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No. COA12-952 TWELFTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ))
v. ) From Cumberland)
LATIUS TIRRELL BROWN )
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
INDEX..........................................................ii
TABLE OF AUTHORITIES..........................................iii
QUESTIONS PRESENTED.............................................1
STATEMENT OF THE CASE...........................................2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................2
STATEMENT OF THE FACTS..........................................2
ARGUMENT.......................................................11
I. THE TRIAL COURT ERRED BY ALLOWING IMPEACHMENT OF DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE.................................11
II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND SPENDING TIME IN PRISON.17
III. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND IMPROPER CHARACTER EVIDENCE THAT MR. BROWN THREATENED WILLIE SKINNER AND POINTED A GUN AT HIM.............................................24
IV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AFTER THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS............................30
CONCLUSION.....................................................35
CERTIFICATE OF SERVICE.........................................36
ii
TABLE OF AUTHORITIES
CASES
Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 297 (1973)......................35
Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562 (1975)......................31
N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)..........12, 18, 24, 30
State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002)......................29
State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981)..................30, 31
State v. Blankenship, 89 N.C. App. 465, 366 S.E.2d 509 (1988)..................12
State v. Carter, 326 N.C. 243, 388 S.E.2d 111 (1990)......................17
State v. Carter, 357 N.C. 345, 584 S.E.2d 792 (2003), cert denied, 541 U.S. 943, 158 L.Ed.2d 368 (2004).....................22
State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283 (1989)..................15
State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991)......................34
State v. Goodwin, 186 N.C. 638, 652 S.E.2d 36 (2007).......................24
State v. Graham, 200 N.C. App. 204, 83 S.E.2d 437 (2009)..................30
State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009)..........17, 24
iii
State v. Hensley, 77 N.C. App. 192, 334 S.E.2d 783 (1985)..............16, 17
State v. Hester, 330 N.C. 547, 411 S.E.2d 610 (1992)......................35
State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989)......................22
State v. Irby, 113 N.C. App. 427, 439 S.E.2d 226 (1994).................28
State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990)......................27
State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988)......................29
State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988)......................16
State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 112 L.Ed.2d 155 (1990).......................................31
State v. Locklear, 309 N.C. 428, 306 S.E.2d 774 (1983)......................31
State v. Lynch, 334 N.C. 402, 432 S.E.2d 354 (1993)......................31
State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc. rev. denied, 326 N.C. 53, 389 S.E.2d 83 (1990)................27
State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986)..................28
State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986)...............22, 24, 27
State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992)......................34
State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990)......................15
State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984)......................21
iv
State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991)..............12, 14, 16
State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992).......................21
State v. Shelly, 176 N.C. App. 575, 627 S.E.2d 287 (2006).................15
State v. Strickland, 346 U.S. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 139 L.Ed.2d 757 (1998)....................21
Taylor v. Illinois, 484 U.S. 400, 98 L.Ed.2d 798 (1988)......................35
STATUTES
N.C. Gen. Stat. §7A-27(b)......................................2
N.C. Gen. Stat. § 8C-1, Rule 401..........................20, 26
N.C. Gen. Stat. § 8C-1, Rule 403........................21,25,29
N.C. Gen. Stat. § 8C-1, Rule 404(b).....................22,24,26
N.C. Gen. Stat. § 8C-1, Rule 609(b)...........................12
N.C. Gen. Stat. §15A-1443(b)..................................35
v
No. COA12-952 TWELFTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA ))
v. ) From Cumberland)
LATIUS TIRRELL BROWN )
****************************************************
DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I. DID THE TRIAL COURT ERR BY ALLOWING IMPEACHMENT OF DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE?
II. DID THE TRIAL COURT ERR BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND ABOUT SPENDING TIME IN PRISON?
III. DID THE TRIAL COURT ERR BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN POINTED A GUN AT WILLIE SKINNER ON ONE OCCASION AND THREATENED SKINNER ON ANOTHER OCCASION WHERE THIS EVIDENCE HAD NO BEARING ON WHETHER MR. BROWN SHOT CHARLES BOYENS IN SELF-DEFENSE?
IV. DID THE TRIAL COURT ERR BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AND OTHER EVIDENCE TO WHICH THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS?
STATEMENT OF THE CASE Latius Tirrell Brown was tried at the 28 November 2011
Criminal Session of Cumberland County Superior Court before the
Honorable James F. Ammons (Rp. 1) and was convicted by a jury of
first-degree murder in the shooting death of Charles Douglas
Boyens. (Rpp. 4, 68) From judgment entered 8 December 2011,
sentencing him to life in prison without parole (Rpp. 71-72), Mr.
Brown gave notice of appeal in open court. (Rp. 73)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW This appeal is from a final judgment in a criminal case
pursuant to N.C. Gen. Stat. §7A-27(b).
STATEMENT OF THE FACTS In September 2009, federal parolee Charles Boyens died of a
single gunshot wound inflicted by Latius Tirrell “T” Brown in front
of a vacant trailer in Palm Springs Mobile Home Park a few weeks
after Boyens had been banned from the park by the property manager.
Mr. Brown testified he shot Boyens in self-defense during a fight.
No one else witnessed the shooting.
Boyens had been in trouble since an early age, with
convictions for possessing a stolen car and possessing with intent
to sell or deliver cocaine. He was released from federal prison in
December 2008, at age forty, after serving thirteen years for
possessing a firearm. (Tpp 479-85) Under the strict conditions of
his three-year supervised parole, Boyens had to submit to routine
drug and alcohol screening and avoid any kind of trouble. (Tpp 457,
555-57, 590) Boyens was six feet tall; weighed 232 pounds; was very
2
strong, lean, and physically fit; and had a grim reaper tattoo on
his abdomen. He ran and lifted weights daily and could bench press
500 pounds (Tpp 486, 554, 559, 583-84, 592, 658).
In 2002, Boyens met and became involved with Paula Benton, a
white woman seventeen years his senior who worked as a nurse at the
prison. They corresponded and visited for several years. When
Boyens was released, he lived in a halfway house for six months
before moving in with a relative. Benton testified she and Boyens
planned to marry. (Tpp 456, 551-55, 558-59, 582-90)
Boyens and Benton visited every Sunday with Boyen’s sister,
Lillie1. Lillie lived with Willie Skinner at 1717 Nova Glen Road in
Palm Springs Mobile Home Park. (Tpp 456-57, 1021) Ten years older
than her brother (Tp 482), Lillie had medical problems requiring
use of a cane and wheelchair. (Tpp 454, 488-89) Police were called
to Skinner’s trailer regularly Skinner and Lillie were drinking and
fighting, and Skinner assaulted Lillie on more than one occasion.
