1. Evidence--document--sufficient indicia of trustworthiness
The trial court did not err in an assault with a firearm on a law enforcement officer case
by accepting into evidence a mutual aid agreement between Robeson County and the town of
Red Springs to show that the assaulted officer was acting as a government officer at the time of
the incident because: (1) the State laid a sufficient foundation under N.C.G.S. § 8C-1, Rule
901(a) to establish the trustworthiness of the document by getting an officer to testify that the
document was a fair and accurate copy of the agreement; (2) even though the jury never saw the
detailed provisions of the agreement, neither party moved to pass the agreement among the
jurors; and (3) defendant had the opportunity to cross-examine on the contents of the agreement,
but chose not to do so.
2. Assault--firearm on a law enforcement officer--sufficiency of evidence
The trial court did not err in an assault with a firearm on a law enforcement officer case
by denying defendant's motion to dismiss at the end of the State's evidence, based on the theory
that the assaulted officer was not a government officer at the time of the incident since he was
outside the jurisdiction of the Red Springs Police Department, because: (1) Robeson County's
Mutual Aid Agreement allowed for police assistance to be made on an emergency basis, which
in this case was a reported stabbing; (2) the Robeson County officer was transporting a prisoner
when he received the order to investigate the stabbing, and thus needed emergency assistance
from Red Springs Police Department; and (3) the Red Springs officer was in uniform at the time
of the incident, and he was clearly attempting to enforce the law by assisting the Robeson
County officer.
3. Criminal Law--instructions--requested--officer beyond jurisdiction--not justified in
using deadly force
The trial court did not err in an assault with a firearm on a law enforcement officer case
by failing to give defendant's requested special jury instruction, that the officer was beyond his
jurisdiction and defendant had a right to resist, because even if defendant were correct that the
entry was illegal or the arrest was unauthorized, N.C.G.S. § 15A-401(f) states that a person is
not justified in using deadly force to resist arrest when the person knows or has reason to know
that the officer is a law enforcement officer attempting to make an arrest.
4. Criminal Law--instructions--taken out of context
The trial court did not err in an assault with a firearm on a law enforcement officer case
by overruling defendant's objection to the jury charge that a Red Springs police officer had the
duty to assist the Robeson County Sheriff's Department because defendant has taken a portion of
the jury charge out of context since the trial court was not stating his opinion, but rather what the
State was required to prove.
5. Evidence--lay opinion--intoxication
The trial court did not err in an assault with a firearm on a law enforcement officer case
by allowing an officer to answer whether defendant appeared to be intoxicated because N.C.G.S.
§ 8C-1, Rule 701 allows a lay witness to give an opinion as to the intoxication or sobriety ofanother, and the evidence reveals the of
ficer was close enough to observe defendant's actions.
6. Criminal Law--instructions--intoxication--relevant to conduct and motives
The trial court did not abuse its discretion in an assault with a firearm on a law
enforcement officer case by denying defendant's objection, motion to strike, and request for a
jury instruction that an officer's answer, concerning whether defendant appeared to be
intoxicated, had no substantive value because: (1) evidence of defendant's intoxication is
relevant to an understanding of his conduct and motives, and the conduct and motives of the
police officers who were observing defendant's behavior; and (2) the relevant evidence is not
substantially outweighed by the danger of unfair prejudice under N.C.G.S. § 8C-1, Rule 403.
7. Evidence--witness directed to answer yes or no--no prejudicial error
The trial court did not err in an assault with a firearm on a law enforcement officer case
by directing an officer to answer yes or no to the question of whether he had any information
that defendant had committed a crime, based on the theory that the jury was unfairly prevented
from hearing that the witness had no personal knowledge of the assault, because: (1) the officer's
testimony on cross-examination indicated he had no personal knowledge of the assault; and (2)
defendant concedes this error would not tend to prejudice the outcome of the case.
8. Evidence--hearsay--not an out-of-court statement
The trial court did not err in an assault with a firearm on a law enforcement officer case
by allowing the State to ask an officer whether he had any information that defendant had
committed a crime, based on the information allegedly being hearsay since it was relayed to the
officer by a third party, because the witness did not testify about an out-of-court statement but
merely testified that he did have information that defendant committed a crime. N.C.G.S. § 8C-
1, Rule 801(c).
Attorney General Michael F. Easley, by Assistant Attorney
General Gaines M. Weaver, for the State.
