STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 99 CRS 54797
JENYON RONQUELL MCELVINE
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
Beaver, Holt, Sternlicht, Glazier, Carlin, Britton & Courie,
P.A., by Haral E. Carlin and Richard B. Glazier, for
defendant-appellant.
WALKER, Judge.
On 17 March 1999, fifteen-year-old Jessica McNeill was in the
company of Sheila, Cecilia, and defendant in a room at the Days Inn
off of Bragg Boulevard in Fayetteville. At some point, Sheila and
Cecilia left the room leaving defendant and Ms. McNeill alone. Ms.
McNeill testified that she and defendant were “talking” in the
motel room and having sex.
While they were still in the room, Ms. McNeill heard Dafe
Gbenedio, known as Jamaican (Jamaican), yelling and banging on the
door but no one answered. When they finally left the room, they
saw Jamaican, Terrence Burden, LeWilliam Currie, “Little Folk,” and
“D” speaking with Sheila and Cecilia on the balcony. Defendantleft the premises while Ms. McNeill stayed to talk. As defendant
left, he gave Jamaican and Jamaican's friends “pounds” or “some
dap” which is a street greeting and handshake. Ms. McNeill
testified that she and her friends attempted unsuccessfully to get
Jamaican and the other men to leave because it was defendant's
room. Later, Ms. McNeill and her friends finally left the motel
where Jamaican and his friends remained.
Mr. Currie testified that when he and his friends first
arrived at the motel, Sheila and Cecilia were talking outside on
the balcony. Jamaican walked up to the door of the room and
started to knock. After Jamaican knocked on the door, “Jessica and
the dude right there (indicating [defendant]) came out.” Defendant
said, “What's up?” to the group outside the motel room and then
left. Although he did not observe any bad feelings or ill words at
the motel, Mr. Currie testified that Jamaican “was beating on the
door. He was, like, 'Let me in. Let me in.' Beating on the door.
Said, 'Let me in. This is my hotel room now.'”
After talking for awhile, Ms. McNeill, Sheila and Cecilia left
but indicated they were coming back. Mr. Currie testified that he
went with Jamaican, Mr. Burden, “Little Folk” and another man into
the motel room. As they entered, Jamaican said, “This is our hotel
room now.” Jamaican called two girls that he knew to come to the
motel. Jamaican and Mr. Currie then left to either go pick them up
or go to the store. Mr. Currie testified that he and Jamaican were
pulling out of the parking lot when another car entered the lot.
They recognized the driver and stopped to “cop some reefer” fromhim. As Jamaican was backing up, Mr. Currie saw a man jump over
the fence and run past the car. “I guess he noticed us. He
stopped. And I turnt [sic] around. I seen [sic] a gun come out.”
Mr. Currie ducked down in his seat and yelled at Jamaican “Go. Go.”
As they were leaving, Mr. Currie heard gunshots. “Jamaica [sic]
was holding his chest, say [sic] he was shot. 'He shot me.'”
After Jamaican passed out in the driver's seat, Mr. Currie managed
to stop the car not far from the parking lot of the motel. The
police were immediately on the scene and called an ambulance for
Jamaican. Jamaican died as a result of the gunshot wounds. Mr.
Currie identified the defendant as the man who came over the fence,
ran towards the car, and started shooting at it. He further
testified that, on the night of the shooting, he identified
defendant as the perpetrator from a photographic lineup.
Angela Pollard, an investigator with the Fayetteville Police
Department, interviewed Mr. Currie and escorted him back to the
Days Inn to conduct further interviews. Investigator Pollard
testified as to what Mr. Currie related to her regarding the events
of that afternoon. He related that, after the man who had been in
the room with Ms. McNeill had departed, Mr. Currie and the others
went into the room with the remaining young women. Jamaican
decided that he wanted to go to the store and Mr. Currie went with
him. As they were leaving the parking lot, another car entered.
They recognized the driver and backed up to talk with him. Mr.
Currie said that then “he saw someone coming running down out of
the woods towards the car. He first did not pay too much attentionto them -- to the person running down the hill out of the woods,
and that the guy ran past the car, and he looked back and saw him
pulling a gun and he started yelling, 'Go, go, go!' So Jamaican
could drive off. He said that Jamaica [sic] started driving off.”
Defendant did not offer any evidence.
During jury deliberations, the jury sent two notes to the
trial judge asking for more information. In the first note, the
jury asked to look at three exhibit photographs again, which was
allowed. The second note stated, “Please bring us (the jury) the
entire transcript of Mr. Curry [sic].” (emphasis in original). The
judge responded to the State and the defendant out of the presence
of the jury:
We have had this conference at the bench.
It's my belief at this point that I'll ask the
court reporter just to reread his--Mr. Le- --
Mr. Currie -- LeWilliam Currie's, I think --
... -- testimony to the jury. It's not in a
form to be sent to them at this point, and the
length is not that great. So, in my
discretion, I'll elect to do that.
There was no objection by defendant. The trial court then brought
in the jury and the court reporter read back the testimony of Mr.
Currie. At the conclusion, a juror asked to rehear the testimony
of Investigator Pollard. After a bench conference, the trial court
granted the request and the court reporter read back her testimony.
On 5 December 2000, the jury returned a verdict of guilty of
felony discharge of a firearm into occupied property and guilty of
first degree murder under the theory of “malice, premeditation and
deliberation” and under the felony murder rule. Defendant first contends that the trial court erred in
allowing the court reporter to read back the testimonies of Mr.
Currie and Investigator Pollard. Because there was no objection,
this Court reviews the record for plain error. State v. Davis, 353
N.C. 1, 19, 539 S.E.2d 243, 256 (2000), cert. denied, ____ U.S.
