State v. Ferrell

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA13-917
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Wayne County
No. 10 CRS 55383
MARY BEASLEY FERRELL,
Defendant.
Appeal by defendant from judgment entered 17 January 2013
by Judge John E. Nobles in Wayne County Superior Court. Heard
in the Court of Appeals 11 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
GEER, Judge.
Defendant Mary Beasley Ferrell appeals from her convictions
of felony possession of cocaine and resisting a public officer.
On appeal, defendant argues that the trial court committed plain
error in admitting the arresting officer's testimony that he
could have charged defendant with additional crimes based on her
conduct in this case but, in order to show defendant mercy, he
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did not do so. We hold that, assuming the evidence was
improperly admitted, defendant has failed to show that any error
constituted plain error. With respect to sentencing, however,
we agree with defendant that the trial court erred by failing to
permit defendant to make a personal statement to the court prior
to sentencing. We, therefore, vacate defendant's sentence and
remand for a new sentencing hearing.
Facts
The State's evidence tended to show the following facts.
At about 3:00 or 4:00 p.m. on 19 October 2010, Sergeant Matt
Miller of the Wayne County Sheriff's Office was driving an
unmarked Ford Explorer in a high-crime area in Goldsboro, North
Carolina, when he saw defendant, an older white female, sitting
alone in a pickup truck stopped at a stop sign. Sergeant Miller
was the supervisor of the street level narcotics unit of the
Wayne County Sheriff's Office and, at the time of trial, had
been employed by the Wayne County Sheriff's Office for nine
years, with eight years' specialization in narcotics. Sergeant
Miller pulled his Explorer around so that it was parallel with
defendant's truck and watched defendant for several seconds as
defendant appeared to be manipulating something in her lap.
Defendant did not notice Sergeant Miller.
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Defendant's windows were down and, after several seconds,
Sergeant Miller asked defendant, out of his open window, whether
defendant was all right and whether she needed anything. At
that time, Sergeant Miller was wearing a black polo shirt with a
Sheriff's badge on the front left hand side, as well as a
standard law enforcement gun belt displaying his badge. Upon
noticing Sergeant Miller, defendant looked as if she "had seen a
ghost" -- she seemed surprised and her "[e]yes were big."
Defendant stuttered and "stumbled over her response," ultimately
stating she was all right. While responding to the sergeant,
defendant repeatedly glanced towards her lap. Defendant looked
"depleted, as far as nourishment," and "her face was drawed up,
skinny." Sergeant Miller noted that her appearance was
consistent with that of a drug user.
Sergeant Miller exited his Explorer, approached defendant's
window, and saw defendant's fists clenched in her lap like she
was "trying to keep [Sergeant Miller] from getting whatever she
had." He further saw some white crumbs on defendant's black
pants that he believed were consistent with small amounts of
crack cocaine that may have been broken off from a larger crack
rock such as when a person breaks a larger rock into smaller
rocks in order to smoke a smaller amount. Sergeant Miller had
previously viewed crack cocaine "[a]lmost on a daily basis."
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Sergeant Miller then grabbed defendant's left wrist through
the open window and said, "Give it to me." Defendant, however,
raised her right hand, threw a misshapen, off-white, rock-like
object into her mouth, and began to chew and eat the object very
quickly "as if she was trying to destroy some evidence."
Sergeant Miller believed defendant was eating a crack rock worth
about $100.00. The rock was the width of a thumbnail and as
thick as the end of a finger. At that point, Sergeant Miller
twisted defendant's left arm behind her back and ordered her to
spit out the object multiple times, but defendant kept chewing
and struggled to pull away from the sergeant. Sergeant Miller
drew his "TASER," placed it under defendant's armpit, and told
her to spit the object out or else he would tase her.
Before Sergeant Miller was able to tase defendant, she
accelerated her truck and drove forward while the sergeant was
"[i]nches" from the side of the truck. Despite Sergeant Miller
telling defendant she was going to run him over, defendant
continued accelerating and her truck "bumped" Sergeant Miller
such that he had to "maneuver [himself] so [he] didn't get run
over." Sergeant Miller then yelled at defendant to stop, and
she stopped momentarily. The sergeant then shot defendant
underneath the arm with his TASER probes, and she accelerated
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again and drove away as Sergeant Miller "watched the wires that
[were] connected to [his] TASER just snap in half."
Sergeant Miller pursued defendant in his Explorer for "a
couple" of blocks, never losing sight of her, and defendant
stopped only after driving down a dead end street. Sergeant
Miller approached defendant's truck with his gun drawn and
pulled open the door. Defendant, acting as if she had never
seen Sergeant Miller before, said, "[W]hat the fuck do you
want?" Sergeant Miller ordered defendant to get out of the
truck, but she refused.
