State v. Gayles

NO. COA13-1005

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA
Buncombe County
v. Nos. 11CRS064748
12CRS000363-64
DEVON ARMOND GAYLES,
Defendant.

Appeal by defendant from Judgments entered on or about 13

March 2013 by Judge Mark E. Powell in Superior Court,

Buncombe County. Heard in the Court of Appeals 23 January 2014.

Attorney General Roy A. Cooper III, by Special Deputy
Attorney General Kay Linn Miller Hobart, for the State.

Appellate Defender Staples Hughes by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-
appellant.

STROUD, Judge.

Devon Gayles (“defendant”) appeals from judgments entered

on or about 13 March 2013 after a Buncombe County jury found him

guilty of one count of second degree murder and one count of

possession of a firearm by a felon. After the jury’s verdict

defendant also pled guilty to having attained habitual felon

status. We conclude that defendant has failed to show

prejudicial error at his trial.
 -2-
I. Background

On or about 9 July 2012, defendant was indicted in Buncombe

County for the murder of Anthony Byron Carter, possession of a

firearm by a felon, and having obtained habitual felon status.

Defendant pled not guilty and proceeded to jury trial.

At trial, the State’s evidence tended to show the following

facts. In the early morning of 24 December 2011, Anthony Carter

and some friends went to an Asheville nightclub called “Hole-N-

Da-Wall.” Defendant was also at the club that night. Slightly

before 2 a.m., Mr. Carter and defendant got into a fight. The

two men were “fussing and cussing at each other” in an apparent

dispute over whether Mr. Carter had spilled beer on defendant.

Mr. Carter shoved defendant and defendant shoved back. Darnelle

Logan, a “bouncer” for the nightclub, stepped in to break up the

fight. He told defendant to leave the club, but instructed Mr.

Carter not to follow until after defendant had left. Despite

Mr. Logan’s instructions, Mr. Carter followed defendant toward

the entrance of the nightclub and began hitting defendant again

in the head.

At this point the witnesses’ stories diverged slightly. One

witness testified that she saw defendant pull a gun out of his

vest and shoot Mr. Carter. Stacey Taylor, one of Mr. Carter’s
 -3-
friends, testified that defendant dropped the gun when Mr.

Carter hit him. Mr. Taylor testified that he tried to step on

the gun, but that defendant gained control of it, stood up, and

fired one shot at Mr. Carter. A third witness testified that

she saw defendant with the gun in his hand and heard the shot,

but did not see where the weapon came from. After being shot,

Mr. Carter stumbled through the front door of the club and

collapsed on the concrete stairs in view of several Alcohol Law

Enforcement Special Agents. Mr. Carter died of a single gunshot

wound to the chest.

After shooting Mr. Carter, defendant ran out of the club

and fled to Cincinnati, Ohio, where he was apprehended nearly

two months later. A detective from the Asheville Police

Department interviewed defendant while he was jailed in

Cincinnati. The detective informed him that he was under arrest

for murder. Defendant gave no statement, but asked, “Who did I

kill?”

Defendant presented evidence in his defense and testified

on his own behalf. Defendant’s testimony largely matched that of

the other witnesses. He testified that he was in the club with a

business associate named “Frog.” Defendant was trying to light

up his “joint” when someone bumped into him, then punched him
 -4-
three or four times in the mouth before a bouncer intervened.

Defendant saw that it was Mr. Carter. Defendant testified that

he knew Mr. Carter as a gang member who “ran the west side,” and

who kidnapped and robbed people. Defendant then tried to leave

the club, but someone “out of nowhere” punched him several more

times, causing him to fall forward. Defendant testified that

when he opened his eyes he saw a gun on the floor and a foot on

the gun, so he grabbed for it. Defendant gained control of the

weapon and stood back up. Mr. Carter punched him one more time

in the face, so defendant raised the gun and fired one shot at

him. Defendant then left the club and threw the gun into a

nearby trash can. Defendant testified that after the shooting

he received threatening messages, so he decided to flee

Asheville and go to Cincinnati.

