{ "id": 2534961, "name": "STATE OF NORTH CAROLINA v. FRED HOWARD COFFEY, JR.", "name_abbreviation": "State v. Coffey", "decision_date": "1994-06-17", "docket_number": "No. 253A91", "first_page": "412", "last_page": "425", "citations": [ { "type": "official", "cite": "336 N.C. 412" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 ALR4th 937", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "7 ALR5th 263", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "639 A.2d 675", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 2025957 ], "year": 1994, "pin_cites": [ { "page": "683", "parenthetical": "interpreting \"repeat offender\" statute as enhancing sentence only when conviction for one crime precedes conduct of second crime" } ], "opinion_index": 0, "case_paths": [ "/md/334/0428-01" ] }, { "cite": "335 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "350", "parenthetical": "aggravating factor of \"prior convictions\" includes convictions up to time of sentencing" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523182 ], "year": 1985, "pin_cites": [ { "page": "436", "parenthetical": "aggravating factor of \"prior convictions\" includes convictions up to time of sentencing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0433-01" ] }, { "cite": "65 A.L.R.4th 838", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1988, "pin_cites": [ { "page": "918-24", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "870 P.2d 424", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10353548 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/p2d/870/0424-01" ] }, { "cite": "83 L. Ed. 2d 299", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12034269, 12034334 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0963-01", "/us/469/0963-02" ] }, { "cite": "316 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679881 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0001-01" ] }, { "cite": "360 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "694", "parenthetical": "improper admission of evidence relating to defendant's devil-worshipping requires new trial" } ], "opinion_index": 0 }, { "cite": "320 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725513 ], "year": 1987, "pin_cites": [ { "page": "768", "parenthetical": "improper admission of evidence relating to defendant's devil-worshipping requires new trial" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0762-01" ] }, { "cite": "413 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "789" }, { "page": "789-90" } ], "opinion_index": 0 }, { "cite": "331 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499339 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "42" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0039-01" ] }, { "cite": "773 F.2d 549", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 18996 ], "year": 1985, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/f2d/773/0549-01" ] }, { "cite": "70 L. Ed. 2d 194", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "284", "parenthetical": "Sundberg, C.J., dissenting, joined by England and McDonald, JJ." } ], "opinion_index": 0 }, { "cite": "454 U.S. 882", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6398776 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0882-01" ] }, { "cite": "397 So.2d 277", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9548507 ], "opinion_index": 0, "case_paths": [ "/so2d/397/0277-01" ] }, { "cite": "553 So.2d 1137", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7540091, 7540077 ], "year": 1988, "pin_cites": [ { "page": "1143" } ], "opinion_index": 0, "case_paths": [ "/so2d/553/1137-02", "/so2d/553/1137-01" ] }, { "cite": "257 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "174 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "276 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563176 ], "year": 1970, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0641-01" ] }, { "cite": "350 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359009 ], "year": 1986, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0529-01" ] }, { "cite": "161 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "6-7" } ], "opinion_index": 0 }, { "cite": "273 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575910 ], "year": 1968, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0629-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "337 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "389 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "326 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308068 ], "year": 