No. COA12-952 TWELFTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Cumberland)

LATIUS TIRRELL BROWN )

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

INDEX..........................................................ii

TABLE OF AUTHORITIES..........................................iii

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................2

STATEMENT OF THE FACTS..........................................2

ARGUMENT.......................................................11

I. THE TRIAL COURT ERRED BY ALLOWING IMPEACHMENT OF DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE.................................11

II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND SPENDING TIME IN PRISON.17

III. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND IMPROPER CHARACTER EVIDENCE THAT MR. BROWN THREATENED WILLIE SKINNER AND POINTED A GUN AT HIM.............................................24

IV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AFTER THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS............................30

CONCLUSION.....................................................35

CERTIFICATE OF SERVICE.........................................36

ii

TABLE OF AUTHORITIES

CASES

Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 297 (1973)......................35

Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562 (1975)......................31

N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)..........12, 18, 24, 30

State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002)......................29

State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981)..................30, 31

State v. Blankenship, 89 N.C. App. 465, 366 S.E.2d 509 (1988)..................12

State v. Carter, 326 N.C. 243, 388 S.E.2d 111 (1990)......................17

State v. Carter, 357 N.C. 345, 584 S.E.2d 792 (2003), cert denied, 541 U.S. 943, 158 L.Ed.2d 368 (2004).....................22

State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283 (1989)..................15

State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991)......................34

State v. Goodwin, 186 N.C. 638, 652 S.E.2d 36 (2007).......................24

State v. Graham, 200 N.C. App. 204, 83 S.E.2d 437 (2009)..................30

State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009)..........17, 24

iii

State v. Hensley, 77 N.C. App. 192, 334 S.E.2d 783 (1985)..............16, 17

State v. Hester, 330 N.C. 547, 411 S.E.2d 610 (1992)......................35

State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989)......................22

State v. Irby, 113 N.C. App. 427, 439 S.E.2d 226 (1994).................28

State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990)......................27

State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988)......................29

State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988)......................16

State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 112 L.Ed.2d 155 (1990).......................................31

State v. Locklear, 309 N.C. 428, 306 S.E.2d 774 (1983)......................31

State v. Lynch, 334 N.C. 402, 432 S.E.2d 354 (1993)......................31

State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc. rev. denied, 326 N.C. 53, 389 S.E.2d 83 (1990)................27

State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986)..................28

State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986)...............22, 24, 27

State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992)......................34

State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990)......................15

State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984)......................21

iv

State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991)..............12, 14, 16

State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992).......................21

State v. Shelly, 176 N.C. App. 575, 627 S.E.2d 287 (2006).................15

State v. Strickland, 346 U.S. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 139 L.Ed.2d 757 (1998)....................21

Taylor v. Illinois, 484 U.S. 400, 98 L.Ed.2d 798 (1988)......................35

STATUTES

N.C. Gen. Stat. §7A-27(b)......................................2

N.C. Gen. Stat. § 8C-1, Rule 401..........................20, 26

N.C. Gen. Stat. § 8C-1, Rule 403........................21,25,29

N.C. Gen. Stat. § 8C-1, Rule 404(b).....................22,24,26

N.C. Gen. Stat. § 8C-1, Rule 609(b)...........................12

N.C. Gen. Stat. §15A-1443(b)..................................35

v

No. COA12-952 TWELFTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Cumberland)

LATIUS TIRRELL BROWN )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR BY ALLOWING IMPEACHMENT OF DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE?

II. DID THE TRIAL COURT ERR BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND ABOUT SPENDING TIME IN PRISON?

III. DID THE TRIAL COURT ERR BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN POINTED A GUN AT WILLIE SKINNER ON ONE OCCASION AND THREATENED SKINNER ON ANOTHER OCCASION WHERE THIS EVIDENCE HAD NO BEARING ON WHETHER MR. BROWN SHOT CHARLES BOYENS IN SELF-DEFENSE?

IV. DID THE TRIAL COURT ERR BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AND OTHER EVIDENCE TO WHICH THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS?

STATEMENT OF THE CASE Latius Tirrell Brown was tried at the 28 November 2011

Criminal Session of Cumberland County Superior Court before the

Honorable James F. Ammons (Rp. 1) and was convicted by a jury of

first-degree murder in the shooting death of Charles Douglas

Boyens. (Rpp. 4, 68) From judgment entered 8 December 2011,

sentencing him to life in prison without parole (Rpp. 71-72), Mr.

Brown gave notice of appeal in open court. (Rp. 73)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW This appeal is from a final judgment in a criminal case

pursuant to N.C. Gen. Stat. §7A-27(b).

STATEMENT OF THE FACTS In September 2009, federal parolee Charles Boyens died of a

single gunshot wound inflicted by Latius Tirrell “T” Brown in front

of a vacant trailer in Palm Springs Mobile Home Park a few weeks

after Boyens had been banned from the park by the property manager.

Mr. Brown testified he shot Boyens in self-defense during a fight.

No one else witnessed the shooting.

Boyens had been in trouble since an early age, with

convictions for possessing a stolen car and possessing with intent

to sell or deliver cocaine. He was released from federal prison in

December 2008, at age forty, after serving thirteen years for

possessing a firearm. (Tpp 479-85) Under the strict conditions of

his three-year supervised parole, Boyens had to submit to routine

drug and alcohol screening and avoid any kind of trouble. (Tpp 457,

555-57, 590) Boyens was six feet tall; weighed 232 pounds; was very

2

strong, lean, and physically fit; and had a grim reaper tattoo on

his abdomen. He ran and lifted weights daily and could bench press

500 pounds (Tpp 486, 554, 559, 583-84, 592, 658).

In 2002, Boyens met and became involved with Paula Benton, a

white woman seventeen years his senior who worked as a nurse at the

prison. They corresponded and visited for several years. When

Boyens was released, he lived in a halfway house for six months

before moving in with a relative. Benton testified she and Boyens

planned to marry. (Tpp 456, 551-55, 558-59, 582-90)

Boyens and Benton visited every Sunday with Boyen’s sister,

Lillie1. Lillie lived with Willie Skinner at 1717 Nova Glen Road in

Palm Springs Mobile Home Park. (Tpp 456-57, 1021) Ten years older

than her brother (Tp 482), Lillie had medical problems requiring

use of a cane and wheelchair. (Tpp 454, 488-89) Police were called

to Skinner’s trailer regularly Skinner and Lillie were drinking and

fighting, and Skinner assaulted Lillie on more than one occasion.

(Tpp 510-12, 775-78)

Nova Glen Road ends in a cul-de-sac and intersects with Palm

Springs Drive at the other end. The mobile homes along Nova Glen

are angled toward Palm Springs. Two trailers on the cul-de-sac

were vacant that summer. (Tpp 490-92) Skinner’s trailer was near

the cul-de-sac end of Nova Glen. (Tpp 538, 565, 661) Mr. Brown, who

was 36 years old (Tp 1366), lived right across the road from

Skinner at 1710 Nova Glen with his girlfriend and her 8-year-old

1 To avoid confusion, this brief will refer to Charles Boyens as “Boyens” and Lillie Boyens as “Lillie.”

3

daughter. (Tpp 459, 463-64, 1371, 1374-75, 1080-81)

Mr. Brown’s had five vehicles, of which his favorite was a

Tahoe with loud, thumping stereo speakers. To park the Tahoe, Mr.

