State v. Agee, 208A89

• Decision Date: 10 May 1990
• Docket Number: No. 208A89,208A89
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Glenn Charles AGEE.

Page 171

391 S.E.2d 171

326 N.C. 542

STATE of North Carolina v. Glenn Charles AGEE.

No. 208A89.

Supreme Court of North Carolina.

May 10, 1990.

Lacy H. Thornburg, Atty. Gen. by Clarence J. DelForge, III, Associate Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Constance H. Everhart, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

This appeal presents the question whether defendant's acquittal on a charge of misdemeanor possession of marijuana precludes the State from introducing, in a subsequent prosecution for felonious possession of lysergic acid diethylamide (LSD), evidence that defendant possessed marijuana at the time of his arrest on both charges. We answer in the negative, and we thus affirm the Court of Appeals.

Prior to defendant's trial in superior court for possession of LSD, he filed a motion in limine to preclude any reference to his arrest on 27 March 1987 for the offenses of misdemeanor possession of marijuana, driving while license revoked, and displaying a fictitious license plate. These charges all stemmed from the same incident which led to defendant's arrest for possession of LSD. Defendant had been convicted previously in district court on the charges of driving while license revoked and displaying a fictitious license plate. He was acquitted of the charge of misdemeanor possession of marijuana. In denying the motion in limine, the trial court stated:

As to the marijuana, 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'll deny the motion in limine as to that.

At the trial for felonious possession of LSD, Officer Mark W. Thomas of the Spring Lake Police Department testified that on the evening of 27 March 1987 he observed a brown Mustang automobile weaving on the road. Officer Thomas activated his siren and signalled the driver to pull over to the side of the road. After the driver pulled over, Officer Thomas turned on a "take down light" which helps illuminate the inside of a vehicle. He observed defendant, the driver, take something red, ball it up, and throw it over his shoulder. Officer Thomas approached the car, whereupon defendant, who was inebriated, made a threatening remark to him. Officer Thomas told all the occupants to get out of the automobile and place their hands on the automobile; he then called for assistance. When help arrived, Officer Thomas advised defendant he was under arrest for driving while impaired. He then searched defendant while the other officers searched the other two occupants of the car. Officer Thomas testified, over objection, that he found "a plastic bag with a green vegetable matter inside of it" in defendant's pocket, and that in his opinion the bag contained marijuana. He proceeded to search the vehicle. On the right rear floorboard he found a crumpled red Marlboro cigarette package. In between the cellophane and the package he found a small square piece of aluminum foil, which he thought to be a "blotter acid hit of LSD." Officer Thomas found no other red items in the back seat passenger area.

On direct examination, defendant admitted that the bag Officer Thomas found in his pocket contained marijuana, but denied possession of LSD. Clay Thomas, one of defendant's passengers, testified that the LSD belonged to him. Two other witnesses, who had been at a party with defendant and Thomas earlier in the evening, testified that Thomas had some LSD wrapped in tinfoil inside a Marlboro cigarette package and offered to sell some to anyone interested. The other passenger, a female, did not testify. The State's evidence tended to dispute that Clay Thomas had been a passenger in defendant's automobile at the time of the arrest.

The jury returned a guilty verdict on the charge of felonious possession of LSD. The Court of Appeals upheld defendant's conviction, holding that the principle of double jeopardy collateral estoppel did not operate to prohibit admission of evidence of defendant's marijuana possession at his trial for possession of LSD. State v. Agee, 93 N.C.App. 346, 362, 378 S.E.2d 533, 542 (1989). The Court of Appeals also concluded pursuant to N.C.G.S. § 8C-1, Rule 403 that the prejudice to defendant occasioned by the admission of this evidence outweighed its minimal probative value, but that defendant had waived his objection under this rule by testifying himself that he possessed a bag of marijuana at the time of his arrest. Id. at 365, 378 S.E.2d at 543. Judge Becton dissented, and defendant exercised his right to appeal to this Court. N.C.G.S. § 7A-30(2) (1989).