1990, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0457-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "274-77" }, { "page": "280-81" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] } ], "analysis": { "cardinality": 1072, "char_count": 31226, "ocr_confidence": 0.767, "pagerank": { "raw": 2.4356979677659443e-07, "percentile": 0.8025408045025019 }, "sha256": "079674555918214708d131d1d7fcad042febf812eb44be3ef5500fd7de80cc27", "simhash": "1:67b3ef3706e1c0b0", "word_count": 4898 }, "last_updated": "2023-07-14T18:12:07.467663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Parker did not participate in the consideration or decision in this case.", "Justice MEYER joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. FRED HOWARD COFFEY, JR." ], "opinions": [ { "text": "EXUM, Chief Justice.\nOn 16 February 1987 defendant was indicted for the first degree murder of ten-year-old Amanda Ray, who died on 18 July 1979. Defendant was convicted at trial on theories of premeditation and deliberation and felony murder, based on the underlying felony of kidnapping. After a sentencing hearing following this trial, the jury recommended a death sentence, and judgment was so entered in October 1987. On appeal to this Court, we found no error in the guilt proceeding, but we ordered a new sentencing hearing because the verdict form employed by the jury did not include an issue as to whether the mitigating circumstances were insufficient to outweigh the aggravating circumstances, as required by N.C.G.S. \u00a7 15A-2000(c)(3). State v. Coffey (Coffey I), 326 N.C. 268, 389 S.E.2d 48 (1990). On resentencing, a second jury also recommended the death sentence. The trial court again entered judgment sentencing defendant to death, and defendant appeals from that judgment.\nI.\nAt the resentencing proceeding the State reiterated the facts surrounding the murder. The body of ten-year-old Amanda Ray was found in a wooded area near a lake in Mecklenburg County on 19 July 1979. An autopsy revealed that she had a black eye and bruises and that she died of asphyxiation. An investigation began immediately which produced several witnesses linking Amanda Ray with someone matching defendant\u2019s description on 18 July 1979 near a lake. The investigation continued for several years eventually revealing that dog hairs on defendant\u2019s couch and in defendant\u2019s van matched dog hairs found on Amanda Ray\u2019s clothing when her body was found. Defendant was questioned about the death of Amanda Ray in 1986 and was subsequently charged.\nThe State also introduced testimony of Janet Ashe and Rev. James Hall indicating that defendant, in the months before the murder, masturbated in the presence of three-year-old Angel Ashe. This incident was admitted to establish the aggravating circumstance of murder committed during the course of a kidnapping.\nDefendant did not testify at the resentencing proceeding. Instead he presented two experts, psychologist Dr. Steven B. Bondy and psychiatrist Dr. John M. Billinsky. Dr. Bondy interviewed defendant twice and administered five tests to defendant. He diagnosed defendant as suffering from major depression, chronic post traumatic stress disorder (PTSD), and pedophilia. Defendant\u2019s PTSD was the result of repeated sexual abuse by his father. As a result of the pedophilia and PTSD, defendant was mentally and emotionally disturbed at the time of the murder and his capacity to conform his conduct to the requirements of the law was impaired. On cross-examination it was revealed, over objection, that Dr. Bondy\u2019s diagnoses were based in part on defendant\u2019s convictions for indecent liberties with children. Defendant had previously attempted to exclude the admission of his criminal record through a pre-trial motion, which was denied. The convictions which were introduced were: convictions in 1974 in Virginia Beach, Virginia, for two counts of indecent exposure and one count of indecent liberties involving three children; and convictions in 1986 in Caldwell County, North Carolina, for nine counts of indecent liberties with children involving three different children. The trial court instructed the jury to consider defendant\u2019s convictions solely for the purpose of supporting the witness\u2019 diagnoses.\nDr. Billinsky\u2019s opinion testimony was essentially the same as that of Dr. Bondy. He interviewed defendant twice and spoke with his family members. He diagnosed defendant as suffering from adjustment disorder with mixed emotional features, pedophilia, and chronic PTSD. Defendant\u2019s PTSD was the result of sexual abuse by his father. Based on defendant\u2019s pedophilia and PTSD, Dr. Billinsky concluded that defendant was under the influence of a mental or emotional disturbance at the time of the murder and that his capacity to appreciate the criminality of his conduct was impaired. On cross-examination it was revealed that Dr. Billinsky\u2019s diagnosis of pedophilia was based in part on defendant\u2019s convictions in 1974 and 1986.