STATE OF NORTH CAROLINA
v . Nos. 02CRS001146-48
TERENCE JARARD AUSTIN
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General David Roy Blackwell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.
Terence Jarard Austin (defendant) appeals from judgments and commitments of the trial court imposed upon jury verdicts finding him guilty of voluntary manslaughter and two counts of assault with a deadly weapon inflicting serious injury. Defendant contends the trial court erred in denying his motion to dismiss and in instructing the jury on the theory of acting in concert. We find no error.
The State presented evidence tending to show that on the evening of 25 January 2002, Catawba College student and football player Darris Morris (Morris) was shot and killed during an altercation between a group of Catawba College (Catawba) students and students from Livingstone College (Livingstone). Two otherCatawba students, Bradley McCrary (McCrary) and Demetrius Phipps (Phipps), were shot and injured as well. The confrontation between the Catawba students and the Livingstone students began during a party at Catawba's Pine Knott dormitory that was attended by many members of Catawba's football team. A group of six students from Livingstone, including defendant, attended the dormitory party as well. The six Livingstone students -- defendant, Isaac Brazeal (Brazeal), Morris Brannon (Brannon), Ricardo Battle (Battle), Cory Peterson (Peterson), and Karl Wilson, Jr. (Wilson) -- arrived together in a four-door Dodge Dynasty driven by Brazeal. Brazeal parked the vehicle on the street approximately one hundred yards from the Pine Knott dormitory. Brazeal remained at the party only briefly, however, and then returned to his car. The other Livingstone students remained at the party.
During the party, Brannon, a football player for Livingstone, and Catawba student and football player Jemonte Battle (Jemonte) began arguing. They were ordered to take it outside, and the five Livingstone students exited the dormitory, followed by a number of Catawba students, including Jemonte and Morris. Witnesses varied in their accounts of the size of the crowd of Catawba students following the Livingstone students, with numbers ranging from a few to as many as forty students. Once outside, the Livingstone students met Brazeal, who was walking toward them, and told him to return to the car and start the engine. The Livingstone students ran to Brazeal's car, followed by the Catawbastudents. Some witnesses testified that the trunk of Brazeal's car was briefly opened. Once the Catawba students reached Brazeal's vehicle, a fistfight immediately erupted. Defendant broke away from the fight, opened the front passenger-side door of Brazeal's car, and retrieved a nine-millimeter gun from beneath the driver's seat. Defendant testified he then fired several shots in the air to scare the crowd away to give us enough time so we could get out of there.
Catawba campus security guard Allen Hinson (Hinson) testified he witnessed the fistfight at Brazeal's vehicle. As he radioed for back-up, Hinson observed a young black male with braided hair and a goatee open Brazeal's front passenger-side door and reach down in the front floorboard or seat area for something. Hinson continued:
I saw his arm go up and saw what I thought to be a handgun, at which point he fired one round off in the air.
The Catawba students started running toward me. I stepped over to the side so they could get by. And just as the last Catawba student was right at me, I looked at him and hollered, Get down, took my hand and motioned like get down and was looking at him.
Just as I take my eyes off him and looked back at the guy that was shooting the gun, he had his arm extended straight out . . . in my direction, and he fired another round off. And the percussion from the gun hit me in the face. . . . And I could hear the bullet as it passed me and then I heard a thump.
I looked back over my shoulder down the sidewalk and I noticed there was one male running like he had his hand over his chest area, like in a leaning forward position. I didn't know if he had gotten hit or not.
Hinson took cover behind a car and radioed again for more assistance. As Hinson then drew his weapon to return fire, the individual at Brazeal's car started firing -- firing rounds off in our direction, mine and the Catawba students' direction. As Hinson fired his first shot, the gunman entered Brazeal's car. Hinson fired three rounds, one of which struck and shattered the back window of Brazeal's vehicle. Hinson testified that, [i]n the meantime, there's someone in the back seat that [began] shooting a smaller caliber weapon out of the driver's rear passenger area. Brazeal's vehicle drove away.
McCrary testified he was a Catawba student and football player at the time of the shooting and attended the Pine Knott dormitory party. McCrary was one of the group of people who followed the Livingstone students out of the dormitory to make sure they were leaving. As he was walking towards Brazeal's vehicle, Hinson walked up from behind and passed McCrary. McCrary stopped when he was approximately one hundred feet away from Brazeal's vehicle. At that point, [w]hoever was standing on the passenger side of the car raised [a] gun and pointed it toward the stairway. The man fired at least one shot and then proceeded to turn and shoot toward [McCrary]. One of the bullets struck McCrary's left leg, and then lodged in his right leg. Physicians later determined that removal of the bullet from McCrary's leg was medically inadvisable. McCrary could not identify the shooter, and did not see Hinson while the bullets were being fired. Phipps testified he was a student and basketball player at Catawba. Phipps was outside the Pine Knott dormitory the night of the shooting and joined a group of approximately forty other students running on the side of Pine Knott[.] Phipps stated he did not know why the students were running, but nevertheless followed them. Phipps stated the group of students slowed and that's when they started shooting, so we started to turn around and run back towards the parking lot. Phipps was struck in the hand and back of his leg. He could not identify who shot him.
