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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. JACOBIE QUONZEL BROCKETT
Filed: 7 August 2007
1. Evidence_prior crimes or bad acts_use of same firearm_relevant to identity
Evidence of prior bad acts (robberies) was relevant to identity and was properly admitted
in a prosecution for gang-related first-degree murder and related crimes. There was expert
testimony that the TEC-9 firearm used in the killing was the weapon used in the robberies.
2. Evidence--prior crimes or bad acts--decision to admit--not an abuse of discretion
The trial judge did not abuse his discretion by admitting evidence of prior bad acts in a
gang-related murder prosecution where he held a voir dire hearing, considered the arguments of
counsel, and then determined that the probative value of the evidence outweighed any prejudicial
effect it may have had. His decision was not arbitrary or unsupported by reason.
3. Evidence--transcript of prior plea--admissibility
The trial court did not err in a prosecution for a gang-related murder by admitting the
transcript of defendant's plea to three prior armed robberies. The transcript established
defendant's admission to having previously used the murder weapon, a limiting instruction was
given, the actual judgment or conviction record was not admitted, and the State was required to
sanitize the plea to remove references to any charge or crime other than that to which he was
4. Evidence_defendant's telephone conversation_discussion of witnesses_profanity_not
The trial court did not err in a first-degree murder prosecution by admitting into evidence
a taped telephone conversation between defendant and his brother in which defendant used
profanity, discussed witnesses who would testify against him, and discussed his brother's sexual
encounters. Defendant's statements about witnesses showed awareness of guilt, and he did not
specifically object at trial to other portions of the testimony. The trial court held a voir dire,
listened to the recording, heard arguments from counsel, and made a reasoned decision.
5. Evidence_meaning of gang terms--detective's lay expertise
The trial court did not err in a gang-related first-degree murder prosecution by allowing a
detective to testify about the meaning of slang terms used by defendant and his brother during a
taped telephone conversation after refusing to qualify him as an expert. The judge stated that he
believed the detective had the training and skills to aid the jury in interpreting the language.
6. Evidence_gang terminology_meaning of specific terms_variable context
The trial court did not err by allowing a detective to testify about the meaning of certain
gang terminology where defendant asserted that the terms have various meanings depending on
the context. It is clear that the testimony was necessary for an understanding of the conversation
in issue, defendant did not object to the specific testimony offered, and he cross-examined the
detective on his interpretation of only one word. Moreover, the judge instructed the jury that it
was the sole judge of credibility.
7. Appeal and Error_preservation of issues_challenge at trial on different basis
A contention about a detective's testimony was not preserved for appeal where the
testimony was not challenged at trial on this basis.
8. Appeal and Error_preservation of issues--not the basis for objection at trial
A contention regarding alteration or supplementation of the transcript of a taped
conversation was not the basis for the objection at trial and was not preserved for appeal. A
general objection to the witness's testimony did not include these changes or additions.
Appeal by Defendant from judgments entered 17 February 2006 by
Judge Quentin T. Sumner in Pitt County Superior Court. Heard in
the Court of Appeals 22 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliot Walker, for Defendant.
On 6 March 2005, O'Joshua Roberts (Roberts) saw Defendant,
a member of a street gang in Greenville called the Fifth Street
Boys, at a convenience store in their neighborhood. Defendant
told Roberts he was afraid that the New York Boys, another street
gang in Greenville, were going to kill somebody because of some
earlier shootings. Defendant then told Roberts that he was going
to get them before they get somebody in our neighborhood. Later
that evening, Defendant and Roberts rode bicycles toward a house
where they believed certain New York Boys were gathered. Roberts
knew Defendant had a gun and that Defendant intended to commit a
shooting. However, he did not continue to ride with Defendant
because he didn't want to have nothing to do with it. Defendantrode on and Roberts heard four or five gunshots and soon saw
Defendant running around the corner. Defendant was running
toward his apartment and carrying a gun in his hand. Roberts
followed Defendant to his apartment where Defendant gave him the
firearm he had been carrying and told him to hide the gun. As a
result of the shooting, Jahmel Little, thirteen years old, was
killed and Donique Rich, twenty or twenty-one years old, was
On 28 March 2005, Defendant was indicted on charges of first-
degree murder of Jahmel Little and assault with a deadly weapon
with intent to kill inflicting serious injury and attempted first-
degree murder of Donique Rich. A jury trial was held before the
Honorable Quentin T. Sumner in Pitt County Superior Court between
13 and 17 February 2006. At the close of the evidence, the jury
returned verdicts finding Defendant guilty on all charges. After
the jury returned its verdicts, Defendant admitted to the existence
of two aggravating factors involving the attempted murder charge.
