An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
STATE OF NORTH CAROLINA
Nos. 01 CRS 059967
OMEAKO LAVON BRISBON 01 CRS 059968
Appeal by defendant from judgments entered 12 February 2004 by
Judge G.K. Butterfield in Cumberland County Superior Court. Heard
in the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
Omeako Lavon Brisbon (defendant) appeals from judgment
entered after a jury found him to be guilty of two counts of first-
degree murder. We find no error.
Sometime between 2:00 and 2:30 a.m. on 6 August 2001, brothers
Johnny Jones (Johnny) and Jermaine Jones (Jermaine) were shot
and killed in the parking lot of a crowded nightclub called The
Zoo on Bragg Boulevard in Fayetteville.
A. State's Evidence
The State presented evidence from eighteen witnesses, two of
whom identified defendant as the perpetrator.
1. Officer Jennifer Geisinger
On the night of the shootings, Fayetteville Police Officer
Jennifer Geisinger (Officer Geisinger) was dispatched to the
Sycamore Square Shopping Center in response to noise complaints
outside The Zoo. Officer Geisinger heard gunshots fired when she
was working with other officers to get patrons of The Zoo off the
street and into the nightclub. She approached the area where the
shots had been fired and found Jermaine alive with a gunshot wound
in his chest. She then located Johnny who was dead.
2. Officer Shawn Arnold
Officer Shawn Arnold (Officer Arnold) was also dispatched to
the Sycamore Square Shopping Center on the night of the shootings.
Officer Arnold secured the area where Jermaine had been shot.
3. Detective Chris Oldacre
Fayetteville Police Detective Chris Oldacre (Detective
Oldacre) evaluated the scene where Jermaine and Johnny had been
shot. He discovered: (1) the vehicle parked near Jermaine's body
had its passenger's side window shattered; (2) the vehicle's left
front tire was flat and he observed damage near the rear window as
if a bullet had ricocheted off of it; and (3) nine spent 0.40
caliber shell casings on the ground near the vehicle.
4. Synthia Alexander
In the early hours on 6 August 2001, Cumberland County EMS
Paramedic Synthia Alexander (Alexander) was dispatched to the
scene where both Jermaine and Johnny had been shot. Alexander made
contact with Jermaine while he was still alive. Jermaine had
suffered three gunshot wounds. She transferred Jermaine to CapeFear Valley Hospital Emergency Department. Jermaine was alive upon
5. Officer Joseph Delpizzo
On 6 August 2001, Fayetteville Police Officer Joseph Delpizzo
(Officer Delpizzo) assisted Sergeant Oakes with a vehicle stop
near Bragg Boulevard. Sergeant Oakes had stopped a gray Toyota
Corolla at 2:35 a.m. Officer Delpizzo arrived at the scene shortly
after Sergeant Oakes made the stop. Three females and one male
were seated inside the car. The females were identified as Rakesha
Johnson (Johnson), April Horne (Horne), and Rachel Gonzalez
(Gonzalez). The male was identified as Kareem Wilson (Wilson).
Sergeant Oakes determined that none of these individuals were
involved in the shootings near the Zoo.
6. Rakesha Johnson
On the night of 6 August 2001, Johnson attempted to enter The
Zoo with her friends Horne, Gonzalez, and boyfriend Wilson. After
being denied entry into the nightclub, the group of four hung out
in the Popeye's Restaurant parking lot, which is located within
walking distance of The Zoo. The group remained there for
approximately ten minutes.
They heard gunshots before they got into their car and quickly
left. Johnson testified that when the police stopped them, she was
driving Wilson home. She testified that after the police officers
released her, she drove Horne home, then Gonzalez, and then Wilson.
After leaving Wilson, she drove home. The police went to Johnson's home the evening after the
shootings to question her. Johnson maintained that she did not
know who had fired the shots. She also testified that she does not
know defendant and has never seen him before.
7. Kareem Wilson
Wilson testified he did not know defendant personally,
although he had seen him before. On the night of the shootings,
Wilson testified he saw defendant walk pass him and begin to talk
to two men with his hands raised in the air. Wilson then heard six
or seven gunshots. While he was getting into the car, Wilson
observed defendant running towards a brick building. Wilson also
testified he saw one of the men defendant had been speaking with
run by him.
One week after the shootings, police questioned Wilson about
the murders. Wilson told the officers that sometime after 6 August
2001 he saw defendant in Wilson's grandmother's yard wearing a
8. April Horne
Horne does not know defendant personally but knows of him.