Sergeant Miller holstered his gun, pulled defendant out of
the truck, and attempted to handcuff defendant, handling her
gently because she was an "older lady." Defendant spun around,
"slapped" the handcuffs out of Sergeant Miller's hand, "started
GD'g about something," called the sergeant a "mother fucker,"
and "balled up her fists . . . like she wanted to fight."
Sergeant Miller grabbed defendant again and placed her in
handcuffs.
Sergeant Miller then returned to defendant's truck and saw
"white crumbs all over the seat" that he believed were the same
type of crack cocaine crumbs that he had previously seen in
defendant's lap. A field test of some of the crumbs showed them
to be cocaine. Subsequent laboratory testing of other crumbs
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from the truck seat also showed the crumbs to be a "residue
amount" of "a Schedule II controlled substance, cocaine
hydrochloride."
Sergeant Miller spoke with defendant while she was in his
Explorer, and defendant "began to cry and say that she had some
things going on in her life." Sergeant Miller asked why
defendant ran, and she replied it was because "she was in a
predominantly black area, and [the sergeant] scared her."
Sergeant Miller responded that he was a law enforcement officer
and was "not black." Although defendant told Sergeant Miller,
in response to his questioning, that she had eaten a pill,
defendant could not say what type of pill it was. According to
the sergeant, the object defendant ate did not look "at all"
like a pill. Sergeant Miller showed defendant a pill bottle for
nausea he had found in her truck and asked if she had taken a
pill for nausea, and defendant said she had. Defendant told
Sergeant Miller that her daughter was a crack user, and
defendant was looking for her daughter that day. Defendant also
asked Sergeant Miller to "have some kind of mercy on her"
because, in addition to her daughter using crack, "her husband
drank."
On 1 August 2011, defendant was indicted for possession of
cocaine and resisting a public officer. Defendant testified in
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her own defense at trial, and her testimony tended to show the
following facts. Defendant was 66 years old at the time of
trial. On the date of the charged offenses, defendant was
stopped at a stop sign with "a BC" on her left leg and a pill
bottle between her legs.
When approached by Sergeant Miller, whom defendant
understood to be a "police officer," she told him, "I can't get
this damn pill bottle open." Sergeant Miller then laughed, took
out his TASER, and tased defendant. He never grabbed
defendant's left hand prior to tasing her. Defendant, now
scared, drove directly across the street and then stopped.
Sergeant Miller then dragged defendant from the truck, "[t]hrew"
her to the ground, called her a "crackhead whore" and a "piece
of shit," and "ground on [her] heinie" with his boots before
handcuffing her. Defendant introduced photographic exhibits
which she stated showed serious bruises to her knees from when
Sergeant Miller "beat" her and a "bad bruise" on her "back part"
from when the sergeant "just ground, ground, ground." However,
when EMS responded to the scene to check on defendant, defendant
did not request any medical treatment.
Defendant further testified that the truck she was driving
that day belonged to her ex-husband and that her two daughters,
who both abused crack, would sometimes take the truck at night
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without permission. On the day of the charged offenses,
defendant was looking for one of her daughters because she
wanted to help her daughter. Defendant did not use any illegal
drugs, and she was not aware that there were any illegal drugs
in the truck that day. According to defendant, she had already
taken a Cymbalta pill when Sergeant Miller approached her, she
never had anything in her hand during the encounter, and she
never chewed anything in the sergeant's presence. When asked
why she told Sergeant Miller that she had taken a nausea pill,
defendant stated she kept her Cymbalta and her nausea pills in
the same pill bottle. Defendant claimed she did not curse at
Sergeant Miller, and she followed all of his commands.
Defendant admitted she had previously pled guilty to
larceny from a Belk store. However, defendant claimed that the
facts underlying that conviction involved her "exchanging a
bracelet out" and that the trial judge in that case had
subsequently ordered Belk "to give me back all my stuff because
it was a mistake," and defendant "did not steal from them."
The jury found defendant guilty of felony possession of
cocaine and resisting a public officer. The trial court
consolidated the convictions into a single judgment and
sentenced defendant to a presumptive-range term of five to six
months imprisonment, but then suspended the sentence and placed
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defendant on 18 months of supervised probation. Defendant
timely appealed to this Court.
Discussion
Defendant first argues that the trial court erred in
admitting Sergeant Miller's testimony that he showed mercy on
defendant by not charging her with additional crimes based on
her conduct in this case. Defendant contends that the testimony
was irrelevant under Rule 401 and that its probative value was
substantially outweighed by the danger of unfair prejudice and
confusion of the issues under Rule 403 of the Rules of Evidence.
