Appeal by defendant from judgments dated 9 August 2005 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 11 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
Brian DeCarlos Junious (defendant) appeals from judgments
dated 9 August 2005, entered consistent with a jury verdict finding
defendant guilty of possession of a firearm by a felon, discharging
a firearm into an occupied vehicle, and first degree murder. For
the reasons below, we find no error occurred at defendant's trial.
At approximately 2:30 a.m. on the morning of 5 July 2003 Wayne
Mitchell was shot multiple times from close range as he sat behind
the wheel of his green Ford Expedition in the parking lot outside
the Seahorse Lounge in Wilmington, North Carolina. Wayne Mitchell
bled to death at the scene of the shooting as a result of one of
the gunshot wounds he sustained. Defendant was seen with a handgun
standing at the passenger window of Wayne Mitchell's Ford
Expedition and shooting into the vehicle.
Shannon Mitchell was a passenger in the backseat of
defendant's vehicle that morning, trying to go to sleep but he was
awakened by the sound of gunshots. Looking up, Shannon Mitchell
saw defendant standing by the passenger side door of WayneMitchell's Ford Expedition with his arm in the window, and the
person in the Ford Expedition was bouncing in the truck. Upon
entering his own vehicle, defendant placed a semi-automatic handgun
on the armrest and drove off. Defendant later gave Shannon
Mitchell the semi-automatic handgun and told him to get rid of the
On 25 August 2003, responding to a tip regarding the location
of the handgun used in the shooting, Officer Michael Overton of the
Wilmington City Police Department located and took custody of a
rusted Taurus nine-millimeter semi-automatic handgun he found
inside a plastic Food Lion bag by a trash can in a Wilmington City
Park. This was the same handgun defendant gave Shannon Mitchell.
All of the casings and bullets recovered from the shooting scene
were fired from the Taurus firearm.
On 5 January 2004, defendant was indicted by the New Hanover
County Grand Jury for the offense of first degree murder.
Defendant was subsequently indicted on 1 March 2004 for the
offenses of discharging a firearm into an occupied vehicle and
possession of a firearm by a felon. From 1 August to 9 August
2005, defendant was tried before a jury on these charges in New
Hanover County Superior Court, the Honorable W. Allen Cobb, Jr.,
presiding. On 9 August 2005, the jury returned a verdict of guilty
on all three charges, and the trial court entered judgments
consistent with the jury verdict. Defendant was sentenced to a term of imprisonment of sixteen
to twenty-one months for the conviction on the charge of possession
of a firearm by a felon, and a term of life imprisonment without
the possibility of parole for the conviction on the charge of first
degree murder. The trial court arrested judgment for the
conviction on the charge of discharging a firearm into an occupied
vehicle because it served as the underlying felony in defendant's
first degree murder conviction. Defendant appeals.
Defendant raises the issues of whether the trial court erred
in: (I) stating in its instructions to the jury the specific facts
shown by the State's 404(b) evidence, but not mentioning
defendant's contentions; (II) overruling defendant's objections to
the prosecutor's closing argument; and (III) denying defendant's
motion to dismiss based upon the State's failure to provide him
with exculpatory information.
 Defendant first argues the trial court erred in stating,
in its instructions to the jury, the specific facts shown by the
State's 404(b) evidence but not mentioning defendant's contentions.
At trial the State introduced evidence of a prior confrontation
between defendant and Officer Eddie Reynolds. Officer Reynolds
testified as to a previous encounter with defendant where he saw
defendant with a semi-automatic handgun. This evidence was
admitted pursuant to Rule 404(b) of the North Carolina Rules of
Evidence for the purpose of showing the identity of the person whocommitted the crimes charged in this case and to show that
defendant had the requisite intent to commit the crimes charged.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005).
During the subsequent charge conference at trial, defendant
brought forward his concern over the trial court's instruction on
the Rule 404(b) evidence presented at trial. In regards to this
instruction, the State asked for the following:
Your Honor, I would say evidence from Officer
Eddie Reynolds to show the Defendant on a
prior occasion had possession of an automatic
firearm, that he kept this firearm tucked in
his front belt and that he pulled the firearm
on the -- I guess the security guard, Officer
Reynolds, or you could just say you got
evidence from Officer Reynolds concerning an
altercation on a prior occasion and let the
jury determine what the facts were.
