Appeal by defendant from judgments dated 20 August 1998 by
Judge W. Russell Duke, Jr. in Beaufort County Superior Court.
Heard in the Court of Appeals 15 August 2000.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Francis W. Crawley, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Constance E. Widenhouse, for defendant-
appellant.
GREENE, Judge.
Anthony Terrell Godley (Defendant) appeals judgments dated 20
August 1998 finding him guilty of first-degree murder and assault
with a deadly weapon inflicting serious injury (assault).
Defendant was sentenced to life imprisonment without parole for the
first-degree murder conviction and a minimum term of 36 months and
a maximum term of 53 months for the assault conviction.
Voir Dire
During
voir dire, Defendant questioned a prospective juror
regarding the types of hobbies, television programs, and books she
enjoyed. The State objected to these questions, and the trial
court sustained the objections. Defendant, however, was permitted
to ask the prospective juror whether she “read literature involving
crime, law enforcement officer[s], that sort of thing,” whether she
read books written by John Gresham, and whether she had “any
particular interest in law enforcement or crime in general.”
Defendant subsequently stated, outside the presence of the
prospective jurors, his continuing exception to the trial court's
ruling that he not be permitted to ask questions regarding theprospective jurors' “interests in reading, hobbies, . . .
;movies,
and criminal trials.” The trial court sustained the State's
objection to these questions, stating the proposed questions
resulted in Defendant “visiting with the jury or establishing a
rapport with the jury regarding television programs and books [and]
other ideas, fashions.”
Defendant also asked a prospective juror whether she was
“opposed to citizens owning and possessing firearms” and whether she
had “any prejudicial feelings about the use or possession of
firearms.” The State objected to these questions, and the trial
court sustained the objections. Defendant, however, was permitted
to ask the panel of prospective jurors whether any of them were
“members of any anti-gun organizations.” Additionally, Defendant
asked a prospective juror whether she had “any particular feelings
[or] prejudices against the use of alcohol.” The State objected to
this question, and the trial court sustained the objection and
instructed Defendant to address his questions to the entire panel
of prospective jurors. Defendant then asked the panel of
prospective jurors whether any of them felt “that drinking or using
alcohol [was] a sin or an evil thing to do.” The trial court
sustained the State's objection to this question. Defendant then
was permitted to ask the prospective panel whether any felt “that
their decision about how they received the evidence and how they
. . . might interpret the testimony . . . would be affected . . .if there were evidence that . . . [D]efendant had consumed some
type of alcoholic beverage.”
Finally, Defendant discovered during
voir dire that two of the
prospective jurors had a landlord/tenant relationship, two of the
prospective jurors had a prior teacher/student relationship, and
two of the prospective jurors were brother and sister. Defendant
asked the panel of jurors the following question:
Those of you that know individuals, other
individuals on the jury, do any of you know of
any reason why your contact or association
with that other party would have an influence
upon you or affect you in any way in sitting
on the jury and being fair and impartial
throughout this trial?
None of the jurors responded in the affirmative to this question.
Defendant, however, also sought to question individual jurors
regarding whether their relationships with other jurors would
affect their deliberations. The trial court sustained the State's
objection to these questions.
Trial
The State presented evidence at trial that on the evening of
21 February 1997, James Earl Cox, Jr. (Cox) was sitting on his bike
across the street from Gibbs Grocery in Washington, North Carolina.
This area of Washington is known as “the block.” Cox testified
that he was talking to several other individuals who were standingat the block when Defendant pulled up his vehicle to the curb and
exited the vehicle. Defendant, who was carrying a gun, approached
Cox and stated, “'Don't I know you?'” When Cox responded that he
did not know Defendant, Defendant asked Cox where he was from and
called Cox by a wrong name. Defendant then stated, “'I do know
you,'” and proceeded to shoot Cox in his side. After Defendant
shot Cox, Cox ran to an area nearby the scene of the shooting and
waited for medical assistance to arrive. An ambulance arrived
several minutes later and Cox was transported to the hospital. As
a result of his gunshot wound, a portion of Cox's liver was removed
and he was hospitalized for approximately four days.
