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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. GARCEL LAVAR CHRISTIAN
Filed: 19 December 2006
1. Constitutional Law_testimony about invocation of right to counsel_not prejudicial
References to a murder defendant's invocation of his right to counsel were erroneously
allowed, but the State met its burden of showing that the error was harmless. An officer
attempted to videotape the interview with defendant, but the tape did not record the entire
interview and it became necessary to explain the chronology of events after the tape stopped.
References were made to defendant's invocation of rights only in this context and the State did
not attempt to capitalize on defendant's invocation of his rights. Additionally, the State
presented other evidence of guilt.
2. Appeal and Error_assignments of error_not matched in brief
An assignment of error concerning the testimony of a particular detective was deemed
abandoned where the brief concerned different evidence rules than those cited in the assignment
of error, and the only mention of this particular detective's testimony in the brief was in a
3. Evidence_prior bad acts_admission not prejudicial
The trial court did not err in a murder prosecution by admitting evidence of a murder
defendant's prior bad acts where he had assaulted, shot at, and threatened a man named Massey,
his family, and whoever was with him, and the victim was riding in a car with friends of Massey.
The evidence was relevant to show defendant's intent, the two month interval between the
earliest incident and the shooting did not make the incidents too remote in time, and the
probative value of the evidence was not substantially outweighed by the prejudice.
Appeal by defendant from judgments entered 9 March 2005 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 17 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Richard B. Glazier for defendant appellant.
Garcel Lavar Christian (defendant) appeals from a jury
verdict of guilty of first-degree murder, discharging a weapon into
occupied property, and possession of a firearm by a felon.
On 5 April 2004, defendant was indicted by a grand jury in
Cabarrus County for murder and discharging a firearm into occupied
property. On 13 September 2004, he was indicted for possession of
a firearm by a felon. On 31 January 2005, the grand jury returned
superseding indictments charging him with murder, discharging a
firearm into occupied property, and possession of a firearm by a
felon. He pled not guilty and was tried before a jury at the 18
February 2005 Criminal Session of Cabarrus County Superior Court
before the Honorable W. Erwin Spainhour. On 9 March 2005, the jury
found him guilty of all three charges. Defendant appeals.
The State's evidence tended to show the following: On 17 March
2004, D.J. Kirks (Kirks) and Jamie Lilly (Lilly) wanted to get
some marijuana and go to a friend's house. They took Kirks' aunt,
Rosemary Kirks (Rosemary) to ride with them, telling her they
were going to stop off on the way to get a music C.D. from someone.
Kirks drove the car, Rosemary rode in the front passenger seat, and
Lilly rode in the backseat behind Kirks. They drove to a local
neighborhood where they could buy the drugs. Kirks dropped Lilly
off, and waited for him to return.
Lilly walked a couple of blocks, saw a group of people
including defendant, went to get the drugs, and made his way back.
Lilly got back in the car and they started to leave. Then, Kirkssaw some people, including defendant, step out and come toward
them. Kirks saw defendant had a gun pointed at his face from 2-3
feet away. Both Kirks and Lilly saw defendant begin shooting at
the car. They both knew who defendant was, since their friend
Brandon Massey (Massey) had pointed defendant out to them as they
were driving down the street one day.
Defendant fired several times at the vehicle. One bullet went
through one of the windows of the vehicle, through the back of the
front seat, and into the upper left back of Rosemary. It went into
her chest, perforating the pericardial sac and damaging her left
lung, heart, and a major artery, causing her death. Rosemary did
not die or even lose consciousness right away, and Kirks and Lilly
did not know that she had been shot, but instead thought she was
having a panic attack or heart attack. The boys drove straight to
the hospital. When medical personnel took her out of the car, they
noticed all the blood on the seat and on her back. Rosemary went
into cardiac arrest and died.
Kirks and Lilly were horrified, believing that they had
essentially caused Rosemary to be killed just because they wanted
to obtain some marijuana. Their friend Massey had pointed defendant
out to them and warned them that defendant had robbed him.
Defendant told Massey he would kill him or any of his family or any
people that he hung out with. Lilly hung out with Massey every day
during the time preceding the shooting.
At the hospital, Kirks at first gave police a false story
about being shot at by someone they did not know at a stop sign onVee Street. But when officers found no evidence of a crime on Vee
Street and asked the boys to help solve the crime, both boys
independently, in separate cars, took them to the actual scene of
the shooting. They also gave them defendant's name as the shooter,
and picked defendant out of photographic lineups.
