State v McKinney, (03-371) 05/04/2004

    Shortly before midnight, on 21 March 2000, defendant's first cousin, Jack Lovelace, returned to his home in Reidsville to find that the window in his screen door had been knocked out. After he heard a noise coming from inside the house, he drove to hisgrandmother's house nearby, where he found defendant as well as their grandmother. Lovelace asked his grandmother to call the police.
     The two men drove back to Lovelace's house and began walking through the rooms after Lovelace had armed himself with a .22 rifle from his truck. They found that someone had broken into Lovelace's gun cabinet. Defendant told Lovelace that he believed Ronnie Shelton was responsible. After a few minutes, their grandmother arrived and dialed 911.
    Lovelace left to drive around the neighborhood, looking for Shelton or anyone else who had property from his house. When he returned, he found the police, his mother, and a third person. Shelton walked up to the house and Lovelace overheard him ask whether anyone thought that he had broken into the house. At that point, Lovelace decided to walk his grandmother back to her house. He urged his grandmother to hurry so that Shelton would not catch up with them. When they reached her house, Lovelace heard Shelton yell.
    Shelton crossed the street and approached Lovelace's grandmother. Defendant, who had returned to the grandmother's house, came outside and confronted Shelton, accusing him of breaking into Lovelace's house and stealing Lovelace's guns. When it appeared as if they were about to start fighting, Lovelace persuaded his grandmother to move back and he picked up an edge trimmer to protect his grandmother.
    Defendant told Shelton that he was going to get the police andheaded for Lovelace's house. He stopped when he saw Shelton walk away because he thought Shelton was going to move the guns. Defendant took the edge trimmer from Lovelace and followed Shelton.
    From a distance of about thirty feet, Lovelace watched while defendant hit Shelton first in the stomach with the edge trimmer and then in the head. Shelton fell forward and knocked defendant down. According to Lovelace, defendant went "crazy" and struck Shelton repeatedly in the head with the edge trimmer and with his fists and then kicked and stomped Shelton with his feet.
    After picking up the edge trimmer and throwing it as far away as he could, Lovelace ran for help. When Lovelace returned with two other people, they were able to pull defendant away from Shelton, but heard him say, "I hope you die." Upon arriving at the scene, Officer Kimberly Willis of the Reidsville Police Department saw the victim lying on the ground and heard defendant say, "Yeah, I did it. I hope he's dead. I hope I killed him." Officer Willis handcuffed defendant and transported him to the police department.
    By the time Reidsville Fire Department personnel examined Shelton, he was not breathing and had no pulse. The medical examiner who performed the autopsy on Shelton concluded that the cause of his death was a blow to the head causing a brain injury. He believed that the edge trimmer likely caused the fatal injury.
    On 17 July 2000, defendant was indicted for first degree murder. At trial, a jury found defendant guilty of second degree murder. The trial judge sentenced defendant to a minimum of 144 and a maximum of 182 months imprisonment. Defendant gave notice ofappeal to this Court. Defendant has abandoned all but three of his original twenty assignments of error.