During direct examination, Sergeant Miller testified that
while he was speaking with defendant after her arrest, defendant
asked Sergeant Miller if he "could have some kind of mercy on
her" because defendant's husband drank and her daughter used
crack. The prosecutor asked whether Sergeant Miller showed
mercy to defendant, and the sergeant testified: "I did. I did.
Against my own judgment I did." When asked how he showed mercy
to defendant, Sergeant Miller testified: "I didn't charge her
with a couple other charges that I could have charged her with.
And I explained that to her."
Defendant concedes that she did not object to the admission
of this testimony at trial, but nonetheless asks this Court to
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review admission of the testimony for plain error. Our Supreme
Court has explained that
[f]or error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice -- that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
Assuming, without deciding, that the trial court improperly
admitted Sergeant Miller's testimony, defendant must still show
that admission of the evidence had a probable impact on the
jury's verdict. Defendant has not challenged on appeal Sergeant
Miller's testimony that, after arresting defendant, he contacted
a wrecker service to tow defendant's truck because "[he] thought
[he] was going to charge" or "there was a possibility [he] was
going to charge for the fleeing" and, pursuant to policy, he was
supposed to tow the suspect's vehicle when a fleeing charge is
issued. Thus, Sergeant Miller provided unchallenged testimony
to one uncharged offense for which he considered charging
defendant -- fleeing to elude arrest.
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Further, defendant's version of the events required the
jury to believe that the interaction started when Sergeant
Miller, a sergeant with nine years' experience at the time of
trial, approached defendant's truck, she stated she couldn't
"get this damn pill bottle open," and then Sergeant Miller
laughed and immediately, without any provocation, tased
defendant on the spot. Defendant's version of events also
required the jury to believe that after tasing defendant, a 66
year old woman at the time of trial, for no reason, Sergeant
Miller proceeded to drag defendant from her truck, throw her to
the ground, beat her, grind into her backside repeatedly with
his boots, and curse her while doing so.
This Court has recognized that juries often give
"significant weight" to the testimony of law enforcement
officers with extensive experience. See State v. Belk, 201 N.C.
App. 412, 418, 689 S.E.2d 439, 443 (2009) ("[B]ecause the
witness was a police officer with eighteen years of experience,
the jury likely gave significant weight to [the officer's]
testimony."). By contrast, defendant admitted previously
pleading guilty to larceny, thereby impeaching her credibility
as a witness. Defendant, however, also denied that she ever
actually committed the acts underlying her prior larceny
conviction, further impeaching her credibility. Defendant
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additionally claimed that she was badly injured by the
sergeant's unprovoked attack on her, and yet she admitted she
did not seek medical treatment when EMS arrived at the scene of
her arrest.
In light of (1) the unchallenged testimony that Sergeant
Miller considered charging, but ultimately did not charge,
defendant with fleeing to elude arrest, (2) the improbability of
defendant's version of events, (3) the significant weight the
jury likely accorded to Sergeant Miller's testimony -- other
than the challenged testimony -- given his nine years'
experience as a law enforcement officer, and (4) the evidence
impeaching defendant's credibility as a witness, we cannot
conclude that the jury would probably have found defendant not
guilty had the challenged testimony been excluded. Defendant
has, therefore, failed to show plain error.
Defendant next contends the trial court erred by denying
defendant her right to personally address the court prior to
sentencing under N.C. Gen. Stat. § 15A-1334(b) (2013). The
State, however, contends that defendant cannot raise this
argument on direct appeal. In support of its argument, the
State cites N.C. Gen. Stat. § 15A-1444(a1) (2013), which
provides:
A defendant who has been found guilty, or
entered a plea of guilty or no contest to a
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felony, is entitled to appeal as a matter of
right the issue of whether his or her
sentence is supported by evidence introduced
at the trial and sentencing hearing only if
the minimum sentence of imprisonment does
not fall within the presumptive range for
the defendant's prior record or conviction
level and class of offense. Otherwise, the
defendant is not entitled to appeal this
issue as a matter of right but may petition
the appellate division for review of this
issue by writ of certiorari.
(Emphasis added.)
The State's reliance on N.C. Gen. Stat. § 15A-1444(a1)
fails to recognize that, here, defendant's argument is that the
trial court failed to allow defendant an opportunity to present
additional evidence during the sentencing hearing, by way of
making a personal statement, and not that the evidence actually
presented at trial and the sentencing hearing was insufficient
to support defendant's sentence. Although the State cites State
v. Ziglar, 209 N.C. App. 461, 465, 705 S.E.2d 417, 420 (2011),
in support of its argument, the defendant there argued that the
trial court erroneously allowed the State to proceed on an
aggravating factor over the defendant's objection that "'the
aggravator was basically the same thing that [the defendant] was
convicted of.'" Ziglar is distinguishable because, unlike the
present case, the Ziglar defendant's argument pertained to
whether the trial court properly found an aggravating factor
based on the evidence presented.