Horne testified that after the police released them following the
vehicle stop, they went to Wilson's grandmother's house where she
saw defendant speaking with Gonzalez. Horne did not speak with
defendant. A few days after the shootings, police asked Horne to
identify defendant in a photographic lineup. Horne identified
defendant as the same man she saw outside of Wilson's grandmother's
house after the shootings.
9. Rachel Gonzalez
Gonzalez had met defendant two or three times prior to 6
August 2001. Gonzalez testified that on the night of the shootings
she, Horne, Johnson, and Wilson were parked in the Popeye's parking
lot when defendant drove his Green Chevrolet in front of their car
to talk to them. According to Gonzalez, a man bumped into
defendant, and he shot the man in the torso. Another man ran
around the front of the building. Gonzalez heard gunshots, but did
not see defendant. She testified defendant attempted to give
Wilson his gun, but Wilson refused to take it.
Gonzalez testified that when they left the scene of the
shootings, they were on their way to drop Wilson off at defendant's
house. When they reached defendant's house, defendant was on the
telephone. Gonzalez testified that she heard defendant say he had
killed two people. Defendant spoke to Gonzalez at his house to
find out if she planned to tell what she had seen. Gonzalez told
defendant she would stay out of it.
10. Detective Michael Murphy
Fayetteville Police Detective Michael Murphy (Detective
Murphy) helped Officer Hendrickson and Sergeant Oakes evaluate the
crime scene. Detective Murphy found a blue bandanna in Johnny's
rear pants' pocket. He interviewed the four witnesses located in
the grey Toyota Corolla, Johnson, Wilson, Horne, and Gonzalez a few
days after the murders.
11. Detective Jeffrey Houston
Fayetteville Police Detective Jeffrey Houston (Detective
Houston) interviewed Johnson, Wilson, Horne, and Gonzalez with
Detective Murphy. When he began to look for Wilson at the address
he had been given, he did not find Wilson there but found
defendant. Detective Houston questioned defendant, who stated he
had remained at home the night of the murders because he was
scheduled to have surgery the following morning. Defendant gave
Detective Houston the names of several people who were with him at
his home on the night of 6 August 2001. Detective Houston noticed
that defendant wore a cast on his arm.
Following this initial interview, Detective Houston attempted
unsuccessfully to serve several warrants on defendant. In October
2001, the U.S. Marshal's service contacted Detective Houston and
told him where defendant was located. Defendant was taken into
custody by the Raleigh Police and the Federal Bureau of Alcohol,
Tobacco, and Firearms.
Defendant was read and waived his Miranda rights. He agreed
to talk to Detective Houston without an attorney present.
Defendant told Detective Houston that he was at home the evening of
the murders. Defendant said a man named Jamal approached him and
gave him $150.00 dollars and a gun to protect himself in case the
victims' family members attempted to harm him.
Detective Houston said the .40 caliber shell casings were
never sent to the SBI to be tested for fingerprints. He testified
that in the past he had never been able to recover fingerprints off
of a casing fired from a semi-automatic weapon.
12. Doctor Kenneth Lidonnici
Doctor Kenneth Lidonnici (Dr. Lidonnici) is a pathologist
and licensed as a medical doctor by the State of North Carolina for
nearly ten years. Dr. Lidonnici performed the autopsies on both
Johnny and Jermaine's bodies. He concluded that both had died from
gunshot wounds. Dr. Lidonnici also concluded the victims were shot
with two different kinds of bullets. Johnny was shot with a copper
coated bullet called a full metal jacket. Jermaine was shot with
a hollow point bullet. Dr. Lidonnici testified that Johnny's
wound would have been fatal immediately.
13. Detective Eugene Bishop
Cumberland County Sheriff's Detective Eugene Bishop is a
forensic firearms examiner. He examined the nine shell casings
taken from the scene and concluded: (1) all casings were fired
from the same gun; (2) the gun casings were fired from a Glock or
a Smith & Wesson Sigma hand gun; and (3) the bullets that were
recovered from Jermaine and Johnny's bodies were .40 caliber
B. Defendant's Evidence
Defendant presented evidence from six witnesses, three of whom
testified that he was at his home hosting a cook-out on the night
of the murders. Defendant did not testify.
