STATE of North Carolina
v.
Benny Wayne MILLS.
No. 8617SC590.
Court of Appeals of North Carolina.
December 30, 1986.*132 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Wilson Hayman, Raleigh, for the State.
Hugh H. Peoples, Mount Airy, for defendant-appellant.
WELLS, Judge.
In his first assignment of error, defendant contends that the court erred in denying his motion to sequester the State's witnesses. We disagree. The rule in this State is that a motion to sequester witnesses is addressed to the discretion of the trial court, and the court's denial of the motion will not be disturbed absent a showing of abuse. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982). The defendant here argues that the State's primary witnesses were related and that there was a greater risk that they would conform their testimony. However, since each witness testified to largely different events, that risk was diminished, and it was well within the discretion of the trial court to deny defendant's motion. This assignment is overruled.
Defendant contends in his second assignment of error that the court erred in permitting the State to present testimony and cross-examine defendant concerning his prior bad acts. His first exception is to the introduction of testimony by Hazel Moser, which tended to show the following. Approximately three years before the shooting, Danny Lee Smith, his wife Linda, Ben Mills, and Ms. Moser were in the living room of the trailer. Defendant and Mr. Smith had both been drinking, and Danny was "fussing." Ben told him to hush and pointed his .22 Magnum at Danny's stomach. He then fired the gun at the ceiling, after which both the defendant and Danny laughed. Defendant contends that this evidence was inadmissible under N.C.Gen. Stat. § 8C-1, Rule 404(b) of the N.C.Rules of Evidence.
Rule 404(b) provides as follows:
(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Not only must evidence be offered pursuant to a controverted fact at trialit must be logically relevant to that fact:
*133 `Relevant evidence' means 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.
G.S. § 8C-1, Rule 401. This requirement is particularly important when considering admission of prior wrongs. As our Supreme Court held in State v. McClain:
... the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected. (Citations omitted).
240 N.C. 171, 81 S.E.2d 364 (1954). In the case at bar, the State contends that Ms. Moser's testimony was admissible under 404(b) to show that the defendant's act was premeditated and deliberate. We disagree.
Evidence of other crimes, wrongs or acts is admissible to show that a defendant had the requisite mental intent or state, State v. King, 301 N.C. 186, 270 S.E.2d 98 (1980), McClain, supra; in this case, premeditation and deliberation. Premeditation has been defined by our Supreme Court as thought beforehand, however short. State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981). A killing is deliberate if it is done in a "cool state of blood," without legal provocation, and in furtherance of a "fixed design to gratify a feeling of revenge, or some unlawful purpose." Id. The question, then, is whether the evidence was relevant to these issues. Ms. Moser testified that the defendant told Danny to hush, pointed his gun at him and then fired up into the ceiling. No verbal threats to kill him were communicated, and both men laughed afterward; there is no indication that any ill will might be ongoing from the incident. Nor does the evidence tend to show that, when he pointed the gun at Danny in 1982, the defendant formed the intent to kill which was only realized three years later. Due to the circumstances of the incident and its extreme remoteness, the evidence has no tendency to make the existence of premeditation or deliberation "more or less probable than it would be without the evidence." Rule 401.
It is apparent from the record that the prosecution introduced the evidence at trial in order to show that the defendant was the agressor and did not act in self-defense. In State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), our Supreme Court addressed the admissibility of prior wrongs for such a purpose. The defendant in that case had pointed a gun three months earlier at someone other than the man for whose murder he was being tried. The court found that the question of agression was a contested element of defendant's self-defense claim, but held that the State's assertion that pointing a gun at another man was relevant to that claim "is precisely what is prohibited by Rule 404(b):"
In order to reach its conclusion, the State is arguing that, because defendant pointed a shotgun at Mr. Hill [sic] three months earlier, he has a propensity for violence and therefore must have been the aggressor in the alleged altercation with Mr. Harrell and, thus, could have been acting in self defense.
Id. However, the court recognized that a different result might have been reached under other circumstances:
Had the State's evidence been to the effect that defendant pointed a gun at or threatened Mr. Harrell three months earlier, such evidence would more likely be relevant as tending to show a plan or design, or as negating the defendant's claim that Mr. Harrell's attack on him was unprovoked.
*134 Id. While situations such as the one before us are specifically excepted from the holding, the question of relevancy still remains to be determined. Self-defense raises the issue of the reasonableness of defendant's belief as to the necessity for, and reasonableness of, the force used to repel an attack upon his person. Id. See also State v. Gladden, 279 N.C. 566, 184 S.E.2d 249 (1971). Here, the fact that defendant pointed his gun at Danny does not indicate that three years later he did not fear Danny or "make the apparent necessity to defend himself more or less probable than it would be without the evidence." State v. Morgan, supra. Thus, it was error to allow testimony of this extrinsic act of misconduct in order to show defendant's character for violence and that therefore he must have acted in conformity with that character, and not in self defense, when he shot Danny Lee Smith.
Defendant also takes exception to a number of other instances in which the trial court allowed testimony of prior bad acts. Although only part of these were objected to at trial and brought forward as exceptions to support the assignment of error, it would seem that counsel had ceased to object because of the apparent futility of it. We find that the pattern of objections constitutes a continuing objection to the line of questioning with respect to bad acts. Therefore, we will consider all of these acts, some brought out on cross-examination of defendant and some testified to by the State's witnesses.
