STATE OF NORTH CAROLINA
v. Lee County
Nos. 03CRS050661, 000775
JESSE LEVENDER JOHNSON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Ashby T. Ray, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
HUNTER, Judge.
On 31 March 2003, the Lee County grand jury indicted defendant
on charges of attempted murder and of assault with a deadly weapon
with intent to kill inflicting serious injury. For the reasons
stated herein, we find no error.
At trial beginning on 19 July 2004, the State presented
evidence tending to show the following: On the morning of 14
February 2003, Keith Bernard Thompson (“the victim”) stepped out of
his house and started his car so that it could be warming up. As
he turned to his left to exit his car, the victim felt a gun
pressed against his head. The victim testified that he saw Jesse
Levender Johnson (“defendant”) pull the trigger and shoot himbetween the eyes. After watching defendant run up the street, the
victim walked to a neighbor's home which was about a block or two
away. According to police records, the neighbor reported the
shooting at 6:16 a.m.
Patrolman Shawn Murphy arrived at 6:22 a.m. and spoke with the
victim briefly before the victim was transported to the hospital.
He also spoke with a second neighbor who recalled seeing a smaller
reddish car between 6:00 a.m. and 6:30 a.m. that morning which was
parked in an alleyway that connects with the victim's street. No
one was in the car at that time, but the neighbor noticed
approximately fifteen minutes later that the car was gone.
Detective Keith Rogers (“Detective Rogers”) interviewed the
victim that evening at the hospital, and the victim identified
defendant as the man who shot him. The next morning, Detective
Rogers interviewed defendant about the shooting. After signing a
rights waiver, defendant answered questions for Detective Rogers.
Defendant related that he left home and headed for the Pantry
located at Carthage and Wicker Street at approximately 6:00 a.m. on
14 February 2003. He was driving his mother's red Chevrolet
Corsica. Upon realizing that he had forgotten his wallet,
defendant returned home for it. Defendant then drove to the
Pantry, purchased a newspaper, and spoke with a store clerk.
The Pantry's security videotape showed defendant arriving at
the store at 6:35 a.m. Detective Rogers testified that relative to
the police dispatch clock, defendant's arrival time was 6:29 a.m.
After leaving the Pantry, defendant purchased food at Biscuitvilleand returned home by 7:00 a.m. Defendant allowed himself to be
photographed for a photographic array after Detective Rogers
finished questioning him. Officers did not find a gun or any
blood-stained clothes in a search of defendant's home.
Detective Rogers testified there was another Pantry which was
closer to defendant's home than the one located at Carthage and
Wicker Street. Between the hours of 6:00 a.m. and 7:00 a.m. on 29
April 2004, Detective Rogers drove from the alleyway near the
victim's home to the Pantry at Carthage and Wicker Street along
three different routes. After driving each of those routes at the
posted speed limit, he observed that the shortest time for the trip
was six minutes and fifty-four seconds and that the longest time
was eight minutes and ten seconds. Defendant objected to this
testimony as being speculative, but the trial court overruled his
objection. At the close of the State's evidence, defendant moved
to dismiss the charges due to insufficiency of the evidence. The
trial court denied the motion.
Defendant testified as to his whereabouts at the time of the
shooting. He awoke around 6:00 a.m., got dressed in three or four
minutes, and left for the Pantry in his mother's car.
Approximately halfway there, he realized that he did not have any
money and returned home for his wallet. After getting his wallet,
defendant left again for the Pantry. He purchased a newspaper,
spoke with the store clerk, and then went to Biscuitville.
Defendant purchased food for himself and his mother, and he
returned home by 7:00 a.m. He denied shooting the victim. At the close of all the evidence, defendant renewed his
earlier motion to dismiss the charges due to insufficiency of the
evidence. The trial court denied the motion, and it then conducted
the charge conference. Defense counsel requested an instruction on
alibi and argued that the evidence of defendant's presence at the
Pantry at 6:30 a.m. “leads to a possibility that he was on that
side of town when this happened on the other side of town . . . .”
