STATE OF NORTH CAROLINA
v
.
Guilford County
No. 04 CRS 77618
JOSEPH DARRELL KERSEY
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
James M. Bell, for defendant-appellant.
STEELMAN, Judge.
Defendant confessed to shooting Valerie Baker (Baker) five
times on 18 April 2004. Baker died of the gunshot wounds, and
defendant subsequently stuffed her body in a 55 gallon barrel,
which he kept outside near his garage. Defendant's daughter-
in_law, Teresa Kersey (Teresa), contacted the High Point Police
Department on 26 April 2004, and informed Detective James O'Connor
that defendant had admitted to shooting Baker, and that Baker's
body was at his house. Teresa also told Detective O'Connor that
defendant came to her house a few days after the shooting and asked
her if he could put Baker's body in the well in front of Teresa's
house. The following day, 27 April 2004, Detective O'Connor and
Detective Mark B. McNeill went to defendant's house. Detective
O'Connor told defendant that Baker had been reported missing, and
asked him if he knew where she was. Defendant said he did not know
where Baker was, and gave the detectives consent to search his
house. Detective O'Connor noticed a handgun protruding from
defendant's back right pocket. Detective O'Connor stopped
defendant, removed the handgun, and retained it for officer safety.
The detectives did not see anything suspicious in the house, and
after returning defendant's gun to him, they left. The following
morning, 28 April 2004, Teresa made another call to Detective
O'Connor and told him defendant had again contacted her, asking for
help in disposing of Baker's body. Teresa informed Detective
O'Connor that Baker's body was in a large barrel beside defendant's
garage.
Detective O'Connor returned to defendant's house with
Detective McNeill and other law enforcement officers. After
Detective O'Connor noticed a 55 gallon barrel beside defendant's
garage, Detectives O'Connor and McNeill approached defendant's
house and rang his doorbell. Defendant answered, and Detective
O'Connor again took possession of the handgun defendant was
carrying. They asked permission to search defendant's property,
and defendant consented. Detective O'Connor walked directly to the
55 gallon barrel he had seen earlier, and found Baker's body.
Defendant was arrested, and he informed the police that he
wanted them to retrieve a note and an audio tape from inside hisgarage, which they did. In the note, defendant confessed to
shooting Baker, but claimed it was done in self-defense. The tape
contained abusive phone messages allegedly made by Baker and
directed at defendant. Detective McNeill then obtained a search
warrant for defendant's property, and the property was searched.
Detective O'Connor testified that he began informing defendant of
his Miranda rights, but that defendant interrupted him and said
“This is a waste of time. You know I shot her. I shot her. I did
it in self-defense.” Detective O'Connor further testified that
defendant told him Baker had attacked him, and that is why he shot
her. He pointed out some injuries to his head and body that were
allegedly received in the attack, and Detective O'Connor had these
injuries photographed. Defendant informed Detective O'Connor that
the gun he had assumed custody of that morning was the weapon
defendant had used to shoot Baker.
Defendant went to trial on a charge of first-degree murder at
the 21 March 2005 Criminal Session of Guilford County Superior
Court. Defendant testified at trial, and admitted the shooting,
but claimed it was done in self defense. According to defendant's
testimony, Baker, who was around forty years younger than
defendant, had lived with him for a brief period in 2002, and had
continued to spend time at his house since then. Defendant
testified that he loved Baker, and would sometimes give her money,
but that she had a drug and alcohol problem which could make her
abusive. Defendant obtained a restraining order against Baker in
early 2004, but she continued to spend time at defendant's house,apparently with defendant's consent. Baker spent the night before
her death at defendant's house. Defendant testified that the
following morning, 18 April 2004, he noticed both Baker and his car
were gone. Defendant called the police to report his car stolen.
Later that day, police located Baker and defendant's car, which
defendant recovered. Defendant testified that as a result of his
call to the police, Baker was charged with felony possession of a
stolen vehicle.
According to defendant, at around 9:30 that night, Baker
called defendant and began cursing at him, and threatened to kill
him. At approximately 11:00 p.m. that night, defendant heard
someone banging on his back door. It was Baker, who, according to
defendant, pushed through the door, knocking him up against the
wall. Defendant testified that she was drunk and acting “crazy”.
After defendant told Baker that he was not going to give her any
money, she attempted to take money from defendant's pocket by
force. Baker then assaulted defendant with full beer bottles, a
dining room chair, a soap dish, and her fists. Defendant alleged
that Baker threatened to kill him by kicking him in his pacemaker.
Defendant testified that as he was on the floor following this
assault, Baker returned to the refrigerator for a new bottle of
beer. She came at him again, holding the beer bottle in a
threatening manner, and that is when he began shooting her.
Defendant testified that he was afraid and “in a state of shock,”
and that is why he did not go to the police after he shot and
killed Baker. The trial court submitted to the jury the possible verdicts of
guilty of first-degree murder, guilty of second-degree murder,
guilty of voluntary manslaughter, or not guilty. They returned a
verdict of guilty of voluntary manslaughter, and the trial court
sentenced defendant to an active prison term of sixty-four to
eighty-six months, with credit given for time served. From this
judgment defendant appeals.
In defendant's first argument, he contends that the trial
court erred by admitting into evidence the handgun used to shoot
Baker because it was improperly seized. We disagree.
At the suppression hearing, both Detectives O'Connor and
McNeill testified that defendant voluntarily handed the handgun
over to them when asked to do so, and that defendant consented to
their search of the property. They testified that they retained
possession of the handgun while the search was conducted for
officer safety purposes, and, for obvious reasons, retained
possession after defendant was arrested for murder. The
detectives' testimony was that the handgun was finally taken into
official state custody pursuant to a search warrant issued
following defendant's arrest.
