Appeal by defendant from judgment entered 17 April 2006 by
Judge Kenneth F. Crow in Greene County Superior Court. Heard in
the Court of Appeals 28 August 2007.
Attorney General Roy Cooper, Assistant Attorney General
Leonard G. Green, for the State.
Office of the Appellate Defender Staples Hughes, Assistant
Appellate Defender Matthew D. Wunsche, for defendant.
Martin Terrell Lender (defendant) appeals from a judgment
entered 17 April 2006 consistent with jury verdicts finding him
guilty of voluntary manslaughter and possession of a weapon of mass
destruction. Defendant was sentenced within the presumptive range
to a term of sixty-four to eighty-six months imprisonment for
voluntary manslaughter and a consecutive sentence within the
presumptive range to a term of sixteen to twenty months
imprisonment for possession of a weapon of mass destruction.
Defendant was also ordered to pay $6,038.74 in restitution. We
find defendant has received a trial free from error, but reverse
and remand to the trial court for resentencing as to restitution. Defendant resided with his mother and his girlfriend, Tara
Wilkes. Steven Wilkes (Ms. Wilkes' brother), Crystal Best
(Steven's girlfriend) and their baby also stayed in defendant's
home. At about midnight on 12 August 2004, Michael Fields,
defendant's cousin, visited the home. Mr. Fields told Ms. Wilkes
to tell Steven that he better have my gun or my money one. The
next morning, when Ms. Wilkes relayed Mr. Fields' message, Steven
told her to stay out of his business and proceeded to assault and
choke his sister. Ms. Wilkes called out to defendant for help.
Defendant pulled Steven off of Ms. Wilkes. Defendant and Steven
tussled down the hallway for a few minutes. After the altercation,
defendant went outside and was followed by Steven. When Ms. Wilkes
went outside, she saw Steven standing at the front of defendant's
car. Defendant was standing at the rear of his car with the trunk
open while he argued with Steven. Steven began walking toward
defendant. Ms. Wilkes heard Steven tell defendant to stay out of
his and his sister's business. Ms. Wilkes testified she saw a gun
in defendant's hands while Steven was walking toward defendant with
empty hands which were down by his side. Defendant then shot
Steven in the chest. Crystal Best, Steven's girlfriend, testified
similar to Tara Wilkes except as follows: Steven and defendant
were not arguing during their final discussion; Steven told Ms.
Best to get the baby so they could leave; and that Steven was not
walking towards defendant, but was backing away from the car when
defendant shot him. Defendant testified that on 11 August 2004 he applied for a
handgun permit to start his personal gun collection. Defendant
testified he told Steven to leave and Steven told defendant to get
out of me and my sister [sic] business. Without saying anything
else to Steven, defendant went outside, and Steven followed.
Defendant and Ms. Wilkes testified Steven was yelling and had not
calmed down since assaulting his sister. Further, defendant
testified Steven said, If you ever touch me like that GD. again
[sic], I'll pop a God D. hole in you. Defendant testified he told
Steven to leave and Steven said, no, . . . you know what I'm
saying, if you got that gun you might as well pull it because I'm
going to pop a hole in your ass. During these remarks, defendant
stood near his trunk and Steven stood near one of the back tires.
At that point, defendant testified that he did not have a gun in
his hand. Steven turned around to tell Ms. Best to get the baby so
they could leave. Then, according to defendant's testimony, Steven
walked quickly toward defendant with his left hand behind his back.
As Steven advanced, defendant opened the car trunk and removed a
shotgun. Defendant testified Steven looked angry and said, if you
got your damn gun you might as well get it because I'm going to pop
a hole in your ass. As Steven turned the corner of the rear of
the car, defendant raised the gun and fired one shot that struck
him in the chest. Defendant testified he did not want Steven to
get any closer because he thought he might have a gun, although he
was not certain. After shooting Steven, defendant discarded his
gun and left the scene. Shortly thereafter, officers who respondedto the 911 call found defendant in an abandoned house and the gun
in the bushes near defendant's home.
On 4 April 2005, defendant was indicted for second degree
murder and possession of a weapon of mass destruction. On 25
January 2006, defendant filed a motion for physical examination to
address his competency to stand trial. On 17 March 2006, two
forensic psychiatrists declared defendant competent to stand trial.
The jury acquitted defendant of second degree murder, but found him
guilty of voluntary manslaughter and possession of a weapon of mass
destruction. Defendant appeals.
Defendant appeals whether the trial court erred by: (I)
admitting a redacted photograph of defendant; (II)
defendant's attorney to reference a gun deal in his opening
statement; (III) allowing the State to introduce photographs of the
victim's gunshot wound; (IV) instructing the jury on voluntary
manslaughter; (V) failing to find mitigating factors in determining
defendant's sentence; and (VI) ordering defendant to pay $6,038.74
Defendant argues the trial court erred by admitting a redacted
photograph of defendant because it gave the appearance of a
criminal in a mug shot. On appeal, the standard of review is
whether the trial judge abused its discretion. State v.
, 314 N.C. 232, 333 S.E.2d 245 (1985). Defendant
contends the trial court abused its discretion under (1) Rule 403because the photograph implied defendant had prior experience with
the police and thus was a bad character and (2) Rule 404(b) because
the photo was shown as evidence defendant engaged in prior bad
acts. To prevail on his argument defendant must show that the
trial court's ruling was so arbitrary that it could not have been
the result of a reasoned decision. State v. Thompson
, 314 N.C.
618, 626, 336 S.E.2d 78, 82 (1985).
The State sought to introduce two photos to show the height
and weight disparity between the victim, Steven Wilkes, and
defendant to support the theory that defendant used excessive force
because defendant was significantly larger than the victim. The
trial court only allowed one photo, the front view of defendant and
determined the other photo, the profile view, was unduly
prejudicial. The trial court gave a limiting instruction stating
the photo was not substantive evidence, but was admitted only for
A decision on whether the probative value of particular
evidence is substantially outweighed by a danger of unfair
prejudice is within the sound discretion of the trial judge. State
, 315 N.C. 724, 340 S.E.2d 430 (1986); N.C. Gen. Stat. §
8C-1, Rule 403 (2005).
In the present case, all identifying marks
including police information were removed from the photo, which was
used solely for illustrative purposes. See State v. Hatcher
N.C. 380, 389, 177 S.E.2d 892, 901 (1970) (holding that redacting
the name of the police department and other identifying information
from a photo was sufficient to remove any danger of unfairprejudice where there was nothing on the photo to connect defendant
with previous criminal offenses), overruled on other grounds by
State v. Hurst
, 320 N.C. 589, 359 S.E.2d 776 (1987).
As for defendant's 404(b) challenge, the record indicates the
photo was introduced solely to illustrate the officers' testimony,
not as substantive evidence of any bad acts by defendant. The
photo was not used as substantive [e]vidence of other crimes,
wrongs, or acts . . . in order to prove the character of a person
to show that he acted in conformity therewith. N.C. Gen. Stat. §
8C-1, Rule 404(b) (2005). Defendant has failed to show the trial
court abused its discretion by admitting the redacted photograph of
defendant. See State v. Young
, 60 N.C. App. 705, 708, 299 S.E.2d
834, 836 (1983) (The record indicates that the police information
on defendant's mug shots was sufficiently covered over so as to
avoid prejudicing the jury.). This assignment of error is
Defendant argues the trial court erred by allowing defendant's
trial attorney to reference a gun deal in his opening statement.
Defendant argues this statement was prejudicial and amounted to
ineffective assistance of counsel. Defendant also maintains the
trial court erred by allowing the prosecutor to refer to a gun
deal during his closing statement. We disagree.
To succeed on a claim for ineffective assistance of counsel
[f]irst, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors soserious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result was
reliable. State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241,
250 (1985) (quoting from Strickland v. Washington
, 466 U.S. 668, 80
L. Ed. 2d 674 (1984)).
Defendant asserts his trial attorney improperly stated to the
jury that defendant was involved in a gun deal with Steven Wilkes
and Mr. Fields. However, there is no explicit reference that
defendant had a role in the gun transaction, merely an indirect
pronoun reference using the word he. The two subsequent phrases
in defense counsel's opening statement, that Mr. Fields had gone
past Mr. Lender's house and requested that he see Steve Wilkes,
and Mr. Wilkes, the decedent, the brother of Tara Wilkes, was
looking to sell these guns to a particular individual named Phil,
clarify that defense counsel was identifying Steven Wilkes and Mr.
Fields as the parties to the gun deal.
Defendant claims reference to a gun transaction harmed his
credibility with the jury. However, defendant admitted he had
applied for a handgun permit that very day, and was planning to
start collecting guns. From these facts, the jury could deduce
defendant was obtaining the proper permit to legally begin his gun
collection. Thus, the implication that he was discussing the
purchase of a gun from Mr. Fields is consistent with defendant'sactions and his own trial testimony. Defendant has not shown his
counsel's statement deprived defendant of a fair trial.