Specifically, Defendant admitted that he committed the offense
while on pretrial release on another charge and that the victim
of this offense suffered serious injury that is permanent and
Based on the jury's verdicts, Defendant's prior record level
of IV, and the admitted aggravating factors, Judge Sumner sentenced
Defendant to life imprisonment without parole for his conviction
of first-degree murder. Judge Sumner imposed a consecutive
sentence of 313 months minimum and 385 months maximum imprisonmentfor Defendant's conviction of attempted first-degree murder. Judge
Sumner arrested judgment on Defendant's conviction of assault with
a deadly weapon with intent to kill inflicting serious injury.
(See footnote 1)
From the judgments entered upon his convictions, Defendant appeals.
For the reasons which follow, we hold that Defendant received a
fair trial, free of error.
 By his first argument, Defendant contends Judge Sumner
committed prejudicial error in admitting, over Defendant's
objection, evidence regarding Defendant's participation in three
armed robberies that occurred approximately two months before the
events which are the subject of this case. Defendant argues this
evidence violated Rule 404(b) of the North Carolina Evidence Code.
This argument is without merit.
We review a trial court's admission of evidence under Rule 404
of the North Carolina Rules of Evidence for an abuse of discretion.
State v. Summers, 177 N.C. App. 691, 629 S.E.2d 902, appeal
dismissed and disc. review denied, 360 N.C. 653, 637 S.E.2d 192
(2006). A trial court may be reversed for abuse of discretion
only upon a showing that its ruling was manifestly unsupported by
reason and could not have been the result of a reasoned decision.
State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
Rule 404(b) provides that [e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). The admission of
evidence under Rule 404(b) is constrained by how similar in manner
and how close in time the prior acts were to the crimes with which
the defendant is currently charged. State v. Abraham, 338 N.C.
315, 451 S.E.2d 131 (1994).
[E]vidence is admissible under Rule 404(b) of
the North Carolina Rules of Evidence if it is
substantial evidence tending to support a
reasonable finding by the jury that the
defendant committed a similar act or crime and
its probative value is not limited solely to
tending to establish the defendant's
propensity to commit a crime such as the crime
State v. Stager, 329 N.C. 278, 303-04, 406 S.E.2d 876, 890 (1991)
(citations omitted). Prior crimes or acts by the defendant are
deemed similar when there are some unusual facts present in both
crimes or particularly similar acts which would indicate that the
same person committed both[.] State v. Moore, 309 N.C. 102, 106,
305 S.E.2d 542, 545 (1983) (citations omitted). However, it is
not necessary that the similarities between the two situations rise
to the level of the unique and bizarre. Rather, the similarities
simply must tend to support a reasonable inference that the same
person committed both the earlier and later acts. Stager, 329
N.C. at 304, 406 S.E.2d at 891 (internal quotations and citation
omitted). In the case at bar, Defendant argues the murder and assault
charges are not sufficiently similar to the robberies because (1)
the robberies occurred inside a residence and the shooting occurred
outside in the street, (2) Defendant allegedly shot at a dog during
the robberies, but shot people in this case, (3) Defendant walked
to commit the robberies, but rode a bicycle to commit the
shootings, (4) Defendant attempted to conceal his identity during
the shootings, but made no such effort during the robberies, and
(5) the only similar fact between the charged offenses and the
robberies was that defendant allegedly used the same TEC 9 weapon
each time. Defendant further asserts that [b]ecause firearms
always are used in shootings and commonly are used in robberies,
this fact, though similar, is not unusual. We are not persuaded.