Tony Sinclair (Sinclair) testified for the State that he was
standing in front of Gibbs Grocery with Tiran Gray (Gray) on the
evening of 21 February 1997, when he heard a gunshot fired in the
area. Sinclair then saw Defendant, who was carrying a gun, walking
in the direction of Sinclair and Gray. As Defendant approached
where Sinclair and Gray were standing Defendant stated, “'Do [sic]
anybody want it.'” When no one responded to Defendant, he shot
Gray. Gray then ran away from Defendant while holding his side.
As Gray was running, he said, “'[P]lease don't shoot me no more.'”
Defendant then followed behind Gray and shot him a second time.
After the second shot, Gray fell to the ground and began crawling
away from Defendant. Gray continued to ask Defendant not to shoot
him anymore, and Defendant shot Gray five or six more times.
Defendant then threw the gun to the ground and stood in the street
until a police officer arrived at the scene. Gray was transportedby ambulance to the hospital; however, he did not survive the
shooting.
M.G.F. Gilliland (Dr. Gilliland), a forensic pathologist,
testified she performed an autopsy on Gray. She testified Gray had
gunshot wounds on his left leg, left arm, left side, buttocks,
pelvis, and right shoulder. In Dr. Gilliland's opinion, Gray died
as a result of gunshot wounds to his trunk, arm, and leg.
Brad Brantley (Officer Brantley), an officer with the
Washington Police Department, testified that on the evening of 21
February 1997, he was driving his patrol car when he responded to
a call of “shots fired” in the area of Gibbs Grocery. Officer
Brantley drove to the area of the shooting and parked his patrol
car in front of Gibbs Grocery. After exiting his patrol car,
Officer Brantley immediately saw Defendant walking toward him.
When Defendant approached Officer Brantley, Officer Brantley asked
him “what was happening.” Defendant responded, “I shot him. I
shot the mother f-----.” Officer Brantley asked Defendant where
his gun was located, and Defendant responded that he did not know.
Officer Brantley then placed Defendant under arrest and drove him
to the Washington Police Department.
Officer Brantley testified that after arriving at the
Washington Police Department, he began to fill out an arrest report
on Defendant. While Officer Brantley was asking Defendant his
name, address, and other general information required for the
arrest report, Defendant asked whether both victims had been
rescued. Defendant told Officer Brantley that one of the victimshad gone in the direction of Ninth Street, and Officer Brantley was
later notified that Cox was found in the direction of Ninth Street.
Defendant presented evidence at trial that in January of 1997,
Defendant and his girlfriend were assaulted and robbed in their
home by two men. Defendant did not contact the police department
regarding this incident because it was drug-related; however,
Defendant did attempt to find out who had robbed him. Defendant
believed some of the people who met at the block knew he had been
robbed. On 21 February 1997, Defendant took a gun from his home
and went to the block to “ask about [his] money.” When Defendant
arrived at the block, he walked toward Gibbs Grocery where he saw
a man he believed might have been one of the robbers. Defendant
asked the man whether he knew who Defendant was, and when the man
did not answer Defendant “raised up [his] hand and the gun went
off.” Defendant then saw people walking toward him and “the gun
raised and [he] shot.”
Defendant testified during cross-examination that the gun was
a “45” and that he did not recall the brand of the gun. The State
then approached an investigating officer who was in the courtroom
and requested his gun. The investigating officer removed the clip
from his gun and gave it to the State. The State then approached
Defendant and asked whether the investigating officer's gun “looked
like” the gun Defendant used in the shootings. Defendant responded
that Defendant's gun “[c]ould have been a little bigger.” The
State proceeded to ask Defendant several questions regarding
Defendant's use of the gun Defendant had possession of on 21February 1997, and the State used the investigating officer's gun
to illustrate Defendant's testimony. Specifically, the State
questioned Defendant regarding the procedures necessary for firing
the gun, including loading the gun, pulling back the gun's “lever,”
and pulling the trigger. Defendant objected to the exhibition of
the investigating officer's gun on the ground the exhibition was
“entirely prejudicial and inflammatory to the jury”; however, the
trial court overruled Defendant's objection. The State did not
offer the investigating officer's gun into evidence at any time
during the trial.
