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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 December 2007
STATE OF NORTH CAROLINA
No. 05 CRS 53680
JEMAUL GREEN 05 CRS 5893
Appeal by Defendant from judgments entered 2 August 2006 by
Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard
in the Court of Appeals 31 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Tiare B. Smiley, for the State.
Nora Henry Hargrove, for Defendant.
On 25 April 2005, Defendant was indicted on three counts of
discharging a weapon into occupied property, fourteen counts of
assault with a deadly weapon with the intent to kill, and one count
of first-degree murder. On 2 August 2006, the jury found Defendant
guilty of second-degree murder, three counts of discharging a
weapon into occupied property, and thirteen counts of assault with
a deadly weapon. The court entered judgment against Defendant,
sentencing him to 189 to 236 months imprisonment on the second-
degree murder conviction. Defendant was also sentenced to
consolidated sentences of 29 to 44 months on the convictions of
discharge of a weapon into occupied property to be served at theexpiration of the sentence imposed on the second-degree murder
conviction. Defendant was further sentenced in two separate
judgments to imprisonment to seventy-five days for the consolidated
assault with a deadly weapon convictions to be served at the
expiration of the discharge of a weapon into occupied property
convictions. From these judgments, Defendant appeals.
The relevant evidence tends to show that on 19 April 2005 at
approximately 6:30 p.m., Ester Louise Taft (Ester) and her ten-
year-old son, Christopher Foggs (Christopher), visited the home of
Ester's sister, Alvira Taft (Alvira), in Ayden, North Carolina.
Eighty-five year old Lossie Haddock (Lossie) lived next door to
Alvira in the Haddock House. Several of Lossie's children and
grandchildren also lived there. Ester left Christopher with Alvira
and several other children at the Haddock House while she attended
a nearby church service at Zion Chapel. When Ester left for the
[M]y sister [Alvira] . . . was sitting on the
porch[,] . . . [and] my daughter was there
with her kids and I asked her _ I told her
that he didn't want to go and would she watch
him. So she said _ Mom, go, I got it.
While Ester attended the church service, Christopher played with
the other children: [t]hey were just running . . . playing . . .
climb[ing] a tree[.]
At approximately 7:40 p.m., Jeauel Green (Defendant) and his
girlfriend, Vonzeil Adams (Vonzeil), along with Tasha Hardy (Tasha)
and several others, drove to the Haddock House. Defendant parked
his car across the street from the house. Tracy Taft (Tracy), Ester's niece, testified that Tasha got
out of the car and began arguing with the girls on the porch of the
Haddock House. Then, Vonzeil got out of the car and began
[cursing] the girls on the front porch[.] Vonzeil invited the
girls to come off the porch if you want to fight[.] Loretta
Strong (Loretta), Lossie's granddaughter, began walking into the
yard, and Vonzeil yelled to Defendant to get the gun[,] get the
gun[,] and shoot that b----[.] Another witness heard Vonzeil
say, get them, shoot, shoot, shoot. Defendant got out of the
car, reached into his pants, pulled out a gun and walked towards a
tree. When asked at trial, [h]ow many people did you see out
[near the Haddock House,] Defendant replied, [a] lot of
people[,] including a little boy. Defendant first shot the gun
in the air two or three times, then aimed the gun at the Haddock
House and started firing shots.
Tracy, cousin to the deceased, said:
I can't tell you how many shots I heard, but I
was watching him the whole time, because I
couldn't move, because [sic] my kids were on
the ground and my mother was trying to get my
children, and I was trying to make sure she
was getting them, so I was looking towards him
to see, you know, watch what was going on.
And he fired the gun until it stopped firing.
And the reason I know is because he was still
pulling the trigger but it wasn't [sic] any
bullets coming out the gun.
As Defendant shot, Vonzeil and the others who rode with Defendant
retreated back into the car. Then, Defendant stopped shooting, got
into the car and drove away.
I looked to my right[,] and I saw Christopher
laying on the ground and [sic] he had blood on
the back of his shirt and he was laying on the
side of his mother's car, on the side of my
aunt's house. His head was facing the back of
the house and his feet were facing the front,
and [sic] his brother was laying on the ground
in front of him. . . . I started yelling. . .
. I said Christopher's got blood on his
shirt. I said Christopher's been shot.
