Appeal by defendant from judgment entered 17 February 2005 by
Judge Robert F. Floyd, Jr. in Scotland County Superior Court.
Heard in the Court of Appeals 12 April 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jane Ammons Gilchrist, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
Albert Willie McKenzie (defendant) appeals from judgment
entered 17 February 2005 consistent with a jury verdict finding him
guilty of assault with a deadly weapon inflicting serious injury.
For the reasons stated herein, we find no error.
The State's evidence tends to show that defendant lived
adjacent to the homes of Howard Clark (Clark) and Reedy and Robin
Barfield. Defendant's home was accessible by a dirt road that ran
through Clark's property, as well as a road that led from
defendant's home to Crestline Road. Defendant blocked off the road
leading to Crestline Road, and began using the dirt road which ran
across Clark's property to access his home. Shortly thereafter,Robin Barfield (Robin) spoke with Clark regarding problems she
was having with defendant and requested Clark's permission to block
off the dirt road where it crossed Clark's property. Clark agreed.
On 30 January 2004, Robin and her son put up a rope across the
dirt road on Clark's property. Defendant cut the rope later that
afternoon while driving home. Robin told her husband, Reedy
Barfield (Reedy), and Clark that defendant had cut the rope.
Clark agreed to put up a cable.
While Clark was putting up the cable, defendant came out of
his home and walked towards the group, which included Clark, Robin,
Reedy, their two sons, and James Locklear (Locklear).
Defendant's hands were in his pocket as he approached. Defendant
inquired as to what Clark was doing and Clark explained that he was
blocking the road. Defendant came up behind Reedy and remarked,
'[i]t's because of trashy-assed white people and their damned
you[n]guns.' Reedy responded, '[w]ait a minute[,]' and turned
towards defendant. Defendant then stabbed Reedy in the stomach
with a knife. Reedy grabbed his stomach and instructed his son to
go get a gun. Defendant then returned to his home.
Defendant's evidence tended to show that on 30 January 2004,
defendant argued with Robin regarding a rope that was placed across
his driveway. Defendant returned to his home and took a nap. When
he awoke near dusk, defendant discovered that a cable had been
placed across his driveway. Defendant went out into the driveway
where Reedy, Robin, their two sons, and neighbors Clark and
Locklear were gathered. Defendant and Reedy argued about thecable, which Reedy refused to remove. Defendant commented that
Reedy's children were 'trashy-ass unruly kids[,]' and Reedy
responded that defendant couldn't 'talk about my kids that way.'
Reedy then jumped on defendant's back. Defendant reached for a
knife that he carried and swung for Reedy's knee, but missed and
hit his abdomen with the knife. Reedy then came at defendant from
his blind side and knocked out defendant's artificial eye. Reedy
then released defendant and yelled for his son to get the gun.
Defendant retreated to his house.
Defendant was found guilty by a jury of assault with a deadly
weapon inflicting serious injury and was sentenced to a term of
twenty-nine to forty-four months. Defendant appeals.
Defendant first contends the trial court erred in admitting
evidence of prior bad acts. We disagree.
Rule 404(b) of the North Carolina Rules of Evidence states
Evidence 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).
Recent cases decided by this Court under
Rule 404(b) state a clear general rule of
of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but one exception
requiring its exclusion
if its only
probative value is to show thatthe defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.
State v. Coffey
, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Whether the evidence should be excluded is a decision within the
trial court's discretion. State v. Burgess
, 134 N.C. App. 632,
635, 518 S.E.2d 209, 211 (1999). 'Hence, the trial court's
decision will not be disturbed, unless it is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.' Id
Here, in response to a question regarding how and why the
previously good relationship with defendant had deteriorated, Robin
He just got ill with us and decided everything
we had done was wrong, and he had an opinion
on it. And he was in my yard all the time; he
was going through my stuff all the time; he
was picking on my kids or picking on the dog
or picking on me. He ran into the back of my
vehicle one time--. . . slowly.
. . .
He's--I was standing in the front yard, and
the next thing I know, he's standing behind
me, screaming and yelling at me. And I was on
the phone with his daughter at that time. He
knocks the phone out of my hand because he
said I was standing in his yard. I was in
Deanna McKenzie's front yard, the place I was
residing at. It was just a constant battle.
