No: 674A05 TWELFTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
)
v.) From Cumberland County
) (COA04-1429)
JAMES LOVE RENFRO, JR.)
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NEW BRIEF FOR DEFENDANT-APPELLANT
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SUBJECT INDEX
TABLE OF CASES AND AUTHORITIES...... ii
QUESTION PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE GROUNDS...... 2
STATEMENT OF THE FACTS...... 3
ARGUMENT:
I.THE TRIAL COURT ERRED IN ALLOWING INTO
EVIDENCE DEFENDANT'S PRIOR CRIMINAL
CONVICTIONS PURSUANT TO RULE 404(B)
DESPITE REPEATED AND CONTINUED
OBJECTIONS BY DEFENSE COUNSEL, AS THE
EVIDENCE WAS ALLOWED DURING THE STATE’S
CASE IN CHIEF, PRIOR TO A DETERMINATION
OF WHETHER DEFENDANT WOULD TESTIFY; AND,
THE PREJUDICIAL EFFECT OF OFFERING SIMILAR
PRIOR CONVICTIONS CLEARLY OUTWEIGHED ANY
PROBATIVE VALUE...... 5
Assignment of Error No. 1
Tr. pp. 140-01; 143; 194; 195; 198-99; 201-7.
CONCLUSION...... 9
CERTIFICATE OF SERVICE...... 10
TABLE OF CASES AND AUTHORITIES
State v. Hairston, 156 N.C. App. 202,
576 S.E.2d 121 (2003)...... 5
State v. Wilkerson, 356 N.C. 418,
571 S.E.2d 583 (2002)...... 5
State v. Wilkerson, 148 N.C. App. 310,
559 S.E.2d 5 (2002)...... 5
N.C.G.S. 8C-1, Rule 404 (b)...... 5
No: 674A05 TWELFTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
************************************
STATE OF NORTH CAROLINA)
)
v.) From Cumberland County
) (COA04-1429)
JAMES LOVE RENFRO, JR.)
************************************
QUESTIONS PRESENTED
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- WHETHER THE TRIAL COURT ERRED IN ALLOWING
INTO EVIDENCE DEFENDANT'S PRIOR CRIMINAL
CONVICTIONS PURSUANT TO RULE 404(B)
DESPITE OBJECTIONS BY DEFENSE COUNSEL,
DURING THE STATE’S CASE IN CHIEF,
PRIOR TO A DETERMINATION OF WHETHER DEFEN-
DANT WOULD TESTIFY?
ASSIGNMENT OF ERROR NO. 1
Tr. pp. 140-41; 143; 194-95; 198-99; 201-10.
STATEMENT OF THE CASE
Defendant Renfro was indicted for Possession with Intent to Manufacture, Sell or Deliver Cocaine and Misdemeanor Resisting a Public Officer on September 22, 2003, in Cumberland County. (R. pp. 3-4) A Special Indictment for Habitual Felon was also issued against Defendant Renfro on September 22, 2003, in Cumberland County. (R. pp. 5-6) This case came on for hearing in the Cumberland County Criminal Superior Court on or about June 3, 2004, before the Honorable Jack A. Thompson, Superior Court Judge Presiding. (R. p. 1) A jury found Defendant Renfro guilty of Possession With Intent to Manufacture, Sell, or Deliver Cocaine and not guilty of Resisting a Public Officer on June 7, 2004. (R. p. 9) Defendant Renfro entered a guilty plea to the charge of Habitual Felon in Cumberland County Criminal Superior Court on June 7, 2004. (R. pp. 11-13) Judgment was entered on all charges on June 7, 2004, by the Honorable Jack A. Thompson. (R. pp. 14-17) Defendant gave notice of appeal to the Court of Appeals on June 7, 2004. That Court filed an Opinion on November 15, 2005 upholding the judgment, with a dissent. Defendant filed Notice of Appeal in this Court on December 7, 2005.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant-Appellant is entitled to an appeal to this Court as a matter of right pursuant to N.C.G.S. 7A-30(2).