The jury found defendant guilty of murder in the second

degree and possession of a firearm by a felon. The trial court

sentenced defendant to 219-275 months imprisonment and a

consecutive term of 88-118 months imprisonment. Defendant gave

notice of appeal in open court.

II. Cross-examination on Prior Convictions
 -5-
Defendant first argues that the trial court erred in

permitting the prosecutor to cross-examine him on the details of

his prior convictions. We disagree.

A. Standard of Review

The State contends that defendant’s arguments concerning

the prosecutor’s cross-examination of defendant on the details

of his prior convictions were not properly preserved. Although

defendant did not object when the prosecutor asked twice if he

had been convicted of carrying a concealed .22 caliber revolver,

neither of those questions elicited evidence. The question to

which defendant did object was the one which produced the

evidence he challenges on appeal. The prosecutor’s questions

were not evidence and “[o]rdinarily, the asking of the question

alone will not result in prejudice to the defendant.” State v.

Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Because

defendant did object to the question which produced the

challenged evidence, we hold that defendant’s objection to the

evidence that he had been convicted of carrying a concealed .22

caliber revolver was properly preserved.

The standard of review for admission of
evidence over objection is whether it was
admissible as a matter of law, and if so,
whether the trial court abused its
discretion in admitting the evidence. Abuse
of discretion results where the court’s
 -6-
ruling is manifestly unsupported by reason
or is so arbitrary that it could not have
been the result of a reasoned decision.

State v. James, ___ N.C. App. ___, ___, 735 S.E.2d 627, 629

(2012) (citations and quotation marks omitted).

B. Analysis

It is the rule in North Carolina that for
purposes of impeachment, a witness,
including the accused, may be cross-examined
with respect to prior convictions. . . .
[W]here, for purposes of impeachment, the
witness has admitted a prior conviction, the
time and place of the conviction and the
punishment imposed may be inquired into upon
cross-examination. . . . A showing that the
witness has been convicted of an offense is
a prerequisite to the right to cross-examine
him relative to the punishment imposed.

State v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 824 (1977).

First, defendant contends that the State failed to

establish his prior conviction before asking him about that

conviction. That is not what the law requires. As stated in

Finch, the State may only inquire into the time, place, and

level of punishment imposed relative to an established

conviction. Id. But the State is not required to somehow

establish the conviction before asking the defendant about the

existence of such a conviction. As with any other witness, the

State is free to ask the defendant whether he has been convicted

of a crime other than a Class 3 misdemeanor consistent with N.C.
 -7-
Gen. Stat. § 8C-1, Rule 609, assuming that there is a good faith

basis for such questioning. See State v. Alkano, 119 N.C. App.

256, 263, 458 S.E.2d 258, 263 (“Questions asked on cross-

examination must be asked in good faith.”), app. dismissed, 341

N.C. 653, 465 S.E.2d 533 (1995). The State did not inquire

further into the details of defendant’s prior convictions until

after he admitted them.

Generally, “inquiry into prior convictions which exceeds

the limitations established in Finch is reversible error.” State

v. Rathbone, 78 N.C. App. 58, 64, 336 S.E.2d 702, 705 (1985),

disc. rev. denied, 316 N.C. 200, 341 S.E.2d 582 (1986).

Nevertheless, “when the defendant ‘opens the door’ by misstating

his criminal record or the facts of the crimes or actions, or

when he has used his criminal record to create an inference

favorable to himself, the prosecutor is free to cross-examine

him about details of those prior crimes or actions.” State v.

Bishop, 346 N.C. 365, 389, 488 S.E.2d 769, 782 (1997) (citation

and quotation marks omitted).

Here, defendant testified on his own behalf and attempted

to minimize his criminal record both on direct and cross-

examination. On direct examination, defendant’s trial counsel

asked him what he had been convicted of. Defendant responded,
 -8-
“Just maybe eleven years ago what the judge talked about

earlier.” The prior stipulation that the trial court read to

the jury simply stated that “The State and the defendant

stipulate or agree that the defendant was a convicted felon on

or about December 24, 2011 . . . .”

The State, on cross-examination, then inquired about his

prior convictions:

[PROSECUTOR]: Isn’t it true you were
convicted on April the 29th of 2002 of
felonious carrying a concealed weapon, that
being a .22-caliber revolver out of Berrien
County, Michigan?

