{ "id": 9439495, "name": "STATE OF NORTH CAROLINA v. RAPHEAL DWAYNE McEACHIN", "name_abbreviation": "State v. McEachin", "decision_date": "2001-02-06", "docket_number": "No. COA00-144", "first_page": "60", "last_page": "71", "citations": [ { "type": "official", "cite": "142 N.C. App. 60" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "412 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "163", "parenthetical": "trial court's failure to intervene ex mero motu during grossly improper jury argument not prejudicial error considering strong and convincing case against defendant" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521706 ], "year": 1992, "pin_cites": [ { "page": "156", "parenthetical": "trial court's failure to intervene ex mero motu during grossly improper jury argument not prejudicial error considering strong and convincing case against defendant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0147-01" ] }, { "cite": "456 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790210, 790099, 790235, 790109, 790206 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0262-05", "/nc/340/0262-04", "/nc/340/0262-01", "/nc/340/0262-02", "/nc/340/0262-03" ] }, { "cite": "454 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "276" }, { "page": "276", "parenthetical": "overwhelming evidence of defendant's guilt may render error harmless" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916386 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "42" }, { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0033-01" ] }, { "cite": "130 L. Ed. 2d 429", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330529, 1332356, 1330884, 1335114, 1332012, 1330701, 1332079, 1330544, 1333073, 1335603, 1332603, 1334483, 1332790, 1332535, 1332666, 1335835 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/1006-07", "/us/513/1006-08", "/us/513/1006-05", "/us/513/1006-06", "/us/513/1006-01", "/us/513/1006-15", "/us/513/1006-02", "/us/513/1006-10", "/us/513/1006-11", "/us/513/1006-13", "/us/513/1006-16", "/us/513/1006-14", "/us/513/1006-12", "/us/513/1006-09", "/us/513/1006-03", "/us/513/1006-04" ] }, { "cite": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "year": 1994, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "346 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "423" }, { "page": "543-44" }, { "page": "423-24" }, { "page": "423-24" } ], "opinion_index": 0 }, { "cite": "317 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778082 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "543" }, { "page": "543-44" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0532-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "90", "parenthetical": "quoting 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 305, at 228-29 (1979)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "635", "parenthetical": "quoting 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 305, at 228-29 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "132 L. Ed. 2d 861", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563776, 1564168, 1564266, 1564141, 1564185, 1564207, 1564017, 1564339, 1564245, 1563670, 1563736, 1564153, 1564058, 1563837, 1563864 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1163-04", "/us/515/1163-08", "/us/515/1163-07", "/us/515/1163-02", "/us/515/1163-03", "/us/515/1163-11", "/us/515/1163-10", "/us/515/1163-13", "/us/515/1163-14", "/us/515/1163-05", "/us/515/1163-06", "/us/515/1163-12", "/us/515/1163-15", "/us/515/1163-09", "/us/515/1163-01" ] }, { "cite": "450 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "720" }, { "page": "721", "parenthetical": "evidence witness committed larceny, without more, was not probative of witness's propensity for truthfulness or untruthfulness" } ], "opinion_index": 0 }, { "cite": "338 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518053 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "382" }, { "page": "382-83" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0363-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "661" } ], "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "739", "parenthetical": "when a motion to dismiss \"puts into question the sufficiency of circumstantial evidence, the court must decide whether a reasonable inference of the defendant's guilt may be drawn from the circumstances shown\"" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "year": 1986, "pin_cites": [ { "page": "5", "parenthetical": "when a motion to dismiss \"puts into question the sufficiency of circumstantial evidence, the court must decide whether a reasonable inference of the defendant's guilt may be drawn from the circumstances shown\"" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "456 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "340 