The transcript reveals that the trial began on Tuesday, 23 July by HC120807012352

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No. 04-1079                                                        DISTRICT 13

                  NORTH CAROLINA COURT OF APPEALS

             *********************************************

STATE OF NORTH CAROLINA                 )
                                        )
            v.                          )       From Brunswick County
                                        )       02 CRS 57572-74, 57576, 57580,
                                        )       57586-87, 57594095; 03 CRS 630,
                                        )       3616, 4606
GOFERY LARIN HANKINS,                   )
        Defendant.                      )

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                     DEFENDANT/APPELLANT’S BRIEF

                 *****************************************

                           QUESTIONS PRESENTED

     I.       Did the trial court err in failing to dismiss juror
              no. 4 for cause when the juror had a doctor’s note that sitting for
              more than 10 minutes would cause him pain, had problems with
              short term memory, was taking anti-anxiety and anti-depressant
              medicines, Oxycontin, Nuprin, and Celebrex, and was suffering
              from post traumatic stress?

     II.      Did the trial court err in denying defendant’s motion to sequester
              the State’s witnesses?

     III.     Did the trial court err in denying defendant’s motion to suppress in-
              custody statements?

     IV.      Did the trial court err and abuse its discretion by allowing the State
              to impeach the defendant with Rule 609 evidence when the State
              did not comply with the requirements of the Rule?
                                        2


      V.    Did the trial court err in overruling defendant’s objection to
            testimony regarding the codefendant Willie Allen and his charges
            and convictions related to this case, in violation of the N.C. Rules
            of Evidence?

      VI.   Did the trial court erred in admitting State’s Exhibits 27 and 15 into
            evidence over the objection of defendant, as the State failed to lay a
            proper foundation, establish a chain of custody, and establish that
            there were no material changes in the item’s condition?

      VII. Did the trial court erred in allowing the State to open the knife
           which was admitted into evidence, and in allowing the State to
           show a gun and bullets to the jury, as this evidence was irrelevant,
           not consistent with testimony of the witnesses, highly prejudicial,
           and had no probative value?

      VIII. Did the trial court erred in denying the defendant’s motion to
            dismiss several of the charges at the close of the State’s evidence,
            and at the close of all evidence, inasmuch as the evidence was
            insufficient to support convictions for each of the charges?

      IX.   Did the trial court committed reversible error by arresting judgment
            in 02 CRS 57586, and then in violation of its own ruling, entering
            judgment and sentencing defendant for that offense?



                         STATEMENT OF THE CASE

   Defendant was tried for the charges of Assault on Government Official (02

CRS 57572), two charges of Resisting Public Officer, (02 CRS 57573 and 02

CRS 57574), Injury to Personal Property (02 CRS 57576), two charges of

Misdemeanor Possession of stolen goods (02 CRS 57580, 02 CRS 57586),

Misdemeanor larceny (02 CRS 57587), Felony Possession of Heroin (02 CRS

57594), Maintaining Vehicle for Controlled Substance (02 CRS 57595), Felony
                                        3


Speeding to Elude Arrest (03 CRS 3616), two charges of Assault with a Deadly

Weapon on a Law Enforcement Officer (03 CRS 3617, 03 CRS 4606) at the 20

January 2004 Criminal Session of Superior Court of Brunswick County, the

Honorable James F. Ammons, Jr., Judge Presiding. Defendant was convicted of

all charges except 03 CRS 3617, and admitted to Habitual Felon Status pursuant

to a plea agreement. The court consolidated the charges into

two judgments and sentenced the defendant to two consecutive sentences of 107

to 138 months.

                     GROUNDS FOR APPELLATE REVIEW

   Defendant appeals his criminal conviction by jury trial pursuant to N.C. Gen.

Stat. § 15A-1444 (2001); State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d

403, 404 (1995), aff’d, 344 N.C. 623, 476 S.E.2d 106 (1996).



                         STATEMENT OF THE FACTS

      The evidence at trial showed that several employees spotted two black

males stealing toolboxes and drills from the garden department at Home Depot

in Shallotte, Brunswick County, North Carolina, on 9 December 2002. The men

were placing the items in a white or off-white car that appeared to be a Buick or

Cadillac.
                                         4


   Home Depot reported the larceny, and a “BOLO” or “be on lookout” for a

white Cadillac with two black males was transmitted to law enforcement

personnel. After hearing the BOLO, Officer Bolduc of the Brunswick County

Sheriff’s Department pulled out behind a vehicle fitting that description on

Highway 17 North. A call verified the vehicle’s tags were registered to a Buick

and the vehicle in question was actually an Oldsmobile.

   Officer Bolduc initiated blue lights, and he and another officer, Tolley,

followed the Oldsmobile into the parking lot of Garmon Housing. Officer

Bolduc went to the vehicle and asked defendant, who was driving the car, for his

license and the vehicle’s registration. Defendant leaned over towards the car’s

glove department, but then put the car in gear and drove off. Defendant drove

away because he had found out that Allen had a gun, and he wanted to get away

from Allen and the gun (Tp. 504). The Oldsmobile “fishtailed” (Tp. 279, ll. 21-

23) out, pushing the side of Officer Tolley’s vehicle “out of the way” (Tp. 206,

l. 9) as it left the parking lot on Highway 17 South.

   Officers Bolduc and Tolley pursued the Oldsmobile and called for backup.

They followed the vehicle, which was traveling approximately 55-60 m.p.h. (Tp.

257) as it turned onto Green Swamp Road and then Little Macedonia Road. The

vehicle turned into a dirt driveway, defendant’s granmother’s house (Tp. 504),

off of Little Macedonia Road. Officer Tolley’s vehicle turned into the driveway
                                         5


and struck the Oldsmobile in the side (Tp. 211), hitting it so hard that the

Oldsmobile came up on two wheels, and the front of Officer Tolley’s vehicle

came up (Tp. 235, ll. 21-22). Defendant ran because he thought the officers

were going to kill them after they hit his vehicle.

