STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 02 CRS 19010
DUANE ANDRE HARVIN
Attorney General Roy Cooper, by Special Deputy Attorney
General John F. Maddrey, for the State.
Joseph E. Zeszotarski, Jr., for defendant-appellant.
CALABRIA, Judge.
On 30 May 2002, David Lee Jordan (the “victim”) and his friend
Stephen Faulker (“Faulker”) moved the victim's belongings from
Myrtle Beach, South Carolina to the victim's new residence in
Wilmington, North Carolina. Faulker drove the victim's vehicle
while the victim sat in the passenger seat. Upon their arrival in
Wilmington, the victim instructed Faulker to drive into what
Faulkner described as a “bad looking neighborhood” so the victim
could purchase crack cocaine.
Faulker drove to the neighborhood and pulled to the curb. An
individual other than Duane Andre Harvin (“defendant”) approached
the driver's side door of the car. Faulker directed him to thevictim. The individual went to the passenger's side of the
vehicle, spoke with the victim, and handed the victim a piece of
crack cocaine. The victim did not have enough money to purchase
the drugs; therefore, as soon as he received the crack cocaine, he
yelled to Faulker, “Go, go, go!” Faulker heard three gunshots as
he sped off, and the victim told him, “I'm shot.” Faulker drove to
a nearby bar and called 911. The victim died by the time
assistance arrived. The fatal shot entered the victim's back
between his shoulder blades and exited from the center of his
chest.
Defendant was indicted on 13 January 2003 and tried for one
count of discharging a firearm into occupied property and one count
of first-degree murder. Relevant to this appeal, testimony at
trial indicated defendant was a drug dealer in the area where the
incident occurred, and the individual who approached the victim was
his “drug runner.” A drug runner is a person who, on behalf of the
drug dealer, approaches individuals, determines what they want,
conducts the exchange of drugs for money, and then gives the money
back to the drug dealer. On 1 August 2003, a jury returned
verdicts of guilty of first-degree murder under the felony murder
rule and discharging a weapon into occupied property. The trial
court arrested judgment as to the discharge of a weapon into
occupied property and sentenced defendant to life imprisonment
without parole. Defendant appeals.
I. Evidentiary Rulings
A. Character Evidence Defendant asserts the trial court committed reversible error
by admitting, over defendant's objection, testimony concerning
whether defendant was a drug dealer because it was unfairly
prejudicial, improper character evidence under N.C. Gen. Stat. §
8C-1, Rules 403 and 404 (2003). We disagree.
Rule 404(b) states, in relevant part, as follows:
(b) Other crimes, wrongs, or acts. _- 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.
“Rule 404(b) is a rule of inclusion 'subject to but one exception
requiring [the] exclusion [of evidence] if its only probative value
is to show that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.'” State v.
Rose, 339 N.C. 172, 189, 451 S.E.2d 211, 221 (1994) (quoting State
v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990)). “[E]ven
though evidence may tend to show other crimes, wrongs, or acts by
the defendant and his propensity to commit them, it is admissible
under Rule 404(b) so long as it also is relevant for some purpose
other than to show that defendant has the propensity for the type
of conduct for which he is being tried.” Coffey, 326 N.C. at 279,
389 S.E.2d at 54 (internal quotation marks and citation omitted).
In the instant case, evidence that defendant was a drug dealer
was admissible and relevant to show his motive for firing at the
fleeing car. The State's theory of the case was that defendantfired at the victim when the victim tried to steal the cocaine from
defendant's drug runner by leaving without paying for the drugs.
Without the knowledge that defendant was a drug dealer in the area,
the jury would have no basis upon which it could determine
defendant's reason for firing at the car, and the State's case
would have made little sense. Accord State v. Ligon, 332 N.C. 224,
420 S.E.2d 136 (1992) (evidence that defendant dealt drugs was
properly admitted to show motive under Rule 404(b) where the State
contended the victim was shot because he attempted to steal cocaine
from defendant). Accordingly, the evidence was admissible to show
defendant's motive.