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790156 ], "year": 1995, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0229-01" ] }, { "cite": "505 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469961 ], "year": 1998, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] } ], "analysis": { "cardinality": 975, "char_count": 27371, "ocr_confidence": 0.721, "pagerank": { "raw": 2.3562701504656603e-07, "percentile": 0.7937727257457867 }, "sha256": "51408ef847c571d84df8d6862c2b4c5bade922b518eb052a1337108412607d66", "simhash": "1:87295533563c50ea", "word_count": 4390 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HORTON and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RAPHEAL DWAYNE McEACHIN" ], "opinions": [ { "text": "GREENE, Judge.\nRapheal Dwayne McEachin (Defendant) appeals a judgment dated 16 February 1999, entered after a jury rendered a verdict finding him guilty of second-degree murder.\nThe State presented evidence at trial that on 26 August 1997, Robert Kelly (Kelly), John Paul Morrison (Morrison), and Perry Dawkins (Dawkins) were sitting on some \u201ccrossties\u201d on Page Street in Hamlet. Kelly testified Natasha Johnson (Johnson) lived in a house located approximately twenty feet from where Kelly and the other men were sitting. During the evening, Morrison walked \u201cdown the street\u201d with Johnson, and Morrison and Johnson had an argument. At that time, Defendant, whose nickname is \u201cBoobie,\u201d was standing in front of Johnson\u2019s house. Defendant \u201clifted his shirt up like he might have a gun or something.\u201d A few seconds later, Kelly saw Morrison fire a gun; however, Kelly could not see what direction Morrison was firing because it was dark. After Morrison fired his gun, Kelly, Morrison, and Dawkins began walking toward a \u201cbig field\u201d located off of Page Street. The parties walked in the direction of a business called Rob\u2019s Place, which was located across the field. As the parties were walking away from Johnson\u2019s house, a car driven by Dwayne Jones (Jones) pulled up near the parties. Defendant stood at the window of the car, and Kelly saw Jones pass something out of the window to Defendant. Defendant then said, \u201c \u2018I\u2019ll kill all you n \u2014 ,\u2019 \u201d and began firing in the direction of the three men. The three men began to run across the field and Kelly heard approximately twelve shots fired. Dawkins was struck by a bullet and fell to the ground. He subsequently died as a result of a gunshot wound to the head. Kelly testified that none of the parties in the field fired any weapons while Defendant was shooting at them.\nJones testified that on the night of the shooting, he drove his girlfriend\u2019s vehicle down Page Road. As the vehicle approached the area near Johnson\u2019s house, Jones saw Morrison \u201crunning towards the [vehicle] from [Johnson\u2019s] house.\u201d Defendant approached the vehicle and said, \u201c \u2018They\u2019re shooting at me. They\u2019re shooting at me.\u2019 \u201d Defendant appeared \u201cfrantic,\u201d and he asked Jones whether Jones had a gun in the vehicle. Jones then gave Defendant a nine[-]millimeter gun, and Defendant ran in the direction of Rob\u2019s Place. Jones immediately began to back the vehicle down Page Road and, as he parked the vehicle, he heard gun shots. Defendant then approached the parked vehicle and got into the vehicle. Defendant told Jones, \u201c 1 think I got one\u2019 \u201d because Defendant had \u201cseen one drop.\u201d Jones subsequently drove Defendant to the home of a friend, and Defendant put the gun given to him by Jones under a bed.\nDawkins\u2019 father testified that he arrived at the scene of the shooting before any medical assistance arrived. Dawkins\u2019 father asked Dawkins how badly he was hurt, and Dawkins replied, \u201c T don\u2019t think I\u2019m going to make it, dad.\u2019 \u201d Dawkins\u2019 father then asked Dawkins who \u201cdid it to him.\u201d Dawkins replied, \u201cthat he didn\u2019t know the guy\u2019s real name but he called him Boobie.\u201d\nAprille Grant Sweatt (Sweatt), a crime scene specialist for the Richmond County Sheriff\u2019s Department, testified that she was assigned to collect evidence from the scene of the shooting incident. Sweatt testified she collected eleven \u201cRP 9[-]millimeter Rugger spent shell casing[s]\u201d at the location where the shooting took place.\nLarry Bowden (Bowden), a detective with the Richmond County Sheriff\u2019s Department, testified that on 27 August 1997, he spoke with Jones. After speaking with Jones, Bowden recovered a \u201c9[-]millimeter Rugger handgun\u201d from under a mattress in a residence in Hamlet. Jones had a key to the residence and was the \u201ccaretaker\u201d of the residence. After the recovery, the gun and the spent shell casings were sent to the North Carolina State Bureau of Investigation (SBI). Ronald Marrs (Marrs), a firearms expert employed as a special agent with the SBI, testified he examined the spent shell casings and the gun. Based on his examination, Marrs concluded the spent shell casings were fired from the gun \u201cto the exclusion of all other firearms.