State v. Moreno

WELLS, Judge.

Defendant’s seventh assignment of error challenges the trial court’s refusal to instruct the jury that it could consider certain evidence of his good character as substantive evidence of his innocence. The record reveals that defendant requested instructions on his law-abidingness, honesty, generosity, loyalty, religious devoutness, being church-going, not using or dealing in drugs, being hard working, being a good provider, not being extravagant, and being naive. Proof on these character traits was made through defendant’s witness Tina Shelton, his girlfriend, in the form of both reputational and opinion testimony. The trial court, however, declined to give the requested instructions.

The decisional precedents governing the circumstances in which a criminal defendant is entitled to a jury instruction on a good character trait as substantive evidence of innocence were extensively reviewed by our Supreme Court in State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989). We thus need not recite those precedents here. Careful reading of Bogle and the authorities on which it relies convinces us that our Supreme Court in Bogle sought to synthesize the line of cases construing Rules 404 and 405 of the Rules of Evidence, in light of the well-established duty of the trial court to instruct the jury on the substantial and essential features of the case arising on the evidence, and thereby articulate a clear standard which must be satisfied before a criminal defendant will be entitled to an instruction on a good character trait as substantive evidence of his innocence.

Although not stated there in precisely this form, we perceive Bogle to stand for the principle that a criminal defendant will be entitled to such an instruction when he satisfies the following four-part test. First, the evidence must be of a “trait of character” and not merely evidence of a fact {e.g., “being ‘law-abiding’ addresses one’s trait of character of abiding by all laws, a lack of convictions addresses only the fact that one has not been convicted of a crime”). Bogle at 200, 376 S.E.2d at 751 (emphasis original). Second, the evidence of the trait must be competent {i.e., in addition to satisfying all other applicable standards, the evidence must be in the proper form, as required by Rule 405). Id. at 198-202, 376 S.E.2d at 749-52. Third, the trait must be pertinent {i.e., relevant in the context of the crime charged in that it bears a special relationship to or is involved in such crime). Id. at 198, 201, 376 S.E.2d at 749, 751. And fourth, the instruction must be requested by the defendant. Id. at 199, 376 S.E.2d at 750 (citing State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988)). In determining whether this test is satisfied, the trial court must view the facts of the case in the light most favorable to the defendant. Id. (citing State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985)).

Setting aside for the moment defendant’s request as it pertains to evidence of his “law-abidingness” and “not using or dealing in drugs,” it is plain that the remainder of the traits on which defendant sought an instruction, e.g., “honesty,” “loyalty,” “generosity,” and the like, are not pertinent to the criminal charges against defendant. See Bogle, supra at 202, 376 S.E.2d at 752 (honesty and truthfulness not pertinent to charge of trafficking in marijuana). Thus, the third prong of the test is clearly not satisfied, and the trial court therefore did not err in refusing to instruct the jury that it could consider evidence of such character traits as substantive evidence of defendant’s innocence.

Defendant’s requested instructions on “law-abidingness” and “not using or dealing in drugs,” however, present different questions. Turning to the first of these, we note that our Supreme Court has stated that law-abidingness is a character trait that is pertinent in virtually all criminal cases. Bogle, supra at 198, 376 S.E.2d at 749 (citing State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988)). Thus, the sole remaining question is whether the evidence of defendant’s law-abidingness is competent. As we noted above, proof of this character trait was made through defendant’s girlfriend, Tina Shelton, in the form of opinion and reputational testimony. This testimony was based on the witness’ having known defendant for approximately four and one-half years prior to the 13 March 1989 date of the trial, i.e., since approximately September 1984. Ms. Shelton’s testimony is clearly competent under the requirements stated in Bogle. Having satisfied the four-part test, defendant was entitled to an instruction on law-abidingness, and the trial court therefore erred in refusing to instruct the jury that it could consider the evidence of defendant’s law-abidingness as substantive evidence of defendant’s innocence.

Turning to defendant’s requested instruction on his good character as it pertains to his “not using or dealing in drugs,” we note that this in fact presents two distinct but related questions: (1) whether “not using drugs” and (2) whether “not dealing in drugs” satisfy the requirements of Bogle. As to the second of these, evidence of not dealing in drugs is plainly evidence of a fact, indeed, a fact at issue in this case. It thus fails the first prong of the test, and defendant was therefore not entitled to an instruction that his “good character” for not dealing in drugs could be considered by the jury as substantive evidence of his innocence. “Not using drugs,” however, is clearly a character trait, akin to sobriety. Hence the first prong of the test is satisfied. The remaining prongs of the test are also satisfied in that defendant’s evidence of this trait is competent, the trait is plainly pertinent to this prosecution for trafficking and conspiracy to traffic in cocaine, and defendant requested the instruction. Consequently, defendant was also entitled to an instruction that evidence of his not using drugs could be considered as substantive evidence of his innocence.

Having determined that the trial court erred in refusing to instruct the jury on defendant’s law-abidingness and not using drugs, we are next required by G.S. §§ 15A-1442(4)d and -1443(a) to determine whether such error redounds to the prejudice of defendant. In making this determination, we note that neither Bogle, nor the precedents upon which it relies, hold that such error is prejudicial per se or as a matter of law. Accordingly, our inquiry is directed to the question of whether there is a reasonable possibility that a different result would have been reached at trial had these errors not been committed. N.C. Gen. Stat. § 15A-1443(a). See also State v. Carson, 80 N.C. App. 620, 343 S.E.2d 275 (1986); State v. Miller, 69 N.C. App. 392, 317 S.E.2d 84 (1984). Defendant bears the burden of demonstrating prejudice under this standard. Id.

Defendant has not surmounted his burden. First, with respect to the trial court’s refusal to instruct on law-abidingness the record shows that defendant himself later admitted, on cross-examination, that he had been convicted in Los Angeles County Court on 14 January 1986 of giving false information to a police officer. Defendant’s own testimony thus flatly contradicts the prior testimony of Ms. Shelton that defendant is law-abiding. Second, we note generally that there was very strong evidence of defendant’s guilt. There was no question as to defendant’s ownership or control of the suitcase which contained the bag of cocaine. Moreover, defendant’s fingerprint on the cocaine bag points directly to his knowledge that the cocaine was in his suitcase. Consequently, we cannot conclude that there is a reasonable possibility that the jury in this case would have returned verdicts of not guilty had the trial court given these instructions. We therefore conclude that the trial court’s failure to instruct the jury on defendant’s law-abidingness and not using drugs was not prejudicial to defendant.

Defendant’s remaining assignments of error have been carefully considered, are determined to be without merit, and are therefore overruled.

For the reasons stated, we conclude that defendant had a fair and impartial trial, free from prejudicial error.

No error.

Judges Parker and Duncan concur.