STATE OF NORTH CAROLINA
v
.
Wake County
No. 99 CRS 17704
HIRAM CLARK
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant-
appellant.
CALABRIA, Judge.
Hiram Clark (“defendant”) appeals a sentence of life
imprisonment without parole entered upon a jury verdict finding him
guilty of the first-degree murder of Roderick Barham (the “victim”)
under the felony murder rule. We find no error.
On 1 March 1999, Jockques Meekins (“Meekins”) and the victim
drove to Quarry Street in a small, red Geo Metro in order to
purchase marijuana. While Meekins stayed in the vehicle, the
victim searched between some apartment buildings to see if he could
find someone selling marijuana. The victim quickly returned to the
vehicle and said to Meekins “it ain't nothing.” As the victimreentered the vehicle, Meekins heard gunshots and fled from the
scene in the vehicle. The victim was struck in the head and
fatally wounded by one of the shots fired.
At trial the State offered the testimony of James Hinton
(“Hinton”). Hinton, defendant's uncle, testified in relevant part
that defendant had brought a gun to his apartment at Quarry Street
and asked Hinton to “put it up there in the house.” Hinton placed
the gun in a box under some quilts in a hall closet. On the night
of 1 March 1999, defendant told Hinton someone outside was trying
to sell drugs and asked Hinton to get the gun. Hinton retrieved
the gun and placed it on a chair in the same room with defendant,
who was standing in the front door. Hinton then left the room and
went into the kitchen. When he heard shooting, he went to the
front door, looked out, and saw defendant standing at a store near
the apartment. When defendant reentered the apartment, he laid the
gun on the kitchen table, and Hinton asked defendant if it was
empty.
Later the State called Detective Brad Kennon (“Detective
Kennon”), who investigates homicides in the major crimes unit of
the Raleigh Police Department. Detective Kennon testified he
interviewed Hinton as part of his investigation of the victim's
death. Detective Kennon maintained Hinton previously told him
about hiding the gun defendant had given him in the house and
indicated only he knew where it was located. Defendant objected
and, after hearing arguments outside the presence of the jury, the
trial court found the testimony to be admissible as corroborativeof Hinton's earlier testimony. The State also forecasted that it
intended to ask questions of Detective Kennon to elicit testimony
that Hinton, in the earlier interview, stated he actually saw
defendant shooting. The trial court noted such testimony would not
be admissible as corroborative but could be admitted as
impeachment. When the jury returned to the courtroom, the State
elicited each of these statements from Detective Kennon.
At trial, the State also offered testimony by Tiffney Shonta
Hinton (“Ms. Hinton”), defendant's cousin. Ms. Hinton testified
that she went to Quarry Street on the night of 1 March 1999 in
order to purchase some marijuana. Ms. Hinton testified she saw
defendant exit Hinton's apartment, walk towards a store located
near the apartment, and shoot at a red car. Ms. Hinton also
testified, over objection, that defendant sold drugs on Quarry
Street on “a daily basis.” The trial court allowed the testimony
solely for the purpose of showing defendant's motive.
Both at the close of the State's evidence and at the close of
all the evidence, defendant moved to dismiss the charges. The
trial court denied defendant's motions, and the jury returned a
verdict of guilty of first-degree murder under the felony murder
rule. The trial court sentenced defendant to life imprisonment
without parole, and defendant gave notice of appeal. On appeal,
defendant asserts the trial court erred by (I) permitting Detective
Kennon to testify concerning certain statements made by Hinton when
such statements did not corroborate his in-court testimony and (II)
permitting the State to elicit testimony that defendant sold drugs.I. Detective Kennon's Testimony
A. Hinton's previous statements concerning his hiding the gun
In his first assignment of error, defendant contends the trial
court erred by overruling his objection to Detective Kennon's
testimony regarding Hinton's previous statements that he had hidden
the gun and that defendant did not know the gun's location.
Defendant contends this testimony was not corroborative of Hinton's
in-court testimony. We disagree.
Our Supreme Court has addressed this principle of properly
admissible corroborative testimony on a number of occasions.
Corroboration has been defined as the process
of persuading the trier of the facts that a
witness is credible -- the opposite of
impeachment. Under North Carolina law, a
trial court has wide latitude in deciding when
a prior consistent statement can be admitted
for corroborative, non-hearsay purposes. This
Court has defined corroboration as meaning, to
strengthen; to add weight or credibility to a
thing by additional and confirming facts or
evidence. Under the case law of this state,
the latitude for admission of prior consistent
statements is so wide that we do not require
that a witness be impeached before a prior
consistent statement is admissible as
corroborative. The theory behind admitting
prior consistent statements for the
non-hearsay purpose of buttressing the
credibility of a witness rests upon the
obvious principle that, as conflicting
statements impair, so uniform and consistent
statements sustain and strengthen [the
witness'] credit before the jury. A prior
consistent statement may be admissible as
non-hearsay even when it contains new or
additional information when such information
tends to strengthen or add credibility to the
testimony which it corroborates.
State v. Levan, 326 N.C. 155, 166-67, 388 S.E.2d 429, 435 (1990)
(internal citations and quotation marks omitted). At trial, Hinton testified defendant brought the gun to the
apartment and asked him to “put it up in the house” and that he
did, in fact, “put it up” by placing it in a box under some quilts
in the hall closet. He further testified he had not seen the gun
from the time he placed it in the closet until he complied with
defendant's request to retrieve it. Detective Kennon's testimony
concerning Hinton's previous statement was that Hinton had
indicated defendant had given him a gun and he had hidden it in the
house and only he knew the location. We do not perceive error on
the part of the trial court in allowing this testimony as
corroborative.