\u201d\nAt the close of the State\u2019s evidence, Defendant made a motion to dismiss the charge of first-degree murder on the ground \u201cthe State has not shown sufficient evidence of a specific intent to kill.\u201d The trial court denied the motion.\nJohnson testified for Defendant that on the evening of 26 August 1997, Morrison asked her to come out of her house and speak to him. Johnson and Morrison then walked down Page Street. While they were talking, they had an argument and Johnson began walking back to her house. When she reached her mailbox, Morrison began firing a gun in her direction and she ran into her house. Defendant was inside Johnson\u2019s house at that time, and Johnson\u2019s child was sitting on the front porch steps. Defendant ran outside during the shooting. Johnson then heard shots fired from \u201c[p]robably two or three\u201d guns.\nDefendant also called Shawn Wilkerson (Wilkerson) to testify on his behalf. Prior to Wilkerson taking the stand and outside the presence of the jury, the State noted that Wilkerson had criminal charges pending against him, including a burglary charge. The State indicated its intent to question Wilkerson about these charges during cross-examination, stating the charges related to Wilkerson\u2019s credibility. The State noted Wilkerson\u2019s attorney was present in the courtroom and that Wilkerson might \u201cwant to take the Fifth rather than be questioned about those pending charges.\u201d The trial court then questioned Wilkerson to enquire whether he had spoken to his attorney regarding the possible effect of his testimpny on the pending charges, and Wilkerson indicated that he had discussed this issue with his attorney. Defendant did not raise any objections at that time to the State\u2019s proposed line of questioning.\nWilkerson testified during direct examination that he was in a vehicle with Jones on the night of the shooting incident. Wilkerson testified that as he and Jones were driving on Page Road, Defendant approached the vehicle and said that someone was \u201cshooting at him.\u201d Defendant reached into the vehicle and took out a gun. Wilkerson then heard Defendant fire the gun. After he heard the gunshots from the gun fired by Defendant, Wilkerson heard \u201c[t]wo more guns.\u201d\nDuring cross-examination, Wilkerson testified he had consumed \u201c[flour 40[-jounce beers\u201d on the night of the shooting. The State asked Wilkerson \u201cwhat [he had] been tried and convicted of or pled guilty [to] in the last 10 years for which [he] could receive a jail sentence of 60 days or more.\u201d Wilkerson responded that he had been convicted of \u201cdrug paraphernalia,\u201d \u201cfirstf-]degree [burglary],\u201d numerous \u201cDWI[s],\u201d \u201cdriving while license revoked, breaking and entering, larceny, [and] threats.\u201d The State then questioned Wilkerson regarding his pending burglary charge, and the following statements were made:\n[State]: And you\u2019ve got a pending burglary charge now, is that right?\n[Wilkerson]: Yes, sir.\n[State]: Whose house did you break into?\n[Wilkerson]: I did not know the person\u2019s name.\n[Defense counsel]: Your Honor, objection.\nThe Court: Just a moment. Sustained as to the form of the question.\n[State]: You broke into somebody\u2019s house in the nighttime on that one, didn\u2019t you?\n[Defense counsel]: Objection.\nThe Court: It\u2019s overruled.\n[State]: Didn\u2019t you?\n[Wilkerson]: Did I break into someone\u2019s house?\n[State]: Yes, sir.\n[Wilkerson]: That has nothing to do with this case here what my charge is.\n[State]: You broke into someone\u2019s house, didn\u2019t you?\n[Wilkerson]: Yes, sir, I did.\n[State]: In the middle of the night?\n[Wilkerson\u2019s counsel]: Your Honor, I would raise an objection.\nThe Court: It\u2019s his response. It\u2019s his privilege. You may go to your next question.\n[State]: It was during the nighttime that you broke into that house, isn\u2019t that right?\n[Wilkerson]: Correct.\n[State]: And you were going into that house to steal things, isn\u2019t that right?\n[Wilkerson]: No.\n[State]: Just to look around?\n[Defense counsel]: Objection.\nThe Court: Overruled.\n[State]: I don\u2019t think I have anything else for this witness your honor.