Donald W. Bullard for defendant-appellant.
EAGLES, Chief Judge.
The defendant, Johnnie Locklear, Jr., was tried and convicted
of assault with a firearm on a law enforcement officer at the 8
September 1997 criminal session of Robeson County Superior Court.
On 15 October 1994, a Red Springs police dispatcher, LindaStone, received a call about the alleged stabbing of Tess
ie
Locklear by her husband, Johnnie Locklear, at their home three to
four miles outside the Red Springs city limits. Ms. Stone
transmitted a message over the Red Springs frequency telling all
Red Springs police units to stand by because she had received an
emergency call for Robeson County. Ms. Stone then transmitted the
message about the emergency call over the Robeson County frequency.
She stated, “I have a subject on the line, advised he was at a
residence. There was a stabbing in progress . . . [H]e could hear
the female subject, in the residence, screaming . . . .” The
Robeson County Sheriff's Department radioed Deputy Davis
instructing him to investigate the call. Captain Jerry Parker of
the Red Springs Police Department heard the dispatch over the
scanner and knew Deputy Davis was alone in the area. Captain
Parker sent one of the Red Springs officers, Officer Chavis, to
assist Deputy Davis. Meanwhile, Deputy Davis radioed for
assistance from the Red Springs Police Department because he was
transporting a prisoner when he had been instructed to investigate
the stabbing. Officer Chavis heard Deputy Davis' request for
assistance and answered the call. The two police officers met at
the driveway leading to the Locklear residence. Deputy Davis then
secured the prisoner in his patrol car. Together, the officers
entered defendant's home. Defendant Locklear repeatedly told them
to leave.
At this point, Officer Chavis followed Locklear into a dark
room. Officer Chavis thought he heard a shotgun shell beingchambered into a shotgun, and he felt something like a shotgun on
his neck. The officer knocked the shotgun away and drew his own
weapon. Officer Chavis followed Defendant Locklear out of the
room. Then the two police officers went outside and walked toward
the back of the residence where they found Tessie Locklear with a
torn, bleeding lip. She was taken by ambulance to Laurinburg
Hospital where she was treated.
Once the two officers were outside, defendant went out on the
porch and waved his shotgun in the air telling everyone to leave
the premises. Terrie McNeill, a dispatcher from Red Springs Police
Department who had been riding with Officer Chavis, called for
backup. Officers from Red Springs responded, gathering in front of
the house. Captain Parker testified that defendant “was out in the
front yard with a shotgun, pointing it at us . . . .” Officer
Victoria Bartch testified that defendant aimed his shotgun at the
police officers in front of the house. She further testified that
defendant walked towards Officer Chavis while carrying his shotgun,
saying “F--- you, I am going to kill you.” The defendant was
arrested forty-five minutes later.
The jury found defendant guilty of assault with a firearm on
a law enforcement officer in violation of N.C.G.S. § 14-34.2. The
trial court imposed a sentence of imprisonment for a minimum of
fifteen months and a maximum of eighteen months. The defendant
appeals.
[1]We first consider whether the trial court erred by
accepting into evidence State's exhibit 1, the “Robeson CountyInter-Governmental Mutual Aid Agreement” with the town of Red
Springs. The State sought to introduce the agreement in order to
show that Officer Chavis was acting as a government officer at the
time of the incident. This agreement provides that the two law
enforcement agencies may request temporary law enforcement
assistance from each other. The agreement states “[t]he head law
enforcement officer of each of the parties hereto is empowered to
request assistance under this agreement.” Additionally, the
agreement provides “that where a request is made on an emergency
basis, the execution of this contract shall be deemed the required
written request . . . .” The defendant contends that the trial
court admitted the document into evidence before the State laid
sufficient foundation and properly authenticated the document.
Additionally, defendant argues that he was prejudiced by the
admission of the document into evidence without an explanation of
its contents. According to defendant, the jury never saw the
detailed provisions of the mutual aid agreement; rather, they only
saw that the agreement existed. Consequently, defendant contends,
the jurors were unable to determine whether the Red Springs Police
Department violated the agreement.
We conclude that the trial court did not err in admitting the
agreement into evidence. Under North Carolina Rules of Evidence,
Rule 901(a), “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims.” N.C.G.S. § 8C-1, Rule 901(a). Here, thetranscript indicates that the State asked Captain Parker, a Red
Springs officer, whether he recognized the exhibit. He identified
it as a copy of the Mutual Aid Agreement between Robeson County and
all police departments in the county. Captain Parker then
confirmed that it was a fair and accurate copy of that agreement.
