STATE OF NORTH CAROLINA
v
.
Guilford County
No. 01 CRS 106779
REGINALD COREY GRAY,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Rudolf, Widenhouse and Fialko, by M. Gordon Widenhouse, Jr.,
for defendant-appellant.
HUDSON, Judge.
Defendant Reginald Corey Gray was indicted for first-degree
murder. A death-qualified jury convicted him at the 17 February
2003 Criminal Session of the Superior Court in Guilford County.
The court sentenced defendant to life in prison without parole.
Defendant appeals. For the reasons discussed below, we conclude
there was no error.
The evidence tended to show that, on 16 December 2001, police
found the body of Andre Davis in the road at the scene of a
shooting. Police located three .45 caliber shell casings and
several bullet fragments at the scene, but no guns. Among the
large number of people at the scene were Delathian Andre Zimmerman(“Zimmerman”), Edward Thompson (“Thompson”), Joshua Gillespie
(“Gillespie”), Garcellas Keith Goode (“Goode”), and Farone Horne
(“Horne”), collectively (“the witnesses”), who had been playing
basketball nearby with the victim. The witnesses testified that
they saw defendant drive into the neighborhood during the
basketball game. As defendant approached his uncle's house, Davis
called out to him asking when the two were going to fight. Davis
started toward defendant, but others held him back as the two
exchanged angry words. Davis asked defendant, “Can I get my one?”
The witnesses testified that this meant Davis wanted a fair fight
with defendant. The basketball game resumed when defendant entered
his uncle's house. Defendant later drove away.
An hour or more later, defendant came back with several people
in his car. He got out of the car with a gun in his hand, but then
put it away and told Davis they could settle things without it.
Defendant and Davis began to fight with Davis slamming defendant to
the ground, pinning him down and hitting him several times. Davis
then choked defendant, who was bleeding badly from cuts to his lip,
nose and eye. Two men dragged Davis off defendant and restrained
him.
Defendant then told Davis he was getting his gun, and Davis
responded, “So it's going to be like that” and ran into his house.
At least one of the witnesses testified that Davis said he was
going to get his own gun. Meanwhile, defendant had gotten his gun
from the car. When Davis emerged from his house and ran toward his
car, defendant came up on the other side of the car and fired atDavis. The first shot struck Davis in the back and he fell to the
ground. Defendant continued walking toward Davis and shot him
three or four more times. Defendant then got back into his car and
left the scene. An inmate who had been incarcerated with defendant
testified that defendant killed Davis for disrespecting him.
Defendant first argues that the court erred by allowing the
victim's statements about an earlier incident involving defendant.
We do not agree.
Zimmerman, one of the witnesses to the killing and a good
friend of Davis', testified that a week before these events Davis
told him that defendant and another man had “tried to jump him” at
a local store. Witness Horne gave similar testimony. Defendant
argues in his brief that this testimony related only facts and did
not fall under the Rule 803(3) hearsay exception for declarations
of then-existing mental or emotional condition. N.C. Gen. Stat. §
8C-1, Rule 803 (3) (2001). However, defendant's assignment of
error refers only to Zimmerman's testimony, not Horne's. Further,
defendant failed to specify a constitutional basis for his
objection to Zimmerman's testimony at trial. “It is well settled
that constitutional matters that are not 'raised and passed upon'
at trial will not be reviewed for the first time on appeal.” State
v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004), cert.
denied, __U.S.__, __ L.Ed.2d __ (2005); N.C. R. App. P.
10(b)(1)(“In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion . . .”). Because he failed to preserve thealleged constitutional error at trial, defendant is precluded from
raising this issue here.
However, defendant did not argue at trial that Zimmerman's
testimony fell outside the hearsay exception for then-existing
mental or emotional condition, though he did refer to the pertinent
rule. The transcript reveals the following exchange at the pages
noted in the assignment of error:
Q. And what did Andre Davis say to you concerning any
feelings or bad blood between he (sic) and the
defendant, Reginald Gray?
MR. WANNAMAKER: Object to this, if your Honor
please.
MR. CARROLL: 803(3).
THE COURT: Overruled. You may answer.
A. Uh, he had told me a couple, like, I think a week
ago, that him and another guy tried to jump him up
at Frank's.
