{ "id": 8917901, "name": "STATE OF NORTH CAROLINA v. DARREN WILLIAM DENNISON, Defendant", "name_abbreviation": "State v. Dennison", "decision_date": "2004-04-06", "docket_number": "No. COA02-1512", "first_page": "375", "last_page": "386", "citations": [ { "type": "official", "cite": "163 N.C. App. 375" } ], "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": "591 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "528", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1443(a) (2003)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985125 ], "year": 2004, "pin_cites": [ { "page": "50", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1443(a) (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0040-01" ] }, { "cite": "351 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359098 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0606-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "357 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "year": 1987, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0064-01" ] }, { "cite": "528 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "12", "parenthetical": "\" [defendant placed his character at issue by having members of his family testify about his reputation for nonviolence or peacefulness.\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155711 ], "year": 2000, "pin_cites": [ { "page": "553", "parenthetical": "\" [defendant placed his character at issue by having members of his family testify about his reputation for nonviolence or peacefulness.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0536-01" ] }, { "cite": "581 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "357 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491521, 491781, 491848, 491753, 491727, 491668, 491638, 491482, 491900 ], "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0169-03", "/nc/357/0169-09", "/nc/357/0169-06", "/nc/357/0169-04", "/nc/357/0169-08", "/nc/357/0169-05", "/nc/357/0169-07", "/nc/357/0169-02", "/nc/357/0169-01" ] }, { "cite": "564 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 566", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082109 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "571" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0566-01" ] }, { "cite": "531 U.S. 1085", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9697446, 9697351, 9697480, 9697516, 9697293, 9697614, 9697423, 9697329, 9697649, 9697309, 9697556, 9697397, 9697591, 9697373, 9697535 ], "weight": 3, "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/531/1085-08", "/us/531/1085-04", "/us/531/1085-09", "/us/531/1085-10", "/us/531/1085-01", "/us/531/1085-14", "/us/531/1085-07", "/us/531/1085-03", "/us/531/1085-15", "/us/531/1085-02", "/us/531/1085-12", "/us/531/1085-06", "/us/531/1085-13", "/us/531/1085-05", "/us/531/1085-11" ] }, { "cite": "542 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "351 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155649, 1155681, 1155878, 1155952, 1155772 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/351/0364-02", "/nc/351/0364-05", "/nc/351/0364-01", "/nc/351/0364-03", "/nc/351/0364-04" ] }, { "cite": "517 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "914" } ], "opinion_index": 1 }, { "cite": "134 N.C. App. 417", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145085 ], "year": 1999, "pin_cites": [ { "page": "427" } ], "opinion_index": 1, "case_paths": [ "/nc-app/134/0417-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "386" } ], "opinion_index": 1 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "157-58" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "395 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "121-22" } ], "opinion_index": 1 }, { "cite": "327 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493012 ], "year": 1990, "pin_cites": [ { "page": "373" } ], "opinion_index": 1, "case_paths": [ "/nc/327/0364-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 1 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 1, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "410 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "870" }, { "page": "870" }, { "page": "870" } ], "opinion_index": 1 }, { "cite": "330 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508466 ], "year": 1991, "pin_cites": [ { "page": "289-90" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0273-01" ] }, { "cite": "531 U.S. 1019", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679395, 9679139, 9679434, 9679470, 9679118, 9679312, 9679215, 9679186, 9679251, 9679283, 9679351, 9679101, 9679165, 9679069 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/us/531/1019-12", "/us/531/1019-04", "/us/531/1019-13", "/us/531/1019-14", "/us/531/1019-03", "/us/531/1019-10", "/us/531/1019-07", "/us/531/1019-06", "/us/531/1019-08", "/us/531/1019-09", "/us/531/1019-11", "/us/531/1019-02", "/us/531/1019-05", "/us/531/1019-01" ] }, { "cite": "357 