North Carolina Criminal Law NC Criminal Law

I wrote here about the court of appeals’ recent ruling in State v. Davis that expert testimony calculating the defendant’s alcohol concentration based on odor alone was improperly admitted at defendant’s trial on second-degree murder, impaired driving, and other charges arising from a fatal hit-and-run accident. This post addresses the court’s ruling in Davis as to the admissibility of defendant’s prior impaired driving convictions, which were introduced to prove malice—that is, that the defendant drove in a manner that reflected knowledge that injury or death would result, thus evidencing depravity of mind.

Though the Davis court granted the defendant a new trial on the second-degree murder charges based upon prejudice resulting from the improper expert testimony, it nevertheless proceeded to address the defendant’s argument that evidence of her prior convictions was improperly admitted, noting that this issue was “likely to arise in her new trial.” (Slip op. at 23).

The State introduced evidence at trial that the Davis defendant had been convicted four times of impaired driving, most recently in 2006, and three times earlier, in 1989 and 1990. North Carolina Rule of Evidence 404(b), discussed in several other blog posts here, here and here permits the introduction of relevant evidence of other crimes so long as the evidence is offered for a purpose other than showing that because the defendant previously committed a crime, he likewise committed the instant offense.

The defendant in Davis objected to evidence of the three convictions that occurred more than seventeen years before the accident giving rise to the current charges, arguing that they were too temporally remote to be admissible as evidence of malice. The court of appeals agreed.

The court noted that under Rule 404(b), prior convictions introduced to show malice must be similar to the instant offense and temporally proximate. As to temporal proximity, it explained that while there is no bright-line rule beyond which a conviction is too remote in time to be relevant, the relevancy of temporally remote convictions depends on intervening circumstances.

Davis reviewed—and contrasted—the state supreme court’s holdings in State v. Goodman, 149 N.C. App. 57 (2002), rev’d, 357 N.C. 43 (2003) (per curiam), and State v. Maready, 362 N.C. 614 (2008). In Goodman, the supreme court reversed the court of appeals for the reasons stated in the dissenting opinion below, thereby holding that admission of the defendant’s six prior impaired driving convictions pursuant to Rule 404(b) as evidence of malice was plain error when only one of the convictions occurred in the sixteen years before the crime at issue and none occurred within the eight years before the current offense. Goodman explained that “even though offenses may be similar, if they are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor, a purpose for which 404(b) evidence is excluded.” Goodman, 149 N.C. App. at 73 (Greene, J., dissenting) (internal quotations omitted). The passage of time plays an integral part in the balancing process required under Rule 403 to determine the admissibility of Rule 404(b) evidence because as past convictions become more remote, their admission “allows the jury to convict [a] defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.” Id. (Greene, J., dissenting) (internal quotations omitted).

In Maready, 362 N.C. 614 (2008), however, the court found no plain error in the admission of the defendant’s driving record, which contained convictions that occurred more than sixteen years before the driving giving rise to the second-degree murder charges for which the defendant was on trial. The court considered the Maready defendant’s record a “stark contrast” to the record in Goodman, noting that the defendant in Maready was convicted of impaired driving four times in the sixteen years preceding the latest offense, with the last conviction occurring less than six months before the current incident. Id. at 623. The court considered this pattern more consistent, and therefore more probative, than the record in Goodman. Given that the jury was aware of defendant’s four convictions for impaired driving in the sixteen years before the offense at issue, the court disagreed with the defendant’s argument that evidence of defendant’s eleven older convictions for traffic-related offenses (including two for impaired driving) influenced the jury’s verdict, finding no plain error in their admission.

Significantly, Maready held that there was no fixed point in time after which a conviction was too remote to be probative, rejecting the notion that Goodman established a bright-line rule barring the admission of any conviction that occurred more than sixteen years before the current offense. Maready further characterized Goodman as an exception to the general rule that remoteness in time affects the weight rather than the admissibility of 404(b) evidence, particularly when the prior conduct is offered to prove a defendant’s state of mind rather than that the earlier actions are part of a common scheme or plan.

Maready explained that the Goodman exception arose from the combination of temporal remoteness and the defendant’s clean driving record in the years leading up to the crime for which he was on trial. In contrast, the older convictions in Maready were part of a clear and consistent pattern of criminality that in light of the defendant’s four convictions for impaired driving within sixteen years of the offense were highly probative of the defendant’s mental state.

In Davis, the court found the defendant’s record “strikingly similar to that of Goodman,” noting that there was a gap of sixteen years between her most recent prior conviction for impaired driving, which occurred in 2006, and the next most recent conviction, which occurred in 1990. (Slip op. at 27). The court concluded that the eighteen- and nineteen-year-old convictions, combined with the 2006 conviction, did not demonstrate a “clear and consistent pattern of criminality,” and, thus, were not highly probative of her mental state at the time of the current offense. (Slip op. at 27-28 (internal quotations omitted).) Admission of the three oldest convictions, though not the 2006 conviction, was held to be prejudicial error.

Davis expands the Goodman exception. In Goodman, there was a significant gap in time between the offense for which the defendant was charged and each of the prior convictions, with the most recent conviction occurring eight years before the current offense. Thus, the temporal remoteness of the prior convictions combined with the recent clean driving record to render all but the most recent of these prior convictions inadmissible. In Davis, in contrast, the defendant had been convicted of impaired driving within two years of the current offense. Indeed, the defendant’s license was revoked at the time of the accident, apparently as result of the 2006 impaired driving conviction. Thus, unlike the defendant in Goodman, the Davis defendant had no recent clean driving record to combine with the temporal remoteness of the stale convictions.

I find it hard to distinguish Davis from State v. Miller, 142 N.C. App. 435 (2001), on any basis other than the passage of sixteen years (rather than thirteen) between the defendant’s most recent prior conviction and the one preceding it. In Miller, the defendant was charged with second-degree murder based on a 1998 accident in which the State alleged that the defendant caused a fatal collision while driving while impaired. Evidence of the defendant’s prior convictions for careless and reckless driving in 1982, driving under the influence in 1983, and driving while impaired and careless and reckless in 1985 were introduced at trial to prove malice. The court rejected the defendant’s argument that these convictions, occurring sixteen, fifteen, and thirteen years before the current offense were too remote to be relevant.

So, despite the court’s protestations to the contrary, perhaps it is the case that some prior driving convictions are just too old to be admissible to show malice, though the relevant time period is not the number of years before the instant offense, but instead the number of years between prior convictions. If so, Miller establishes that a thirteen-year gap is permissible, while Davis establishes that sixteen years is too long.