Opinion
No. COA12–939.
2013-04-16
STATE of North Carolina v. Howard McLEOD.
Attorney General Roy Cooper, by Special Deputy Attorney General David Efird, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Appeal by defendant from judgment entered 18 November 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 29 January 2013. Attorney General Roy Cooper, by Special Deputy Attorney General David Efird, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Howard McLeod (“defendant”) appeals from the judgment entered after a jury found him guilty of assault with a deadly weapon on a government officer and being an habitual felon. On appeal, defendant argues that the trial court erred by: (1) allowing the prosecutor to question defendant about assault charges that occurred more than ten years before the trial; (2) admitting into evidence irrelevant fingerprint cards and related expert witness testimony; and (3) instructing the jury on flight. After careful review, we find no error.
Background
The following evidence was presented at trial. Defendant worked as a sheetrock layer in Wake County. On the night of 7 January 2011 he got off work at 10:15 p.m. Defendant testified that he walked to a supermarket and stopped in an alleyway next to the store to roll marijuana into a cigar. At approximately 12:35 a.m., Officer Shawn Murray (“Officer Murray”) responded to a 911 call reporting a suspicious person. Officer Murray pulled up to the supermarket, noticed an individual in the alleyway, and stopped his vehicle to get a closer look. When Officer Murray, in full police uniform, exited his vehicle, defendant ran.
Officer Murray shouted “Stop, police” but defendant continued to flee, and Officer Murray gave chase. The foot chase continued for about 25 seconds until defendant stopped in the middle of Raleigh Boulevard and turned to face Officer Murray. Officer Murray testified that when defendant turned to face him, defendant had his right hand in the air, and Officer Murray could see “the blade of [a] knife coming off a streetlight.” Feeling threatened, Officer Murray drew his taser gun. Defendant subsequently took two steps and dropped to the ground. Officer Murray then placed defendant in custody. At the scene, officers found a screwdriver and a “silver kitchen knife with a wooden handle” on the ground where defendant had fallen.
Defendant was indicted on charges of assault with a deadly weapon on a government officer and being an habitual felon. A jury trial was held on 9 and 10 November 2011. The jury found defendant guilty of assault with a deadly weapon on a law enforcement officer. The trial judge held a recess for lunch before the habitual felon trial began, at which time defendant asked for and was granted the opportunity to eat lunch with his loved ones. Defendant did not return for the habitual felon phase of his trial, and his attorney was unable to contact him. The trial judge instructed the jury on flight over defense counsel's objection, and the jury found defendant guilty of being an habitual felon. The trial court sentenced defendant to a term of 132 to 168 months imprisonment. Defendant's counsel gave notice of appeal in open court.
Discussion
I. Prior Assault Convictions
Defendant's first argument on appeal is that the trial court erred by allowing the prosecutor to question defendant on two assault convictions that occurred more than ten years prior to the underlying trial for assault with a deadly weapon on a government officer. We disagree.
Prior to trial, the State gave notice of its intent to introduce evidence of defendant's convictions for assault with a deadly weapon from 1994 and assault with a deadly weapon inflicting serious injury from 1995 (“the prior assault convictions”). Defense counsel objected to the admission of this evidence through a motion in limine. The trial court granted the motion but noted that the issue could be revisited during trial. The following exchange took place during the prosecutor's cross-examination of defendant:
Q: Mr. McLeod, can you tell the members of the jury what you've been convicted of in the last ten years carrying a sentence of greater than 60 days?
A: Yes, sir, I can. I have been—I have been charged with possession of stolen property. I have—I've also been charged with communicating a threat, financial card theft, but I never hurt anyone.
(Emphasis added.) Following this testimony, the prosecutor requested to be heard outside the presence of the jury and asked the trial court to allow questioning on the prior assault convictions in order to rebut defendant's testimony that he “never hurt anyone.” The trial court had defendant's statement read back to him, and upon hearing it again, allowed the prosecutor to question defendant about the prior assault convictions. On subsequent cross-examination before the jury, defendant testified that he had been convicted of the prior assault charges, without objection from defense counsel.
Because defense counsel only objected to the questioning through a motion in limine and did not object during cross-examination, this Court's standard of review is plain error. State v. Muhammad, 186 N.C.App. 355, 364, 651 S.E.2d 569, 575–76 (2007), appeal dismissed,362 N.C. 242, 660 S.E.2d 537 (2008).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and quotation marks omitted).