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "658" }, { "page": "658" }, { "page": "658" } ], "opinion_index": 1 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "year": 1987, "pin_cites": [ { "page": "69-70" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0064-01" ] }, { "cite": "528 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "12" } ], "opinion_index": 1 }, { "cite": "351 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155711 ], "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0536-01" ] } ], "analysis": { "cardinality": 1069, "char_count": 27939, "ocr_confidence": 0.768, "pagerank": { "raw": 3.143980816062984e-07, "percentile": 0.8622272958770956 }, "sha256": "799accdfd681b9831c7f595e7ffd315e41b105fa489bc1c8a70bcac55e04b847", "simhash": "1:17e7c062097ec2d4", "word_count": 4491 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. DARREN WILLIAM DENNISON, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nDarren William Dennison (defendant) appeals from judgment entered 20 May 2002 consistent with a jury verdict finding him guilty of the first degree murder of Chad Everette Spaul (Mr. Spaul), and the trial court\u2019s subsequent imposition of a sentence of life imprisonment without parole. The underlying facts tend to show that Mr. Spaul died from knife wounds inflicted by defendant during an altercation between defendant and Mr. Spaul outside a bar. Because we conclude that on the facts of this case defendant\u2019s right to a fair trial was unfairly prejudiced by the admission of evidence regarding prior acts of violence allegedly perpetrated by defendant upon his former girlfriend, we reverse defendant\u2019s conviction and remand for a new trial.\nThe evidence presented at trial tended to show that on the evening of 21 September 2001, defendant, defendant\u2019s girlfriend Melanie Gammons, and Charlene Waller traveled together to the Challenger Sports Bar in High Point, North Carolina. Among those also present at the crowded bar that evening were Delores Vail and her sister Diane Lovern; Lovem\u2019s daughter Tracy Boone and Boone\u2019s boyfriend, Jeff Peele; and Mr. Spaul and Mr. Spaul\u2019s coworker, David Moore.\nWaller testified that after she, defendant, and Gammons played two games of a NASCAR-themed board game popular with the bar\u2019s patrons, they stepped outside along with Vail, and that Moore, whom she did not know, then approached the group and \u201cgot in [her] face.\u201d Waller briefly went back inside the bar with Vail, only to re-emerge after Moore followed them inside. Waller testified that when she and Vail exited the bar the second time, they went around to the side of the building, where they encountered Michael Crane, and that they were soon joined there by defendant, Gammons, and Moore. Several witnesses testified that Moore had been trying unsuccessfully throughout the evening to speak with Vail, with whom he had been romantically involved several years earlier, and Waller testified that Moore was continuing to do so at this point.\nAccording to the testimony of various witnesses, Mr. Spaul then came outside the bar and approached the group, just as a visibly upset Moore was walking away, and Mr. Spaul and Moore spoke briefly outside the hearing of the others before Moore re-entered the bar. Lovern, who had by this time stepped outside the bar, testified that Mr. Spaul then began \u201carguing and carrying on with . . . mostly [Gammons] and [Waller] . . . but he was trying to start with [defendant].\u201d Waller and Lovern each testified that Mr. Spaul then began calling defendant \u201cfaggot,\u201d \u201cfag,\u201d and \u201cqueer.\u201d At that point, defendant, Gammons, Waller, and Crane walked back around to the front of the building in an attempt to get away from Mr. Spaul, who followed the group and continued to call defendant names. The group moved three or four times to various locations around the building in an effort to defuse the situation, but Mr. Spaul continued to follow the group and continued to behave belligerently towards defendant. Lovern, Moore, and the bar\u2019s owner each tried, to no avail, to get Mr. Spaul to desist.\nAccording to Waller, Mr. Spaul then briefly re-entered the bar, but shortly thereafter he emerged with a bottle of beer and resumed calling defendant a \u201cfaggot.