MR. WANNAMAKER: Objection. I'd like to be heard,
if your honor please.
THE COURT: Overruled.
It is clear from the question that the answer sought was directed
to the emotional content of any statement, and that the example was
the witness's attempt to describe the “bad blood” between Davis and
defendant. We conclude that the objection was properly overruled.
Defendant next argues that the court erred in denying his
request for an instruction specifically defining provocation as
negating malice. We disagree.
Defendant contends that the evidence tended to show that Davis
started the fight which led defendant to shoot him. Based on thisevidence, defendant requested a jury instruction defining adequate
provocation that negates malice and reduces murder to manslaughter.
A killing “committed in the heat of passion suddenly aroused by
adequate provocation, or in the imperfect exercise of the right of
self-defense, is voluntary manslaughter.” State v. Ray, 299 N.C.
151, 158, 261 S.E.2d 789, 794 (1980). The level of provocation
which negates malice and reduces murder to voluntary manslaughter
“must ordinarily amount to an assault or threatened assault by the
victim against the perpetrator.” State v. Watson, 338 N.C. 168,
176, 449 S.E.2d 694, 700, reconsideration denied, stay denied, 338
N.C. 523, 457 S.E.2d 302 (1994). “[T]he trial court must correctly
declare and explain the law as it relates to the evidence.” State
v. Watson, 80 N.C. App. 103, 106, 341 S.E.2d 366, 369 (1986)
(emphasis omitted). “The failure of the court . . . to correctly
instruct the jury on substantial features of the case arising on
the evidence [is] error for which defendant is entitled to a new
trial.” Id.
Here, the court did not give the specific instruction about
provocation requested by defendant, but it did define voluntary
manslaughter and define provocation in that context. It is well-
established that the court need not give the exact words of a
properly requested instruction, as long as it gives the instruction
in substance. State v. McNeill, 346 N.C. 233, 239, 485 S.E.2d 284,
288 (1997), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998).
Here we conclude the court did just that and we overrule this
assignment of error. Defendant next argues that the court erred in refusing to
directly answer the jury's question about whether adequate
provocation negates malice in first-degree murder. We disagree.
Because defendant conceded guilt of voluntary manslaughter,
and only contested the first-degree murder charge on the grounds of
heat of passion and provocation, both malice and provocation were
key issues before the jury. During its three days of deliberation,
the jury made several inquiries about malice. Just before
retiring, the jury foreman asked whether they would be given a
sheet with the instructions for the various charges. The judge
answered this question no, but did repeat the instructions in their
entirety, for first- and second-degree murder, and for voluntary
manslaughter. The jury later asked, in writing, “Could we rehear
the definition for malice under first degree murder?” The court
once again gave the entire instruction to the jury. As the court
gave the definition of malice in first-degree murder, a juror asked
him to repeat that portion again and the court did so. After
further deliberations, the jury sent another written question:
“Should adequate provocation, 'Assault or threat of Assault,'
cancel malice in 1st degree murder as it does in voluntary
manslaughter?” The court told the jury that its question was not
clear and asked them to rephrase it. The jury did so and submitted
to the court, in writing, the question, “Does adequate provocation
negate malice in first degree murder?” Defendant asked the court
to answer this question in the affirmative. The court declined toanswer the question directly, but did repeat again the entire
instruction.
“It is the duty of the trial judge to declare and explain the
law arising on the evidence relating to each substantial feature of
the case.” State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249,
252 (1983) (internal quotation marks omitted). Here, the court
correctly stated the law to the jury in response to its questions.
In Hockett, the court refused to respond at all to the jury's
question and our Supreme Court held that “the trial court should
have at least reviewed the elements of the offenses if it was not
going to directly answer the question as defense counsel had
requested.” Id. at 802, 309 S.E.2d at 253. Defendant contends
that this language from Hockett supports his argument that after
the court had already repeated the instructions three times, it was
obligated to provide a more specific answer to the jury's final
question.
The Court in Hockett held that giving no answer to a jury's
question was error. However, it implied that repeating certain
instructions, as the court did here, might have been a sufficient
response. The trial court in Hockett had not done so. Because we
find no case in our State requiring the trial court to answer a
jury question as defendant argues here, we conclude that this
response was adequate.
No error.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).
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