No. COA 13-824 TWENTY-SIXTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Mecklenburg)

MICHAEL RASHAWN CROWDER )

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DEFENDANT-APPELLANT’S BRIEF

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ii

INDEX

TABLE OF CASES AND AUTHORITIES..............................................................v

QUESTIONS PRESENTED.....................................................................................1

PROCEDURAL HISTORY......................................................................................2

GROUNDS FOR APPELLATE REVIEW...............................................................2

STATEMENT OF THE FACTS...............................................................................3A. Pretrial And Trial Rulings On Disclosing To The Jury The

Victim’s Possession of a Gun And The Failure To Arrest The Shooter......................................................................................................3

1. Hearings On The Victim’s Weapon......................................................3

2. Hearings On The State’s Decision Not To Arrest The Shooter............4

B. The Eyewitness Watched A Tall, Slim Male Shoot Into The Van...........5

C. Bricks Of Marijuna Were Found In The Victim’s Van............................6

D. Hearing On Cell Phone Data.....................................................................8

ARGUMENT............................................................................................................9

I. AS THE STATE’S EVIDENCE OF THE DRUG TRANSACTION FAILED TO RISE ABOVE SUPPOSITION AND CONJECTURE THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT’S MOTION TO DISMISS.................................9

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A. The State Presented No Evidence Concerning What Drug Transaction Had Been Planned...............................................................11

B. The State Failed To Present Evidence Of The Elements Of The Underlying Offense Sufficient To Withstand A Motion To Dismiss....................................................................................................13

II. ALLOWING THE STATE TO SUGGEST TO THE JURORS THAT CUNNINGHAM WAS FACING TRIAL AFTER THE COURT HAD RULED AT THE STATE’S REQUEST THAT THE STATE’S DECISION NOT TO CHARGE CUNNINGHAM COULD NOT BE REVEALED TO THE JURY VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL..........................................................................................................20

A. After The Court Ruled The Jurors Should Not Learn The Shooter Was Not Charged, The State Suggested To The Jury That He Had A Lawyer.................................................................................................21

B. The Prosecutor Had A Duty To Construct His Argument From Evidence Properly Admitted At Trial.....................................................23

III. AS THE JURORS WERE INSTRUCTED ON FELONY MURDER BASED ON ACTING IN CONCERT NOT ALLOWING THE JURORS TO LEARN NO WARRANT HAD ISSUED AGAINST THE MAN IDENTIFIED AS THE SHOOTER VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS..................................................................25

A. In The Light Most Favorable To The State, Crowder Could Only Be Guilty Of Felony Murder Based On Acting In Concert....................26

B. As The Jury Was Instructed On Acting In Concert, If The State Lacked Evidence Cunningham Shot The Victim This Information Was Constitutionally Relevant................................................................29

IV. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE THAT THE DEFENDANT HAD SPENT MONTHS IN A FEDERAL HALFWAY HOUSE...............................................................33

iv

CONCLUSION.......................................................................................................37

CERTIFICATE OF SERVICE AND FILING........................................................38

CERTIFICATE OF COMPLIANCE......................................................................38

v

TABLE OF AUTHORITIES

Cases

Berger v. California, 393 U.S. 314 (1969)..............................................................32Berger v. United States, 295 U.S. 78 (1935)...........................................................24Chambers v. Mississippi, 410 U.S. 284 (1973).......................................................31Green v. Georgia, 442 U.S. 95 (1979)....................................................................32Jackson v. Virginia, 443 U.S. 307 (1979)...............................................................19State v. Addor, 183 N.C. 687, 110 S.E. 650 (1922)................................................14State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991)...........................................19State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002)...........................................21State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993).............................................11State v. Barts, 321 N.C. 170, 362 S.E.2d 234 (1987)..............................................32State v. Baskin, 190 N.C.App. 102, 660 S.E.2d 566 (2008)....................................29State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989).............................................37State v. Campbell, 296 N.C. 394, 250 S.E.2d 228 (1979).......................................30State v. Davis, 325 N.C. 693, 386 S.E.2d 187 (1989).............................................14State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006)............................................13State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987)........................................11State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988).........................................34State v. Graham, 200 N.C. App. 204, 683 S.E.2d. 437 (2009)...............................26State v. Harris, 361 N.C. 400, 646 S.E.2d 526 (2007)......................................14, 15State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972)...............................................14State v. Herring, 176 N.C.App. 395, 626 S.E.2d 742 (2006).................................17State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930).............................................15State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).............................................29State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002).............................................23State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954)..........................................36

vi

State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1997)............................................14State v. Parker, 66 N.C. App. 355, 311 S.E.2d 327 (1984)..............................17, 18State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).......................................10, 11State v. Powell, 6 N.C.App. 8, 169 S.E.2d 210 (1969)...........................................18State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475 (1994)..............................34State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002)...........................................24State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994)............................................24State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992)................................................34State v. Smith, 186 N.C.App. 57, 650 S.E.2d 29 (2007)........................................10State v. Spicer, 299 N.C. 309, 261 S.E.2d 893 (1980)............................................29State v. Squires, 357 N.C. 29, 591 S.E.2d 837 (2003)............................................16State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003)............................................24State v. Yancey, 155 N.C. App 609, 573 S.E.2d 243 (2002)...................................37

Statutes

N.C. Gen. Stat. § 7A-27(b)........................................................................................2N.C. Gen. Stat. § 8C-1, Rule 401............................................................................33N.C. Gen. Stat. § 8C-1, Rule 402......................................................................33, 36N.C. Gen. Stat. § 8C-1, Rule 403......................................................................33, 36N.C. Gen. Stat. § 8C-1, Rule 404(a)..................................................................33, 36N.C. Gen. Stat. § 8C-1, Rule 608......................................................................33, 36N.C. Gen. Stat. § 15A-1230(a)................................................................................24N.C. Gen. Stat. § 15A-1443(b)................................................................................25N.C. Gen. Stat. § 15A-1444(a)..................................................................................2N.C. Gen. Stat. § 90-94(d)(4)..................................................................................14N.C. Gen. Stat. § 90-95(a).......................................................................................13

vii

Rules

Rule 4(a) N.C.R.App.P..............................................................................................2

Constitutional Provisions

N.C. Const. Art. I, Sec. 19...........................................................................19, 20, 26N.C. Const. Art. I, Sec. 23.......................................................................................33N.C. Const. Art. I, Sec. 24.................................................................................20, 26N.C. Const. Art. I, Sec. 35...........................................................................19, 20, 26U.S. Const. Amend. V......................................................................................passimU.S. Const. Amend. VIII.........................................................................................24U.S. Const. Amend. XIV..................................................................................passim

No. COA 13-824 TWENTY-SIXTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Mecklenburg)

MICHAEL RASHAWN CROWDER )

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. WHETHER WHEN THE EVIDENCE OF THE UNCHARGED UNDERLYING FELONY AT BEST ONLY SUPPORTED CONJECTURE AND SUPPOSITION THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS?

