IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-500

Filed: 18 February 2020

Wake County, No. 15CRS222097

STATE OF NORTH CAROLINA

v.

JAMAR MEXIA DAVIS, Defendant.

Appeal by Defendant from judgment entered 7 November 2018 by Judge A. 

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 13 

November 2019.

Attorney General Joshua H. Stein, by Assistant Attorney General Terence D. 

Friedman, for the State-Appellee.

Office of the Appellate Defender, by Assistant Appellate Defender Amanda S. 

Hitchcock, for the Defendant-Appellant.

COLLINS, Judge.

Defendant appeals from judgment for felony habitual driving while impaired, 

entered after a jury found Defendant guilty of misdemeanor driving while impaired,

and Defendant stipulated to having been convicted of three prior offenses involving 

impaired driving. Defendant argues that the trial court erred when it refused to give 

a limiting jury instruction concerning Defendant’s prior convictions and asks this 

Court to review sealed personnel records to determine whether the trial court failed 
STATE V. DAVIS

Opinion of the Court

- 2 -

to provide him with information material and favorable to his defense. We discern 

no error.

I. Background

On 4 October 2015, Defendant Jamar Mexia Davis was arrested for driving 

while impaired (“DWI”). On 15 December 2015, a grand jury indicted Defendant for

misdemeanor driving while impaired, felony habitual driving while impaired, driving 

while license revoked, and transporting an open container of an alcoholic beverage 

after consuming alcohol.

On 10 May 2016, prior to a trial on all the charges (“first trial”), Defendant 

filed a motion to release personnel records, seeking the release and in camera review 

of the arresting officers’ personnel records to determine whether they contained any 

impeachment evidence. The State did not object to Defendant’s motion. That same 

day, the trial court entered an order compelling the production of the personnel 

records for in camera review. On 9 June 2016, the trial court entered an order 

denying release of the personnel records (“Order Denying Release”) because, after 

reviewing the records in camera, the trial court determined the records did not 

contain material that was “favorable and material” to Defendant. The trial court 

ordered that the records not be disclosed and ordered them to remain under seal. 

On 15 August 2016, Defendant’s case came on for trial in superior court. The 

jury found Defendant guilty of driving while license revoked and transporting an open 
STATE V. DAVIS

Opinion of the Court

- 3 -

container of alcohol. The trial court declared a mistrial on the charges of 

misdemeanor DWI and felony habitual DWI after concluding the jury was “hopelessly 

deadlocked.” 

Defendant appealed the Order Denying Release and his convictions for driving 

while license revoked and transporting an open container of alcohol to this Court. On 

6 March 2018, this Court found no merit in Defendant’s appeal of the Order Denying 

Release and affirmed his convictions. State v. Davis, COA17-615, 2017 WL 3222366, 

at *11 (N.C. Ct. App. Mar. 6, 2018) (unpublished).

On 5 November 2018, Defendant was retried on the charges of misdemeanor 

DWI and felony habitual DWI (“second trial”). On 6 November 2018, the jury found 

Defendant guilty of misdemeanor DWI. Defendant stipulated to attaining three prior 

DWI convictions within the past 10 years. The trial court arrested judgment on the 

misdemeanor DWI conviction and entered judgment and commitment on the felony 

habitual driving while impaired, and sentenced Defendant to an active term of 19 to 

32 months’ imprisonment. From entry of this judgment, Defendant gave notice of 

appeal in open court. 

II. Discussion

Defendant (1) argues that the trial court reversibly erred by refusing his

request to give a limiting instruction to the jury that evidence of Defendant’s prior 

convictions be used for purposes of truthfulness only and (2) asks this Court to review 
STATE V. DAVIS

Opinion of the Court

- 4 -

the sealed personnel records to determine if the trial court, after its in camera review, 

failed to provide him with information material and favorable to his defense.

1. Refusal to Give Limiting Instruction

Preservation of Argument for Appellate Review

As a preliminary matter, we first address the State’s contention that 

Defendant failed to preserve this issue for appellate review because he failed “to 

object on any relevant grounds during [his] own testimony about his prior convictions 

. . . .” However, the State mischaracterizes Defendant’s argument on appeal. 

Defendant does not argue that the testimonial evidence of his prior convictions was 

improperly admitted, but instead argues that the trial court erred by refusing his 

request to give a limiting instruction to the jury regarding his prior convictions.