Christopher was fatally wounded by a single gunshot wound to the
chest and taken to Pitt County Memorial Hospital where doctors
performed emergency surgery but could not save his life.
Exclusion of Evidence
In Defendant's first argument, he contends that the trial
court erred by excluding the testimony of Vonzeil, Lieutenant
Richard Patterson (Patterson) and Alton Ray Hardy, Jr., (Hardy)
regarding threatening acts committed by Christopher's older
brother, Taybron Raheem (Taybron), after the shooting at the
Haddock House. We disagree.
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the
Constitution of North Carolina, by Act of Congress, by Act of the
General Assembly or by these rules. N.C. Gen. Stat. § 8C-1, Rule
402 (2005). Evidence is relevant if it has any logical tendency,
however slight, to prove a fact in issue. State v. Smith
N.C. 604, 613, 588 S.E.2d 453, 460 (2003).
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of theissues, or misleading the jury[.] N.C. Gen. Stat. § 8C-1, Rule
'Exclusion of evidence on the basis of Rule 403 is within the
sound discretion of the trial court.' State v. Pendleton
N.C. App. 230, 232, 622 S.E.2d 708, 709 (2005) (quoting State v.
, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998)). [T]he
trial court's ruling should not be overturned on appeal unless the
ruling was 'manifestly unsupported by reason or [was] so arbitrary
that it could not have been the result of a reasoned decision.'
State v. Hyde
, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (quoting
State v. Hennis
, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
Defendant argues that the trial court erred by excluding the
testimony of Vonzeil, Patterson and Hardy, regarding eighteen-year-
old Taybron's threats with a gun after his younger brother was
killed. The evidence shows that shortly after the shooting at the
Haddock House, Taybron visited Vonzeil's residence with a gun and
threatened Vonzeil and others who were present. Taybron was angry
because his brother had been shot. With regard to the excluded
testimony, the trial court stated:
I want the record to reflect that the Court
has considered all this evidence and in
balancing . . . finds that . . . this evidence
is too speculative, ambiguous, and confusing,
and it involves unrelated crime to the crime
we're trying. And the purpose of it is to
connect something up that can't be connected.
. . . It would just be confusing to the
jury[.] . . . It is an entirely unrelated
event that occurred sometime after [the
shooting.] Defendant argues the contrary, that the foregoing evidence
bolsters his testimony at trial that an unknown man fired the first
shots at Defendant, and Defendant only returned fire in self-
defense. On appeal, Defendant argues that the jury might have
inferred from the excluded testimony that Taybron was the unknown
shooter at the Haddock House. Defendant cites State v. Erby
N.C. App. 358, 289 S.E.2d 86 (1982), as authority. In Erby
State objected to the admission of evidence regarding an occurrence
the night before[,] which bolstered the defendant's theory of
A. The night before, we had some trouble down
there. Some guys was shooting --
Court: Sustained. Members of the jury, you
will not consider the last statement made by
the defendant about anything that may have
happened the night before.
, 56 N.C. App. at 360, 289 S.E.2d at 88. Later in the trial,
defense counsel asked the defendant the following:
Q. All right, and you told him because there
had been some trouble in front of your
Q. Well, explain that to the jury.
at 360, 289 S.E.2d at 88. The Court held that the defendant
[may] fully present his defenses within reasonable limits[,]
stating that the excluded evidence would have shed light ondefendant's self-defense claim. Id.
at 361, 289 S.E.2d at 88
, however, is distinguishable from the instant case. Here,
the State did not object to Defendant's testimony regarding the
unknown shooter at the Haddock House. Without objection, Defendant
A: I saw a male figure.
Q: You saw a male figure?
Q: And where did you see him?
A: Like about three feet away from the black
Neon. . . .
Q: Now describe for the jury what the man
looked like that you saw behind that
A: All I know is it was a black male figure.
Q: Okay. Did he look old or young or _
A: Young. Well about my age[.] . . .
Q: . . . And what did you see the black male
A: Pointing a gun towards me.
Q: And when you saw him pointing his gun
towards you, did you hear anything?
A: Yeah, a shot.
Q: Okay. And what did you do at that point?
A: And I shot off _ I pointed my gun towards
Q: Okay. And what did you do?
Q: How many times did you fire?
A: Two or three times.
Q: And how many times did he fire at you?
A: About two times. . . .