The State laid a sufficient foundation to establish the
trustworthiness of the document. We conclude that the document was
properly authenticated before it was admitted into evidence.
Additionally, we note that neither party moved to pass the
agreement among the jurors. Further, defendant had the opportunity
to cross-examine on the contents of the agreement. Defendant chose
not to do so. Defendant cannot now complain that the jury never
saw the detailed provisions of the agreement.
[2]We next consider whether the trial court erred by denying
the defendant's motion to dismiss at the end of the State's
evidence. The defendant argues that the State did not meet its
burden of showing that Officer Chavis was a government officer at
the time of the incident because the officer was outside the
jurisdiction of the Red Springs Police Department. Under N.C.G.S.
§ 15A-402, “[l]aw enforcement officers of cities may arrest persons
at any point which is one mile or less from the nearest point in
the boundary of such city.” Here, the Locklear home was three to
four miles outside the boundary of Red Springs. However, N.C.G.S.
§ 160A-288 provides that the head of any law enforcement agency may
temporarily provide assistance to another agency in enforcing the
laws of North Carolina. This may be done “in accordance withrules, policies, or guidelines officially adopted by the governing
body of the city or county . . . .” Defendant argues that the
State failed to show that the provisions of N.C.G.S. § 160A-288 and
the Mutual Aid Agreement were followed.
The defendant acknowledges that the Mutual Aid Agreement
provides that the request for assistance may be made on an
emergency basis. However, defendant contends that there was no
emergency here. Consequently, the defendant asserts that Officer
Chavis was acting outside his proper jurisdiction, and the
defendant's actions were legal because Officer Chavis was a
trespasser.
In response, the State relies on State v. Gaines, 332 N.C.
461, 421 S.E.2d 569 (1992), cert. denied, 507 U.S. 1038, 123 L. Ed.
2d 486 (1993), a first-degree murder case in which the victim was
an off-duty, in uniform, Charlotte police officer working as a
night security guard. The North Carolina Supreme Court held that
the victim's status as a law enforcement officer could properly be
used as an aggravating factor. Even an off-duty deputy is
considered to be acting under the color of state law when the
nature of his actions involve official police action to enforce the
law. See id. at 473, 421 S.E.2d at 575. Additionally, the State
relies on State v. Williams, 31 N.C. App. 237, 229 S.E.2d 63
(1976), in which a police officer made a DUI arrest outside of the
city in which he had jurisdiction. This Court held that the
evidence he gathered during the arrest was admissible. See id. After carefully reviewing the record, transc
ript, and
arguments, we conclude that the State did show that Officer Chavis
was acting in the course of his official duties as a governmental
officer at the time of the incident. Under the Mutual Aid
Agreement, the head of the Robeson County law enforcement agency
could request assistance from the Red Springs law enforcement
agency. However, where a request for assistance is made on an
emergency basis, “the execution of this contract shall be deemed
the required written request [for assistance].” Here, Deputy Davis
of the Robeson County Police was responding to a reported stabbing.
He was the only Robeson County officer in the vicinity of the
Locklear residence. Because the deputy was transporting a prisoner
when he received the order to investigate the stabbing, he called
Red Springs and asked for assistance. This situation constitutes
an emergency under the Mutual Aid Agreement. Finally, we note that
the evidence showed Officer Chavis was in uniform at the time of
the incident, and that he was clearly attempting to enforce the law
by assisting the deputy sheriff. Defendant knew that but proceeded
to assault him. For these reasons, we conclude that the State did
produce sufficient evidence that Officer Chavis was acting as a
governmental officer at the time of the incident. Accordingly, we
conclude the trial court did not err in denying the defendant's
motion to dismiss.
[3]We next consider whether the trial court erred in failing
to give defendant's requested special jury instruction. Defendant
contends that the trial court was obligated to instruct the jurythat if Officer Chavis was beyond his jurisdiction, the defendant
had a right to resist. According to defendant, when an officer
makes an illegal entry into a person's home, anyone “who resists an
illegal entry is not resisting an officer in the discharge of the
duties of his office.” State v. Sparrow, 276 N.C. 499, 512, 173
S.E.2d 897, 906 (1970). Defendant asserts that Officer Chavis
entered the defendant's residence without a legal warrant or
probable cause. Defendant argues that the trial court's failure to
give this requested instruction was reversible error entitling
defendant to a new trial.