Brown would go past his trailer, turn around in the cul-de-sac,

pass his trailer again, and back into a space on the side closest

to Palm Springs Drive. He kept a cover over the Tahoe. His black

Mazda pick-up was parked on the street in front of his house. (Tpp

501-02, 1376, 1391, 1395-97, 1405-06)

Before Boyen’s release from prison, Mr. Skinner and Mr. Brown

were on friendly terms. They shared tools, drank beer and helped

each other work on cars, and barbequed together. (Tpp 1381-82,

1458, 1627-28) Lillie disliked Mr. Brown. (Tp 469) She thought he

had an “attitude” and acted like a “thug” and he did not treat

black women as well as white women. She also resented the time he

spent with Skinner. (Tpp 1624-26)

Sometime in the summer of 2009, Skinner introduced Boyens to

Mr. Brown. (Tpp 469, 1380) After Skinner left, Boyens asked Mr.

Brown if Skinner had been putting his hands on his sister. Mr.

Brown said that he did not know, but the police had been over there

once or twice. Boyens told Mr. Brown he had been in prison for

fifteen years and just got out. (Tp 1381)

For reasons somewhat unclear from the record, Boyens took a

dislike to Mr. Brown. Benton disliked Mr. Brown because he would

come over to their family cookouts uninvited and help himself to

beer and food; he acted “like he owned the place.” She said Mr.

Brown and Boyens did not agreed on much, there was “a lot of

4

tension” between them, and Boyens felt Mr. Brown was trying to push

his family around. (Tpp 559-60, 626-28) Lillie testified Mr. Brown

“got along with the fellows.” He and Boyens would speak to each

other, but they were not friends. (Tpp 469-70)

Over defense objections, Skinner described an incident in July

2009 during which Mr. Brown was bothering one of Lillie’s

daughter’s friends and she slapped him. When Skinner told Mr. Brown

to leave her alone and stay out of his yard, Mr. Brown went across

the street and made phone calls and then told Skinner his trailer

“might get shot up” that night. (Tpp 1051-58) Afterwards, Boyens

stopped Mr. Brown in the street one day and told him to keep on his

side of the road and stay away from his family or “we’re going to

have a problem.” (Tpp 1618-19) Skinner testified over objection

that, later that summer, he saw Mr. Brown while riding in a car and

Mr. Brown pointed a gun at him. (Tpp 1059-63) Mr. Brown came to his

house and apologized the next day. (Tp 1064) Henry Kyle, who was

driving the car, testified he saw Mr. Brown raise his hand but he

did not see a gun. (Tpp 1252-57) Skinner said saw Mr. Brown every

day but they never had any other problems. (Tpp 1060, 1064-65)

Mr. Brown testified Boyens confronted him and told him to stay

away from his family or he would hurt him, but he did not know what

he was talking about. (Tpp 1381-83) Boyens began harassing him by

yelling at him, pulling on his car door, or trying to block his way

when Mr. Brown would come and go from the trailer park. This

harassment occurred every time he saw Boyens. (Tpp 1383, 1523-25)

Mr. Brown reported the harassment to Nate Newsome, the manager of

5

the trailer park. Mr. Brown no longer felt free to come and go. He

began watching for Boyens and “ducking and dodging” to avoid him.

(Tpp 1383-84, 1390)

Nate Newsome’s mother, Judy, owned about half the trailers in

the park and managed the park with Nate’s assistance. (Tpp 1349-50)

One day that summer, Skinner came to her holding his ribs and said,

“I can’t take this anymore. Charles hit me and broke my rib.” Then

he started crying. Judy could tell he was in a lot of pain. He said

he just got back from the hospital but no one would take him to get

his pain prescription filled. Judy called her son, Nate, and told

him what happened. (Tpp 1351-58)

Nate Newsome testified Mr. Brown complained to him three

times over about six weeks about Boyens harassing, yelling at, and

provoking him. Mr. Brown said he would go inside when he saw Boyens

and not respond to him. (Tpp 1574-76, 1580-81, 1579-80) Right after

Skinner talked to Judy about Boyens, Nate Newsome told Skinner that

Boyens was banned from the trailer park. (Tpp 1126, 1584-86)

After the ban, Boyens kept coming back. (Tp 1237) About a

month later, Newsome confronted Boyens walking through the park. He

acknowledged he was not supposed to be on the premises but said he

was visiting his family and would not cause any trouble. Newsome

agreed Boyens could stay long enough to eat dinner. (Tpp 1127,

1584, 1594-95) This conversation was at least two weeks before Mr.

Brown’s third and last complaint about Boyens. (Tpp 1596) Newsome

did not see Boyens in the park again. (Tpp 1127, 1584)

Prior to Sunday, 27 September 2009, Mr. Brown had not seen

6

Boyens for three or four weeks. (Tp 1528-29) He spent the day

driving around in the Tahoe listening to music, visiting friends,

and drinking beer and liquor. (Tpp 1390-95, 1397-1402) When he came

home that evening, the sun had set, but it was not quite dark

outside. His windows were down, and his music was playing loudly.

He was “buzzed” from drinking all day. (Tpp 527-28, 1402-04) He was

wearing shorts and a tee shirt and had a gun tucked in the right

side of his waistband. He carried the gun because of recent

robberies and shootings in the area. (Tp 1407)

That afternoon, Boyens and Benton were visiting Lillie and

Skinner. While watching TV and drinking beer, they heard Mr. Brown

arrive with his speakers thumping. He turned around in the cul-de-

sac and backed his truck in beside his trailer as usual. (Tpp 459-

60, 464, 501, 560-62, 1404-07) Boyens said he liked the sound of

Mr. Brown’s speakers and joked about getting some for Benton’s car.

(Tpp 531, 566) Several minutes later, Boyens got up suddenly and

went outside without explanation. (Tpp 465, 469, 473, 503, 566,

611-12) Lillie testified she looked out a back window, saw Boyens

walking around in the cul-de-sac talking on his cell phone, and

assumed he was talking to his daughter. (Tpp 473, 503) Lillie did

not mention Boyens talking on the phone in either of two statements

to the police. (Tpp 519-20)

A few minutes later, Lillie and Benton heard loud voices and

looked out the door. (Tpp 466, 567) Lillie testified Boyens was

leaning against Skinner’s truck, Mr. Brown was in the middle of the

street, and the men were talking. (Tpp 472, 497-99) Although she

7

later told the sheriff she heard a “ruckus” and the men were “head

to toe” (Tpp 544), Lillie testified at trial that there was no

friction between them. (Tpp 472, 523, 528, 543) Benton testified,

however, that the men were “toe to toe” in front of a small dark-

colored pick-up truck over in front of Mr. Brown’s residence and

they were arguing loudly. The men were not near Skinner’s truck.