(Tpp 510-12, 775-78)
Nova Glen Road ends in a cul-de-sac and intersects with Palm
Springs Drive at the other end. The mobile homes along Nova Glen
are angled toward Palm Springs. Two trailers on the cul-de-sac
were vacant that summer. (Tpp 490-92) Skinner’s trailer was near
the cul-de-sac end of Nova Glen. (Tpp 538, 565, 661) Mr. Brown, who
was 36 years old (Tp 1366), lived right across the road from
Skinner at 1710 Nova Glen with his girlfriend and her 8-year-old
1 To avoid confusion, this brief will refer to Charles Boyens as “Boyens” and Lillie Boyens as “Lillie.”
3
daughter. (Tpp 459, 463-64, 1371, 1374-75, 1080-81)
Mr. Brown’s had five vehicles, of which his favorite was a
Tahoe with loud, thumping stereo speakers. To park the Tahoe, Mr.
Brown would go past his trailer, turn around in the cul-de-sac,
pass his trailer again, and back into a space on the side closest
to Palm Springs Drive. He kept a cover over the Tahoe. His black
Mazda pick-up was parked on the street in front of his house. (Tpp
501-02, 1376, 1391, 1395-97, 1405-06)
Before Boyen’s release from prison, Mr. Skinner and Mr. Brown
were on friendly terms. They shared tools, drank beer and helped
each other work on cars, and barbequed together. (Tpp 1381-82,
1458, 1627-28) Lillie disliked Mr. Brown. (Tp 469) She thought he
had an “attitude” and acted like a “thug” and he did not treat
black women as well as white women. She also resented the time he
spent with Skinner. (Tpp 1624-26)
Sometime in the summer of 2009, Skinner introduced Boyens to
Mr. Brown. (Tpp 469, 1380) After Skinner left, Boyens asked Mr.
Brown if Skinner had been putting his hands on his sister. Mr.
Brown said that he did not know, but the police had been over there
once or twice. Boyens told Mr. Brown he had been in prison for
fifteen years and just got out. (Tp 1381)
For reasons somewhat unclear from the record, Boyens took a
dislike to Mr. Brown. Benton disliked Mr. Brown because he would
come over to their family cookouts uninvited and help himself to
beer and food; he acted “like he owned the place.” She said Mr.
Brown and Boyens did not agreed on much, there was “a lot of
4
tension” between them, and Boyens felt Mr. Brown was trying to push
his family around. (Tpp 559-60, 626-28) Lillie testified Mr. Brown
“got along with the fellows.” He and Boyens would speak to each
other, but they were not friends. (Tpp 469-70)
Over defense objections, Skinner described an incident in July
2009 during which Mr. Brown was bothering one of Lillie’s
daughter’s friends and she slapped him. When Skinner told Mr. Brown
to leave her alone and stay out of his yard, Mr. Brown went across
the street and made phone calls and then told Skinner his trailer
“might get shot up” that night. (Tpp 1051-58) Afterwards, Boyens
stopped Mr. Brown in the street one day and told him to keep on his
side of the road and stay away from his family or “we’re going to
have a problem.” (Tpp 1618-19) Skinner testified over objection
that, later that summer, he saw Mr. Brown while riding in a car and
Mr. Brown pointed a gun at him. (Tpp 1059-63) Mr. Brown came to his
house and apologized the next day. (Tp 1064) Henry Kyle, who was
driving the car, testified he saw Mr. Brown raise his hand but he
did not see a gun. (Tpp 1252-57) Skinner said saw Mr. Brown every
day but they never had any other problems. (Tpp 1060, 1064-65)
Mr. Brown testified Boyens confronted him and told him to stay
away from his family or he would hurt him, but he did not know what
he was talking about. (Tpp 1381-83) Boyens began harassing him by
yelling at him, pulling on his car door, or trying to block his way
when Mr. Brown would come and go from the trailer park. This
harassment occurred every time he saw Boyens. (Tpp 1383, 1523-25)
Mr. Brown reported the harassment to Nate Newsome, the manager of
5
the trailer park. Mr. Brown no longer felt free to come and go. He
began watching for Boyens and “ducking and dodging” to avoid him.
(Tpp 1383-84, 1390)
Nate Newsome’s mother, Judy, owned about half the trailers in
the park and managed the park with Nate’s assistance. (Tpp 1349-50)
One day that summer, Skinner came to her holding his ribs and said,
“I can’t take this anymore. Charles hit me and broke my rib.” Then
he started crying. Judy could tell he was in a lot of pain. He said
he just got back from the hospital but no one would take him to get
his pain prescription filled. Judy called her son, Nate, and told
him what happened. (Tpp 1351-58)
Nate Newsome testified Mr. Brown complained to him three
times over about six weeks about Boyens harassing, yelling at, and
provoking him. Mr. Brown said he would go inside when he saw Boyens
and not respond to him. (Tpp 1574-76, 1580-81, 1579-80) Right after
Skinner talked to Judy about Boyens, Nate Newsome told Skinner that
Boyens was banned from the trailer park. (Tpp 1126, 1584-86)
After the ban, Boyens kept coming back. (Tp 1237) About a
month later, Newsome confronted Boyens walking through the park. He
acknowledged he was not supposed to be on the premises but said he
was visiting his family and would not cause any trouble. Newsome
agreed Boyens could stay long enough to eat dinner. (Tpp 1127,
1584, 1594-95) This conversation was at least two weeks before Mr.
Brown’s third and last complaint about Boyens. (Tpp 1596) Newsome
did not see Boyens in the park again. (Tpp 1127, 1584)
Prior to Sunday, 27 September 2009, Mr. Brown had not seen
6
Boyens for three or four weeks. (Tp 1528-29) He spent the day
driving around in the Tahoe listening to music, visiting friends,
and drinking beer and liquor. (Tpp 1390-95, 1397-1402) When he came
home that evening, the sun had set, but it was not quite dark
outside. His windows were down, and his music was playing loudly.
He was “buzzed” from drinking all day. (Tpp 527-28, 1402-04) He was
wearing shorts and a tee shirt and had a gun tucked in the right
side of his waistband. He carried the gun because of recent
robberies and shootings in the area. (Tp 1407)
That afternoon, Boyens and Benton were visiting Lillie and
Skinner. While watching TV and drinking beer, they heard Mr. Brown
arrive with his speakers thumping. He turned around in the cul-de-
sac and backed his truck in beside his trailer as usual. (Tpp 459-
60, 464, 501, 560-62, 1404-07) Boyens said he liked the sound of
Mr. Brown’s speakers and joked about getting some for Benton’s car.
(Tpp 531, 566) Several minutes later, Boyens got up suddenly and
went outside without explanation. (Tpp 465, 469, 473, 503, 566,
611-12) Lillie testified she looked out a back window, saw Boyens
walking around in the cul-de-sac talking on his cell phone, and
assumed he was talking to his daughter. (Tpp 473, 503) Lillie did
not mention Boyens talking on the phone in either of two statements
to the police. (Tpp 519-20)
A few minutes later, Lillie and Benton heard loud voices and
looked out the door. (Tpp 466, 567) Lillie testified Boyens was
leaning against Skinner’s truck, Mr. Brown was in the middle of the
street, and the men were talking. (Tpp 472, 497-99) Although she
7
later told the sheriff she heard a “ruckus” and the men were “head
to toe” (Tpp 544), Lillie testified at trial that there was no
friction between them. (Tpp 472, 523, 528, 543) Benton testified,
however, that the men were “toe to toe” in front of a small dark-
colored pick-up truck over in front of Mr. Brown’s residence and
they were arguing loudly. The men were not near Skinner’s truck.
