Appeal by defendants from judgments entered 19 April 2005 by
Judge John W. Smith in Wayne County Superior Court. Heard in the
Court of Appeals 23 August 2006.
Attorney General Roy Cooper, by Assistants Attorney General C.
Norman Young, Jr. & Thomas G. Meacham, Jr., for the State.
Nora Henry Hargrove for defendant-appellant Sloan.
Richard B. Glazier for defendant-appellant Wooten.
BRYANT, Judge.
Dwight Eugene Sloan (defendant Sloan) and Kolanda Kay Wooten
(defendant Wooten), defendants, appeal from 19 April 2005 judgments
consistent with jury verdicts finding both defendants guilty of
first degree murder. For the reasons stated below, we find no
error.
Defendant Wooten and a witness, Sherquanda Fields (Fields),
both had a relationship with the victim, Jamal Pearsall (Pearsall).
On 23 August 2003, Pearsall saw the two together while they were
looking for defendant Wooten's brother in a car driven by defendant
Wooten's aunt. Pearsall became upset and ordered Fields to get out
of the car. An argument ensued and defendant Wooten broke the
window out of Pearsall's car with her hand. She then rode off,
with Fields still in the car.
Later that night, defendant Wooten, Pearsall, and others met
to discuss payment for the car window. Defendant Wooten's
boyfriend, “Don Don,” arrived, and attacked Pearsall. Followingthe confrontation, Pearsall departed with Fields, and the two spent
the night at Fields's house. Pearsall set out the next morning for
his mother's house.
Witness Nora Robinson (Robinson) testified that on 24 August
2003 she saw a man with a gun behind a tree. She went inside, and
then heard gunshots. She looked outside, where she saw defendant
Sloan walking away from Pearsall's car, trying to cock a jammed gun
and muttering. Specifically, defendant Sloan said, “I'm going to
kill this mother f-----.” Robinson watched as defendant Sloan got
into a white car. She then heard Leanne Sutton (Sutton) yell from
the car, “You should have shot the mother f----- in the head.”
Defendant Sloan denied that he had hidden behind the tree or fired
the gun. He claimed that a housemate of his, Antonio Woods
(Woods), shot the gun. He also testified that he never said, “I'm
going to kill this mother f-----,” and that no one ever said he
should have shot Pearsall in the head. After defendant Sloan got
into the white car, defendant Wooten, who was driving, followed
Pearsall's car as it drove away.
The evidence showed that there was a high-speed chase, during
which the car Wooten was driving ran a stop sign, and Pearsall's
car hit a parked car. Further testimony indicated that the white
car driven by Wooten pulled even with Pearsall's car, and an
unidentified black arm stuck out of the white car's window and shot
into Pearsall's car.
Following the incident, defendant Sloan came forward
voluntarily, accompanied by his mother and father, to discuss thematter with the authorities. SBI Agent Barbara Lewis (Agent Lewis)
interviewed him, and testified from her notes. She stated that
defendant Sloan said he had argued with Pearsall over some speakers
that he believed Pearsall to have stolen. He told Agent Lewis that
he had shot at Pearsall as he drove past Pearsall in a car driven
by defendant Wooten. Agent Lewis further testified that defendant
Sloan informed her that he did not intend to kill Pearsall, and
that no one else in the car was aware that he had a gun prior to
the shooting.
Defendant Wooten also talked to Agent Lewis. Agent Lewis
stated that defendant Wooten told her that when defendant Sloan
pulled out the gun and fired twice, she screamed at him, “Why did
you do that, why did you do that?” Defendant Wooten told Agent
Lewis that defendant Sloan responded, “[J]ust drive, don't worry
about it, just drive.”
At trial, both defendants were convicted of first degree
Murder. Each now raises several assignments of error. For the
purposes of this opinion, we will deal with the defendants
separately. Defendant Sloan claims (1) the trial court erred in
denying his motion to dismiss because there was insufficient
evidence to uphold his conviction, (2) the trial court erred in
admitting the hearsay statement of Leanne Sutton, (3) the trial
court lacked jurisdiction as a result of a faulty indictment, and
(4) the trial court erred in admitting photographs of Pearsall. We
address these arguments in turn.
