NO. COA06-829
Appeal by defendant from judgment entered 19 September 2005 by
Judge Jay D. Hockenbury in Wayne County Superior Court. Heard in
the Court of Appeals 19 February 2007.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Lars F. Nance, for the State.
Sofie W. Hosford for defendant-appellant.
HUNTER, Judge.
Marcus Dominique Moore (“defendant”) was convicted of second
degree murder on 19 September 2005 and was sentenced to 220 to 273
months. The State offered evidence that tended to show that
defendant pistol-whipped then shot and killed Jonathan Yarborough
(“the victim”). Defendant testified that he shot the victim only
after the victim had charged him and did so only during a scuffle
for the gun.
Kwamisha Kornegay (“Kornegay”) testified that on the day of
the crime an occupied car was parked in defendant's yard and thatdefendant had walked in and out of his house two or three times to
speak with those in the car. Kornegay later testified that the
dispute between the victim and defendant arose when the victim sold
drugs to the occupants of the car before defendant had an
opportunity to do the same. Kornegay next said that the defendant
pulled out his gun and shot the victim, across the car, around the
top of victim's shoulders. Kornegay testified that she ran away
after the first shot but did hear a second shot as she was fleeing.
Shalita Hopson (“Hopson”) testified that she was awakened by
a gunshot on 16 April 2004 around midnight. Hopson said that she
saw defendant holding the victim down while striking him with a
gun. She later called 911 and testified that she saw defendant
shoot the victim and hit him again with the gun. Hopson testified
that she did not see the victim put up any defense.
The remainder of the State's witnesses were used to establish
the following: (1) the victim had two gunshot wounds and some
contusions on the right side of his face; (2) a bullet entered his
chest at a downward angle and damaged his heart, liver, stomach,
and spleen -- the fatal shot; (3) a second bullet entered his back
but was not incapacitating; and (4) the victim was shot from a
range greater than three to five feet.
Defendant testified that: (1) he had purchased a gun off the
street before the incident; (2) earlier that night he was drinkingat a local store and had a gun concealed; (3) he saw the victim in
the front of his house talking to the passengers in a car; (4)
assuming the victim was selling drugs, he confronted the victim and
the victim charged him; (5) he stated that they fell to the ground,
where he was hit twice, and the gun went off for the first time;
and (6) the second time the gun went off he concedes that he pulled
the trigger but asserted that it was only to get the victim off of
him.
Defendant presents the following issues: Did the trial court
(1) err in admitting the recording of a 911 phone call made by a
witness; (2) err in admitting nine (9) color photographs of the
victim's deceased body from multiple angles; (3) commit plain error
by allowing cross-examination of defendant regarding his character;
and (4) err in submitting the charge of second degree murder to the
jury. After careful consideration, we find no error.
I.
The trial court's decision to admit evidence is a matter
within its discretion.
State v. McCree, 160 N.C. App. 19, 28, 584
S.E.2d 348, 354 (2003). A trial court's decision with regards to
the admission of evidence will only be reversed upon a showing of
abuse of discretion.
Id. That is, an appellant must show that the
ruling was “'manifestly unsupported by reason and could not have
been the result of a reasoned decision.'”
Id. (quoting
State v.Brown, 350 N.C. 193, 209, 513 S.E.2d 57, 67 (1999)). In the
instant case, the trial court admitted into evidence a compact disc
(“CD”) recording of a 911 call made by one of the witnesses to the
alleged crime.
Under N.C. Gen. Stat. § 8C-1, Rule 901(a) (2005), an audio
recording may be authenticated by “evidence sufficient to support
a finding that the matter in question is what its proponent
claims.”
Id. The tape may be authenticated by voice
identification. In the instant case, the State claimed that the CD
was a recording of the 911 call between Hopson's house and the 911
emergency center. Rhonda Branch, formerly of the 911 communication
center in Wayne County, testified that she recognized Hopson's
voice, her own voice, and that the CD was accurate. We find this
evidence sufficient to support a finding that the tape was what the
State contended it to be: A recording of the 911 call made during
this incident.
Defendant contends that “[t]here was a distinct break in the
recording” that differed from the actual recording and that this
rendered the evidence incompetent. We disagree. “Defendant
correctly states that an otherwise properly authenticated tape
should not be admitted unless it is audible, intelligible, and
not
obviously fragmented.”
State v. Rourke, 143 N.C. App. 672, 676,
548 S.E.2d 188, 191 (2001) (emphasis added) (citation omitted). Whether an audio recording meets this standard, however, is in the
trial court's discretion and will not be overturned absent an abuse
of discretion.
Id. at 676-77, 548 S.E.2d at 191. We cannot say
that the trial court committed an abuse of discretion in admitting
the CD because defense counsel was free to cross-examine the
witness regarding the alleged breaks and otherwise attack the
credibility of that evidence.
Alternatively, even assuming a trial court error, defendant
failed to allege that there is a reasonable possibility that a
different result would have been reached had the error not
occurred. In order to prevail in these circumstances, defendant
must demonstrate “'that a reasonable possibility exists that a
different result would have been reached absent the error.'”
