An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-166

NORTH CAROLINA COURT OF APPEALS

Filed: 02 January 2007

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 04 CRS 57160
CHRISTOPHER JAMES BARNES

    Appeal by defendant from judgment entered 7 June 2005 by Judge Howard E. Manning in Wake County Superior Court. Heard in the Court of Appeals 19 October 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.

    Paul F. Herzog for defendant-appellant.

    STEELMAN, Judge.

    Christopher James Barnes (“defendant”) appeals from a judgment entered following a jury verdict finding him guilty of first degree murder. Defendant argues on appeal that the trial court erred by: (1) allowing the admission of evidence that was both hearsay testimony, and irrelevant and prejudicial evidence; (2) allowing the admission of a witness's prior consistent statements; (3) allowing the prosecutor to impeach defendant during cross examination in a prejudicial manner; and (4) failing to instruct the jury with regard to accomplice testimony. For the reasons discussed herein, we find no error.

Factual Background:
    On the night of 22 July 2004, Jeffrey Williams (“Jeffrey”) was shot once in the head at close range with a handgun while he was standing outside the apartment of his estranged wife, Dametri Williams (“Dametri”). Jeffrey died as a result of the gunshot. Dametri, Alicia Murphy, Andreas Alvarado and Alvin Hill witnessed the shooting and identified defendant as the shooter.
    Defendant and Dametri met in fall 2003, and an extramarital relationship evolved in December 2003, which led to the separation of Dametri from her husband, Jeffrey. In January 2004, a fight occurred between Jeffrey and defendant, resulting in multiple arrests for assault.
    In March 2004, Dametri and Jeffrey attempted to reconcile. This upset defendant, who attempted to persuade Dametri to continue seeing him. Defendant frequently telephoned Dametri in the next several months. However, by June 2004, Dametri and Jeffrey were reconciled and often spent the night together at Dametri's apartment.
    On 22 July 2004, the date Jeffrey was killed, Dametri's car was stolen, and she named defendant as a suspect to police. Dametri received four or five angry telephone calls from defendant, who threatened, “I'll get you both.” Defendant also visited Dametri's apartment that day and threatened her.
    At approximately 4:00 p.m. the same day, defendant, a manager at a Little Caesars restaurant, asked an employee, Andreas Alvarado (“Alvarado”), to drive defendant to the store where Jeffrey worked. Alvarado complied, and defendant called Jeffrey from the car, asking him to step outside. Jeffrey came outside but did not see defendant or Alvarado.
    At 9:00 p.m., Dametri and Alicia Murphy (“Murphy”), a friend who was staying with Dametri, picked up Jeffrey from the store, and they returned to Dametri's apartment.
    Defendant and Alvarado, who had been circling and waiting outside the store , received a call from their employer requesting that they return to work. Defendant and Alvarado started back, but changed their route to drive by Dametri's apartment. Upon arriving at the apartment, defendant instructed Alvarado to “wait here.” Defendant then called Dametri, asking her if “Jeffrey was staying the night” and requesting that Jeffrey walk outside to speak to him. Jeffrey walked onto the porch, followed by Murphy, but Defendant asked to speak to Jeffrey alone. Murphy walked back towards the apartment, but she observed that “something came up with [defendant's] hand[,] and a gunshot was fired.” Murphy “screamed” and “tr[ied] to find the phone to call 911.” She testified that defendant rushed “back to the car and sped off.”
    Alvarado also observed defendant “walk[] toward [Jeffrey] in a quick pace and just sho[o]t him in the head.” Alvarado testified that defendant quickly returned to the car and ordered him to drive away.
    Alvin Hill, a resident of the apartment complex in which Dametri lived, also observed the shooting: “[Defendant] got out, he walked around the front of the car, right to the curb, pop, itwas over. [Jeffrey] just fell backward.” After the gunshot, Hill watched defendant run back to the car.
    From within the apartment, Dametri heard a “pop,” after which she heard Murphy scream, “[defendant] just shot Jeff[rey].” Then, Dametri “ran out” to her dying husband.
    Defendant testified that he was at another place at the time of the shooting.
    
A jury found defendant guilty of first degree murder. Defendant was sentenced to life imprisonment without parole. Defendant appeals.
I: Testimony of Investigator Wood
    In his first argument, defendant contends that the trial court erred by allowing the admission of evidence that was both hearsay testimony and irrelevant and unfairly prejudicial evidence. We disagree.
    
