Appeal by defendant from judgment entered 28 April 2005 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 20 September 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kevin Anderson, for the State.
Franklin E. Wells, Jr. for defendant-appellant.
Johnny Melvin Kluttz (defendant) appeals from a judgment of
the trial court entered consistent with a jury verdict finding him
guilty of voluntary manslaughter. Defendant contends the trial
court erred in allowing the State to impeach a witness with a prior
inconsistent statement and by admitting evidence of defendant's
prior bad acts. For the reasons set forth herein, we find no
The State presented evidence at trial tending to show the
following: Defendant lived with his girlfriend, Stephanie Ford
(Ford). Ford was acquainted with Tim Groth (Groth), who sought
a romantic relationship with her. Shortly before noon on 3 July
2004, defendant discovered Ford sitting in the passenger-side seatof Groth's vehicle, speaking with Groth, who sat on the driver's
side. The vehicle was parked in front of a local laundromat
several blocks away from Ford and defendant's residence. The
passenger-side door of the vehicle where Ford sat was open.
Defendant approached the vehicle, put his hand on Ford's arm, and
ordered her to [g]et out of the truck. Groth told defendant,
[g]et your M-F hands off of her. He then got out of the vehicle
and the two men began fist-fighting.
Witnesses to the incident included Tyrone Miller (Miller)
and Ford's three daughters, Tawanda Mason (Tawanda), Falisa Ford,
and Charlene Ford. During the fight, Tawanda attempted to restrain
defendant, and called on Miller to hold Groth. Miller held Groth
in a bear hug. A woman warned [h]e's got a knife. Miller then
felt a knife strike his arm, and he released Groth. He looked up
to see defendant, who had broken free of Tawanda's grasp, holding
a knife with a six-inch blade. Groth and defendant resumed
fighting. Defendant struck Groth several more times with the
knife. The fight paused when Ford yelled stop, before Groth
charged defendant, at which point defendant stabbed him again, and
Groth fell to the ground. Defendant apologized to Miller for
striking him with the knife, then fled the scene.
Groth telephoned emergency assistance and informed them that
a guy by the name of Johnny had stabbed him. Upon arrival,
responders administered emergency medical care, but Groth died
shortly thereafter. An autopsy revealed seven fresh knife woundson Groth's body, and the medical examiner confirmed that a stab
wound to the chest was the cause of death.
Defendant testified that Groth was the aggressor, and that
defendant had taken the knife from Groth to prevent being beaten or
stabbed by him. In the hours following the incident, Ford told
police that she witnessed defendant stab Groth, but she denied this
at trial. In Ford's original statement, she said she saw defendant
pull out the knife and stab Groth. At defendant's trial, Ford
testified that the statement was not correct; she knew a knife was
involved in the fight, but she never saw defendant with it. The
State questioned Ford about her previous statement, then refreshed
her recollection with it and introduced the statement into
Upon consideration of the evidence, the jury found defendant
guilty of voluntary manslaughter, and the trial court imposed a
sentence of 117 to 150 months imprisonment. Defendant appeals.
I. Prior Inconsistent Statement
Defendant first contends the trial court erred in allowing the
State to impeach Ford with her prior inconsistent statement,
arguing that the statement was improperly used for its substantive
content. Defendant contends he is thereby entitled to a new trial.
We do not agree.
Defendant did not object to the admission of Ford's prior
statement at trial. Our review is therefore limited to plain error
review. State v. Gary
, 348 N.C. 510, 518, 501 S.E.2d 57, 63
(1998). To prevail on plain error review, defendant must showthat (i) a different result probably would have been reached but
for the error or (ii) the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial. Id
appeal, this Court reviews the entire record to determine if the
error had a probable impact on the jury's verdict. State v. Odom
307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).
Where a witness admits having made a prior statement,
impeachment by that statement is allowed. State v. Riccard
N.C. App. 298, 303, 542 S.E.2d 320, 323 (2001).
[W]here there is testimony that a witness
fails to remember having made certain parts of
a prior statement, denies having made certain
parts of a prior statement, or contends that
certain parts of the prior statement are
false, our courts have allowed the witness to
be impeached with the prior inconsistent
.; see also State v. Whitley
, 311 N.C. 656, 663, 319 S.E.2d 584,
589 (1984) (where the witness testified that she did not remember
making specific statements to the police which tended to inculpate
the defendant, and then denied having made those specific
statements, our Supreme Court held that because the prior
statement with which [the witness] was impeached was inconsistent
in part with her testimony and material in that it related to
events immediately leading to the shooting, the witness could be
impeached concerning the inconsistencies in her prior statement).