(Tpp 567, 612-13, 621-23)

When Boyens saw them watching, he made a comment about “nosey

women” and told Benton to bring his beer. (Tpp. 471-72, 567-68,

614) When he came to the gate and took the beer from her, he said,

“Don’t worry. We’re just talking.” Benton went inside. Worried that

Boyens might get in trouble, Benton asked Skinner to go out and get

him. Then there was silence and she decided to check again because

“there was bad blood there.” Benton saw the men “standing there

bowed up” and “bumping chests.” She thought they were acting like

kids cutting up. Believing the argument was over, she went inside.

(Tpp 568-70, 614-19, 624) Boyens was still across the street in

front of Mr. Brown’s truck. (Tpp 671-72)

A few minutes later they heard a gunshot. Benton ran out and

Lillie followed. They saw Mr. Brown run to the Mazda truck from

the direction of the cul-de-sac and drive off. (Tpp 544-34, 570-

71, 643) Running to the end of the cul-de-sac, Benton turned and

saw Boyen’s beer sitting on some cement blocks. She found Boyens

gasping on the ground by the vacant trailer at lot number 1718,

where he often went to urinate. Both Benton and Lillie testified

they saw a small spot of urine on Boyens’ sweat pants near his

8

crotch, but neither of them mentioned it prior to trial. (Tpp 541,

546, 572-76, 579-80, 629-33, 655-56)

Skinner testified that, when Benton first called him to the

door, he saw Mr. Brown and Boyens in the street beside of Skinner’s

Ford Explorer. They appeared to be just talking. (Tpp 1023-25,

1074-76, 1089) A few minutes later, Skinner looked out again. The

men were now closer to Boyens’ car and the cul-de-sac. They were

“bumping chests” and talking, but not fighting. When Benton took

the beer outside, Mr. Brown was across the street leaning on his

truck and Boyens was leaning on his car. They did not appear to be

angry. (Tpp 1025-30, 1078-80, 1090-1104) Skinner testified he did

not see any pushing or arguing (Tp 1089). But his statement to

police said they were pushing each other backwards and forwards and

they were arguing. (Tpp 1134, 1141-44)

Anthony Crosby testified he was drinking beer outside his

mother’s trailer on Palm Springs Drive and saw Mr. Brown and Boyens

arguing loudly in front of Mr. Brown’s truck. Boyens walked away

toward Skinner’s trailer and then walked back to Mr. Brown’s truck.

Then both men walked off, one after the other, and disappeared from

sight behind the vacant trailer. Crosby heard a shot and saw Mr.

Brown return to his truck and drive off. (Tpp 677-78, 683-86, 722-

23) In his statement to police, Crosby said Mr. Brown went behind

the trailer first, followed by Boyens. (Tpp 691-92) He also said he

saw pushing and shoving, but then said he didn’t. (Tp 725) At

trial, he testified he was not sure which man went behind the

trailer first, but he believed Mr. Brown went first. He did not see

9

Boyens touch Mr. Brown but could not see what happened behind the

trailer. (Tpp 692,695-96, 696-97) When cross-examined about

photographs taken from his mother’s yard looking toward Mr. Brown’s

home, Crosby admitted he could not see Mr. Brown’s trailer and said

that defense counsel probably doctored the photograph. (Tpp 707-18)

Mr. Brown testified that he had parked and was putting the

cover over the Tahoe when Charles Boyens approached him and said,

“I told you to leave my family alone. I know you been running from

me. You can’t run no more. I got you now.” Boyens looked angry

and “real scary looking.” Mr. Brown replied that he had not done

anything to Boyens or his family. (Tpp 1407-08) Then Boyens pushed

Mr. Brown, Mr. Brown pushed back, and Boyens pushed him again.

Someone called to Boyens from Skinner’s yard and he walked across

the street. Brown resumed putting the cover on the Tahoe. (Tpp

1408-09) He was facing the Tahoe when Boyens suddenly grabbed him

from behind and dragged him backwards into the street. Mr. Brown

struggled to breathe. When he wiggled free, he was facing Boyens

with his back toward the cul-de-sac. Mr. Brown was frightened and

confused and did not know why he was being attacked. (Tpp 1411-14)

Mr. Brown backed away, but Boyens advanced toward him and

moved to his right, forcing Mr. Brown into the yard of the vacant

trailer. (Tpp 1414-16) In the vacant lot, Boyens swung at Mr. Brown

and stuck him in the forehead. Then Boyens grabbed Brown. As they

tussled, Boyens hit the gun and it fell from Mr. Brown’s waistline.

The gun hit the ground and both men went for it. Mr. Brown snatched

it first and fired one shot as both men were coming back up. Boyens

10

stopped attacking. (Tpp 1415-19) Mr. Brown testified he was scared

and he had to fire because Boyens would have killed him if he got

the gun. (Tpp 1418-20) Upset and intoxicated, he did not know what

to do. He left the Mazda truck at his cousin’s house. After staying

in a vacant trailer several days, he called legal counsel and

turned himself in at the sheriff’s department on 2 October 2009.

(Tpp 1421-40)

Officers found Boyens lying near the front door of the vacant

trailer on the side facing the street. A beer can was on top of a

stack of blocks at the front left corner of the lot. (Tpp 751-52,

756-57, 797; State’s Exh 15) No bushes were near the beer can or

blocking the view of the yard from the road. (Tpp 830-31, 833, 915-

17) A bullet went through the side of the vacant trailer about to

the right of the door about four feet from the ground; its path was

19 to 20 degrees downward. (Tpp 798, 814, 833, 835-37, 943) Boyens

died at about two hours later from a single close-range gunshot

wound to the left side of his forehead. The path of the bullet was

slightly downward and left to right (Tpp 657, 1247-50)

ARGUMENT I. THE TRIAL COURT ERRED BY ALLOWING IMPEACHMENT OF

DEFENDANT WITH PRIOR CONVICTIONS MORE THAN TEN YEARS OLD WITHOUT FINDING OR WEIGHING FACTS TO OVERCOME THE LEGAL PRESUMPTION OF INADMISSIBILITY OF THE EVIDENCE.

Standard of Review: When the trial court fails to make and weigh

findings of specific facts and circumstances justifying admission

of evidence of convictions more than ten years old, the court’s

ruling is reviewed de novo for error of law. See, e.g, State v.

11

Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 164 (1991). Under the de

novo standard, the reviewing court considers the matter anew and

freely substitutes its own judgment for that of the lower court.

N.C. Department of Environment & Natural Resources v. Carroll, 358

N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

Based solely on the fact that the jury had heard testimony

about Charles Boyens’ criminal history, the trial court allowed the

state, over defense counsel’s objection, to attack Mr. Brown’s

credibility by cross-examining him about a conviction in 1998 for

assault on a female and a conviction in 2000 for driving while

impaired. (Tp. 1501) These convictions, which constituted Mr.

