{ "id": 8520052, "name": "STATE OF NORTH CAROLINA v. JAMES HARPER", "name_abbreviation": "State v. Harper", "decision_date": "1989-10-17", "docket_number": "No. 885SC896", "first_page": "36", "last_page": "45", "citations": [ { "type": "official", "cite": "96 N.C. App. 36" } ], "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": "333 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "314 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693853 ], "year": 1985, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0401-01" ] }, { "cite": "276 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644255 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0344-01" ] }, { "cite": "324 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "837", "parenthetical": "punishment within statutory maximum not cruel and unusual unless punishment provisions in the statute itself are unconstitutional" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "year": 1985, "pin_cites": [ { "page": "763", "parenthetical": "punishment within statutory maximum not cruel and unusual unless punishment provisions in the statute itself are unconstitutional" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "697-98" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "597-98" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "309 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "441" }, { "page": "441" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "309 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767890 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "786" }, { "page": "786-87" }, { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0780-01" ] }, { "cite": "333 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "314 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686499 ], "year": 1985, "pin_cites": [ { "page": "322-23" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0319-01" ] }, { "cite": "364 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "321 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566165 ], "year": 1988, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0520-01" ] }, { "cite": "355 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "319 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738669 ], "year": 1987, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0444-01" ] }, { "cite": "345 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "169" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748722 ], "year": 1987, "pin_cites": [ { "page": "366", "parenthetical": "quoting Sec. 8C-1, R. Evid. 401" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0361-01" ] }, { "cite": "284 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "304 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569232 ], "year": 1981, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0485-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "631 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3509153, 10593411 ], "year": 1980, "pin_cites": [ { "page": "912", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/203/0326-01", "/f2d/631/0908-01" ] }, { "cite": "185 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "888", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "280 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571955 ], "year": 1972, "pin_cites": [ { "page": "352", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0341-01" ] }, { "cite": "215 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "130", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "287 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563955 ], "year": 1975, "pin_cites": [ { "page": "482", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0470-01" ] }, { "cite": "323 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755385 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0361-01" ] }, { "cite": "544 F.2d 598", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1020815 ], "year": 1976, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/f2d/544/0598-01" ] }, { "cite": "364 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "321 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570243 ], "year": 1988, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0454-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "259 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "286", "parenthetical": "statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made" } ], "opinion_index": 0 }, { "cite": "298 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572652 ], "year": 1979, "pin_cites": [ { "page": "437", "parenthetical": "statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0430-01" ] }, { "cite": "317 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776805 ], "year": 1986, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0148-01" ] }, { "cite": "357 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "year": 1987, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0064-01" ] }, { "cite": "354 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "227", "parenthetical": "quoting Sec. 8C-1, R. Evid. 401" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 870, "char_count": 20614, "ocr_confidence": 0.741, "pagerank": { "raw": 1.6852828944987352e-07, "percentile": 0.6981966902317471 }, "sha256": "d282afdfbb504fda48b077ea79607c6efca4a4379154bfb4f05195e181e151c6", "simhash": "1:073967420a29684a", "word_count": 3328 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and Orr concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES HARPER" ], "opinions": [ { "text": "BECTON, Judge.