Opinion
No. COA11–844.
2012-05-1
STATE of North Carolina v. Henry T. LOCKLEAR.
Attorney General Roy Cooper by Assistant Attorney General Elizabeth J. Weese for the State. Thomas, Ferguson & Mullins, LLP, by James H. Monroe for defendant-appellant.
Appeal by defendant from judgment entered 18 February 2011 by Judge James Gregory Bell in Robeson County Superior Court. Heard in the Court of Appeals 29 November 2011. Attorney General Roy Cooper by Assistant Attorney General Elizabeth J. Weese for the State. Thomas, Ferguson & Mullins, LLP, by James H. Monroe for defendant-appellant.
STEELMAN, Judge.
The trial court erred in failing to make findings weighing the probative value of a prior conviction that was substantially more than 10 years old against its prejudicial effect, as required by N.C .R. Evid. 609(b). Because of the lack of overwhelming evidence of defendant's guilt, the error was not harmless, and defendant is entitled to a new trial.
I. Factual and Procedural History
Henry T. Locklear (defendant) operated two mobile home supply stores and a carpet cleaning business in Robeson County. Carrie Berry (Berry) worked as an insurance clerk at a medical practice. Defendant met Berry while cleaning the carpets at the medical practice. After Berry separated from her husband, defendant began giving her money. On 26 May 2004, Berry went to defendant's store in Red Springs after hours to pick up some money. On 3 June 2004, Berry reported to the Robeson County Sheriff's Department that defendant had raped her on 26 May 2004.
On 13 September 2004, defendant was indicted for second-degree rape. Defendant was tried at the 18 January 2011 session of Criminal Superior Court for Robeson County. At trial, Berry and defendant gave vastly different versions of what transpired on the evening of 26 May 2004. Defendant was found guilty of attempted second-degree rape. He was found to be a level II for purposes of felony structured sentencing. The court imposed an active sentence of 46 to 65 months imprisonment, from the mitigated range.
Defendant appeals.
II. Motion In Limine Concerning Prior Rape Conviction
In his first argument, defendant contends that the trial court erred in denying defendant's motion in limine concerning a 1976 conviction for rape in the State of South Carolina. We agree.
A. Preservation
Generally, a motion in limine is insufficient to preserve the right to appeal the admissibility of evidence if the defendant fails to object to the evidence when it is offered at trial. State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007); State v. Tutt, 171 N.C.App. 518, 524, 615 S.E.2d 688, 692–93 (2005).
Our Supreme Court held that a defendant does not “open the door” to cross-examination regarding his prior conviction by testifying about the conviction on direct examination. State v. Ross, 329 N.C. 108, 117, 405 S.E.2d 158, 163 (1991). “A criminal defendant is permitted to enhance his credibility by testifying as to his criminal record.” Id. In Ross, the defendant's motion in limine to exclude a prior conviction was denied. Id . “A defendant would face an unfair dilemma if forced to choose between devastating cross-examination about a conviction and waiver of his right to appeal the denial of a pretrial motion.” Ross, 329 N.C. at 118, 405 S.E.2d at 164.
In the instant case, on 16 September 2005, defendant filed a motion in limine seeking to have evidence of the 1976 conviction excluded at trial. This motion was heard pre-trial, and the trial court deferred ruling on the motion. At the close of the State's evidence, defendant renewed this motion. The trial court ruled that in the event defendant testified, the motion would be denied. Defendant did testify. The existence of the prior conviction was brought out by defense counsel during the direct examination of defendant. The State then cross-examined defendant concerning this conviction without objection from defendant. Based upon the Supreme Court's holding in Ross, the denial of his motion in limine is preserved for appellate review.
B. Analysis
N.C.R. Evid. 609(b) provides that the evidence of a prior conviction “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.” N.C.R. Evid. 609(b) (2011).
An analysis of the legislative history reveals that N.C.R. Evid. 609(b) rests upon a “rebuttable presumption that prior convictions more than ten years old tend to be more prejudicial to a defendant's defense than probative of his general character for truthfulness, and that they should therefore not be admitted into evidence.” Ross, 329 N.C. at 119, 405 S.E.2d at 164.
“[T]he trial judge must make specific findings as to how the prior convictions are probative on credibility issues when balancing probative value against prejudicial effect.” State v. Shelly, 176 N.C.App. 575, 581, 627 S.E.2d 287, 293 (2006). See also State v. Farris, 93 N.C.App. 757, 761, 379 S.E.2d 283, 285–86 (1989).
The findings “should address (a) whether the old convictions involved crimes of dishonesty, (b) whether the old convictions demonstrated a ‘continuous pattern of behavior,’ and (c) whether the crimes that were the subject of the old convictions were ‘of a different type from that for which defendant was being tried.’ “ Shelly, 176 N.C.App. at 583, 627 S.E.2d at 295 (quoting State v. Hensley, 77 N.C.App. 192, 195, 334 S.E.2d 783, 785 (1985)).
In the instant case, the trial court made no findings as to how the prior conviction was probative of defendant's credibility.
THE COURT: All right. So, if the defendant testifies, it would be the State's position that the prior conviction for rape shows a same or similar act, and you would use that on cross-examination?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: All right. So, based on that, I'll deny the motion in limine of the defendant as to the conviction, if the defendant testifies. (T3 p. 231).
The trial court erred in failing to make the required findings of fact.
Defendant is entitled to a new trial only if there is a reasonable possibility that a different result would have been reached at trial had the court excluded the prior conviction. Ross, 329 N.C. at 121, 405 S.E.2d at 165–66. In Ross, the Court concluded that there was overwhelming evidence of the defendant's guilt, which made it “extremely unlikely that the jury relied on the evidence of the earlier conviction rather than the substantive evidence of guilt.” Ross, 329 N.C. at 121, 405 S.E .2d at 165.
In State v. Hensley, 77 N.C.App. 192, 334 S.E.2d 783 (1985), the Court concluded that the defendant was properly impeached with evidence of seven other convictions, which “so clearly established defendant's character as a lawbreaker that the additional thirteen-year-old convictions could not have appreciably worsened the jury's view of [the defendant's] credibility.” Hensley, 77 N.C.App. at 196, 334 S.E.2d at 785.
In the instant case, the only two witnesses to the alleged rape were Berry and defendant. There was no physical evidence or DNA evidence introduced at trial. No other prior convictions were introduced to impeach defendant. Defendant has demonstrated that there is a reasonable possibility that a different result would have been reached at trial had the court excluded this prior conviction. We conclude that the error was not harmless and that defendant is entitled to a new trial.
NEW TRIAL. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).