Whether Hinton “put” the gun in a box under some quilts in the
closet, as he testified in court, or “hid” the gun in a box under
some quilts in the closet, as Detective Kennon testified he had
previously stated seems, at best, a semantic argument. Either word
was appropriate to identify the gun's location. Moreover, because
the gun was under quilts in a box in the closet, it follows that
defendant might not have known the gun's location. This also
comports with Hinton's testimony that he was asked by defendant to
get the gun. We hold the trial court did not err in admitting
Detective Kennon's testimony concerning Hinton's prior statements
to corroborate Hinton's in-court testimony. We note in passing
that, even if it was error, given the eyewitness testimony of Ms.
Hinton and other evidence adduced at trial, any error was harmless.
See N.C. Gen. Stat. § 15A-1443(a) (2003).B. Hinton's previous statements concerning his seeing defendant
shooting the gun
Defendant also asserts, in his first assignment of error, that
the trial court erred by allowing Detective Kennon to testify as to
Hinton's previous statements that he saw defendant firing the gun
on the night of the murder in the direction of the car in which
victim was hit. Defendant contends Hinton specifically testified
at trial that he had not seen defendant shooting the gun;
therefore, the trial court could not allow that testimony in for
corroborative purposes. The State agrees with defendant that the
testimony at issue was not admissible as corroborative; however,
the State asserts the testimony was admissible for the purpose of
impeaching Hinton's in-court testimony that he had not seen
defendant firing the gun. We agree.
Our Rules of Evidence expressly provide that “[t]he
credibility of a witness may be attacked by any party, including
the party calling him.” N.C. Gen. Stat. § 8C-1, Rule 607 (2003).
One method by which a witness' credibility may be attacked is
through the use of prior inconsistent statements. State v.
Crockett, 138 N.C. App. 109, 118, 530 S.E.2d 359, 365 (2000).
“When a prior inconsistent statement by a witness relates to
material facts in the witness' testimony, the prior statement may
be proved by extrinsic evidence. Facts are material when they
involve matters pertinent to the pending inquiry.” Id. (internal
citations and quotation marks omitted). In State v. Crockett, this
Court considered the propriety of the State impeaching a witness'answers “through the use of extrinsic evidence from a policeman”
who was later called to the stand and testified as to the witness'
prior inconsistent statement. Although the testimony at issue in
Crockett was ultimately found to be inadmissible because it
concerned matters collateral to the main issue, the State's method
of impeaching the witness was not criticized. Here, the same
method of impeachment was utilized when the State used Detective
Kennon's testimony regarding Hinton's prior statements to impeach
his in-court testimony. As in Crockett, we perceive no error in
the State's method of impeachment. Unlike Crockett, however,
Hinton's statement to Detective Kennon, that defendant was firing
the gun in the direction of a red car similar to the Geo Metro
driven by Meekins on the night the victim was killed, is material
to the main issue in the prosecution. Accordingly, the trial court
appropriately admitted this testimony.
“[W]e note that while North Carolina Rule of Evidence 607
allows a party to impeach its own witness on a material matter with
a prior inconsistent statement, impeachment is impermissible where
it is used as a mere subterfuge to get evidence before the jury
which is otherwise inadmissible.” State v. Riccard, 142 N.C. App.
298, 304, 542 S.E.2d 320, 324 (2001). Circumstances tending to
show good faith and the absence of subterfuge include an effective
limiting instruction by the trial court following the introduction
of the statement. Id. After the testimony at issue was elicited
in the presence of the jury, defendant requested and received aninstruction regarding impeachment. Specifically, the trial court
instructed the jury as follows:
Members of the jury . . . the defendant
contends that [Detective Kennon's testimony
regarding Hinton's previous statements] should
be considered by you as impeachment evidence
of the testimony given at this trial of James
Hinton. As I earlier instructed you, the term
impeachment means as tending to contradict or
as tending to discredit.
Because the trial court gave an effective limiting instruction to
the jury after Detective Kennon's testimony, we conclude that the
impeachment of Hinton was not “used as a mere subterfuge to get
evidence before the jury which [was] otherwise inadmissible.” Id.
Accordingly, this assignment of error is overruled.
II. Testimony regarding defendant's drug dealing activities
In his second assignment of error, defendant asserts the trial
court erred in permitting the State to elicit testimony from Ms.
Hinton that defendant sold drugs. Immediately following the
State's questioning of Ms. Hinton regarding defendant's drug
activities, the trial court instructed the jury that such testimony
was “received solely for the purpose of showing, to the extent that
you find that it does, that the defendant had a motive for the
commission of the crime charged in this case.” Defendant contends
this portion of Ms. Hinton's testimony was impermissible character
evidence under Rule 404(b) of the North Carolina Rules of Evidence.
Rule 404(b) provides “[e]vidence 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 . . . .” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). It is a “general rule
of inclusion of relevant evidence of other crimes, wrongs or acts
by a defendant, subject to but one exception requiring its
exclusion if its only probative value is to show . . . defendant
has the propensity . . . to commit an offense of the nature of the
crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990).
In light of the facts presented in the case sub judice, we
agree with the State that the challenged testimony was relevant to
show defendant's motive for the victim's murder. The State's
theory at trial was that defendant, a drug dealer, mistook the
victim's intentions on the night of the shooting and shot the
victim under the mistaken impression that he was trying to sell
drugs in the same area as defendant. According to the evidence,
defendant was standing in the front door when Hinton came home that
night, told Hinton someone was selling drugs, and asked Hinton to
get the gun located in the house. Additionally, evidence was
presented that, after the shooting, defendant yelled, “Don't be
selling on our block.” Ms. Hinton's testimony of defendant's drug
related activities in the same area the shooting occurred was
admissible to show why defendant shot at the victim. We conclude
this evidence was properly indicative of defendant's motive under
Rule 404(b), and this assignment of error is overruled.
No error.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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