Appeal by defendant from judgments dated 22 May 2002 by Judge
Mark E. Klass in Iredell County Superior Court. Heard in the Court
of Appeals 12 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Duncan B. McCormick for defendant-appellant.
BRYANT, Judge.
Kortney J. Maddox (defendant) appeals from judgments dated 22
May 2002 entered consistent with jury verdicts finding him guilty
on five separate counts of assault with a deadly weapon with intent
to kill.
At trial, the State presented testimony from the alleged
victim David McLean, Jr. (McLean). McLean testified that he
“barely” remembered the incident in question, he and defendant had
“made up,” and were now “friends.” McLean further asserted that he
did not remember his conversation with the prosecutor the previous
day and that he preferred “not to answer no questions, sir.” After
continuing to evade the State's questions, McLean stated he
remembered telling the prosecutor the previous day that the
incident began at the “liquor house” on 21 October 2000 after
McLean thought defendant had made a comment about his girlfriend.
The prosecutor asked if he was referring to Tate's Liquor House.
McLean responded, “Yes, that's where I shot at [defendant] first,
and then [defendant] shot back at me.” McLean could not recall how
much time elapsed between the time he shot at defendant and when
defendant shot at him, except that it was a short time later, and
refused to state where that shooting occurred. Following further
evasive answers and his reluctance or inability to remember events,
the State requested that McLean be declared a hostile witness.
After arguments by counsel, the trial court allowed the State
“wide latitude” to ask McLean leading questions on direct
examination. When questioning resumed, McLean admitted giving a
statement to the police approximately thirty minutes after the
shooting and reviewing that statement with the prosecutor the daybefore trial. The State moved to admit the statement into
evidence, and defendant entered only a general objection. The
trial court overruled the objection and admitted the statement into
evidence without any limiting instruction.
McLean specifically recalled telling the police officer that
he was at the intersection of Bell and Harrison Streets in
Statesville, North Carolina on 21 October 2000 and observed
defendant pointing a Tech-9 pistol. He remembered stating that he
ran and defendant chased him firing a number of shots. McLean
testified directly that he heard numerous shots fired at him from
behind as he ran away and had jumped behind a tree to escape. He
denied showing the officer the tree he ran behind or to pointing
out the spot from where the shots had been fired.
Officer David Onley testified he was a police officer with the
Statesville Police Department. On 21 October 2000, he responded to
a call of “shots fired” on Harrison Street. He arrived on the
scene less than a minute later and was approached by McLean, who
came running up to the patrol car. McLean was sweating profusely
and out of breath, and he told Officer Onley that defendant was
trying to kill him. After securing the scene and unsuccessfully
attempting to interview other witnesses, Officer Onley took
defendant's statement. The next day, Officer Onley returned to the
scene and, based on McLean's description of the incident, located
five spent nine-millimeter shell casings in the road. Officer
Onley knew that a Tech-9 pistol was a nine-millimeter handgun.
McLean pointed out to Onley the tree behind which he had fled.
Upon inspection of the tree, Officer Onley located five holes in itthat seemed to be fresh. A photograph of the tree showing the five
holes was admitted into evidence. Officer Onley's report was
admitted into evidence with an instruction to the jury that it was
to be considered as only corroborating or impeachment evidence and
not as substantive evidence. In its final instructions to the
jury, the trial court generally instructed that any prior
out-of-court statements could be used to weigh only the credibility
of the witnesses by corroborating or contradicting trial testimony
and could not be considered as substantive evidence.
At sentencing, defendant stipulated to four prior misdemeanor
convictions. The State further argued that defendant should be
assessed an additional prior record point as the assault was
committed while defendant was on probation. The State then
tendered a prior record level worksheet to opposing counsel and
handed it to the trial court in support of the prior convictions.
The State also handed up a criminal record check showing defendant
was on probation at the time of the present offense, although the
record check was not admitted into evidence. The trial court found
defendant was on probation at the time of the offense, which
resulted in defendant having five prior record points and being
sentenced at Prior Record Level III.
____________________________
The issues are whether: (I) the trial court erred by allowing
the State to use leading questions to examine McLean and admitting
McLean's prior statement; (II) there was sufficient evidence of
assault with a deadly weapon with intent to kill; (III) defendant
was properly convicted of five counts of assault arising from asingle assault; and (IV) the trial court erred in finding defendant
was on probation at the time of the offense.
I
Defendant first contends the trial court erred by allowing the
State to treat McLean as a hostile witness by using leading
questions to examine him and, further, that the admission of
McLean's prior statement into evidence during this examination was
improper.
A. Hostile Witness
[1] Rule 611(c) of the North Carolina Rules of Evidence
provides: “Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop his
testimony.” N.C.G.S. § 8C-1, Rule 611(c) (2001). Leading
questions may be used during direct examination when a party calls
a hostile or unwilling witness.
