An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 November 2006
STATE OF NORTH CAROLINA
Nos. 02 CRS 57241-42
TRAVIS JAMES LATTIMORE
Appeal by defendant from judgments entered 22 July 2004 by
Judge Timothy L. Patti in Cleveland County Superior Court. Heard
in the Court of Appeals 10 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Richard B. Glazier for defendant appellant.
Defendant appeals from judgments entered after the jury
returned a verdict of guilty on two charges of first-degree murder.
We find no prejudicial error.
On 14 October 2002, a grand jury sitting in Cleveland County
indicted Travis James Lattimore (hereinafter defendant) on two
charges of first-degree murder. The State proceeded to trial
against defendant on 12 July 2004, and the evidence presented at
trial tended to show the following:
On 29 September 2002, Arthur Eaves (hereinafter Eaves) and
several others, including Reginald Walls (hereinafter Walls) and
defendant, gathered at the home of Eaves at 2102 Elizabeth Avenuein Shelby, North Carolina. Eaves' girlfriend Denise Marble
(hereinafter Marble) and Holly Edwards (hereinafter Edwards)
also both attended the gathering at Eaves' house that night. An
altercation began between Eaves and defendant after Marble observed
defendant, who had been drinking, hit Pork Chop, an elderly man
whom Eaves looked after, with a beer can. Marble then sent Walls
to check on defendant and Eaves since it sounded like the two were
Edwards stated that after the argument, Eaves and Walls came
into the living room and were sitting down when defendant came in
the door with a gun in his hand. Edwards heard gunshots and ran to
the bathroom where she remained until she no longer heard shots.
Around the same time, Marble had gone to the bedroom to check on
her daughter when she heard gunshots. After she heard the shots,
Eaves walked into the room, leaned over the nightstand and said, I
think I been hit. Defendant then entered the bedroom where
Marble, her daughter and Eaves were, and began firing the gun.
When defendant stopped shooting, she took her daughter and left out
the backdoor while Eaves lay on the bedroom floor bleeding.
When Edwards emerged from the bathroom she observed Walls
lying on the floor and he appeared to have been shot in the eye.
At this time, Walls was still alive and attempting to talk to
Edwards. Marble decided to return to the house to help Eaves and
upon her return observed Edwards kneeling beside Walls who appeared
to her to have been shot in the eye and found Eaves lying on the
floor near the dresser. Defendant then returned to the house andshot Walls again, then entered the bedroom stood directly over
Eaves, shot him two more times and then left.
On 1 October 2002, Dr. Mark Whalen performed an autopsy on
Arthur Eaves. He determined that Eaves sustained three gunshot
wounds, two to the head and one to the right lower abdomen. He
determined that either shot to the head would have been lethal but
that the shot to the abdomen was non-lethal. On 30 September 2002,
Phillip Leone performed on autopsy on Reginald Walls. The autopsy
revealed that Walls sustained multiple gunshot wounds to his body:
one wound to the head above the right eye, a wound in the front
left shoulder, one wound to the right shoulder, four wounds in the
right arm, two wounds in the chest, and multiple wounds to the leg.
He further determined that the two wounds to the chest area were
the fatal wounds.
Defendant testified on his own behalf at the conclusion of the
State's evidence. Defendant stated that he and Eaves had a business
relationship in which they sold drugs and liquor together; that he
had occasion to see Walls and Eaves in possession of a number of
firearms; and that Walls oftentimes kept a firearm at his side.
Defendant testified that on 29 September 2002 he attended a
party at Eaves' house where liquor was being sold. Defendant drank
several beers and cups of liquor during the evening. Throughout
the night, defendant was talking to several of the women at the
party including Edwards and Marble. At some point during the night
Edwards advised defendant to move away from her because Walls would
be jealous. Defendant testified that during the night he askedEaves for more liquor, and Eaves and Walls went into the bedroom
where the liquor was kept and shut the door. When they emerged from
the bedroom, Eaves asked defendant to step outside with him. Once
they were outside, Eaves grabbed defendant by the collar and asked
him why he had been hollering at my damn old lady. Defendant
denied the accusations after Eaves continued to issue profanities
at him. The two decided to go inside to straighten things out.