Brown’s only criminal record (Rpp 69-70), were more than ten years

old and, thus, presumptively prejudicial and inadmissible for

impeachment purposes. See, e.g., State v. Blankenship, 89 N.C. App.

465, 468, 366 S.E.2d 509, 511 (1988); N.C. Gen. Stat. §8C-1, Rule

609(b). The trial court violated Rule 609(b) by admitting the

convictions without making specific findings and conclusions about

any exceptional circumstances that would overcome the presumption

of admissibility. Because Mr. Brown’s credibility was the crux of

the case, allowing this unfair and improper impeachment was

prejudicial error requiring a new trial.

Before cross-examining Mr. Brown, the prosecutor said he

intended to ask about his prior convictions and the following

discussion took place.

12

MR. HERZOG: Your Honor, we would object to it being outside the ten-year period.

THE COURT: He gave you notice, though?

MR. HERZOG: Yeah.

THE COURT: All right. And how old are they?

MR. COLYER: I would have to find –

MR. HERZOG: Late ‘90’s, ’98, ’99. I don’t have the exact date right now of what he showed me.

THE COURT: All right. You want to be heard?

MR. COLYER: Must have been from ’90 – let’s see, one in ’98 and one in 2000. Sorry. Both of them arose in ’98. One conviction in ’98. One conviction in 2000. The assault on a female was October of ’98 conviction. The DWI, level five, was March of 2000.

THE COURT: Okay.

MR. HERZOG: They are both outside the ten-year limit. We would ask they be excluded.

THE COURT: But he did give you notice.

MR. HERZOG: He did – he told me last week. You know, he was going to bring it up to the Court’s attention so I said –

THE COURT: I believe you asked about some convictions that were outside the ten-year period, too.

MR. HERZOG: No, sir. The only two convictions I asked about were to Mr. Skinner in 2003 and Mr. Skinner in 2005. I don’t remember asking about another conviction. I certainly didn’t ask him about it.

MR. COLYER: There’s documentation for the victim’s conviction.

MR. HERZOG: Yeah, we did do that.

THE COURT: Okay. All right. I’m going to allow it.

(Tpp 1500-01) The court did not ask why the convictions should be

13

admitted, and the state offered no reasons.

Thereafter, the state, over further objections, elicited

testimony from Mr. Brown that he was convicted of assault on a

female in October 1998 and convicted of “driving while impaired,

level five” in March 2000. (Tpp 1504-05) The state elicited from

Mr. Brown, over strenuous objection, that his application for a gun

permit in July 2006 was denied because of these two prior

convictions. Stating, “I’ve done a 403 balancing in my head,” the

court also admitted the permit application showing Mr. Brown

answered yes to a question about whether he was convicted of a

misdemeanor crime of violence. (Tpp 1534-41) During the charge

conference, counsel renewed his objection to this evidence. (Tp

1828) The trial court told the jury it could consider the evidence

in determining whether to believe Mr. Brown’s testimony. (Rp 40)

The court’s failure to find and weigh facts before admitting

Mr. Brown’s convictions more than ten years old was a blatant

violation of Rule 609(b), which prohibits admission of convictions

more than ten years old “unless the court determines, in the

interests of justice, that the probative value of the conviction

supported by specific facts and circumstances substantially

outweighs its prejudicial effect.” Id. This rule creates a

rebuttable presumption that convictions more than ten years old are

more prejudicial than probative of a defendant’s credibility and

should not be admitted. E.g., State v. Ross, 329 N.C. at 119, 405

S.E.2d at 164. Because old convictions are presumptively

inadmissible, the rule imposes strict safeguards against their

14

improper use. State v. Porter, 326 N.C. 489, 509, 391 S.E.2d 144,

157 (1990). “[I]n those rare instances where the use of the older

prior convictions [is] not more prejudicial than probative, the

trial court must make appropriate findings of fact. . . These

findings must concern specific facts and circumstances which

demonstrate the probative value outweighs the prejudicial effect.”

State v. Farris, 93 N.C. App. 757, 761, 379 S.E.2d 283, 285 (1989)

(citations omitted).

This step is not optional. If, as in this case, the court

makes insufficient findings to conduct a careful balancing of

probative value and prejudicial effect, a new trial is required.

Id. The court’s findings must address “(a) the impeachment value

of the prior crime, (b) the remoteness of the prior crime, and (c)

the centrality of the defendant's credibility." State v. Shelly,

176 N.C. App. 575, 582-83, 627 S.E.2d 287, 294 (2006). They should

also address whether the old convictions involved crimes of

dishonesty, demonstrated a continuous pattern of behavior, or were

for crimes of a different type from that for which defendant is

being tried. Id. at 583, 627 S.E.2d at 295. Here, the trial court

made no findings addressing any of these matters and did not

determine that the probative value of the prior convictions

“substantially” outweighed their prejudicial effect. It appears the

court permitted the cross-examination simply as a quid pro quo

because the defense cross-examined Lillie Boyens (without objection

by the state) about Charles Boyens’ criminal history. (Tpp 481)

In Farris, this Court ordered a new trial where the trial

15

court merely said: “The Court will determine that in the interest

of justice, that the probative value of the conviction

substantially outweighs its prejudicial value.” Id. at 760, 379

S.E.2d at 285. See also State v. Ross, 329 N.C. at 120, 405 S.E.2d

at 165 (trial court’s statement “the Court finds that there is

probative value and that in the interests of justice the ten-year

rule is hereby waived” did not sufficiently describe specific facts

and circumstances showing probative value substantially outweighed

prejudicial effect); State v. Hensley, 77 N.C. App. 192, 334 S.E.2d

783 (1985) (findings that 13-year-old convictions were for

“dishonesty type things,” were probative of defendant’s

credibility, and would not prejudice defendant were inadequate).

If the trial court had found facts and weighed the appropriate

factors, exclusion of the evidence necessarily would have resulted.

First, the rationale for permitting impeachment by prior

convictions “is that people who commit certain crimes may not be

credible witnesses." Blankenship, 89 N.C. App. at 467, 366 S.E.2d

at 509. Here, one prior conviction was for assault on a female.

The law is settled that evidence of violent conduct is irrelevant

to a person’s truthfulness. State v. Lamb, 321 N.C. 633, 647, 365

S.E.2d 600, 607 (1988). Likewise, driving while impaired is not a

“crime of dishonesty,” so evidence Mr. Brown was convicted of this

crime was not probative of his credibility as a witness.

Second, because Mr. Brown had no other criminal record, the

evidence "appreciably worsened the jury's view of his credibility."

Hensley, 77 N.C. App. at 196, 334 S.E.2d at 785. Although prior

16

convictions may only be "offered for what they indicate about [the

defendant's] credibility, not for what they indicate about his

character," State v. Carter, 326 N.C. 243, 252, 388 S.E.2d 111, 117

(1990), the jury undoubtedly viewed them as evidence of bad

character which was indicative of guilt. The evidence of a prior

assault conviction was especially prejudicial because Mr. Brown was

on trial for a crime of violence.

