STATE OF NORTH CAROLINA
No. 00 CRS 55611
TONY LEE THOMPSON, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert Montgomery, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant-appellant.
Tony Thompson, Jr. (defendant) appeals from judgment entered upon his conviction of assault with a deadly weapon with intent to kill inflicting serious injury. We find no error in his conviction but remand for resentencing.
Defendant was tried before an Orange County jury in August 2001. The State's trial evidence tended to show, in pertinent part, the following: Orson Lavar Lovelace testified that in December 2000 he was a full time student at North Carolina Central University and played on the school's football team. Lovelace, called Love by his friends, was a business major who hoped to play professional football after graduation. He had a weekend jobas a security guard for Club Reflections (the club), a Hillsborough, North Carolina night club. On Saturday, 3 December 2000, Lovelace worked at the club. At closing time, several patrons started fighting in the entryway of the club. Lovelace and other security guards broke up the fight and separated those involved. Lovelace testified that defendant, whom Lovelace recognized as a regular patron of the club, was not part of the fight inside the club's door. As the security guards moved the crowd out of the vestibule and tried to restore order, Lovelace heard shots. He looked out of the club's glass door and saw the defendant holding a gun and standing over a woman. Defendant approached the door to the club, and Lovelace stepped outside to attempt to calm defendant. A few seconds later he saw a flash, fell to the ground, and shouted, I've been shot. Lovelace testified that he was only an arms reach from defendant when he was shot, that he recognized defendant's face, and that he was certain that defendant had shot him.
After the shooting, Lovelace spent over a week in the hospital, where he was treated for a shattered femur and severed blood vessels, including a major artery. His leg ultimately required two surgeries. By the time of trial, Lovelace was no longer using a wheelchair and had regained the ability to walk. However, his treating physician testified that he did not think Lovelace would regain 100 percent use of his leg, and that professional football would not be a good idea for him. John Vaughn, also a part time security guard at the club, testified that on 3 December 2000 he worked at the door of the club, searching patrons for weapons. Vaughn knew defendant's name from hearing other people talk to him, and recalled defendant being at the club that night. When the fight broke out at closing time, Vaughn was among the guards in the vestibule who were trying to restore order and escort patrons outside. During the scuffling, Vaughn saw Lovelace outside the door of the club. He then noticed someone just outside the door had a gun, and Vaughn turned to run away from the vicinity of the weapon. A few seconds later, Vaughn heard gunshots and someone saying, Love was shot. T.J. did it. Vaughn recognized the defendant from the description of T.J. Returning to the club's entrance, Vaughn saw Lovelace lying on the ground bleeding profusely. He stayed with Lovelace while they waited for an ambulance to arrive, and when law enforcement officers arrived, Vaughn gave a statement.
Terrence Brooks testified that he was the manager and part owner of the club. Brooks was a lifelong resident of Hillsborough and knew many of the club's regular customers, including the defendant, whom he knew by the name T.J. On 3 December 2000 Brooks was in a booth near the front door when the fighting started. Defendant was not part of the fight inside the club. When Brooks went outside to deal with the patrons who had been fighting, he saw the defendant holding a gun while standing over a woman, and heard popping noises. He told defendant to leave, and the defendant started towards his car. Brooks started back towards the door ofthe club, believing that the incident was over. To his surprise, the defendant walked past him, also headed for the door. Brooks was just a few feet behind the defendant, and saw him approach the door until he was only about a foot away from Lovelace with no one else between them. Lovelace yelled, He's got a gun and then Brooks heard a shot. When defendant turned around, Brooks saw that he was holding a gun in his hand. Defendant ran towards the parking lot, and shortly thereafter a Cadillac and a Mercedes sped out of the lot.