Pursuant to N.C. Gen.Stat. § 8C–1, Rule 609(a), a prosecutor is allowed to impeach a witness by admitting evidence of his previous criminal convictions. State v. Lynch, ––– N.C.App. ––––, ––––, 720 S.E.2d 452, 454 (2011). However, N.C. Gen.Stat. § 8C–1, Rule 609(b) prohibits questioning of a witness about a previous conviction if more than ten years has elapsed since the date of the conviction or the date of the witness's release from imprisonment as a result of the conviction, “unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect.” State v. Lynch, 337 N.C. 415, 420, 445 S.E.2d 581, 582 (1994). “Rule 609(b) is to be used for purposes of impeachment. The use of this rule is necessarily limited by that focus: it is to reveal not the character of the witness, but his credibility. ” State v. Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 165 (1991) (citations and quotation marks omitted). Rule 609(b) requires the trial court to identify “specific facts and circumstances” which support its determination that the evidence's probative value outweighs its prejudicial effect. N.C. Gen.Stat. § 8C–1, Rule 609(b) (2011).
Pursuant to Rule 609(b), the State is permitted to rebut misleading statements made by a defendant. “[W]hen the defendant ‘opens the door’ by misstating his criminal record or the facts of the crimes or actions, or when he has used his criminal record to create an inference favorable to himself, the prosecutor is free to cross-examine him about details of those prior crimes or actions.” State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993); see also State v. Chandler, 100 N.C.App. 706, 710–11, 398 S.E.2d 337, 340 (1990) (holding that where the defendant falsely testified that he had no convictions older than ten years, he created “favorable inferences as to his entire criminal record,” and therefore opened the door for the prosecutor to question him about a misdemeanor possession of marijuana which occurred more than ten years prior to trial).
On appeal, defendant argues that his statement that “[he] never hurt anyone” did not open the door to rebuttal evidence from the State. Defendant testified on redirect that his answer was intended to convey that he had not hurt anyone in the last ten years because the testimony was given in response to a question which specifically asked about convictions in the last ten years. However, the plain meaning of defendant's words (“I never hurt anyone”) was a misstatement of the facts. Defendant had been convicted of two prior assault charges, one of which involved infliction of serious injury. This misstatement of his criminal record created a favorable inference for defendant in the eyes of the jury. See Lynch, 334 N.C. at 412, 432 S.E.2d at 354. Therefore, we find that the trial court did not err in allowing the prosecutor to question defendant on the prior assault convictions to rebut defendant's statement that he had never hurt anyone, and thus the trial court did not commit plain error. See State v. Baker, 338 N.C. 526, 554, 451 S.E.2d 574, 591 (1994) (“Since there was no error, there could be no plain error.”).
Defendant next argues that the trial court erred by failing to set out the specific facts and circumstances which supported its determination. Rule 609(b) requires the trial court to determine “that the probative value of the conviction [more than ten years old] supported by specific facts and circumstances substantially outweighs its prejudicial effect.” State v. Hensley, 77 N.C.App. 192, 195, 334 S.E.2d 783, 785 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986) (holding that because the trial court “made a conclusory finding that the evidence would attack defendant's credibility without prejudicial effect,” the finding did not satisfy the “specific facts and circumstances” requirement of Rule 609(b)).
Here, the trial court requested that defendant's statement regarding whether he had hurt anyone be read back to him and then made the following determination:
THE COURT: Madam Court Reporter, would you mind reading back to me what you have recorded for just that last—not the entire answer ... just recite the last conviction, and then the comment about not hurting anyone.
(Last answer read back.)
THE COURT: Thank you. All right, based on that response, I'm going to find that the door has been opened under Rule 609....
...
Under these specific facts and circumstances, namely that they're being offered in response to a statement made by the defendant during his testimony in trial, but that in the interest of justice and the probative value of these convictions outweighs the prejudicial effect, even though these offenses are more than ten years old.
(Emphasis added.) The specific fact and circumstance set out by the trial judge was the factual misstatement made by defendant on cross-examination. This was not a conclusory statement because the trial judge identified the basis for his determination. Because defendant opened the door to rebuttal evidence by misstating his criminal history on cross-examination and because the trial court identified this misstatement as the basis for the admission of evidence on the prior assault convictions pursuant to Rule 609(b), we find no error in the trial court's determination.
II. Fingerprint Cards and Related Expert Witness Testimony
Defendant's next argument is that the admission of fingerprint cards and related expert witness testimony during the habitual felon trial was plain error because the evidence was not relevant to any issue before the jury. We disagree.
Because defense counsel failed to object to the admission of the fingerprint cards and related expert testimony, our standard of review is for plain error. See Lawrence, 365 N.C. at 518, 723 S .E.2d at 334.
Only relevant evidence is admissible. N.C. Gen.Stat. § 8C–1, Rule 402. Generally, evidence is relevant if it tends to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401. In order for a defendant to be found guilty of being an habitual felon, the State must prove that the defendant “has been convicted of or pled guilty to three felony offenses[.]” N.C. Gen.Stat. § 14–7.1. During a habitual felon trial, “the proceedings shall be as if the issue of habitual felon were a principal charge.” N.C. Gen.Stat. § 14–7.5.