\nAlso testifying for defendant were his mother and sister. Defendant was molested by his father from the age of six. Defendant was also forced to watch his father sexually abuse his siblings, including his sister. Resistance to the sexual abuse was met with physical abuse. Defendant\u2019s father threatened to kill defendant if he exposed the sexual abuse. After defendant\u2019s mother discovered the sexual abuse, she moved away with defendant. Defendant\u2019s father would then occasionally kidnap defendant and his sister, take them to a motel, and sexually abuse them. Defendant left home to join the Navy at the age of sixteen, eventually leading to service in Vietnam.\nAfter the presentation of evidence the trial judge submitted two aggravating circumstances: (1) the death occurred while the defendant was engaged in a kidnapping, and (2) the death was especially heinous, atrocious, or cruel. Defendant requested 23 mitigating circumstances, the majority of which were submitted to the jury. The State also, over defendant\u2019s objection, requested that the statutory mitigating circumstance of \u201cno significant history of prior criminal activity\u201d be submitted. The court submitted this circumstance.\nThe jury found both aggravating circumstances. One or more jurors found that defendant was under the influence of a mental disturbance; that his capacity to appreciate the criminality of his conduct was impaired; that he was mentally, physically, and sexually abused by his father; that he suffered a deprived and unstable childhood; that he dutifully served his country during wartime in Vietnam; that he had previously attended classes at a college; that defendant was a hard worker in prison; and that he had continued his education by taking correspondence courses from prison. No juror found that defendant had no significant history of prior criminal activity. The jury sentenced defendant to death.\nII.\nThe first issue presented on appeal is whether the trial court erred in denying defendant\u2019s motion in limine, and overruling his objection at trial, which sought to exclude evidence relating to his convictions in 1974 and 1986. Evidence of criminal activity not related to the crime charged must be relevant to some issue in the case to be admissible; such evidence is inadmissible when introduced to prove defendant\u2019s character \u201cin order to show that he acted in conformity therewith.\u201d N.C. R. Evid. 404(b); State v. Jeter, 326 N.C. 457, 458, 389 S.E.2d 805, 806 (1990). The State argues that this evidence was relevant (A) to rebut the mitigating circumstance of no significant history of prior criminal activity, and (B) to explore the bases of the opinions of defendant\u2019s expert witnesses.\nA.\nThe State argues that the trial court had a duty to submit the mitigating circumstance of \u201cno significant history of prior criminal activity\u201d notwithstanding defendant\u2019s objection since that circumstance was supported by the evidence. See State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S 1165, 90 L. Ed. 2d 733 (1986), rev\u2019d on other grounds in State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). It then argues that any evidence bearing on that mitigator was relevant and admissible, including defendant\u2019s convictions in 1974 and 1986. We reject the State\u2019s argument as to the convictions in 1986.\nThe mitigator on which the State relies to demonstrate relevance pertains to the defendant\u2019s \u201chistory of prior criminal activity.\u201d After considering the language of this mitigator and its relation to the sentencing scheme, we hold that the history of prior criminal activity refers to defendant\u2019s criminal activity prior to the murder for which he is being sentenced, not prior to sentencing. The crimes for which defendant was convicted in 1986 therefore were not relevant to the mitigator on which the State relies.\nIn determining the meaning of the mitigating circumstance found at N.C.G.S. \u00a7 15A-2000(f)(l) we are guided by the principle of statutory construction that a statute should not be interpreted in a manner which would render any of its words superfluous. In re Watson, 273 N.C. 629, 634, 161 S.E.2d 1, 6-7 (1968); State v. Cloninger, 83 N.C. App. 529, 531, 350 S.E.2d 895, 897 (1986); see also 73 Am. Jur. 2d Statutes \u00a7 250 (1974). We construe jeach word of a statute to have meaning, where reasonable and consistent with the entire statute, because \u201c[i]t is always presumed that the legislature acted with care and deliberation . . . .