Appeal by defendant from judgment entered 11 July 2001 by
Judge Charles C. Lamm, Jr., in Alexander County Superior Court.
Heard in the Court of Appeals 21 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph Ellis Herrin, for the State.
Michael E. Casterline for defendant appellant.
McCULLOUGH, Judge.
Defendant Ronnie Lee Barnes was tried before a jury at the 9
July 2001 Criminal Session of Alexander County Superior Court after
being charged with one count of assault with a deadly weapon with
intent to kill inflicting serious injury, in violation of N.C. Gen.
Stat. § 14-32(a) (2001). Evidence for the State showed that the
victim, Ms. Janet Pinkerton, had been friends with defendant for a
number of years. At the time the crime occurred, Ms. Pinkerton
lived with defendant's mother and had been dating Mr. Oren Spencer
for several months.
Around 1:30 p.m. on 4 May 2000, Ms. Pinkerton accompanied
defendant as he looked for Mr. Spencer. Defendant believed Mr.
Spencer had taken a car from his house the day before and wanted itback. The two men had disagreements in the past about other
matters and were still angry with each other. Ms. Pinkerton and
defendant eventually found Mr. Spencer at the home of Mr. Ricky
Campbell. Defendant and Mr. Spencer began arguing, and Mr. Spencer
jumped on defendant and began beating him. Ms. Pinkerton yelled
for Mr. Spencer to stop because defendant was “turning colors” and
she feared he was seriously hurt. After Ms. Pinkerton pulled Mr.
Spencer off defendant and broke up the fight, defendant took the
car and left Mr. Campbell's house. He suffered two black eyes and
a swollen face. Ms. Pinkerton and Mr. Spencer remained at Mr.
Campbell's house overnight. Ms. Pinkerton was present while Mr.
Spencer and defendant talked on the phone and resolved their
differences that evening.
The next day Ms. Pinkerton and Mr. Spencer returned to
defendant's mother's house, where Ms. Pinkerton lived. Around 1:00
p.m., Ms. Pinkerton called defendant, and he invited both her and
Mr. Spencer to his mobile home. Ms. Pinkerton and Mr. Spencer
walked to defendant's mobile home, which was a short distance away
from his mother's house. Ms. Pinkerton reached defendant's porch
just ahead of Mr. Spencer and knocked on the front door. When
defendant opened the door, he was holding a five-gallon bucket of
gasoline and an unlit torch. Defendant threw the gasoline outside,
then ignited it with the torch. The gasoline splashed onto the
porch, Ms. Pinkerton's legs, and Mr. Spencer. Ms. Pinkerton
realized the porch was on fire and ran down the stairs, then
noticed her legs were on fire. The fire on her left legextinguished itself; she smothered the flames on her right leg
using her arm. The gasoline on Mr. Spencer did not ignite because
he was standing farther away from defendant and the burning porch.
After Ms. Pinkerton extinguished the flames on her body, she
looked at the porch and saw defendant extinguish the fire on it
with a water hose. She also saw Mr. Spencer pointing a gun at
defendant. She testified she did know Mr. Spencer had a gun with
him, though he mentioned that he had a gun on previous occasions.
Mr. Spencer kept the gun pointed at defendant; in response,
defendant began beating his chest and yelling, “shoot me, you
S.O.B., shoot me.” Ms. Pinkerton ran back to Mrs. Barnes' home and
got into a tub of cold water. An ambulance later took her to the
Baptist Hospital Burn Unit in Winston-Salem, North Carolina, where
she remained for eighteen days for treatment of her second- and
third-degree burns. During the trial, both Ms. Pinkerton and her
daughter testified regarding Ms. Pinkerton's pain and suffering and
the course of treatment she received after sustaining her burns.
Ms. Pinkerton also testified her medical bills were in excess of
$50,000.00.
After Ms. Pinkerton left the witness stand, the State called
Mr. Spencer to testify. At the time of trial, Mr. Spencer was
incarcerated at the Piedmont Correctional Institution, where he was
serving a sentence for kidnapping, strong arm robbery and a gun
charge. When questioned, Mr. Spencer stated he did not remember
the altercation with defendant on 4 May 2000, going to defendant's
trailer on 5 May 2000, or giving a statement to any law enforcementofficers.
The State then called Detective Keith Warren, a seventeen-year
veteran of the Alexander County Sheriff's Department, to testify.
He stated that he and several officers were sent to Mrs. Barnes'
residence on 5 May 2000 and found Ms. Pinkerton with burns on her
arm and legs. The officers proceeded to defendant's mobile home,
where they noted burn patterns on the porch and on the porch steps
leading to the front yard. Detective Warren located the bucket of
gasoline in defendant's front yard; the torch was in the passenger
seat of a small blue pickup truck parked directly in front of
defendant's mobile home.
