NORTH CAROLINA COURT OF APPEALS
Filed: 5 December 2006
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 04 CRS 73343
DARRYL MURRAY, 04 CRS 207322
Appeal by defendant from a judgment entered 20 April 2005 by
Judge F. Donald Bridges in Mecklenburg County Superior Court.
Heard in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Roberta A. Ouellette, for the State.
D. Tucker Charns for defendant-appellant.
Defendant Darryl Murray was charged with assault with a deadly
weapon inflicting serious injury, possession of a firearm by a
felon and having attained habitual felon status. The State's
evidence tended to show that on the night of 21 September 2003,
Antonio Goodman (Goodman) went to the motel room of Antonia Barber
after receiving a telephone call from her. The door to the motel
room was open when Goodman arrived. Goodman saw Barber standing
next to the bed and defendant standing next to a dresser setting a
gun down. As Goodman walked into the room, defendant fired a shot
at Goodman's head. Goodman tried to grab the gun and was shot in
the face and in the back. At the close of the State's evidence,
defendant moved to dismiss the charges. The trial court dismissedthe assault charge, but denied the motion as to the possession
Defendant testified that he shot Goodman in self-defense.
Defendant admitted that he had been convicted of possession with
intent to sell and deliver cocaine in 1995 and knew that he was not
allowed to possess a gun. Defendant's co-workers Douglas Lea,
Kenny Rice and Tim Ballard testified on defendant's behalf. Lea,
who was the Human Resources Director at defendant's place of work,
testified that defendant noted that he had been convicted of a
crime on his employment application and that a criminal background
check revealed what [defendant] was charged with in the past.
Lea further testified that defendant was an excellent employee,
trustworthy and a good person. Over defendant's general objection,
the trial court permitted the prosecutor to ask Lea about the
contents of the criminal background report on cross-examination.
The trial court submitted the charge of possession of a
firearm by a felon to the jury. After deliberations, the jury
found defendant guilty as charged. Defendant subsequently admitted
his habitual felon status. The trial court sentenced defendant to
92 to 120 months imprisonment and ordered defendant to pay
restitution of $8,000 to Goodman. Defendant appeals.
Defendant first contends the trial court erred in allowing the
State to cross-examine Lea about defendant's prior criminal
convictions contained in the criminal background check. Duringdirect examination, defense counsel elicited the following
testimony from Lea:
[DEFENSE COUNSEL]: Do you make employees, the
prospective employees fill out applications?
[MR. LEA]: Yes we do. Applications, employment
backgrounds, and drug screens, yes, sir.
[DEFENSE COUNSEL]: Did [defendant] fill out an
application in that regard?
[MR. LEA]: Yes, he did.
[DEFENSE COUNSEL]: Is one of the questions on
the application whether or not you've been
convicted of a prior crime . . .?
[MR. LEA]: That is correct, it is on the
[DEFENSE COUNSEL]: Did [defendant] answer that
[MR. LEA]: Yes, sir, he did.
[DEFENSE COUNSEL]: How did he answer that
question, if you know?
[MR. LEA]: That he did have a background, and
the background revealed what he was charged
with in the past.
On cross-examination, the prosecutor asked Lea do you know
what criminal past he cited in that application? Defense counsel
objected and the trial court overruled the objection. Lea
responded, Yes, sir, I do. I've looked at the criminal background
report. The prosecutor subsequently asked Lea if the report
showed a sale or delivery of cocaine from 1994? and a possession
of cocaine from 1993? to which Lea responded affirmatively. When
the prosecutor asked, Did you uncover a larceny of a breaking and
entering conviction from 1994 from Mecklenburg County? thefollowing occurred:
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[MR. LEA]: May I refer to the records, please?
THE COURT: Yes, sir.
[THE PROSECUTOR]: Yes, please.
[MR. LEA]: We have September 15th
, 1995, felon
possession with intent to sell and distribute
cocaine. Guilty jail, 8 to 10 months. 12/2/93,
sale and delivery of cocaine, one count.
Department of Corrections, 19 years. 10/23,
breaking and entering, jail 9 years.
Defendant asserts it was error for the State to impeach
defendant through Lea's testimony because Lea lacked personal
knowledge of the matters. Rule 602 of the North Carolina Rules of
Evidence states that [a] witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that
he has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the
witness himself. N.C. Gen. Stat. § 8C-1, Rule 602 (2005).
However, evidence which is otherwise inadmissible is admissible to
explain or rebut evidence introduced by defendant. State v.
, 153 N.C. App. 546, 561, 570 S.E.2d 751, 761 (2002)
(citation omitted), cert. denied
, 358 N.C. 158, 593 S.E.2d 397-98
(2004). Further, where a defendant examines a witness so as to
raise an inference favorable to defendant, which is contrary to the
facts, defendant opens the door to the introduction of the State's
rebuttal or explanatory evidence about the matter. Id.
The trial court did not err in admitting evidence ofdefendant's prior convictions. Defendant opened the door by
soliciting vague testimony of a defense witness that defendant had
been charged with something in the past. The details of the
criminal background report were admitted only after defendant
opened the door during direct examination of the defense witness.
This assignment of error is overruled.
Defendant also contends the trial court erred in ordering him
to pay $8,000 in restitution to Antonio Goodman because the trial
court dismissed the assault case in which Goodman was injured.
Section 15A-1340.34 of the North Carolina General Statutes
authorizes the trial court to order restitution for any injuries
or damages arising directly and proximately out of the offense
committed by the defendant. N.C. Gen. Stat. § 15A-1340.34(b)
Here, the trial court dismissed the assault charge and
defendant was convicted of possession of a handgun by a felon and
pled guilty to habitual felon status. The State concedes that
Goodman was not the victim of the possession of a firearm offense,
and therefore, the trial court should not have ordered defendant to
make restitution to Goodman. The judgment is therefore vacated and
the case remanded for resentencing.
No error. Judgment and commitment vacated and case remanded
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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