\nDefendant testified that on the night of the shooting he was playing with several children on Johnson\u2019s front porch. Defendant stated that while he was on the porch he saw Morrison standing near the house. After Defendant told Morrison to \u201cchill out,\u201d Morrison began firing a gun in Defendant\u2019s direction. Defendant ran into the house and, when he realized Johnson\u2019s child was still on the front porch, he ran back onto the porch to get the child. Morrison continued firing his gun in the direction of the porch and Defendant ran back into the house. A few minutes later, Defendant came out of the house for a second time. He saw Jones driving down the road and he approached Jones\u2019 vehicle. Defendant then \u201cgrabbed [a] gun\u201d from Jones and ran after Morrison. Defendant fired shots \u201cin[to] the air\u201d until \u201cthe gun went empty.\u201d While he was firing the gun, Defendant saw Morrison and Kelly firing guns in Defendant\u2019s direction; however, he did not see Dawkins. After Defendant finished firing his gun, he jumped into Jones\u2019 vehicle and the parties drove away from the scene. Defendant testified he did not shoot Dawkins.\nDuring cross-examination, the State asked Defendant \u201cwhat [he had] been tried and convicted of in the last ten years for which [he] could receive a jail term of 60 days or more.\u201d Defendant responded that he had been convicted of \u201cvoluntary manslaughter\u201d and \u201csimple assault.\u201d\nAt the close of all the evidence, Defendant renewed his motion to dismiss the charge of first-degree murder. The trial court denied the motion.\nDuring its closing argument, the State made the following statement: \u201cMembers of the jury, a killer sits among us, [Defendant]. He\u2019s killed before and the State contends that we\u2019ve shown to you he\u2019s killed again.\u201d Defendant did not object to this statement. Later in its closing argument, the State made the following statement: \u201c[Defendant has got everything to lose. He\u2019s killed before .... [He] admitted that he was convicted of voluntary manslaughter, taking the life of another person. He\u2019s got every reason to get up here and give you a fabrication, members of the jury.\u201d Defendant objected to this statement, and the trial court overruled the objection.\nSubsequent to closing arguments, the trial court instructed the jury, in pertinent part:\nWhen evidence has been received that at an earlier time . . . [Defendant was convicted of criminal charges, you may consider this evidence for one purpose only. If, considering the nature of the crimes, you believe that this bears on truthfulness, then you may consider it, together with all other facts and circumstances bearing upon . . . [Defendant's truthfulness, in deciding whether you will believe or disbelieve his testimony at this trial. It is not evidence of. . . [D]efendant\u2019s guilt in this case. You may not convict him on the present charge because of something he may have done in the past.\nAfter its deliberations, the jury returned a verdict finding Defendant guilty of second-degree murder. Defendant then made a motion in open court to set aside the verdict based on the State\u2019s statements in its closing argument that Defendant had \u201ckilled before.\u201d The trial court denied Defendant\u2019s motion.\nThe issues are whether: (I) the record contains substantial evidence Defendant killed Dawkins; (II) admission of evidence regarding Wilkerson\u2019s pending burglary charge pursuant to Rule 608(b) of the North Carolina Rules of Evidence was plain error; and (III) the statements made by the State during its closing argument that Defendant had \u201ckilled before,\u201d referring to Defendant\u2019s previous conviction for voluntary manslaughter, were improper and, if so, whether the statements resulted in prejudicial error.\nI\nDefendant argues the record does not contain substantial evidence Defendant killed Dawkins and, therefore, the charge of first-degree murder should have been dismissed. We disagree.\nA motion to dismiss is properly denied if \u201cthere is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). \u201cWhen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.\u201d State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). First-degree murder is the \u201cunlawful killing of a human being with malice, premeditation, and deliberation.\u201d State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995).