Q: Okay. Now once you started firing at him
and he was firing at you, what did he do
A: He took off.
Q: All right. And where did he take off to?
A: I think between the houses.
is further distinguishable, because here, the excluded
evidence did not regard an occurrence before or contemporaneous
with the shooting at the Haddock House. Rather, the evidence
Defendant sought to admit regarded events occurring after the
shooting. Self-defense requires that
at the time
of the killing:
(1) it appeared to defendant and he believed
it to be necessary to kill the [aggressor] 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
were sufficient to create such a
belief in the mind of a person of ordinary
firmness[.] . . .
State v. Maynor
, 331 N.C. 695, 699, 417 S.E.2d 453, 455 (1992)
(quoting State v. Bush
, 307 N.C. 152, 158, 297 S.E.2d 563, 568
(1982)) (emphasis added). Because the evidence regarding Taybron's
threats with a gun occurred after the shooting at the Haddock
House, the jury may have inferred from the evidence that Taybron
was the unknown shooter, but the evidence is irrelevant to whetherDefendant acted in self-defense at the time
of the killing[.]
, 331 N.C. at 699, 417 S.E.2d at 455.
Furthermore, Defendant has not shown there is a reasonable
possibility a different result would have been reached had the
excluded evidence been admitted. See State v. Holston
, 134 N.C.
App. 599, 605, 518 S.E.2d 216, 220 (1999); N.C. Gen. Stat. §
15A-1443(a) (2005). The testimony of numerous
to the shooting did not corroborate Defendant's assertion that an
unknown man had a gun at the Haddock House, that the man fired
shots, or that Defendant returned fire in self-defense.
At trial, four witnesses _ Tracy Taft, Latasha Phillips
Ashley Smith and Mamie Petteway _ testified that they saw Defendant
shooting multiple times at the porch of the Haddock House, where
approximately thirteen people, including children, were standing or
sitting. Arnessie Payton testified that she saw Defendant fire one
shot in the air, then aim the gun at the porch, shooting the
windshield of the black Neon parked in front of the house. Six
witnesses, Patrice Smith, Loretta Strong, Kendra Conyers, Jasmine
Cox and Tamisha Taft testified that before they either ran into the
house, ducked for cover, or looked for children playing in the
yard, they saw Defendant fire between one and three shots in the
air. However, no one besides Defendant actually saw another
unknown man with a gun, who according to Defendant's testimony was
closer to the Haddock House than Defendant.
We conclude that the trial court properly applied Rule 403 to
find that although possibly relevant for the inference that Taybronwas the unknown shooter, the danger of the testimony prejudicing,
confusing, or misleading the jury outweighed the probative value of
the testimony. Giving the decision of the trial court great
deference on appeal[,] State v. Streckfuss
, 171 N.C. App. 81, 88,
614 S.E.2d 323, 328 (2005), we cannot say that the court's ruling
excluding the foregoing evidence was manifestly unsupported by
reason or so arbitrary that it could not have been the result of
a reasoned decision. Hyde
, 352 N.C. at 55, 530 S.E.2d at 293
(internal quotation marks omitted). The ruling by the trial court
was not error. This assignment of error is overruled.
In his second argument, Defendant contends that the trial
court committed plain error by failing to instruct on self-defense
as a defense for assault with a deadly weapon and discharging a
At trial, Defendant failed to object to the trial court's
instructions to the jury. Therefore, our review is limited to
whether the instructions were plain error.
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 or
where it can be fairly said the instructionalmistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Lemons
, 352 N.C. 87, 96-97 530 S.E.2d 542, 547 (2000)
(quoting State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)) (internal quotation marks omitted). [I]n order to prevail
under the plain error rule, [a] defendant must convince this Court
that (1) there was error and (2) without this error, the jury would
probably have reached a different verdict. State v. Najewicz
N.C. App. 280, 294, 436 S.E.2d 132, 141 (1993).
This Court has specifically held that an instruction on self
defense is [generally] appropriate only where there is evidence
that the defendant reasonably believed it was necessary to kill in
order to protect himself:
[B]efore the defendant is entitled to an
instruction on self-defense, two questions
must be answered in the affirmative: (1) Is
there evidence that the defendant in fact
formed a belief that it was necessary to kill
his adversary in order to protect himself from
death or great bodily harm, and (2) if so, was
that belief reasonable?