[DEFENDANT]: When?

[PROSECUTOR]: April the 29th, 2002 you were
convicted of felonious carrying a concealed
weapon, a .22-caliber, out of Berrien
County, Michigan?

[DEFENDANT]: No.

The State then showed defendant a court record from

Michigan which listed a conviction for carrying a concealed

weapon and asked defendant, over defendant’s objection, again

what type of weapon was listed on the judgment. Defendant

responded “A .22 caliber revolver.” Defendant admitted that he

had been convicted of that charge. The State then asked about a

conviction for possession of a firearm by a felon, also in

Michigan. Defendant attempted to explain what happened that lead
 -9-
to each conviction, stating that someone else was driving his

car with a gun in it, which led to the first conviction, and

that the second firearm was found in his home.

In State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000),

cert. denied, 531 U.S. 1130, 148 L.Ed. 2d 797 (2001), our

Supreme Court addressed similar circumstances. In that case, the

defendant, on direct examination, described a series of prior

convictions, including an assault he described as “getting into

some trouble.” Braxton, 352 N.C. at 193, 531 S.E.2d at 448

(brackets omitted). The Court described the State’s cross-

examination as follows:

On cross-examination the prosecutor
questioned defendant about the misdemeanors
and in an effort to jog defendant’s memory,
mentioned factual details. The prosecutor
also asked if the assault on the officer at
Polk Youth Center was what defendant meant
by “getting into trouble” and whether this
was the incident that caused defendant to be
transferred from Polk Youth Center to
Blanch, a more restrictive facility which
defendant had described on direct
examination. In response to a question by
the prosecutor concerning when he started
the cycle of being continuously in and out
of prison, defendant volunteered information
about stealing a car; and the prosecutor
then asked him who the victim was and if he
was charged with stealing a car. Defendant
responded that he stole a cab and that he
was charged with larceny of a motor vehicle
and robbery. The prosecutor asked what kind
of robbery it was in order to clarify that
 -10-
it was armed robbery and then asked what
type of weapon defendant used. The
prosecutor also cross-examined defendant
about the sequence and timing of the other
murders that defendant had committed.

Id. at 193, 531 S.E.2d at 449. The Supreme Court held that “the

prosecutor did not exceed the proper scope of examination”

because the defendant tried to minimize his criminal history on

direct examination, and the prosecutor only asked about “the

factual elements of the crimes,” not “tangential circumstances

of the crimes.” Id. at 193-94, 531 S.E.2d at 449 (brackets

omitted).

Similarly, here, defendant tried to minimize his criminal

record on direct examination and then denied that he had been

convicted of carrying a concealed weapon when asked on cross-

examination. Most of the details concerning tangential

circumstances of the crimes were offered by defendant without

prompting by the prosecutor. As in Braxton, the prosecutor’s

questions on the type of gun used were part of the prosecutor’s

effort to jog defendant’s memory about a prior conviction he

denied and to counter defendant’s attempts to minimize his

criminal record. See id. at 194, 531 S.E.2d at 449. Therefore,

we conclude that defendant opened the door to the prosecutor’s
 -11-
questions concerning the type of weapon involved with his prior

crimes.

III. Impeachment by Prior Conviction

Defendant next asserts that the trial court erred by

allowing the State to impeach him using prior convictions when

he had stipulated that he was a convicted felon for purposes of

the possession of a firearm by a felon charge. We disagree.

Defendant did not object on this basis at trial, but he

asks us to review this asserted error for plain error. “[B]efore

a ruling can be plain error, it must be error.” State v. Lopez,

___ N.C. App. ___, ___, 723 S.E.2d 164, 168 (2012) (citation and

quotation marks omitted). Even assuming we were to adopt the

reasoning of Old Chief v. United States, 519 U.S. 172, 136 L.Ed.

2d 574 (1997), which defendant principally relies on, it would

not have been error for the trial court to permit the State to

impeach defendant with his prior convictions.1 In Old Chief, the

U.S. Supreme Court specifically noted that “[w]hile it is true

that prior-offense evidence may in a proper case be admissible

for impeachment, even if for no other purpose, Fed. Rule Evid.

