Appeal by defendant from a judgment entered 24 August 2005 by
Judge Clifton W. Everett, Jr. in Hertford County Superior Court.
Heard in the Court of Appeals 15 November 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Buren R. Shields, III, for the State.
Nora Henry Hargrove for defendant.
BRYANT, Judge.
William Curtis Johnson (defendant) appeals from a 24 August
2005 judgment entered consistent with a jury verdict finding him
guilty of first degree murder. Defendant was sentenced to life
imprisonment without parole.
On 25 October 2002, Ray Anthony Johnkins (Johnkins) died as a
result of a gunshot wound from a .357 Magnum. The State's evidence
tended to show at the time of the shooting a number of individuals,
including Terry Pitt, Demondz Langford and Jimmy Ray Vaughn, were
“hanging out” near the Kool Dee Club in Ahoskie, North Carolina.
Terry Pitt testified that a car belonging to defendant's wife
drove past the Kool Dee Club, turned around and came back to park
on the curb in front of the Club. Defendant and another individualnamed Keith got out of the car and started walking toward the
entrance to the Club. Pitt saw the impression of a gun under
defendant's shirt. Defendant told those on the street that he “was
about to clear the corner.” Pitt told everyone to leave.
Defendant and Keith approached the entrance of the Club when
Johnkins yelled to Keith from the alley. Defendant stopped, turned
around and walked toward Johnkins. Defendant asked Johnkins “who
are you getting loud with?” Johnkins replied “there's no harm in
me speaking to Keith.” Defendant pulled his pistol out. Johnkins
backed up three steps from defendant and defendant shot him. Pitt
described the weapon defendant used as a .357 long barrel pistol
that he had seen previously when he worked with defendant.
Defendant immediately got back into his wife's car and drove away
as Johnkins fell and was calling “help me, help me.”
Demondz Langford testified that, on the same night, he was
“hanging out” near the Kool Dee Club. The car belonging to
defendant's wife drove by, turned around and came back to park near
him. Defendant got out of the passenger side of the car and walked
toward the Club like he was looking for someone. As he walked, he
repeatedly told everyone to leave the block. Johnkins said he was
a grown man and did not have to leave. Defendant walked back
toward Johnkins and shot him. Langford saw defendant shoot
Johnkins. Defendant then walked back to his wife's car still
holding the pistol in his hand. As he walked by Langford,
defendant said “didn't I tell you to leave?” Defendant drove away.
Jimmy Ray Vaughn testified that he recognized both defendantand the victim by sight. On the night in question, Vaughn saw
defendant walking toward the Kool Dee Club and heard defendant
telling everyone to be quiet. When defendant reached the door to
the Kool Dee Club, Vaughn heard Johnkins response to defendant's
comments. Next, Vaughn saw defendant shoot Johnkins.
Ahoskie Police Detective Troy Fitzhugh arrived within a minute
of the 911 call to find Johnkins shot and lying on his back in the
doorway of the Club. At the hospital, Johnkins said he did not
know who shot him. Johnkins told police he was walking down the
street and a man wearing dark clothes and a light colored baseball
cap questioned him about why he was on the street. Johnkins told
the man to mind his own business and the man shot him. On 26
October 2002, after Det. Fitzhugh was notified Johnkins had died,
he learned Demondz Langford had knowledge of the shooting.
Fitzhugh took two statements from Langford. Those statements were
inconsistent with Langford's trial testimony with respect to
actually seeing defendant shoot Johnkins. Defendant was
apprehended in the green Thunderbird belonging to his wife on 28
October 2002. A search of the vehicle revealed a loaded .357
Magnum pistol. Defendant told police that this pistol belonged to
him and he had owned it for twelve to thirteen years. An SBI
firearms expert testified the bullet taken from Johnkins' spine was
fired from the .357 Magnum pistol found with defendant when he was
arrested. The firearms expert also testified the round taken from
Johnkins' spine was consistent with the ammunition found in
defendant's possession. Defendant appeals.
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Defendant raises three issues on appeal whether the trial
court erred in: (I) instructing the jury on flight; (II) denying
defendant's motion for a mistrial; and (III) conferring
jurisdiction on defendant where the first degree murder indictment
did not include the words “premeditation, deliberation or the
specific intent to kill.”
I
Defendant argues the trial court erred in instructing the jury
on flight based on insufficiency of the evidence. Defendant
contends the instruction caused the jury to return a different
verdict based on the fact that the “consciousness of guilt aspect
of the flight instruction”
might have caused the jury to change its
decision about whether defendant was sufficiently intoxicated that
he could not “form the specific intent required for premeditated
and deliberate murder.”
A jury instruction on flight is proper where there is “some
evidence in the record reasonably supporting the theory that the
defendant fled after the commission of the crime charged.”
State
v. Lloyd, 354 N.C. 76, 119-20, 552 S.E.2d 596, 625 (2001)
. “[M]ere
evidence that defendant left the scene of the crime is not enough
. . . . There must also be some evidence that defendant took steps
to avoid apprehension.”
Id. There must be some evidence raising
a “reasonable inference that defendant was attempting to avoid
apprehension.”
State v. Holland, 161 N.C. App. 326, 330, 588
S.E.2d 32, 36 (2003).