Third, use of the old convictions was especially prejudicial

because conflicting evidence pitted Mr. Brown against the

deceased’s sister and girlfriend, both of whom disliked Mr. Brown

and testified about damaging details not included in any of their

pretrial statements. Because no one else witnessed the shooting,

Mr. Brown’s claim of self-defense depended on his credibility, and

any evidence tending to attack Mr. Brown’s character likely weighed

heavily in the jury’s deliberations. The court’s failure to apply

the safeguards required by Rule 609(b) was reversible error

requiring a new trial.

II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL CHARACTER EVIDENCE THAT MR. BROWN WAS HEARD “BRAGGING” ABOUT HAVING KILLED SOMEONE IN THE PAST AND SPENDING TIME IN PRISON.

Standard of Review: Admission of evidence over objection is

reviewed de novo, State v. Hazelwood, 187 N.C. App. 94, 98, 652

S.E.2d 63, 66 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867

(2009), which means the reviewing court considers the matter anew

and freely substitutes its own judgment for that of the lower

court. N.C. Department of Environment & Natural Resources v.

17

Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004). Admission

of evidence under Rule 403 is reviewed for abuse of discretion.

State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156 (2012)

For the alleged purpose of showing that Mr. Brown was not

afraid of Charles Boyens and the shooting was not in self-defense,

the trial court allowed the state to present evidence that Mr.

Brown had “bragged” to Boyens about killing someone in the past and

spending time in prison. This evidence was not only irrelevant to

Mr. Brown’s state of mind at the time of the shooting, but its

meaning was entirely speculative and its prejudicial effect was

overwhelming. Evidence that Mr. Brown said he killed another

person was thinly veiled character evidence that intimated to the

jury he had killed in the past and therefore was probably the

aggressor in this case. Moreover, when Mr. Brown denied talking

about having killed someone and spending time in jail, the state

was bound by his answer and the court should not have allowed

introduce extrinsic evidence to contradict his testimony. Admission

of this evidence was prejudicial error requiring a new trial.

Prior to trial, defense counsel moved to exclude evidence of

Mr. Brown being charged and acquitted of murder in Arkansas in the

late 1990’s. (Rpp 9-10) Mr. Brown testified on voir dire that he

had shot and killed a man in Arkansas when he was 22 years old, he

spent some time in jail, he was tried and asserted self-defense,

and he was acquitted. Mr. Brown denied telling anyone in the

trailer park about the shooting in Arkansas. (Tpp 1463-69)

Relying on rules of evidence and the state and federal

18

constitutions, defense counsel argued that Mr. Brown had been

acquitted of any crime and that all evidence about the Arkansas

incident was irrelevant and inadmissible. The state contended that

evidence Mr. Brown “bragged” about the shooting was admissible

under Rule 404(b) to show he was not afraid of Charles Boyens. (Tpp

1474-92) The trial court ruled that the evidence was admissible

under Rule 403 and that the state could ask Mr. Brown about “what

he may have said” about killing someone and spending time in jail,

but could not ask about the actual charge or the trial. (Tp 1491)

On cross-examination, the state asked Mr. Brown whether he

“bragged to Charles when Lillie and Paula were around” that he had

been in jail before and had shot and killed a man before; if he

“said those things to Charles and the others” to show Charles how

bad he was and that he wasn’t afraid of him; if he was “the one who

mentioned that first before Charles ever said anything about doing

prison time”; if he “said those things to intimidate” residents of

the neighborhood including Charles and his family to show them he

wasn’t afraid of Charles, and if he bragged about his “background

to Charles and these other people.” Mr. Brown answered “no, sir” to

each of these questions. (Tpp 1502-04)

In rebuttal, Lillie Boyens testified that she heard Mr. Brown

brag to Boyens several times about having been in jail and having

shot and killed a man. (Tpp 1620-21) Paula Benton testified that,

during a cookout at Skinner’s house, she and Boyens were sitting at

a table with Mr. Brown and some other people. Boyens was bragging

about the time he served in prison, and Mr. Brown was bragging that

19

he had shot and killed a man and he had spent time in prison.

Boyens “got up in” Mr. Brown’s face and told him he did not believe

a word he said. (Tpp 1608-11)

Admission of this evidence was error because it was not

relevant. The crucial issues for the jury were whether Mr. Brown

believed he was in danger of death or serious harm when he shot

Boyens, whether that belief was reasonable, and whether he was the

aggressor or used excessive force. Relevant evidence is evidence

that makes “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.” N.C. R. Evid. 401. Even if fear of

Boyens or lack thereof was a “fact of consequence” to a

determination of whether Mr. Brown believed he was in danger when

he shot Boyens, boasting about having killing someone in the past

did not make it more or less probable that he was afraid of Boyens.

In fact, any possible significance of the evidence was

entirely speculative. The evidence is unclear as to when the

conversation occurred. Nate Newsome testified the last time he saw

Boyens was at least a month before the shooting (Tp 1586), and Mr.

Brown said he had not seen Boyens for three or four weeks. (Tp

1528-29) Thus, even if the evidence revealed something about Mr.

Brown’s state of mind toward Boyens when he made the statements,

the conversation was too remote in time to reveal what he was

feeling when the shooting occurred. More importantly, reasonable

people could interpret the evidence in different ways. Benton

testified Mr. Brown and Boyens with some other people at one of

20

Skinner’s cookouts and each of them was bragging about his criminal

past. Presumably everyone was drinking. Mr. Brown may simply have

been showing off to Boyens or the other people who were present. Or

he might have been posturing to hide his genuine fear of Boyens. Or

he might have been trying to convince Boyens that he was a tough

guy so that Boyens would leave him alone. These interpretations

were all equally plausible. The jury should not have been allowed

to guess, speculate, or make assumptions about what the evidence

meant. See, e.g., State v. Strickland, 346 U.S. 443, 462, 488

S.E.2d 194, 205 (1997), cert. denied, 522 U.S. 1078, 139 L.Ed.2d

757 (1998) (evidence that required jury to speculate was properly

excluded); State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984)

(insufficient evidence of rape where the jury had to speculate as

to meaning of defendant’s statement).

The evidence also should have been excluded under Rule 403

because Mr. Brown was acquitted of any wrongdoing in the Arkansas

shooting. Rule 403 requires the court to exclude relevant evidence

when its probative value is substantially outweighed by the danger

of unfair prejudice or confusion of the jury. Where the evidence

is about conduct of which the defendant has been acquitted and its

probative value depends on the conduct having been committed, its

relevance is outweighed by its prejudicial effect under Rule 403 as

a matter of law. State v. Scott, 331 N.C. 39, 413 S.E.2d 787

(1992). The jury could not be expected to draw the fine legal

distinction between Mr. Brown killing a man and saying he killed a

man. The trial court abused its discretion by allowing the evidence

21

under Rule 403.

The court also violated the prohibition in Rule 404(b) against

admitting evidence of other conduct to prove bad character and

action in conformity therewith. The state offered the evidence to

show that Mr. Brown was not afraid of Boyens so that the jury would

infer Mr. Brown was the aggressor and did not act in self-defense.