Once inside, Walls joined in the argument and accused
defendant of pursuing Marble as well. Walls then reached behind
his back, pulled out his gun and began hitting defendant in the
face with the gun. The two began to fight over the gun, and as
defendant grabbed the gun, it went off, shooting Eaves in the leg.
At that time Eaves was reaching into his dresser to get his gun
while stating, I'm going to kill you both. When Eaves pulled the
gun out of the dresser, defendant stated, I can't let you shoot
me, closed his eyes and shot.
After defendant shot Eaves, he went outside, only to return
inside again when he heard Edwards attempting to take Walls' gun
from him. Defendant then went to check on Eaves whom he found to
be shaking and shivering. Defendant testified that while he lay in
the bedroom with Eaves, Walls entered the bedroom and shot Eaves.
Defendant then started shooting at Walls out of fear. It was at
this point that defendant shot Walls in the head. Defendant then
saw blue lights, grabbed his shirt, grabbed the gun out of Walls'
hand and ran out the backdoor and proceeded to bury everything in
a field. Defendant attempted to present testimony that Walls hadpreviously informed him that he had killed another individual to
support his theory of self-defense; however, the trial judge
sustained the objection of the prosecution and excluded the
admission of the evidence.
Defendant also presented the testimony of Esther Walls, wife
of the victim Walls, and Classy Martin. Esther Walls testified that
Walls owned a gun. Classy Martin testified that she was at the
party on the night of 29 September 2002; that she saw Walls in the
living room with a gun on his side; that she saw Walls fire the
first shot in the house and then the second shot; that she saw
Walls point the gun at defendant when firing the gun; and that she
ran after the gun was fired.
At the close of all the evidence, defendant made a motion to
dismiss which was denied by the trial judge and the case was sent
to the jury. The jury found defendant guilty of two counts of
Defendant now appeals.
Defendant first contends on appeal that the trial court erred
in failing to remove a juror as it violated his right to a fair
trial and due process of law. We disagree.
Due process requires that a defendant have a panel of
impartial, 'indifferent' jurors. Irvin v. Dowd, 366 U.S. 717, 722,
6 L. Ed. 2d 751, 755 (1961) (citation omitted). It is the duty and
responsibility of the trial judge to insure that the jurors remainimpartial and uninfluenced by outside forces. State v. Rutherford,
70 N.C. App. 674, 677, 320 S.E.2d 916, 919 (1984), disc. review
denied, 313 N.C. 335, 327 S.E.2d 897 (1985). The determination of
whether a juror's impartiality has been affected and whether that
juror should be excused due to alleged misconduct is a
discretionary determination for the trial judge. Id.
The ruling by the trial judge as to whether a juror should be
removed from the panel will not be disturbed absent a manifest
abuse of discretion or a decision that is clearly erroneous. State
v. Sneeden, 274 N.C. 498, 504, 164 S.E.2d 190, 195 (1968). Further,
'[t]he circumstances must be such as not merely to put suspicion
on the verdict, because there was opportunity and a chance for
misconduct, but that there was in fact misconduct. When there is
merely matter of suspicion, it is purely a matter in the discretion
of the presiding judge.' Id. (citation omitted)
In the instant case, when court was in recess, one of the
jurors spoke to an investigator for the State and shook his hand.
Immediately following the observance of this action, defendant
motioned the court to make an inquiry into the contact. The trial
judge called the investigator as well as the juror to the stand in
order to inquire into the conversation held between the parties.
The investigator testified that his only contact with defendant's
case involved serving subpoenas, that the conversation between him
and the juror consisted of, How you doing, Mr. Harper? and I'm
fine[,] and that he knew the juror years ago but could not recall
his name. The juror testified that he knew the investigator fromprevious sports teams; that he had not seen the investigator in
about a year; and that he did not know where or by whom the
investigator was employed. It was further adduced that there was no
discussion regarding defendant's case during the conversation
between the investigator and the juror.
