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North Carolina v. Agee4/18/1989
judice).
Finally, defendant did not waive his constitutional, relevancy, or prejudicial objections to the State's evidence of marijuana possession by his subsequent reference to the marijuana on direct examination. The damage had already been done. In my view, defendant chose the only course he could: to address that prejudicial evidence head-on, with the aim of bolstering his credibility in the hope that the jury would conclude that he was "being completely open and straightforward and worthy of belief." State v. Hedgepeth, 66 N.C. App. 390, 400, 310 S.E.2d 920, 925 (1984). Cf. Jones v. Bailey, 246 N.C. 599, 602, 99 S.E.2d 768, 771 (1957); State v. Wells, 52 N.C. App. 311, 315, 278 S.E.2d 527, 530 (1981) (no waiver of objection to introduction of incompetent evidence by later attempt to explain or destroy probative value of that evidence). Had defendant failed to respond to the officer's testimony, the jury would have been left with the impression that he was dishonest about the marijuana, and so probably also lied about the LSD. Wills, upon which the majority relies to conclude that defendant waived his objection to introduction of the evidence of marijuana possession, did not involve an objection to constitutionally impermissible evidence, that is, evidence of another crime for which defendant had been acquitted. See Wills, 293 N.C. at 550, 240 S.E.2d at 330-31 (there defendant suffered no violation of a specific constitutional right, and his subsequent testimony was not induced by erroneous admission of evidence of prior crime).
In short, defendant's possession of marijuana played no permissible part in establishing the context of his arrest for possession of LSD. The error in admitting that evidence entitles defendant to a new trial.
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