STATEMENT OF THE FACTS
On April 8, 2003, Officer Ryan Skewes, a police officer with the Fayetteville Police Department, was on patrol at around 1:00 a.m. in the morning in an area known as Bonnie Doon, which the Fayetteville Police Department considered to be a very high drug area. (T. pp. 26-27) As Officer Skewes sat in his car, he observed a van pull up to a stop sign on Grooms Street and sit there for several minutes. (T. pp. 26-27) Since the van was sitting at the stop sign for a few minutes, Officer Skewes, who was several blocks away, decided to move to a better vantage point in his patrol car to observe the van. (T. p. 27) Officer Skewes was driving a marked police car so he turned his lights off so as not to alarm anyone of his approaching. (T. p. 27) As Officer Skewes got closer to the van, he did not observe any illegal activity, (T. p. 60) however, he did see “a black male in a blue jersey” “leaning into the driver’s side window.” (T. p. 28, lines 4 and 5) As Officer Skewes drove up behind the van he noticed four or five other individuals in the street as well, who he referred to as “lookouts,” (T. p. 30) although there did not appear to be any apparent connection between any of the individuals and, again, Officer Skewes did not observe any illegal activity. (T. p. 60) As Officer Skewes parked his car and began to get out of the vehicle the four or five individuals in the street started to move out of the street and in the direction of a mobile home park. (T. p. 30)
Officer Skewes said he immediately recognized the man leaning into the van as James Renfro because he had spoken to him before. (T. p. 31) As he approached the van, the van pulled away and Mr. Renfro started to walk away. (T. p. 32) Officer Skewes said he said “Mr. Renfro, stop,” however, Mr. Renfro continued to walk away. Officer Skewes admitted that at this point Mr. Renfro had not broken any laws and was not being placed under arrest, and was not required to stop. (T. p. 65) So Officer Skewes started to walk after him then Mr. Renfro began to walk faster and Officer Skewes pursued him. (T. p. 32) Officer Skewes believed that as Mr. Renfro passed a truck he “chucked” a plastic baggie in the vicinity of the truck. (T. pp. 32-33) Officer Skewes said he made a mental note of it and continued to chase Mr. Renfro while calling for back up. (T. p. 33)
Eventually Mr. Renfro ran to a house where a Mr. Robert Terry lived and Mr. Renfro called out for help. (T. p. 34) Officer Skewes also knew Mr. Terry and advised him not to assist Mr. Renfro. (T. pp. 34-35) At this point another officer came to assist Officer Skewes and they “used a little bit of strength to cuff Renfro,” (T. p. 35, line 25) taking him to the ground to do so; and, they placed him under arrest and put him in a squad car. (T. pp. 35-36) It was not until only after Mr. Renfro was handcuffed that he was told he was under arrest. (T. p. 72) After arresting Mr. Renfro, the officers canvassed the area and found a plastic baggie in the vicinity of the truck which contained 16 rocks of crack cocaine. (T. pp. 36-37) Mr. Renfro was charged with resisting arrest and possession of cocaine. (R. p. 3)
ARGUMENT
- THE TRIAL COURT ERRED IN ALLOWING INTO
EVIDENCE DEFENDANT'S PRIOR CRIMINAL
CONVICTIONS PURSUANT TO RULE 404(B)
DESPITE REPEATED AND CONTINUED OBJECTIONS
BY DEFENSE COUNSEL, AS THE EVIDENCE WAS
ALLOWED DURING THE STATE’S CASE IN CHIEF,
PRIOR TO A DETERMINATION OF WHETHER DEFEN-
DANT WOULD TESTIFY; AND, THE PREJUDICIAL
EFFECT OF OFFERING SIMILAR PRIOR CONVIC-
TIONS CLEARLY OUTWEIGHED ANY PROBATIVE
VALUE.
Assignment of Error No. 1
T. pp. 140-41, 143, 194-95, 198-99, 201-10.
Standard of Review: Defendant objected to the admission of the evidence. Had the error assigned not been committed, there is a reasonable possibility that a different result would have been reached at trial.
This case is on all fours with State v. Wilkerson, 148 N.C. App. 310, 559 S.E. 2d 5 (Wynn, J. dissenting) rev’dper curiam, 356 N.C. 418, 571 S.E. 2d 583 (2002) (adopting dissent.)
In Wilkerson, policemen testified under Evidence Rule 404(b) about Wilkerson’s prior drug activity. A deputy clerk testified about his prior convictions for those offenses. The Supreme court adopted Judge Wynn’s dissent. That opinion held that the evidence of prior convictions was improperly admitted under Rule 404(b). It was admissible only under Evidence Rule 609, for impeachment. (The evidence underlying the prior convictions was offered for proper purposes under Rule 404(b).) A new trial was ordered.
