show that defendant had sold marijuana to the confidential
informant by means of testimony by Investigator Gill, testimony
by the confidential informant, and a video recording captured by
a video camera attached to the informant’s shirt during his
purchase of marijuana from defendant. As such, the State
presented sufficient evidence for the jury to find beyond a
reasonable doubt that defendant was the individual who sold
marijuana to the informant. Further, the jury specifically
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requested to see the segment of the video recording of the
controlled buy where defendant’s face was visible in the car.
At 1:59 p.m., the jury sent a note to the trial court asking:
“the jury would like to review the video. [sic] @ the car to see
a closer picture of the Defendant.” After discussing the jury’s
request with counsel, the trial court permitted the jury to
watch this portion of the video which showed, albeit briefly,
defendant’s face inside the car. The jury then returned to its
deliberations, reaching its verdicts at 2:31 p.m. This request
by the jury clearly shows an intent to ascertain for themselves
whether defendant was the person shown in the car. From this
record there is no evidence that the jury was unfairly
prejudiced by testimony concerning defendant’s prior arrest
involving marijuana.
Defendant further argues that the admission of testimony
concerning his prior arrest involving marijuana was prejudicial
because the trial court failed to give a limiting instruction
regarding permissible uses of Rule 404(b) evidence of prior bad
acts. Although the trial court failed to give a limiting
instruction regarding the jury’s consideration of defendant’s
prior arrest involving marijuana, there is nothing in the record
to indicate that, but for the absence of the limiting
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instruction, defendant’s trial would have reached a different
outcome. As discussed above, there is no evidence to suggest
that the jury was unfairly prejudiced by Investigator Gill’s
testimony concerning defendant’s prior arrest involving
marijuana. We find nothing in the trial court’s failure to give
a limiting instruction that is "so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244,
251 (1987) (citations omitted). Accordingly, defendant’s
argument is overruled.
II.
Defendant next argues that his counsel deprived him of
effective assistance of counsel. We disagree.
“A defendant's right to counsel includes the right to
effective assistance of counsel." State v. Grooms, 353 N.C. 50,
64, 540 S.E.2d 713, 722 (2000) (citation omitted). This court
analyzes claims of ineffective assistance of counsel using a
two-part test, as articulated in Strickland v. Washington, 466
U.S. 668 (1984). See State v. Braswell, 312 N.C. 553, 562—63,
324 S.E.2d 241, 248 (1985). First, defendant must show that
his "counsel's performance fell below an objective standard of
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reasonableness as defined by professional norms." State v. Lee,
348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Secondly,
defendant must show he was prejudiced by the error such that "a
reasonable probability exists that the trial result would have
been different absent the error." Id.
Defendant contends that his “counsel’s failure to object
to, to move to strike, and to request a limiting instruction
regarding the nonresponsive testimony offered by [Investigator]
Gill and [the confidential informant] was objectively
deficient.” Specifically, defendant argues that his counsel was
deficient because by not objecting to, moving to strike, or
requesting a limiting instruction for Investigator Gill’s
nonresponsive testimony concerning defendant’s prior arrest
involving marijuana, defendant’s counsel exposed defendant to
prejudice. We disagree, as defendant has not demonstrated such
prejudice that "a reasonable probability exists that the trial
result would have been different absent the error." Id.
In reviewing a claim of ineffective assistance of counsel,
“if a reviewing court can determine at the outset that there is
no reasonable probability that in the absence of counsel's
alleged errors the result of the proceeding would have been
different, then the court need not determine whether counsel's
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performance was actually deficient.” Braswell, 312 N.C. at 563,
324 S.E.2d at 249. Here, as discussed in Issue I, defendant has
not demonstrated that, absent the nonresponsive testimony by
Investigator Gill concerning defendant’ prior arrest involving
marijuana, the jury would have reached a different conclusion.
In reviewing the record before this Court, we find nothing to
suggest that defendant’s counsel failed to act within reasonable
standards.
Judicial review of counsel's performance
must be highly deferential so as to avoid
the prejudicial effects of hindsight.
Because of the difficulties inherent in
determining if counsel's conduct was within
reasonable standards, a court must indulge a
strong presumption that counsel's conduct
falls within the broad range of what is
reasonable assistance.
State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986)
(citing Strickland, 466 U.S. at 689). As defendant has not
demonstrated that his counsel acted outside of reasonable
standards or exposed him to prejudice such that it affected the
outcome of his trial, defendant’s argument is overruled.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).