{ "id": 8527482, "name": "STATE OF NORTH CAROLINA v. SOLOMAN BROWN", "name_abbreviation": "State v. Brown", "decision_date": "1983-11-01", "docket_number": "No. 8221SC1226", "first_page": "637", "last_page": "649", "citations": [ { "type": "official", "cite": "64 N.C. App. 637" } ], "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": "301 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "76" } ], "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "49 L.Ed. 2d 1210", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "96 S.Ct. 3211", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "220 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "289 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566449 ], "year": 1975, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0019-01" ] }, { "cite": "277 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "166 S.E. 2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554319 ], "year": 1969, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0475-01" ] }, { "cite": "262 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "on scope of cross-examination" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548371 ], "year": 1980, "pin_cites": [ { "parenthetical": "on scope of cross-examination" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0276-01" ] }, { "cite": "186 S.E. 2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "280 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572062 ], "year": 1972, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0376-01" ] }, { "cite": "28 S.E. 721", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1897, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "43 W. Va. 769", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8639706 ], "year": 1897, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/w-va/43/0769-01" ] }, { "cite": "24 N.E. 1033", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1890, "pin_cites": [ { "page": "1034" } ], "opinion_index": 0 }, { "cite": "124 Ind. 445", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1382472 ], "year": 1890, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ind/124/0445-01" ] }, { "cite": "407 S.W. 2d 553", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10136482 ], "year": 1966, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/sw2d/407/0553-01" ] }, { "cite": "35 Mich. L. Rev. 636", "category": "journals:journal", "reporter": "Mich. L. Rev.", "weight": 2, "year": 1937, "pin_cites": [ { "page": "639" }, { "page": "639" } ], "opinion_index": 0 }, { "cite": "268 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564153 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0610-01" ] }, { "cite": "289 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566976, 8566937, 8566906, 8567010 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0155-03", "/nc/305/0155-02", "/nc/305/0155-01", "/nc/305/0155-04" ] }, { "cite": "284 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "727" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526970 ], "year": 1981, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0205-01" ] }, { "cite": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "294 S.E. 2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525315 ], "year": 1982, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0467-01" ] }, { "cite": "234 S.E. 2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "773" }, { "page": "773" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549040 ], "year": 1977, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0247-01" ] }, { "cite": "298 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571715, 8571782, 8571688, 8571752, 8571822 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0302-02", "/nc/298/0302-04", "/nc/298/0302-01", "/nc/298/0302-03", "/nc/298/0302-05" ] }, { "cite": "255 S.E. 2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551827 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0729-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "169" }, { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "272 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "146" } ], "opinion_index": 1 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "436" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "301 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "49 L.Ed. 2d 1210", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "pin_cites": [ { "parenthetical": "See also, State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983); Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972); and State v. Neely, 4 N.C. App. 475, 166 S.E. 2d 878 (1969)." } ], "opinion_index": 1 }, { "cite": "96 S.Ct. 3211", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "pin_cites": [ { "parenthetical": "See also, State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983); Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972); and