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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TIMOTHY WILEY, JR.
Filed: 3 April 2007
1. Evidence_guilt of another_acting in concert
Any error in the exclusion of the guilt of another (Reggie) from a prosecution for felony
murder, breaking and entering, and other crimes was harmless. Defendant's guilt was not
inconsistent with Reggie's possible guilt; under the theory of acting in concert, defendant was
equally guilty whether he or Reggie actually killed the victim.
2. Homicide_felony-murder_killing during break-in
The trial court did not err by denying defendant's motion to dismiss a murder charge
where defendant was convicted under the felony murder rule. The evidence shows that defendant
and another (Reggie) had a common plan to break into a residence to rob and kill the occupant,
they acted on that plan, there was no question that the victim was killed during the break-in, and
the judge gave an instruction on withdrawal from a criminal enterprise which the jury did not
3. Homicide_felony murder_underlying offense_no prejudicial error
The trial court committed harmless error in a felony murder prosecution where the jury
was instructed that the underlying felony was felonious breaking or entering, which is not one of
the felonies enumerated in the statute, and the court did not instruct the jury that it must find that
defendant committed the crime with the use of a deadly weapon. The evidence of defendant's
guilt was overwhelming and the jury would not have acquitted defendant with a correct
4. Jury_statements by prospective juror_no inquiry into prejudicial impact on
pool_not plain error
There was no plain error in a murder prosecution where the court did not conduct an
inquiry into whether the jury pool was prejudiced by the comments of a prospective juror.
Defendant did not request an instruction or inquiry and the court communicated its disapproval
of the juror's predisposition to find defendant guilty by excusing the potential juror for cause.
5. Evidence_defendant's statement_created from interview notes_admission not
There was ample evidence to convict defendant of first-degree felony murder, even
without contested testimony from a detective about a statement created from interview notes, and
there was no prejudicial error from the admission of the testimony.
Appeal by defendant from judgment entered 6 October 2000 by
Judge Loto G. Caviness in Jackson County Superior Court. Heard in
the Court of Appeals 8 January 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Mary Exum Schaefer for defendant appellant.
Defendant appeals from a jury verdict of guilty of first-
degree murder under the felony-murder rule. We determine there was
no prejudicial error.
Timothy Wiley, Jr. (defendant) was indicted with first-
degree murder, assault with a deadly weapon with intent to kill,
robbery with a dangerous weapon, felonious breaking and entering,
felonious larceny, and felonious possession of stolen goods. The
case was tried before a jury during the 25 September 2000 Criminal
Session of Jackson County Superior Court.
The State presented evidence at trial which tended to show the
following: Defendant made a statement to SBI Agent Toby Hayes
(Agent Hayes), which Agent Hayes dictated, and was typed into a
written report. Agent Hayes read the typed report into evidence.
In the statement, defendant stated that he had been at the
residence of a white female in Highlands, North Carolina, whom
defendant knew through his sister. While there, a white male
attempted to solicit defendant to rob or kill the white male's
father. Defendant understood that there would be plenty of money
and drugs at the white male's father's residence, which could be
taken and kept in return for doing the job. The white male wrote
down some directions to his father's house and gave them todefendant. Defendant told the white male that he did not want to
do the killing, but that he would find someone to do it.
Defendant returned to Georgia and spoke with his cousin, Don
Blackwell, regarding someone who could rob and/or kill the white
male's father, and Blackwell put defendant in touch with Reggie
Butler (Reggie), whom defendant had not originally known. Reggie
agreed to commit the robbery and kill the father because Reggie
needed the money. Defendant offered to provide Reggie with his
cousin's car, for which defendant wanted to be paid $10,000.
Defendant obtained some guns from a man who owed him some money,
and defendant and Reggie left Atlanta, Georgia, with a .32 caliber
revolver, a .22 caliber revolver, a sawed-off shotgun, and a tire
iron. They stopped at a K-Mart for a roll of duct tape. Defendant
drove the entire distance from Atlanta to Highlands.
When they arrived, they drove by the residence of Don Wayne
Potts (Potts), the man they were supposed to kill or rob,
looking for vehicles that had been described to defendant.
