An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-1000

                      NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 April 2014


STATE OF NORTH CAROLINA


      v.                                    Person County
                                            Nos. 12 CRS 1794—95
NATHANIEL HAWTHORNE SMITH, II,
     Defendant.


      Appeal by defendant from judgment entered 27 March 2013 by

Judge Michael R. Morgan in Person County Superior Court.                  Heard

in the Court of Appeals 22 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Thomas D. Henry, for the State.

      Unti & Lumsden LLP, by Sharon L. Smith, for defendant-
      appellant.


      BRYANT, Judge.


      Where defendant introduces evidence of a prior arrest, the

State   is   entitled     to    introduce   evidence     in   explanation     or

rebuttal thereof, even though the rebuttal evidence would be

otherwise    inadmissible.         Defendant    cannot    claim    ineffective
                                            -2-
assistance of counsel where it cannot be demonstrated that the

actions    of     his    counsel    fell      below     an    objective     standard    of

reasonableness or were so prejudicial as to affect the outcome

of his trial.

      On    20     March    2012,       a     confidential       informant        notified

Investigator Gill of the Person County Sheriff’s Office that he

had   spoken      with     defendant        Nathaniel         Hawthorne     Smith    about

purchasing marijuana.             After an exchange of text messages, the

informant        arranged    to     buy       marijuana        from    defendant      that

afternoon at a nearby park.                    Investigator Gill met with the

informant for a “pre-buy meeting” during which a small video

camera was affixed to the informant’s shirt.                          The informant was

then driven to a drop-off point to walk to the park.

      As the informant entered the park, he saw defendant exit a

car, place a bag on the ground near the car, and then get back

into the car.       The informant approached the car, asked defendant

for a “quarter bag,” and after handing defendant $60.00, was

directed    to     pick-up        the   bag     lying     on    the     ground.       Upon

completing the sale, defendant drove away, and the informant

contacted Investigator Gill.

      Investigator         Gill    returned       to    the    park    to   pick-up    the

informant and conduct a “post-buy meeting.”                           At this meeting,
                                         -3-
the informant told Investigator Gill what had transpired during

the buy, gave him the bag, and was relieved of the video camera.

The bag was determined to contain 7.9 grams of marijuana.

       On 10 September 2012, defendant was indicted on one count

each    for    sale    and    delivery     of       a     schedule       VI   controlled

substance; possession with intent to sell and deliver a schedule

VI   controlled       substance;   sale    and          delivery    of    a   controlled

substance within 1000 feet of a public park; and possession of

drug paraphernalia.           On 27 March 2013, defendant was convicted

of all four charges and sentenced to a prison term of 36 to 56

months.      Defendant appeals.

                          _____________________________

       On appeal, defendant argues (I) that the trial court erred

in allowing the State to inquire about defendant’s prior arrest

and (II) that the trial court deprived defendant of effective

assistance of counsel.

                                               I.

       Defendant      first   argues     that       the    trial     court     erred   in

allowing the State to inquire into his prior arrest involving

marijuana.      We disagree.

       In arguing that the trial court erred in permitting the

State   to    question    Investigator         Gill       about    defendant’s     prior
                                         -4-
arrest involving marijuana, defendant contends that the trial

court     violated    Rule     404(b)    of     our    Rules       of   Evidence     by

improperly admitting character evidence.                We disagree, as it was

defendant himself who opened the door to permitting the State to

question Investigator Gill about his prior arrest.

                   [E]vidence     which     is    otherwise
              inadmissible is admissible to explain or
              rebut evidence introduced by defendant.
              This is true even if a defendant admits
              evidence   during   cross-examination   of   a
              State's witness, prompting the State to
              introduce otherwise inadmissible evidence in
              rebuttal.     Therefore, where a defendant
              examines a witness so as to raise an
              inference favorable to defendant, which is
              contrary to the facts, defendant opens the
              door    to    the    introduction    of    the
              State's rebuttal   or   explanatory   evidence
              about the matter.

State v. O’Hanlan, 153 N.C. App. 546, 561, 570 S.E.2d 751, 761

(2002)    (citations    omitted).        “The       phrase   ‘opening        the   door’

refers to the principle that where 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.” State v. Rose, 335

N.C. 301, 337, 439 S.E.2d 518, 538 (1994) (citation, quotation

and bracket omitted), overruled on other grounds by State v.

Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).
                                    -5-
    Here,     defendant    opened    the     door       during    his   cross-

examination of Investigator Gill:

            Q. Okay. Investigator Gill, you would admit
            that the suspect who allegedly sold this
            marijuana was on camera in this video for a
            matter of seconds?

