State v. Lynch
State v. Lynch
Opinion of the Court
Travis Lynch (“defendant”) appeals from a conviction for robbery with a dangerous weapon and second-degree kidnapping. For the following reasons, we grant defendant a new trial.
I. Background
On 16 November 2009, defendant was indicted on one count of robbery with a dangerous weapon and one count of second-degree kidnapping. Defendant was tried on these charges at the 31 January 2011 Criminal Session of Superior Court, Chatham County. The State’s evidence presented at trial tended to show that on 18 June 2009, defendant was driving Michael Nicholas “Nick” White, Rashad Farrar, and Rashad’s sister, Tiffany Farrar, to Siler City, North Carolina when Nick and Rashad began talking about robbing James Tinnin, who owned a clothing store in Liberty, North Carolina and also sold clothes and shoes from his van. Defendant told Nick to get a gun and, after the robbery, they would go back to defendant’s apartment.
After about five minutes, Mr. Tinnin noticed that the man holding the rifle had walked off so he walked back around the house and saw all four individuals “taking stuff out of the van.” Mr. Tinnin yelled at them to stop and defendant, Tiffany, and Rashad ran away with items from the van in their arms. Nick then turned around and pointed the gun back at Mr. Tinnin. Mr. Tinnin ran back down the driveway towards the highway and called 911. As he was in the road talking to the 911 operator, he saw Tiffany and Rashad leave in a car from the neighboring house. Defendant, Rashad, Nick, and Tiffany then went back to defendant’s apartment and later divided up the items taken from Mr. Tinnin’s van. Mr. Tinnin testified that he did not have a gun on his person or in the van. Tiffany Farrar later gave a statement to the sheriffs office regarding the events that occurred, stating that defendant was a participant in the kidnapping and robbery of Mr. Tinnin.
Defendant testified that when Mr. Tinnin, Rashad, and Tiffany arrived in Mr. Tinnin’s van, he was sitting on the porch talking on his cell phone to his girlfriend. Mr. Tinnin, Rashad, and Tiffany exited the van and began arguing. When defendant approached the van to see what the argument was about, Mr. Tinnin reached in his van for a gun. Defendant grabbed Mr. Tinnin and pulled him away from the van to keep him from the weapon. Defendant testified that he then let Mr. Tinnin go and he, Rashad, Nick, and Tiffany ran through the woods to
On 3 February 2011, a jury found defendant guilty of both charges. The trial court sentenced defendant to a term of 51 to 71 months imprisonment for the robbery with a dangerous weapon conviction and a consecutive term of 20 to 33 months imprisonment for the second-degree kidnapping conviction. Defendant gave oral notice of appeal in open court and on 7 February 2011 filed written notice of appeal from the 3 February 2011 convictions. On appeal, defendant contends that he should get a new trial because (1) the trial court violated his constitutional rights to a unanimous jury verdict as to the second-degree kidnapping charge; (2) his trial counsel did not provide him with effective assistance of counsel; (3) the trial court erred by giving an instruction as to aiding and abetting; (4) the trial court erred in not giving an instruction as to self-defense with respect to the charge of second-degree kidnapping; (5) the trial court committed prejudicial error by refusing to admit certified copies of the victim/witness’s criminal records for impeachment of credibility purposes; and (6) the trial court committed plain error and prejudicial error by admitting irrelevant and prejudicial images from a magazine into evidence. We find issue five dispositive.
II. Mr. Tinnin’s Criminal Record
Defendant contends that “the trial court erred by refusing to admit certified true copies of Mr. Tinnin’s criminal records, where the records were critical to impeach Mr. Tinnin’s credibility and Rule 609(a) required the trial court to admit the records.” Defendant argues that Rule 609(a) “permitted defense counsel to impeach Mr. Tinnin by admitting certified true public records of his prior convictions without calling any additional witnesses!)]” the trial court “erred by refusing to admit Defendant’s Exhibit 1” which contained copies of Mr. Tinnin’s prior convictions; and this error was prejudicial to defendant as he was not permitted to show that Mr. Tinnin, the alleged victim and the State’s “most important witness[,]” “had misrepresented his [prior criminal] record to the jury[;]” and had this exhibit been admitted, “there is a reasonable possibility that the jury would have reached a different verdict.” The State, citing State v. Bell, 338 N.C. 363, 383, 450 S.E.2d 710, 720 (1994), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995), counters that “[i]t is not necessary for this Court to decide if there was any error in this case, because any error com
N.C. Gen. Stat. § 8C-1, Rule 609(a) (2009) “Impeachment by evidence of conviction of crime” states that
[ f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class Al, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.1
Our Supreme Court has held that the admission of evidence pursuant to Rule 609(a) is not in the discretion of the trial court as
[ t]he language of Rule 609(a) (“shall be admitted”) is mandatory, leaving no room for the trial court’s discretion. Moreover, while N.C. R. Evid. 609(b) requires a balancing test of the probative value and prejudicial effect of a conviction more than ten years old, this provision is explicitly absent from 609(a). Indeed, the official comments to Rule 609(a) reveal an unequivocal intention to diverge from the federal requirement of a balancing test. N.C.G.S. § 8C-1, Rule 609 official commentary, para. 4 (“Subdivision (a) also deletes the requirement in Fed. R. Evid. 609(a) that the court determine that the probative value of admitting evidence of the prior conviction outweighs its prejudicial effect to the defendant.”).
