Appeal by defendant from judgment entered 4 December 2003 by
Judge Marcus L. Johnson in Mecklenburg County Superior Court.
Heard in the Court of Appeals 10 March 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Fred Lamar, for the State.
MILES & MONTGOMERY, by Lisa Miles, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Arthur Hames (“defendant”) appeals his convictions for
voluntary manslaughter of his brother, assault with a deadly weapon
inflicting serious injury upon Stephanie Marzette (“Marzette”), and
attempted voluntary manslaughter of Marzette. For the reasonsdiscussed herein, we hold that defendant received a trial free of
prejudicial error with respect to the voluntary manslaughter
conviction. However, because we conclude that the offenses of
assault with a deadly weapon inflicting serious injury and
attempted voluntary manslaughter are mutually exclusive, we hold
that defendant is entitled to a new trial with respect to the
shooting of Marzette.
The facts and procedural history pertinent to the instant
appeal are as follows: On 21 April 2002, Charles Kenneth Hames
(“Hames”) and Marzette were driving through Charlotte in search of
a store where they could buy sewing thread. Hames and Marzette
decided to drive to a residence shared by Hames and defendant, his
younger brother. Shortly after they arrived at the residence, an
argument ensued between Hames and defendant. While Hames and
Marzette were in Hames' bedroom, defendant entered the room and
shot Hames with a handgun. Defendant subsequently approached
Marzette and shot her as well.
After law enforcement officers arrived at the residence,
defendant accompanied two officers inside the residence. Defendant
told the officers where the handgun was located, and the officers
secured it. The officers thereafter searched the residence and
found Hames laying on the floor of his bedroom and Marzette laying
in the closet of the bedroom.
Defendant was arrested and medical personnel transported Hames
and Marzette to Carolinas Medical Center. Hames subsequently died
from his gunshot wounds. Although she survived the shooting,Marzette was hospitalized for several days.
On 13 May 2002, defendant was indicted for first-degree murder
of Hames and assault with a deadly weapon with intent to kill
inflicting serious injury upon Marzette. On 17 March 2003,
defendant was also indicted for attempted murder of Marzette. At
trial, defendant testified that he shot Hames and Marzette by
accident and in self-defense. The jury found defendant guilty of
voluntary manslaughter of Hames, guilty of assault with a deadly
weapon inflicting serious injury upon Marzette, and guilty of
attempted voluntary manslaughter of Marzette. The trial court
thereafter sentenced defendant to a total of 163 to 215 months
incarceration. Defendant appeals.
We note initially that defendant's brief contains arguments
supporting only three of the original thirteen assignments of
error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the ten omitted
assignments of error are deemed abandoned. Therefore, we limit our
present review to those assignments of error properly preserved by
defendant for appeal.
The issues on appeal are whether the trial court erred by:
(I) excluding statements made by defendant to law enforcement
officers following the shootings; (II) excluding statements made by
Izella Miller (“Miller”) to law enforcement officers following the
shootings; and (III) entering judgment against defendant for
attempted voluntary manslaughter.
[1] Defendant first argues that the trial court erred byexcluding statements he made to law enforcement officers following
the shootings. Defendant asserts that his statements should have
been admitted as excited utterances, and that he was prejudiced by
their exclusion. We disagree.
For a statement to qualify as an excited utterance, the
statement must be in response to “a sufficiently startling
experience suspending reflective thought and . . . a spontaneous
reaction, not one resulting from reflection or fabrication.”
State
v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). However,
“statements or comments made in response to questions do not
necessarily rob the statements of spontaneity.”
State v.
Boczkowski, 130 N.C. App. 702, 710, 504 S.E.2d 796, 801 (1998).
Instead, “[t]he critical determination is whether the statement was
made under conditions which demonstrate that the declarant lacked
the 'opportunity to fabricate or contrive' the statement.”
State
v. Wright, 151 N.C. App. 493, 497, 566 S.E.2d 151, 154 (2002)
(quoting 1 Henry Brandis, Jr.,
Brandis on North Carolina Evidence
§ 164 (3d ed. 1988)).
In the instant case, Charlotte-Mecklenburg Police Department
Officer Scott A. Sharp (“Officer Sharp”) filed a report following
his investigation of the shootings. The report contains the
following pertinent narration:
As Officer Buchanan assessed the victim[s], I
looked back to the front of the home and asked
the black male, identified as Arthur Lee
Hames, who shot the victim[s]. He immediately
responded “I f[*****]g shot the m[****]r
f[*****]s!” I ordered Mr. Hames to turn
around and place his hands behind his back,
which he did, and secured him with handcuffs. While I was securing the suspect he said the
male victim, identified as his brother Charles
Hames, approached him with a gun and that he
shot him in self defense.