     After Officer Tolley’s vehicle hit the Oldsmobile, defendant and the other

individual, Willie Allen, exited the Oldsmobile and ran. Officer Bolduc yelled

“Stop, police” and then his gun discharged (Tp. 212). Other officers arrived on

the scene, and both Allen and defendant were apprehended. Officer Shannon

Rees pursued defendant with a bomb dog. The dog lunged at defendant and

defendant struck him. Defendant knocked Rees off of him, as she climbed onto

defendant “like a tree” to apprehend him (Tp. 390). Defendant was eventually

apprehended by Officers Walton and Caison (Tp. 267).

     The Oldsmobile was searched, and some material in a small bag was tested

by the SBI, which reported the material to be 0.2 grams of heroin (Tp. 342). An

off white rock found in the bag tested negative for any controlled substance.

                                    ARGUMENT

I.      The trial court erred in failing to dismiss juror no. 4 for cause when
        the juror had a doctor’s note that sitting for more than 10 minutes would
        cause him pain, had problems with short term memory, was taking anti-
        anxiety and anti-depressant medicines, Oxycontin, Nuprin, and Celebrex,
        and was suffering from post traumatic stress?

        Assignment of Error 8, Rpp. 88-9
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It is well established that "[t]he trial court has broad discretion to see that a

competent, fair, and impartial jury is impaneled." State v. Conaway, 339 N.C.

487, 508, 453 S.E.2d 824, 837-38, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153

(1995). To demonstrate reversible error in the jury selection process, the

defendant must show a manifest abuse of the court's discretion and prejudice

resulting therefrom. State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787

(1989).

      A challenge for cause may be made on the basis that the juror is incapable

by mental or physical infirmity, N.C. Gen. Stat. §15A-1212(2), or for any cause

that makes the juror unable to render a fair and impartial verdict. N.C. Gen.

Stat. § 15A-1212(9). Defendant challenged prospective juror no. 4 for cause

based on the juror’s statements that (1) he was taking 60 grams of Oxycontin

three times a day (Tp. 126, ll. 9-25); (2) was getting care for post traumatic

stress (Tp. 127, ll. 5-7); (3) had problems with short-term memory (Tp. 127, ll.

13-16); (4) was taking Nuprin, Celebrex, and nose spray (Tp. 128, ll. 16-17); (5)

had a note from the doctor that sitting more than ten minutes would cause an

issue (Tp. 128, ll. 18-23); and (6) was taking anti-anxiety medicine and anti-

depressant medicine (Tp. 128, ll. 7-9). When asked if his condition would keep

him from being impartial, the juror did not affirmatively state that it would not,

only that “I don’t believe it would; no” (Tp. 129, ll. 13-14).
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       A juror should be excused for cause when it is clear his condition and

medication inhibit his ability to be a fair and impartial juror. Oxycontin is a

brand name for oxycodone, a Schedule II opium derivative, see State v.

McCracken, 157 N.C.App. 524, 579 S.E.2d 492 (2003), and is a narcotic. See

State v. Jones, 133 N.C.App. 448, 516 S.E.2d 405 (1999). Juror no. 4 said he

was “on a lot of pain medicine, messed up my disks in my back” (Tpp. 110-

111), and admitted he had problems with short term memory – a problem that

could seriously affect the ability to serve on a jury, especially someone taking a

prescribed narcotic for pain. When asked if the pain would cause him not to

give the trial full attention, he answered “I will try” (Tp. 111, l. 10). The juror

testified that he had been in “serious pain” after one day of jury pool duty (Tp.

129, ll. 6-7).   Even though this individual “believed” he could serve, the

severity of his afflictions were so great that he should not have been found to be

a fit and impartial juror. He stated several times that he was taking Oxycontin

23 times a day (Tp. 126, ll. 20-23), and only when pressed, did he state it was

actually 3 times. His answers clearly indicated this juror was confused and not

fit due to his health, and thus the State should have dismissed this juror for

cause. See State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987); State v. Neal,

346 N.C. 608, 487 S.E.2d 734 (1997) (trial court properly exercised its

discretion in excusing a prospective juror whose health was possibly in
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jeopardy). Failure to dismiss juror no. 4 for cause could not have been a

reasoned decision, and therefore is an abuse of discretion. Further, this failure

by the trial court was prejudicial to defendant.

      After the court denied the motion to dismiss juror no. 4, defendant then

began exercising his remaining peremptory challenges, and exhausted all of his

peremptory challenges (Tp. 137); thus defendant was forced to accept an

undesirable juror when the court would not excuse juror no. 4 for cause.

Defendant was deprived of his right to have a fair and impartial jury under the

Sixth Amendment to the United States Constitution and Article I, Sections 23

and 24 of the North Carolina Constitution. Therefore, defendant is entitled to a

new trial. See N.C.G.S. § 15A-1443(b) (1999); State v. Miller, 339 N.C. 663,

455 S.E.2d 137 (no error in rehabilitating jurors when defendant expressed

satisfaction with each juror impanelled and did not exhaust his peremptory

challenges), cert. denied, 516 U.S. 893, 133 L. Ed. 2d 169 (1995); State v.

Fletcher, 348 N.C. 292, 500 S.E.2d 668 (1998)(no error when trial court allowed

defendant's challenge for cause due to impartiality, thus defendant was not

forced to accept undesirable juror), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d

113 (1999).
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II.   Did the trial court err in denying defendant’s motion to sequester
      the State’s witnesses?