Defendant objected to this request, seeking to limit the specific
evidence listed in the charge, and requested the trial court give
the instruction stating that evidence has been received to show
that at an earlier time the Defendant possessed what appeared to be
a handgun. During its charge to the jury, the trial court
evidence has been received tending to show
that Officer Eddie Reynolds saw the Defendant
at an earlier time and that the Defendant
possessed what appeared to be a handgun. This
evidence was received in this trial solely for
the purpose of showing the identity of the
person who committed the crime charged in this
case, if it was committed, and that the
Defendant had the intent, which is a necessary
element of the crime charged in this case. If
you believe this evidence, you may consider it
but only for the limited purpose for which it
It is well settled that '[i]f a request is made for a jury
instruction which is correct in itself and supported by evidence,
the trial court must give the instruction at least in substance.'
State v. Childers
, 154 N.C. App. 375, 381, 572 S.E.2d 207, 211
(2002) (quoting State v. Duncan
, 136 N.C. App. 515, 517, 524 S.E.2d
808, 810 (2000)), cert. denied
, 356 N.C. 682, 577 S.E.2d 899
(2003). The instruction given by the trial court is substantially
similar to that which defendant requested, the only difference is
that the trial court's actual instruction identifies Officer Eddie
Reynolds as the person who saw defendant in possession of what
appeared to be a handgun. The instruction was given pursuant to
Instruction 104.15 of the North Carolina Pattern Jury Instructions.
N.C.P.I.--Crim. 104.15 (1984). Instruction 104.15 is a
limiting instruction which the trial court gives to inform the jury
that certain evidence was admitted solely for other purposes
pursuant to Rule 404(b).
Defendant argues that by stating the specific evidence which
was admitted solely for 404(b) purposes, as required under
Instruction 104.15 of the North Carolina Pattern Jury Instructions,
the trial court improperly gave its opinion as to the State's
evidence and prejudiced defendant by emphasizing the State's
evidence over his contentions. First, we note that [t]he use of
the words 'tending to show' or 'tends to show' in reviewing the
evidence does not constitute an expression of the trial court's
opinion on the evidence. State v. Young
, 324 N.C. 489, 495, 380
S.E.2d 94, 97 (1989) (citations omitted). In its instructionregarding the State's 404(b) evidence, the trial court stated that
evidence has been received tending to show
[,] thus the trial
court has not expressed an opinion as to this evidence. Further,
contrary to defendant's argument, the challenged instruction did
not emphasize the State's evidence, but appropriately informed the
jury that if the evidence was believed, it could only be considered
for the limited purpose for which it was received. This assignment
of error is overruled.
 Defendant next contends the trial court erred in
overruling defendant's objections to the prosecutor's closing
argument. During closing arguments, defendant twice objected to
statements made by the prosecutor referencing testimony that a
female passenger in defendant's truck stated [the victim] deserved
it immediately after the shooting. Defendant argues the trial
court abused its discretion in overruling his objections and
allowed the prosecutor to focus on the female's statement that
[the victim] deserved it and argue to the jury that defendant
believed the victim deserved to die because the victim hit
defendant's truck. We disagree.
Our Supreme Court has consistently held that trial counsel
must be allowed wide latitude in the argument of hotly contested
cases[,] and may argue to the jury the facts in evidence and all
reasonable inferences to be drawn therefrom together with the
relevant law so as to present his side of the case. State v.
, 356 N.C. 490, 518, 573 S.E.2d 132, 150 (2002) (citation andquotations omitted). Where there is an objection to a statement
made during closing arguments, this Court must determine 'whether
the trial court abused its discretion by failing to sustain the
objection.' State v. McNeill
, 360 N.C. 231, 245, 624 S.E.2d 329,
339 (quoting State v. Walters
, 357 N.C. 68, 101, 588 S.E.2d 344,
364 (2003)), cert. denied
, __ U.S. __, 166 L. Ed. 2d 281 (2006).
Our inquiry has two parts: [f]irst, this Court must determine
whether the remarks were in fact improper; second, this Court must
determine if the remarks were of such a magnitude that their
inclusion prejudiced defendant, and thus should have been excluded
by the trial court. Id.
(citation and quotations omitted).