However, the law is settled that, under Rule 404(b), evidence of

violent conduct by the accused toward a third party is not

admissible in a self-defense case because its only logical

relevance depends on an inference that the accused has a propensity

for violence and therefore must have been the aggressor. State v.

Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Finally, even if the cross-examination of Mr. Brown was not

improper, the testimony of Benton and Lillie was improper rebuttal

evidence. When a witness is cross-examined about a collateral

matter, the examiner is bound by the witness’s answers and cannot

contradict them with extrinsic evidence. E.g., State v. Carter, 357

N.C. 345, 353, 584 S.E.2d 792, 799 (2003), cert denied, 541 U.S.

943, 158 L.Ed.2d 368 (2004). Collateral matters “include testimony

contradicting a witness’s denial that he made a prior statement

when that testimony purports to reiterate the substance of the

statement.” State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757

(1989). By cross-examining Mr. Brown about his statements about

killing someone, the state tried to impeach his testimony that he

was afraid of Charles Boyens. Whether Mr. Brown told people that he

killed someone was a collateral matter. Id. When he denied making

22

the statements, the state was bound by his answers and

contradicting him with other evidence was improper. See id.

In a murder prosecution, evidence the defendant killed another

person in the past is the most prejudicial evidence imaginable. The

trial court did not instruct Mr. Brown’s jury not to draw

inferences about Mr. Brown’s character from the evidence.

Moreover, the prosecutor emphasized in closing argument that Mr.

Brown’s alleged bragging was evidence Mr. Brown was the aggressor,

the very purpose for which State v. Morgan prohibited used of the

evidence. The prosecutor began his final summation:

One thing you did not hear from this defense attorney in closing argument was when Mr. Brown was sitting across the table at the picnic table looking Mr. Boyens in the face and said, I’ve done time. I killed a man before, bragging. . . .

. . . .That tells you what this relationship was from the beginning and it was brought on by the defendant. He was afraid of Charles? No, he wasn’t. He was trying to tell Charles I’m bad. . . I’m bad. You don’t scare me.

(Tp 1799) Moreover, the evidence of guilt was weak. The state’s

theory for premeditated murder was that Boyens was urinating and

Mr. Brown took him by surprise. As the state admitted in closing

(Tpp 1730-23), this theory depended on testimony of Boyens’ sister

and girlfriend that Boyens had a small urine stain near the crotch

of his sweatpants, a detail neither witness ever mentioned until

trial and no law enforcement officers saw. No one witnessed the

shooting except Mr. Brown. The state’s own evidence showed that

Boyens went outside when he heard Mr. Brown drive up, that Boyens

23

was across the street arguing with Mr. Brown in front of his truck,

and that Mr. Brown walked to the vacant trailer first. In fact, the

state had so little confidence in its case for first-degree murder

that the prosecutor repeatedly urged the jury to convict Mr. Brown

of voluntary manslaughter. (Tpp 1801, 1806, 1807) Mr. Brown must be

awarded a new trial.

III. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND IMPROPER CHARACTER EVIDENCE THAT MR. BROWN THREATENED WILLIE SKINNER AND POINTED A GUN AT HIM.

Standard of Review: Admission of evidence over objection is

reviewed de novo, State v. Hazelwood, 187 N.C. App. 94, 98, 652

S.E.2d 63, 66 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867

(2009), which means the reviewing court considers the matter anew

and freely substitutes its own judgment for that of the lower

court. N.C. Department of Environment & Natural Resources v.

Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

Although Willie Skinner was not the alleged victim in this

case, the court allowed Skinner to testify that, in July 2009, Mr.

Brown threatened Skinner that his trailer “might get shot up” and

that, on another day, Mr. Brown pointed a gun at Skinner. The state

said this evidence was offered to prove “plan” or “intent” under

N.C. R. Evid. 404(b). However, when a defendant asserts self-

defense, evidence of assaultive conduct toward a third party is not

admissible to show the defendant was the aggressor in the fatal

confrontation. See, e.g., State v. Morgan, 315 N.C. 626, 340 S.E.2d

84 (1986); State v. Goodwin, 186 N.C. 638, 652 S.E.2d 36 (2007).

Allowing the jury to use evidence of threatening behavior toward

24

Skinner as proof that Mr. Brown planned or intended to kill Charles

Boyens violated this rule. A new trial is required.

Following a voir dire hearing at which the state proffered

Skinner’s testimony (Tpp 1032-42), defense counsel described Mr.

Brown’s expected testimony (Tpp 1045-48) and the court heard

arguments of counsel (Tpp 1044-45, 1048-49), the trial court ruled

that the two incidents involving Skinner “happened in close

proximity to the time of the alleged conduct in this trial, [and]

that it is sufficiently similar to show intent and a planned

scheme, system, or design by [sic] the crime charged.” The court

also ruled the probative value outweighed the prejudicial effect

under Rule 403. (Tpp 1049-50)

Skinner testified, over repeated objections by the defense,

that “somewhere around July 2009” Lillie’s daughter and two of her

friends were sitting in Skinner’s truck while Skinner was inside

his trailer. Mr. Brown walked up and began talking to the women.

One of them told him to stop bothering her, but he persisted in

talking to her and she reached over and slapped him. Then she

walked into Skinner’s yard and Mr. Brown followed her. Skinner came

outside and told Mr. Brown not to come in the yard or bother the

ladies. (Tpp 1051-55) According to Skinner, Mr. Brown then went

across the street and made phone calls. He told Skinner that he had

called his cousins and told them that eight men were over there

trying to beat him up. He also told Skinner, “Your trailer might

get shot up tonight.” Skinner called the sheriff. A short time

later, after the sheriff had come by, one of Mr. Brown’s cousin’s

25

drove up and joked with Skinner about the incident. (Tpp 1055-58)

Later that summer, Skinner was riding in a car when he saw Mr.

Brown hanging out with three or four other men at the corner of

Nova Glen and Palm Springs, where the men often gathered to drink

beer and “cut the fool.” Mr. Brown called Skinner’s name and

pointed a handgun at him. Skinner told him to put it down because

it might go off. Mr. Brown turned away as if to put the gun in his

pocket, and the car drove off. (Tpp 1059-63) The next day, Mr.

Brown went to Skinner’s house and apologized. (Tp 1064)

Mr. Brown told the jury he did not threaten Skinner. He

testified that, after the young woman slapped him, one of her

friends grabbed her and said, “I got somebody for you.” Then she

made a call over the speaker phone and Mr. Brown got scared because

he knew Boyens was coming, so he left. (Tpp 1385-88) Mr. Brown

testified that the day he saw Skinner in the car with Kyle, he

waived at them but did not point a gun. (Tpp 1388-90)

Even if Skinner’s evidence were true, the earlier incidents

involving Skinner had no relevance, as the evidence did not tend to

make any “fact of consequence” to the determination of guilt “more

or less probable than it would be without the evidence.” N.C. Gen.

