Appeal by defendant from judgment entered 16 November 2000 by
Judge Carl L. Tilghman in Beaufort County Superior Court. Heard in
the Court of Appeals 28 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
K.D. Sturgis, for the State.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III,
and Kirby H. Smith, III, for defendant-appellant.
MARTIN, Judge.
Defendant was charged in a bill of indictment with the first
degree murder of Derrick Burrus. A jury found defendant guilty of
first degree murder. Defendant appeals from a judgment entered
upon the verdict, imposing a sentence of life imprisonment without
parole.
Briefly summarized, the evidence at trial tended to show that
defendant arrived at the home of Deshana Sutton on the evening of
15 March 2000, and announced to those present that he was going to
kill Derrick Burrus. Deshana Sutton testified that fifteen or
twenty minutes after defendant left her home, she heard gunshots.
Tina Selby, who was standing outside Bud Johnson's house when the
shooting occurred, testified that she saw a man walk up the street“making a lot of noise,” and enter Johnson's yard where the victim
stood. According to Selby, the man “got up in Derrick's face,” and
Burrus then took off running. At that moment, Selby heard a
gunshot and ran away. Selby testified that she was unable to see
the man's face and could not be certain the man walking up the
street had a gun. Robert Earl “Bud” Johnson testified that on the
night of the murder he witnessed defendant walk up to the victim in
an agitated state. When defendant brandished a handgun, Johnson
made his way inside his home; as he attempted to open his door, he
heard a shot. While Johnson did not testify that he saw defendant
shoot the victim, he did say that defendant “was the only one out
there with a gun that I seen.”
Willie Simmons also testified for the State. He stated he saw
defendant on the night of the murder standing on a street corner,
yelling obscenities, saying he was going to kill Derrick Burrus
“tonight.” Simmons also testified that defendant had a gun in his
hand on the night of the murder.
Leon Martin testified on behalf of the defendant. Martin
testified that he and Robert Johnson were outside Johnson's house
on the evening of 15 March and observed a confrontation or argument
between Jametrius Jennette, Willie Jennette, Tina Selby, and
Marquita Jennette. Martin testified that defendant was not
present. Martin testified that Johnson told him to come into the
house. Johnson went into the house and Martin followed him; as
Martin was pulling the door closed, Martin heard three gunshots.
He testified that he did not see defendant in the yard where theshooting occurred on the night of the killing. Martin also stated
that Robert Johnson was a frequent user of crack cocaine, and that
Deshana Sutton smoked marijuana.
James Lewis also testified for the defendant. Following the
gunshots on 15 March 2000, Lewis observed Vaughan Hanton “goin'
through” the pockets of the victim, Derrick Burrus, who was lying
in Johnson's backyard; sometime later in the evening Lewis saw
Hanton counting a “wad of money.” Finally, Tina Selby testified
that she did not hear defendant make any threats toward the victim
on the night of the murder.
In rebuttal, the State offered the testimony of Willie
Jennette, who stated that he was standing on the corner closest to
Robert Johnson's house talking to the victim on the evening of 15
March 2000. Jennette stated that defendant walked up to him and
Burrus and asked Burrus, “Were you lookin' for me?” Burrus made no
response, and defendant then reached into his front pocket, pulled
a gun, and “started shootin' at him.” Jennette testified that he
saw defendant pull the trigger and that he shot the gun “about
three” times. He did not see Burrus get shot.
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I.
In his first assignment of error, defendant contends he was
denied his constitutional rights because the “short-form”
indictment was insufficient to allege each of the elements of the
crime of first degree murder. However, as defendant recognizes,
this argument has been considered and rejected by the NorthCarolina Supreme Court which has held short-form murder indictments
authorized by G.S. § 15-144 to be “in compliance with both the
North Carolina and United States Constitutions.”
State v. Wallace,
351 N.C. 481, 504-05, 528 S.E.2d 326, 341,
cert. denied, 531 U.S.
1018, 148 L. Ed. 2d 498 (2000),
reh'g denied, 531 U.S. 1120, 148 L.
Ed. 2d 784 (2001) (citing
State v. Kilpatrick, 343 N.C. 466, 472,
471 S.E.2d 624, 628 (1996);
State v. Avery, 315 N.C. 1, 12-14, 337
S.E.2d 786, 792-93 (1985);
State v. Williams, 304 N.C. 394, 422,
284 S.E.2d 437, 454 (1981),
cert. denied, 456 U.S. 932, 72 L. Ed.
2d 450 (1982)). These assignments of error are overruled.
II.
Defendant next argues the State's failure to timely tender the
statement of witness Robert Earl Johnson after he testified unduly
prejudiced defendant and entitles him to a new trial. Johnson was
called as a witness for the State during the first day of
defendant's trial; at the end of Johnson's direct examination,
defendant requested a copy of Johnson's statement to law
enforcement officers pursuant to G.S. § 15A-903(f)(2) (“After a
witness called by the State has testified on direct examination,
the court shall, on motion of the defendant, order the State to
produce any statement of the witness in the possession of the State
that relates to the subject matter as to which the witness has
testified.”). The State responded that there were no written
statements by Johnson. Defendant then proceeded with his cross-
examination of witness Johnson. On the following day, however, the
prosecutor acknowledged that Johnson had made a statement to SBIAgent Malcolm McLeod. After a
voir dire of the agent, the trial
court directed that Johnson's statement be provided to defendant,
and offered defendant the opportunity to re-call Johnson for
additional cross-examination. Defendant declined to do so.