State v. Gillis
, 158 N.C. App. 48, 59, 580 S.E.2d 32, 39 (2003)
(quoting State v. Lyons
, 340 N.C. 646, 662, 459 S.E.2d 770, 778
(1995)). [W]here the record [is] 'totally void of any evidence'
supporting 'defendant's self-serving claim' [of self-defense], the
Court may hold defendant's belief was not objectively reasonable
and that the trial court properly refused to instruct the jury on
self-defense. State v. Meadows
, 158 N.C. App. 390, 402, 581
S.E.2d 472, 479 (2003) (quoting State v. Williams
, 342 N.C. 869,
873-74, 467 S.E.2d 392, 394 (1996)). Our Supreme Court's decision in State v. Nicholson
, 355 N.C.
1, 558 S.E.2d 109 (2002), and this Court's decision in Meadows
N.C. App. 390, 581 S.E.2d 472, are instructive here. In Nicholson
the Court noted that the trial court erred by instructing the jury
, because there was no evidence of the reasonable
necessity that defendant kill his adversary in order to protect
himself from death or great bodily harm. Nicholson
, 355 N.C. at
30, 558 S.E.2d at 130. The Court in Nicholson
relied on the
following excerpt from Williams
, 342 N.C. at 873, 467 S.E.2d at
394, for its holding:
[D]efendant is not entitled to an instruction
on self-defense while still insisting that he
did not fire the pistol at anyone, that he did
not intend to shoot anyone and that he did not
[know anyone had been shot].
See also Bush
, 307 N.C. at 159-60, 297 S.E.2d at 568
defendant's self-serving statements that he was 'nervous' and
'afraid' and that he thought he was 'protecting [himself]' did
not amount to evidence that the defendant had formed any
subjective belief that it was necessary to kill the deceased in
order to save himself from death or great bodily harm).
Moreover, the facts of this case are similar to Meadows
N.C. App. 390, 581 S.E.2d 472. In Meadows
, the defendant testified
that he saw the victim pull a weapon from his crotch area and the
defendant saw something shine. Id.
at 402, 581 S.E.2d at 478.
The defendant in Meadows
said that he believed it was necessary to
shoot the victim in order to save himself;
however, the Court
that the trial court properly declined to instruct the jury onself-defense because _ despite the defendant's testimony, the sole
evidence to support his theory of self-defense _ his belief was not
In the instant case, as in Nicholson
, Defendant stated, I
have never had no [sic] intention to kill nobody[.] Moreover, as
, Defendant alone testified that there was an unknown man
at the Haddock House who fired the first shots, and further, that
he acted under an objectively reasonable belief that it was
necessary to kill in order to save himself from death or great
bodily harm _ the first requirement to establish any type of
self-defense. See Gillis
, 158 N.C. App. at 59, 580 S.E.2d at 39.
Defendant's testimony tends to show the opposite, that his
belief was not objectively reasonable. Defendant testified that he
did not duck but stood there, straight up, firing away:
Q: . . . Now after you heard the firecracker
sound, you fired your gun. Is that
A: Twice in the air.
Q: Twice in the air. And that's when you
saw this person?
A: Yes, sir. . . .
Q: And then when this person shot at you
again did you duck then?
A: No, sir. I fired back at them.
Q: Did you stand still? Same place?
A: Yes, I did.
Q: Didn't duck?
A: No, I did not. . . .
Q: So you stood there, straight up, firing
A: That's right. . . .
Q: And then you say that the person ran away
_ this person that was firing the shots
you saw run away. Is that right?
A: That's right.
Q: So the last time you saw him he was
between the houses going the other way.
Is that right?
A: That's right.
None of the other numerous witnesses even saw the mysterious
shooter at the Haddock House.
We conclude, based on Nicholson
, 355 N.C. 1, 558 S.E.2d 109,
, 158 N.C. App. 390, 581 S.E.2d 472, and similar cases,
that the evidence here is insufficient to support plain error on
the issue of whether Defendant reasonably believed it necessary to
shoot the unknown man to protect himself from death or great bodily
harm. See also State v. Wolfe
, 157 N.C. App. 22, 35, 577 S.E.2d
655, 663 (2003). The trial court did not plainly err by failing to
instruct on self-defense as a defense for assault with a deadly
weapon and discharging a firearm.
For the foregoing reasons, we find no error.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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