Appeal by defendant from judgments signed 27 January 2004 by
Judge James Floyd Ammons, Jr., in Brunswick County Superior Court.
Heard in the Court of Appeals 10 May 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Dale Talbert, for the State.
Michelle FormyDuval Lynch for defendant.
BRYANT, Judge.
Gofery Larin Hankins (defendant) appeals two consolidated
judgments sentencing him to two consecutive terms of 107 to 138
months imprisonment, entered consistent with jury verdicts finding
him guilty of assault on a government official (02 CRS 57572), two
counts of resisting a public officer, (02 CRS 57573 and 02 CRS
57574), injury to personal property (02 CRS 57576), two counts of
misdemeanor possession of stolen goods (02 CRS 57580 and 02 CRS
57586), misdemeanor larceny (02 CRS 57587), felony possession of
heroin (02 CRS 57594), maintaining vehicle for controlled substance
(02 CRS 57599), felony speeding to elude arrest (03 CRS 3616), andone count of assault with a deadly weapon on a law enforcement
officer (03 CRS 4606). Defendant admitted to habitual felon status
pursuant to a plea agreement.
Factual Summary
On 9 December 2002 defendant was observed operating a vehicle
matching the description of a vehicle used in the commission of the
theft of tool boxes by two individuals at the Home Depot in
Shallotte, North Carolina. Defendant engaged Brunswick County
Sheriff's Deputies in a car chase, then a foot chase before being
arrested. During the arrest, defendant resisted and struggled,
resulting in injury to one of the deputies. A search of
defendant's vehicle incident to the arrest yielded a white powder
later determined to be heroin. Defendant appeals his convictions.
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Defendant argues on appeal,
inter alia, the trial court
committed reversible error by allowing the State to introduce into
evidence testimony regarding Willie Allen's guilty plea based on
the same events and charges. We agree and remand for a new trial.
Willie Allen was arrested and charged based on the same events
as defendant. In
State v. Batchelor, 157 N.C. App. 421, 579 S.E.2d
422 (2003), this Court held:
The “clear rule” is that evidence of
convictions, guilty pleas, and pleas of nolo
contendere of non-testifying co-defendants is
inadmissible unless introduced for a
legitimate purpose, i.e., used for a purpose
other than evidence of the guilt of the
defendant on trial.
State v. Rothwell, 308
N.C. 782, 303 S.E.2d 798 (1983). This Court
has previously determined that this rule
applies equally to evidence that co-defendantswere charged and tried.
State v. Gary, 78
N.C. App. 29, 337 S.E.2d 70 (1985). This
Court reasoned that:
The policies underlying the rule,
(1) that an individual defendant's
guilt must be determined solely on
the basis of the evidence presented
against that defendant and (2) that
the introduction of evidence of
charges against co-defendants
deprives a defendant of the right to
cross examination and confrontation,
. . . apply equally to evidence that
they were charged and evidence that
they were tried.
Id. at 37, 337
S.E.2d at 76.
Batchelor, 157 N.C. App. at 430-31, 579 S.E.2d at 429.
Additionally, where the State introduced evidence that another
person had been charged and tried based on the same events, but did
not introduce evidence of the result of the prosecution, this Court
stated that the 'clear rule' barring evidence of convictions of
non-testifying co-defendants would also bar evidence concerning the
other charges and trial.
State v. Gary, 78 N.C. App. 29, 37-38,
337 S.E.2d 70, 76 (1985) (“[N]o purpose was served by informing the
jury that [the other person] had been tried, other than to suggest
that he had also been convicted, and by inference that defendant
should receive the same treatment.”).
Here, during testimony in the presence of the jury, the
following colloquy transpired:
Q. Officer Tolley, one more thing; I have
one more quick question. You had
testified earlier, to some extent, about
Willie Allen's involvement in this?
A. Yes, sir.
Q. And the defendant in his opening argumenthad indicated that all of Willie Allen's
charges had been dismissed. Is that true?
A. No, sir.
Q. Where is Willie Allen right now?
A. He's in federal prison
Q. Why is he in federal prison?
A. He was turned over to the federal
authorities
on these same charges and
received _ pled out to twenty-five to
life.
[DEFENSE COUNSEL]: Objection
Q. On these charges?
COURT: Overruled.
A. Yes, sir.
Q. He pled out to twenty-five to life
because of this?
A. Yes, sir.
Q. Thank you.
(Emphasis added.) The record is void of any evidence regarding the
“legitimate purpose” served by introduction of Allen's guilty plea
based on the same events and charges. The admission of this
evidence was prejudicial error.
This matter is remanded for a new trial. As a result of our
decision it is unnecessary for us to address defendant's other
assignments of error.
New trial.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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