609, [Old Chief] did not testify at trial.” Old Chief, 519 U.S.

1
Old Chief concerned the interpretation of the Federal Rules of
Evidence; it does not control our interpretation of the North
Carolina Rules of Evidence. State v. Faison, 128 N.C. App. 745,
747, 497 S.E.2d 111, 112 (1998).
 -12-
at 176 n.2, 136 L.Ed. 2d at 585 n.2. Even in the North Carolina

cases applying Old Chief, we have never held that such a rule

applies where the defendant elects to testify. See generally,

State v. Fortney, 201 N.C. App. 662, 687 S.E.2d 518 (2010),

State v. Little, 191 N.C. App. 655, 664 S.E.2d 432, disc. rev.

denied, 362 N.C. 685, 671 S.E.2d 326 (2008), and State v.

Faison, 128 N.C. App. 745, 497 S.E.2d 111 (1998); but see State

v. Tice, 191 N.C. App. 506, 511, 664 S.E.2d 368, 372 (2008) (in

a case where the defendant did testify, deciding that defendant

failed to show ineffective assistance by failing to raise such

an argument under Old Chief).

Here, where defendant did testify, he was subject to

impeachment on the basis of his prior convictions, even though

he had already stipulated to being a convicted felon for

purposes of the firearm possession charge. See United States v.

Kemp, 546 F.3d 759, 763 (6th Cir. 2008) (holding that the

protection afforded by Old Chief “can recede when a criminal

defendant chooses to testify at trial”). The trial court did not

err in permitting the State to impeach defendant on that basis.

IV. Gang Evidence

Defendant next argues that the trial court erred in

excluding various evidence about gang culture and evidence from
 -13-
other witnesses about the decedent’s gang membership that

defendant asserts was relevant to his claim of self-defense. We

disagree.

Defendant proffered the testimony of Gregory Hestor, a

former officer in the Charlotte-Mecklenburg Police Department’s

Gangs and Firearms Unit, Asheville Police Department detective

Mandy Buchanan, and Sergeant Louis Tomasetti, an Asheville

Police Department gang investigator. Mr. Hestor would have

testified about gang culture, the meanings of gang tattoos, and

their mindset. Detective Buchanan would have testified that one

of the tattoos on Mr. Carter’s chest was a gang symbol. Sergeant

Tomasetti would have testified about Mr. Carter’s tattoos, what

they symbolize, and how one determines whether someone is a gang

member. The trial court excluded all three witnesses’ testimony

as irrelevant. Additionally, the trial court prevented defendant

from questioning Mr. Taylor about Mr. Carter’s gang membership.

The trial court did permit defendant to testify that he had been

informed that Mr. Carter was a gang member who had robbed and

kidnapped people.

Evidence is relevant if it has “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
 -14-
it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401 (2011). Although “a trial court’s rulings on relevancy

technically are not discretionary and therefore are not reviewed

under the abuse of discretion standard applicable to Rule 403,

such rulings are given great deference on appeal.” State v.

Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991),

disc. rev. denied and app. dismissed, 331 N.C. 290, 416 S.E.2d

398, cert. denied, 506 U.S. 915, 121 L.Ed. 2d 241 (1992).

The law in North Carolina is well-
established that, although it may not be
necessary to kill to avoid death or great
bodily harm, a person may kill if he
believes it to be necessary, and he has
reasonable grounds for believing it
necessary, to save himself from death or
great bodily harm. The reasonableness of his
belief is to be determined by the jury from
the facts and circumstances as they appeared
to the defendant at the time of the killing.

State v. Jones, 56 N.C. App. 259, 269, 289 S.E.2d 383, 390

(citations omitted), disc. rev. denied and app. dismissed, 305

N.C. 762, 292 S.E.2d 578 (1982).

Defendant asserts that the proffered testimony was relevant

to his reasonable apprehension of great bodily harm. However,

none of the proffered evidence related to what the defendant

knew about Mr. Carter’s gang membership or character for

violence. The relevant question is what defendant knew or
 -15-
thought about defendant and his history of violence, i.e. “the

facts and circumstances as they appeared to defendant at the

time of the killing.” Id.; see State v. Shoemaker, 80 N.C. App.