On 9 May 2000, Detective Warren interviewed Mr. Spencer at the
Alexander County Sheriff's Department. Detective Warren's
handwritten notes were marked as State's Exhibit 5. Because Mr.
Spencer testified that he did not remember anything regarding the
events of 4 and 5 May 2000, the State requested that the trial
court treat him as a hostile witness and permit Exhibit 5 to be
admitted for impeachment purposes and also as an exception to the
hearsay rule under N.C.R. Evid. 804(a)(3). Defendant objected.
The trial court stated:
I'm going to allow it [Exhibit 5] in as
substantive evidence and find that the witness
is unavailable and that you have had
substantially the same amount of notice as the
State had, that he is unavailable under
804(a)(3), and that it fits the exception to
the hearsay rule, and the detective may
testify as to the contents of the statement
before the jury.
The trial court later stated that the Court has determined that the testimony it
let in through Detective Warren concerning
Oren Spencer's statement he took does come
under the catch-all exception to Rule 804
being 804(b)(5) and the Court considered the
following in allowing it to be admitted as
substantive evidence.
The trial court confirmed that the State provided defendant with a
copy of the statement Detective Warren took well in advance of
trial, and that the substance of the statement was of no surprise
to defendant. In light of those facts, the trial court excused the
State from giving written notice to defendant in advance of trial
because the State did not know Mr. Spencer was going to testify to
a lack of memory of the events he was asked about under oath.
Finally, the trial court concluded that Mr. Spencer was unavailable
as a witness under Rule 804(a).
Detective Warren testified his notes reflected Mr. Spencer's
verbatim statement as follows:
Me and Janet were at Rick Campbell's
house Friday. Ronnie Barnes called sometime
that morning and talked with Janet. I don't
know what was said. We went to Ronnie's
mother's house and Janet talked me into going
down to Ronnie's trailer. Janet knocked on
the door and Ronnie came to the door. Ronnie
was carrying a five-gallon bucket of gas,
opened the door and threw it on us. I saw a
blow torch and hauled ass. Ronnie had the
blow torch in his hand and it was lit. I ran
to the corner of the trailer and he came after
me with the blow torch. I ran around the
trailer because I had gas all over me. When I
got back to the front of the trailer Ronnie
had a water hose spraying his legs and the
porch. I helped Janet up to [Mrs. Barnes']
house and called for help.
State's Exhibit 5 was then admitted into evidence over defendant'sobjection. On cross-examination, Detective Warren stated Mr.
Spencer was not at Mrs. Barnes' residence when the officers
arrived. He also stated defendant was at his trailer and had
bruises on his face and flash burns on his legs. He did not resist
the officers.
Defendant moved to dismiss the case at the close of the
State's evidence on the grounds that the State failed to show
specific intent to kill the victim and failed to show evidence of
a deadly weapon. The trial court denied the motion. During the
charge conference, defendant requested a jury instruction on self-
defense and objected to the jury instruction on the doctrine of
transferred intent. The trial court gave the instruction on
transferred intent and denied defendant's request for a self-
defense instruction. Thereafter, the jury found defendant guilty
of one count of assault with a deadly weapon inflicting serious
injury. The trial court determined that defendant had a prior
record level of IV, sentenced him to 42-60 months' imprisonment,
and ordered him to pay $50,122.67 in restitution. Defendant gave
notice of appeal in open court.
On appeal, defendant argues the trial court committed
prejudicial error by (I) not instructing the jury on self-defense;
and (II) admitting a hearsay statement under N.C. Gen. Stat. § 8C-
1, Rule 804 (2001). For the reasons set forth herein, we disagree
with defendant's arguments and conclude he received a trial free
from prejudicial error.
By his first assignment of error, defendant contends the trial
court erred by declining to instruct the jury on self-defense
because there was evidence in the record to support such an
instruction. We disagree.
“A defendant is entitled to a jury instruction on self-defense
when there is evidence from which the jury could infer that he
acted in self-defense.” State v. Allred, 129 N.C. App. 232, 235,
498 S.E.2d 204, 206 (1998); State v. Spaulding, 298 N.C. 149, 156,
257 S.E.2d 391, 395 (1979). “If, however, there is no evidence
from which the jury reasonably could find that the defendant in
fact believed that it was necessary to kill his adversary to
protect himself from death or great bodily harm, the defendant is
not entitled to have the jury instructed on self-defense.” State
v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982), aff'd, 826
F.2d 1059 (1987).