Charlotte-Mecklenburg Police Department Officer W.L. Guild
(“Officer Guild”) interviewed defendant the night of the shootings.
Officer Guild's report of the interview contains the following
pertinent narration:
4:05 a.m. I entered the interview room with
Arthur Hames [who] was seated at the back of
the room . . . . I advised him that his
brother was dead. He became extremely
upset. . . . He stated “Lord Jesus. I didn't
want to get rid of my brother. He jumped on
me and pushed me. He came off on me like he
always do.”
Prior to trial, the trial court allowed the State's motion
in
limine regarding these statements. The trial court ruled that
because defendant was a party in the trial, his statements to the
law enforcement officers were self-serving declarations that could
be introduced by defendant for corroborative or impeachment
purposes during his own case, but not for substantive purposes
during the State's case. The trial court concluded that “what is
before me now would not qualify as an excited utterance[,]” and the
trial court agreed that those officers testifying for the State
should be held under subpoena in order to provide corroborative
information during defendant's case. Defendant contends that the
trial court's determination limited his ability to present self-
defense evidence.
We note that “[i]f a statement fits an exception, then it is
admissible even if self-serving, unless the particular exceptionprohibits it.”
State v. Harper, 51 N.C. App. 493, 497, 277 S.E.2d
72, 75 (1981);
see State v. Moore, 41 N.C. App. 148, 151, 254
S.E.2d 252, 254 (1979) (“If testimony is otherwise admissible, it
is not to be excluded merely because it is 'self-serving.'”).
However, while it is true that the trial court may admit
corroborative evidence prior to the testimony of a witness,
State
v. Hinson, 310 N.C. 245, 256, 311 S.E.2d 256, 263,
cert. denied,
469 U.S. 839, 83 L. Ed. 2d 78 (1984), “[t]here is no right to
corroboration in advance of the testimony of a witness.”
State v.
Ball, 344 N.C. 290, 307, 474 S.E.2d 345, 355 (1996).
In the instant case, the statements defendant gave to Officers
Sharp and Guild would only have corroborated the testimony given by
defendant during his case-in-chief. Defendant repeatedly testified
at trial that Hames was verbally abusive to him the night of the
shootings, stating that Hames “went off on” him when a male named
Roosevelt arrived at the residence. Defendant testified that Hames
“got in my face and started cussing, cursing me, calling me all
kind of this and that.” Defendant stated that he was “afraid to
sit down with him standing on top of me[,]” and that “[t]he way he
would talk and the rage he was in, I -- I thought he was getting
ready to kill me.” Defendant further testified that
Then he got to -- he got to running off the
mouth about I didn't have no -- no business
there, it was his house too, and all this
punk, sissy sucker, and all this mother, you
know, he was saying anything else in the book,
and spitting in my face and he pulled
something out and stuck it to my head.
Defendant testified that the object “looked” and “feeled” like ahandgun, and that he thought it was a handgun. Defendant testified
that Hames then “said man, I'll blow your m****r-f*****g brains out
if you say one d**n word. He said, -- then he showed me it again
and said do you think I'm lying? Say something and I'll blow your
-- I'll blow your d**n brains out.”
Defendant further testified that as he attempted to retrieve
his own weapon, Hames continued to call him names and yell at him
out the window of the residence. Defendant testified that when he
returned to the residence and entered Hames' bedroom, Hames pointed
an object “right between” his eyes. Defendant testified that he
knew the barrel of a gun when he saw a barrel pointed at his eyes.
After testifying that the gun “kicked back up” and “double
shot [Hames] twice[,]” defendant asserted that he and Marzette
attempted to call 9-1-1, but were unsuccessful. Defendant
testified that he then returned to Hames' bedroom, where Marzette
“said Lee, you m****r f****r, and she reached down on the floor to
pick up something off the floor.” Defendant further testified that
he “was still thinking it was a gun in that room” and that Marzette
was going to shoot him. Defendant stated that “I thought my life
was -- my life was in danger, then I fired the gun right behind her
legs.” Defendant also stated that he was “distraught” after the
shootings, and that he “never had any intent of hurting” Hames or
Marzette. Defendant testified that he was “frightened” by Hames'
threats, and that he felt it was necessary to protect himself from
Hames. Although defendant did not call Officer Guild to testify,
Officer Sharp testified during defendant's case-in-chief and statedthat defendant was agitated and upset following the shootings.
Officer Sharp testified that while he was handcuffing defendant,
defendant told him that Hames had approached him with a gun and
defendant had shot Hames in self-defense.