95, 101, 341 S.E.2d 603, 607 (“In self-defense cases, the

character of the victim for violence is relevant only as it

bears upon the reasonableness of defendant’s apprehension and

use of force, which are essential elements of the defense of

self-defense. Thus, the conduct becomes relevant only if

defendant knew about it at the time of the shooting.” (citations

omitted)), disc. rev. denied and app. dismissed, 317 N.C. 340,

346 S.E.2d 145 (1986); State v. Brown, 120 N.C. App. 276, 277-

78, 462 S.E.2d 655, 656 (1995) (“In self-defense cases, the

victim’s violent character is relevant only as it relates to the

reasonableness of defendant’s apprehension and use of force . .

. .”), disc. rev. denied, 342 N.C. 896, 467 S.E.2d 906 (1996).

What three police officers and other witnesses knew about gangs

and gang culture, and the significance of Mr. Carter’s tattoos—

of which defendant has never claimed to be aware at the time of

the killing—has no relevance to defendant’s reasonable

apprehension of great bodily harm. Therefore, we hold that the

trial court did not err in excluding the proffered testimony as

irrelevant.
 -16-
V. Impeachment by Prior Inconsistent Statement

Finally, defendant asserts that the trial court erred in

allowing the State to cross-examine him on the basis of

statements he denied making that were contained in a police

report. We hold that although the prosecutor’s questions were

inappropriate, especially in light of the trial court’s

instructions not to ask such questions, defendant has failed to

show prejudice.

The credibility of a witness may be
impeached on cross-examination by
questioning the witness regarding evidence
that appears to be inconsistent with the
testimony of the witness. However,
contradiction of collateral facts by other
evidence is not permitted, as its only
effect would be to show that the witness is
capable of error on immaterial points, and
to allow it would confuse the issues and
unduly prolong the trial.

State v. Kimble, 140 N.C. App. 153, 167, 535 S.E.2d 882, 891

(2000) (citations and quotation marks omitted), cert. denied,

360 N.C. 178, 626 S.E.2d 833 (2005).

While the denial of a conviction may be contradicted by

extrinsic evidence from a public record, the facts surrounding

prior convictions will normally be collateral, and extrinsic

evidence is inadmissible if used solely to contradict the

witness’ denial of such collateral matters. See State v. Dalton,
 -17-
96 N.C. App. 65, 70, 384 S.E.2d 573, 576 (1989) (holding that a

defendant’s denial of a conviction may be contradicted by

introducing public records which prove such a conviction); State

v. Monk, 286 N.C. 509, 517, 212 S.E.2d 125, 132 (1975) (noting

that the prosecutor may cross-examine a defendant “concerning

collateral matters relating to his criminal and degrading

conduct.” (emphasis added)); Kimble, 140 N.C. App. at 167, 535

S.E.2d at 891 (stating that “contradiction of collateral facts

by other evidence is not permitted.”).

Defendant, on cross-examination, claimed that he was

charged with carrying a concealed weapon because he had sold his

car to someone else, who had the gun in the trunk, but was

charged nonetheless because the car was still registered in his

name. The State attempted to impeach defendant by introducing a

police report which stated that defendant had admitted placing

the gun in the trunk. The trial court excluded the report, but

permitted the State to ask defendant whether he had made a prior

inconsistent statement to Michigan police, given that defendant

had attempted to explain away his prior convictions. The

prosecutor then persisted in asking questions while quoting the

exhibit that the trial court specifically ruled inadmissible:

[PROSECUTOR]: Mr. Gayles, I’m going to show
you what’s been marked for identification
 -18-
purposes as State’s Exhibit 42. It reads
“Berrien Township Police Department.” Isn’t
that correct, sir?

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.

[PROSECUTOR]: And on this document it has
your name listed, “Devon Armond Gayles;”
correct?

[DEFENDANT:] Yeah.

[PROSECUTOR]: Date of birth, 11-7-1975?