Investigator Wood testified about her post-arrest interview with defendant. During the interview, Wood relayed information to defendant regarding Wood's conversations with employees of Little Caesars. Wood testified that she “told the defendant that his employees were not verifying his story that he told me.” Defendant objected to this testimony at trial, and argues on appeal that this statement was inadmissible hearsay testimony, irrelevant, and prejudicial evidence. Defendant asserts that the statement created a false impression that there were witnesses who contradicted defendant's alibi testimony.
a: Hearsay Testimony
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). “It is well established that the erroneous admission of hearsay, like the erroneous admission of other evidence, is not always so prejudicial as to require a new trial.” State v. Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986). N.C. Gen. Stat. § 15A-1443(a) (2005) provides that defendant must show “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.” Id.; see also State v. Locklear, 349 N.C. 118, 149, 505 S.E.2d 277, 295 (1998).
    The testimony of Investigator Wood implied that she talked to other witnesses who had information contradicting defendant's alibi. However, the nonhearsay testimony of multiple other witnesses overwhelmingly established defendant's guilt. At least four people witnessed the shooting, two of whom saw defendant pull the trigger. Even assuming arguendo that the testimony was inadmissible hearsay, we are not convinced that defendant was prejudiced by its admission. Defendant has not shown that there is a reasonable possibility that the jury would have found him not guilty but for Investigator Wood's passing reference to statements of the Little Caesars employees. We overrule this assignment of error.
b: Relevant Evidence
    N.C. Gen. Stat. § 8C-1, Rule 402 (2005), provides that only relevant evidence is admissible. Relevant evidence is “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). “In criminal cases, Rule 401 should be broadly construed so that all evidence which may shed any light on the alleged crime is admitted.” State v. Prevatte, 356 N.C. 178, 250, 570 S.E.2d 440, 480 (2002) (citing State v. Cagle, 346 N.C. 497, 506, 488 S.E.2d 535, 542, cert. denied, 522 U.S. 1032, 139 L. Ed. 2d 614 (1997)). However, a trial court should exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). “A trial court's ruling on such an issue will be disturbed on appeal only if the trial court's decision was so arbitrary that it could not have been based on reason.” Prevatte at 250, 570 S.E.2d at 480 (citing Cagle at 506-07, 488 S.E.2d at 542).
    We are not convinced that the decision of the trial court to admit this evidence was so arbitrary that it could not have been based on reason. We overrule this assignment of error.
II: Prior Consistent Statements
    In his second argument, defendant contends that the trial court erred by allowing the admission of Dametri's prior consistent statements. We disagree.    “'[P]rior consistent statements [are] admissible for the limited purpose of affirming a witness's credibility[.]'” State v. Borkar, 173 N.C. App. 162, 169, 617 S.E.2d 341, 345 (2005) (quoting State v. Ferebee, 128 N.C. App. 710, 715, 499 S.E.2d 459, 462 (1998)). These statements “are admissible only when they are in fact consistent with the witness's trial testimony.” Borkar at 169, 617 S.E.2d at 345 (quoting State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, 447 (1984)). However, where prior consistent statements substantially corroborate a witness's trial testimony, the statements are “not rendered incompetent by the fact that there is some variation.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980) (citations omitted). “Such variations affect only the weight of the evidence which is for the jury to determine.” State v. Benson, 331 N.C. 537, 552, 417 S.E.2d 756, 765 (1992) (quotation omitted). “[P]rior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the [witness's] in-court testimony.” State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992) (citations omitted).
    “This Court has previously applied the harmless error standard . . . to determine whether an erroneous admission of a prior statement for purposes of corroboration entitled defendant to a new trial.” State v. Francis, 343 N.C. 436, 446, 471 S.E.2d 348, 353 (1996); see also State v. Farmer, 333 N.C. 172, 193, 424 S.E.2d 120, 132 (1993) (concluding that “the defendant has not met his burden of showing a reasonable possibility that a different resultwould have been reached at the trial had [the witness's] pretrial written statement been excluded”).
    In the instant case, defendant objects to the following trial testimony of Investigator Wood, who was asked by the prosecution about her pretrial interview with Dametri:
        [Dametri] said that when she tried to break off the relationship, [defendant] said negative things about where she lived, about Jeff[rey], that he could do better for her than her husband could. And that she was afraid of him. That he was watching her house. That if her children were out in the yard, he would approach them asking who was in the apartment with her. And that she had to keep her kids from going outside. That she would have friends come over at night because she was afraid that [defendant] would show up.
    We believe that Investigator Wood's testimony with regard to Dametri's prior statement was corroborative of Dametri's trial testimony. The variations in Dametri's trial testimony and her statement are not directly contradictory. Rather, Dametri's statement strengthened and confirmed her testimony at trial with substantial similarities. At trial, Dametri testified that: defendant became angry that she and Jeffrey reconciled their marriage; defendant persistently attempted to persuade her to remain in an affair with defendant; defendant telephoned Dametri relentlessly to pursue the relationship, but Dametri often would avoid taking the calls; when Dametri did not answer, defendant would become angry. Defendant visited Dametri's home without being invited and failed to leave when Dametri asked him to leave.
    We conclude that although Dametri's prior statements provided by Investigator Wood contain certain additional information, thestatement substantially corroborates Dametri's trial testimony. Even assuming arguendo that the evidence was not corroborative, we conclude that defendant has failed to show a reasonable possibility that, had the evidence not been admitted, a different result would have been reached at trial. In light of the overwhelming evidence against defendant, we conclude that defendant was not prejudiced by the admission of the foregoing testimony of Investigator Wood. This assignment of error is without merit.
III: Impeachment of Defendant
    In his third argument, defendant contends that the trial court committed plain error by allowing the prosecutor to impeach defendant during cross-examination in a prejudicial manner. We disagree.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure states that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]” N.C. R. App. P. 10(b)(1) (2005). Defendant did not object to the cross-examination now cited as error, and therefore, our review of this issue is limited to plain error. See N.C. R. App. P. 10(c)(4) (2005). Plain error is applied cautiously and only in exceptional cases when the appellate court determines that:
        [A]fter reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage ofjustice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings[.]”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)); see also State v. Augustine, 359 N.C. 709, 717, 616 S.E.2d 515, 523 (2005). “Under this standard, a 'defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.'” Augustine, 359 N.C. at 717, 616 S.E.2d at 523 (quoting State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002)).
    Defendant contends that the court erred by allowing the following questions during the State's cross-examination of defendant:
        Q:     Isn't it true that your license was suspended?