Id. “Whether to allow a leading
question on direct examination clearly falls within the discretion
of the trial court.”
State v. York, 347 N.C. 79, 90, 489 S.E.2d
380, 386-87 (1997). Thus, a trial court's decision to allow or
disallow leading questions will be upheld absent an abuse of that
discretion.
See id. at 90, 489 S.E.2d at 387;
State v. Riddick,
315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
In this case, the record shows McLean refused to answer some
questions and was evasive in his answers when he did respond. He
asserted that defendant and he were friends, they had “made up”
following the shooting, and he preferred not to answer any
questions. Based on this record, the trial court was within its
discretion to allow the State to treat McLean as a hostile witnessby asking leading questions.
B. Prior Statement
[2] Defendant further contends that the admission of McLean's
prior statement to police following the shooting was an
impermissible use of impeachment evidence as a subterfuge to
present to the jury inadmissible hearsay testimony as substantive
evidence. Defendant, however, entered only a general objection to
the admission of the prior statement without stating specific
grounds and, further, did not request a limiting instruction on the
extent to which the jury could consider the statement. As such,
defendant has waived appellate review of this issue.
See N.C.R.
App. P. 10(b)(2). Assuming without deciding, however, that
defendant properly preserved his objection and the prior statement
constituted inadmissible hearsay, the admission of this statement
was not prejudicial error as we determine there was sufficient
evidence upon which the jury could convict defendant of assault
with a deadly weapon with intent to kill. The evidence reveals,
even without the prior statement, that defendant shot at McLean a
number of times with a nine-millimeter handgun in response to an
earlier confrontation as McLean ran behind a tree. Officer Onley
found five nine-millimeter shell casings and observed five holes in
the tree behind which McLean indicated he had fled. Based on this
uncontradicted and substantial evidence of all the elements of
assault with a deadly weapon with intent to kill, there is no
reasonable possibility that the jury in this case would have
reached a different result.
See N.C.G.S. § 15A-1443(a) (2001).
Thus, admission of the prior statements was at most harmless error.
II
[3] Defendant next contends the trial court erred by not
dismissing the charges of assault with a deadly weapon with intent
to kill because there was insufficient evidence that defendant
intended to kill McLean. We disagree.
A motion to dismiss should be denied if “there is substantial
evidence (1) of each essential element of the offense charged and
(2) that defendant is the perpetrator of the offense.”
State v.
Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial
evidence is that relevant evidence which a reasonable mind would
find sufficient to support a conclusion.”
State v. Carr, 122 N.C.
App. 369, 372, 470 S.E.2d 70, 72 (1996). In determining whether
there is evidence sufficient for a case to go to the jury, the
trial court must consider the evidence, both direct and
circumstantial, in the light most favorable to the State, giving
the State the benefit of every reasonable inference drawn
therefrom.
Id. “An intent to kill is a mental attitude, and
ordinarily it must be proved, if proven at all, by circumstantial
evidence, that is, by proving facts from which the fact sought to
be proven may be reasonably inferred.”
State v. Grigsby, 351 N.C.
454, 457, 526 S.E.2d 460, 462 (2000) (citation omitted) (internal
quotations omitted). “The nature of the assault, the manner in
which it was made, the weapon, if any, used, and the surrounding
circumstances are all matters from which an intent to kill may be
inferred.”
Id. (citation omitted) (internal quotations omitted).
“Moreover, an assailant must be held to intend the natural
consequences of his deliberate act.”
Id. (citation omitted)(internal quotations omitted).
The evidence in this case reveals that defendant shot at
McLean five times with a Tech-9 nine-millimeter handgun as McLean
attempted to flee. McLean was only spared from serious injury or
death by jumping behind a tree. The nature and manner of this
assault and the weapon used is substantial evidence that defendant
intended to kill McLean. Thus, the trial court did not err in
dismissing the charges based upon the insufficiency of the
evidence.
III
[4] Defendant also argues that the trial court erred in not
dismissing four of the five assault charges on the ground that the
five gunshots actually constituted only a single assault. We
agree.
In order for a defendant to be charged with multiple counts of
assault, there must be multiple assaults.
State v. Brooks, 138
N.C. App. 185, 189, 530 S.E.2d 849, 852 (2000). This requires
evidence of “a distinct interruption in the original assault
followed by a second assault.”
Id. In
State v. Dilldine, this
Court noted that it was improper to have two indictments and two
offenses arising out of a single episode simply because the victim
was shot three times in the front and twice in the back.
Dilldine,
22 N.C. App. 229, 231, 206 S.E.2d 364, 366 (1974). The Court went
on to state that to conclude otherwise would make it reasonable to
charge the defendant with five assaults simply because five shots
had been fired.
Id.