William Byron Scarborough, Jr. (Dr. Scarborough), an expert in
forensic psychology, testified that he conducted several tests on
Defendant subsequent to the shootings. Based on these tests, Dr.
Scarborough determined that on 21 February 1997, Defendant was
experiencing cognitive disorganization and psychological distress.
Dr. Scarborough testified these psychological factors “would have
interfered with [Defendant's] ability to . . . make decisions, to
process information, to think things through.” Additionally,
Defendant was experiencing depression, anxiety, and suspiciousness
of others at the time of the shootings. Defendant's suspiciousness
of others would “probably lead [Defendant] to misinterpret what
other people are doing.” Finally, on 21 February 1997, Defendant's
“perceptual accuracy” had deteriorated, preventing Defendant from
“accurately seeing and perceiving and interpreting what's going on
around [him].” Dr. Scarborough concluded that at the time of the
shootings Defendant's “psychological abilities were significantlyimpaired” and Defendant did not have “the capacity to clear
ly and
accurately think-through and plan action.”
During his closing argument to the jury, Defendant conceded to
the jury his guilt of second-degree murder, pursuant to
State v.
Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985),
cert. denied, 476
U.S. 1123, 90 L. Ed. 2d 672 (1986).
Jury instructions
During the charge conference, Defendant requested the trial
court instruct the jury on “reasonable doubt” and, specifically,
requested the definition of “reasonable doubt” found in North
Carolina Pattern Jury Instruction 101.10.
(See footnote 1)
Although the trial
court did instruct the jury on the meaning of “reasonable doubt,”
it denied Defendant's request to use the pattern jury instruction's
definition and instead instructed the jury as follows:
A reasonable doubt is not a mere possible
doubt, for most things that relate to human
affairs are open to some possible or imaginary
doubt, but rather a reasonable doubt is a fair
doubt, based on reason and common sense, and
growing out of some of the evidence or lack of
evidence in the case.
Sentencing phase
Subsequent to its deliberations, the jury found Defendant
guilty of first-degree murder and assault with a deadly weapon
inflicting serious injury. During the sentencing phase, the State
recited to the trial court that Cox and Gray incurred expenses
totaling $20,008.48 as a result of Defendant's actions, including
medical and funeral expenses. The State did not provide any
additional evidence regarding these expenses.
Prior to the trial court's pronouncement of Defendant's
sentences, Defendant apologized to the families of Gray and Cox
“for the pain [he had] caused [them].” The trial court then
proceeded to sentence Defendant for his assault conviction. The
trial court found as an aggravating factor, pursuant to N.C. Gen.
Stat. § 15A-1340.16(d)(14), that the offense involved “damage
causing great monetary loss.” Additionally, the trial court failed
to find as mitigating factors that Defendant “voluntarily
acknowledged wrongdoing in connection with the offense to a law
enforcement officer,” pursuant to N.C. Gen. Stat. § 15A-
1340.16(e)(11), and Defendant “has accepted responsibility for
[his] criminal conduct,” pursuant to N.C. Gen. Stat. § 15A-
1340.16(e)(15).
