IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-500
Filed: 18 February 2020
Wake County, No. 15CRS222097
STATE OF NORTH CAROLINA
v.
JAMAR MEXIA DAVIS, Defendant.
Appeal by Defendant from judgment entered 7 November 2018 by Judge A.
Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 13
November 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Terence D.
Friedman, for the State-Appellee.
Office of the Appellate Defender, by Assistant Appellate Defender Amanda S.
Hitchcock, for the Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from judgment for felony habitual driving while impaired,
entered after a jury found Defendant guilty of misdemeanor driving while impaired,
and Defendant stipulated to having been convicted of three prior offenses involving
impaired driving. Defendant argues that the trial court erred when it refused to give
a limiting jury instruction concerning Defendant’s prior convictions and asks this
Court to review sealed personnel records to determine whether the trial court failed
STATE V. DAVIS
Opinion of the Court
to provide him with information material and favorable to his defense. We discern
no error.
I. Background
On 4 October 2015, Defendant Jamar Mexia Davis was arrested for driving
while impaired (“DWI”). On 15 December 2015, a grand jury indicted Defendant for
misdemeanor driving while impaired, felony habitual driving while impaired, driving
while license revoked, and transporting an open container of an alcoholic beverage
after consuming alcohol.
On 10 May 2016, prior to a trial on all the charges (“first trial”), Defendant
filed a motion to release personnel records, seeking the release and in camera review
of the arresting officers’ personnel records to determine whether they contained any
impeachment evidence. The State did not object to Defendant’s motion. That same
day, the trial court entered an order compelling the production of the personnel
records for in camera review. On 9 June 2016, the trial court entered an order
denying release of the personnel records (“Order Denying Release”) because, after
reviewing the records in camera, the trial court determined the records did not
contain material that was “favorable and material” to Defendant. The trial court
ordered that the records not be disclosed and ordered them to remain under seal.
On 15 August 2016, Defendant’s case came on for trial in superior court. The
jury found Defendant guilty of driving while license revoked and transporting an open
-2-
STATE V. DAVIS
Opinion of the Court
container of alcohol. The trial court declared a mistrial on the charges of
misdemeanor DWI and felony habitual DWI after concluding the jury was “hopelessly
deadlocked.”
Defendant appealed the Order Denying Release and his convictions for driving
while license revoked and transporting an open container of alcohol to this Court. On
6 March 2018, this Court found no merit in Defendant’s appeal of the Order Denying
Release and affirmed his convictions. State v. Davis, COA17-615, 2017 WL 3222366,
at *11 (N.C. Ct. App. Mar. 6, 2018) (unpublished).
On 5 November 2018, Defendant was retried on the charges of misdemeanor
DWI and felony habitual DWI (“second trial”). On 6 November 2018, the jury found
Defendant guilty of misdemeanor DWI. Defendant stipulated to attaining three prior
DWI convictions within the past 10 years. The trial court arrested judgment on the
misdemeanor DWI conviction and entered judgment and commitment on the felony
habitual driving while impaired, and sentenced Defendant to an active term of 19 to
32 months’ imprisonment. From entry of this judgment, Defendant gave notice of
appeal in open court.
II. Discussion
Defendant (1) argues that the trial court reversibly erred by refusing his
request to give a limiting instruction to the jury that evidence of Defendant’s prior
convictions be used for purposes of truthfulness only and (2) asks this Court to review
-3-
STATE V. DAVIS
Opinion of the Court
the sealed personnel records to determine if the trial court, after its in camera review,
failed to provide him with information material and favorable to his defense.
1. Refusal to Give Limiting Instruction
Preservation of Argument for Appellate Review
As a preliminary matter, we first address the State’s contention that
Defendant failed to preserve this issue for appellate review because he failed “to
object on any relevant grounds during [his] own testimony about his prior convictions
. . . .” However, the State mischaracterizes Defendant’s argument on appeal.
Defendant does not argue that the testimonial evidence of his prior convictions was
improperly admitted, but instead argues that the trial court erred by refusing his
request to give a limiting instruction to the jury regarding his prior convictions.
