Appeal by defendant from judgment dated 5 October 2000 by
Judge William C. Gore, Jr. in Superior Court, Brunswick County.
Heard in the Court of Appeals 30 January 2002.
Attorney General Roy Cooper, by David N. Kirkman, Assistant
Attorney General, for the State.
Nicole M. Molin and Bruce A. Mason for defendant-appellant.
McGEE, Judge.
Two juvenile petitions were filed in District Court, Brunswick
County on 22 November 1999 alleging that Cornell Glendell Wilson
(defendant) was a delinquent juvenile as defined by N.C. Gen. Stat.
§ 7A-517(12) (now N.C. Gen. Stat. § 7B-1501(7)). The petitions
charged defendant with conspiracy to commit murder and assault with
a deadly weapon with intent to kill inflicting serious injury.
Following a probable cause hearing, the court found probable cause
for the charge of assault with a deadly weapon with intent to kill
inflicting serious injury in an order dated 26 January 2000. The
court did not find probable cause for the charge of conspiracy to
commit murder. The court transferred defendant's case to superior
court in an order dated 26 January 2000. Defendant was indicted ina true bill on 14 February 2000 for assault with a deadly weapon
with intent to kill inflicting serious injury.
The State's evidence at trial tended to show that Calvin
Mosley (Mosley) and a group of friends went to a park in Supply,
North Carolina the afternoon of 21 November 1999 to play
basketball. When they arrived, defendant and several other people
were already at the park. Mosley and his friends played basketball
with defendant and the others.
After the game, defendant's brother, Winston Stothart
(Winston), walked to the basketball court with a "little machete"
in his hand. Two years earlier, Winston and Mosley had a
disagreement and Winston shot Mosley. Mosley testified that on 21
November 1999, as he was sitting down, Winston walked towards him
shouting, "Where is he? Where is he? . . . I'm going to kill you,
m.f." Mosley said he stood up with a towel in his hand. Winston
told Gary Fullwood (Fullwood) and Gregory Gilbert (Gilbert), who
were near the basketball court, that they might want to leave
because he was going to "light this place up." Winston then got
into his car and left. Defendant also left in his truck. On his
way out of the park, defendant hit a tree and several people on the
basketball court laughed.
Defendant and his brother Shawn Stothart (Shawn) returned in
defendant's truck about five minutes later. Defendant climbed out
of the back of the truck and cocked the .12 gauge shotgun he was
carrying. A shell ejected and defendant reloaded it into the
shotgun. Shawn asked who ran his brother off the road. Witnessesfor the State testified that Shawn said "shoot him" or "somebody
need[s] to shoot him." Witnesses testified Shawn pulled out a
handgun and Mosley began to run. They testified defendant and his
brother fired at Mosley as he ran away. Defendant fired three to
five shotgun blasts and Shawn used up all his ammunition firing at
Mosley.
Mosley testified he did not own a gun and did not have one
with him at the park. Witnesses for the State testified they never
saw Mosely with a firearm the day of the shooting. Mosley was
struck with shotgun pellets in his back, shoulder, ear, stomach,
hands and head. He was taken to the hospital where he stayed for
a week. Mosley testified he still had 157 pellets in his body at
the time of trial.
Defendant and three defense witnesses testified that at the
park Mosley pulled a gun from under his towel while defendant and
Mosley were talking. Defendant also said Mosley jumped up from
behind a light pole and pointed a gun at Shawn and defendant.
Defendant testified he went into shock from seeing Mosley's gun and
fired his shotgun at Mosley. Defendant testified he only shot in
the direction of Mosley because Mosley pulled a gun on him. He said
he fired after Shawn shot his pistol and he only fired to give
himself enough time to run to save his life.
Two defense witnesses testified that Mosley pulled a gun from
his towel, shoved it in Shawn's face, and pulled the trigger twice
but the gun just clicked. Shawn then pulled out his gun and began
firing at Mosley. The jury found defendant guilty of felonious assault with a
deadly weapon with intent to kill inflicting serious injury.
Defendant was sentenced to seventy-three to ninety-seven months
imprisonment in a facility suitable for his age. From this
judgment, defendant appeals.
I.
Defendant's first three assignments of error contest the
validity of evidence received at the transfer hearing and the
ensuing transfer order to superior court. Before reaching the
merits of defendant's assignments of error, however, we must first
determine if these issues are properly before our Court. The State
contends that "defendant failed to preserve the right to appeal the
transfer order by failing to appeal the District Court's order to
the Superior Court." We agree.