During the trial, Neal Morin, a special agent with the North
Carolina State Bureau of Investigation and an expert in the field
of firearm identification, testified that the TEC 9 firearm used to
kill Jahmel Little was the same weapon used to commit the robberies
to which Defendant pled guilty. From this testimony, it is clear
that the evidence regarding Defendant's participation in the armed
robberies established more than that Defendant had the propensity
to break the law. This evidence established not only that
Defendant had used a firearm to commit a crime in the recent past;
significantly, it also demonstrated that Defendant had used or had
access to the same firearm within two months of the shootings. At
a minimum, this evidence was relevant to prove identity and plainly
supports a reasonable inference that the same person committedboth the earlier and later acts. Id. Judge Sumner properly ruled
that the evidence was admissible under Rule 404(b).
 However, in framing his Question Presented on this
issue, Defendant further asserts that the admission of evidence of
the three prior armed robberies under Rule 404(b) was prejudicial
error. While Defendant does not clearly argue that the admission
of this evidence violated Rule 403 of the North Carolina Evidence
Code, we believe it is imperative to address this issue.
Pursuant to Rule 403 of the North Carolina Rules of Evidence,
[a]lthough 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). The exclusion of evidence under Rule 403 is a matter
left to the sound discretion of the trial judge, and we will
reverse a Rule 403 decision of the trial court only when the
decision is arbitrary or unsupported by reason. State v. Hyatt,
355 N.C. 642, 566 S.E.2d 61 (2002), cert. denied, 537 U.S. 1133,
154 L. Ed. 2d 823 (2003).
Here, before permitting the jury to hear evidence regarding
the prior armed robberies, Judge Sumner conducted a voir dire
hearing to take Roberts's testimony, considered arguments of
counsel, and then determined that the probative value offered by
the State's proffered . . . evidence in this matter outweighs any
prejudicial effect it may have. Judge Sumner properly balancedthe potential prejudicial effect of the 404(b) evidence against its
probative value. His decision to admit the evidence was not
arbitrary or unsupported by reason. We disagree with Defendant
that admission of this evidence constituted prejudicial error.
Accordingly, this assignment of error is overruled.
 Defendant next asserts the trial court committed
prejudicial error in admitting over his objection the transcript of
his guilty plea to the three armed robberies. Defendant's argument
As discussed supra,
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b). Relying on Judge Wynn's
dissenting opinion in State v. Wilkerson, 148 N.C. App. 310, 319,
559 S.E.2d 5, 11 (Wynn, J., dissenting), rev'd per curiam for
reasons stated in dissenting opinion, 356 N.C. 418, 571 S.E.2d 583
(2002), and State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863
(2005), disc. review denied, ___ N.C. ___, 628 S.E.2d 8 (2006),
Defendant contends the admission in evidence of his Transcript of
Plea for the three armed robberies was improper evidence of a
bare conviction and was unduly prejudicial. However, these cases
are distinguishable from the case at bar, and thus, do not control. In Wilkerson, after testimony from two law enforcement
officers regarding the defendant's
prior crimes on 15 June and 11 and 12 October
1994, . . . the Deputy Clerk of the Superior
Court, Rockingham County, testified that
defendant had prior convictions on file in
Rockingham County for (1) possession of
cocaine on 15 June 1994, (2) possession with
intent to sell or deliver cocaine on 11
October 1994, and (3) sale or delivery of
cocaine on 11 October 1994.