In this case, exactly the same thing happened.
The court of Appeals majority opinion in the present case held that the testimony of the Clerk was inadmissible under Rule 404(b). Renfro, ____ N.C. App. ___, ___, 621 S.E.2d 221, 225 (2005). However, this error was deemed harmless because defendant testified and was cross examined about the convictions pursuant to Rule 609(a)
But Wilkerson holds otherwise. Exactly as here, in that case the jury was allowed to infer knowledge and intent from defendant’s prior convictions. The defense was unfairly prejudiced by this, “despite (or indeed as a result of) the independent evidence of defendant’s knowledge and intent elicited” from the police officers. Wilkerson, 148 N.C. App. At 329, 559 S.E. 2d at 16. The only permitted use of prior convictions is under Rule 609 for impeachment, and defendant was prejudiced by their introduction as substantive evidence, here just as in Wilkerson. The only “legitimate purpose” is to cast doubt upon his veracity; “such convictions are not to be considered as substantive evidence that he committed the crimes....” Id. At 321, 559 S.E. 2d at 12.
Admitting the bare fact of a prior conviction violates Rule 404(b), because the conviction is not probative for any 404(b) purpose, 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 out- weighed by the danger of unfair prejudice”. Id. at 328, 559 S.E. 2d at 16. Any similarities between the prior offenses for which he was convicted and current charges “manifestly increases the danger of unfair prejudice, further tilting the Rule 403 balance in favor of excluding the fact of prior conviction”. Id. At 327, 559 S.E. 2d at 16.
The dissent in this case correctly points out that the distinctions between Rules 404(b) and 609 are fundamental to the State’s ability to admit relevant evidence and a defendant’s decision to testify.
The majority’s argument that defendant suffered no prejudice because he was cross-examined about the convictions ignores the whole problem here: The purpose for which the evidence is admitted. Rule 609 restricts the introduction of conviction evidence until after the defendant has decided to take the stand. This is consistent with its purpose being limited to impeachment. And the jury in such a trial would presumably be instructed on “Impeachment of Defendant as a Witness by Proof of Unrelated Crimes”, Pattern Jury Instructions, Criminal 105.40, that the convictions could only be used on the issue of credibility, not substantively. This instruction was not given in this case, because the convictions were offered for a purpose contradicting the limits in that instruction, again to defendant’s prejudice.
Finally, in State v. Hairston, 156 N.C. App. 202, 576 S.E. 2d 121 (2003), the defendant testified and was cross examined about his prior convictions after a clerk testified about them in the State’s case. The Court ordered a new trial, because the jury was instructed that they could consider defendant’s two drug convictions for Rule 404(b) purposes.
It is not merely the fact that the jury hears about the convictions, it’s what they are instructed they may infer from them that is important in the distinction between admission under Rule 404(b) and Rule 609. And, as here – what they were not told in limiting the purposes of this evidence, like under P.J.I. 105.40. (Not given).
This was a close case. The officer does not claim he saw cocaine in Defendant’s possession. He claims he saw Defendant throw something he can not identify, and then found cocaine in the same area – in a high drug activity area. The officer also testified that Defendant resisted arrest, but the jury returned a verdict of not guilty.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that this Court remand this matter to the trial court for a new trial.
Respectfully submitted this the ___ day of December, 2005.
By:______
George E. Kelly, III
Attorney for Defendant-
Appellant
284-B West Millbrook Road
Raleigh, NC 27609
(919) 846-6919
CERTIFICATE OF SERVICE
This is to certify that the undersigned has served the foregoing NEW BRIEF FOR DEFENDANT-APPELLANT on the State by placing a copy of the same in a U.S. Mail depository, postage pre-paid, addressed to the attorney of record for the State-Appellee as follows:
James M. Stanley, Jr.
Assistant Attorney General
1505 Mail Service Center
Raleigh, NC 27699-1505
This the ___ day of December, 2005.
The Kelly Law Firm
By:______
George E. Kelly, III
Attorney for Defendant-
Appellant
284-B West Millbrook Road
Raleigh, NC 27609
(919) 846-6919