[W]hile North Carolina Rule of Evidence 607 allows a party to
impeach its own witness on a material matter with a prior
inconsistent statement, impeachment is impermissible where it isused as a mere subterfuge to get evidence before the jury which is
otherwise inadmissible. Riccard
, 142 N.C. App. at 304, 542 S.E.2d
at 324. To show the impeachment was proper, there must be evidence
the State acted in good faith in impeaching its own witness, such
as the facts that the witness's testimony was extensive and vital
to the government's case; that the party calling the witness was
genuinely surprised by his reversal; or that the trial court
followed the introduction of the statement with an effective
limiting instruction[.] State v. Hunt
, 324 N.C. 343, 350, 378
S.E.2d 754, 758 (1989) (citations omitted).
In the instant case, Ford testified she remembered giving the
statement to law enforcement officers shortly following the
incident. However, she contradicted key elements of her prior
statement. The State refreshed her recollection with the
statement, then attempted to re-question her about what she had
said to police. When Ford continued to contradict the statement,
the trial court asked her directly what she had stated to police,
to which she replied, [t]hat [defendant] stabbed [Groth] with the
knife. Ford testified that despite her earlier statement, that
ain't [sic] what happened.
The testimony of record indicates good faith and the absence
of subterfuge. Id
. at 350, 378 S.E.2d at 758. Ford's testimony
was important for the State, as she was not only an eyewitness, but
the apparent cause of the fight between defendant and Groth. The
State would have been surprised when its own witness drastically
altered her account of the struggle. The interaction with Ford onthe stand made it clear that she was contradicting herself,
understood that, and would continue to contradict her prior
statement. Finally, the trial court gave a proper limiting
instruction. Thus, the State's use of the prior statement to
impeach Ford was proper, and the trial court committed no error,
plain or otherwise. We overrule this assignment of error.
II. Prior Bad Acts
By further assignment of error, defendant argues the trial
court erred in allowing evidence that defendant previously
assaulted Ford. At trial, the State questioned Ford over
defendant's objections regarding an incident in June of 2002 during
which defendant twice struck Ford in the face with his fist. The
State also introduced into evidence the warrant Ford filed against
defendant for the assault, as well as a photograph depicting the
injury to Ford following the assault. Defendant argues that
introduction of the evidence was improper, in that its only
tendency was to depict defendant's bad character. We disagree.
Rule 404(b) of the North Carolina Rules of Civil Procedure
governs the admissibility of evidence of a defendant's prior bad
acts. Under Rule 404(b), evidence of prior acts is admissible 'so
long as it is relevant to any fact or issue other than the
character of the accused.' State v. Moseley
, 338 N.C. 1, 42, 449
S.E.2d 412, 437 (1994) (quoting State v. Boyd
, 321 N.C. 574, 577,
364 S.E.2d 118, 119 (1988)). If the purpose of the evidence does
not violate Rule 404(b), the trial court must determine whether the
evidence is relevant under Rule 401, then balance its probativevalue against its prejudicial effect under Rule 403. State v.
, 315 N.C. 626, 636-40, 340 S.E.2d 84, 91-93 (1986).
Evidence is relevant if it has 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 it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
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). This determination is within the sound discretion of
the trial court, and thus may be reversed only upon a showing that
the ruling was so arbitrary that it could not have been the result
of a reasoned decision. State v. Everhardt
, 96 N.C. App. 1, 18,
384 S.E.2d 562, 572 (1989) (citations omitted).
Here, the State's asserted purposes in presenting the 404(b)
evidence was its importance in the chain of circumstances or
context to the crime, and defendant's motive and intent to exert
control over Ford by fighting Groth. The trial court also found a
purpose for the evidence as explaining Ford's fear of defendant and
her reluctance in testifying against him, totally separate and
apart from that 404(b). The trial court held that the evidence
was admissible under Rule 404(b) for the purposes of showing a
chain of circumstances, context, and intent. It also stated that
the evidence was admissible to explain why Ford first testifiedduring voir dire
she had never been assaulted, evidencing her fear
of another assault.
The evidence of the prior assault formed part of the context
of the instant crime because it explained why the fight with Groth
was not a random occurrence. State v. Agee
, 326 N.C. 542, 547-48,
391 S.E.2d 171, 174 (1990) (holding 404(b) allows evidence that
pertains to the chain of events explaining the context, motive, or
incentive of the crime if it is linked in time and circumstance
with the charged crime, or if it completes a story of the crime for
the jury). This history would also help the jury understand both
defendant's and Groth's states of mind at that point in time.
Defendant had a history of physical abuse toward Ford, and when he
approached Groth's vehicle, he put his hand on Ford's arm and
ordered her to get out. Apparently acting to protect Ford, Groth
told defendant to take his hands off of Ford, then stepped out of
the vehicle to approach defendant.
The trial court performed the necessary steps to admit the
404(b) evidence, first finding the purpose was proper, then finding
that it was relevant to the charged crime, and that its probative
value was not substantially outweighed by its prejudicial effect
under Rule 403. Morgan
, 315 N.C. at 636-40, 340 S.E.2d at 91-93.
We find no abuse of discretion in its ruling. Everhardt
, 96 N.C.
App. at 18, 384 S.E.2d at 572. We overrule defendant's assignment
In the judgment of the trial court, we find
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
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