State
v. Smith, 357 N.C. 604, 610, 588 S.E.2d 453, 458 (2003) (quoting
State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988)).
Having failed to so allege, we cannot say that the trial court
abused its discretion in admitting the CD of the 911 call. Thus,
both because the alleged gap in the CD recording goes to the
credibility of the evidence rather than its admissibility, and
because defendant failed to allege that a different result would
have occurred without its admission, we find no error in the trial
court's ruling as to this issue.
II.
Defendant next argues that the admission of nine (9)
photographs of the deceased were repetitive and inflammatory. We
disagree. After a trial court has determined that evidence is
admissible it then must decide whether “there exists a danger that
unfair prejudice substantially outweighs the probative value of the
evidence.”
State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d
206, 209 (2005) (citing N.C. Gen. Stat. § 8C-1, Rule 403 (2003)).
“'That determination is within the sound discretion of the trial
court, whose ruling will be reversed on appeal only when it is
shown that the ruling was so arbitrary that it could not have
resulted from a reasoned decision.'”
Id. at 800-01, 611 S.E.2d at
209 (citation omitted).
It is settled law that “the unnecessary use of inflammatory
photographs in excessive numbers solely for the purpose of arousing
the passions of the jurors may deny defendant a fair and impartial
trial.”
State v. Sledge, 297 N.C. 227, 231, 254 S.E.2d 579, 582
(1979). The fact that photographs depict a horrible, gruesome or
revolting scene, however, does not render them incompetent.
Id. at
231, 254 S.E.2d at 583. Rather, they may be used to illustrate
testimony regarding the manner and/or cause of death.
State v.
Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988).
The repetitive use of gruesome photos lowers their probative
value when compared to their tendency to prejudice the jury.
Id.That said, “'[w]hat constitutes an excessive number of photographs
must be left largely to the discretion of the trial court in the
light of their respective illustrative values.'”
Sledge, 297 N.C.
at 232, 254 S.E.2d at 583 (citation omitted).
In the instant case, the State put forth evidence of nine (9)
different photos, all from different angles, of the deceased's
body. This evidence illustrated the medical examiner's conclusions
regarding the cause of death and the determination that the victim
was shot from a distance greater than defendant testified; thus, it
cannot be said that they were merely repetitious. In
Sledge, our
Supreme Court found no abuse of discretion when nine (9) photos of
two bodies were admitted into evidence because they were all taken
from different angles.
Id. We find the holding in
Sledge
applicable to the instant case and conclude that the trial court
committed no error.
See also State v. Dollar, 292 N.C. 344, 355,
233 S.E.2d 521, 527 (1977) (upholding the use of repetitive photos
when taken from different angles).
Additionally, we point out that defendant did not allege that
the result of the case would have been different had the photos not
been admitted. As stated previously, in order to prevail, a
defendant must establish that there was a reasonable probability of
a different outcome.
Smith, 357 N.C. at 610, 588 S.E.2d at 458.
III.
Defendant next argues that the trial court committed plain
error in allowing the State to cross-examine him about a specific
instance of fleeing from the police in June 2002. We disagree.
“[P]lain error analysis is the appropriate standard of review when
a defendant does not object to the admission of evidence at trial.”
Rourke, 143 N.C. App. at 675, 548 S.E.2d at 190. In the instant
case, trial counsel failed to object to a line of questioning by
the prosecutor regarding defendant's alleged prior bad acts. An
error will be “plain error” if 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
of justice 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' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'”
State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984)
(citations omitted).
Before assessing whether there was plain error we must
determine whether there was an error at all.
State v. Torain, 316
N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479 U.S. 836, 93
L. Ed. 2d 77 (1986). Where a defendant testifies, “evidence ofprior convictions is admissible for the purpose of impeaching his
credibility under Rule 609(a).”
State v. Lynch, 334 N.C. 402, 408-
09, 432 S.E.2d 349, 352 (1993).
(See footnote 1)
The scope of inquiry for
impeachment purposes is limited, however, “to [1] the name of the
crime, [2] the time and place of the conviction, and [3] the
punishment imposed.”
Id. at 409, 432 S.E.2d at 352. When the
scope of this rule has been exceeded it has been held to be
reversible error.
Id.
In the instant case, defendant testified and admitted to the
following charges: Breaking and entering, possession with intent
to sell and distribute, and assault inflicting serious injury. The
State, on cross-examination, exceeded the standard set out in
Lynch
by inquiring into the details of the drug charge, specifically,
defendant's alleged flight from the police. While this constitutes
an error, it is not a reversible error because defendant's trial
counsel failed to object to this line of questioning.
See State v.
Ragland, 80 N.C. App. 496, 498, 342 S.E.2d 532, 533 (1986) (holding
that failure to object to incompetent testimony will be regarded as
a waiver of objection and its admission presents no question forreview on appeal). Thus, we must assess whether this error
amounted to plain error.
Defendant fails to show that the jury probably would have
reached a different result had the evidence of prior bad acts not
been admitted.
See Smith, 357 N.C. at 610, 588 S.E.2d at 458. He
also fails to demonstrate that the admission of the evidence
resulted in a fundamental miscarriage of justice. In light of the
compelling evidence of defendant's guilt presented at trial
(discussed in section IV of this opinion), we hold that the trial
court did not commit plain error in admitting evidence of
defendant's alleged prior bad acts.