      Assignment of Error 6, Rp. 88


      Sequestration serves the dual purpose of acting “as a restraint on

witnesses tailoring their testimony to that of earlier witnesses” as well as

“detecting testimony that is less than candid.” State v. Harrell, 67 N.C. App. 57,

64, 312 S.E.2d 230, 236 (1984). “A ruling on matters involving the

sequestration of witnesses is within the sound discretion of the trial judge, and is

not reviewable absent a showing of abuse of discretion.” State v. Williamson,

122 N.C. App. 229, 233, 468 S.E.2d 840, 844 (1996) (citations omitted). “A

discretionary ruling is reversible only where it is shown that it could not have

been the result of a reasoned decision.” Id. (citations omitted).

      In the present case, the State present testimony of over a dozen witnesses,

many of whom testified to the same incidents. The court denied defendant’s

motion to sequester (Rp. 36; Tp. 14) without hearing the State on this issue. The

court did not give any reasoning for its decision. Because no argument was

made by the State as to why sequestration was not proper in this case, it was an

abuse of discretion for the court to deny defendant’s motion.

      The appellate courts of North Carolina have made it clear that unless the

court hears the arguments of both defendant and the State and makes a reasoned
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decision between the two, it is an abuse of discretion to deny sequestration of

witnesses. State v. Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992) (no error

when trial court heard arguments of defendant and State prior to denying

sequestration); State v. Bullin, 150 N.C. App. 631, 564 S.E.2d 576 (2002)(no

abuse of discretion to deny sequestration when court heard arguments from both

sides and made appropriate inquiries of both); State v. Fullwood, 323 N.C. 371,

373 S.E.2d 518 (1988)(no abuse of discretion to deny sequestration when trial

court carefully considered defendant's motion and denied only after hearing and

weighing the concerns expressed by defendant and State). Because the court did

hear the State’s argument for opposing sequestration before it denied

defendant’s motion, the trial court could not have made a reasoned decision and

thus committed an abuse of discretion.


III.   The trial court committed reversible error in denying defendant’s motion
       to suppress in-custody statements.

       Assignments of Error 5 and 18, Rpp. 88, 91

A. Violation of Miranda and Fifth and Sixth Amendment Rights

       On 23 March 2003, while defendant was incarcerated, he was interviewed

by Detective David Crocker of the Brunswick County Sheriff’s Department.

Defendant had a lawyer at the time he was interviewed. It is uncontroverted that

defendant initiated the conversation in order to discuss a case unrelated to the
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charges in the present case (Tp. 499, ll. 22-24). Defendant testified he told

Crocker that he needed to get defendant’s lawyer before they talked (Tp. 500,

l.2), and Crocker responded that he didn’t need to talk to defendant’s lawyer

before talking with defendant (Tp. 500, ll. 3-4).

       Crocker testified that he brought defendant him out for the interview for

purposes of a death investigation, not the charges in the present case (Tp. 490).

Defedant was not read his Miranda rights, nor was he read his Fifth and Sixth

Amendment rights (Tp. 492-3). Defendant began talking about the charges in

the present case and confessed to many of them. Crocker testified he did not

give defendant notice of his constitutional rights or Miranda rights because

defendant’s statements were “voluntary” (Tpp. 492-3), however, he did state to

defendant, “you have an attorney” (Tp. 493, l. 22). Crocker stated: “I didn’t ask

him specific questions about what he did. I asked him what the co-defendant

did, and I asked him what’s he charged with. From there, he took the lead.”

(Tp. 494, ll. 3-5). When asked if he did ask questions of defendant, Crocker

replied: “Sure. Yes, sir” (Tp. 494, l. 8).

       Crocker wrote down at least least 96 lines of inculpatory statements by

defendant (Tp. 542, ll. 8-12), and read most of these into evidence (Tpp. 523-

552). A 45-minute tape of the interview was not admitted into evidence (Tp.

510, l. 12).
                                         12


      The Fifth Amendment of the United States Constitution guarantees that

"[n]o person . . . shall be compelled in any criminal case to be a witness against

himself." U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.

2d 694 (1966), the United States Supreme Court determined that the prohibition

against self-incrimination requires that prior to a custodial interrogation, the

alleged defendant must be advised “that he has a right to remain silent, that

anything he says can be used against him in a court of law, that he has the right

to the presence of an attorney, and that if he cannot afford an attorney one will

be appointed for him prior to any questioning.” Id. at 479, 16 L.Ed.2d at 726.

The Court held that the accused could "knowingly and intelligently waive[] his

privilege against self-incrimination and his right to retained or appointed

counsel." Id. at 475, 16 L. Ed. 2d at 724.

      The Sixth Amendment provides that "[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the assistance of counsel for his

defense." U.S. Const. amend. VI. This sixth amendment right attaches at the

initiation of adversary judicial criminal proceedings. Kirby v. Illinois, 406 U.S.

682, 32 L. Ed. 2d 411 (1972). Defendant had been indicted at that point, so his

sixth amendment right had attached. Once the sixth amendment right has

attached, the police may not interrogate the defendant unless counsel is present
                                        13


or the defendant has expressly waived his right to assistance of counsel. Brewer

v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424 (1977).

      The question of whether Miranda warnings were required turns on a two-

part analysis: whether the defendant (1) in custody, and (2) interrogated. State

v. Crudup, 157 N.C.App. 657, 580 S.E.2d 21 (2003). The facts of this case

require an affirmative response to both inquiries.

      It is undisputed that defendant was in custody. The state argued, and the

court found, that defendant was not interrogated, despite the fact that Crocker

testified that he did, in fact, ask defendant questions (Tp. 494). In United States

v. Innis, 446 U.S. 291, 64 L.Ed.2d 297 (1980), the United States Supreme Court

defined “interrogation” to include express questioning of the defendant or its

functional equivalent. Interrogation includes “any words or actions on the part

of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response

from the suspect.” State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199

(2000), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001).

