STATE OF NORTH CAROLINA
v. Watauga County
No. 03 CRS 50100
WILLIAM ROBERT MILLER
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
J. Clark Fischer for defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of assault with a deadly weapon
inflicting serious injury and was sentenced to an active prison
term of forty-six to sixty-five months. Because we find that he
received a fair trial free from prejudicial error, we affirm the
judgment of the trial court.
The State adduced evidence tending to show that defendant shot
Sherman Davis in the head with a .44 caliber black powder handgun
during a party at the residence of Deborah Downs (Deborah) on the
evening of 13 January 2003. Also in the residence were Deborah's
daughter, Margaret Downs (Margaret), and her friends Alexis Kelly,
Kimberly Moore, Ronnie Hicks, and Joann Coe. Margaret, Kelly,
Moore, and Hicks testified that defendant angrily confronted Davisin the kitchen for allowing defendant's dog to get out of the
house. Defendant then retrieved his gun from Deborah's bedroom,
pointed the gun at Davis' head, and shot him from a distance of a
few feet. Davis testified that as he was retrieving a compact disc
(CD) from a radio in the kitchen, he turned around and saw
defendant pointing a gun at him. Davis then heard a loud noise and
felt a sharp pain and “heat [on] this side of [his] head” as he
fell to the ground. Each of these eyewitnesses also gave
statements to police which corroborated their trial testimonies.
However, Margaret, Kelly, Moore and Hicks acknowledged that they
had been awake for two or three days using methamphetamine at the
time of the shooting and had taken pictures of themselves playing
with defendant's guns, which he kept in the bedroom.
Immediately after the shooting, defendant walked to the house
of Deborah's neighbor, Kenneth Ward, and told him, “[C]all 911, I
shot a man.” Defendant then made a series of inculpatory statements
to members of law enforcement. As he was sitting in a patrol car
at the scene, defendant told Boone Police Officer Danny Houck,
“[Y]eah, I'm guilty I shot him, he hit me and made my teeth fall
out.” Defendant also told Investigator Shane Robbins that Davis
had “knocked his teeth out” and that he “didn't mean to shoot
[Davis].” Finally, he made the following statement while at the
sheriff's office in the presence of Chief Deputy Paula Townsend:
Margaret was going to shoot [Davis] . . . ,
[defendant] said [Davis] jumped Margaret and
then punched [defendant] in the mouth and
knocked his false teeth out . . . .
[Defendant] said that it was his gun, it waslying on a chair and he picked it up.
Margaret had it and when he looked down it was
in his hands.
Defendant also reiterated that he was sorry and “didn't mean for it
to happen[.]”
State Bureau of Investigation Agent Charles McClelland, Jr.,
an expert in gunshot residue analysis, reviewed the gunshot residue
kits performed on the hands of Margaret Downs and defendant. He
found no significant concentration of residue on Margaret's hands
and opined that the result was “not consistent with her firing a
weapon.” The test of defendant's hands revealed gunshot residue
consistent with “the discharge of a firearm, handling of a
discharged firearm or being in close proximity to a discharged
firearm.”
In his testimony at trial, defendant denied shooting Davis.
He claimed that, after arriving at the party, he sat in the living
room with Coe until he heard Margaret and Davis “arguing pretty
heavy” in the kitchen. When he walked into the kitchen, he saw
Margaret pick up the gun, which “was laying in a chair between the
kitchen and the living room[.]” Although he acknowledged owning
the gun, defendant kept the gun in Deborah's bedroom and had not
removed it from this location. When he saw that Margaret was going
to shoot Davis with his gun, defendant “grabbed it and pushed it,
the gun went off and it shot [Davis].” He described his role in
the incident to the jury as follows:
I had my hand on the gun, I tried to push it
away. I wasn't trying to shoot the man I was
trying to save his life, and it just went off, I didn't have my fingers on the trigger.
Defendant further insisted that Davis did not hit him at the party
and that he had never argued or had any problem with Davis.
Although he remembered talking to Sheriff Shook about the shooting,
he “was so tore up over the man being shot” that he was “not
exactly sure what [he] said.” At the time he made the statement,
defendant was “trying to protect Margaret” from being charged with
a crime. He conceded on cross-examination, however, that he never
told law enforcement about Margaret's attempt to shoot Davis or his
own efforts to prevent the shooting.