State v. Neely, 4 N.C. App. 475, 166 S.E. 2d 878 (1969)." } ], "opinion_index": 1 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "pin_cites": [ { "parenthetical": "See also, State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983); Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972); and State v. Neely, 4 N.C. App. 475, 166 S.E. 2d 878 (1969)." } ], "opinion_index": 1, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "220 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "298" }, { "page": "298" } ], "opinion_index": 1 }, { "cite": "289 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566449 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "25" }, { "page": "25" } ], "opinion_index": 1, "case_paths": [ "/nc/289/0019-01" ] }, { "cite": "277 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "441" }, { "page": "441", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 1, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "166 S.E. 2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "4 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554319 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/nc-app/4/0475-01" ] }, { "cite": "186 S.E. 2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 1 }, { "cite": "280 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572062 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/nc/280/0376-01" ] } ], "analysis": { "cardinality": 1032, "char_count": 26874, "ocr_confidence": 0.815, "pagerank": { "raw": 1.4511191775056696e-07, "percentile": 0.6550619360433755 }, "sha256": "09eb5a7ecc89186052f149c1581794784dc3823858f20324f82b9f6f625fa566", "simhash": "1:b323d42b83420476", "word_count": 4423 }, "last_updated": "2023-07-14T21:03:16.623003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Johnson concurs.", "Judge BECTON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. SOLOMAN BROWN" ], "opinions": [ { "text": "BRASWELL, Judge.\nThe defendant was convicted under G.S. 90-95(a)(1) for manufacturing cocaine, a Schedule II controlled substance. The questions presented for review concern: (1) whether the evidence was sufficient to establish the possession and the manufacture of cocaine by the defendant; and (2) whether the defendant\u2019s motion for a mistrial was properly denied even though the jury was allowed to hear testimony concerning the defendant\u2019s previous drug conviction. We have carefully considered each assignment of error and conclude that there was sufficient evidence to support the conviction and that the motion for a mistrial was properly denied.\nThe evidence for the State tended to show that on 10 September 1981 Detective Jerry Pitman and three other policemen went to Apartment C on 1634 Chestnut Street with a search warrant issued for this apartment in the name of the defendant. They entered the apartment after announcing at the door that they were police officers and that they had a search warrant. Detective Pitman observed Olin Carter in the living room, Nathaniel Small behind the bar, and the defendant in an adjacent room. Detective Pitman immediately crossed the apartment into the room where the defendant was standing. As Pitman entered the room, the defendant, standing six to eight inches from a table, turned towards him.\nAccording to the testimony of Detective Pitman, the following items were on the table or in a box on the table: an open brown paper envelope which contained two plastic packages of a white powdery substance determined by toxicologist, Garland Nelson, to be cocaine; several sandwich-type baggies cut in a manner for use in the packaging and distribution of controlled substances; plastic bags which contained flakes of a green vegetable substance; wire ties used to secure the plastic bags; one roll of cellophane tape which can be used to prevent the plastic bags once filled from unrolling; three packs of rolling paper; two containers of rice and another container of a chemical used to absorb moisture in order to keep powdery controlled substances a higher quality; four sheets of aluminum foil which is commonly utilized as the packaging agent for smaller quantities of powdery controlled substances; a single edge razor blade which is used to chop the powder into a finer substance; and finally a two-inch plastic straw, tapered at one end, which is used to ingest cocaine through the nose. The entire testimony of Detective Pitman was corroborated by the other police officers called.\nThe defendant was arrested and searched. On his person there was a key to the apartment and over seventeen hundred dollars, but no controlled substances. The other two individuals present were also arrested. A pat-down search to secure the scene revealed in plain view that Small was in possession of marijuana. A routine records check of Carter revealed an outstanding warrant on him for giving worthless checks. Through the search incident to his arrest, Carter was also found in possession of marijuana.