(Tpp 567, 612-13, 621-23)
When Boyens saw them watching, he made a comment about “nosey
women” and told Benton to bring his beer. (Tpp. 471-72, 567-68,
614) When he came to the gate and took the beer from her, he said,
“Don’t worry. We’re just talking.” Benton went inside. Worried that
Boyens might get in trouble, Benton asked Skinner to go out and get
him. Then there was silence and she decided to check again because
“there was bad blood there.” Benton saw the men “standing there
bowed up” and “bumping chests.” She thought they were acting like
kids cutting up. Believing the argument was over, she went inside.
(Tpp 568-70, 614-19, 624) Boyens was still across the street in
front of Mr. Brown’s truck. (Tpp 671-72)
A few minutes later they heard a gunshot. Benton ran out and
Lillie followed. They saw Mr. Brown run to the Mazda truck from
the direction of the cul-de-sac and drive off. (Tpp 544-34, 570-
71, 643) Running to the end of the cul-de-sac, Benton turned and
saw Boyen’s beer sitting on some cement blocks. She found Boyens
gasping on the ground by the vacant trailer at lot number 1718,
where he often went to urinate. Both Benton and Lillie testified
they saw a small spot of urine on Boyens’ sweat pants near his
8
crotch, but neither of them mentioned it prior to trial. (Tpp 541,
546, 572-76, 579-80, 629-33, 655-56)
Skinner testified that, when Benton first called him to the
door, he saw Mr. Brown and Boyens in the street beside of Skinner’s
Ford Explorer. They appeared to be just talking. (Tpp 1023-25,
1074-76, 1089) A few minutes later, Skinner looked out again. The
men were now closer to Boyens’ car and the cul-de-sac. They were
“bumping chests” and talking, but not fighting. When Benton took
the beer outside, Mr. Brown was across the street leaning on his
truck and Boyens was leaning on his car. They did not appear to be
angry. (Tpp 1025-30, 1078-80, 1090-1104) Skinner testified he did
not see any pushing or arguing (Tp 1089). But his statement to
police said they were pushing each other backwards and forwards and
they were arguing. (Tpp 1134, 1141-44)
Anthony Crosby testified he was drinking beer outside his
mother’s trailer on Palm Springs Drive and saw Mr. Brown and Boyens
arguing loudly in front of Mr. Brown’s truck. Boyens walked away
toward Skinner’s trailer and then walked back to Mr. Brown’s truck.
Then both men walked off, one after the other, and disappeared from
sight behind the vacant trailer. Crosby heard a shot and saw Mr.
Brown return to his truck and drive off. (Tpp 677-78, 683-86, 722-
23) In his statement to police, Crosby said Mr. Brown went behind
the trailer first, followed by Boyens. (Tpp 691-92) He also said he
saw pushing and shoving, but then said he didn’t. (Tp 725) At
trial, he testified he was not sure which man went behind the
trailer first, but he believed Mr. Brown went first. He did not see
9
Boyens touch Mr. Brown but could not see what happened behind the
trailer. (Tpp 692,695-96, 696-97) When cross-examined about
photographs taken from his mother’s yard looking toward Mr. Brown’s
home, Crosby admitted he could not see Mr. Brown’s trailer and said
that defense counsel probably doctored the photograph. (Tpp 707-18)
Mr. Brown testified that he had parked and was putting the
cover over the Tahoe when Charles Boyens approached him and said,
“I told you to leave my family alone. I know you been running from
me. You can’t run no more. I got you now.” Boyens looked angry
and “real scary looking.” Mr. Brown replied that he had not done
anything to Boyens or his family. (Tpp 1407-08) Then Boyens pushed
Mr. Brown, Mr. Brown pushed back, and Boyens pushed him again.
Someone called to Boyens from Skinner’s yard and he walked across
the street. Brown resumed putting the cover on the Tahoe. (Tpp
1408-09) He was facing the Tahoe when Boyens suddenly grabbed him
from behind and dragged him backwards into the street. Mr. Brown
struggled to breathe. When he wiggled free, he was facing Boyens
with his back toward the cul-de-sac. Mr. Brown was frightened and
confused and did not know why he was being attacked. (Tpp 1411-14)
Mr. Brown backed away, but Boyens advanced toward him and
moved to his right, forcing Mr. Brown into the yard of the vacant
trailer. (Tpp 1414-16) In the vacant lot, Boyens swung at Mr. Brown
and stuck him in the forehead. Then Boyens grabbed Brown. As they
tussled, Boyens hit the gun and it fell from Mr. Brown’s waistline.
The gun hit the ground and both men went for it. Mr. Brown snatched
it first and fired one shot as both men were coming back up. Boyens
10
stopped attacking. (Tpp 1415-19) Mr. Brown testified he was scared
and he had to fire because Boyens would have killed him if he got
the gun. (Tpp 1418-20) Upset and intoxicated, he did not know what
to do. He left the Mazda truck at his cousin’s house. After staying
in a vacant trailer several days, he called legal counsel and
turned himself in at the sheriff’s department on 2 October 2009.
(Tpp 1421-40)
Officers found Boyens lying near the front door of the vacant
trailer on the side facing the street. A beer can was on top of a
stack of blocks at the front left corner of the lot. (Tpp 751-52,
756-57, 797; State’s Exh 15) No bushes were near the beer can or
blocking the view of the yard from the road. (Tpp 830-31, 833, 915-
17) A bullet went through the side of the vacant trailer about to
the right of the door about four feet from the ground; its path was
19 to 20 degrees downward. (Tpp 798, 814, 833, 835-37, 943) Boyens
died at about two hours later from a single close-range gunshot
wound to the left side of his forehead. The path of the bullet was
slightly downward and left to right (Tpp 657, 1247-50)
ARGUMENT I. THE TRIAL COURT ERRED BY ALLOWING IMPEACHMENT OF
DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE.
Standard of Review: When the trial court fails to make and weigh
findings of specific facts and circumstances justifying admission
of evidence of convictions more than ten years old, the court’s
ruling is reviewed de novo for error of law. See, e.g, State v.
11
Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 164 (1991). Under the de
novo standard, the reviewing court considers the matter anew and
freely substitutes its own judgment for that of the lower court.
N.C. Department of Environment & Natural Resources v. Carroll, 358
N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
Based solely on the fact that the jury had heard testimony
about Charles Boyens’ criminal history, the trial court allowed the
state, over defense counsel’s objection, to attack Mr. Brown’s
credibility by cross-examining him about a conviction in 1998 for
assault on a female and a conviction in 2000 for driving while
impaired. (Tp. 1501) These convictions, which constituted Mr.