\u201d Mr. Spaul exchanged words with Waller and Gammons and then stated that he was going to hit Crane, who was standing next to defendant. According to the testimony of Waller, Lovern, and Peele, each of whom witnessed this portion of the fatal confrontation between defendant and Mr. Spaul, Mr. Spaul first struck Crane, and then defendant, in rapid succession with his fist, causing Crane to fall to the ground and defendant to be knocked down and against a post. Waller testified that after Mr. Spaul hit Crane and defendant, she ran into the bar to get help. Lovern testified that when \u201c[defendant] got up, he went to swinging\u201d at Mr. Spaul, at which point she \u201cwas pushed out of the way, and that\u2019s all [she] saw\u201d until she turned back around and saw Mr. Spaul on the ground \u201cand a lot of blood.\u201d Lovern\u2019s testimony was generally corroborated by that of Peele. Defendant was six feet, two inches tall and weighed approximately 215 pounds at the time, while Mr. Spaul was five feet, eleven inches tall and weighed approximately 165 pounds. Both defendant and Mr. Spaul had been drinking before the altercation.\nDr. Thomas Clark, the forensic pathologist who performed Mr. Spaul\u2019s autopsy, testified that Mr. Spaul suffered eight sharp-force injuries inflicted with a knife. The most significant wound went \u201cacross the middle of the body and the right side of the neck ... [and] cut both of the carotid arteries,\u201d which, in Dr. Clark\u2019s opinion, caused Mr. Spaul to bleed to death. None of the other seven wounds were as significant, and several were described as \u201csuperficial\u201d by Dr. Clark. In Dr. Clark\u2019s opinion, all of Mr. Spaul\u2019s injuries could not have been inflicted by a single swing of a knife, although some of the wounds were on a linear track.\nDefendant testified at trial and admitted cutting Mr. Spaul with a knife he regularly carried, but only after Mr. Spaul repeatedly called defendant names, followed defendant around outside the bar when defendant tried to avoid confrontation, and eventually struck defendant in the head. Defendant testified he \u201cbelieve[d he] was hit with a beer bottle,\u201d but neither defendant nor any other witness testified that they actually saw Mr. Spaul wield a beer bottle when he struck defendant. Defendant testified that as Mr. Spaul was attempting to strike him a second time, defendant pulled his knife out of his pocket and pushed upward with the knife, cutting Mr. Spaul. Defendant testified that he \u201cdid not mean to kill [Mr. Spaul],\u201d but rather that he \u201cmeant... to cut [Mr. Spaul] to get him off of me.\u201d\nDefendant, Gammons, and Waller then got in Waller\u2019s car and left the scene. Defendant testified that he left because he was scared of Moore, who upon seeing Mr. Spaul prone and bleeding profusely threatened to kill defendant, and beat on Waller\u2019s car as the car pulled out of the parking lot. Defendant, Gammons, and Waller proceeded to Waller\u2019s home, where defendant showered and changed his clothes, which were stained with Mr. Spaul\u2019s blood. Defendant testified that because he feared the police would find him at Waller\u2019s house, the group was then driven to a motel by a third person, at which point defendant telephoned the bar and was informed that Mr. Spaul was dead. After contacting the High Point police department, defendant turned himself in at 5:00 p.m. the following afternoon.\nOn cross examination at trial, the following exchange took place, with no objection from defendant:\nQ. Mr. Dennison, do you consider yourself to be even-tempered?\nA. Yes.\nQ. You don\u2019t consider yourself to be hot-tempered?\nA. As to me, hot-tempered means extremely hot.\nQ. So the answer to that is yes or no?\nA. No.\nQ.. Do you get easily agitated, Mr. Dennison?\nA. Not easily agitated[.]\nQ. Do you consider yourself to be a person of violence?\nA. No.\nThereafter, over defendant\u2019s objection, the prosecutor was allowed to question defendant about acts of violence allegedly perpetrated by defendant upon his ex-girlfriend Melanie Tellado in 2001. Defendant admitted being \u201cmad at [Tellado] because she was screwing around on me\u201d and acknowledged arguing and fighting with Tellado at times. Defendant specifically denied punching out the right driver\u2019s side window of Tellado\u2019s car and striking her in the head in March 2001, although he testified that Tellado sought medical attention that night for cuts suffered when she tried to roll up her car window on his hand and the glass shattered. Defendant also denied attacking Tellado with a knife or holding her at knifepoint in her apartment in January 2001, although he admitted kicking in the door to her apartment on one occasion around that time and being present in her apartment when Tellado called the police on another occasion.\nIn its case in rebuttal, the State called Tellado, who testified that on three occasions she sought medical attention as a result of being hit by defendant. Tellado testified that on one such occasion, defendant hit her, and that \u201c[w]hen [the police] came to the door, [defendant] put a knife to [her] throat and told [her] that if [she] told them that he was there, that he would kill [her].