An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
New Hanover County
No. 04 CRS 051773
HERBERT LINWOOD CLARK, JR.
Appeal by defendant from judgments entered 6 October 2005 by
Judge John W. Smith in New Hanover County Superior Court. Heard in
the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Herbert Linwood Clark, Jr. (defendant) appeals from
judgments entered after a jury found him to be guilty of attempted
first-degree murder, first-degree burglary, assault with a deadly
weapon with intent to kill inflicting serious injury, and assault
on a female. We find no error.
In the Summer of 2003, defendant and Rhonda Allen (the
victim) were dating. Around November 2003, the victim terminated
the relationship because defendant was unemployed. After the
victim ceased the relationship, defendant entered the victim's
workplace and stated, you know I was going to do something to you
or hurt you but you got two kids and I'm not going to do that. The victim told defendant not to visit her at her workplace again
or she would obtain a restraining order.
On the night of 30 January 2004, the victim and her two
children were inside their home. The victim heard thumps at the
door. The victim walked to the living room and heard another
thump. Defendant kicked open the door, stood in the doorway, and
stated, I got a surprise for you. Defendant stated, [w]ell, I
already damaged the door so I need to go ahead and do what I came
to do, and pointed a gun at the victim.
Defendant and the victim struggled over the gun for
approximately five or ten minutes. She convinced defendant to
put the gun down. Defendant and the victim talked for another five
or ten minutes, and she walked him toward the door. The victim
asked defendant to leave, as the victim's mother, Rebecca McMillan
(McMillan), drove her car up the driveway. Defendant pointed the
gun at the victim's head and said, [k]iss your family goodbye.
Defendant and the victim again struggled over the gun. The
gun fired and a bullet entered the carpet. As McMillan walked
through the front door, defendant and the victim continued to
struggle over the gun in the kitchen. The gun fired and a bullet
hit the victim in the chest. McMillan grabbed the victim and told
her to run. The victim ran out of the house and collapsed on her
neighbor's front lawn.
McMillan grabbed defendant and struggled with him into another
room. Defendant fell on top of McMillan. Defendant stated,
[w]ell, if I can't have [the victim], I'll shoot myself or if Ican't kill [the victim], I'll kill myself. Defendant shot himself
in the head.
The police responded and emergency medical services
transported the victim and defendant to the hospital. The victim
suffered severe wounds in her chest, a bruise to the lung, and a
broken hand. On 12 April 2004, a grand jury indicted defendant on:
(1) attempted first-degree murder; (2) first-degree burglary; (3)
assault with a deadly weapon with intent to kill inflicting serious
injury; and (4) assault on a female.
At trial, defendant testified and corroborated the above
facts. A jury returned verdicts of guilty on all charges. The
trial court sentenced defendant, as a prior record level IV
offender, to three consecutive terms for: attempted first-degree
murder, 251 months minimum, 311 months maximum; first-degree
burglary, 117 months minimum, 150 months maximum; assault with a
deadly weapon with intent to kill inflicting serious injury, 133
months minimum, 169 months maximum; and one concurrent term of
seventy-five days for assault on a female. Defendant appeals.
Defendant argues: (1) the State's cross-examination of him
violated the North Carolina Rules of Evidence when the prosecutor
inquired about his prior convictions; (2) the trial court erred in
failing to arrest judgment for his conviction for assault with a
deadly weapon with intent to kill inflicting serious injury,
because he was convicted of attempted first-degree murder based
upon the same facts; and (3) the trial court erred in failing toarrest judgment for his conviction for assault on a female, because
defendant was convicted of attempted first-degree murder based upon
the same facts.
III. Defendant's Prior Convictions
Defendant argues the State's cross-examination of him violated
the North Carolina Rules of Evidence when the prosecutor questioned
him about his prior convictions. We disagree.
A. Standard of Review
Under N.C. Gen. Stat. § 15A-1443(a) (2005):
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant. Prejudice
also exists in any instance in which it is
deemed to exist as a matter of law or error is
deemed reversible per se.
[T]he burden is on the appellant not only to show error but also
to show that he suffered prejudice as a result of the error.
State v. Milby, 302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981).
The test for prejudicial error is whether there is a reasonable
possibility that the evidence complained of contributed to the
B. Impeachment Testimony
Under N.C. Gen. Stat. § 8C-1, Rule 609(a) (2005), [f]or the
purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a felony, or of a Class A1, Class
1, or Class 2 misdemeanor, shall be admitted if elicited from thewitness or established by public record during cross-examination or
thereafter. The permissible scope of inquiry into prior
convictions for impeachment purposes is restricted, however, to the
name of the crime, the time and place of the conviction, and the
punishment imposed. State v. Finch, 293 N.C. 132, 141, 235 S.E.2d
819, 825 (1977).
