Appeal by Defendant from judgment entered 12 October 2007 by
Judge Catherine C. Eagles in Superior Court, Guilford County.
Heard in the Court of Appeals 10 March 2009.
Attorney General Roy Cooper, by Assistant Attorney General
Charlie E. Reece, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
David Reed Wilson (Defendant) was found guilty by a jury of
the first-degree murder of Raimond Akira Johnson (Johnson) on 12
October 2007. The trial court sentenced Defendant to life
imprisonment without parole. Defendant appeals.
The evidence presented at trial tended to show that Johnson
was shot in front of his apartment in High Point at approximately
4:00 a.m. on 25 February 2006. Johnson died at a local hospital as
a result of four gunshot wounds.
Officer P.J. Perryman (Officer Perryman) with the High Point
Police Department testified to the following. When Officer
Perryman arrived on the scene, Defendant was attempting to pull out
of Johnson's driveway. Officer Perryman approached Defendant'svehicle and saw an AR-15 assault rifle on the passenger seat.
Officer Perryman placed Defendant in custody. Defendant made
several statements to Officer Perryman, including "[t]hat guy took
my wallet so I shot him" and that "he hated drug dealers and that
he was out to rid the world of drug dealers." Defendant behaved as
though the shooting "wasn't that big of a deal[,]" and was "pretty
calm and relaxed" while in custody.
Officer J.A. Kuchler (Officer Kuchler) with the High Point
Police Department testified that Defendant said one of his hobbies
was "shooting dope dealers." Officer Kuchler testified that
Defendant was calm. Defendant never told officers that Johnson had
brandished a weapon, nor that he shot Johnson in self-defense. No
weapon was recovered from Johnson or from his apartment.
Raymond Morgan (Morgan) testified to the following. Johnson
sold drugs out of Johnson's apartment and Morgan was Johnson's
"doorman." Morgan answered Johnson's front door when Johnson was
in the back of the apartment. Defendant and another man came to
Johnson's apartment to buy crack cocaine between 10:00 p.m. and
11:00 p.m. on 24 February 2006. Defendant and the man bought crack
cocaine, smoked it in Johnson's apartment, and left. Defendant
returned to the apartment alone four more times that night looking
for his phone and wallet, and trying to buy more cocaine. The last
time Defendant came to Johnson's apartment, Defendant was carrying
an AR-15 assault rifle. Defendant wanted to buy a "dime rock," a
ten-dollar piece of cocaine, but Johnson told Defendant he did not
sell pieces of cocaine that small. Morgan asked Defendant if hehad found his wallet and Defendant responded: "You ------- right I
found it. If I didn't, I'd level this ------------." Defendant
then put a round of ammunition in the chamber of the assault rifle.
Morgan, Johnson, and Defendant went outside Johnson's
apartment. Defendant continued to demand a ten-dollar piece of
cocaine but Johnson repeated he did not have a ten-dollar piece of
cocaine and turned to walk away. Defendant shot Johnson twice and
Johnson fell to the ground. Johnson stood up and Defendant shot
him a third time, and Johnson again fell. Johnson stood up again
and began to stagger toward his car. Defendant shot Johnson a
fourth time. Morgan fled the scene. Morgan never saw Johnson with
a gun, nor did he ever see Johnson make any threatening motion or
gesture towards Defendant. Morgan testified Defendant killed
Johnson "like a dog for no reason. He killed him in cold blood."
Morgan stayed with Tecolia Daughtridge (Daughtridge) the night
of Johnson's shooting. Morgan told Daughtridge about the shooting
but denied he had ever told Daughtridge anything inconsistent with
his trial testimony. Two days after Johnson's shooting, Morgan
gave a statement to police which was consistent with his trial
Defendant testified in his own defense, admitting that at the
time of the shooting he was suffering from a drug and alcohol
problem. Defendant admitted he bought drugs from Johnson on 24
February 2006 and that he later returned to Johnson's apartment to
look for his wallet. Defendant said that when Johnson opened the
door, Defendant could see his wallet on Johnson's kitchen table. Johnson claimed the wallet belonged to him and closed the door on
Defendant. Defendant then armed himself with his AR-15 assault
rifle, loaded the rifle, and put on his tactical vest with
additional ammunition in order to "scare" and "intimidate" Johnson.
Defendant testified that when Johnson saw Defendant was armed,
Johnson turned his back on Defendant and walked away. Defendant
retrieved his wallet and walked back outside to his vehicle.
Defendant got to his vehicle and heard Johnson say, "I'm going to
kill your white ass." Defendant said Johnson walked toward him
holding a pistol. Defendant saw Johnson raise his gun and
Defendant "just started firing" at Johnson. Defendant admitted
Johnson never fired any weapon at Defendant. Defendant did not
recall ever telling police officers that Johnson had a gun or that
Defendant had feared for his life.