_________________________
The issues are whether: (I) the trial court abused its
discretion during
voir dire by restricting Defendant's questions to
prospective jurors regarding their general interests, feelings
regarding alcohol and gun use, and relationships to other
prospective jurors; (II) the State's use of a gun to illustrateDefendant's testimony was relevant pursuant to Rule 401 of the
North Carolina Rules of Evidence and, if not, whether the erroneous
exhibition of the gun resulted in prejudicial error; (III) the
trial court's instruction to the jury regarding the meaning of
“reasonable doubt” violated Defendant's due process rights under
the United States Constitution; (IV) the only reasonable inference
that can be drawn from the evidence is that Defendant “voluntarily
acknowledged wrongdoing,” N.C.G.S. § 15A-1340.16(e)(11) (1999), and
“accepted responsibility for [his] criminal conduct,” N.C.G.S. §
15A-1340.16(e)(15) (1999); and (V) the trial court's finding as an
aggravating factor, pursuant to N.C. Gen. Stat. §
15A-1340.16(d)(14), that Defendant's assault on Cox involved
“damage causing great monetary loss” is error when the evidence of
monetary loss shows only loss caused by medical expenses.
I
[1]Defendant argues the trial court's refusal to allow
questions posed by Defendant to prospective jurors during
voir dire
“denied [D]efendant the opportunity to intelligently exercise his
peremptory challenges, to ascertain the existence of bias
justifying challenges for cause, and to secure an impartial jury.”
We disagree.
“The purpose of
voir dire is to ensure an impartial jury to
hear defendant's trial.”
State v. Gregory, 340 N.C. 365, 388, 459
S.E.2d 638, 651 (1995),
cert. denied, 517 U.S. 1108, 134 L. Ed. 2d
478 (1996). The questioning of prospective jurors enables counsel
“to determine whether a basis for challenge for cause exists” and“enable[s] counsel to intelligently exercise peremptory
challenges.”
Id. The extent and manner of questioning, however,
is within the sound discretion of the trial court, and the trial
court's restriction of questions will not be overturned absent an
abuse of discretion.
State v. Mash, 328 N.C. 61, 63, 399 S.E.2d
307, 309 (1991);
see State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d
867, 875 (1996) (“trial court may be reversed for an abuse of
discretion only upon a showing that its ruling could not have been
the result of a reasoned decision”).
In this case, Defendant sought to question a prospective juror
regarding the types of hobbies, television programs, and books she
enjoyed. The trial court allowed questions regarding whether the
prospective juror read books involving crime or law enforcement and
whether she had “any particular interest in law enforcement or
crime in general.” The trial court refused, however, to allow
questions regarding the general interests of the prospective juror.
The trial court's restriction of this line of questioning, which it
found resulted in Defendant “visiting with the jury or establishing
a rapport with the jury,” was not an abuse of discretion.
See
State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980)
(during
voir dire, counsel should not “engage in efforts to
indoctrinate, visit with or establish 'rapport' with jurors”).
Additionally, during
voir dire, the trial court restricted
Defendant's questions to the prospective jurors regarding the use
of firearms and alcohol. The trial court refused to allow as
questions whether a prospective juror was “opposed to citizensowning and possessing firearms”; had “any prejudicial feelings
about the use or possession of firearms”; and had “any particular
feelings [or] prejudices against the use of alcohol.” The trial
court also refused to allow questioning, directed to the panel of
prospective jurors, of whether they felt that “drinking or using
alcohol [was] a sin or an evil thing to do.” Defendant was,
however, permitted to ask the panel whether any were “members of
any anti-gun organizations” and whether any felt their decision
regarding Defendant's guilt would be affected “if there were
evidence that . . . [D]efendant had consumed some type of alcoholic
beverage.” Defendant, therefore, had an opportunity to obtain
information about prejudices by the prospective jurors regarding
gun and alcohol use. Accordingly, the trial court did not abuse
its discretion by restricting questions regarding these views.
See
State v. Leroux, 326 N.C. 368, 384, 390 S.E.2d 314, 325 (trial
court's restriction of questions not an abuse of discretion when
defendant had an opportunity to gain the information sought by
asking permitted questions),
cert. denied, 498 U.S. 871, 112 L. Ed.
