State v Johnson, 162 NC App 181 (03-341) 01/06/2004

    On 12 March 2002, several men were playing cards and shooting dice for money on the front porch of Emanuel Powell's (“Powell”) home in Halifax County. After Damien Mitchell (“Mitchell”) won all of the money, an altercation arose between him and Kareem Mayo (“Mayo”). Mayo told Mitchell, “I'm going to get my boy, and I'll be back.” About thirty minutes later, Mayo and defendant pulled into Powell's driveway in a white Cadillac. Mitchell testifiedthat he had seen defendant driving that vehicle on several prior occasions.
    Defendant exited the vehicle holding two guns and yelled towards the house, “Don't move.” Mayo also exited the vehicle carrying a gun. Both men fired shots towards Mitchell as he ran behind the house. Mayo stopped near the porch while defendant ran after Mitchell. As Mitchell was running, he heard “about twenty shots” being fired and could hear the bullets fly past him. Mitchell looked behind him and saw defendant chasing him and pointing the guns towards him. Mitchell was hit twice by the bullets on his right side near his shoulder, but he continued running until he reached his cousin's house two blocks away. Mitchell was treated at the hospital and released later that day. Defendant did not present any evidence.
    During jury deliberations, Juror Number One sent a note to the trial court requesting to be excused from jury deliberations and have the alternate juror take her place. Her note stated, in part, “I'm beginning to have feelings that I shouldn't. I'm beginning to express feelings that I have for my brother being in prison. I'm extremely nervous.” The trial court brought the entire jury back into the courtroom, read the note, and stated, “The answer to that question is no.” After the jury reached a verdict finding defendant guilty of the charge, defense counsel requested the jurors be individually polled. When Juror Number One was asked, “Was this your verdict,” she responded, “I can't do this.” The trial court instructed the jury to return to the jury room andresume deliberations.
    The trial court denied defendant's motion for a mistrial. Over an hour later, the jury again returned a verdict finding defendant guilty of the charge. All jurors were individually polled and every juror, including Juror Number One, informed the trial court that the verdict was correct and was still his or her verdict. Defendant appeals.

Defendant contends the trial court improperly denied his motion to continue and violated his constitutional rights. A motion to continue is “ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent ashowing of abuse of discretion.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). Denial of a motion to continue is grounds for a new trial “only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). A motion to continue must be made within twenty-one (21) days of plaintiff's indictment, at arraignment, or the Wednesday before trial if the defendant is arraigned at the same session as the trial. N.C. Gen. Stat. § 15A-952(c) (2003).
On 14 October 2002, immediately prior to selecting a jury, defendant's court-appointed attorney requested a continuance in order for defendant to retain a private attorney who represented defendant in another pending matter. Defendant was indicted on 16 April 2002, and arraigned on 15 July 2002, three months before trial. His trial was set on the calendar for over three weeks. The trial court denied defendant's motion. Defendant did not present any evidence or argue ineffective assistance of counsel by his court-appointed attorney. Defendant has failed to show that the trial court abused its discretion or that denial of his motion to continue prejudiced his case. This assignment of error is overruled.

Defendant argues the trial court erred by not allowing defense counsel to cross-examine Mitchell regarding his prior criminal conduct. “Although cross-examination is a matter of right, thescope of cross-examination is subject to appropriate control in the sound discretion of the court.” State v. Larrimore, 340 N.C. 119, 150, 456 S.E.2d 789, 805 (1995) (citation omitted). Defendant contends the trial court should have allowed the examination under Rule 608(b) of the North Carolina Rules of Evidence. Rule 608(b) allows inquiry into specific instances of conduct of a witness if probative of truthfulness or untruthfulness. N.C.R. Evid. 608(b) (2003). Additionally, our Courts have held a specific offer of proof is required when the court excludes evidence unless the significance of the excluded evidence is clear from the record. State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990).
Defendant failed to make an offer of proof and does not argue that the testimony solicited would have revealed instances of conduct that were probative of truthfulness or untruthfulness. The record shows that defense counsel was allowed to question Mitchell regarding his prior criminal conduct, including drug and weapon charges. Defendant has not shown the trial court abused its discretion by not allowing defense counsel to further cross-examine Mitchell regarding his prior criminal conduct. This assignment of error is overruled.

