State v. Cunningham

Judge BECTON

dissenting.

The two substantive issues on appeal are (1) whether the State had sufficient information of defendant’s involvement in, and a good faith basis for asking defendant if he committed, a second armed robbery in Charlotte on the night in question; and (2) whether the State’s rebuttal evidence — that defendant committed a third armed robbery in Charlotte on the night in question — was properly admitted, considering defendant’s denial of the third armed robbery on cross-examination. Believing that both issues should be answered in the negative, I dissent.

I

Before discussing the substantive issues on appeal, a summary of the evidence regarding the three separate robberies that took place within the same geographical area of Charlotte between 9:30 and 11:30 p.m. on 27 May 1982 seems to be in order.

A. The Michael Boyles Robbery

Michael Boyles made a delivery of goods to the Axton-Cross Company in the Industrial Park on Service Street in Charlotte on the night of 27 May 1982. As Boyles backed his truck to the dock between 9:00 and 9:30 p.m., a man approached and asked directions to North Tryon Street. Boyles told the man he would give him directions when he had finished backing up. Boyles testified:

When I got up to the dock, I stopped, and I got ready to get out of the truck. When I stooped down on the ground with my back toward him, and he pulled the pistol out on me and told me to throw my wallet out on the ground.

After seeing the chrome revolver, Boyles threw his wallet on the ground and backed up. The man grabbed the wallet and ran away.

Boyles, five days later, picked out defendant’s picture from a photographic array shown him by Officer S. L. Mullís. Boyles had previously described his assailant to police as being a 5'10", 170 pound black male with short to medium hair, approximately 23 to 26 years old, wearing a burgundy hat, a light blue tank top, dark blue shorts, and white tennis shoes.¹

After this case (the Lazinsky case) was appealed, defendant was tried for robbing Michael Boyles. A Mecklenburg County jury found defendant not guilty of robbing Boyles.

B. The William Galloway Robbery

In the absence of the jury (no formal voir dire hearing was held), the assistant district attorney made the following statements to the trial court concerning the Galloway robbery.

On the same date, May 27, a victim, William Galloway at 2731 North Graham Street, made a complaint at . . . 10:00 in the evening, that he had been robbed at gunpoint by a young black male, approximately five feet seven inches, weighing approximately 135 pounds. [I]n the course of the incident, he asked about a job at the place where Mr. Galloway was working, and that he had a handgun in his possession at the time, and that Mr. Galloway and the robber tussled, and the gun was fired.

Although the record does not reflect the exact distance, 2731 North Graham Street is in the same geographical area of Charlotte as the Axton-Cross Company.

Galloway described his assailant to the police as being a black male “approximately five/seven, weighed about 135 pounds, somewhere around 17 or 19 years of age, I believe, with short hair.” Officer Mullis testified on voir dire that Mr. Galloway “was reluctant as to whether he could or he could not” identify anybody. Mullis also testified that Galloway did not pick defendant out of the line-up.

No charges were brought against defendant as a result of the armed robbery of Mr. Galloway.

C. The Neil Lazinsky Robbery

Neil Lazinsky was robbed while working at the DeLuca Valve Company on Ashbury Avenue in Charlotte. The DeLuca Valve Company is three to four blocks away from the Axton-Cross Company. As Lazinsky was working about 11:00 p.m. on 27 May 1982, he saw a man standing inside the garage door of the shop. The man inquired about the possibility of a job and then asked directions to North Tryon Street. After Lazinsky opened the door to let the man out, the man pointed a gun at Lazinsky’s head and told him to empty his pockets or he would blow his brains out. Lazinsky did as he was told, backed inside the building, and closed and locked the door.

Lazinsky identified the defendant as the man who robbed him, describing him as a black male, about five feet seven inches tall, early- to mid-twenties, weighing 170 to 175 pounds, with a gold ball pierced earring in one ear. Lazinsky identified defendant from the same photographic array that Boyles had used to identify the defendant.

II

Because Michael Boyles identified defendant as the person who robbed him on 27 May 1982, defense counsel conceded at trial that the prosecutor had a good faith basis for asking defendant if he in fact robbed Michael Boyles.² Because William Galloway could not identify defendant as the perpetrator of the robbery on him, and because the State never charged defendant with the Galloway robbery, the defendant argues that the prosecutor had no basis, other than her own speculation, for belief that defendant was the man who committed the Galloway robbery. I agree with defendant.

Questions relating to a defendant’s criminal and degrading conduct must concern a specific, identifiable act of defendant, State v. Dawson, 302 N.C. 581, 276 S.E. 2d 348 (1981), and “the questions asked by the prosecutor must be based on information and must be asked in good faith.” State v. Pilkington, 302 N.C. 505, 510, 276 S.E. 2d 389, 393, cert. denied, 454 U.S. 850, 70 L.Ed. 2d 140, 102 S.Ct. 290 (1981) (emphasis added). As evidence that the Pilkington Court was referring to two separate requirements when it said that the questions asked by the prosecutor must be based on information and must be asked in good faith, one need look no further than the next two sentences in Pilkington, which read: “In the instant case, defendant does not contend that the prosecutor acted in bad faith. Furthermore, it does not appear that the prosecutor lacked sufficient information upon which to base her questions on cross-examination.” 302 N.C. at 510, 276 S.E. 2d at 393.