1. Cynthia Monroe
Cynthia Monroe (Monroe) is a student at Winston-Salem State
University. Monroe testified that on 5 August 2001 at about 3:00
or 4:00 p.m. she went to defendant's house with her friend, ShamekaBest (Best), to attend a cook-out. She testified that she stayed
with defendant in the backroom of his house between 11:00 p.m. and
12:00 a.m. until 2:00 a.m. Monroe testified defendant never left
the house that night. At one point during the evening, a car
approached the house with two females inside. Monroe testified
that defendant and his friend went to talk to them, but defendant
2. Shameka Best
Best is also a student at Winston-Salem State University.
Best testified that she and Monroe arrived at defendant's house
sometime between 5:00 p.m. and 6:30 p.m. and left around 2:00 or
2:30 a.m. on 6 August 2001.
3. James Ross
James Ross (Ross) testified he was present at defendant's
house when the shootings occurred. Ross arrived at defendant's
house between 4:00 p.m. and 6:00 p.m. to attend the cook-out. Ross
stayed over night at defendant's house and drove defendant to his
doctor's appointment the next morning. Ross testified that he and
defendant had consumed alcohol that evening and neither were in any
shape to drive a vehicle. Ross testified that defendant did not
leave his house the entire evening. Ross admitted he fell asleep
around 2:00 a.m.
4. Mary Lee Scott
Mary Lee Scott (Scott) is an employee of Krispy Kreme Donuts
on Bragg Boulevard. On the night of the shootings, Scott
supervised the midnight shift at Krispy Kreme. When the shootingsoccurred, Scott was sitting outside of the Krispy Kreme building on
a bench. From where she was sitting, she could see a Popeye's
Restaurant next door. Scott testified that she heard four or five
gunshots and saw a car speed away. She did not see who did the
shootings but believed the gunshots came from the car that sped
5. Donna Livero
Donna Livero (Livero) is also an employee of Krispy Kreme
Donuts on Bragg Boulevard. She was located outside of the building
with Scott when the shootings occurred. Livero saw a car arrive in
front of the Popeye's Restaurant. Livero testified she heard five
gunshots and saw the car speed away. She did not see any guns
protruding from the car or anyone shoot a gun.
6. LaTonya Brown
LaTonya Brown (Brown) was present at The Zoo on the night
the shootings occurred. One of her friends, who was also present
at The Zoo, knew the victims. Brown testified that she saw people
standing in the parking lot talking and then heard gunshots.
Defendant was found to be guilty of two counts of first-degree
murder. He was sentenced to life imprisonment without parole.
Defendant argues the trial court: (1) erred by providing the
State unsolicited advice on how to secure the attendance of the
State's most important witness; (2) erred by failing to dismiss the
charges against him because the testimony of the only witness whoidentified him as the perpetrator conflicted with indisputable
physical facts and was inherently incredible as a matter of law;
and (3) committing plain error by: (i) allowing a State's witness
to testify that the detectives told her they had witnesses and
knew defendant was guilty of murder; (ii) allowing Detective
Houston to testify that defendant possessed a handgun and marijuana
at the time of his arrest; and (iii) giving the incorrect jury
instruction on flight for a first-degree murder charge involving
premeditation and deliberation.
III. The Trial Court's Advice
Defendant argues the trial court erred by providing the State
unsolicited advice on how to secure the attendance of Gonzalez, the
State's most important witness. We disagree.
Before trial, the State was unable to secure Gonzalez's
attendance as a witness. Prior to trial, the State requested a
material witness order for Gonzalez and a subpoena for Gonzalez's
sister, in order to determine if Gonzalez's sister could help the
State locate Gonzalez. The court did not rule on the request, but
advised the State of another way to secure the witness's attendance
at trial. The court stated, I've had this happen a few times and
the better practice is to present the subpoena to the person and
say, 'the judge wants you right now.' Defendant argues the trial
court abandoned its role of neutral judge when it offered such
advice. Defendant failed to object to the trial court's
Our Supreme Court has stated: 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. Watts, 357 N.C. 366, 372,
584 S.E.2d 740, 745 (2003), cert. denied, ___
U.S. ___, 158 L. Ed. 2d 370, 124 S. Ct. 1673,
(2004); 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 . . .).
State v. Garcia, 358 N.C. 382, 410-11, 597 S.E.2d 724, 745 (2004),
cert. denied, ___ U.S. ___, 161 L. Ed. 2d 122 (2005). Defendant
failed to object and preserve this issue for appellate review. We
decline to consider it. This assignment of error is dismissed.