Defendant also asserts the prosecutor, during closing
arguments, improperly characterized defendant's participation in
the gun discussions on the night of 11 August 2004. As a result,
defendant argues the trial court erred by failing to intervene ex
. Defendant cites the following portion of the
prosecutor's closing argument:
Well, you heard evidence that Mr. Lender was
involved in a gun deal that very same [sic]
day. He was going down to get a permit to
purchase a handgun. But the fact that somebody
was going to do some kind of deal for a cousin
of this defendant, Mr. Lender, doesn't mean
that he acted in self-defense. It's something
for the defense, I would say, to put up and
say, well, look at this, this is what Mr.
Wilkes was doing the night before.
Defendant did not object to this portion of the prosecutor's
closing argument. Pursuant to N.C. Gen. Stat. § 15A-1230, an
attorney [m]ay not . . . make arguments on the basis of matters
outside the record except for matters concerning which the court
may take judicial notice. N.C. Gen. Stat. § 15A-1230 (2005). An
attorney may, however, on the basis of his analysis of the
evidence, argue any position or conclusion with respect to a matter
in issue. Id.
This Court ordinarily will not review the exercise
of the trial judge's discretion in this regard unless the
impropriety of counsel's remarks is extreme and is clearly
calculated to prejudice the jury in its deliberations. State v.
, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979) (citation
Here, the prosecutor's use of the evidence regardingdefendant's application for a gun permit and presence during
discussions of a gun transaction between Steven Wilkes and Mr.
Fields was a proper argument arising from the evidence. See State
, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988) (Counsel
may argue the facts in evidence and all reasonable inferences that
may be drawn therefrom together with the relevant law in presenting
the case.), cert. denied
, 488 U.S. 975, 102 L. Ed. 2d 548 (1988).
Thus, defendant has not shown an abuse of discretion by the trial
court. This assignment of error is overruled.
Defendant argues the trial court erred by allowing the State
to introduce photographs of the victim's gunshot wound. Defendant
asserts the trial court violated Rule 403 of the Rules of Evidence
because the prejudicial effect of the photographs outweighed their
probative value. We disagree.
The proper standard for determining whether to admit
photographs pursuant to Rule 403 and what constitutes an excessive
number [of photographs] is an abuse of the trial court's
discretion. State v. Gladden
, 168 N.C. App. 548, 552, 608 S.E.2d
93, 95-96 (2005) (citation omitted). The trial court must discern
whether certain evidence is so inflammatory that its probative
value is substantially outweighed by the danger of unfair prejudice
. . . or needless presentation of cumulative evidence[.] N.C.G.S.
§ 8C-1, Rule 403; See State v. Mason
, 315 N.C. 724, 731, 340 S.E.2d
430, 437 (1986). Defendant must show that the trial court's
decision was so arbitrary that it could not have been the resultof a reasoned decision. Thompson
, 314 N.C. at 626, 336 S.E.2d at
Defendant objects to the introduction of: (1) three crime
scene photos of the deceased lying on the floor of the home with
a gunshot wound to his chest and blood coming from his nose and
mouth; and (2) two autopsy photos, one which showed a closeup of
the chest wound.
With regard to the crime scene photos, the trial court ruled
the probative value of the photos outweighed any potential for
unfair prejudice because they bolstered the State's proof of
malice, an essential element of the second degree murder charge.
The crime scene photos were used to illustrate the identity of the
victim, his size, the position of the body and the nature of the
wound sustained by the victim.
With regard to the autopsy photos, the trial court, while
acknowledging that the depiction of the wound was gory, ruled the
probative value of the photos outweighed any potential for unfair
prejudice. The trial court determined the photos showed a closer
and more definitive view of the wound, were corroborative evidence
of the victim's wound, and were useful in illustrating the medical
On the record, we determine these photos depicting the damage
inflicted by defendant, in combination with the witnesses'
testimony, were properly admitted for illustrative purposes by the
trial court. State v. Blakeney
, 352 N.C. 287, 309-10, 531 S.E.2d
799, 816 (2000) (quotations and citations omitted), cert. denied
,531 U.S. 1117, 148 L. Ed. 2d 780 (2001). These assignments of
error are overruled.
Defendant argues the trial court committed plain error by
instructing the jury on the lesser included offense of voluntary
manslaughter because there was insufficient evidence to support
theories of aggressor and imperfect self-defense. We disagree.
Unlawful killing with malice but without premeditation and
deliberation is second degree murder. State v. Durham
, 176 N.C.
App. 239, 244, 625 S.E.2d 831, 835 (2006). In contrast, the lesser
included offense of voluntary manslaughter is defined as an
intentional killing without premeditation, deliberation or malice
. . . [either] in the heat of passion . . . or in the exercise of
imperfect self-defense where excessive force under the
circumstances was used. State v. Lyons
, 340 N.C. 646, 663, 459
S.E.2d 770, 779 (1995) (citation omitted). A defendant is
'entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the
lesser offense and acquit him of the greater.' State v. Leazer
353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v.
, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)).
The eye witness testimony (from Ms. Wilkes, Ms. Best and
defendant) varied as to Steven Wilkes' actions just prior to being
shot by defendant. Had the jury afforded greater weight to Ms.
Best's version of the events, the jury may have concluded
imperfect-self defense occurred where Steven was no longer arguingwith defendant and was attempting to leave the premises. The jury
could also have concluded defendant refused to allow Steven to end
the argument, became the aggressor and used excessive force against
Steven. See State v. Cannon
, 341 N.C. 79, 82, 459 S.E.2d 238,
240-241 (1995) (a person may be the aggressor even though he did
not start the confrontation, if he prolongs it). In the
alternative, if the jury believed Ms. Wilkes' version of the
events, then a conclusion that Steven was the aggressor, but
defendant used excessive force in response, would be supported.
Finally, the jury may not have decided the case on imperfect
self-defense, but instead found the State failed to prove malice
and concluded defendant was guilty of voluntary manslaughter, the
lesser included offense of second degree murder.
Where defendant did not object at trial, he has not shown the
probability the jury would have acquitted him but for the trial
court's jury instructions. State v. Walker
, 316 N.C. 33, 39, 340
S.E.2d 80, 83 (1986). This assignment of error is overruled.
Defendant alleged the trial court erred by failing to find
mitigating factors. The trial court has great discretion in
determining the existence of aggravating and mitigating factors.
State v. Graham
, 309 N.C. 587, 592, 308 S.E.2d 311, 315 (1983).
Defendant bears the burden of proof by a preponderance of the
evidence regarding mitigating factors. State v. Jones
, 309 N.C.
214, 219, 306 S.E.2d 451, 455 (1983); see also
N.C. Gen. Stat. §
15A-1340.16 (2005). It is well settled that the trial court is notrequired to make findings of mitigating or aggravating factors when
the court sentences defendant within the presumptive range of
sentences for his offense. State v. Brooks
, 136 N.C. App. 124,
133, 523 S.E.2d 704, 710 (1999), disc. review denied
, 351 N.C. 475,
543 S.E.2d 496 (2000).
At sentencing, defendant alleged multiple mitigating factors,
including, inter alia
, his relationship and interaction with Steven
Wilkes; defendant's mental state; and defendant's community status
for the trial court to consider. After hearing these factors, the
trial court responded:
[Defendant] presented no evidence of any
extenuating circumstances in his relationship
with Steven Wilkes. Indeed, all of the
evidence was that he and Steven Wilkes had
been best friends from
childhood. . . .[A]lthough defendant's mother
made a statement to the judge expressing her
love for her son, there was no evidence of a
family support system.
. . .
[Defendant], the problem here is that the
court would have been much more inclined to
fashion some form of mitigating sentence had
your testimony been much more conforming with
the facts of the case, your prior statement
and had it sounded more truthful.
Based on the trial court's analysis of the lack of evidence
presented in mitigation, the trial court did not err in concluding
the alleged mitigating factors were not supported by the evidence.
See State v. Teeter
, 85 N.C. App. 624, 355 S.E.2d 804, appeal
dismissed and cert. denied
, 320 N.C. 175, 358 S.E.2d 67 (1987) (The
weight to be given aggravating and mitigating factors is clearly
within the sound discretion of the trial judge, whose decision willnot be disturbed absent an abuse of that discretion.).
Furthermore, where defendant was sentenced within the presumptive
range for his offenses, the trial court was not required to make
findings in mitigation. This assignment of error is overruled.
The amount of restitution recommended by the trial court must
be supported by evidence adduced at trial or at sentencing. State
, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004)
(citation and quotation omitted); see also
N.C. Gen. Stat. §
15A-1340.35 (2005). Here, the prosecutor submitted a restitution
worksheet indicating that the cost of the funeral was $6,038.74.
Defendant did not contest this amount. A defendant's failure to
contest the restitution worksheet was not a stipulation to the
restitution amount. State v. Replogle
, ___ N.C. App. ___, ___,
640 S.E.2d 757, 761 (2007). As in Replogle
, the trial court's
order of restitution was based entirely on the State's restitution
worksheet. Ultimately, unsworn statements of the prosecutor . .
. [do] not constitute evidence and cannot support the amount of
restitution recommended. State v. Buchanan
, 108 N.C. App. 338,
341, 423 S.E.2d 819, 821 (1992). Therefore, we reverse on the
issue of restitution and remand to the trial court for resentencing
consistent with this decision. See Replogle
, ___ N.C. App. at ___,
640 S.E.2d at 761 (remanded because the State failed to produce
any evidence on the issue of restitution at sentencing).
No error in part, reversed and remanded for resentencing in
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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