\nTestimony from the State revealed that the apartment is used as a \u201cdrink house,\u201d a place used only for parties where alcoholic beverages are served. No person actually lives there, not even the apartment lessee, Lucious Brown, the defendant\u2019s brother.\nEvidence for the defendant attempted to show that the defendant was not in control of the premises or in possession of the drugs seized. Nathaniel Small testified that the defendant was by the bar with him when the police entered and not by the table with the drugs. Lucious Brown stated that the defendant did not help pay the expenses of the apartment nor did he ever give him a key to the apartment. Finally, Jay Waller, the defendant\u2019s parole officer, was called by the defendant to establish that his residence for the past two years had not been the apartment in question. In view of the fact that Waller, on direct examination, stated that the defendant had been on parole for two years, the State, on cross-examination, asked Waller for what was the defendant on parole. Over the defendant\u2019s objection, Waller stated that he was on parole for the sale of the controlled substance heroin and two counts of possession of heroin.\nThe defendant\u2019s motion for a mistrial was denied and he was subsequently found guilty by a jury of manufacturing cocaine.\nThe defendant\u2019s first and third assignments of error question whether the evidence was sufficient to support a conviction for the manufacture of cocaine. The State standard determining whether there is sufficient evidence to support a criminal conviction requires that there must be \u201csubstantial evidence of each essential element of the offense charged.\u201d State v. Smith, 300 N.C. 71, 78, 265 S.E. 2d 164, 169 (1980). Substantial evidence has been held as \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id. at 78-79, 265 S.E. 2d at 169. The federal standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979), states that the appropriate standard of review of a claim of insufficient evidence to support a criminal conviction is whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. We must apply both standards.\nThe defendant was convicted of manufacturing a controlled substance. According to G.S. 90-87(15), the term \u201cmanufacture\u201d means \u201cthe production, preparation, propagation, compounding . . . packaging or repackaging of the substance.\u201d As the facts indicate, the applicable portion of this statute includes \u201cpackaging and repackaging.\u201d See generally, State v. Childers, 41 N.C. App. 729, 255 S.E. 2d 654, disc. rev. denied, 298 N.C. 302 (1979). There is substantial evidence that cocaine was in fact being \u201cmanufactured.\u201d Detective Pitman and the other officers found on the table in the apartment an array of items all used as a means to package and distribute cocaine, from the plastic baggies to the tinfoil, from the cellophane tape to the wire ties. We hold that a rational trier of fact had sufficient evidence to convict one of manufacturing cocaine. The question in this case then becomes who was the manufacturer, and this question can be answered by determining who was in actual or constructive possession of the cocaine and the manufacturing materials. Although the defendant was not convicted of a separate offense of possession of a controlled substance, his conviction of manufacturing cocaine necessarily depends on his possession of the controlled substance.\nThere was no evidence at trial by any of the police officers that the defendant was in physical possession of the items on the table. Basically, the testimony places the defendant inside the house and very close to the table. Detective Pitman stated that when he entered the room that the defendant was six to eight inches from the table and that the cocaine found in the brown envelope was a foot from his hand. Thus, the establishment of possession, and in turn, the basis for the manufacturing conviction, rests on his constructive possession of the cocaine and the other packaging devices.\nThe general rule states that \u201c[cjonstructive possession exists when there is no actual personal dominion over the material, but there is an intent and capability to maintain control and dominion over it.