Appeal by defendant from a judgment dated 6 August 2004 by
Judge J.B. Allen in Durham County Superior Court. Heard in the
Court of Appeals 16 August 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Edwin W. Welch, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant.
Johnnie Dee Allen (defendant) appeals from a judgment dated 6
August 2004, and entered consistent with a jury verdict finding him
guilty of second degree murder. For the following reasons, we find
no error in the trial below.
On 31 December 2001, defendant was attending a gathering in
memory of a recently deceased child at 1129 Merrick Street in
Durham, North Carolina. Defendant was seen by several people
drinking heavily at the gathering, and was in possession of a
handgun that he kept dropping on the floor. At some point during
the evening defendant joined several people on the porch of the
apartment. Shortly thereafter, Andre Enoch walked past theapartment and defendant ran up to him. Defendant began arguing
with Enoch and the two began to fight. At the trial below, three
witnesses testified they then saw defendant shoot Enoch numerous
times with a handgun. Defendant subsequently ran behind the
apartment building. He was followed by one of the witnesses to the
shooting of Enoch and defendant was subsequently shot several
Upon their arrival at the crime scene, Officers of the Durham
City Police Department found Enoch lying face down on the sidewalk
with what was later determined to be fourteen gunshot wounds to his
abdomen, chest, neck, and face. Defendant was found lying behind
a building located across a grassy area behind 1129 Merrick Street.
Defendant was critically wounded with gunshot wounds to the chest
and abdomen. When EMS arrived, Enoch was deceased and defendant
was taken to Duke University Hospital.
On 4 March 2002, defendant was indicted for the murder of
Andre Enoch. This case was originally tried before a jury on 9
September 2002 at the Criminal Session of Durham County Superior
Court, the Honorable David Q. LaBarre presiding. On 17 September
2002, the trial court entered an order declaring a mistrial after
the jury was unable to reach a unanimous decision as to defendant's
guilt or innocence.
On 26 July 2004, the case was again tried before a jury at the
Criminal Session of Durham County Superior Court, the Honorable
J.B. Allen, Jr., presiding. On 6 August 2004, the jury returned averdict finding defendant guilty of second-degree murder. Pursuant
to the jury verdict, the trial court entered a judgment dated 6
August 2004, sentencing defendant to 220 to 273 months
imprisonment. Defendant appeals.
Defendant raises the issues of whether the trial court erred
by: (I) admitting into evidence the prior testimony of two
witnesses; and (II) admitting into evidence rap song lyrics
composed by defendant.
Defendant first argues the trial court erred in admitting into
evidence the transcribed testimony of two witnesses from
defendant's first trial. At trial, the State moved to introduce
the testimony of James Green and Timothy Moore from the earlier
trial. At the earlier trial, defendant was present, represented by
counsel, had an opportunity to cross-examine both Green and Moore,
and, through counsel, did cross-examine them. The trial court
found that the State . . . ha[d] made a good faith effort in
attempting to serve the witnesses Moore and Green and concluded
that they are unavailable in the meaning of Rule  of the
North Carolina Rules of Evidence. The entire testimony of both
Green and Moore from the earlier trial, including the cross-
examination by defendant's counsel, was admitted and read into
evidence in the jury's presence. Defendant contends the testimony
was inadmissible hearsay and violated his constitutional right to
confront the witnesses against him. We disagree.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. N.C. Gen. Stat. § 8C-1,
Rule 801(c) (2005). However, [t]estimony given as a witness at
another hearing of the same or a different proceeding is not
excluded by the hearsay rule if the declarant is unavailable as a
witness and if the party against whom the testimony is now offered
. . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. N.C. Gen.
Stat. § 8C-1, Rule 804(b)(1) (2005). A declarant is considered
unavailable as a witness if he [i]s absent from the hearing and
the proponent of his statement has been unable to procure his
attendance . . . by process or other reasonable means. N.C. Gen.
Stat. § 8C-1, Rule 804(a)(5) (2005).