Wilkerson, 148 N.C. App. at 320, 559 S.E.2d at 11. Similarly, in
McCoy, the State elicited . . . testimony . . . describ[ing] the
underlying facts of an assault committed by the defendant . . . .
Following [this] testimony, the State introduced a certified copy
of defendant's criminal conviction . . . resulting from the events
described[,] and the trial court admitted both the testimony and
the evidence of the defendant's prior conviction. McCoy, 174 N.C.
App. at 111, 620 S.E.2d at 868. In each case, although the
testimony describing the underlying facts of the prior crimes was
admissible, the defendant was awarded a new trial due in part to
the admission of the bare fact of each defendant's prior
conviction, evidence that would permit the jury to surmise that
the defendant, having once formed the necessary intent or developed
the requisite mens rea, undoubtedly did so again; after all,
another jury ha[d] already conclusively branded the defendant a
criminal. Wilkerson, 148 N.C. App. at 328, 559 S.E.2d at 16.
In the case at bar, the State first elicited testimony from
Roberts, a friend of Defendant who was with him on the night of the
shooting and who participated with him in the armed robberies, andfrom police officer Jason Campbell and Corporal John Jenkins of the
Greenville Police Department to establish the underlying facts of
the armed robberies. The State then offered in evidence the
Transcript of Plea by which Defendant, of his own free will,
fully understanding what he was doing, admitted his guilt to the
armed robbery charges. Therefore, the admission of this document
constituted more than bare evidence of Defendant's prior
conviction. Rather, it was an admission by Defendant that he had
participated in the armed robberies. Based on the properly
admitted evidence establishing that the same firearm used in the
armed robberies was used to murder Jahmel Little, Defendant's
guilty plea demonstrated that he admitted having access to or using
the murder weapon at a previous time. Furthermore, Judge Sumner
gave a limiting instruction to the jury in which he stated:
Evidence has been received tending to show
that . . . defendant, Jacobie Brockett, [was]
involved in an armed robbery on or about
January 11, 2005 at 1305 West Third Street in
Greenville. And further that during that
armed robbery, the defendant, Jacobie
Brockett, used a TEC 9 to shoot at a dog at
1305 West Third Street. This evidence was
received solely for the purpose of showing the
identity of the person who committed the crime
charged in this case, if it was committed. If
you believe this evidence you may consider it,
but only for the limited purpose for which it
Because the Transcript of Plea established Defendant's
admission to having previously used the murder weapon and because
Judge Sumner properly limited the jury's consideration of such
evidence, Wilkerson and McCoy are distinguishable. Moreover, we
note that Judge Sumner did not admit in evidence the actualjudgment or Defendant's conviction record. Additionally, the trial
court required the State to sanitize the Transcript of Plea to
eliminate references to any crime or charge other than the matter
he's pleading guilty to at this time. Furthermore, unlike
Wilkerson and McCoy, where the jury learned that a previous jury
branded the defendant a criminal, in this case Defendant himself,
having first-hand knowledge of his participation in the armed
robberies, admitted his guilt to those crimes. Under these
circumstances, we hold the trial court did not err in admitting
Defendant's Transcript of Plea. Accordingly, this assignment of
error is overruled.
 Next, Defendant argues the trial court committed
reversible error by admitting in evidence a taped phone
conversation between Defendant and his brother because (1) the
conversation was not relevant, (2) this evidence constituted
impermissible character evidence, and (3) the profane language on
the tape was overly prejudicial. We disagree.
'Relevant evidence' means evidence having 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). All relevant evidence is admissible at trial unless
specifically excluded by rule or law. N.C. Gen. Stat. § 8C-1, Rule
402 (2005). However, when making an evidentiary ruling a trial
court should also consider that [a]lthough relevant, evidence maybe 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. Generally, an attempt by a defendant to
intimidate a witness to affect the witness's testimony is relevant
and admissible to show the defendant's awareness of his guilt.
State v. Mason, 337 N.C. 165, 446 S.E.2d 58 (1994).