Defendant was arrested on 18 March 2004. He was read his
Miranda rights, and voluntarily waived them and agreed to give a
statement. He was asked where he was about 9:00 p.m. the previous
night, and he stated that he had gotten home at about 5:30 p.m. and
stayed there. He was asked if he owned any guns, and he replied he
did not. Shortly after that, he indicated that he did want a lawyer
and the interview ended.
 Defendant contends the trial court erred by admitting
references to defendant's invoking his right to remain silent. We
[A] defendant's exercise of his constitutionally protected
rights to remain silent and to request counsel during interrogation
may not be used against him at trial. State v. Elmore, 337 N.C.
789, 792, 448 S.E.2d 501, 502 (1994). Furthermore, allowing
testimony regarding a defendant's invocation of counsel has been
found to be error. State v. Ladd, 308 N.C. 272, 284, 302 S.E.2d
164, 172 (1983). This error warrants a new trial unless the State
can show the error to be harmless beyond a reasonable doubt. N.C.
Gen. Stat. § 15A-1443(b) (2005). To find harmless error beyond a
reasonable doubt, we must be convinced that there is no reasonablepossibility that the admission of this evidence might have
contributed to the conviction. Ladd, 308 N.C. at 284, 302 S.E.2d
In undertaking the above analysis in the context of testimony
regarding a defendant's invocation of rights, we have considered
the following factors: (1) whether the State presented other
overwhelming evidence of guilt of the defendant; (2) whether the
testimony was elicited by the State or volunteered by a witness;
(3) whether the State emphasized the defendant's invocation of
rights; and (4) whether the State attempted to capitalize on the
defendant's invocation of rights through reference in its closing
statement or during cross-examination. State v. Rashidi, 172 N.C.
App. 628, 639-40, 617 S.E.2d 68, 76-77, aff'd per curiam, 360 N.C.
166, 622 S.E.2d 493 (2005). Further, this Court has held that
questioning which references a defendant's invocation of rights but
serves merely to explain the chronology of the investigation does
not warrant a new trial. State v. Holsclaw, 42 N.C. App. 696, 702,
257 S.E.2d 650, 654, disc. review denied, 298 N.C. 571, 261 S.E.2d
In the present case, we find that permitting the prosecutor
and the officer to reference defendant's invocation of his right to
counsel was error, but that the State has met its burden to show
that the error was harmless beyond a reasonable doubt.
attempted to videotape the entire waiver of rights and interview
with defendant, but the tape cut off and did not record the entire
interview. At a minimum, the portion of the interview involvingwhether defendant had ever owned a gun was not included on the
video. Since the jury had seen the tape, which did not include the
complete interview, it became necessary to explain the chronology
of events that took place after the tape cut off. Through the line
of questioning, the State illustrated that defendant's statement
regarding whether he had ever owned a gun was made prior to
invoking his rights.
The references made at trial to defendant's
invocation of rights occurred only in this context. Additionally,
the State presented
two eyewitnesses who were within three or four
feet of the shooter who identified defendant as the shooter. Also,
two other witnesses stated that defendant was near the scene of the
Further, the State did not attempt to capitalize on
defendant's invocation of rights, but explained to the jury the
chronology of defendant's initial interview with the police. Doyle
v. Ohio, 426 U.S. 619, 49 L. Ed. 2d 91 (1976) (stating that the
use for impeachment purposes of petitioners' silence, at the time
of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment).
defendant is not entitled to a new trial on this basis.
 Defendant contends the trial court erred by admitting
evidence of defendant's prior bad acts. We disagree.
At the outset, defendant makes four assignments of error which
he lists in his brief as corresponding to this contention.
Assignment of error 17 is related to defendant's argument under
Part I above, and thus, has already been discussed. Assignmentof error 14 contests the testimony of Detective John Tierney based
on hearsay grounds and Rules of Evidence 801-804, as well as on
constitutional and due process grounds. However, the argument in
defendant's brief concerns Rules of Evidence 404(b) and 403. Also,
the only discussion in defendant's brief specifically referring to
Detective John Tierney's testimony was contained in a footnote at
the end of the argument which states, [o]bviously if the Massey
testimony should have been precluded, th[e]n clearly the Tierney
testimony would be rendered irrelevant and incompetent.
