State v. McCoy

• Decision Date: 18 October 2005
• Docket Number: No. COA04-1336.,COA04-1336.
• Citation: 620 S.E.2d 863
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerome Cannon McCOY, Defendant.

620 S.E.2d 863

STATE of North Carolina v. Jerome Cannon McCOY, Defendant.

No. COA04-1336.

Court of Appeals of North Carolina.

October 18, 2005.

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Appeal by defendant from judgments entered 4 March 2004 by Judge Ripley E. Rand in the Superior Court in Guilford County. Heard in the Court of Appeals 18 May 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Karen S. Long, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant.

HUDSON, Judge.

On 7 July 2003, a grand jury in Guilford County indicted defendant, Jerome Cannon McCoy, for three counts each of assault inflicting serious injury, assault with adeadly weapon inflicting serious injury, and second-degree kidnaping. At the 23 February 2004 criminal session of the Superior Court in Guilford County, the court dismissed one count each of assault with a deadly weapon inflicting serious injury and second-degree kidnaping. A jury found defendant guilty of one count of assault inflicting serious bodily injury, two counts of assault inflicting serious injury, two counts of assault with a deadly weapon, and two counts of second-degree kidnaping. Based on its findings of aggravating factors, the court sentenced defendant to consecutive terms of imprisonment totaling more than sixteen years with credit for time served. Defendant appeals. For the reasons discussed below, we conclude that defendant is entitled to a new trial on all charges.

The State's evidence tended to show that sometime after Christmas 2002, Melanie Hope Hunt gave a written statement to Greensboro police stating that defendant had severely beaten her and restrained her against her will over the course of the past month and half. Hunt reported that between 9 through 13 November 2002, the defendant stabbed her five times with such force that the knife became stuck in one of her arms. She further stated that the defendant punched her so hard that she struck a wall, leaving an imprint and forcing the pair to move to a different motel.

Hunt told police that on 17 or 18 November 2002, the defendant beat her in the face, and twisted her arm until it fractured. After initially refusing to take her to get medical treatment, defendant ultimately agreed to take Hunt to a hospital in High Point. Defendant instructed her to tell hospital staff that she had fallen out of the attic and broken her arm and that the stab wounds were puncture wounds she received trying to climb over a fence. Hunt further stated that on 24 and 25 December 2002, defendant beat her, threw her to floor on her broken arm, hit her in the stomach and back, and whipped her legs with a belt. She stated that on 25 December 2002 defendant would not allow her to see her family, and threatened to beat her each time she requested to go.

At trial, Hunt admitted writing these statements, but insisted that they were not true. She testified that she had written them only because she had caught the defendant in bed with another woman, and that she had written affidavits three different times asking the State to dismiss all the charges.

The State introduced expert medical testimony from the physician who treated Hunt at High Point Regional Hospital on 19 November 2002. Dr. Kevin Largen testified that Hunt's fractured arm was inconsistent with a fall from an attic, and more likely was caused by a twisting of the bone. He also noted that Hunt had bruises of different ages and a large abrasion on the upper part of her right arm. Based on Hunt's inconsistent statements and her delay in seeking treatment, Dr. Largen concluded that Hunt was a victim of domestic violence and contacted hospital social worker Karen Chance. Mrs. Chance testified that Hunt told her that defendant had been beating her regularly for the past twelve years and that he refused to get her treatment in Greensboro because she was a known victim of abuse at the hospitals there.

Officer S.V. Petteway of the Greensboro Police Department testified that on 26 December 2002 Hunt approached him at the Dollar General Store on High Point Road. He testified that as soon as Hunt began talking to him the defendant fled the store. Hunt told the officer that the defendant had been holding her for days, would not let her contact her family, had beaten her constantly and broken her arm. Officer Petteway took Hunt to her grandmother's house in Randolph County where she was admitted into a domestic violence shelter. Shelter manager Dolly Weeks testified that Hunt had told her that defendant had beaten her, broken her arm, and stabbed her five times.

