STATE OF NORTH CAROLINA
v. Durham County
No. 04CRS053630
LEVETTE LYNN LIPSCOMB
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David J. Adinolfi II, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
HUNTER, Judge.
Levette Lynn Lipscomb (“defendant”) appeals from a judgment
sentencing him to an active term of imprisonment for a minimum of
sixty-two months and a maximum of eighty-four months upon his
conviction by a jury of robbery with a dangerous weapon. The sole
assignment of error argued by defendant presents the issue of
whether the trial court committed prejudicial error by allowing the
State to cross-examine defendant regarding his membership in the
Crips street gang. For the reasons stated herein, we find no
error.
George Dare (“Dare”) testified that on the evening of 15
August 2004, he had just returned a female friend to her home when
a black male, whom he identified as defendant, approached Dare'svehicle, pointed a gun at Dare's head, and asked Dare to give him
all of his money. As Dare reached for his wallet, defendant
grabbed it and ran.
On 2 November 2004, a police officer conducted a stop of a
vehicle being operated by defendant. During a search of the
vehicle, the officer seized a .22 caliber handgun. Dare identified
the gun as the one pointed at his head on 15 August 2004.
Defendant testified that he conspired with another man and
Dare's female friend to rob Dare. He asserted that the other man
pointed a toy BB gun, not a real gun, at Dare, and that defendant
did not point the gun. Defendant's girlfriend testified that she
subsequently sold the toy BB gun to a friend she could identify
only as “T.J” for the sum of $60.00.
During cross-examination of defendant, the prosecutor showed
defendant the .22 caliber handgun seized from defendant's vehicle
and asked him about certain markings that appeared on the gun. The
following transpired:
Q What's that marking right there that
you're looking at?
A It's a star.
Q And then over here what is this
marking?
A It's a 30 sign.
Q Did you put these markings on the
weapon?
A Yes.
Q What does the 30 stand for?
MR. AUS: I'm going to object at this
point, Your Honor.
THE COURT: Overruled.
THE WITNESS: It's a symbol of a gang.
CROSS EXAMINATION RESUMED _ BY MR. GARRELL
Q Okay, and the star, what does that
stand for?
A It's a six month star. It's a
symbol of a gang.
Q Are you in a gang?
MR. AUS: Objection.
THE COURT: Overruled.
THE WITNESS: Yes.
CROSS EXAMINATION RESUMED _ BY MR. GARRELL
Q How long have you been in a gang?
A Ever since I was 15.
Q What's the name of the gang?
A The Crips.
Q Did you give -- how much money did
you get on this robbery?
A Twelve dollars.
Q Have you ever committed any other
robberies for The Crips?
A No, sir.
MR. AUS: I'm going to object and move to
strike on that.
THE COURT: Objection sustained. Motion
to Strike allowed. Members of the jury,
disregard the question, have you ever done any
other robberies with The Crips. That will
take no part in your deliberations. Dismiss
that from your minds. . . . Unless relevant to an issue in the case, evidence of one's
membership in a gang or other nefarious group is not admissible.
State v. Atkins, 349 N.C. 62, 94-95, 505 S.E.2d 97, 117 (1998);
State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985).
Notwithstanding,
the law wisely permits evidence not otherwise
admissible to be offered to explain or rebut
evidence elicited by the defendant himself.
Where one party introduces evidence as to a
particular fact or transaction, the other
party is entitled to introduce evidence in
explanation or rebuttal thereof, even though
such latter evidence would be incompetent or
irrelevant had it been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
Moreover, when a defendant takes the stand and offers evidence of
good character, he subjects himself to impeachment by evidence of
acts which tend to discredit his character and his credibility.
State v. Ammons, 167 N.C. App. 721, 728, 606 S.E.2d 400, 405
(2005). “Whether cross-examination transcends propriety or is
unfair is a matter resting largely in the sole discretion of the
trial judge, and his ruling thereon will not be disturbed absent a
showing of gross abuse of discretion.” State v. Ruof, 296 N.C.
623, 633, 252 S.E.2d 720, 726 (1979).
Here, defendant opened the door to cross-examination regarding
his association in a gang notorious for engaging in violent
criminal activity by testifying “it's just been tearing me up
because I robbed someone. I'm not a person that robs anyone. I
don't want anyone looking at me like I'm a bad guy or anything like
that.” Defendant further testified when asked why he robbed thevictim that he was, “[t]rying to be somebody that I'm not. Trying
to be cool. Just listening to other people when I should have been
getting away from that kind of stuff.” By testifying as to his
good character as someone who was not a “bad guy” or robbed people,
and that his actions in robbing the victim was the result of trying
to be something he was not, defendant subjected himself to
impeachment by acts which discredited his credibility. Further, by
testifying that his motivation for the robbery was a result of
“listening to other people” when he “should have been getting away
from that kind of stuff[,]” defendant opened the door for further
questions as to his associations upon cross-examination.
Even if the admission of the testimony was error, we are not
persuaded that the error was prejudicial. See State v. Mann, 355
N.C. 294, 305-06, 560 S.E.2d 776, 784, (2002). We do not believe
it is reasonably possible that without this evidence a jury may
have found defendant guilty of common law robbery, as defendant
urged the jury to find, instead of robbery with a dangerous weapon.
Dare told an investigating officer the day after the incident that
the gun pointed at him was “a black revolver with a long barrel.”
The gun seized from defendant was a “Caliber .22 long rifle”
firearm. Dare positively identified the gun seized from defendant
as the one used to rob him. On the other hand, defendant could not
produce the toy BB gun. Defendant's girlfriend could only identify
the purchaser as a friend named “T.J.,” who could not be located.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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