IV. Motion to Dismiss
Defendant argues the trial court should have dismissed the
charges against him at the close of all the evidence. Defendant
contends Gonzalez's testimony that she saw him shoot Jermaine and
Johnny cannot be reconciled with the indisputable physical
evidence, and the trial court should not have submitted the case
to the jury.
A. Standard of Review
This Court has stated:
A motion to dismiss based on insufficiency of
the evidence to support a conviction must be
denied if, when viewing the evidence in the
light most favorable to the State, there is
substantial evidence to establish each
essential element of the crime charged and
that defendant was the perpetrator of the
crime. State v. Jordan, 321 N.C. 714, 717,
365 S.E.2d 617, 619 (1988) (citations
omitted). Substantial evidence must be
existing and real, and is such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.
(quoting State v. Irwin, 304 N.C. 93, 98, 282
S.E.2d 439, 443 (1981) (citations omitted)).
State v. Cody, 135 N.C. App. 722, 727, 522 S.E.2d 777, 780 (1999).
This Court stated in State v. Hamilton, [i]n 'borderline' or
close cases, our courts have consistently expressed a preference
for submitting issues to the jury, both in reliance on the common
sense and fairness of the twelve and to avoid unnecessary appeals.
77 N.C. App. 506, 512, 335 S.E.2d 506, 510, (1985) (citation
omitted), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
B. Indisputable Physical Facts
Defendant argues Gonzalez's testimony conflicted with
indisputable physical facts and the remainder of the State's
evidence in the following ways: (1) Gonzalez testified defendant
first shot Johnny and then chased Jermaine around the Popeye's
Restaurant prior to shooting Jermaine. The officers who were
present at the shootings testified they heard a single rapid
sequence of gun shots; (2) Gonzalez testified defendant shot Johnny
at defendant's car, directly in front of Gonzalez. However, the
medical evidence tended to show that Johnny died within a few feet
from where he was shot and his wounds were fatal immediately.
Detective Houston determined Johnny was found behind and to the
right of the car in which Gonzalez was sitting; (3) Gonzalez
testified that after the shootings, defendant came up to the car
and tried to hand Wilson two guns. However, none of the other
passengers in the car mentioned that defendant approached their
vehicle with guns in hand; (4) Gonzalez's testimony contradicts the
testimony of her companions, who were all called by the State,
whether Wilson rode to The Zoo with them; and (5) when the vehicleGonzalez was riding in was stopped after the shootings, she did not
report to the police that she had seen defendant shoot the victims.
In State v. Parker, our Supreme Court stated, 'The trial
court must determine only whether there is substantial evidence of
each essential element of the offense charged and of the defendant
being the perpetrator of the offense' . . . The trial court does
not weigh the evidence, consider evidence unfavorable to the State,
or determine any witness' credibility. 354 N.C. 268, 278, 553
S.E.2d 885, 894 (2001) (citation omitted), cert. denied, 535 U.S.
1114, 153 L. Ed. 2d 162 (2002).
The State presented substantial evidence of each essential
element of the offense charged. Id. Officer Geisinger testified
that when she arrived at the scene, prior to the shootings,
Sycamore Square had traffic, parked cars, people standing out.
Popeye's parking lot was full of cars and people standing out.
Tally Ho was crowded with cars parked on the side. And the [Zoo]
itself was pretty well packed with cars and people. The evidence
tended to show the scene at The Zoo was busy and crowded with
Gonzalez's testimony is not the only evidence tending to
identify defendant as the perpetrator. Wilson also testified
defendant was present at the scene and that he: (1) saw defendant
arguing with two men; (2) heard gun shots; (3) saw defendant run
past him; and (4) saw one of the men whom defendant had been
speaking with run past him. The police officers and others testified to hearing a series
of shots in rapid succession, at least five, about five,
four or five, and about five. The police officers testified
that they heard fewer shots than what was accounted for by the nine
0.40 caliber shell casings that were discovered at the scene. This
testimony does not contradict Gonzalez's testimony that defendant
first shot Johnny and then moved to other locations to shoot
The locations of the victims' bodies tended to show that
defendant moved from shooting one victim to shooting the other.
Gonzalez testified she saw defendant shoot one victim, who fell
immediately. This testimony is consistent with the medical
evidence, which tended to show Johnny died near the location where
he was shot.
