An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1086


Filed: 6 July 2004


v .                         Davidson County
                            No. 02CRS 52154

    Appeal by defendant from judgment entered 16 January 2003 by Judge Steve A. Balog in Davidson County Superior Court. Heard in the Court of Appeals 24 May 2004.

    Attorney General Roy Cooper by Special Deputy Attorney General, Alexander McC. Peters, for the State.

    Rudolf Maher Widenhouse & Fiaklko, by M. Gordon Widenhouse, Jr., for defendant.

    MARTIN, Chief Judge.

    Defendant Cornelius Ray Jackson appeals from a judgment imposing a sentence of life imprisonment without parole entered upon his conviction by a jury of first degree murder.
    At trial, the State offered evidence tending to show that about 2:30 a.m. on the morning of 16 February 2002, as Ryan McCrae (McCrae) and Justin Garvin (Garvin) were talking in the parking lot of Dukes' Bar and Grill in Thomasville, Kevin Jones (Jones) walked by, said something to Garvin and then hit him in the face. An altercation broke out between Jones, Garvin, defendant and others, during which defendant was hit in the head with a bottle. After bouncers from the club broke up the fight, defendant and Garvinpicked up McCrae and left the parking lot in Garvin's green Acura.
    Garvin testified that he, McCrae and defendant drove to High Point. On the way, McCrae told Garvin he knew the man who hit him. They stopped at a house in High Point and defendant went inside. When he returned about ten minutes later, defendant was carrying a handgun. Defendant told Garvin, who was driving, to take him back to Thomasville so he could “handle this.”
    McCrae testified that the men headed to Hunter Street in Thomasville, because McCrae knew Jones “hung out” there. There were approximately twenty-five people standing around outside the house at 42 Hunter Street where Pete Barnes (Barnes) and Kenny Bowman lived. As the men drove by the crowd, McCrae pointed out Jones to defendant and Garvin. According to McCrae, when defendant saw Jones, he racked the gun and put it in his hand. Garvin drove up Hunter Street, then turned and parked on Smith Street, behind 42 Hunter Street. After all three men got out of the car, defendant and Garvin tried to walk through to Hunter Street, but were stopped by a fence. McCrae, at Garvin's direction, left and walked to a convenience store about ten minutes away.
    Garvin also testified that he and defendant got back into the car, with Garvin driving and defendant in the passenger seat, and drove back down Hunter Street. Because of the traffic and the crowd, they had to drive slowly. As they approached 42 Hunter, Garvin noticed the window was down and then he heard four gunshots, and “saw the fire of the gun, the bullets hitting Pete Barnes.” He heard defendant yell, “What now mother f----r?” Kenneth Snell, aforensic pathologist, testified at trial that Barnes died as a result of four gunshot wounds, shot from a distant range.
    After the incident, Garvin drove back to High Point where he dropped defendant off between 3:00 and 3:45 a.m. On the evening of 17 February, defendant told Garvin over the telephone that he “got rid of the gun.”
    Defendant offered no evidence at trial.

    Defendant first argues the trial court committed prejudicial error or, in the alternative, plain error, by failing to exercise its discretion in responding to the deliberating jury's request to review defendant's oral statement to Detective Smith. During deliberations, the jury sent a note to the trial court asking to review, “Mr. Jackson's statement taken by Tobey Smith, Mr. Garvin's two statements, [and] Mr. McRae's [sic] statement.” The judge then stated to counsel,
    Now in responding to their request, I would then intend to tell them that I can provide for them Mr. Garvin's two statements, that they're State's Exhibit [sic] 10 and 11, but there are no written statements in evidence in connection with their other two requests. Now, the next part of that response is guidance from you Gentlemen as to whether you consent to my sending them to them in the jury room or want me to just let them look at them out here.

Counsel for defendant responded, “Your honor, I would not consent to them going back. I would also ask the Court to give the curative instruction, again, that those were offered only for the limited purpose of impeachment or corroboration.”     After the jury was brought into the courtroom, the trial court informed them,
    I can provide Mr. Garvin's two statements to you. They were State's Exhibits - I believe 10 and 11 that were admitted into evidence, and I can provide you access to those. The others are not written statements that are in evidence, and I cannot provide those to you. For those you will have to rely on your recollection of the testimony with regard to those statements.

