STATE OF NORTH CAROLINA
v
.
Graham County
No. 98 CRS 946
JIMMY HARRIS
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Rudolf Maher Widenhouse & Fialko, by Andrew G. Schopler, for
defendant-appellant.
CAMPBELL, Judge.
At approximately nine o'clock on the night of 31 October 1998,
Benita Gregory (“Benita”) went to visit defendant (who lived a few
houses away from Benita) while her brother babysat Benita's seven-
year-old disabled son, Nathaniel. When two hours had passed and
Benita had not returned home, Benita's brother took Nathaniel over
to defendant's house. Upon entering defendant's house, Nathaniel
found his mother drinking and arguing with defendant. Benita told
Nathaniel to leave the room in which she and defendant were arguing
and to go into the kitchen. The argument continued and ultimately
resulted in Benita falling to the floor. In the course of these
events Benita received a severe head injury. Although Benita wasbleeding and had difficulty talking or getting up from the floor,
she indicated she did not want anyone to call for help.
(See footnote 1)
Defendant took Benita to the hospital at approximately eight
o'clock the next evening (1 November 1998). Defendant told medical
personnel that Benita had fallen and hit her head. The initial
examination at the hospital revealed that Benita had suffered “an
acute cerebral event.” Over the next several hours, Benita's
condition quickly deteriorated and she soon became unresponsive.
She was eventually declared dead on 3 November 1998.
The police began their investigation on 2 November 1998 when
medical personnel reported that Benita was in critical condition.
Nathaniel was the first person interviewed. At that time,
Nathaniel stated that he saw his mother arguing and wrestling with
defendant just before she fell, hitting her head on a heater in
defendant's living room. However, when the police interviewed
Nathaniel again on 4 November 1998, he said that defendant had hit
his mother in the head with a hammer. Nathaniel also said that he
was scared of defendant and was afraid that defendant would do
something to him if he talked about the incident.
Defendant fully cooperated with the police investigation,
which included consenting to interviews, searches, and agreeing to
tests. Defendant was first questioned by the police on 2 November
1998 and, consistent with Nathaniel's original statement, he also
said that Benita had fallen and hit her head on a kerosene heater. When the police went to defendant's house two days after the
incident, they found no signs of cleanup. Blood was still on the
floor and on defendant's mattress. A hammer with some blood and a
strand of hair on it was also found on the floor. Laboratory
analysis later confirmed that the blood on the floor and the
mattress belonged to Benita. The blood on the hammer belonged to
defendant, but the strand of hair was consistent with Benita's
hair. There were no fingerprints on the hammer. No blood or hair
was found on the heater.
A warrant was issued for defendant's arrest on 3 November 1998
for first-degree murder of Benita. Defendant promptly surrendered
himself upon being informed about the warrant. In a statement made
following his arrest, defendant said that Benita had threatened to
hit him with a tequila bottle on the night of 31 October 1998 and
that he had swung his walking stick at Benita in self-defense
causing her to fall. Defendant assumed that he had hit her in the
head. However, when a detective reminded defendant that in an
earlier statement he had said that Benita fell on a heater, he
replied, “I don't know. I was scared.”
During his pre-trial incarceration, defendant was afflicted
with severe psychiatric and physical health issues. During all
times relevant to this action, defendant was on disability and
received medications for a serious heart problem and brain damage
with partial paralysis, which required him to use a walking stick.
Prior to trial, defendant was hospitalized on three occasions. Nevertheless, he was declared competent to stand trial after
receiving the necessary medication.
The day before opening arguments, defendant was rushed to the
hospital for treatment of high blood pressure and apparent over-
medication. Although defense counsel informed the trial court of
defendant's overmedication, the presiding judge, Judge Hollis M.
Owens, Jr. (“Judge Owens”), did not hold a competency hearing. A
similar situation arose in the middle of the trial.
During the trial, the State called Nathaniel as one of its
witnesses. Nathaniel testified that he never actually saw
defendant pick up a hammer. However, he did see defendant hit
Benita in the head with a hammer as defendant said, “You f--king
bitch, I'm going to kill you.”
