{ "id": 4174913, "name": "STATE OF NORTH CAROLINA v. JEREMIAH BATCHELOR, III, Defendant", "name_abbreviation": "State v. Batchelor", "decision_date": "2010-03-02", "docket_number": "No. COA09-366", "first_page": "733", "last_page": "740", "citations": [ { "type": "official", "cite": "202 N.C. App. 733" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "673 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12643024, 12643025, 12643026 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/se2d/673/0872-01", "/se2d/673/0872-02", "/se2d/673/0872-03" ] }, { "cite": "651 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639592, 12639593, 12639591 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/651/0370-02", "/se2d/651/0370-03", "/se2d/651/0370-01" ] }, { "cite": "640 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637653 ], "weight": 3, "pin_cites": [ { "page": "399" }, { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0394-01" ] }, { "cite": "653 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639886, 12639887 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/653/0160-01", "/se2d/653/0160-02" ] }, { "cite": "648 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639154 ], "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0865-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "563", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "148 L. 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Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9715558, 9715496, 9715306, 9715372, 9715436, 9716238, 9716078, 9716015, 9715729, 9715667, 9715607, 9715867, 9715932, 9716157, 9715807 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1117-05", "/us/531/1117-04", "/us/531/1117-01", "/us/531/1117-02", "/us/531/1117-03", "/us/531/1117-15", "/us/531/1117-13", "/us/531/1117-12", "/us/531/1117-08", "/us/531/1117-07", "/us/531/1117-06", "/us/531/1117-10", "/us/531/1117-11", "/us/531/1117-14", "/us/531/1117-09" ] }, { "cite": "531 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "814-15", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684937 ], "year": 2000, "pin_cites": [ { "page": "307-08", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0287-01" ] }, { "cite": "579 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511136, 1511237, 1511563, 1511181, 1511416 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0694-01", "/nc/356/0694-03", "/nc/356/0694-02", "/nc/356/0694-05", "/nc/356/0694-04" ] }, { "cite": "573 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251336 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0609-01" ] }, { "cite": "675 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "87", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "87" }, { "page": "87" } ], "opinion_index": 0 }, { "cite": "648 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "361 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737379, 3737029, 3743176, 3742313, 3736175, 3735696, 3742455, 3737566 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0573-06", "/nc/361/0573-08", "/nc/361/0573-04", "/nc/361/0573-05", "/nc/361/0573-03", "/nc/361/0573-02", "/nc/361/0573-07", "/nc/361/0573-01" ] }, { "cite": "181 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374909 ], "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0491-01" ] }, { "cite": "674 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "361 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735905, 3743043, 3746508, 3743410, 3738611, 3744404, 3735988, 3737112, 3740671 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0703-04", "/nc/361/0703-05", "/nc/361/0703-03", "/nc/361/0703-06", "/nc/361/0703-07", "/nc/361/0703-09", "/nc/361/0703-01", "/nc/361/0703-02", "/nc/361/0703-08" ] }, { "cite": "185 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209910 ], "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0376-01" ] } ], "analysis": { "cardinality": 714, "char_count": 16554, "ocr_confidence": 0.743, "pagerank": { "raw": 7.265064960781891e-08, "percentile": 0.4329553576289583 }, "sha256": "d3565680912aa42f315b222b1f2fe6788cfd7ed119d65712c81e36467ceecf26", "simhash": "1:067bf06ed056114f", "word_count": 2632 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JEREMIAH BATCHELOR, III, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of possession with intent to sell and deliver cocaine and the sale of cocaine. Defendant appeals, arguing he must receive a new trial as the trial court erred in (1) admitting hearsay evidence regarding defendant being a drug dealer, (2) allowing character evidence regarding defendant being a drug dealer, and (3) allowing a tainted in-court identification of defendant. Defendant also claims ineffective assistance of counsel. For the following reasons, we find no prejudicial error.\nI. Background\nThe State\u2019s evidence tended to show that on 22 March 2007, Detective Mark Massey, formerly a narcotics investigator with the Roxboro Police Department, was observing a controlled buy involving defendant and Deputy James Shell, formerly of the Yanceyville Police Department. The controlled buy was done by getting information from an informant and \u201chav[ing] an undercover officer who goes and purchases the crack or whatever drug it be from the actual seller.