The mode and order of the examination of witnesses and the
presentation of evidence is within the sound discretion of the
trial court, and its rulings will not be disturbed absent a showing
that the trial court has abused that discretion to the prejudice of
the defendant.
State v. Maynard, 311 N.C. 1, 316 S.E.2d 197,
cert.
denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984). No such abuse of
discretion has been shown in this case. The trial court, upon
discovering the existence of the prior statement, promptly
conducted a
voir dire of the interviewing officer, ordered the
statement to be provided to defendant, and gave defendant the
opportunity for further cross-examination of Johnson. Moreover,
defendant has shown no prejudice resulting from the delay in
receiving Johnson's statement. Accordingly, defendant's assignment
of error is overruled.
III.
In his fourth assignment of error, defendant contends the
trial court erred by allowing hearsay testimony of two declarants
without providing the jury a cautionary instruction.
We have reviewed the relevant portions of the trial transcript
regarding Tina Selby's prior statements to Officer McLeod, and we
discern no hearsay testimony. Additionally, the State was fully
within its rights to question the witness regarding her priorstatement. N.C. Gen. Stat. § 8C-1, Rule 607 (2000);
see State v.
Spinks, 136 N.C. App. 153, 160, 523 S.E.2d 129, 134 (1999)
(citations omitted) (“the State may attempt to impeach a hostile
witness by asking him whether he previously made certain prior
inconsistent statements.”). Moreover, the trial court sustained
defendant's objection and motion to strike as to Deshana Sutton's
hearsay testimony concerning a statement by Marquita Jennette.
Sutton's testimony regarding a statement by Tina Selby, even if the
testimony did not corroborate Selby's previous in-court testimony,
we conclude it was nevertheless admissible as an excited utterance
exception to the rule against hearsay. N.C. Gen. Stat. § 8C-1,
Rule 803(2) (2000).
The excited utterance hearsay exception allows
admission of out-of-court statements “relating
to a startling event or condition made while
the declarant was under the stress of
excitement caused by the event or condition.”
[citation omitted] To qualify as an excited
utterance, the statement must relate “'(1) a
sufficiently startling experience suspending
reflective thought and (2) a spontaneous
reaction, not one resulting from reflection or
fabrication.'”
State v. Nicholson, 355 N.C. 1, 35, 558 S.E.2d 109, 133 (2002)
(citations omitted).
In this case, the statement which defendant claims unfairly
prejudiced him was Sutton's testimony that “about five minutes”
after hearing the gun shots, Tina Selby, accompanied by Marquita
Jennette, ran into her house “totally upset,” and said, “Eddie
goin' crazy. He' shootin' at Derrick.” It is clear that Tina
Selby's statement to Sutton was made “under the stress ofexcitement caused by the event” of the shooting, thus Sutton's
testimony with respect to the statement was admissible.
Id.
IV.
Defendant next argues the trial court erred in limiting
defendant's cross-examination of the State's rebuttal witness
regarding his pending charges. As noted above, the trial court
“has broad discretion over the scope of cross-examination.”
State
v. Call, 349 N.C. 382, 411, 508 S.E.2d 496, 514 (1998). Moreover,
the court's ruling on the scope of cross-examination will not be
disturbed absent a showing of abuse of discretion.
Maynard, 311
N.C. 1, 316 S.E.2d 197.
“The right to cross examine a witness to expose the witness'
bias is not unlimited.”
State v. Hatcher, 136 N.C. App. 524, 526,
524 S.E.2d 815, 816 (2000) (citation omitted). However, a
defendant has the right to cross-examine a witness regarding
pending charges at the time of his testimony in order to establish
possible bias.
State v. McRae, 139 N.C. App. 387, 393, 533 S.E.2d
557, 561 (2000) (citing
State v. Evans, 40 N.C. App. 623, 624, 253
S.E.2d 333, 334 (1979)). In
McRae, this Court held that the trial
court did not err by prohibiting the defendant from inquiring into
the specific details of the charges pending against the witness.
Id.
In the present case, the trial court permitted defendant to
cross-examine the State's rebuttal witness on several elements of
the pending charge against him:
I'm going to overrule the objection and allow
the Defendant to cross-examine the witness asto the fact of him being in custody, the fact
that he cannot make bond, his potential court
date, the fact that he's been in custody 30
days, the fact that he has no attorney
appointed to him, and make inquiry generally
as to whether there are any deals with the
prosecution affecting his pending charge and
the testimony in this case today.
The court denied defendant's request to ask the witness about the
specific details of the crime charged. The trial court based its
ruling on Rule 608(b) and on the balancing test of Rule 403.