2d 155 (1990);
Mash, 328 N.C. at 63-64, 399 S.E.2d at 309 (trial
court's refusal to allow questions regarding prospective juror's
views on mental health experts and juror's personal experiences
with alcohol not an abuse of discretion).
Finally, the trial court refused to allow Defendant to ask
prospective jurors who had various relationships with other jurors
on the panel, individually, whether their relationships would
affect their deliberations. Defendant was, however, permitted toask the prospective jurors who were acquainted with other
prospective jurors whether they knew “any reason why [their]
contact or association with that other party would have an
influence upon [them] or affect [them] in any way in sitting on the
jury and being fair and impartial.” Because this permitted
question was sufficient to determine whether the prospective jurors
would be affected during deliberations by their relationships with
other prospective jurors, the trial court's refusal to allow
Defendant to ask individual jurors about the effect of these
relationships was not an abuse of discretion.
See Leroux, 326 N.C.
at 384, 390 S.E.2d at 325.
II
[2]Defendant argues the State's exhibition of a gun during
Defendant's cross-examination, used to illustrate Defendant's
testimony, was improper because the exhibition of the gun was
“irrelevant.”
Defendant objected to the use of the gun at trial on the
ground the use of the gun to illustrate the testimony of Defendant
was “entirely prejudicial and inflammatory to the jury.”
(See footnote 2)
The
issue of whether testimony regarding the gun was relevant, pursuant
to Rule 401 of the North Carolina Rules of Evidence, is therefore
not properly before this Court.
See N.C.R. App. P. 10(b)(1)
(objecting party must state “specific grounds for the ruling theparty desired”). Nevertheless, in our discretion we address
Defendant's argument.
(See footnote 3)
N.C.R. App. P. 2.
Relevancy
Generally, any object, including a weapon, may be exhibited at
trial for the purpose of illustrating the testimony of a witness
provided the testimony regarding the object is relevant.
State v.
See, 301 N.C. 388, 391, 271 S.E.2d 282, 284 (1980);
State v.
Willis, 109 N.C. App. 184, 189, 426 S.E.2d 471, 474,
disc. review
denied, 333 N.C. 795, 431 S.E.2d 29 (1993). Evidence is relevant
if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.C.G.S. §
8C-1, Rule 401 (1999). “[E]ven though a trial court's rulings on
relevancy technically are not discretionary and therefore are not
reviewed under the abuse of discretion standard . . . , such
rulings are given great deference on appeal.”
State v. Wallace,
104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991),
disc. review
denied and dismissal allowed, 331 N.C. 290, 416 S.E.2d 398,
cert.
denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
In this case, the State, while cross-examining Defendant
regarding the operation of the gun used in the shootings, used a
gun belonging to an investigating officer in the courtroom toillustrate Defendant's testimony. Although Defendant testified the
gun used in the shooting was a “45” that “[c]ould have been a
little bigger” than the investigating officer's gun, the record
contains no evidence regarding whether the investigating officer's
gun was a “45.” Because the evidence does not establish any
relationship between the investigating officer's gun and the gun
used by Defendant other than Defendant's gun “[c]ould have been a
little bigger” than the investigating officer's gun, the State's
exhibition of the investigating officer's gun was not relevant
under Rule 401. The State's use of the gun to illustrate
Defendant's testimony was, therefore, error.
See N.C.G.S. § 8C-1,
Rule 401.
Exhibit
Even assuming the exhibition of the investigating officer's
gun was relevant, the exhibition of the gun was nevertheless error
because the gun was never introduced into evidence. Generally, an
item must be introduced into evidence before it may be used to
illustrate the testimony of a witness.
State v. Rich, 13 N.C. App.
60, 63, 185 S.E.2d 288, 291 (1971) (photographs must be introduced
into evidence before they may be used to illustrate testimony of
witness),
cert. denied and appeal dismissed, 280 N.C. 304, 186
S.E.2d 179 (1972);
State v. Burbank, 59 N.C. App. 543, 545, 297
S.E.2d 602, 603 (1982) (identification card must be introduced into
evidence before it may be used to illustrate testimony of witness).