Stat. § 8C-1, Rule 401. Furthermore, because the conduct was of a

criminal nature, its admission was prohibited by Rule 404(b), as

its only possible relevance depended on an improper inference about

Mr. Brown’s character. "[S]ubstantive evidence of a defendant's

past, and distinctly separate, criminal activities or conduct is

generally excluded when its only logical relevance is to suggest

26

defendant's propensity or predisposition to commit the type of

offense with which he is presently charged." State v. Maxwell, 96

N.C. App. 19, 25, 384 S.E.2d 553, 557 (1989), disc. rev. denied,

326 N.C. 53, 389 S.E.2d 83 (1990) (citation omitted).

The "acid test" for admissibility is the logical relevance of

the evidence to the particular purpose for which it is sought to be

introduced. E.g., State v. Jeter, 326 N.C. 457, 461, 389 S.E.2d

805, 808 (1990). The state said the evidence showed plan or intent.

Tpp 1044, 1048-49) Nothing about Mr. Brown’s alleged threatening

conduct toward Willie Skinner indicated defendant planned or

intended to kill Skinner or or proved anything about his state of

mind at the time he shot Charles Boyens. Since Mr. Brown admitted

shooting Boyens but asserted self-defense, the only conceivable

relevance of the evidence was to show that defendant was a hot-head

with probably no more justification for shooting at Boyens than for

threatening Skinner. Yet, the jury was allowed to infer from the

evidence that the Mr. Brown was the aggressor or that his claim of

self-defense was fabricated. That this was the state's real

underlying purpose was reflected by the prosecutor's assertion that

Mr. Brown’s conduct toward Skinner showed his mental state. In

fact, the state offered the evidence for the very purpose

proscribed by Rule 404.

This issue is controlled by State v. Morgan, 315 N.C. 626, 340

S.E.2d 84 (1986). In Morgan, a prosecution for murder, our Supreme

Court held that evidence the defendant pointed a gun three months

earlier at someone other than the alleged murder victim was not

27

admissible to negate the defendant's claim of self-defense. Id.,

315 N.C. at 638, 340 S.E.2d at 92. The proper focus in a self-

defense case is upon the reasonableness of the defendant's belief

in the apparent necessity to use force and the reasonableness of

the amount of force used. The prior conduct against another person

had no bearing on those issues. Id. at 638, 340 S.E.2d at 92.

Similarly, in State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130

(1986), evidence of various prior wrongs of the defendant

ostensibly offered to show premeditation and deliberation,

including an incident in which he pointed a gun at the actual

murder victim three years earlier, was erroneously admitted because

the evidence was logically relevant to no other issue than to show

that the defendant was a violent man and therefore must have been

the aggressor when he killed the victim. See also State v. Irby,

113 N.C. App. 427, 439 S.E.2d 226 (1994) (evidence defendant and

his father fired a gun three years earlier at a different person

was not relevant to whether defendant acted in self-defense or

defense of a family member). These cases demonstrate that the

alleged misconduct of Mr. Brown toward Skinner was inadmissible,

and the fact the state couched its arguments in terms of "intent"

and “plan” does not alter this analysis.

Moreover, the trial court said it was admitting the evidence

because the incidents involving Skinner were close in time to the

death of Boyens and “sufficiently similar” to show intent and plan.

(Tp 1049) This ruling was patently wrong. Admissibility of

otherwise relevant evidence under Rule 404(b) is “contrained by the

28

requirements of similarity and temporal proximity” between the

crime charged and the extraneous conduct. E.g., State v. Al-

Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002). Here, the

sole similarity between the shooting of Boyens and the incident in

which Mr. Brown allegedly pointed a gun at Skinner was Mr. Brown’s

possession of a gun. The sole similarity between the altercation

with Boyens and the alleged verbal threat to Skinner was that Mr.

Brown was involved. There were no similarities that give rise to an

a proper inference of intent or plan.

Assuming, arguendo, that the challenged evidence had some

degree of legitimate probative value, its exclusion was mandated by

Rule of Evidence 403, which required the trial court to weigh its

probative value against the dangers of unfair prejudice, confusion

of issues, and misleading the jury. State v. Jones, 322 N.C. 585,

369 S.E.2d 822 (1988). The evidence was admitted to show that

defendant planned or intended to kill Boyens, grounds for

admissibility that were spurious at best. On the other hand, the

evidence was overwhelmingly prejudicial because it depicted Mr.

Brown as having a propensity for violence and undercut the

credibility of his account of the shooting. This was a clear case

of self-defense. The crucial questions for the jury were whether

Mr. Brown reasonably believed he had to shoot Boyens to protect

himself from serious harm and whether he was the aggressor. Apart

from Mr. Brown’s testimony, the jury had no evidence from which to

determine his mental state at the time of the shooting. The state

used improper character evidence to discount Mr. Brown’s account

29

and convince the jury that he was the aggressor, the very purpose

for which the evidence was patently not admissible. There can be

little doubt the evidence contributed to the jury verdict.

Defendant is entitled to a new trial.

IV. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE ABOUT AGGRESSIVE CONDUCT OF CHARLES BOYENS AFTER THE STATE OPENED THE DOOR BY PRESENTING EVIDENCE OF BOYENS’ PEACEFULNESS.

Standard of Review: A decision concerning whether evidence is

admissible because the opposing party opened the door is reviewed

de novo. See, e.g., State v. Albert, 303 N.C. 173, 277 S.E.2d 439

(1981). The standard of review for violations of constitutional

rights also is de novo. State v. Graham, 200 N.C. App. 204, 214, 83

S.E.2d 437, 444 (2009). Under de novo review, this court considers

the matter anew and freely substitutes its own judgment for that of

the lower court. N.C. Department of Environment & Natural Resources

v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004)

Paula Benton testified on direct examination that Charles

Boyens was not physically violent or aggressive, he was very

private and kept to himself, and he had a reputation for

peacefulness. (Tpp 663-64) Lillie Boyens testified that, although

Boyens had been in trouble with the law, he had gone through his

“tribulations” and “was doing better.” (Tp 456) Although he was her

baby brother, he acted more like her older brother. She described

Boyens as “like a big bear, comfortable, huggable bear. He loved

kids and loved animals, raised little puppies. . . he was just a

loveable guy within himself.” (Tpp 455-56) By introducing this

30

evidence of Boyens’ peaceful character, the state opened the door

to rebuttal character evidence by the defense. The trial court

violated Mr. Brown’s constitutional right to a fair trial by

preventing him from rebutting the state’s character evidence with

evidence of aggressive, intimidating conduct by Boyens toward other

people in the trailer park. This error warrants a new trial.

A defendant charged with a criminal offense has a fundamental

constitutional right to present a defense by confronting adverse

witnesses, presenting evidence, and placing his version of the

facts before the jury. E.g., Faretta v. California, 422 U.S. 806,

818, 45 L.Ed.2d 562, 572 (1975). When a party in a criminal case

offers evidence which raises an inference favorable to its case,

the opposing party has the right to explore, explain, or rebut that

evidence, even if the evidence offered in explanation or rebuttal

would have been incompetent or irrelevant if offered initially.