\u201d State v. Atkinson, 33 N.C. App. 247, 251, 234 S.E. 2d 770, 773 (1977). We hold that the defendant, standing in close proximity to the table and being the only person in the room, had the capability of exercising control over the cocaine. There was sufficient evidence before the jury in which the intent of the defendant could be inferred from the circumstances. Detective Pitman testified in detail that all of the items found on the table with the cocaine were in some way used to package and distribute controlled substances. In State v. Long, 58 N.C. App. 467, 475, 294 S.E. 2d 4, 10 (1982), the court added that \u201c[a]n accused has possession of narcotics within the meaning of the law when he has the power and intent to control their disposition or use or when the evidence places him in such close juxtaposition to them that a jury could conclude that they were in his possession.\u201d Surely, the evidence provided places the defendant in such a position that even though he was not physically in custody of the cocaine or the other items, a jury could conclude that he was nevertheless constructively in possession of them.\nIn State v. Harvey, 281 N.C. 1, 13, 187 S.E. 2d 706, 714 (1972), the court held that the defendant\u2019s motion to dismiss was correctly overruled when \u201cthe State\u2019s evidence placed defendant within three or four feet of the marijuana within his home. No one else was in the room. This evidence supports a reasonable inference that the marijuana was in defendant\u2019s possession.\u201d In the present case the defendant was also alone in the room and within a closer distance to the controlled substance. The fact that the defendant in our case was not the lessee of the apartment or that other persons also had access to the contraband does not exonerate the defendant because exclusive possession of the contraband on the premises where the contraband is found is not required. State v. Roseboro, 55 N.C. App. 205, 209, 284 S.E. 2d 725, 727 (1981), disc. rev. denied, 305 N.C. 155, 289 S.E. 2d 566 (1982); State v. Atkinson, supra, at 251, 234 S.E. 2d at 773. \u201c[W]here possession of the premises is nonexclusive, constructive possession of the contraband by the accused may not be inferred without other incriminating circumstances.\u201d Id. Other incriminating evidence which shows the extent of the defendant\u2019s control over the premises includes the testimony that the defendant had been under investigation for some time, that each time he was observed by the police he was seen at 1634 Chestnut Street, the apartment where the cocaine was found, and that the defendant had a key on his key ring to this apartment. Therefore, there was substantial evidence before the jury indicating the defendant\u2019s constructive possession of the cocaine and the other items used for manufacturing the controlled substance. With possession established, there was substantial evidence to justify rational triers of fact to find the defendant guilty of manufacturing cocaine beyond a reasonable doubt.\nThe defendant words his second question presented for review as follows: \u201cWhether the trial court should have granted a mistrial on the grounds that testimony was allowed before the jury by defendant\u2019s probation officer of defendant\u2019s previous conviction when defendant had not taken the stand or put his character in issue?\u201d We answer no in the context of the way the question and answer were given under the doctrine of evidence known as opening the door.\nAt trial, the defendant called Jay Waller, his parole officer, for the purpose of establishing that his address was not 1634 Chestnut Street. On direct examination, Mr. Waller stated that the defendant lived at 3901 Logan Lane, and related that \u201c[a]t the present time, I\u2019m seeing him once every three months. That\u2019s the current supervision level he\u2019s under. And he\u2019s been on parole now approximately two years. And I would, I don\u2019t know the exact number, but I have seen him several times at that address.\u201d On cross-examination the following exchange occurred.\nQ. Is he still under parole with you?\nA. Yes, sir.\nQ. What for?\n[Defense Counsel]: Objection.\nCOURT: Overruled.\n* * * *\nCOURT: I\u2019m not going to let him go into any other case except the one he\u2019s on parole for.\n* * * *\nQ. Mr. Waller, What\u2019s he on parole for?\nA. He is on parole for sale of the controlled substance heroin and two counts of possession of the controlled substance heroin.\nThe defendant asked for the answer to be stricken, then moved for a mistrial. Both motions were denied.\nAccording to G.S. 15A-1061, a mistrial should be declared \u201cupon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d Basically, the determination whether the evidence causes substantial or irreparable prejudice to the defendant\u2019s case is within the discretion of the trial judge. State v. McCraw, 300 N.C. 610, 268 S.E. 2d 173 (1980). The scope of our review therefore is limited to whether in denying the motion for a mistrial there has been an abuse of judicial discretion.