At the charge conference, Defendant requested the trial court give North 

Carolina Pattern Jury Instruction 105.40 in its pattern form. The trial court refused 

to give the instruction in its entirety. Defendant objected and the trial court noted 

his objection. Defendant’s request and objection were made “before the jury retire[d]

to consider its verdict, [and] stat[ed] distinctly that to which objection [was] made 

and the grounds of the objection . . . .” N.C. R. App. P. 10(a)(1)(2). The issue of 

whether the trial court erred in refusing Defendant’s request for a limiting 

instruction is thus preserved for this Court’s review. 

Analysis
STATE V. DAVIS

Opinion of the Court

- 5 -

Defendant argues that the trial court erred by failing to instruct the jury 

regarding North Carolina Pattern Jury Instruction 105.40, “Impeachment of the 

Defendant as a Witness by Proof of Unrelated Crime.” This instruction reads:

Evidence has been received concerning prior criminal 

convictions of the defendant. You may consider this 

evidence for one purpose only. If, considering the nature of 

the crime(s), you believe that this bears on the defendant’s

truthfulness, then you may consider it, and all other facts 

and circumstances bearing upon the defendant’s 

truthfulness, in deciding whether you will believe the 

defendant’s testimony at this trial. A prior conviction is

not evidence of the defendant’s guilt in this case. You may

not convict the defendant on the present charge(s) because 

of something the defendant may have done in the past.

N.C.P.I.—Crim. 105.40 (2018).

“Whether a jury instruction correctly explains the law is a question of law . . . .” 

State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (2010). Questions of law 

“regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 

N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). 

“A limiting instruction is required only when evidence of a prior conviction is 

elicited on cross-examination of a defendant and the defendant requests the 

instruction.” State v. Gardner, 68 N.C. App. 515, 522, 316 S.E.2d 131, 134 (1984), 

aff’d, 315 N.C. 444, 340 S.E.2d 701 (1986) (citations omitted). Where evidence of prior 

convictions is elicited “as part of defendant’s defense . . . , the trial judge [is] not 

required to give a limiting instruction.” Id. at 521-22, 316 S.E.2d at 134 (“[D]efendant 
STATE V. DAVIS

Opinion of the Court

- 6 -

testified on direct examination that he had been convicted of common law robbery in 

1980 . . . . Since evidence of this prior crime was elicited as part of defendant’s defense 

and . . . was . . . for the purpose of clarifying an issue raised by defendant, the trial 

judge was not required to give a limiting instruction.”). 

In State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11 (2003), defendant was 

not entitled to a special instruction limiting consideration of his testimony regarding 

his prior conviction to his “truthfulness” where defendant “initially offered this 

testimony on direct examination[.]” Id. at 124, 588 S.E.2d at 16. 

The record show[ed] that defendant Jackson took the stand 

and voluntarily testified upon direct examination 

concerning his prior crimes and convictions. Defendant 

Jackson’s counsel asked the questions that elicited his 

responses. Defendant Jackson was not impeached on these 

prior crimes and convictions. He voluntarily admitted 

them, presumably to remove the sting before the State 

impeached him.

Id. at 124, 588 S.E.2d at 15-16.

Here, as in Gardner and Jackson, Defendant took the stand and testified upon 

direct examination concerning his prior convictions as follows: 

[Defendant’s Attorney]: Who was driving?

. . . .

[Defendant]: Nick was driving the whole time. See, I don’t 

drive because, honestly, I have priors.

. . . .

[Defendant’s Attorney]: Why [were you in the driver’s 

seat]?
STATE V. DAVIS

Opinion of the Court

- 7 -

[Defendant]: Because I thought about driving, but I teach 

kids now and it’s very important that one of the things we 

talk about is making the right decision. And for me, it’s the 

wrong decision to drive at any point in my life right now, 

especially after consuming any amount of alcohol. 

. . . .

[Defendant’s Attorney]: All right. Where -- why -- when 

the police arrived, you seemed a bit disoriented. What was

causing that?

[Defendant]: Well, I had made the decision long before 

Officer Simon came not to go anywhere, to make 

arrangements to get picked up. I know better at this point 

in my life. So decision had been made not to drive. Period. 

And so I sat in the car. I wasn’t -- it was a rain storm. And 

I was making arrangements for a friend to come -- I don’t 

have Uber -- called Darnell. He wasn’t answering the 

phone. I was talking on the phone to a previous friend, but 

she lives in Chicago. But I fell asleep making 

arrangements to get picked up some kind of way. 