      Because Detective Crocker admitted that he questioned defendant

regarding what defendant had been charged with in this case, and asked him

regarding the actions of his co-defendant in this case (Tp. 494, ll. 305), Crocker

engaged in the functional equivalent of interrogation of defendant. Crocker took
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almost 100 lines of statements of defendant, questioning him for at least 45

minutes (Tp. 510, l. 20). Crocker could not question defendant about his co-

defendant’s actions, knowing that defendant acted with the co-defendant,

without having reasonably known that he would get an incriminating response

from defendant. Much less specific questioning has been found to be

interrogation by this court. See, e.g, State v. Stokes, 150 N.C. App. 211, 565

S.E.2d 196 (2002), overruled on other grounds, 357 N.C. 220, 581 S.E.2d 51

(2003) (defendant was “interrogated” when officer approached his cell,

defendant asked what he wanted, and officer responded “How?”, resulting in

defendant making incriminating statements).

       When evaluating a trial court’s ruling on a motion to suppress because of

the failure to give Miranda warnings, the standard of review is that the trial

court’s findings of fact are conclusive on appeal, if supported by competent

evidence. E.g., State v. Fisher, ___ N.C. App. ___, 580 S.E.2d 405, 413 (2003).

Competent evidence does not support the trial court’s findings that defendant

was not interrogated (Tp. 510, ll. 5-7), and because Miranda warnings were not

given, defendant’s statements must be suppressed. In the alternative, if this

court finds defendant was not interrogated, it would be error to affirm the trial

court’s finding that defendant waived his rights to have an attorney present (Tp.

510, ll. 8-9).
                                         15


      When an “interrogation continues without the presence of an attorney and

a statement is taken, a heavy burden rests on the government to demonstrate that

the defendant knowingly and intelligently waived his privilege against self-

incrimination and his right to retained or appointed counsel.” Miranda, 384

U.S. at 475, 16 L.Ed.2d at 724. After counsel has been appointed, any

subsequent statement resulting from interrogation initiated by law enforcement

investigators would be inadmissible as a violation of defendant’s Fifth

Amendment rights. See Edwards v. Arizona, 451 U.S. 477, 484-87, 68 L.Ed. 2d

378, 386-88 (1981). Although defendant initiated the interview with Crocker,

Crocker initiated questions concerning the charges in this case, therefore any

waiver from the defendant to his right to counsel was a nullity. Michigan v.

Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 642 (1986). Even if defendant

initiated discussion of charges in the present case, the record is clear defendant

never waived his right to counsel.

      Once the sixth amendment right has attached, the police may not

interrogate the defendant unless counsel is present or the defendant has

expressly waived his right to assistance of counsel. Brewer v. Williams, 430 U.S.

387, 51 L. Ed. 2d 424 (1977). It is uncontroverted that defendant’s Sixth

Amendment rights had attached and that he did not expressly waive these rights

in the interview with Crocker. Accordingly, these statements must be
                                        16


suppressed. Should the court find defendant did waive his fifth and sixth

amendment rights, any waiver was a nullity because it could not have been made

knowingly with full awareness.

      An inquiry into the validity of a waiver is two-fold:

             First, the relinquishment of the right must have been
             voluntary in the sense that it was the product of a free
             and deliberate choice rather than intimidation,
             coercion, or deception. Second, the waiver must have
             been made with a full awareness of both the nature of
             the right being abandoned and the consequences of the
             decision to abandon it. Only if the ‘totality of the
             circumstances surrounding the interrogation’ reveals
             both an uncoerced choice and the requisite level of
             comprehension may a court properly conclude that the
             Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 89 L.Ed.2d 410, 420-421

(1986)(emphasis added).

      Defendant could not have been fully aware of rights he had if they were

never recited to him, or he was never given notice of them. Crocker testified he

didn’t think reading of Miranda rights or a waiver was necessary since the

statements were “voluntary.” A defendant's waiver is only valid if he was aware

at all times that he could remain silent and request counsel, and that he was

cognizant of the intention of the prosecution to use his statements against him.

State v. Barnes, 345 N.C. 184, 243, 481 S.E.2d 44, 77 (1997), cert. denied by

Chambers v. North Carolina, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), and cert.
                                        17


denied by Barnes v. North Carolina, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998).

Crocker never informed defendant that that he could remain silent and request

counsel, or that the State intended to use defendant’s statements against him.

Defendant was never made aware of his rights, and he may not have understood

that since the interview was initiated to discuss an unrelated murder

investigation, what defendant said regarding the charges in the present case

could be used against him in a later prosecution. Thus, the two-prong test in

Moran has not been meet, see Moran at 421, 89 L.Ed.2d at 420-421, and the

court erred when it found that defendant waived his rights to have counsel

present and against self incrimination. Accordingly, the in-custody statements

should have been suppressed.

B. Defendant was prejudiced by the denial of his motion to suppress.

      The trial court’s admission of defendant’s statement obtained in violation

of Miranda and his Fifth and Sixth Amendment rights was prejudicial error. “A

violation of the defendant’s rights under the Constitution of the United States is

prejudicial unless the appellate court finds that it was harmless beyond a

reasonable doubt. The burden is upon the State to demonstrate, beyond a

reasonable doubt, that the error was harmless.” N.C. Gen. Stat. §15A-1443(b).

“Harmless beyond a reasonable doubt” has been construed to mean “‘there is no

reasonable possibility’ that the erroneous admission of evidence ‘might have
                                          18


contributed to the conviction.’” State v. Hooper, 318 N.C. 680, 682, 351 S.E.2d

286, 288 (1987).

      In this case, there is more than a reasonable possibility that the evidence

of defendant’s statements contributed to the conviction. These statements were

extremely prejudicial, as defendant confessed to many of charges and prior bad

acts, such as heroin use. The introduction of these statements made it

imperative that defendant take the stand to explain them, further infringing on

his rights. Without these statements, the State presented little evidence as to the

drug charges. The suppression of this evidence would have resulted in more

than a reasonable possibility that one or more jurors would have believed

defendant not guilty or at least would have had a reasonable doubt as to his guilt.