\nThe 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\u2019s 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 \u201cthe green house\u201d (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\u2019s offenses. We affirm the judgment below.\nI\nHarper contends that the judge committed prejudicial error by admitting in evidence State\u2019s Exhibits 4 and 8, the undercover officer\u2019s 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.\nThe 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 \u201cthe green house.\u201d The summaries included statements made by \u201cPee Wee,\u201d \u201cPee Wee\u2019s mother,\u201d \u201can unknown voice,\u201d \u201can unknown black female,\u201d \u201cthe lady on the porch,\u201d and \u201can unknown black male\u201d (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 \u201ccomplaining about having to stand out there holding the drugs, and the possibility of the law busting them,\u201d the substance of the third parties\u2019 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.\nAs 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\u2019s 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).\nWe agree with Harper\u2019s 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 \u201csetting forth . . . matters observed pursuant to duty imposed by law as to which there was a duty to report. . . .\u201d Sec. 8C-1, R. Evid. 803(8)(B). However, \u201cin criminal cases[,] matters observed by police officers and other law-enforcement personnel\u201d are explicitly excluded from the Rule\u2019s broad sweep. Id.; see State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988).\nThe rationale behind the exclusion of police reports is to prevent \u201cprosecutors [from] attempting to prove their cases in chief simply by putting into evidence police officers\u2019 reports of their contemporaneous observations of crime.\u201d 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 \u201cobservations 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.\u201d Weinstein & Berger, 4 Weinstein\u2019s Evidence Sec. 803(8)[01] (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\u2019s case against a criminal defendant and other police records such as those needed to establish chain of custody).\nAlthough 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).\nFor the reasons stated, we overrule this assignment of error.\nII\nHarper contends that the trial judge erred in failing to admit in evidence Defendant\u2019s 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).\nIll\nHarper 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\u2019s relevancy objection was overruled. When Harper took the stand, he testified that he did not ask the women to be there but that \u201c[t]hey came for the goodness of them.\u201d\nHarper now argues that the questions elicited irrelevant testimony and \u201ccalled on the jury to engage in suspicion and conjecture as to why [the women] were present.\u201d We agree. This evidence was irrelevant because \u201cit did not have \u2018any 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.\u2019 \u201d 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.\nIV\nHarper 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: \u201cThe defendant\u2019s 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?\u201d 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\u2019s burden of proving the identity of the defendant as the perpetrator of the crime.\nN.C. Gen. Stat. Sec. 15A-1234(a)(l) (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 \u201cmay also . . . repeat other instructions to avoid giving undue prominence to the additional instructions.\u201d Sec. 15A-1234(b) (emphasis added). The trial judge is not required to repeat instructions correctly given during the original charge, but may do so in his discretion. See State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986). The judge is in the best position to determine whether instructions should be repeated, and, in the absence of error in the original charge, \u201c \u2018needless repetition is undesirable and has been held erroneous on occasion.\u2019 \u201d Id. (citation omitted). Here, it did not appear from the jurors\u2019 question that they were confused about the burden of proof. Nor were the additional instructions of a nature to give undue emphasis to the State\u2019s case. Accordingly, we hold that the judge did not abuse his discretion in denying Harper\u2019s request to repeat the instructions.\nV\nHarper challenges the judge\u2019s ruling sentencing him to two consecutive five-year prison terms.