\nWhen evidence which would have been excluded under one rule of admissibility is nevertheless made admissible and competent under a different and overriding rule, the rules ought first to be examined. When a defendant has neither taken the stand and testified nor independently placed his character in evidence through other witnesses, it is recognized to be prejudicial and reversible error to allow the State to introduce evidence of any prior convictions of the defendant. In that context we do not recognize it as either impeachment evidence or as being within the scope of cross-examination of other witnesses to allow knowledge of any prior criminal record to be heard. However, North Carolina has long recognized in trial practice a doctrine known as \u201copening the door.\u201d Some text writers and other jurisdictions call it \u201ccurative admissibility.\u201d 1 Wigmore, Evidence 3d, \u00a7 15, Curative Admissibility. In a note commenting upon the rules of curative admissibility, Evidence \u2014 Curative Admissibility, 35 Mich. L. Rev. 636, 639 (1937), the author defines our phrase: \u201cAnother is the familiar doctrine of \u2018opening the door\u2019; it is said that if one party without objection first introduces certain testimony the door is opened and he cannot later complain of the other party\u2019s similar evidence.\u201d The author further comments that the reason the courts do admit rebutting evidence is because \u201cthe emphasis\u201d is switched and is placed \u201con the original party\u2019s action in offering the evidence, by which he waived future objection to that class of evidence.\u201d Id. at 639. The theory, as gleaned from Kelley v. Hudson, 407 S.W. 2d 553, 556 (Mo. 1966), is that \u201c[t]he party who opens up an improper subject is held to be estopped to object to its further development [citation omitted] or to have waived his right to do so.\u201d The Indiana Supreme Court said it this way: \u201cIf a party opens the door for the admission of incompetent evidence, he is in no plight to complain that his adversary followed through the door thus opened.\u201d Perkins v. Hayward, 124 Ind. 445, 449, 24 N.E. 1033, 1034 (1890). In Iowa, the court gave as its rationale for the doctrine: \u201cThis was clearly a continuation of the subject introduced by the defendant, and objection cannot now be raised by the same party to the competency of the evidence.\u201d Artz v. The C., R.I. & P.R.R. Co., 44 Io. 284, 286 (1876). Wigmore, supra, at 309, sums up the controlling principles for having a curative admissibility doctrine, by declaring, \u201cthe emphasis is placed upon the original party\u2019s voluntary action in offering the evidence by which he virtually waived future objection to that class of facts.\u201d\nIn the case before us it was the defense counsel himself on direct examination of his own witness who elicited the testimony that the defendant was in fact on parole and that he had been on parole for two years. There was no motion by defense counsel to strike the answer as being unresponsive, or otherwise objectionable. Likewise, the defense counsel made no objection or motion to strike to the State\u2019s going into this same subject matter when the district attorney asked, \u201cIs he still under parole with you,\u201d and received a \u201cyes\u201d answer. We hold that in this context the defense counsel \u201copened the door\u201d to the facts surrounding the defendant\u2019s parole, and the State could properly pursue a subject voluntarily introduced by the defense and which subject then fell within the scope of cross-examination once the door had been opened. As said in Sisler v. Shaffer, 43 W. Va. 769, 771, 28 S.E. 721, 721 (1897), \u201c[S]trange cattle having wandered through a gap made by himself, he cannot complain.\u201d See Johnson v. Massengill, 280 N.C. 376, 383, 186 S.E. 2d 168, 174 (1972). See also State v. Parker, 45 N.C. App. 276, 262 S.E. 2d 686 (1980) (on scope of cross-examination).\nIn State v. Neely, 4 N.C. App. 475, 477, 166 S.E. 2d 878, 879 (1969), the defense counsel asked a State\u2019s witness on cross-examination if he was scared of the defendants. The witness answered, \u201cYeh. If anybody had a record like them, you\u2019d be scared of them too.\u201d The defendant\u2019s motion to strike was denied even though the defense counsel had not intended to put the defendant\u2019s character into issue and the defendant\u2019s criminal record, usually inadmissible, was before the jury. The court declared that \u201c[t]he question asked by defense counsel was calculated to elicit the very response which was given. [The witness] had a right to explain his answer and defense counsel \u2018opened the door\u2019 for such an explanation.