\nIn this case, the evidence, viewed in the light most favorable to the State, shows that prior to his death Dawkins identified Defendant as the person who shot him. A reasonable person could find this evidence is sufficient to show Defendant killed Dawkins. Moreover, the State presented substantial circumstantial evidence Defendant shot Dawkins, including the following evidence: Defendant retrieved a gun from Jones\u2019 vehicle and said, \u201c \u2018I\u2019ll kill all you n \u2014 \u2019 after the shooting, Defendant told Jones that he thought he \u201c \u2018got one\u2019 \u201d because he had \u201cseen one drop\u201d; eleven spent shell casings were recovered from the scene and these shell casings matched the gun recovered by Bowden; the recovered gun was the gun used by Defendant; Defendant admitted firing shots \u201cin[to] the air\u201d until the gun he was using \u201cwent empty\u201d; and Dawkins died from a gunshot wound to the head. A reasonable person could infer, based on this circumstantial evidence, that Defendant shot Dawkins. See State v. Triplett, 316 N.C. 1, 5, 340 S.E.2d 736, 739 (1986) (when a motion to dismiss \u201cputs into question the sufficiency of circumstantial evidence, the court must decide whether a reasonable inference of the defendant\u2019s guilt may be drawn from the circumstances shown\u201d). Accordingly, the trial court properly denied Defendant\u2019s motion to dismiss the charge of first-degree murder.\nII\nDefendant argues evidence of Wilkerson\u2019s pending burglary charge was inadmissible under Rule 608(b) of the North Carolina Rules of Evidence. Defendant contends admission of this evidence was plain error.\nThe test for plain error places the burden on a defendant to show that error occurred and that the error was a \u201c \u2018 \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d \u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Consequently, the defendant must show the error \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d Id. at 661, 300 S.E.2d at 379. Thus, if this Court determines an error constitutes \u201cplain error,\u201d the defendant is entitled to a new trial.\nA witness may be impeached under Rule 608(b) based on specific acts of misconduct where:\n(i) the purpose of the inquiry is to show conduct indicative of the actor\u2019s character for truthfulness or untruthfulness; (ii) the conduct in question is in fact probative of truthfulness or untruthfulness; (iii) the conduct in question is not too remote in time; (iv) the conduct did not result in a conviction; and (v) the inquiry takes place during cross-examination.\nState v. Bell, 338 N.C. 363, 382, 450 S.E.2d 710, 720 (1994), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995); N.C.G.S. \u00a7 8C-1, Rule 608(b) (1999). Examples of conduct probative of the truthfulness or untruthfulness of a witness include \u201c \u2018use of false identity, making false statements on affidavits, applications or government forms (including tax returns), giving false testimony, attempting to corrupt or cheat others, and attempting to deceive or defraud others.\u2019 \u201d State v. Morgan, 315 N.C. 626, 635, 340 S.E.2d 84, 90 (1986) (quoting 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 305, at 228-29 (1979)).\nIn this case, the State attempted to impeach Wilkerson pursuant to Rule 608(b) by questioning him regarding a pending burglary charge. Wilkerson testified he broke into someone\u2019s house during the nighttime and, as a result, was charged with burglary. Evidence of this conduct by Wilkerson was not probative of his propensity for truthfulness or untruthfulness. See Bell, 338 N.C. at 382-83, 450 S.E.2d at 721 (evidence witness committed larceny, without more, was not probative of witness\u2019s propensity for truthfulness or untruthfulness). Admission of this evidence was, therefore, error. Nevertheless, the admission of this evidence is \u201cplain error\u201d only if the evidence had \u201ca probable impact on the jury\u2019s finding of guilt.\u201d Because the State presented evidence under Rule 609 of the North Carolina Rules of Evidence that Wilkerson previously was convicted of first-degree burglary and Wilkerson testified he consumed \u201c[flour 40[-]ounce beers\u201d on the evening of the shooting, evidence that Wilkerson had a pending burglary charge for breaking into someone\u2019s home in the nighttime did not have a probable impact on the jury\u2019s determination of whether Wilkerson\u2019s testimony was truthful. This evidence, therefore, did not have a \u201cprobable impact on the jury\u2019s finding of guilt.\u201d Accordingly, the admission of this evidence was not plain error.\nIE\nDefendant argues the trial court erred by failing to intervene ex mero motu when the State stated during its closing argument to the jury, without objection, that Defendant \u201ckilled before and . . . he\u2019s killed again.\u201d Defendant also argues the trial court erred by overruling Defendant\u2019s objection to the State\u2019s subsequent statement during its closing argument that Defendant \u201ckilled before.