An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-420

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA,

v .                         Burke County
                            No. 01 CRS 2611
CHRISTOPHER OWEN AGAN,

        Defendant.

    Appeal by defendant from judgment entered 3 June 2002 by Judge Claude S. Sitton in Burke County Superior Court. Heard in the Court of Appeals 29 January 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette for the State.

    Randolph & Fischer, by J. Clark Fischer for the defendant- appellant.

    ELMORE, Judge.    
    Christopher Owen Agan (defendant) was charged with first degree murder for the shooting death of Bob Wilson (victim), the owner of a shop. Defendant was also charged with attempted armed robbery and conspiracy to commit armed robbery. The state charged the defendant under three theories: 1) premeditation and deliberation; 2) felony murder; and 3) lying in wait.
    At trial, the state's evidence showed that at the time of the murder, defendant lived with three friends: Johnny Huffman (Huffman), Huffman's girlfriend Christina Hill (Hill), and defendant's girlfriend Meia Ward (Ward). The four used drugs together regularly. Defendant devised a plan to rob the victim sothey could get money for drugs. The plan was that defendant would shoot at the victim with Huffman's gun to scare him, and when he dropped his money, Huffman would pick it up and run into the woods. Hill testified that defendant told Huffman that Sunday would be the best time to rob the victim because he carried a container full of money when he left the store on that day.
    The state's witnesses testified that on 7 February 1999, Huffman and defendant cleaned their fingerprints off some bullets, dressed in dark clothing, and went out. When they returned defendant said he had shot the victim by mistake, and defendant came up with an alibi about being at home watching movies. Defendant was upset because he had shot the victim and Huffman had not gotten the money. The weapon used was a Ruger Mini-14 which belonged to Huffman. Defendant told Ward that he had thrown the weapon off a bridge. A Ruger Mini-14 was found stuck in the mud in Mill Pond by an individual assisting the Burke County Sheriff's Department in May of 2001.
    Defendant called four witnesses. One testified that Huffman hid his gun at the witness's house and said that he'd shot a man. Another testified that the victim had given defendant credit at his store. Another testified that she had worked with Ward and that Ward had told her that she knew defendant did not shoot the victim because she knew his whereabouts. The last witness was an expert in audiology that testified as to an experiment he had conducted at the crime scene. The experiment pertained to the eye witnesses' ability to localize the sound of the gunshot.    After deliberating for several hours, the jury found the defendant guilty of first degree murder under all three theories, and guilty of attempted armed robbery and conspiracy to commit armed robbery. Defendant was sentenced to life without parole for the murder conviction, and 165-215 months imprisonment for the other charges.

I.    
    Defendant first assigns error to the trial court's allowing Meia Ward's testimony in which she indirectly revealed that defendant had been in jail. Counsel for defendant objected, and the trial court overruled the objection. The testimony, in relevant part, was as follows:
        Q. [by Mr. Dellinger, Assistant District Attorney] Now, on that occasion they asked you what you knew about this, didn't they?
        A. [by Ms. Ward] Yes.
        Q. What did you tell them?
        A. I told them the alibi. I told them we were at home watching movies and that there were two cop cars sitting outside the trailer and that as far as I knew that Chris didn't have any hard feelings towards Bob because Bob always let us have credit.
        Q. Now, why did you tell them the alibi?
        A. Because I was scared.
        Q. What were you scared of?
        A. Of Chris.
        Q. And why were you scared of Chris?
        A. Because he would have been getting out of jail within, like, the next year.
            MR. ERVIN [counsel for defendant]: Objection. Move to strike.
            THE COURT: Overruled. Denied.

    The standard for evaluating whether evidence is improper under Rule of Evidence 403, is articulated in State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000):        Most evidence tends to prejudice the party against whom it is offered. However, “to be excluded under Rule 403, the probative value of the evidence must not only be outweighed by the danger of unfair prejudice, it must be substantially outweighed.” State v. Lyons, 340 N.C. 646, 669, 459 S.E.2d 770, 783 (1995).