Here, in order to prove that defendant was convicted of or had pled guilty to three felonies, the prosecutor called Sonya Clodfelter (“Clodfelter”), a Wake County Assistant Clerk of Superior Court, to testify to defendant's criminal records. Clodfelter testified that defendant had been convicted of (1) felony financial card theft; (2) felony uttering a forged instrument; and (3) felony possession of stolen goods. She also testified that the judgments corresponding to these convictions specified the names “Howard F. McLeod,” “Howard Fitzgerald McLeod, Junior,” and “Howard Fitzgerald McLeod,” with an alias of “Howard McLean.”
In order to prove that defendant was the individual convicted of these crimes, the State offered into evidence fingerprint cards from the files of these previous convictions and called Margaret Townes (“Townes”), an employee of the City County Bureau of Identification, to testify as an expert in fingerprint comparisons. Townes analyzed the fingerprint cards from the previous convictions in addition to the fingerprint card from defendant's underlying conviction of assault with a deadly weapon on a government officer and testified that in her expert opinion the same person produced the fingerprints for each. Therefore, the evidence was relevant to prove whether defendant or other individuals with similar names had been convicted of these crimes.
Because the fingerprint cards and the related expert testimony made it more probable that defendant was convicted of at least three felonies and because the number of felonies defendant committed was “of consequence to the determination of the action,” N.C. Gen.Stat. § 8C–1, Rule 401, it was not error for the trial court to admit such evidence, and therefore, it could not have been plain error.
III. Instruction on Flight
Defendant's final argument is that it was error for the trial court to instruct the jury that it could consider evidence that defendant had fled before the habitual felon trial as an admission or showing of consciousness of guilt because, defendant contends, the instruction was not supported by the evidence. We disagree.
This Court reviews trial court decisions on jury instruction de novo. State v. Jenkins, 202 N.C.App. 291, 296, 688 S.E.2d 101, 105,disc. review denied,364 N.C. 245, 698 S.E.2d 665 (2010). We review a jury instruction “contextually and in its entirety[,]” and the burden is on the party asserting error to show that the jury was “misled or that the verdict was affected by [the] instruction.” State v. Blizzard, 169 N.C.App. 285, 296–97, 610 S.E.2d 245, 253 (2005) (citation and quotation marks omitted).
A jury instruction on flight is appropriate where “there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime[.]” State v. Ethridge, 168 N.C.App. 359, 362, 607 S.E.2d 325, 327 (2005), aff'd, 360 N.C. 359, 625 S.E.2d 777 (2006) (citation and quotation marks omitted). However, evidence that a defendant merely left the scene is not enough; there must be some evidence that defendant was trying to avoid apprehension. State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). If this Court finds “some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper.” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977).
Here, the trial court was prepared to detain defendant during lunch recess as a result of his conviction for assault with a deadly weapon on a government officer. However, defendant requested the opportunity to eat lunch with his loved ones before the habitual felon trial. The trial judge allowed defendant to leave for lunch, but warned him that if he did not return promptly for the habitual felon trial, the consequences would be “pretty severe on the discretionary range of sentences.” Defendant did not return to the courtroom, and his attorney could not locate him. The trial judge instructed the jury that “[e]vidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt.”
Because defendant knew that he had been convicted of assault with a deadly weapon on a government officer earlier that day, and that he would be detained regardless of the outcome of the habitual felon trial, it can be reasonably inferred that his failure to return was intended to avoid apprehension. Thus, there was sufficient evidence in the record for the trial court to instruct the jury on flight and the trial court did not err in doing so.
We also find that the instruction on flight did not mislead the jury or improperly affect the verdict. The instruction was given during the habitual felon phase of the trial. To convict defendant for being an habitual felon, the jury needed only to find that defendant had been convicted of or pled guilty to three prior felony offenses. N.C. Gen.Stat. § 14–7.1. Here, evidence was presented that tended to show that defendant had been convicted of: (1) felony financial card theft; (2) felony uttering a forged instrument; and (3) felony possession of stolen goods. Additionally, defendant had been convicted of assault with a deadly weapon on a government officer earlier that day. In light of the overwhelming evidence against defendant, the instruction on flight did not mislead the jury or improperly affect the verdict during the habitual felon trial.
Conclusion
After careful review, we find that the trial court did not err by allowing questioning on the previous assault convictions. Additionally, the trial court did not err by instructing the jury on flight or by admitting the fingerprint card evidence and related expert testimony.
NO ERROR. Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).