Brown’s only criminal record (Rpp 69-70), were more than ten years
old and, thus, presumptively prejudicial and inadmissible for
impeachment purposes. See, e.g., State v. Blankenship, 89 N.C. App.
465, 468, 366 S.E.2d 509, 511 (1988); N.C. Gen. Stat. §8C-1, Rule
609(b). The trial court violated Rule 609(b) by admitting the
convictions without making specific findings and conclusions about
any exceptional circumstances that would overcome the presumption
of admissibility. Because Mr. Brown’s credibility was the crux of
the case, allowing this unfair and improper impeachment was
prejudicial error requiring a new trial.
Before cross-examining Mr. Brown, the prosecutor said he
intended to ask about his prior convictions and the following
discussion took place.
12
MR. HERZOG: Your Honor, we would object to it being outside the ten-year period.
THE COURT: He gave you notice, though?
MR. HERZOG: Yeah.
THE COURT: All right. And how old are they?
MR. COLYER: I would have to find –
MR. HERZOG: Late ‘90’s, ’98, ’99. I don’t have the exact date right now of what he showed me.
THE COURT: All right. You want to be heard?
MR. COLYER: Must have been from ’90 – let’s see, one in ’98 and one in 2000. Sorry. Both of them arose in ’98. One conviction in ’98. One conviction in 2000. The assault on a female was October of ’98 conviction. The DWI, level five, was March of 2000.
THE COURT: Okay.
MR. HERZOG: They are both outside the ten-year limit. We would ask they be excluded.
THE COURT: But he did give you notice.
MR. HERZOG: He did – he told me last week. You know, he was going to bring it up to the Court’s attention so I said –
THE COURT: I believe you asked about some convictions that were outside the ten-year period, too.
MR. HERZOG: No, sir. The only two convictions I asked about were to Mr. Skinner in 2003 and Mr. Skinner in 2005. I don’t remember asking about another conviction. I certainly didn’t ask him about it.
MR. COLYER: There’s documentation for the victim’s conviction.
MR. HERZOG: Yeah, we did do that.
THE COURT: Okay. All right. I’m going to allow it.
(Tpp 1500-01) The court did not ask why the convictions should be
13
admitted, and the state offered no reasons.
Thereafter, the state, over further objections, elicited
testimony from Mr. Brown that he was convicted of assault on a
female in October 1998 and convicted of “driving while impaired,
level five” in March 2000. (Tpp 1504-05) The state elicited from
Mr. Brown, over strenuous objection, that his application for a gun
permit in July 2006 was denied because of these two prior
convictions. Stating, “I’ve done a 403 balancing in my head,” the
court also admitted the permit application showing Mr. Brown
answered yes to a question about whether he was convicted of a
misdemeanor crime of violence. (Tpp 1534-41) During the charge
conference, counsel renewed his objection to this evidence. (Tp
1828) The trial court told the jury it could consider the evidence
in determining whether to believe Mr. Brown’s testimony. (Rp 40)
The court’s failure to find and weigh facts before admitting
Mr. Brown’s convictions more than ten years old was a blatant
violation of Rule 609(b), which prohibits admission of convictions
more than ten years old “unless the court determines, in the
interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially
outweighs its prejudicial effect.” Id. This rule creates a
rebuttable presumption that convictions more than ten years old are
more prejudicial than probative of a defendant’s credibility and
should not be admitted. E.g., State v. Ross, 329 N.C. at 119, 405
S.E.2d at 164. Because old convictions are presumptively
inadmissible, the rule imposes strict safeguards against their
14
improper use. State v. Porter, 326 N.C. 489, 509, 391 S.E.2d 144,
157 (1990). “[I]n those rare instances where the use of the older
prior convictions [is] not more prejudicial than probative, the
trial court must make appropriate findings of fact. . . These
findings must concern specific facts and circumstances which
demonstrate the probative value outweighs the prejudicial effect.”
State v. Farris, 93 N.C. App. 757, 761, 379 S.E.2d 283, 285 (1989)
(citations omitted).
This step is not optional. If, as in this case, the court
makes insufficient findings to conduct a careful balancing of
probative value and prejudicial effect, a new trial is required.
Id. The court’s findings must address “(a) the impeachment value
of the prior crime, (b) the remoteness of the prior crime, and (c)
the centrality of the defendant's credibility." State v. Shelly,
176 N.C. App. 575, 582-83, 627 S.E.2d 287, 294 (2006). They should
also address whether the old convictions involved crimes of
dishonesty, demonstrated a continuous pattern of behavior, or were
for crimes of a different type from that for which defendant is
being tried. Id. at 583, 627 S.E.2d at 295. Here, the trial court
made no findings addressing any of these matters and did not
determine that the probative value of the prior convictions
“substantially” outweighed their prejudicial effect. It appears the
court permitted the cross-examination simply as a quid pro quo
because the defense cross-examined Lillie Boyens (without objection
by the state) about Charles Boyens’ criminal history. (Tpp 481)
In Farris, this Court ordered a new trial where the trial
15
court merely said: “The Court will determine that in the interest
of justice, that the probative value of the conviction
substantially outweighs its prejudicial value.” Id. at 760, 379
S.E.2d at 285. See also State v. Ross, 329 N.C. at 120, 405 S.E.2d
at 165 (trial court’s statement “the Court finds that there is
probative value and that in the interests of justice the ten-year
rule is hereby waived” did not sufficiently describe specific facts
and circumstances showing probative value substantially outweighed
prejudicial effect); State v. Hensley, 77 N.C. App. 192, 334 S.E.2d
783 (1985) (findings that 13-year-old convictions were for
“dishonesty type things,” were probative of defendant’s
credibility, and would not prejudice defendant were inadequate).
If the trial court had found facts and weighed the appropriate
factors, exclusion of the evidence necessarily would have resulted.
First, the rationale for permitting impeachment by prior
convictions “is that people who commit certain crimes may not be
credible witnesses." Blankenship, 89 N.C. App. at 467, 366 S.E.2d
at 509. Here, one prior conviction was for assault on a female.
The law is settled that evidence of violent conduct is irrelevant
to a person’s truthfulness. State v. Lamb, 321 N.C. 633, 647, 365
S.E.2d 600, 607 (1988). Likewise, driving while impaired is not a
“crime of dishonesty,” so evidence Mr. Brown was convicted of this
crime was not probative of his credibility as a witness.
Second, because Mr. Brown had no other criminal record, the
evidence "appreciably worsened the jury's view of his credibility."
Hensley, 77 N.C. App. at 196, 334 S.E.2d at 785. Although prior
16
convictions may only be "offered for what they indicate about [the
defendant's] credibility, not for what they indicate about his
character," State v. Carter, 326 N.C. 243, 252, 388 S.E.2d 111, 117
(1990), the jury undoubtedly viewed them as evidence of bad
character which was indicative of guilt. The evidence of a prior
assault conviction was especially prejudicial because Mr. Brown was
on trial for a crime of violence.