II. WHETHER THE PROSECUTOR’S VIOLATION DURING CLOSING ARGUMENT OF THE RULE HE HAD ASKED THE COURT TO APPLY REQUIRES A NEW TRIAL?

2

III. WHETHER NOT ALLOWING THE JURY TO LEARN THAT THE MAN IDENTIFIED AS THE SHOOTER WAS NOT CHARGED WITH ANY CRIME VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL?

IV. WHETHER ADMITTING INTO EVIDENCE REFERENCES TO THE DEFENDANT’S SIX-MONTH STAY IN A FEDERAL HALFWAY HOUSE CONSTITUTES REVERSIBLE ERROR?

PROCEDURAL HISTORY

On 15 February 2010 Michael Rashawn Crowder was indicted on one count

of first degree murder. The case came on for trial at the 20 February 2013 Session

of the Mecklenburg County Superior Court, the Honorable C. Thomas Edwards,

presiding. On 26 February 2013 the jury found Crowder guilty of first degree

murder based on felony murder. The court sentenced Crowder to life in prison

without parole.

Notice of appeal was given in open court on 26 February 2013. The settled

Record on Appeal was filed in this Court on 13 July 2013 and docketed on 29 July

2013.

GROUNDS FOR APPELLATE REVIEW

This is an appeal of right pursuant to the provisions of N.C. Gen. Stat. §§

7A-27(b) and 15A-1444(a) and Rule 4(a) N.C.R.App.P. from final judgments of

3

conviction by a defendant who pled not guilty and was found guilty of non-capital

crimes.

STATEMENT OF THE FACTS

On March 7, 2007, Aaron Shawn Wood was shot and killed while sitting in

a van that had been loaded with bricks of marijuana. George Young testified he

heard shots coming from the cul de sac by his home. Young went to the window

and watched a tall and slim man fire into the van. Two black males were in the

van, the victim, and a stout, short male. Michael Crowder, who was described as

short and stout, was arrested for felony murder on February 8, 2010. Travis

Cunningham, who was tall and slim, was not arrested. An owner’s manual for a

handgun was found in the van’s glove box and a gun holster was located under the

driver’s seat. No gun was recovered.

A. Pretrial And Trial Rulings On Disclosing To The Jury The Victim’s Possession of a Gun And The Failure To Arrest The Shooter

1. Hearings On The Victim’s Weapon

The State moved pretrial to prevent the defense from presenting evidence

that one of the items found in the glove compartment of the van driven by the

victim, Shawn Wood, was an owner’s manual for a Glock handgun. (Rpp. 36-37,

Tp. 10) An associate of Wood knew he regularly carried a gun. (Tp. 10) The gun

was kept by the driver’s seat of his vehicle. Defendant argued the evidence of gun

4

possession was relevant as Wood’s proclivity to keep a gun raised doubts as to

which party intended to use a dangerous weapon to commit a felony. (Rpp. 38-41;

Tp. 11) Defendant argued possession of a gun was also admissible under 404(b), as

it showed mode, intent, or plan on the part of the victim. (Tp. 14) The court

deferred ruling on the issue. (Tp. 15)

The court reconsidered the motion during the trial. Defense counsel argued

that whether it was Wood or the man who shot Wood who brought the gun to the

scene was relevant to felony murder. (Tpp. 64-65) The State conceded the holster

found in the van was relevant evidence. (Tp. 67) The court ruled the holster was

admissible, but Wood’s habit of carrying a gun was inadmissible. (Tpp. 68-69)

2. Hearings On The State’s Decision Not To Arrest The Shooter

The State filed a motion in limine to prevent the jury from learning the

shooter had not been charged. (Rpp. 47-48; Tp. 26) The State conceded both sides

could mention Cunningham may have been the person who shot and killed Wood,

but sought to exclude any evidence that Cunningham was not charged. (Tp. 27)

Defendant argued eyewitness testimony would show Cunningham was the shooter.

(Rpp. 49-50; Tp. 27) The State responded it agreed “everybody”, including the

State, would be pointing the finger at Cunningham, but the State had the discretion

5

not to charge the shooter. (Tp. 30) The Court deferred its decision until after it had

heard evidence. (Tp. 30).

During the testimony of Susan Sarvis, a homicide detective with the

Charlotte-Mecklenburg Police Department, the jury was sent out so that the court

could re-examine the State’s failure to arrest Cunningham. (Tp. 334) Defendant

asked to be allowed to question Sarvis about the various steps in her investigation

that tended to show Cunningham was the shooter. The court ruled the defense

could ask anything involving the investigation except the fact that Cunningham

was not charged. (Tpp. 335-336) During voir dire, defense asked Sarvis if she had

sought warrants against Cunningham or had been advised to seek a warrant by the

district attorney’s office. She responded “No” to both questions. (Tp. 336)

B. The Eyewitness Watched A Tall, Slim Male Shoot Into The Van

George Young was eating dinner at approximately 6 to 6:30 p.m. with his

family in their home on Greenview Place when he heard three or four shots coming

from the cul de sac. (Tp. 142-143) Young rushed to the window. He saw two men

inside a van. A kind of heavy black male was in the driver’s seat of the van and a

“stout-like” black male seemed to be picking up something in the back of the van.

The man standing outside of the passenger side of the van had fairly brown skin

and was tall and slim. (Tpp. 152, 167)1 The tall, thin man was shooting into the van

1 At the time of his arrest Michael Crowder was 5’10” and weighed about 189 to 190 pounds. (Tp. 328) When Travis Cunningham was in prison on unrelated

6

through the open passenger door. Young heard three or four more shots. (Tpp. 151-

153) The stout man was still in the van, while the tall, thin man shot repeatedly

into the van. (Tp. 153) Young had seen the shooter come in and out of a house on

Greenview. He believed the shooter lived or stayed in a house on the street. (Tp.

168) Young saw the shooter both before and after the incident. He told the officers

he saw a burgundy 735 BMW with a South Carolina license plate parked on the

street. (Tp. 169) Wood died from multiple gunshot wounds. (Tp. 427)

C. Bricks Of Marijuana Were Found In The Victim’s Van

Angela Flanders, an investigator with Charlotte-Mecklenburg police,

collected evidence at the scene. Flanders found pieces of a copper jacket and some

fragments lying between the driver’s seat and door. She collected eight bricks of

marijuana from the van having a total weight of 3103 grams or 6.84 pounds. (Tpp.