We first address whether the evidence of defendant's possession of marijuana was admissible under the Rules of Evidence. If the evidence was inadmissible on evidentiary grounds, we need not address the constitutional question raised by defendant. State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985). Defendant argues that the evidence is irrelevant under Rule 401, more prejudicial than probative under Rule 403, and evidence of prior bad acts inadmissible under Rule 404(b).

The Court of Appeals noted that any relevance or probative value represented by the evidence was limited to establishing the context or "chain of circumstances" of the crime charged. State v. Agee, 93 N.C.App. at 362, 378 S.E.2d at 542. This type of evidence is sometimes called res gestae evidence. However, the res gestae formula is more properly used to describe out-of-court statements made contemporaneously with the commission of the crime, 1 Brandis on North Carolina Evidence § 158 (3d ed.1988), and its omission from codification within the Rules of Evidence as a hearsay exception has called its continuing vitality into question. Id. at 717 n. 70.

Evidence tending to establish the context or chain of circumstances of a crime, which incidentally establishes the commission of a prior bad act, is to be distinguished from the hearsay res gestae category of evidence. We have recognized the relevance of the former type of evidence in pre-Rules opinions:

"[A]ll facts, relevant to the proof of the defendant's having committed the offense with which he is charged, may be shown by evidence, otherwise competent, even though that evidence necessarily indicates the commission by him of another criminal offense. Thus, such evidence of other offenses is competent to show ... the quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions."

State v. Jenerett, 281 N.C. 81, 89, 187 S.E.2d 735, 740 (1972) (citations omitted) (quoting State v. Atkinson, 275 N.C. 288, 312-13, 167 S.E.2d 241, 256 (1969), death sentence reversed on other grounds, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971)). In Jenerett, evidence that defendant robbed the victim prior to murdering him was admissible as part of the chain of circumstances. Id. See also State v. McMillian, 59 N.C.App. 396, 401, 297 S.E.2d 164, 167 (1982) (evidence of threatening behavior leading up to assault admissible as part of chain of circumstances). The dissenting opinion in the Court of Appeals noted correctly that these chain of circumstances cases were decided prior to enactment of the Rules of Evidence. State v. Agee, 93 N.C.App. at 366, 378 S.E.2d at 544. However, admission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, has been approved in many other jurisdictions following adoption of the Rules of Evidence. United States v. Currier, 821 F.2d 52 (1st Cir.1987); United States v. Williford, 764 F.2d 1493 (11th Cir.1985); United States v. Masters, 622 F.2d 83 (4th Cir.1980); State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984); People v. Czemerynski, 786 P.2d 1100 (Colo.1990) (en banc); State v. Michlitsch, 438 N.W.2d 175 (N.D.1989); Crozier v. State, 723 P.2d 42 (Wyo.1986). This exception is known variously as the "same transaction" rule, the "complete story" exception, and the "course of conduct" exception. Crozier v. State, 723 P.2d at 49. Such evidence is admissible if it " 'forms part of the history of the event or serves to enhance the natural development of the facts.' " Id. (quoting Commonwealth v. Evans, 343 Pa.Super. 118, 132, 494 A.2d 383, 390 (1985)). We similarly hold that the "chain of circumstances" rationale established in our pre-Rules cases survives the adoption of the Rules of Evidence.

The evidence here showed that the arresting officer initially stopped defendant's vehicle because he suspected defendant was driving while intoxicated. As the officer approached defendant's vehicle, defendant made a threatening remark to him. This remark prompted the officer to call for assistance; when his backup arrived, he searched defendant's person for weapons. After finding the bag of marijuana in defendant's pocket, he proceeded to search the vehicle, culminating in discovery of the LSD. The trial court, ruling on defendant's motion in limine to exclude evidence of the marijuana possession, stated that the evidence was relevant "to just what transpired out there" on the evening of the arrest. We agree. Discovery of the marijuana on defendant's person constituted an event in the officer's narrative which led naturally to the search of defendant's vehicle and the subsequent detection of the LSD.

Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly...