STATE OF NORTH CAROLINA
v
.
From New Hanover County
No. 02 CRS 25658
03 CRS 674
DEMOND ANTONIO WELLS
Attorney General Roy Cooper, by Special Deputy Attorney
General L. Michael Dodd, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
STEELMAN, Judge.
The trial court erred in allowing the admission of certain
evidence at trial, but the admission of that evidence did not rise
to the level of plain error. The State's evidence was sufficient
to survive defendant's motion to dismiss the charge of carrying a
concealed weapon. The trial court did not err in instructing the
jury concerning defendant's decision not to testify, even though
defendant requested the instruction not be given. We find no error
sufficient to warrant a new trial.
Demond Antonio Wells (“defendant”) worked as a recording
engineer. Charles Echols (“Echols”), owned Heavy Rotation, a
recording studio where defendant conducted most of his work. On 17
December 2002, while defendant and Echols were in Heavy Rotation,defendant argued with Roncin Sanders (“victim”) over the phone
concerning a dispute over an agreement between defendant and the
victim for defendant to record and mix tracks for the victim's
music group. Shortly thereafter, the victim and his friend
LaDiamond Jones (“Jones”), arrived at the studio. Further argument
ensued inside the studio, which consisted of angry conversation and
threatening body language. Matters escalated when the
confrontation moved outside the studio, and defendant and victim
began fighting on the front steps. Jones joined in the fight as
well, “stomping” on defendant twice. Echols, who had seen the
fight start from inside the studio, opened the door and shouted for
the men to stop. Shortly thereafter, defendant produced a 40
caliber Glock Handgun, though no one saw from where defendant
produced the handgun, and began firing it. Defendant shot victim
in the hand and chest, then continued to fire at the fleeing victim
and Jones. The victim died shortly after being shot, and defendant
turned himself in to the police several hours later.
Defendant was indicted for first-degree murder and carrying
a concealed weapon. He went to trial at the 15 May 2006 Criminal
Session of Superior Court in New Hanover County before the
Honorable Charles H. Henry. On 31 May 2006, a jury found defendant
guilty of second-degree murder and carrying a concealed weapon.
Finding defendant to be record level II, the trial court
consolidated the charges for purposes of sentencing and sentenced
defendant to 180-225 months imprisonment. Defendant appeals. In defendant's first argument, he contends the trial court
committed plain error by not intervening ex mero motu to exclude
testimony, not otherwise admissible under the Rules of Evidence,
concerning defendant's bad character and propensity for violence.
We disagree.
Because defendant did not object to the testimony at trial, he
argues the trial court's inaction amounts to plain error. N.C.R.
App. P. 10(c)(4). “Plain error is error 'so fundamental as to
amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would have
reached.' 'To satisfy the requirements of the plain error rule, the
Court must find error, and that if not for the error, the jury
would likely have reached a different result.'” State v. Ramirez,
156 N.C. App. 249, 256, 576 S.E.2d 714, 720 (2003), rev. denied,
357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L.
Ed. 2d 388 (2003).
“The plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
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'
....”
State v. Holbrook, 137 N.C. App. 766, 767-68, 529 S.E.2d 510, 511
(2000), (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,378 (1983)). Each contested admission of evidence or instruction
will be evaluated individually for plain error, not cumulatively.
Holbrook, 137 N.C. App. at 768-69, 529 S.E.2d at 511-12.
Defendant specifically objects to the State's examination of
Echols, the owner of Heavy Rotation. Upon questioning by
defendant's attorney, Echols testified that he had known defendant
for ten years, and knew him to be a peaceful person. The State
then asked Echols if he was aware defendant had been arrested “for
an incident involving going armed to the terror of the people
involving a 40-caliber Glock gun”, and further asked if Echols knew
that defendant had been previously convicted of carrying a
concealed weapon. Echols responded that he had not been aware of
these things, but that he did believe defendant to be a peaceful
person.
N.C. Gen. Stat. § 8C-1, Rule 404 concerns the admissibility of
evidence of character. Rule 404(a)(1) states: “(a) Character
evidence generally. -- Evidence of a person's character or a trait
of his character is not admissible for the purpose of proving that
he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. -- Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut the
same[.]” Because defendant introduced his character into evidence,
Rule 404(a)(1) permitted the State to rebut evidence of defendant's
good character. N.C. Gen. Stat. § 8C-1, Rule 405(a) defines the
parameters of the State's examination of defendant's character
witnesses: “Reputation or opinion. -- In all cases in whichevidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by
testimony in the form of an opinion. On cross-examination, inquiry
is allowable into relevant specific instances of conduct.”
