STATE OF NORTH CAROLINA
v
.
KYJAHRE HASAN RILEY
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Thomas, Ferguson & Charns, L.L.P, by D. Tucker Charns, for
defendant-appellant.
WALKER, Judge.
Defendant was found guilty of felonious speeding to elude
arrest and of being an habitual felon. He was sentenced to a
minimum of 120 months and a maximum of 153 months in prison.
The State's evidence at trial tended to show the following:
On 10 August 2000, Trooper Joel King of the North Carolina Highway
Patrol received a request from the Durham Police Department to
assist in apprehending Jamal Watson, who had outstanding warrants
for armed robbery. Upon information from the Durham Police
Department that Watson had fled with another person in a white
Lexus, Trooper King pulled behind a vehicle matching this
description and activated his blue lights and siren. The vehicle,
driven by defendant, stopped for a moment, briefly traveled at the
posted speed limit, then ran a red light and a stop sign beforeaccelerating to about thirty miles per hour over the posted speed
limit of thirty-five miles per hour.
Defendant then drove the vehicle onto the Durham Freeway while
Trooper King continued the pursuit with his blue lights and siren
activated. On the freeway, defendant accelerated to a speed of
approximately 140 miles per hour. As he attempted to exit the
freeway, the vehicle slid across the exit ramp onto a grassy area
and struck a tree.
After coming to a stop, defendant and Watson got out of the
vehicle and ran up a hill toward the woods on the other side of an
entrance ramp while Trooper King followed them in his patrol
vehicle. Defendant then turned and ran back across the exit ramp
in the direction of the vehicle for another fifty feet with Trooper
King still in pursuit before stopping and putting his hands in the
air. While Trooper King handcuffed him, defendant stated that
Watson told him not to stop the vehicle because Watson had warrants
against him. Defendant further claimed that Watson had a gun.
At trial, Watson testified that he told defendant to “[g]et me
to the projects and I'm going to jump out and run,” and defendant
responded “I'm on probation.” Watson also testified that when he
arrived at the police station after he was apprehended, he
attempted to tell Trooper King that he had been driving the
vehicle, but defendant stated that he admitted to being the driver
and asked Watson to tell the police that he had made defendant
drive. Watson further testified that he never pulled a gun on
defendant and did not threaten or force him to drive. Trooper King testified that, as he followed defendant and
Watson, he did not see a gun being brandished inside the vehicle.
He also testified that he never saw anything thrown from the
vehicle and that he did not find a gun in the vehicle. On cross-
examination, defendant attempted to ask Trooper King about
defendant's statement while being handcuffed. The trial court
sustained the State's objection to this question and ruled that the
excited utterance exception to the hearsay rule did not apply to
defendant's statement to Trooper King at the scene.
During the trial, a juror inadvertently observed defendant in
custody as he was being taken to a holding cell. The trial court
questioned the two deputies, who were present when defendant was
being moved to the holding cell, and one deputy testified that, to
his knowledge, only one juror had observed defendant at that time.
The trial court then asked this juror whether any other jurors had
observed defendant in custody and whether she had discussed her
observation with any other jurors in any manner. Having determined
that no other juror had observed defendant in custody and that this
juror had not discussed her observation with the others, the trial
court dismissed her from the jury and denied defendant's motion for
a mistrial.
During the charge conference, the trial court overruled
defendant's objection to an instruction on flight. The trial court
further denied defendant's request for a jury instruction on duress
because there was insufficient evidence that his actions werecaused by reasonable fear of immediate death or serious bodily
injury.
Defendant first contends the trial court erred in sustaining
the State's objection to the admission of defendant's statement to
Trooper King. Defendant argues his statement was admissible under
the excited utterance hearsay exception in N.C. Gen. Stat. § 8C-1,
Rule 803(2) (2001).
Rule 803(2) provides for the admission of an otherwise
inadmissible hearsay statement “relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” To be admissible
under the excited utterance exception, “there must be (1) a
sufficiently startling experience suspending reflective thought and
(2) a spontaneous reaction, not one resulting from reflection or
fabrication.” State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841
(1985). “'[T]he modern trend is to consider whether the delay in
making the statement provided an opportunity to manufacture or
fabricate the statement.'” Id. at 87, 337 S.E.2d at 841 (citation
omitted); see also State v. Safrit, 145 N.C. App. 541, 551 S.E.2d
516 (2001). If “the facts indicate a lapse of time sufficient to
manufacture a statement and that the statement lacked spontaneity,”
the statement is inadmissible under this exception. State v.
Sidberry, 337 N.C. 779, 783, 448 S.E.2d 798, 801 (1994).
Here, defendant had only minor injuries and did not require
medical treatment. Although the record does not indicate the
amount of time between defendant's crashing the vehicle and makingthe statement, the record is clear that a sufficient amount of time
had lapsed to provide defendant with an opportunity to fabricate a
statement. Based on this evidence, we conclude that defendant's
statement lacked the spontaneity necessary to show that it was made
free of reflection or fabrication. Therefore, we hold that the
trial court did not err in sustaining the State's objection and
finding defendant's statement inadmissible under Rule 803(2).
