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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1470


Filed: 19 June 2007


         v.                        Guilford County
                                No. 05 CRS 24744

    Appeal by defendant from judgment entered 12 May 2006 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

    Gilda C. Rodriguez for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was charged with possession of a firearm by a felon, assault with a deadly weapon inflicting serious injury and discharging a firearm into occupied property of a vehicle. He appeals from a judgment entered upon a jury verdict finding him guilty of possession of a firearm by a felon. For the following reasons, we find no error.
    The State's evidence tended to show that in June of 2005, Tiara Johnson (Johnson) lived with her mother, Rochelle Thorton, and the rest of her family at 908 Gregory Street. On 16 June 2005, Johnson's boyfriend, Darryl Ford (Ford), drove her to Wendy's and back to her home. Upon returning, Ford pulled the van he wasdriving into the driveway across the street, at 909 Gregory Street, so he could back into the driveway of Johnson's home. When Ford pulled into the driveway of 909 Gregory Street, a person came from the side of the house, walked up to the driver's side of the van and fired a gun twice into the van. One of the bullets hit Ford in the hand.
    After being shot, Ford pulled the van out of the driveway and drove to a nearby gas station. Johnson saw Greensboro Police Officer Calvin Stevens at the gas station, ran up to him and told him that Ford had been shot. According to Johnson, Officer Stevens asked what happened and Johnson told Officer Stevens that Ford was shot by a man who went by the nickname of “Black.” Johnson testified at trial that she did not see who shot into the van, but “was told that it was [Black].” Johnson's mother testified that she saw the shooting take place as she sat on her front porch, but claimed she could not identify defendant as the shooter because a streetlight was out.
    Oliver Jamison (Jamison) and Joseph Day (Day) lived across the street from Johnson at 909 Gregory Street. Jamison and Day testified that on the night of 16 June 2005, defendant came to their residence and he had a gun in his hand. When asked to leave defendant said to Day, “this is not about you or anybody in here.” A few minutes later, Day and Jamison heard gun shots. Jamison testified that he looked out of the window and saw defendant in the street pointing a gun towards his neighbor's house. Day admitted on cross-examination that the gun could have been a BB gun.     Officer Stevens testified that on the night of the shooting, he was meeting with other officers at the gas station when Johnson ran up to him screaming. Officer Stevens approached the van and saw Ford was bleeding from a gun shot wound to his hand. Officer Stevens first asked Mr. Ford and then Johnson about the shooting. Ford “just said he had [been] shot.” Johnson said that “it was 'Black[.]'” Defense counsel objected and moved to strike on the grounds that the testimony was non-corroborative. The trial court overruled the objection and instructed the jury that the testimony would be “allowed for corroboration only and only to the extent that it does.” Officer Stevens then testified that Ford would not answer who had shot him, but that Johnson said “she knew who the subject was. He's a black male that lives or hangs out at 909 Gregory Street and goes by the name of 'Black.'” For impeachment purposes, Officer Stevens testified that Johnson's mother had told him that she saw defendant approach the van, point a gun at Ford and fire into the van.
    A jury found defendant guilty of possession of a firearm by a felon and not guilty of the remaining charges. The trial court sentenced defendant to sixteen to twenty months imprisonment. Defendant appeals.
    Defendant contends that the trial court erred when it failed to sustain his objection and to allow his motion to strike the purported corroboration testimony of Officer Stevens when his testimony regarding the statement Johnson gave to Officer Stevens directly contradicted Johnson's testimony at trial.    “[P]rior consistent statements [are] admissible for the limited purpose of affirming a witness's credibility[.]” 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.” State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, 447 (1984). However, where the witness's prior statement is generally consistent with their testimony, slight variations do not make the statement inadmissible, as those variations only go to the credibility of the witness and the statement. State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356- 57, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). “[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).    
    Here, defendant objects to the following trial testimony of Officer Stevens, who was asked by the prosecution about Johnson's statement to him at the gas station:
        A. I spoke to Miss Johnson and asked Miss Johnson what had happened. And she advised they had pulled into the driveway and the gentlemen walked up and shot them. I asked - at which time, I asked the gentleman that. And he just said that he had [sic] shot. I asked Miss Johnson the same thing. And she said that it was “Black,” and he lives or hangs around 909 Gregory Street.

        MR. TOMLIN: Objection. Move to strike. Non- corroborative.
        The Court: Let counsel approach just a moment, please.

        (Sidebar conference)

        The Court: Overruled. Ladies and gentlemen, I will allow this witness to say what that lady who testified earlier told him. You will recall what the testimony was with regard to that particular matter. And it's allowed for corroboration only and only to the extent that it does.

        Q. What did - what did she tell you?

        A. I had actually asked Mr. Ford who shot him. He responded - he wouldn't respond. The black female stated - she stated she knew who the subject was. He's a black male that lives or hangs at 909 Gregory Street and goes by the street name of “Black.”

    The discrepancy defendant points to concerns Officer Stephen's testimony that in Johnson's prior statement, Johnson identified the shooter as being “Black.” However, Johnson testified at trial that she did not see who shot Ford. At trial, Ms. Johnson's pertinent testimony on direct-examination is as follows:
        Q. And is it your testimony to this jury that you could not identify who that person was?

        A. Yes. I was told who the person was.

        Q. And you later gave a statement to the police; is that correct?

        A. Yes, I did.

Later in her testimony, Ms. Johnson testified about her statement to police at the gas station.
        Q. What did you say?

        A. He asked me did I know the guy name. I said no. All I was introduced as was his nickname.
        Q. What nickname did you give?

        A. “Black.”

        Q. But what you told this jury today is you didn't actually see who it was that shot in the car?

        A. No. I was told that it was him.
    We believe that Officer Stevens's testimony with regard to Johnson's prior statement was corroborative of Johnson's trial testimony. In her prior statement and her trial testimony, Johnson stated that she knew the shooter was “Black.” Johnson did not specifically state that she observed “Black” shoot into the van. Johnson's statement strengthened and confirmed her testimony at trial with substantial similarities. Thus, it was proper for the trial court to admit the statement to corroborate Johnson's testimony.
    Even assuming arguendo that the trial court erred concerning the admissibility of Johnson's prior statement, there is no reasonable possibility that absent the error, the jury probably would have reached a different verdict. N.C. Gen. Stat. § 15A-1443(a)(2006). Day and Jamison, two disinterested witnesses, testified they saw defendant holding a gun that night. Defendant has failed to meet his burden under N.C. Gen. Stat. § 15A-1443(a).
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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