Appeal by defendant from judgment entered 5 May 2003 by Judge
Gregory A. Weeks in Cumberland County Superior Court. Heard in the
Court of Appeals 19 October 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John F. Oates, Jr., for the State.
Jon W. Myers for defendant-appellant.
HUNTER, Judge.
Eddie Purnell Ammons, Jr. (“defendant”) appeals from a
judgment dated 5 May 2003 entered consistent with a jury verdict
finding him guilty of voluntary manslaughter. Defendant contends
the trial court erred in: (I) admitting improperly redacted
testimony, (II) denying defendant's motion to dismiss for
insufficient evidence, (III) allowing introduction of evidence of
alleged prior acts of violence, and (IV) allowing testimony after
a child witness' recollection was refreshed by leading questions.
For the reasons stated within, we find no error.
The evidence tends to show that defendant met Allen Roher
(“Roher”) in December 2000 at a crack house. The two became
acquainted through their mutual drug habit and spent considerable
time together.
On 9 June 2002, defendant pawned a VCR to Roher for ten
dollars, and agreed to pay thirty dollars to redeem the device. A
dispute arose over the amount needed to redeem the VCR. On 17 June
2002, Roher asked defendant to come to his house to redeem the VCR.
On 18 June 2002, defendant, driven by his uncle, Gerald Locklear
(“Locklear”), arrived at Roher's house in a Ford Thunderbird whose
passenger side window was broken and could not be rolled up.
Defendant accompanied Roher into his residence and offered
thirty dollars to redeem the VCR. Roher then grabbed defendant,
refused to return the device, and attempted to throw defendant out.
A struggle ensued between the men. During the confrontation,
Roher's son appeared at the door and was told to call the police.
The struggle between defendant and Roher continued until Locklearentered. Roher then returned defendant's money and asked him to
leave.
Defendant exited, followed by Roher, who picked up a bed slat
outside the residence. Roher continued to follow defendant as he
returned to Locklear's car, and repeatedly swung the slat at him.
Defendant attempted to block the swings with his arm, but was
struck in the neck by one of the blows. Defendant produced a
knife, told Roher to stop hitting him, to keep the VCR, and not to
come to his house. Defendant then got into the passenger side of
the automobile and asked Locklear to start the engine. Roher
continued to strike at the vehicle and defendant as the car backed
down the driveway.
Upon reaching the road, the vehicle's engine cut off. As
Locklear attempted to restart the car, Roher continued to swing the
slat at the vehicle. Defendant stabbed Roher through the heart.
The car then pulled away and defendant returned home with Locklear,
where he began drinking heavily.
Upon investigation, officers of the Cumberland County
Sheriff's Department found injuries to defendant's right arm,
including swelling, contusions, and scrapes. Defendant was taken
to the sheriff's office and awaited treatment in an interrogation
room, which contained audio and video equipment. Defendant was
left in the room with the equipment on for approximately two hours.
During that time, defendant made voluntary statements regarding the
incident which were recorded and later used at trial. Defendant was indicted on a charge of second degree murder and
convicted of voluntary manslaughter. Defendant was sentenced to a
term of 94 to 122 months. Defendant appeals.
I.
[1] Defendant first contends that the trial court erred in
allowing admission of a redacted version of defendant's recorded
statement upon defendant's motion
in limine. We disagree.
“'A defendant is not prejudiced by the granting of relief
which he has sought or by error resulting from his own conduct.'”
State v. McNeil, 350 N.C. 657, 669, 518 S.E.2d 486, 494 (1999)
(quoting N.C. Gen. Stat. § 15A-1443(c)).
Here defendant made a motion
in limine to “exclude any
evidence of, or reference to the defendant referring to Allen Roher
as a 'Nigger[,]'” in voluntary statements made by defendant about
the incident. The trial court granted the motion, permitting the
racially derogatory language to be replaced in the statement by a
blank. Defendant contends that by inserting blanks in place of the
racially derogatory language used by defendant, rather than a noun
or pronoun such as Roher's name, the trial court created a
prejudicial risk that the jury would understand the purpose of the
blank as a veiled racial reference. However, defendant did not
object to the substitution of a blank for the racially derogatory
language at the time the trial court granted the motion, nor later
when the evidence was presented to the jury using the blank. As
defendant received the relief requested, he cannot now raise the
issue of prejudice resulting from the grant of the motion
inlimine. We find no error in the trial court's admission of the
redacted evidence.
Further, even if the question raised had been error, it was
plainly waived by defendant. “In order to preserve a question for
appellate review, a party must have presented the trial court with
a timely request, objection or motion, stating the specific grounds
for the ruling sought if the specific grounds are not apparent.”
State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991)
(citing N.C.R. App. P. 10(b)(1)). “This Court will not consider
arguments based upon matters not presented to or adjudicated by the
trial tribunal.”
