1. Criminal Law--mistrial denied--old arrest photograph--
improperly admitted
The trial court did not err by denying a murder defendant's
motion for a mistrial after the State introduced an arrest
photograph of defendant taken at least ten years before the
incident in this case where the State represented to the jury
that the photograph was taken immediately after the victim's
death to show that defendant had no scratches or bruises
indicating a struggle. There is no evidence suggesting that the
improper admission was intentional or that the State admitted the
photograph to improperly suggest that defendant had been
previously arrested, and the trial judge withdrew the evidence
and provided a curative instruction.
2. Constitutional Law--privilege against self-incrimination--
refutation of old arrest photograph--testimony for another
purpose
A murder defendant was not compelled to testify by the
improper admission of a ten-year-old arrest photograph in
violation of his Fifth Amendment privilege against self-
incrimination where defendant took the stand to put on evidence
of self-defense, not to answer the State's evidence regarding
prior arrests.
3. Evidence--prior bad acts--chain of circumstances of crime
The trial court did not err in a murder prosecution by
admitting evidence that, one week before the killing, defendant
had fired a gun over his mother's head, pointed a gun at his
brother, and threatened to kill him. The challenged evidence was
part of the chain of circumstances leading up to the victim's
murder and was admissible to show defendant's state of mind in
the days prior to the murder. These prior acts reveal
defendant's intensifying state of violent behavior toward his
family and the possibility that he was angry with the victim for
confronting him about the treatment of his family.
4. Criminal Law--limiting instruction--not requested
The trial court did not err in a murder prosecution by not
giving an immediate limiting instruction following admission of
defendant's prior misconduct to show a chain of events
establishing defendant's state of mind where defendant did not
request such an instruction.
5. Appeal and Error--plain error review--no supporting argument
A murder defendant waived plain error review of whether the
court erred by admitting evidence that the victim was peaceful by
failing to provide argument in support of plain error.
6. Criminal Law--outburst by victim's sister--mistrial denied
The trial court did not abuse its discretion by not granting
a mistrial in a murder prosecution after an emotional outburst by
the victim's sister. The judge demonstrated the
inappropriateness of the outburst by a statement to the
prosecutor that those unable to control their emotions would not
be allowed in the courtroom. Although defendant contends that a
curative instruction should have been given, the defense attorney
did not request such an instruction and it is possible that a
curative instruction could have emphasized the outburst.
7. Homicide--self-defense--duty to retreat--instruction not
required
A murder defendant was not entitled to an instruction that
he had no duty to retreat where his testimony revealed a series
of escalating events leading to the victim's death but did not
reveal that it was actually or reasonably necessary under the
circumstances to kill the victim. Therefore, defendant was
required to retreat if a way of escape was open to him, and his
testimony indicates that he left the altercation to go to the
bathroom, a diagram of the apartment indicated that defendant was
required to pass the front door, and defendant's testimony did
not indicate that the front door was obstructed in any way.
Attorney General Michael F. Easley, by Assistant Attorney
General Thomas O. Lawton, III, for the State.
McElwee Firm, PLLC, by Kimberly C. Stevens and Elizabeth K.
Mahan, for the defendant-appellant.
LEWIS, Judge.
Defendant was tried at the 19 April 1999 session of Wilkes
County Superior Court on one count of first-degree murder. On 23
April 1999, the jury returned a verdict of guilty of second-degree
murder. Defendant was sentenced to a minimum of one hundredseventy-six and a maximum of two hundred twenty-one months'
imprisonment. The trial court's judgment recommended a Substance
Abuse Treatment Unit pursuant to N.C. Gen. Stat. § 15A-1351(h).
The State's evidence tended to show the following. On 21
December 1997, defendant shot and killed his first cousin, Mitch
Grimes. In the weeks preceding Mitch's death, defendant had
exhibited increasing animosity toward several members of his
family, and consequently, committed several acts of violence toward
his mother, brother and first cousin. Approximately one week
before Mitch's death, defendant shot a gun over his mother's head
and pointed a gun at his brother, threatening to kill him. Mitch
reprimanded defendant for his actions several times, urging him to
stop "disrespecting" his family. (1 Tr. at 279). On another
occasion, Mitch came upon defendant walking past his aunt's house
carrying a gun and threatening to kill his brother because he stole
his money and his drugs. The victim urged defendant to put the gun
away and not to kill his brother, which advice defendant heeded.