215, 250, 309) A black gun holster and two cell phones and a Treo Palm belonging

to Wood were found behind the driver’s seat on the floorboard. (Tpp. 220, 313,

339) Todd Nordhoff, a firearm and toolmark examiner, explained that as the

fragments were very small, he was unable to determine the exact caliber of the

weapon from the fragments. He approximated the fragments came from a .38

or .357 caliber weapon. In his opinion the full jackets came from a .38 or .357

caliber bullet. Nordhoff tried to fit the pieces together to determine the number of

marijuana trafficking charges, his arrest record showed he was 6’4” tall and weighed “about 169, 170 pounds.” (Tp. 332)

7

bullets. He concluded the fragments came from six bullets and some of the bullets

were fired from the same gun. (Tpp. 265, 267-268, 270) Fingerprints found on the

bricks included: Travis Cunningham’s right thumb; one left middle finger of

Michael Crowder; and prints that did not belong to either Cunningham or the

defendant. (Tp. 292) DNA found on a cigarette lying near the passenger side front

tire corresponded to Cunningham. (Tp. 341)

Sheldon Wood, the brother of Shawn Wood, told the jury he knew his

brother was involved in drug dealing and had done a year and a half in prison for

selling drugs in 2009. After his brother was released from prison, Sheldon would

pick up his brother at a halfway house and take him to and from work. Shawn

Wood introduced his brother to a friend he met there, Michael Crowder. (Tpp. 96-

97, 100) On the day of the shooting Shawn Wood called his brother and asked him

to ride with him to meet two people, including the man from the halfway house.

Sheldon Wood did not go with him. (Tp. 98) In 2009, Sheldon Wood spent a year

and a half in prison for selling drugs. (Tp. 100)

Rickie Hooper worked with Wood in Wood’s trucking business. Hooper

testified that Wood’s fiancée owned a purplish-burgundy Dodge minivan. (Tpp.

110, 111) The day before the shooting, Wood told Hooper he was supposed to

meet up with a guy he had met in a halfway house the next day. Wood said the

meeting would stop his money problems. (Tp. 115) On the day of the shooting,

8

Hooper talked with Wood at about 6:00 p.m. Hooper heard voices in the

background, which sounded like two young black men. He did not recognize the

voices. Wood told Hooper he was with Travis and the guy from the halfway house.

(Tpp. 120, 123) Wood stayed at the McLeod Center from June 10, 2004 to August

31, 2005. Crowder was a resident from July 26, 2005 to January 19, 2006.

D. Hearing On Cell Tower Data

A hearing was held on whether Michael Dennis, an engineer for AT & T,

could testify to a correlation between pinging off of a particular cell phone tower

and the location of the cell phone. The court ruled various factors influence the use

of a particular tower including, but not limited to, the environment, the terrain, the

topography, the strength of the signal, the wattage, both of the cell phone itself and

the antenna type and the traffic. The court ruled the probative value was not

outweighed by the prejudicial effect. Dennis was allowed to testify to his opinion.

(Tp. 369) According to his analysis, a phone number billed to Crowder’s sister

started receiving or placing calls near 1042 Industrial Drive in Matthews at 4:11

p.m. and ended pinging a tower location near the shooting at 6:27 p.m. (Tpp. 380-

385)

9

10

ARGUMENT

I. AS THE STATE’S EVIDENCE OF THE DRUG TRANSACTION FAILED TO RISE ABOVE SUPPOSITION AND CONJECTURE THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT’S MOTION TO DISMISS

11

Michael Crowder was sentenced to life in prison without possibility of

parole based on evidence of a drug transaction that was so inchoate it is impossible

to guess which party intended to sell, which party intended to buy or what the

amount was which was intended to be bought or sold. The evidence shows a man

sitting in a van loaded with drugs, a man in the back of the van and a man outside

of the van. No evidence shows who arrived with the marijuana or what plans had

been made concerning the marijuana before the men arrived at the cul de sac. It is

equally plausible that Wood initiated a deal to purchase marijuana and intended an

armed robbery of Crowder as it is that Crowder intended to purchase marijuana

from Wood. The State’s theory seems to have been that Wood brought eight bricks

of marijuana and Crowder intended to purchase everything in Wood’s van. No

evidence supported this theory. It is at best a guess that Wood brought the

marijuana to the scene and, if he did, what part of it Crowder may have intended to

buy. All of the State’s evidence shows that Crowder was inside the van, in danger

of being shot himself, when the fatal shots were fired. Defendant moved to

dismiss the charge at the end of the State’s evidence. The court denied the motion.

(Tp. 429)

The jurors were instructed they could find Crowder guilty of felony murder,

if they found beyond a reasonable doubt that the defendant, by himself or with

another with whom he was acting in concert, knowingly possessed or attempted to

12

possess more than one and a half ounces of marijuana and while attempting to

commit this felony the defendant or another with whom he was acting in concert

killed the victim. (Tp. 508; Rp. 66)

Viewing the entirety of the evidence in the light most favorable to the State,

the evidence falls far short of the State’s burden to provide substantial evidence

that Crowder was guilty of possession or attempted possession of a felonious

amount of marijuana, either by himself or acting in concert with another. Without

sufficient evidence of an underlying felony, the felony murder verdict cannot

stand.

STANDARD OF REVIEW

This Court reviews the trial court’s denial of a motion to dismiss de novo.

State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). The appellate court

must determine “whether there is substantial evidence (1) of each essential element

of the offense charged . . . and (2) of defendant’s being the perpetrator of such

offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The

evidence is viewed in the light most favorable to the state, giving the state the

benefit of every reasonable inference. State v. Etheridge, 319 N.C. 34, 47, 352

S.E.2d 673, 681 (1987). If circumstantial evidence is “sufficient only to raise a

suspicion or conjecture as to either the commission of the offense or the identity of

the defendant as the perpetrator of it, the motion [to dismiss] should be allowed . . .

13

This is true even though the suspicion so aroused by the evidence is strong.. Powell

at 98, 261 S.E.2d at 117; State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993)

DISCUSSION

A. The State Presented No Evidence Concerning What Drug Transaction Had Been Planned

Michael Crowder’s conviction for felony murder rested on the jury’s finding

that Crowder was guilty of possession or attempted possession of a felonious

amount of marijuana. While it is beyond dispute that the State’s evidence shows

three men were considering some sort of drug transaction, the evidence of just

what that transaction might have been—who was selling, who was buying and

what portion of the drugs was to be transferred—is non-existent. The State’s

evidence, viewed in the light most favorable to the State showed:

1. Aaron Wood expected to make money on March 7, 2007. He told his friend,

Ricky Hooper, that his money problems would be over the next day after he

met with his acquaintance from the halfway house. Wood did not mention a

drug transaction as the source of this money. (Tp. 115)

2. Wood was the instigator of the transaction. The State’s evidence shows the

first call on the afternoon of March 7 was an incoming call to Crowder at

4:11 p.m. Crowder’s phone was still near his home. (Tp. 380)

14

3. All of the marijuana at the scene was in or next to Wood’s van. (Tpp. 226-

234) The State presented no evidence that Crowder or Cunningham had

actual or constructive possession of the marijuana.

