STATE OF NORTH CAROLINA
Nos. 04 CRS 50273, 1875, 1879
CHAD AARON JOHNSON
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi II, for the State.
Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for Defendant-Appellant.
Chad Aaron Johnson (Defendant) was convicted of one count of
assault inflicting serious injury, two counts of assault with a
deadly weapon inflicting serious bodily injury, and common law
robbery. Defendant appeals.
Defendant moved for a continuance on the morning his trial was scheduled to begin. Defendant contended the State had not timely served notice of its intent to offer DNA evidence. Defendant argued the untimely notice violated his due process right to secure witnesses to testify on his behalf, specifically expert witnesses. The State argued that Defendant had proper notice since Defendant had received State Bureau of Investigation (SBI) reports over six months earlier that recounted the DNA evidence to be offered. Thetrial court denied Defendant's motion to continue and found that Defendant "has had an abundance of time to hire experts in this case, to examine the blood and DNA and has not done so."
During jury selection, a prospective juror indicated that she knew Defendant because Defendant had assaulted her sister. T.38. On its own motion, the trial court excused the prospective juror for cause. The trial court instructed prospective jurors that the statement should not be considered in determining the facts of the case.
Later in voir dire, another prospective juror indicated that he did not know Defendant personally, but knew Defendant's family very well. The prospective juror stated several times that Defendant came from "good people." The trial court also excused this prospective juror for cause. The trial court again instructed the entire jury panel that the statements made during jury selection were not to be considered in determining the facts of the case. T.39. As a result of prospective jurors' statements, Defendant moved for a mistrial, or alternatively, for dismissal of the jury panel and for a continuance of the case so that the case could be tried before another jury panel. The trial court denied Defendant's motion and the case proceeded to trial.
The State's evidence tended to show that a violent assault occurred at Defendant's house on 20 February 2004, involving Defendant, Seth Morris (Morris), Trinity Osteen (Osteen), Aaron Massey (Massey), Jimmy Lee Branks (Branks), and Travis Lee Swangim (Swangim). Morris testified that he called Defendant and Defendant invited Morris to join a party at Defendant's house. Morris arrived at Defendant's house with his cousin, Adam Rector (Rector), at approximately 12:30 or 1:00 a.m. on 20 February 2004. Morris knocked on Defendant's door to ask Defendant whether Rector could also join the group. Defendant agreed, and Morris turned around to wave Rector in. Morris turned back toward Defendant and was struck in the face with an unknown object along his forehead. Morris began "bleeding into [his] eyes." Morris testified several people began hitting and kicking him and that he assumed a defensive position to protect his head.
Morris testified that more than two people beat him all over his back, head, and face. He testified that he was hit with a pistol and told to take off his pants. A dog also began biting him on one of his arms, on his face near his right eye, and on his stomach. He heard Defendant tell him to take his pants off and remembered Defendant pistol whipping him. Morris remembered Rector and Massey helping him back to the car.
Morris testified that at some point during the assault he realized that Osteen was present. Morris testified that Osteen did not like him. After the beating ended, Defendant said he would kill Morris, Rector, and Rector's family if they reported the attack to the police. Morris testified he had cigarettes, money, and pills in his pockets when he arrived, but when he put his pants back on at the end of the assault, the items were missing and his shoes had been removed. As a result of the beating, Morrissuffered extensive injuries, including right eye damage that required reconstructive surgery and the installation of a metal plate. He also suffered six skull fractures, loss of a thumb and part of an arm and hand, nerve damage, multiple dog scratches and bites, and impaired peripheral vision on one side. On cross- examination, Morris admitted that he and Osteen had not gotten along with one another for two or three months.
Rector testified that when he and Morris arrived at Defendant's house on 20 February 2004, Morris went to the front door. Rector then heard a yell and saw "sticks swinging, and a lot of commotion going on." Rector testified that he saw Defendant, Osteen, and Branks beating Morris, but by the time Rector got out of his car, six or seven people had come out of the house. Defendant, Osteen and Branks were assaulting Morris with their fists, sticks, or wood objects. Osteen told Rector to stay out of the fight and pushed Rector away. Three or four people continued to kick and hit Morris. Rector testified that Defendant and Osteen told Defendant's dog to "skit him[,]" and the dog attacked Morris. Defendant told Morris not to return to Defendant's property, and that if Morris or Rector called the police, Defendant would kill Morris, Rector, and Rector's family. Rector also stated that Defendant came out of the house with a pistol, which Defendant waved around while threatening to kill Morris and Rector if they went to the police.