\u201d\nWhen a defendant appears as a witness at trial, evidence of the defendant\u2019s past convictions may be admissible for the purpose of attacking the defendant\u2019s credibility as a witness. N.C.G.S. \u00a7 8C-1, Rule 609(a). Such evidence, however, is not admissible as substantive evidence to show the defendant committed the crime charged. State v. Tucker, 317 N.C. 532, 543, 346 S.E.2d 417, 423 (1986). Additionally, when evidence is admitted pursuant to Rule 609 for the purpose of impeaching the defendant, it is improper for the State to suggest in its closing argument to the jury that the evidence is substantive evidence of the defendant\u2019s guilt. Id. at 543-44, 346 S.E.2d at 423-24.\nWhen a defendant does not object at trial to an improper jury argument, the trial court must intervene ex mero motu if the argument is \u201cso grossly improper as to be a denial of due process.\u201d State v. Zuniga, 320 N.C. 233, 257, 357 S.E.2d 898, 914, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). The trial court\u2019s failure to properly intervene during such an argument constitutes error. State v. Sexton, 336 N.C. 321, 363, 444 S.E.2d 879, 903, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994). Additionally, when the State makes an improper jury argument and the defendant objects to the argument, the trial court\u2019s failure to sustain the objection and instruct the jury not to consider the State\u2019s improper argument is error. State v. Thompson, 118 N.C. App. 33, 42, 454 S.E.2d 271, 276, disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995). The defendant, however, is entitled to a new trial based on either of these errors only when the errors are prejudicial. Id.) N.C.G.S. \u00a7 15A-1443 (1999). When an error is not constitutional, it is prejudicial only upon a showing by the defendant that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d N.C.G.S. \u00a7 15A-1443(a).\nIn this case, the State\u2019s jury argument that Defendant had \u201ckilled before and... he\u2019s killed again\u201d and the State\u2019s subsequent statement that Defendant had \u201ckilled before\u201d suggested to the jury that it could consider evidence of Defendant\u2019s prior conviction for voluntary manslaughter as substantive evidence. These statements were, therefore, improper. See Tucker, 317 N.C. at 543-44, 346 S.E.2d at 423-24. Assuming, without deciding, that the first statement was grossly improper and, therefore, required intervention by the trial court, we must determine whether the trial court\u2019s failure to intervene was prejudicial error. Likewise, we must determine whether it was prejudicial error for the trial court to overrule Defendant\u2019s objection to the second statement that Defendant had \u201ckilled before.\u201d As discussed in Part I of this opinion, the State presented overwhelming evidence at trial of Defendant\u2019s guilt. Based on this evidence, and considering the trial court\u2019s instruction to the jury that it was not to consider evidence of Defendant\u2019s prior convictions as evidence of Defendant\u2019s guilt in this case, there is not a reasonable possibility that \u201chad the error in question not been committed, a different result would have been reached at trial.\u201d See State v. Vines, 105 N.C. App. 147, 156, 412 S.E.2d 156, 163 (1992) (trial court\u2019s failure to intervene ex mero motu during grossly improper jury argument not prejudicial error considering strong and convincing case against defendant); Thompson, 118 N.C. App. at 42, 454 S.E.2d at 276 (overwhelming evidence of defendant\u2019s guilt may render error harmless). The trial court\u2019s failure to intervene and its subsequent overruling of Defendant\u2019s objection, therefore, did not result in prejudicial error. Further, these errors, considered cumulatively with the erroneous admission of evidence regarding Wilkerson\u2019s pending burglary charge, did not result in prejudicial error. Accordingly, Defendant is not entitled to a new trial.\nNo error.\nJudges HORTON and TYSON concur.\n. Defendant does not argue in his brief to this Court that the record does not contain substantial evidence Defendant acted with \u201cmalice\u201d and \u201cpremeditation and deliberation.\u201d We, therefore, do not address these issues. See N.C.R. App. P. 28(b)(5).\n. Additionally, Defendant argues in his brief to this Court that the issue of whether evidence regarding Wilkerson\u2019s pending burglary charge was inadmissible under Rule 608(b) was properly preserved for appellate review. The record shows, however, that Defendant did not object to this line of questioning on the ground it violated Rule 608(b). Rather, after Wilkerson testified that he did have a pending burglary charge against him and that he had broken into someone\u2019s home, Defendant made a general objection. The issue of whether this evidence was inadmissible under Rule 608(b), therefore, was not properly preserved for appellate review. See N.C.R. App. P. 10(b)(1). Accordingly, we only address Defendant\u2019s argument that admission of this evidence was plain error. See N.C.R. App. P. 10(c)(4).