\u201d According to Tellado, the knife defendant put to her throat on that occasion was the same knife defendant used to kill Mr. Spaul. Tellado testified that on another occasion she sought treatment for cuts and scratches to her face suffered when defendant shattered her car window, reached inside, and grabbed her around the neck. Finally, Tellado testified that defendant once kicked down the door to her apartment after becoming angry at her for leaving town. The trial court denied defendant\u2019s motion to strike Tellado\u2019s testimony.\nDefendant moved to dismiss the charges against him at the close of the State\u2019s evidence and again at the close of all evidence; each motion was denied. Prior to the jury charge, defendant moved for a mistrial based on the improper admission of evidence concerning defendant\u2019s character, which motion was also denied. The jury subsequently returned a verdict finding defendant guilty of first-degree murder, and the trial court sentenced defendant to life imprisonment.\nOn appeal, defendant contends the trial court committed prejudicial error by allowing the State to present evidence of defendant\u2019s alleged prior acts of violence towards Tellado, his former girlfriend, arguing that such testimony constituted inadmissible character evidence under Rules 404 and 405(b) of our statutes. We agree.\nFirst, we note that defendant has properly preserved this issue for appellate review. The trial court granted a pre-trial motion in lim- ine filed by defendant\u2019s trial counsel, which precluded the State from presenting evidence concerning defendant\u2019s alleged acts of violence towards Tellado during its case in chief. Moreover, defendant\u2019s trial counsel interposed a timely objection as soon as the prosecutor, on cross examination, began to question defendant about his alleged conduct regarding Tellado. Defendant\u2019s trial counsel thereafter argued vigorously that this evidence should be excluded, on the same grounds defendant\u2019s appellate counsel now cites as the basis for this assignment of error. While defendant\u2019s trial counsel did not initially object to Tellado\u2019s direct testimony, at the conclusion of her testimony he moved to strike her entire testimony as impermissible character evidence. Finally, defendant\u2019s trial counsel moved for a mistrial based on the admission of the evidence which is the basis of this assignment of error. Based on the foregoing, we conclude that this issue has been properly preserved for appellate review. See N.C.R. App. P. 10(b)(1) (2004) (\u201cAny such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal. . . may be made the basis of an assignment of error in the record on appeal.\u201d)\nRegarding the admissibility of character evidence, Rule 404(a) provides as follows:\n(a) Character evidence generally. \u2014 Evidence of a person\u2019s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:\n(1) Character of accused. \u2014 Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(a) (2003). \u201cSuch character evidence is admissible when the defendant has first \u2018opened the door\u2019 to a pertinent trait of his character.\u201d State v. Stafford, 150 N.C. App. 566, 571, 564 S.E.2d 60, 63 (2002), cert. denied, 357 N.C. 169, 581 S.E.2d 444 (2003) (emphasis added).\nIn the case sub judice, the State contends that defendant \u201copened the door\u201d to admission of evidence regarding his character for violence \u201cby the manner that he sought to portray himself during the defense case.\u201d Specifically, the State asserts that testimony by defendant and his witnesses tending to portray defendant as \u201ccalm, level-headed, and doing everything he could to avoid a confrontation\u201d with Mr. Spaul on the night in question constituted evidence of a pertinent trait of defendant\u2019s character, offered by defendant, which the State was authorized under Rule 404(a)(1) to rebut by presenting evidence of defendant\u2019s allegedly violent character.