State v Thompson, (02-1597) 10/21/2003

Appeal by defendant from judgment entered 11 July 2002 by Judge Ronald E. Spivey in Superior Court in Forsyth County. Heard in the Court of Appeals 6 October 2003.

Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.

James N. Freeman, Jr., for defendant-appellant.

HUDSON, Judge.

    Defendant was charged with the first degree murder of Solomon David Wilson (Solomon). A jury found defendant guilty of second degree murder. The trial court sentenced defendant to 189 to 236 months imprisonment. Defendant appeals. For the reasons set forth below, we find no error.
    The State's evidence tended to show that on the night of 11 September 1999, defendant Destiny Raye Thompson, James Hardy (Hardy), Ejoir McCullough (McCullough), Desmond Wilson, and two other men, known only as “Sam” and “Gaston,” were drinking and smoking marijuana at defendant's house. Before the group left to go to a club downtown, defendant put a .32 caliber handgun and a.357 revolver in the glove compartment of a red car, and an SKS assault rifle in the trunk of his green Cadillac. Defendant told McCullough it was “just in case we see Solomon and them at the club.” The group drove the two vehicles downtown to a club known as Beethoven's, where they stayed for a couple of hours.
    As the group left the club and entered the parking lot, they noticed the green Cadillac had been “shot up.” Defendant said, “we['re] going to get them mother f-----s.” Defendant, McCullough and Hardy got into the red car. Hardy sat in the driver's seat, defendant sat in the front passenger's seat and McCullough sat in the back seat behind defendant. Defendant handed McCullough the .32 handgun. Gaston, Sam and Desmond got into the green Cadillac. The red vehicle headed up Spruce Street and the green Cadillac followed.
    Meanwhile, Solomon and his friends Jerry Gordon and Joe McQueen parked their car in a deck downtown and started walking around the area. As they walked down Spruce Street, they saw the red car and the green Cadillac stopped at a traffic light. Solomon, defendant and the others argued briefly. Solomon made a motion with his hands. McCullough produced the .32 caliber handgun and fired one round in the direction of Solomon and his two friends. Solomon and his friends ran. Defendant then fired several shots from the .357 caliber revolver. Solomon fell to the ground. State Bureau of Investigation employee Thomas Trochum testified that the slug recovered from Solomon's body was larger than a .32 caliber and was probably fired from a revolver.     Floyd Thompson, the victim's father and defendant's uncle, testified on defendant's behalf. He stated that while he was at defendant's house on the night in question, McCullough came running up to him and said he did not mean to shoot Solomon. Thompson testified that after his sister called the police, he accompanied the police down to the Public Safety building and made a tape recorded statement. Thompson testified that his statement to police did not contain all of the events that he witnessed that evening. Specifically, his statement did not include McCullough's alleged confession. On cross-examination, the State showed Thompson a transcript of his recorded statement and asked him if he had told the police about McCullough's confession. Again, Thompson admitted that his statement to police did not include McCullough's confession.
    Defendant testified that when he, Hardy and McCullough came out of the club on the evening in question, they noticed that the green Cadillac they were driving had been “shot up.” As the three rode around, they saw Gordon and Solomon walking down the street. Defendant further testified that McCullough stuck a gun out of the window and began shooting at Solomon and Gordon. Afterwards, the men went to defendant's house. Defendant testified that he did not have a weapon and that he did not shoot out of the window.
    Officer R. W. Beasley testified on rebuttal for the State. Over defendant's objection, Officer Beasley testified that Thompson had given the police a tape recorded statement and that at no point in the five page transcript of the statement does Thompson tell thepolice that McCullough confessed to shooting Solomon. The trial court then allowed the transcript of Thompson's recorded statement into evidence over defendant's objection.
    Defendant contends the trial court erred in admitting Floyd Thompson's statement into evidence and allowing Officer Beasley to testify about Thompson's statement. Defendant argues the testimony and exhibit are inadmissible hearsay. Defendant also argues that it was improper for the court to allow impeachment of Thompson on a collateral issue using extrinsic evidence.
     Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801 (c)). However, “[o]ut-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
    It is clear from the transcript of the trial that Thompson testified on direct examination by defendant's attorney that his earlier recorded statement did not contain information that McCullough had confessed to shooting Solomon. This was the same testimony that the prosecution went over on cross-examination with the aid of the transcript of the recorded statement. Defendant did not object to this line of questioning nor to the use of the statement transcript. Thus, defendant was the one who placed this testimony into evidence. Officer Beasley's testimony simplycorroborates Thompson's testimony that his statement to police did not contain McCullough's alleged confession. Our Supreme Court has previously held that the law permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). While we express no opinion as to whether this testimony and evidence would have been otherwise inadmissible, it is clear that defendant introduced this evidence. We conclude that defendant opened the door by questioning Thompson on direct examination about whether he told police about McCullough's alleged confession. Thus, he cannot now complain that the trial court erred in allowing the State, on rebuttal, to question the officer who took Thompson's statement on the very matters the defendant himself brought out on direct. See State v. Sexton, 336 N.C. 321, 444 S.E.2d 879 (1994), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994).
    Furthermore, contrary to defendant's assertion, the trial court did not err in allowing the State to present extrinsic evidence of Floyd Thompson's prior inconsistent statement. This Court has held that “[w]here the witness admits having made the prior statement, impeachment by that statement has been held to be permissible.” State v. Riccard, 142 N.C. App. 298, 303, 542 S.E.2d 320, 323, cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001). Here, Thompson admitted he made a prior statement to the police and did not deny any of the information in the transcript. Rather, Thompson testified that he omitted certain facts from his statementto police that he then testified to in court. Although he did attempt to explain the discrepancy, the prior statement remained inconsistent with the testimony. Accordingly, the trial court properly allowed Officer Beasley's testimony and the transcribed statement into evidence.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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