State v. Jackson , 235 N.C. App. 384 ( 2014 )

NO. COA14-140
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Guilford County
No. 08CRS075476
KEITH LAUCHON JACKSON, JR.,
Defendant.
Appeal by defendant from Judgment entered 17 June 2013 by
Judge John O. Craig, III, in Superior Court, Guilford County.
Heard in the Court of Appeals 4 June 2014.
Attorney General Roy A. Cooper III, by Special Deputy
Attorney General Richard L. Harrison, for the State.
Kathryn L. VandenBerg, for defendant-appellant.
STROUD, Judge.
Keith Jackson (“defendant”) appeals from the judgment
entered after a Guilford County jury found him guilty of first
degree murder. We find no error.
I. Background
Defendant was indicted for murder and robbery with a
dangerous weapon on 14 April 2008. The indictments alleged that
defendant robbed a Lucky Mart store in High Point on 31 October
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2007 and, in doing so, shot and killed Joshua Sweitzer.
Defendant pled not guilty and proceeded to jury trial.
During the lunch break on the first day of testimony,
defendant escaped from custody of the sheriffs. As he was being
led out of the holding cell, defendant managed to slip out of
his leg shackles. Once he was free from his leg shackles, he ran
from the bailiffs, fled down a corridor, vaulted about 15 feet
over the railing onto the third floor, ran down the stairwell,
and exited the courthouse. He was apprehended in a nearby
parking lot.
Once he was returned to custody, the trial court addressed
counsel. The jury was in the jury room when defendant escaped
and none of them could have seen the incident, nor would they
have been aware that the courthouse was briefly on “lockdown”
due to the incident. So, the trial court decided to tell the
jury only that there had been a security incident that would
prohibit them from continuing for the day. The judge also
decided to give the jurors a security escort to their cars. When
he dismissed the jury for the day, he re-emphasized that they
were not to read any media coverage of the trial. He further
told them that the security escort was “nothing to be concerned
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about” and that it was just an effort “to exercise as much
caution as need be.”
When court reconvened the next morning, defendant moved for
a mistrial. He was concerned that the jurors “may have been
tainted by the deluge of press coverage and the fact that the
facility itself was under lockdown.” He further argued that
having the jurors escorted to their cars could have been
construed as an expression of judicial opinion. He asked the
trial court to individually inquire of each juror.
The trial court explained that it had asked the bailiff to
ask the jurors whether any of them had seen any reports about
the events of the previous day. None of them indicated that they
had. The trial court decided that it was unnecessary to
individually inquire of the jurors. Instead, once the jury was
back in the courtroom, the trial court asked them, as a whole,
whether they had followed the court’s instructions to avoid any
coverage of the trial. None of them indicated that they had
violated the court’s instructions.
The trial court explained its decision to inquire of the
jury as a whole:
They were probably never fully aware that
the courthouse was in lockdown mode because
they were sequestered in the jury room, and
no one told them anything about what was
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going on. But as I had said yesterday, I did
it out of an overabundance of caution. And I
think in matters such as this, safety
concerns always outweigh and are paramount
to anything else, and I do not believe that
the jury would necessarily connect it to
anything involving this defendant, and I do
not believe it necessary to conduct
individual questioning of the jurors about
this.
Before the trial recommenced, the trial court decided to
order physical restraints and additional security personnel,
including one bailiff standing within arm’s reach of defendant.
Defendant objected to the added restraints. The trial court
conducted the required hearing under N.C. Gen. Stat. § 15A-1031.
The trial court found that
in light of the seriousness of the charge,
first-degree murder, with the penalty being
life imprisonment without the possibility of
parole; the fact that the defendant is of a
temperament that he sometimes loses his
temper, and I have personally seen this in
previous hearings as well as his prior
attorneys have noted this and reported it to
the Court; the defendant’s relatively young
age and his obvious nimbleness in being able
to escape yesterday; the fact that he has
made threats to harm others or cause a
disturbance in the past, both to his prior
attorneys and making statements to others;
as well as the nature and physical security
of the courtroom; and again, the need to
protect those immediately around the
defendant from any potential harm, the Court
will find that it is necessary to restrain
the defendant during the trial.