Defendant argues the testimony of both Green and Moore was
inadmissible hearsay because defendant did not have a similar
motive to develop the testimony at the second trial because his
counsel had different trial strategies. Defendant states the
introduction of evidence not presented at the earlier trial
necessitated the implementation of a new trial strategy at the
second trial. Defendant argues this new strategy would have led
defendant to focus on different questions and issues in cross-
examining Green and Moore. However, Rule 804(b)(1) is not
concerned with the new questions and concerns defendant would
attempt to bring on cross-examination at the second trial as aresult of a different trial strategy. Rather, the rule focuses on
whether defendant had a similar motive
to cross-examine Green and
Moore in the first place. Defendant has not established that his
motive to conduct cross-examinations of Green and Moore has changed
between the two trials. The motive in both trials is the same --
to impeach the testimony of Green, Moore and other witnesses.
See State v. Hunt
, 339 N.C. 622, 646, 457 S.E.2d 276, 290 (1994)
(Although the trial strategy by defense counsel may have been
different at the second trial, there has been no reasonable showing
that the motive would have been different.).
Defendant also argues the testimony of Green was inadmissible
hearsay because the State did not show that it was unable to
procure his attendance . . . by process or other reasonable means.
Defendant asserts it was unreasonable for the State to have not
asked Green's girlfriend where he could have been found. It is
well established that a witness is not 'unavailable' for purposes
of this exception to the confrontation requirement unless the State
has made a good-faith effort to obtain her presence at trial. The
State's efforts to produce a witness for trial need only be
reasonable and honest. State v. Swindler
, 129 N.C. App. 1, 5, 497
S.E.2d 318, 321 (1998) (citations omitted).
Here, subpoenas were issued for Green to appear and testify at
the second trial. Jennifer McDade, a legal assistant with the
district attorney's office, mailed a copy of the subpoenas to
Green's last known address but they were returned unserved. McDade
also checked with the local jail and the North Carolina Departmentof Corrections in an effort to locate Green, and personally told
Green's girlfriend that Green needed to come to court.
Additionally, Corporal David Addison of the Durham City Police
Department attempted to personally serve Green at Green's last
known address. Corporal Addison also attempted to serve Green at
other known addresses; asked known associates of Green and other
residents in the neighborhoods where Green lived about his
whereabouts; checked for any outstanding warrants taken out against
Green; used his contacts at Durham Crimestoppers; and continued to
search for Green each morning during the actual trial. Corporal
Addison testified he did not ask Green's girlfriend about Green's
whereabouts because he knew McDade had not gotten any information
from her and knew that Green was not residing with her. Similar
efforts were undertaken in an attempt to secure the presence of
Moore at the second trial. These efforts are reasonable and
establish that the State made a good-faith effort to obtain the
presence of both Green and Moore at the second trial.
The prior testimony of Green and Moore is not inadmissible
hearsay evidence and was properly admitted under Rule 804. The
testimony was given at an earlier trial of the same matter. Green
and Moore were properly held to be unavailable at the second trial,
and defendant had the opportunity and similar motive (impeachment)
to develop the testimony at the earlier trial. This assignment of
error is overruled.
Right to Confrontation
Defendant's right to confrontation is protected by the Sixth
Amendment to the United States Constitution and the Declaration of
Rights of the North Carolina State Constitution. U.S. Const.
amend. VI; N.C. Const. art. I, § 23. The Sixth Amendment to the
United States Constitution provides: In all criminal prosecutions
the accused shall enjoy the right . . . to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for
his defense. U.S. Const. amend. VI. The United States Supreme
Court has held that [w]here testimonial evidence is at issue, . .
. the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.
Crawford v. Washington
, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203
Defendant argues the admission of the prior testimony of Green
violated his right to confront the witnesses against him because
the State failed to establish the unavailability of Green at the
second trial. Defendant also argues the admission was in error
with regards to the testimony of both Green and Moore because he
did not have a complete and adequate opportunity to cross-examine
them at the second trial. Defendant contends the change in trial
strategy at the second trial would have caused him to ask different
and additional questions on cross-examination than were asked at
the first trial.
In analyzing a Crawford
claim, we must determine: '(1)
whether the evidence admitted was testimonial in nature; (2)whether the trial court properly ruled the declarant was
unavailable; and (3) whether defendant had an opportunity to
cross-examine the declarant.' State v. Brigman
, 171 N.C. App.
