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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 August 2007
STATE OF NORTH CAROLINA
No. 04 CRS 54377
BRANDON MAURICE BRYANT
Appeal by Defendant from judgment entered 10 November 2005 by
Judge Steve A. Balog in Edgecombe County Superior Court. Heard in
the Court of Appeals 10 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Thomas R. Sallenger for Defendant.
Christine Hana Jackson Stevenson (Christine) married Willie
Curtis Stevenson, Jr. (Willie) on 26 May 2000. The couple had
three children. In 2002, the couple separated and that same year,
Christine began a relationship with Defendant, who was fifteen
years old at the time. Christine and Defendant also had a child.
Because of Christine's relationship with both Defendant and Willie,
the two men had a strained association and had argued on several
At his trial for the murder of Willie, Defendant testified
that on the night of 13 November 2004, he went to Christine's
apartment to talk with her about a fight they had earlier in the
day. When Defendant arrived at the apartment, Willie was there. An argument between the two men ensued and Willie pushed his
finger in Defendant's face. Willie then turned suddenly to walk
away and Defendant, fearing that Willie was coming after him,
pulled out his gun and shot Willie twice. Willie died the next
On 3 January 2005, Defendant was indicted for first-degree
murder. He was tried by a jury between 7 and 10 November 2005
before the Honorable Steve A. Balog. At the close of all the
evidence, the jury returned a verdict finding Defendant guilty of
second-degree murder. Upon this conviction, Judge Balog sentenced
Defendant to a minimum term of 144 months and a maximum term of 182
months in prison. On 23 November 2005, Defendant filed notice of
appeal to this Court. For the reasons which follow, we hold
Defendant received a fair trial, free of prejudicial error.
By his first assignment of error, Defendant contends the trial
court erred in allowing Christine to testify to statements that
Willie made to her and attributed to Defendant. Defendant argues
that these statements constitute inadmissible hearsay and do not
fall within any hearsay exception. We disagree.
'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). Generally, hearsay evidence is
inadmissible at trial. State v. Wilson
, 322 N.C. 117, 367 S.E.2d
589 (1988). However, the North Carolina Evidence Code containsseveral exceptions by which statements determined to be hearsay are
nonetheless admissible. See
, N.C. Gen. Stat. § 8C-1, Rule
803(1) (2005) (allowing a statement regarding a present sense
Pursuant to Rule 805 of the North Carolina Evidence
Code, [h]earsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with
an exception to the hearsay rule provided in these rules. N.C.
Gen. Stat. § 8C-1, Rule 805 (2005). However, [t]he Rule 805
exclusion requirement does not apply when the second layer of
statements are not hearsay. State v. Hurst
, 127 N.C. App. 54, 62,
487 S.E.2d 846, 852, appeal dismissed and disc. review denied
N.C. 406, 494 S.E.2d 427 (1997), cert. denied
, 523 U.S. 1031, 140
L. Ed. 2d 486 (1998).
During the trial, Christine testified that on 13 November 2004
Willie and their young son, who was four years old at the time of
the trial, walked to a local convenience store. Upon returning,
Willie told Christine that while at the store, he saw Defendant and
Defendant stated to him, [Y]ou're lucky you got your son with you
or I'd kill you right now. Defendant contends that Christine's
testimony constitutes inadmissible hearsay and that, because
neither the statement he allegedly made to Willie or Willie's
statement to Christine fit within an exception to the hearsay rule,
the trial court erred in allowing the testimony.
First, we examine the statement that Defendant allegedly made
to Willie, [Y]ou're lucky you got your son with you or I'd kill
you right now. This statement was not offered for its truth;rather, it was offered to show that Defendant had the intent to
kill Willie. This element is necessary to support the charge of
first-degree murder, the crime for which Defendant was indicted.
N.C. Gen. Stat. § 14-17 (2003) (establishing the elements of
first-degree murder). In State v. Jones
, 358 N.C. 330, 595 S.E.2d
124, cert. denied
, 543 U.S. 1023, 160 L. Ed. 2d 500 (2004), our
Supreme Court held that the trial court's decision to admit in
evidence an audiotape containing heated discussions between the
defendant and his victims was not error because the statements on
the tape were not hearsay. In so holding, the Court determined
that the statements were not offered for their truth; rather, they
were offered, in part, to show that the defendant had the intent to
harm the victims. Id.
Here, the trial court's decision to admit
Defendant's statement as non-hearsay is clear by the instruction
that Judge Balog gave to the jury. Specifically, Judge Balog
Evidence has been received that may tend
to show that the defendant told Willie
Stevenson at Sammy's Store if you did not have
your son with you, I would kill you now.
This evidence was received solely for the
purpose of showing that the defendant had the
intent which is a necessary element of the
crime charged in this case . . . . If you
believe this evidence, you may consider it but
only for the limited purpose for which it was
Since this evidence was not offered for its truth, it is not
hearsay and the trial court did not err by admitting it in
evidence. Even assuming arguendo
that this statement was admitted for
its truth, and thus, was hearsay, we hold that it was admissible as
a then existing mental or emotional condition as allowed under Rule
803(3). Rule 803(3) provides that [a] statement of the
declarant's then existing state of mind . . . [or] emotion . . .