Here, the trial court instructed the jury as follows:
Now the State contends that the defendant
fled. The evidence of flight may be considered
by you together with all other facts and
circumstances in the case in determining
whether the combined circumstances amount to
an admission or show a consciousness of guilt.
However proof of this circumstance is not
sufficient in itself to establish the
defendant's guilt. Further, this circumstance
has no bearing on the question of whether the
defendant acted with premeditation and
deliberation. Therefore, it must not be
considered by you as evidence of premeditation
or deliberation.
The trial court informed the jury that “proof of flight was not
sufficient by itself to establish guilt.” The trial court directed
the jury not to consider evidence of flight as tending to show
premeditation or deliberation.
In the present case, the State argues the evidence reasonably
supports the inference defendant fled the crime scene and took
steps to avoid apprehension. There is evidence defendant failed to
assist Johnkins in any manner following the shooting. After
leaving the crime scene, defendant returned thirty minutes later
and was seen speaking with another individual as the police
investigated the shooting. Three days later, defendant was
apprehended several blocks from his home. Taken in the light most
favorable to the State, this evidence may be sufficient to support
an inference that defendant fled the scene and took some steps to
avoid apprehension.
See, e.g. Lloyd, 354 N.C. at 119-20, 552
S.E.2d at 626-27 (flight instruction not error where defendant
drove around for thirty minutes to clear his head and then turn
himself in). Also, evidence of defendant's behavior surroundingthe shooting tends to support a finding of consciousness of guilt,
as set out in the jury instruction. Further, defendant has failed
to show the trial court's instruction on flight was prejudicial
error, as there is no reasonable probability that the instruction
caused the jury to return a different verdict as to first degree
murder.
See N.C. Gen. Stat. § 15A-1443(a) (2005). This assignment
of error is overruled.
II
Defendant next argues the trial court erred in denying
defendant's motion for a mistrial. At trial, defense counsel moved
for a mistrial based on the fact that witness Langford's testimony
on direct examination indicated he saw defendant shoot the victim,
contrary to Langford's earlier statement that he did not actually
see the shooting.
Upon motion by a defendant, the judge must
declare a mistrial if there occurs during the
trial an error or legal defect in the
proceedings, or conduct inside or outside the
courtroom, resulting in substantial and
irreparable prejudice to the defendant's case.
The decision to grant or deny a mistrial rests
within the sound discretion of the trial court
and will be reversed on appeal only upon a
clear showing that the trial court abused its
discretion. Thus, a mistrial should not be
allowed unless there are improprieties in the
trial so serious that they substantially and
irreparably prejudice the defendant's case and
make it impossible for the defendant to
receive a fair and impartial verdict.
State v. Hurst, 360 N.C. 181, 188, 624 S.E.2d 309, 316 (2006)
(citations and internal quotation marks omitted). Prior to ruling on the motion for a mistrial, the trial court
had defense counsel explain what he would have done differently in
preparation for trial had he known Langford would reverse his prior
statement as to seeing defendant shoot the victim. Upon
considering defendant's motion, the trial court stated the
following:
[T]he Court after having reviewed the
statements, the State had the written
statements the State had furnished to [defense
counsel], and having determined that those
statements indicated that Mr. Langford didn't
see anything. And then later the information
that was gleaned from [defense counsel's]
investigator that Mr. Langford did in fact see
the events and they were transcribed by his
investigator and been in his possession for
over two years, which indicated that he saw
the defendant with the gun in his hand walking
away from where Mr. Johnkins was between the
buildings.
And that his testimony from the witness stand
indicating that he actually saw Mr. Johnson,
the defendant, fire the gun are all different.
And that the witness is subject to be cross-
examined by [defense counsel] in relation to
those statements and their reliability and
credibility of his testimony in the statements
are being left for the jury to glean and
consider.
On cross-examination, Langford admitted he had lied to the police
about not actually seeing the shooting and stated he did so because
he did not want to get involved in the case. In addition to
Langford, two other eye witnesses, Terry Pitt and Jimmy Ray Vaughn,
testified before the jury that they saw defendant shoot the victim.
Where other witnesses testified as to having seen defendant shoot
the victim, defense counsel was not prejudiced by Langford'schanged testimony.
See State v. Patterson, 335 N.C. 437, 455, 439
S.E.2d 578, 589 (1994) (citations omitted) (“The purpose of
discovery under our statutes is to protect the defendant from
unfair surprise by the introduction of evidence he cannot
anticipate.”). Given the circumstances of this case, defendant has
failed to prove the trial court committed an abuse of discretion in
denying his motion for mistrial. This assignment of error is
overruled.
III
Defendant next argues the trial court erred in allowing him to
be tried on the first degree murder indictment where the indictment
did not include the words “premeditation, deliberation or the
specific intent to kill.” In his brief defendant cites to
State v.
Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000),
cert. denied, 531
U.S. 1130, 148 L. Ed. 2d 797 (2001) and concedes that this issue is
raised for preservation only as our State Supreme Court has upheld
the constitutionality of the “short form” indictment. Therefore,
this assignment of error is overruled.
State v. Allen, 360 N.C.
297, 316, 626 S.E.2d 271, 286 (2006).
No prejudicial error.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
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