In practice, however, a party using an item not previously
introduced into evidence during cross-examination to illustrate thetestimony of a witness may be unable to introduce the item during
presentation of the opponent's case.
See N.C.G.S. § 15A-1221(a)
(1999) (providing for order of proceedings in a jury trial). In
such cases, the item not previously introduced into evidence may be
used to illustrate the testimony of a witness if the item is
otherwise admissible under the North Carolina Rules of Evidence and
with the further understanding that the party will introduce the
item into evidence when permitted by the trial court.
See N.C.G.S.
§ 15A-1226(b) (1999) (“judge in his discretion may permit any party
to introduce additional evidence at any time prior to verdict”);
State v. Quick, 323 N.C. 675, 682, 375 S.E.2d 156, 159-60 (1989)
(trial court did not err by admitting during the State's
presentation of rebuttal evidence an exhibit used by the State to
cross-examine the defendant during the defendant's presentation of
evidence).
Prejudicial error
Defendant argues the exhibition of the investigating officer's
gun was prejudicial error because Defendant's intent was contested
by Defendant, and the State “used the [investigating] officer's gun
in an effort to establish that [D]efendant knew exactly what he was
doing and intentionally shot the victims.” We disagree.
The erroneous admission of evidence requires a new trial only
when the error is prejudicial.
State v. Locklear, 349 N.C. 118,
149, 505 S.E.2d 277, 295 (1998),
cert. denied, 526 U.S. 1075, 143
L. Ed. 2d 559 (1999). To show prejudicial error, a defendant has
the burden of showing that “there was a reasonable possibility thata different result would have been reached at trial if such error
had not occurred.”
Id.; N.C.G.S. § 15A-1443(a) (1999).
In this case, the State, exhibiting the investigating
officer's gun as an example, asked Defendant several questions
regarding the procedure for firing the gun used by Defendant.
Defendant testified the gun would fire when it was loaded, the
“lever” was pulled back, and the trigger was pulled. The
exhibition of the investigator's gun by the State did not establish
that Defendant knew the procedure for firing the gun that he used
in the shootings; rather, this fact was established by Defendant's
testimony regarding his use of his own gun. Accordingly, there is
no reasonable possibility that a different result would have been
reached at trial if the State had not exhibited the investigating
officer's gun. The exhibition of the gun, therefore, was not
prejudicial error.
III
[3]Defendant argues the trial court's instruction to the jury
did not properly define “reasonable doubt” and, therefore, violated
Defendant's right to due process under the United States
Constitution. We disagree.
In the absence of a request by a party, the trial court is not
required to define “reasonable doubt” in its instructions to the
jury.
State v. Hunt, 339 N.C. 622, 643, 457 S.E.2d 276, 288
(1995). Further, when a definition is requested by a party, the
trial court is not required to read verbatim the requested
definition; rather, the definition used by the trial court in itsinstruction is sufficient if it is “in substantial accord with” a
definition of “reasonable doubt” which has been found
constitutional by the North Carolina Supreme Court.
Id. at 643-44,
457 S.E.2d at 288.
In this case, Defendant requested the trial court instruct the
jury on the definition of “reasonable doubt” found in North
Carolina Pattern Jury Instruction 101.10. The trial court,
however, declined to give the requested definition and instead gave
an alternate definition. As the North Carolina Supreme Court has
held this alternate definition of “reasonable doubt” is
constitutional,
id. at 643-44, 457 S.E.2d at 289, the trial court
did not err by refusing to instruct the jury using the definition
of “reasonable doubt” requested by Defendant.
IV
[4]Defendant argues the trial court erred, in sentencing
Defendant for his assault conviction, by failing to find as
mitigating factors that Defendant “voluntarily acknowledged
wrongdoing in connection with the offense,” N.C.G.S. § 15A-
1340.16(e)(11), and “accepted responsibility for [his] criminal
conduct,” N.C.G.S. § 15A-1340.16(e)(15). We disagree.
