State v. Harper

• Decision Date: 17 October 1989
• Docket Number: No. 885SC896,885SC896
• Citation: 384 S.E.2d 297,96 N.C.App. 36
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James HARPER.

Page 297

384 S.E.2d 297

96 N.C.App. 36

STATE of North Carolina v. James HARPER.

No. 885SC896.

Court of Appeals of North Carolina.

Oct. 17, 1989.

Attorney General Lacy H. Thornburg by Associate Atty. Gen. Jane T. Friedensen, Raleigh, for the State.

J.H. Corpening, II, Wilmington, for defendant-appellant.

BECTON, Judge.

The defendant, James Harper, was convicted of possession with intent to sell and deliver marijuana and sale and delivery of marijuana. Harper contends on appeal that the trial judge erred by: (1) admitting in evidence the undercover officer's written summaries of the two drug transactions with Harper since the summaries contained inadmissible hearsay; (2) permitting testimony regarding the presence of certain spectators in the courtroom; (3) failing to admit a proffered exhibit in evidence; (4) failing to repeat certain instructions in response to a question from the jury; (5) permitting testimony at the sentencing hearing that "the green house" (the boarding house where Harper lived and worked) was reputed to be a place where drugs were readily available; and (6) sentencing Harper to two consecutive five-year prison terms, the maximum penalty allowable for Harper's offenses. We affirm the judgment below.

I

Harper contends that the judge committed prejudicial error by admitting in evidence State's Exhibits 4 and 8, the undercover officer's written notes summarizing the alleged drug transactions with Harper. Harper contends that the summaries included statements of third persons who did not testify at trial and thus contained inadmissible double hearsay. He further argues that the summaries themselves were inadmissible hearsay.

The notes related the events surrounding two drug sales which took place on the afternoons of 13 June and 27 June 1987, outside a house on Harnett Street in Wilmington known as "the green house." The summaries included statements made by "Pee Wee," "Pee Wee's mother," "an unknown voice," "an unknown black female," "the lady on the porch," and "an unknown black male" (later identified as Harper). The summaries described these individuals guiding the undercover officer into the house, and then outside to a clump of bushes where Harper sold him the marijuana. With the exception of Harper and the unknown female "complaining about having to stand out there holding the drugs, and the possibility of the law busting them," the substance of the third parties' statements recorded in the notes was limited to telling the officer to wait, to go ahead, and where to go. At trial, the officer testified to essentially the same facts.

As an initial matter, we conclude that there was no hearsay-within-hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer's conduct. See State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979) (statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made). Out-of-court statements offered for any purpose other than to prove the truth of the matter asserted are not objectionable as hearsay. See id.; State v. Wilson, 322 N.C. 117, 137, 367 S.E.2d 589, 601 (1988); N.C.Gen.Stat. Sec. 8C-1, R.Evid. 801(c) (1988). See also Brandis, 1 Brandis on North Carolina Evidence Sec. 141 (3d ed.1988).

We agree with Harper's next argument that the summaries themselves were hearsay and therefore were inadmissible as substantive evidence. Rule 803(8) of the North Carolina Rules of Evidence excepts public records and reports from the hearsay rule. See N.C.Gen.Stat. Sec. 8C-1, R.Evid. 803(8) (1988). Among the public records outside the hearsay rule are those "setting forth ... matters observed pursuant to duty imposed by law as to which there was a duty to report...." Sec. 8C-1, R.Evid. 803(8)(B). However, "in criminal cases[,] matters observed by police officers and other law-enforcement personnel" are explicitly excluded from the Rule's broad sweep. Id.; see State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988).

