State v. Goodman

¶1dissenting.

¶2The majority holds that although the trial court erred in admitting defendant’s entire driving record, the “admission of the entire record did not prejudice defendant to the extent required under a plain error analysis.” I disagree.

¶3I agree that prior driving convictions of a defendant are admissible to show malice, and the showing of malice in a second-degree murder case is a proper pujóse within the meaning of Rule 404(b). The admissibility of any evidence under Rule 404(b), however, is guided by two “constraints — similarity and temporal proximity.” State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993).

¶4Rule 404(b) evidence is limited by a temporal proximity requirement because 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. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), sentence vacated on other grounds, 494 U.S. 1023, *73108 L. Ed. 2d 604 (1990). Moreover, after the passage of time, the “[a]dmission of other crimes ... 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.” State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824 (1988). Thus, “the passage of time must play an integral part in the balancing process to determine admissibility.” Id. at 590, 369 S.E.2d at 825. To relegate the remoteness question to one of “weight” and not of “admissibility,” as the majority does in this case, decimates Rule 404(b) and the fundamental principles on which it is based, and thus is contrary to Jones. Id.(Supreme Court specifically rejects argument that “lapse of time between prior occurrences and the offenses charged goes only to the weight and credibility”).

¶5In this case, the admission of defendant’s driving record dating back to 1962 (some 37 years) violates the temporal proximity requirement of Rule 404(b) and thus constitutes error. Although defendant has six prior driving while impaired convictions dating back to 1962, only one of those occurred in the sixteen years prior to the crime at issue and none within the eight years prior to the crime at issue.1 Furthermore, defendant’s driving record contained convictions older than sixteen years of reckless driving, driving while license suspended, hit and run with property damage, unsafe moving violations, speeding, driving too fast for conditions, and driving on the wrong side of the road. This error is of a fundamental nature and, in my opinion, had a “probable impact on the jury’s finding of guilt” and thus constitutes plain error. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983). From the record, it appears the jury had difficulty in determining whether defendant had acted with malice because during its deliberations, the jury requested to have the definition of malice read twice. The jury later requested the trial court permit it to have a written definition of malice along with defendant’s driving record to consider during its deliberations. Accordingly, I would grant defendant a new trial.