Detective Eddie Gunter (Detective Gunter), an investigator with the Transylvania County Sheriff's Office, testified that hewas called to Transylvania County Hospital on 20 February 2004 in response to the assault on Morris. Detective Gunter obtained a search warrant for Defendant's home the following day. Detective Gunter recovered a scaled replica of a Glock pistol (replica handgun) from a chest of drawers, which contained belongings of Defendant. Detective Gunter also recovered a 9-millimeter pistol bullet, a blood-soaked towel, blood-stained clothes, and a pair of Nike tennis shoes. Detective Gunter testified that Defendant and Osteen returned to Defendant's home while the officers were executing the search warrant. Defendant waived his Miranda rights and spoke with Detective Gunter about the incident. Defendant told Detective Gunter that Morris came to Defendant's house "looking for a fight" and would not leave. Defendant admitted using his fist to strike Morris in the head, but denied using any other object, and denied commanding his dog to attack Morris. Defendant was arrested for assault.
Detective Gunter testified that he spoke with Defendant again later that week. Detective Gunter was at the jail on another matter when Defendant initiated a conversation with Detective Gunter. During that conversation, Defendant admitted hitting Morris with the replica handgun, but said he only hit Morris once, splitting open Morris' eye. Defendant said he "bet [Morris] had some stitches on that eye." On cross-examination, Detective Gunter admitted that the replica handgun would not fire a 9-millimeter bullet and that when viewed up close, the gun was obviously not a real gun. Detective John Nicholson (Detective Nicholson), an investigator with the Transylvania County Sheriff's Office, testified that the replica handgun was a replica of a Glock handgun and that it "function[ed] like a typical semi-automatic pistol" and was "designed after a Glock handgun." He testified that, except for a stamp on the side of the weapon, "the design [was] relatively consistent with a Glock manufacturer."
Dr. Duane Shillinglaw (Dr. Shillinglaw) testified he treated Morris on 20 February 2004 for cerebral spinal fluid draining from Morris' nose and ears, which indicated a crack in the base of Morris' skull. Dr. Shillinglaw testified that Morris' head injuries created the possibility of swelling of the brain, which could be life threatening. Further, Dr. Shillinglaw testified that Morris' injuries were consistent with being hit by a blunt object, such as a 2x4, a baseball bat, or the butt or barrel of a gun.
SBI Special Agent Suzi Barker (Agent Barker) testified as an expert witness for the State. Agent Barker testified that there were visible blood stains on the replica handgun and on the clothing recovered from the scene of the assault. SBI Special Agent Amanda Fox testified that she analyzed the blood samples and concluded that the blood recovered from the clothing did not match the DNA profile of Morris or Defendant. However, the blood on the replica handgun matched Morris' DNA profile, but did not match Defendant's DNA profile.
Jennifer Chapman (Chapman) testified that she was present at Defendant's house on 20 February 2004, when Defendant and Osteensaid Morris would be coming over. She testified that when Morris' car drove up, Defendant walked outside first, followed a minute later by Osteen and Massey. The rest of the group, including Chapman, then followed. Chapman testified that when she walked outside, she saw Defendant, Osteen, and Massey hitting Morris with their fists. Later, Chapman saw Massey hit Morris with a 2x4 more than once. Massey also forced Morris to empty his pockets and take off his shoes. Chapman testified that when Defendant's dog attacked Morris, Defendant took the dog back into the house. Massey then hit Morris with a stick. Chapman also testified that she saw "a BB gun or some small gun" with blood on it on a table in Defendant's house the morning after the assault, but that she did not see a gun used in the assault.
On cross-examination, Chapman testified that Massey used a flashlight to search Morris' pockets, and that Massey also hit Morris with the flashlight. She testified that after putting the dog in the house, Defendant and Osteen came back outside and tried to stop Massey from hitting Morris. Defendant helped Morris put on his pants. Chapman indicated that no one in the group, including Defendant, encouraged Massey to rob Morris.
Swangim testified that he and Branks went to Defendant's house to "hang out" and drink on 20 February 2004. Swangim testified that when he and Branks arrived, Defendant, Osteen, Massey, Chapman, Lindsey Galloway (Galloway), Defendant's cousin, and a girl named Alisha, were present. Swangim said Defendant told the group he had "some company coming up," that "the boy that [Osteen]had a beef with was coming up," and "[i]f [Osteen] wanted to take care of it there, he could, whatever." When Morris arrived, Defendant went outside, the two exchanged words, and a fight broke out. Swangim testified that he saw Defendant throw the first punch. Massey and Branks then went outside, jumped on Morris, and began hitting him. Swangim and Osteen followed, and also began striking Morris. Swangim saw Massey hit Morris in the back of the head with a 2x4 twice. Swangim and Osteen tried to grab the board from Massey. Defendant, Massey, and Osteen continued to strike Morris in the head. Swangim also testified that an object was waved around Morris' face and was put in Morris' mouth, but Swangim could not tell whether it was a gun or a flashlight. Swangim testified that as Morris was leaving, Defendant told Morris to "[g]et off [his] property[,]" and that Defendant then said, "I'm Chad M----- F------ Johnson[.]"
