finding sufficient evidence where defendant did not live at the apartment searched, but was present - 10 - STATE V. D AVIS Opinion of the Court with two others when officers found narcotics on a table only six to eight inches from where he had been standing, “hold[ing] that the defendant, standing in close proximity to the table and being the only person in the room,” was “capab[le] of exercising control over the cocaine.
How later courts described this case
- finding sufficient evidence where defendant did not live at the apartment searched, but was present - 10 - STATE V. D AVIS Opinion of the Court with two others when officers found narcotics on a table only six to eight inches from where he had been standing, “hold[ing] that the defendant, standing in close proximity to the table and being the only person in the room,” was “capab[le] of exercising control over the cocaine.
Written by the judges who cited it.
The opinion
Judge BECTON
dissenting.
Believing that defendant’s motion for mistrial should have been granted, I dissent.
*647 The majority’s reliance on the following two legal propositions to uphold the trial court’s denial of defendant’s motion for mistrial is misplaced: (1) “Defendant 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.” 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) “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. Albert, 303 N.C. 173, 177 , 277 S.E. 2d 439, 441 (1981).
Courts 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 — that he was “on parole for the sale of the controlled substance heroin and two counts of possession of controlled substance heroin” —was 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 “he might have rightfully excluded if the same evidence had been offered by the” 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 “open door” or invited error policy.
Further, although defense counsel, for reasons I have yet to discern, called defendant’s parole officer “for the purpose of establishing that his address was not 1634 Chestnut Street,” ante p. 7, no part of the parole officer’s testimony needed to be explained or rebutted. What explanation or rebuttal is necessary to the parole officer’s 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 *648 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’ direct examination testimony gave the jury the “false impression that the [S]tate had refused to accept his offer to submit to a polygraph examination.” 301 N.C. at 436 , 272 S.E. 2d at 146 . As our Supreme Court said in State v. Albert:
Here, 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.
303 N.C. at 177 , 277 S.E. 2d at 441 (emphasis added).
The circumstances in this case are clearly different from the circumstances in Small and Albert . They are also different from the circumstances facing “text writers and other jurisdictions,” ante p. 9: the State’s evidence in this case was not of the same “class” or “similar”; it was not “rebutting evidence”; and testimony that a witness knows where defendant lives because the witness is defendant’s parole officer is not “an improper subject.”
Was the denial of defendant’s motion for a mistrial prejudicial? Yes. Significantly, no controlled substances were found on defendant’s 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’s 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’s 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 *649 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.