4. No witness testified to having seen who drove the marijuana to the cul de

sac. It is equally possible that Crowder and Cunningham brought the

marijuana and carried it to Wood’s van, as that Wood drove to the cul de sac

with a van full of marijuana intending to sell it to the other two men. No one

testified that either Crowder or Wood possessed marijuana prior to arriving

at the cul de sac. No testimony indicated any prior drug deals participated in

by either man during this period. Any scenario beyond the fact that the three

men were in or near a van loaded with marijuana bricks is pure conjecture.

5. One fingerprint of Crowder, one fingerprint of Cunningham and fingerprints

of others were found on the marijuana. (Tp. 292)

6. The only evidence that any of the men came to the scene with a gun was that

Wood had a holster in his van. (Tp. 220) No testimony showed that either

Crowder or Cunningham was known to carry or use a firearm.

While this is sufficient to show some sort of drug deal was under discussion, it

is not sufficient to show that Crowder was attempting to possess a felonious

amount of marijuana. The State put on no evidence of what the transaction actually

was—who was selling, who was buying or what amount was being negotiated. No

15

witness testified to any knowledge of a drug transaction. No witness testified to

seeing the men or the drugs before the shooting. It is equally possible to conjecture

that Wood had called saying he wanted to buy marijuana from Crowder, while

actually intending an armed robbery of the drugs, as it is to guess that Crowder

intended to purchase marijuana. The core of the State’s sufficiency deficit is that

the utter lack of evidence concerning the drug transaction. Who was committing

what crime can be nothing other than conjecture.

B. The State Failed To Present Evidence Of The Elements Of The Underlying Offense Sufficient To Withstand A Motion To Dismiss

To prove possession of a controlled substance, The State must show: (1) the

defendant possessed the substance; and (2) the substance was a controlled

substance. N.C. Gen. Stat. § 90-95(a); State v. Elliott, 360 N.C. 400, 412, 628

S.E.2d 735, 743-44 (2006). Marijuana is a controlled substance. Possession of

more than one and one-half ounces of marijuana is a Class I felony. N.C. Gen. Stat.

§ 90-94(d)(4) “Where [contraband is] found on the premises under the control of

an accused, this fact, in and of itself, gives rise to an inference of knowledge and

possession which may be sufficient to carry the case to the jury on a charge of

unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).

"However, unless the person has exclusive possession of the place where the

narcotics are found, the State must show other incriminating circumstances before

16

constructive possession may be inferred." State v. Davis, 325 N.C. 693, 697, 386

S.E.2d 187, 190 (1989). "The elements of an attempt to commit any crime are: (1)

the intent to commit the substantive offense, and (2) an overt act done for that

purpose which goes beyond mere preparation, but (3) falls short of the completed

offense." State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1997). “The

attempt is the direct movement towards the commission after the preparations are

made.” State v. Addor, 183 N.C. 687, 690, 110 S.E. 650, 651 (1922).

To show Crowder either possessed or attempted to possess marijuana, the

State needed to present evidence of power and intent to control the drug or the

attempt to do so. In State v. Harris, 361 N.C. 400, 646 S.E.2d 526 (2007), our

Supreme Court held the State had not met its burden of proving possession of

marijuana when the State’s only evidence was the presence of marijuana

metabolites in the defendant’s urine. The Court held that the State’s evidence fell

short of proving power and intent to control: “Without more, the presence of

marijuana metabolites found in defendant's urine sample only raises a suspicion or

conjecture that defendant had the power and intent to control the substance's

disposition. From this test result, the jury can know that the metabolites were

present, but is left to speculate as to how the substance resulting in those

metabolites entered defendant's system. Accordingly, this evidence does not rise to

the level of ‘tending to prove the fact in issue’ or ‘reasonably conduc[ing] to [that]

17

conclusion as a fairly logical and legitimate deduction.’" Id. at 404, 646 S.E. 2d. at

529, quoting State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930). In the

instant case, the State’s only evidence of attempted possession is that Crowder was

in a van belonging to someone else and had touched one of the marijuana bricks.

The State did not present evidence either that Crowder had the power or intent to

control the drugs or attempted to control the drugs. The jury was left to speculate

about whether Crowder intended to buy or sell marijuana, and if he did intend to

buy marijuana how much of the marijuana he intended to purchase. It is equally

possible, as one of the bricks was broken (Tp. 228), that Crowder was just

checking out the grade of the marijuana and had no intention to purchase what was

in the van.

Cases in which our Courts have found sufficient evidence of drug sale or

possession further illustrate the type of factual background the State needs to to

meet its burden. Cases in which the State’s evidence was found to be sufficient

include details of prior deals between the parties, evidence of plans to sell or

purchase drugs and details of the transaction. For example, in State v. Squires, 357

N.C. 29, 591 S.E.2d 837 (2003), our Supreme Court found sufficient evidence of

an attempt to sell cocaine when the State’s evidence showed: the defendant and the

victim had a business relationship involving several drug transactions over a six-

month period; the victim had contacted the victim to plan an exchange of drugs for

18

money the night of the incident; the defendant brought cocaine and digital scales to

the meeting; and the defendant asked the victim twice for the money. The Court

summarized the defendant’s admissions to possession of the drugs and scales while

attempting to effectuate the sale was “sufficient to establish both intent and an act

in preparation of an actual transfer of cocaine.” Id. at 535-536, 591 S.E.2d at 841.

Unlike the facts present in Squires, the instant case lacks evidence of prior dealings

between the parties, of statements that either party intended to exchange drugs or

evidence of which party brought the drugs to the cul de sac. The most the state’s

evidence shows, in the light most favorable to the state, is that the parties had met

at the cul de sac, the drugs were in the possession of the Wood at the time of the

shooting and Crowder and Cunningham had each touched one of the bricks.