\nAfter carefully reviewing the trial transcript, other record evidence, and arguments of the parties, we conclude that the evidence regarding defendant\u2019s alleged prior violent acts against his former girlfriend was not properly admitted under Rule 404(a). As noted above, Rule 404(a)(1) permits the prosecution to present evidence concerning the defendant\u2019s character only after the defendant has first interjected his character into the proceedings by offering his own evidence tending to show defendant possesses a certain character trait. N.C. Gen. Stat. \u00a7 8C-1, Rule 404(a)(1); Stafford, 150 N.C. App. at 571, 564 S.E.2d at 63. In the present case, the testimony of defendant and the several other defense witnesses was strictly limited to defendant\u2019s actions and state of mind on the night in question. While much of this testimony focused on defendant\u2019s initial unwillingness to respond belligerently to Mr. Spaul\u2019s taunts and defendant\u2019s attempts to avoid a confrontation with Mr. Spaul by repeatedly walking away, we do not find any instance where defendant interjected his character into the proceedings by proffering testimony tending to show he possessed a generally peaceful or non-violent disposition. To the contrary, before introducing into evidence Waller\u2019s statement to the police, defendant\u2019s trial counsel carefully redacted the statement to remove all references to defendant\u2019s general character traits.\nWe find unpersuasive the State\u2019s argument that by presenting testimony tending to show that defendant was not the initial aggressor in his confrontation with Mr. Spaul, defendant \u201copened the door\u201d under Rule 404(a) for the prosecution to offer evidence of defendant\u2019s violent character. See State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (\u201c [defendant placed his character at issue by having members of his family testify about his reputation for nonviolence or peacefulness.\u201d) We also conclude that while defendant, on cross examination, answered in the negative the prosecutor\u2019s queries as to whether defendant considered himself to be \u201chot-tempered,\u201d \u201ceasily agitated,\u201d or \u201ca person of violence,\u201d this testimony did not suffice to interject defendant\u2019s character into the trial proceedings. Because defendant\u2019s testimony in this regard was elicited by the State, we hold that it was not character evidence \u201coffered by an accused\u201d such that it would \u201copen the door\u201d under Rule 404(a)(1) for the State to introduce its own character evidence in rebuttal. N.C. Gen. Stat. \u00a7 8C-1, Rule 404(a)(1); State v. Gappins, 320 N.C. 64, 70, 357 S.E.2d 654, 658 (1987) (\u201cIn the present case, the defendant put his character in issue by having witnesses testify concerning his reputation for peacefulness .... Only then did the prosecutor . . . cross examine the witnesses about specific instances of conduct by the defendant, in an effort to rebut their prior testimony as to the defendant\u2019s character for peacefulness.\u201d)\nNor are we persuaded by the State\u2019s argument that evidence regarding defendant\u2019s alleged prior acts of violence towards his former girlfriend was properly admitted\" under Rule 404(b), which provides as follows:\n(b) Other crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.. . .\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2003). We do not discern sufficient similarities in the circumstances surrounding Mr. Spaul\u2019s death and those surrounding defendant\u2019s violent acts allegedly directed towards Tellado to render evidence regarding the latter admissible for any purpose sanctioned by Rule 404(b).\nFinally, we do not agree with the State\u2019s assertion that this evidence was properly admitted under Rule 405(b), which provides that-\u201c[i]n cases in which character or a trait of character or a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 405(b) (2003). Defendant maintained at trial that he used a knife in striking Mr. Spaul because he felt it was necessary to do so in order to defend himself from Mr. Spaul, whom defendant testified he believed had just struck him in the head with a beer bottle. In State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), our Supreme Court found error in the admission of testimony regarding a first-degree murder-defendant\u2019s prior assaultive behavior towards a person other than the victim where the defendant claimed he acted in self-defense, stating as follows:\nThe proper inquiry in a self-defense claim focuses on the reasonableness of defendant\u2019s belief as to the apparent necessity for, and reasonableness of, the force used to repel an attack upon his person. The fact that defendant may have pointed a gun at another person sometime in the past, without more, has no tendency to show that the defendant did not fear [the victim] or to make the existence of his belief as to the apparent necessity to defend himself from an attack \u201cmore or less probable than it would be without the evidence.\u201d\nMorgan, 315 N.C. at 639, 340 S.E.2d at 92; accord, State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986). We therefore conclude that since raising a self-defense claim does not interject a defendant\u2019s character into the proceedings, and a defendant\u2019s character is not an essential element of a self-defense claim, admission of the challenged evidence in the instant case was not justified under Rule 405(b).