State v. Higgins, 66 N.C. App. 1

State v. Higgins

66 N.C. App. 1 | N.C. Ct. App. | 1984

Lead Opinion

WELLS, Judge.

In his first argument, defendant contends that the trial court erred in admitting the pawn shop tickets signed by defendant on the grounds that the pawning of property by defendant would be relevant to show a motive for the crimes for which he was being tried, the effect of such evidence being to improperly impeach defendant and suggest his guilt of other crimes. In his second *19argument, defendant contends that the trial court erred in encouraging the State to offer rebuttal evidence which would not have been admissible during the State’s case in chief and which was not related to evidence presented in defendant’s case in chief. We shall combine these arguments for discussion.

While evidence of motive is not necessary to establish that a criminal offense has been committed, see 1 Brandis, North Carolina Evidence, § 83 (2d rev. ed. 1982), such evidence may, in a proper case, be relevant as a circumstance tending to make it more probable that the person accused committed the offense. Id. Hence, our appellate courts have held that evidence of pecuniary gain from the commission of an offense may be relevant to help identify the perpetrator, id. and cases cited therein. We cannot accept, however, the stretching of this rule of evidence to the extent of allowing evidence of an accused person’s general need for money as being relevant or admissible to show motive to commit a robbery or a larceny. To do so would expose all generally needy persons to the risk of a finding of guilt based in part upon their need for the means of sustenance. We must, therefore, hold for the purposes of this case that the pawn shop ticket evidence allowed in the State’s rebuttal was not admissible for the purpose of establishing a motive for the crimes for which defendant was being tried. See Annot. 36 A.L.R. 3d 839 § 11 (1971 & 1983 Supp.), for a discussion of this issue generally.

It is clear that the district attorney had the pawn shop ticket evidence available to him during the State’s case in chief, and that with the help and assistance of the trial judge, the district attorney used the pawn shop ticket evidence to impeach collaterally defendant’s responses to the State’s cross-examination questions. Defendant having denied on cross-examination the pawning activity, the State was bound by his responses and could not contradict him through extrinsic evidence. State v. Shane, 304 N.C. 643, 285 S.E. 2d 813 (1982) and cases and authorities cited therein.

In this case, defendant had strong alibi evidence. His own credibility was essential to his defense. Admitting the pawn shop ticket evidence on “rebuttal” was prejudicial error.

In his third argument, defendant contends that the trial court erred in the sentencing phase of his trial. Anticipating that such *20errors, if any, may not occur on re-trial, we deem it unnecessary to address them.

New trial.

Judge Webb concurs. Judge WHICHARD dissents.

Dissenting Opinion

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).