We are not persuaded. Under N.C.G.S. § 15A-401(f), a person
is not justified in using deadly force to resist arrest when the
person knows or has reason to know that the officer is a law
enforcement officer attempting to make an arrest. The statute
further provides: “[t]he fact that the arrest was not authorized
under this section is no defense to an otherwise valid criminal
charge arising out of the use of such deadly weapon or deadly
force.” N.C.G.S. § 15A-401(f). See also State v. Guevara, 349
N.C. 243, 254-55, 506 S.E.2d 711, 719 (1998), cert. denied, ___
U.S. ___, 143 L. Ed. 2d 1013 (1999). Here, the defendant used a
deadly weapon when he loaded a shotgun and placed it against
Officer Chavis' neck. Even if defendant were correct in his
argument that the entry was illegal or the arrest unauthorized,
which we do not accept, defendant was not justified in using a
deadly weapon against a law enforcement officer attempting to
effect an arrest. Accordingly, we conclude that the trial courtdid not err in refusing to give defendant's requested special jury
instruction.
[4]Next we consider whether the trial court erred in
overruling defendant's objection to the charge to the jury.
Defendant contends that the trial judge charged the jury that a Red
Springs police officer has the duty to assist the Robeson County
Sheriff's Department. Defendant argues that the duty to assist may
arise only if the Mutual Aid Agreement and N.C.G.S. § 160A-288 have
been fully complied with.
“When reviewing a trial court's charge to the jury, the
instructions must be considered in their entirety.” State v.
Parker, 119 N.C. App. 328, 339, 459 S.E.2d 9, 15 (1995) (citing
State v. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987)). Our
inspection of the transcript indicates that the defendant has taken
a portion of the jury charge out of context. The trial judge
charged the following:
Now I charge that for you to find the defendant guilty of
this offense, the State must prove four things beyond a
reasonable doubt. First, . . . Second, . . . Third,. . .
And Fourth, that the victim was in the performance of his
duties, assisting the Robeson County Sheriff's Department
in response to a call concerning an alleged stabbing, is
a duty of a Red Springs police officer.
The trial judge was not stating his opinion, but rather what the
State was required to prove. In order to find the fourth element
proven, the jury would have to find: first, that the victim was in
the performance of his duties, and second, that assisting the
Robeson County Sheriff's Department is a duty of a Red Springs
Police Officer. We have carefully considered the charge to thejury and find no misstatement of the law or expression of opinion
prejudicial to defendant. Accordingly, defendant's assignment of
error is overruled.
[5]Next, we consider whether the trial court erred in
allowing Officer Bartch to answer whether the defendant appeared
intoxicated. Defendant argues that Officer Bartch was not in a
position to perceive whether the defendant was intoxicated and that
her testimony is speculative. We conclude that the trial court did
not err in allowing Officer Bartch to answer the question.
Under N.C.G.S. § 8C-1, Rule 701, a lay witness may testify in
the form of opinions or inferences if “those opinions or inferences
[] are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of his testimony or the
determination of a fact in issue.” In general, a lay witness may
give an opinion as to the intoxication or sobriety of another. See
State v. Adkerson, 90 N.C. App. 333, 338, 368 S.E.2d 434, 437
(1988). See also 1 Kenneth S. Broun, Brandis and Broun on North
Carolina Evidence § 181 (5th ed. 1998). Here, defendant argues
that Officer Bartch was not able to perceive whether the defendant
was intoxicated. Officer Bartch arrived at the Locklear residence
after Johnnie Locklear came out on the porch. She positioned
herself behind the patrol car, near the front tire. From this
vantage point, Officer Bartch was close enough to the defendant to
hear what defendant was saying and the manner and tone with which
he spoke. At trial, Officer Bartch testified, that she heard
defendant say “I am going to kill that Chavis son of a bitch.” Shealso stated, “[t]he whole time he was using profane langu
age . . .
.” Additionally, Officer Bartch was close enough to observe the
defendant's actions. The officer testified that she “observed the
defendant pump his shotgun. A round flew out of his shotgun. The
defendant kind of fell over, picked up the round, and put it back
into the shotgun.” The officer stated that the defendant staggered
as he walked on the porch, chambering the dropped round. This
evidence indicates that Officer Bartch's opinion that the defendant
appeared intoxicated was rationally based on her perception.