. . . .

[Defendant’s Attorney]: Well, at the back of the car, the 

video shows you at some point leaning against the car. 

Why did you do that?

[Defendant]: Well, I was out there for a while talking to the 

officers. I understand that when they approached me, 

what it looks like. And I also understand that in my past 

experiences with -- with who I am and my background, my 

experience with law enforcement is different. Maybe -- I 

don’t know how many people can relate, but it’s very 

different, which is why I took the stand to tell you guys I 

didn’t answer too many questions, because they have a 

tendency to misspeak as they call it. Not anything against 

the officers. I can’t really explain why that is. But I don’t 

hold any ill will towards the officer. And I would hope that 

he doesn’t have any ill will towards me. But I took the 

stand to let you guys know that the truth is that I made the 

right decision that night not to go anywhere. And it’s 

through my experiences that I have had with law 
STATE V. DAVIS

Opinion of the Court

- 8 -

enforcement that I did not want to talk to the officers about 

that. 

. . . .

[Defendant]: I will let the jury know that I am before you 

today in the presence of a higher server speaking the 

honest truth, and I had made the decision not to drive that 

night. Absolutely. Unequivocally. And that’s what you 

found me in a deep sleep with -- you know, sometimes I 

might drool depending on how tired I am. I’m a man with 

-- I’m not perfect. And I want you to know that I do have 

prior DUI convictions. I have driven without a license 

before. I have another charge of sneaking into a movie 

theater, it’s called defrauding [an] innkeeper. 

. . . .

[Defendant]: This is relevant because I want to know -- I 

want you guys to know that I have been very truthful. . . .

Defendant’s counsel asked the questions that elicited Defendant’s responses. 

Defendant voluntarily admitted to his prior convictions, using them as a basis to 

explain why he did not drive on the night in question and why he refused to answer 

the officers’ questions. On appeal, Defendant specifically asserts that he offered this 

testimony at trial as an “important defense strategy of preempting a damaging crossexamination[.]” Accordingly, Defendant was not entitled to the North Carolina 

Pattern Jury Instruction 105.40 limiting consideration of his testimony regarding his 

prior DWI convictions to his “truthfulness[.]” Gardner, 68 N.C. App. at 521-22, 316 

S.E.2d at 134; Jackson, 161 N.C. App. at 124, 588 S.E.2d at 15.

On cross-examination, the State asked Defendant:

[State]: And you indicated that you do have prior charges 

of driving while impaired.
STATE V. DAVIS

Opinion of the Court

- 9 -

[Defendant]: Yes.

[State]: In fact, you’ve been convicted of driving while 

impaired –

[Defendant’s Attorney]: I ask the question be phrased in 

its proper manner.

. . . .

[State]: Mr. Davis, you have been convicted in Wake 

County of impaired driving in 2015, weren’t you?

[Defendant]: Yes.

[State]: And you were also convicted in Sampson County 

of impaired driving in 2010, weren’t you?

[Defendant]: Yes.

[State]: And this charge has been pending for about three 

years, hasn’t it?

[Defendant]: Yes.

[State]: How many court appearances do you think that 

you’ve made during the pendency of each of these impaired 

driving cases?

[Defendant]: Couldn’t give you an answer.

[State]: More than --

[Defendant]: Been going on nearly all my life.

[State]: So --

[Defendant]: Adult life.
STATE V. DAVIS

Opinion of the Court

- 10 -

[State]: So would you say that you’ve been to court for 

these charges more than ten times?

[Defendant]: Yes.

[State]: Administrative dates, review dates, things like 

that?

[Defendant]: Yes.

[State]: I’m sure that you have seen other DWI cases play 

out in court, haven’t you?

[Defendant’s Attorney]: Object to relevance, Judge.

The Court: Overruled.

[Defendant]: No.

[State]: When you’ve been to court on those prior occasions, 

you haven’t seen any other cases of driving while impaired?

[Defendant]: No. I’m tired of coming to court.

[State]: On prior occasions when you appeared in court, 

were there also other defendants who appeared in court 

who were facing charges of driving while impaired?

[Defendant]: I -- I -- I -- I can’t answer that. I don’t know. 

I don’t pay attention to other charges. I listen for my name. 

My name is called, I answer.

[State]: Okay. So, I mean, you’ve been through this 

process before.

[Defendant]: Yes.