\u201d State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970).\nApplying this canon of construction to the statute at hand, it is clear that the mitigating circumstance at N.C.G.S. \u00a7 15A-2000(f)(l) pertains only to that criminal activity committed before the murder. The mitigating circumstance at issue here concerns defendant\u2019s \u201chistory of prior criminal activity.\u201d If this language were to refer to defendant\u2019s criminal activity up to the time of sentencing, the word \u201cprior\u201d would have no meaning since at the time of sentencing the defendant\u2019s criminal activity prior to sentencing is identical to his \u201chistory of criminal activity.\u201d In order to give the word \u201cprior\u201d meaning, therefore, we must construe N.C.G.S. \u00a7 15A-2000(f)(l) as referring to defendant\u2019s criminal activity committed prior to some event other than sentencing.\nThe only other meaningful point in time is the date of the crime, which is the point of reference for nearly every aggravating and mitigating circumstance. We find therefore that \u201chistory of prior criminal activity\u201d as used in N.C.G.S. \u00a7 15A-2000(f)(l) refers to criminal activity occurring before the murder.\nThis interpretation is confirmed by the aggravating circumstance found at N.C.G.S. \u00a7 15A-2000(e)(3), pertaining to whether \u201cdefendant had been previously convicted of a felony involving the use or threat of violence to the person.\u201d In State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), we held that this aggravator does not include crimes committed after the murder. Recognizing the relationship between this circumstance and the mitigator pertaining defendant\u2019s history of prior criminal activity, it has been stated: \u201cJust as prior conviction of a felony involving violence is designated an aggravating circumstance, the absence of any significant history of prior criminal activity calls for mitigation of sentence.\u201d II Model Penal Code \u00a7 210.6 commentary at 137 (1980). To the extent that the mitigating circumstance of \u201cno significant history of prior criminal activity\u201d is related to the aggravating circumstance that \u201cdefendant had been previously convicted of a felony involving the use or threat of violence,\u201d it seems clear that the legislature intended the same time frame to be used in both circumstances. Thus, the aggravating circumstance in N.C.G.S. \u00a7 15A-2000(e)(3) is some indication that the mitigating circumstance of no significant history of prior criminal activity does not include crimes committed after the murder.\nOur review of cases elsewhere reveals that the only jurisdiction to have addressed this precise issue decided it in accord with our analysis. In Scull v. State, 553 So.2d 1137, 1143 (Fla. 1988), the court rejected the State\u2019s argument that \u201cthe term \u2018prior\u2019 [means] prior to the sentencing, not the commission of the murder.\u201d In doing so it overturned the earlier decision in Ruffin v. State, 397 So.2d 277 (per curiam), cert. denied, 454 U.S. 882, 70 L. Ed. 2d 194 (1981). The court in Scull effectively adopted the reasoning of the dissenting opinion in Ruffin, where three justices stated that to consider crimes committed after the murder for the mitigator of no significant history of prior criminal activity \u201cgoes against any common-sense interpretation of the phrase \u2018history of prior criminal activity\u2019 and amounts to tortured logic . . . .\u201d Id. at 284 (Sundberg, C.J., dissenting, joined by England and McDonald, JJ.). We agree with the reasoning of this dissent, which was later adopted in Scull, that \u201cprior\u201d must mean prior to the crime for which the defendant is charged.\nThus, the State\u2019s contention that defendant\u2019s convictions in 1986 were admissible to rebut the mitigator of no significant history of prior criminal activity is without merit.\nB.\nThe State next argues that defendant\u2019s convictions, including those in 1986, were admissible since they formed the basis of the opinions of defendant\u2019s expert witnesses. The State relies on Rule 705, which provides:\nThe expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination. There shall be no requirement that expert testimony be in response to a hypothetical question.\nN.C. R. Evid. 705.