At the charge conference, Defendant requested the trial court give North
Carolina Pattern Jury Instruction 105.40 in its pattern form. The trial court refused
to give the instruction in its entirety. Defendant objected and the trial court noted
his objection. Defendant’s request and objection were made “before the jury retire[d]
to consider its verdict, [and] stat[ed] distinctly that to which objection [was] made
and the grounds of the objection . . . .” N.C. R. App. P. 10(a)(1)(2). The issue of
whether the trial court erred in refusing Defendant’s request for a limiting
instruction is thus preserved for this Court’s review.
Analysis
-4-
STATE V. DAVIS
Opinion of the Court
Defendant argues that the trial court erred by failing to instruct the jury
regarding North Carolina Pattern Jury Instruction 105.40, “Impeachment of the
Defendant as a Witness by Proof of Unrelated Crime.” This instruction reads:
Evidence has been received concerning prior criminal
convictions of the defendant. You may consider this
evidence for one purpose only. If, considering the nature of
the crime(s), you believe that this bears on the defendant’s
truthfulness, then you may consider it, and all other facts
and circumstances bearing upon the defendant’s
truthfulness, in deciding whether you will believe the
defendant’s testimony at this trial. A prior conviction is
not evidence of the defendant’s guilt in this case. You may
not convict the defendant on the present charge(s) because
of something the defendant may have done in the past.
N.C.P.I.—Crim. 105.40 (2018).
“Whether a jury instruction correctly explains the law is a question of law . . . .”
State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (2010). Questions of law
“regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196
N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
“A limiting instruction is required only when evidence of a prior conviction is
elicited on cross-examination of a defendant and the defendant requests the
instruction.” State v. Gardner, 68 N.C. App. 515, 522, 316 S.E.2d 131, 134 (1984),
aff’d, 315 N.C. 444, 340 S.E.2d 701 (1986) (citations omitted). Where evidence of prior
convictions is elicited “as part of defendant’s defense . . . , the trial judge [is] not
required to give a limiting instruction.” Id. at 521-22, 316 S.E.2d at 134 (“[D]efendant
-5-
STATE V. DAVIS
Opinion of the Court
testified on direct examination that he had been convicted of common law robbery in
1980 . . . . Since evidence of this prior crime was elicited as part of defendant’s defense
and . . . was . . . for the purpose of clarifying an issue raised by defendant, the trial
judge was not required to give a limiting instruction.”).
In State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11 (2003), defendant was
not entitled to a special instruction limiting consideration of his testimony regarding
his prior conviction to his “truthfulness” where defendant “initially offered this
testimony on direct examination[.]” Id. at 124, 588 S.E.2d at 16.
The record show[ed] that defendant Jackson took the stand
and voluntarily testified upon direct examination
concerning his prior crimes and convictions. Defendant
Jackson’s counsel asked the questions that elicited his
responses. Defendant Jackson was not impeached on these
prior crimes and convictions. He voluntarily admitted
them, presumably to remove the sting before the State
impeached him.
Id. at 124, 588 S.E.2d at 15-16.
Here, as in Gardner and Jackson, Defendant took the stand and testified upon
direct examination concerning his prior convictions as follows:
[Defendant’s Attorney]: Who was driving?
....
[Defendant]: Nick was driving the whole time. See, I don’t
drive because, honestly, I have priors.
....
[Defendant’s Attorney]: Why [were you in the driver’s
seat]?
-6-
STATE V. DAVIS
Opinion of the Court
[Defendant]: Because I thought about driving, but I teach
kids now and it’s very important that one of the things we
talk about is making the right decision. And for me, it’s the
wrong decision to drive at any point in my life right now,
especially after consuming any amount of alcohol.
....
[Defendant’s Attorney]: All right. Where -- why -- when
the police arrived, you seemed a bit disoriented. What was
causing that?
[Defendant]: Well, I had made the decision long before
Officer Simon came not to go anywhere, to make
arrangements to get picked up. I know better at this point
in my life. So decision had been made not to drive. Period.
And so I sat in the car. I wasn’t -- it was a rain storm. And
I was making arrangements for a friend to come -- I don’t
have Uber -- called Darnell. He wasn’t answering the
phone. I was talking on the phone to a previous friend, but
she lives in Chicago. But I fell asleep making
arrangements to get picked up some kind of way.
....
[Defendant’s Attorney]: Well, at the back of the car, the
video shows you at some point leaning against the car.
Why did you do that?
