Opinion
No. 886SC1149
Filed 5 July 1989
1. Criminal Law 86.2 — pleas of no contest — convictions for impeachment purposes Defendant's pleas of no contest in prior cases constituted "convictions" about which defendant could be cross-examined for impeachment purposes pursuant to N.C.G.S. 8C-1, Rule 609 (a).
2. Criminal Law 86.3 — admission of conviction — further cross-examination about details — harmless error Although the trial court erred in allowing the State to cross-examine defendant about the details of a prior assault conviction after defendant admitted the conviction, this single inquiry about a single assault was not pre judicial to defendant.
APPEAL by defendant from Stephens (Donald W.), Judge. Judgment entered 4 May 1988 in Superior Court, BERTIE County. Heard in the Court of Appeals 11 May 1989.
Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Henry T. Rosser, for the State.
M. Braxton Gillam, III, for defendant-appellant.
Judge BECTON dissenting.
Defendant was charged and found guilty of felonious breaking and entering and felonious larceny arising from a break-in at Bertie County High School and the theft of six VCR machines valued at $7,500. Defendant, the school custodian, pled not guilty and provided alibi witnesses. There was no physical evidence at the scene linking defendant to the break-in. The State provided witnesses who implicated defendant. One of these witnesses, also involved in the break-in, named defendant as the mastermind behind the crime.
Prior to trial defendant filed a motion in limine seeking to prevent introduction of or cross-examination for impeachment purposes as to two prior cases in which defendant pled "no contest" to misdemeanor breaking and entering and larceny. Defendant argued that North Carolina did not recognize a "no contest" or nolo contendere plea to be an admission of guilt or a "conviction." Therefore introduction of such evidence would be inadmissible under evidence rules allowing the use of prior convictions for impeachment purposes. The court denied defendant's motion stating that a "conviction" under G.S. 8C-1, Rule 609 (a) included a conviction that resulted from a "no contest" plea.
At trial, defendant testified on his own behalf and was cross-examined about the misdemeanor "convictions." He was also questioned over objection about details regarding prior convictions for assaults on females. From a judgment imposing an active sentence of five years, defendant appeals.
Defendant brings forward two assignments of error. First, he contends that the court erred in permitting the State to use his "no contest" plea in prior cases as "convictions" for purposes of impeachment. Second, defendant contends that the court erred in allowing the State's cross-examination of him as to underlying facts surrounding his prior admitted assault convictions.
G.S. 8C-1, Rule 609 (a), effective 1 July 1984, provides in pertinent part that "[f]or the purpose of attacking the credibility of a witness, evidence that he had been convicted of a crime . . . shall be admitted if elicited from him during . . . cross-examination." In prior cases our courts have held that a nolo contendere plea is not a "conviction" but an implied admission of guilt only for the purposes of the case in which it is entered. State v. Hedgepeth, 66 N.C. App. 390, 310 S.E.2d 920 (1984); See North Carolina State Bar v. Hall, 293 N.C. 539, 238 S.E.2d 521 (1977); State v. Stone 245 N.C. 42, 95 S.E.2d 77 (1956); State v. Thomas, 236 N.C. 196 72 S.E.2d 525 (1952). In Hedgepeth, decided prior to our current rules of evidence, this Court specific any addressed the issue of using a prior nolo contendere plea as a "conviction" for purposes of impeachment and held that "[i]n North Carolina, a plea of nolo contendere is not a conviction. . . . The State, therefore, may not ask the defendant about the plea of nolo contendere for purposes of impeachment by prior convictions." Id. at 401, 310 S.E.2d at 925 (citations omitted).
However, in a recent Supreme Court case, State v. Holden 321 N.C. 125, 362 S.E.2d 513 (1987), the Court held that for purposes of considering prior convictions as an aggravating factor under G.S. 15A-2000 (e) a nolo contendere plea was a conviction. The court there reasoned:
A no contest plea is not an admission of guilt. It is a statement by the defendant that he will not resist the imposition of a sentence in the case in which the plea is entered. In that case the defendant is treated as if he had pled guilty. A court may not accept a plea of no contest without first determining there is a factual basis for the plea. N.C.G.S. Section 15A-1022. A no contest plea may not be used in another case to prove that the defendant committed the crime to which he pled no contest because he has not admitted he committed the offense. That is not what was done in this case. It is important that the statute does not require proof that the defendant actually committed the offense. It only requires proof that he was convicted of the offense. The question presented in this case is not whether the no contest plea may be used to prove the aggravating circumstance but whether proof of the no contest plea and final judgment entered thereon constitute a conviction within the meaning of the statute. We hold it is a conviction within the statute's meaning and was properly found as an aggravating circumstance.
Id. at 161-62, 362 S.E.2d at 536. We are of the opinion that this reasoning is applicable to the situation here where the nolo contendere plea is not being used to prove defendant committed the offense but merely to prove that he was convicted of the offense.