\u201d Deputy Shell\u2019s informant told him he \u201crecognized someone\u201d at a car wash. The informant approached defendant\u2019s vehicle and then returned to Deputy Shell and told him they needed to come back in a minute. Deputy Shell and the informant went through the Timberland Motel parking lot and then returned to the car wash where defendant was waving at them. Deputy Shell approached defendant\u2019s vehicle and requested $50.00 worth of crack cocaine. Defendant took some crack cocaine from the driver\u2019s side floorboard and gave it to Deputy Shell in exchange for the $50.00.\nOn or about 14 November 2007, defendant was indicted for possession with intent to sell and deliver cocaine and selling and delivering cocaine. On or about 2 October 2008, the jury found defendant guilty on both charges. Defendant was sentenced to a minimum of 20 months and a maximum of 24 months imprisonment. Defendant appeals, arguing he must receive a new trial as the trial court erred in (1) admitting hearsay evidence regarding defendant being a drug dealer, (2) allowing character evidence regarding defendant being a drug dealer, and (3) allowing a tainted in-court identification of defendant. Defendant also claims ineffective assistance of counsel. For the following reasons, we find no prejudicial error.\nII. Hearsay and the Confrontation Clause\nDefendant first argues that when\nthe trial court allowed Officer Shell to testify that the informant told him to approach . . . [defendant] to make a drug buy; in the context of the other evidence offered at trial, this testimony amounted to Shell testifying that the informant said that . . . [defendant] was a drug dealer. Instead of having the informant testify, the State had the officer testify about what the anonymous informant allegedly said to him. The admission of this testimonial hearsay violated the North Carolina Rules of Evidence and . . . [defendant]\u2019s rights under the 6th Amendment to the United States Constitution.\nDefendant refers us to the following testimony by Deputy Shell:\nQ. Now, if you could, set the scene for the jury that day and kind of tell what happened leading up to your encounter?\nA. On this day I was driving my vehicle assigned to me by my department. I was riding around with an informant attempting to locate persons known to sell controlled substances.\nQ. Now, Officer, tell me exactly how you proceeded that day.\nA. Um, after we done our preliminary interdiction with the informant, decided the location that we was going to attempt to target and then assigned which officer was going to be in which vehicle and how to proceed, I left our meeting location with the informant. I rode around checking the locations that we had discussed, one being the Colony car wash. As we was passing by the Colony car wash, my informant advised\u2014\nMR. BRADSHER: Objection.\nTHE COURT: Overruled. Go ahead.\nA. The informant stated, um, they recognized someone there at the car wash. I pulled into the car wash. My informant got out and spoke with the [defendant] for a minute or so, come back to the vehicle. They said that we would need to come back in a minute.\nQ. And then you were asked to fill out an after action report?\nA. Yes.\nQ. And you put a name in the after action report, didn\u2019t you?\nA. Yes.\nQ. Somebody gave you that name, didn\u2019t they?\nA. Yes.\nQ. Who was that person?\nA. The informant.\nQ. And you had no way of knowing at that point whether that was true or not?\nA. I did not, but the surveilling officer was familiar with him.\nEven assuming arguendo defendant properly preserved the confrontation and hearsay issues for appeal and should receive de novo review as he argues, the statements were not hearsay and did not violate the Confrontation Clause because they were not offered for their truth: that defendant was a drug dealer. See N.C. Gen. Stat. \u00a7 8C-1, Rule 801; State v. Wiggins, 185 N.C. App. 376, 384, 648 S.E.2d 865, 871 (citation omitted), disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007),-N.C.-, 674 S.E.2d 421 (2009). Hearsay statements may violate the Sixth Amendment right to confrontation if offered for their truth. See Wiggins at 376, 384 S.E.2d at 871. In State v. Leyva, the\n[defendant argues that the admission of Detective Whitzel\u2019s testimony about the information given to Detective Almond by the confidential informant violated [the] defendant\u2019s Sixth Amendment rights and constitutes plain error. . . . However, [the] defendant incorrectly categorizes the evidence as testimonial. Here, the evidence was introduced to explain the officers\u2019 presence at Salsa\u2019s Restaurant that night, not for the truth of the matter asserted. . . .\nA later witness, Detective Briggs, testified that he participated in the surveillance of defendant\u2019s apartment at the request of Detective Almond, which request was founded on information provided by the confidential informant. When asked to explain why he was outside defendant\u2019s home, Detective Briggs responded that, \u2018On that day, I was given information by Detective Almond that this subject was going to deliver a half kilo to Detective Little and a confidential informant.