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.

[PROSECUTOR]: Social Security number 384 --

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.

[PROSECUTOR]: So your name’s on here; true?

[DEFENDANT]: Yeah, I see it.

[PROSECUTOR]: And on the second page of 42
it talks about a .22-caliber revolver?

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.

[PROSECUTOR]: And on this document, the
fourth page says “interview with Devon
Gayles.”

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.
 -19-

[PROSECUTOR]: Isn’t it true the incident
you’re saying that that gun belonged to
somebody else; that’s your testimony?

[DEFENDANT]: Correct.

. . . .

[PROSECUTOR]: So you never told him that
[the gun was yours]?

[DEFENDANT]: No.

. . . .

[PROSECUTOR]: Did you deny making that

statement?

[DEFENDANT]: I didn’t make it.

[PROSECUTOR]: So the highlighted portion I’m
reading is incorrect?

[DEFENSE COUNSEL]: Objection.

COURT: Sustained.

[PROSECUTOR]: And then after “for

protection” --

[DEFENSE COUNSEL]: Move to strike, your

Honor.

COURT: Allowed.

[PROSECUTOR]: And after the quotes, because
it’s got quotes “for protection because a
week ago somebody had tried to rob him.”

[DEFENSE COUNSEL]: Objection.
 -20-
COURT: Overruled.

[PROSECUTOR]: Do you admit or deny saying

that?

[DEFENDANT]: I didn’t.

[PROSECUTOR]: You did not say that?

[DEFENDANT]: No.

. . . .

[DEFENSE COUNSEL]: I would ask for a
limiting instruction that [the prosecutor’s]
questions are not evidence. They’re not to
be considered by the jury as they are not
evidence in themselves.

COURT: I would think the jury understands
that the questions themselves aren’t
evidence. I want to caution you, also, and
I’ll talk about convictions at the end of
the trial. This document that was shown to
[defense counsel] is not in evidence.
There’s no evidence as to where it came
from. Keep that in mind; okay? Mr.
[Prosecutor], please go on.

After the trial court issued its limiting instruction, the

prosecutor continued asking defendant about his Michigan

convictions and the details thereof. Defendant continued to

explain what led to the convictions and minimize his

culpability.

The prosecutor here showed a marked and egregious disregard

for the trial court’s ruling that the Michigan police report was
 -21-
inadmissible by continuing to ask questions about the contents

of that report. If the prosecutor wanted to make an offer of

proof as to the defendant’s responses to his questions by asking

his questions on the record, he should have done so out of the

presence of the jury. Nevertheless, we hold that the

prosecutor’s misconduct was not prejudicial. The trial court

instructed the jury that the prosecutor’s questions were not

evidence and warned the jury not to consider the document that

the prosecutor was reading from as it was not in evidence.

“Generally, when a trial court properly instructs jurors to

disregard incompetent or objectionable evidence, any error in

the admission of the evidence is cured.” State v. Diehl, 147

N.C. App. 646, 650, 557 S.E.2d 152, 155 (2001), cert. denied,

356 N.C. 170, 568 S.E.2d 624 (2002). Further, when a trial court

sustains a party’s objection to an inappropriate question “no

prejudice [ordinarily] exists, for when the trial court sustains

an objection to a question the jury is put on notice that it is

not to consider that question.” State v. Banks, 210 N.C. App.

30, 43-44, 706 S.E.2d 807, 817 (2011) (citation and quotation

marks omitted). Although the instruction perhaps could have

been clearer, we hold that the instruction given by the trial

court not to consider the prosecutor’s questions cured any
 -22-
prejudice to defendant. “If defendant desired a different, more

limiting instruction, he should have requested it at that time.”

State v. Hopper, 292 N.C. 580, 589, 234 S.E.2d 580, 585 (1977).

We do wish to emphasize, however, that such blatant disregard of

a trial court’s ruling as that shown here by the prosecutor is

highly inappropriate.

VI. Conclusion

For the foregoing reasons, we conclude that there was no

prejudicial error at defendant’s trial.

NO PREJUDICIAL ERROR.

Judges HUNTER, JR., Robert N. and DILLON concur.