STATE OF NORTH CAROLINA
v
.
Columbus County
No. 04 CRS 53546
WEBSTER DAYTON VANN
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
Geoffrey W. Hosford for defendant.
LEVINSON, Judge.
Defendant (Webster Dayton Vann) appeals judgment entered upon
his conviction for second degree murder. We find no error.
The relevant facts may be summarized as follows: Tiwon Davis
testified that on 17 September 2004, a group of individuals,
including defendant and Raymond Lamont “Luke” Andrews (hereinafter
Andrews), convened at Franklin's, a social gathering location in
Cedar Grove, North Carolina. Andrews argued with Stefon Geathers,
a friend, concerning a potential drug transaction. Geathers told
Andrews that he was becoming impatient with the length of time it
had taken Andrews to procure marijuana Geathers wished to purchase.
Davis further testified that during the argument, defendant
approached Andrews. In response, Andrews struck defendant in thejaw. Defendant then brandished a knife and stated, “I'm not going
to cut you, but the next time your mother sees you, she'll be
looking down on you.”
The following evening, a party was held at the residence of
Brittany George. Shortly after defendant arrived at the party,
Tiwon Davis observed defendant display what he thought was an
automatic rifle and proclaim that if “[a]nybody love[s] . . .
[Andrews], call him right now, tell him I'm looking for trouble.”
Soon thereafter, at approximately 1:00 a.m., Davis and some
acquaintances went to the “Boom-Boom Room” in Bladenboro, North
Carolina. Davis observed defendant and Weathers together at the
Boom-Boom Room. Maurice Brown, a friend of defendant and Weathers,
got into an altercation with another individual at the Boom-Boom
Room. In an attempt to “help” Brown, Weathers went to defendant's
car to retrieve the rifle. After leaving the club, Davis and his
acquaintances went to RC's, an abandoned store in Mt. Olive, North
Carolina.
According to Davis, defendant and Geathers also went to RC's
during the early morning hours of 18 September 2004. Shortly
thereafter, Andrews arrived. Andrews walked by defendant, who was
standing near his vehicle. With rifle in hand, defendant stated to
Andrews, “Oh, you think this is a joke? You think it's a game? You
think it's a toy, it won't spit?” Andrews held his hands up to
defendant. Defendant fired the rifle, striking Andrews four times.
Defendant fled the scene. Andrews died as a result of the
shooting. Defendant was convicted of second degree murder andsentenced to 220-273 months imprisonment. From this judgment
defendant now appeals.
In defendant's first argument on appeal, he contends that the
trial court committed plain error by allowing the State to elicit
certain testimony from Detective Sergeant David Nobles that
violated his right not to incriminate himself. Specifically,
defendant contends it was error for the trial court to allow the
following questions and responses during the State's redirect
examination of Nobles:
Q. Did Mr. Vann call your office and want to
tell you his side of what happened in this
case within hours after the killing took
place?
A. Not to my knowledge.
. . . .
Q. Did Mr. Vann, at any time, has he at any time
either personally or through his attorney,
called you up and said come in, I want to tell
you my side of it?
A. No, sir.
Q. If they had done that, would you have come
in and sat down and interviewed him?
A. Yes, sir.
Q. Would you have been willing to do that with
his attorney in the same room?
A. Yes, sir.
Preceding the examination that is the subject of this argument
on appeal, defense counsel had the following colloquy with Nobles
on cross-examination:
Q. . . . Now Detective Nobles, part of what
you do in your work as an investigator, youtry to find the truth of what a case is about,
don't you sir?
A. Yes, sir.
. . . .
Q. Okay. And Mr. Vann, you weren't able to
find him until several hours after this when
he came to the Sheriff's Department and turned
himself in, were you sir?
A. Correct.
Q. And did you make any effort to interview
Mr. Vann, Detective Nobles?
A. I did not.
Q. Did _ you know _ you know who did what in
this investigation, don't you sir?
A. Basically, correct.
Q. Did Detective Glenn make any effort to
interview Mr. Vann to determine what happened,
what his version of the facts in this case
[were], sir?
A. Not to my knowledge.
Q. Did Detective Coffman make any effort to
interview Mr. Vann, to determine what his
version of the facts were in this case?
A. Not to my knowledge.
Q. Okay. Did anyone in fact from the Sheriff's
Department or the SBI, or any other law
enforcement agency, to your knowledge, make
any effort to interview Mr. Vann to determine
what his version of this situation was?
A. No sir.
The law regarding the admission of evidence regarding a
defendant's right to remain silent following his arrest is well
established: It is impermissible for the trial court to
admit testimony relating to a defendant's
exercise of his right to remain silent and to
request counsel. Such an error requires the
defendant be granted a new trial unless it can
be shown the error was harmless beyond a
reasonable doubt. However, [where] defense
counsel failed to object to this testimony at
trial . . . our review is limited to plain
error. . . . In State v. Alexander, our
Supreme Court held the admission of testimony
regarding the defendant's post-arrest silence
did not constitute plain error because (1) the
comments regarding the defendant's silence
were relatively benign; (2) the prosecutor did
not attempt to emphasize the defendant's
silence; and (3) the evidence of the
defendant's guilt was substantial.
State v. Walker, 167 N.C. App. 110, 130, 605 S.E.2d 647, 660-61
(2004)(internal citations omitted), disc. review denied, 359 N.C.
642, 614 S.E.2d 921 (2005). “[T]o constitute plain error the
appellate court must be convinced that absent the error, the jury
probably would have reached a different verdict.” Id. (citing
State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)).
Here, defendant opened the door to the challenged testimony.