Defendant proceeded to cross-examine Willie Jennette regarding
certain details of the charge pending against him, including the
amount of time the witness had spent in jail, the fact that he had
not been appointed an attorney, nor advised that he was entitled to
an attorney. Defendant also questioned the witness regarding prior
contradictory statements he had made to a law enforcement officer.
On this record we discern no abuse of discretion in the trial
court's ruling. Defendant was given sufficient opportunity to
question Jennette with respect to his incarceration pending trial,
and the jury was permitted to see the manner in which the witness
changed his story at trial from his initial statement to law
enforcement, which revealed the possibility of motive or bias in
the witness' testimony. Defendant's assignment of error is
overruled.
V.
Defendant next contends the trial court erred in allowing
Jennette to testify in rebuttal that he had seen defendant with a
gun in the past. Evidence of other crimes or acts is inadmissible
for the purpose of showing the character of the accused or forshowing his propensity to act in conformity with a prior act. N.C.
Gen. Stat. § 8C-1, Rule 404(b). However, such evidence may be
admissible for the purpose of showing opportunity.
Id. The North
Carolina Supreme Court has held that Rule 404(b) is a general rule
of inclusion of relevant evidence.
State v. Golphin, 352 N.C. 364,
533 S.E.2d 168 (2000) (citation omitted),
cert. denied, 532 U.S.
931, 149 L. Ed. 2d 305 (2001). In the present case, Jennette's
testimony that he had observed defendant in possession of a handgun
in the past, if believed, was admissible to show that defendant had
the means and opportunity to shoot the victim, and the probative
value of such testimony was not substantially outweighed by the
danger of unfair prejudice. N.C. Gen. Stat. § 8C-1, Rule 403.
VI.
Defendant argues the trial court erred in denying defendant's
motion for a mistrial after the statement of Robert Earl Johnson
was published to three of the twelve jurors. However, defendant
has waived his right to object to this occurrence at trial, and his
assignment of error is overruled.
Once the pre-trial statement of Johnson was discovered to have
been inadvertently published to three members of the jury, the
trial court conducted a conference to determine the appropriate
action to take. Defendant's counsel stated:
Well, Judge, I guess we're the ones that have
the real problem here. But, Judge, we have
discussed this at length with the Defendant
and also with the private investigator, and
Your Honor, we feel like that, or the
Defendant feels like that he would like to go
forward with his case and not move for a
mistrial based on that. We believe that Mr.Johnson testified to a majority of what was in
this anyway and don't feel like that it has
jeopardized our case to the point where we
need to move for any remedy or for mistrial,
Judge.
Defendant then asked the trial court to instruct the jury to
disregard the written statement. When the jury returned, the trial
court instructed,
[m]embers of the jury, before I sent you out,
Court Exhibit No. 1 was circulated to I
believe the first three jurors on the front
row which was in error. That exhibit was not
admitted into evidence and should not have
been given to you to read. So I'm going to
ask that you disregard any statements that you
have read from Court Exhibit No. 1 in your
deliberations.
The trial court also offered defendant the opportunity to re-call
the witness and cross-examine him further based on the statement,
but defendant declined to call the witness. Finally, defendant
specifically acknowledged that he assented to the trial court's
course of action.
See State v. Green, 129 N.C. App. 539, 552, 500
S.E.2d 452, 460 (1998),
affirmed, 350 N.C. 59, 510 S.E.2d 375
(1999) (trial court found that the defendant had waived his right
to a mistrial after having indicated to the court that he did not
want a mistrial).
VII.
Finally, defendant contends the trial court erred in denying
defendant's motion to dismiss the first degree murder charge based
on the insufficiency of the evidence.
In reviewing the denial of a motion to dismiss, this Court
must examine the evidence adduced at trial in
the light most favorable to the State todetermine if there is substantial evidence of
every essential element of the crime. Evidence
is “substantial” if a reasonable person would
consider it sufficient to support the
conclusion that the essential element exists.
State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982).
The test is whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Id. (citations omitted).
As defendant acknowledges, the evidence presented against him
included the testimony of several witnesses. Willie Simmons
testified that he saw defendant on the night of the murder with a
gun in his hand yelling that he was going to kill Derrick Burrus
“tonight.” Robert Earl Johnson testified that he saw defendant
with a gun and heard a shot on the night of the murder, and that
defendant was the only person in the yard with a gun, but that he
did not see defendant shoot the victim. Willie Jennette testified
that defendant walked up to him and Burrus on the night of the
murder, spoke briefly to the victim, pulled a gun and “started
shootin' at him.” Jennette testified that he saw defendant pull
the trigger and that he shot the gun “about three” times. Taking
this evidence in a light most favorable to the State, we hold that
“a rational trier of fact could have found the essential elements”
of premeditation and deliberation to support defendant's conviction
of first degree murder.
McKinnon, 306 N.C. at 298, 293 S.E.2d at
125. Defendant's assignment of error to the contrary is overruled.
We have carefully considered defendant's remaining assignment
of error and conclude, without the necessity of discussion, that itis without merit. Defendant received a fair trial, free from
prejudicial error.
No error.
Judges TYSON and THOMAS concur.
Report per Rule 30(e).
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