    Defendant argues the trial court erred by allowing Mitchell to testify about what he thought might happen if he testified against defendant. The State asked Mitchell on redirect examination why he did not want to testify. Mitchell responded, “I don't want no trouble.” Defense counsel objected when the State asked, “And whywould you think that you would have some trouble, Mr. Mitchell?” The trial court overruled the objection and Mitchell replied, “We stay in the same neighborhood . . . One of us would get killed.”
    Prior to the State soliciting this testimony on redirect examination, defense counsel had asked Mitchell about his reluctance to testify, stating:
        Q.    Why did you say that you weren't going to come to court?

        A.    I don't know.

        . . . .

        Q.    You just didn't want to come and testify?

        A.    I don't know.

        . . . .

        Q.    It doesn't matter to you whether it is prosecuted or not?

        A.    I don't want to answer that. I don't want to answer that.
    “The law has long been that, even where the type of testimony is not allowed, . . . when a party first raises an issue, it opens the door to questions in response to that issue and cannot later object to testimony regarding the subject raised.” State v. Wilson, 151 N.C. App. 219, 226, 565 S.E.2d 223, 228, cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002) (citations omitted). By interrogating Mitchell regarding his reason for testifying, defendant opened the door to further questioning by the State concerning this issue. This assignment of error is overruled.

Defendant contends the trial court erred by allowing thearresting officer to testify that defendant declined to answer any questions after being advised of his Miranda rights. Defendant concedes that he made no objection at trial and now argues plain error. When reviewing the record for plain error, “reversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was not done.” State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002), cert. denied, __ U.S. __, 155 L. Ed. 2d 681 (2003). “[A] defendant's exercise of his constitutionally protected rights to remain silent and to request counsel during interrogation may not be used against him at trial. However, such a constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt.” State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994) (internal citations omitted).
The arresting officer testified during the State's case-in- chief that defendant did not waive his Miranda rights by answering any of the officer's questions. On cross-examination, defense counsel asked the officer whether anyone attempted to question defendant at the scene. The officer responded, “No.” On redirect examination, the officer testified, over objection, that defendant did not make any statements prior to being taken into custody. Defense counsel opened the door by questioning the witness regarding defendant's silence when the police arrived. While defendant's refusal to answer questions after being provided his Miranda rights should not be raised or inquired into by the State, defendant has failed to show that the officer's testimonyprejudiced his case to warrant a new trial.

    Defendant argues the trial court erred in admitting several photographs of Mitchell's wounds.
        Whether to admit photographs under N.C.G.S. § 8C-1, Rule 403 is within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.

State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (citation omitted). “Repetitive photographs may be introduced, even if they are revolting, as long as they are used for illustrative purposes and are not aimed solely at prejudicing or arousing the passions of the jury.” State v. Peterson, 337 N.C. 284, 294, 446 S.E.2d 43, 49 (1994).
    Defendant argues the trial court erred by admitting a photograph showing Mitchell lying in a hospital bed and a photograph showing the treated wound in his shoulder. The photographs are illustrative evidence showing the location and severity of Mitchell's wounds and corroborate Mitchell's testimony of the location where he was shot. The photographs are neither gory nor prejudicial. Defendant has failed to prove the trial court's decision to admit the photographs was either arbitrary or unsupported by reason. This assignment of error is overruled.

    Defendant assigns error to the trial court's jury instruction on acting in concert. Defendant did not object at trial to thisjury instruction. Our review is limited to the plain error standard stated above. Our Courts have held that “[t]he plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
    Our Courts have summarized acting in concert as follows:
        If two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural and probable consequence thereof.