Law enforcement officers from the Orange County Sheriff's Department arrived at about the same time as the emergency medical technicians (EMTs). While the EMTs stabilized Lovelace and got him into an ambulance, Brooks told a law enforcement officer that T.J. had shot Lovelace, and described the defendant and the Mercedes defendant was driving when he left the club. Brooks testified that he had seen defendant at least twenty or thirty times at the club, that the area where Lovelace was shot was lighted, and that he had no difficulty identifying the defendant and had no doubt that defendant had shot Lovelace. On cross-examination, Brooks testified that when defendant walked pas[t him] and shot Love Brooks yelled, Call 911 - T.J. shot Love. He also said that Lovelace was just standing there when the defendant shot him, that he saw a gun in defendant's hand when the defendant turned around after the shooting, and that the defendant was the only one near Lovelace. Other law enforcement officers testified to their role in the investigation of the incident. Brian Sykes testified that he was an officer in the Orange County Sheriff's Department, and had been dispatched to the club on 3 December 2000. When he arrived, Brooks told him that T.J. had shot Lovelace. Sykes knew that T.J.'s real name was Tony Thompson because Sykes and defendant had grown up and gone to school together. Billy Austin, patrol officer with the Orange County Sheriff's Department, testified that when he arrived at the club on 3 December 2000, Lovelace was lying in a large pool of blood. Austin spoke with Brooks and Vaughn, and asked them to provide written statements describing what they had observed of the shooting. Greg Stroud, an investigator with the Orange County Sheriff's Department, was on call on the night Lovelace was shot. By the time he got to the club, Lovelace had been taken to the hospital. Stroud collected the witness statements written by Brooks and Vaughn, and took photographs of the scene. He testified that the area where Lovelace was shot was sufficiently well lit that flashlights were not needed. Based on information he received, Stroud returned to the Sheriff's office and created a photo lineup that included a picture of defendant. Larry Faucette, an Orange County Sheriff's Department investigator, arrived at the club after Stroud. He testified that he knew the defendant, and knew both his given name and his nickname, T.J. After leaving the club, Faucette met with Brooks and Vaughn at the law enforcement center, and separately showed each of them the photo array. Faucette testified that Brooks identified the picture of defendantas the shooter, known to Brooks as T.J. Vaughn did not see the actual shooting; however, he identified defendant as being the person he knew as T.J.
Christopher Pope, an Orange County Emergency Management paramedic, was tendered and accepted as an expert in paramedic emergency response. He testified that he was working on 3 December 2000, and was called to the club. When Pope arrived, Lovelace was awake and alert, although he had lost a lot of blood. Pope determined that Lovelace had suffered a gunshot wound to his groin area, and observed that Lovelace's right leg was greatly swollen. He applied pressure to the wound, and transported Lovelace to Duke Hospital as quickly as possible.
Dr. John Gray, a surgeon who practiced at Duke Hospital, was accepted as an expert in vascular surgery and trauma medicine. He testified that he had treated Lovelace on 3 December 2000 for a serious wound in his groin area. Gray diagnosed an injury to the main artery serving Lovelace's groin, a possible vascular injury to nearby veins, and a broken femur (leg bone). His expert opinion was that Lovelace's injuries were caused by a bullet wound. Gray repaired Lovelace's arterial and venal injuries, which had caused Lovelace to lose close to half of his total blood volume. He testified that Lovelace's injuries would have been fatal without immediate medical attention.
Dr. Edward Lilly, who was accepted as an expert in orthopaedic surgery and trauma, also treated Lovelace. He diagnosed multiple fractures of Lovelace's right femur. Initially, he performedsurgery on Lovelace, in which he repaired damage to Lovelace's bone with a metal plate and screws. Later, a second surgical procedure was required, in which the plate and screws were replaced by a rod used to stabilize Lovelace's leg bone.
Lawrence Liner, an officer with the Hillsborough Police Department, offered evidence about an earlier incident involving the defendant. He testified that in 1995 defendant had shot a man outside a Hillsborough night club after drawing a weapon from the front of his pants. Defendant had turned himself into the police following the 1995 shooting. When questioned by the trial court, Liner stated that he believed that defendant had pled guilty to a felony assault in the earlier case.
Defendant presented the testimony of two witnesses. LaKeisha Jennings, a distant cousin of Brooks, testified that she had been among the individuals who were fighting in the club's vestibule on 3 December 2000. Brooks took her outside when the fight was broken up, and walked her away from the club. When Brooks walked back towards the club, Jennings heard shots, saw Lovelace lying on the ground, and heard Lovelace yell, Help me. Call the police because I have been shot. She did not see the actual shooting, and did not know where defendant was at the time of the shooting. Gerald Lattie testified that when he arrived at the club on 3 December 2000, people were fighting and arguing near the door. He saw defendant engaged in discussion with another man in the vicinity of the door to the club. As he started towards the club, Lattie heard a gunshot, so he ran back to his car and left. Following the presentation of evidence, the jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced defendant in the aggravated range, to 167-210 months imprisonment. Although defendant gave notice of appeal, his counsel failed to perfect the appeal. In May 2005 this Court issued a writ of certiorari allowing defendant to file the instant appeal from the judgment.
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