Defendant next contends the trial court erred in denying his
motion for a mistrial after it failed to conduct an inquiry of all
the jurors regarding whether they had observed defendant in
custody. “The decision whether to grant a motion for mistrial
rests within the sound discretion of the trial judge and will not
ordinarily be disturbed on appeal absent a showing of abuse of that
discretion.” State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120
(1988) (citation omitted). This Court is limited to an abuse of
discretion review “because the trial court is in the best position
to determine whether the degree of influence on the jury was
irreparable.” State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264,
276 (1997) (citation omitted), cert. denied, 523 U.S. 1142, 140 L.
Ed. 2d 1099 (1998). A mistrial is not required based on the fact
that a juror observed defendant in custody of the court. See,
e.g., State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986) (holding
that the trial court did not err in denying defendant's motion for
mistrial where there was evidence a juror inadvertently observed
defendant handcuffed and in custody because the trial court
conducted an inquiry and found no misconduct or prejudice todefendant); see also State v. Johnson, 341 N.C. 104, 459 S.E.2d 246
(1995); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976).
After learning that a juror had observed defendant in custody,
the trial court conducted an inquiry by first questioning the two
deputies present when defendant was being taken to a holding cell.
One deputy stated that he believed only one juror had observed
defendant at that time. This juror was questioned as to whether
other jurors had observed defendant in custody and whether she had
discussed her observation with other jurors. The trial court then
dismissed the juror who had observed defendant but did not conduct
an inquiry of the remaining jurors, having been satisfied that no
other jurors had seen defendant in custody and that this juror had
not discussed the matter with the other jurors. Because the trial
court promptly conducted an inquiry into the matter, any prejudice
to defendant was cured by the dismissal of this juror. We hold
that the trial court did not abuse its discretion in denying
defendant's motion for mistrial.
In his next assignment of error, defendant contends the trial
court's instruction to the jury on flight was improper and unduly
prejudicial. Defendant contends that the evidence does not
demonstrate that he attempted to avoid apprehension. Our Supreme
Court has held that:
in order to justify an instruction on flight
there must be some evidence in the record
reasonably supporting the theory that the
defendant fled after the commission of the
crime charged. Mere evidence that the
defendant left the scene of the crime is not
enough to support an instruction on flight.There must also be evidence that the defendant
took steps to avoid apprehension.
State v. Fisher, 336 N.C. 684, 706, 445 S.E.2d 866, 878 (1994)
(citation omitted).
Here, Trooper King described defendant's actions after the
vehicle crashed. In its flight instruction, the trial court
explained to the jury that:
[i]f you find from the evidence that the
defendant did so flee, such evidence of flight
may be considered by you together with all
other facts and circumstances in this case in
determining whether the combined circumstances
amount to an admission or show a consciousness
of guilt. However, proof of this circumstance
is not sufficient in itself to establish the
defendant's guilt.
(emphasis added). We find sufficient evidence in the record that
defendant fled after crashing the vehicle in an attempt to avoid
apprehension by Trooper King which supports the trial court's
instruction. Further, we conclude that the trial court's
explanation to the jury that defendant's flight alone was not
sufficient evidence to establish guilt corrected any potential
prejudice which could have resulted from the instruction.
Therefore, we find no error in the trial court's flight
instruction.
Defendant further argues the trial court erred in denying his
request for an instruction on duress. “A trial court must give a
requested instruction if it is a correct statement of the law and
is supported by the evidence.” State v. Haywood, 144 N.C. App.
223, 234, 550 S.E.2d 38, 45 (citation omitted), appeal dismissed
and disc. rev. denied, 354 N.C. 72, 553 S.E.2d 206 (2001). Adefendant is not entitled to a duress instruction if he fails to
present evidence that his conduct resulted from a reasonable fear
that he would “'suffer immediate death or serious bodily injury if
he did not so act.'” Id. (citation omitted). Moreover, a duress
instruction is improper if the defendant “had a reasonable
opportunity to avoid doing the act without undue exposure to death
or serious bodily harm.” State v. Kearns, 27 N.C. App. 354, 357,
219 S.E.2d 228, 231 (1975), disc. rev. denied, 289 N.C. 300, 222
S.E.2d 700 (1976).
At trial, defendant argued that the following evidence
supports a duress instruction: (1) the Durham Police Department was
attempting to apprehend Watson on warrants for armed robbery, (2)
police searched the scene for a weapon, (3) Watson stated that he
told defendant not to stop the vehicle and to drive him to the
“projects” and (4) defendant stated that Watson threatened him with
a gun and forced him to drive the vehicle. However, defendant
failed to present evidence that he was in fear of immediate death
or serious bodily injury. Moreover, evidence produced at trial
shows that Watson never threatened or forced defendant to drive the
vehicle but that defendant was driving of his own will. Further,
defendant had the opportunity to exit the vehicle when he briefly
stopped before getting onto the Durham Freeway. Based on the lack
of evidence that defendant's conduct resulted from his fear of
immediate death or serious bodily injury, we hold that the trial
court properly denied defendant's request for a duress instruction. We have carefully reviewed defendant's remaining assignments
of error and find them to be without merit.
No error.
Judges McCULLOUGH and CAMPBELL concur.
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