Defendant Sloan's Appeal
[1] Defendant Sloan first argues that the trial court should
have granted his motion to dismiss the charges on the grounds that
the evidence was insufficient to persuade a rational trier of fact
of each essential element beyond a reasonable doubt. Specifically,
defendant Sloan contends that the evidence showed only that he
recklessly discharged the weapon, not that he intentionally shot
into Pearsall's vehicle. This argument is without merit.
Defendant Sloan attempts in his brief to cast his argument in
a constitutional light. No such argument was presented at trial,
however, and defendant Sloan makes no mention of a constitutional
claim in his assignment of error. “Constitutional issues not
raised and passed upon at trial will not be considered for the
first time on appeal.”
State v. Lloyd, 354 N.C. 76, 86-87, 552
S.E.2d 596, 607 (2001) (citing
State v. Benson, 323 N.C. 318, 322,
372 S.E.2d 517, 519 (1988)). “[The] 'scope of appellate review is
limited to the issues presented by assignments of error set out in
the record on appeal; where the issue presented in the appellant's
brief does not correspond to a proper assignment of error, the
matter is not properly considered by the appellate court.'”
Walker
v. Walker, 174 N.C. App. 778, 781, 624 S.E.2d 639, 641 (2005)
(quoting
Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11
(1994)). Because the constitutional issue was neither raised at
the trial level nor assigned as error, we will not consider it on
appeal.
“In ruling on a defendant's motion to dismiss, the trial court
should consider if the state has presented substantial evidence oneach element of the crime and substantial evidence that the
defendant is the perpetrator.”
State v. Fowler, 353 N.C. 599, 621,
548 S.E.2d 684, 700 (2001) (citations omitted). “The elements
required for conviction of first degree murder are (1) the unlawful
killing of another human being; (2) with malice; and (3) with
premeditation and deliberation.”
State v. Haynesworth, 146 N.C.
App. 523, 531, 553 S.E.2d 103, 109 (2001) (citing N.C. Gen. Stat.
§ 14-17;
State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)).
“The evidence should be viewed in the light most favorable to the
[S]tate, with all conflicts resolved in the [S]tate's favor. . . .
If substantial evidence exists supporting defendant's guilt, the
jury should be allowed to decide if the defendant is guilty beyond
a reasonable doubt.
” Fowler, 353 N.C. at 621, 548 S.E.2d at 700
(citations omitted).
In this case, defendant Sloan killed Pearsall unlawfully, thus
satisfying the first element. In his argument against the
satisfaction of the other two elements, defendant Sloan relies
primarily on his own evidence as to his acts and intentions. In
ruling on a defendant's motion to dismiss, however, “[t]he
defendant's evidence should be considered only if it is favorable
to the [S]tate.”
Id. Though defendant Sloan contests the veracity
of the testimony against him, Agent Lewis's recount of her
interview with him, combined with the introduction of evidence
showing that he said “I'm going to kill this mother f-----,” and
that he had the gun when he pursued Pearsall's car, providedsufficient evidence to support a guilty verdict. Accordingly,
defendant Sloan's first contention must fail.
[2] Defendant Sloan next argues that the trial court erred in
its admission of Robinson's hearsay testimony as to Sutton's
statement, “You should have shot the mother f----- in the head.”
Because the testimony was properly admitted under the “excited
utterance” exception to the hearsay rule, this argument is without
merit.
It should be noted that although defendant Sloan continues to
couch his arguments in constitutional language, he once again
failed to object on constitutional grounds at trial.
“Constitutional issues not raised and passed upon at trial will not
be considered for the first time on appeal.”
Lloyd, 354 N.C. at
86-87, 552 S.E.2d at 607
.
“On appeal, the standard of review of a trial court's decision
to exclude or admit evidence is that of an abuse of discretion. An
abuse of discretion will be found only when the trial court's
decision was so arbitrary that it could not have been the result of
a reasoned decision.”
Brown v. City of Winston-Salem, 176 N.C.
App. 497, 505, 626 S.E.2d 747, 753 (2006) (internal quotations and
citations omitted).
“'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801 (2005). “Hearsay is not admissible except
as provided by statute or by [the] rules [of evidence].” N.C. Gen.Stat. § 8C-1, Rule 802 (2005). The “excited utterance” exception
to the hearsay rule applies to “[a] statement relating to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” N.C. Gen.
Stat. § 8C-1, Rule 803 (2005).
Defendant Sloan contends that the State failed to produce any
evidence that Sutton was “excited” when she made the statement,
“You should have shot the mother f----- in the head.”