The scenario cautioned against in
Dilldine is exactly thescenario presented in the case
sub judice. There is no evidence
that the five shots fired by defendant at McLean were separate
assaults: the State presented no evidence of the time between each
shot and what evidence does exist indicates that all five shots
were fired in rapid succession at approximately the same target, as
indicated by the bullet holes in the tree. The State's attempts to
analogize this case to
State v. Nobles, 350 N.C. 483, 515 S.E.2d
885 (1999) and
State v. Rambert, 341 N.C. 173, 459 S.E.2d 510
(1995) are unpersuasive. First of all, both cases are
distinguishable in that neither involved charges of assault but
instead multiple charges of discharging a weapon into occupied
property.
See Nobles, 350 N.C. at 504-05, 515 S.E.2d at 898-99;
Rambert, 341 N.C. at 175-77, 459 S.E.2d at 512-13. The evidence in
Rambert revealed that the victim's vehicle was parked in a parking
lot when the defendant pulled up next to him.
Rambert, 341 N.C. at
176, 459 S.E.2d at 512-13. The defendant produced a handgun and
the victim ducked.
Id. The defendant fired a single shot that
entered through the front of the victim's windshield.
Id. The
victim then attempted to escape by driving forward; defendant shot
a second time hitting the passenger side door.
Id. Defendant than
began pursuing the victim and fired a third shot into the rear
bumper of the victim's vehicle.
Id. In
Nobles, the evidence
revealed a total of seven bullets had been fired into a vehicle:
two in the windshield; one below the windshield; one near a
headlight; one near the top of the truck bed; one in the truck bed;
and one that had shattered the driver's side door window.
Nobles,
350 N.C. at 505, 515 S.E.2d at 898-99. In both of these cases the North Carolina Supreme Court
concluded the evidence was sufficient to support the multiple
charges of discharging a weapon into occupied property as it showed
each defendant had been required to “'employ his thought processes
each time he fired the weapon'” and that each shot was an “'act
. . . distinct in time, and each bullet hit the vehicle in a
different place.'”
Id. (quoting
Rambert, 341 N.C. at 176-77, 459
S.E.2d at 513). Both of these cases relied on evidence that
defendant had not used an automatic weapon and that the shots fired
into the property were located in numerous places around the
respective vehicles.
Id.
In this case, the evidence shows five bullets struck a single
tree all in close proximity to each other, and there is no evidence
to suggest anything other than that the shots were fired in rapid
succession. Furthermore, the evidence indicates, and the State
asserts, that the weapon used was a semi-automatic handgun. When
a semi-automatic weapon is fired “it will fire the round that is in
the chamber, eject the spent casing and move another round from the
magazine into the firing chamber. Such a pistol automatically
cocks itself for the second round.”
State v. Stager, 329 N.C. 278,
293, 406 S.E.2d 876, 884-85 (1991). Our Courts have recognized
that a semi-automatic weapon “may be used normally to fire several
bullets . . . in rapid succession.”
State v. Antoine, 117 N.C.
App. 549, 551, 451 S.E.2d 368, 370 (1995) (quoting
State v. Carver,
319 N.C. 665, 667-68, 356 S.E.2d 349, 351 (1987)). Therefore, the
evidence in this case, as distinct from both
Nobles and
Rambert, is
that the shots were fired at a single place in rapid succession andwere not separate events requiring defendant to employ his thought
processes each time he fired the gun. This case is instead
analogous to
Dilldine and
Brooks where, in each case, multiple
gunshots constituted only a single assault. Thus, there was only
evidence sufficient to support a single charge of assault with a
deadly weapon with intent to kill, and the trial court should have
arrested judgment on the remaining four counts.
IV
[5] Defendant finally contends that the trial court erred in
finding that the offense was committed while he was on probation
and adding an additional point to his prior record level
determination for a total of five points, which resulted in
defendant being sentenced at Prior Record Level III.
See N.C.G.S.
§ 15A-1340.14(b)(7) (2001) (providing for an additional prior
record point where the offense was committed while defendant was on
probation, parole, post-release supervision, while serving a term
of imprisonment, or while on escape).
The record in this case reveals that, although the State did
not move to admit the record check, it was handed up to the trial
court.
(See footnote 1)
Our review of the record check considered by the trial
court reveals that defendant was sentenced to twenty-four months
probation on 26 January 2000. The offense in this case was
committed on 21 October 2000, less than nine months later. Weconclude the record check in this case is sufficient to support a
finding that defendant was on probation at the time he committed
the offense. Thus, we conclude defendant is not entitled to a new
sentencing hearing.
Accordingly, we uphold defendant's conviction and sentence on
a single count of assault with a deadly weapon with intent to kill
but reverse and dismiss four of the five convictions.
See N.C.G.S.
§ 15A-1447 (2001) (relief available on criminal appeal).
Case No. 00 CRS 56703: No error.
Case Nos. 01 CRS 1087-90: Reversed and Dismissed.
Judges McGEE and GEER concur.
Footnote: 1