Holden was a capital case in which the death penalty was upheld. Thus, our Supreme Court held, under G.S. 15A-2000 (e) that a nolo contendere plea may be used to aggravate a crime so as to sustain a death sentence. From this we reason that evidence of past convictions resulting from a nolo plea should also be properly admitted under G.S. 8C-1, Rule 609 (a) for purposes of impeachment especially when a defendant has voluntarily taken the stand to testify and be cross-examined, at which time he could explain his plea if he desired and assert his innocence.
This opinion is buttressed by federal case law which has held that for purposes of using prior convictions to impeach under Federal Rule 609 (a), there is no difference between a conviction arising from a nolo contendere plea or one arising from an actual finding of guilt.
[F]ederal precedents are not binding on the courts of this State . . . [however they] should be looked to by the courts for enlightenment and guidance in ascertaining the intent of the General Assembly in adopting these rules. Uniformity of evidence rulings . . . should be a goal of our courts in construing those rules that are identical.
Commentary, G.S. 8C-1, Rule 102. Although the federal and state versions are not exactly identical, we believe that they are sufficiently similar in this case to consider federal precedent.
In United States v. Williams, 642 F.2d 136 (5th Cir. 1981), the court noted that Rule 609 (a) does not distinguish between convictions resulting from a guilty plea or from a nolo contendere plea and that in fact an exception for nolo contendere pleas in earlier drafts of the rule was specifically deleted. The court concluded that this deletion evidenced Congress' intent not to recognize any distinction between the two pleas.
Once convicted, whether as a result of a plea of guilty, nolo contendere, or of not guilty (followed by trial), convictions stand on the same footing, unless there be a specific statute creating a difference. Clearly, the rule governing our issue, Fed. R Evid. 609, creates no difference between convictions according to the pleas that preceded them. .
`As a means of impeachment, evidence of conviction of crime is significant only because it stands as proof of the commission of the underlying criminal act. . .' As a nolo plea is an admission of every element of the offense . . . a conviction based on such a plea is as conclusive for the purposes of Fed. R Evid. 609 as a conviction based on a guilty plea or verdict
Id. at 139-40, quoting Advisory Committee Note to Rule 609, 10 Moore's Federal Practice, Section 609, .01 [ 1-10] at VI-117 (1979 ed.) (citations omitted). For the reasons set forth herein and because our G.S. 8C-1, Rule 609 (a), like its federal counterpart, does not by its language create a difference between convictions based on their underlying plea we hold that the court did not err in allowing defendant's prior convictions to be used to attack his credibility during cross-examination.
Defendant next contends that the trial court erred in allowing the State to cross-examine defendant about underlying facts surrounding two prior assault convictions after defendant had admitted to the convictions. Initially, we note that defendant only specifically objected to the State's cross-examination as to one of two alleged prior assault convictions. Thus, we will only address the propriety of allowing that particular testimony. See App. R. 10 (a). The State questioned defendant as follows:
Q. What else have you been convicted of?
A. I've been convicted of ahh, two assaults on a female in 1984 and assault on a female in 1985.
Q. Isn't that three assaults on a female?
A. Yes, Sir. . . .
Q. One involved a Betty Holley — you hitting her with your
Mr. Gillam: Your Honor, I object.
Court: Ahh, overruled. He can answer that question.
EXCEPTION NO. 4
(Mr. Newbern): Is that right?
A. Excuse me?
Q. You were convicted on August 20, 1984, of striking a Betty Holley with your fist and twisting her arm. Is that right?
A. That's what was said.
For purposes of impeachment, where a witness has admitted to a prior conviction, further inquiry into that conviction is limited to the time and place of the conviction and punishment imposed. State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977). However one may not ordinarily go into details of the crime. Id. "Strong policy reasons support the principle that ordinarily one may not go into the details of the crime by which the witness is being impeached. Such details unduly distract the jury from the issues properly before it, harass the witness and inject confusion into the trial of the case." Id. at 141, 235 S.E.2d at 824.
However, we do not believe the cross-examination here constitutes reversible error. See State v. Rathbone 78 N.C. App. 58, 336 S.E.2d 702 (1985). Unlike State v. Greenhill, 66 N.C. App. 719, 311 S.E.2d 641 (1984), in which our Court determined that the State's inquiry into the weapons used and victims involved in thirteen prior assault convictions constituted reversible error and State v. Bryant, 56 N.C. App. 734, 289 S.E.2d 630 (1982), in which our Court held that the State's somewhat lengthy inquiry into the details of a defendant's prior larceny conviction constituted reversible error, the prosecution here made a single inquiry about a single assault. In this case we do not think that such a brief inquiry unduly distracted or confused the jury, or harassed the defendant, or that defendant, on trial for larceny, was unduly prejudiced.
Based on the foregoing we find defendant's trial free of prejudicial error.
No error.
Judge PHILLIPS concurs.
Judge BECTON dissents.