Heard in the Court of Appeals January 23, 2014.
Buncombe County. Nos. 11CRS064748, 12CRS000363-64.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.
Appellate Defender Staples Hughes by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
STROUD, Judge. Judges HUNTER, JR., Robert N. and DILLON concur.
Appeal by defendant from Judgments entered on or about 13 March 2013 by Judge Mark E. Powell in Superior Court, Buncombe County. Heard in the Court of Appeals 23 January 2014.
Devon Gayles (" defendant" ) appeals from judgments entered on or about 13 March 2013 after a Buncombe County jury found him guilty of one count of second degree murder and one count of possession of a firearm by a felon. After the jury's verdict defendant also pled guilty to having attained habitual felon status. We conclude that defendant has failed to show prejudicial error at his trial.
On or about 9 July 2012, defendant was indicted in Buncombe County for the murder of Anthony Byron Carter, possession of a firearm by a felon, and having obtained habitual felon status. Defendant pled not guilty and proceeded to jury trial.
At trial, the State's evidence tended to show the following facts. In the early morning of 24 December 2011, Anthony Carter and some friends went to an Asheville nightclub called " Hole-N-Da-Wall." Defendant was also at the club that night. Slightly before 2 a.m., Mr. Carter and defendant got into a fight. The two men were " fussing and cussing at each other" in an apparent dispute over whether Mr. Carter had spilled beer on defendant. Mr. Carter shoved defendant and defendant shoved back. Darnelle Logan, a " bouncer" for the nightclub, stepped in to break up the fight. He told defendant to leave the club, but instructed Mr. Carter not to follow until after defendant had left. Despite Mr. Logan's instructions, Mr. Carter followed defendant toward the entrance of the nightclub and began hitting defendant again in the head.
At this point the witnesses' stories diverged slightly. One witness testified that she saw defendant pull a gun out of his vest and shoot Mr. Carter. Stacey Taylor, one of Mr. Carter's friends, testified that defendant dropped the gun when Mr. Carter hit him. Mr. Taylor testified that he tried to step on the gun, but that defendant gained control of it, stood up, and fired one shot at Mr. Carter. A third witness testified that she saw defendant with the gun in his hand and heard the shot, but did not see where the weapon came from. After being shot, Mr. Carter stumbled through the front door of the club and collapsed on the concrete stairs in view of several Alcohol Law Enforcement Special Agents. Mr. Carter died of a single gunshot wound to the chest.
After shooting Mr. Carter, defendant ran out of the club and fled to Cincinnati, Ohio, where he was apprehended nearly two months later. A detective from the Asheville Police Department interviewed defendant while he was jailed in Cincinnati. The detective informed him that he was under arrest for murder. Defendant gave no statement, but asked, " Who did I kill?"
Defendant presented evidence in his defense and testified on his own behalf. Defendant's testimony largely matched that of the other witnesses. He testified that he was in the club with a business associate named " Frog." Defendant was trying to light up his " joint" when someone bumped into him, then punched him three or four times in the mouth before a bouncer intervened. Defendant saw that it was Mr. Carter. Defendant testified that he knew Mr. Carter as a gang member who " ran the west side," and who kidnapped and robbed people. Defendant then tried to leave the club, but someone " out of nowhere" punched him several more times, causing him to fall forward. Defendant testified that when he opened his eyes he saw a gun on the floor and a foot on the gun, so he grabbed for it. Defendant gained control of the weapon and stood back up. Mr. Carter punched him one more time in the face, so defendant raised the gun and fired one shot at him. Defendant then left the club and threw the gun into a nearby trash can. Defendant testified that after the shooting he received threatening messages, so he decided to flee Asheville and go to Cincinnati.
The jury found defendant guilty of murder in the second degree and possession of a firearm by a felon. The trial court sentenced defendant to 219-275 months imprisonment and a consecutive term of 88-118 months imprisonment. Defendant gave notice of appeal in open court.
II. Cross-examination on Prior Convictions
Defendant first argues that the trial court erred in permitting the prosecutor to cross-examine him on the details of his prior convictions. We disagree.
A. Standard of Review
The State contends that defendant's arguments concerning the prosecutor's cross-examination of defendant on the details of his prior convictions were not properly preserved. Although defendant did not object when the prosecutor asked twice if he had been convicted of carrying a concealed .22 caliber revolver, neither of those questions elicited evidence. The question to which defendant did object was the one which produced the evidence he challenges on appeal. The prosecutor's questions were not evidence and " [o]rdinarily, the asking of the question alone will not result in prejudice to the defendant." State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Because defendant did object to the question which produced the challenged evidence, we hold that defendant's objection to the evidence that he had been convicted of carrying a concealed .22 caliber revolver was properly preserved.
The standard of review for admission of evidence over objection is whether it was admissible as a matter of law, and if so, whether the trial court abused its discretion in admitting the evidence. Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.
State v. James, __ N.C.App. __, __, 735 S.E.2d 627, 629 (2012) (citations and quotation marks omitted).
It is the rule in North Carolina that for purposes of impeachment, a witness, including the accused, may be cross-examined with respect to prior convictions. . . . [W]here, for purposes of impeachment, the witness has admitted a prior conviction, the time and place of the conviction and the punishment imposed may be inquired into upon cross-examination. . . . A showing that the witness has been convicted of an offense is a prerequisite to the right to cross-examine him relative to the punishment imposed.
State v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 824 (1977).
First, defendant contends that the State failed to establish his prior conviction before asking him about that conviction. That is not what the law requires. As stated in Finch, the State may only inquire into the time, place, and level of punishment imposed relative to an established conviction. Id. But the State is not required to somehow establish the conviction before asking the defendant about the existence of such a conviction. As with any other witness, the State is free to ask the defendant whether he has been convicted of a crime other than a Class 3 misdemeanor consistent with N.C. Gen. Stat. § 8C-1, Rule 609, assuming that there is a good faith basis for such questioning. See State v. Alkano, 119 N.C.App. 256, 263, 458 S.E.2d 258, 263 ( " Questions asked on cross-examination must be asked in good faith." ), app. dismissed, 341 N.C. 653, 465 S.E.2d 533, 467 S.E.2d 898 (1995). The State did not inquire further into the details of defendant's prior convictions until after he admitted them.
Generally, " inquiry into prior convictions which exceeds the limitations established in Finch is reversible error." State v. Rathbone, 78 N.C.App. 58, 64, 336 S.E.2d 702, 705 (1985), disc. rev. denied, 316 N.C. 200, 341 S.E.2d 582 (1986). Nevertheless, " when the defendant 'opens the door' by misstating his criminal record or the facts of the crimes or actions, or when he has used his criminal record to create an inference favorable to himself, the prosecutor is free to cross-examine him about details of those prior crimes or actions." State v. Bishop, 346 N.C. 365, 389, 488 S.E.2d 769, 782 (1997) (citation and quotation marks omitted).
Here, defendant testified on his own behalf and attempted to minimize his criminal record both on direct and cross-examination. On direct examination, defendant's trial counsel asked him what he had been convicted of. Defendant responded, " Just maybe eleven years ago what the judge talked about earlier." The prior stipulation that the trial court read to the jury simply stated that " The State and the defendant stipulate or agree that the defendant was a convicted felon on or about December 24, 2011 . . . ."
The State, on cross-examination, then inquired about his prior convictions:
[PROSECUTOR]: Isn't it true you were convicted on April the 29th of 2002 of felonious carrying a concealed weapon, that being a .22-caliber revolver out of Berrien County, Michigan?
[PROSECUTOR]: April the 29th, 2002 you were convicted of felonious carrying a concealed weapon, a .22-caliber, ...