State v. Shine, No. COA07-1148 (N.C. App. 5/20/2008)
| Decision Date | 20 May 2008 |
| Docket Number | No. COA07-1148,COA07-1148 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. ANTONIO LAMONT SHINE |
Richard E. Jester for defendant appellant.
Defendant appeals from a judgment entered upon his convictions for trafficking in cocaine by possession, possession with intent to sell or deliver (PWISD) cocaine, PWISD marijuana, PWISD methylenedioxymethamphetamine (MDMA), possession of drug paraphernalia, and resisting a public officer. We find no error. On 1 August 2006, North Carolina Alcohol Law Enforcement Agent Chris Kluttz stopped a sport utility vehicle (SUV) driven by defendant on Concord Mills Boulevard in Concord, North Carolina. John Thomas was seated beside defendant in the front passenger's seat; Frederick Fuller was in the rear passenger's seat. While waiting for assistance, Agent Kluttz observed defendant take an object from the center console of the SUV and "pass[] it toward the back of the vehicle." When Concord Police Officer Joel Patterson arrived at the scene, Agent Kluttz informed him "that the center console was opened and [defendant] looked like he handed something to the rear passenger." Officer Patterson approached the driver's side of the SUV to address defendant. Agent Kluttz opened the passenger's side door and noticed an odor of marijuana in the vehicle. He brought Fuller outside and frisked him for weapons. Fuller objected, saying, "[M]an, you can't search me, you can't search me." Agent Kluttz then spoke to Thomas, who admitted that he was in possession of marijuana.
Agent Kluttz searched Thomas and found a clear plastic baggy containing cocaine. Defendant rushed at Agent Kluttz and Thomas and was placed in handcuffs before fleeing on foot toward Concord Mills. While Officer Patterson chased defendant, Agent Kluttz performed a more thorough search of Fuller. During the search, a large black plastic bag fell out of Fuller's pants from his crotch area. Inside the black bag were several smaller bags containing a small quantity of marijuana, 58.3 grams of cocaine, and tablets of MDMA and methamphetamine. Fuller claimed "that the drugs didn't belong to him, that they belonged to [defendant]." Both Fuller and Thomas told Agent Kluttz that defendant had removed the black bag from the SUV's center console, handed it to Fuller, and told him to put it down his pants. A search of the SUV's interior revealed a small bag containing 0.2 grams of cocaine and a digital scale coated with cocaine in the center console. Police also found a small bag of marijuana under the front passenger's seat. Fuller testified that defendant had handed the black bag to Thomas, who then passed it to Fuller. Fuller did not know what was in the black bag, but defendant told him to "take it." Fuller stuffed the bag into his pants after being assured by defendant and Thomas that he could not be searched. Fuller was charged with trafficking in cocaine and pled guilty to PWISD cocaine in exchange for giving truthful testimony at defendant's trial.
Testifying for the defense, Thomas denied that defendant had opened the SUV's center console or that anything had been passed to Fuller from the front seat. Thomas told Agent Kluttz about the cocaine on his person, but did not know Fuller had the black bag until Fuller told Agent Kluttz that he had something on him.
On appeal, defendant asserts that the trial court erred by failing to declare a mistrial ex mero motu after ruling that Agent Kluttz had been improperly allowed to testify about defendant's possession of $7,173 in cash at the time of the vehicle stop. Over a general objection, Agent Kluttz informed the jury that Officer Patterson had delivered the cash to him after frisking defendant for weapons. Agent Kluttz also described the currency as three $100 bills, eight $50 bills, two hundred and eighty $20 bills, seventy-three $10 bills, twenty-eight $ 5 bills, and three $1 bills. During Officer Patterson's testimony, however, the court determined that his frisk of defendant exceeded the permissible scope of a pat-down search under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). The court sustained defendant's objection to any evidence arising from the frisk and offered to immediately instruct the jury to disregard Agent Kluttz's earlier testimony. Defense counsel asked the court to delay a jury instruction until the conclusion of the trial. As part of its final charge to the jury, the court instructed as follows:
Now members of the jury you will recall hearing testimony concerning a sum of $7,173 purportedly related to this investigation.... I instruct you to disregard that testimony and strike it from your minds. That testimony is to have no bearing whatsoever in your deliberations.
Although he did not object to the instruction, defendant now claims that it was insufficient to cure the jury's exposure to the subject evidence, and that the trial court should have declared a mistrial.
A trial court may declare a mistrial on its own motion pursuant to N.C. Gen. Stat. sect; 15A-1061 (2007). A mistrial should be granted "'"only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law."'" State v. Bowman, 349 N.C. 459, 472, 509 S.E.2d 428, 436 (1998) (citations omitted), cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999). "[B]ecause the trial court is in the best position to determine whether the degree of influence on the jury was irreparable," State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998), its decision not to declare a mistrial is reviewed only for manifest abuse of discretion. Bowman, 349 N.C. at 472,509 S.E.2d at 436. "Moreover, the trial court may use a curative instruction to remove possible prejudice arising from improper material put before the jury." State v. Ramirez, 156 N.C. App. 249, 253, 576 S.E.2d 714, 718, disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003). "It is well-settled that where the trial court withdraws incompetent evidence and instructs the jury not to consider that evidence, any prejudice is ordinarily cured." State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
We find no abuse of discretion by the trial court. After concluding that Officer Patterson's frisk of defendant was excessive, the court sustained defendant's objection to all evidence produced by the frisk and instructed the jury to disregard the prior testimony about the $7,173. "'Jurors are presumed to follow a trial judge's instructions.'" State v. Phillips, 171 N.C. App. 622, 629, 615 S.E.2d 382, 386 (2005) (quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)), disc. review denied and appeal dismissed, 360 N.C. 74, 622 S.E.2d 628 (2005). The court's actions were sufficient to cure any prejudice to defendant.
Defendant next claims that his appointed counsel was constitutionally ineffective in failing to move for a mistrial once the trial court had belatedly determined that Agent Kluttz's testimony about the $7,173 was improper. To state a constitutional claim, defendant must show that his counsel's performance was objectively unreasonable. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). He must also establish a reasonable probability that counsel's error adversely affected the outcome of his trial, or that it undermined the essential fairness of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). "Counsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for defendant to bear." State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002).
We do not believe that counsel's failure to request a mistrial met the constitutional standard for ineffective assistance under Strickland and Braswell. As discussed above, the court was not required to end the trial based on Agent Kluttz's testimony about the $7,173. Moreover, the court indicated its preferred remedy for this testimony—a curative instruction directing the jury to disregard it. We find no reasonable probability that a mistrial would have been declared but for counsel's failure to request it. Counsel's omission did not affect the fairness or reliability of the trial, given the court's curative instruction to the jury. Defendant's assignment of error is overruled.
Defendant also argues that he was denied his constitutional right to counsel, because the trial court failed to question him directly to determine if he was satisfied with his appointed counsel after he announced that he had hired private counsel. Having...
To continue reading
Request your trial