STATE OF NORTH CAROLINA,
v
.
Edgecombe County
No. 00 CRS 52529
BARRY TYRONE PITTS,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Diane A. Reeves, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliot Walker, for defendant-appellant.
THORNBURG, Judge.
Defendant was indicted on one charge of murder. A jury found
defendant guilty of second-degree murder. Defendant appeals.
Sometime after midnight on 21 December 2000, William Henry
Jones was shot in the chest outside of 104 Townhouse Court in Rocky
Mount, North Carolina. That address was the home of Jones's
sister, Tamara Jones. Tamara arrived home from work that night
sometime around 9:30 p.m., to find her boyfriend, Walter Lyons, her
children, and her sister, Monique Jones, in the home. Tamara asked
Monique and Walter where her other siblings, Stephanie, Demetrice,
and William Jones, were, as Tamara had spoken with them by phoneearlier that night while they were at her home. Monique told
Tamara that they had gone across the street to the “Liquor House.”
After Tamara had been home for an hour to an hour and a half,
Stephanie arrived and was very upset and crying. Stephanie told
Tamara that she and defendant had been arguing at the Liquor House.
Demetrice returned from the Liquor House shortly thereafter and
urged Stephanie to go outside and speak with defendant. Tamara
also urged Stephanie to speak with defendant so as to avoid any
trouble. After Stephanie had been outside for several minutes,
Tamara heard defendant yelling obscenities at Stephanie.
As Stephanie and defendant were arguing, William left the
Liquor House and joined Stephanie and defendant in Tamara's front
yard. William attempted to intervene in the fight on Stephanie's
behalf. This angered defendant, who began shouting obscenities at
William as well. Defendant then pulled out a gun and shot William
in the chest. After shooting William, defendant fled the area.
Officer C.D. Joyner, of the Rocky Mount Police Department,
arrived at 104 Townhouse Court at approximately 12:45 a.m. and was
the first officer on the scene. At some point after his arrival,
Joyner spoke with Tamara about the events of the night. Tamara was
also interviewed by Detective Mike Lewis on the day following the
shooting, during which she gave a written statement of the events
of the previous night.
Defendant claimed that he shot William in self-defense.
Defendant testified that on the day that William died, defendant
had been drinking and smoking a combination of tobacco and cocaineall day. Defendant remembered William joining him and Stephanie in
the yard, but claimed that William started the argument. Defendant
testified that William, who was a larger man than defendant,
started to advance toward him and backed defendant into a wall.
Defendant then attempted to push William away. Defendant claimed
that William began advancing toward him again and defendant saw him
reach with his right hand for what defendant thought was a weapon.
At that point, defendant shot William.
Defendant was convicted by a jury of second-degree murder.
Defendant appeals and argues: (1) that the trial court committed
plain error in admitting parts of Tamara's prior statement to
Officer Joyner as it was inadmissible hearsay; (2) that the trial
court committed plain error in admitting parts of Tamara's written
statement as it was inadmissible hearsay; and (3) that the trial
court erred when it ordered restitution where the trial court
failed to consider defendant's ability to pay such restitution and
the State failed to present evidence to support the amount of the
award.
The plain error standard is limited in its application to only
two categories of trial error: errors involving evidentiary rulings
and errors involving jury instructions. State v. Black, 308 N.C.
736, 739-41, 303 S.E.2d 804, 806-07 (1983) (standard applicable to
evidentiary rulings by the trial court); State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (standard applicable to jury
instructions). The Supreme Court, in speaking of when it is
appropriate to find plain error, stated: [The standard] is always to be applied
cautiously and only in the exceptional case
where, after reviewing the entire record, it
can be said the claimed error is a
“fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,” or “where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,”
or the error has “'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'” or where the error is such as to
“seriously affect the fairness, integrity or
public reputation of judicial proceedings” or
where it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
Black, 308 N.C. at 740-41, 303 S.E.2d at 806-07,(quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert.
denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). 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. Odom, 307 N.C. at
661, 300 S.E.2d at 378-79. In other words, the appellate court
must determine that the error in question “tilted the scales” and
caused the jury to reach its verdict convicting the defendant.
Black, 308 N.C. at 741, 303 S.E.2d at 807.
Defendant contends that it was plain error for the trial court
to admit two prior statements made by Tamara. Shortly after police
arrived on the scene, Tamara gave a statement to Officer Joyner.
Tamara also provided police with a written statement of the night's
events the following day. Joyner testified that Tamara told him
that “Stephanie Jones, and Barry Tyrone Pitts, the suspect, had
been arguing and that Pitts had pulled a gun on her.” Tamara readher written statement into the record, in which she stated:
“Stephanie stated that Barry Pitts had been giving her a bad time
and had showed her a gun.” Defendant argues that Tamara did not
testify that Stephanie told her defendant showed her a gun and
thus, that these two statements go beyond corroborating Tamara's
trial testimony and should not have been admitted. Further,
defendant argues that the statements were prejudicial because
defendant was claiming self-defense and the statements portray
defendant as aggressive. We disagree.