On appeal, defendant first challenges the trial court's denial
of his pretrial motion to sequester the State's witnesses. In his
written motion, defendant noted the lapse of time between the
shooting and trial and asserted a “possibility that a witness,
unconsciously or otherwise, may tailor his testimony to fit the
majority view or rely less on his own recollection and more on an
unobserved or unremembered fact offered by another.” Defendant
also raised his motion in court immediately before trial as
follows:
[DEFENSE COUNSEL]: . . . I have a motion
to sequester the State's witnesses, it is as
simple as that, just to make sure we get fresh
unbiased testimony here as we go along. I am
prepared to comply with that same requirement.
THE COURT: Why does sequestration
guarantee fresh unbiased testimony?
[DEFENSE COUNSEL]: I didn't say guarantee
it, but I am trying to get as close to it as I
could, Your Honor.
THE COURT: In my discretion, I deny
that[.]”
Defendant now asserts the court abused its discretion by denying
the motion “with no articulated rationale,” in light of the
“significant drug use and the personal relationships between the
civilian eyewitnesses, as well as the defense contention that
Margaret Downs was the person who actually assaulted Davis.”
“'A ruling on a motion to sequester witnesses rests within the
sound discretion of the trial court, and the court's denial of the
motion will not be disturbed in the absence of a showing that the
[action] was so arbitrary that it could not have been the result of
a reasoned decision.'” State v. Roache, 358 N.C. 243, 276-77, 595
S.E.2d 381, 404 (2004) (quoting State v. Hyde, 352 N.C. 37, 43, 530
S.E.2d 281, 286 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d
775 (2001) (quoting State v. Call, 349 N.C. 382, 400, 508 S.E.2d
496, 507-08 (1998))). Although defendant now suggests several
grounds for concern about possible collusion between the State's
witnesses, he failed to present any of these issues to the trial
court. When defendant argued his motion, “defendant gave no
specific reason to suspect that the State's witnesses would tailor
their testimony to fit within a general consensus[,]” State v.
Anthony, 354 N.C. 372, 396, 555 S.E.2d 557, 575 (2001), cert.
denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002), he cited only a
general desire for “fresh, unbiased testimony[.]” Moreover,
“[d]efendant has not pointed to any instance in the record where a
witness conformed his or her testimony to that of anotherwitness[.]” Id. Accordingly, we cannot say the trial court's
decision to deny the motion was manifestly unreasonable or
otherwise an abuse of its broad discretion. Id.
Defendant next claims the trial court erred in overruling his
objection to the following testimony of Ronnie Hicks, depicting
defendant's prior assault upon another person:
Q. (Approaches witness) I will hand you what
has been marked as State's Exhibit 1, and
ask you if you recognize it?
A. Yes, I recognize that gun.
Q. What is that, sir?
A. It is a black caliber pistol, a 44
caliber pistol.
Q. Is that the gun you saw on January 13,
2003 that the Defendant had in his hand?
A. Yes, and I saw it two nights prior to
that when he pulled it out on someone
else.
[DEFENSE COUNSEL]: Objection.
[TRIAL COURT]: Overruled.
(Emphasis added.) Defendant avers that Hicks' reference to a prior
occasion when he saw defendant pull the gun on another person was
probative only of a general disposition to commit firearms assaults
and, therefore, was inadmissible under N.C.R. Evid. 404(b). He
further contends that this evidence was unfairly prejudicial,
portraying him to the jury as a man prone to gun violence.
As quoted above, defendant raised only a general objection to
Hicks' testimony in the trial court. “'A general objection, when
overruled, is ordinarily not adequate unless the evidence,considered as a whole, makes it clear that there is no purpose to
be served from admitting the evidence.'” State v. Williams, 355
N.C. 501, 576, 565 S.E.2d 609, 652 (2002) (quoting State v. Jones,
342 N.C. 523, 535-36, 467 S.E.2d 12, 20 (1996) (citation omitted)),
cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Therefore,
in order to prevail on appeal, defendant must show “that there was
no proper purpose for which the evidence could be admitted.” State
v. Young, 317 N.C. 396, 412, 346 S.E.2d 626, 635 (1986) (citation
omitted). He must also demonstrate “a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial[.]” See N.C. Gen. Stat. §
15A-1443(a) (2003).
