Converted WP file 040538-1

Appeal by defendant from judgment entered 3 October 2003 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 8 December 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Doan Van Nguyen, appeals his conviction for first degree murder of Tarandy Cutts. For the reasons discussed herein, we find no prejudicial error.
    The evidence at trial tended to show that around 9:00 p.m. on 17 June 2002, defendant, who was Vietnamese, was playing basketball on the outdoor courts at Walker-Spivey Elementary School with two other individuals, Bobby Nearn and Antonio Autry, both of whom were African-American. Around 9:30 p.m., the victim, Tarandy Cutts (Cutts), rode his bicycle onto the basketball courts. Defendant pulled a gun out and shot Cutts in the shoulder. Cutts turned to flee towards the school, but collapsed on the ground. Defendant pursued Cutts. When he reached the place where Cutts was lying, heshot Cutts four more times at close range. Ultimately, Cutts suffered five gunshot wounds from a .25 caliber semi-automatic handgun: three to the face and two to the right side of his body. The wound to his right underarm area was most likely fatal. It entered the victim's right armpit, passed through the right lung, aorta, and left lung, causing massive bleeding in the chest cavity.
    Two other witnesses to the murder, Carlton White and Lavale Vinyard lived at The Willows, a group home for troubled juveniles. The group home is located next to the basketball courts where the murder occurred. On the night of the shooting, White and Vinyard slipped out of the home and were walking towards the basketball courts when they saw defendant pull a gun from his clothes and shoot Cutts. After the first shot was fired, White started to run back toward the group home, but turned around to see what was happening, and Vinyard moved behind a tree to watch. They saw defendant shoot Cutts four more times. They testified that after defendant shot Cutts he just walked away. Following the shooting, White and Vinyard returned to the group home, where White told staff members that “a Chinese boy killed a black boy.” After Vinyard described the shooter as the “little short Asian boy that I had seen at the -- at the gym[,]” one of the staff members at the home, Ms. Denise, said that sounded like a young boy she knew named Don.
    One of the staff members called 911. At 9:37 p.m. on 17 June 2002, Officer Todd Justice of the Fayetteville Police Department received a dispatch regarding the shooting. Officer Justice firstwent to the basketball courts to see if he could locate the victim, but was unable to do so. The officer then went to the group home and spoke with White and Vinyard who told him what they had witnessed and stated the victim was actually lying in the parking lot of the elementary school rather than on the basketball courts. Vinyard accompanied Officer Justice back to the elementary school where the officer located Cutts, just as the boys had described. Cutts was dead by the time they arrived. The boys later went to the police station, gave a statement, and identified defendant as the shooter after viewing a photo line-up.
    Both Autry and Nearn testified they were walking off the courts when they heard the first shot come from behind them. They stated they did not see defendant with a gun or see him fire any shots. Nearn testified he did not know where defendant was when he heard the shots because he was running away from the courts.
    The State presented evidence as proof of defendant's motive that Cutts had harassed and intimidated defendant on several occasions. On one occasion, Jason McLeod, Jr., defendant's neighbor, testified that he witnessed Cutts choking defendant. Defendant acknowledged during his testimony that Cutts had left a bicycle at his friend's house and he used it to go to the store. When Cutts found out he got angry and put defendant in a choke hold. There was no scuffle as Cutts was 6'2" and 175 pounds, while defendant was 5'5" and 120 pounds. Cedric McKoy, also a friend and neighbor of defendant, testified that defendant told him Cutts had taken money from him and sought McKoy's help in getting it back. There was also testimony that Cutts had told defendant he did not want to see him walking on the streets in his neighborhood, and thereafter defendant had taken to cutting through his neighbors backyards to further avoid angering Cutts.
    Defendant testified on his own behalf. He denied shooting Cutts. Instead, he asserted it was Autry who shot Cutts.
    The jury found defendant guilty of first degree murder. The trial court sentenced defendant to life in prison without parole. Defendant appeals.
    I. N.C. Gen. Stat. § 15A-1233(a): Jury Requests to View     Evidence

    In defendant's first argument he contends the trial court violated the mandatory requirements of N.C. Gen. Stat. § 15A- 1233(a) when responding to the jury's request to review evidence during their deliberations, and is therefore entitled to a new trial. We hold that although the trial court erred, it was not prejudicial.
    N.C. Gen. Stat. § 15A-1233(a) provides:
        If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