State v. Brown, 357 N.C. 382, 390, 584 S.E.2d 278, 283 (2003), cert. denied, 540 U.S. 1194, 158 L.Ed. 2d 106 (2004).
The record shows that defense counsel asked Mr. Tinnin questions during cross examination regarding his prior criminal record. At the close of defendant’s case, defense counsel requested to admit defendant’s exhibit 1, which consisted of three prior judgments and a misdemeanor conviction record showing Mr. Tinnin’s prior convictions in 2003, 2006, and 2010 in Guilford and Randolph Counties. Defense counsel stated that Mr. Tinnin’s testimony regarding his prior
We have stated that “[e]ven where the trial court improperly excludes certain evidence, ... a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error.” State v. Black, 111 N.C. App. 284, 290, 432 S.E.2d 710, 715 (1993) (citation and quotation marks omitted). The test for prejudicial error is whether
there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
N.C. Gen. Stat. § 15A 1443(a)(2009).
Defendant testified that he did not participate in any kidnapping or robbery of Mr. Tinnin and, in fact, defendant grabbed Mr. Tinnin because Mr. Tinnin was reaching for a weapon. The only two witnesses who gave statements to the sheriff’s office and testified that defendant was a participant in the kidnapping and robbery of Mr. Tinnin were Mr. Tinnin and Tiffany Farrar. However, Tiffany Farrar also admitted that on the morning of 18 June 2009 she had twice snorted at least a gram of cocaine; that she was under the influence of cocaine the whole day; that she could not remember exactly what was said that day because she was under the influence of cocaine; that she frequently used cocaine and was probably under the influence of cocaine when she gave her statement to the sheriff’s office;
As noted above, on cross-examination, Mr. Tinnin was questioned by defense counsel regarding his prior convictions in 2003, 2006, and 2010. Mr. Tinnin admitted that in 2003 he had been convicted of trafficking cocaine, but claimed that a 2003 conviction for maintaining a dwelling/vehicle for controlled substance in Guilford County was actually the same as his conviction for trafficking. Mr. Tinnin admitted to two 2006 convictions for trafficking in cocaine by possession and a 2006 conviction for PWISD marijuana; denied 2006 convictions for maintaining a dwelling place for controlled substances, felony possession of cocaine, and possession of marijuana; and stated that he did not remember if he had been convicted in 2006 for PWISD cocaine or two counts of felony counterfeit trademark. Mr. Tinnin admitted that he had been convicted in 2010 of misdemeanor use of a counterfeit trademark.
The State cites State v. Bell in support of its argument that defendant was not prejudiced by the exclusion of Mr. Tinnin’s prior convictions, but we find State v. Bell, 338 N.C. 363, 450 S.E.2d 710, distinguishable from the case before us. In response to the defendant’s contention that the trial court erred in refusing “to allow questioning of . . . the State’s key witness, regarding his prior convictions and several prior acts of misconduct allegedly committed by him[,]” the Court in Bell held as to the witness’s prior convictions that “the trial court properly restricted defendant’s questioning of [the State’s key witness] on his prior convictions for breaking and entering and larceny to the time and place of the convictions and the penalties imposed thereon.” Id. at 381-82, 450 S.E.2d at 720. The defendant in Bell was restricted as to the nature of his questioning regarding prior convictions, not whether he could impeach the witness regarding his prior convictions pursuant to Rule 609(a). Here, the defendant sought to present only evidence as to Mr. Tinnin’s convictions and the time and place of these convictions, and not to inquire into the details of
Because defendant was prejudiced by the trial court’s error in denying the introduction of defendant’s exhibit 1 into evidence, we grant defendant a new trial. As we have granted defendant the relief he requested, we need not address the other issues raised in his appeal.
NEW TRIAL.