\nIt is clear that under Rule 705 a party cross-examining an expert witness generally may inquire into the facts on which the expert\u2019s opinion is based. Rule 705, however, \u201cdoes not end the inquiry. In determining whether to allow an expert to testify to the facts underlying an opinion, the court must inquire whether, under [Rule] 403, the testimony should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice.\u201d United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985); accord N.C. R. Evid. 403. Ordinarily the question of whether evidence should be excluded lies within the discretion of the trial judge; that discretion, however, \u201cis not unlimited.\u201d State v. Scott, 331 N.C. 39, 42, 413 S.E.2d 787, 789 (1992).\nWe find the probative value of defendant\u2019s convictions in 1986 to be substantially outweighed by the danger of unfair prejudice when those convictions are introduced by the State solely to demonstrate the bases of the experts\u2019 opinions. The convictions in 1986 were therefore not admissible under the provisions of Rule 705 permitting inquiry into the basis of an expert\u2019s opinion.\nThe prejudicial effect of nine counts of indecent liberties with children is manifest. The danger is that the jury, in deciding whether defendant should be sentenced to death, would make its decision considering not only the murder of Amanda Ray and the aggravating and mitigating circumstances, but also the incidents of sexual abuse committed upon children several years later. The \u201coverwhelming potential for prejudice\u201d that is generated through the introduction of evidence relating to prior criminal activity was recognized in State v. Scott, 331 N.C. at 44, 413 S.E.2d at 789-90.\nFurther, the State has not pointed to any issue for which the convictions, when used to support defendant\u2019s experts, were probative. The State seems to view Rule 705 as giving it carte blanche to introduce the basis of an adverse expert opinion regardless of its prejudicial effect and probative value. As stated above, however, this is not the case. Here it is evident that the convictions had little or no probative value when introduced by the State for the asserted purpose of supporting the experts\u2019 opinions.\nThe essence of the testimony of Dr. Bondy and Dr. Billinsky was that as a result of defendant\u2019s PTSD and pedophilia, he was under a mental disturbance at the time of the murder and his capacity to appreciate the criminality of his conduct was impaired. The experts testified that the convictions were important to their diagnosis of pedophilia. The State, however, did not challenge the diagnosis of pedophilia on cross-examination, in closing arguments, or otherwise. The cross-examination of Dr. Bondy and Dr. Billinsky consisted almost exclusively of probing defendant\u2019s treatability and propensity for violence. In closing the State conceded defendant\u2019s pedophilia and challenged only whether his pedophilia contributed to his actions. In fact, the State repeatedly referred to defendant as a \u201cchild molester.\u201d\nWe also emphasize that defendant\u2019s pedophilia was irrelevant to both of the aggravating circumstances submitted. The aggravating circumstances submitted to the jury were that the murder occurred during the course of a kidnapping and that the murder was especially heinous, atrocious, or cruel. The State argued neither at trial nor on appeal that defendant\u2019s pedophilia was relevant to these aggravators. Further, we are unable to see how those convictions bear on the aggravators submitted. See N.C. R. Evid. 404(a) (\u201cEvidence 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 . . . .\u201d). Thus, the convictions are not probative of the existence of either aggravating circumstances the State sought to establish. Likewise, we cannot see how defendant\u2019s pedophilia bears on any of the mitigating circumstances submitted other than the ones dealing with an emotional disturbance and impaired capacity, for which they only corroborate the experts\u2019 opinions.\nIn sum, the evidence of defendant\u2019s convictions in 1986 was extremely prejudicial. Further, those convictions when introduced under Rule 705 by the State are of little, if any, probative value. Under these circumstances, the probative value of defendant\u2019s convictions in 1986 is substantially outweighed by the potential for prejudice; and the convictions should have been excluded under Rule 403 upon defendant\u2019s motion in limine and his objection at trial.