Out of court statements which are offered for the truth of the
matter asserted therein are allowed into evidence for the purpose
of corroborating the witness's trial testimony. State v. Ramey,
318 N.C. 457, 349 S.E.2d 566 (1986). Our courts allow variation,
or new information, in prior consistent statements, so long as the
narration of events is substantially similar to the witness's in-
court testimony and trial courts have wide latitude in deciding
when a prior consistent statement can be admitted for corroborative
nonhearsay purposes. State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d
596, 617 (2001). It is true, as defendant contends, that Tamara
did not specifically say that defendant showed Stephanie his gun
during her first narration of the events during her testimony.
However, even assuming arguendo that Tamara's prior statements were
improperly admitted, we do not conclude that defendant has shown
plain error.
Defendant's argument for prejudice is predicated upon the fact
that he presented the defense of self-defense at trial. Self-defense excuses a killing completely if the following four
necessary elements of perfect self-defense exist at the time of the
killing:
(1) it appeared to defendant and he believed
it to be necessary to kill the deceased in
order to save himself from death or great
bodily harm; and
(2) defendant's belief was reasonable in that
the circumstances as they appeared to him at
that time were sufficient to create such a
belief in the mind of a person of ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the
fight without legal excuse or provocation; and
(4) defendant did not use excessive force,
i.e., did not use more force than was
necessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.
State v. Richardson, 341 N.C. 585, 588, 461 S.E.2d 724, 726 (1995)
(quoting State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497
(1992)). However, “[u]nder the law of imperfect self-defense, if
the first two elements existed at the time of the killing, but
defendant, although without murderous intent, was the aggressor in
bringing on the affray or used excessive force, defendant is guilty
at least of voluntary manslaughter.” Richardson, 341 N.C. at 588,
461 S.E.2d at 726-27 (quoting McAvoy, 331 N.C. at 596, 417 S.E.2d
at 497.
Any impact of Tamara's statements that defendant either pulled
or showed a gun to Stephanie was negligible in light of all the
evidence. Several people testified that defendant had been yellingand cursing at Stephanie for most of the evening and that William
sought to intervene on her behalf. Defendant admitted that on the
day in question he had been drinking alcohol and using drugs, that
he had a gun with him, that he had it with him all day, that he
never saw William with a weapon, that he and William were arguing
and that he shot William. Defendant's only claim of prejudice is
based on the supposition of what the jury might have thought about
him as an aggressor upon hearing that defendant showed Stephanie a
gun. When considered with all the other evidence presented at
trial, we cannot conclude that the admittance of Tamara's prior
statements concerning whether defendant showed Stephanie a gun
caused the jury to convict defendant. Defendant's assignments of
error fail.
Defendant also argues that the trial court erred in not
considering defendant's ability to pay the amount ordered as
restitution and in ordering a set amount of restitution based only
upon the restitution worksheet submitted by the State. In the
judgment, the trial court ordered that defendant pay, as condition
of post release supervision, restitution in the amount of $7,500.
These issues were addressed in State v. Wilson, 340 N.C. 720,
459 S.E.2d 192 (1995). In deciding whether the trial court must
consider a defendant's ability to pay restitution, the Court found
that any “trial court's order of restitution as a condition of work
release or parole constitutes a recommendation to the Secretary of
the Department of Correction and the Parole Commission, not an
order binding defendant to pay restitution in this amount upon theentry of judgment in this action.” Wilson, 340 N.C. at 725-26, 459
S.E.2d at 195 (emphasis in original). The Court then went on to
conclude:
“There is no statutory requirement for a
sentencing judge to inquire into a defendant's
ability to pay restitution when the judge
merely recommends restitution as a condition
of parole or work release.” We conclude,
therefore, that the trial court did not err in
failing to consider defendant's ability to pay
restitution, as the potentially binding
determination at a later date requiring
defendant to pay restitution as a condition of
work release or parole by either the
Department of Correction or the Parole
Commission will by necessity require
sufficient evidence of defendant's ability to
pay at that time.
Id. at 726, 459 S.E.2d at 195-96 (internal citation omitted).
Thus, it was not error for the trial court to not consider
defendant's ability to pay restitution. Defendant's argument
fails.
However, the Wilson court went on to conclude that
“[r]egardless of whether restitution is ordered or recommended by
the trial court, the amount must be supported by the evidence.”
Id. at 726, 459 S.E.2d at 196 (quoting State v. Daye, 78 N.C. App.
753, 757, 338 S.E.2d 557, 560 (1986)). In Wilson, the only
evidence supporting the amount of restitution was the prosecutor's
unsworn statement. Wilson, 340 N.C. at 727, 459 S.E.2d at 196.
The court concluded that the prosecutor's unsworn statement was
insufficient to support the amount of restitution recommended and
vacated that portion of the judgment. Id. In the instant case,
the only evidence to support the amount of restitution recommendedthat we find in the record is the prosecutor's unsworn statement to
the trial court and the unverified restitution worksheet, which is
not itself in the record but is mentioned in the transcript. This
evidence is not sufficient to support the amount of restitution
recommended. Thus, because the $7,500 amount of recommended
restitution is not supported by the evidence adduced at trial or
sentencing, we vacate that portion of the judgment recommending
restitution in the amount of $7,500.
No error in part; vacated in part.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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