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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-430
Filed: 4 December 2007


v .                         Pitt County
                            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.

    ARROWOOD, Judge.

    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 service:
        [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.
    Tracy testified:
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, 357 N.C. 604, 613, 588 S.E.2d 453, 460 (2003). “Although relevant, 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 403 (2005).
    “'Exclusion of evidence on the basis of Rule 403 is within the sound discretion of the trial court.'” State v. Pendleton, 175 N.C. App. 230, 232, 622 S.E.2d 708, 709 (2005) (quoting State v. White, 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, 56 N.C. App. 358, 289 S.E.2d 86 (1982), as authority. In Erby, the State objected to the admission of evidence regarding an occurrence “the night before[,]” which bolstered the defendant's theory of self-defense:
        A. The night before, we had some trouble down there. Some guys was shooting --
        [Prosecutor]: Objection.
        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.

Erby, 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 house?
        A.     Yeah.
        Q.     Well, explain that to the jury.
        [Prosecutor]: Objection.
        Court: Sustained.
Id. 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 (citations omitted).
, 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 stated:
        A:     I saw a male figure.

        Q:     You saw a male figure?

        A:     Yes.

        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 black Neon.

        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 doing?

        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 him.

        Q:     Okay. And what did you do?

        A:     Fired.
        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 next?

        A:     He took off.

        Q:     All right. And where did he take off to?

        A:     I think between the houses.

Erby 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 the time 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[.]” Maynor, 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 other eyewitnesses 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.
Jury Instruction
    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 firearm.
    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, 112 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, 158 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 on self-defense, 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 (stating that “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, 158 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 held 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 objectively reasonable.
    In the instant case, as in Nicholson, Defendant stated, “I have never had no [sic] intention to kill nobody[.]” Moreover, as in Meadows, 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 right?

        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 away?

        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, and Meadows, 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.
    No Error.
    Judges CALABRIA and STEPHENS concur.
    Report per Rule 30(e).

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