At trial, the State offered in evidence the recording and the
transcript of a taped phone conversation between Defendant and his
brother. Defendant timely objected on grounds that the tape and
transcript were not relevant to the case and were overly
prejudicial. However, Defendant did not argue to the trial court
that this evidence constituted impermissible character evidence.
Therefore, we do not consider this argument on appeal. See State
v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11 (recognizing
that [t]he defendant may not change his position from that taken
at trial to obtain a 'steadier mount' on appeal) (citing State v.
Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), disc. review denied,
329 N.C. 504, 407 S.E.2d 550 (1991)), appeal dismissed and disc.
review denied, 329 N.C. 504, 407 S.E.2d 550 (1991).
A review of the transcript of the conversation between
Defendant and his brother reveals that Defendant expressed concern
about a witness who intended to testify against him. When
discussing the witness's potential testimony, Defendant told his
brother that some things the witness had written will almost f***me . . man[,] and that his brother should smack the potential
witness. Defendant's brother warned him not to talk greasy on the
phone because their conversation was likely tapped up. Finally,
Defendant and his brother also discussed other individuals who were
trying to talk against Defendant.
Defendant's statements regarding the testimony of potential
witnesses and his suggestion that his brother should smack a
certain witness to deter him from testifying tend to show
Defendant's awareness of his guilt and are thus relevant and
admissible under Mason. Moreover, although some portions of the
transcript were irrelevant to the case, including the excessive
profanity Defendant used and the references to Defendant's
brother's sexual encounters, because Defendant did not specifically
object to these portions of the tape and transcript at trial, he
did not properly preserve his argument as to these issues on
appeal. See State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974)
(noting that where a general objection is made to testimony that is
competent in part and incompetent in part, the appellate court will
not assume that the objection was aimed at the incompetent
testimony), vacated in part on other grounds, 428 U.S. 903, 49 L.
Ed. 2d 1206 (1976).
Finally, Defendant has not shown the trial court abused its
discretion in determining that the probative value of the
statements outweighed any prejudicial effect the profane language
included on the tape may have had. In making his decision on the
admissibility of this evidence, Judge Sumner heard voir diretestimony to establish the authenticity of the recording, listened
to the recording, and heard arguments from trial counsel on both
the relevance and the prejudicial effect of the recording. Based
on the information that Judge Sumner considered before determining
the admissibility of the recording, it is clear that he made a
reasoned decision and did not abuse his discretion. Accordingly,
Defendant's argument is overruled.
By his fourth and final argument, Defendant contends the trial
court committed reversible error by permitting the testimony of
James Carlton, a detective with the Greenville Police Department,
who interpreted the taped phone conversation between Defendant and
his brother. Specifically, Defendant argues that Detective
Carlton, while not being admitted as an expert witness, (1) was
impermissibly allowed to provide his opinion to the jury regarding
the meaning of certain slang terminology used by Defendant and his
brother during the phone conversation, (2) was allowed to provide
his opinion even though he acknowledged that the same words and
phrases have different meanings within different groups, and (3)
contradicted or supplemented the transcript of the recording
offered by the State.
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion. N.C. Gen. Stat. § 8C-1, Rule 702(a)(2005). Expert testimony is properly admissible when it can
assist the jury in drawing certain inferences from facts and the
expert is better qualified than the jury to draw such inferences.
State v. Evangelista
, 319 N.C. 152, 163, 353 S.E.2d 375, 383
(1987). While a trial court should avoid unduly influencing the
jury's ability to draw its own inferences, expert testimony is
proper in most facets of human knowledge or experience. State v.
, 329 N.C. 466, 406 S.E.2d 579 (1991). In applying the
rule, the trial court is afforded wide discretion and will be
reversed only for an abuse of that discretion. State v. Anderson
322 N.C. 22, 28, 366 S.E.2d 459, 463, cert. denied
, 488 U.S. 975,
102 L. Ed. 2d 548 (1988).
When making his objection to Detective Carlton's testimony,
Defendant's counsel stated:
The one thing that concerns me is in his
testimony when he says that __ that all these
words have so many different meanings and it
differs from area to area, geography, you
know, one gang to another.