However, it is not permissible for the State to reference the
fact that defendant has previously been arrested or charged with a
crime, as “[t]he fact that the defendant had been charged with a
crime does not show he is guilty of the crime.”
State v. Martin,
322 N.C. 229, 238, 367 S.E.2d 618, 623 (1988); see also State v.
Jones, 329 N.C. 254, 259, 404 S.E.2d 835, 837 (1991);
but see State
v. Roseboro, 351 N.C. 536, 554, 528 S.E.2d 1, 13 (2000)
. It was
improper for the State to ask the witness if he knew defendant had
been arrested on suspicion of another crime.
We do not, however, find that this error rises to the level of
plain error. State's evidence tended to show that defendant had a
heated phone conversation with the victim shortly before the victim
and Jones arrived at Heavy Rotation. Immediately after the
conversation, Lamont Smith, who was in the studio at the time,
teased defendant about his demeanor during the conversation.
Defendant responded by saying: “Them n----s don't know me, I'm from
Jervay.” Echols explained that Jervay is a housing project known
to be dangerous. Immediately following the altercation between
defendant, Jones and the victim, defendant used his 40 caliber
Glock handgun to shoot at Jones and the victim, hitting the victim
twice, killing him. There were multiple witnesses to the shooting,
and their testimony tends to show that defendant emptied his fullten round clip shooting at the two men. Most of those shots were
fired as Jones and the victim were attempting to flee. Defendant
fired several rounds, paused for some seconds, then began firing
again, calmly walking in the direction of the fleeing victim.
Witnesses testified that defendant was not injured, and seemed
methodical and composed. Defendant calmly walked to his van and
drove off in a normal manner after he had emptied his handgun.
Defendant admitted that he killed the victim, and the only
issues at trial were whether defendant acted in self-defense and,
if not, of what degree of homicide he was guilty. Defendant argues
that the improper testimony served to convince the jury that he
acted with malice, and thus resulted in a conviction of second-
degree murder rather than a lesser offence. We hold that there was
plenary evidence to support a jury finding of malice, and that
defendant has failed to meet his burden of proving that, absent the
improper testimony, the jury would likely have reached a different
result. Ramirez, 156 N.C. App. at 256, 576 S.E.2d at 720.
Defendant next argues that the trial court committed plain
error by failing to intervene ex mero motu to prevent the
prosecutor from asking Echols if he was aware that defendant had a
prior conviction for carrying a concealed weapon. This argument
has not been preserved for appeal by any assignment of error in the
record, and is thus not properly before this Court. N.C. R. App. P.
10(a); State v. Smith, 160 N.C. App. 107, 122, 584 S.E.2d 830, 840
(2003). This argument is without merit. In defendant's second argument, he contends the trial court
erred in admitting a photograph of the victim and his daughter
because it was irrelevant and inflammatory. We disagree.
Defendant objected to the admission of the photograph, which
depicted the victim and his daughter on her first day of school.
The photograph was authenticated by the victim's mother, and she
stated that it would help her illustrate her testimony about her
son. It was admitted into evidence for illustrative purposes only.
“It is well settled that photographs are admissible into
evidence to illustrate the testimony of a witness.” State v. Ruof,
296 N.C. 623, 629, 252 S.E.2d 720, 724 (1979).
“Photographs are
usually competent to be used by a witness to explain or illustrate
anything that it is competent for [her] to describe in words.”
State v. Bethea, 167 N.C. App. 215, 223, 605 S.E.2d 173, 179 (2004)
(citations and internal quotation marks omitted).
“Whether the
evidence should be excluded is a decision within the trial court's
discretion. Hence, the trial court's decision will not be
disturbed, unless it is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.” State v. Burgess, 134 N.C. App. 632, 635, 518 S.E.2d
209, 211-12 (1999) (citation and internal quotation marks omitted).
“Whether the use of photographic evidence is more probative than
prejudicial ... likewise lies within the discretion of the trial
court.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988) (citing State v. Sledge, 297 N.C. 227, 254 S.E.2d 579
(1979)). We hold that the admission of this photograph did not
constitute an abuse of discretion, nor was it arbitrary and wholly
unsupported by reason. Assuming arguendo that the admission of the
photograph did constitute error, in light of the plenary evidence
supporting the jury's verdict, we hold the admission of the
photograph did not prejudice defendant to any extent requiring a
new trial.
This argument is without merit.
In defendant's third argument, he contends that the trial
court committed plain error in allowing the State to introduce
irrelevant and inflammatory evidence of the victim's good character
and the impact his death had on his family, friends, and the
community. We disagree.
The victim's mother was the first witness called by the State.
