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State v. Golphin8/25/2000
y about pepper spray. Kevin asked Sgt. Ellis several questions about the proper use of pepper spray and then asked him to read portions of the instructions for the use of pepper spray, which included: "Number six, extreme caution should be exercised when using an aerosol irritant projector against persons who have reduced sensitivity to pain. If such persons are not disabled with an aerosol irritant projector, they may react with violence."
As Kevin continually asked questions on cross-examination of State witnesses about the effects of pepper spray, and on direct examination offered only evidence concerning the use of pepper spray, the effects of pepper spray, and the warnings for pepper spray, the State's rebuttal demonstration showing the effects of pepper spray was relevant pursuant to N.C.G.S. § 8C-1, Rule 401.
Having determined the evidence of the demonstration was relevant, we must now determine whether the evidence should have been excluded because the probative value was substantially outweighed by the danger of unfair prejudice. See N.C.G.S. § 8C-1, Rule 403. Although Kevin argues the circumstances surrounding the demonstration were dissimilar to those surrounding the incident, that is not the focus of our review in the instant case. Kevin has not shown that the prejudicial effect of the demonstration substantially outweighed its probative value. Based on our review of the transcript, we cannot conclude the trial court abused its discretion in allowing the demonstration of the effects of pepper spray. Therefore, the trial court did not err in allowing the demonstration.
With regard to Kevin's argument about the use of law enforcement officers for the demonstration, he cannot show prejudice. When the trial court decided to allow the State to present the demonstration, it informed Kevin he would also be given an opportunity to present witnesses to be sprayed and then to testify. Kevin even indicated to the court that he would call his own witnesses to be sprayed and to testify. However, at the conclusion of the State's presentation, Kevin decided not to introduce alternative participants. In addition, the trial court stated, "Both sides may cross[-]examine each person as to their bias, and that they are, therefore, uh, not completely credible as to their description of their subjective experience." With Kevin's opportunity to offer alternative people to participate in the demonstration and his ability to cross-examine the law enforcement officers regarding their potential bias, he cannot show he was prejudiced by the use of law enforcement officers during this demonstration. This assignment of error is overruled.
By assignments of error, Kevin argues the trial court erred by admitting evidence offered, first, by the State and, second, by Tilmon regarding seizure of his luggage by the Fayetteville police a week prior to the murders. Kevin contends the evidence offered by the State concerning the alleged misconduct was hearsay, did not corroborate the witness' testimony, was irrelevant as it showed only bad character, and violated his Confrontation Clause rights. He further contends the evidence offered by Tilmon concerning the alleged misconduct was irrelevant as it had no bearing on Tilmon's guilt. Both Tilmon and the State relied on this evidence to show Kevin's motive for stealing the Toyota Camry and to show why the brothers were unable to take the bus back to Richmond. We disagree with Kevin's contentions.
In a pretrial motion in limine, Kevin requested a hearing on the admissibility of any information regarding seizure of drugs from Kevin on 17 September 1997. In the motion, Kevin indicated that on 17 September 1997, the Fayetteville Police Dep
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