State v. Davis

270 N.C.App. 88

840 S.E.2d 238

STATE of North Carolina

v.Jamar Mexia DAVIS, Defendant.

No. COA19-500

Court of Appeals of North Carolina.

Filed: February 18, 2020

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 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 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, 2018 WL 1162586, 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 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 InstructionPreservation 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

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 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]?

[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

...