In a felony murder case in which a drug dealer was shot, this Court found

the evidence of the underlying felony sufficient when the State’s evidence showed:

the defendant knew that the victim was a large scale drug dealer and that the victim

had a substantial amount of drugs and money at his apartment; the defendant and

the victim had dealt drugs with each other in the past; the defendant had discussed

details of the crime with another inmate, including telling the other inmate about a

plot to rob the victim of his drugs. State v. Herring, 176 N.C.App. 395, 399-400,

626 S.E.2d 742, 746 (2006). In the instant case, the State’s evidence showed the

defendant and the victim were acquainted, but not that they had dealt drugs with

19

each other or had even discussed drugs. No evidence showed Crowder was aware

that Wood had reverted to drug dealing. The State’s only evidence of Wood’s

current means of earning a living showed he had worked in landscaping and was

running a legitimate trucking business at the time of the shooting. (Tp. 110) No

evidence showed that either Wood or Crowder knew the other party had a

substantial amount of drugs. No evidence showed Crowder, or anyone else, had

discussed details of the incident.

Possession of a gun and preparations to commit a crime are not sufficient to

meet the State’s burden. For example, this Court held there was insufficient

evidence of attempted armed robbery in State v. Parker, 66 N.C. App. 355, 311

S.E.2d 327 (1984), when preparations had been made for an armed robbery. In

Parker the evidence showed the defendant had a pistol in his jacket, rode his

bicycle to a store and watched the business from bushes. He was seen just outside

the entrance to the store. This Court found the evidence insufficient to show an

attempt: “[f]or this evidence to amount to an attempt, it must show more than mere

preparation. . . .” Id. (quoting State v. Powell, 6 N.C.App. 8, 12, 169 S.E.2d 210,

213 (1969). As in Parker, Crowder was near the drugs, but the State had no

evidence that he had money to purchase the drugs or intended to purchase an

amount sufficient to constitute felonious possession of marijuana. The State

presented no evidence concerning how Wood expected to get a large sum of

20

money from Crowder other than Wood’s statement that Crowder owed him money.

The State presented no evidence that there had been an offer of money on the part

of either man or that any steps had been taken other than preliminary steps toward

either a sale or a buy of marijuana. The most the evidence supported was that

Crowder had traveled to a location at which he could have participated in either the

sale or purchase of some amount of marijuana and that at the time of the shooting

the drugs were in the control of Wood.

No evidence supported a finding that Crowder shot the victim, so the jury

was instructed it could find Crowder guilty based on acting in concert.. Witness

testimony indicated that Cunningham shot Wood. As the State decided not to

charge Cunningham with any crime, it appears even the State believed it lacked

sufficient evidence that Cunningham shot Wood. George Jones described the

shooter has being tall and thin, which matches Cunningham’s build. Jones testified

he was familiar with the shooter. No evidence indicated if Cunningham shot

Wood, why he shot him. It is possible that Wood came to the cul de sac planning to

rob Crowder. When Wood pulled out his gun, Cunningham began shooting. It is

also possible that the shooting had nothing to do with the drugs in Wood’s van.

Cunningham and Wood could have been arguing over a past deal or a woman.

Without more evidence, finding Crowder guilty based on acting in concert with

21

Cunningham when the State decided not to charge Cunningham, had to be based

on conjecture and supposition.

Michael Crowder’s conviction of first degree felony murder, resulting in a

sentence of life without parole, was based on woefully insufficient evidence of a

drug transaction in violation of Crowder’s constitutional right to due process under

the federal and state constitutions. U.S. Const. Amends. V and IV; N.C. Const. Art.

I, Secs. 19 and 35; Jackson v. Virginia, 443 U.S. 307 (1979); State v. Arnold, 329

N.C. 128, 140, 404 S.E.2d 822, 829 (1991). Accordingly, Crowder’s conviction

for murder, based solely on felony murder, must be vacated.

II. ALLOWING THE STATE TO SUGGEST TO THE JURORS THAT CUNNINGHAM WAS FACING TRIAL AFTER THE COURT HAD RULED AT THE STATE’S REQUEST THAT THE STATE’S DECISION NOT TO CHARGE CUNNINGHAM COULD NOT BE REVEALED TO THE JURY VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL

The State filed a motion in limine pre-trial requesting the defendant not be

allowed to introduce evidence showing that Travis Cunningham, the individual

who fit the description of the shooter, had not been charged with any crime. (Rpp.

47-48; Tp 26). After hearing testimony from an investigating officer, the court

ruled the defense could ask questions about the investigation of Cunningham, but

could not ask about the fact that Cunningham was not charged. (Tpp. 335-336)

22

During voir dire, the investigator acknowledged that Cunningham had not been

charged. (Tp. 336) Despite the court’s ruling that the prosecutor’s decision not to

arrest Cunningham could not come before the jury, the State’s closing argument

suggested Cunningham had been charged as he had a lawyer who was planning a

defense. (Tp. 467) The State’s insinuation, which was in violation of the ruling on

its motion in limine, that Cunningham had been charged violated Crowder’s right

to a fair trial before an unbiased jury. U.S. Const. Amends. V and XIV; N.C.

Const. Art. I, Secs. 19, 24 and 35.

STANDARD OF REVIEW

Where no objection has been made to a closing argument, the appellate court

reviews the remarks for gross impropriety. State v. Barden, 356 N.C. 316, 358, 572

S.E.2d 108, 135 (2002).

DISCUSSION

A. After The Court Ruled The Jurors Should Not Learn The Shooter Was Not Charged, The State Suggested To The Jury That He Had A Lawyer

The State filed a motion in limine to prevent the jury from learning that the

shooter had not been charged, even though it conceded “everybody”, including the

State, would be pointing the finger at Cunningham. (Tp. 30) Defense counsel

argued as eyewitness testimony would show Cunningham was the shooter, it was

relevant to the jury’s deliberations that Cunningham was not charged with any

23

crime. (Rpp. 49-50; Tp. 27) Detective Sarvis testified during voir dire that no

warrant had issued against Cunningham. (Tp. 336) The Court ruled the defense

could not bring out evidence that Cunningham had not been charged. (Tpp. 335-

336) Defendant adhered to this ruling. The jurors did not learn Cunningham had

not been charged.

Despite this ruling, the prosecutor in his closing argument suggested to the

jurors that Cunningham had a lawyer and outlined his lawyer’s strategy.

Now, if Travis Cunningham were in that chair in the middle of two lawyers right now and his lawyer was standing up in front of you, what do you think his lawyer would be telling you? Would his lawyer be saying, no, my client was the one who pulled the trigger? No. His lawyer would be doing the exact thing as Mr. Tin is going to do, pointing the finger at the other person. Travis Cunningham’s lawyer would be saying look at all of the evidence in the case that points to Michael Crowder as the shooter.