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It concluded that
the restraint [was] reasonably necessary to
maintain order, to prevent another escape
attempt, and to provide for the safety of
other persons in the defendant’s immediate
vicinity here in the courtroom. So I believe
that in light of the events of yesterday, it
is necessary for me to take this action.
After asking the jurors whether they had seen any coverage
of the trial, the trial court instructed the jury on the
additional restraints. It stated,
I am instructing you that the defendant has
been placed in some physical restraints, and
I do not -- I am ordering you not to
consider this in any fashion, whether in
terms of weighing the evidence or in
determining the defendant’s guilt or
innocence in this matter. You are to conduct
yourselves just in a manner as if the
defendant had not been placed in any
restraints.
Defendant did not object to these instructions or request
additional cautionary instructions. The remainder of the trial
proceeded without incident.
At trial, the State’s evidence showed the following:
On the evening of 31 October 2007, Josh Sweitzer was
working the cash register in a Lucky Mart convenience store
owned by his uncle, Travis Luck. Mr. Luck left the store to get
Mr. Sweitzer some dinner. As he was leaving, he saw two men
standing outside of the store. He asked them what they were
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doing. They claimed to be waiting for a ride. One of the men
was defendant.
After Mr. Luck left, two men walked into the store wearing
bandanas over their faces and hoods covering their heads. One
of the men walked up to the cash register and demanded money
from Mr. Sweitzer. Mr. Sweitzer did not respond, so the man shot
him in the head. He then approached the only customer in the
store and demanded money from his wallet. The customer opened
his wallet to show the gunman that he only had $7. The two
perpetrators then walked out of the store without taking any
money. Mr. Sweitzer died of a single gunshot wound to the right
side of his forehead. When Mr. Luck returned to his store,
police had already responded to the scene and were in the
process of putting up crime scene tape.
The next morning, Officer Kyle Shearer searched the area
around the Lucky Mart. He found a blue baseball hat hidden in a
bush, a camouflage bandana on the ground, and a .38 caliber
silver revolver within approximately 200 yards of the store.
The revolver still had five unspent rounds in it and one spent
shell casing. No fingerprints were found on the revolver and no
DNA was found on the bandana. Police were, however, able to
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recover DNA from the baseball hat. They later matched its
predominate profile to defendant.
Ronnie Covington testified that on 31 October 2007, he and
defendant were hanging out, discussing ways to get money,
including robbery. Defendant had a .38 caliber revolver with
him. Mr. Covington and defendant went to the Lucky Mart store.
Mr. Covington went in first to buy a cigar and to see who was in
the store and then stepped back out. They both then went into
the store, where Mr. Convington confronted the only customer and
defendant attempted to rob Mr. Sweitzer. While he was looking
at the customer, Mr. Covington heard a single gunshot. He and
defendant ran out of the store. Defendant hid his gun under an
old car before leaving the area. Over the next several months,
defendant, Mr. Covington, and other associates of theirs
committed a string of armed robberies in the area.
Matthew Savoy, another one of the men involved in the
string of armed robberies, also testified at trial. He testified
that defendant said to him: “Man, you missed it. We hit this
robbery and we murdered this dude. Man, we went into the store,
pointed a gun at him and told him to give me the money. He
wouldn’t move. He ain’t say nothing. So I like, man, give me
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the money. He was just looking at me, so I shot him in the
face.”
Mr. Savoy also testified that after he and defendant were
arrested, they were placed in adjoining pods at the jail. They
passed notes back and forth. Defendant passed one note to Mr.
Savoy written in “Crip code,” a disguised method of writing used
by members of the Crip gang and their associates. Mr. Savoy
explained that defendant is a Crip, but denied being one
himself. Nevertheless, he testified that he could read and
understand “Crip code.” He translated the note written by
defendant as follows:
Matt, what’s cracking, Big Homey. I hope
everything 360 with you. Man, look, I just
got a visit from my people, and shit, and
where it is, Ronnie talking and his cousin
Neco snitching on his behalf. That’s how
Marcel got caught. We was at Neco’s house
counting loot when we had hit the lick in
Lexington. My grandma said they came and
searched my crib off a statement somebody
wrote. So where do your loyalty lie, Big
Homey? You really want a position of power?
