State v. Agee

• Decision Date: 18 April 1989
• Docket Number: No. 8812SC334,8812SC334
• Parties: STATE of North Carolina v. Glenn Charles AGEE.
• Court: North Carolina Court of Appeals

Page 533

378 S.E.2d 533

93 N.C.App. 346

STATE of North Carolina v. Glenn Charles AGEE.

No. 8812SC334.

Court of Appeals of North Carolina.

April 18, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for the State.

Asst. Public Defender Paul F. Herzog, Fayetteville, for defendant-appellant.

GREENE, Judge.

Defendant appeals his conviction of felonious possession of LSD under Section 90-95(a)(3). In March 1987, a police officer stopped defendant who was operating an automobile carrying several other passengers. After searching defendant for weapons and searching the rest of the car, the officer charged defendant with: 1) driving while impaired; 2) driving with a revoked license; 3) displaying a fictitious license plate; 4) misdemeanor possession of marijuana; and 5) felonious possession of LSD. The district court judge acquitted defendant of the misdemeanor possession of marijuana charge as well as all other misdemeanor offenses except the driving-while-impaired charge.

Prior to trial of the felonious possession of LSD charge in superior court, defendant moved in limine to exclude any reference to his arrest for the offenses of which he was acquitted. Defendant based his motion on the Fourteenth Amendment, the "law of the land" clause of our state constitution, and various state rules of evidence. Defendant contended that, since defendant had been acquitted of the marijuana offense, evidence of defendant's marijuana possession was "res judicata" and had "no further life in the criminal justice system, and [was] irrelevant for any purpose at this particular point in time." Defense counsel furthermore stated that:

I know that at some point in time [the prosecutor] will probably argue that [the arrests] are part of the res gestae of what happened here. But since there has already been a prior judicial disposition, their effect is--the prejudicial affect is far outweighing the probative value to this defendant.

Counsel contended that the state had ample other evidence from which it could show why defendant was stopped while operating his automobile.

The prosecutor responded:

Your honor, its my understanding that with respect to the possession of marijuana, that this is a situation where the defendant had the item on his person. Apparently during the handling of the matter in district court, the lab results were not yet back at the time of disposition of the driving cases and all were called for trial and, therefore, there was no choice. There was just no lab report to submit. Judge Hair entered a not guilty [sic] with respect to that. We would suggest, however, to the Court that under the rules of evidence, it is a "prior conduct" that is wrongful, and we should not be barred from going into that particular aspect of the case.

Defense counsel did not dispute this characterization of the trial in district court.

After hearing these arguments, the trial court made the following ruling:

As to the marijuana, I can see where that may be relevant as to what action took place on the evening ... it would be inappropriate as to what--to talk about what took place in district court as to whether he was found guilty or not guilty, for the State to refer to that. But as to the transactions that went on that evening between the officer and the defendant at this point I think would be relevant to just what transpired out there, would be relevant to the case, and I will deny the motion in limine as to that.

Defense counsel objected to that ruling and stated that, since the court was going to allow the State to introduce evidence that defendant possessed marijuana during his arrest, defendant "may feel compelled to introduce evidence he was found not guilty of having marijuana."

At trial, the State introduced the arresting officer's testimony that he had seen defendant throw a red object to the floor of the car and that a subsequent search had disclosed a red cigarette box which contained LSD. The following exchange occurred during the arresting officer's direct examination:

Q: When you got the passengers out of the vehicle, what, if anything, did you note about the person of those individuals?

A: They were all very well inebriated.

Q: What then occurred, Officer Thomas?

A: Once Officer Varner and Captain Neisham got there, we started to search the subject for our safety, and ... since I had advised Mr. Agee that he was under arrest for driving while impaired, I patted--well I, I searched him for weapons before I placed my handcuffs on him and was going to transport him to our police station.

. . . . .

Q: What occurred as a result of your search of his person, sir?

A: As I was searching him, when I checked his right rear pocket, I found a plastic bag--

Mr. Herzog: Objection.

The Court: Overruled.

Q: What did you find, sir?

A: I found a plastic bag with a green vegetable matter inside of it.

Mr. Herzog: Move to strike.

Court: Overruled.

After the officer testified concerning his familiarity with the appearance of marijuana, the trial court allowed the officer to state his opinion that the "green vegetable matter" was marijuana, but did not allow the officer to testify as to any subsequent laboratory testing done on the alleged marijuana.

During his subsequent direct examination, defendant also recounted the events of his arrest and added the following admission:

Q: Okay. What happened when you proceeded to the front of the car with Patrolman Thomas?

. . . . .

A: He patted me down, and I had, you know--he patted me down at the front of the car.

Q: Okay. After that happened, what happened?

A: He patted me down and he found something in my pocket.

Q: What was in your pocket?

A: A bag of marijuana.

The defendant presented other evidence that the cigarette pack containing the LSD belonged to another passenger in the car; the other passenger himself testified that the LSD belonged to him and that defendant did not know of its existence; however, the passenger had difficulty identifying other persons in the car on the night of defendant's arrest. The jury convicted defendant of felonious possession of LSD. Defendant appeals.

_____

These facts present the following issues: I) where, at a trial for LSD possession, the State introduces evidence tending to show defendant possessed marijuana the time of his arrest although defendant was previously acquitted of that offense, (A) what requirements must defendant show in order to exclude such evidence under double jeopardy collateral estoppel? and (B) has defendant shown such requirements?; and II) if the admission of such evidence was not constitutionally estopped, whether defendant's admission he in fact possessed marijuana waived any objection under Rule 403 of our rules of evidence.

I

On appeal, defendant contends his acquittal of the misdemeanor marijuana possession charge collaterally estopped the State in the subsequent LSD trial from introducing any evidence tending to show defendant possessed marijuana at the time of his arrest. Defendant specifically bases his contention on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, the United States Supreme Court held the doctrine of collateral estoppel is part of the constitutional guarantee against double jeopardy:

'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ... The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires the court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings' ... Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings at least in every case where the first judgment was based upon a general verdict of acquittal.

397 U.S. at 443-44, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (emphasis added) (citations omitted). While there are arguably sources of collateral estoppel other than the Fifth Amendment, the only source of collateral estoppel argued in defendant's brief and consequently addressed in this opinion is the federal constitutional protection against double jeopardy, and will sometimes hereafter be called "double jeopardy collateral estoppel." N.C.R.App. 28(b)(5); see 2 W. LaFave and J. Israel, Criminal Procedure Sec. 17.4(a) at 387 (1984) (NOTING OTHER POSSIBLE CONSTITUTIONAL and state sources of collateral estoppel).

Double jeopardy collateral estoppel is based upon "considerations of judicial economy, conservation of public funds, and avoidance of multiple litigations underlying the doctrine. Implicit, of course, in any limitation on relitigation of issues already determined in the criminal context is an appreciation of the substantial burdens, psychological as well as otherwise, placed on one who must defend against criminal prosecution." Phillips v. United States, 502 F.2d 227, 230 (4th Cir.1974), vacated on other grounds, 518 F.2d 108 (4th Cir.1975) (per curiam) (en banc). Thus, given the interests protected by double jeopardy collateral estoppel, defendant's admission on direct examination that he possessed marijuana at the...