Third, use of the old convictions was especially prejudicial
because conflicting evidence pitted Mr. Brown against the
deceased’s sister and girlfriend, both of whom disliked Mr. Brown
and testified about damaging details not included in any of their
pretrial statements. Because no one else witnessed the shooting,
Mr. Brown’s claim of self-defense depended on his credibility, and
any evidence tending to attack Mr. Brown’s character likely weighed
heavily in the jury’s deliberations. The court’s failure to apply
the safeguards required by Rule 609(b) was reversible error
requiring a new trial.
II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND SPENDING TIME IN PRISON.
Standard of Review: Admission of evidence over objection is
reviewed de novo, State v. Hazelwood, 187 N.C. App. 94, 98, 652
S.E.2d 63, 66 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867
(2009), which means the reviewing court considers the matter anew
and freely substitutes its own judgment for that of the lower
court. N.C. Department of Environment & Natural Resources v.
17
Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004). Admission
of evidence under Rule 403 is reviewed for abuse of discretion.
State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156 (2012)
For the alleged purpose of showing that Mr. Brown was not
afraid of Charles Boyens and the shooting was not in self-defense,
the trial court allowed the state to present evidence that Mr.
Brown had “bragged” to Boyens about killing someone in the past and
spending time in prison. This evidence was not only irrelevant to
Mr. Brown’s state of mind at the time of the shooting, but its
meaning was entirely speculative and its prejudicial effect was
overwhelming. Evidence that Mr. Brown said he killed another
person was thinly veiled character evidence that intimated to the
jury he had killed in the past and therefore was probably the
aggressor in this case. Moreover, when Mr. Brown denied talking
about having killed someone and spending time in jail, the state
was bound by his answer and the court should not have allowed
introduce extrinsic evidence to contradict his testimony. Admission
of this evidence was prejudicial error requiring a new trial.
Prior to trial, defense counsel moved to exclude evidence of
Mr. Brown being charged and acquitted of murder in Arkansas in the
late 1990’s. (Rpp 9-10) Mr. Brown testified on voir dire that he
had shot and killed a man in Arkansas when he was 22 years old, he
spent some time in jail, he was tried and asserted self-defense,
and he was acquitted. Mr. Brown denied telling anyone in the
trailer park about the shooting in Arkansas. (Tpp 1463-69)
Relying on rules of evidence and the state and federal
18
constitutions, defense counsel argued that Mr. Brown had been
acquitted of any crime and that all evidence about the Arkansas
incident was irrelevant and inadmissible. The state contended that
evidence Mr. Brown “bragged” about the shooting was admissible
under Rule 404(b) to show he was not afraid of Charles Boyens. (Tpp
1474-92) The trial court ruled that the evidence was admissible
under Rule 403 and that the state could ask Mr. Brown about “what
he may have said” about killing someone and spending time in jail,
but could not ask about the actual charge or the trial. (Tp 1491)
On cross-examination, the state asked Mr. Brown whether he
“bragged to Charles when Lillie and Paula were around” that he had
been in jail before and had shot and killed a man before; if he
“said those things to Charles and the others” to show Charles how
bad he was and that he wasn’t afraid of him; if he was “the one who
mentioned that first before Charles ever said anything about doing
prison time”; if he “said those things to intimidate” residents of
the neighborhood including Charles and his family to show them he
wasn’t afraid of Charles, and if he bragged about his “background
to Charles and these other people.” Mr. Brown answered “no, sir” to
each of these questions. (Tpp 1502-04)
In rebuttal, Lillie Boyens testified that she heard Mr. Brown
brag to Boyens several times about having been in jail and having
shot and killed a man. (Tpp 1620-21) Paula Benton testified that,
during a cookout at Skinner’s house, she and Boyens were sitting at
a table with Mr. Brown and some other people. Boyens was bragging
about the time he served in prison, and Mr. Brown was bragging that
19
he had shot and killed a man and he had spent time in prison.
Boyens “got up in” Mr. Brown’s face and told him he did not believe
a word he said. (Tpp 1608-11)
Admission of this evidence was error because it was not
relevant. The crucial issues for the jury were whether Mr. Brown
believed he was in danger of death or serious harm when he shot
Boyens, whether that belief was reasonable, and whether he was the
aggressor or used excessive force. Relevant evidence is evidence
that makes “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. R. Evid. 401. Even if fear of
Boyens or lack thereof was a “fact of consequence” to a
determination of whether Mr. Brown believed he was in danger when
he shot Boyens, boasting about having killing someone in the past
did not make it more or less probable that he was afraid of Boyens.
In fact, any possible significance of the evidence was
entirely speculative. The evidence is unclear as to when the
conversation occurred. Nate Newsome testified the last time he saw
Boyens was at least a month before the shooting (Tp 1586), and Mr.
Brown said he had not seen Boyens for three or four weeks. (Tp
1528-29) Thus, even if the evidence revealed something about Mr.
Brown’s state of mind toward Boyens when he made the statements,
the conversation was too remote in time to reveal what he was
feeling when the shooting occurred. More importantly, reasonable
people could interpret the evidence in different ways. Benton
testified Mr. Brown and Boyens with some other people at one of
20
Skinner’s cookouts and each of them was bragging about his criminal
past. Presumably everyone was drinking. Mr. Brown may simply have
been showing off to Boyens or the other people who were present. Or
he might have been posturing to hide his genuine fear of Boyens. Or
he might have been trying to convince Boyens that he was a tough
guy so that Boyens would leave him alone. These interpretations
were all equally plausible. The jury should not have been allowed
to guess, speculate, or make assumptions about what the evidence
meant. See, e.g., State v. Strickland, 346 U.S. 443, 462, 488
S.E.2d 194, 205 (1997), cert. denied, 522 U.S. 1078, 139 L.Ed.2d
757 (1998) (evidence that required jury to speculate was properly
excluded); State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984)
(insufficient evidence of rape where the jury had to speculate as
to meaning of defendant’s statement).
The evidence also should have been excluded under Rule 403
because Mr. Brown was acquitted of any wrongdoing in the Arkansas
shooting. Rule 403 requires the court to exclude relevant evidence
when its probative value is substantially outweighed by the danger
of unfair prejudice or confusion of the jury. Where the evidence
is about conduct of which the defendant has been acquitted and its
probative value depends on the conduct having been committed, its
relevance is outweighed by its prejudicial effect under Rule 403 as
a matter of law. State v. Scott, 331 N.C. 39, 413 S.E.2d 787
(1992). The jury could not be expected to draw the fine legal
distinction between Mr. Brown killing a man and saying he killed a
man. The trial court abused its discretion by allowing the evidence
21
under Rule 403.
The court also violated the prohibition in Rule 404(b) against
admitting evidence of other conduct to prove bad character and
action in conformity therewith. The state offered the evidence to
show that Mr. Brown was not afraid of Boyens so that the jury would
infer Mr. Brown was the aggressor and did not act in self-defense.