E.g., State v. Leroux, 326 N.C. 368, 382, 390 S.E.2d 314, 324,

cert. denied, 112 L.Ed.2d 155 (1990). Such rebuttal is permissible

“to correct inaccuracies or misleading omissions” in the evidence

presented by the opposing party or to dispel favorable inferences

arising from that evidence. State v. Lynch, 334 N.C. 402, 412, 432

S.E.2d at 349, 354 (1993).

The trial court erred by preventing Mr. Brown from offering

(1) testimony by Judy Newsome about an incident when Boyens

frightened and intimidated her by approaching and grabbing her

while intoxicated, (2) testimony by Heather Hamilton about in

incident when Boyens intimidated her, and (3) testimony by Nate

31

Newsome that other tenants in the trailer park had complained about

Boyens’ aggressive behavior. This evidence was admissible to

“correct inaccuracies” and “dispel favorable inferences” arising

from the state’s evidence of Boyens’ good character.

Judy Newsome testified on voir dire that the first time she

met Boyens, he stepped out in the middle of the street in front of

her car. Judy stopped and rolled down the window. Boyens came over

and introduced himself. Judy’s son Nate was beside the road

signaling to her to drive on, so she did. (Tp 1277) The next time

Judy saw Boyens, she was cleaning the vacant mobile home behind

Skinner’s trailer and saw Boyens through the window. Boyens came to

the door and said, “I saw you looking at me through the window.”

Judy could tell he had been drinking. She told him she was not

looking at him. Boyens started commenting on her appearance,

rubbing her arm, and reaching for her. Judy was frightened and

intimidated. She told Boyens she needed to go, but he kept her from

closing the door. He reached in to touch her leg and he grabbed and

crushed her arm. When she finally got the door closed, she was

crying. She called Nate and told him what happened. (Tpp 1278-84)

Nate Newsome testified on voir dire that his mother was

frantic when she called him about what happened to Skinner.

Skinner told Nate that Boyens and another person beat him up.

Newsome told Skinner that he had already heard several complaints

about Boyens and that he would not be allowed back in the park.

(Tpp 1296-97) Two or three people complained to Nate near the

beginning of summer about Boyens drinking, being loud and

32

boisterous, stepping out in the street and not letting them pass,

trying to “schmooze” them, engaging in passive-aggressive

intimidation. Mr. Brown complained to Nate about being harassed.

The incident with Nate’s mother “solidified” the other tenant

complaints. (Tpp 1297-99, 1301)

Heather Hamilton testified on voir dire that she lived next

door to Skinner and Lillie and they shared a fence. (Tpp 1307-09)

She had two encounters with Charles Boyens that made her feel

“highly uncomfortable” and harassed. She was outside with her

boyfriend while a barbeque was going on at Skinner’s house. Boyens

were there drinking beer and he stared at her constantly for about

ten minutes. When her boyfriend left, Boyens approached and spoke

to her in a way that made her uneasy, so Hamilton went inside.

Later, she went out to smoke. Boyens came over to the fence

uninvited and started talking to her son. After that day, Hamilton

tried to limit her time outside and kept the blinds closed on the

side of her home facing Skinner’s trailer. (Tpp 1309-16)

Defense counsel also proffered Defendant’s Exh VD-1, a record

of Boyens’ conviction and sentence in federal court and the

conditions of his supervised release. (Tpp 1317-20)

Mr. Brown’s counsel argued the state opened the door to this

evidence because the testimony of Lillie and Benton created a false

picture of Boyens which the defense was entitled to rebut, and

exclusion of the evidence would violate his rights to due process

and confrontation under the sixth and fourteenth amendments and the

state constitution. (Tpp 1326-38) The trial court, applying Rules

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of Evidence 402 and 403, admitted the evidence about Boyens hurting

Skinner but excluded the testimony about Boyens’ conduct toward

Judy Newsome and Hamilton. The court also ruled Nate Newsome could

not testify he received complaints about Boyens from anyone other

than Mr. Brown. The court admitted only the first two pages of

Boyen’s criminal record, concluding the indictment, sentence, and

conditions of probation were not relevant. (Tpp 1342-47)

These rulings were erroneous because the common law rule

allowing admission of otherwise inadmissible evidence to which the

opposing party has “opened the door” trumps the rules of evidence.

For example, in State v. Garner, 330 N.C. 273, 410 S.E.2d 861

(1991), our supreme court held that, because the defendant put on

evidence of his general good character and devotion to his wife,

suggesting that the victim was the troublemaker in their

relationship, the state was entitled to rebut that evidence by

delving into the details of the defendant's prior assaults on his

wife which would otherwise have been inadmissible. Id. at 289-90,

410 S.E.2d at 870. See also State v. Norman, 331 N.C. 738, 417

S.E.2d 233 (1992) (defendant's involvement with other women was

relevant for impeachment because defendant testified he loved his

wife). In this case, the state’s witnesses painted Charles Boyens

as a big, loveable, peaceful teddy bear who was not aggressive,

kept to himself, and did not bother anyone. This picture of Boyens

was inaccurate and incomplete. “Under such circumstances, the law

wisely permits evidence not otherwise admissible to be offered to

explain or rebut evidence elicited by [the state].” State v.

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Albert, 303 N.C. 173, 277 S.E.2d 439, 441 (1981).

Moreover, “[f]ew rights are more fundamental than that of an

accused to present witnesses in his own defense” and to “put before

the jury evidence that might influence the determination of guilt.”

Taylor v. Illinois, 484 U.S. 400, 408, 98 L.Ed.2d 798, 810 (1988).

Due process prohibits applying rules of evidence “mechanistically

to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S.

284, 302, 35 L.Ed.2d 297, 313 (1973)). See, e.g., State v. Hester,

330 N.C. 547, 553, 411 S.E.2d 610, 613 (1992) (error to sustain

State’s objection to questions central to defendant’s case).

When exclusion of defense evidence deprives a defendant of his

constitutional right to present a defense, the state must show the

error was harmless beyond a reasonable doubt. N.C. Gen. Stat, §15A-

1443(b). The state cannot meet that burden. The state’s case for

first-degree murder was weak and the trial court’s evidentiary

rulings were not even-handed. The court let the state introduce a

plethora of highly prejudicial evidence attacking Mr. Brown’s

character and veracity but prevented the defense from presenting

all its evidence of Boyens’ aggressive character. Because the jury

had to decide which one of them was the aggressor, every bit of

this evidence mattered. Mr. Brown must receive a new trial.

CONCLUSION

For the foregoing reasons, Mr. Brown must receive a new trial.

Respectfully submitted, this the 10th day of October, 2012.

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________________________________

Constance E. WidenhouseAssistant Appellate DefenderState Bar #13488connie.e.widenhouse@nccourts.org

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701(919) 354-7210

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I further hereby certify that I served a copy of the above and foregoing Defendant-Appellant’s Brief upon the State of North Carolina by first-class mail, postage prepaid, addressed to Mr. Jonathan P. Babb, Special Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602.

This the 10th day of October, 2012.

_______________________________

Constance E. WidenhouseAssistant Appellate Defender

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