An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-29


Filed: 4 October 2005


         v.                        Lee County
                                Nos. 03CRS050661, 000775

    Appeal by defendant from judgments entered 21 July 2004 by Judge Franklin F. Lanier in Lee County Superior Court. Heard in the Court of Appeals 19 September 2005.

    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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