State v. Shelly

• Citation: 627 S.E.2d 287
• Decision Date: 21 March 2006
• Docket Number: No. COA05-713.,COA05-713.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Delwood Earl SHELLY.

627 S.E.2d 287

STATE of North Carolina v. Delwood Earl SHELLY.

No. COA05-713.

Court of Appeals of North Carolina.

March 21, 2006.

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Appeal by Defendant from judgments entered 16 September 2004 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 20 February 2006.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant-Appellant.

STEPHENS, Judge.

Defendant appeals from judgments of the trial court convicting him of two counts of first-degree murder and two counts of conspiracy to commit first-degree murder. For the reasons stated herein, we affirm both murder convictions and one conspiracy conviction. We arrest judgment on the second conspiracy conviction.

The State's evidence tended to show that on 1 January 2002, Rodney Wilkerson gave a ride to his friends, Malcom and Andre Jackson. When Wilkerson's car arrived at a destination down a dirt road, a car in which Defendant was a passenger traveled down the same road and stopped near Wilkerson's car. Defendant was in the back seat of the car with the window partially rolled down. Wilkerson saw Defendant with a large shotgun. Wilkerson yelled, "It's a drive by" and immediately ran from his car, leaving Malcom and Andre Jackson in the vicinity of the car. While he was running, Wilkerson heard several shots. Wilkerson ran to his mother's nearby home. His mother called for emergency assistance. Upon the arrival of two sheriff's deputies, Wilkerson explained what had happened and followed the deputies to the location of the shooting. The deputies discovered the bodies of Malcom Jackson and Andre Jackson outside of Wilkerson's car.

The medical examiner found that Andre Jackson had been shot several times and had bullet wounds in his chest, chin, neck, right torso, back, and right shoulder from a shotgun blast. The victim also exhibited a handgun bullet wound to the left side of his face. The medical examiner further discovered that Malcom Jackson had also been shot several times and had shotgun pellet wounds to his right hip, right thigh and left hand. In addition, Malcom Jackson exhibited two handgun wounds to the back of his head.

Wilkerson filed a statement with the police department, and a warrant for the arrest of Defendant was signed by a magistrate on 3 January 2002. On 23 July 2002, Defendant was indicted on two counts of first-degree murder and two counts of conspiracy to commit first-degree murder. Defendant's trial began on 31 August 2004 and, on 13 September 2004, a jury found him guilty on all counts. On 16 September 2004, Judge Ammons sentenced Defendant to two consecutive life terms for the first-degree murder convictions and two consecutive terms of 220 to 273 months for the conspiracy to commit first-degree murder convictions. Defendant appeals.

In his first assignment of error, Defendant argues that the trial court committed reversible error by allowing the State to impeach him on cross-examination with evidence of prior convictions that were more than ten years old. We disagree.

Rule 609 of the N.C. Evidence Code provides, in pertinent part, that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony . . . shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter....

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction ... 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. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

N.C. Gen.Stat. § 8C-1, Rule 609(b) (2005). Thus, pursuant to Rule 609, a prior conviction that is more than ten years old may be admissible if (1) the defendant had written notice of the State's intent to use such evidence sufficiently in advance of trial to object to the evidence, and (2) the trial court makes sufficient findings that the probative value of the evidence substantially outweighs the prejudicial effect of admitting it. The trial court's ultimate determination is reversible only for a manifest abuse of discretion. State v. Ferguson, 105 N.C.App. 692, 414 S.E.2d 769 (1992).

In the instant case, there is no dispute that the State failed to give Defendant written notice of its intent to introduce evidence of his old convictions. Nonetheless, there is ample evidence that Defendant had actual notice of the State's intent to use his prior convictions because the defense submitted a motion, which had been authored a month before the trial, to the trial judge to prohibit the impeachment of Defendant by "stale convictions." Outside the presence of the jury, Defendant argued that the conviction evidence of cocaine possession in 1980, as well as common law robbery, larceny and credit card fraud in 1988, should not be allowed. The State noted that it did not "specifically write something down and say to [defense attorneys], `I intend to use these convictions.'" However, the State provided a copy of Defendant's record to the defense as a part of open-file discovery with the "implication" that it would be used at trial. Because the defense had prepared a written motion with Defendant's conviction records attached to it several weeks before the trial, it is obvious that Defendant had actual notice that the State intended to use the prior convictions for impeachment purposes, and that the defense clearly had a fair opportunity to contest the use of such evidence.

Although it does not appear that this State's appellate courts have previously addressed the potential consequences of failing to follow the notice requirements of Rule 609(b) to the letter as those requirements relate to the specific issue raised herein, we agree with the State that to warrant a new trial, an error must be more than merely technical; it must also be material and prejudicial. This is a fundamental legal concept. See, e.g., State v. Curmon, 295 N.C. 453, 245 S.E.2d 503 (1978); State v. Gilbert, 85 N.C.App. 594, 355 S.E.2d 261 (1987); State v. Knoll, 84 N.C.App. 228, 352 S.E.2d 463 (1987), rev'd on other grounds, 322 N.C. 535, 369 S.E.2d 558 (1988); State v. Mitchell, 20 N.C.App. 437, 201 S.E.2d 720 (1974).

Moreover, we find persuasive guidance in the decision of this Court in State v. Blankenship, 89 N.C.App. 465, 366 S.E.2d 509 (1988). The defendant in Blankenship took the stand in his own behalf and, on direct examination, testified about his prior criminal record beginning in 1980, but failed to mention a 1972 conviction for credit card theft. Evidence regarding the 1972 conviction was discovered by the State after the State had responded to the defendant's discovery requests. The evidence had never been disclosed to the defendant, nor had the State given any notice to the defense of an intention to cross-examine the defendant regarding the 1972 conviction. On cross-examination, however, the State asked the defendant about the still undisclosed 1972 conviction and, over defendant's objection, the trial court allowed the evidence.

When the Blankenship Court considered the defendant's argument that the use of a prior conviction was prohibited by Rule 609(b) because the State failed to give him advance notice of an intent to use the evidence, the Court noted the absence of any North Carolina cases determining that specific issue. The Court thus looked to federal law because the federal evidentiary rule is identical to the state rule.

Noting that the State's use of the prior conviction was to directly impeach Blankenship's credibility based on a false assertion made by him during direct examination, the Court found support for allowing the prior conviction evidence under such circumstances, despite the failure of notice, in United States v. Johnson, 542 F.2d 230 (5th Cir. 1976), a case in which the federal prosecutor was permitted to cross-examine the defendant about a prior conviction to impeach his credibility based on false testimony he gave on direct examination. The Fifth Circuit ruled that such use of prior conviction evidence was permitted under Rule 609 even though the government had not given the defendant any notice of its intended use of the old conviction.

The holdings in Blankenship and Johnson were premised primarily on the long-standing evidentiary rule that "[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially." State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). Left open is the question of whether the State may introduce prior conviction evidence other than to rebut a defendant's false testimony on direct examination, absent advance written notice. On this specific question, we have found no North Carolina or federal cases that have determined the answer.

We are guided by Blankenship and Johnson because they establish that strict adherence to Rule 609's notice requirement is not the sole test of whether prior conviction evidence is admissible. Furthermore, the purpose of the Rule's notice requirement is plain beyond contradiction, and that is "to provide the adverse party with a fair opportunity to contest the use of such evidence." N.C. Gen....