NO. COA06-709
Appeal by defendant from judgment entered 2 February 2006 by
Judge E. Lynn Johnson in Cumberland County Superior Court. Heard
in the Court of Appeals 22 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Brian Paxton, for the State.
Sue Genrich Berry for the defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from a judgment entered upon his conviction
by a jury of assault with a deadly weapon inflicting serious bodily
injury and discharging a firearm into an occupied dwelling. The
State introduced evidence tending to show the following:
Defendant and Gilbert McPherson were coworkers at the Belk
Distribution Center. On the morning of 29 October 2004, McPherson
drove his car to defendant's home to pick him up for work. When
defendant and McPherson arrived at work, they were told that they
would not be needed that day. The two spent the remainder of the
day together at various locations drinking alcohol and smoking
marijuana. That evening, McPherson drove defendant and two otherfriends, Trevor Branch and Tristan Boone, to the Sleepy Hollow
mobile home development so that defendant could make a drug sale.
When the group arrived at the address where the drug transaction
was to occur, defendant retrieved a bag of marijuana from the
trunk, and he and Branch entered the residence. McPherson and
Boone remained in the car.
After being inside for approximately five to ten minutes,
defendant returned to the car in an agitated state. When he got
into the front passenger's seat, he was in possession of a gun that
belonged to Boone and that had been stored earlier in the trunk of
McPherson's car. As McPherson began to drive away, defendant
climbed out onto the window ledge of the car and fired the gun over
the roof of the car approximately seven times. McPherson drove the
group immediately out of the development to a nearby convenience
store. At the convenience store, defendant sold marijuana to an
unidentified female. The group then proceeded back to the home of
defendant's girlfriend and parked in the driveway. While there,
defendant made another marijuana sale to someone in the
neighborhood.
One of the shots fired by defendant in Sleepy Hollow entered
a residence and struck fourteen-year-old Tiara Simone Johnson in
the chest while she was laying on her bed doing her homework.
Johnson required extensive medical and surgical treatment for her
injuries.
Both defendant and McPherson were charged with inflicting
serious injury and discharging a firearm into an occupied dwelling. McPherson pled guilty to the same charges pursuant to a plea
agreement with the State. At defendant's trial, McPherson was
called as a State's witness and testified that defendant was the
one who had fired the gun.
_______________________
In his first assignment of error, defendant contends the trial
court committed reversible error by expressing its opinion during
the defense's cross-examination of a State witness. We disagree.
The expression of opinion by a trial court regarding the evidence
in the presence of the jury is statutorily prohibited under N.C.
Gen. Stat. §§ 15A-1222 and -1232. However, “[a] remark by the
court is not grounds for a new trial if, when considered in the
light of the circumstances under which it was made, it could not
have prejudiced defendant's case.”
State v. King, 311 N.C. 603,
618, 320 S.E.2d 1, 11 (1984) (citing
State v. Green, 268 N.C. 690,
693-94, 151 S.E.2d 606, 609 (1966)). The burden rests upon
defendant to show that the trial court's remarks were prejudicial.
State v. Porter, 340 N.C. 320, 330, 457 S.E.2d 716, 721
(1995)(citing
State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245
(1985)).
During defense counsel's cross-examination, Gilbert McPherson
testified that he had pled guilty to the same offenses for which
defendant was being tried pursuant to a plea agreement with the
State. Following this testimony, the trial court made the
following statement:
THE COURT: Mr. Vallery [defense counsel], may
I interrupt just to explain to the jury, thatan individual - in particular Mr. McPherson's
case, may be convicted on aiding and abetting
theory or acting in concert as opposed to
being the substantive individual. So I assume
that's what the theory of the state's case was
as well as his own attorney. I think they
need to differentiate between that. All
right. You may proceed.
From the circumstances revealed by the record, it is clear
that the trial court's statement was only intended to clarify for
the jury the legal theories upon which McPherson might be convicted
of the same crimes as defendant. The trial court was merely
attempting to forestall any confusion of the jury as to how two
individuals could be convicted of crimes requiring the discharge of
a firearm where only one gun was fired by a single individual. Any
fair reading of the trial court's statement reflects the trial
court's intent to satisfy its obligation to clarify the testimony
that defense counsel was eliciting from the witness.
See State v.
Efird, 309 N.C. 802, 808-09, 309 S.E.2d 228, 232 (1983) (holding
that “the trial judge has a duty to question a witness in order to
clarify the testimony being given [citations omitted] or 'to elicit
overlooked, pertinent facts'”)(quoting
State v. Monk, 291 N.C. 37,
50, 229 S.E.2d 163, 171 (1976)). Consequently, this assignment of
error is overruled.
Defendant's next assignment of error is that the trial court
committed reversible error when it permitted the State to question
his two alibi witnesses as to their knowledge of his drug dealing
activity. Over defendant's objection, the State was permitted to
ask defense witness Linda Graham, “Were you aware that your nephew[defendant] had been dealing drugs?” to which the witness responded
“No.” The State was also permitted to ask defense witness Lorrie
Robinson, “Did you know that [defendant] was a drug dealer in and
about Fayetteville?”
Ms. Robinson responded that she had knowledge
of defendant dealing drugs “off and on.”
Defendant asserts that
this evidence of his bad character was irrelevant and inflammatory
and that its erroneous admission requires a new trial.
Because the State concedes in its brief that the admission of
this testimony was erroneous, we do not address this question.
However, even were we to accept the State's concession of error,
defendant still must demonstrate that he was prejudiced by the
admission to warrant a new trial.
State v. Yancey, 155 N.C. App.
609, 611, 573 S.E.2d 243, 245 (2002). Such prejudice exists “when
there is a reasonable possibility that, had the error in question
not been committed, a different result would have been reached. .
. .” N.C. Gen. Stat. § 15A-1443(a).
Assuming without deciding that there was no permissible
purpose for the admission of this testimony, we conclude that it
could not have prejudiced defendant given other evidence already
admitted. The testimony of these two witnesses was preceded by
testimony of both McPherson and Boone that defendant was a drug
dealer.
Moreover, they testified that defendant had gone to the
mobile home development on the night in question for the purpose of
selling drugs and that shortly after the shooting, defendant was
observed selling drugs to two additional individuals. In light of
this more detailed and direct evidence of defendant's drug dealingalready before the jury, we conclude that defendant has not
demonstrated any reasonable possibility that the jury would have
reached a different result had the State not elicited the
challenged evidence from his alibi witnesses.
See State v.
Johnson, 337 N.C. 212, 223, 446 S.E.2d 92, 99 (1994)(finding no
reversible error in admission of evidence where same evidence had
been previously elicited from another witness). Accordingly,
defendant's assignment of error is overruled.
No error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e)
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