STATE OF NORTH CAROLINA
v
.
Robeson County
No. 01 CRS 15603
JEROME ALLEN FLOYD
Attorney General Roy Cooper, by Special Deputy Attorney
General Kathryn Jones Cooper and Associate Attorney General
Nancy Reed Dunn, for the State.
Geoffrey W. Hosford for defendant-appellant.
THORNBURG, Judge.
Defendant Jerome Allen Floyd appeals from judgment entered
upon his conviction by a jury of robbery with a dangerous weapon.
At trial the prosecuting witness, Richard Lee Hester (“Mr.
Hester”), testified as follows: On the evening of 19 August 2001,
Mr. Hester was walking to a friend's house when he noticed
defendant leaning against a car. Defendant called out to Mr.
Hester and asked Mr. Hester if he needed anything. Mr. Hester said
he did not need anything and kept walking. Mr. Hester then heard
someone approaching behind him. The person grabbed Mr. Hester's
belt and placed a gun to Mr. Hester's head. Mr. Hester was then
ordered to lie down and the person hit Mr. Hester on the side of
his head with the gun, causing the gun to fire and leaving a largegash on Mr. Hester's head. The assailant then reached into Mr.
Hester's pocket and pulled out thirty-eight dollars and a ring.
Mr. Hester was then allowed to stand up. After standing up, Mr.
Hester was able to see the assailant and identified him as
defendant.
Defendant presented evidence indicating that he was having his
hair braided during the time of the robbery. The jury returned a
verdict of guilty of robbery with a dangerous weapon. Defendant
was sentenced to a term of 120 to 153 months in the custody of the
North Carolina Department of Correction. Defendant appeals.
Defendant first argues that the trial court erred by failing
to allow defendant to present evidence of Mr. Hester's drug use.
At trial defense witness Lena McIntyre (“Ms. McIntyre”) testified
that she was braiding defendant's hair during the time of the
alleged robbery. She also testified that she knew Mr. Hester.
Defense counsel then asked Ms. McIntyre if she had ever seen Mr.
Hester use drugs. The trial court sustained the State's objection
to this question. Defendant argues that this question was a
permissible attempt to attack Mr. Hester's credibility and cites
State v. Williams, 330 N.C. 711, 412 S.E.2d 359 (1992), as support
for this argument. In Williams the Court granted the defendant a
new trial, holding that the trial court erred by not allowing the
defendant to cross-examine the key prosecuting witness about his
suicide attempts, psychiatric history, and drug habit. Id. at 724,
412 S.E.2d at 367. The Court concluded that this evidence wasadmissible under North Carolina Rule of Evidence 611(b) which
states:
(b) Scope of cross-examination. - A witness
may be cross-examined on any matter relevant
to any issue in the case, including
credibility.
N.C. Gen. Stat. . 8C-1, Rule 611(b)(2003). The Williams Court
explained how the disputed evidence was relevant to credibility as
follows:
While specific instances of drug use or mental
instability are not directly probative of
truthfulness, they may bear upon credibility
in other ways, such as to cast doubt upon the
capacity of a witness to observe, recollect,
and recount, and if so they are properly the
subject not only of cross-examination but of
extrinsic evidence . . . .
Id. at 719, 412 S.E.2d at 364 (citation and quotation marks
omitted). Because the Court referred to instances of drug use as
admissible as extrinsic evidence, defendant argues that Ms.
McIntyre should have been allowed to testify concerning Mr.
Hester's alleged drug use. We disagree.
In Williams, the contested evidence was proffered during
cross-examination of the principal prosecuting witness William
Carroll. Carroll was also charged with the death of the victim but
had agreed to testify for the State. The defendant wanted to
cross-examine Carroll concerning Carroll's two suicide attempts,
psychiatric treatment, and history of chronic marijuana and cocaine
abuse, in order to cast doubt on Carroll's credibility. The Court,
in holding that this cross-examination should be allowed,
emphasized that “[a]ll the North Carolina cases [allowing a similarform of impeachment] involved cross-examination of key State
witnesses.” Id. at 723, 412 S.E.2d at 366. As Rule 611(b)
specifically refers to cross-examination as the appropriate manner
to question the credibility of a witness under that rule and the
facts and holding of Williams involve cross-examination, we decline
to hold that the trial court erred by not allowing this evidence to
be admitted under Rule 611(b) during the defendant's case-in-chief.
Nor would Rule 608(b) allow admission of the testimony because
that rule also limits this type of impeachment to cross-examination
of witnesses. N.C. Gen. Stat. . 8C-1, Rule 608(b)(2003). Because
the evidence at issue is not admissible to impeach under Rule
611(b) or Rule 608(b), our final inquiry is whether the evidence is
relevant so as to be admitted as extrinsic evidence. See N.C. Gen.
Stat. . 8C-1, Rule 402 (2003)(“All relevant evidence is admissible
. . . .”). At best the excluded testimony would show that Mr.
Hester had at some time in the past used drugs. We conclude that
this evidence is not relevant to any issue at trial. Accordingly,
the trial court properly sustained the objection to defense
counsel's question. This assignment of error is overruled.
Defendant's next argument asserts that the trial court erred
when it sustained the prosecutor's objection to a question by
defense counsel before the entire question was stated. Defendant
asserts that this interruption violated defendant's constitutional
right to cross-examine adverse witnesses and could have prevented
the admission of evidence crucial to the defense. Defendant did
not preserve these arguments by an objection at trial. Althoughthe relevant assignment of error alleges plain error, defendant's
appellate brief does not contend that the trial court's sustaining
of the State's objection and the result that the sought evidence
was not admitted constituted plain error. Accordingly, defendant
waived appellate review of this alleged error. State v. Nobles,
350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999). This assignment
of error is dismissed.
Defendant's final argument is that the trial court committed
plain error by allowing the prosecutor to question defendant about
defendant's convictions for second-degree trespass. “In meeting
the heavy burden of plain error analysis, a defendant must convince
this Court, with support from the record, that the claimed error is
so fundamental, so basic, so prejudicial, or so lacking in its
elements that absent the error the jury probably would have reached
a different verdict.” State v. Cummings, 352 N.C. 600, 636, 536
S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641
(2001). While it was error for these convictions to be admitted,
we are unconvinced that this error rises to the level of plain
error. In State v. Hensley, 77 N.C. App. 192, 334 S.E.2d 783
(1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986),
this Court held that admitting a thirteen-year-old conviction was
error but did not rise to the level of plain error because the
State had properly impeached the defendant with evidence of seven
other convictions. Id. at 196-97, 334 S.E.2d at 785. In the
instant case, defendant was properly impeached with evidence of
several more serious crimes. Accordingly, we conclude that theerrant admission of the misdemeanor convictions was not so
fundamental as to deny defendant a fair trial or cause a change in
the verdict. This assignment of error is overruled.
No error.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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