This exchange confirmed what Defendant had earlier stated on direct 

examination: “I have priors” and “I do have prior DUI convictions.” The State’s cross-
STATE V. DAVIS

Opinion of the Court

- 11 -

examination of Defendant pertained to the convictions to which Defendant had 

previously voluntarily admitted, clarified the dates of the offenses, and was the only 

time that the State questioned Defendant about his prior convictions; this limited line 

of questioning was not impeachment. See State v. Marslender, 222 N.C. App. 318, 

2012 WL 3192640 (2012) (unpublished) (determining that the questions posed on 

cross examination, clarifying the nature of the defendant’s prior convictions, “was the 

only time the State questioned [d]efendant about his prior convictions and, . . . we do 

not construe that line of questioning as impeachment”); see also State v. Nelson, 298

N.C. 573, 598, 260 S.E.2d 629, 647 (1979) (evidence which aids in “clarify[ing] an 

uncertainty which [the defendant] had already admitted” is not impeachment). As 

the State’s clarification of Defendant’s prior convictions did not constitute 

impeachment, Defendant was not entitled to a limiting instruction. 

Defendant argues that this Court’s decision in Jackson required Defendant to 

make an unfair choice because it forces “defendants to choose between the common 

strategy of mitigating a damaging cross-examination about prior convictions and 

preserving their right to ask that the evidence of those convictions be limited to its 

only permissible purpose.” Defendant thus argues, “that decision should be 

overruled.” We are bound by Jackson, and Defendant’s argument that Jackson

should be overruled is misplaced before this Court. See In re Civil Penalty, 324 N.C. 

373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided 
STATE V. DAVIS

Opinion of the Court

- 12 -

the same issue, albeit in a different case, a subsequent panel of the same court is 

bound by that precedent, unless it has been overturned by a higher court.”).

2. Review of Sealed Records

Defendant next asks this Court “to review the sealed records in this case to 

determine if the trial court, after its in camera review, failed to provide him with 

information material and favorable to his defense.” 

Preservation of Argument for Appellate Review

The State argues that Defendant failed to preserve this issue for appellate 

review because Defendant, in his second trial, failed to move the trial court to review 

the officers’ personnel records. Thus, we must first determine whether this issue is 

properly before this Court. 

A mistrial has the legal effect of “no trial.” State v. Harris, 198 N.C. App. 371,

376, 679 S.E.2d 464, 468 (2009). Thus, when a defendant’s trial results in a hung 

jury and a new trial is ordered, the new trial is an entirely separate legal affair from 

the original trial, unaffected by the parties’ requests, objections, and motions, and the 

trial court’s rulings made therein during the original trial. State v. Macon, 227 N.C. 

App. 152, 156, 741 S.E.2d 688, 690 (2013); see State v. Shepherd, 796 S.E.2d 537, 538 

(N.C. Ct. App. 2017) (unpublished) (determining that the defendant failed to preserve 

an issue for appeal where defendant filed a motion to compel prior to his first trial 

which ended in mistrial, did not renew the motion after the mistrial, and did not 
STATE V. DAVIS

Opinion of the Court

- 13 -

object at trial). Accordingly, a defendant may not rely upon a motion made at an 

original trial to preserve issues for appeal following his conviction in a subsequent 

trial.

Defendant filed a motion to release the officers’ personnel records prior to the

first trial; the first trial ended in a mistrial on the charges of misdemeanor DWI and 

felony habitual DWI. There is no record evidence in this appeal that Defendant made

any request or motion asking the trial court to review the officers’ personnel records

prior to the second trial. Moreover, Defendant does not claim or argue on appeal that 

he moved the trial court prior to his second trial to review the records or that he 

requested a review of the records at his second trial. Thus, the motion to release 

made prior to his first trial had no effect in the second trial. Shepherd, 796 S.E.2d at

538. As Defendant made no timely request or motion of the trial court, he has failed 

to preserve this issue for our review. N.C. R. App. P. 10(a)(1).

III. Conclusion

As Defendant offered evidence of his prior convictions on direct examination as 

part of his defense, Defendant’s credibility was not impeached and thus the requested 

instruction was not warranted. Therefore, the trial court did not err when it denied 

Defendant’s request for a jury instruction limiting the testimony to his truthfulness. 

Moreover, because Defendant made no motion to release prior to his second trial and 

did not request review at his second trial, he failed to preserve the issue on appeal.
STATE V. DAVIS

Opinion of the Court

- 14 -

NO ERROR.

Judges TYSON and YOUNG concur.