Following Nathaniel's testimony, the State moved under Rule
404(b) of the Rules of Evidence (“Rule 404(b)”) to introduce
evidence from three witnesses concerning the nature of the
relationship between defendant and Benita. Over defendant's
objections, Judge Owens admitted this evidence as tending to show
a common scheme, as well as the absence of an accident and a
negation of self-defense. Thereafter, the witnesses (Cathy Lane,
Geraldine Jordan, and Diane Hall) testified about an argument
between Benita and defendant that took place approximately three
months prior to her death. Even though none of the witnesses saw
the beginning of this argument, they each testified to seeing
defendant push and shove Benita several times during the argument.
They also saw a baseball bat which, during the course of theargument, was in the possession of each party and was used by each
party to hit defendant's vehicle. Finally, all three witnesses
testified that they had not seen Benita act aggressively towards or
threaten defendant during this incident or any other.
Dr. John Butts (“Dr. Butts”), Chief Medical Examiner for the
State of North Carolina, testified as a medical expert for the
State. Dr. Butts had performed Benita's autopsy on 5 November
1998. The autopsy revealed that swelling and bruising of Benita's
brain had prevented the flow of blood to her brain, which caused
brain damage and an acute stroke to the right side of her brain.
In Dr. Butts' opinion, the swelling and bruising of Benita's brain
was caused by a blunt force impact to the right side of her head.
He also opined that the bruise pattern was consistent with a blow
from a hammer and not a heater. However, a neurologist testified
that there was a small possibility that a stroke of this type could
have been caused by Benita's history of diabetes, obesity, and
heart disease.
Defendant testified that he had known Benita for no more than
five months before her death and had not had a romantic or sexual
relationship with her during that time (although Benita had told
her friends otherwise). As to the circumstances surrounding
Benita's death, defendant testified as follows: On the night of 31
October 1998, Benita arrived at defendant's house by herself
sometime after 9:30 p.m. and had three or four shots of tequila.
When Nathaniel arrived at defendant's house two hours later,
defendant asked Benita to leave. She became very upset and triedto hit defendant with a tequila bottle. Defendant knocked the
bottle out of her hand with his walking stick. Benita, appearing
both upset and drunk, turned to leave, but stumbled sideways. She
fell over and hit her head on a kerosene heater. Benita told
defendant she was alright, but was tired and did not want to go
home. Defendant reluctantly let her spend the rest of the night on
his floor. Defendant did not see any blood until the next
afternoon when he splashed water on Benita's face to wake her up.
Defendant took Benita to the hospital a few hours later.
Prior to defendant's cross-examination, Judge Owens ruled that
the State could impeach defendant with a 1984 conviction in Florida
for felony aggravated battery against his then wife by the use of
a bullwhip. This conviction was defendant's only prior conviction
and was more than ten years old. Judge Owens admitted this
evidence under Rule 609 of the Rules of Evidence (“Rule 609”) on
the grounds that the old conviction combined with other evidence
demonstrated a pattern of behavior and that defendant's credibility
was central to the resolution of his case. Defense counsel timely
objected and excepted to the court's ruling.
On 19 November 1999, a jury returned a verdict of guilty of
first-degree murder. Judge Owens sentenced defendant to life
imprisonment without parole. Defendant appeals this judgment.
By defendant's first assignment of error he argues the trial
court committed reversible error by permitting the State to cross-
examine him about his 1984 conviction in Florida for felony
aggravated battery. We agree. Rule 609 allows for the impeachment of a witness during cross-
examination by offering evidence of that witness' prior criminal
conviction(s). See N.C. Gen. Stat. § 8C-1, Rule 609(a) (1999).
Rule 609 also states:
Evidence of a conviction under this rule is
not admissible if a period of more than 10
years has elapsed since the date of the
conviction or of the release of the witness
from the confinement imposed for that
conviction, whichever is the later date,
unless the court determines, in the interests
of justice, that the probative value of the
conviction supported by specific facts and
circumstances substantially outweighs its
prejudicial effect.
§ 8C-1, Rule 609(b).
A defendant's prior criminal convictions “are not to 'be
considered as substantive evidence that [defendant] committed the
crimes' for which he is presently on trial by characterizing him as
'a bad man of a violent, criminal nature . . . clearly more likely
to be guilty of the crime charged.'” State v. Carter, 326 N.C.