\nHaving concluded that the trial court erred by admitting evidence of defendant\u2019s alleged violent acts towards Tellado, we must now determine whether defendant was prejudiced by the error. A non-constitutional error is deemed prejudicial \u201cwhen 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.\u201d State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004) (quoting N.C. Gen. Stat. \u00a7 15A-1443(a) (2003)).\nIn the present case, the State elicited testimony concerning defendant\u2019s violent acts toward Tellado both by questioning defendant about them on cross examination, and by calling Tellado as a rebuttal witness. Tellado testified that on three separate occasions during and immediately after their six-month courtship, defendant damaged both her car and her home and struck her with sufficient force that she had to go to the hospital. The prosecutor referred to defendant\u2019s prior bad acts regarding Tellado three times in his closing argument, including one occasion where he stated \u201cYoh saw how [defendant] acted with Melanie Tellado in their relationship.\u201d We conclude that on these facts, as in State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986), \u201c[d]ue to the incendiary nature of the evidence improperly admitted, and the emphasis placed on that evidence at trial, we find that its admission was prejudicial error requiring a new trial.\u201d\nBecause we hold that, on these facts, the admission of evidence of defendant\u2019s violent acts toward his former girlfriend was prejudicial error requiring a new trial, we need not address defendant\u2019s remaining assignments of error.\nNew trial.\nJudge HUDSON concurs.\nJudge TIMMONS-GOODSON dissents.", "type": "majority", "author": "ELMORE, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nBecause I conclude that the trial court did not err in allowing the prosecution to cross-examine defendant with specific bad acts and elicit testimony from defendant\u2019s former girlfriend, I respectfully dissent.\n\u201cA criminal defendant is entitled to introduce evidence of his good character [on direct], thereby placing his character at issue. The State in rebuttal can then introduce evidence of defendant\u2019s bad character.\u201d State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12, cert. denied, 531 U.S. 1019 (2000). As the Court stated in State v. Gappins, 320 N.C. 64, 69-70, 357 S.E.2d 654, 658 (1987), Rule 404(a)(1) limits the admission of character evidence introduced on direct to \u201cpertinent traits\u201d of character. However, in contrast to the common law, Rule 405(a) specifically allows the prosecutor to cross-examine a witness concerning relevant and specific instances of the defendant\u2019s conduct when rebutting character evidence. Id. at 70, 357 S.E.2d at 658.\nIn Gappins, the Court concluded that the defendant\u2019s \u201creputation for peacefulness\u201d was \u201ca pertinent trait of his character\u201d in a murder trial. Id. After \u201ccharacter witnesses testified concerning the defendant\u2019s reputation for peacefulness, the prosecutor asked the witnesses on cross examination whether they had heard or knew about certain instances including acts of domestic cruelty and rowdy and abusive conduct by the defendant when he was drinking.\u201d Id. at 69, 357 S.E.2d at 658. The Court held that these qu\u00e9stions were permissible under the Rules of Evidence. Id.\nSimilarly, in State v. Garner, 330 N.C. 273, 289-90, 410 S.E.2d 861, 870 (1991), the defendant \u201cput his character into evidence\u201d by \u201cpaint[ing] a picture of himself as a level-headed, peaceful individual who constantly was fending off verbal and physical attacks from the victim.\u201d The Court concluded that it was proper for the prosecution to cross-examine defendant \u201cconcerning this \u2018pertinent\u2019 trait of character,\u201d and the Court held that the trial court did not err in allowing the prosecution to elicit details of the defendant\u2019s prior assault convictions. Id. at 290, 410 S.E.2d at 870.\nAs the Court noted in Garner, these holdings are \u201cconsistent with two other well-established principles of law.\u201d 33 N.C. at 290, 410 S.E.2d at 870. In State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981), a pre-Rules case, the Court stated:\n[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\n(citations omitted). In State v. Warren, 327 N.C. 364, 373, 395 S.E.2d 116, 121-22 (1990), the Court stated:\nGenerally, much latitude is given counsel on cross-examination to test matters related by a witness on direct examination. The scope of cross-examination is subject to two limitations: (1) the discretion of the trial court; and (2) the questions offered must be asked in good faith. Furthermore, the questions of the State on cross-examination are deemed proper unless the record discloses that the questions were asked in bad faith.