    First, it must be noted that defendant failed to object to the trial court's decision. “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(b)(1). Because defendant did not object, the standard of review upon appeal is plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Plain error is "always to be applied cautiously and only in the exceptional case where, after reviewing the entire record,” id., it can be determined that “the instructional error had a probable impact on the jury's finding of guilt.” Id. at 661, 300 S.E.2d at 379 (internal citation omitted).     N.C. Gen. Stat. § 15A-1233(a) (2003) provides, in pertinent part: “[t]he judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.”
    In the present case however, the jury did not ask to review testimony, but statements given to the officers by defendant andtwo witnesses. The judge's comments to counsel and to the jury, as well as defense counsel's response to the judge, show that both the judge and defense counsel understood that the request from the jury was for the statements which had been introduced into evidence. There was no request from the jury to review testimony or transcripts and no suggestion from defense counsel that the jury may have been requesting testimony. The trial judge did not abuse his discretion in denying the jury's request to review the statements.
    In his next assignment of error, defendant contends the trial court committed error by sustaining the State's objection to a question directed to Detective Smith during his cross-examination by defendant's counsel, in which counsel sought to elicit testimony that Eustacia Woodard, who was present at Duke's and at 42 Hunter Street on the night of the murder, identified Nakia Horne, rather than defendant, as the shooter in a photographic array. Defendant argues the evidence was admissible because it showed that someone other than defendant may have committed the crime and because it was an inconsistent statement by Woodard that impeached her hearsay statements admitted at the trial.
    The State argues that because defendant failed to comply with Rule 28(d)(1) of the Rules of Appellate Procedure, the assignment of error has been waived. When the transcript of proceedings is filed pursuant to Rule 9(c)(2), the appellant must attach as an appendix to its brief “those portions of the transcript showing thepertinent questions and answers when a question presented in the brief involves the admission or exclusion of evidence.” N.C. R. App. P. 28(d)(1)(b). However, an appendix to an appellant's brief is not required when “the portion of the transcript necessary to understand a question presented in the brief is reproduced verbatim in the body of the brief.” N.C. R. App. P. 28(d)(2)(a).
    Defendant neither attached the pertinent portions of the transcript as an appendix nor did he include a reproduction of the transcript in the body of his brief. Nevertheless, pursuant to Rule 2 of the Rules of Appellate Procedure, we exercise our discretion to suspend the rule and address defendant's argument.
    During cross-examination, the following exchange occurred between defendant's counsel and Detective Smith:
    Q.    Thank you. You interviewed a number of other people who were present there that evening at the Duke's Club; correct?

    A.    Yes, sir.

    Q.    One of them was Nakia Horne you interviewed; correct?

    A.     That's correct.

    Q.    And another one of those was Eustachia Woodard? She was interviewed by, I believe, Detective Jason Allis?

    A.     Yes, sir.

    Q.    And you were privy to that report?

    A.    I was.

    Q.    And during the course of your investigation, you showed a number of pictures of people to a number of witnesses; correct?

    A.    Yes, sir.
    Q.    One of the pictures you showed people was a picture of Nakia Horne with a short crewcut picture, was it not?

    A.    That's correct.

    Q.    In fact, Miss Woodard identified that picture as the shooter; is that correct?

    Mr. Brown:    Objection, your honor.

    The Court:    Sustained.

    Mr. Brown:    Move to strike.

    The Court:    Jury will disregard the question.

    Q.    Were you present when Miss Woodard was looking at pictures?

    A.    No, sir, I was not.

    Q.     But, in fact, to your knowledge, she didn't look at such a picture?

    Mr. Brown:    Objection. Said he wasn't present.

    The Court:    Sustained.

    Defendant claims that the trial court's exclusion of the evidence infringed on his constitutional right to “present to the jury his version of the facts,” State v. Miller, 344 N.C. 658, 673, 477 S.E.2d 915, 924 (1996), “a fundamental element of due process of law, guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution and by Article I, Sections 19 and 23 of the North Carolina Constitution.” Id. Alternatively, defendant claims the statement was admissible to impeach hearsay evidence admitted earlier at trial that Woodard identified the men in the car as the same men fighting at Dukes'.
    “Evidence that another committed the crime for which the defendant is charged generally is relevant and admissible as longas it does more than create an inference or conjecture in this regard.” State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279 (1987). However, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602 (2003). When “a statement, other than one made by the declarant while testifying at the trial or hearing, [is] offered in evidence to prove the truth of the matter asserted,” it is hearsay evidence, N.C. Gen. Stat. § 8C-1, Rule 801, and it is not admissible unless it falls under one of the hearsay exceptions established by statute, N.C. Gen. Stat. § 8C-1, Rule 802, or unless its exclusion deprives a defendant of the fundamental right to a fair trial. State v. Barts, 321 N.C. 170, 180, 362 S.E.2d 235, 240 (1987).
    Although Woodard's alleged statement may have been relevant to show that someone else may have shot Barnes or to impeach Woodard's earlier hearsay statement, see N.C. Gen. Stat. § 8C-1 Rule 806, Detective Smith clearly testified that he was not present when Woodard made the alleged identification. Therefore, the State's objection was properly sustained.
    Even assuming arguendo that exclusion of the evidence was error, defendant was not prejudiced and any such error was harmless beyond a reasonable doubt. See N.C. Gen. Stat. §§ 15A-1442(4) and 15A-1443 (2003). There was no other evidence implicating Horne as the shooter, and there was overwhelming evidence presented at trial, including testimony from Garvin and McCrae, that defendant,angry after the fight with Jones, got a gun so that he could “handle” the situation. Although Garvin, who was awaiting trial on a murder charge, had incentive to downplay his role in the incident and point to defendant, McCrae's testimony corroborated Garvin's account of the incident. The assignment of error is overruled.

