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State v. Wilson6/3/2003
thing he may have done in the past.
While defendant recognizes that the crimes inquired into were admissible under Rule 609 of the North Carolina Rules of Evidence, defendant contends these prior convictions do not bear on defendant's truthfulness, and the trial court erred in instructing the jury to consider such. Defendant's argument is flawed for two reasons.
First, the trial court did not instruct the jury to consider the prior convictions as bearing on defendant's truthfulness. The trial court's instruction explicitly left to the jury the determination of whether the prior convictions bore on defendant's truthfulness. Moreover, the instruction made clear that if the jury determined the prior convictions bore on defendant's truthfulness, the jury could consider the prior convictions solely for the purpose of impeaching the credibility of defendant's testimony. Finally, the trial court instructed that, even if the prior convictions by defendant bore on his credibility, the jury was instructed to consider the other "facts and circumstances" in deciding whether defendant's testimony was credible. Past crimes were not evidence of guilt on the present charge and, more importantly, the jury could not convict defendant on that basis.
Second, the instruction given by the trial court correctly sets forth the law in North Carolina. "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter." N.C. Gen. Stat. § 8C-1, Rule 609(a) (2001). As the commentary indicates, the practice in North Carolina, which permits inquiry into any sort of criminal offense for "the purpose of attacking credibility[,]" stands in contradistinction to its federal counterpart, which only allows evidence of convictions of a crime involving dishonesty or a false statement to be used to attack a witness' credibility. Commentary, N.C. Gen. Stat. § 8C-1, Rule 609 (2001). See also State v. Ross, 329 N.C. 108, 119, 405 S.E.2d 158, 164 (1991) (recognizing North Carolina's version of Rule 609 to be more permissive than its federal counterpart). This assignment of error is overruled.
Defendant's remaining assignment of error has been abandoned. N.C.R. App. P. 28(b)(6) (2003).
In sum, as to the common law robbery conviction and sentence of fourteen to seventeen months, we find no error; however, we vacate the portion of the judgment awarding $500.00 in restitution and remand for proceedings not inconsistent with this opinion.
No error in part, vacated and remanded in part.
Chief Judge EAGLES and Judge HUNTER concur.
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