\n. Although evidence a witness has committed a burglary is not probative of his character for truthfulness and, thus, is not admissible under Rule 608(b), evidence the witness has been convicted of burglary may be admissible under Rule 609 provided the conviction falls within the time period set out in Rule 609 regarding admission of evidence of prior convictions. N.C.G.S. \u00a7 8C-1, Rule 609 (1999). The North Carolina Legislature, therefore, has not imposed a requirement under Rule 609 that a conviction used to impeach a witness be probative of the witness\u2019s propensity for truthfulness. Compare Fed. R. Evid. 609(a) (prior conviction may be admissible for purpose of attacking credibility of witness if crime was \u201cpunishable by death or imprisonment in excess of one year\u201d or if crime \u201cinvolved dishonesty or false statement, regardless of the punishment\u201d).\n. The State argues in its brief to this Court that its second statement that Defendant had \u201ckilled before,\u201d to which Defendant objected, was not made for the purpose of arguing Defendant\u2019s previous conviction for voluntary manslaughter was substantive evidence. Rather, the State argues its statement that Defendant had \u201cldlled before\u201d suggested to the jury that Defendant\u2019s previous conviction related to the truthfulness of his testimony at trial. The record shows, however, that when the State\u2019s comment Defendant had \u201ckilled before\u201d is reviewed in the context of the State\u2019s closing argument, which included a statement Defendant had \u201ckilled before and the State contends ... he\u2019s killed again,\u201d the statement suggested to the jury that Defendant\u2019s previous conviction was substantive evidence Defendant committed the crime charged.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Assistant Attorneys General Daniel P O\u2019Brien and Amy C. Kunstling, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defenders Bobbi Jo Markert and Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RAPHEAL DWAYNE McEACHIN\nNo. COA00-144\n(Filed 6 February 2001)\n1. Homicide\u2014 first-degree murder \u2014 sufficiency of evidence\nThe trial court properly denied defendant\u2019s motion to dismiss a charge of first-degree murder (which resulted in a second-degree murder conviction) where the defendant retrieved a gun from a vehicle and said he would kill the group with whom the victim was walking; defendant subsequently said that he thought he \u201cgot one\u201d because he had \u201cseen one drop\u201d; eleven spent shell casings were recovered at the scene and matched a gun used by defendant; defendant admitted firing shots into the air until the gun was emptied; victim identified defendant as the person who shot him; and the victim died of a gunshot wound to the head.\n2. Evidence\u2014 witness\u2019s prior conviction \u2014 not probative of truthfulness \u2014 introduction not plain error\nThere was no plain error in a murder prosecution where evidence was introduced concerning a defense witness\u2019s pending burglary charge which was not probative of the witness\u2019s propensity for truthfulness or untruthfulness, but did not have a probable impact on the jury\u2019s determination of the witness\u2019s truthfulness because the State presented evidence that the witness had previously been convicted of burglary and the witness testified that he had consumed 4 forty-ounce beers on the evening of the shooting.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant\u2019s prior convictions\nThe trial court\u2019s failure to intervene ex mero motu in one instance and to grant an objection in another in the prosecutor\u2019s closing argument in a murder prosecution did not result in prejudicial error where defendant had testified on cross-examination that he had been convicted of voluntary manslaughter and the prosecutor argued that defendant had killed before. Such evidence is not admissible as substantive evidence and the prosecutor\u2019s statements were improper; however, the State presented overwhelming evidence of defendant\u2019s guilt and the trial court instructed the jury that it was not to consider evidence of defendant\u2019s prior convictions as evidence of defendant\u2019s guilt.\nAppeal by defendant from judgment dated 16 February 1999 by Judge Steve A. Balog in Richmond County Superior Court. Heard in the Court of Appeals 23 January 2001.\nAttorney General Michael F Easley, by Assistant Attorneys General Daniel P O\u2019Brien and Amy C. Kunstling, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defenders Bobbi Jo Markert and Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0060-01", "first_page_order": 90, "last_page_order": 101 }