The rationale behind the exclusion of police reports is to prevent "prosecutors [from] attempting to prove their cases in chief simply by putting into evidence police officers' reports of their contemporaneous observations of crime." United States v. Grady, 544 F.2d 598, 604 (2d Cir.1976); see also State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984). The underlying theory is that "observations by police officers at the scene of the crime ... [may not be] as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases." Weinstein & Berger, 4 Weinstein's Evidence Sec. 803(8) (1988) (quoting Senate Comm. on the Judiciary, 93d Cong., 2d Sess. (1974)). This exclusion is in general accord with cases decided prior to the adoption of the rules of evidence. See, e.g., State v. Jackson, 287 N.C. 470, 482, 215 S.E.2d 123, 130 (1975) (search warrant and supporting affidavit inadmissible hearsay; admission deprived criminal defendant of right of confrontation and cross-examination, and permitted State to strengthen its case with incompetent evidence; officer did not testify); State v. Spillars, 280 N.C 341, 352, 185 S.E.2d 881, 888 (1972) (same). Cf. United States v. Coleman, 631 F.2d 908, 912 (D.C.Cir.1980) (recognizing distinction between records containing a summary of the government's case against a criminal defendant and other police records such as those needed to establish chain of custody).

Although we conclude that the summaries were inadmissible as substantive evidence, this does not mean that Harper was so prejudiced by that evidence that he is entitled to a new trial. See State v. Locklear, 322 N.C. 349, 360, 368 S.E.2d 377, 384 (1988). This was a direct sales case. The undercover officer testified that Harper was the man he saw at the green house and from whom he purchased marijuana on two occasions, during daylight hours. Given this direct evidence, we cannot say that a reasonable possibility exists that a different result would have obtained had the summaries not been admitted. See N.C.Gen.Stat. Sec. 15A-1443(a) (1988); State v. Galloway, 304 N.C. 485, 496, 284 S.E.2d 509, 516 (1981).

For the reasons stated, we overrule this assignment of error.

II

Harper contends that the trial judge erred in failing to admit in evidence Defendant's Exhibit 1, the record from a case against another resident of the boarding house, showing that the State took a voluntary dismissal of the charges against her. This contention is without merit. The fact that the State took a voluntary dismissal in a separate case was irrelevant in the action against Harper. Irrelevant evidence is inadmissible. N.C.Gen.Stat. 8C-1, R.Evid. 402 (1988).

III

Harper next asserts that the judge erred in permitting testimony regarding the presence in the courtroom of two of the women from the green house. The undercover officer had already identified the women when he testified about the series of events at the green house, and, in response to questions by the district attorney, he testified that he did not notify the women to appear at trial and did not know they would be there. Harper did not object to this testimony. The district attorney later asked a detective who worked on the case if he had asked the women to appear in court, and he said no. Harper's relevancy objection was overruled. When Harper took the stand, he testified that he did not ask the women to be there but that "[t]hey came for the goodness of them."

Harper now argues that the questions elicited irrelevant testimony and "called on the jury to engage in suspicion and conjecture as to why [the women] were present." We agree. This evidence was irrelevant because "it did not have 'any tendency to make the existence of any fact ... of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " State v. Brown, 319 N.C. 361, 366, 354 S.E.2d 225, 227 (1987) (quoting Sec. 8C-1, R.Evid. 401). However, admission of irrelevant evidence will be treated as harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded. See State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987); Sec. 15A-1443(a). In light of the direct evidence against him, Harper has failed to show that there was a reasonable possibility that the outcome of the trial would have been different without the error.

IV

Harper asserts that the judge erred in refusing to repeat certain instructions in response to a question raised by the jury during deliberations. The jury asked this question: "The defendant's attorney brought up the fact that the defendant has a scar on his face in his closing argument. Can this be considered in as much as it was not presented in evidence during the trial?" The trial judge then instructed the jury, in essence, that arguments of counsel were not to be considered as evidence, but that jurors could consider anything they observed in the courtroom during the course of the trial. Harper does not argue that these instructions were erroneous; instead he contends that the judge should have repeated instructions given to the jury in the original charge regarding (1) the burden of proof in general and (2) the State's burden of proving the identity of the defendant as the perpetrator of the crime.

N.C.Gen.Stat. Sec. 15A-1234(a)(1) (1988) permits the trial judge to give additional instructions in response to a question by the jury after deliberations have begun. If additional instructions are given, the judge "may also ... repeat other instructions to avoid giving undue prominence to the additional instructions." Sec. 15A-1234(b) (emphasis added). The trial judge is not required to repeat instructions...