State v. Braxton, 352 N.C. 158, 196, 531 S.E.2d 428, 450 (2000).
    In this case, the testimony did not refer to a specific conviction or a crime, but the witness mentioned in passing that defendant would get out of jail in the next year.
    The great weight of all the other evidence, excluding the objectionable testimony of Ward, points to defendant's guilt. He had told Tony Hudgins and Amber Spenser, who both testified, that he intended to kill Bob Wilson. He went back to his house where Ward and Hill were waiting and told them he'd “f_ed up.” The State had many witnesses, although many of them were drug-users and had prior convictions. Altogether there were thirty-nine witnesses who testified, photos, videotape, physical evidence of the weapon, and an autopsy report. The defense argued that Johnny Huffman was the one who pulled the trigger. However, the evidence pointed to defendant as both the planner of the robbery and the shooter. The evidence taken together is strong, and this one piece of evidence would not overwhelm the rest to prejudice the jury.
    While the fact that defendant served time in jail is inappropriate to admit when the defendant does not take the stand, and was here irrelevant, the admission of this testimony was not prejudicial considering all the other testimony and evidence.
II.    
    Defendant next assigns error to the trial court's allowing the state to present evidence that defendant had been placed on probation. For the same reasons cited above, the admission of that evidence was not unduly prejudicial. While it would have been proper for the trial court to strike this testimony since it was not relevant, it was within the trial court's discretion to allow it and the admission was not prejudicial considering the other testimony and evidence.
III.    
    Defendant next assigns as error the trial court's denial of defendant's pretrial motion to sequester witnesses, when the state's case depended primarily on the testimony of lay witnesses, arguing that the trial court's ruling created a danger that the witnesses would tailor their in-court testimony after hearing others testify.
    We review a trial court's ruling on a motion to sequester witnesses for an abuse of discretion. N.C. Gen. Stat. § 15A-1225 (2003); State v. Pittman, 332 N.C. 244, 254, 420 S.E.2d 437, 442-43 (1992). The ruling will only be reversed upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Fullwood, 323 N.C. 371, 380, 373 S.E.2d 518, 524 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990).
    Three of the pivotal witnesses for the State were the defendant's three close friends, Hill, Huffman, and Ward, who were all present during the planning of the robbery. Huffman was alsopresent during the actual commission of the robbery and the shooting. Defendant contends that these witnesses had motive to slant or alter their testimony and should not have been allowed to listen to each other's testimony for that reason. The trial court made no findings and gave no rationale for its denial of the motion to sequester witnesses, but simply denied the motion. During the hearing, the transcript shows that the trial court considered the agreement of counsel and the number of witnesses each side intended to call (thirty-nine listed by the State, and five to ten estimated by the defendant) before ruling on the motion.
    We make note of the admonition of then Judge Edmunds in his concurrence in the case of State v. Wilds, 133 N.C. App. 195, 515 S.E.2d 466 (1999):
        Testimony provided by witnesses who hear each other testify often converges. This effect, while not necessarily sinister, appears to be a reflection of human nature; it can lead irresolute witnesses, consciously or not, to conform their testimony to what they have heard before, undermining a jury's ability to evaluate the evidence provided by each witness. . . .[T]rial courts should be mindful of the words of the Commentary to North Carolina Rule of Evidence 615: “[T]he practice should be to sequester witnesses on request of either party unless some reason exists not to.”

State v. Wilds, 133 N.C. App. 195, 210, 515 S.E.2d 466, 477-78 (1999) (Judge Edmunds, concurring).
    In the case at bar, defendant's counsel had access to the pretrial statements of each of the witnesses, and used the statements in cross examination. Although the witnesses were allowed to hear each others' testimony, defendant had the means tohold them to their prior statements. Defendant is unable to meet his burden of showing the trial court's ruling was so arbitrary it could not have been the result of a reasoned decision. For this reason, we hold that the trial court did not abuse its discretion. See generally Fullwood, 323 N.C. at 380, 373 S.E.2d at 524 (1988).
IV.    
    Defendant lastly assigns error to the short-form murder indictment used in this case, arguing that it fails to allege all elements of the offense of first degree murder, and thus was insufficient to vest the court with jurisdiction. The short-form murder indictment was upheld as constitutional in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003). We hold that this assignment of error has no merit.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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