Specifically, Defendant Sloan notes that the trial judge made no
findings to that effect. The trial judge did, however, state,
“It's an excited utterance.” Moreover, as the State points out in
its brief, the testimony itself provides evidence of excitement.
There had been at least one gun shot. Robinson stated that Sutton
“yelled it out,” and that the statement was “[r]eal loud, everybody
heard her.” Finally, the statement was made immediately preceding
a high-speed chase. The judge's decision regarding the excited
utterance, based as it was on the highly charged situation
described in Robinson's testimony, was not “so arbitrary that it
could not have been the result of a reasoned decision.”
Brown, 176
N.C. App. at 505, 626 S.E.2d at 753. Accordingly, there was no
abuse of discretion, and defendant Sloan's contention is without
merit.
Defendant Sloan acknowledges in his brief that his third
contention, that the trial court was without jurisdiction to try
him for first degree murder based on the indictment, is foreclosed
by case law.
See State v. Braxton, 352 N.C. 158, 173-75, 531S.E.2d 428, 436-38 (2000) (upholding the constitutionality of the
“short form” indictment),
cert. denied, 531 U.S. 1130, 148 L. Ed.
2d 797 (2001). As he raises this issue purely for preservation
purposes, no further discussion is required.
{3] Finally, defendant Sloan argues that the trial court erred
in admitting photographs of Pearsall. Specifically, defendant
Sloan contends that the photographs were cumulative and that their
prejudice to him outweighed their probative value. Because
defendant Sloan again failed to object on constitutional grounds at
trial, we will not address the constitutional language raised in
his brief. “Constitutional issues not raised and passed upon at
trial will not be considered for the first time on appeal.”
Lloyd,
354 N.C. at 86-87, 552 S.E.2d at 607
.
“On appeal, the standard of review of a trial court's decision
to exclude or admit evidence is that of an abuse of discretion. An
abuse of discretion will be found only when the trial court's
decision was so arbitrary that it could not have been the result of
a reasoned decision.”
Brown, 176 N.C. App. at 505, 626 S.E.2d at
753 (internal quotations and citations omitted).
We note as a preliminary matter that State's exhibits 14 and
15 are the only photographs to which defendant Sloan presents
specific arguments and that they were the only photographs
forwarded to this Court. “Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.”
State v.
McNeill, 360 N.C. 231, 241, 624 S.E.2d 329, 336 (2006) (quotationand citation omitted). Accordingly, we will not address arguments
as to any of the other photographs to which defendant Sloan
objected at trial.
This Court recently addressed this issue in
State v. Gladden,
168 N.C. App. 548, 551-52, 608 S.E.2d 93, 95-96 (2005). In
Gladden, the defendant argued that the lower court erred in
admitting autopsy photographs “because they were irrelevant and
offered solely for the purpose of inflaming the jury.”
Id. at 551,
608 S.E.2d at 95. This Court noted that “the admission of an
excessive number of photographs, depicting substantially the same
scene, may be prejudicial error where the additional photographs
add nothing of probative value but tend solely to inflame the
jury.”
Id. at 551-52, 608 S.E.2d at 95 (citations and quotations
omitted). Nevertheless, this Court reaffirmed that the proper
standard for determining whether to “admit photographs pursuant to
Rule 403 and what constitutes an excessive number [of photographs]”
is abuse of discretion.
Id. at 552, 608 S.E.2d at 95-96 (citation
omitted). Because the
Gladden court found that the photographs
were offered into evidence “to illustrate the testimony of the
State's pathologist,” it concluded that there was no abuse of
discretion.
Id.
In the case at bar, the State argues that the photographic
evidence introduced was offered to illustrate its witnesses'
testimony. Specifically, State's exhibits 14 and 15 were used to
illustrate Donald Hall's testimony that there was less blood when
he saw Pearsall than there was in the pictures. The Statemaintains that this illustrated that Pearsall's blood loss
continued in the time period between Hall's arrival and when the
photographs were taken. It appears from defendant Sloan's brief
that he objects to the use of both photographs because he believes
that the one, less gory, photograph would have sufficed. Yet as
defendant Sloan himself acknowledges in his brief, “Photographs of
a homicide victim may be introduced even if they are gory,
gruesome, horrible or revolting, so long as they are used for
illustrative purposes and so long as their excessive or repetitious
use is not aimed solely at arousing the passions of the jury.”
