STATE OF NORTH CAROLINA
v.
PHILLIP DAVID ALEXANDER
Attorney General Roy Cooper, by Assistant Attorney General
Buren R. Shields, III, for the State.
White and Crumpler, by Dudley A. Witt, for defendant
appellant.
TIMMONS-GOODSON, Judge.
On 27 February 2001, a jury found Phillip David Alexander
(“defendant”) guilty of first-degree murder for the death of Ernest
Junior Bates (“Bates”) under the felony murder rule. For the
reasons hereafter stated, we find no error by the trial court.
The State presented evidence at trial tending to show the
following: Defendant and the victim, Bates, had an antagonistic
relationship. Defendant's wife was romantically involved with
Bates prior to her marriage to defendant, and her occasional
encounters with Bates after her marriage caused friction between
the two men.
On 24 December 1999, defendant celebrated Christmas Eve at
home with his wife and several family members and friends. Jason
Lee Handy (“Handy”), a friend of the family, was present at thecelebration and testified for the State. According to Handy,
defendant received several telephone calls from Bates over the
course of the evening and into the following morning, during which
defendant and Bates threatened and cursed one another. Before
leaving for work the following morning, defendant loaded his .357
Magnum revolver and expressed his intent on taking an alternate
route to work in the hopes of encountering Bates. Referring to
Bates, defendant stated that, “If I see the son-of-a-bitch, I'll
kill him.” When defendant returned to the house approximately
forty-five minutes later, he was bleeding profusely from a bullet
wound in his right shoulder. Defendant explained that he had
confronted Bates, and that the two men had exchanged gunfire.
The victim's nephew, Gary Medley (“Medley”), witnessed
defendant's encounter with Bates and testified for the State.
Medley testified that, early on the morning of 25 December 1999, he
drove his uncle to a local store to purchase cigarettes. On
returning from the store, they passed defendant's residence, and
Bates instructed Medley to park his vehicle at a church directly
across from defendant's home. Defendant emerged from his house
with a rifle in his hand, and the two men shouted obscenities at
one another until Bates and Medley departed. According to Medley,
he and Bates were on their way to pick up Bates' vehicle later that
morning when they realized that the truck in front of them belonged
to defendant. Bates instructed Medley to follow defendant.
Defendant subsequently pulled his vehicle to the side of the road,
and Medley stopped his car beside that of defendant's. Bates anddefendant then exchanged further insults through the open windows,
and defendant brandished his pistol. Bates attempted to exit the
vehicle, but Medley dissuaded him from doing so, and began turning
the car around. At that point, defendant “[came] barreling up in
his pickup, blocked [Medley's] car in . . . jumped out, and [ran]
behind both vehicles.” Medley testified that defendant then
“jerk[ed] [Bates'] door open, and grab[bed] him, grab[bed] his
coat, and he thr[ew] the gun there in his stomach . . . and fire[d]
it.” After defendant fired his weapon a second time, Bates pulled
out his own pistol and fired it at defendant, injuring defendant's
right shoulder. Defendant stepped back from the vehicle and fired
his weapon a third time. The three bullets fired by defendant
struck Bates in the chest and upper right arm, killing him.
Defendant testified in his own defense. According to
defendant, Bates had threatened to “bury him” on several previous
occasions. Defendant confirmed that he and Bates had spoken on the
telephone the morning of 25 December 1999, and that the two men had
exchanged harsh words and insults. Defendant testified that when
Bates stopped at the church across from defendant's house early
that morning, Bates brandished a pistol and threatened to kill
defendant. Defendant explained that he took his .357 revolver with
him to work because he was scared of Bates. Driving to work,
defendant became more frightened when he realized that Bates was
following him. Defendant testified that Medley's car then “pulled
over,” and, although he was “scared to death[,]” defendant decided
to “try to talk to the man to see if he would go on and leave mealone.” Defendant exited his vehicle, pistol in hand. As he
approached Medley's vehicle, Bates shot him in the shoulder.
Defendant then “just started shooting. I stepped in, started
shooting, because I was scared I was going to die.” Defendant
admitted that he shot Bates three times, killing him, but insisted
that he had no other choice.
After considering the evidence, the jury found defendant
guilty of first-degree murder under the felony murder rule. The
jury further found defendant guilty of three counts of discharging
a weapon into occupied property, and of possession of a firearm by
a felon. The trial court sentenced defendant to life imprisonment
without parole, from which sentence defendant appeals.
__________________________________________________
Defendant presents two issues on appeal, arguing that the
trial court erred in (1) admitting into evidence a statement given
by a witness to law enforcement officers; and (2) denying
defendant's motion to dismiss the felony charges of discharging a
firearm into occupied property. For reasons discussed herein, we
conclude that defendant's assignments of error have no merit.
Defendant first argues that the trial court erred by admitting
into evidence a statement given by Handy to law enforcement
officers approximately two weeks before defendant's trial.
Defendant contends that Handy's statement did not corroborate his
testimony at trial and was therefore inadmissible as a prior
consistent statement. Defendant further argues that, as the
statement was made only two weeks before trial and more than a yearafter the events in question, the statement lacked credibility.
Because Handy's statement contained prejudicial information and was
inadmissible, defendant contends that he is entitled to a new
trial. We disagree.