            A. Correct.

            Q. And at the time it was kind of dark. They
            were sitting in a vehicle when it happened,
            correct?

            A. Correct.

            Q. And at times, really, only part of their
            face was showing, correct?

            A. Yup. One side of the face.

            Q. And it was just based on those few
            seconds   that you   say you   identified
            [defendant] as being the person on that
            video?

            A. That's correct.

            Q. And when had been the last time you had
            seen [defendant] in person prior to watching
            that video?

            A. I'm not exactly sure on the date. The
            last time I seen him, he was actually in my
            office talking to me.

            Q. But   you   don't   know    how   long    that    had
            been?

            A. No, sir. I don't. He was in there talking
            to me in reference to assisting us.
                                   -6-
Through this line of questioning, defendant sought to undermine

Investigator    Gill’s   credibility     by   attempting   to   create   the

impression that Investigator Gill’s identification of defendant

was not clear and positive.        Defendant did not object nor move

to strike Investigator Gill’s testimony that defendant had been

“in [my office] talking to me in reference to assisting us.”

Before beginning redirect, the State announced its intent to

question   Investigator     Gill   about      his   comments    concerning

defendant being “in [my office] talking to me in reference to

assisting us.”    The trial court noted the following in its Rule

403 analysis:

                Well, I do recall that when the
           question was asked by defense counsel of the
           witness, when was the last time that the
           witness had seen the defendant, the response
           was by the witness that the witness saw the
           defendant last in the witness' office and
           then the witness added at the very end when
           the    witness   offered   himself    as   a
           confidential   informant.   There   was   no
           objection based on nonresponsive [sic] or
           irrelevancy. So, that's on the record. The
           State has got a right to explore whatever
           comes out on cross. That is in the record.
           So, that's there. So, I got [sic] to afford
           the State an opportunity to do that,
           exploration if it so desires on redirect.
           So, I will allow that.

                Now, to the extent that I got fuller
           information concerning what happened as a
           result, the State can explore it if it
           wishes. If there's an objection on it, I'll
                                       -7-
              rule on it in the context in which it
              occurs. If it does come out that there was a
              matter that was ultimately resolved by way
              of dismissal, then, if it gets to that
              extent on the record, then certainly, um,
              I'll allow [counsel for defendant] to tie up
              what the ultimate resolution of that was,
              but because it was explored to some extent
              on cross, then I've got to allow the State
              the opportunity to say what it has to say
              about it on redirect.

                   So, I will allow the subject to be
              explored on redirect because it was explored
              on cross, and I'll take whatever objections
              may occur based on the context in which it
              arises.

       On redirect, Investigator Gill testified that the reason

defendant came into his office offering assistance was because

defendant had been arrested after marijuana was found in his car

during a traffic stop.           Investigator Gill stated that defendant

offered   to    assist    with    another    investigation    and   signed   a

confidential informant packet.

       “[T]he objective of redirect examination is to clarify the

subject matter of        the direct examination and          any new matter

elicited on cross-examination[.]”            State v. Price, 301 N.C. 437,

452,    272    S.E.2d    103,    113   (1980)   (citation    omitted).       By

eliciting testimony as to how Investigator Gill could have been

positive in his identification of defendant as the person seen

on camera selling marijuana, defendant opened the door for the
                                            -8-
State to seek an explanation of this testimony on redirect.

Accordingly, the trial court did not err in allowing the State

to inquire into the circumstances under which Investigator Gill

had seen and talked to defendant.

       Defendant further argues that he was unfairly prejudiced by

the trial court’s allowing the State to question Investigator

Gill    about        defendant’s         prior        arrest       involving      marijuana.

Defendant contends that had the testimony concerning defendant’s

prior arrest involving marijuana not been admitted, a different

result would have been reached at his trial.                               We disagree, as

the    case    against      defendant       for    the      20     March   2012   marijuana

offense       was    not    based    solely      on    his     prior     arrest   involving

marijuana.

       The State presented evidence to the jury which tended to

show    that    defendant          had   sold     marijuana        to    the   confidential

informant by means of testimony by Investigator Gill, testimony

by the confidential informant, and a video recording captured by

a video camera attached to the informant’s shirt during his

purchase       of    marijuana       from   defendant.             As    such,    the    State

presented sufficient evidence                   for the jury            to find beyond a

reasonable      doubt       that    defendant         was    the    individual     who    sold

marijuana       to    the    informant.         Further,         the    jury   specifically
                                           -9-
requested    to    see   the    segment     of     the   video      recording      of   the

controlled buy where defendant’s face was visible in the car.