State v. Blakeney, 352 N.C. 287, 309-10, 531 S.E.2d 799, 816 (2000)
(quotations and citations omitted),
cert. denied, 531 U.S. 1117,
148 L. Ed. 2d 780 (2001). The State has shown that inflaming the
jury was not the sole purpose of the evidence. As such, it cannot
be said that the trial court abused its discretion, and defendant
Sloan's contentions are without merit. Having conducted a thorough
review of the case, we find no error in defendant Sloan's
conviction for first degree murder.
Defendant Wooten's Appeal
[4] We turn now to defendant Wooten. She contends that the
trial court erred by denying her motion to dismiss based on
insufficient evidence. We disagree.
In ruling on the motion to dismiss, the trial
court must view all of the evidence, whether
competent or incompetent, in the light most
favorable to the State, giving the State the
benefit of every reasonable inference and
resolving any contradictions in its favor.
The trial court need not concern itself with
the weight of the evidence. In reviewing thesufficiency of the evidence, the question for
the trial court is whether there is “any
evidence tending to prove guilt or which
reasonably leads to this conclusion as a
fairly logical and legitimate deduction.”
Once the court decides a reasonable inference
of defendant's guilt may be drawn from the
evidence, “it is for the jurors to decide
whether the facts satisfy them beyond a
reasonable doubt that the defendant is
actually guilty.”
State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434-35 (1997)
(citations omitted).
The evidence in this case was sufficient to survive a motion
to dismiss. The evidence clearly showed that defendant Wooten,
acting in concert with defendant Sloan, joined together to forcibly
confront the victim with a weapon.
See State v. Erlewine, 328 N.C.
626, 637, 403 S.E.2d 280, 286 (1991) (“[B]efore the jury could
apply the law of acting in concert to convict the defendant of the
crime . . ., it had to find that the defendant and [codefendant]
had a common purpose to commit
a crime; it is not strictly
necessary, however, that the defendant share the intent or purpose
to commit the particular crime actually committed.”) (emphasis in
original). Although the evidence presented by the State against
defendant Wooten was circumstantial, it was nonetheless
substantial.
Shortly before the shooting of Jamal Pearsall, defendant
Wooten had been involved in two violent confrontations with
Pearsall. One resulted in defendant Wooten breaking one of
Pearsall's car windows, while another resulted in a physicalaltercation between Pearsall and defendant Wooten's boyfriend, Don
Don.
Specifically, defendant Wooten's behavior immediately prior to
Pearsall's killing established evidence of her acting in concert to
join defendant Sloan in forcibly confronting Pearsall
. Defendant
Wooten encouraged defendant Sloan to approach Pearsall by notifying
him that Pearsall may have taken defendant Sloan's car stereo.
Defendant Wooten then provided defendant Sloan with transportation,
and was driving the white car when the decision was made to pursue
Pearsall rather than to report him to police. After the initial
incident on Maple Street, defendant Wooten was aware that defendant
Sloan had a gun. Defendant Wooten drove defendant Sloan and others
around in the car after defendant Sloan had shot at Pearsall.
Also, given defendant Wooten's proximity to where statements were
made regarding the gun, it is likely she heard defendant Sloan
(
“I'm going to kill this mother f-----”
) and Leanne Sutton (
“You
should have shot the mother f----- in the head”)
indicating an
intent to kill Pearsall. Moreover, rather than leaving the area to
remove herself from further criminal activity, defendant Wooten
engaged in a high-speed chase with the car driven by Pearsall, then
pulled alongside Pearsall's
car after it crashed into another car,
and gave defendant Sloan a perfect opportunity to fire the fatal
shot. Immediately after Pearsall was shot, defendant Wooten drove
away without calling for medical help or calling the police.
When taken in the light most favorable to the State, the
evidence against defendant Wooten, acting in concert to assaultPearsall, which actions led to Pearsall's death was substantial.
T
his evidence was sufficient to logically and legitimately conclude
defendant Wooten's guilt could be determined by the jury. As such,
“it is for the jurors to decide whether the facts satisfy them
beyond a reasonable doubt that the defendant is actually guilty” of
the ultimate crime of first degree murder. Therefore, the trial
court did not err in denying defendant Wooten's motion to dismiss.
No error.
Judge McGEE concurs.
Judge ELMORE concurs in part and dissents in part in a
separate opinion.
ELMORE, Judge, concurring in part and dissenting in part.