Due to this prejudicial error, defendant is entitled to a new trial with a jury that

is not exposed to these prejudicial and unconstitutional in-custody statements.

IV.   The trial court erred and abused its discretion by allowing the State to
      impeach the defendant with Rule 609 evidence when the State did not
      comply with the requirements of the Rule.
      Assignment of Error 20, Rp. 92


      The State in the present case impeached defendant with evidence from

prior convictions from 1990 to 1993 (Tp. 618-622), more than ten

years prior to trial. N.C. Gen. Stat. § 8C-1, Rule 609, provides in pertinent part:
                                        19


      a) For the purpose of attacking the credibility of a witness, witness,
      evidence that the witness has been convicted of a felony, or of a Class A1,
      Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the
      witness or established by public record during cross-examination or
      thereafter.
      (b) Time limit. - 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 or of the release of the witness from the confinement imposed
      for that conviction, whichever is the later date, 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 (emphasis added). Thus, prior convictions more

than ten years old are not admissible unless (1) the court makes findings that

their probative value outweighs their prejudicial effect; and (2) the proponent

gives 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.

Neither of these requirements were satisfied in the present case.

      The court made no findings regarding the convictions in question because

the State never laid a foundation for this evidence. Instead, the State surprised

defendant, asking him about convictions more than ten years old (Tp. 618, l. 22;

Tp. 621-22), when the record and transcript reveal that the State did not give
                                                        20


defendant advance written notice of its intent to use the evidence, as required by

Rule 609.1

          Inherent in Rule 609(b) is “a rebuttable presumption that prior

convictions more than ten years old [are] more prejudicial to defendant’s

defense than probative of defendant's general character for credibility and,

therefore, should not be admitted into evidence.” State v. Blankenship, 89 N.C.

App. 465, 366 S.E. 2d 509 (1988). "[I]n those rare instances where the use of

the older prior convictions [is] not more prejudicial than probative, the trial

court must make appropriate findings of fact." Id. at 468, 366 S.E. 2d at 511.

These findings must concern "specific facts and circumstances which

demonstrate the probative value outweighs the prejudicial effect." State v.

Hensley, 77 N.C. App. 192, 334 S.E. 2d 783, disc. rev. denied, 315 N.C. 393,

338 S.E. 2d 882 (1986).

         The transcript makes it clear that the State did not give any notice, much

less written notice as required. The State laid no foundation for the admission of

these prior convictions, thereby failing to provide the trial court a basis for

making appropriate Rule 609(b) findings. The court made no findings as

required by Rule 609. When the trial court clearly fails to make appropriate


1
  The court had specifically allowed defendant’s motion for disclosure of Rule 404(b) evidence prior to its
introduction at trial, stating: “You’re not to attempt to introduce any until you give me and the defense attorney
prior notice outside the presence of the jury” (Tp. 13, ll. 13-15).
                                         21


findings of specific facts and circumstances to support its determination that the

probative value of the convictions over ten years old outweigh their prejudicial

effect, this failure is reversible error. State v. Farris, 93 N.C. App. 757, 379

S.E.2d 283 (1989), disc. rev. improv. all'd, 326 N.C. 45, 387 S.E.2d 54 (1990).

Accordingly, defendant is entitled to a new trial since the trial court did not

make appropriate findings on this issue.

      Additionally, evidence of convictions under ten years old also defied Rule

609(a) in that the evidence did not go to defendant’s credibility and went beyond

the permissible scope of Rule 609. Our Supreme Court has held that "[w]hen a

defendant chooses to testify, evidence of prior convictions is admissible for the

purpose of impeaching his credibility under Rule 609(a)." State v. Lynch, 334

N.C. 402, 408-9, 432 S.E.2d 349, 352 (1993). The permissible scope of inquiry

into prior convictions for impeachment purposes is restricted, however, to the

name of the crime, the time and place of the conviction, and the punishment

imposed. State v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 825 (1977).

"Strong policy reasons support the principle that ordinarily one may not go into

the details of the crime by which the witness is being impeached. Such details

unduly distract the jury from the issues properly before it, harass the witness and

inject confusion into the trial of the case." Id. The North Carolina Supreme

Court has reaffirmed this rule, stating that although Finch is a pre-Rules case, its
                                         22


limitations on inquiries concerning prior convictions are consistent with Rule

609(a). State v. Garner, 330 N.C. 273, 288-89, 410 S.E.2d 861, 870 (1991).

      In the present case, Rule 609 evidence of defendant’s convictions of

possession of selling drugs (Tp. 618, ll.20-25), sale of marijuana, possession of

heroin, and possession with intent to sell marijuana (Tp. 620, ll. 6-7, 16-17; Tp.

623, ll. 4-7), maintaining a vehicle for keeping controlled substances (Tp. 622,

ll. 1-2), and assault on a female (Tp. 623, ll. 11), did not go toward defendant’s

propensity for truthfulness or untruthfulness. Evidence that a witness has used,

abused or sold drugs and alcohol is not generally considered probative of

veracity or character for untruthfulness. State v. Morgan, 315 N.C. 626, 635,

340 S.E.2d 84, 90 (1986). It is prejudicial error to use a defendant's prior

convictions as substantive evidence for the purpose of conviction of the crime

charged. State v. McEachin, 142 N.C. App. 60, 70, 541 S.E.2d 792, 799 (2001)

(evidence of pending burglary charge not probative of defendant’s propensity

for truthfulness or untruthfulness).