N.C. Gen. Stat. § 7B-2603 (1999), entitled "Right to appeal
transfer decision," states in part that
(a) [A]ny order transferring jurisdiction
of the district court in a juvenile matter to
the superior court may be appealed to the
superior court for a hearing on the record.
Notice of the appeal must be given in open
court or in writing within 10 days after entry
of the order of transfer in district
court. . . .
. . .
(c) If an appeal of the transfer order is
taken, the superior court shall enter an order
either (i) remanding the case to the juvenile
court for adjudication or (ii) upholding the
transfer order. . . .
(d) The superior court order shall be an
interlocutory order, and the issue of transfer
may be appealed to the Court of Appeals onlyafter the juvenile has been convicted in
superior court.
Pursuant to this statute, issues arising from a transfer order from
the juvenile court to the superior court must be appealed to the
superior court. The statute does not provide a procedure for
appeal directly to our Court. Following appeal of the transfer
order to superior court, if the transfer order is upheld by the
superior court and the juvenile is thereafter convicted in superior
court, then an appeal of the transfer order is to our Court.
This current version of N.C. Gen. Stat. § 7B-2603 differs
significantly from earlier versions of the statute. Prior to the
1998 recodification of the juvenile code in Chapter 7B of our
General Statutes, an order transferring a juvenile case to superior
court was a final order and immediately appealable directly to our
Court.
State v. T.D.R., 347 N.C. 489, 495-96, 495 S.E.2d 700, 703
(1998) (discussing N.C. Gen. Stat. § 7A-666 (1995) which was
repealed by Session Laws 1998-202, s. 5, effective July 1, 1999,
and replaced by N.C. Gen. Stat. § 7B-2603).
Upon recodification in 1998, N.C. Gen. Stat. § 7B-2603(a)
provided that appeal of a transfer order was to the superior court,
but included the language that "a juvenile who fails to appeal the
transfer order to the superior court waives the right to raise the
issue of transfer before the Court of Appeals until final
disposition of the matter in superior court." N.C. Gen. Stat. §
7B-2603(a) (1998). The language of the 1998 version of N.C. Gen.
Stat. § 7B-2603 also tended to indicate that the issue of transfer
could be raised for the first time on appeal to this Courtfollowing final disposition in superior court.
The General Assembly deleted the above-quoted sentence from
the current version of N.C. Gen. Stat. § 7B-2603, which became
effective on 1 July 1999 (Session Laws 1999-423, s. 2 effective
July 1, 1999). As the State correctly contends in its brief to
this Court, by removing this sentence, the General Assembly
"removed from the statute any indication that a juvenile could
simply skip an appeal in superior court, but still challenge the
transfer order after losing a trial in superior court."
See also
In re J.L.W., 136 N.C. App. 596, 599, n.2, 525 S.E.2d 500, 502, n.2
(2000) (
"Effective 1 July 1999, transfer orders are not appealable
to the Court of Appeals and may be appealed to the Superior
Court.").
In order to properly preserve the issue of transfer for
review by our Court, defendant was required to appeal the transfer
order and issues arising from it, to superior court, which he
failed to do.
This is in accord with N.C. Gen. Stat. § 7B-2603
(1999) and the general principle of appellate review that appeals
in criminal matters lie from the district court to the superior
court and not directly to the Court of Appeals. N.C. Gen. Stat. §
7A-271(b) (1999). Therefore, defendant's first three assignments
of error are not properly before this Court.
Nevertheless, defendant seeks review of the juvenile court
transfer order by requesting that this court exercise its
discretion pursuant to Rule 2 of the North Carolina Rules of
Appellate Procedure to hear defendant's appeal on these issues.
Alternatively, defendant requests this Court grant a writ ofcertiorari pursuant to Rule 21 of the North Carolina Rules of
Appellate Procedure to review the transfer order. However, by
either avenue, we are unable to address the issues arising out of
defendant's appeal of the transfer order.
Rule 2 of our Appellate Rules states that
[t]o prevent manifest injustice to a
party, or to expedite decision in the public
interest, either court of the appellate
division may, except as otherwise expressly
provided by these rules, suspend or vary the
requirements or provisions of any of these
rules in a case pending before it upon
application of a party or upon its own
initiative, and may order proceedings in
accordance with its directions.
