An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-478


Filed: 5 April 2005


v .                         Guilford County
                            No. 01 CRS 106779

    Appeal by defendant from judgment entered 10 March 2003 by Judge James M. Webb in the Superior Court in Guilford County. Heard in the Court of Appeals 8 December 2004.

    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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