\nWe also find that this error requires reversal as it cannot be said that there is no reasonable possibility that the error affected the outcome. N.C.G.S. \u00a7 15A-1443(a) (1988). As stated earlier, the evidence relating to convictions in 1986 for nine counts of indecent liberties and indecent exposure was highly prejudicial and \u201cits effect . . . can only have been to arouse the passion and prejudice of the jury.\u201d See State v. Kimbrell, 320 N.C. 762, 768, 360 S.E.2d 691, 694 (1987) (improper admission of evidence relating to defendant\u2019s devil-worshipping requires new trial). The State even emphasized defendant\u2019s pedophilia, and history of sexual abuse of children, in closing arguments when it repeatedly referred to the defendant as a \u201cchild molester.\u201d\nFurther, the jury almost certainly considered those convictions improperly when it determined that defendant did have a significant history of prior criminal activity. In its closing argument the State argued:\nThe prior criminal activity, as we heard, includes a conviction for indecent liberties and two counts of indecent exposure with children in 1974, in Virginia Beach, Virginia. In 1979 he masturbated in front of Angel Ashe. And in 1986, he was convicted of nine counts of taking indecent liberties with children. (Emphasis added).\nThe court, over defendant\u2019s objection, instructed the jury on the mitigating circumstance of no significant history of prior criminal history as follows:\nYou may find this mitigating circumstance if you find that an episode of masturbation and convictions for indecent liberties and indecent exposure do not constitute a significant history of prior criminal activity.\nThe trial court in no way restricted the jury\u2019s consideration of defendant\u2019s history of criminal activity to his criminal activity before the killing of Amanda Ray. Based on the presentation of evidence, the State\u2019s arguments, and the jury instruction, the jury almost certainly considered, improperly, defendant\u2019s entire criminal history in determining whether the statutory mitigating circumstance of no significant history of prior criminal activity existed. This error entitles defendant to a new sentencing proceeding. N.C.G.S. \u00a7 15A-1443(a).\nNEW SENTENCING PROCEEDING.\nJustice Parker did not participate in the consideration or decision in this case.\n. For a more thorough account of the evidence, see Coffey I, 326 N.C. at 274-77, 389 S.E.2d at 51-53.\n. We held in Coffey I that evidence of the Angel Ashe incident was properly admitted to show that the murder was committed during the course of the felony of kidnapping. Coffey I, 326 N.C. at 280-81, 389 S.E.2d at 56. We note at this juncture that the State did not assert at trial nor has it asserted on appeal that defendant\u2019s convictions for indecent liberties with children, which are the primary subject of this appeal, were relevant to show that the crime was committed during the course of a kidnapping.\n. We emphasize that the mitigating circumstance at issue here relates to \u201ccriminal activity,\u201d not criminal convictions. See State v. Maynard, 311 N.C. 1, 316 S.E.2d 197, cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984). The record does not indicate when defendant committed the acts for which he was convicted in 1986. The clear inference from the record, however, is that the acts resulting in conviction in 1986 did not occur prior to the murder of Amanda Ray in 1979.\n. All eleven aggravating circumstances relate to the defendant at the time of the murder; for example, whether the murder was \u201ccommitted for pecuniary gain\u201d and whether the murder was \u201cespecially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(6), (9). Six of the seven specific statutory mitigating circumstances other than the one at issue here likewise focus on the defendant at the time of the murder, such as whether the defendant was under the influence of an emotional disturbance or duress. See Id. \u00a7 15A-2000(f)(2), (5). Of the nineteen aggravating and mitigating circumstances, only one clearly includes defendant\u2019s conduct after the murder; N.C.G.S. \u00a7 15A-2000(f)(8) provides as a mitigating circumstance that the \u201cdefendant aided in the apprehension of another capital felon or testified truthfully on behalf of the prosecution in another prosecution of a felony.\u201d\n. We note that numerous cases from other jurisdictions address aggravating circumstances such as that \u201cdefendant was previously convicted in this state of a class 1 or 2 felony involving violence.