Accordingly, we conclude that the trial court did not err in
allowing the police officer to answer the question.
[6]We next consider whether the trial court erred in denying
defendant's objection, motion to strike, and request for a jury
instruction that Officer Bartch's answer had no substantive value.
Defendant argues that the officer's testimony regarding defendant's
intoxication was not relevant to a determination of any element of
the crime charged, and that its probative value is substantially
outweighed by the danger of unfair prejudice.
Under Rule 403, “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .” N.C.G.S. § 8C-1, Rule 403. The court
must balance the probative value of the evidence against its
prejudicial effect. See State v. Moseley, 338 N.C. 1, 33, 449
S.E.2d 412, 432 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d
738 (1995). Whether to exclude evidence under Rule 403 is a matterleft to the sound discretion of the trial judge. See State v.
Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).
In State v. Davis, 265 N.C. 720, 145 S.E.2d 7 (1965), cert.
denied, 384 U.S. 907, 16 L. Ed. 2d 360 (1966), the Supreme Court of
North Carolina held that evidence of the defendant's intoxication
was properly admitted in his trial for assault with attempt to
commit rape. The Court stated, “[i]t is not required that evidence
bear directly on the question in issue, but it is competent if it
shows circumstances surrounding the parties necessary to an
understanding of their conduct and motives . . . .” Id. at 723,
145 S.E.2d at 10. Here, evidence of defendant's intoxication is
relevant to an understanding of defendant's conduct and motives,
and the conduct and motives of the police officers who were
observing defendant's behavior. The trial court concluded that the
prejudicial effect of the evidence did not substantially outweigh
the probative value. We conclude that the trial court did not
abuse its discretion in admitting this evidence.
[7]Defendant next argues that the trial court erred in
directing Deputy Davis to answer yes or no to the question of
whether he had any information that defendant had committed a
crime. Defendant argues that by directing Deputy Davis to answer
yes or no, the trial court prevented the witness from explaining
himself. The defendant's argument arises from the following
excerpt from the transcript:
STATE: Did you have any information at
this point that he had committed a crime?
DEFENDANT'S COUNSEL: Your Honor, we
object to such a conclusion. We object to the
question.
THE COURT: Overruled.
. . . .
STATE: Did you have any information at
that time that he had committed a crime?
WITNESS: According to --
THE COURT: Answer the question, please,
yes or no.
WITNESS: Yes.
Here, defendant contends that the witness was likely to
respond to the question by saying “according to what Officer Chavis
told me, I was aware that a crime had been committed. However, I
did not see the assault take place.” The defendant asserts that
the trial court unfairly prevented the jury from hearing that the
witness had no personal knowledge of the assault.
We note at the outset that Deputy Davis' testimony on cross-
examination indicated that he had no personal knowledge of the
assault. Deputy Davis testified, “I went around to the corner,
which appeared to be the living room. I think Officer Chavis went
behind Johnnie Locklear to the bedroom. There was a wall there.
I really couldn't see what was going on.” We conclude that the
trial court did not err in directing the witness to answer yes or
no. “[R]emarks of the court during a trial will not entitle a
defendant to a new trial unless they tend to prejudice the
defendant . . . .” State v. Byrd, 10 N.C. App. 56, 60, 177 S.E.2d
738, 741 (1970). Here, the comments of the trial judge do notprejudice the defendant in any way. The defendant concedes this in
his brief when he states, “this error would not tend to prejudice
the outcome of this case.” We find that the defendant's assignment
of error is without merit.
[8]We next consider whether the trial court erred by allowing
the State to ask Deputy Davis whether he had any information that
the defendant had committed a crime. After arguing that the trial
court improperly stopped the witness from recounting what Officer
Chavis had told him, defendant now complains that the trial court
should not have allowed the State to ask this question because the
answer is hearsay. According to defendant, any information Deputy
Davis had would have been relayed to him by a third party because
Deputy Davis was not in the room with the defendant and Officer
Chavis.
We conclude that the trial court did not err. Hearsay is “a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” N.C.G.S. § 8C-1, Rule 801(c). Here, the
witness' testimony is not hearsay. Deputy Davis merely testified
that he did have information that the defendant had committed a
crime. The witness did not testify about an out of court
statement. Accordingly, this assignment of error is overruled.
No error.
Judges WYNN and WALKER concur.
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