Id.
As noted
supra, defendant did not object at the time the blank
was inserted into the statement, nor at trial when the statement
was presented. Nor does defendant allege plain error.
See State
v. Bell, ____ N.C. ___, ___, 603 S.E.2d 93, 111 (2004) (holding
failure to specifically assert plain error will not preserve issue
for appellate review). Defendant's failure to object to such a
substitution waives his right to appellate review of this issue.
II.
[2] Defendant next contends the trial court erred in denying
defendant's motion to dismiss the charge of second degree murder
for insufficient evidence that defendant did not act in self-
defense. We disagree.
The State bears the burden of proving
that defendant did not act in self-defense.
To survive a motion to dismiss, the State must
therefore present sufficient substantial
evidence which, when taken in the light most
favorable to the State, is sufficient to
convince a rational trier of fact that
defendant did not act in self-defense.
State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511
(1985) (citation omitted). “'In reviewing challenges to the
sufficiency of evidence, we must view the evidence in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences. Contradictions and discrepancies do not
warrant dismissal of the case but are for the jury to resolve.'”
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000)
(citations omitted) (quoting
State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)).
“Second-degree murder is an unlawful killing with malice, but
without premeditation and deliberation.”
State v. Brewer, 328 N.C.
515, 522, 402 S.E.2d 380, 385 (1991). Perfect self-defense, which
provides a complete excuse for a killing, is established when the
following elements are found:
“(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. Reid, 335 N.C. 647, 670, 440 S.E.2d 776, 789 (1994)
(quoting
State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497
(1992)).
To negate the defense of self-defense altogether, the State
need only prove beyond a reasonable doubt the non-existence of
either the first or second element, i.e., either defendant had no
belief that it was necessary to kill to save himself from death or
great bodily harm, or that defendant's belief, if he had one, was
unreasonable because the circumstances as they appeared to
defendant were not sufficient to create such a belief in the mind
of a person of ordinary firmness.
Id. at 670-71, 440 S.E.2d at
789.
In the instant case, the evidence, taken in the light most
favorable to the State, tends to show that defendant came armed
with a sharpened knife to confront Roher in his home over the
disputed VCR, and that the confrontation led to a fight between the
two men. Roher followed defendant as he left his home and picked
up a bed slat which he swung at defendant, hitting defendant four
times on the arm. Defendant pulled his knife at this time and told
Roher to stop hitting him, then got into the waiting vehicle.
Roher continued to hit the car with the bed slat as it pulled down
the drive. The vehicle's engine cut off as it reached the roadway.
Roher continued swinging the bed slat at the vehicle as it stopped,
and defendant produced the lockblade knife, reached outside the
window, and stabbed Roher through the heart, while his uncle
restarted the engine. Defendant immediately thereafter left the
scene without notifying authorities. In light of this evidence, a jury could find that defendant
lacked a reasonable belief in the threat of serious bodily injury
or death at the time he stabbed Roher, as defendant had reached the
relative safety of the car and such a threat was no longer
imminent. Further evidence negating the reasonableness of
defendant's belief in the need to kill is found in his hasty
departure from the scene.
See State v. Watson, 338 N.C. 168, 181,
449 S.E.2d 694, 702 (1994) (overruled on other grounds,
State v.
Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995)) (holding such
flight would permit a jury to infer defendant harbored a sense of
guilt inconsistent with a killing justified on the basis of
self-defense). As sufficient evidence of the elements of second
degree murder and evidence negating defendant's claim of self-
defense were presented, the trial court correctly denied
defendant's motion to dismiss the charge of second degree murder
and all lesser-included offenses at the close of all the evidence,
and the case was properly submitted to the jury for determination
of the disputed factual issues.
III.
[3] Defendant next contends that the trial court erred in
allowing the State to cross-examine the defendant regarding his
prior violent behavior. We disagree.
A claim of self-defense by defendant does not automatically
place his character for violence or aggression at issue.
See State
v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986). In
Morgan, the
defendant charged with shooting his business partner was cross-
examined about an incident three months prior in which he pointeda gun at another individual.
Id. at 631, 340 S.E.2d at 88. In
Morgan, the Supreme Court of North Carolina held that such evidence
was not admissible under Rule 608(b) of the North Carolina Rules of
Evidence, which permits evidence of specific conduct for the
purpose of proving credibility of a witness or the lack thereof,
“because extrinsic instances of assaultive behavior,
standing
alone, are not in any way probative of the witness' character for
truthfulness or untruthfulness.”
Id. at 635, 340 S.E.2d at 90
(emphasis added),
see N.C. Gen. Stat. § 8C-1, Rule 608(b) (2003).