State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (citation omitted). To justify a jury instruction on acting in concert, the State must present evidence tending to show: (1) defendant was present at the scene of the crime, and (2) he acted together with another who committed acts necessary to constitute the crime pursuant to a common plan or purpose. State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986).
    The evidence showed that both Mayo and defendant exited the vehicle with weapons in hand and opened fire at Mitchell. The bullets that struck Mitchell were never recovered. The jury could have reasonably concluded that either Mayo or defendant shot and wounded Mitchell. Defendant has failed to show that absent the jury instruction on acting in concert, a different result would have occurred at trial. This assignment of error is overruled.

    Defendant argues the trial court erred by failing to give his requested instruction on the lesser-included offenses of assault with a deadly weapon with intent to kill (without inflicting serious injury), assault with a deadly weapon inflicting serious injury (without an intent to kill), and misdemeanor assault with a deadly weapon. During oral argument before this Court, defense counsel conceded the evidence did not support an instruction on assault with a deadly weapon with intent to kill (without inflicting serious injury) and misdemeanor assault with a deadly weapon. In his tenth assignment of error, defendant argues the trial court erred by denying his motion for judgment notwithstanding the verdict because no evidence showed the element of an intent to kill. Both of these assignments of error address whether the State produced sufficient evidence of an intent to kill. We address them together.
    “A trial court has no duty to instruct on a lesser offense when there is no evidence from which the jury could reasonably find that the defendant committed the lesser offense.” State v. Jordan, 321 N.C. 714, 718-719, 365 S.E.2d 617, 620 (1988) (citation omitted). “[B]efore a judge is required to give an instruction on assault with a deadly weapon inflicting serious injury, there must be evidence that defendant had no intent to kill.” State v. Stinnett, 129 N.C. App. 192, 196, 497 S.E.2d 696, 699, disc. rev. denied and appeal dismissed, 348 N.C. 508, 510 S.E.2d 669 (1998). Further, if all of the evidence tends to show an intent to kill, itis not error for the trial court to deny a requested jury instruction on the lesser-included offense of assault with a deadly weapon inflicting serious injury without an intent to kill. Id. at 197, 497 S.E.2d at 700; see State v. Hedgecoe, 106 N.C. App. 157, 161, 415 S.E.2d 777, 780 (1992) (“[W]hen all the evidence tends to show that defendant committed the crime with which he is charged and there is no evidence of guilt of the lesser included offense, the court correctly refuses to charge on the unsupported lesser offense.”).
        A person might intentionally and without justification or excuse assault another with a deadly weapon and inflict upon him serious injury not resulting in death, but such an assault would not establish a presumption of felonious intent, or the intent to kill. Such intent must be found by the jury as a fact from the evidence. . . .

        An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.

State v. Ferguson, 261 N.C. 558, 561, 135 S.E.2d 626, 628-629 (1964) (internal citations omitted).
    Here, the State produced substantial evidence tending to show an intent to kill. Defendant exited the vehicle with two weapons and began firing at Mitchell. When Mitchell attempted to flee the scene, defendant pursued him and fired the weapons towards Mitchell numerous times. Mitchell testified that as he ran from defendant, he could hear bullets fly by his head and saw defendant chasing after him. The shooting continued until Mitchell successfully ran away to his cousin's home. There was no evidence to show defendantintended to scare or frighten Mitchell. The trial court did not err in failing to instruct the jury on the lesser-included offenses. This assignment of error is overruled.
    A motion for judgment notwithstanding the verdict is “addressed to the sound discretion of the trial judge, and in the absence of an abuse of discretion are not reviewable on appeal.” State v. Kuplen, 316 N.C. 387, 415, 343 S.E.2d 793, 809 (1986). Defendant has failed to show the trial court abused its discretion in denying his motion. This assignment of error is also overruled.