(such as intent, plan, motive, [or] design[)] is not excluded by
the hearsay rule. N.C. Gen. Stat. § 8C-1, Rule 803(3) (2005).
Evidence regarding a declarant's state of mind is admissible when
it is relevant to the case. State v. Weeks
, 322 N.C. 152, 367
S.E.2d 895 (1988). In State v. Sneed
, 327 N.C. 266, 271, 393
S.E.2d 531, 534 (1990), our Supreme Court held that a declarant's
statement that he intended to rob a local service station was
admissible as evidence of [a] then-existing intent to engage in a
future act. Similarly, Defendant's statement to Willie that he
would kill him if Willie's son was not present is evidence of
Defendant's intent to later harm Willie and is relevant because
Defendant was tried on a charge of first-degree murder, a crime
which may require premeditation and deliberation. See
Stat. § 14-17. Under Rule 803(3) and Sneed
to Willie was admissible as Defendant's then existing state of mind
to show intent, plan, or design.
(See footnote 1)
Next, we examine the statement that Willie made to Christine
to determine if it falls within a hearsay exception. We hold that
Willie's statement to Christine falls within the present sense
impression exception to the hearsay rule and was admissible.
Rule 803(1) of the North Carolina Evidence Code provides that
a statement a declarant makes that is determined to be a present
sense impression is not excluded by the hearsay rule. A present
sense impression is [a] statement describing or explaining an
event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter. N.C. Gen. Stat. §
8C-1, Rule 803(1). [T]here is no per se
rule indicating what time
interval is too long under Rule 803(1) . . . . [A]dmissibility of
statements under hearsay exceptions depends upon the facts of the
particular case. State v. Cummings
, 326 N.C. 298, 314, 389 S.E.2d
66, 75 (1990) (quotation marks and citation omitted). The
underlying theory of the present sense exception to the hearsay
rule is that closeness in time between the event and the
declarant's statement reduces the likelihood of deliberate or
conscious misrepresentation. State v. Reid
, 322 N.C. 309, 315,
367 S.E.2d 672, 675 (1988) (citation omitted). In Cummings
Supreme Court held that a statement was admissible as a present
sense impression when the statement was made in close proximity to
the event[,] the only delay being the length of time it took to
drive from Willow Springs to . . . Raleigh. Cummings
, 326 N.C. at
314, 389 S.E.2d at 75. Similarly, in this case, Willie described his encounter with
Defendant to Christine soon after meeting Defendant at the
convenience store. The only delay between when Willie perceived
the event and when he described it to Christine was the length of
time it took to [walk] from [the convenience store] to . . .
[Christine's apartment]. See id.
Because of the short time
involved, Willie's statement to Christine plainly constitutes a
description of the event of his encountering Defendant in the
convenience store immediately after that encounter, and, thus,
Willie's statement was admissible as a present sense impression.
Furthermore, although Willie's statement to Christine included
a statement he attributed to Defendant, because Defendant's
statement was independently admissible, Willie's entire statement
was properly admitted. Accordingly, Defendant's challenge to the
admissibility of this evidence is overruled.
By his second assignment of error, Defendant contends the
trial court erred in admitting in evidence statements that
Defendant made to Sergeant Jay Fortenberry of the Rocky Mount
Police Department. On 14 November 2004, Defendant spoke by
telephone to Sergeant Fortenberry and asked, Am I going to go to
jail for a long time? Defendant also told the officer that he had
stolen his grandfather's pistol. On 17 November 2004, Defendant
surrendered to the police and, after being advised of his Miranda
rights, told Sergeant Fortenberry the location of the murder
weapon. On 2 November 2005, the State filed a motion in limine by
which it requested a ruling from the trial court on the
admissibility of Defendant's statements to Sergeant Fortenberry.
Following a hearing, Judge Balog determined that the statements
Defendant made on 14 November 2004 were admissible. Judge Balog
initially withheld his ruling on the 17 November 2004 statement,
but after hearing testimony on voir dire from Sergeant Fortenberry,
Judge Balog admitted the statement at trial. Defendant contends
that the statements were erroneously admitted because he was not
given Miranda warnings before being questioned by Sergeant
Fortenberry on 14 November 2004. We are not persuaded.
The Fifth Amendment of the United States Constitution
prohibits compelling any person in a criminal case to incriminate
himself or herself. State v. Ortez, 178 N.C. App. 236, 244, 631
S.E.2d 188, 195 (2006) (citing U.S. Const. amend. V). To protect
this right, the United States Supreme Court has held that before
being subjected to questioning, a person must be advised of the
right to remain silent, the right to the presence of an attorney,
and the right to a court-appointed attorney, if necessary. Miranda
v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh'g denied, 385 U.S.
890, 17 L. Ed. 2d 121 (1966). It is well established that Miranda
warnings are required only when a [criminal] defendant is subjected
to custodial interrogation. State v. Patterson, 146 N.C. App.