The State, in
Morgan, also contended such evidence was proper under
Rule 404(b), as it was relevant to whether the defendant was the
aggressor in the altercation. Id. at 635-36, 340 S.E.2d at 91-92.
However the Court found such evidence inadmissible as it served
only to prove the defendant's violent disposition, and action in
conformity with defendant's character, precisely what Rule 404(b)
prohibited.
Id. at 636-38, 340 S.E.2d at 92-93.
A similar finding was reached in
State v. Mills, 83 N.C. App.
606, 351 S.E.2d 130 (1986). In
Mills, the State questioned another
witness regarding evidence that the defendant pointed a weapon at
the victim three years earlier to show that the defendant's act was
premeditated and deliberate under Rule 404(b).
Id. at 609-10, 351
S.E.2d at 132-33. This Court found the questioning impermissible
under Rule 404(b), as its primary purpose was to show the defendant
was the aggressor and did not act in self-defense.
Id. at 611-12,
351 S.E.2d at 134.
Although evidence of other acts is not permissible under Rule
404(b) to show a propensity for violence solely because a defendantraised the claim of self-defense, such evidence may be used to
refute specific evidence of defendant's credibility under Rule 608,
when such credibility is at issue. N.C. Gen. Stat. § 8C-1, Rule
608. “A criminal defendant is entitled to introduce evidence of
his good character, thereby placing his character at issue.”
State
v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000). When the
criminal defendant introduces such evidence, “[t]he State in
rebuttal can then introduce evidence of defendant's bad character.”
Id. Under Rule 405(a), the State may do so by cross-examining a
defendant's character witnesses as to “relevant specific instances
of conduct.” N.C. Gen. Stat. § 8C-1 Rule 405(a) (2003). The
Supreme Court recognized this distinction in
Morgan, specifically
distinguishing the facts of that case from the case of
Atkinson v.
State, 611 P.2d 528 (Alaska 1980), where evidence was admitted that
defendant had previously pointed a gun at and threatened two other
trespassers, after defendant claimed that he would never point a
gun.
Morgan, 315 N.C. at 638-39, 340 S.E.2d at 92. Further, the
Supreme Court of North Carolina distinguished
Morgan in
State v.
Syriani, 333 N.C. 350, 428 S.E.2d 118 (1993), holding that where
the defendant testified on direct examination to the positive
relationship with his family, the door was opened for cross-
examination regarding specific acts of misconduct, and that where
a “defendant proffered evidence of his character, including his
character for non-violence, the State was entitled to impeach him,
in proper order, by rebuttal evidence.”
Syriani, 333 N.C. at 379-
80, 428 S.E.2d at 133 (1993). Here, defendant testified on direct examination that he had
“never injured anyone.” Defendant's uncle also testified on direct
examination that defendant was not a violent person. On cross-
examination, defendant was then questioned regarding specific acts
of violence towards individuals. Unlike in
Morgan and
Mills, where
only the issue of self-defense but not the defendant's character
were raised, but similar to
Syriani, where the defendant testified
to his character for non-violence, such inquiries in the instant
case into prior violent behavior during cross-examination were
relevant as to defendant's credibility once defendant placed his
character for non-violence at issue. Therefore, the trial court
did not err in permitting such inquiries.
IV.
[4] Defendant finally contends the trial court abused its
discretion in allowing the State to ask leading questions to a
child witness to refresh his recollection of prior statements made
to a detective. We disagree.
“It is generally recognized that an examining counsel should
not ask his own witness leading questions on direct examination.”
State v. Greene, 285 N.C. 482, 492, 206 S.E.2d 229, 235 (1974).
However, the trial judge has sound discretion to permit such
questions and may be aided by guidelines which have evolved over
the years as to when counsel should be allowed to lead his or her
own witness.
Id. at 492, 206 S.E.2d at 235-36. These include
“when the witness . . . has difficulty in understanding the
question because of immaturity, age . . . or . . . the examiner
seeks to aid the witness' recollection or refresh his memory whenthe witness has exhausted his memory without stating the particular
matters required[.]”
Id. at 492, 206 S.E.2d at 236. “[I]n the
absence of abuse the exercise of such discretion will not be
disturbed on appeal.”
Id. at 492, 206 S.E.2d at 235.
Here, the child in question was ten years old at the time of
the trial, and the son of the victim. The trial court permitted
the State to ask leading questions of the child after recognizing
the tender age of the witness and the child's stated inability to
remember the substance of his interview with the police officer who
spoke with him on the day of the incident. Further, the trial court
provided a limiting instruction to the jury that such questions
were only for purposes of corroborating the child's testimony at
trial. Therefore, no abuse of discretion is found.
For the reasons stated therein, we find no error.
No error.
Judges WYNN and THORNBURG concur.
Judge Thornburg concurred in this opinion prior to 31 December
2004.
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