After conducting an inquiry into the conversation between the
investigator and the juror, the trial court made the following
I find for the record that the juror has
stated that although he knows Mr. Hopper
(sic), that he did not know where he is
employed. There's testimony from Mr. Hopper
(sic), the DA's investigator, that he
recognized the juror. That the juror spoke to
him on the way out of the courtroom. That they
shook hands. And the Court finds that this
contact between the juror and the investigator
was incidental, does not relate to the case
and I'm going to DENY the defendant's request.
It cannot be said that the judge abused his discretion where
he made a thorough inquiry into the situation and determined that
the contact was merely incidental and in no way related to the
case. Further, defendant has not shown any misconduct by either
party to the conversation, and we therefore must defer to the
ruling of the trial judge.
This assignment of error is overruled.
Next defendant contends that the trial court committed
reversible error in admitting certain prejudicial and inflammatory
evidentiary exhibits over the objection of defendant at trial. We
disagree. During the State's case-in-chief, Sergeant Mackie Latham gave
testimony regarding the crime scene and the subsequent
investigation. During his testimony and the testimony of the
medical examiners, the State attempted to introduce photographic
evidence depicting the crime scene and autopsies to which defendant
objected. Defendant specifically contends that the trial court
erred in admitting 23 photographs of the victims' bodies,
publishing those photographs on a projector screen in the courtroom
and then republishing them to the jury during jury deliberations.
The admissibility of evidence, including photographic
evidence, is governed by Rule 403 of the North Carolina Rules of
Evidence, which states: Although relevant, evidence may be
excluded 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). Evidence has the danger of unfair prejudice
if it has an undue tendency to suggest a decision on an improper
basis, usually an emotional one. See State v. Mason, 315 N.C. 724,
731, 340 S.E.2d 430, 435 (1986).
In general, photographs are deemed competent evidence when
used to explain or illustrate a witness's testimony. See State v.
Holden, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied, 486 U.S.
1061, 100 L. Ed. 2d 935 (1988). Thus, photographs may be used to
illustrate testimony as to the cause of death and may also be
introduced to illustrate the manner of killing as to provecircumstantially the elements of first-degree murder. State v.
Williams, 308 N.C. 47, 61-62, 301 S.E.2d 335, 345, cert. denied,
464 U.S. 865, 78 L. Ed. 2d 177 (1983); State v. Lester, 294 N.C.
220, 228, 240 S.E.2d 391, 398 (1978). Further, photographs of a
homicide victim may be introduced even if they are gory, gruesome,
horrible or revolting, so long as they are used for illustrative
purposes and so long as their excessive or repetitious use is not
aimed solely at arousing the passions of the jury. State v. Murphy,
321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988).
The decision to exclude evidence is within the sound
discretion of the trial court and such decision will not be
disturbed absent a showing of a manifest abuse of discretion or a
decision which is arbitrary and wholly unsupported by reason. State
v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). The Court
in State v. Hennis set forth certain factors which a trial court
must examine in order to determine whether, under the totality of
the circumstances, the content and presentation of the photographs
is more probative than prejudicial. Id. The factors include: What
a photograph depicts, its level of detail and scale, whether it is
color or black and white, a slide or a print, where and how it is
projected or presented, the scope and clarity of the testimony it
accompanies[,] and the relevance of the scene depicted in order
to ensure that its irrelevant portions do not obscure those
elements that are pertinent to the proffered testimony. Id.
In the instant case, the State was allowed to admit 23
photographs of the crime scene and autopsy. However, it isimportant to note that in the instant case there were two victims,
Walls and Eaves, and the photos represent the crime scene and
autopsy with relation to each separate victim. Further, the trial
judge viewed the photographs objected to by defendant and found
that they depicted something different about the crime scene or
wounds suffered by the victims. In fact, the trial judge excluded
certain photographs that he found to be repetitive or unduly
prejudicial. The State did present the photographs to the jury by
use of a projector and a 3-by-4-foot screen; however, the trial
judge noted for the record, that while the screen may have been
that size, the size of the exhibit portrayed on the screen is far
smaller and did not take up even half of the screen.