        A:     If my license was suspended, I knew nothing about that. . . .

        Q:     [Defendant], I'm going [to] show you State's Exhibit 26 that I'm marking for identification purposes[.] . . .

        Q:     And on there, if you could look over this printout from D.M.V., isn't it true your license was suspended for failure to come to court?

        A:     Like I said, I didn't know my license was suspended. I was driving. I didn't know.
    After careful review of the record and transcripts we hold that this does not meet the criteria for plain error. Thequestions by the State did not relate to any substantive issue in the case and likely had no effect on the outcome of the trial. We reiterate that the State presented substantial evidence of defendant's guilt through the testimony of four witnesses who were present at Dametri's apartment when Jeffrey was shot. Their testimony consistently identified defendant as the shooter. We cannot lend credence to defendant's argument, in light of the overwhelming evidence against him, that the State's questions with regard to defendant's expired drivers' license had any probable impact on the jury's finding defendant guilty of murder. This assignment of error is overruled.
IV: Jury Instructions
    In his fourth argument, defendant contends that the trial court committed plain error by failing to instruct the jury as to accomplice testimony with respect to the State's witness, Alvarado. We disagree.
    Defendant did not request an instruction for accomplice testimony at trial, and therefore, we review for plain error. See Odom at 660, 300 S.E.2d at 378.
    Although the court did not instruct the jury with respect to accomplice testimony, the court gave the following instruction, which informed the jury that it could give heightened scrutiny to Alvarado's testimony:
        You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take the witness' interest into account. If after doing so you believe the witness' testimony in whole or in part, then you shouldtreat what you believe the same as any other believable evidence.

We observe that Alvarado was only one of four witnesses to the shooting who testified at trial. Assuming arguendo that the accomplice testimony instruction was required and the trial court erred by not giving the instruction to the jury, we conclude, in light of the foregoing instruction and the overwhelming presentation of evidence against defendant, that the court's omission did not constitute plain error. See State v. Harrison, 328 N.C. 678, 687-88, 403 S.E.2d 301, 307 (1991) (holding that an interested witness instruction was sufficient to inform the jury that it could give heightened scrutiny to the witness's testimony).
    NO ERROR.
    Judge GEER concurs.
    Judge STEPHENS concurs prior to 31 December 2006.
    Report per Rule 30(e).

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