State v. Davis: Rule 404(b) and Remote Convictions

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 [...]