Details of prior convictions are admissible to correct
inaccuracies or misleading omissions in the defendant's testimony
or to dispel favorable inferences arising therefrom. State v.
Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993).
For example, when the defendant opens the
door by misstating his criminal record or the
facts of the crimes or actions, or when he has
used his criminal record to create an
inference favorable to himself, the prosecutor
is free to cross-examine him about details of
those prior crimes or actions.
Id.; see State v. Small, 301 N.C. 407, 436, 272 S.E.2d 128, 145-46
(1980) (Evidence which might not otherwise be admissible against
a defendant may become admissible to explain or rebut other
evidence put in by the defendant himself.).
Defense counsel asked defendant the following questions during
Defense: [Y]ou mentioned about having been
incarcerated. Can you tell me what you have
been convicted of during the last 10 years
that carries more than 60 days in jail?
Defendant: Mostly a ticket, a driving ticket
with a sports car, a Mazda RX-6.
. . . .
Defense: [Defendant], were you convicted in
1996 for first degree burglary?
Defendant: No sir. . . .
Defendant did not testify on direct examination to any other prior
convictions. During defendant's cross-examination, the transcript
shows the following colloquy between the prosecutor and defendant:
Prosecutor: All right. Now, your record is a
little more extensive than just a conviction
for burglary in '98, isn't that correct, or
whatever it was? You've also been convicted
of breaking and entering in 1995, were you
Defendant: Yes, sir.
. . . .
Prosecutor: But that was with a woman, that
was a woman's house that had a baby?
. . . .
Prosecutor: And they dismissed the felony
restraint and assault with a deadly weapon on
Defense: Move to strike.
Prosecutor: You also got convicted of burglary
that was a 70-year-old woman; is that correct?
Defense: Objection to the facts.
. . . .
Prosecutor: And the felony you intended to
commit on that occasion was a sexual assault;
is that correct?
Prosecutor: You were convicted of burglary for
the purposes of - - - you broke in at night
for the purpose of committing a felony and
that was a sexual assault, was it not?
Defendant: No, sir.
Prosecutor: Well, that's what you were charged
Defendant: That's what I was charged with.
Prosecutor: And you plea bargained and it was
dismissed to your plea to burglary; is that
Defendant: I understand, yes, sir.
Prosecutor: You were also convicted in 1998 of
assault on a female; isn't that correct?
Defendant: Yes, sir.
During direct examination, defendant denied his prior
conviction of burglary and failed to testify to or disclose any of
his other prior convictions. The prosecutor's cross-examination of
defendant elicited his prior convictions for breaking and entering
in 1995, burglary, and assault on a female in 1998. Defendant's
testimony on direct examination could have tended to mislead the
jury about the gravity and nature of his prior convictions. The
prosecutor's questions contradicted defendant's misstatements of
and omissions from his prior criminal record. The trial court
properly permitted the State's cross-examination under the
restrictions set forth in Lynch. Defendant's testimony is also permissible because the trial
court gave the following jury instruction at the beginning of the
In the course of receiving the evidence, it
may be incumbent upon the lawyers to make
objections. So you may hear one of the
attorneys say Objection and I'll respond to
that in one of two ways. I'll either say
Overruled or Sustained. If I say the
objection is sustained, it means that you
should not consider either the question or any
answer. If an answer has started, it should
not be considered by you in any way. If I say
the objection is overruled, all that means is
that the evidence is proper for you to hear
These general instructions, given at the beginning of the trial,
are sufficient to prevent any prejudicial effect produced by the
failure to strike the improper testimony. State v. Strickland,
153 N.C. App. 581, 591, 570 S.E.2d 898, 905 (2002) (citing State v.
Vines, 105 N.C. App. 147, 153, 412 S.E.2d 156, 160-61 (1992)),
cert. denied, 357 N.C. 65, ___ S.E.2d ___ (2003).
Defendant's testimony is admissible either because the
testimony corrected his misstatements and omissions on direct
examination or the trial court gave the quoted general instruction.
Defendant has failed to show there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial out of which the appeal
arises. N.C. Gen. Stat. § 15A-1443. This assignment of error is
IV. Same Facts for Multiple Convictions
Defendant argues the trial court erred in failing to arrest
judgment for his convictions for assault with a deadly weapon with
intent to kill inflicting serious injury and assault on a female.