A defendant has the burden of proving by a preponderance of
the evidence the existence of mitigating factors.
State v. Canty,
321 N.C. 520, 523, 364 S.E.2d 410, 413 (1988). A trial judge is
given “wide latitude in determining the existence of . . .
mitigating factors,” and the trial court's failure to find a
mitigating factor is error only when “no other reasonableinferences can be drawn from the evidence.”
Id. at 524, 364 S.E.
2d
at 413.
N.C. Gen. Stat. § 15A-1340.16(e)(11) provides as a mitigating
factor that “[p]rior to arrest or at an early stage of the criminal
process, the defendant voluntarily acknowledged wrongdoing in
connection with the offense to a law enforcement officer.”
N.C.G.S. § 15A-1340.16(e)(11). A defendant “acknowledge[s]
wrongdoing” when he admits “culpability, responsibility or remorse,
as well as guilt.”
State v. Rathbone, 78 N.C. App. 58, 67, 336
S.E.2d 702, 707 (1985),
disc. review denied, 316 N.C. 200, 341
S.E.2d 582 (1986).
In this case, Officer Brantley testified that when he arrived
at the scene of the shooting, Defendant approached him and stated,
”I shot him. I shot the mother f-----.” Officer Brantley also
testified that at the police station Defendant asked him whether
both victims had been rescued. While this evidence shows Defendant
was aware two people had been shot and that he had admitted to
shooting one of these two people, a reasonable inference can be
drawn that Defendant's statements did not amount to an admission of
“culpability, responsibility or remorse, as well as guilt” for the
shooting of Cox. The trial court, therefore, did not err by
failing to find this mitigating factor.
Defendant also contends the trial court erred by failing to
find as a mitigating factor that Defendant “accepted responsibility
for [his] criminal conduct” pursuant to N.C. Gen. Stat. § 15A-
1340.16(e)(15). N.C.G.S. § 15A-1340.16(e)(15). A defendant“accept[s] responsibility for [his] criminal conduct” when he
accepts that he is “answerable [for] . . . the result” of his
criminal conduct.
See Webster's Third New International Dictionary
1935 (1968).
Defendant argues he accepted responsibility for his criminal
conduct when he admitted to Officer Brantley that he had shot one
of the victims. Assuming Defendant's statement is sufficient to
show an acceptance of responsibility for his actions, a reasonable
inference can be drawn that Defendant's statement that he “shot the
mother f-----” related to the shooting of Gray and not the shooting
of Cox. Defendant also argues he accepted responsibility for his
criminal conduct when he testified at trial that he shot Cox.
Defendant's testimony regarding the shooting of Cox, however, was
that he “raised up [his] hand and the gun went off.” This
testimony does not show Defendant's acceptance of responsibility
for shooting Cox; rather, it tends to show Defendant did not accept
that he was answerable for the injuries of Cox. Additionally,
Defendant argues he accepted responsibility for his criminal
conduct when he “allowed his defense lawyers to concede his guilt
of second-degree murder to the jury.” This concession, which
relates only to Defendant's role in Gray's death and not his
assault on Cox, has no relation to Defendant's alleged acceptance
of responsibility for his assault on Cox. Finally, Defendant
argues his apology to the families of Gray and Cox subsequent to
his convictions amounts to an acceptance of responsibility for his
criminal conduct. Defendant's apologetic statement, which he madeafter the return of the jury's verdicts, is not so persuasive that
Defendant's acceptance of responsibility for his conduct is the
only reasonable inference that can be drawn from the statement.
See Canty, 321 N.C. at 524, 364 S.E.2d at 413 (trial court is given
discretion in determining existence of mitigating factor because it
has the opportunity to observe the witnesses' demeanor).
Accordingly, the trial court did not err by failing to find this
mitigating factor.