In the week preceding his death, after defendant had pointed a gun
at his mother and threatened his brother, the victim cut his own
arm with a knife in front of the defendant, reminding him that
"blood's thicker than water." (1 Tr. at 279). Apparently angered
by the victim's continuing remonstrations addressing defendant's
behavior toward his family, defendant called the victim on several
occasions threatening to kill him.
On the day of the shooting, defendant arrived at the apartment
of Robert Davenport, a friend of both defendant and Mitch. Mitch
was already at Davenport's apartment. Davenport allowed defendantto enter, warning him that he wanted no trouble, to which defendant
agreed. Defendant entered the apartment and after a short time, as
Mitch and Davenport stood talking to one another, defendant walked
over to them, unprovoked and unsolicited, and shot Mitch in the
face, killing him instantly. Davenport testified that Mitch took
no action to cause any altercation -- he did not punch, slap or
push the defendant. Defendant admitted to killing the victim,
asserting he acted in self-defense.
[1]Defendant first argues the trial court erred in denying
his motion for mistrial after erroneously admitting evidence which
was not disclosed during discovery, despite a proper discovery
request by defendant pursuant to N.C. Gen. Stat. § 15A-903(d). The
evidence was an arrest photograph of defendant taken at least ten
years before the incident in this case. The State, however,
represented before the jury that the photograph was taken
immediately after the victim's death in order to show that
defendant had no scratches or bruises tending to indicate a
struggle. The State was ultimately attempting to refute
defendant's claim of self-defense.
Although the trial court denied defendant's immediate motion
for mistrial as a result of admitting the arrest photograph, the
court withdrew the evidence and provided a curative instruction to
the jury as follows:
[T]his photograph here is not the photograph
of the Defendant that was taken at the time
that he was arrested. This photograph here,
you should not consider it. I'm striking it
from the record. It has no bearing on this
case, whatsoever. The photograph was
incorrectly utilized by the State for which
they apologize for, but this is, it was justin the file by error or by mistake and it was
shown to you. And, you're not to consider
this photograph. This is an old photograph of
the Defendant . . . you're not to consider
this photograph. You're not to imply anything
from this photograph as to how the sheriff's
department got it or where it came from or
what it has been used for in the past. Does
everyone understand that? This is simply not
a photograph of the Defendant at the time that
he was arrested. Does everyone think you can
block this from your mind and it not have any
affect on any decision that you will make in
the trial? It shouldn't because it's not the
photograph. It's simply not the photograph of
the Defendant at the time he was arrested.
Does everyone understand? (Some jurors nod
heads affirmatively; others do not respond).
(2 Tr. at 326-27).
Defendant contends the prosecution's failure to disclose the
arrest photograph entitles him to a new trial. Although it does
appear that the prosecution failed to comply with defendant's
discovery request pursuant to N.C. Gen. Stat. § 15A-903(d), it does
not necessarily follow that a court is required to prohibit the
State from introducing undisclosed evidence or that a defendant is
entitled to a new trial because the court permitted introduction of
undisclosed evidence. State v. Kessack, 32 N.C. App. 536, 541, 232
S.E.2d 859, 862 (1977). N.C. Gen. Stat. § 15A-910 sets forth
several remedies (including declaration of a mistrial) by which the
trial court may redress a party's noncompliance with a discovery
request; however, whether these remedies should be invoked is a
matter within the trial court's sound discretion. Id.