        When defendant took the stand, he immediately indicated those offenses

for which he had been convicted of in the past ten years (Tp. 594). The State, in

cross-examination, went on a fishing expedition and elicited evidence of prior

convictions for substantive evidence, rather than the issue of credibility, that

went far beyond the permissible scope of Rule 609:
                                         23


      “. . . you testified earlier that you are just a user of drugs and you are an
      addict; is that a correct characterization of your testimony ? (Tp. 616, ll.
      21-23). . . You are not a drug dealer? (Tp. 616, l. 25). . . How many times
      have you been convicted of dealing drugs? (Tp. 617, l. 4). . . Of selling
      drugs, yes sir? (Tp. 617, l. 13). . . How many times have you been
      convicted of selling drugs (Tp. 617, l. 23). . .Do you recall being
      convicted of selling drugs here in Brunswick County five separate times,
      being prosecuted by Lee Bollinger? (Tpp. 617-618). . .“One conviction
      for five counts of selling cocaine; is that correct?” (Tp. 618, l. 6);. . . how
      many times had you sold drugs? (Tp. 618, ll. 11-12). . . So you’ve got five
      convictions for selling drugs? (Tp. 618, l. 19). . . And how many times did
      you plead guilty to? (Tp. 618, l. 16). . . What about all of your convictions
      in 1991 for selling drugs? (Tp. 618, l. 22). . . You don’t recall Detective
      Crocker arresting you and convicting you for selling cocaine on five
      separate occasions? (Tp. 619, ll. 1-2). . . So if I have a certified copy of a
      court judgment and commitment for conviction of you selling drugs on
      five occasions, it would be wrong (Tp. 619, ll. 6-7). . . Have you ever
      been a dealer of marijuana (Tp. 620, l. 3). . . And haven’t you in fact been
      convicted in 1995 for both sale of marijuana and possession with intent to
      sell marijuana (Tp. 620, ll. 6-7). . . .
      (Transcript, pp. 617-627)


This line of questioning from page 617 to page 627 in the transcript clearly

undermines the requirements of Rule 609, as the State may not offer evidence of

the details underlying the convictions apart from the name of the crime, the time

and place of the conviction, and the punishment imposed under Rule 609. State

v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993).

      Because this portion of the testimony elicited evidence both under and

over ten years, it is hard to distinguish what testimony concerned offenses only

occurring within ten years, under Rule 609(a). Under Rule 609(a), when the
                                         24


conviction is less than ten years old, no balancing is required prior to admission

of it as evidence for impeachment purposes. See id. Therefore, the State should

have clearly delineated those offenses under ten years that it sought to introduce

instead of questioning defendant in a fishing expedition manner (Tp. 617-627),

so that it would have clear what evidence it sought to elicit under Rule 609(a)

and thus did not require a balancing test. Nevertheless, because all of the

evidence in this portion of the testimony was offered as substantive evidence

and not to dispute defendant’s credibility, its admission was reversible error, see

State v. McEachin, 142 N.C. App. 60, 70, 541 S.E.2d 792, 799 (2001), and

defendant is entitled to a new trial.

V.    The trial court erred in overruling defendant’s objection to testimony
      regarding the codefendant Willie Allen and his charges and convictions
      related to this case, in violation of the N.C. Rules of Evidence.

      Assignment of Error 10, Rp. 89

      The State introduced evidence that defendant’s co-defendant was in

federal prison, serving “twenty-five years to life,” due to the same charges for

which defendant was being tried (Tp. 313, ll. 3-14). This evidence violates the

law of this State, was irrelevant to any issue in the case, offered for no legitimate

purpose, and is clearly prejudicial.


      If evidence of a co-defendant’s conviction is introduced for the

illegitimate purpose of solely showing evidence of guilt of the defendant on
                                          25


trial, it is not admissible. State v. Rothwell, 308 N.C. 782, 303 S.E.2d 798

(1983). In State v. Campbell, 296 N.C. 394, 250 S.E.2d 228 (1979), the North

Carolina Supreme Court reiterated the “clear rule” that “neither a conviction, nor

a guilty plea, nor a plea of nolo contendere by one defendant is competent as

evidence of the guilt of a codefendant on the same charges.” Id. at 399, 250

S.E.2d at 230. The rationale underlying this “clear rule” is twofold. This Court

has recognized that a defendant's guilt must be determined solely on the basis of

the evidence presented against him. Id.; State v. Cameron, 284 N.C. 165, 168,

200 S.E.2d 186, 189 (1973), cert. denied, 418 U.S. 905, 94 S. Ct. 3195, 41 L.

Ed. 2d 1153 (1974); State v. Kerley, 246 N.C. 157, 159, 97 S.E.2d 876, 878

(1957)(co-defendant’s plea was not evidence against defendant and it was

improper for the solicitor and for the jury to treat it as such, entitling defendant

to a new trial). The second reason for the rule is that the introduction of such

evidence by a co-defendant, when he or she has not testified at defendant's trial,

would also deprive the defendant of his constitutional right of confrontation and

cross-examination. State v. Jackson, 270 N.C. 773, 155 S.E.2d 236 (1967)

(admission of the record of codefendants' guilt constituted error for which

defendant is entitled a new trial); See also State v. Gonzalez, 311 N.C. 80, 316

S.E.2d 229 (1984) (extrajudicial confessions).
                                         26


      Willie Allen the co-defendant did not testify. The State did not show it
was relevant to any issue in the case. The evidence of his conviction was
offered for no other reason than to implicate defendant and prove his guilt.
Therefore, the trial court erred in overruling defendant’s objection to this
evidence, and defendant is entitled to a new trial. State v. Jackson, 270 N.C.
773, 155 S.E.2d 236 (1967); State v. Kerley, 246 N.C. 157, 159, 97 S.E.2d 876,
878 (1957).


VI.   The trial court erred in admitting State’s Exhibits 27 and 15 into evidence
      over the objection of defendant, as the State failed to lay a proper
      foundation, establish a chain of custody, and establish that there were no
      material changes in the item’s condition.