Defendant also called Richard Smith (Smith), a neighbor of
Johnson's, to testify. Smith testified that he bought drugs from
Johnson and had seen a pistol inside Johnson's apartment. Smith
testified that Morgan attempted to sell Smith a gun the morning
after Johnson was shot and killed. Smith said Morgan never showed
him the gun.
Defendant assigns error to the trial court's exclusion of a
statement given to police by Daughtridge. Defendant contends
Daughtridge's statement was admissible both substantively and to
impeach Morgan and that the exclusion of this evidence violated
Defendant's constitutional right to present a defense. The relevant facts pertaining to this issue are as follows.
Defendant called Daughtridge to testify. Daughtridge testified she
had no recollection of seeing Morgan on the night of the shooting,
nor of any statements Morgan made to her regarding the shooting.
She also testified that she had no recollection of having made a
statement to the police. Daughtridge explained she has epileptic
seizures and that she had been put in a coma. As a result, she
could "hardly remember anything." Daughtridge testified she was
not denying she made a statement to the police, but that she simply
did not remember. Daughtridge said she was "liable to say
anything" and was "a patient at mental health."
Outside the presence of the jury, Detective Terry Green
(Detective Green) with the High Point Police Department testified
to the following. Detective Green interviewed Daughtridge on the
evening of 25 February 2006. Daughtridge gave a tape recorded
statement to the police in which she stated the following: Morgan
told her Defendant had fired a shot at Johnson outside Johnson's
apartment; Johnson pulled out a gun in response but never shot the
gun at Defendant or retaliated in any way; Johnson continued to
walk toward Defendant while Defendant continued shooting at
Johnson; Johnson's cousin "beat up" Morgan after the shooting; and
Morgan was afraid for his life. Defendant cross-examined Morgan on
each of these statements and Morgan denied making the statements to
Daughtridge. After hearing all the evidence regarding the proposed
admission of Daughtridge's tape recorded statement and arguments
from counsel, the trial court excluded Daughtridge's tape recordedstatement.
Defendant argues that Daughtridge's tape recorded statement
was admissible for substantive purposes under N.C.R. Evid. 803(5)
as a recorded recollection. We review de novo
the trial court's
determination of whether an out-of-court statement is admissible
pursuant to N.C.R. Evid. Rule 803. See State v. Hinnant
, 351 N.C.
277, 284, 523 S.E.2d 663, 667 (2000); State v. Hazelwood
, 187 N.C.
App. 94, 98-99, 652 S.E.2d 63, 66 (2007).
North Carolina Rule of Evidence 803(5) states:
A memorandum or record concerning a matter
about which a witness once had knowledge but
now has insufficient recollection to enable
him to testify fully and accurately, shown to
have been made or adopted by the witness when
the matter was fresh in his memory and to
reflect that knowledge correctly.
N.C. Gen. Stat. § 8C-1, Rule 803(5) (2007).
We have found no decisions by our Courts interpreting the
language "memorandum or record" in N.C.R. Evid. 803(5) as
encompassing a tape recorded statement. However, Kenneth S. Broun,
the leading commentator on North Carolina evidence, states in
Brandis & Broun on North Carolina Evidence
§ 224 at 201 (6th ed.
2004), regarding 803(5) evidence:
Though most of the cases speak of a "writing,"
it seems that a tape or similar recording
should equally qualify. Indeed, if the
witness dictated the recording and testifies
that she then knew her dictation to be
accurate and identified her voice, the
probability of trustworthiness is higher than
in the situations [involving written
recordings by a third party].
We agree and hold that an audio recording can be admissible as a"record" under Rule 803(5).
Rule 803(5) "applies in an instance where a witness is unable
to remember the events which were recorded, but the witness recalls
having made the entry at a time when the fact was fresh in her
[.]" State v. Spinks
, 136 N.C. App. 153, 158-59, 523 S.E.2d
129, 133 (1999)
(emphasis added) (citing Brandis & Broun on North
, § 224, p. 110 (5th ed. 1998)).
In the case before us, Daughtridge testified that she did not
recall giving a statement to police
. Further, when Daughtridge was
asked about whether she fabricated any statement made to the
police, she responded:
I didn't say I made anything up and you're not
going to get me to say I made nothing up. My
mental state and my physical health as far as
my head, I'm liable to say anything. So, I'm
not really _ me sitting up here, anything I
say is not going to be credible because really
my mental state, I'm liable to say anything.
. . . .
I'm liable to say anything. Truthfully. I'm
a patient at Mental Health. I'm liable to say
Far from establishing the reliability of her statement to the
police, Daughtridge's testimony raised questions about the accuracy
of her statement because, due to her mental state, she was "liable
to say anything." As a result, the audiotape was not admissible
under Rule 803(5). See Id.