Defendant argues that despite the trial judge's admonition to
the jury not to consider the arrest photograph, the court was
required to declare a mistrial since admission of the photographultimately implied to the jury that defendant had been arrested on
a previous occasion. In State v. Adams, 347 N.C. 48, 65-66, 490
S.E.2d 220, 229 (1997), our Supreme Court held that a mistrial was
not warranted where the State inadvertently elicited testimony from
a defense witness that defendant had been previously sentenced to
death. While the State was attempting to establish the length of
time in which the defendant knew the testifying witness, the
witness stated he knew defendant when he was on death row. Id. at
64, 490 S.E.2d at 228. The statement was made in a “fairly offhand
way without the intent to emphasize it to the jury." Id. at 64,
490 S.E.2d at 228. Incidentally, the Court noted that it did not
appear from the record that the prosecutor had any improper motive
or that it intentionally elicited the information. Id. at 66, 490
S.E.2d at 229.
Likewise, in this case there is no evidence in the record
suggesting the State's improper admission was intentional, or that
it admitted the photograph in an attempt to improperly suggest that
the defendant in this case had been previously arrested. The
State's focus in admitting the photograph was the absence of
scratches or bruises on defendant's body; the fact that the
photograph was a previous arrest photograph was never emphasized to
the jury. In addition, the trial judge withdrew the evidence and
provided a curative instruction for the jury to strike the
photograph from their minds and give it no consideration.
Ordinarily, when objectionable evidence is withdrawn, no error is
committed. State v. Thomas, 350 N.C. 315, 358, 514 S.E.2d 486,512, cert. denied, __ U.S. __, 145 L. Ed. 2d 388 (1999).
Furthermore, the trial court instructed the jury to disregard the
testimony, and we must presume that the jury followed the
instructions. State v. Clark, 298 N.C. 529, 534, 259 S.E.2d 271,
274-75 (1979). In light of the foregoing, we conclude admission of
the photograph itself did not result in substantial or irreparable
prejudice to defendant's case.
[2]Defendant also contends admission of the arrest photograph
compelled him to testify in his own behalf, violating his Fifth
Amendment right against self-incrimination. Our review of
defendant's testimony, however, reveals that he took the stand not
to answer the State's evidence regarding any prior arrests, but in
order to put on evidence of self-defense. In his testimony on
direct examination, defendant did not speak to his prior arrests;
we thus find no inference that his taking the stand on his own
behalf was induced by the erroneous admission of the photograph.
See, e.g., State v. Wills, 293 N.C. 546, 550, 240 S.E.2d 328, 331
(1977).
[3]We next consider whether the trial court's admission of
evidence that approximately one week before the victim's death,
defendant (1) pointed and shot a gun over his mother's head and (2)
pointed a gun at his brother, Ken Allen, and threatened to kill him
violated our Rules of Evidence. Under Rule 404(b) of the North
Carolina Rules of Evidence,
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, beadmissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C.R. Evid. 404(b). "Evidence of another offense is admissible
under Rule 404(b) so long as it is relevant to any fact or issue
other than the character of the accused." State v. Scott, 343 N.C.
313, 330, 471 S.E.2d 605, 615 (1996) (citation omitted). Relevant
evidence is evidence tending “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.R. Evid. 401 (emphasis added). Thus, Rule 404(b) is "a clear
general rule of inclusion of relevant evidence of other crimes,
wrongs or acts by a defendant, subject to but one exception
requiring its exclusion if its only probative value is to show that
the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged." State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Defendant argues the only probative value of this evidence was
to show that he had the propensity or disposition to commit an
offense of the nature charged. We instead conclude defendant's
alleged wrongful conduct was admissible to establish the "chain of
circumstances" of the crime charged. State v. Agee, 326 N.C. 542,
546, 391 S.E.2d 171, 173 (1990). Under this principle, "[w]hen
evidence leading up to a crime is part of the scenario which helps
explain the setting, there is no error in permitting the jury to
view the criminal episode in the context in which it happened." State v. Parker, 119 N.C. App. 328, 340, 459 S.E.2d 9, 16 (1995
);
see also Agee, 326 N.C. at 549, 391 S.E.2d at 174 (holding evidence
of “other wrongs” is admissible for the purpose of "'complet[ing]
the story of a crime by proving the immediate context of events
near in time and place'") (quoting United States v. Currier, 821
F.2d 52, 55 (1st Cir. 1987)). The challenged evidence in this case
was part of the chain of circumstances leading up to the victim's
murder and was admissible to show defendant's state of mind in the
days prior to the murder. See, e.g., State v. Price, 118 N.C. App.