At 1:59 p.m., the jury sent a note to the trial court asking:

“the jury would like to review the video. [sic] @ the car to see

a closer picture of the Defendant.”                 After discussing the jury’s

request with counsel, the trial court permitted the jury to

watch this portion of the video which showed, albeit briefly,

defendant’s face inside the car.                 The jury then returned to its

deliberations, reaching its verdicts at 2:31 p.m.                           This request

by the jury clearly shows an intent to ascertain for themselves

whether defendant was the person shown in the car.                               From this

record   there      is    no    evidence         that    the   jury      was      unfairly

prejudiced    by    testimony        concerning         defendant’s      prior      arrest

involving marijuana.

     Defendant further argues that the admission of testimony

concerning his prior arrest involving marijuana was prejudicial

because the trial court failed to give a limiting instruction

regarding permissible uses of Rule 404(b) evidence of prior bad

acts.    Although        the    trial   court      failed      to    give    a    limiting

instruction regarding the jury’s consideration of defendant’s

prior arrest involving marijuana, there is nothing in the record

to   indicate      that,       but   for    the     absence         of   the      limiting
                                     -10-
instruction, defendant’s trial would have reached a different

outcome.     As discussed above, there is no evidence to suggest

that the jury was unfairly prejudiced by Investigator Gill’s

testimony       concerning     defendant’s          prior     arrest       involving

marijuana.      We find nothing in the trial court’s failure to give

a limiting instruction that is "so fundamental as to amount to a

miscarriage of justice or which probably resulted in the jury

reaching    a    different     verdict    than      it    otherwise    would    have

reached."       State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244,

251   (1987)      (citations    omitted).           Accordingly,       defendant’s

argument is overruled.

                                        II.

  Defendant       next   argues    that       his   counsel    deprived      him   of

effective assistance of counsel.           We disagree.

      “A   defendant's     right   to     counsel        includes   the    right   to

effective assistance of counsel."              State v. Grooms, 353 N.C. 50,

64, 540 S.E.2d 713, 722 (2000) (citation omitted).                        This court

analyzes claims of ineffective assistance of counsel using a

two-part test, as articulated in Strickland v. Washington, 466

U.S. 668 (1984).         See State v. Braswell, 312 N.C. 553, 562—63,

324 S.E.2d 241, 248 (1985).               First, defendant must show that

his "counsel's performance fell below an objective standard of
                                        -11-
reasonableness as defined by professional norms."                     State v. Lee,

348    N.C.    474,    491,   501   S.E.2d     334,    345    (1998).      Secondly,

defendant must show he was prejudiced by the error such that "a

reasonable probability exists that the trial result would have

been different absent the error."              Id.

       Defendant contends that his “counsel’s failure to object

to, to move to strike, and to request a limiting instruction

regarding the nonresponsive testimony offered by [Investigator]

Gill     and     [the     confidential         informant]       was     objectively

deficient.” Specifically, defendant argues that his counsel was

deficient because by not objecting to, moving to strike, or

requesting      a     limiting      instruction       for    Investigator     Gill’s

nonresponsive         testimony     concerning       defendant’s      prior   arrest

involving marijuana, defendant’s counsel exposed defendant to

prejudice.      We disagree, as defendant has not demonstrated such

prejudice that "a reasonable probability exists that the trial

result would have been different absent the error."                     Id.

       In reviewing a claim of ineffective assistance of counsel,

“if a reviewing court can determine at the outset that there is

no    reasonable      probability     that   in      the    absence   of   counsel's

alleged errors the result of the proceeding would have been

different, then the court need not determine whether counsel's
                                      -12-
performance was actually deficient.”             Braswell, 312 N.C. at 563,

324 S.E.2d at 249.        Here, as discussed in Issue I, defendant has

not   demonstrated       that,   absent    the   nonresponsive    testimony   by

Investigator Gill concerning defendant’ prior arrest involving

marijuana, the jury would have reached a different conclusion.

In reviewing the record before this Court, we find nothing to

suggest that defendant’s counsel failed to act within reasonable

standards.

           Judicial review of counsel's performance
           must be highly deferential so as to avoid
           the   prejudicial   effects  of   hindsight.
           Because of the difficulties inherent in
           determining if counsel's conduct was within
           reasonable standards, a court must indulge a
           strong presumption that counsel's conduct
           falls within the broad range of what is
           reasonable assistance.

State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986)

(citing Strickland, 466 U.S. at 689).                 As defendant has not

demonstrated      that    his    counsel     acted   outside     of   reasonable

standards or exposed him to prejudice such that it affected the

outcome of his trial, defendant’s argument is overruled.

      No error.

      Judges CALABRIA and GEER concur.

      Report per Rule 30(e).
