State v Freeman, (03-810) 08/17/2004

Appeal by defendant from judgments dated 19 April 2002 by Judge Gary E. Trawick in Superior Court, Columbus County. Heard in the Court of Appeals 1 April 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant- appellant.

    McGEE, Judge.

    Steven Keith Freeman (defendant) was found guilty on 19 April 2002 of first degree murder under the felony murder rule and of first degree rape. Defendant was sentenced to life in prison for first degree murder and to a minimum term of 384 months to a maximum term of 470 months in prison for first degree rape. Defendant appeals.
    Marcus Smith (Smith) testified at trial that at approximately 5:30 a.m. on the morning of 8 April 2001, defendant knocked on the door of Smith's residence near Whiteville, North Carolina. When Smith opened the door, defendant asked Smith who the woman was who was standing outside Smith's trailer. Smith told defendant thewoman was "Nell." Defendant entered Smith's trailer, he and Smith "talked [and] drunk a couple of beers" and defendant left.
    Smith also testified that when defendant arrived at Smith's residence on the morning of 8 April, defendant was wearing a toboggan with "some balls on it." Smith identified the toboggan marked as State's Exhibit 14 as being the toboggan defendant was wearing on the morning of 8 April.
    Doris Rose (Rose) testified that she was sharing her residence with defendant. She stated that defendant left their residence shortly after midnight on 8 April 2001, returned at about two or three o'clock in the morning, and then left again. Rose also identified State's Exhibit 14 as defendant's toboggan and testified that defendant was wearing the toboggan when he first left their residence shortly after midnight on 8 April 2001.
    Rose further testified that during the morning of 8 April, defendant returned to the residence he shared with her. Defendant removed his clothes and took a shower. Rose testified that she observed that defendant's clothes were wet and muddy, and that he had "fresh" scratch marks around his waist. Rose said defendant confessed to her that he "done killed somebody." At first, defendant claimed that he killed a "white man," but then told Rose, "[i]f I tell you, you might tell on me."
    Law enforcement officials found the body of a woman, who was later identified as Lenora Nell Bellamy (the victim), in a ditch near the Old Chadbourn Highway on 9 April 2001. It was determined that she likely died as a result of strangulation. Defendant's DNAwas discovered in the victim's mouth and vagina. A toboggan, identified as defendant's, was found in the shallow water under the victim's body.
    Defendant admitted to having sex with the victim but denied raping or killing her. In support of his innocence, defendant produced a letter he claimed to have received from Rose while in jail. The letter read in part, "Steven, I read your letter and I am very sorry about my statement. But I was scared that they were going to lock me up if I hadn't told a lie on the lie detector test."
    While Rose admitted writing the letter, she testified that she had written the words, "[b]ut I was scared that they were going to lock me up if I had told a lie on the lie detector test." Rose specifically testified, "I did not put that 'hadn't' there."
    On cross-examination, defendant denied that he had altered Rose's letter by changing "had" to "hadn't." Defendant was also asked about his prior convictions and he admitted he had been convicted of breaking and entering and larceny in 1993, as well as miscellaneous drug offenses. Relying on defendant's prior convictions, the State contended in its closing argument that defendant was the type of person who would forge or alter a letter. Defendant objected to that characterization, but the objection was overruled.
    In his first argument, defendant contends the trial court committed prejudicial error by allowing the State to argue, over defendant's objection, that based on defendant's prior convictions,defendant was the type of person who would lie and forge evidence. Defendant argues the State improperly used defendant's prior convictions to "show that [defendant] had altered the letter [from Rose] and was guilty of [rape and murder]." However, there is nothing in the record to support defendant's contention that his prior convictions were used to show that he was guilty of rape and murder. Rather, the State used defendant's prior convictions to impeach defendant's testimony and credibility.
    It is well established that such use of prior convictions by the State is permissible to cast doubt on the credibility of a witness. State v. Tucker, 317 N.C. 532, 543, 346 S.E.2d 417, 423 (1986); see also N.C. Gen. Stat. § 8C-1, Rule 609(a) (2003). Our Supreme Court has held that "[w]hen a defendant chooses to testify, evidence of prior convictions is admissible for the purpose of impeaching his credibility under Rule 609(a)." State v. Lynch, 334 N.C. 402, 408-9, 432 S.E.2d 349, 352 (1993). N.C.G.S. § 8C-1, Rule 609(a) provides that "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter." Although the evidence of prior convictions may be admissible, it has been held to be prejudicial error to use a defendant's prior convictions as substantive evidence for the purpose of conviction of the crime charged. State v. McEachin, 142 N.C. App. 60, 70, 541 S.E.2d 792, 799 (2001) (It was improper forthe State to argue to the jury that the defendant "killed before and . . . he's killed again," suggesting to the jury that it could consider evidence of the defendant's prior convictions as substantive evidence.).
    In the present case, the State did not use evidence of defendant's prior convictions to imply that defendant was the kind of person who would commit rape or murder. Rather, the State used evidence of defendant's prior convictions to imply that he was the kind of person who would forge or alter evidence. The mention of forgery was directly connected to the matter of defendant's credibility, which had to be established to evaluate defendant's testimony in comparison to that of Rose and other witnesses. There was ample evidence of defendant's prior convictions, and they were properly used to challenge defendant's credibility.
    However, even if this part of the State's closing argument was improper, it was a harmless error. The test for whether an error is prejudicial or harmless is whether "'there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.'" State v. Hoffman, 349 N.C. 167, 182, 505 S.E.2d 80, 89 (1998) (citing N.C. Gen. Stat. § 15A-1443(a)), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999). Based on the overwhelming evidence of defendant's guilt and in light of the trial court's instruction to the jury that it was not to consider evidence of defendant's prior convictions as evidence of guilt in the present case, we conclude there is not a reasonable possibilitythat a different result would have been reached at trial had this evidence not been admitted. See State v. Autry, 321 N.C. 392, 399- 400, 364 S.E.2d 341, 346 (1988) (overwhelming evidence of guilt may render error of constitutional dimensions harmless beyond a reasonable doubt). Furthermore, we note the inference that defendant forged the letter and then lied about it under cross- examination can be reached without the State's alleged inappropriate statement. Therefore, this assignment of error is without merit.
    Defendant also argues that the sentence imposed for first degree rape was unlawful. Defendant was convicted of first degree murder under the felony murder rule, with rape as the underlying felony. Under the felony murder rule, the underlying felony merges into the felony murder conviction, so that a separate sentence for the underlying felony cannot be imposed. State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002). The State concedes the trial court erred in imposing an additional sentence. Therefore, we order that judgment be arrested for defendant's conviction for first degree rape.
    Defendant has failed to present an argument regarding his remaining assignments of error. Therefore, pursuant to N.C.R. App. P. 28(b)(6), these assignments of error are deemed abandoned.
    No error in part; judgment arrested for first degree rape conviction.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).

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