212, 217, 454 S.E.2d 820, 823-24 (1995). These prior acts reveal
not only defendant's intensifying display of violent behavior
toward his family, but also tend to show the possibility that
defendant was angry with Mitch for confronting him about the
treatment of his family. Thus, the trial court did not err in
admitting this evidence.
[4]Defendant nonetheless contends the trial court erred in
failing to provide, in addition to the pattern jury instruction
dealing with Rule 404(b) evidence, an immediate instruction
limiting the use of evidence of defendant's prior misconduct to
establish a chain of events establishing defendant's state of mind.
However, defendant made no request for an immediate limiting
instruction. Rule 105 of the North Carolina Rules of Evidence
provides in part that when evidence is admissible for one purpose
but not another purpose, the trial "court, upon request, shall
restrict the evidence to its proper scope and instruct the jury
accordingly." N.C.R. Evid. 105. “The admission of evidence whichis competent for a restricted purpose without limiting instruct
ions
will not be held to be error in the absence of a request by the
defendant for such limiting instructions.” Coffey, 326 N.C. at
286, 389 S.E.2d at 59.
[5]Defendant also contends the trial court erred in admitting
evidence that the victim was peaceful before defendant put forth
evidence that the victim was the first aggressor, in violation of
Rule of Evidence 404(a)(2). Apparently, defendant recognized that
he made no objection at trial to the admission of this evidence
since he urges this Court to review the record for plain error.
The plain error doctrine applies only in truly exceptional cases,
placing a much heavier burden on the defendant than the burden
imposed by N.C. Gen. Stat. § 15A-1443, which applies to defendants
who have preserved their rights by timely objection. State v.
Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000). In order to
meet its burden under the plain error doctrine, a defendant must
convince the court, with support from the record, that the claimed
error is so fundamental, so basic, so prejudicial, or so lacking in
its elements that absent the error the jury probably would have
reached a different verdict. State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983).
Although defendant has alleged plain error in his assignment
of error on this issue, he provides "no explanation, analysis or
specific contention in his brief supporting the bare assertion that
the claimed error is so fundamental that justice could not have
been done." Cummings, 352 N.C. at 636, 536 S.E.2d at 61. Byfailing to provide argument in support of plain error, defendant
has thereby waived appellate review. N.C.R. App. P. 10(c)(4).
This assignment of error is dismissed.
[6]In his next assignment of error, defendant contends the
trial court erred in denying his motion for mistrial due to the
emotional outbursts of Melissa Grimes, the victim's sister,
following defendant's testimony on direct examination. As the jury
was exiting the courtroom for a recess, Grimes began to cry loudly
and shouted, "You liar! You lied!" (3 Tr. at 118). She then hit
the courtroom exit door and left the courtroom. Counsel for the
defendant moved for a mistrial, which the trial court denied. The
trial judge then instructed the prosecutor that those persons who
cannot control their emotions cannot re-enter the courtroom until
they demonstrate they can remain calm. No curative instruction was
requested by defendant's counsel, and none was provided.
N.C. Gen. Stat. § 15A-1061 provides in part that the judge may
declare a mistrial if conduct inside or outside the courtroom
results in substantial or irreparable prejudice to the defendant's
case. Not every disruptive event which occurs during trial
automatically requires the court to declare a mistrial. State v.
Newton, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986). Whether
a motion for mistrial should be granted is a matter which rests in
the sound discretion of the trial judge. State v. Blackstock, 314
N.C. 232, 243, 333 S.E.2d 245, 252 (1985).