However, the law is settled that, under Rule 404(b), evidence of
violent conduct by the accused toward a third party is not
admissible in a self-defense case because its only logical
relevance depends on an inference that the accused has a propensity
for violence and therefore must have been the aggressor. State v.
Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).
Finally, even if the cross-examination of Mr. Brown was not
improper, the testimony of Benton and Lillie was improper rebuttal
evidence. When a witness is cross-examined about a collateral
matter, the examiner is bound by the witness’s answers and cannot
contradict them with extrinsic evidence. E.g., State v. Carter, 357
N.C. 345, 353, 584 S.E.2d 792, 799 (2003), cert denied, 541 U.S.
943, 158 L.Ed.2d 368 (2004). Collateral matters “include testimony
contradicting a witness’s denial that he made a prior statement
when that testimony purports to reiterate the substance of the
statement.” State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757
(1989). By cross-examining Mr. Brown about his statements about
killing someone, the state tried to impeach his testimony that he
was afraid of Charles Boyens. Whether Mr. Brown told people that he
killed someone was a collateral matter. Id. When he denied making
22
the statements, the state was bound by his answers and
contradicting him with other evidence was improper. See id.
In a murder prosecution, evidence the defendant killed another
person in the past is the most prejudicial evidence imaginable. The
trial court did not instruct Mr. Brown’s jury not to draw
inferences about Mr. Brown’s character from the evidence.
Moreover, the prosecutor emphasized in closing argument that Mr.
Brown’s alleged bragging was evidence Mr. Brown was the aggressor,
the very purpose for which State v. Morgan prohibited used of the
evidence. The prosecutor began his final summation:
One thing you did not hear from this defense attorney in closing argument was when Mr. Brown was sitting across the table at the picnic table looking Mr. Boyens in the face and said, I’ve done time. I killed a man before, bragging. . . .
. . . .That tells you what this relationship was from the beginning and it was brought on by the defendant. He was afraid of Charles? No, he wasn’t. He was trying to tell Charles I’m bad. . . I’m bad. You don’t scare me.
(Tp 1799) Moreover, the evidence of guilt was weak. The state’s
theory for premeditated murder was that Boyens was urinating and
Mr. Brown took him by surprise. As the state admitted in closing
(Tpp 1730-23), this theory depended on testimony of Boyens’ sister
and girlfriend that Boyens had a small urine stain near the crotch
of his sweatpants, a detail neither witness ever mentioned until
trial and no law enforcement officers saw. No one witnessed the
shooting except Mr. Brown. The state’s own evidence showed that
Boyens went outside when he heard Mr. Brown drive up, that Boyens
23
was across the street arguing with Mr. Brown in front of his truck,
and that Mr. Brown walked to the vacant trailer first. In fact, the
state had so little confidence in its case for first-degree murder
that the prosecutor repeatedly urged the jury to convict Mr. Brown
of voluntary manslaughter. (Tpp 1801, 1806, 1807) Mr. Brown must be
awarded a new trial.
III. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND IMPROPER CHARACTER EVIDENCE THAT MR. BROWN THREATENED WILLIE SKINNER AND POINTED A GUN AT HIM.
Standard of Review: Admission of evidence over objection is
reviewed de novo, State v. Hazelwood, 187 N.C. App. 94, 98, 652
S.E.2d 63, 66 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867
(2009), which means the reviewing court considers the matter anew
and freely substitutes its own judgment for that of the lower
court. N.C. Department of Environment & Natural Resources v.
Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
Although Willie Skinner was not the alleged victim in this
case, the court allowed Skinner to testify that, in July 2009, Mr.
Brown threatened Skinner that his trailer “might get shot up” and
that, on another day, Mr. Brown pointed a gun at Skinner. The state
said this evidence was offered to prove “plan” or “intent” under
N.C. R. Evid. 404(b). However, when a defendant asserts self-
defense, evidence of assaultive conduct toward a third party is not
admissible to show the defendant was the aggressor in the fatal
confrontation. See, e.g., State v. Morgan, 315 N.C. 626, 340 S.E.2d
84 (1986); State v. Goodwin, 186 N.C. 638, 652 S.E.2d 36 (2007).
Allowing the jury to use evidence of threatening behavior toward
24
Skinner as proof that Mr. Brown planned or intended to kill Charles
Boyens violated this rule. A new trial is required.
Following a voir dire hearing at which the state proffered
Skinner’s testimony (Tpp 1032-42), defense counsel described Mr.
Brown’s expected testimony (Tpp 1045-48) and the court heard
arguments of counsel (Tpp 1044-45, 1048-49), the trial court ruled
that the two incidents involving Skinner “happened in close
proximity to the time of the alleged conduct in this trial, [and]
that it is sufficiently similar to show intent and a planned
scheme, system, or design by [sic] the crime charged.” The court
also ruled the probative value outweighed the prejudicial effect
under Rule 403. (Tpp 1049-50)
Skinner testified, over repeated objections by the defense,
that “somewhere around July 2009” Lillie’s daughter and two of her
friends were sitting in Skinner’s truck while Skinner was inside
his trailer. Mr. Brown walked up and began talking to the women.
One of them told him to stop bothering her, but he persisted in
talking to her and she reached over and slapped him. Then she
walked into Skinner’s yard and Mr. Brown followed her. Skinner came
outside and told Mr. Brown not to come in the yard or bother the
ladies. (Tpp 1051-55) According to Skinner, Mr. Brown then went
across the street and made phone calls. He told Skinner that he had
called his cousins and told them that eight men were over there
trying to beat him up. He also told Skinner, “Your trailer might
get shot up tonight.” Skinner called the sheriff. A short time
later, after the sheriff had come by, one of Mr. Brown’s cousin’s
25
drove up and joked with Skinner about the incident. (Tpp 1055-58)
Later that summer, Skinner was riding in a car when he saw Mr.
Brown hanging out with three or four other men at the corner of
Nova Glen and Palm Springs, where the men often gathered to drink
beer and “cut the fool.” Mr. Brown called Skinner’s name and
pointed a handgun at him. Skinner told him to put it down because
it might go off. Mr. Brown turned away as if to put the gun in his
pocket, and the car drove off. (Tpp 1059-63) The next day, Mr.
Brown went to Skinner’s house and apologized. (Tp 1064)
Mr. Brown told the jury he did not threaten Skinner. He
testified that, after the young woman slapped him, one of her
friends grabbed her and said, “I got somebody for you.” Then she
made a call over the speaker phone and Mr. Brown got scared because
he knew Boyens was coming, so he left. (Tpp 1385-88) Mr. Brown
testified that the day he saw Skinner in the car with Kyle, he
waived at them but did not point a gun. (Tpp 1388-90)
Even if Skinner’s evidence were true, the earlier incidents
involving Skinner had no relevance, as the evidence did not tend to
make any “fact of consequence” to the determination of guilt “more
or less probable than it would be without the evidence.” N.C. Gen.