We're going to allow him to testify to
meanings of words, and that may not be the
meaning that's assigned with the word under
the context of the statements made on the
And if that happens and it's incorrect,
it could be highly prejudicial to the
defendant. So I would just note my objection
on that . . . __ as much as it's necessary, I
just don't think there is a clearly defined
dictionary of street gang lingo, and I think
that if some of these words are open to
interpretation, then the wrong interpretation
would be extremely damaging, when, in fact,
it's not evidence that should be, under other
context.After hearing Detective Carlton's testimony on voir dire
Sumner noted Defendant's objection and allowed Detective Carlton to
 On appeal, Defendant first argues that because Judge
Sumner told the prosecutor I'm not going to let you qualify
[Carlton] as an expert[,] the trial court erred by permitting a
lay witness to offer expert opinion testimony. We are not
persuaded by this argument.
In State v. Wise
, 326 N.C. 421, 431, 390 S.E.2d 142, 148
(citing State v. Perry
, 275 N.C. 565, 169 S.E.2d 839 (1969)), cert.
, 498 U.S. 853, 112 L. Ed. 2d 113 (1990), our Supreme Court
noted that when a
defendant interposed only general objections
to the testimony which is the subject of this
assignment of error . . . [and] never
requested a specific finding by the trial
court as to the witness' qualifications as an
expert . . . a finding that the witness is
qualified as an expert is implicit in the
trial court's ruling admitting the opinion
When overruling Defendant's objection to Detective Carlton's
testimony, Judge Sumner stated:
Certainly. Your objection is noted, and
let's just say this, that the effort here is
to get to the truth. The jury has heard this
taped conversation, and unless you are versed
in this stuff, it doesn't mean anything.
And I believe that Officer Carlton has
the necessary training, experience, and
knowledge, based on his exposure as an
officer, and training as an officer here in
Pitt County and in Nash County, I believe __
Rocky Mount __ having worked with juveniles
who are known to be gang members.
He's indicated, I think, quite willingly,
that some terms have different connotations,and he's indicated that for me, I think,
succinctly when that was the case. So, I'm
going to __ now I'm not going to let you
qualify him as an expert, mind you.
. . . .
But I do think that he has some training
and skills that will aid the jury in
interpreting this stuff . . . .
. . . .
I want you to certainly lay the
foundation to indicate that . . . this is not
just somebody that you brought off the streets
to come in . . . .
Although Judge Sumner ruled that he would not allow the prosecutor
to qualify Detective Carlton as an expert before the jury, Judge
Sumner's statement that he believed Detective Carlton has training
and skills that will aid the jury in interpreting this stuff[,]
and the fact that he allowed Detective Carlton to offer opinion
testimony, demonstrate that Judge Sumner concluded that Detective
Carlton was qualified to offer expert opinions on the meaning of
slang terms. Judge Sumner's statement that he would not allow the
prosecutor to qualify [Carlton] as an expert indicates only that,
to avoid any improper judicial influence on the weight to be given
Detective Carlton's testimony, Judge Sumner did not want the jury
to hear that Detective Carlton was testifying as an expert. See
(holding that a trial court's decision to qualify a
witness as an expert may be implied from the court's decision to
admit testimony that only an expert witness could provide even when
the witness has not been qualified as an expert in open court). Accordingly, Defendant's argument challenging the trial court's
decision to permit Detective Carlton's testimony is overruled.