(Tp. 467) (emphasis added) While this argument is couched in the subjunctive

tense, the effect was to imply to the jurors Cunningham had a need for a lawyer,

had a lawyer and his lawyer had formulated a defense strategy. As in the jurors’

minds Cunningham would only need a lawyer if he had been charged with a crime

and his lawyer would only have developed a strategy to defend against the

shooting if his client had been so charged, the State’s argument must have led the

jurors to assume Cunningham was in fact preparing to defend himself in a murder

trial. As the jurors were instructed they could find Crowder guilty based on acting

24

in concert, the suggestion that the State had charged the shooter was both grossly

improper and grossly prejudicial.

Pre-trial the prosecutor explained to the court that while North Carolina

jurisprudence precludes a co-defendant from discussing the plea of other co-

defendants, the issue of a perpetrator who has not been charged is not discussed in

the cases. The prosecutor argued whether to charge an individual is “solely the

discretion of the district attorney’s office” it is not evidence that the defendant is

guilty or not guilty. (Tp. 27) Defense counsel responded his theory of the case was

eyewitness testimony would show it was Cunningham who shot the victim, not

Crowder: “[W]e’re not talking about the disposition of charges against somebody,

we’re talking about somebody who was not implicated, who our entire position is

they should because they’re the guilty party.” (Tp. 28)

The jurors were instructed if two or more persons joined in a common

purpose to commit felony possession of marijuana, the defendant on trial is not

only guilty of that crime if the other person commits the crime, but also guilty of

the shooting if “another with whom he was acting in concert killed the victim.”

(Tp. 508, Rp. 66) As the State had presented no evidence of Crowder acting in

concert with anyone other than Cunningham, it is highly unlikely that the jurors

would have found Crowder guilty based on acting in concert if they had learned

25

the State had decided it lacked sufficient evidence to charge Cunningham with any

crime.

B. The Prosecutor Had A Duty To Construct His Argument From Evidence Properly Admitted At Trial

Jury argument must stay within constitutionally permissible bounds:

Closing arguments must be constructed from fair inferences drawn only from

evidence properly admitted at trial. State v. Mann, 355 N.C. 294, 310, 560 S.E.2d

776, 786 (2002) During closing argument:

[A]n attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.

N.C. Gen. Stat. § 15A-1230(a) . “[I]t is the duty of the prosecutor, as much as it is

of the trial judge, to uphold the defendant’s right to a fair hearing.” State v.

Sanderson, 336 N.C. 1, 8, 442 S.E.2d 33, 38 (1994). Prosecutorial integrity and

fairness are a component of due process of law. Berger v. United States, 295 U.S.

78 (1935). Where the effect of prosecutorial misconduct deprives the defendant of

a fair hearing, our Supreme Court has granted relief. State v. Rogers, 355 N.C.

420, 562 S.E.2d 859 (2002). Prosecutorial argument which is not warranted by the

law is a violation of a defendant’s constitutional rights under the Fifth, Eighth and

Fourteenth Amendments to the United States Constitution. Where no objection has

26

been made, the appellate court reviews the remarks for gross impropriety. State v.

Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003)

In this case it was a gross impropriety for the prosecutor to insinuate to the

jury that the individual, whom the evidence showed was the shooter, had hired an

attorney and the attorney’s strategy was to put the blame on Crowder. This would

be a questionable tactic even if there had been no ruling on the issue. The fact that

the State had argued strenuously that its decision not to charge Cunningham was

irrelevant and the court had ruled in the State’s favor, greatly heightens the

impropriety of suggesting to the jurors that Cunningham had been charged and

would face trial.

Crowder was denied due process, when the State suggested to the jury that

Cunningham was charged, after defense counsel adhered to the court’s ruling that

the jurors could not be told that he was not charged. Constitutional error requires

the State to prove beyond a reasonable doubt that not one juror would have been

persuaded to change their verdict. N.C. Gen. Stat. § 15A-1443(b). Suggesting to

the jury that the man who fired the shots had been charged with murder, when the

State had decided not to charge him, cannot be found to be harmless. The

prosecutor’s argument was grossly improper as: 1) it violated the court’s ruling; 2)

the defense had adhered to the court’s ruling to its detriment; and 3) the argument

went to the heart of the jury’s verdict, whether the State had sufficient evidence

27

against Cunningham to find Crowder guilty by acting in concert. Michael Crowder

must be granted a new trial.

III. AS THE JURORS WERE INSTRUCTED ON FELONY MURDER BASED ON ACTING IN CONCERT NOT ALLOWING THE JURORS TO LEARN NO WARRANT HAD ISSUED AGAINST THE MAN IDENTIFIED AS THE SHOOTER VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS

As shown above, the State filed a motion in limine pre-trial requesting the

defendant not be allowed to introduce evidence that would show the jury that

Travis Cunningham had not been charged with any crime. The court granted this

motion. (Tpp. 26, 335-336). The State had minimal evidence of the drug

transaction, no evidence that the defendant or Cunningham had brought a gun to

the scene and no evidence that the defendant intended a gun be brought to the

scene. The jury was instructed on felony murder based on acting in concert. The

court’s ruling that the jury could not hear the State failed to charge the man who

the eyewitness described as the shooter and who was the only person with whom

the defendant could have been acting in concert violated Michael Crowder’s right

to a fair trial and due process. U.S. Const. Amends. V and XIV; N.C. Const. Art. I,

Secs. 19, 24 and 35.

28

STANDARD OF REVIEW

“The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d. 437, 444 (2009),

appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

DISCUSSION

A. In The Light Most Favorable To The State, Crowder Could Only Be Guilty Of Felony Murder Based On Acting In Concert

George Jones was eating dinner with his family when he first heard shots

fired in the cul de sac by his home. He rushed to his bay window and saw a man

shooting into a van. Jones described the shooter to the jury and acknowledged he

recognized the man:

Q. And the first thing you saw, upon looking out of your window, was an individual shooting into the passenger side of the van?

A. Yes.

Q. And you noticed that that individual, he was tall and slim?

A. Yes.

Q. And you noticed that he had—he was a black male?

A. Yes.

Q. And he had a darker complexion than you?

A. About the same.

Q. Do you remember telling Detective Sarvis that he had maybe a little bit darker complexion?

A. Could be.

29

Q. And when you saw this person, you recognized him; is that correct?

A. I didn’t recognize him that day.

Q. But you had seen him on other occasions; is that correct?

A. Yes.

Q. On the street that you live.

A. Yes.

Q. And it was your belief that he lived or stayed at that house?

A. Yes.

Q. And you saw him on numerous occasions.

A. Yes.

* * *

Q. And one thing that you thought to yourself as you watched this or immediately afterwards, is, I can’t believe he shot this guy in broad daylight because he lives right here.