“Not every erroneous ruling on the admissibility of evidence
will result in a new trial.”
State v. Knox, 78 N.C. App. 493,
496, 337 S.E.2d 154, 157 (1985). Instead, “[t]he burden is on
[the] appellant to show both error and a reasonable possibility
'that had the error in question not been committed, a different
result would have been reached at the trial.'”
Id. (quoting N.C.
Gen. Stat. § 15A-1443). In the instant case, assuming
arguendo
that the trial court erred by limiting defendant's questioning of
law enforcement officers during the State's case-in-chief, in light
of the evidence introduced by defendant during his case-in-chief,
we conclude that the alleged error by the trial court was not
prejudicial. As detailed above, defendant testified on his own
behalf regarding his statements and intentions during the
shootings, and Officer Sharp corroborated portions of defendant's
testimony. Defendant has failed to demonstrate that a different
result would have been reached had the trial court allowed him to
question the law enforcement officers further during the State's
case-in-chief. Accordingly, defendant's first argument is
overruled.
[2] Defendant next argues that the trial court erred by
excluding Miller's statements to law enforcement officers following
the shootings. Defendant asserts that Miller's statements toOfficer Sharp were admissible as excited utterances, and that he
was prejudiced by their exclusion. We disagree.
Officer Sharp's report of the shootings contains the following
pertinent narration:
I spoke to the witness Izella Miller, and
asked her what happened. She told me the male
victim and the suspect had been arguing and
the male victim approached the suspect with
what appeared to be a silver handgun and
pointed it at him. The suspect then went
outside to his car and returned with a gun and
shot the male victim. The female victim, who
had not been shot yet, told her to call 911.
She said that when she tried from her home,
her phone wasn't working and she went to her
next door neighbor[']s house . . . and called
911. She said when she came back to the home,
she found out the suspect had shot the female
victim while she was gone, and she called 911
again from her home. She also said the
suspect went outside to the back of the house
and fired at least one shot . . . . I asked
Ms. Miller to clarify her story about the
suspect going outside, and she recanted her
story and said he had gone to the padlocked
closet in the bedroom and gotten the gun from
in there. When asked why she had two
different stories, she did not answer.
During direct examination by the State, Officer Sharp testified
that he spoke to Miller at the scene, but that she was “upset” and
“appeared to be intoxicated.” During cross-examination, defendant
attempted to elicit from Officer Sharp Miller's statements
regarding the shootings. The trial court sustained the State's
objection to the presentation of such evidence, noting that
“[t]here's nothing about . . . these circumstances that indicate an
excited utterance. She was answering his query. And there's
nothing about this that appears to meet any of the qualifications
of something stated in spur of the moment . . . . He's asking herwhat happened and then [she] changed her story.”
Defendant contends that the trial court erred in finding that
Miller's statements to Officer Sharp were inadmissible because they
were in response to questioning, and he asserts that the statements
were made following the shooting of two people in close proximity
to Miller. However, we note that “[t]he rationale for the
admissibility of an excited utterance is its trustworthiness.”
State v. Wingard, 317 N.C. 590, 598, 346 S.E.2d 638, 644 (1986).
In
State v. Reid, 335 N.C. 647, 662, 440 S.E.2d 776, 784 (1994),
our Supreme Court explained the doctrine of excited utterance as
follows:
The reason for allowing this exception is that
circumstances may produce a condition of
excitement which temporarily stills the
capacity of reflection and produces
“spontaneous and sincere” utterances. “[T]he
trustworthiness of this type of utterance lies
in its spontaneity . . . .” There is simply
no time to “fabricate or contrive” statements
spontaneously made during the excitement of an
event. For a statement to qualify as an
“excited utterance,” “there must be (1) a
sufficiently startling experience suspending
reflective thought and (2) a spontaneous
reaction, not one resulting from reflection or
fabrication.”
(citations omitted) (alteration in original).
“A trial court 'has broad discretion over the scope of cross-
examination' and its 'rulings regarding the scope of cross[-]
examination will not be held in error in the absence of a showing
that the verdict was improperly influenced by the limited scope of
the cross-examination.'”
State v. Johnson, 164 N.C. App. 1, 11,
595 S.E.2d 176, 182 (2004) (citation omitted). In the instantcase, Officer Sharp testified at trial that Miller was
“intoxicated” and “upset,” and that he did not take a written
statement from her but was able to “get an idea of . . . her
account[]” of the shootings. During
voir dire, Officer Sharp
testified that Miller changed part of her story while talking to
him, and when he asked her why she had two different stories,
Miller did not respond. Miller's statements regarding Hames'
possession of what appeared to be handgun as well as her statements
regarding the argument between defendant and Hames tend only to
corroborate testimony provided by defendant and Officer Sharp
during defendant's case-in-chief. In light of the foregoing, we
conclude that defendant has failed to demonstrate that the trial
court abused its discretion by not admitting Miller's statements.
