An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1079


Filed: 15 November 2005


v .                         Brunswick County
                            Nos. 02 CRS 57572-74
GOFERY LARIN HANKINS,                02 CRS 57576
        Defendant                    02 CRS 57580
                                02 CRS 57586-87
                                02 CRS 57594-95
                                03 CRS 630
                                03 CRS 3616
                                03 CRS 4606

    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.

    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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