In other words, before the defendant is
entitled to an instruction on self-defense,
two questions must be answered in the
affirmative: (1) Is there evidence that the
defendant in fact formed a belief that it was
necessary to kill his adversary in order to
protect himself from death or great bodily
harm, and (2) if so, was that belief
reasonable? If both queries are answered in
the affirmative, then an instruction on self-
defense must be given. If, however, the
evidence requires a negative response to
either question, a self-defense instruction
should not be given.
Id. at 160-61, 297 S.E.2d at 569. “We consider the facts in the
light most favorable to Defendant in determining whether the trialcourt should have instructed the jury on self-defense.” Allred,
129 N.C. App. at 235, 498 S.E.2d at 206.
In support of his argument, defendant points out that Mr.
Spencer had a history of violent crime and severely beat defendant
on 4 May 2000, the day before the crime at issue in this case.
Defendant sustained apparent injuries and left Mr. Campbell's house
immediately after his fight with Mr. Spencer. Defendant maintains
he was recuperating at his trailer the following day when Ms.
Pinkerton contacted him and told him she and Mr. Spencer were a few
minutes away from his house. Defendant contends he reasonably
believed it was necessary to protect himself from a deadly assault
at the hands of Mr. Spencer, based on the events of 4 May 2000.
Defendant also points to his long friendship with Ms. Pinkerton for
the proposition that she was not the intended victim.
Upon review of the record, we discern no evidence which
supported an instruction on self-defense. During his telephone
conversation with Ms. Pinkerton, defendant invited both her and Mr.
Spencer to come to his trailer. Defendant knew they would arrive
soon, due to the short distance between his trailer and his
mother's house. Though defendant and Mr. Spencer had an
altercation on 4 May, Ms. Pinkerton's testimony indicated that she
broke up the fight and that the two men resolved their differences
during their telephone conversation on the evening of 4 May.
Significantly, there is no evidence that either Ms. Pinkerton or
Mr. Spencer acted in a threatening manner toward defendant on 5 May
2000. While it is true that Mr. Spencer brandished a gun afterdefendant doused him and Ms. Pinkerton with gasoline, there is no
evidence that defendant saw the gun prior to the time Mr. Spencer
pointed it at him after defendant attacked them. Ms. Pinkerton
testified she did not see the gun until Mr. Spencer pointed it at
defendant; this fact supports the inference that defendant did not
see the gun before he doused Ms. Pinkerton and Mr. Spencer with
gasoline and therefore did not possess a reasonable belief that he
had to act in self-defense.
Based on the foregoing, we conclude defendant did not
reasonably believe that he needed to act in self-defense to protect
himself from death or great bodily harm at the hands of Mr.
Spencer. Thus, the trial court did not err in denying defendant's
request for an instruction on self-defense, and defendant's first
assignment of error is overruled.
By his second assignment of error, defendant contends the
trial court erred by admitting into evidence a statement made by
Mr. Spencer and taken down by Detective Warren on 9 May 2000.
Again, we disagree.
N.C. Gen. Stat. § 8C-1, Rule 802 (2001) provides that hearsay
is inadmissible unless an exception is applicable to the situation.
In the present case, Mr. Spencer was called to testify about the
events on 4 and 5 May 2000, but refused to answer questions posed
to him. Mr. Spencer had previously given Detective Warren a
statement on 9 May 2000. In light of Mr. Spencer's uncooperative
testimony at trial, the State sought to have his statement admittedfor impeachment purposes and also as an exception to the hearsay
rule under N.C. Gen. Stat. § 8C-1, Rules 804(a)(3) and 804(b)(5)
(2001).
Statements made shortly after a crime was committed have been
deemed admissible as a hearsay exception under Rule 804(b)(5) where
the declarant refuses to testify against the defendant at trial and
is therefore an “unavailable” witness.
State v. Bullock, 95 N.C.
App. 524, 383 S.E.2d 431 (1989). Under Rule 804(a)(3), a witness
is “unavailable” when he “testifies to a lack of memory of the
subject matter of his statement[.]” In the present case, when the
State called Mr. Spencer to testify, he was serving a sentence for
committing a violent crime. In response to questions posed by the
State, Mr. Spencer said he did not remember the events of 4 and 5
May 2000 and did not recall giving a statement to Detective Warren
at the Alexander County Sheriff's Office on 9 May 2000. Thus,
under Rule 804(a)(3), Mr. Spencer was an “unavailable” witness.
Rule 804(b)(5) provides that, if the declarant is unavailable
as a witness, the following statements are admissible:
A statement not specifically covered by any of
the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness,
if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and (C) the
general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
However, a statement may not be admitted under
this exception unless the proponent of it
gives written notice stating his intention tooffer the statement and the particulars of it,
including the name and address of the
declarant, to the adverse party sufficiently
in advance of offering the statement to
provide the adverse party with a fair
opportunity to prepare to meet the statement.