We do not believe the trial judge abused his discretion in
refusing to grant a mistrial in this case. After the outburst, thejudge demonstrated the inappropriateness of the outburst by his
statement to the prosecutor that persons unable to control their
emotions will not be allowed in the courtroom. Defendant contends
the trial court should have given a curative instruction with
regard to Melissa Grimes's outburst. However, defendant's attorney
made no request for a curative instruction or other remedial
action. "Our rule has long been that where a charge fully
instructs the jury on substantive features of the case, defines and
applies the law thereto, the trial court is not required to
instruct on a subordinate feature of the case absent a special
request." Blackstock, 314 N.C. at 245, 333 S.E.2d at 253. As the
court noted in Blackstock, such an instruction may well have
highlighted the witness's emotional state; indeed it is possible
that the defense attorney declined to request a curative
instruction because of the likelihood it would emphasize the
witness's outburst. See also State v. Turner, 330 N.C. 249, 265,
410 S.E.2d 847, 856 (1991). This assignment of error is overruled.
[7]Defendant next contends the trial court committed plain
error in refusing to instruct the jury that defendant had no duty
to retreat. "Where the defendant's or the State's evidence when
viewed in the light most favorable to the defendant discloses facts
which are 'legally sufficient' to constitute a defense to the
charged crime, the trial court must instruct the jury on the
defense." State v. Marshall, 105 N.C. App. 518, 522, 414 S.E.2d
95, 97, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992).
If an instruction is required, it must be comprehensive. State v.Brown, 117 N.C. App. 239, 241, 450 S.E.2d 538, 540 (1994). Here,
defendant contends he was entitled to an instruction on self-
defense, mandating a comprehensive self-defense instruction which
included an instruction on no duty to retreat.
The general rules of self-defense allow a defendant to use the
amount of force "necessary or apparently necessary to save himself
from death or great bodily harm." State v. Pearson, 288 N.C. 34,
39, 215 S.E.2d 598, 602 (1975). When confronted with an assault
that does not threaten the person assaulted with death or great
bodily harm, a party claiming self-defense is required to retreat
"if there is any way of escape open to him, although he is
permitted to repel force by force and give blow for blow." Id. at
39, 215 S.E.2d at 602-03. There is no duty to retreat when (1) the
person assaulted is confronted with an assault that threatens death
or great bodily harm or (2) the person assaulted is not confronted
with an assault that threatens death or great bodily harm and the
assault occurs in the dwelling, place of business, or premises of
the person assaulted, provided the person assaulted is free from
fault in bringing on the difficulty. Id. at 39-40, 215 S.E.2d at
603.
Here, the evidence most favorable to defendant is his own
testimony as follows. Defendant and Mitch were both at the
apartment of Robert Davenport the day of the shooting. Defendant
was armed with a gun, which he kept under his coat behind his back.
The victim was not armed. Defendant testified that the victim was
"in a rage" and "all in [his] face," and began to push thedefendant. (3 Tr. at 107-08). They both then began to push
each
other around Davenport's apartment, moving from the kitchen to the
dining room. Defendant testified that the victim eventually began
to reach around his back in an attempt to get his gun, at which
point defendant freely left the altercation to go to the bathroom.
When defendant returned, he testified he attempted to retreat from
the apartment, in order to "go to church." (3 Tr. at 110).
Defendant testified the victim pushed him away from the front door
and into the bedroom, trying to get his gun. Defendant shot the
victim before the victim obtained the gun.
Defendant's testimony reveals a series of escalating events
eventually leading to the victim's death. At no time did this
testimony reveal that it was actually or reasonably necessary under
the circumstances to kill the victim. The unarmed victim never
obtained defendant's gun and there was no evidence refuting the
possibility that the victim attempted to obtain defendant's gun in
order to protect himself. Accordingly, defendant was required to
retreat if there was "any way of escape open to him." Pearson, 288
N.C. at 39, 215 S.E.2d at 602-03. Defendant's testimony indicates
that after the victim began to reach around his back in an attempt
to obtain defendant's gun, defendant left the altercation to go to
the bathroom. At this time, defendant had an avenue of escape open
to him. The diagram of Davenport's apartment reveals that in order
to travel from the dining room to the bathroom, defendant was
required to pass by the front door of the apartment. Defendant's
testimony did not indicate that at that time, the front door was
obstructed in any way. We therefore conclude defendant was notentitled to an instruction that he had no duty to retreat.
We have reviewed defendant's remaining assignments of error
and find them to be without merit.
No error.
Judges McGEE and HORTON concur.
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