An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1480

NORTH CAROLINA COURT OF APPEALS

Filed: 5 September 2006

STATE OF NORTH CAROLINA

v .                         Durham County
                            No. 02 CRS 40899
JOHNNIE DEE ALLEN

    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.

    BRYANT, Judge.

    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.

Facts

    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 times.
    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.
Procedural History

    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.
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    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.
I

    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 [804]” 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

    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 (2004).
    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 Crawford.” 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.” Clark, 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.
II

    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. We disagree.
    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 hearing to 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 (1988)).
    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.
    No error.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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