See State v. Parks, 148 N.C.
App. 600, 609, 560 S.E.2d 179, 185 (2002).
IV.
Defendant's final argument is that there was insufficient
evidence to support the verdict of second degree murder. We
disagree. Our test for determining the sufficiency of the evidence
states that “'“there must be substantial evidence of all material
elements of the offense”'” in order to create a question of guilt
or innocence for the jury.
State v. Casey, 59 N.C. App. 99, 116,
296 S.E.2d 473, 483 (1982) (citations omitted).
In ruling on this question: “'[(1)] the evidence is to be
considered in [the] light most favorable to the State; [(2)] the
State is entitled to every reasonable intendment and everyreasonable inference to be drawn therefrom; [(3)] contradictions
and discrepancies are for the jury to resolve and do not warrant
dismissal; and [(4)] all of the evidence actually admitted, whether
competent or incompetent, which is favorable to the State is to be
considered by the court in ruling on the motion.'”
Id. (quoting
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
Defendant was charged and subsequently convicted of second
degree murder. “'Second-degree murder is an unlawful killing with
malice, but without premeditation and deliberation.'”
State v.
Ammons, 167 N.C. App. 721, 725, 606 S.E.2d 400, 404 (2005)
(citation omitted). “A specific intent to kill, while a necessary
constituent of the elements of premeditation and deliberation in
first degree murder, is not an element of second degree murder or
manslaughter.”
State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322,
324 (1955) (emphasis omitted). At trial, defendant attempted to
establish perfect self-defense. Under perfect self-defense, a
defendant will be found not guilty if the following four elements
are met:
“'(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
that time were sufficient to create such abelief 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. Richardson, 341 N.C. 585, 588, 461 S.E.2d 724, 726 (1995)
(citations omitted).
Defendant concedes in his brief, however, that he was not
entitled, in the light most favorable to the State and based upon
the State's evidence, to a complete exoneration by the trial court
at the close of the evidence based on perfect self-defense.
Accordingly, defendant limits his argument to the grounds that the
second degree murder charge should have been dismissed and that the
charge of voluntary manslaughter should have been submitted to the
jury because he engaged in imperfect self-defense. We limit our
discussion to the same.
As to imperfect self-defense, “'if the first two elements [of
perfect self-defense] existed at the time of the killing, but
defendant, although without murderous intent, was the aggressor in
bringing on the affray or used excessive force, defendant is guilty
at least of voluntary manslaughter.'”
Id. at 588, 461 S.E.2d at726-27 (citation omitted). To prevail, the State need only prove
beyond a reasonable doubt the non-existence of either the first or
the second element.
Ammons, 167 N.C. App. at 726, 606 S.E.2d at
404. That is, either: (1) the defendant did not believe “that it
was necessary to kill to save himself from death or great bodily
harm,” or (2) that the defendant's belief 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.”
Id.
In the instant case, the evidence, taken in the light most
favorable to the State, tends to show that defendant came armed
with a gun to confront the victim over who would sell drugs to
three individuals in a car. It was at this point that defendant
shot the victim from across the hood of the car while standing more
than three to five feet away. After the first shot, defendant
attacked the victim by pistol whipping him. An eyewitness
testified that, after she saw defendant striking the victim with
the gun, she saw defendant lay the victim down and shoot him. The
eyewitness also testified that the victim did not make any movement
during the altercation. We also note that defendant conceded
during his testimony that he did not see the victim carrying a gun.
In light of this evidence, a jury could find that defendant
lacked a reasonable belief in the threat of serious bodily injuryafter the first shot due to the distance between the two men and
could have reasonably concluded that the victim was unarmed. The
jury could also have reasonably concluded that the victim did not
fight back during the altercation, and thus found defendant's
belief of serious bodily harm unreasonable. The evidence in this
case is especially strong as two eyewitnesses saw significant
portions of defendant's actions. Further evidence negating the
reasonableness of defendant's belief in the need to kill was found
in his hasty departure from the scene.
Id. at 726-27, 606 S.E.2d
at 404 (citing
State v. Watson, 338 N.C. 168, 181, 449 S.E.2d 694,
702 (1994),
overruled on other grounds,
State v. Richardson, 341
N.C. 585, 461 S.E.2d 724 (1995) (holding such flight would permit
a jury to infer the defendant harbored a sense of guilt
inconsistent with a killing justified on the basis of
self-defense)). As sufficient evidence negating defendant's claim
of self-defense was presented, the trial court correctly denied
defendant's motion to dismiss the charge of second degree murder at
the close of all the evidence, and the case was properly submitted
to the jury for determination of the disputed factual issues.
V.
In summary, we find no error in the admission of the recording
of the 911 phone call made by a witness, no error in the admission
of nine (9) photographs of the deceased's body, and hold that thetrial court did not commit plain error in admitting evidence of
details regarding one of defendant's past convictions. We
similarly find no error in the trial court's submission of the
second degree murder charge to the jury.
No error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
Footnote: 1