. The ten year time limit in N.C. Gen. Stat. § 8C-1, Rule 609(b) is not applicable because the oldest prior conviction in defendant’s exhibit 1 was from 2003.
. A conviction for misdemeanor criminal use of a counterfeit trademark pursuant to N.C. Gen. Stat. § 80-11.1(b)(1) (2009) is a class 2 misdemeanor and would be admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 609(a).
Dissenting Opinion
dissenting.
The majority grants defendant a new trial by finding prejudice in the trial court’s denial of a defense exhibit containing a witness’s record of convictions. Because the record does not contain evidence that would establish prejudicial error, I respectfully dissent.
First, assuming it was error for the trial court to deny, pursuant to N.C.G.S. § 8C-1, Rule 609(a), defendant’s request to admit certified public records of Mr. Tinnin’s prior convictions, that error was not prejudicial.
It is well established that
[ e]ven where the trial court improperly excludes certain evidence, moreover, a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error. The test for*463 prejudicial error is whether a different result would have been reached if the error had not been committed.
State v. Black, 111 N.C. App. 284, 290, 432 S.E.2d 710, 715 (1993) (citations omitted).
The majority contends that “the jury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin’s prior convictions,” and therefore, defendant was prejudiced such that defendant should be granted a new trial. I disagree with the majority’s reasoning and the result they reach.
Defendant was charged and convicted by a jury of robbery with a dangerous weapon and second-degree kidnapping. Mr. Tinnin was the prosecuting witness for the state and the victim of the crimes for which defendant was charged. On the witness stand under cross-examination by defendant, Mr. Tinnin admitted to his prior convictions of maintaining a dwelling/vehicle for the use of controlled substances; trafficking in cocaine by manufacturing; trafficking in cocaine by possession; possession with intent to sell or deliver marijuana; and, misdemeanor use of a counterfeit trademark. However, defendant did not attempt to impeach Mr. Tinnin directly during his cross examination. Instead, after defendant had rested his case, defendant was allowed to mark the exhibit for identification, then attempted to have it admitted.
Defendant’s Exhibit 1 includes four documents certified as true copies of Mr. Tinnin’s criminal record. These four documents represent four judgments dated 20 May 2003, 11 September 2006, 12 September 2006, and 11 March 2010. These four judgments represent twelve to thirteen felonies
Even if one views Mr. Tinnin’s testimony as the only critical testimony at trial, the record cannot support a determination that Mr. Tinnin’s credibility would have been impeached to the point of total erosion by admission of the exhibit. There is no reasonable possibility that the jury, which apparently believed Mr. Tinnin notwithstanding his criminal record of drug possession, drug trafficking, maintaining a vehicle/residence for drugs, and use of a counterfeit trademark, would not have believed him had they known that he had plead guilty to additional crimes of the same type as he admitted at trial.
However, Mr. Tinnin’s testimony was not the only critical testimony. While Mr. Tinnin was the chief prosecuting witness and the victim of the crimes charged against defendant, Mr. Tinnin’s testimony was only a portion of the evidence before the jury. Prior to Mr. Tinnin’s testimony the jury heard from two law enforcement officers from the Chatham County Sheriff’s Office — -Patrol Sergeant Brian Phillips and Detective Sergeant David Green, who responded to Mr. Tinnin’s 911 call for assistance, reporting he had been robbed. Those officers testified at trial to Mr. Tinnin’s demeanor as Mr. Tinnin described what he had just experienced — very nervous, agitated, incredulous (like he couldn’t believe this had happened to him). They also testified to their observations at the crime scene: Mr. Tinnin’s van facing the front of the house; rear hatch door open; sliding door open; lots of boxes, clothes, DVDs, CDs, etc. visible through the open doors. In addition to the officers’ testimony of their observations of Mr. Tinnin shortly after the crime occurred, the jury also heard the statement Mr. Tinnin gave to Patrol Sergeant Phillips while at the scene, a statement consistent with Mr. Tinnin’s trial testimony.
For these reasons I believe the majority’s opinion that the trial court erred and prejudice occurred in the denial of the introduction of Defendant’s Exhibit 1 is not supported by this record. Further, the
For the foregoing reasons, I respectfully dissent.
. The criminal records in Defendant’s Exhibit 1 are confusing. In addition to the four judgments noted by the majority and in this dissent, a separate page of the exhibit indicates a felony trafficking in cocaine offense, which offense may or may not represent a conviction. Therefore, it is difficult to tell whether defendant was convicted of twelve or thirteen felonies; perhaps that was the reason defendant did not impeach Mr. Tinnin with the record during Mr. Tinnin’s testimony on cross examination.
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