    Defendant next assigns as error the trial court's failure to give additional instruction to the jury with respect to the limited purpose for which the jury could consider Garvin's written statements. “After the jury retires for deliberation, the judge may give appropriate additional instructions to respond to an inquiry of the jury made in open court.” N.C. Gen. Stat. § 15A-1234(a)(1) (2003) (emphasis added). However, “[t]he court is not required to repeat instructions which were previously given to the jury in the absence of some error in the charge but may do so in its discretion.” State v. Bartow, 77 N.C. App. 103, 110, 334 S.E.2d 480, 484 (1985). See also State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986); State v. Hockett, 309 N.C. 794, 309 S.E. 2d 249 (1983). The trial judge is in the best position to determine whether additional instruction should be given, State v. Harper, 96 N.C. App. 36, 43, 384 S.E.2d 297, 301 (1989), and in fact, “needless repetition is undesirable.” State v. Dawson, 278 N.C. 351, 365, 180 S.E.2d 140, 149 (1971).
    The record discloses that the trial court instructed the jury as to the limited purpose for which it could consider Garvin'swritten statements when the statements were admitted into evidence. In addition, at the request of defendant, pattern jury instruction 105.20 on impeachment or corroboration by a prior statement was given when the jury was charged. We find no abuse of discretion in the court's refusal to repeat the earlier instructions to the jury.
    Finally, defendant argues the trial court erred in denying his motion to continue the trial. The question presented on appellate review of the trial court's ruling is whether, in denying defendant's motion, the court deprived defendant of his constitutional right to effective assistance of counsel and to present a defense. “The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). “To establish that the trial court's failure to give additional time to prepare constituted a constitutional violation, defendant must show 'how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.'” State v. McCullers, 341 N.C. 19, 31, 460 S.E.2d 163, 170 (1995) (internal citation omitted). “[I]f the motion to continue is based on a constitutional right, the trial court's ruling thereon presents a question of law that is fully reviewable on appeal.” State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998). In determining whether the trial court erred in denying a motion tocontinue, our Supreme Court has identified factors to be considered including “(1) the diligence of the defendant in preparing for trial and requesting the continuance, (2) the detail and effort with which the defendant communicates to the court the expected evidence or testimony, (3) the materiality of the expected evidence to the defendant's case, and (4) the gravity of the harm defendant might suffer as a result of a denial of the continuance.” State v. Barlowe, 157 N.C. App. 249, 254, 578 S.E.2d 660, 663, disc. review denied, 357 N.C. 462, 586 S.E.2d 100 (2003).
    In the present case, defendant was arrested on 8 March 2002 and counsel was appointed on 11 March 2002. After defendant's original counsel withdrew, substitute counsel was appointed on 16 July 2002. On 16 October 2002, defense counsel was advised by telephone of a trial date of January 2003. After receiving written notification of the trial date, defendant requested a continuance on 25 November 2002, almost two months prior to the anticipated court date. Investigators, hired by defendant in August 2002 to locate and interview potential witnesses, began work in October. At the time of the hearing on 11 December 2002, investigators were still attempting to develop witnesses. Both defendant and the State contended witnesses had not been very cooperative and it had been difficult building rapport with them. Defense counsel, in his motion, alleged the continuance was necessary because
    [c]ounsel has engaged professional investigative services and these investigators are still in the process of locating and attempting to interview a number of potential witnesses. Based on information received to date these witnesses are necessary to the preparation of an adequate defense. Accordingly counsel needsadditional time in which to investigate this matter in order to formulate an adequate defense.

    Defense counsel did not identify specific witnesses who would offer the information nor had the defense determined whether any of the potential witnesses would actually agree to testify. At the hearing, defense counsel offered to make an ex parte statement to the court regarding the nature of the evidence he was trying to obtain. The court, acknowledging that the evidence must be exculpatory or the defense would not pursue it, declined the offer. Defense counsel acknowledged at the hearing that the State provided full discovery.
    From the time he was notified of the trial date, defendant had three months in which to develop potential witnesses and persuade them to testify. In addition, as the court pointed out, investigators still had a month from the date of the hearing in which to obtain the witnesses for trial. Defendant made no showing that the potential witnesses would testify if additional time was provided. Having had adequate time to investigate and prepare the case, the record does not support defendant's claim that he was denied his constitutional rights to confrontation and assistance of counsel. We find no error. We conclude that defendant received a fair trial, free from prejudicial error.
    Defendant's remaining assignments of errors were not addressed in his brief and are considered abandoned. N.C. R. App. P. 28(a).
    No error.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).

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