\u201d See People v. White, 870 P.2d 424 (Colo. 1994). In that context, several courts have held that \u201cpreviously convicted\u201d means convicted prior to sentencing, not prior to the criminal act. See id. at 442-45 (citing cases from other jurisdictions); Thomas M. Fleming, Annotation, 65 A.L.R.4th 838, 918-24 (1988) (same); accord State v. McCullers, 77 N.C. App. 433, 436, 335 S.E.2d 348, 350 (1985) (aggravating factor of \u201cprior convictions\u201d includes convictions up to time of sentencing); but see Gargliano v. State, 639 A.2d 675, 683 (Md. App. 1994) (interpreting \u201crepeat offender\u201d statute as enhancing sentence only when conviction for one crime precedes conduct of second crime). We find such cases inapposite as N.C.G.S. \u00a7 15A-2000(f)(l) refers to \u201ccriminal activity,\u201d not \u201ccriminal convictions.\u201d When interpreting \u201cprevious criminal convictions,\u201d the word \u201cprevious\u201d can mean previous to sentencing and still have meaning; in that context, \u201cprevious\u201d clarifies that the sentencer is not to consider the conviction for which the defendant is then being sentenced. When interpreting \u201cprior criminal activity,\u201d however, the word \u201cprior\u201d has no real meaning if it means prior to sentencing. We also note that these cases are not in conflict with our holding in Goodman since the aggravator applied in that case refers to whether defendant \u201chad been previously convicted,\u201d not whether defendant \u201cwas previously convicted.\u201d", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice Mitchell\ndissenting.\nThe defendant\u2019s experts testified that his status as a pedophiliac was an important part of what they felt was his impaired capacity to appreciate the criminality of his acts at the time he killed the ten-year-old child victim in the present case. On cross-examination by the State, each of those experts specifically testified that the defendant\u2019s many prior convictions for taking indecent liberties with children was an important factor in the diagnosis of pedophilia. Ordinarily such evidence is admissible under N.C.G.S. \u00a7 8C-1, Rule 705, which provides that an expert may testify to the facts on which the expert\u2019s opinion is based. The majority concludes, however, that the probative value of this evidence was substantially outweighed by danger of unfair prejudice and that the trial court abused its discretion by failing to exclude it under N.C.G.S. \u00a7 8C-1, Rule 403. I do not agree.\nThe majority finds that the testimony during the cross-examination of the defendant\u2019s experts that the defendant\u2019s convictions were an important basis for their diagnosis of pedophilia had no tendency to weaken that diagnosis in the eyes of the jury. Although that is one possible view of the evidence in question, I believe a jury reasonably could have found the evidence to weaken the reliability of the diagnosis of the experts. Therefore, I believe that the majority has inadvertently invaded the province of the jury by applying the findings the majority would make from the evidence while failing to recognize that the evidence would support contrary findings.\nIt appears to me that the State was attempting to convince the jury that the two expert witnesses in question would testify that anyone who had been convicted of numerous offenses of taking indecent liberties with children is a pedophiliac and, inevitably, unable to appreciate fully the criminality of his conduct in murdering a child. If the jury so found, the jury reasonably could have given the experts\u2019 testimony less credibility than it would have given that testimony absent the State\u2019s cross-examination concerning the weight the experts gave the defendant\u2019s prior crimes.\nThe majority further says that because the prosecutor referred to the defendant during closing arguments as a \u201cchild molester,\u201d the State conceded the defendant\u2019s pedophilia and challenged only whether his pedophilia contributed to his actions. Regardless of whether the prosecutor argued (1) that the defendant was not a pedophiliac or (2) that pedophilia did not impair his capacity to appreciate the criminality of his conduct in killing the child victim in the present case, I believe the jury reasonably could have found the evidence of the defendant\u2019s prior convictions for taking indecent liberties with children relevant and probative as to either of those points.