      Assignment of Error 16, Rp. 91

      Exhibit 27, a bag of white powder that is allegedly 0.2 grams of heroin

(Tp. 365, l. 21-22), was found in the Oldsmobile after defendant was

apprehended. Exhibit 27 is described on the exhibit log as a “plastic evidence

bag (bindle of powder)” (Rp. 43). Although it is described on this log as a

plastic bag, the testimony of the officer searching the vehicle and the SBI Lab

Request sheet describe the white powder as being contained in a “paper” bag.

      Shelton Caison, a narcotics officer with the Brunswick County Sheriffs

Department, testified that when searching the Oldsmobile at the scene, he found

a “white piece of tissue paper with a rubber band around it” between the door

and rear seat of the driver’s side of the vehicle (Tp. 420 ll. 10-13). Inside the

piece of tissue paper, Caison testified he found only: (1) a paper bag and (2) an

off white rock substance (Tp. 421, ll. 15-16). The incident report stated the
                                        27


item was “a small paper pouch in the paper towel that contained a white powder

that tested positive for heroine.” (Rp. 49) The off white rock came to be Exhibit

26, described on the exhibit log as a “plastic evidence bag (off white rock)” (Rp.

4), which was determined to be a “dum-dum” (Tp. 422), meaning although

Exhibit 26 was made to look like a controlled substance, the SBI analysis

determined it contained no controlled substance, and the State stipulated to that

fact (Tp. 370, ll. 24-25).

      State’s Exhibit 18 (Rp. 44), a photocopy of the original SBI Request for

Examination (Tp. 374, ll. 23-15) shows that Exhibit 27, identified as Item 1 on

the SBI Request Form, is described as “Paper bag/White powder” (Rp. 44). SBI

special agent April Myers testified that Item 1/Exhibit 27 “was sealed in a

plastic bag containing a paper towel, containing a glassine bag, containing white

powder” (Tp. 358, ll. 14-15). When asked, she stated there were no paper bags

found inside Item No. 1 (Tp. 358, ll. 23-25), although it is described on the SBI

request as “paper bag/white powder” and Caison testified that he found a “paper

bag” along with the off white rock. Myers testified that Exhibit 15 was the SBI

lab report on the analysis of Item 1/Exhibit 27 (Tp. 338; 365).

      Defendant objected to the introduction of both Exhibit 27 (Tp. 360, ll. 23-

25), and Exhibit 15 (Tp. 365, ll. 3-4) but the court admitted both (Tpp. 365,

429). This was error because the State failed to properly show that this evidence
                                          28


originated from a search of vehicle at the scene, as the search of the vehicle only

showed a “paper bag” and off white rock. The powder introduced (Exhibit 27)

and analyzed (Exhibit 15) was in a plastic bag, whereas the investigating officer

testified he found the powder in a paper bag and the SBI Request Form

identifies it as being in paper bag. This definitely shows an alteration of the

evidence, which passed through many hands as shown on the SBI chain of

custody form (Rp. 46).

      The State must establish a detailed chain of custody when the evidence

offered is not readily identifiable or is susceptible to alteration and there is

reason to believe that it may have been altered. State v. Owen, 130 N.C. App.

505, 503 S.E.2d 426, disc. review denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

According to long-established precedent:

       a two-pronged test must be satisfied before real evidence is properly
       received into evidence. The item offered must be identified as being the
       same object involved in the incident and it must be shown that the object
       has undergone no material change. The trial court . . . exercise[s] sound
      discretion in determining the standard of certainty that is required to show
      that an object offered is the same as the object involved in the incident and
      is in an unchanged condition. . . . Further, any weak links in a chain of
      custody relate only to the weight to be given evidence and not to its
      admissibility.

State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984) (emphasis

added) (citation omitted). The State must show the object is the same object

involved in the incident and it has undergone no material change; otherwise, it
                                        29


is inadmissible, despite strong or weak links in the chain of custody. If the

object is the same object and has undergone no material change, weak links in

the chain of custody then become an issue of weight, not admissibility.

      In the present case, the State did not show that Exhibit 27 was the paper

bag found at the scene and had not undergone material change. The officer at

the scene testified he found a paper bag. Exhibit 27 did not contain a paper bag,

and the SBI analyst testified she found no paper bag for this item of evidence.

Secondly, since the evidence had obviously been removed from a paper bag at

some point, it is irrefutable the evidence had undergone a material change –

from paper bag to plastic bag.

      Because the State fails the two prong test of admissibility from Campbell,

Exhibits 27 and 15 were inadmissible and the court erred in overruling

defendant’s objection to their admission. See State v. Mason, 144 N.C. App. 20,

550 S.E.2d 10 (2001)(error to admit videotape when State failed to present

sufficient evidence that videotape introduced at trial was same one obtained on

the night of a robbery, and was unchanged).

      The erroneous admission of evidence is reversible if it appears reasonably

possible that the jury would have reached a different verdict without the

challenged evidence. State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179

(2001) (erroneous admission of expert testimony in child sex abuse case held
                                           30


reversible error on facts of case). Without the admission of Exhibit 27, the lab

report concerning this evidence, State’s Exhibit 15 (Tp. 557, ll. 22-24), the jury

could not have found defendant guilty of Felony Possession of Heroin (02 CRS

57594) and Maintaining Vehicle for Controlled Substance (02 CRS 57595).

Accordingly, admission of Exhibits 27 and 15, and testimony relating to these

exhibits, was reversible error.


VII. Did the trial court erred in allowing the State to open the knife
     which was admitted into evidence, and in allowing the State to show a
     gun and bullets to the jury, as this evidence was irrelevant, not consistent
     with testimony of the witnesses, highly prejudicial, and had no probative
     value?

       Unless otherwise provided for, "[a]ll relevant evidence is admissible."

N.C.G.S. § 8C-1, Rule 402 (2003). Relevant evidence is evidence "having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence." Id., Rule 401. "Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice . . . ." Id., Rule 403.