I hated to even go out on my front porch
because I knew [defendant] would be there.
Due to these problems, Robin went to Clark and asked if she could
block the road on Clark's property. Such evidence of prior badacts was offered to show defendant's motive for the commission of
the crime, the deterioration of the relationship between defendant
and the victim's family, and the reason for the road closure which
led to the stabbing. The trial court admitted the evidence as
proof of motive under Rule 404(b) after a lengthy voir dire
Rule 404(b). Furthermore, the trial court gave limiting
instructions to the jury to consider the evidence solely for those
purposes. As we find no abuse of discretion in the trial court's
ruling, this assignment of error is overruled.
Defendant next contends that the trial court erred in allowing
the publication of an exhibit for corroborative purposes which made
reference to bad acts the trial court had previously determined
were inadmissible. We disagree.
N.C.R. App. P. Rule 10(b)(1) requires that [i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
.; see also State v. Taylor
, 128 N.C. App. 394, 398
496 S.E.2d 811, 814 (1998) (holding that the defendant's failure to
object on the grounds argued on appeal waived issue despite
objection on other grounds).
Here, defendant objected to the admission of Clark's statement
to police on the ground that he ha[d] already testified. The
trial court overruled the objection and received the statement intoevidence for purposes of corroboration. Defendant did not object
to the admission of any portion of the statement as a violation of
Rule 404(b). As defendant failed to preserve this issue for
review, this assignment of error is overruled.
Defendant finally contends that the display of a tool not
admitted into evidence by the State during closing arguments was
structural error. We disagree.
Structural error is a rare form of constitutional error
resulting from 'structural defects in the constitution of the trial
mechanism' which are so serious that 'a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt
or innocence.' State v. Garcia
, 358 N.C. 382, 409, 597 S.E.2d
724, 744 (2004) (quoting Arizona v. Fulminante
, 499 U.S. 279,
309-10, 113 L. Ed. 2d 302, 331 (1991)), cert. denied
, 543 U.S.
1156, 161 L. Ed. 2d 122 (2005). Garcia
found that the United
States Supreme Court has
identified only six instances of structural
error to date: (1) complete deprivation of
right to counsel, Johnson v. United States
520 U.S. 461, 468-69, 137 L. Ed. 2d 718, 728
(1997) (citing Gideon v. Wainwright
, 372 U.S.
335, 9 L. Ed. 2d 799 (1963)); (2) a biased
trial judge, Tumey v. Ohio
, 273 U.S. 510, 71
L. Ed. 749 (1927); (3) the unlawful exclusion
of grand jurors of the defendant's race,
Vasquez v. Hillery
, 474 U.S. 254, 88 L. Ed. 2d
598 (1986); (4) denial of the right to
self-representation, McKaskle v. Wiggins
U.S. 168, 79 L. Ed. 2d 122 (1984); (5) denial
of the right to a public trial, Waller v.
, 467 U.S. 39, 81 L. Ed. 2d 31 (1984);
and (6) constitutionally deficient jury
instructions on reasonable doubt, Sullivan v.Louisiana
, 508 U.S. 275, 124 L. Ed. 2d 182
In this case, the prosecutor produced a multi-purpose tool
during closing arguments, stating that it was not the object used
by defendant but that he intended to use it to illustrate a point.
The trial court inquired as to whether the item had been introduced
into evidence, and the State indicated it had not. The trial court
then sustained defendant's objection to the use of the tool for
illustrative purposes during closing arguments.
Here, the State's display of a tool during closing arguments
does not rise to the level of structural error identified by the
United States Supreme Court. Unlike in the case of State v. Eagle
233 N.C. 218, 63 S.E.2d 170 (1951), cited by defendant, the trial
court in the instant case both intervened to query the State as to
whether the evidence had been admitted, and sustained defendant's
objection to the use of the tool for illustrative purpose. As
defendant has failed to establish that structural error occurred,
the assignment of error is overruled.
As the trial court did not abuse its discretion in admitting
evidence of defendant's prior bad acts and defendant has failed to
establish structural error, we find no error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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