State v. Shields

300 S.E.2d 884, 61 N.C. App. 462, 1983 N.C. App. LEXIS 2697
CourtCourt of Appeals of North Carolina
DecidedApril 5, 1983
DocketNo. 8217SC886
StatusPublished
Cited by5 cases

This text of 300 S.E.2d 884 (State v. Shields) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shields, 300 S.E.2d 884, 61 N.C. App. 462, 1983 N.C. App. LEXIS 2697 (N.C. Ct. App. 1983).

Opinion

WELLS, Judge.

Before trial, defense counsel moved to disallow any testimony concerning an alleged sale of marijuana by defendant to Officer Page on 25 June 1981. The trial court delayed ruling on the motion until such evidence was brought out at trial. On rebuttal, the trial court allowed Officer Page to testify that he bought marijuana from defendant on this earlier date. Defendant now contends that the introduction of this testimony prejudiced him, since he was tried only on the possession and sale of marijuana on 1 July 1981.

[464]*464In drug cases, evidence of other drug violations is relevant and admissible if it tends to show modus operandi, guilty knowledge of identity. State v. Jones, 47 N.C. App. 554, 268 S.E. 2d 6 (1980); 1 Brandis on North Carolina Evidence § 92 (1982). The trial court in the case before us instructed the jury that they could consider evidence of the prior sale to Officer Page “solely for the purpose of showing the identity of the person who allegedly committed the crime . . . .” The evidence of this prior sale was relevant for the purpose indicated. When evidence is competent for one purpose but incompetent for another, it is admissible and the party it is offered against is entitled, upon request, to a limiting instruction. State v. Bryant, 282 N.C. 92, 191 S.E. 2d 745 (1972), cert. denied sub nom. White v. North Carolina, 410 U.S. 958, 93 S.Ct. 1432, 35 L.Ed. 2d 691 (1973). The law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence. Id. This assignment of error is overruled.

At trial, the court also allowed Officer Page, over defendant’s objection, to testify that when he saw defendant on 25 June 1981 an informant identified defendant as Mike Shields. When the same evidence was elicited on rebuttal, the trial court instructed the jury: “[Y]ou may not consider any identity of some person outside of the court as evidence as to who the person was but only as it may assist you in determining the witness’s state of mind at the time that he may have allegedly discussed any matter with the defendant.”

Defendant argues that the trial court erred in allowing this evidence, because it deprived him of his Sixth Amendment right to cross-examine the witnesses against him. Defendant further argues that the evidence was inadmissible hearsay. We find no merit to these arguments.

The record on appeal shows that Officer Page personally saw and observed defendant on both 25 June and 1 July 1981. Page testified that on 1 July 1981 he was in defendant’s presence and conversed with him for approximately 30 minutes. During this meeting he stood within three feet of defendant. His in-court identification of defendant as the person who sold him marijuana on 1 July 1981 was therefore based on these personal observations and not upon information received from any informant. Furthermore, [465]*465the court properly instructed the jury to consider Officer Page’s testimony only in determining his state of mind when the alleged sale of marijuana occurred on 25 June 1981. The court specifically instructed the jury not to consider this testimony as evidence of defendant’s identity. Evidence of the assertion of any person, other than the witness himself, is not hearsay unless such evidence is offered to prove the truth of the matter asserted. 1 Brandis § 138 (1982). Here the testimony was offered solely to show Officer Page’s belief that he was dealing with “Mike Shields” on 25 June 1981.

In defendant’s fourth assignment of error, he contends that the trial court erroneously refused to reveal the identity of the confidential informant. Under this assignment of error, defendant excepted to the court’s refusal to allow the following cross-examination of Officer Page:

Q. Robert Garner, that is your informer isn’t it?
MR. HAMPTON: Objection.
COURT: Sustained.
Q. And he (Garner) is the one that set up the buy for you wasn’t he?
Mr. Hampton: Objection.
COURT: Sustained.
Q. How long have you known Robert Garner?
MR. HAMPTON: Objection to this line of questions, Your Honor.
COURT: Sustained.
Q. Do you know where Robert Garner is too—
Mr. HAMPTON: Objection.
COURT: Sustained.

Defendant argues in his brief that the court’s refusal to disclose the name of the informant denied him due process of law.

[466]*466The United States Supreme Court has set out the following guidelines to determine whether the identity of an informant should be disclosed:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Roviaro v. United States, 353 U.S. 53, 62, 1 L.Ed. 2d 639, 646, 77 S.Ct. 623, 628-29 (1957). The North Carolina Supreme Court has emphasized that before this determination is made, “a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandates such disclosure.” State v. Watson, 303 N.C. 533, 537, 279 S.E. 2d 580, 582 (1981) (citing cases). In Watson, the trial court sustained the district attorney’s objections to defense counsel’s questions concerning the identity of the confidential informant. The Supreme Court upheld this ruling and noted that “defendant made no showing before the court at the time of the questions concerning the informant as to his particular need for knowing the identity of the source.” Id. at 537, 279 S.E. 2d at 583. In the case sub judice, the record on appeal shows that at no time before or during the trial did the defendant apprise the court of any reason why the informant should have been identified. In his brief defendant has shown no reason why he needed to know the informant’s identity. During the trial defense counsel asked Officer Page if Garner was present during both of the alleged sales. Page answered that he was. Page further indicated that an “unknown subject” was also present at the second sale. Defendant, however, never asked Officer Page if the informant was present on 1 July 1981. Furthermore, even though defendant knew Garner’s name at trial and obviously believed he was the informant, there is no evidence that defendant ever subpoenaed him or sought to discover his name prior to trial. Under these circumstances, defendant was not entitled to the informant’s name.

[467]*467Defendant next argues that the trial court erroneously allowed into evidence the bag of marijuana which was allegedly sold to Officer Page on 1 July 1981.

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Bluebook (online)
300 S.E.2d 884, 61 N.C. App. 462, 1983 N.C. App. LEXIS 2697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shields-ncctapp-1983.