“Opening the door refers to the principle that where one party
introduces evidence of a particular fact, the opposing party is
entitled to introduce evidence in explanation or rebuttal thereof,
even though the rebuttal evidence would be incompetent or
irrelevant had it been offered initially.” State v. Sexton, 336
N.C. 321, 360, 444 S.E.2d 879, 901 (1994) (quoting State v. Rose,
335 N.C. 301, 337, 439 S.E.2d 518, 538 (1994), overruled on other
grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001)).
The subjects of defendant's absence and failure to make a statement
were first raised by defendant during his cross-examination ofNobles. Defense counsel's questions sought to suggest that the
investigation was incomplete in that investigators failed to
interview defendant to get his “version” of the facts, and to
suggest that defendant was readily available to make a statement
but that law enforcement nonetheless failed to interview him. The
State was therefore entitled, on redirect examination, to rebut
these suggestions. We observe, too, that other than the challenged
testimony, the record does not reveal any comment by the State
emphasizing defendant's failure to testify.
Moreover, there was substantial evidence of defendant's guilt.
The night before Andrews was killed, defendant expressed an intent
to harm him. In addition, defendant initiated a verbal
confrontation with Andrews at RC's and, with rifle in hand, stated,
“Oh, you think this is a joke? You think it's a game? You think
it's a toy, it won't spit?” And it was uncontradicted that
defendant fired the rifle at Andrews, striking him with four
bullets.
On this record, we cannot hold that the admission of Nobles'
testimony constitutes plain error. This assignment of error is
overruled.
In defendant's second argument on appeal, he contends that the
trial court committed plain error by failing to declare a mistrial
after a witness, Maurice Brown, was discovered listening outside
the courtroom door to the testimony of other State's witnesses.
Specifically, defendant argues that such conduct impacted the
integrity and fairness of defendant's trial. To establish plain error, a defendant must demonstrate “(i)
that a different result probably would have been reached but for
the error or (ii) that the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Plain error
review is only available for errors in the admission of evidence
and jury instructions. State v. Wolfe, 157 N.C. App. 22, 33, 577
S.E.2d 655, 663 (2003). In the instant case, as defendant's
argument pertains neither to jury instructions nor evidentiary
issues, plain error review is unavailable. Hence, as this issue
was not properly preserved for appellate review, the assignment of
error is rejected. See State v. McCall, 162 N.C. App. 64, 70, 589
S.E.2d 896, 900 (2004) (plain error review is unavailable to review
a trial court's failure to declare a mistrial sua sponte after it
learned that individuals in the courtroom had been signaling to the
victim during her testimony).
In defendant's final argument on appeal, he contends that the
trial court abused its discretion by denying his motion for
appropriate relief (MAR) on the grounds that the State presented
insufficient evidence to support the jury's verdict of second
degree murder, and that the State failed to refute defendant's
claim of self defense at trial. We disagree.
Defendant made a timely motion pursuant to N.C. Gen. Stat. §
15A-1414(b)(2)(2005). This section provides, in pertinent part,
that “all errors, including but not limited to the following, mustbe asserted within 10 days after entry of judgment: [t]he verdict
is contrary to the weight of the evidence.”
We review the trial court's order denying a motion for
appropriate relief under an abuse of discretion standard. State v.
Haywood, 144 N.C. App. 223, 236, 550 S.E.2d 38, 46 (2001). An
abuse of discretion results where the trial court's ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision. State v. Hennis,
323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
The elements of second-degree murder are: (1) the unlawful
killing; (2) of another human being; (3) with malice; but (4)
without premeditation and deliberation. N.C. Gen. Stat. § 14-17
(2005); State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46-47
(2000). Our Supreme Court has determined that “'intent to kill is
not a necessary element of second-degree murder, but there must be
an intentional act sufficient to show malice.'” State v. Rich, 351
N.C. 386, 395, 527 S.E.2d 299, 304 (2000)(quoting State v. Brewer,
328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)). Malice is not
necessarily an actual intent to take human life. State v.
Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978). “[I]t
may be inferential or implied, instead of positive, as when an act
which imports danger to another is done so recklessly or wantonly
as to manifest depravity of mind and disregard of human life.” Id.
at 578-79, 247 S.E.2d at 916 (citations omitted).
A killing, such as second degree murder, is committed in
perfect self-defense if, at the time of the killing: (1) it appeared to defendant and he believed
it to be necessary to kill the deceased in
order to save himself from death or great
bodily harm; and
(2) defendant's belief was reasonable in that
the circumstances as they appeared to him at
the time were sufficient to create such a
belief in the mind of a person of ordinary
firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did not
aggressively and willingly enter into the
fight without legal excuse or provocation; and
(4) defendant did not use excessive force,
i.e., did not use more force than was
necessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.
State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981)
(citations omitted). “The State bears the burden of proving that
defendant did not act in self-defense.” State v. Ammons, 167 N.C.
App. 721, 725, 606 S.E.2d. 400, 403 (2005) (quoting State v.
Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985)).
To negate the defense of self-defense
altogether, the State need only prove beyond a
reasonable doubt the non-existence of either
the first or second element, i.e., either
defendant had no belief that it was necessary
to kill to save himself from death or great
bodily harm, or that defendant's belief, if he
had one, was unreasonable because the
circumstances as they appeared to defendant
were not sufficient to create such a belief in
the mind of a person of ordinary firmness.
Ammons, 167 N.C. App. at 726, 606 S.E.2d. at 404 (quoting State v.
Reid, 335 N.C. 647, 670, 440 S.E.2d 776, 789 (1994)).
Here, the evidence supports a conclusion that defendant acted
with malice in killing Andrews. In addition, the evidence fails toillustrate that defendant held a reasonable belief that it was
necessary for him to kill Andrews to save himself from either death
or great bodily harm. Accordingly, the trial court did not abuse
its discretion in denying defendant's motion for appropriate
relief. This assignment of error is overruled.
No error.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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