 Defendant next argues the trial court erred in allowing
Detective Carlton to testify regarding the definition of certain
slang terminology used by Defendant and his brother in their taped
phone conversation. Defendant asserts the terms in question can
have various meanings depending on the declarant and the context in
which the terms are used. For this reason, Defendant argues that
an improper definition could have an overly prejudicial effect on
(See footnote 2)
At trial, when Detective Carlton was giving his interpretation
of the slang terms used by Defendant and his brother, Defendant's
counsel did not object to any of the specific testimony offered.
Furthermore, when given the opportunity to cross-examine Detective
Carlton, Defendant's attorney questioned him only on his
interpretation of the word smack. In the context in which the
term was used, Carlton testified the term meant to pistol whip[.]
After reading the transcript of the taped conversation, it is clear
that Detective Carlton's testimony was necessary to effectuate an
understanding of the conversation because, as Judge Sumner stated,unless you are versed in this stuff, it doesn't mean anything.
Furthermore, in his jury charge, Judge Sumner instructed the jury
that they were the sole judges of the credibility, that is the
believability, of each witness and the sole judges of the weight
to be given any evidence.
With regard to expert witness testimony, the trial court
reminded the jury that:
As I have instructed you, you are the
sole judges of the credibility of each witness
and the weight to be given to the testimony of
each witness. In making this determination as
to testimony of an expert witness, you should
consider, in addition to the other tests of
credibility and weight, the witness's
training, qualifications, and experience or
lack thereof, the reasons, if any, given for
the opinion; whether the opinion is supported
by facts that you find from the evidence;
whether the opinion is reasonable; and whether
it is consistent with other believable
evidence in the case[.]
You should consider the opinion of an
expert witness, but you are not bound by it.
In other words, you are not required to accept
an expert witness's opinion to the exclusion
of the facts and circumstances disclosed by
From this charge, it is plain that Judge Sumner clearly and
repeatedly reminded the jury that they were the sole judges of the
credibility of expert and lay witnesses and of the weight to be
given their testimony. Therefore, although Detective Carlton
admitted that some of the words to which he testified can have
different meanings, Judge Sumner left the ultimate determination to
the jury. Accordingly, based on the voir dire
attorneys' arguments heard by Judge Sumner and the instructions he
gave to the jury, the trial judge did not err in determining thatany prejudicial effect of an allegedly improper definition was
outweighed by the probative value of Detective Carlton's testimony.
Defendant's argument is without merit.
 Finally, Defendant asserts that the trial judge committed
prejudicial error by allowing Detective Carlton to alter or
supplement the transcript of the taped conversation offered in
evidence by the State. At no time, however, did Defendant's trial
counsel object to Detective Carlton's testimony in this regard.
Furthermore, the general objection that Defendant's trial attorney
made before Detective Carlton testified to the jury did not include
as grounds for the objection the changes or additions to the
transcript that Detective Carlton described during his testimony on
. Therefore, any error regarding this alleged improper
testimony has not been preserved. See
N.C. R. App. P. 10(b)(1)
(requiring that to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the
ruling . . . if the specific grounds were not apparent from the
, 102 N.C. App. at 696, 404 S.E.2d at 11
(recognizing that [t]he defendant may not change his position from
that taken at trial to obtain a 'steadier mount' on appeal)
. Accordingly, this argument is dismissed.
For the reasons stated, we hold that Defendant received a fair
trial, free of error.
Judges McGEE and CALABRIA concur.
It is unclear from the transcript and record why judgment was
arrested on this charge. However, in the briefs submitted, both
the State and Defendant allege that this charge was the underlying
felony for Defendant's felony murder conviction.
 Defendant also argues in his brief to this Court that
the trial court erred in allowing Detective Carlton's testimony
because it contradicted prior voir dire
testimony of another
expert witness that the State initially proffered to define the
slang terms. Because that witness was the sister of the murder
victim, Judge Sumner refused to let her testify to the jury.
However, Defendant did not challenge Detective Carlton's testimony
before the trial court for this reason. Consequently, the argument
has not been properly preserved and we do not consider it on
N.C. R. App. P. 10(b)(1).
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