Before hearsay testimony can be admitted under Rule 804(b)(5),
the trial court must first find that the declarant is unavailable,
and then engage in the six-part inquiry set forth in
State v.
Triplett, 316 N.C. 1, 9, 340 S.E.2d 736, 741 (1986), to determine
the unavailability of a witness and the propriety of allowing his
prior statement into evidence at trial. Under
Triplett, the trial
court must:
(1) Determine that the proponent of the
hearsay provided proper notice to the adverse
party of his intent to offer it and of its
particulars;
(2) Determine that the statement is not
covered by any of the exceptions covered in
804(b)(1)-(4);
(3) Include in the record his findings
of fact and conclusions of law that the
statement possesses “equivalent circumstantial
guarantees of trustworthiness.”
State v.
Smith, 315 N.C. 76, 93, 337 S.E.2d 833, 844-45
(1985);
(4) Include in the record a
determination that the proffered statement is
offered as evidence of a material fact;
(5) Consider whether the hearsay
statement “is more probative on the point for
which it is offered than any other evidence
which the proponent can produce through
reasonable efforts.” N.C. Gen. Stat. § 8C-1,
Rule 804(b)(5); and
(6) Whether “the general purposes of
[the] rules [of evidence] and the interests of
justice will best be served by admission ofthe statement into evidence.” N.C. Gen. Stat.
§ 8C-1, Rule 804(b)(5).
Triplett, 316 N.C. at 9, 340 S.E.2d at 741.
Defendant contends the trial court made at least three
incorrect determinations: (1) that Mr. Spencer's statement to
Detective Warren exhibited trustworthiness; (2) that defendant had
“substantially the same” notice as did the State so that the State
was not required to give advance written notice of its intention to
admit the statement as an exhibit at trial; and (3) that the trial
court's findings of fact and conclusions of law supported admission
of the statement.
Upon examination of the record, we conclude the trial court
made appropriate findings concerning the six
Triplett factors. As
to factor one, the trial court found that proper notice was given
under the circumstances because defendant had a copy of the
statement well in advance of trial and both he and the State were
unaware that Mr. Spencer would prove to be an unavailable witness.
We note, in passing, that the notice provision should be flexibly
construed “in light of the express policy of providing a party with
a fair opportunity to meet the proffered evidence.”
Triplett, 316
N.C. at 12-13, 340 S.E.2d at 743;
see also State v. Nichols, 321
N.C. 616, 622, 365 S.E.2d 561, 565 (1988).
As to factor two, the
trial court correctly concluded the statement did not fall within
any of the exceptions listed in N.C. Gen. Stat. § 8C-1, Rule
804(b)(1)-(4) (former testimony, a statement made under belief of
impending death, a statement against interest, or a statement ofpersonal or family history).
With regard to factor three, the trial court determined the
statement was trustworthy and specifically stated:
That the declarant in the statement
professed to have personal knowledge of the
underlying events about which he spoke;
That there is no evidence that the
declarant at that time had any reason or
desire to falsely accuse the person of the
actions described in the statement that he
made to the detective, especially the actions
that he witnessed resulting in injury to the
alleged victim, Janet Pinkerton;
That the declarant, until he took the
stand under oath and testified as to a lack of
memory and possibly during the lunch hour
right before he took the stand, never recanted
his statement and never made any inconsistent
statements, and even then, he substantially
did not recant the statement or make an
inconsistent statement, but it was generally
that he could not recall or did not remember.
Moreover, the testimony of Detective Warren and Ms. Pinkerton
and the physical evidence at defendant's trailer (burns on the
porch and the porch steps, and flash burns on defendant's body)
supported Mr. Spencer's explanation of the events that took place
on 5 May 2000.
We believe the trial court also considered
Triplett factors
four through six and properly determined that Mr. Spencer's
statement to Detective Warren was offered as evidence of a material
fact, that it was more probative on the point for which it was
offered than any other evidence the State could have produced
through reasonable efforts, and that the interests of justice would
best be served by admission of the statement into evidence. Indeed, the trial court made findings of fact and conclusions of
law to this effect on each of the remaining three
Triplett factors.
Lastly, even if the trial court erred in admitting Mr.
Spencer's statement, defendant has failed to show the admission was
harmful beyond a reasonable doubt, given the overwhelming evidence
of his guilt.
See N.C. Gen. Stat. § 15A-1443(b) (2001).
Accordingly, this assignment of error is overruled.
After careful examination of the proceedings below and the
arguments of the parties, we conclude defendant received a fair
trial, free from prejudicial error.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***