N.C.R. App. P. 2. "[S]uspension of the appellate rules under Rule
2 is not permitted for jurisdictional concerns."
Bailey v. State,
353 N.C. 142, 157, 540 S.E.2d 313, 323 (2000) (citations omitted).
See also N.C.R. App. 1(b) (stating that the Appellate Rules
"shall
not be construed to extend or limit the jurisdiction of the courts
of the appellate division as that is established by law");
Von Ramm
v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990)
(adopting the United States Supreme Court's holding that appellate
courts "'may not waive the jurisdictional requirements . . . , even
for "good cause shown" under Rule 2'") (quoting Torres
v. Oakland
Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 291 (1988))).
We are therefore without authority to suspend our Appellate Rules
pursuant to Rule 2 in order to entertain defendant's appeal that is
not properly before this Court.
Although defendant did not file a petition for writ of
certiorari, we elect to treat defendant's argument on this issuewhich was propounded at oral argument, as a petition for a writ of
certiorari.
State v. Jarman, 140 N.C. App. 198, 201, 535 S.E.2d
875, 878 (2000).
Our General Statutes provide that
(c) The Court of Appeals has
jurisdiction, exercisable by one judge or by
such number of judges as the Supreme Court may
by rule provide, to issue the prerogative
writs, including . . . certiorari, . . . in
aid of its own jurisdiction, or to supervise
and control the proceedings of any of the
trial courts of the General Court of Justice
. . . . The practice and procedure shall be
as provided by statute or rule of the Supreme
Court, or, in the absence of statute or rule,
according to the practice and procedure of the
common law.
N.C. Gen. Stat. § 7A-32(c) (1999).
Our Supreme Court has set forth the "practice and procedure"
for the issuance of a writ of certiorari in Rule 21 of the N.C.
Rules of Appellate Procedure, which states that
[t]he writ of certiorari may be issued in
appropriate circumstances by either appellate
court to permit review of the judgments and
orders of trial tribunals when the right to
prosecute an appeal has been lost by failure
to take timely action, or when no right of
appeal from an interlocutory order exists, or
for review pursuant to G.S. 15A-1422(c)(3) of
an order of the trial court denying a motion
for appropriate relief.
N.C.R. App. P. 21.
Such appropriate circumstances are not present in this case
that would permit the Court to issue a writ of certiorari pursuant
to Rule 21; therefore, we dismiss defendant's first three
assignments of error.
II.
By his fourth assignment of error, defendant argues the trial
court erred in admitting into evidence a statement by the victim,
Mosley, regarding a previous shooting.
On direct examination, the State asked Mosley if he knew
defendant's brother, Winston. Mosley replied, "Yes, ma'am. We was
-- well, we was friends at one time until he shot _[.]" At this
point, defense counsel objected to Mosley's statement and the trial
court sustained the objection. Mosley then continued by saying,
"Until he shot me _[,]" to which defense counsel again objected.
The trial court instructed Mosley, "No, don't say that" and
instructed the jury to "strike the witness' last utterance; do not
consider it."
On cross-examination, defense counsel asked Mosley what grade
he completed in high school, to which Mosley answered, "Well, it
was about tenth grade and that was when the incident -- when I got
shot the first time." Defense counsel objected to this statement
and the trial court overruled his objection.
On redirect examination, the State asked Mosley why he did not
finish the tenth grade. Mosley responded that it was "[b]ecause [I
got] shot back in '98." The State asked Mosley who shot him in
1998 and defense counsel objected. The trial court overruled the
objection and Mosley answered that he was shot by defendant's
brother, Winston, and that this shooting halted his education.
Defendant argues that Mosley's testimony was irrelevant and
should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rules
401 and 402. Further, defendant argues that the probative value ofthe evidence is substantially outweighed by its unfair prejudice to
defendant and it should have been excluded under N.C. Gen. Stat. §
8C-1, Rule 403. Defendant also argues that he did not open the
door to this line of questioning because questioning Mosley about
how far he went in school "was simply an information gathering
question."
Relevant evidence is "evidence having 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. Gen. Stat. § 8C-1, Rule 401 (1999).
Relevant evidence is generally admissible. N.C. Gen. Stat. § 8C-1,
Rule 402 (1999). However, "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403
(1999).
"The burden is on the party who asserts that evidence was
improperly admitted to show both error and that he was prejudiced
by its admission."