N.C. Gen. Stat. § 15A-1233(a) (2004). More specifically, defendant contends the trial court violated N.C. Gen. Stat. § 15A-1233(a) intwo respects: (1) by failing to bring the jurors to the courtroom after they submitted two requests to review evidence, which was compounded by the trial court's failure to instruct the jury not to put undue influence on the evidence requested and to remember all the evidence presented at trial; and (2) by failing to affirmatively exercise its discretion in determining whether to permit the jury to have a portion of testimony which they requested read back to them. We address each of these arguments separately.
    We note that although defendant did not object at trial, “[a] lack of objection at trial does not bar a defendant's right to assign error to a judge's failure to comply with the mandates of Section 15A-1233(a)”. State v. Helms, 93 N.C. App. 394, 401, 378 S.E.2d 237, 241 (1989) (citing State v. Ashe, 314 N.C. 28, 40, 331 S.E.2d 652, 659 (1985)).
    A. Returning the Jury to the Courtroom
    N.C. Gen. Stat. § 15A-1233(a) imposes a duty upon the trial court to conduct all jurors to the courtroom when it receives a request from the jury to review the evidence and when it responds to that request. Ashe, 314 N.C. at 35, 331 S.E.2d at 657. On two separate occasions during its deliberations, the jury sent a note to the trial judge requesting to review certain items of evidence. Upon receipt of these notes, the trial judge consulted with counsel. On each occasion, both counsel consented to the judge sending the exhibits to the jury. In neither instance did the trial judge return the jury to the courtroom. Defendant further contends this error was compounded by the judge's failure toinstruct the jury not to put undue emphasis on the requested evidence, and to remember all the evidence presented during the trial.
    The trial judge erred by failing to return the jury to the courtroom as mandated by N.C. Gen. Stat. § 15A-1233(a). Even though the trial court erred, defendant is not automatically entitled to a new trial. See State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999). Since the trial court did not give any instructions to “'fewer than all jurors,' no constitutional violations exist.” Id. (citations omitted). Thus, in order for the defendant to receive to a new trial, he must show “there is a reasonable possibility that a different result would have been reached had the trial court's error not occurred.” Id.
    The State, defense counsel, and the trial judge were all in agreement that the jury could view the requested items. Furthermore, the trial court corrected any possible prejudice which may have resulted from its failure to instruct the jury to remember and consider the rest of the evidence when it gave such an instruction following the jury's third request to review the evidence prior to the jury returning its verdict. Defendant has failed to meet his burden demonstrating he was prejudiced as a result of the trial court's failure to follow the requirements of N.C. Gen. Stat. § 15A-1233(a). This argument is without merit.
    B. Trial Court's Exercise of Discretion
    N.C. Gen. Stat. § 15A-1233(a) also imposes a duty upon the trial court to exercise its discretion in determining whether topermit requested evidence to be read to the jury. Ashe, 314 N.C. at 34, 331 S.E.2d at 656. In the instant case, during its deliberations, the jury requested that the testimony of White and Vinyard, the group home boys who witnessed the murder, be read back to them. The trial judge denied the request, stating:
        I'm not going to be able to do that for the following reason. It's -- the jury is under an obligation to remember and recall all the evidence and all the testimony that has been given at trial. I'm just not able to have a portion of the testimony read back to you. It's your duty to recollect that and to determine what that means.
Defendant contends this statement by the trial court demonstrates that it failed to affirmatively exercise its discretion as required by statute, and therefore he is entitled to a new trial. We disagree.
    In analyzing whether the trial court exercised its discretion in refusing to allow the requested evidence to be read to the jury, we do not review any statement made in isolation. Rather, we look to the entire instruction given to the jury. See e.g. State v. Fullwood, 343 N.C. 725, 743, 472 S.E.2d 883, 892 (1996) (reviewing the transcript and the record in concluding the trial court exercised its discretion in denying the jury's request to review a transcript of a witness' testimony even where the trial court stated it could not grant their request because the court reporter had left). Furthermore, the appellate courts have found that an accompanying instruction from the trial court specifying the jury's duty to remember all evidence indicates the trial court exercised its discretion. In State v. Harden, our Supreme Court held thetrial court's instruction that the jurors rely upon their individual and collective memory of the testimony indicated the trial judge exercised his discretion as required by N.C. Gen. Stat. § 15A-1233(a). 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996).
    In the instant case, when the trial court advised the jury it was denying their request to review the testimony of White and Vinyard, the judge explained he was denying the request because the jury had a duty to recollect and consider all the evidence and testimony given at trial. In light of controlling case law and after reading the entire instruction given to the jury, we hold the trial court did exercise its discretion in denying the jurors request as required by N.C. Gen. Stat. § 15A-1233(a).
    Since a trial court's ruling under N.C. Gen. Stat. § 15A-1233 is within the court's discretion, we review the decision applying an abuse of discretion standard, i.e., “whether the ruling 'was so arbitrary that it could not have been the result of a reasoned decision.'” State v. Perez, 135 N.C. App. 543, 555, 522 S.E.2d 102, 110 (1999) (citations omitted). After careful review, we discern no abuse of discretion in the trial court's denial of the jury's request that certain testimony be read back to them. This argument is without merit.