At trial, Shannon Mitchell testified for the State that after
shooting the victim and returning to his vehicle, defendant said
the victim hit defendant's truck and a female passenger responded
that [the victim] deserved it. Defendant did not object to
Mitchell's testimony and the female passenger was never identified
and did not testify. At the start of his closing argument the
With all the credible evidence, this man was
literally gunned down in the street because .
. . of what can only be described as a minor
And what's most disturbing about that,
not just that someone would feel the necessity
to pull a gun and kill a man because he had an
accident, was the voice that we heard shortly
thereafter by the girl in the car, that he
deserved it. You got an individual who got
gunned down literally in the street because
that man carried a gun and he didn't want to
pay and so he took it upon himself to shoot a
man over that.
And even more disturbing is we have his
friend, [saying] he deserved it, he deserved
it. And there [are] a lot of people out there
that feel that way, there [are] a lot of
people that feel the first resort to anything
that [doesn't] suit them is violence.
Well, folks, Wayne Mitchell did not
deserve to die. It's going to be up to you to
let him know that he did not deserve to die.
It's going to be up to you, the State [sic],
in a loud clear voice: No, he did not. The
State of North Carolina, his family, and
justice requires that you tell these people
that nobody deserves to die.
Contrary to defendant's argument, the statements of the
prosecutor are not improper. The prosecutor never attributes the
statement that the victim deserved to die to defendant. The
prosecutor uses the statement that the victim deserved to die not
as an argument that defendant believed the victim deserved to die,
but as an opening imploring the jury to find the facts in the
State's favor and convict defendant of the murder of Wayne
Mitchell. Subsequent to the above-quoted language, which is the
beginning of the prosecutor's closing argument, the prosecutor went
on at length reviewing the evidence presented and allowable
inferences, and did not focus on the single statement made by the
female passenger that the victim deserved to die. This assignment
of error is overruled.
 Defendant lastly argues the trial court erred in denying
defendant's motion to dismiss based upon the State's failure to
provide him with exculpatory information. Prior to trial,defendant filed a motion to compel discovery pursuant to N.C. Gen.
Stat. § 15A-903 (2005). The State subsequently disclosed to
defendant that a potential eye witness, Ms. Haynes, did not
identify defendant in a photographic array presented to her shortly
after the shooting. Thereafter, at trial Ms. Haynes testified that
not only did she not identify defendant in the photographic array,
but she identified another man in the photographic array as the
shooter. However, Ms. Haynes did identify defendant as the shooter
at trial. In light of Ms. Haynes' testimony that she identified
another man as the shooter in the photographic array, defendant
filed a motion to dismiss the charges against him.
The trial court conducted a hearing on defendant's motion
outside the presence of the jury, where the prosecutor in this case
disclosed that he did not know Ms. Haynes had identified another
man from the photographic array as the shooter until she so
testified at trial. Further, the hearing revealed that Detective
Michael Overton of the Wilmington City Police Department presented
the photographic array to Ms. Haynes. Detective Overton testified
that he did not recall Ms. Haynes pointing to any picture in the
photographic array, and if she had, it would have been standard
practice for Ms. Haynes to circle the photograph she chose and
initial and date the card, which had not been done. The trial
court denied defendant's motion to dismiss.
Defendant now contends the State failed to provide him with
exculpatory information showing that two hours after the shooting
Ms. Haynes identified someone other than the defendant as the
shooter. Defendant argues there is a reasonable probability thathad Ms. Haynes alleged misidentification been disclosed, the result
of the trial would have been different. However, the record before
this Court, including the voir dire
hearing on defendant's motion
to dismiss, does not show that the State knew of any prior
identification by Ms. Haynes. The prosecutor stated he knew of no
such prior identification until Ms. Haynes testified in court, the
detective conducting the photographic lineup stated he did not
recall a prior identification, and the photographic array was not
marked as required by the procedures of the Wilmington City Police
Department indicating an identification by Ms. Haynes of someone in
the photographic array as the shooter. Our Supreme Court has held:
The State cannot reasonably be expected to
relate a statement to defendant which it has
no knowledge of such as in the case at hand.
Under these circumstances, we find that the
State did not violate the discovery rules of
N.C.G.S. § 15A-903(a); thus, the trial court
did not err . . . .
State v. Godwin
, 336 N.C. 499, 507, 444 S.E.2d 206, 210 (1994).
Similarly, here the trial court did not err in denying defendant's
motion to dismiss. This assignment of error is overruled.
Judges TYSON and LEVINSON concur.
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