\nA\nAt the sentencing hearing, the judge found only one aggravating factor, prior conviction of a crime punishable by more than 60 days\u2019 confinement. Finding no factors in mitigation, the judge concluded that the aggravating factors outweighed the mitigating factors, and imposed the maximum five-year sentence for both of the crimes charged. The judge then ordered that the sentences run consecutively.\nHarper argues that his single prior conviction was for a relatively minor crime (misdemeanor assault with a deadly weapon) and, therefore, that the judge abused his discretion in finding it as an aggravating factor. We reject this contention. With minor exceptions not relevant here, the legislature has determined that conviction of any criminal offense punishable by more than 60 days\u2019 confinement is an aggravating factor. See N.C. Gen. Stat. Sec. 15A-1340.4(a)(l)(o) (1988). We cannot substitute our judgment for the legislature\u2019s by holding that the offense Harper was convicted of was so inconsequential that it should not have been found to be an aggravating factor. See State v. Parker, 319 N.C. 444, 448, 355 S.E.2d 489, 491 (1987).\nHarper also contends that the judge erred in finding no factors in mitigation. Harper asserts that the judge should have found the following to be nonstatutory mitigating factors: (1) Harper\u2019s age (43 years) at the time of the offense; (2) Harper\u2019s status as a lifelong resident of Wilmington with only one minor conviction; and (3) the small amount of marijuana involved in the drug sales. We disagree. The consideration of nonstatutory mitigating factors is- within the trial judge\u2019s discretion. State v. Canty, 321 N.C. 520, 524, 364 S.E.2d 410, 413 (1988). The judge\u2019s failure to find non-statutory mitigating factors, even when supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent a showing of an abuse of that discretion. See State v. Spears, 314 N.C. 319, 322-23, 333 S.E.2d 242, 244 (1985).\nB\nHarper next argues that the cumulative effect of the consecutive sentences is disproportionate to his crimes, and as such, that his sentence violates the Eighth Amendment prohibition of cruel and unusual punishment. See, e.g., State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). We are compelled to disagree, however, because the decision whether to impose consecutive sentences was discretionary with the trial judge, and we cannot say that here it could not have been the result of a reasoned decision. See N.C. Gen. Stat. Sec. 15A-1354(a) (1988).\nA defendant may be sentenced for each specific criminal act he commits, and consecutive sentences do not represent an unusual punishment in North Carolina. Ysaguire, 309 N.C. at 786-87, 309 S.E.2d at 441. Here, there was no error in the findings of aggravation and mitigation, and each sentence imposed was within the statutory maximum. See State v. Ahearn, 307 N.C. 584, 597-98, 300 S.E.2d 689, 697-98 (1983); see also State v. Higginbottom, 312 N.C. 760, 763, 324 S.E.2d 834, 837 (1985) (punishment within statutory maximum not cruel and unusual unless punishment provisions in the statute itself are unconstitutional). This case is not, as Harper contends, an \u201cexceedingly unusual non-capital case\u201d in which the sentence imposed was so grossly disproportionate to the crime charged that it violates the constitutional proscription of cruel and unusual punishment. See Ysaguire, 309 N.C. at 786, 309 S.E.2d at 441. This assignment of error is overruled.\nc\nHarper last contends that the trial judge erred in permitting the district attorney to express at the sentencing hearing his opinion regarding the reputation of the green house as a place where drugs were available, and to refer to a passage from State v. Lee, 51 N.C. App. 344, 276 S.E.2d 501 (1981), discussing generally the reputation of the same \u201cgreen house\u201d involved here. We agree. \u201c[I]n a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay.\u201d State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985). However, the judge stated that he would not charge the reputation of the green house to Harper, and nothing in the record suggests that he did. As discussed above, Harper\u2019s sentence was within the maximum prescribed for his offenses and was sufficiently supported by the finding of one factor in aggravation and no factors in mitigation.\nVI\nWe hold that the trial received by the defendant James Harper was without prejudicial error.\nAffirmed.\nJudges JOHNSON and Orr concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Jane T. Friedensen, for the State.", "J. H. Corpening, II for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES HARPER\nNo. 885SC896\n(Filed 17 October 1989)\n1. Criminal Law \u00a7 73.2 (NCI3d)\u2014 undercover officer\u2019s written notes \u2014no inadmissible double hearsay\nThere was no merit to defendant\u2019s contention that an undercover officer\u2019s written notes summarizing alleged drug transactions with defendant included statements of third persons who did not testify at trial and thus contained inadmissible double hearsay, since the statements of the third party declarants were not offered for their truth but to explain the officer\u2019s conduct, and they were thus not objectionable as hearsay.\nAm Jur 2d, Evidence \u00a7\u00a7 991-998, 1002.