At the close of the State's evidence, Defendant moved to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury, based on use of the replica handgun. The trial court found there was evidence the replica handgun had been used to hit the victim, and stated that "whether or not that's enough to make it a deadly weapon would be a jury question." Defendant also moved to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury, based on use of a piece of wood. Defendant argued there was insufficient evidence presented that Defendant and Massey had acted in concert. The trial court found that "there's evidence that[Defendant] and Massey participated in this affray" and that it was "enough to get acting in concert to the jury." The trial court denied each of Defendant's motions.
Defendant presented evidence and testified on his own behalf. Defendant testified he was aware there were problems between Osteen and Morris because Defendant had witnessed an argument between Morris and Osteen outside the courthouse several days prior to the assault on Morris. Defendant said Morris indicated he would not fight at the courthouse, but that Morris would "get [Osteen] later." Defendant testified that on 20 February 2004, he received a telephone call from Morris around 10:05 p.m. asking whether Osteen was at Defendant's house. Defendant said Osteen was present, and Morris said he wanted to come and "finish the problem that [Osteen] and me have." Defendant told Morris not to come, and the call abruptly ended.
Defendant testified that Morris appeared at Defendant's house at about 1:40 a.m. Before Defendant went outside, he went to his bedroom and retrieved the replica handgun in case he needed something with which to defend himself. He put the gun in the back of his pants, underneath his shirt. Defendant went outside the house and told Morris to leave. Morris refused, and tried to enter the house, at which point Defendant pushed Morris. According to Defendant, Morris pulled out a knife and started walking toward Defendant. Defendant pulled out the replica handgun, and Morris stopped walking toward Defendant. Morris laughed, and indicated he knew the gun was not real. Fearing he would be stabbed, Defendantheld the replica handgun by the barrel, and threw it at Morris. The replica handgun hit Morris in the face, and Morris dropped the knife. Defendant and Morris began to wrestle around on the porch of the house. Osteen, Branks, Swangim, and Massey came out of the house and starting hitting Morris on the back with their fists. Defendant testified that he told them to stop because the fight was between Morris and Defendant. According to Defendant, Osteen, Branks, and Swangim stopped, but Massey continued to hit Morris. Chapman and Galloway came outside, and the dog escaped from the house. Defendant saw his dog bite Morris and tried to prevent the dog from biting again. Defendant got the dog away from Morris and noticed Massey hitting Morris in the back with a 2x4. Defendant saw Osteen grab the 2x4 from Massey. Defendant testified he did not call anyone to help him with the fight with Morris, and that he did not tell anyone where the 2x4 was located. Defendant and Osteen then returned the dog to its cage inside the house. When Defendant returned outside, he saw Massey striking Morris with a stick and a flashlight. Defendant pushed Massey and told him to leave Morris alone. Defendant then helped Morris put his pants back on. According to Defendant, Rector said he and Morris had been drinking, and that Morris wanted to go to Defendant's house. Defendant denied waving any object around Morris' head. Defendant testified he went back into his house and went to sleep after Rector and Morris left.
Defendant testified that the next day he retrieved the knife and the replica handgun from outside and brought them back into thehouse. Defendant also saw Massey later in the day, and Massey bragged about hitting Morris with a 2x4 and stealing Morris' cigarettes and pills. Defendant denied encouraging anyone to strike Morris with a stick or a 2x4, and denied stealing any item of value from Morris, or encouraging anyone else to steal from Morris. Defendant admitted throwing the replica handgun at Morris but denied pistol-whipping him with it. Defendant maintained that he threw the replica handgun because Morris was advancing toward him with a knife. Defendant denied threatening to kill Morris or Rector if they went to the police and denied stating his name at the end of the assault.
Galloway testified she was present at Defendant's house the night of the assault, and that she saw Morris walking toward Defendant with a small metal object in his hand, although she could not identify it as a knife. She then saw Branks, Swangim, and Osteen leave the house. She testified that when she and Chapman went outside, the dog ran out of the house. She saw the dog bite Morris. She testified that the males were all taking turns hitting Morris with their fists. Later in the fight, she saw Massey strike Morris with a black, heavy object that she believed was a flashlight.
Defendant also offered the testimony of Osteen, who stated that he assumed the gun used in the assault was a pellet gun that he and Defendant had previously shot off the porch of Defendant's house.
Margaret Brock testified for Defendant that she knew Morriscarried a knife because she and Morris had used the knife "to cut up crystal meth."
At the close of all the evidence, Defendant renewed his motions to dismiss, which the trial court again denied.
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