[Defendant]: Well, I was out there for a while talking to the
officers. I understand that when they approached me,
what it looks like. And I also understand that in my past
experiences with -- with who I am and my background, my
experience with law enforcement is different. Maybe -- I
don’t know how many people can relate, but it’s very
different, which is why I took the stand to tell you guys I
didn’t answer too many questions, because they have a
tendency to misspeak as they call it. Not anything against
the officers. I can’t really explain why that is. But I don’t
hold any ill will towards the officer. And I would hope that
he doesn’t have any ill will towards me. But I took the
stand to let you guys know that the truth is that I made the
right decision that night not to go anywhere. And it’s
through my experiences that I have had with law
-7-
STATE V. DAVIS
Opinion of the Court
enforcement that I did not want to talk to the officers about
that.
....
[Defendant]: I will let the jury know that I am before you
today in the presence of a higher server speaking the
honest truth, and I had made the decision not to drive that
night. Absolutely. Unequivocally. And that’s what you
found me in a deep sleep with -- you know, sometimes I
might drool depending on how tired I am. I’m a man with
-- I’m not perfect. And I want you to know that I do have
prior DUI convictions. I have driven without a license
before. I have another charge of sneaking into a movie
theater, it’s called defrauding [an] innkeeper.
....
[Defendant]: This is relevant because I want to know -- I
want you guys to know that I have been very truthful. . . .
Defendant’s counsel asked the questions that elicited Defendant’s responses.
Defendant voluntarily admitted to his prior convictions, using them as a basis to
explain why he did not drive on the night in question and why he refused to answer
the officers’ questions. On appeal, Defendant specifically asserts that he offered this
testimony at trial as an “important defense strategy of preempting a damaging cross-
examination[.]” Accordingly, Defendant was not entitled to the North Carolina
Pattern Jury Instruction 105.40 limiting consideration of his testimony regarding his
prior DWI convictions to his “truthfulness[.]” Gardner, 68 N.C. App. at 521-22, 316
S.E.2d at 134; Jackson, 161 N.C. App. at 124, 588 S.E.2d at 15.
On cross-examination, the State asked Defendant:
[State]: Well, can you tell the Court what have you been
convicted of in the last ten years, felonies or Class 1 or 2
-8-
STATE V. DAVIS
Opinion of the Court
misdemeanor or A-1 misdemeanor, that carries a
maximum punishment of 60 days or more.
[Defendant]: Can I tell the Court what?
[State]: Can you tell the Court what your convictions are in
the past ten years that carry a maximum punishment of 60
days or more?
[Defendant]: If you know them, you can show the Court.
[State]: So were you convicted of driving while impaired,
level 5, on September 7, 2006, in New Hanover County?
[Defendant]: Yes.
[State]: Were you convicted of defrauding an innkeeper on
September 11, 2006, in Durham?
[Defendant]: I’m not aware of that charge.
[State]: And driving while license revoked, failing to stop –
driving while license revoked, September 12, 2006, in
Orange County?
[Defendant]: Yes. You can read everything, which has led
to this present point of me making good decisions at this
point in my life.
[State]: And driving while license revoked on May 1, 2007,
in Durham?
[Defendant]: 2007.
[State]: And obtaining a driver’s license by fraud on July
17, 2008, New Hanover?
[Defendant]: Yes.
[State]: Driving while license revoked, December 8, 2009,
in Durham?
[Defendant]: You can just read everything, and I’ll agree to
anything that you read as far as my previous history. I’m
not afraid of my past. I have learned from my past.
[State]: And driving while license revoked April 13, 2010,
in Sampson County?
[Defendant]: (No audible response.)
-9-
STATE V. DAVIS
Opinion of the Court
[State]: Do you admit you were convicted of that?
[Defendant]: Yes, I admit it.
[State]: And driving while license revoked, May 3, 2013, in
Wake County?
[Defendant]: Yes, I admit it.
[State]: And driving while license revoked -- excuse me.
Driving while impaired, July 18, 2015, in Wake County?
[Defendant]: Yes.
[State]: And driving while impaired on April 13, 2010, in
Sampson County?
[Defendant]: Yes.
[State]: And you admit to all those prior convictions in the
past ten years?
[Defendant]: Absolutely.
