An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-812


Filed: 15 June 2004


v .                         Wake County
                            No. 99 CRS 17704

    Appeal by defendant from judgment entered 19 November 1999 by Judge Gregory A. Weeks in Wake County Superior Court. Heard in the Court of Appeals 1 April 2004.

    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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