\u2019 Defendant did not object to this testimony during the trial, and so must prove the admission of Briggs\u2019 testimony was plain error. However, analysis of the plain error argument is again unnecessary because, as with the previous statement, this testimony was introduced to explain Detective Briggs\u2019 presence outside of defendant\u2019s apartment rather than the truth of the matter asserted.\n[The] [defendant also asserts that these two statements violated Rule 802 of the North Carolina Rules of Evidence because they are inadmissible hearsay. As previously articulated, the statements were admissible to explain the presence of the detectives, rather than to prove that defendant sought to sell cocaine.\nId. 181 N.C. App. 491, 500, 640 S.E.2d 394, 399 (citation, quotation marks, brackets, and ellipses omitted), disc. review denied and appeal dismissed, 361 N.C. 573, 651 S.E.2d 370 (2007), disc. review dismissed,-N.C.-, 673 S.E.2d 872 (2009); see Wiggins at 383-85, 648 S.E.2d 870-72.\nJust as the law enforcement officer\u2019s testimony in Leyva was offered to show why the officer went to a particular location, Deputy Shell\u2019s quoted testimony in the first two statements regarding the informant was offered to explain his presence at Colony car wash rather than to prove that defendant was a known drug dealer, see Leyva at 500, 640 S.E.2d at 399. Furthermore, Deputy Shell\u2019s last contested statement, regarding what he wrote on the after-action report only, explains why Deputy Shell wrote down what he did and cannot be read to assert that the defendant is a known drug dealer. All of Deputy Shell\u2019s contested statements explain why Deputy Shell was doing what he did; the statements were not inadmissible hearsay nor was the Confrontation Clause of the Sixth Amendment violated. See id. Accordingly, this argument is overruled.\nIII. Character Evidence\nDefendant next contends that \u201cDetective Massey testified that.. . [defendant] was a \u2018known drug dealer.\u2019... This inadmissible and highly prejudicial character evidence violates Rule 404(a) of the North Carolina Rules of Evidence and requires that . . . [defendant] receive a new trial.\u201d In describing what took place after the controlled buy Detective Massey testified, \u201cDo a little debrief. The discussion probably goes by A, what happened, how much did you get, and we talked about who it was. I mean, like I said, we know him personally. Like I say, small town. We know him personally as a drug dealer.\u201d\nDefendant concedes that \u201c[e]vidence admitted in the absence of an objection is reviewed for plain error],]\u201d and thus we review for plain error which \u201carises when the error is so basic, so prejudicial, so lacking in its elements that justice cannot have been done. Defendant, therefore, must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Wells, - N.C. App.-,-, 675 S.E.2d 85, 87 (2009) (citations, quotation marks, and brackets omitted).\n\u201cEvidence of a person\u2019s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion].]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(a). However, even assuming arguendo that the trial court erred in allowing Detective Massey to testify that defendant was a \u201cknown drug dealer],]\u201d defendant has failed to show any prejudice, much less \u201cthat absent the error, the jury probably would have reached a different result.\u201d Wells at-, 675 S.E.2d at 87. Defendant directs our attention to State v. Yancey, where this Court determined that a \u201ccharacterization of defendant as an \u2018asset\u2019 was tantamount to identifying defendant as a drug dealer,\u201d and therefore defendant was granted a new trial. 155 N.C. App. 609, 611, 573 S.E.2d 243, 245 (2002), disc. review denied, 356 N.C. 694, 579 S.E.2d 99 (2003). However, in Yancey there was no other evidence that the defendant sold drugs; this Court noted that \u201cthe evidence against defendant tends to show that defendant was a drug user, [but] none of the evidence conclusively establishes that defendant trafficked in drugs, much less trafficked or conspired to traffic the drugs seized].]\u201d Id. at 612, 573 S.E.2d at 245. However, in this case, defendant actually sold crack cocaine to Deputy Shell. We therefore do not find Yancey to be controlling. See id., 155 N.C. App. 609, 573 S.E.2d 243. Although the trial court may have erred by allowing Detective Massey to testify that defendant was a \u201cknown drug dealer],]\u201d defendant has not demonstrated that this was plain error; he was not prejudiced by this error, considering the other evidence against him. This argument is overruled.\nIV. In-Court Identification\nDefendant next contends that \u201cthe trial court committed plain error in allowing Officer Shell\u2019s in-court identification of . . . [defendant], as it was tainted by and not independent of the impermissibly suggestive and unreliable pre-trial identification procedure.