Appeal by defendant from judgment entered 28 August 1997 by
Judge Robert F. Floyd, Jr. in Superior Court, Johnston County.
Heard in the Court of Appeals 16 October 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gary R. Govert, for the State.
Michael J. Reece, for defendant-appellant.
McGEE, Judge.
Douglas Johnson (defendant) was convicted of second degree
murder on 28 August 1997 and sentenced to 157 to 198 months active
imprisonment. The State's evidence included testimony from several
eyewitnesses of the events in question. The State's evidence
tended to show that around midnight on 16 August 1996, at the
Coastal gas station in Benson, North Carolina, William Pope (Pope)
stated to his friends Steve Gustafson (Gustafson) and Teddy Harmon
(Harmon), that "he was going to kick [his] a--," referring to James
Dormio (Dormio). The three men approached Dormio at Dormio's
vehicle which was parked beside the gas pumps. Pope was supposedly
mad at Dormio because a woman who had previously dated Gustafson
had complained to Pope and Gustafson that Dormio was calling andharassing her.
The eyewitnesses further testified that Pope pushed Dormio,
asking him if he had a problem. Dormio replied that he did not
even know Pope and Dormio attempted to get into his vehicle.
Gustafson began arguing with Dormio. Gustafson pushed Dormio and
threw his arms up in the air saying, "Do you want to go?" Dormio
moved forward from his vehicle and Pope, Gustafson, and Harmon
began pushing Dormio around among them. Dormio started to defend
himself but decided instead to try to get away. However, Pope
pushed Dormio again in the chest and the shoving by Pope,
Gustafson, and Harmon continued. Defendant approached Dormio from
"out of nowhere," said "Don't f--k with my friends," and hit Dormio
in the face with his fist. Dormio, who was wearing a cast on his
leg from an injury, stumbled and fell face first to the pavement.
Defendant started kicking Dormio while Dormio was lying on the
ground. Dormio may have tried to get up at that point, but
defendant kicked him again in the side and in the back, and then
defendant took three or four steps back and kicked Dormio with a
great deal of force. Eyewitness Ann Lee (Lee) described the kick
as "hard like you would with all your might and [sic] kick a
football." Dormio was lying face down on the ground and not
moving. Defendant jumped and stomped on Dormio's back and neck
"with all his might" several times, followed by two or three hard
kicks to the back of Dormio's head. Dormio's head was rolling
every time it was hit or kicked. Harmon, a co-defendant in this
case, had also been kicking and stomping on Dormio's head and neckseveral times. Defendant stopped kicking Dormio and walked away
just before Harmon stopped. At some point during the attack, blood
began coming from Dormio's mouth. No one saw Dormio with a weapon,
nor did anyone testify Dormio struck anyone.
Officer Ashley McLamb testified he arrived at the gas station
in the early hours of 17 August 1996, in response to a call that a
fight was in progress. Officer McLamb located Dormio's unconscious
body near the gas pumps, with bruises on his face and blood coming
from his mouth and nose. A rescue squad transported Dormio to a
hospital where he was pronounced dead on arrival. Officer McLamb
was given a description of the vehicle in which defendant had fled
and in what direction he had driven. Defendant was arrested about
an hour later in the parking lot of a motel near the Coastal gas
station.
The State's medical expert testified that Dormio died as a
result of bleeding around the base of his brain, coming from a
blunt force trauma which tore one of the major arteries that
supplies blood to the brain. The expert testified that a kick or
some other type of violent blow that caused a wrenching of the neck
or twisting of the head could cause such an injury. The medical
expert further testified that the tearing could have been the
result of one or more violent blows. The expert testified that it
was unlikely the injury could have been caused by a blow to the
back or by a blow to the back of the head, or by Dormio's falling
forward and hitting his face without catching himself, or by a
punch to the jaw. However, a blow to the neck area or a kick tothe head causing the head to snap to the side could cause such an
injury.