Defendant argues that the trial court committed reversible error when it admitted and published to the jury evidence of a prior conviction for assault inflicting serious injury. He contends that the admission of such evidence was improper under N.C.R. Evid. 404(b) and was inherently prejudicial under the holding in State v. Wilkerson, 356 N.C. 418, 418, 571 S.E.2d 583, 583, adopting per curiam, 148 N.C.App. 310, 319, 559 S.E.2d 5, 10-11 (2002) (Wynn, J., dissenting). We agree.

Under Rule 404(b), evidence of a defendant's other crimes, wrongs or acts is inadmissible to show that the defendant acted in conformity therewith, but may 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) (2002). In contrast to Rule 404(b), Rule 609 allows for the admission of a prior conviction for the limited purpose of impeaching a defendant's credibility as a witness if the evidence of the convictions is "elicited from the witness or established by public record during cross-examination or thereafter." N.C. Gen.Stat. § 8C-1, Rule 609(a) (2002).

Our courts have held that the distinction between Rule 404(b) and Rule 609 may not be blurred. Wilkerson, 148 N.C.App. at 319, 559 S.E.2d 5, 11. This distinction is crucial because "the bare fact of a defendant's prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose; instead, it is the facts and circumstances underlying such a conviction which hold probative value." Id. Further, "even if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, the inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403." Id. at 319-20, 559 S.E.2d at 11.

In Wilkerson, "testimony [from two law enforcement officers] concerning defendant's prior crimes . . . was admitted under Rule 404(b) to show defendant's intent and knowledge with respect to the charged drug offenses." Id. at 323, 559 S.E.2d 5, 559 S.E.2d at 13. A deputy clerk of court then testified that defendant had prior convictions on several drug charges. Id. at 311, 559 S.E.2d at 6. The trial court admitted both the officers' and the clerk's testimony under Rule 404(b). The defendant did not testify or present evidence. Id. at 312, 559 S.E.2d at 6. In his dissent, adopted by our Supreme Court, Judge Wynn noted that the defendant must be granted a new trial because:

admitting the bare fact of a defendant's prior conviction, except in cases where our courts have recognized a categorical exception to the general rule . . ., violates Rule 404(b) . . . as well as Rule 403, as the bare fact of a prior conviction is inherently prejudicial such that any probative value of the conviction is substantially outweighed by the danger of unfair prejudice.

Id. at 327-328, 559 S.E.2d 5, 16 (emphasis supplied).

Here, the State elicited the testimony of Greensboro Police Officer Wall, who described the underlying facts of an assault committed by the defendant upon Hunt in 1995. However, he did not testify that this assault resulted in a criminal conviction. Following Officer Wall's testimony, the State introduced a certified copy of defendant's criminal conviction for assault inflicting serious injury resulting from the events described by Officer Wall. The trial court admitted both the testimony and the exhibit under Rule 404(b). Defendant did not testify.

While the trial court properly admitted Officer Wall's testimony under Rule 404(b), it erred in admitting the evidence of defendant's prior conviction pursuant to Rule 404(b). As in Wilkerson, the bare fact of a non-testifying defendant's prior conviction was admitted and published to the jury under Rule 404(b) after testimony had been elicited to establish the factual basis underlying that conviction. Because we are unable to distinguish this case from Wilkerson, we conclude that the trial court committed prejudicial error entitling defendant to a new trial.

Although we grant defendant a new trial as discussed above, we also address defendant's other assignments of error which could arise in a new trial.

Defendant next contends that the trial court erred when it instructed the jury, in case No. 03 CRS 51797 ("Count Two"), that a knife is a deadly weapon as a matter of law for the charge of assault with a deadly weapon inflicting serious injury arising out of the events of 6 November 2002. Defendant did not to object to these instructions, but he did assign plain error to them. Accordingly, we review this assignment of error under the plain error standard. State v. Lowe, 150 N.C.App. 682, 685, 564 S.E.2d 313, 315 (2002).

The plain error review requires this Court to review "fundamental errors or defects in jury instructions affecting substantial rights, which were not brought to the attention of the trial court." To obtain relief under this rule, the defendant "must show that the omission was error, and that, in light of the record as a whole, the error had a probable impact on the verdict." State v. Bell, 87 N.C.App. 626, 634-35, 362 S.E.2d 288, 293 (1987).

The defendant contends that it was improper to...