You want -- you want your mark of purity,
Homey? Crip the fool a straight 187, and I’m
thinking about admitting my part in all 12
licks so I can pull my 15 to 20 years and
build our army, the East 99 Mafia Crips, and
get the black book of knowledge. You dig,
Big Homey? But shit, I got some canteen
coming, so if you want -- if you need
something, I’m in M-19. Be safe, Homey.
-9-
The note was signed, “Young Blue,” which is defendant’s
nickname. Mr. Savoy explained that “Crip the fool a straight
187” means to kill someone and that, in context, he understood
that defendant was asking him to kill Ronnie Covington.1
After defendant was arrested, he gave a number of
statements to police. He admitting taking part in a string of
armed robberies but denied involvement in the Lucky Mart murder.
He named a couple people he thought might have been involved
with the murder. Defendant later admitted that he made up the
story implicating others in the Lucky Mart shooting, but
continued to deny that he was involved.
After the State rested, defendant elected to present
evidence and testify on his own behalf. Defendant denied
participating in the Lucky Mart robbery and denied that he had
ever been to the Lucky Mart. He admitted that the blue baseball
hat was his, though he acknowledged that he had previously told
the police otherwise. Defendant said that he “was lying like
hell” when he denied that the hat was his. On cross-
examination, the State asked him, over objection, about his
1
Colloquial use of the term “187” to refer to murder seems to be
based upon § 187 of the California Penal Code, which defines the
crime of murder. See People v. Jones, 70 P.3d 359, 376-77 (Cal.
2003) (discussing a Crips affiliate called “the 211 187 Hard Way
Gangster Crips”); Cal. Penal Code § 187 (2014) (defining the
crime of murder).
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escape in detail. The prosecutor also asked him, over objection,
if he had been a Crip in 2008. Defendant admitted that he had
been, though he denied being able to read or write “Crip code.”
The jury found defendant guilty of both attempted armed
robbery and first degree murder. The trial court arrested
judgment on the robbery conviction. On 17 June 2013, the trial
court entered judgment on the murder conviction and sentenced
defendant to life imprisonment without parole. Defendant gave
notice of appeal in open court.
II. Improper Judicial Comment
Defendant first argues that the trial court made an
improper judicial comment on his dangerousness in violation of
his due process rights and the prohibition of such comment in
N.C. Gen. Stat. §§ 15A-1222 and 15A-1232. Defendant reasons that
the trial court’s decision to order additional security,
including physical restraints and an escort for the jury, was
akin to a statement by the trial judge that defendant was
“highly dangerous, and therefore probably guilty[.]” We
conclude that the trial court did not abuse its discretion or
violate defendant’s constitutional rights by ordering additional
security measures after he attempted to escape.
While, as a general rule, a criminal
defendant is entitled to be free from
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physical restraint at his trial, unless
there are extraordinary circumstances which
require otherwise, there is no per se
prohibition against the use of restraint
when it is necessary to maintain order or
prevent escape. What is forbidden—by the
due process and fair trial guarantees of the
Fourteenth Amendment to the United States
Constitution and Art. I, Sec. 19 of the
North Carolina Constitution—is physical
restraint that improperly deprives a
defendant of a fair trial. Such a decision
must necessarily be vested in the sound
discretion of the trial court.
State v. Simpson, 153 N.C. App. 807, 809, 571 S.E.2d 274, 276
(2002) (citations and quotation marks omitted); see Deck v.
Missouri, 544 U.S. 622, 632, 161 L.Ed. 2d 953, 964 (2005)
(noting that “due process does not permit the use of visible
restraints if the trial court has not taken account of the
circumstances of the particular case.” (emphasis added)).
Additionally, “it is within the judge’s discretion, when
necessary, to order armed guards stationed in and about the
courtroom and courthouse to preserve order and for the
protection of the defendant and other participants in the
trial.” State v. Tolley, 290 N.C. 349, 363, 226 S.E.2d 353, 365
(1976).