       A gun was found on the co-defendant, but there was no testimony in this

trial that defendant had or used a gun. Therefore, the gun and bullets found on

the co-defendant was not relevant to any issue in defendant’s case. Accordingly,

they were inadmissible under the N.C. Rules of Evidence.
                                         31


      While their was testimony that defendant had a knife in his possession,

the testimony all indicated that the knife was always closed, and never opened.

Therefore, the opening of the knife before the jury was error as its appearance

when opened had no relevancy in this case. The trial court erred when it

overruled defendant’s motion that the knife not be opened (Tp. 388).



VIII. The trial court erred in denying the defendant’s motion to dismiss several
      of the charges at the close of the State’s evidence, and at the close of all
      evidence, inasmuch as the evidence was insufficient to support
      convictions for each of the charges.

      Assignment of Error 19, Rp. 91

A. Standard of Review

      The oft-quoted standard in ruling on a motion to dismiss is whether there

is substantial evidence of each essential element of the offense and evidence that

the defendant is the perpetrator of the offense. State v. Lynch, 327 N.C. 210,

393 S.E.2d 811 (1990). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” State v.

Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, ___ (1990). Evidence is sufficient

if a rational trier of fact could find from it the fact to be proved beyond a

reasonable doubt. State v. Pridgen, 313 N.C. 80, 326 S.E.2d 618 (1985). Based

on this precedent, defendant’s motion to dismiss should have been allowed in

several charges.
                                         32


B. Maintaining Vehicle for Keeping Controlled Substance, 02 CRS 57595

      It is illegal to “knowingly keep or maintain any … vehicle … which is

used for the keeping or selling of [controlled substances].” N.C. Gen. Stat. § 90-

108. In order to convict, the State must prove that the defendant did (1)

knowingly (2) keep or maintain (3) a vehicle (4) which is used for the keeping

or selling (5) of controlled substances. State v. Mitchell, 336 N.C. 22, 442

S.E.2d 24 (1994). “Keep … denotes not just possession, but possession that

occurs over a duration of time.” Id. at 32.

      Our Supreme Court has held that evidence was insufficient to show

keeping or maintaining when defendant possessed marijuana while in his car,

and on the following day drug paraphernalia were found at defendant's home

and one marijuana cigarette was found in defendant's car and two marijuana

cigarettes were found in his home. Id. at 33. A defendant possessing drugs on

one occasion in their car, such as the present case, does not establish that their

car is used for keeping marijuana as proscribed by §90-108. Id. Under the

precedent set forth by our Supreme Court in Mitchell, one isolated instance of

possession of drugs is insufficient to establish this charge as a matter of law.

The State made no showing of possession beyond the one incident in question.

Therefore, the trial court should have dismissed this charge.
                                          33



C. Assault with a Deadly Weapon on a Law Enforcement Officer, 03 CR 4606

      N.C. Gen. Stat. § 14-34.2 states that “. . . any person who commits an

assault with a firearm or any other deadly weapon upon an officer or employee

of the State . . . , in the performance of his duties shall be guilty of a Class F

felony.” An assault is “an overt act or attempt, with force and violence, to do

some immediate physical injury to the person of another, which show of force or

violence must be sufficient to put a person of reasonable firmness in fear of

immediate physical injury.” State v. Haynesworth, 146 N.C. App. 523, 529, 553

S.E.2d 103, 108 (2001).

      The State made no showing that defendant assaulted Officer Rees with the

knife he had in his possession. He never lunged towards her with the knife or

attempted to hit her with it. Thus, there was no assault. Even if defendant’s

actions could be considered an assault, it was not with a deadly weapon. Officer

Rees testified that defendant held what “appeared” to be a knife (Tp. 392, l. 11),

but defendant never opened the knife when Officer Rees was pursuing him (Tp.

383, l. 18; Tp. 392, ll. 12-14).

      An unopened knife cannot be classified as a deadly weapon. “A deadly

weapon is generally defined as any article, instrument or substance which is

likely to produce death or great bodily harm.” State v. Sturdivant, 304 N.C. 293,

301, 283 S.E.2d 719, 725 (1981). The deadly character of the instrument is
                                        34


often determined by the nature of the weapon and the manner in which it is used.

Id. at 301, 283 S.E.2d at 726. The knife was closed and never used in a manner

that could be considered deadly. Accordingly, this charge should have been

dismissed.

IX.    The trial court committed reversible error by arresting judgment in 02
       CRS 57586, and then in violation of its own ruling, entering judgment and
       sentencing defendant for this offense.
       Assignment of Error 25, Rp. 93

       The court arrested judgment of the offense of misdemeanor possession of

stolen goods, 02 CRS 57586 (Rp. 78; Tp. 787), but then entered the offense as a

judgment in the judgement and conviction sheet (Rp. 77). The entry of this

offense as a conviction was error in light of the court’s arresting judgment on

this offense, and this conviction should be stricken.

                                  CONCLUSION

       Based on the foregoing, defendant respectfully contends that he is entitled

to a new trial.

       Respectfully submitted, this the _____th day of October, 2004.


                                 _______________________________
                                 Michelle FormyDuval Lynch
                                 Attorney for Appellant
                                 PO Box 528
                                 Wrightsville Beach, NC 28480
                                 (910) 641-7218
                                        35


                    CERTIFICATE OF FILING AND SERVICE

      I hereby certify that I have this day filed the foregoing brief by U.S. Mail,
postage prepaid, properly addressed to Mr. John Connell, Clerk of Court, North
Carolina Court of Appeals, as provided in the Rules of Appellate Procedure.

      I further certify that I have this day served a copy of the foregoing brief
upon the State, by U.S. Mail, postage prepaid, properly addressed, as follows: M

      Mr. Roy Cooper, Attorney General
      c/o Appellate Division
      Post Office Box 629
      Raleigh, NC 27602-0629

This the ____th day of October, 2004.

                                 _____________________________
                                 Michelle FormyDuval Lynch
                                 Attorney for Appellant

								
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