305, 309, 615 S.E.2d 21, 23 (quoting State v. Clark
, 165 N.C. App.
279, 283, 598 S.E.2d 213, 217, disc. review denied
, 358 N.C. 734,
601 S.E.2d 866 (2004)), disc. review denied
, 360 N.C. 67, 621
S.E.2d 881 (2005). The North Carolina Supreme Court has held that
[a]ctual witness testimony from a jury trial is the classic
example of statements that would be considered 'testimonial' and
thus almost always certainly subject to the limitations mandated by
. State v. Lewis
, 360 N.C. 1, 16, 619 S.E.2d 830, 840
(2005), judgment vacated on other grounds
, __ U.S. __, __ L. Ed. 2d
__, 126 S. Ct. 2983 (2006). A witness is not 'unavailable' for
purposes of . . . the exception to the confrontation requirement
unless the prosecutorial authorities have made a good-faith effort
to obtain his presence at trial. State v. Nobles
, 357 N.C. 433,
436, 584 S.E.2d 765, 769 (2003) (citations and quotations omitted).
Further, this Court has held the prior testimony of a witness
given at an earlier trial where defendant was present and
cross-examined the witness, satisfies the cross-examination
requirement under Crawford
, 165 N.C. App. at 287, 598
S.E.2d at 219.
As discussed above, defendant was present at the earlier trial
and cross-examined both Green and Moore. At the second trial the
State presented evidence establishing it had made a good faith
effort to obtain the presence of Green and Moore, and the trialcourt properly found Green and Moore were unavailable to testify at
the second trial. The entire testimony given by Green and Moore
at the earlier trial was admitted into evidence, including that
elicited on cross-examination. We hold the State has satisfied the
requirements set forth in Crawford
, and defendant's Sixth Amendment
right to confront the witnesses against him was not violated by the
admission of the prior testimony of Green and Moore. This
assignment of error is overruled.
Defendant also raises the issue of whether the trial court
erred by admitting into evidence rap song lyrics composed by
defendant. Defendant argues the lyrics were inadmissible pursuant
to Rules 401, 402 and 403 of the North Carolina Rules of Evidence.
At trial, defendant objected to the introduction of rap song
lyrics written by defendant while in custody awaiting trial for the
murder of Enoch. The trial court conducted a voir dire
determine the admissibility of the lyrics and allowed the State to
present the lyrics into evidence. The trial court found the lyrics
sufficiently similar to the facts and circumstances surrounding the
murder of Enoch. The trial court held the lyrics were relevant,
admissible to show motive and intent, and that their probative
value was not outweighed by any unfair prejudice to defendant.
'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than itwould be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401
(2005). Evidence of prior conduct is admissible as long as it is
relevant for a purpose other than to show the defendant's
propensity for the type of act for which he is being charged. N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2005). All relevant evidence is
generally admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2005).
Relevant evidence may, however, be excluded pursuant to Rule
403 if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. N.C. Gen. Stat. §
8C-1, Rule 403 (2005). The decision whether to exclude evidence
under Rule 403 is left to the discretion of the trial court, and a
trial court's determination will only be disturbed upon a showing
of an abuse of that discretion. State v. Campbell
, 359 N.C. 644,
674, 617 S.E.2d 1, 19 (2005), cert. denied
, __ U.S. __ , 164 L. Ed.
2d 523 (2006). 'Abuse of discretion results where the court's
ruling is manifestly unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned decision.' Id.
(quoting State v. Hennis
, 323 N.C. 279, 285, 372 S.E.2d 523, 527
After a review of the record before this Court, we agree with
the trial court that the lyrics were, considering the facts and
circumstances surrounding the murder of Enoch, relevant and
properly admitted for the purposes of establishing defendant's
motive and intent. The trial court made detailed findings as tothe similarities between the lyrics and the facts of the case
before it and while there are some distinctions between the actual
rap lyrics and the comments made by the trial court, those
distinctions are de minimis
. Accordingly, we do not find the
admission of the lyrics to be manifestly unsupported by reason or
so arbitrary that it could not have been the result of a reasoned
decision. Defendant has failed to meet his burden of showing the
trial court abused its discretion in admitting the rap song lyrics.
This assignment of error is overruled.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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