“We review the trial court’s decision of whether to place
defendant in physical restraints [and to order additional
security measures] for abuse of discretion.” State v. Posey, ___
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N.C. App. ___, ___, 757 S.E.2d 369, 372 (2014) (citations,
quotation marks, and brackets omitted). Nevertheless, “[t]he
trial court’s discretion is not unbridled and must be exercised
in a manner that is ‘not exercised arbitrarily or wilfully, but
with regard to what is right and equitable under the
circumstances and the law, and directed by reason and conscience
of the judge to a just result.’” State v. Atkins, 349 N.C. 62,
92, 505 S.E.2d 97, 116 (1998) (quoting Langnes v. Green, 282
U.S. 531, 541, 75 L.Ed. 520, 526 (1931)), cert. denied, 526 U.S.
1147, 143 L.Ed. 2d 1036 (1999).
In deciding whether restraints [and other
security measures] are appropriate, a trial
court may consider, among other things, the
following circumstances:
the seriousness of the present charge
against the defendant; defendant’s
temperament and character; his age and
physical attributes; his past record; past
escapes or attempted escapes, and evidence
of a present plan to escape; threats to harm
others or cause a disturbance; self-
destructive tendencies; the risk of mob
violence or of attempted revenge by others;
the possibility of rescue by other offenders
still at large; the size and mood of the
audience; the nature and physical security
of the courtroom; and the adequacy and
availability of alternative remedies.
Posey, ___ N.C. App. at ___, 757 S.E.2d at 372 (citation and
quotation marks omitted).
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[T]he question for decision boils down to
this: On the basis of the record before us,
can we say, as a matter of law and with
definite and firm conviction, that the court
below committed a clear error of judgment in
the conclusion it reached upon a weighing of
the relevant factors?
Tolley, 290 N.C. at 369-70, 226 S.E.2d at 369 (citation and
quotation marks omitted).
Here, defendant does not argue that the trial court failed
to follow the procedure governing the use of restraints at trial
under N.C. Gen. Stat. § 15A-1031 (2011). Cf. Simpson, 153 N.C.
App. at 808, 571 S.E.2d at 275 (considering whether failure to
follow § 15A-1031 prejudiced defendant and violated his
constitutional rights). Outside the presence of the jury, the
trial court made the following findings of fact:
[I]n light of the seriousness of the charge,
first-degree murder, with the penalty being
life imprisonment without the possibility of
parole; the fact that the defendant is of a
temperament that he sometimes loses his
temper, and I have personally seen this in
previous hearings as well as his prior
attorneys have noted this and reported it to
the Court; the defendant’s relatively young
age and his obvious nimbleness in being able
to escape yesterday; the fact that he has
made threats to harm others or cause a
disturbance in the past, both to his prior
attorneys and making statements to others;
as well as the nature and physical security
of the courtroom; and again, the need to
protect those immediately around the
defendant from any potential harm, the Court
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will find that it is necessary to restrain
the defendant during the trial.[2]
After bringing the jury back into the courtroom, the trial court
specifically instructed the jury not to consider the use of
restraints “in any fashion, whether in terms of weighing the
evidence or in determining the defendant’s guilt or innocence in
this matter.”
Given the facts of this case, we cannot say that the trial
court committed a “clear error of judgment” or arbitrarily
decided to place defendant in restraints and order additional
security personnel to stand by defendant. Defendant escaped in
the midst of this trial. Defendant managed to slip out of his
leg shackles while being removed from a holding cell, jump over
a railing out to the third floor and then over an outdoor
breezeway before being apprehended. Defendant had trouble
managing his anger; he had previously threatened to harm others.
He was facing the most serious charge possible in this state—
first degree murder. His potential punishment upon conviction is
the second most serious available in North Carolina—life in
prison without the possibility of parole. We do not think the
fact that defendant broke his ankle during his escape attempt
2
Defendant does not challenge any of these findings as
unsupported by the evidence.