____, 151 L. Ed. 2d 55 (2001). “Plain error is '“fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done.”'” Id. (citing State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).
N.C. Gen. Stat. § 15A-1233(a)(1999) states:
If the jury after retiring for deliberation
requests a review of certain testimony or
other evidence, the jurors must be conducted
to the courtroom. The judge, in his
discretion, after notice to the prosecutor and
defendant, may direct that requested parts of
the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence.
In his discretion the judge may also have the
jury review other evidence relating to the
same factual issue so as not to give undue
prominence to the evidence requested.
This statutory requirement imposes two duties on the trial court.
“First, the trial court must have all jurors present in the
courtroom. Second, the trial court must exercise its discretion in
determining whether to permit the requested evidence to be read to
the jury.” State v. Weddington, 329 N.C. 202, 207, 404 S.E.2d 671,
675 (1991), cert. denied, 508 U.S. 924, 124 L. Ed. 2d 283 (1993).
Here, upon receiving a request from the jury, the trial court
informed both defendant and the State of the request, brought the
jury into the courtroom and, in open court, exercised itsdiscretion to allow the testimony of the witness to be read back to
the jury. Upon further request for the testimony of Investigator
Pollard, the trial court again informed the defendant and then, in
its discretion, allowed this testimony to be read back to the jury
without objection.
The trial court properly exercised its discretion in allowing
this testimony to be read back to the jury during deliberations.
We find no fundamental error which would have resulted in justice
not being done. Thus, the trial court did not err in allowing the
testimonies of Mr. Currie and Investigator Pollard to be read back
to the jury.
Defendant next contends that the trial court erred in
“repeatedly allowing the prosecution to massively lead all of the
State's witnesses.” Defendant did not object at trial on the basis
of leading questions; therefore, our standard of review is again
plain error.
N.C. Gen. Stat. § 8C-1, Rule 611(c) states:
Leading questions should not be used on the
direct examination of a witness except as may
be necessary to develop his testimony.
Ordinarily, leading questions should be
permitted on cross-examination. When a party
calls a hostile witness, an adverse party, or
a witness identified with an adverse party,
interrogation may be by leading questions.
In interpreting this rule, our Court has held that leading
questions on direct examination should be permitted if the witness
is hostile, has difficulty understanding the question, is
discussing a subject of a delicate nature, is contradicting the
testimony of prior witnesses, is being aided to refresh his memory,is recalling preliminary or introductory testimony, or where “the
mode of questioning is best calculated to elicit the truth.” State
v. Wiggins, 136 N.C. App. 735, 739, 526 S.E.2d 207, 210, disc. rev.
denied, 352 N.C. 156, 544 S.E.2d 243 (2000)(citations omitted).
The decision of whether to permit leading questions is within the
sound discretion of the trial court and should not be disturbed
absent an abuse of discretion. State v. Riddick, 315 N.C. 749,
756, 340 S.E.2d 55, 59 (1986).
Here, of the five witnesses for the State who were at the
motel, four were under the age of nineteen and two of those were
residing in youth correctional facilities at the time of trial.
These young witnesses answered questions using slang terms, short
answers, and street names. Some of these witnesses were questioned
regarding sexual and drug activities. The State's questions
focused all of the witnesses on an event or sequence of events.
Additionally, questions were asked for clarification and to further
explain matters. It is apparent from the record that it was
necessary for the State to ask these leading questions in order to
help the jury understand and develop the testimony of the
witnesses. Again, we find no fundamental error which was “so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done.” Davis, 353 N.C. at 19, 539 S.E.2d at 256.
Thus, the trial court did not abuse its discretion in allowing the
State's questioning of these witnesses.
Defendant finally contends that the trial court improperly
instructed the jury on the presumption of innocence during itspreliminary instructions. Again, defendant did not object to the
instructions at trial; thus, we review for plain error.
During preliminary jury instructions before jury selection had
begun, the trial court gave the following instruction in part:
Under our system of justice, a defendant who
pleads not guilty is not required to prove his
innocence; he is presumed to be innocent. And
this presumption remains with the defendant
throughout the trial until the jury selected
to hear the case is convinced from the facts
and the law beyond a reasonable doubt of the
guilt of the defendant.
The burden of proof is on the state to prove
to you that the defendant is guilty beyond a
reasonable doubt. A reasonable doubt is not a
vain or a fanciful doubt. It is a doubt based
on reason and common sense arising out of some
or all of the evidence that has been presented
or the lack or insufficiency of the evidence
as the case may be. Proof beyond a reasonable
doubt is proof that fully satisfies or
entirely convinces you of the defendant's
guilt. If the state doesn't -- first, there
is no burden or duty of any kind on the
defendant. The mere fact that he has been
charged with a crime is no evidence of guilt.
A charge is merely the mechanical or
administrative way by which a person is
brought to a trial. If the state proves guilt
beyond a reasonable doubt, then the function
of this jury by its verdict is to say guilty.
If the state fails to prove guilt or if you
have a reasonable doubt, it is then your duty
to say not guilty.
Jury instructions are reviewed in the context of the overall
instruction, not in isolation. State v. Davis, 349 N.C. 1, 58, 506
S.E.2d 455, 487 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d
219 (1999). When taking the entire instruction as a whole and in
context, the trial court properly instructed the prospective jurors
on the presumption of innocence and the burden of proof on theState. Thus, we find the trial court did not err in its
preliminary instructions to the jury.
In conclusion, we find there was no error in the trial and
conviction of defendant for first degree murder and felony
discharge of a firearm into occupied property.
No error.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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