\u201d Id. In the case at bar, the defense counsel purposely called Waller to establish the defendant\u2019s residence. This witness testified freely concerning the defendant\u2019s parole with no admonishment from defense counsel. \u201cWhere one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\u201d State v. Albert, 303 N.C. 173, 177, 277 S.E. 2d 439, 441 (1981). Once the defense witness had begun discussing the defendant\u2019s parole, the State could properly ask for what the defendant was on parole. To call the defendant\u2019s parole officer in the first place may have been ill-advised trial strategy, but the \u201c[defendant cannot now successfully contend that the trial judge committed prejudicial error because he did not, ex mero motu, object to experienced counsel\u2019s plan of trial.\u201d State v. Waddell, 289 N.C. 19, 25, 220 S.E. 2d 293, 298 (1975), modified, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed. 2d 1210 (1976). See also State v. Chatman, 308 N.C. 169, 177, 301 S.E. 2d 71, 76 (1983).\nAs in Waddell, the defense counsel, in calling Waller, invited the alleged error \u201cby eliciting evidence . . . which he might have rightfully excluded if the same evidence had been offered by the State.\u201d State v. Waddell, supra. It is important to note that the trial judge only admitted testimony concerning the conviction for which the defendant was on parole and no other evidence pertaining to his character or criminal record was allowed. Thus, the defendant was harmed only to the extent that he himself opened the door to the subject matter of his parole. Because the defendant opened the door to this particular conviction, this invited error could not be grounds for a mistrial. In any event, a motion for a mistrial will be granted when the defendant has suffered \u201csubstantial and irreparable prejudice,\u201d G.S. 15A-1061, and \u201c[a] defendant is not prejudiced ... by error resulting from his own conduct.\u201d G.S. 15A-1443(c). We hold that the trial judge did not abuse his discretion in denying the defendant\u2019s motion for a mistrial.\nIn summary, we hold that there was substantial evidence present to allow a rational trier of fact beyond a reasonable doubt to convict the defendant of manufacturing cocaine. Secondly, because the defendant opened the door to the subject of his parole, no error was committed by the admission of the answer of his being on parole for a drug conviction.\nNo error.\nJudge Johnson concurs.\nJudge BECTON dissents.", "type": "majority", "author": "BRASWELL, Judge." }, { "text": "Judge BECTON\ndissenting.\nBelieving that defendant\u2019s motion for mistrial should have been granted, I dissent.\nThe majority\u2019s reliance on the following two legal propositions to uphold the trial court\u2019s denial of defendant\u2019s motion for mistrial is misplaced: (1) \u201cDefendant cannot invalidate a trial by introducing evidence or by eliciting evidence on cross-examination which he might have rightfully excluded if the same evidence had been offered by the State.\u201d State v. Waddell, 289 N.C. 19, 25, 220 S.E. 2d 293, 298 (1975), death sentence vacated, 428 U.S. 904, 49 L.Ed. 2d 1210, 96 S.Ct. 3211 (1976) (See also, State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983); Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972); and State v. Neely, 4 N.C. App. 475, 166 S.E. 2d 878 (1969).); and (2) \u201cWhere one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\u201d State v. Albert, 303 N.C. 173, 177, 277 S.E. 2d 439, 441 (1981).\nCourts should look first to the facts of a particular case before applying broad propositions of law which themselves are exceptions to the general rule that incompetent evidence should not be placed before the jury. In this case, the prejudicial information which the defendant sought to exclude \u2014 that he was \u201con parole for the sale of the controlled substance heroin and two counts of possession of controlled substance heroin\u201d \u2014was elicited by the State, not by defense counsel. Significantly, it was defense counsel in State v. Waddell, Johnson v. Massengill, and State v. Neely, who, while cross-examining the witness, got a response which \u201che might have rightfully excluded if the same evidence had been offered by the\u201d other side. State v. Waddell, 289 N.C. at 25, 220 S.E. 2d at 298. Therefore, the North Carolina cases cited by the majority are inapposite and do not warrant application of an \u201copen door\u201d or invited error policy.\nFurther, although defense counsel, for reasons I have yet to discern, called defendant\u2019s parole officer \u201cfor the purpose of establishing that his address was not 1634 Chestnut Street,\u201d ante p. 7, no part of the parole officer\u2019s testimony needed to be explained or rebutted. What explanation or rebuttal is necessary to the parole officer\u2019s testimony that defendant lives at 3901 Logan Lane and that he, the parole officer, has seen the defendant several times at that address during the approximately two years defendant has been on parole? The State was not prejudiced by this testimony; in fact, this testimony more likely than not helped the State more than it helped defendant. This case, therefore, is distinguishable from State v. Albert and from State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980) in which the defendants\u2019 direct examination testimony gave the jury the \u201cfalse impression that the [S]tate had refused to accept his offer to submit to a polygraph examination.