Defendant told Agent Hayes that he dropped Reggie off and parked on
a pull-off nearby. Defendant stated that Reggie, carrying the .32
caliber revolver, got out and went through the woods to Potts'
residence. Defendant subsequently left the car to check on Reggie,
whom he found at the rear of the house, forcing entry into the
house on the back lower level. Defendant first stated that he
waited outside while Reggie went inside, and that after hearing
gunshots fired from different caliber weapons and someone saying
he got me, he got me, he ran into the woods, where his eyeglassesfell off. When confronted with the fact that his eyeglasses were
found in the kitchen of the residence, defendant admitted that he
had gone inside, claiming however that when he heard shots fired,
Potts testified that on 17 March 1999 at about 6:00 p.m., he
heard footsteps coming up the stairs from his basement, and a
couple of minutes later he heard footsteps coming down his hallway.
A black man with long hair, whom he identified as defendant, burst
into his bedroom, and fired shots at him. Potts fired back,
shooting himself in the foot. Potts took cover behind the gun
cabinet in his bedroom. Several minutes later he left his position
behind the cabinet to call 911. Potts then called a number of his
friends for help, including Terry Chastain (Chastain). Potts told
Chastain to come over and to blow the horn of his vehicle, but not
to come inside. Chastain arrived, and came inside the residence.
Then, Potts heard glass break and Chastain call for him. Then, he
heard shots fired. The scuffle died down, and he heard Chastain
say, My god, I'm dead, I'm dead. There was another scuffle, and
A few minutes later Potts' friend Steve Potts (Steve),
arrived. They secured the upstairs of the house. Steve wanted to
go down in the basement, but Potts would not let him. He knew
Chastain was shot, and wanted to wait until police arrived because
he did not want anyone else to get shot.
Chastain was found in Potts' basement, having been beaten to
death. Chastain also received two gunshot wounds that would nothave caused death quickly, but would have contributed to blood
loss. Investigation of Potts' residence revealed that it was in
disarray. The trash can had been overturned, the work island had
been knocked loose from the kitchen, and the banister to the
stairway was broken. There was blood upstairs and on the wall
leading downstairs. From the love seat in the upstairs living room,
police recovered a bullet that was matched to a .32 caliber Clerk
First revolver. One of the spindles from the banister ended up in
the basement near Chastain's body. Eyeglasses were found on the
kitchen floor near the work island, and defendant subsequently
acknowledged to Agent Hayes that they were his.
Defendant was apprehended at a payphone. He had a .22 caliber
pistol in his left front pocket, and was carrying a backpack
containing an unloaded sawed-off 12-gauge shotgun, duct tape, two
matching cotton gloves, a magazine containing 9 millimeter rounds
and three 20-gauge shotgun shells, pillowcases, and a tire-type
tool. Subsequent search of the pay phone where defendant was
apprehended revealed a flashlight, a black full-face toboggan, and
a green cloth glove.
Also after the killing, Reggie was apprehended. In Reggie's
left front pocket was a white glove containing several .32 caliber
The defense presented no evidence.
The jury found defendant guilty of felonious breaking and
entering and first-degree murder, under the felony-murder rule,with felony breaking and entering as the underlying felony.
 Defendant contends the trial court erred by denying
defendant's motion to admit several matters into evidence. We
The evidence in dispute includes testimony by Jerry Mack
Brown, testimony by Captain Wallace Hill, and Reggie Butler's
guilty plea. At trial, the defense sought to present the testimony
of Jerry Mack Brown that while he and Reggie were in jail together,
Reggie told him that he had shot Chastain and had beaten Chastain
in the head with a crowbar, and that he tried to kill his
accomplice because his accomplice would not go back in with him,
but instead ran away. The trial court excluded the evidence. In
addition, during defendant's cross-examination of Captain Wallace
Hill, trial counsel asked Hill what Reggie had told him about
Chastain's death and the crowbar. The State objected to the
question, and the trial court sustained the State's objection.
Finally, the defense sought to introduce evidence that Reggie had
pled guilty to the murder, and the trial court excluded the
'The admissibility of evidence of the guilt of one other than
the defendant is governed now by the general principle of relevancy
[stated in Rule 401.]' State v. Israel, 353 N.C. 211, 217, 539
S.E.2d 633, 637 (2000) (citation omitted). Evidence that another
committed a crime is relevant and admissible as substantiveevidence, so long as it points directly to the guilt of some
specific person or persons and is inconsistent with the guilt of
the defendant. State v. Sneed, 327 N.C. 266, 271, 393 S.E.2d 531,
In the instant case, Reggie's possible guilt is not
inconsistent with defendant's guilt. Under the theory of acting in
[I]f 'two persons join in a purpose to commit
a crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose ... or as a
natural or probable consequence thereof.'
State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (citations
omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
'[A] person is constructively present during the commission of a
crime if he or she is close enough to be able to render assistance
if needed and to encourage the actual perpetration of the crime.'