I concur in the majority opinion that there was no error in
defendant Sloan's conviction for first-degree murder. However, I
respectfully dissent from that part of the majority opinion holding
that the State produced sufficient evidence to survive defendant
Wooten's motion to dismiss. Because I believe that the evidence
was, in fact, insufficient to convince a rational trier of fact
that defendant Wooten was guilty of first-degree murder, I would
order a new trial for defendant Wooten.
This Court has recently outlined several guiding principles
for reviewing the sufficiency of the evidence needed to survive
defendant's motion to dismiss:
The evidence is to be viewed in the light most
favorable to the State. All contradictions in
the evidence are to be resolved in the State'sfavor. All reasonable inferences based upon
the evidence are to be indulged in. While the
State may base its case on circumstantial
evidence requiring the jury to infer elements
of the crime, that evidence must be real and
substantial and not merely speculative.
Substantial evidence is evidence from which a
rational trier of fact could find the fact to
be proved beyond a reasonable doubt
State v. Berry, 143 N.C. App. 187, 207, 546 S.E.2d 145, 159 (2001)
(citations omitted).
The State recites in its brief the doctrine of acting in
concert, quoting from
State v. Barnes, 345 N.C. 184, 233, 481
S.E.2d 44, 71 (1997):
If “two persons join in a purpose to commit a
crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.”
Id. (quoting
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,
286 (1991)). The State then proceeds to argue its case under a
theory of aiding and abetting. Under this theory,
the jury must find three things in order to
convict the defendant of first-degree murder .
. . : (1) that the crime was committed by
another; (2) that the defendant knowingly
advised, instigated, encouraged, procured, or
aided the other person; and (3) that the
defendant's actions or statements caused or
contributed to the commission of the crime by
the other person.
State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996) (citing
State v. Francis, 341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995)).
I would find that the State failed to carry its burden under either
doctrine. To prevail under its acting in concert theory, the State must
show that defendant Wooten was present, that she had joined in
purpose with defendant Sloan to commit a crime, and that the crime
for which she was being tried, first-degree murder, was either “in
pursuance of [that] common purpose . . . or [was] a natural or
probable consequence thereof.”
Barnes, 345 N.C. at 233, 481 S.E.2d
at 71. Though the State attempts to show that defendant Wooten had
a motive to murder Pearsall, the mere presence of motive does not
necessitate sending the case to the jury. Likewise, while the
State hopes to prove that defendant Wooten told defendant Sloan
that Pearsall had stolen his stereo in order to provoke a
confrontation between the two, it offers no evidence that this was,
in fact, her plan. Finally, the State points out that after being
near enough to see and hear the gun being shot and Sutton shouting
that defendant Sloan “should have shot the mother f----- in the
head,” defendant Wooten nevertheless drove after Pearsall with
defendant Sloan in the car. Yet despite the majority's position
that this evidence is sufficient, there remains no evidence of a
common purpose. As stated above, the use of circumstantial
evidence is permissible. Nevertheless, “that evidence must be real
and substantial and not merely speculative. Substantial evidence
is evidence from which a rational trier of fact could find the fact
to be proved
beyond a reasonable doubt.”
Berry, 143 N.C. App. at
207, 546 S.E.2d at 159 (emphasis added). In this case, the “common
purpose” of defendant Wooten and defendant Sloan could easily have
been to recover stolen property. Such a purpose would not havebeen illegal and would not have led, as a “natural or probable
consequence,” to murder. There is simply no substantial evidence
that the two had joined together for the
purpose of committing a
crime.
Though the majority does not focus on it, the State's aiding
and abetting theory also must fail. It is certain that “the crime
was committed by another”, namely defendant Sloan.
Bond, 345 N.C.
at 24, 478 S.E.2d at 175. Defendant Wooten's actions in driving
surely “contributed to the commission of the crime.”
Id. But
there is no substantial evidence that defendant Wooten “
knowingly
advised, instigated, encouraged, procured, or aided the other
person.”
Id. (emphasis added). On the contrary, by all accounts,
defendant Wooten was shocked by the murder.
Because I would find that it was error for the trial court to
deny defendant Wooten's motion to dismiss absent substantial
evidence of defendant Wooten's knowing intent to aid defendant
Sloan in the commission of a crime, I respectfully dissent from
that part of the majority opinion that would uphold defendant
Wooten's conviction for first-degree murder.
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