Accordingly, we overrule defendant's second argument.
[3] Defendant's final argument is that the trial court erred
by entering judgment against him for both assault with a deadly
weapon inflicting serious injury upon Marzette and attempted
voluntary manslaughter of Marzette. Because we conclude that these
offenses are mutually exclusive, we order a new trial with respect
to the shooting of Marzette.
We note initially that N.C.R. App. P. 10(b)(1) (2005) provides
that “[i]n 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.” In the instant case, following thejury's verdicts, the State requested that the trial court sentence
defendant to concurrent forty-six to sixty-five month sentences for
attempted voluntary manslaughter of Marzette and assault with a
deadly weapon inflicting serious injury upon Marzette. Defendant
thereafter requested that “with regard to the two charges of
assault with a deadly weapon inflicting serious injury and
attempted voluntary manslaughter, since they arise out of the very
same conduct, . . . the Court particularly should consider
consolidation of those charges.” The trial court initially
addressed “the question of whether or not the Court should arrest
judgment on the attempted voluntary [manslaughter]” conviction by
noting that “the law is just evolving on that, but it would appear
that attempted voluntary [manslaughter] is an alter[n]ative theory
to [assault with a deadly weapon with intent to kill inflicting
serious injury].” Both parties thereafter provided argument to the
trial court on the issue, with defendant contending that concurrent
sentences for the two convictions created “a double jeopardy
problem” that required him to “request the Court not to sentence on
both.” Following argument from both parties, the trial court
determined that “it is not double jeopardy and the defendant could
be sentenced consecutively[,]” but “under the circumstances of this
case the Court in its discretion should run those [convictions'
sentences] concurrently.”
Defendant contends on appeal that the trial court erred by
failing to arrest judgment on either the attempted voluntary
manslaughter conviction or the assault with a deadly weaponinflicting serious injury conviction because the offenses are
mutually exclusive. However, we note that because defendant did
not assert this precise contention at trial, defendant's theory on
appeal does not reflect the same “specific grounds” as those
provided to the trial court, and therefore his argument seemingly
violates N.C.R. App. P. 10. Nevertheless, in our discretion
pursuant to N.C.R. App. P. 2 (2005), we have chosen to review
defendant's argument on appeal, and, as discussed below, we find it
persuasive.
The elements of assault with a deadly weapon with intent to
kill inflicting serious injury are: (1) an assault; (2) with a
deadly weapon; (3) an intent to kill; and (4) infliction of a
serious injury not resulting in death.
State v. Grigsby, 351 N.C.
454, 456, 526 S.E.2d 460, 462 (2000). “A specific intent to kill
is an essential element of assault with a deadly weapon with intent
to kill inflicting serious injury.”
State v. Daniel, 333 N.C. 756,
763, 429 S.E.2d 724, 729 (1993).
This Court has previously held that “attempted voluntary
manslaughter is (1) a crime in North Carolina, and, (2) a lesser-
included offense of attempted first-degree murder[.]”
State v.
Rainey, 154 N.C. App. 282, 283, 574 S.E.2d 25, 26,
disc. review
denied, 356 N.C. 621, 575 S.E.2d 520 (2002). Although voluntary
manslaughter had previously been considered a general intent crime,
s
ee State v. McCoy, 122 N.C. App. 482, 485, 470 S.E.2d 542, 544,
disc. review denied, 343 N.C. 755, 473 S.E.2d 622 (1996), in
Rainey, we recognized that “in North Carolina, heat of passionvoluntary manslaughter is essentially a first-degree murder, where
the defendant's reason is temporarily suspended by legally adequate
provocation.” 154 N.C. App. at 289, 574 S.E.2d at 29. Therefore,
we concluded that
[t]he specific intent to kill does exist in
the mind of [a defendant charged with
attempted voluntary manslaughter]; however,
the defendant is only legally culpable for the
general intent because the “specific intent”
is not based on “cool reflection.” The
specific intent is based on an “adequate
provocation” that would cause an individual
with an ordinary firmness of mind . . . to
commit an act spawned by provocation rather
than malice.
Id.