\nThe fact that the prosecutor referred to the defendant as a \u201cchild molester\u201d did not, as the majority contends, amount to conceding that the defendant suffered from the medical condition of pedophilia. Quite the contrary, the State was attempting to convince the jury that the defendant was a criminal \u2014 a \u201cchild molester\u201d \u2014 and not simply a mentally ill pedophiliac whose capacity to appreciate his criminal conduct was impaired. For these reasons, I believe that the majority errs in holding that the trial court abused its discretion by failing to exclude the evidence of the defendant\u2019s prior convictions for taking indecent liberties with children. The evidence was admissible under Rule 705 and its probative value was not outweighed by any danger of unfair prejudice so as to require its exclusion under Rule 403.\nFor the foregoing reasons, I respectfully dissent from the decision of the majority.\nJustice MEYER joins in this dissenting opinion.", "type": "dissent", "author": "Justice Mitchell" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.", "James P. Cooney III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRED HOWARD COFFEY, JR.\nNo. 253A91\n(Filed 17 June 1994)\n1. Criminal Law \u00a7 1355 (NCI4th(\u2014 first-degree murder \u2014 mitigating circumstance \u2014no significant history of prior criminal activity \u2014 activity subsequent to murder but before sentencing \u2014 not relevant\nThe trial court erred when sentencing defendant for a first-degree murder committed in 1979 by admitting convictions in 1986 as relevant to the mitigating circumstance of no significant history of prior criminal activity. \u201cHistory of prior criminal activity\u201d in N.C.G.S. \u00a7 15A-2000(f)(l) pertains only to that criminal activity committed before the murder; if this language were to refer to defendant\u2019s criminal activity up to the time of sentencing, the word \u201cprior\u201d would have no meaning since at the time of sentencing the defendant\u2019s criminal activity prior to sentencing is identical to his \u201chistory of criminal activity.\u201d The only other meaningful point in time is the date of the crime, which is the point of reference for nearly every aggravating and mitigating circumstance, including that aggravating circumstance in N.C.G.S. \u00a7 15A-2000(e)(3) pertaining to whether defendant had been previously convicted of a felony involving the use or threat of violence to the person. There was prejudice in that the jury almost certainly considered defendant\u2019s entire criminal history in determining whether the mitigating circumstance existed. N.C.G.S. \u00a7 15A-1443(a).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nChronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes. 7 ALR5th 263.\n2. Evidence and Witnesses \u00a7 2171 (NCI4th) \u2014 first-degree murder \u2014sentencing \u2014defense psychiatric experts \u2014cross-examination concerning indecent liberties convictions after murder \u2014 prejudicial\nThe trial court erred in a sentencing hearing for the first-degree murder of a ten year old girl in 1979 by allowing the State to cross-examine a defense psychiatrist and psychologist concerning defendant\u2019s indecent liberties convictions in 1986 where the experts had used the convictions as part of the basis for a diagnosis of pedophilia and PTSD. Under N.C.G.S. \u00a7 8C-1, Rule 705, a party cross-examining an expert witness may generally inquire into the facts on which the expert\u2019s opinion is based, but the court must inquire under N.C.G.S. \u00a7 8C-1, Rule 403 whether the testimony should be excluded because its probative value is substantially outweighed . by the danger of unfair prejudice. The prejudicial effect of nine counts of indecent liberties is manifest and it is evident that the convictions had little or no probative value for the purpose of supporting the experts\u2019 opinions. Moreover, defendant\u2019s pedophilia was irrelevant to the aggravating circumstances submitted and does not bear on any of the mitigating circumstances other than the ones dealing with emotional disturbance and impaired capacity, for which it only corroborates the experts\u2019 opinions.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 32 et seq.\nAdmissibility of expert testimony as to criminal defendant\u2019s propensity toward sexual deviation. 42 ALR4th 937.\nJustice PARKER did not participate in the consideration or decision in this case.\nJustice MITCHELL dissenting.\nJustice MEYER joins in this dissenting opinion.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment sentencing him to death imposed by Saunders, J., presiding at a resentencing hearing held at the 6 May 1991 Criminal Session of the Superior Court, Mecklenburg County. Heard in the Supreme Court on 3 November 1992.\nLacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.\nJames P. Cooney III, for defendant-appellant." }, "file_name": "0412-01", "first_page_order": 452, "last_page_order": 465 }