That the prosecutor believed that defendant was the person who robbed Galloway is not enough. Her belief did not satisfy the test imposed by Pilkington. Speculation, conjecture and surmise are not sufficient, given the strictures imposed by our case law, which refers to specific, identifiable acts of misconduct.

Further, because the defendant denied committing the robbery in this case (the Lazinsky robbery), and also denied committing the robbery in the Boyles case, knowing that witnesses had identified him as the perpetrator of both robberies, the prosecutor had little hope that defendant would admit to robbing Galloway when no one had identified him as the perpetrator and when he had not been charged with that offense. The questions asked in this situation could give the jury the impression that the prosecutor had knowledge of facts to support the insinuations. Or, as stated by Professor Brandis: “Further, seldom, if ever, will the prosecutor anticipate that the unconvicted defendant will admit the criminal acts charged. Trial by insinuation is the compelling motive for the inquiry.” 1 H. Brandis, North Carolina Evidence § 112 n. 61, at 418 (2d rev. ed. 1982).

In my view, it was error, given the facts of this case, for the prosecutor to question defendant about the Galloway robbery.

Ill

Defendant also contends that the trial court erred in admitting evidence of, and instructing the jury on, the Boyles robbery, because (1) the State was thereby allowed to refute defendant’s denial of the robbery on cross-examination by extrinsic evidence; and (2) the evidence was not competent for any other purpose. Again, I agree.

The trial court, evidently relying on State v. Freeman, 303 N.C. 299, 278 S.E. 2d 207 (1981), and State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982), admitted the challenged evidence for the purpose of identification and not to rebut the defendant’s denial that he committed the robbery. Our Supreme Court has also said, however, that the probative effect of evidence is sometimes outweighed by its prejudicial impact. See State v. Shane, 304 N.C. 643, 285 S.E. 2d 813 (1982). Such is the case here. Generally, in a prosecution for a particular crime, the State cannot introduce evidence tending to show that the defendant committed another separate offense. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). However, there are eight exceptions to the general rule enumerated in McClain. Exception No. 4 reads:

(4) Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. [Citations omitted.]

Id. at 175, 81 S.E. 2d at 367.

I am aware that the McClain Court nowhere sought to define or explain what it meant by its use of the words “definitely identified” in exception No. 4 — the identification exception — to the general rule, and that the Supreme Court’s subsequent decisions in Leggett and Freeman may have effectively read “definitively” out of the exception.³ But that, of course, is the Supreme Court’s prerogative. However, neither Freeman nor Leggett ipso facto compel the same reult in this case.

As indicated, on the facts of this case, it was error for the State to cross-examine defendant about an alleged robbery of Galloway. Further, I have also noted — what is now known from hindsight, but which the trial court did not know — that defendant was subsequently acquitted of the Boyles robbery. Separate and apart from those considerations, however, is the law’s recognition that the prejudicial impact of some evidence outweighs its probative force. In State v. Shane, our Supreme Court would not let the State rely upon the “common scheme or plan” exception for admission of its evidence about defendant Shane’s commission of a similar sexual offense, fellatio, with a prostitute in Fayetteville to get around the general rule that evidence of a distinctly separate criminal offense is inadmissible. The Shane Court said:

[T]he facts of each case ultimately decide whether a defendant’s previous commission of a sexual misdeed is peculiarly pertinent in his prosecution for another independent sexual crime. In addition, it must affirmatively appear that the probative force of such evidence outweighs the specter of undue prejudice to the defendant, and, in close cases, fundamental fairness requires giving defendant the benefit of the doubt and excluding the evidence. [Or, as it is more descriptively said in the game of baseball, the tie must go to the runner.]

304 N.C. at 654, 285 S.E. 2d at 820.

In this case, after defendant had presented his alibi evidence, the State got the last lick by the “mini-trial” of defendant for the Boyles robbery. This, combined with the improper question regarding the Galloway robbery, was extremely prejudicial. The jury received the image of a career robber, hardly appropriate in light of defendant’s record or the subsequent disposition of the Galloway and Boyles robberies. In my view, defendant is entitled to a

New trial.

1 . At the time of the robberies, defendant, Oger Cunningham, was 21 years old, 5'9V2" tall and weighed approximately 150 pounds.

2 . Defendant does argue, and I address the argument in Part III, infra, that the State could not impeach defendant by extrinsic evidence once defendant said, on cross examination, that he did not commit the Boyles robbery.

3 . In both Freeman and Leggett our Supreme Court allowed evidence tending to show that the defendant therein committed another separate offense as bearing on identity in the case being tried, even though the defendant had been positively identified as the perpetrator of the crime charged. After referring to the identification exception in McClain, the Freeman Court, without further citation of authority, said: “Although Ms. Whitman positively identified defendant as her assailant, defendant’s evidence of alibi made the question of whether the defendant was, indeed, the perpetrator the very heart of the case. It was, therefore, proper for the state, in rebuttal, to offer evidence probative of this question.” 303 N.C. at 302, 278 S.E. 2d at 208-09. One year later, our Supreme Court in Leggett said the same thing, quoting from and citing Freeman as its only authority.