Id. (citation omitted).
Here, defendant admitted to SBI Agent Hayes that he solicited
Reggie to do the breaking or entering and that defendant obtained
a vehicle and guns for use in the crime. Defendant stated he drove
Reggie from Georgia to Jackson County. The evidence shows that
both Reggie and defendant were carrying guns when they got out of
the car to approach Potts' house. Defendant also admitted that he
entered the residence where the crime took place. In addition, it
is uncontroverted that Chastain was killed during the break-in. Because defendant is equally guilty whether he or Reggie
actually killed Chastain, any error would be harmless on the ground
that there is no reasonable probability that the contested evidence
would have affected the jury's verdict of guilty of felony murder.
Accordingly, we disagree with defendant's contention.
 Defendant contends the trial court erred by denying
defendant's motion to dismiss the murder charge where the State
failed to produce sufficient evidence that either defendant or
Reggie committed the murder of Chastain. We disagree.
'In ruling on a motion to dismiss, the trial court need
determine only whether there is substantial evidence of each
essential element of the crime and that the defendant is the
perpetrator.' Id. at 301, 560 S.E.2d at 781 (citation omitted).
Substantial evidence is that amount of relevant evidence necessary
to persuade a rational juror to accept a conclusion. Id. In
resolving this question, the trial court must examine the evidence
in the light most advantageous to the State, drawing all reasonable
inferences from the evidence in favor of the State's case. Id.
A defendant is guilty of felony murder based on a felony not
enumerated in N.C. Gen. Stat. § 14-17 if the killing was
'committed in the perpetration . . . of any . . . felony committed
. . . with the use of a deadly weapon.' State v. Jones, 353 N.C.
159, 164, 538 S.E.2d 917, 922 (2000) (citation omitted). The intent
required for felony murder is the intent to commit the underlying
felony. State v. Roache, 358 N.C. 243, 311-12, 595 S.E.2d 381, 424(2004). The elements of felonious breaking or entering are (1) the
breaking or entering (2) of a building (3) with the intent to
commit any felony or larceny therein (4) without the owner or
occupant's consent. State v. Williams, 330 N.C. 579, 585, 411
S.E.2d 814, 818 (1992).
Under the theory of acting in concert, if two persons join in
a purpose to commit a crime, each of them, if actually or
constructively present, is guilty as a principal if the other
commits that particular crime. State v. Barnes, 345 N.C. 184, 233,
481 S.E.2d 44, 71, cert. denied sub nom. Chambers v. North
Carolina, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), cert. denied sub
nom. Barnes v. North Carolina, 523 U.S. 1024, 140 L. Ed. 2d 473
(1998). [W]here a defendant and a co-defendant shared a criminal
intent and the co-defendant who actually committed the crime knew
of the shared intent, if the defendant was in a position to aid or
encourage the co-defendant when the co-defendant committed the
offense, the defendant was constructively present and acting in
concert with the co-defendant. State v. Tirado, 358 N.C. 551, 582,
599 S.E.2d 515, 536 (2004), cert. denied sub nom. Queen v. North
Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005).
After reviewing the record and transcript of the instant case,
we determine there was sufficient evidence to support the verdict.
For example, the evidence shows that there was a common plan
between defendant and Reggie to break into Potts' residence and
either kill him, rob him, and/or steal from him. Defendant
admitted to obtaining guns and a vehicle and driving Reggie toPotts' residence. The evidence illustrates that Reggie broke and
entered Potts' residence armed with a .32 caliber revolver. Also,
defendant was carrying a gun when he left the vehicle to check on
Reggie. Based on our reading of the briefs, there seems to be no
controversy regarding the fact that Chastain was killed during the
break-in. In addition, the trial judge gave an instruction on
withdrawal from the criminal enterprise which was not accepted by
the jury. Therefore, we disagree with defendant's contention.
 Defendant contends the trial court erred in instructing
the jury. Specifically, defendant contends the trial court
instructed the jury on felony murder using a crime that cannot be
one of the underlying felonies for felony murder, and thus,
defendant is entitled to a new trial. We disagree.