    Defendant argues assignments of error eight and nine together and contends the trial court erred by denying his motion for a mistrial and instructing the jury to continue deliberations after a juror requested to be excused.
        According to G.S. 15A-1061, a mistrial should be declared “upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” . . . The scope of our review therefore is limited to whether in denying the motion for a mistrial there has been an abuse of judicial discretion.

State v. Brown, 64 N.C. App. 637, 643, 308 S.E.2d 346, 350 (1983), aff'd, 310 N.C. 563, 313 S.E.2d 585 (1984).
        Every person charged with a crime has an absolute right to a fair trial and an impartial jury. Article I, section 24 of the North Carolina Constitution prohibits a trial court from coercing a jury to return a verdict. According to N.C. Gen. Stat. § 15A- 1235(c), the trial court 'may not require or threaten to require the jury to deliberate for an unreasonable length of time or forunreasonable intervals.' In determining whether a trial court's actions are coercive, an appellate court must look to the totality of the circumstances.

State v. Dexter, 151 N.C. App. 430, 433, 566 S.E.2d 493, 496, aff'd, 356 N.C. 604, 572 S.E.2d 782 (2002) (internal citations omitted). “A jury verdict is not defective if it appears that the juror eventually freely assented to the verdict.” State v. Asbury, 291 N.C. 164, 171, 229 S.E.2d 175, 178 (1976).
    During jury deliberations, Juror Number One requested to be excused from the jury due to some concern for her brother in prison. The trial court returned the entire jury to the courtroom, denied this request, and instructed the jury to return to the jury room and resume deliberations. After deliberating for about an hour, the jury foreman informed the clerk that the jury had reached a verdict. The jury's unanimous verdict found defendant guilty as charged. Defense counsel asked the trial court to poll the jury and assigns the following as error:
        Court:    [Juror Number One], please stand. [Juror Number One], your foreman has returned as a unanimous verdict of the jury that the defendant is guilty of assault on Damien Mitchell with a deadly weapon with intent to kill inflicting serious injury. Was this your verdict?

        [Juror]:    I can't do this.

        Court:    Ma'am?

        [Juror]:    I can't do this.

        Court:    You may be seated. Ladies and gentleman, you may return to the jury room and resume your deliberations.The jurors returned to the deliberation room. Defense counsel asked whether the verdict had been struck. The trial court replied, “There is no verdict. It has to be a unanimous verdict.” Defense counsel moved for a mistrial, which the trial court denied. Later the same day, the jury informed the trial court they had reached a unanimous verdict finding defendant guilty. All jurors were polled and all assented to the verdict in open court.
    Prior to deliberations, the trial court had instructed the jury that “a verdict is not a verdict until all 12 jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote.” The trial court did not instruct the jury again after this initial instruction.
    The trial court did not force the jury to deliberate for an unreasonable amount of time. The jury never indicated to the trial court that they were deadlocked. Juror Number One expressed some concern over rendering a verdict, however, she freely assented to the guilty verdict in open court after further deliberation. Defendant has not shown the trial court abused its discretion in failing to grant his request for a mistrial. Additionally, under the totality of the circumstances, the trial court did not coerce the jury into rendering a verdict. We note that the better practice is to give the instruction on a unanimous verdict each time the trial court orders the jury to resume deliberations. See N.C. Gen. Stat. § 15A-1235 (2003). Reviewing the totality of the circumstances, we find no prejudicial error since the instruction was given before the jury retired for deliberation.

    We hold the trial court did not err in: (1) denying defendant's motion to continue, (2) limiting cross-examination regarding a witness's prior crimes, (3) allowing the victim to explain his hesitancy to testify against defendant, (4) admitting photographs of the victim's wounds, (5) instructing the jury on acting in concert, (6) failing to instruct the jury on lesser- included offenses, and (7) overruling defendant's motion for judgment notwithstanding the verdict. We find no prejudicial error where the trial court: (1) allowed the arresting officer to testify regarding defendant's silence following arrest and (2) failed to reinstruct the jury regarding a unanimous verdict.
    No prejudicial error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***