State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d
654, 657 (1987) (citing
State v. Agnew, 294 N.C. 382, 241 S.E.2d
684,
cert. denied, 439 U.S. 830, 58 L. Ed.2d 124 (1978)).
Defendant must therefore show that admission of Mosley's statement
regarding the prior shooting was error and that defendant was
prejudiced by the statement.
Because defendant opened the door to the testimony at issue,
we need not address defendant's argument that the testimony was
inadmissible because it was irrelevant or overly prejudicial. "Thelaw has long been that, even where 'th[e] type of testimony is not
allowed[,] . . . when a party first raises an issue, it opens the
door to questions in response to that issue and cannot later object
to testimony regarding the subject raised.'"
State v. Belfield,
144 N.C. App. 320, 324, 548 S.E.2d 549, 551 (2001) (quoting
Middleton v. Russell Group, Ltd., 126 N.C. App. 1, 23-24, 483
S.E.2d 727, 740,
disc. review denied, 346 N.C. 548, 488 S.E.2d 805
(1997) (internal citations omitted)).
In this case, because
defense counsel opened the door to questions regarding the earlier
shooting of Mosley by asking Mosley an open-ended question about
the length of his high school education, we hold that defendant
cannot effectively argue that the trial court erred in allowing
Mosley's response and explanation and the State's subsequent
questions on redirect.
Further, "[t]he admission of evidence which is technically
inadmissible will be treated as harmless unless prejudice is shown
such that a different result likely would have ensued had the
evidence been excluded."
Gappins, 320 N.C. at 68, 357 S.E.2d at
657 (citing
State v. Billups, 301 N.C. 607, 272 S.E.2d 842 (1981);
State v. Cross, 293 N.C. 296, 302, 237 S.E.2d 734, 739 (1977);
N.C.G.S. § 15A-1443(a) (1983)). Defendant has failed to show that
even if admission of Mosley's testimony was in error, defendant was
prejudiced by its admission. Overwhelming evidence was presented
at trial from which a jury could find defendant guilty of assault
with a deadly weapon with intent to kill inflicting serious bodily
injury. At least seven witnesses
testified that as Mosley ranaway, defendant fired a shotgun at Mosley, striking him with
shotgun pellets. Further, defendant admitted to firing two shotgun
blasts at Mosley. Defendant's fourth assignment of error is
overruled.
III.
By his fifth assignment of error, defendant contends the trial
court erred in admitting evidence of an out-of-court statement by
Winston, that was offered for the truth of the matter asserted.
Fullwood, testifying for the State, was asked what happened
when Winston arrived at the park on 21 November 1999. Fullwood
answered, "Well, he came to the park -- he came over there to where
me and Greg was standing and he said, 'Y'all might want to leave
because there might be some trouble and we're going [to] light the
place up.'" Defense counsel objected to this statement and the
trial court sustained the objection. The trial court instructed
the jury that
Mr. Fullwood is about to testify as to
statements allegedly made to him by someone
else. You may not consider -- if you find
that the statements were in fact made by this
other person, you may not consider the
statement for the truth of the matter asserted
in the statement. You may, however, consider
it to show why this person acted as he did,
and for no other purpose.
The State then asked Fullwood what Winston said to him when he
arrived at the park. Fullwood answered that Winston "said that
y'all might want to leave because I'm about to light this place
up."
Gilbert also testified for the State about what Winston toldhim when Winston arrived at the park on 21 November 1999. Gilbert
stated that, "He told me if I -- if I wanted to leave, I better go
ahead and leave because he was about to light the m.f. up."
Defendant did not object to this testimony.
Because defense counsel failed to object to Gilbert's
testimony, which was virtually identical to Fullwood's testimony,
defendant waived his right to assign as error the trial court's
admission of Fullwood's testimony. "'Where evidence is admitted
without objection, the benefit of a prior objection to the same or
similar evidence is lost, and the defendant is deemed to have
waived his right to assign as error the prior admission of the
evidence.'"
State v. Jolly, 332 N.C. 351, 361, 420 S.E.2d 661, 667
(1992) (quoting
State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450,
461 (1985)
). Even if Fullwood's testimony had been excluded, the
same facts were testified to by Gilbert and would have still been
before the jury.
This assignment of error is overruled.
No error.
Judge WALKER concurs.
Judge BIGGS concurs in the result only.
*** Converted from WordPerfect ***