Peterson testified that, as he and the other Livingstone students reached Brazeal's vehicle, the Catawba students came down and started hitting on [Wilson], one of them did. Immediately afterwards, shots rang out and everybody just started running, scattering everywhere. Peterson saw Battle with a gun, but did not see him shoot it. However, Peterson heard two shots coming from Battle's direction. Peterson stated he also heard shots fired from the passenger side of the car where defendant was standing. Peterson later told police officers that defendant and Battle had guns.
Special Agent Thomas Trochum (Special Agent Trochum) of the State Bureau of Investigation (SBI) testified as an expert in forensics firearms identification. According to Special Agent Trochum, the nine-millimeter firearm recovered by investigating detectives fired the eight nine-millimeter shell casings discovered at the scene of the shooting. Similarly, Special Agent Trochum testified it was Hinson's .40 caliber pistol which fired three .40caliber cartridges found at the scene, and a recovered .22 caliber pistol which fired the .22 shell casings found at the scene. Upon examining the bullet removed from Phipps' leg, Special Agent Trochum stated that, of the three weapons recovered -- defendant's nine-millimeter, Hinson's .40 caliber pistol, and the .22 caliber pistol -- the bullet could have only originated from defendant's nine-millimeter. Special Agent Trochum further opined that the x- ray of the bullet lodged in McCrary's leg was more consistent with bullets fired from defendant's nine-millimeter rather than Hinson's weapon.
Defendant presented evidence and testified he entered Brazeal's vehicle in an effort to escape the fistfight. From his vantage point inside the car, defendant saw his friend Wilson slumped over the front of the car . . . being jumped on by . . . three individuals [who] . . . were pounding on him. He then noticed the handle of the nine-millimeter beneath the driver's seat, removed the gun, and exited the vehicle. Defendant testified he had given the nine-millimeter to Brannon one week earlier and did not know the weapon was in the car. He stated that he was scared and fired shots in the air to frighten the crowd away so that he and his friends could escape the mob. Defendant testified:
After firing, the crowd pretty much scattered. I then threw the gun back into the passenger's front door. And I grabbed Karl Wilson by his arm and tossed him into the front passenger seat.
. . .
After I tossed him into the front passenger seat, I opened the back passenger door and dove in.
As Brazeal began to drive the car away from the scene, Battle was in the back seat next to defendant. Peterson was also in the car, but defendant could not remember where he sat. As the car pulled away, defendant heard gunshots. Seconds later, the rear window was shot out and [Battle] was struck in the head and [defendant] was grazed on the left side of [his] head. Battle began screaming and kicking and hollering saying that he was hit. Defendant pulled Battle down to the floorboard of the vehicle. As he did so, Brannon jumped into the driver's back side[.] Defendant testified Brannon was holding defendant's nine-millimeter gun. After they escaped the scene, the Livingstone group searched without success for a hospital. Brazeal stopped the vehicle to allow Wilson and Peterson to exit. As he did so, Brazeal noticed that Peterson was carrying a gun.
Peterson testified defendant handed him the nine-millimeter as he exited the car. Peterson stated that he then buried the gun at a flower shop. He later led investigating officers to the flower shop, where a nine-millimeter Smith and Wesson brand semi-automatic pistol was recovered. Peterson also testified that, as he exited Brazeal's vehicle, Brannon tossed one of the guns on the left-hand side of the road[.] A .22 caliber pistol matching the .22 shell casings found at the scene of the shooting was later recovered.
Unable to locate a hospital, the four remaining Livingstone students finally returned to Livingstone, where security officerssummoned an ambulance for Battle and defendant. Battle survived his injuries. Defendant denied shooting his weapon in any direction except straight up into the air.
Defendant presented expert testimony by forensic pathologist Dr. Patrick Lantz (Dr. Lantz). Upon his review of the autopsy records, Dr. Lantz testified he believed it was Hinson's bullet that struck and killed Morris.
Thomas Chad Hyde (Hyde) testified on behalf of defendant. According to Hyde, Brannon told him after the shooting that 'he was worried about a residue test and he didn't know how that would come around' because 'he had shot at someone and probably was the one who had hit him.' Defendant also introduced a handwritten statement given to the police by Peterson stating that, after the Catawba students assaulted Wilson, Peterson observed Brannon shooting down the sidewalk area[.]
At the conclusion of the evidence, the jury found defendant guilty of voluntary manslaughter of Morris and guilty of two counts of assault with a deadly weapon inflicting serious injury to McCrary and Phipps. The trial court sentenced defendant to a term of sixty-four months to eighty-six months for the voluntary manslaughter conviction, and terms of twenty-five to thirty-nine months on each of the assault with a deadly weapon inflicting serious injury convictions. Defendant appeals.
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