Defendant contends he was convicted of attempted first-degree
murder based upon the same facts and was subjected to double
jeopardy for convictions of attempted murder and the two assaults
on the victim. We disagree.
The Double Jeopardy Clause of the Fifth Amendment states that
no person shall be subject for the same offense to be twice put in
jeopardy of life or limb. U.S. Const. amend. V; see N.C. Const.
art. I, § 19. The Clause protects against three distinct abuses:
(1) a second prosecution for the same offense after acquittal; (2)
a second prosecution for the same offense after conviction; and (3)
multiple punishments for the same offense. North Carolina v.
Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969); State
v. Ballenger, 123 N.C. App. 179, 180, 472 S.E.2d 572, 572-73
(1996), aff'd per curiam, 345 N.C. 626, 481 S.E.2d 84 (1997). This
Court has recognized that:
[E]ven where evidence to support two or more
offenses overlaps, double jeopardy does not
occur unless the evidence required to support
the two convictions is identical. If proof of
an additional fact is required for each
conviction which is not required for the
other, even though some of the same acts must
be proved in the trial of each, the offenses
are not the same.
State v. Murray, 310 N.C. 541, 548, 313 S.E.2d 523, 529 (1984),
overruled on other grounds by State v. White, 322 N.C. 506, 518,
369 S.E.2d 813, 819 (1988).
A. Attempted First-Degree Murder and Assault with a Deadly Weapon
The elements of attempted first-degree murder are: (1) a
specific intent to kill another; (2) an overt act calculated to
carry out that intent, which goes beyond mere preparation; (3)
malice, premeditation, and deliberation accompanying the act; and
(4) failure to complete the intended killing. N.C. Gen. Stat. §
14-17 (2005); State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d
25, 28 (2000).
The elements of assault with a deadly weapon with intent to
kill inflicting serious injury are: (1) an assault; (2) with the
use of a deadly weapon; (3) with an intent to kill; and (4)
inflicting serious injury, not resulting in death. N.C. Gen. Stat.
§ 14-32(a) (2005); Peoples, 141 N.C. App. at 117, 539 S.E.2d at 28.
In State v. Tirado, the defendants argued that the trial court
erred by submitting to the jury charges for both attempted first-
degree murder and assault with a deadly weapon with intent to kill
inflicting serious injury and by imposing consecutive sentences for
these offenses in violation of their State and Federal
constitutional rights to be free from double jeopardy. 358 N.C.
551, 578-79, 559 S.E.2d 515, 534 (2004). Our Supreme Court
affirmed both convictions and stated, assault with a deadly weapon
with intent to kill inflicting serious injury requires proof of the
use of a deadly weapon, as well as proof of serious injury, neither
of which are elements of attempted first-degree murder. Id. at
579, 599 S.E.2d at 534. Similarly, attempted first-degree murder
includes premeditation and deliberation, which are not elements ofassault with a deadly weapon with intent to kill inflicting serious
injury. Id. Because each offense contains at least one element
not included in the other, defendants have not been subjected to
double jeopardy. Id. This assignment of error is overruled.
B. Attempted First-Degree Murder and Assault on a Female
As noted above, to convict a defendant for attempted first-
degree murder the State must prove: (1) a specific intent to kill
another; (2) an overt act calculated to carry out that intent,
which goes beyond mere preparation; (3) malice, premeditation, and
deliberation accompanying the act; and (4) failure to complete the
intended killing. N.C. Gen. Stat. § 14-17; Peoples, 141 N.C. App.
at 117, 539 S.E.2d at 28.
The elements the State must prove to convict a defendant of an
assault on a female are: (1) an assault; (2) on a female; and (3)
by a male person. N.C. Gen. Stat. § 14-33(c)(2) (2005); State v.
Craig, 35 N.C. App. 547, 549-50, 241 S.E.2d 704, 705 (1978).
Different elements are required for attempted first-degree
murder than for assault on a female. The State is not required to
prove the attempted first-degree murder was perpetrated on a female
by a male person. Different elements must be proved to convict a
defendant of each of these crimes. Double jeopardy does not bar
defendant's convictions for these crimes. This assignment of error
The State's cross-examination of defendant regarding his prior
convictions to cure defendant's misstatements and omissions of hisprior convictions during direct testimony did not violate
defendant's right to a fair trial. The State was required to prove
separate elements on each crime defendant was convicted of
committing. Double jeopardy does not bar any of these convictions.
Defendant received a fair trial, free from prejudicial errors he
preserved, assigned, and argued.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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