Defendant argues that the handgun was improperly seized prior
to the issuance of the search warrant, and therefore should have
been suppressed. He further argues that there were no findings of
fact made by the trial court specifically concerning the seizure of
the handgun, and therefore the trial court's denial of defendant'smotion to suppress was a violation of his constitutional right
against unreasonable searches and seizures.
Even assuming arguendo that defendant is correct in his
argument, he does not contend in his brief that he was prejudiced
in any manner by the admission of the handgun into evidence at
trial, and we hold that any error was harmless beyond a reasonable
doubt. N.C. Gen. Stat. § 15A-1443 (2005). Defendant testified at
trial that he shot Baker and killed her, but argued that the
shooting was done in self-defense. In light of his admission that
he shot and killed Baker, the admission of the handgun in no manner
prejudiced defendant at trial. This argument is without merit.
In defendant's eighth argument, he contends that the trial
court committed reversible error by refusing to admit an arrest
warrant issued against Baker for the theft of defendant's car. We
disagree.
Defendant testified at trial that Baker had taken his car
without his permission, and that as a result she was charged with
felony possession of a stolen vehicle. Defendant was shown a
document which he verbally identified as a copy of an arrest
warrant for Baker for stealing his car. The State objected when
defendant attempted to introduce this warrant into evidence, and
the objection was sustained. Defendant's daughter in law, Teresa,
testified indicating that Baker had stolen defendant's car, and
that “I was the one that had to take out the warrant on [Baker]
because the vehicle was in my name.” “It is well settled in this jurisdiction that no prejudice
arises from the erroneous exclusion of evidence when the same or
substantially the same testimony is subsequently admitted into
evidence.” State v. Hageman, 307 N.C. 1, 24, 296 S.E.2d 433, 446
(1982). Assuming arguendo that the arrest warrant was erroneously
excluded from evidence, in light of the testimony of both defendant
and Teresa indicating that an arrest warrant was issued for taking
defendant's automobile, defendant cannot show prejudice. This
argument is without merit.
In defendant's ninth argument, he contends that the trial
court committed reversible error by admitting testimony in
violation of North Carolina Rules of Evidence Rule 403 indicating
defendant had threatened to shoot Baker. We disagree.
Leslie Fuller, an acquaintance of defendant and Baker,
testified that while she was at defendant's house around November
or December of 2003 (four to five months before the shooting),
defendant stated: “If she just keep [f***ing] with me, I'm going to
shoot her between the eyes.” Defendant objected to the question
from the State eliciting this response on the grounds of leading
and hearsay. The trial court overruled defendant's objection.
Defendant never objected to Fuller's response, nor argued that this
evidence should be excluded under Rule 403 because its “probative
value is substantially outweighed by the danger of unfair
prejudice[.]” Defendant has failed to preserve this issue for
appeal.
State v. Joyner, 167 N.C. App. 635, 638, 606 S.E.2d 196,
198 (2004); State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d682, 685 (2002);
State v. McNeill, 140 N.C. App. 450, 460, 537
S.E.2d 518, 524 (2000)
. This argument is without merit.
In defendant's eleventh argument, he contends that the trial
court committed reversible error by instructing the jury on false,
contradictory or conflicting statements by the defendant over his
objection. We disagree.
Our Supreme Court has held that false,
contradictory, or conflicting statements made
by an accused concerning the commission of a
crime may be considered as a circumstance
tending to reflect the mental processes of a
person possessed of a guilty conscience
seeking to divert suspicion and to exculpate
himself. The probative force of such evidence
is that it tends to show consciousness of
guilt. The instruction is proper not only
where defendant's own statements contradict
each other but also where defendant's
statements flatly contradict the relevant
evidence.
State v. Scercy, 159 N.C. App. 344, 353, 583 S.E.2d 339, 344
(2003).
In the instant case, there was ample evidence of statements
made by defendant that contradicted other statements made by him,
as well as statements that contradicted relevant evidence. Id. As
an example, defendant stated to Detective O'Connor when first
questioned by him that he did not know the whereabouts of Baker.
At trial, defendant admitted to killing Baker and stuffing her body
in a 55 gallon drum, which was sitting just outside defendant's
garage when Detective O'Connor first inquired into Baker's
whereabouts. This argument is without merit. In defendant's twelfth argument, he contends that the trial
court committed reversible error in failing to consider or find
mitigating factors presented by defendant. We disagree.
Defendant was sentenced in the presumptive range for his
conviction. The trial court is not obligated to find factors in
mitigation unless it deviates from the presumptive range. State v.
Mack, 161 N.C. App. 595, 606, 589 S.E.2d 168, 176 (2003). This
argument is without merit.
In defendant's second, third, fourth, fifth, sixth and seventh
arguments, he contends the trial court committed reversible error
by admitting or refusing to admit certain items of evidence at
trial. We disagree.
In order for evidentiary rulings to warrant a new trial,
defendant must show that he was prejudiced thereby. “'A defendant
is prejudiced . . . when there is a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial . . . .' N.C. Gen. Stat. §
15A-1443(a)(2001).” State v. Locklear, 159 N.C. App. 588, 595, 583
S.E.2d 726, 731 (2003). This is defendant's burden.
State v.
Moore, 107 N.C. App. 388, 395, 420 S.E.2d 691, 696 (1992)
.
Defendant has failed to argue that any of the evidentiary rulings
of the trial court created a reasonable possibility of a different
result at trial. Thus, even assuming arguendo the trial court
committed error, defendant has failed in his burden to show he was
prejudiced thereby to an extent warranting a new trial. Id. These
arguments are without merit. Because defendant has not argued his other assignment of error
in his brief, it is deemed abandoned. N.C. R. App. P. Rule
28(b)(6) (2005).
NO PREJUDICIAL ERROR.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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