Defendant alternatively argues the evidence was inadmissible
as unfairly prejudicial under Rule 403, which provides as follows:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
“The decision whether to exclude relevant evidence under Rule 403
lies within the sound discretion of the trial court, and its ruling
may be reversed for abuse of discretion only upon a showing that
the ruling was so arbitrary that it could not have been the result
of a reasoned decision[.]” State v. Garcia, 358 N.C. 382, 416-17,
597 S.E.2d 724, 749 (2004) (internal citations and quotation marks
omitted). In the case sub judice, however, the challenged evidence
provided defendant's motive for firing at the victim's car.
Accordingly, we cannot say the trial court abused its discretion indetermining that the danger of unfair prejudice of the testimony
did not substantially outweigh the probative value. This
assignment of error is overruled.
B. Limitation on Cross-Examination
Defendant next argues that the trial court improperly limited
his cross-examination of a witness about “false statements he made
on a sworn financial affidavit submitted . . . to the trial
court[.]” The State contends that defendant has not properly
preserved this issue for appellate review because defendant made no
offer of proof of the excluded testimony. We agree with the State.
Our Supreme Court has said,
[I]n order for a party to preserve for
appellate review the exclusion of evidence,
the significance of the excluded evidence must
be made to appear in the record and a specific
offer of proof is required unless the
significance of the evidence is obvious from
the record. . . . [T]he essential content or
substance of the witness' testimony must be
shown before we can ascertain whether
prejudicial error occurred.
State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). In
the instant case, the following exchange took place between counsel
for defendant and Terrence Howard, a witness for the State:
Q: Mr. Howard, can I show you something and
ask you to take a look at it for just a
minute?
A: Which one, both?
Q: Yeah, both. That would be the back of that
one, so to speak, that has your signature on
it, right?
A: (No response.)
Q: Could you just answer that for Ms.
Stancill, the court reporter?
A: Yeah, this is my signature.
Q: And that was given under oath, right?
A: I guess so. Q: Well, I mean _-
A: This is a lawyer's thing, isn't it? Is it
a payment?
Q: Well, when you were arrested back --
A: Court-appointed lawyer.
Q: I'm sorry, go ahead and read it.
A: Court-appointed lawyer, yeah. I put
“homeless” just so I can get the lawyer.
Q: Okay.
A: If that's what you are trying to ask.
Q: Oh, okay.
JUROR NO. 9: We can't hear.
A: I put “homeless” on this so I could get
the lawyer, you know. If you have some sort
of source of income, they might charge you. I
been through this a lot. If you have some
sort of source of income, they'll charge you,
so I put homeless. I have no source of income
so they have to give me a lawyer and if they
charge me the money, the $50 and I go to
prison, I don't have to pay it because I'm
doing state time.
[PROSECUTOR]: Your Honor, I'm going to object
to this line of questioning and testifying.
THE COURT: It's time to move on. You made
your point.
[DEFENSE COUNSEL]: Thank you, Mr. Howard.
Defendant made no offer of proof of the excluded testimony at
trial; therefore, we have no record of the testimony defendant
sought to elicit and are left without the ability to determine
what, if any, error occurred. Since defendant has not properly
preserved this issue for our review, this assignment of error is
overruled.
II. Motion to Dismiss
Defendant assigns as error the trial court's failure “to
dismiss the charge of first degree murder based upon the felony
murder rule” on the grounds that “there was insufficient evidence
as a matter of law to support the underlying felony of discharging
a firearm into an occupied vehicle.” Defendant specifically arguesthat the evidence was insufficient to show that defendant was
firing “into” the moving vehicle but rather only showed that
defendant fired “at” the moving vehicle. In State v. Wall, 304
N.C. 609, 617, 286 S.E.2d 68, 73-74 (1982), our Supreme Court said
that “[i]t is an inherently incredible proposition that defendant
could have intentionally fired a shot 'at' the fleeing [vehicle]
without intending that the bullet go 'into' the vehicle.”
Defendant's reliance on the reasoning set forth by the dissent in
Wall is unavailing. This assignment of error is overruled.
No error.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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