Sammy Lee Holt (Holt) testified for defendant that after
Gustafson pointed out Dormio to Pope at the gas station, Pope said
he wanted to talk to Dormio. Holt testified that when Pope asked
Dormio why Dormio had been talking about Pope and Gustafson's
girlfriend, Dormio clenched his fist, "puffed up," and Pope said,
"you don't want to start with me." Holt testified that defendant
came up behind Dormio and said, "don't f--k with my friend." Holt
said that Dormio tried to "ball up," defendant pushed him, and then
Gustafson and Harmon pushed Dormio, causing Dormio to fall down.
While Holt testified that both defendant and Harmon kicked Dormio
while Dormio was on the ground, Holt stated that defendant never
kicked Dormio in the head, only in the right leg and in the side.
On cross-examination by the State, Holt challenged the part of his
previous statement to an SBI agent where he stated that defendant
hit Dormio in the face with his fist.
Defendant failed to perfect his appeal in a timely manner,
but his appeal was allowed by an order of our Court granting
defendant's writ of certiorari on 23 January 2001.
Defendant has failed to put forth an argument in support of
assignments of error three, four and five. Thus, defendant has
abandoned these assignments. N.C.R. App. P. 28(b)(5).
I.
Defendant argues the trial court erred in admitting into
evidence the testimony of Lee concerning defendant's involvement ina fight a week before the one that resulted in Dormio's death.
During the State's direct examination of Lee, she was asked had she
seen defendant previously. She answered, saying she had seen
defendant in a fight in the Coastal gas station parking lot the
weekend before Dormio was killed. She again testified on cross-
examination by co-defendant Harmon's counsel that she had witnessed
defendant fighting in the Coastal gas station parking lot the week
before Dormio's death. Defendant objected when Harmon's counsel
asked what had happened during that fight, and the trial court
sustained the objection. Defendant's counsel's cross-examination
of Lee on the matter consisted of two questions:
Q. Now, you have testified that you saw Mr.
Johnson in a fight a week earlier.
A. Yes.
Q. Who was with you at the time?
A. Olivia.
On redirect examination of Lee by the State, she again testified
without objection that she had seen defendant fighting the weekend
before Dormio's death. Defendant objected when the State asked her
to describe what she had seen; however, this time, after hearing
arguments from both parties outside the presence of the jury, the
trial court overruled the objection and allowed Lee to describe the
earlier assault.
The trial court at first disagreed with the State's argument
that the evidence of the details of the prior fight demonstrated
motive, stating that:
if it[]s hypothetically shown that a defendantentered into fights for no reason over a
period of time, I think it would go beyond
propensity, if it was the same type of
situation that had arisen over a period of
time, rather than showing some other related
bad act just showing he was a bad character
and he had the propensity to enter into
fights. If it was something that was a common
occurrence, I think it could be argued. This
case you have only one prior occurrence being
testified to.
However, the trial court then heard arguments that defendant had
opened the door to the admission of the evidence on the basis of
defendant's questioning of Lee. The trial court overruled
defendant's objection and allowed Lee to testify to the details of
the fight she had witnessed the week prior to Dormio's death.
We agree with the trial court that the evidence of a fight the
week before only shows defendant's propensity to fight, the type of
evidence that is inadmissible under N.C. Gen. Stat. § 8C-1, Rule
404(b) (2001). Rule 404(b) states, in pertinent part: "Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith." N.C.G.S. § 8C-1, Rule 404(b). Under N.C.G.S. § 8C-1,
Rule 404(b), the details of the single previous fight in this case,
even if it occurred at the same location as the incident in which
Dormio was killed, were inadmissible.
Further, given the other facts in evidence, even at the time
the State sought to have Lee testify as to the details of the
fight, the probative value of the details of the previous fight
would be slight in relation to the charged offense.
See State v.
Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202,
cert. denied,354 N.C. 222, 554 S.E.2d 647 (2001) (noting that even if evidence
is admissible under Rule 404(b), it must still be excluded if its
probative value is substantially outweighed by the danger of undue
prejudice). As the State correctly points out, "any act evidencing
'wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty
and deliberately bent on mischief' . . . is sufficient to supply
the malice necessary for second degree murder."
State v. Snyder,
311 N.C. 391, 394, 317 S.E.2d 394, 396 (1984) (quoting
State v.
Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978)).
Evidence of "any act" in relation to the assault that resulted in
Dormio's death that would satisfy this standard had already been
admitted, thus making the details of a fight the previous week
which did not involve Dormio of minimal probative value. There was
already testimony that defendant had attacked Dormio, later
bolstered by other witnesses' testimony, which was essentially
uncontradicted. The evidence showed that defendant entered the
fray unprovoked by Dormio, that Dormio never struck anyone, and
that Dormio was unarmed. The probative value of the details of the
previous week's fight would have been substantially outweighed by
its undue prejudicial impact on defendant.
Nevertheless, despite its inadmissibility under N.C.G.S. § 8C-
1, Rules 403 and 404(b), the trial court allowed Lee's testimony
about the details of the prior fight, apparently under the
rationale that defendant himself had opened the door by inquiring
about the fight on Lee's cross-examination. However, the recorddoes not show that the door was opened to allow into evidence the
details of the previous week's fight. We acknowledge that "where
one party introduces evidence as to a particular fact or
transaction, the other party is entitled to introduce evidence in
explanation or rebuttal thereof, even though such later evidence
would be incompetent or irrelevant had it been offered initially."
State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585 (2001)
(citations omitted). However, the cases in which this rule has
been applied involve situations where a party has introduced
evidence in an incomplete manner or framed it in such a way that it
would be misinterpreted by a jury if not further explained or
placed into context by the opposing party.
See id.;
State v.
Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) ("This
testimony, unexplained, could well [mis]lead the jury. . . . Under
such circumstances, the law wisely permits evidence not otherwise
admissible to be offered to explain or rebut evidence elicited by
the defendant himself.").
This is not such a case. First, defendant did not introduce
evidence that he was in a fight the previous week; this evidence
was elicited during direct examination by the State. In addition,
there is little danger that the fact that defendant was involved in
the earlier fight would mislead the jury, or need to be rebutted or
explained by the State. Further, defendant's question to Lee
concerned who was with her when she saw the fight. Defendant never
actually asked about details of the previous week's fight as
contended by the State. We do not agree with the State thatdefendant opened the door to questioning about the details of the
previous week's fight.
It is true "'that the admission of evidence without objection
waives prior or subsequent objection to the admission of evidence
of a similar character.'"
State v. Hudson, 331 N.C. 122, 151, 415
S.E.2d 732, 747-48 (1992),
cert. denied, 506 U.S. 1055, 122 L. Ed.
2d 136 (1993) (quoting
State v. Campbell, 296 N.C. 394, 399, 250
S.E.2d 228, 231 (1979)). Defendant's failure to object to Lee's
statement that she saw defendant in a prior fight did not waive
defendant's objection to the admission of testimony concerning the
details of that fight. Lee's response was to a question asking if
she knew defendant. Lee's testimony that she saw defendant in a
fight the previous week was not in response to any question that
would normally be expected to elicit such a response. Once the
statement was made, defendant was faced with the tactical choice of
objecting to the statement or asking for a limiting instruction,
thereby drawing the jury's attention to the response, or allowing
the statement to be admitted. Every time a party asked Lee about
the details of the prior week's fight, defendant objected. This is
not a case where defendant failed to object to testimony or
evidence and is now seeking to keep out substantially the same
statement or evidence.
See State v. Nobles, 350 N.C. 483, 501, 515
S.E.2d 885, 896 (1999);
State v. Singletary, 344 N.C. 95, 108, 472
S.E.2d 895, 903 (1996);
Campbell, 296 N.C. at 399, 250 S.E.2d at
231
.