During her testimony, the State elicited responses from this
witness indicating she and the victim were very close, the victim
was well respected, peaceful, a leader, a caring father, generous,
and church-going. She further testified that the victim's death
had been very hard on her and his family. Defendant did not object
to this testimony at trial.
We agree with defendant that this testimony was improperly
elicited by the State. Rule 404(a)(2) of the North Carolina Rules
of Evidence permits the State to elicit testimony concerning the
victim's character in certain instances, but only to rebut evidence
initially introduced by the defense. State v. Quick, 329 N.C. 1,
26, 405 S.E.2d 179, 194 (1991). In the instant case, the victim's
mother was the first witness to testify at trial, and the defendanthad not put on any evidence or elicited testimony concerning the
character of the victim. This testimony was improper and should
have been excluded. Id.
Because defendant did not object at trial, the plain error
rule applies. In light of the plenary evidence of defendant's
guilt, as discussed above, we hold that defendant has failed in his
burden of proving that this error likely resulted in a different
result at trial. Ramirez, 156 N.C. App. at 256, 576 S.E.2d at 720.
This argument is without merit.
In defendant's fourth argument, he contends the trial court
erred in denying his motion to dismiss the charge of carrying a
concealed weapon. We disagree.
N.C. Gen. Stat. § 14-269 states in relevant part: “(a1) It
shall be unlawful for any person willfully and intentionally to
carry concealed about his person any pistol or gun ....” This
statute then lists exceptions to this provision, none of which
defendant argues in his brief. “Upon defendant's motion for
dismissal, the question for the Court is whether there is
substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant's being the perpetrator of such offense. If so, the
motion is properly denied.” State v. Scott, 356 N.C. 591, 595, 573
S.E.2d 866, 868 (2002).
In reviewing challenges to the sufficiency of
evidence, we must view the evidence in the
light most favorable to the State, giving the
State the benefit of all reasonable
inferences. Contradictions and discrepancies
do not warrant dismissal of the case but arefor the jury to resolve. The test for
sufficiency of the evidence is the same
whether the evidence is direct or
circumstantial or both. “Circumstantial
evidence may withstand a motion to dismiss and
support a conviction even when the evidence
does not rule out every hypothesis of
innocence.” If the evidence presented is
circumstantial, the court must consider
whether a reasonable inference of defendant's
guilt may be drawn from the circumstances.
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then “'it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.'”
Id. at 596, 573 S.E.2d at 869.
Defendant does not contest that he was in possession of a
handgun, rather, he argues that there was insufficient evidence
that the weapon was ever concealed, and therefore his motion to
dismiss should have been granted. During his interview by
detectives at the police station, defendant stated that he was
carrying the gun in his belt that day, but said “I made my weapon
present”, presumably meaning it was not concealed.
However, Jones testified that he was with the victim and
defendant throughout the entire argument and physical altercation,
and he never saw a gun. He testified that if he had seen a gun, he
would never have stayed and participated in the confrontation, and
that he would have told the victim to leave as well. Echols
testified that he and defendant were at his store before the victim
and Jones arrived, and that he was there throughout the altercation
and shooting. Echols testified that he knew defendant owned ablack Glock handgun, which he sometimes carried, but that he did
not see it on defendant that day.
From inside Heavy Rotation, Echols saw defendant and the
victim fighting on the front steps of the Studio. He went to the
door to tell them to stop once he saw Jones joining in. After
telling them to stop, he turned for a few seconds, looking back
into his store, and then he heard shots fired. This short span of
time, between when Echols turned away from the fighting men and
when he heard the shots, suggests defendant did not have time to
run and retrieve the gun from his van, or anywhere else.
Though no witnesses observed defendant drawing the handgun
from some place concealed on his person, there is substantial
circumstantial evidence from which the jury could make a reasonable
inference that defendant was carrying the weapon, and that it had
been wilfully concealed. This argument is without merit.
In defendant's fifth argument, he contends the trial court
erred in giving an instruction on his decision not to testify at
trial, after he had requested that the instruction not be given.
We disagree.
Defendant acknowledges that prior decisions of the appellate
courts of this state have found no error when this jury instruction
has been given against the request of the defendant. Defendant
asks, however, that we “reexamine” these holdings and come to a
different result. Even if we were so inclined, this we are without
authority to do. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989). “However, since defendant requested no suchinstruction, we are constrained to repeat once more that, in the
absence of a request, it is better for the judge to make no
reference to defendant's failure to testify.” State v. Cawthorne,
290 N.C. 639, 649, 227 S.E.2d 528, 534 (1976). This argument is
without merit.
Arguments included in defendant's assignments of error, but
not argued on appeal, are abandoned. N.C. R. App. P. 28(b)(6)
(2007).
NO PREJUDICIAL ERROR.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).
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