Gonzalez testified that the car in which she was riding sped
away from the scene after the shootings. The Krispy Kreme
employees testified that they saw a car speed away from the scene
immediately following the shootings.
In addition to Gonzalez's and Wilson's testimony, the State
offered evidence of sixteen other witnesses. The evidence
presented to the jury was sufficient to establish defendant's guilt
as to both charges, and his dismissal motion was properly rejected
by the trial court. State v. Buckom, 126 N.C. App. 368, 377, 485
S.E.2d 319, 325, cert. denied, 522 U.S. 973, 139 L. Ed. 2d 326
(1997). This assignment of error is overruled.
V. Plain Error
Defendant argues the trial court committed plain error by:
(1) allowing Horne, a State's witness, to testify detectives had
told her they had witnesses and knew that defendant was guilty
of murder; (2) allowing Detective Houston to testify that defendant
was in possession of a handgun and marijuana at the time of his
arrest. Defendant contends the evidence was irrelevant to the
question of whether or not he shot the victims; and (3) giving the
incorrect jury instruction on flight for a first-degree murder case
involving premeditation and deliberation.
Defendant did not object to this testimony or the jury
instruction at trial and assigned plain error on appeal. This
Court has stated:
Because defense counsel did not object to the
testimony now assigned as error our review is
limited to a consideration of plain error.
See N.C.R. App. P. 10(b)(1) (2004); N.C.R.
App. P. 10(c)(4) (2004). Defendant is
entitled to a new trial only if the error was
so fundamental that, absent the error, the
jury probably would have reached a different
State v. Carillo, 164 N.C. App. 204, 209, 595 S.E.2d 219, 223
(2004) (quoting State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97,
103 (2002)), disc. rev. denied, ___ N.C. ___, 610 S.E.2d 710
A. Horne's Testimony
Horne testified as follows:
Q. Did [the police officers] come back and
talk to you again?
Q. Was that the next day?
A. Maybe a couple days later.
Q. Was it the same officers or different
A. The same.
Q. Did they tell you that they had some more
information for you?
Q. What did they tell you?
A. They told me they had witnesses and that they
knew Omeako murdered someone.
Defendant argues the statement undoubtedly created an
impression with the jury that the detectives were aware of
additional witnesses, who for some reason, were not presented to
the jury and whose testimony would have supported the conclusion
that [defendant] was guilty.
Presuming, without deciding, the trial court erred when it
admitted Horne's statement, defendant has not shown the likelihood
of a different result at trial if Horne's statement had not been
admitted into evidence. The jury heard testimony from eighteen
State's witnesses, many of whom were present at the scene of the
shootings, and two who placed defendant at the scene. Horne's
statement concerning what the officers told her was mentioned,
without objection, during her direct examination. The State did
not mention her statement during its closing argument. The jury
received lengthy instructions about what evidence it could and
could not consider in determining defendant's guilt or innocence.
In North Carolina, 'jurors are presumed to follow the court's
isntructions.' State v. Richardson, 346 N.C. 520, 534, 488 S.E.2d148, 156 (1997) (quoting State v. Johnson, 341 N.C. 104, 115, 459
S.E.2d 246, 252 (1995)), cert. denied, 522 U.S. 1056, 239 L. Ed. 2d
652 (1998). This assignment of error is dismissed.
B. Detective Houston's Testimony
Detective Houston testified, without objection, that at the
time defendant was apprehended he was in possession of a .45
caliber handgun and marijuana. Detective Houston testified as
Q. Now, what else did he tell you about
someone named Jamal approaching him on
A. He said that after the incident, after he
found out he had warrants, Jamal
approached him and handed him a handgun
and about 150 dollars and that Jamal told
him that these were from Jamont, who is
Kareem Wilson, and that he kept a handgun
with him for protection from the victims'
Q. Did he ever tell you who this Jamal was?
A. No, he did not.
Q. He told you that Jamal gave himself, Mr.
Brisbon, a gun and some money.
A. Yes, sir.
Q. And that the gun and the money came from
A. Yes, sir.
Q. Who is Kareem Jamal Wilson?
A. Yes, sir.
Q. That's what this defendant told you?
A. Yes, sir.
. . . . Q. Did he say what had happened on this
particular night, October the 16th, when
the police knocked on the door where he
A. He didn't -- he -- I was present when
they were -- when they knocked on the
door. But he said he had a handgun in
his waistband and several bags of
marijuana were found in his pocket when
the police knocked on the door.