113, 121, 552 S.E.2d 246, 253 (citation omitted), disc. review
denied, 354 N.C. 578, 559 S.E.2d 549 (2001). By custodial
interrogation, we mean questioning initiated by law enforcementofficers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. State
v. Phipps, 331 N.C. 427, 441, 418 S.E.2d 178, 185 (1992) (quoting
Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706). To determine
whether the suspect was in custody, the reviewing court must use an
objective test of whether a reasonable person in the suspect's
position would believe that he had been taken into custody or
otherwise deprived of his freedom of action in any significant way
or, to the contrary, would believe that he was free to go at will.
State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 581 (1982)
(citing United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d
497, reh'g denied, 448 U.S. 908, 65 L. Ed. 2d 1138 (1980)).
Here, when Defendant made the statements on 14 November 2004,
he was talking to Sergeant Fortenberry on his cellular phone while
traveling in a car. Defendant presented no evidence to the trial
court, and thus there is none to consider on appeal, that there
were any police officers within close physical proximity to
Defendant or that Defendant's freedom of action was affected at
all, much less in a significant way. Indeed, the uncontradicted
evidence establishes the contrary: Defendant was traveling alone
and was free to continue traveling wherever he wished to go. He
plainly was not in custody when he talked on the telephone to
Sergeant Fortenberry. Thus, Miranda warnings were not required.
Accordingly, Defendant's argument regarding his statements on 14
November 2004 is overruled. Defendant next argues that although he was properly given
Miranda warnings before he made his 17 November 2004 statement
regarding the location of the murder weapon, [Defendant's]
willingness to make a statement of that import at that time was due
to the previous telephone discussion he had with the officer
wherein he acknowledged in that telephone call the existence of a
gun. Specifically, Defendant argues that because the 14 November
2004 statements resulted from a violation of Defendant's Fifth
Amendment rights, and because he would not have made the 17
November 2004 statement but for the previous unconstitutional
interrogation, the 17 November statement was necessarily
inadmissible at trial. We do not agree. Since we have held that
Sergeant Fortenberry's questioning of Defendant on 14 November
comported with constitutional requirements, statements that
Defendant later voluntarily made are not the product of an
unconstitutional interrogation even if, as Defendant argues, they
were allegedly influenced by his 14 November statements. This
argument is without merit and is overruled.
By his final assignment of error, Defendant contends the trial
court committed prejudicial error in its instructions to the jury.
Specifically, Defendant challenges the following instruction:
Evidence has been received that may tend
to show that the defendant pointed a handgun
at the face of Christine Stevenson.
This evidence was received solely for the
purpose of showing that the defendant had a
motive for the commission of the crime charged
in this case. If you believe this evidence you may
consider it, but only for the limited purpose
for which it was received.
In challenging this instruction on appeal, Defendant must show
that the instruction constituted error and that the error was
prejudicial to Defendant's case. Prejudicial error is defined as
a question of whether 'there is 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.'
State v. Lanier
, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607
(quoting N.C. Gen. Stat. § 15A-1443(a)), disc. review denied
N.C. 195, 608 S.E.2d 59 (2004). In criminal cases, the burden is
on the defendant to show the error occurred and to demonstrate the
prejudice suffered. State v. Milby
, 302 N.C. 137, 273 S.E.2d 716
(1981). Here, even if the trial court's instruction to the jury
constituted error, Defendant has failed to adequately demonstrate
In his brief to this Court, Defendant asserts that [i]n a
case so hotly contested with so much at stake . . . the [t]rial
[c]ourt's erroneous instruction to the jury . . . constitutes a
substantial prejudice to this Defendant because he was convicted
of the charge of homicide against him. We are not persuaded. In
light of Defendant's testimony that as Willie turned his
back . . . I pulled a gun and I shot him[,] we conclude that this
allegedly erroneous jury instruction could have had little, if any,
impact on Defendant's conviction of second-degree murder.
Furthermore, Defendant's bare assertion that his conviction isevidence of prejudice is not persuasive. Because we perceive no
prejudicial error in the trial court's instruction, this assignment
of error is overruled. See State v. Sanders
, 171 N.C. App. 46, 54,
613 S.E.2d 708, 713 (finding no prejudicial error from an erroneous
jury instruction when the evidence before the jury, including
[the] [d]efendant's own signed statement and testimony under oath,
made clear that the defendant committed the crime with which he
was charged), aff'd per curiam
, 360 N.C. 170, 622 S.E.2d 492
For the reasons stated, we hold Defendant received a fair
trial, free of prejudicial error.
NO PREJUDICIAL ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
The fact that Defendant's statement was made to Willie, but
Christine's testimony provided the statement to the jury has no
effect on its admissibility. See State v. Chapman
, 359 N.C. 328,
611 S.E.2d 794 (2005) (holding that statements of unidentified
callers that were contained in a statement the defendant made to
police were admissible under Rule 805 because the defendant's
statement and the statements of the unidentified callers were
independently admissible under our hearsay law).
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