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and was in a wheelchair for the rest of the trial makes the
court’s decision to order additional security measures an abuse
of discretion. The trial court must consider not only the
potential danger to others in the courtroom from the defendant
personally, but also the potential threat that associates of the
defendant could pose to the court proceedings and those involved
in it.3
We have no difficulty concluding that use of restraints and
additional security measures—even though visible to the jury—
were fully justified by defendant’s behavior at trial and before
trial. Cf. Tolley, 290 N.C. at 370-71, 226 S.E.2d at 369(holding that the trial court did not abuse its discretion in
ordering restraints where the defendant had attempted escape
during a preliminary hearing one month before trial); Holbrook
v. Flynn, 475 U.S. 560, 571, 89 L.Ed. 2d 525, 536 (1986)
(approving the use of four visible, uniformed troopers in the
first row of the courtroom as security where a defendant “had
been denied bail after an individualized determination that
[his] presence at trial could not otherwise be ensured”).4
3
Concern about threats by associates of the defendant was surely
justified in this case, as defendant had, while in jail,
attempted to solicit an associate to kill one of the witnesses
against him, as discussed in more detail below.
4
Indeed, the United States Supreme Court has approved use of
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At oral argument, defendant argued that the trial court’s
instruction was insufficient because it failed to inform the
jury that they were not to consider the fact that they had been
escorted to their cars or the additional security personnel in
the courtroom. An instruction specifically addressing the use of
escorts for the jury would probably just have led the jurors to
believe that the need for use of an escort arose from
defendant’s trial and not from some unrelated incident that
might have occurred elsewhere in the courthouse. Otherwise, they
had no way to know that the security issue of the previous day
was related to defendant’s trial until evidence of defendant’s
escape was introduced. Indeed, defendant did not request a
cautionary instruction specifically regarding the escort.
Further, an instruction explicitly mentioning each of the
additional security measures would likely just have drawn the
jury’s attention to those measures. “If defendant desired a
different . . . instruction he should have requested it at that
time.” State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585
(1977); see Tolley, 290 N.C. at 371, 226 S.E.2d at 370 (holding
restraints far more prejudicial than those at issue here, in
appropriate circumstances. See Illinois v. Allen, 397 U.S. 337,
343-44, 25 L.Ed. 2d 353, 359 (1970) (opining that one
constitutionally permissible response to “an obstreperous
defendant” would be to bind and gag him).
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that the trial court did not err in failing to instruct the jury
to disregard the defendant’s shackles where such an instruction
was not requested). Therefore, we hold that the trial court’s
instruction not to consider the restraints was sufficient.
III. Failure to Individually Inquire
Defendant next argues that the trial court erred and
violated his due process rights by failing to individually
inquire of the jurors regarding whether they had been affected
by the increased security after defendant’s escape. We conclude
that the trial court’s procedure was constitutionally
sufficient.
“[W]hen there is a substantial reason to fear that the jury
has become aware of improper and prejudicial matters, the trial
court must question the jury as to whether such exposure has
occurred and, if so, whether the exposure was prejudicial.”
State v. Campbell, 340 N.C. 612, 634, 460 S.E.2d 144, 156
(1995), cert. denied, 516 U.S. 1128, 133 L.Ed. 2d 871 (1996).
“It is within the discretion of the trial judge as to what
inquiry to make.” State v. Willis, 332 N.C. 151, 173, 420 S.E.2d
158, 168 (1992). The question for us to consider is whether the
trial court abused its discretion in directing its inquiry to
the jury as a whole rather than the individual jurors.
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In State v. Barts, the defendant had moved for a mistrial
because he feared that the jurors may have read a prejudicial
article in the local newspaper. 316 N.C. 666, 681, 343 S.E.2d
828, 838 (1986). The trial court questioned the jury, as a
whole, about whether any juror had violated his instructions.
Id. at 681-82, 343 S.E.2d at 839. The defendant argued on appeal
that this method of inquiry was insufficient because the judge
did not specifically question each juror. Id. at 682, 343 S.E.2d
at 839. The Supreme Court held that the chosen method of inquiry
was sufficient because “[t]here has been no showing that this
mode of questioning was ineffective in ascertaining whether
exposure to the article had occurred.” Id. at 683, 343 S.E.2d at
840.