In the instant case, defendant was charged with assault with
a deadly weapon with intent to kill inflicting serious injury upon
Marzette, and attempted murder of Marzette. The jury subsequently
found defendant guilty of assault with a deadly weapon inflicting
serious injury and attempted voluntary manslaughter. Defendant
contends that the jury's determination that defendant did not
commit assault with a deadly weapon with intent to kill inflicting
serious injury upon Marzette excluded the possibility that
defendant committed attempted voluntary manslaughter against her.
We agree.
“Where several offenses charged allegedly arise from the same
transaction, and the offenses are mutually exclusive, a defendant
may not be convicted of more than one of the mutually exclusive
offenses.”
State v. Hall, 104 N.C. App. 375, 386, 410 S.E.2d 76,
82 (1991). In
State v. Speckman, 326 N.C. 576, 391 S.E.2d 165(1990), the defendant was convicted of one count of embezzlement
and one count of obtaining property by false pretenses, both of
which arose from a single transaction involving the sale of a
waterslide operation. On appeal, our Supreme Court noted that
because “property cannot be obtained simultaneously pursuant to
both lawful and unlawful means, guilt of either embezzlement or
false pretenses necessarily excludes guilt of the other.”
Id. at
578, 391 S.E.2d at 167. Therefore, the Court held that although it
was not improper for the State to bring both charges against the
defendant or for the trial court to submit both charges to the
jury, because the offenses were mutually exclusive, the trial court
was required to instruct the jury that it may convict the defendant
of only one of the offenses or the other, but not both.
Id. at
579, 391 S.E.2d at 167.
Similarly, in
Hall, defendants Hall and Shoats were charged
with three counts of conspiracy to traffick in cocaine, the first
count covering a period from 10 April 1989 through 15 April 1989,
the second count covering a period of 23 April 1989 through 31 May
1989, and the third count covering a period of 10 April 1989
through 31 May 1989. The jury convicted the defendants of each
charge. The trial court subsequently arrested judgment on the
third charge and sentenced the defendants for the remaining two
convictions. On appeal, this Court concluded that the three
offenses were mutually exclusive, in that the determination that
the defendants entered into one agreement to commit a series of
unlawful acts over a period of time was inconsistent with thedetermination that multiple agreements to commit the same series of
acts over the same period of time were also made. 104 N.C. App. at
386, 410 S.E.2d at 82. We noted that “either one agreement was
made or two agreements were made. Both views cannot exist at the
same time.”
Id. Accordingly, we vacated the defendants'
convictions on the separate offenses.
In the instant case, by finding defendant guilty of the
lesser-included offense of assault with a deadly weapon inflicting
serious injury, the jury necessarily found that defendant did not
have the “intent to kill” Marzette required to convict defendant of
the greater offense of assault with a deadly weapon with intent to
kill inflicting serious injury. However, by subsequently finding
defendant guilty of attempted voluntary manslaughter, the jury also
necessarily found that defendant
had the intent to kill Marzette,
but that “heat of passion, arising from sudden provocation,
negated
the element of malice and made [defendant's] mind incapable of
'cool' premeditation and deliberation.”
Rainey, 154 N.C. App. at
288, 574 S.E.2d at 29. These two verdicts are logically
inconsistent, in that defendant either did or did not have the
intent to kill Marzette when he shot her. Because “[b]oth views
cannot exist at the same time[,]”
Hall, 104 N.C. App. at 386, 410
S.E.2d at 82, we conclude that the trial court erred by entering
judgment on both convictions.
Although we note that the trial court imposed the same
sentence for both convictions and ordered that they run concurrent,
our courts have previously held that separate convictions formutually exclusive offenses, even though consolidated for a single
judgment, have potentially severe adverse collateral consequences.
See Ball v. United States, 470 U.S. 856, 865, 84 L. Ed. 2d 740, 748
(1985);
State v. Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119
(1989) (per curiam). Furthermore, “[w]here the trial court fails
to instruct the jury that it may convict the defendant of only one
of the mutually exclusive offenses, the jury returns guilty
verdicts on the mutually exclusive offenses, and the trial court
consolidates the offenses for a single judgment, the defendant is
entitled to a new trial.”
Hall, 104 N.C. App. at 387, 410 S.E.2d
at 82
(citing
Speckman, 326 N.C. at 580, 391 S.E.2d at 167-68).
Therefore, in light of the foregoing, we are compelled to hold that
the trial court's error in the instant case was not harmless, and,
accordingly, we order a new trial with respect to the shooting of
Marzette.
In conclusion, we hold that defendant received a trial free of
prejudicial error with respect to the voluntary manslaughter of
Hames. However, with respect to the shooting of Marzette, we order
a new trial.
No error in part; new trial in part.
Judges CALABRIA and GEER concur.
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