This exchange confirmed what Defendant had earlier stated on direct
examination: “I have priors” and “I do have prior DUI convictions. I have driven
without a license before. I have another charge of sneaking into a movie theater, it’s
called defrauding [an] innkeeper.” The State’s cross-examination of Defendant
pertained to the convictions to which Defendant had previously voluntarily admitted,
clarified the dates of the offenses, and was the only time that the State questioned
Defendant about his prior convictions; this limited line of questioning was not
impeachment. See State v. Marslender, 222 N.C. App. 318, 2012 WL 3192640 (2012)
(unpublished) (determining that the questions posed on cross examination, clarifying
the nature of the defendant’s prior convictions, “was the only time the State
questioned [d]efendant about his prior convictions and, . . . we do not construe that
- 10 -
STATE V. DAVIS
Opinion of the Court
line of questioning as impeachment”); see also State v. Nelson, 298 N.C. 573, 598, 260
S.E.2d 629, 647 (1979) (evidence which aids in “clarify[ing] an uncertainty which [the
defendant] had already admitted” is not impeachment). As the State’s clarification
of Defendant’s prior convictions did not constitute impeachment, Defendant was not
entitled to a limiting instruction.
Defendant argues that this Court’s decision in Jackson required Defendant to
make an unfair choice because it forces “defendants to choose between the common
strategy of mitigating a damaging cross-examination about prior convictions and
preserving their right to ask that the evidence of those convictions be limited to its
only permissible purpose.” Defendant thus argues, “that decision should be
overruled.” We are bound by Jackson, and Defendant’s argument that Jackson
should be overruled is misplaced before this Court. See In re Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided
the same issue, albeit in a different case, a subsequent panel of the same court is
bound by that precedent, unless it has been overturned by a higher court.”).
2. Review of Sealed Records
Defendant next asks this Court “to review the sealed records in this case to
determine if the trial court, after its in camera review, failed to provide him with
information material and favorable to his defense.”
Preservation of Argument for Appellate Review
- 11 -
STATE V. DAVIS
Opinion of the Court
The State argues that Defendant failed to preserve this issue for appellate
review because Defendant, in his second trial, failed to move the trial court to review
the officers’ personnel records. Thus, we must first determine whether this issue is
properly before this Court.
A mistrial has the legal effect of “no trial.” State v. Harris, 198 N.C. App. 371,
376, 679 S.E.2d 464, 468 (2009). Thus, when a defendant’s trial results in a hung
jury and a new trial is ordered, the new trial is an entirely separate legal affair from
the original trial, unaffected by the parties’ requests, objections, and motions, and the
trial court’s rulings made therein during the original trial. State v. Macon, 227 N.C.
App. 152, 156, 741 S.E.2d 688, 690 (2013); see State v. Shepherd, 796 S.E.2d 537, 538
(N.C. Ct. App. 2017) (unpublished) (determining that the defendant failed to preserve
an issue for appeal where defendant filed a motion to compel prior to his first trial
which ended in mistrial, did not renew the motion after the mistrial, and did not
object at trial). Accordingly, a defendant may not rely upon a motion made at an
original trial to preserve issues for appeal following his conviction in a subsequent
trial.
Defendant filed a motion to release the officers’ personnel records prior to the
first trial; the first trial ended in a mistrial on the charges of misdemeanor DWI and
felony habitual DWI. There is no record evidence in this appeal that Defendant made
any request or motion asking the trial court to review the officers’ personnel records
- 12 -
STATE V. DAVIS
Opinion of the Court
prior to the second trial. Moreover, Defendant does not claim or argue on appeal that
he moved the trial court prior to his second trial to review the records or that he
requested a review of the records at his second trial. Thus, the motion to release
made prior to his first trial had no effect in the second trial. Shepherd, 796 S.E.2d at
538. As Defendant made no timely request or motion of the trial court, he has failed
to preserve this issue for our review. N.C. R. App. P. 10(a)(1).
III. Conclusion
As Defendant offered evidence of his prior convictions on direct examination as
part of his defense, Defendant’s credibility was not impeached and thus the requested
instruction was not warranted. Therefore, the trial court did not err when it denied
Defendant’s request for a jury instruction limiting the testimony to his truthfulness.
Moreover, because Defendant made no motion to release prior to his second trial and
did not request review at his second trial, he failed to preserve the issue on appeal.
NO ERROR.
Judges TYSON and YOUNG concur.
- 13 -