\n(citations omitted).\nTherefore, where a defendant in a murder case presents evidence that he is peaceful or has a nonviolent disposition, that evidence goes to a \u201cpertinent trait\u201d of his character. The door is thus deemed \u201copen\u201d to the prosecution, which may introduce its own character evidence on cross to rebut the defendant\u2019s evidence.\nIn the case sub judice, defendant\u2019s witnesses \u201cpainted [him] as calm, level-headed, and doing everything he could to avoid a confrontation, reacting to [the victim\u2019s] provocations with logic and a lack of concern.\u201d Defendant also presented evidence that he \u201cdon\u2019t like this stuff,\u201d and that he is \u201cnot into [fighting].\u201d Therefore, defendant introduced evidence concerning a \u201cpertinent trait\u201d of his character and thus opened the door for rebuttal by the prosecution.\nNevertheless, the majority argues that the evidence was strictly limited to the state of mind of defendant \u201con the night in question.\" (emphasis in original). However, our Supreme Court has allowed the prosecution to rebut a favorable inference established by a defendant on direct with specific evidence of its own during cross-examination. State v. Bullard, 312 N.C. 129, 157-58, 322 S.E.2d 370, 386 (1984). In the case sub judice, even if defendant\u2019s witnesses were asked only about defendant\u2019s character on the evening of the murder, the impression these questions created in the minds of the jury is not so limited. Instead, the clear inference from the testimony is that defendant possesses a peaceful character. Furthermore, even if the majority\u2019s argument is accepted, \u201c[t]he admission of relevant evidence is left to the sound discretion of the trial court.\u201d State v. Hall, 134 N.C. App. 417, 427, 517 S.E.2d 907, 914 (1999), disc. review denied, 351 N.C. 364, 542 S.E.2d 647 (2000), cert. denied, 531 U.S. 1085 (2001). Additionally, a trial court\u2019s evidentiary ruling should be overturned \u201conly upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. (citation omitted).\nConsidering the discretion granted to the trial court in ruling on evidentiary issues, in the case sub judice, the trial court\u2019s decision to allow the prosecution to cross-examine defendant with specific bad acts and elicit testimony from defendant\u2019s former girlfriend was correct. The ruling was not \u201cso arbitrary it could not have been the result of a reasoned decision.\u201d Id. Given the testimony of defendant\u2019s witnesses and the logical inferences created therein, the trial court was reasonable in believing that defendant was attempting to paint himself as a peaceful and nonviolent individual \u2014 a pertinent character trait in a murder trial with self-defense undertones. Therefore, the defendant opened the door to cross-examination and rebuttal by the prosecution, and the trial court did not err in allowing the prosecution to rebut defendant\u2019s evidence with specific bad act evidence of its own.\nAccordingly, I dissent from the majority opinion.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.", "Daniel Shatz for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARREN WILLIAM DENNISON, Defendant\nNo. COA02-1512\n(Filed 6 April 2004)\n1. Appeal and Error\u2014 preservation of issues \u2014 introduction of character evidence\nDefendant preserved an evidence issue for appeal where his pre-trial motion in limine was granted; he objected at trial when the prosecutor raised the subject on cross-examination; the basis of his assignment of error was the same as the argument at trial; he moved that the testimony be stricken; and he moved for a mistrial.\n2. Evidence\u2014 prior acts of violence \u2014 door not opened by defense\nTestimony about unrelated prior acts of violence against a former girlfriend was erroneously admitted and prejudicial in defendant\u2019s prosecution for first-degree murder in a bar fight. The defense\u2019s testimony was limited to defendant\u2019s actions and state of mind on the night in question and did not open the door, nor did testimony that defendant was not the initial aggressor in the bar fight. Testimony elicited by the State on cross-examination does not open the door because it is not testimony offered by the defendant. Finally, there was prejudice in the incendiary nature of the evidence and the emphasis it received.\nJudge Timmons-Goodson dissenting.\nAppeal by defendant from judgment entered 20 May 2002 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 10 September 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.\nDaniel Shatz for defendant-appellant." }, "file_name": "0375-01", "first_page_order": 405, "last_page_order": 416 }