\u201d (Original in all caps). Defendant concedes that he failed to object at trial and requests that we review this argument for plain error. However, defendant has again failed to show prejudice as required for plain error. See Wells at-, 675 S.E.2d at 87. Here, Detective Massey and Detective Hughes both identified defendant as the individual in the car from whom Deputy Shell testified he received crack cocaine. These eyewitness identifications alone are enough to conclude that the jury probably would have reached the same result. See id. This argument is overruled.\nV. Ineffective Assistance of Counsel\nLastly, defendant contends that he received ineffective assistance of counsel for his attorney\u2019s failure to: (1) \u201cfile any pre-trial motions in limine[,]\u201d (2) \u201cobject to the prosecuting witness\u2019s pre-trial photo identification and in-court identification of . . . [defendant,]\u201d (3) \u201cobject to highly prejudicial evidence concerning . . . [defendant]\u2019s past involvement with the police and the officer\u2019s belief that . . . [defendant] is a known drug-dealer[,]\u201d (4) \u201crequest limiting jury instructions following the admission of character evidence under Rule 404(a) [,]\u201d and (5) \u201chave jury selection, opening statements, and closing arguments recorded.\u201d\nTo successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel\u2019s performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.\nState v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000) (citations omitted), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). However,\n[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings. This determination must be based on the totality of the evidence before the finder of fact.\nState v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citations omitted).\nDefendant has not demonstrated that despite his counsel\u2019s alleged \u201cerrors, there would have been a different result in the proceedings.\u201d Id. As to defendant\u2019s five issues with his counsel: (1) Defendant has failed to specify on what basis his trial counsel should have made a motion in limine and how this would have changed his case. (2) We have already concluded that any tainted in-court identification did not prejudice defendant\u2019s case as two other law enforcement officials also testified as to defendant\u2019s identification. (3-4) Again, we have already concluded that any statements as to defendant being a \u201cknown drug dealer\u201d were not prejudicial in light of eyewitness testimony to the sale of drugs. (5) Defendant has failed to show or even forecast how a recorded jury selection, opening statement, or closing statement would in any way change his case. As we do not conclude that \u201cthere is a reasonable probability that, but for counsel\u2019s [alleged] errors, there would have been a different result in the proceedings[,] id., we overrule defendant\u2019s argument.\nVI. Conclusion\nFor the foregoing reasons, we conclude that defendant received a fair trial free from prejudicial error.\nNO PREJUDICIAL ERROR.\nJudges GEER and ERVIN concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General James M. Stanley, Jr., for the State.", "S. Hannah Demeritt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEREMIAH BATCHELOR, III, Defendant\nNo. COA09-366\n(Filed 2 March 2010)\n1. Evidence\u2014 hearsay \u2014 right to confrontation \u2014 no error\nThe trial court did not err in allowing into evidence a police officer\u2019s testimony that an informant told the officer to approach defendant to make a drug buy because the officer\u2019s testimony was not offered for the truth of the matter asserted: that defendant was a drug dealer. The testimony was not inadmissible hearsay and did not violate defendant\u2019s Sixth Amendment right to confrontation.\n2. Evidence\u2014 character evidence \u2014 plain error \u2014 failure to show prejudice\nThe trial court did not commit plain error in allowing a police detective to testify that defendant was a \u201cknown drug dealer[.]\u201d Even assuming arguendo that the testimony was inadmissible character evidence under N.C.G.S. \u00a7 8C-1, Rule 404(a), defendant failed to show \u201cthat absent the error, the jury probably would have reached a different result.\u201d\n3. Identification of Defendants\u2014 in-court \u2014 failure to show prejudice\nThe trial court did not commit plain error by allowing a police officer\u2019s in-court identification of defendant where two other police detectives identified defendant as the individual from whom the police officer received crack cocaine.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to show prejudice\nDefendant\u2019s argument that he did not receive effective assistance of counsel was overruled as defendant failed to demonstrate that, but for his counsel\u2019s alleged errors, there was a reasonable probability that there would have been a different result in the proceedings.\nAppeal by defendant from judgment entered on or about 2 October 2008 by Judge Ronald L. Stephens in Superior Court, Person County. Heard in the Court of Appeals 16 September 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General James M. Stanley, Jr., for the State.\nS. Hannah Demeritt, for defendant-appellant." }, "file_name": "0733-01", "first_page_order": 761, "last_page_order": 768 }