\n2. Criminal Law \u00a7 73 (NCI3d)\u2014 undercover officer\u2019s notes \u2014 inadmissible hearsay\nSummaries by an undercover officer of alleged drug transactions with defendant were hearsay and inadmissible as substantive evidence, since, in criminal cases, matters observed by police officers and other law enforcement personnel are explicitly excluded from the operation of Rule 803(8) of the N.C. Rules of Evidence which excepts public records and reports from the hearsay rule.\nAm Jur 2d, Evidence \u00a7\u00a7 991-998, 1002.\n3. Criminal Law \u00a7 33.3 (NCI3d)\u2014 record from another case excluded \u2014 evidence irrelevant\nThere was no merit to defendant\u2019s contention that the trial judge erred in failing to admit into evidence the record from a case against another resident of the boarding house where defendant lived showing that the State took a voluntary dismissal of the charges against her, since the fact that the State took a voluntary dismissal in a separate case was irrelevant in the action against defendant.\nAm Jur 2d, Evidence \u00a7\u00a7 973 et seq.\n4. Criminal Law \u00a7 33.3 (NCI3d)\u2014 presence of defendant\u2019s fellow boarding house residents at trial \u2014 evidence improperly admitted-defendant not prejudiced\nThough the trial court erred in permitting testimony regarding the presence in the courtroom of two of the women from the boarding house where defendant lived and where alleged drug transactions took place, such error was harmless because defendant failed to show that there was a reasonable possibility that the outcome of the trial would have been different without the error.\nAm Jur 2d, Trial \u00a7\u00a7 61-67.\n5. Criminal Law \u00a7 874 (NCI4th)\u2014 jury\u2019s request to repeat instructions \u2014 court\u2019s refusal \u2014 additional instructions given\u2014 no error\nThe trial judge did not abuse his discretion in refusing to repeat instructions on burden of proof in response to a question raised by the jury during deliberations, since it did not appear from the jurors\u2019 question that they were confused about the burden of proof, and the additional instructions which the court did give were not of such a nature as to give undue emphasis to the State\u2019s case. N.C.G.S. \u00a7 15A-1234(a)(l).\nAm Jur 2d, Trial \u00a7\u00a7 641-644, 754-757, 935.\n6. Criminal Law \u00a7 1185 (NCI4th)\u2014 aggravating factor of prior conviction \u2014what constitutes prior conviction\nThere was no merit to defendant\u2019s contention that his single prior conviction was for a relatively minor crime and that the trial judge therefore abused his discretion in finding it as an aggravating factor, since the legislature has determined that conviction of any criminal offense punishable by more than 60 days\u2019 confinement is an aggravating factor. N.C.G.S. \u00a7 15A-1340.4(a)(l)o.\nAm Jur 2d, Criminal Law \u00a7\u00a7 525, 535 et seq., 598, 599.\n7. Criminal Law \u00a7 1203 (NCI4th)\u2014 failure to find nonstatutory mitigating factors \u2014 no abuse of discretion\nThere was no merit to defendant\u2019s contention that the trial judge erred in finding no factors in mitigation, since the consideration of nonstatutory mitigating factors is within the trial judge\u2019s discretion, and the judge\u2019s failure to find nonstatutory mitigating factors, even when supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent a showing of an abuse of that discretion.\nAm Jur 2d, Criminal Law \u00a7\u00a7 525, 535 et seq., 598, 599.\n8. Criminal Law \u00a7 1347 (NCI4th) \u2014 consecutive sentences\u2014 cumulative effect not disproportionate to crimes\nThere was no merit to defendant\u2019s contention that the cumulative effect of the consecutive sentences was disproportionate to his crimes and that as such his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment, since the decision to impose consecutive sentences was discretionary with the trial judge.\nAm Jur 2d, Criminal Law \u00a7\u00a7 552, 625-631.\n9. Criminal Law \u00a7 1068 (NCI4th)\u2014 sentencing hearing \u2014 reputation of boarding house where defendant lived \u2014 inadmissible hearsay-defendant not prejudiced\nThe trial judge erred in permitting the district attorney to express at the sentencing hearing his opinion regarding the reputation of the boarding house where defendant lived as a place where drugs were available and to refer to a 1981 opinion of the Court of Appeals discussing generally the reputation of the same boarding house involved here, since such evidence was inadmissible hearsay, but defendant was not prejudiced where the trial judge stated that he would not charge the reputation of the boarding house to defendant, and nothing in the record suggested that he did.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 530; Trial \u00a7\u00a7 193, 195.\nAPPEAL by defendant from judgment entered 30 March 1988 in New HANOVER County Superior Court, by Judge Samuel T. Currin. Heard in the Court of Appeals 21 March 1989.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Jane T. Friedensen, for the State.\nJ. H. Corpening, II for defendant-appellant." }, "file_name": "0036-01", "first_page_order": 68, "last_page_order": 77 }