In opposing the requested alibi instruction, the State argued
that defendant's presence at the Pantry did not exclude his
presence at the crime scene earlier. The State noted that the
perpetrator was gone from the crime scene by 6:16 a.m., that
defendant arrived at the Pantry fourteen minutes later, and that
the slowest of the three routes taken by Detective Rogers from the
crime scene to the Pantry only required eight minutes and ten
seconds of driving time.
After inquiring of the State whether defendant had given
notice of an alibi defense, the trial court stated that “in its
discretion, [the court] is not going to give the alibi
instruction[]” and denied defense counsel's requested instruction.
At the conclusion of the trial court's instructions, the jury
retired to deliberate and subsequently returned verdicts of guilty
for attempted murder and for assault with a deadly weapon with
intent to kill inflicting serious injury. The trial court then
imposed consecutive sentences with combined terms of 289 months to
365 months imprisonment. From the trial court's judgments,
defendant appeals. Defendant contends the trial court erred by overruling his
objections to Detective Rogers' testimony about the time required
to travel from the scene of the crime to the Pantry. He argues the
testimony was irrelevant and speculative because there was no
evidence that he actually traveled any of the three routes later
taken by Detective Rogers. Defendant's argument is not persuasive.
As a lay witness, Rule 701 of the North Carolina Rules of
Evidence governs the admissibility of Detective Rogers' testimony.
If the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C.R. Evid. 701. “[I]n a criminal case every circumstance
calculated to throw any light upon the supposed crime is
admissible[.]” State v. Collins, 335 N.C. 729, 735, 440 S.E.2d
559, 562 (1994). “[E]ven though a trial court's rulings on
relevancy technically are not discretionary and therefore are not
reviewed under the abuse of discretion standard applicable to Rule
403, such rulings are given great deference on appeal.” State v.
Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).
Detective Rogers' testimony as to the time required to travel from
the crime scene to the Pantry was based upon first-hand
observations. Those observations were helpful to a determination
of a fact in issue -- that being whether defendant could have shot
the victim and still arrive at the Pantry within the time frame of
6:16 a.m. and 6:29 a.m. See State v. Friend, 164 N.C. App. 430,437, 596 S.E.2d 275, 281 (2004). Accordingly, the trial court did
not err by overruling defendant's objection to Detective Rogers'
testimony.
Defendant also contends the trial court erred by denying his
requested jury instruction on alibi. He argues that he was not
required to give the State notice of his alibi defense and that the
trial court had no discretion to refuse his requested instruction.
Defendant's argument is not persuasive.
“An alibi is simply a defendant's plea or assertion that at
the time the crime charged was perpetrated he was at another place
and therefore could not have committed the crime.” State v. Hunt,
283 N.C. 617, 619, 197 S.E.2d 513, 515 (1973). If a defendant
requests an alibi instruction and evidence has been introduced
tending to show that the accused was “at some other specified place
at the time the crime was committed,” the trial court must instruct
the jury on alibi. State v. Waddell, 289 N.C. 19, 33, 220 S.E.2d
293, 303 (1975), vacated in part, 428 U.S. 904, 49 L. Ed. 2d 1210
(1976). But when the evidence “does not reasonably exclude the
possibility of the presence of defendant at the scene of the
alleged crime, it is not error to fail to instruct the jury on the
law of alibi.” State v. Green, 268 N.C. 690, 692, 151 S.E.2d 606,
608 (1966). For a defendant to be entitled to “a charge on
alibi[,] there must be evidence that at the time the crime was
committed he was at a particular place which would make it
impossible for him to have committed the crime.” State v.
McLawhorn, 270 N.C. 622, 630, 155 S.E.2d 198, 204 (1967). Although the State introduced a videotape which tended to show
that defendant was at the Pantry at 6:29 a.m. on the morning that
the victim was shot, Detective Rogers' testimony as to the travel
time to the Pantry eliminated the impossibility of defendant having
committed the crime. See Green, 268 N.C. at 692, 151 S.E.2d at
608. The trial court therefore did not err by denying defendant's
requested instruction on alibi. Defendant received a fair trial,
free from prejudicial error.
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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