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State v. Blackwell9/7/2004
nd-degree murder subject to the balancing test of Rule 403. Here, defendant's prior convictions were admitted as 404(b) evidence solely to show malice to support defendant's conviction for second-degree murder. The facts at bar fit squarely within the "categorical exception to the general rule" as stated by Wilkerson and followed by the numerous cases cited above. No error, harmless or otherwise, occurred.
The State introduced other underlying evidence through the testimony of six law enforcement officers of defendant's numerous DWI convictions between 1989 and 1997, in addition to defendant's driving record of prior convictions. The majority's opinion correctly states these officers described defendant's "erratic driving, his intoxicated demeanor, blood-alcohol concentration and other physical evidence leading up to his convictions." The State presented far more evidence than the judgment or "bare fact" of defendant's prior convictions for DWI. This evidence clearly clothes the "bare fact" of the record of defendant's previous convictions. The State properly presented detailed evidence of defendant's multiple prior convictions to support the element of malice for the charge of second-degree murder and the trial court properly instructed the jury not to consider this evidence to show defendant's propensity to commit the crimes at bar or that defendant was intoxicated at the time of the acts at issue. The majority's opinion does not discuss or reconcile its presumption of error with Wilkerson, Rich, or the numerous precedents cited above that allow prior conviction evidence to be admitted under Rule 404(b). Wilkerson expressly recognizes admission of prior convictions to show malice under Rule 404(b). Wilkerson reinforces the trial court's decision to properly admit defendant's prior convictions under Rule 404(b).
Further, North Carolina's Rule 404(b) precedents are not anomalies in allowing prior convictions into evidence to prove one or more of the purposes set out in Rule 404(b), such as malice, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. See Jeffries v. State, 90 P.3d 185, 187 (2004) (allowing into evidence defendant's prior DWI convictions to prove "extreme indifference to the value of human life" to support the second-degree murder charge); Pickens v. State, 69 S.W.3d 10, 13 (Ark., 2002) (allowing defendant's prior conviction into evidence to show motive under Rule 404(b)); United States v. Tan, 254 F.3d 1204, 1210-11 (10th Cir. 2001) (concluding "that prior drunk driving convictions offered to prove the malice component of a second-degree murder charge resulting from an alcohol related vehicular homicide are offered for a proper purpose under Rule 404(b)"); People v. Crawford, 582 N.W.2d. 785, 790 (Mich., 1998) (holding that a defendant's prior convictions are allowed under Rule 404(b) for purposes other than showing propensity); State v. Lillard, 1997 Tenn. Crim. App. LEXIS 123, 8-9 (Tenn. Crim. App. 1997) (allowingdefendant's prior conviction into evidence to show intent under Rule 404(b)); Snowden v. State, 677 A.2d 33, 39-40 (Del., 1996) (holding that "the admission of the prior conviction was relevant to show the absence of accident" under Rule 404(b)); United States v. Francisco, 35 F.3d 116, 118-19 (4th Cir. 1994), cert. denied, 513 U.S. 1133, 130 L.Ed. 2d 893 (1995) (holding "that the evidence of [defendant's] prior conviction was properly admitted" under Rule 404(b)); State v. Grant, 620 N.E.2d 50, 60-61 (Ohio, 1993), cert. denied, 513 U.S. 836, 130 L.Ed. 2d 62 (1994) (allowing defendant's prior convictions into evidence to show a common plan or scheme under Rule 404(b)); State v. O'Neil, 848 P.2d 694, 700-01 (U
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