Under Rule 613 of the North Carolina Rules of Evidence, prior
consistent statements by a witness are admissible to corroborate
sworn trial testimony. See N.C. Gen. Stat. § 8C-1, Rule 613
(2001); State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 340,
cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000). Where a
witness's prior statement contains facts that manifestly contradict
his trial testimony, however, such evidence may not be admitted
“'under the guise of corroborating his testimony.'” State v.
Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997) (quoting
State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986)).
Defendant points to four specific statements given by Handy to
law enforcement officers that defendant contends do not corroborate
Handy's testimony at trial. None of the four statements contains
“manifestly contradictory” information, however. For example, at
trial, Handy testified that defendant stated, “If I see the son-of
-a-bitch, I'll kill him.” In his statement to police, Handy
reported that defendant said, “If I see the son-of-a-bitch I'm
going, I'm going to shoot him.” We conclude that the slight
variation between these two statements represents a minor
inconsistency at most. Clearly, there is nothing particularly
contradictory about defendant's avowal to “kill” the victim rather
than to “shoot” him. Further examples proferred by defendant areequally baseless. For instance, according to Handy's testimony,
defendant returned to the house with the bullet wound in his
shoulder “approximately thirty to forty-five minutes” after
leaving. In his statement, however, Handy indicated that the time
period was approximately forty-five minutes. Again, the
information given in these two statements does not reflect
significant discrepancies such as to render the statements
inconsistent with one another. See Gell, 351 N.C. at 204, 524
S.E.2d at 341 (stating that, “[w]hile the earlier statements
contained slight variations and some additional information, they
contained nothing directly contradicting the witness' trial
testimony”).
As Handy's trial testimony was consistent with his prior
statement, the statement was admissible as corroborative evidence.
The fact that the prior statement was made two weeks before trial
goes to the weight of the evidence, not to its admissibility. See
Kenneth S. Broun, Brandis and Broun on North Carolina Evidence §
165 (5th ed. 1998) (noting that, “the more narrow the time gap
between events in issue and the prior conduct or statement, the
more persuasive it is”). We therefore overrule defendant's first
assignment of error.
By his second assignment of error, defendant contends that the
trial court erred in denying his motion to dismiss the charges of
discharging a firearm into occupied property, the felony upon which
defendant's felony murder conviction was based. Defendant argues
that there was insufficient evidence that he was outside of thevehicle when he fired the weapon and thus cannot properly be
charged with discharging a firearm “into” occupied property.
Defendant's argument is without merit.
Upon a defendant's motion to dismiss, the court must consider
whether the State has presented substantial evidence of each
essential element of the crime charged. See State v. Allen, 346
N.C. 731, 739, 488 S.E.2d 188, 192 (1997). Substantial evidence is
such “relevant evidence that a reasonable mind might accept as
sufficient to support a conclusion.” Id. In examining the
evidence, the court must view any contradictions or discrepancies
in the light most favorable to the State, allowing all reasonable
inferences to be drawn therefrom. See State v. Gainey, 343 N.C.
79, 85, 468 S.E.2d 227, 231 (1996). A motion to dismiss is
properly denied where there is substantial evidence supporting a
finding that the offense charged was committed. See State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Under section 14-34.1 of the North Carolina General Statutes,
“[a]ny person who willfully or wantonly discharges or attempts to
discharge . . . [a] firearm . . . into any . . . vehicle . . .
while it is occupied is guilty of a Class E felony.” N.C. Gen.
Stat. § 14-34.1 (2001). In the instant case, it is undisputed that
defendant intentionally fired his pistol at the victim, who was
sitting in an occupied vehicle at the time. Defendant's only
argument is that he did not fire his weapon “into” the vehicle,
because there was some evidence at trial tending to show thatdefendant was inside the vehicle when he shot the victim. We
disagree.
“[A] firearm can be discharged 'into' occupied property even
if the firearm itself is inside the property, so long as the person
discharging it is not inside the property.” State v. Mancuso, 321
N.C. 464, 468, 364 S.E.2d 359, 362 (1988); see also State v. Bray,
321 N.C. 663, 670, 365 S.E.2d 571, 576 (1988) (holding that, where
the defendant fired his weapon while reaching inside the vehicle,
the defendant could properly be charged with discharging a firearm
“into” occupied property). In the case at bar, there was
substantial evidence from which a jury could find that defendant
fired “into” occupied property. Medley indicated that although
defendant was “almost leaning inside the car,” he was definitely
“standing outside” and “in the crease of the door” when he shot the
victim. Moreover, when Bates fired his weapon at defendant,
defendant moved “a step back” before discharging his weapon a third
time. Defendant testified that he was several feet from the car
when he “just started shooting.” Viewing the evidence in the light
most favorable to the State, we conclude that there was substantial
evidence that defendant was standing outside the automobile when he
shot the victim, thereby discharging his weapon “into” an occupied
vehicle. The trial court did not err in denying defendant's motion
to dismiss, and we therefore overrule defendant's second assignment
of error.
In conclusion, we hold that the trial court did not err in
admitting a prior consistent statement by a witness; nor did it errin denying defendant's motion to dismiss the charges of discharging
a firearm into occupied property.
No error.
Judges GREENE and HUNTER concur.
*** Converted from WordPerfect ***