This Court reviews jury instructions 'contextually and in its
entirety.' State v. Blizzard, 169 N.C. App. 285, 296, 610 S.E.2d
245, 253 (2005) (citation omitted). 'The charge will be held to
be sufficient if it presents the law of the case in such manner as
to leave no reasonable cause to believe the jury was misled or
misinformed ... .' Id. at 296-97, 610 S.E.2d at 253 (citations
omitted). 'Under such a standard of review, it is not enough for
the appealing party to show that error occurred in the jury
instructions; rather, it must be demonstrated that such error was
likely, in light of the entire charge, to mislead the jury.' Id.
at 297, 610 S.E.2d at 253 (citation omitted). In order to support a felony-murder conviction, the
underlying felony must be either enumerated in the statute or
'committed or attempted with the use of a deadly weapon[.]' State
v. Terry, 337 N.C. 615, 621, 447 S.E.2d 720, 723 (1994) (citation
omitted). The felony underlying defendant's felony-murder
conviction, felonious breaking or entering, is not one of the
enumerated felonies in the statute. Thus, the trial court should
have instructed the jury that it must find that defendant committed
the breaking or entering with the use of a deadly weapon. However,
the United States Supreme Court has stated that 'an instruction
that omits an element of the offense does not necessarily render a
criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence' and that harmless-error analysis
applies to these errors. Washington v. Recuenco, ___ U.S. ___, ___,
165 L. Ed. 2d 466, 475 (2006) (quoting Neder v. United States, 527
U.S. 1, 9, 144 L. Ed. 2d 35, 51 (1999)).
Although it was error by the trial court not to instruct the
jury that the crime must have been committed with a deadly weapon,
we believe the error was harmless given the facts of this case.
The evidence presented to the jury, which we have already
discussed, was overwhelming. We do not believe that had the trial
court instructed the jury correctly, that the jury would have
acquitted defendant. Accordingly, we disagree with defendant's
 Defendant contends the trial court committed plain error
and abused its discretion by failing to conduct an inquiry to
determine if the prospective jury pool was prejudiced by the
comments of a prospective juror. We disagree.
During questioning of prospective juror Sara Ledford by the
State, Ledford stated that she believed defendant was guilty.
Ledford also stated that she felt that defendant could not get a
fair trial with twelve white jurors. The defense did not object,
and the trial court excused Ledford. Defendant asserts that he is
entitled to a new trial because the trial court did not conduct an
inquiry to determine whether Ledford's statement had prejudiced the
Defendant is not entitled to a new trial based on this
contention. First, our Supreme Court has elected to review
unpreserved issues for plain error when they involve either (1)
errors in the judge's instructions to the jury, or (2) rulings on
the admissibility of evidence. State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996). Thus, there is some question as to
whether defendant's contention is even reviewable under a plain
Second, the contention, even if reviewable, is without merit.
In State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321 (1993), cert. denied,
512 U.S. 1246, 129 L. Ed. 2d 881 (1994), our Supreme Court rejected
a similar argument. There, one of the defendant's potential jurors
stated he felt the defendant needs the handcuffs on, insinuating
the defendant was guilty. Id. at 26, 436 S.E.2d at 335. The trialcourt excused the prospective juror. Id. The defendant argued that
the trial court had erred by failing to give a cautionary
instruction to the rest of the venire. Id. Rejecting the argument,
our Supreme Court first pointed to the fact that the defendant had
not requested any instruction, and second, stated that the court's
excusal of the potential juror repelled any inference of
concurrence with his opinion. Id. at 28, 436 S.E.2d at 337.
In the instant case, defendant requested no instruction or
inquiry, and the trial court's excusal of Ledford for cause
similarly communicated to the jury the judge's disapproval of
Ledford's predisposition to find defendant guilty. Therefore, we
disagree with defendant's contention.
 Defendant contends the trial court committed plain error
by allowing Detective Hayes to testify about a statement created
from notes taken during Hayes' interview of defendant. We
Plain error is defined as a 'fundamental
error, something so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done ... .' State v. Odom
, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (citation omitted). 'To prevail under a
plain error analysis, a defendant must establish not only that the
trial court committed error, but that absent the error, the jury
probably would have reached a different result.' State v. Teate
180 N.C. App. 601, 610, 638 S.E.2d 29, 35 (2006) (citation
omitted). Here, defendant has not shown the jury would have probably
reached a different result if Detective Hayes was not allowed to
testify regarding the statement. After reviewing the record and
transcript, we believe there was ample evidence to convict
defendant even if the contested evidence was not admitted.
Further, Detective Hayes was questioned extensively on cross-
examination about his interview of defendant. Also, we determine
there is no merit in defendant's argument that the statement was
embellished, or in some way perjured. Accordingly, we disagree
with defendant's contention.
No prejudicial error.
Chief Judge MARTIN and Judge LEVINSON concur.
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