Rule 401 of the North Carolina Rules of Evidence provides,
'[r]elevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401
Detective Houston's testimony provided relevant evidence
concerning the relationship between defendant and Wilson. The jury
also heard why defendant carried a weapon, that he kept a handgun
with him for protection from the victims' family. This evidence
had a tendency to make the existence of [a] fact that is of
consequence to the determination of the action more probable or
less probable. Id. Presuming, without deciding, the trial court
erred in admitting the evidence, defendant failed to show that the
error was so fundamental that, absent the error, the jury probably
would have reached a different result. Carrillo, 164 N.C. App. at
209, 595 S.E.2d at 223. This assignment of error is overruled.
C. Jury Instruction on Flight
Defendant argues the trial court gave the jury the incorrect
flight instruction for a first-degree murder case involving
premeditation and deliberation.
The State requested the trial court give a jury instruction on
flight. Defendant offered a general objection to the giving of any
jury instruction on flight. The court instructed the jury on
flight, but neglected to include a portion of the charge that
flight cannot be considered in determining whether premeditation
and deliberation is proved. At the conclusion of the charge to the
jury, the court asked whether there are any specific objections to
the charge or to any omissions therefrom. Defendant responded,
none other than already stated. Defendant assigned plain error
in the alternative in the record on appeal. Defendant did not
argue plain error in his brief to this Court.
In State v. Beck, our Supreme Court held the defendant failed
to preserve for review the trial court's flight instruction. 346
N.C. 750, 759, 487 S.E.2d 751, 757 (1997). The defendant in Beck
offered a general objection to the instruction on flight. 346 N.C.
at 759, 487 S.E.2d at 757. When given the opportunity to
specifically object after the instructions were given to the jury,
the defendant did not request additional or different language.
Id. The Court stated:
We note initially that defendant did not
specifically object to the trial court's
wording of the flight instruction at trial.
During the charge conference defendant
objected to any instruction concerning flight
on the grounds that no evidence in the record
supported this instruction. After the jury
had been instructed, the trial court gave eachparty the opportunity to make for the record
any objections to the instructions given and
to request any additions, deletions, or
amendments to the instructions given. At this
time defense counsel made a general objection
to the instruction on flight.
Pursuant to N.C. R. App. P. 10(b)(2),
[a] party may not assign as error
any portion of the jury charge or
omission therefrom unless he objects
thereto before the jury retires to
consider its verdict, stating
distinctly that to which he objects
and the grounds of his objection;
provided, that opportunity was given
to the party to make the objection
out of the hearing of the jury, and,
on request of any party, out of the
presence of the jury.
In the instant case defendant was given the
opportunity to object to the wording of the
instruction on flight and failed to do so.
Defendant has not alleged, nor do we find,
plain error. This assignment of error is
The trial court gave defendant the opportunity to specifically
address the instruction on flight. Defendant stated, none other
than already stated. Defendant was given the opportunity to
object to the wording of the instruction on flight and failed to do
Defendant assigned as plain error the trial court's failure to
properly instruct the jury on flight. Assignment of error fourteen
provides, [t]o the extent that this error is not preserved for
appellate review, the defendant asserts plain error. However,
defendant failed to argue plain error in his brief to this Court.
N.C.R. App. P. 10(c) (4) (2005) provides: In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
This Court has stated, because Defendant has not specifically
and distinctly addressed the issue of plain error in his brief to
this Court, we will not review whether the alleged error rises to
the level of plain error. State v. Alston, 131 N.C. App. 514,
518, 508 S.E.2d 315, 318 (1998). Defendant did not specifically
and distinctly address or argue the assignment of plain error in
his brief. We decline to consider this issue. Id. This
assignment of error is dismissed.
The trial court properly denied defendant's motion to dismiss
the charges against defendant. Gonzalez's testimony did not
conflict with indisputable physical facts and was not inherently
incredible as a matter of law. The trial court did not err when it
admitted Horne's testimony that the detectives told her they had
witnesses and knew that defendant was guilty of murder. The
trial court did not err when it allowed Detective Houston to
testify that defendant was in possession of a handgun and marijuana
at the time of his arrest. Defendant failed to preserve for
appellate review any asserted error regarding the jury instructions
on flight as well as the advice the State received on how to secure
We do not consider those assignments oferror. Defendant received a fair trial free from prejudicial
errors he assigned and argued.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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