An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 02 January 2007
STATE OF NORTH CAROLINA
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.
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.
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
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
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.
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
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
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
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
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
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
Q: Isn't it true that your license was
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
A: Like I said, I didn't know my license was
suspended. I was driving. I didn't
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.
Defendant did not request an instruction for accomplice
testimony at trial, and therefore, we review for plain error. See
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
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
We observe that Alvarado was only one of four witnesses to the
shooting who testified at trial. Assuming arguendo
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).
Judge GEER concurs.
Judge STEPHENS concurs prior to 31 December 2006.
Report per Rule 30(e).
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