State v. Kimbrell
| Decision Date | 20 January 1987 |
| Docket Number | No. 8622SC545,8622SC545 |
| Citation | 84 N.C.App. 59,351 S.E.2d 801 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Charles Ray KIMBRELL. |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Lucien Capone III, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender David W. Dorey, Office of the Appellate Defender, Raleigh, for defendant.
Defendant contends the court erred in allowing the State to cross-examine him about his knowledge and participation in "devil worshipping." Defendant also contends that the court erred in allowing the State to cross-examine him about his son's attempt to "sneak" or "smuggle" marijuana to him while defendant was being held in custody. For the reasons below, we hold that the court erred in both instances by permitting such questioning, but that these errors were not sufficiently prejudicial to warrant a new trial in light of the substantial evidence of defendant's guilt.
After defendant's arrest, he made a statement while in custody in which he referred to his knowledge of and participation in "black magic" with a group that included Ricky Norman and others. The State's cross-examination of defendant was based, in part, on this prior statement. Defendant's cross-examination proceeded, in pertinent part, as follows:
Q. Have you done any devil worshipping?
A. No, sir.
Q. Have you ever been to any ceremonies?
A. No, sir.
Q. Have you seen things at night?
A. No, sir.
Q. Birds, hawks, dogs, a number of things?
A. No, sir.
Q. You don't recall telling Special Agent Leggett of the SBI that you saw those things?
A. No, sir.
Q. "I saw a goat head made out of brass in the vision"?
Q. And you and Luther on Friday the 13th--April, Friday the 13th, you-all were supposed to go to a seance, isn't that right?
A. That's what Bobby Tucker said.
Q. Huh?
A. That's what Curtis Robert Tucker said.
Q. Well, you were supposed to go, weren't you?
A. I was invited.
THE COURT: You may answer the question.
A. (continuing) I was invited to it, and when I got up on Main Street to go down toward Luther's house I seen some police officers going down towards Luther's, and I kept going straight.
Q. A police officer?
A. I seen two carloads going down towards Luther's.
Q. And of course that scared you?
A. Yes, sir.
* * *
Q. Did you tell them you wanted to show them something that Bob and Luther gave you about some little swords--some little bitty swords, something about they had power?
A. That's what they told me.
Q. Go ahead. What? Answer the question. You've got to answer the question.
A. I told them about the swords, yes, sir. I wasn't talking about myself, I was explaining about Luther Flynn at the time, if you'll remember.
Q. You had one of these black magic bibles, too, didn't you?
A. No, sir.
Q. Who had the bible? Who had the bible?
A. Luther Flynn had the bible.
Q. Had he ever read any of it to you?
A. Yes, sir.
Q. Were Ricky and Pam Norman involved in this black magic stuff?
A. I don't know, sir.
Q. What did that consist of? Worshipping the devil?
A. I don't know, sir.
Q. What did that black bible Luther had have to say about it?
Q. You can answer.
A. It's just a bunch of words. I don't know. I didn't pay any attention to it.
The State contends that this evidence was admissible under N.C.Gen.Stat. § 8C-1, Rule 608(b) of the North Carolina Rules of Evidence, which provides that:
(b) Specific instances of conduct.--Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The State argues that "defendant's involvement and belief in 'devil-worshipping' is conduct directly related to the issue of his truthfulness since 'devil-worship' is by definition, glorification of the archetypal embodiment of evil and deceit." However, Rule 610 expressly provides that:
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias.
Accordingly, even assuming that this evidence was probative of defendant's veracity as the State contends, it was nevertheless inadmissible under Rule 610 for that purpose. Cf. State v. Reilly, 71 N.C.App. 1, 321 S.E.2d 564 (1984) aff'd on other grounds, 313 N.C. 499, 329 S.E.2d 381 (1985) and 1 Brandis, North Carolina Evidence § 55 (1983 Supp.).
The commentary to Rule 610 provides that "[e]vidence probative of something other than veracity is not prohibited by the rule." In this regard the State contends that this evidence was admissible to show motive and identity under Rule 404(b). Specifically, the State contends that this evidence supported its theory that defendant and the Normans "were involved in a group tied together by drug dealings, black magic and other illicit activities, and that defendant was motivated to have the Normans killed after he was 'cast out' of the group and the Normans interfer[ed] with [his] drug business."
However, even assuming that this evidence was admissible under Rule 404(b) to show motive, "the determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403." State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).
We hold that this evidence was inadmissible to show motive under Rule 403 in that its potential for undue prejudice to defendant clearly outweighed its nominal probative value. Prior to defendant's cross-examination, the State presented substantial evidence of defendant's primary motivation for having the Normans killed: that Ricky Norman owed defendant money for drugs and was interfering with his drug business. The fact that defendant and the Normans all belonged to a group in which the members participated in "black magic" and from which defendant felt "cast out" does not support defendant's primary motivation for having the Normans killed according to the State's theory in its case in chief. Rather, this evidence, if anything, merely furnished the State with an additional possible motive for defendant's actions.
At the same time, as defendant stresses, accusations or insinuations of participation in "devil worship" clearly carry with them a great potential for prejudicial impact on defendant's credibility. This potential for prejudice is evidenced, in part, by the prohibitions established by Rule 610.
The State essentially concedes that evidence of defendant's son's attempt to smuggle marijuana to him was inadmissible under Rule 608(b) but argues that defendant has failed to show prejudicial error. The impermissible cross-examination in this instance and regarding the references to "devil worship" would constitute reversible error if it could be shown that "a reasonable possibility that, had the error[s] in question not been committed, a different result would have been reached...." N.C.Gen.Stat. § 15A-1443(a); State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986).
We hold, however, that there is no reasonable possibility that had these errors not been committed, a different result would have been reached at trial and that the error was harmless in the light of the other evidence properly admitted at the trial. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986). The State, through the testimony of James and Donna Hunt, presented substantial evidence that defendant was an accessory before the fact in that he was absent from the scene when the killings were committed but he participated in the planning or contemplation of the killings in such a way as to counsel, procure or command the Hunts to commit them. See State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980).
Defendant contends that the court erred in finding as a non-statutory aggravating factor in sentencing defendant for each conviction that defendant
dispensed cocaine to the principals, James Clay and Donna Hunt, in substantial quantity while inducing them to kill and murder the two (2) victims; he likewise promised to forgive a debt of approximately $1200.00 from Clay Hunt and a debt of approximately $600.00 from Donna Hunt; the defendant furnished a knife and a pistol, ".357 Magnum", to the principals to use in the crime; and finally, the principals who were solicited and procured by the defendant...
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