We find that the trial court's admission of Lee's descriptionof the fight in which defendant participated the week prior to
Dormio's death to be error. However, in order for such an error to
require a new trial, "[d]efendant has the burden of showing that he
was prejudiced by the admission of the evidence. To meet this
burden, defendant must show that, had the error in question not
been committed, a different result would have been reached at the
trial."
State v. Hutchinson, 139 N.C. App. 132, 139, 532 S.E.2d
569, 574 (2000) (citations omitted). Defendant has failed to show
a reasonable possibility that the outcome of the trial would have
been different if the evidence had been excluded. N.C. Gen. Stat.
§ 15A-1443(a) (2001).
The uncontroverted evidence was overwhelming that defendant
participated in the assault that resulted in Dormio's death. There
was also substantial evidence that defendant inflicted the types of
blows the State's medical expert described as sufficient to result
in Dormio's death. There was substantial evidence of each of the
elements of second degree murder and thus the erroneous admission
of Lee's description of the earlier fight was non-prejudicial.
II.
Defendant argues the trial court erred in its refusal to
instruct the jury on voluntary manslaughter. "[A] defendant is
entitled to have a lesser-included offense submitted to the jury
only when there is evidence to support it."
State v. Johnson, 317
N.C. 193, 205, 344 S.E.2d 775, 782 (1986) (citations omitted). If
the evidence would support a conviction of murder, but would not
allow the jury to find the defendant guilty of voluntarymanslaughter, the trial court was correct in refusing to instruct
the jury on voluntary manslaughter.
State v. Rogers, 323 N.C. 658,
667, 374 S.E.2d 852, 858 (1989).
"Voluntary manslaughter is the killing of another human being
without malice and without premeditation and deliberation under the
influence of some passion or heat of blood produced by adequate
provocation."
State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694,
699 (1994),
cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995)
(citing
State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d 577, 580
(1989)). Defendant would therefore be entitled to an instruction
on voluntary manslaughter only if there was evidence tending to
show that (1) defendant assaulted Dormio in the heat of passion;
(2) defendant's passion was provoked by acts of the victim which
the law regards as adequate provocation; and (3) the assault took
place immediately after the provocation.
Tidwell, 323 N.C. at 673,
374 S.E.2d at 580 (1989);
State v. Robbins, 309 N.C. 771, 778, 309
S.E.2d 188, 192 (1983).
The key inquiry in this case concerns whether defendant's
actions were provoked by acts our Courts have regarded as adequate
provocation. The kind of provocation that normally satisfies this
requirement, thereby negating malice and reducing a homicide to
manslaughter, ordinarily must be an actual physical assault or
threatened assault by the victim on the perpetrator.
Watson, 338
N.C. at 176, 449 S.E.2d at 700 ("Mere words, however abusive or
insulting are not sufficient provocation to negate malice and
reduce the homicide to manslaughter.") (citations omitted);
Rogers,323 N.C. at 667, 374 S.E.2d at 858.
The uncontroverted evidence in this case indicates that Dormio
never assaulted defendant, nor did he threaten to assault
defendant. Any conversation Dormio might have had during the
incident around midnight on 16 September 1996 was with Pope and
Gustafson. Further any implied attempts by Dormio to either defend
himself or engage his assailants, which are questionable at best,
only occurred when he was being pushed around by Pope, Gustafson,
and Harmon. There was overwhelming evidence showing that defendant
came "out of nowhere" and punched Dormio in the face without Dormio
making any threats, conversation, or contact with defendant. Any
claim that alleged actions or statements by Dormio were sufficient
to provoke defendant when they were not in any way directed at
defendant fails. The trial court did not err in refusing to
instruct the jury on voluntary manslaughter. Defendant's second
assignment of error is overruled.
Defendant received a fair trial free of prejudicial error.
Judges WYNN and HUDSON concur.
Report per Rule 30(e).
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