It is clear from a review of the record that the trial judge
carefully considered each photograph and weighed the probative
value of each against the potential for unfair prejudice.
Therefore, it cannot be said that he abused his discretion in
admitting certain photographs, excluding others, and allowing the
presentation of the photographs to the jury to be effectuated by
the use of a projector and screen. Viewing the totality of the
circumstances, it cannot be said that the presentation of such
evidence was more prejudicial than probative.
At the close of the evidentiary part of the trial, the jurors
were sent to deliberate on the merits of the case and did so for
one hour. When they returned the next day, the jurors requested to
see certain evidence, including the photographs introduced at
trial. N.C. Gen. Stat. § 15A-1233 permits the trial judge, in hisdiscretion, to allow the jurors to review certain requested
materials admitted into evidence in open court for the purpose of
jury deliberations. N.C. Gen. Stat. § 15A-1233(a)(2005). The
allowance of republication of the photographs to the jury upon
their request cannot be said to have been so arbitrary that it is
devoid of reasoning.
Therefore, this assignment of error is overruled.
Lastly, defendant contends on appeal that the trial court
committed reversible error in excluding defendant's testimony
regarding statements made by the deceased. Even if the trial court
committed error in excluding the purported statement of the victim,
we deem any error to be a harmless one.
Specifically, defendant contends that the trial court erred in
refusing to allow him to present evidence that one of the victims,
Reginald Walls, had previously told defendant that he killed
another individual. Defendant admitted to shooting the two victims
in this case, however, he contended that the shooting was only done
Where defendant argues he acted in self-defense, evidence of
the victim's character may be admissible for two reasons: 'to show
defendant's fear or apprehension was reasonable or to show the
victim was the aggressor.' State v. Ray
, 125 N.C. App. 721, 725,
482 S.E.2d 755, 758 (1997) (citation omitted). However, defendant
must demonstrate that he was prejudiced by the exclusion of such
evidence by showing that had the error in question not beencommitted, a different result would have been reached at the trial
out of which the appeal arises. N.C. Gen. Stat. § 15A-1443(a)
(2005). Further, 'no prejudice arises from the erroneous exclusion
of evidence when the same or substantially the same testimony is
subsequently admitted into evidence.' State v. Cabe
, 136 N.C. App.
510, 514, 524 S.E.2d 828, 831, appeal dismissed, disc. review
351 N.C. 475, 543 S.E.2d 496 (2000) (citation omitted).
In the instant case, defendant presented evidence through his
own testimony to support his theory of self-defense including: that
Walls had held a gun to his head during a previous robbery attempt,
Walls struck defendant in the face with a gun on the night in
question, that defendant was lying beside Eaves when Walls shot
Eaves, and that defendant feared for his life. Defendant further
presented evidence that on the night of 29 September, Walls had a
gun on his right side, that Walls fired the first shot, and that
Walls was aiming at defendant when he fired.
Defendant has failed to show that had he been allowed to
present testimony regarding Walls' previous statement, the outcome
of the trial would have been different. The transcript is replete
with evidence presented by defendant concerning his fear of Walls
and the events of the night; moreover, defendant argued the theory
of self-defense to the jury and the jury was further instructed by
the trial judge. Where prejudice cannot be shown, this assignment
of error is overruled.
Accordingly, we hold that the trial court did not commit any
prejudicial error in finding the contact between the juror and theinvestigator to be incidental and harmless; in admitting 23
photographs depicting the two victims, the crime scene, and
autopsies; in permitting the projection of photographs onto a
screen; in republishing the photos to the jury during deliberations
in open court; or in excluding the purported statement made by
Walls to defendant that he had previously killed someone.
No prejudicial error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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