Stat. § 8C-1, Rule 401. Furthermore, because the conduct was of a
criminal nature, its admission was prohibited by Rule 404(b), as
its only possible relevance depended on an improper inference about
Mr. Brown’s character. "[S]ubstantive evidence of a defendant's
past, and distinctly separate, criminal activities or conduct is
generally excluded when its only logical relevance is to suggest
26
defendant's propensity or predisposition to commit the type of
offense with which he is presently charged." State v. Maxwell, 96
N.C. App. 19, 25, 384 S.E.2d 553, 557 (1989), disc. rev. denied,
326 N.C. 53, 389 S.E.2d 83 (1990) (citation omitted).
The "acid test" for admissibility is the logical relevance of
the evidence to the particular purpose for which it is sought to be
introduced. E.g., State v. Jeter, 326 N.C. 457, 461, 389 S.E.2d
805, 808 (1990). The state said the evidence showed plan or intent.
Tpp 1044, 1048-49) Nothing about Mr. Brown’s alleged threatening
conduct toward Willie Skinner indicated defendant planned or
intended to kill Skinner or or proved anything about his state of
mind at the time he shot Charles Boyens. Since Mr. Brown admitted
shooting Boyens but asserted self-defense, the only conceivable
relevance of the evidence was to show that defendant was a hot-head
with probably no more justification for shooting at Boyens than for
threatening Skinner. Yet, the jury was allowed to infer from the
evidence that the Mr. Brown was the aggressor or that his claim of
self-defense was fabricated. That this was the state's real
underlying purpose was reflected by the prosecutor's assertion that
Mr. Brown’s conduct toward Skinner showed his mental state. In
fact, the state offered the evidence for the very purpose
proscribed by Rule 404.
This issue is controlled by State v. Morgan, 315 N.C. 626, 340
S.E.2d 84 (1986). In Morgan, a prosecution for murder, our Supreme
Court held that evidence the defendant pointed a gun three months
earlier at someone other than the alleged murder victim was not
27
admissible to negate the defendant's claim of self-defense. Id.,
315 N.C. at 638, 340 S.E.2d at 92. The proper focus in a self-
defense case is upon the reasonableness of the defendant's belief
in the apparent necessity to use force and the reasonableness of
the amount of force used. The prior conduct against another person
had no bearing on those issues. Id. at 638, 340 S.E.2d at 92.
Similarly, in State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130
(1986), evidence of various prior wrongs of the defendant
ostensibly offered to show premeditation and deliberation,
including an incident in which he pointed a gun at the actual
murder victim three years earlier, was erroneously admitted because
the evidence was logically relevant to no other issue than to show
that the defendant was a violent man and therefore must have been
the aggressor when he killed the victim. See also State v. Irby,
113 N.C. App. 427, 439 S.E.2d 226 (1994) (evidence defendant and
his father fired a gun three years earlier at a different person
was not relevant to whether defendant acted in self-defense or
defense of a family member). These cases demonstrate that the
alleged misconduct of Mr. Brown toward Skinner was inadmissible,
and the fact the state couched its arguments in terms of "intent"
and “plan” does not alter this analysis.
Moreover, the trial court said it was admitting the evidence
because the incidents involving Skinner were close in time to the
death of Boyens and “sufficiently similar” to show intent and plan.
(Tp 1049) This ruling was patently wrong. Admissibility of
otherwise relevant evidence under Rule 404(b) is “contrained by the
28
requirements of similarity and temporal proximity” between the
crime charged and the extraneous conduct. E.g., State v. Al-
Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002). Here, the
sole similarity between the shooting of Boyens and the incident in
which Mr. Brown allegedly pointed a gun at Skinner was Mr. Brown’s
possession of a gun. The sole similarity between the altercation
with Boyens and the alleged verbal threat to Skinner was that Mr.
Brown was involved. There were no similarities that give rise to an
a proper inference of intent or plan.
Assuming, arguendo, that the challenged evidence had some
degree of legitimate probative value, its exclusion was mandated by
Rule of Evidence 403, which required the trial court to weigh its
probative value against the dangers of unfair prejudice, confusion
of issues, and misleading the jury. State v. Jones, 322 N.C. 585,
369 S.E.2d 822 (1988). The evidence was admitted to show that
defendant planned or intended to kill Boyens, grounds for
admissibility that were spurious at best. On the other hand, the
evidence was overwhelmingly prejudicial because it depicted Mr.
Brown as having a propensity for violence and undercut the
credibility of his account of the shooting. This was a clear case
of self-defense. The crucial questions for the jury were whether
Mr. Brown reasonably believed he had to shoot Boyens to protect
himself from serious harm and whether he was the aggressor. Apart
from Mr. Brown’s testimony, the jury had no evidence from which to
determine his mental state at the time of the shooting. The state
used improper character evidence to discount Mr. Brown’s account
29
and convince the jury that he was the aggressor, the very purpose
for which the evidence was patently not admissible. There can be
little doubt the evidence contributed to the jury verdict.
Defendant is entitled to a new trial.
IV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AFTER THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS.
Standard of Review: A decision concerning whether evidence is
admissible because the opposing party opened the door is reviewed
de novo. See, e.g., State v. Albert, 303 N.C. 173, 277 S.E.2d 439
(1981). The standard of review for violations of constitutional
rights also is de novo. State v. Graham, 200 N.C. App. 204, 214, 83
S.E.2d 437, 444 (2009). Under de novo review, this court considers
the matter anew and freely substitutes its own judgment for that of
the lower court. N.C. Department of Environment & Natural Resources
v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004)
Paula Benton testified on direct examination that Charles
Boyens was not physically violent or aggressive, he was very
private and kept to himself, and he had a reputation for
peacefulness. (Tpp 663-64) Lillie Boyens testified that, although
Boyens had been in trouble with the law, he had gone through his
“tribulations” and “was doing better.” (Tp 456) Although he was her
baby brother, he acted more like her older brother. She described
Boyens as “like a big bear, comfortable, huggable bear. He loved
kids and loved animals, raised little puppies. . . he was just a
loveable guy within himself.” (Tpp 455-56) By introducing this
30
evidence of Boyens’ peaceful character, the state opened the door
to rebuttal character evidence by the defense. The trial court
violated Mr. Brown’s constitutional right to a fair trial by
preventing him from rebutting the state’s character evidence with
evidence of aggressive, intimidating conduct by Boyens toward other
people in the trailer park. This error warrants a new trial.
A defendant charged with a criminal offense has a fundamental
constitutional right to present a defense by confronting adverse
witnesses, presenting evidence, and placing his version of the
facts before the jury. E.g., Faretta v. California, 422 U.S. 806,
818, 45 L.Ed.2d 562, 572 (1975). When a party in a criminal case
offers evidence which raises an inference favorable to its case,
the opposing party has the right to explore, explain, or rebut that
evidence, even if the evidence offered in explanation or rebuttal
would have been incompetent or irrelevant if offered initially.
