State v. Leggett

• Decision Date: 05 October 1999
• Docket Number: No. COA98-1413.,COA98-1413.
• Citation: 135 NC App. 168,519 S.E.2d 328
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Larry LEGGETT.

519 S.E.2d 328

135 NC App. 168

STATE of North Carolina v. Larry LEGGETT.

No. COA98-1413.

Court of Appeals of North Carolina.

October 5, 1999.

Michael F. Easley, Attorney General, by Francis W. Crawley, Special Deputy Attorney General, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

EDMUNDS, Judge.

This appeal arises from a double murder. On the evening of 20 January 1994, Margaret Strickland borrowed her mother's car to visit Bobby Stroud. Two days later, the bodies of Strickland and Stroud were found near Dudley, North Carolina. Autopsies disclosed that Strickland had suffered blunt force injury to her left cheek and forehead as well as three gunshot wounds, one to the chest and two to her head and face. Stroud also suffered from three gunshot wounds, one to the back and two to his head and neck. The car owned by Strickland's mother was found behind an abandoned house. Inside the trunk, police discovered Strickland's fingerprints and palm print. In the back seat, police found a cassette cover containing the fingerprint of Kwame Teague. Markers from human blood found on the back seat matched markers found in Strickland's blood.

Three individuals were indicted for the murders and were tried separately. Defendant, the last of the three, was tried for first-degree murder and related charges at the 11 March 1996 criminal session of the Wayne County Superior Court. The State proceeded under theories of both felony murder and premeditation and deliberation. Defendant was convicted of first-degree kidnapping, robbery with a dangerous weapon, and first-degree murder under the felony murder rule. The trial court imposed a sentence of life.

I.

Defendant first argues that it was error for the trial court to allow testimony of other crimes pursuant to Rule 404(b) of the Rules of Evidence because, he contends, there were insufficient similarities between the crimes to allow testimony regarding the past crimes. We disagree.

Rule 404(b) has been held to be a rule of inclusion, unless the only probative value of the evidence of other crimes is to show a propensity to commit an offense of the nature of the crime charged. See State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990)

. The rule states:

(b) Other crimes, wrongs, or acts.—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen.Stat. § 8C-1, Rule 404(b) (Supp. 1998). When a court determines that evidence is offered pursuant to Rule 404(b), the court first must determine whether that evidence is relevant. See State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)

. "`Relevant evidence' means evidence having any tendency 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 (1992). Even if relevant, the evidence may be excluded if the danger of prejudice substantially outweighs its probative value. See N.C. Gen.Stat. § 8C-1, Rule 403 (1992). Exclusion or admission of evidence under Rule 403 is left to the sound discretion of the trial court. See State v. Parker, 113 N.C.App. 216, 225, 438 S.E.2d 745, 751 (1994). "When the incidents are offered for a proper purpose, the ultimate test of admissibility is `whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.'" State v. Pruitt, 94 N.C.App. 261, 266, 380 S.E.2d 383, 385 (1989) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988) (citation omitted)).

The evidence in question related to two prior incidents. The first occurred in January 1994, when two black men entered the apartment of Mark Spears and Robin Barnes. Spears identified defendant as the intruder who pointed a pistol at his (Spear's) head and with whom he struggled before the intruders fled. Barnes also testified that he was "pretty sure" defendant was the individual wrestling with Spears. The second incident occurred on 29 January 1994, when Robert Flores was robbed at gunpoint by two men. Flores identified defendant as the robber who threatened him with a handgun. After a lengthy voir dire hearing on the matter, the trial court concluded:

[T]he evidence ... is competent ... to show that there was a plan and a scheme to participate in the armed robbery with the assistance of at least one additional person.

....

... [T]he perpetrators of each armed robbery attempted to gain an advantage by the use of surprise or deception over the intended victim....

The perpetrator of the Spears' and Barnes' attempted robbery pointed a gun at the left ear of Spears. The perpetrator of the robbery of Strickland shot her in the head above the left ear.

The perpetrators commenced each crime after [sic] 9 p.m. and approximately midnight of the same day.

The use of the small caliber handgun was used in a similar fashion during the Flores' and Spears' incident in that the gun was first raised before it was lowered or pointed at anyone.

....

... The similarities of the crimes committed against Robert Flores, Mark Spears, and Robert Barnes are sufficient to support the reasonable inference that the defendant Larry Leggett participated in each of them.

... The evidence of the robbery of Flores and the attempted robbery of Spears and Barnes is admissible for the purpose of showing intent, preparation, plan and identity of the defendant and its probative value is not outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time or needless presentation of cumulative evidence.

We find no abuse of discretion in the admission of this evidence. After finding the evidence relevant for some purpose other than to show defendant's propensity to commit this type of crime, see Morgan, 315 N.C. at 637,

340 S.E.2d at 91, the trial court applied the balancing test of Rule 403, see Boyd, 321 N.C. at 577,

364 S.E.2d at 119, and concluded that the evidence was more probative than prejudicial. Although most robberies committed with a firearm necessarily have much in common, the court isolated a number of pertinent factors on which to base its decision to admit the evidence. This assignment of error is overruled.

II.

Next, defendant argues that the trial court erred in allowing the past recorded recollection of state's witness James Davis to be read to the jury. Davis had been defendant's cellmate at the Wayne County jail. After having a conversation with defendant about the events of 20 January 1994, Davis reported to the attorney representing co-defendant Lemons that defendant had told him that defendant, Teague, and Lemons robbed two people and that he (defendant) and Teague had each shot the woman once. Davis provided the attorney a handwritten copy of this statement. When the handwritten statement was presented to the State during Lemons' sentencing, a detective interviewed Davis and took another essentially similar statement, which Davis signed. When called by the prosecution at defendant's trial, Davis testified that he could no longer remember the substance of his conversations with defendant, but that his earlier statements to the detective and the attorney were made while he correctly remembered defendant's comments to him and were the truth as he knew it at the time.

Defendant argues that these statements were "not properly authenticated, did not meet the criteria for admission under G.S. 8C-1, Rule 803(5) and deprived [him] of his right of confrontation and due process...." Rule 803(5) provides:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.

N.C. Gen.Stat. § 8C-1, Rule 803(5) (1992). This rule covers precisely the situation confronted by the trial court.

After conducting a voir dire as to the statement Davis made to Lemons' attorney, the trial court made the following finding: When the witness made the statement he wrote it in his own handwriting and it was his recollection of the matters contained in the statement and the statement made by him was true at the time he made it. This statement is a record concerning a matter about which the witness once had knowledge but is now unable to recall what he knew and said. It was made by the witness when the matter was fresh in his memory and correctly reflects the knowledge he had at the time he made the statement.... [T]he Court orders that this statement may be read into evidence by the witness....

The court made similar findings as to the statement Davis made to the detective.

Davis' powers of recollection at defendant's trial were less than impressive. He testified that the statement to Lemons' attorney was in his handwriting and contained his signature, but he could not remember writing it. However, he further testified that, although he could not remember writing the statement, what he wrote was true. Davis added that at the time he gave the statement to Lemons' attorney, he was able to recall his conversation with defendant, but that he no longer remembered what was said. He remembered testifying at Lemons' trial, but did not remember the substance of his testimony. He did not remember what he told the detective, but he did recall reviewing and correcting the statement that the detective took from him, thereby adopting it. Davis' testimony establishes that both statements are prior recollections recorded and satisfy the...