A. Yes.

Q. So you recognized that shooter right then as the guy that was living on the street.

A. Yes.

Q. And as far as any of the other people goes, you had not seen any of the other people before; is that correct?

A. No, I hadn’t.

(Tpp. 167-169) Jones also testified that a man, who matched Crowder’s body type,

was inside the van when Cunningham was shooting into the van.

30

Q. And while that man is shooting, what is—the man who’s picking up stuff in the van, what’s he doing at that point?

A. He’s still in the van.

(Tp. 153) No evidence contradicted this eyewitness testimony, which showed

Cunningham shot into the van while Crowder was inside. As undisputed testimony

showed the individual who had intentionally shot Wood multiple times had been

recognized by an eyewitness, any rational person would assume the shooter had

been arrested and charged with murder. Allowing the jurors, who knew from the

eyewitness testimony that Crowder was not the shooter, to reach a decision based

on acting in concert, without telling the jurors the State did not believe it had

sufficient evidence to even charge the shooter violated Crowder’s rights to due

process and to a fair trial.

B. As The Jury Was Instructed On Acting In Concert, If The State Lacked Evidence Cunningham Shot The Victim This Information Was Constitutionally Relevant

Before the trial began, the court held a hearing on whether to grant the

State’s motion in limine to preclude the defense from bringing before the jury the

fact that Travis Cunningham had not be charged with any crime. The prosecutor

acknowledged he had been unable to find any cases on point:

MR. ASHENDORF: And Mr. Tin is right as far as I was unable to find a case exactly on this point as well, so I consulted the School of Government, Jeff Welty. He was unable to find one. They found some out-of-state support for it, another state, but I think it’s a case of first impression, I guess, for this Court.

31

(Tpp. 29-30) The court’s decision to exclude the fact that the shooter was not

charged was based on case law which decided a different issue—whether a

defendant could make reference to the disposition of charges against a co-

defendant. (Tp. 29, referring to State v. Lewis, 365 N.C. 488, 724 S.E.2d 492

(2012)2. In Lewis the Court reasoned “a defendant’s guilt must be determined

solely on the basis of the evidence against him.” Id. quoting State v. Campbell, 296

N.C. 394, 399, 250 S.E.2d 228, 230 (1979). The Court also explained the ruling

applied to instances in which “the conviction or plea of a co-defendant is offered as

evidence that the defendant is guilty of the same offense.” Id. at 498, 724 S.E.2d at

500. Unlike the situation in Lewis and Campbell, in the instant case there was no

co-defendant. More significantly, as the instruction on felony murder included

acting in concert, for the jurors to deliberate on acting in concert it was necessary

for them to consider the evidence against Cunningham. The fact that the State

deemed its evidence implicating Cunningham to be insufficient to charge was

highly relevant to the jury’s deliberations on whether to find Crowder guilty based

on acting in concert.

2 The State also handed up State v. Baskin, 190 N.C.App. 102, 660 S.E.2d 566 (2008) (Improper to make reference to the imposition of charges against a codefendant) and State v. Spicer, 299 N.C. 309, 261 S.E.2d 893 (1980) (Prosecutors may exercise discretion to charge or not charge, as long as they stay within the bounds of the Fourteenth Amendment.)

32

The State admitted Crowder’s guilt for felony murder depended on

Cunningham’s guilt: “[W]e agree that everybody is going to be pointing the finger,

us too—at Travis Cunningham if the evidence plays out like we think as being the

shooter, but we’re going to also be saying that this defendant was acting in concert

with Travis Cunningham in the drug felony and thereafter is responsible for felony

murder.” (Tp. 30) If the State considered its evidence implicating Cunningham was

so weak it could not even charge him, that information was relevant to the jury’s

decision. Jones testified he recognized the shooter and had seen him many times.

If the State did not have evidence that Cunningham was the person Jones

recognized, then there was the possibility of a third, unknown party, to be

considered. Evidence had been presented that Crowder had travelled to the site

with a “Travis”. Rickie Hooper told the jurors he had talked with Wood shortly

before the shooting. He identified the person with Crowder as Travis:

Q. (By Mr. Ashendorf) Mr. Hooper, I was asking you about this 6:05 p.m., you said, phone conversation you were having with Shawn. You told us about the voices in the background, and I had asked you just a minute ago did you ask Shawn who that was?

A. Yes.

* * *

Q. And what did Shawn say?

A. He said the guy from the halfway house and Travis—it started with a T—Travis Terrell or something like that. That’s what I remember.

33

(Tp. 124) If the State lacked evidence that the Travis who was with Wood in the

cul de sac was the shooter, then the State’s theory that Crowder was guilty of

felony murder based on acting in concert with Cunningham lacked support.

Exclusion of evidence relevant to the jury’s verdict is a constitutional

violation. The Supreme Court has instructed that exclusion of evidence relevant to

determination of guilt violates the due process clause. Chambers v. Mississippi,

410 U.S. 284 (1973). In Chambers the defendant had sought to admit evidence of

another man’s confession through three other witnesses. The trial court excluded

the evidence. The Supreme Court ruled that exclusion of this evidence deprived the

defendant of a trial in accord with fundamental standards of due process: “ Id. at

302. Exclusion of relevant evidence calls into question the ultimate “integrity of

the fact-finding process” and requires that the competing interest be closely

examined. Berger v. California, 393 U.S. 314, 315 (1969); see also Green v.

Georgia, 442 U.S. 95 (1979) (per curiam). In State v. Barts our Supreme Court

found evidence concerning the level of participation in a crime was relevant to the

jury’s decision and its exclusion violated the due process clause. State v. Barts, 321

N.C. 170, 362 S.E.2d 234 (1987).

The evidence in this case, viewed in the light most favorable to the State,

shows that Michael Crowder was inside the van when the shots were fired. He

could only be found guilty of felony murder based on acting in concert. It was

34

highly relevant that the State chose not to charge Travis Cunningham with any

crime. As the jurors heard evidence that Cunningham was the shooter, excluding

from their deliberations the fact that the State considered the evidence against

Cunningham to be weak violated Crowder’s constitutional right to due process. A

constitutional error requires a new trial unless this Court can find no juror would

have voted to acquit Crowder if they had learned that the State deemed its evidence

against Cunningham to be too weak to charge him with any crime. The State

cannot meet this burden. Crowder’s conviction must be vacated.

IV. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE THAT THE DEFENDANT HAD SPENT MONTHS IN A FEDERAL HALFWAY HOUSE

Evidence was elicited at trial that Michael Crowder had spent almost six

months in the McLeod Center, a halfway house in Charlotte. (Tp. 134) Witnesses

testified to Crowder as the individual Wood knew from the halfway house. The

defense filed a pretrial motion to preclude mention of Crowder’s prior convictions.