We find Hicks' testimony of his prior observation of defendant
with the gun depicted in the photograph probative of the basis for
his identification of the gun used in the shooting, thereby
providing a foundation for admissibility of State's Exhibit 1.
This exhibit was subsequently admitted into evidence by the trial
court. Given the State's burden of adducing “sufficient evidence
of the correctness of such an exhibit to render it competent to be
introduced into evidence[,]” State v. Sanders, 288 N.C. 285, 297,
218 S.E.2d 352, 361 (1975), cert. denied, 423 U.S. 1091, 47 L. Ed.
2d 102 (1976)), Hicks' explanation of how he recognized the gun
depicted in the photograph was relevant to a fact at issue. See
N.C.R. Evid. 401 (defining “relevant evidence” as “having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probablethan it would be without the evidence”).
Moreover, although Rule 404(b) prohibits the use of
“[e]vidence of other crimes, wrongs or acts . . . to prove the
character of a person in order to show that he acted in conformity
therewith[,]” the Rule specifically provides for the use of such
evidence to show “absence of . . . accident.” Our courts have held
that “'[w]here, as here, an accident is alleged, evidence of
similar acts is more probative than in cases in which an accident
is not alleged.” State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596,
608 (2001) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d
876, 891 (1991)). Defendant offered evidence tending to show that
the shooting was accidental. Over the State's objection, he both
sought and obtained a jury instruction on accident, which included
a charge that “[t]he [S]tate must satisfy you beyond a reasonable
doubt that the defendant's injury was not accidental before you
return a verdict of guilty.” Accordingly, the evidence was
admissible for a proper purpose under Rule 404(b).
We further conclude that defendant cannot satisfy his burden
of establishing any prejudice arising from the introduction of the
challenged evidence. Subsequent to Hicks' testimony, defendant
allowed Watauga County Sheriff's Detective Troy Cook to read the
following portion of Margaret Downs' statement to the jury, without
objection:
[Margaret] knew [defendant] was going to pull
a gun, he is quick to do that a few days
earlier he pulled a gun on a man named Barry
[who] is Joann's boy friend [sic].
This evidence of defendant's prior assault upon Barry was both more
precise and more damaging than Hick's general remark about a prior
incident in which defendant pulled a gun. Assuming, arguendo, that
defendant's general objection to Hick's testimony was sufficient
under the 2003 amendment to N.C.R. Evid. 103(a)(2) to create a line
objection to any subsequent introductions of the same evidence, but
see State v. Baublitz, __ N.C. App. __, __, 616 S.E.2d 615, 619
(2005) (declaring the amendment unconstitutional due to its
conflict with N.C.R. App. P. 10(b), but reviewing defendant's
assignment of error pursuant to N.C.R. App. P. 2), we find
nothing in the record to demonstrate that Margaret's statement
referred to the same incident. Inasmuch as defendant did not
explain the basis for his general objection to Hicks' testimony, he
cannot show that he ever objected to the evidence that he pointed
a gun at “Barry” or to the evidence that defendant was “quick to do
that[.]” Having allowed into evidence substantially similar but
more damaging evidence, he cannot show any prejudice arising from
Hicks' remark. Cf. State v. Kyle, 333 N.C. 687, 697, 430 S.E.2d
412, 417 (1993) (“The failure to object to the later admission of
similar evidence is deemed to waive any benefit of the prior
objection and precludes assigning error on the earlier
admission.”). We further note that eyewitnesses, including the
victim, testified that they saw defendant point the gun directly at
Davis' head and shoot him at a distance of a few feet. Defendant
made statements to Downs' neighbor and members of law enforcement
admitting responsibility for the shooting. Defendant's testimonyto the contrary was undermined by the results of the gunpowder
residue kits. To the extent the jury did not deem the testimonies
of Hicks, Davis, Margaret, Kelly, and Moore sufficiently credible
to allow a conviction, we find no reasonable possibility that
Hicks' brief, unexplained comment about defendant pointing the gun
at another person on a different occasion would have tipped the
balance against the defense. See N.C. Gen. Stat. § 15A-1443(a).
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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