Therefore, assignment of error 14 is deemed abandoned. N.C. R.
App. P. 28(b)(6).
 The testimony at issue was provided by Massey, a friend of
Kirks and Lilly. The following is a summary of the contested
testimony: On 24 January 2004, Massey was riding in a car when
defendant opened the door and pointed a .357 revolver in the car
and demanded everything he had. Massey gave him $500, but defendant
told Massey to give him everything else or defendant would shoot
Massey. Then, defendant pulled Massey out of his car, put the gun
to Massey's head, and demanded Massey's gold teeth. Massey handed
defendant the gold teeth. When a transportation bus pulled up
behind defendant and Massey, defendant walked away. Massey's friend
had been punched by one of defendant's friends, so Massey took him
to the hospital. There they reported to police that they had been
the victims of a robbery, and Massey picked defendant out of a
lineup for the police officers. In February 2004, Massey was in the front passenger seat of a
car being driven by some friends when they saw defendant and
another person walking up behind them. Defendant was about 20 or
30 feet away when they saw defendant start shooting with what
Massey recognized as a handgun. Defendant shot the gun
approximately 8 or 10 times.
In the months of February and March 2004, defendant called
Massey on his cell phone, threatening to kill him, his family, and
whoever was with him. Defendant left such messages for Massey two
to three times per week.
Defendant contends that this testimony violates North Carolina
Rule of Evidence 404(b). Defendant also contends the same
testimony violates North Carolina Rule of Evidence 403. We
Rule 404(b) of the North Carolina Rules of Evidence provides
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Generally, this rule is
one of inclusion
of relevant evidence, so long as its probative
value serves more than to show an individual's criminal propensity
or disposition. State v. Summers
, 177 N.C. App. 691, 695-96, 629
S.E.2d 902, 906 (2006), appeal dismissed, disc. review denied
, 360N.C. 653, ___ S.E.2d ___ (2006). We review a trial court's
determination to admit evidence under Rule 404(b) for an abuse of
at 696-97, 629 S.E.2d at 907. An abuse of
discretion occurs when a trial judge's ruling is 'manifestly
unsupported by reason.' Id.
In the instant case, the trial court ruled that Massey's
testimony was admissible to show identity, modus operandi
intent. The evidence was relevant to show defendant's intent
because the State contended defendant shot at the car either
intending to shoot Massey's friends, or believing Massey to be the
passenger. Our Supreme Court has held
[e]vidence of defendant's acts of violence
against [the witness], even though not part of
the crimes charged, was admissible since it
'pertain[ed] to the chain of events
explaining the context, motive and set-up of
the crime' and 'form[ed] an integral and
natural part of an account of the crime . . .
necessary to complete the story of the crime
for the jury.'
State v. White
, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998)
(citations omitted), cert. denied
, 527 U.S. 1026, 144 L. Ed. 2d 779
Further, we disagree with defendant's contention that the
incidents were too remote in time to be properly admitted.
"[R]emoteness in time generally affects only the weight to be given
such evidence, not its admissibility." State v. Stager
, 329 N.C.
278, 307, 406 S.E.2d 876, 893 (1991) (holding "the death of the
defendant's first husband ten years before the death of her second
was not so remote as to have lost its probative value"). In thepresent case, only two months elapsed between the earliest incident
Massey referred to in his testimony and the shooting. Accordingly,
the trial court did not abuse its discretion admitting testimony
concerning each of the incidents.
Rule 403 of the North Carolina Rules of Evidence provides that
[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Maglione v. Aegis Family
, 168 N.C. App. 49, 59, 607 S.E.2d 286, 293 (2005).
The admission or exclusion of evidence under Rule 403 is within
the sound discretion of the trial court, and the trial court's
ruling should not be overturned on appeal unless the ruling was
'manifestly unsupported by reason or [was] so arbitrary that it
could not have been the result of a reasoned decision.' State v.
, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (citation
omitted), cert. denied
, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001),
, 360 N.C. 72, 623 S.E.2d 779 (2005). We determine the
probative value of the contested evidence is not substantially
outweighed by the danger of unfair prejudice, and therefore, we
disagree with defendant's contention.
Accordingly, we find no prejudicial error by the trial court.
Also, any assignments of error that were not argued in defendant's
brief are deemed abandoned. N.C. R. App. P. 28(b)(6).
No prejudicial error. Judges WYNN and McGEE concur.
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