E.g., State v. Leroux, 326 N.C. 368, 382, 390 S.E.2d 314, 324,
cert. denied, 112 L.Ed.2d 155 (1990). Such rebuttal is permissible
“to correct inaccuracies or misleading omissions” in the evidence
presented by the opposing party or to dispel favorable inferences
arising from that evidence. State v. Lynch, 334 N.C. 402, 412, 432
S.E.2d at 349, 354 (1993).
The trial court erred by preventing Mr. Brown from offering
(1) testimony by Judy Newsome about an incident when Boyens
frightened and intimidated her by approaching and grabbing her
while intoxicated, (2) testimony by Heather Hamilton about in
incident when Boyens intimidated her, and (3) testimony by Nate
31
Newsome that other tenants in the trailer park had complained about
Boyens’ aggressive behavior. This evidence was admissible to
“correct inaccuracies” and “dispel favorable inferences” arising
from the state’s evidence of Boyens’ good character.
Judy Newsome testified on voir dire that the first time she
met Boyens, he stepped out in the middle of the street in front of
her car. Judy stopped and rolled down the window. Boyens came over
and introduced himself. Judy’s son Nate was beside the road
signaling to her to drive on, so she did. (Tp 1277) The next time
Judy saw Boyens, she was cleaning the vacant mobile home behind
Skinner’s trailer and saw Boyens through the window. Boyens came to
the door and said, “I saw you looking at me through the window.”
Judy could tell he had been drinking. She told him she was not
looking at him. Boyens started commenting on her appearance,
rubbing her arm, and reaching for her. Judy was frightened and
intimidated. She told Boyens she needed to go, but he kept her from
closing the door. He reached in to touch her leg and he grabbed and
crushed her arm. When she finally got the door closed, she was
crying. She called Nate and told him what happened. (Tpp 1278-84)
Nate Newsome testified on voir dire that his mother was
frantic when she called him about what happened to Skinner.
Skinner told Nate that Boyens and another person beat him up.
Newsome told Skinner that he had already heard several complaints
about Boyens and that he would not be allowed back in the park.
(Tpp 1296-97) Two or three people complained to Nate near the
beginning of summer about Boyens drinking, being loud and
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boisterous, stepping out in the street and not letting them pass,
trying to “schmooze” them, engaging in passive-aggressive
intimidation. Mr. Brown complained to Nate about being harassed.
The incident with Nate’s mother “solidified” the other tenant
complaints. (Tpp 1297-99, 1301)
Heather Hamilton testified on voir dire that she lived next
door to Skinner and Lillie and they shared a fence. (Tpp 1307-09)
She had two encounters with Charles Boyens that made her feel
“highly uncomfortable” and harassed. She was outside with her
boyfriend while a barbeque was going on at Skinner’s house. Boyens
were there drinking beer and he stared at her constantly for about
ten minutes. When her boyfriend left, Boyens approached and spoke
to her in a way that made her uneasy, so Hamilton went inside.
Later, she went out to smoke. Boyens came over to the fence
uninvited and started talking to her son. After that day, Hamilton
tried to limit her time outside and kept the blinds closed on the
side of her home facing Skinner’s trailer. (Tpp 1309-16)
Defense counsel also proffered Defendant’s Exh VD-1, a record
of Boyens’ conviction and sentence in federal court and the
conditions of his supervised release. (Tpp 1317-20)
Mr. Brown’s counsel argued the state opened the door to this
evidence because the testimony of Lillie and Benton created a false
picture of Boyens which the defense was entitled to rebut, and
exclusion of the evidence would violate his rights to due process
and confrontation under the sixth and fourteenth amendments and the
state constitution. (Tpp 1326-38) The trial court, applying Rules
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of Evidence 402 and 403, admitted the evidence about Boyens hurting
Skinner but excluded the testimony about Boyens’ conduct toward
Judy Newsome and Hamilton. The court also ruled Nate Newsome could
not testify he received complaints about Boyens from anyone other
than Mr. Brown. The court admitted only the first two pages of
Boyen’s criminal record, concluding the indictment, sentence, and
conditions of probation were not relevant. (Tpp 1342-47)
These rulings were erroneous because the common law rule
allowing admission of otherwise inadmissible evidence to which the
opposing party has “opened the door” trumps the rules of evidence.
For example, in State v. Garner, 330 N.C. 273, 410 S.E.2d 861
(1991), our supreme court held that, because the defendant put on
evidence of his general good character and devotion to his wife,
suggesting that the victim was the troublemaker in their
relationship, the state was entitled to rebut that evidence by
delving into the details of the defendant's prior assaults on his
wife which would otherwise have been inadmissible. Id. at 289-90,
410 S.E.2d at 870. See also State v. Norman, 331 N.C. 738, 417
S.E.2d 233 (1992) (defendant's involvement with other women was
relevant for impeachment because defendant testified he loved his
wife). In this case, the state’s witnesses painted Charles Boyens
as a big, loveable, peaceful teddy bear who was not aggressive,
kept to himself, and did not bother anyone. This picture of Boyens
was inaccurate and incomplete. “Under such circumstances, the law
wisely permits evidence not otherwise admissible to be offered to
explain or rebut evidence elicited by [the state].” State v.
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Albert, 303 N.C. 173, 277 S.E.2d 439, 441 (1981).
Moreover, “[f]ew rights are more fundamental than that of an
accused to present witnesses in his own defense” and to “put before
the jury evidence that might influence the determination of guilt.”
Taylor v. Illinois, 484 U.S. 400, 408, 98 L.Ed.2d 798, 810 (1988).
Due process prohibits applying rules of evidence “mechanistically
to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S.
284, 302, 35 L.Ed.2d 297, 313 (1973)). See, e.g., State v. Hester,
330 N.C. 547, 553, 411 S.E.2d 610, 613 (1992) (error to sustain
State’s objection to questions central to defendant’s case).
When exclusion of defense evidence deprives a defendant of his
constitutional right to present a defense, the state must show the
error was harmless beyond a reasonable doubt. N.C. Gen. Stat, §15A-
1443(b). The state cannot meet that burden. The state’s case for
first-degree murder was weak and the trial court’s evidentiary
rulings were not even-handed. The court let the state introduce a
plethora of highly prejudicial evidence attacking Mr. Brown’s
character and veracity but prevented the defense from presenting
all its evidence of Boyens’ aggressive character. Because the jury
had to decide which one of them was the aggressor, every bit of
this evidence mattered. Mr. Brown must receive a new trial.
CONCLUSION
For the foregoing reasons, Mr. Brown must receive a new trial.
Respectfully submitted, this the 10th day of October, 2012.
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________________________________
Constance E. WidenhouseAssistant Appellate DefenderState Bar #[email protected]
Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701(919) 354-7210
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I further hereby certify that I served a copy of the above and foregoing Defendant-Appellant’s Brief upon the State of North Carolina by first-class mail, postage prepaid, addressed to Mr. Jonathan P. Babb, Special Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602.
This the 10th day of October, 2012.
_______________________________
Constance E. WidenhouseAssistant Appellate Defender
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