243, 250, 388 S.E.2d 111, 116 (1990) (quoting State v. Tucker, 317
N.C. 532, 543, 346 S.E.2d 417, 423 (1986)). In fact, our Supreme
Court has held that “[t]he only 'legitimate purpose' for admitting
a defendant's past convictions is to cast doubt upon his
veracity[.]” Id. Thus, the most probative type of prior
conviction admissible for impeachment purposes is “an offense that
indicates a lack of veracity, such as fraud, forgery or perjury.”
United States v. Beahm, 664 F.2d 414, 418-19 n.6 (4th Cir. 1981)
(citations omitted).
During the trial, the court allowed the State to cross-examine
defendant about his more than ten-year-old conviction for felony
aggravated battery. After a careful review of the record and
transcript, it appears highly probable that the jury would have
found sufficient evidence to convict defendant of Benita's murder
without evidence of the 1984 conviction having been introduced.
However, since this stale conviction sheds no light on defendant's
veracity, but instead characterizes defendant as a woman abuser and
a violent person who would have been likely to hit Benita in the
head with a hammer, there is a strong possibility that the
introduction of this prior conviction caused the jury to find
defendant guilty of first-degree murder rather than a lesser crime.
Therefore, we conclude that the evidence of defendant's conviction
in 1984 should not have been admitted because the substantial
likelihood of prejudice outweighed the minimal impeachment value of
the evidence.
Despite our decision to grant defendant a new trial based on
his first assignment of error, we also address defendant's second
assignment of error because of the likelihood of it becoming an
issue in a retrial. Defendant argues that the trial court's
decision to admit evidence concerning the “ball bat incident”
between him and Benita violated Rule 404(b). We disagree.
Rule 404(b) governs the admissibility of a defendant's prior
bad acts. See N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999). This
rule states, in part, that: Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Id.
In applying Rule 404(b), our Supreme Court has consistently
held “that a defendant's prior assaults on the victim, for whose
murder defendant is presently being tried, are admissible for the
purpose of showing malice, premeditation, deliberation, intent or
ill will against the victim.” State v. Alston, 341 N.C. 198, 229,
461 S.E.2d 687, 703 (1995) (citations omitted). In the case sub
judice, evidence of the “ball bat incident” provided by the
witnesses included testimony that defendant pushed and shoved
Benita while she begged him to leave her alone. This evidence of
defendant's prior assault on Benita, likewise tends to establish
malice, premeditation, deliberation, intent and ill will on the
part of defendant. Thus, the evidence is relevant to an issue
other than defendant's character. We therefore hold that evidence
of the “ball bat incident” was admissible under Rule 404(b).
Furthermore, this Court has held that “[w]hen prior incidents
are offered for a proper purpose, the ultimate test of
admissibility is whether they are sufficiently similar and not so
remote as to run afoul of the balancing test between probative
value and prejudicial effect set out in Rule 403.” State v. West,
103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991). Admission of
evidence under Rule 403 is a matter generally left to the sounddiscretion of the trial court. Abuse will only be found where the
trial court's ruling is “manifestly unsupported by reason or is so
arbitrary it could not have been the result of a reasoned
decision.” State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118,
133 (1993).
The trial court in the present case made no specific finding
that the probative value of evidence relating to the “ball bat
incident” outweighed its prejudicial effect. However, as long as
the procedure followed by the trial court demonstrates that a Rule
403 balancing test was conducted, a specific finding is not
required. See State v. Washington, 141 N.C. App. 354, 367, 540
S.E.2d 388, 397-98 (2000), disc. review denied, 353 N.C. 396, 547
S.E.2d 427 (2001). Here, the record and trial transcript indicate
that the court determined the “ball bat incident” was not too
remote in time as to run afoul of the balancing test because the
incident occurred only a few months prior to Benita's death and
tended to show a common plan or scheme, absence of accident, and
tended to negate self-defense. Therefore, the trial court did not
abuse its discretion in admitting evidence of the “ball bat
incident” because the evidence was more probative than prejudicial.
Since we reverse the trial court for the improper admission of
the stale conviction, we see no need to address defendant's third
assignment of error regarding whether the court erred in not
holding a hearing to determine his competency since the
circumstances would likely be entirely different on a retrial. However, for the reasons stated, we reverse the trial court and
grant defendant a new trial.
New trial.
Judges GREENE and McCULLOUGH concur.
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