Here, the only information potentially “conveyed” to the
jury was that defendant had attempted to escape.5 The jurors
were in the jury room when defendant attempted to escape. When
the trial court dismissed them for the day, the judge explained
that there had been a security incident at the courthouse and
5
Defendant also argues that the trial court should have inquired
about the impact the additional security measures had on the
jury. We have already determined that the additional, visible
security measures were warranted by defendant’s actions at trial
and that the trial court’s curative instruction was sufficient.
“The law presumes that jurors follow the court’s instructions.”
State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004),
cert. denied, 544 U.S. 909, 161 L.Ed. 2d 285 (2005).
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that they would be provided an escort to their cars. The trial
court specifically instructed the jury not to look at media
coverage of what happened at the court. Without exposure to such
media or having witnessed the escape, which none of the jurors
did, there is no reason to think that the jurors knew that
defendant had escaped and that it was this escape which caused
the trial court to order additional security measures.
The only possible exposure to improper, external
information concerning defendant’s escape attempt would have to
come from media coverage. The trial judge had the bailiff
question them about whether they had been exposed to any
publicity concerning the trial. The judge then followed up with
his own inquiry, asking whether they had been exposed to any
publicity. None of the jurors indicated that they had.
Under these facts, general inquiry of the jury regarding
their exposure to media coverage of the trial was sufficient to
ensure that they had not been exposed to improper, prejudicial
material. “Additionally, there is no evidence tending to show
the jurors were incapable of impartiality or were in fact
partial in rendering their verdict.” State v. Taylor, 362 N.C.
514, 538, 669 S.E.2d 239, 260 (2008), cert. denied, 558 U.S.
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851, 175 L.Ed. 2d 84 (2009). Therefore, we hold that defendant
is not entitled to a new trial on this basis.
IV. Evidence of Escape Attempt
Defendant next argues that the trial court erred in not
excluding evidence of his escape attempt under Rule 403 and in
failing to explicitly apply the Rule 403 balancing test.
[W]hether to exclude evidence under Rule 403
is a matter within the sound discretion of
the trial court. This Court will find an
abuse of discretion only upon a showing that
the trial court’s ruling was manifestly
unsupported by reason and could not have
been the result of a reasoned decision.
State v. McDougald, 336 N.C. 451, 457, 444 S.E.2d 211, 214
(1994) (citations, quotation marks, and brackets omitted).
“Evidence of a criminal defendant’s flight following the
commission of a crime is evidence of his guilt or consciousness
of guilt.” State v. Jones, 347 N.C. 193, 205, 491 S.E.2d 641,
648 (1997). “[A]n escape from custody constitutes evidence of
flight.” McDougald, 336 N.C. at 456, 444 S.E.2d at 214 (citation
and quotation marks omitted).
Although defendant persuasively argues that evidence of his
escape was highly prejudicial, we fail to see how this evidence
was at all unfairly prejudicial. Evidence is generally
considered unfairly prejudicial when it has “an undue tendency
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to suggest decision on an improper basis, commonly, though not
necessarily, as an emotional one.” Id. at 457, 491 S.E.2d at
214 (quoting N.C. Gen. Stat. § 8C-1, Rule 403 official
commentary). Here, the jury may have inferred from the fact that
defendant attempted to escape that defendant was guilty of the
charges against him. That inference is precisely the inference
that makes evidence of flight relevant and it is not an unfair
inference to draw. See id.
Defendant does not argue that there is some other unfair
inference that the jury might have drawn from the flight
evidence. Where there is no unfair prejudice, there is no
balancing to be done. Therefore, even assuming arguendo that the
trial court failed to apply the Rule 403 balancing test
explicitly, we conclude that the “evidence of the defendant’s
escape . . . ‘could only be viewed as having a due tendency to
suggest a decision on a proper basis.’” Id. (quoting State v.
Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)). Therefore,
we hold that the trial court did not abuse its discretion in
admitting the evidence of defendant’s escape.
V. Gang-Related Evidence
Defendant finally argues that the trial court erred in
admitting the jail letter he wrote to Matt Savoy and in allowing
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the State to ask him on cross-examination whether he was in a
gang because that evidence should have been excluded under Rule
403. We disagree.
We review the trial court’s decision to admit the evidence
over defendant’s Rule 403 objection for an abuse of discretion.
