State v. Jackson

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
 -2-
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
 -3-
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
 -4-
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.
 -5-
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
 -6-
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
 -7-
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
 -8-
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).
 -10-
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
 -11-
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, ___
 -12-
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).
 -13-
[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
 -14-
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.
 -15-
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
 -16-
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).
 -17-
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.
 -18-
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).
 -19-
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.
 -20-
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
 -21-
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
 -22-
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.
 -23-
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.
 -24-
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).
 -25-
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.