    II. Hearsay Testimony
    In defendant's second argument he contends the trial court committed reversible error by admitting hearsay evidence from two witnesses regarding the victim's alleged threats and intimidation of defendant. We disagree.    Defendant first contends the trial court erred by permitting the State to impeach Cedric McKoy with Detective Mike Murphy's testimony. Defendant asserts Detective Murphy's testimony was extrinsic evidence of a collateral matter, and as such was inadmissible hearsay. We disagree.
    Rule 607 of the Rules of Evidence permits a party to impeach its own witness regarding a material matter with a prior inconsistent statement. State v. Riccard, 142 N.C. App. 298, 302, 542 S.E.2d 320, 322 (2001), cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001) (citing State v. Whitley, 311 N.C. 656, 663, 319 S.E.2d 584, 589 (1984)). “Where the witness admits having made the prior statement, impeachment by that statement has been held to be permissible.” Id. at 303, 542 S.E.2d at 322. Likewise, where the witness testifies and “denies having made certain parts of a prior statement . . . our courts have allowed the witness to be impeached with the prior inconsistent statement.” Id. at 303, 542 S.E.2d at 323. In Riccard, this Court held the trial court did not err in permitting the State to impeach two witnesses where they each admitted to making the prior statement and asserted that certain parts of those statements were inaccurate, as this constituted a material, not collateral matter. Id. at 304, 542 S.E.2d at 323.
    At trial, McKoy admitted giving a statement to Detective Murphy. However, McKoy denied ever telling the detective that defendant and Cutts were not friends or about several incidents when Cutts harassed defendant. Under our case law, permitting Detective Murphy to testify regarding McKoy's statements to him forimpeachment purposes was proper, as it involved a material matter. Therefore, the trial court did not err.
    There is, however, one caveat to Rule 607. The use of the prior inconsistent statement is impermissible where the party's stated purpose of impeachment is merely a pretext to get evidence before the jury which would otherwise be inadmissible. State v. Hunt, 324 N.C. 343, 349-51, 378 S.E.2d 754, 757-58 (1989). Where the trial court follows the introduction of the testimony concerning the prior inconsistent statement with an effective limiting instruction, this is indicative that the party impeaching the witness acted in good faith and without subterfuge. Id. at 350, 378 S.E.2d at 758.
    In this case, the transcript indicates good faith and the absence of subterfuge. After overruling defense counsel's objection to the admissibility of the impeachment evidence, the trial court stated it would be give a limiting instruction, and thereafter gave such an instruction without objection from defense counsel. We are unable to say the State's impeachment of McKoy was used as a mere subterfuge to get evidence before the jury which would otherwise have been inadmissible. This argument is without merit.
    Next, defendant contends the trial court erred by permitting Detective Murphy to read to the jury Nearn's statement made on 20 June 2002, as well as admitting the statement into evidence. Defendant asserts the statement was based on hearsay and therefore, inadmissible. We disagree.     It is well established that “'[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness whether or not the witness has been impeached,' even though the statement was hearsay.” State v. Walters, 357 N.C. 68, 88-89, 588 S.E.2d 344, 356, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003) (citations omitted). To be admissible as corroborative evidence, a witness' prior consistent statement need only tend to add to the weight or credibility of the witness' testimony. Id. at 89, 588 S.E.2d at 356. Such statement is still admissible as corroborative evidence even if it contains new or additional facts, when those facts “'tend[] to strengthen and add credibility to the testimony which it corroborates.'” Id. (citations omitted). Furthermore, where the witness' prior statement is generally consistent with the their testimony, slight variations do not make the statement inadmissible, as those variations only go to the credibility of the witness and the statement. Id. at 89, 588 S.E.2d at 356-57.
    Nearn gave a pretrial statement to Detective Murphy in which he stated defendant had been afraid of Cutts, he was tired of Cutts “messing with him,” and that “because Don was afraid of Tarandy he started cutting between houses to go to the basketball court instead of walking down Wright Street.” Nearn testified to substantially the same things at trial, although he admitted he never heard anything directly, but had heard about the threats from people in the neighborhood. Nearn also testified that it appeared from defendant's behavior that he was afraid of Cutts. Thus, itwas proper for the trial court to admit the statement to corroborate Nearn's testimony. Any variation between the statement and Nearn's testimony goes to his credibility and not to admissibility. Id. at 89, 588 S.E.2d at 357.
    Even assuming arguendo that the trial court erred concerning the admissibility of Nearn's prior statement, there is no reasonable possibility that absent the error, the jury probably would have reached a different verdict. N.C. Gen. Stat. § 15A- 1443(a). Two disinterested eye-witnesses testified they saw defendant shoot Cutts, and defendant testified he had a physical confrontation with defendant and was intimidated by him. Defendant has failed to meet his burden under N.C. Gen. Stat. § 15A-1443(a).
    Defendant failed to argue his remaining assignments of error in his brief to this Court. They are deemed abandoned. N.C. R. App. P. 28(b)(6).
    For the reasons stated herein, we conclude defendant received a fair trial, free from prejudicial error.
    NO PREJUDICIAL ERROR.
    Judges TIMMONS-GOODSON and HUDSON concur.

Report per Rule 30(e).

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