\u201d 301 N.C. at 436, 272 S.E. 2d at 146. As our Supreme Court said in State v. Albert:\nHere, defendant on direct examination had testified that he told the officers he would be willing to take a lie detector test. This testimony, unexplained, could well lead the jury to believe that the State had refused to give defendant such a test, or that defendant had taken the test with favorable results which the State had suppressed. Under such circumstances, the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.\n303 N.C. at 177, 277 S.E. 2d at 441 (emphasis added).\nThe circumstances in this case are clearly different from the circumstances in Small and Albert. They are also different from the circumstances facing \u201ctext writers and other jurisdictions,\u201d ante p. 9: the State\u2019s evidence in this case was not of the same \u201cclass\u201d or \u201csimilar\u201d; it was not \u201crebutting evidence\u201d; and testimony that a witness knows where defendant lives because the witness is defendant\u2019s parole officer is not \u201can improper subject.\u201d\nWas the denial of defendant\u2019s motion for a mistrial prejudicial? Yes. Significantly, no controlled substances were found on defendant\u2019s person, although drugs were found on the persons of two other people in the apartment. This case involves constructive possession of controlled substances found in an uninhabited apartment in which defendant had no possessory interest. Moreover, there was a hotly contested dispute between police officers and defendant\u2019s witness concerning how close defendant was to the table upon which the drugs had been placed. The police officers testified that defendant was standing six to eight inches from the table. Defendant\u2019s witness testified that defendant was not in the room in which the drugs were found. Thus, evidence that defendant was on parole, not for minor or non-drug-related offenses, but for sale of heroin and two counts of possession of heroin, was highly prejudicial in this controlled substance case. I, therefore, vote for a new trial.", "type": "dissent", "author": "Judge BECTON" } ], "attorneys": [ "Attorney General Edmisten by Special Deputy Attorney General David S. Crump for the State.", "Yokley and Teeter by D. Blake Yokley for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SOLOMAN BROWN\nNo. 8221SC1226\n(Filed 1 November 1983)\n1. Narcotics \u00a7 4\u2014 manufacture of cocaine \u2014sufficient evidence of defendant\u2019s guilt\nThe State\u2019s evidence was sufficient to support conviction of defendant for manufacturing cocaine where it tended to show that officers searched an apartment then occupied by defendant and two other persons; the officers found on a table in the apartment two plastic packages containing a white powdery substance determined to be cocaine and an array of items used to package and distribute cocaine, including plastic baggies cut in a certain manner, wire ties, cellophane tape, packs of rolling paper, sheets of aluminum foil, a single edge razor blade, and containers of rice and another chemical used to absorb moisture; defendant was only six to eight inches from the table when officers entered the apartment; although the apartment was leased by defendant\u2019s brother and no one actually lived there, defendant had a key to the apartment; and each time officers had observed defendant during an investigation which had lasted for some time, he was at the apartment.\n2. Criminal Law \u00a7 173\u2014 opening door to evidence\nWhen, in a prosecution for the manufacture of cocaine, defendant elicited testimony on direct examination of his parole officer that defendant had been on parole for two years and was still on parole, he \u201copened the door\u201d to the State\u2019s cross-examination of the parole officer concerning the conviction for which defendant was on parole, and the trial court properly denied defendant\u2019s motion for mistrial made when the parole officer responded that defendant was on parole for possession and sale of heroin. G.S. 15A-1061.\nJudge Becton dissenting.\nAppeal by defendant from Wood (William Z.j, Judge. Judgment entered 12 March 1982 in Superior Court, FORSYTH County. Heard in the Court of Appeals 2 September 1983.\nAttorney General Edmisten by Special Deputy Attorney General David S. Crump for the State.\nYokley and Teeter by D. Blake Yokley for defendant appellant." }, "file_name": "0637-01", "first_page_order": 669, "last_page_order": 681 }