McDougald, 336 N.C. at 457, 444 S.E.2d at 214. First, although
there was some dispute about its authenticity, the State’s
evidence showed that defendant wrote a letter to Matt Savoy
wherein defendant asked Mr. Savoy to kill Ronnie Covington
because Mr. Covington was talking to police. The letter was
written in “Crip code.” Mr. Savoy testified that Crip code is
“a language that Crip[s] came up with dealing with writing so it
would be coded, so if anybody wasn’t a Crip or affiliated to
them, they wouldn’t be able to understand it.”6
The letter itself was relevant and not unfairly prejudicial
because in it defendant solicited the murder of one of the
State’s primary witnesses against him. Such evidence is highly
relevant to defendant’s consciousness of guilt. Our Supreme
Court has held that “an attempt by a defendant to intimidate a
witness in an effort to prevent the witness from testifying or
6
Defendant has not argued, either before the trial court or on
appeal, that Mr. Savoy was not qualified to interpret the
letter, nor has defendant challenged the accuracy of Mr. Savoy’s
interpretation of the letter.
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to induce the witness to testify falsely in his favor is
relevant to show the defendant’s awareness of his guilt.” See
State v. Mason, 337 N.C. 165, 171, 446 S.E.2d 58, 61 (1994)
(citation, quotation marks, and brackets omitted). Soliciting
the murder of a witness is “an attempt . . . to prevent the
witness from testifying[.]” Id. (citation and quotation marks
omitted).7
Moreover, evidence relating to defendant’s gang membership
was necessary to understand the context and relevance of the
letter. The State properly introduced the letter itself and
asked Mr. Savoy, who testified that he could read Crip code, to
translate it on the stand.8 To understand this evidence, it was
important for the jury to know what Crip code is and why
defendant would be a person capable of writing in this manner.
7
Defendant argues that the letter was less probative than it
might otherwise be because Mr. Convington was “talking to
police” about other offenses that defendant committed as well,
such as the string of robberies and defendant did not specify in
the letter which testimony he wanted to prevent. So, the
argument goes, defendant could have wanted Mr. Covington dead to
prevent his testimony in those cases instead of at this trial.
This argument is nearly so ludicrous that it does not bear
addressing. The State’s evidence showed that defendant asked
someone to murder a primary witness relevant to this trial. The
fact that the letter does not specify that defendant wanted him
dead for that reason alone does not make it irrelevant to
defendant’s guilt.
8
Defendant had a full and fair opportunity to cross-examine Mr.
Savoy and to impeach him as a biased witness.
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Additionally, the trial court repeatedly instructed the jury
that they were only to consider the gang evidence as an
explanation for the note.
Defendant correctly notes that when the prosecutor asked
him on cross-examination whether he was a Crip, the trial court
overruled his objection without giving a limiting instruction.
While it is true that the trial court did not repeat its
limiting instruction, no such instruction was requested.
Additionally, the question was asked in the context of the
prosecutor’s cross-examination on the issue of the “Crip code”
note. Defendant had denied writing the note and denied even
understanding “Crip code.” The prosecutor did not encourage the
jury to draw an improper inference from this evidence.
In sum, the letter itself was highly relevant and, unlike
the cases cited by defendant,9 here the evidence of defendant’s
gang membership was properly relevant to his guilt. Under the
facts of this case, such evidence “could only be viewed as
having a due tendency to suggest a decision on a proper basis.”
McDougald, 336 N.C. at 456, 444 S.E.2d at 214 (citation and
quotation marks omitted). Defendant has failed to show that the
trial court abused its discretion in deciding that any unfair
9
E.g., State v. Hinton, ___ N.C. App. ___, 738 S.E.2d 241(2013).
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prejudice from the contested evidence did not substantially
outweigh its probative value.
VI. Conclusion
For the foregoing reasons, we conclude that defendant has
shown no error at his trial.
NO ERROR.
Judges STEPHENS and MCCULLOUGH concur.