First, evidence indicating that at one time or another defendant shot the following items: an alarm clock; his motorcycle; a windowpane, wall, floor, bathroom mirror, antenna and meterbox of Ms. Moser's trailer. In addition, when he shot into her garden to scare some chickens away, he shot through the trees in the direction of a neighbor's house. The second type of evidence of bad acts concerns defendant's guns. The prosecutor asked defendant if he had told someone that he could take one of his own ordinary guns "and put a crank on it so you could fire it like a Gatling gun and fire it with a crank?" Over objection, defendant was required to answer that he had purchased a crank at Pop's Gun Shop in Mount Airy. The prosecution also inquired in great detail into the number and types of guns defendant owned. Another incident concerned defendant's reaction to his fiancee's death in a car wreck years before. The prosecution asked if he had found the two men who had caused the accident and thrown them into a pond. This line of questioning was pursued for some time although defendant denied any knowledge that the wreck was anything other than a single-car accident.
As discussed supra, evidence of prior wrongs cannot come in to show the character of a person and that he acted in conformity with that character. Rule 404(b). Here, each of these incidents was clearly relevant to no other issue than to show that the defendant was a violent man and therefore must have been the aggressor on 14 August when he shot and killed Danny Smith. All of this evidence was in direct contravention of Rule 404(b) and the trial court erred in allowing it.
We now consider whether admission of these extrinsic acts was prejudicial: whether there is "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial." N.C.Gen.Stat. § 15A-1443(a) (1983). First, we note the sheer numbers of extrinsic acts of violence which were allowed into evidence: there were at least fourteen separate acts just involving shots fired by the defendant. Nor were the acts quickly brought up and then passed over. Testimony concerning several of the incidents was considerably drawn out; for example, the prosecution questioned two of its own witnesses as well as cross-examined the defendant concerning the incident when Ben pointed the gun at Danny and then fired into the air. Moreover, the State introduced pictures of several items which had been shot and even introduced the motorcycle itself. Nor can we say that the error was harmless in light of other evidence properly admitted at trial. *135 The State's primary evidence is the testimony of Hazel Moser regarding the events of 14 August. Although an eyewitness to the incident, she is the victim's mother; without inadmissible evidence of defendant's prior acts and the prejudice resulting therefrom, it is reasonable to infer that the jury could have chosen to believe defendant's version of the events. Due to the incendiary nature of the evidence improperly admitted, and the emphasis placed on that evidence at trial, we find that its admission was prejudicial error requiring a new trial.
Of defendant's remaining assignments of error, we need address only one: his contention that the trial court erred in failing to order ex mero motu a new trial based on improper portions of the State's argument to the jury. Defendants excepts primarily to the prosecutor's repeated referral to defendant as an educated man who comes in from another city to live with ordinary people to whom he considers himself superior. We quote from some of the exceptions set forth:
(1) Did he have respect for him? Now, I don't know how to put this, ladies and gentlemen of the jury, other than and I don't mean to offend the family of the victim. But there is something here, ladies and gentlemen of the jury. There's a difference here, isn't there? And I think it makes the difference in this case. On the one hand you've got this fellow here that came to them from somewhere else, Hendersonville or whereever.... And, I don't know how to say it but other than I've got a feeling that he would love for you to feel just like he did, that life of Danny Smith wasn't worth that much.... He probably never did consider Danny Smith himself worth a whole lot.
(2) If you're going to find the truth about it, you don't have to ride along on your white horse and be a planter and a genteel pilot and anything else.
(3) But somehow I get the feeling that Mr. Mills is put out by the fact that we're trying so hard in this case. `Well, they're trying to convict me, I believe. They're serious. Well, I'm an educated man. I'm a college man. Was Danny Smith's life worth all of that? Should he have got on me so hard over Danny Smith?' Don't you all get that feeling? That's his attitude about this case.
(4) I'm Ben Mills. I can shoot him down. I'm above these people over there....
(5) But nobody is in favor of first degree murder. I don't care if it's a Southern Planter that's done it and he done plum shot him down, Mr. Mills, or the sorriest, low-down dog that ever came into the county that done it.
(6) Maybe Mr. Genteel Planter over here didn't want to get his little pinky finger dirty pulling the trigger.
(7) Put yourself in his shoes. That's what his lawyers want you to do. Put yourself in there. Crawl right on in there and you'd be hot stuff. Imagine yourself.
(8) Why didn't they put up somebody besides Mr. Genteel over here to tell you about that?
In addition, the prosecutor stated several times that defendant lied or would lie.
The general rule in this State is that counsel must be allowed wide latitude in his argument to the jury, State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975), and counsel may "argue all the law and facts that are in evidence and all reasonable inferences to be drawn therefrom." Id. In the case at bar, counsel's argument was clearly improper. First, its factual basis is faulty. Second, even if such statements were factually accurate, there is nothing to support the inference that defendant's rationale for killing Danny wasas the prosecutor put it"`I'm Ben Mills. I can shoot him down. I'm above these people over there....'" Clearly, the purpose of this line of argument was to incite the prejudices of the jurors against the defendant was therefore improper, and should not have been allowed.
For the reasons stated above, we find that defendant is entitled to a
New trial.
BECTON and ORR, JJ., concur.