State v. Higgins

Judge WHICHARD

dissenting.

The majority opinion holds that evidence such as that in question is inadmissible to show motive to commit a robbery or a larceny. I believe the law is to the contrary.

It is that “[t]he existence of a motive is ... a circumstance tending to make it more probable that the person in question did the act, hence evidence of motive is always admissible where the doing of the act is in dispute.” 1 H. Brandis, North Carolina Evidence § 83, at 304 (1982). This Court has held that “evidence of [a] defendant’s financial condition was relevant [and admissible] to show a motive for embezzlement.” State v. Pate, 40 N.C. App. 580, 585, 253 S.E. 2d 266, 270, cert. denied, 297 N.C. 616, 257 S.E. 2d 222 (1979). Our courts also have allowed evidence that defendant needed money to be introduced as a motive for robbery, State v. Cain, 175 N.C. 825, 832, 95 S.E. 930, 933 (1918), and larceny, State v. Walker, 6 N.C. App. 740, 743, 171 S.E. 2d 91, 93 (1969).

I do not agree with the statement in the majority opinion that application of the foregoing rule to the facts here stretches the rule. I believe, instead, that the majority opinion attempts to gloss the established rule in a manner which implicitly overrules numerous prior cases, including those cited above.

I agree that the context in which the evidence was admitted is troublesome. It was initially offered to impeach the witness, a purpose for which the State concedes it was inadmissible. The trial court then assumed the role of coach to the prosecution, suggesting that the evidence be offered for other purposes. The effect of admitting the evidence at this juncture was to allow the prosecution to accomplish indirectly what, it could not accomplish directly.

*21Nevertheless, “the incompetency [of evidence] for one purpose will not prevent its admission for other and proper purposes.” 1 H. Brandis, North Carolina Evidence § 79, at 292 (1982). For reasons indicated above, I believe the evidence would have been proper, as a part of the State’s case in chief, to show motive. The trial court thus had discretion to permit its introduction at any time prior to the verdict. G.S. 15A-1226(b).

While the trial court’s gratuitous assumption of the role of coach to the prosecution is of questionable propriety, I am unwilling to raise the impropriety, if any, to the level of an abuse of discretion. I therefore respectfully dissent, and vote to find no prejudicial error in the trial.

There was no evidence that defendant was hired or paid to commit the offense. It was thus improper for the court to find, as an aggravating factor, that the offense was committed for pecuniary gain. State v. Thompson, 309 N.C. 421, 422, 307 S.E. 2d 156, 158 (1983); State v. Abdullah, 309 N.C. 63, 77, 306 S.E. 2d 100, 108 (1983). The case should, on that account, be remanded for resentencing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E. 2d 689, 701 (1983).