    Defendant first argues that the trial court erred in overruling his objection to the admission of a handwritten statement given by Lovelace to the police shortly after the incident and a typed version of that statement. At trial, after Lovelace had testified about walking through the house with defendant, the State asked Lovelace whether defendant had made a remark "at some point about fear[.]" Lovelace answered, "I don't remember anything about being scared or anything to do with fear." The State then used Lovelace's written statement to refresh his recollection. After the State successfully refreshed Lovelace's recollection that defendant had stated he was not afraid of Shelton, the State asked Lovelace to read his statement in its entirety to the jury. The trial court overruled defendant's hearsay objection and allowed the exhibits to be admitted into evidence for the purpose of corroborating Lovelace's testimony. The statement included a detailed description of events about which Lovelace had not yet testified. Defendant contends that Lovelace's statement was non-corroborative, inadmissible hearsay.   (See footnote 1)     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.R. Evid. 801(c). Under Rule 802 of the Rules of Evidence, hearsay is not admissible except as provided by statute or by the Rules of Evidence. Since Lovelace's statements to the police were out-of-court statements, they were inadmissible unless offered for a non-hearsay purpose or unless they fell within an exception to the hearsay rule. We hold that the trial court properly admitted Lovelace's written statements for the non-hearsay purpose of corroborating Lovelace's trial testimony.
    In contrast to other jurisdictions, North Carolina adheres to the minority view that prior consistent statements are broadly admissible. 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 165 (6th ed. 2004) ("North Carolina is a member of a small minority of jurisdictions that liberally admit prior consistent statements . . . ."). As Professor Broun has pointed out, "[t]he admissibility of prior consistent statements of the witness to strengthen her credibility has been challenged by counsel and reaffirmed by the Court in scores of cases, subject only to allowing the judge some discretion to exclude them to keep the evidence within reasonable bounds." Id. § 164. See, e.g., State v. Davis, 349 N.C. 1, 28, 506 S.E.2d 455, 469 (1998) (trial court properly allowed witnesses to read into the record their prior written statements), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219, 119 S. Ct. 2053 (1999). Prior consistent statements arenot admitted as substantive evidence of the facts contained in the statements, but solely for the purpose of affirming the credibility of the witness and thus do not constitute hearsay. State v. Joyce, 104 N.C. App. 558, 569, 410 S.E.2d 516, 522 (1991) ("[T]he prior statements in question were not offered to prove the truth of the matter asserted; rather, they were offered to bolster the testimony which [the witness] gave on the stand."), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992).
    In support of his contention that the written statements were inadmissible, defendant argues that at the time of the statements' admission, they could not be corroborative because Lovelace had not yet given any testimony about the majority of the events addressed in the statements. Subsequent to the statements' admission, however, Lovelace testified to those events both on direct examination and on cross-examination. This Court has previously held that the fact that the prior statement is admitted in advance of the testimony being corroborated is "immaterial" because the trial court has discretion regarding the order of evidence. State v. Joyce, 97 N.C. App. 464, 469-70, 389 S.E.2d 136, 140, disc. review denied, 326 N.C. 803, 393 S.E.2d 902 (1990). See also State v. Smith, 218 N.C. 334, 342, 11 S.E.2d 165, 170 (1940) (since sheriff's testimony regarding prior statement of prospective witness was corroborative of the witness' later testimony, it was admissible and "[t]he order in which the testimony was admitted becomes unimportant on appeal"); State v. Swindler, 129 N.C. App. 1, 5, 497 S.E.2d 318, 320 ("When so offered, evidence of a priorconsistent statement must in fact corroborate a witness's later testimony."), aff'd per curiam, 349 N.C. 347, 507 S.E.2d 284 (1998).
    Although the corroborating statement may precede the testimony that it corroborates, the statement is admissible only when generally consistent with and substantially similar to the witness' trial testimony. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983). The statement need not, however, be identical to the trial testimony "so long as the prior statement in fact tends to add weight or credibility to such testimony." State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986). Slight variations between the witness' prior statement and trial testimony will not render the statement inadmissible, but bear only on the credibility of the statement. Martin, 309 N.C. at 476, 308 S.E.2d at 284.
    We have compared Lovelace's in-court testimony with his prior written statement and we find that the prior statement was consistent with and substantially similar to his testimony on direct and cross-examination and tended to add weight or credibility to his trial testimony. Hence, Lovelace's statement corroborated his trial testimony and was admissible. To the extent that defendant believed that portions of the prior statement were inconsistent with Lovelace's actual testimony, he was required to specifically object to the incompetent portions. State v. Jones, 110 N.C. App. 169, 173, 429 S.E.2d 597, 600 (1993), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). Because defendant failed to object at trial that any portion of the written statementultimately was not corroborative of Lovelace's testimony, he has failed to preserve that issue for review. Id.
    Additionally, defendant challenges the failure to give a limiting instruction at the time of the testimony although he acknowledges that the trial court did give a limiting instruction on corroborative evidence in its final instructions to the jury. Since defendant failed to request an earlier instruction, he "waived the point on appeal." Joyce, 97 N.C. App. at 470, 389 S.E.2d at 140.
    Finally, even though the written statement corroborated Lovelace's testimony, we must still consider defendant's contention that admission of the statement was unfairly prejudicial. State v. Coffey, 345 N.C. 389, 404, 480 S.E.2d 664, 673 (1997) ("Even if the testimony is admissible as corroborative, the trial court still must determine whether its probative value outweighs the danger of unfair prejudice to defendant.") Whether to exclude evidence as unfairly prejudicial is within the sound discretion of the trial judge. Id. On appeal, defendant has not pointed to any specific means by which the admission of the statement subjected him to unfair prejudice. We hold that the trial judge did not abuse his discretion in admitting the statement.

    Defendant next contends that the trial court's instruction on self-defense was contrary to the law.   (See footnote 2) The trial judge gave thefollowing instruction to the jury:
        The defendant would be excused of first-degree and second-degree murder on the grounds of self-defense if, first, it appeared to the defendant and he believed it to be necessary to kill the victim in order to save himself from death or great bodily harm; and, second, the circumstances, as they appeared to the defendant at the time, were sufficient to create such a belief in the mind of a person of ordinary firmness.
Defendant argues that the trial court erred in denying his request for an instruction that defendant acted in self-defense if he believed it "necessary to use deadly force against the victim" rather than requiring a belief that it was "necessary to kill the victim[.]"
    In State v. Richardson, 341 N.C. 585, 592-93, 461 S.E.2d 724, 729 (1995), however, our Supreme Court rejected defendant's contention and approved the same instruction given in this case. The Court held: "[I]t is not necessary to change the self-defense instruction to read necessary 'to shoot or use deadly force' in order to properly instruct a jury on the elements of self-defense." Id. Although defendant suggests that we should take this opportunity to reconsider Richardson, "[t]his Court has no authority to overrule decisions of the North Carolina Supreme Court." Nunn v. Allen, 154 N.C. App. 523, 530, 574 S.E.2d 35, 40 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 630 (2003). This assignment of error is overruled.

    Finally, defendant contends that he was deprived of his state and federal constitutional rights and to a trial by an impartialjury by his trial counsel's failure to challenge a juror who stated that she would "believe everything an officer would say" just because he was a police officer. Defendant argues that because evidentiary issues will need to be developed, he is not in a position to adequately develop a claim of ineffective assistance of counsel on this appeal, and therefore, he requests that we either remand the case to superior court for an evidentiary hearing on the issue or hold that defendant is not precluded from raising this issue in a motion for appropriate relief.
    "Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An [ineffective assistance of counsel] claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (internal citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002). Ineffective assistance of counsel claims are usually raised in post-conviction proceedings and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524. If the record reveals that factual issues must be developed, the proper course is for the appellate court to dismiss those assignments of error without prejudice to the defendant's right to raise an ineffective assistance of counselclaim in a later motion for appropriate relief. State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001).
    In this case, our review of the record reveals that there are factual issues that must be more fully developed before a proper review of defendant's ineffective assistance of counsel claim may be undertaken, such as the reason for the trial counsel's failure to challenge the juror. Accordingly, we do not address the merits of this claim and dismiss this assignment of error without prejudice to defendant's right to raise this issue in a subsequent motion for appropriate relief.

    No error in part; dismissed in part.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1