(Rpp. 21-22) A pretrial hearing was held to discuss the motion. (Tpp. 15-20) The

court ruled witnesses would be allowed to use the term “halfway house” when

quoting Shawn Wood. When not quoting Wood, witnesses could only refer to the

halfway house as the McLeod Center. (Tp. 20) The director of the McLeod Center

testified Wood stayed there for three months in 2005 and Crowder was a resident

for almost six months. One month of their stays overlapped. (Tpp. 133-134) As the

35

jury heard the term halfway house and were told Crowder stayed at the McLeod

Center for six months, the ruling failed to protect the defendant from the jury

learning that he had committed other unspecified crimes requiring a lengthy stay in

a halfway house. The fact of a prior conviction was not relevant to any issues in

this proceeding and was improper bad character evidence. This testimony violated

the Rules of Evidence and the constitutional right to due process. N.C. Gen. Stat. §

8C-1, Rules 401, 402, 403, 404(a) and 608; U.S. Const. Amends. V, XIV; N.C.

Const. Art. I, Secs. 19, 23.

STANDARD OF REVIEW

“Ordinarily, the determination of whether to exclude evidence is left to the

sound discretion of the trial court but the exercise of that discretion is reviewable

and when the intrinsic nature of the evidence itself is such that its probative value

is always necessarily outweighed by the danger of unfair prejudice, the evidence

becomes inadmissible under the rule as matter of law”’ State v. Robinson, 115 N.C.

App. 358, 361, 444 S.E.2d 475, 477 (1994) quoting, State v. Scott, 331 N.C. 39,

43, 413 S.E.2d 787, 789 (1992).

When an error is based on a constitutional right, the trial court’s ruling is a

question of law and is reviewed de novo. State v. Gardner, 322 N.C. 591, 594, 369

S.E.2d 593, 597(1988).

36

DISCUSSION

Crowder and Wood met while both were housed in the McLeod Center, a

federal prison halfway house. (Tpp. 16-17) Defendant moved to prevent witnesses

from referring to the halfway house. The State responded that the term “halfway

house” was relevant because witnesses would testify that Wood met “with his

friend from the halfway house.” Defendant offered to stipulate that the two men

had lived in the same place. (Tp. 17) The court ruled witnesses could quote Wood

saying “halfway house”. Other than quoting Wood, witnesses needed to refer to it

as the McLeod Center. (Tp. 18)

During trial witnesses used the term halfway house even when they were

paraphrasing conversations with Wood:

Q. Now, do you remember at some point your brother going to prison?

A. Yes.

Q. And when he got out of prison, do you remember him staying at a place that he referred to as a halfway house?

A. Yes, sir.

(Tp. 95-96)

* * *

A. Okay. He was stressed out, like I said, about the money situation, and the guy that owed some money or something broke—a favor that he did for him out at the halfway house, and he was supposed to meet up with him. . . .

37

(Tp. 115)

* * *

Q. And immediately after Shawn hung up the phone, did Shawn tell you who he had been talking to?

A. He said the guy—

MR. PRUDEN: Objection, your Honor.

MR. ASHENDORF: This would be a present-sense impression, your Honor.

THE COURT: Overruled. You may answer.

THE WITNESS: He said the guy from the halfway house.

Q. (By Mr. Ashendorf) The guy from the halfway house? Now, did you know who he was talking about, per se?

(Tp. 117) This witness was paraphrasing a conversation. He could easily have

substituted McCleod Center for “halfway house”. The prosecutor certainly did not

need to repeat the term “halfway house”.

It has long been the rule in North Carolina that the prosecution cannot offer

evidence “tending to show that the accused has committed another distinct,

independent, or separate offense.” State v. McClain, 240 N.C. 171, 173, 81 S.E.2d

364, 365 (1954). This is because the State cannot initially attack the character of

the accused. The effect is “to predispose the mind of the juror to believe the

prisoner guilty, and thus effectually to strip him of the presumption of innocence.”

Id. at 174, 81 S.E.2d at 366. As Sheldon Wood, Wood’s brother, had testified that

the halfway house was a place his brother had gone to after serving time in prison,

38

the jurors must have understood that Crowder had also served time for a prior

crime.

Evidence of Crowder’s stay in a halfway house, which was evidence of bad

character, was inadmissible under N.C. Gen. Stat. § 8C-1, Rules 401, 402, 403,

404(a) and 608. Relevant evidence may be inadmissible if the probative effect of

the evidence is substantially outweighed by the danger of unfair prejudice. N.C.

Gen. Stat. § 8C-1, Rule 403. As references to the halfway house were grossly

prejudicial and could easily have been replaced by less prejudicial descriptions, the

references should have been excluded under N.C. Gen. Stat. § 8C-1, Rule 403.

Evidence of bad character to show that the defendant acted in conformity therewith

is inadmissible under Rule 404(a). N.C. Gen. Stat. § 8C-1, Rule 404(a). “Rule

404(a) is a general rule of exclusion, prohibiting the introduction of character

evidence to prove that a person acted in conformity with that evidence of

character.” State v. Bogle, 324 N.C. 190, 200-201, 376 S.E.2d 745, 751 (1989).

Until a defendant offers evidence of good character, the State may not introduce

evidence of his bad character. State v. Yancey, 155 N.C. App 609, 611, 573 S.E.2d

243, 245 (2002); N.C. Gen. Stat. § 8C-1, Rules 608, 609.

The references halfway house, combined with the director’s testimony that

Crowder had stayed there for almost six months, were grossly prejudicial and were

39

intended to and did impact the jury’s guilt deliberations. Defendant respectfully

requests his conviction be vacated.

CONCLUSION

For the reasons set forth above, Defendant respectfully contends that this

Court should reverse his conviction for first degree murder.

Respectfully submitted this the 28th day of August 2013.

Electronic Filing/s/ Marilyn G. OzerAttorney for Appellant211 North Columbia StreetChapel Hill, NC 27514(919) 967-8555redwood@nc.rr.com

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed

electronically pursuant to Rule 26.

I further hereby certify that a copy of the above and foregoing Defendant-

Appellant’s Brief has been duly served upon Melissa L. Trippe, Special Deputy

Attorney General, by email to mtrippe@ncdoj.gov.

This the 28th day of August 2013.

Electronic FilingMarilyn G. OzerAttorney at Law

40

CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief was prepared using Microsoft Word, Times

New Roman, 14-point type. The word count, including footnotes and citations, is

8,744 words.

This the 28th day of August 2013.

Electronic FilingMarilyn G. OzerAttorney at Law