V
[5]Defendant argues and the State concedes that the trial
court erred, in sentencing Defendant for his assault conviction, by
finding as an aggravating factor that the offense involved “damage
causing great monetary loss,” pursuant to N.C. Gen. Stat. § 15A-
1340.16(d)(14). We agree.
N.C. Gen. Stat. § 15A-1340.16(d)(14) (1999) provides as an
aggravating factor that the offense involved “damage causing great
monetary loss.” N.C.G.S. § 15A-1340.16(d)(14). The “monetary
loss,” however, must “result[] from damage to property.”
State v.
Bryant, 318 N.C. 632, 635, 350 S.E.2d 358, 360 (1986) (interpreting
the meaning of this statutory factor under the Fair Sentencing
Act).
In this case, there is no evidence Defendant's assault on Cox
resulted in damage to Cox's property causing a monetary loss. The
trial court, therefore, erred by finding this aggravating factor.
Accordingly, Defendant's sentence for his assault conviction is
vacated and this case is remanded for resentencing on thisconviction.
See id. at 637, 350 S.E.2d at 361.
Trial: No error.
Sentence for assault conviction: Vacated and remanded.
Judge Smith concurs.
Judge Edmunds concurs in the result with a separate opinion.
=========================
EDMUNDS, Judge, concurring in the result.
Although I concur in the result, I disagree with the
majority's analysis in Part II relating to the prosecutor's display
of a weapon to defendant during cross-examination. Defendant
denied the element of intent as to one of the charges.
Specifically, he admitted that victim Cox was shot, but claimed on
direct examination, “I raised the gun, and it went off.” Because
defendant was charged with assault on Cox with a deadly weapon with
intent to kill, inflicting serious injury, his intent was an
element to be proved by the State. By contrast, defendant's
testimony as to shooting victim Gray was more specific in that
defendant stated he “shot the gun.” Accordingly, when defendant
continued to maintain on cross-examination that the shooting of Cox
happened when the gun “went off,” the State was permitted to
explore defendant's suggestion that this shooting was not
intentional.
Defendant admitted that the pistol he carried the night of the
shooting was a semi-automatic. This weapon was never recovered.
It appears from the record that while cross-examining defendant,
the prosecutor borrowed a semi-automatic pistol from theinvestigating officer, displayed it to defendant, and went through
the steps with defendant necessary to load, cock, and fire a semi-
automatic pistol. At each point, the prosecutor asked defendant if
the action taken in court with the borrowed pistol illustrated the
action necessary to accomplish the same result with defendant's
pistol. Therefore, the prosecutor's questions established
defendant's familiarity with semi-automatic weapons. The pistol
was not shown for the purpose of suggesting that the two weapons
were of similar caliber or appearance, and the State never
contended that the pistol shown during cross-examination was the
same one that defendant used to shoot Cox. This use of the
borrowed pistol to illustrate relevant characteristics of another
weapon was proper.
See State v. See, 301 N.C. 388, 271 S.E.2d 282
(1980) (holding no error where firearm similar to that used in
robbery displayed to jury);
State v. Reaves, 132 N.C. App. 615, 513
S.E.2d 562 (holding no error when prosecutor displayed revolver and
semi-automatic pistol to illustrate differences between the two
types of guns),
disc. review denied, 350 N.C. 846, --- S.E.2d ---
(1999). In turn, the process of loading, cocking, and firing a
semi-automatic pistol was relevant to defendant's contention that
the shooting of Cox was not intentional.
See N.C. Gen. Stat. § 8C-
1, Rule 401 (1999).
I agree with the majority that a clearer foundation would have
been preferable. The record does not reflect the type of weapon
being used to illustrate defendant's testimony, nor does it
establish the grounds for which the weapon was being shown todefendant. Nevertheless, I contend that the prosecutor's use of a
semi-automatic pistol during cross-examination of defendant to
illustrate the operation of such a weapon was proper to challenge
defendant's suggestion that the shooting of Cox was not
intentional. I concur in all other aspects of the majority
opinion.
Footnote: 1