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We hold that despite the trial court's imposition of a
presumptive-range sentence, N.C. Gen. Stat. § 15A-1444(a1) does
not foreclose consideration of defendant's argument on direct
appeal since the argument does not concern "whether
[defendant's] sentence is supported by evidence introduced at
the trial and sentencing hearing." See State v. Hagans, 188
N.C. App. 799, 801 n.2, 656 S.E.2d 704, 706 n.2 (2008)
(explaining that N.C. Gen. Stat. § 15A-1444(a1) did not bar
direct appeal of issue whether sentencing judge was biased since
issue did not pertain to whether defendant's sentence was
supported by evidence introduced at trial and sentencing
hearing). We, therefore, review defendant's argument.
After the jury rendered its verdict, the trial court asked
defendant to stand and the following exchange occurred:
THE COURT: [Defendant], one of the
worst jobs a police officer can have, and
I'm not trying to fuss with you, but one of
the worst jobs they can have is getting put
in a situation that this Court feels like
you put this police officer in.
THE DEFENDANT: May I say something
--
THE COURT: I'm not asking --
THE DEFENDANT: -- about it?
THE COURT: No, I'm not asking you
for any comment.
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I can't put you in jail. This is a
Class I felony, and it just calls for
community punishment. But I just want you
to understand that that's a bad thing.
That's the way this Court sees it. You're
lucky that it falls into a Class I, the
possession of cocaine.
THE DEFENDANT: Well, what about
him beating me and all that though?
THE COURT: Well, I'm not asking
you for any comment; I'm just trying to
explain to you my position.
THE DEFENDANT: Oh.
([Defense counsel] speaks to the
Defendant.)
THE COURT: The jury has convicted
you. As I've always thought, under the
facts that they heard, they did just exactly
right, so I'm going to impose a sentence.
The trial court then sentenced defendant without further
comment.
"Allocution, or a defendant's right to make a statement in
his own behalf before the pronouncement of a sentence, was a
right granted a defendant at common law." State v. Miller, 137
N.C. App. 450, 460, 528 S.E.2d 626, 632 (2000). That right has
been codified in N.C. Gen. Stat. § 15A-1334(b), which provides:
"The defendant at the hearing may make a statement in his own
behalf." This Court has previously explained that "'N.C. Gen.
Stat. § 15A–1334(b) expressly gives a non-capital defendant the
right to make a statement in his own behalf at his sentencing
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hearing' if the defendant requests to do so prior to the
pronouncement of sentence." Miller, 137 N.C. App. at 461, 528
S.E.2d at 632 (quoting State v. Rankins, 133 N.C. App. 607, 613,
515 S.E.2d 748, 752 (1999)).
In Miller, at sentencing, after defense counsel made a
sentencing argument on the defendant's behalf, the trial court
asked whether defense counsel and the prosecutor had anything
further to offer for sentencing and each stated he did not. Id.
at 460, 528 S.E.2d at 632. The court then instructed the
defendant to stand and, prior to the court imposing defendant's
sentence, defense counsel asked, "'Your Honor, may he be
heard?'" Id. The court responded, "'No, sir. No, sir[,]'" and
proceeded to sentence the defendant. Id. On appeal, this Court
held that because the defendant requested to make a personal
statement to the court prior to sentencing and was refused the
opportunity, the defendant was entitled to a new sentencing
hearing. Id. at 461, 528 S.E.2d at 632.
Similarly, here, defendant asked for an opportunity to
personally address the court prior to sentencing, but the court
denied her request, stating: "No, I'm not asking you for any
comment." Although defendant subsequently interposed a short
statement -- "Well, what about him beating me and all that
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though?" -- the court's response to that statement was, again,
"Well, I'm not asking you for any comment . . . ."
Since the court twice made clear it was not permitting
defendant an opportunity to make a statement, defendant's brief,
forced comment does not satisfy the court's obligation to allow
defendant an opportunity to make a personal statement, upon
request, prior to sentencing. Consequently, as in Miller, we
must vacate defendant's sentence and remand for resentencing.
See also State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d 914,
915-16 (1984) ("Where the trial judge may have been uninformed
as to relevant facts because of his failure to afford the
defendant a proper sentencing hearing, which is a critical stage
of a criminal proceeding, we are restrained from saying
defendant has not been prejudiced." (internal citation
omitted)).
No error in part; vacated in part and remanded for
resentencing.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).