(holding that statement was not
admissible under Rule 803(5) when witness did not testify that
statement accurately reflected her actual knowledge at the time,but rather testified that she disagreed with some of the
statement); State v. Hollingsworth
, 78 N.C. App. 578, 581, 337
S.E.2d 674, 676-77 (1985) (holding that when witness testified that
information in letter was lies, letter could not be admitted as
past recollection recorded because no testimony was presented that
letter correctly reflected witness' knowledge of events at time of
Nonetheless, Defendant contends that the fact the statement
was a tape recording "manifested its accuracy" and meant
Daughtridge "tacitly adopted it." However, Defendant cites no
authority in support of his position. In Superior Tile v. Rickey
, 70 N.C. App. 258, 263, 319 S.E.2d 311, 315
(1984), disc. review denied
, 313 N.C. 336, 327 S.E.2d 899 (1985),
our Court held that a deposition transcript was not admissible as
a recorded past recollection because "the witness did not
authenticate the deposition by saying it represented his
recollection at the time it was made."
We find no meaningful
distinction between a deposition transcript and an audio recording
for purposes of admissibility under Rule 803(5). Therefore, the
trial court did not err in excluding Daughtridge's tape recorded
statement as substantive evidence.
Defendant also argues Daughtridge's statement was admissible
for substantive purposes as a public record under N.C.R. Evid.
803(8)(B)&(C). However, the transcript shows that Defendant did
not argue this basis for admission to the trial court. N.C.R. App.
P. 10(b)(1) states that: "In order to preserve a question forappellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context." A defendant may not
assert a different theory on appeal from the one presented to the
trial court. State v. Smarr
, 146 N.C. App. 44, 56, 551 S.E.2d 881,
888 (2001) (citing State v. Benson
, 323 N.C. 318, 321-22, 372
S.E.2d 517, 519 (1988)), disc. review denied
, 355 N.C. 291, 561
S.E.2d 500 (2002). Therefore, Defendant did not preserve this
argument for appeal.
Defendant further argues that Daughtridge's statement was
admissible to impeach Morgan's testimony. N.C.R. Evid. 608(b)
states: "Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility . . . may not be
proved by extrinsic evidence. They may . . . be inquired into on
cross-examination of the witness[.]" N.C. Gen. Stat. § 8C-1, Rule
608(b) (2007). In State v. Hunt
, our Supreme Court held that
"extrinsic evidence of prior inconsistent statements may not be
used to impeach a witness where the questions concern matters
collateral to the issues." State v. Hunt
, 324 N.C. 343, 348, 378
S.E.2d 754, 757 (1989) (citing State v. Green
, 296 N.C. 183, 191,
250 S.E.2d 197, 203 (1978)) reconsideration denied
, 339 N.C. 741,
457 S.E.2d 304 (1995). "[T]estimony contradicting a witness's
denial that he made a prior statement when that testimony purports
to reiterate the substance of the statement" is collateral. Id.
(citing State v. Williams
, 322 N.C. 452, 456, 368 S.E.2d 624, 626(1988)). Therefore, "once a witness denies
having made a prior
inconsistent statement, [a party] may not introduce the prior
statement in an attempt to discredit the witness; the prior
statement concerns only a collateral matter
, whether the
statement was ever made." State v. Najewicz
, 112 N.C. App. 280,
289, 436 S.E.2d 132, 138 (1993), (citing State v. Minter
, 111 N.C.
App. 40, 48-49, 432 S.E.2d 146, 151, cert. denied
, 335 N.C. 241,
439 S.E.2d 158 (1993)), disc. review denied
, 335 N.C. 563, 441
S.E.2d 130 (1994).
In the present case, Defendant cross-examined Morgan regarding
statements Morgan purportedly made to Daughtridge. Morgan admitted
telling Daughtridge that a "white guy" had killed Johnson and that
Morgan was afraid someone might hurt him. However, Morgan denied
telling Daughtridge that Johnson had a gun on the day of the
shooting or that Johnson's cousin had "beat him up." Defendant
argues that he should have been allowed to impeach Morgan by
introducing the substance of Daughtridge's tape recorded statement.
Defendant contends that the statement was not extrinsic evidence
because he was "offering Daughtridge's recorded recollection of an
inconsistent statement by Morgan himself." However, pursuant to
N.C.R. Evid. 608(b) and our Supreme Court's holdings in Hunt
, Defendant was limited to Morgan's answers on cross-
examination. Testimony of another witness, whether a recorded
recollection or presently remembered by the witness is nonetheless
extrinsic evidence. Therefore, the trial court did not err in
excluding Daughtridge's tape recorded statement as impeachmentevidence. Defendant's first assignment of error is overruled.
Defendant argues in his assignment of error number seven that
the trial court committed reversible error or, in the alternative,
plain error. Defendant argues the trial court erred by failing to
explain the law regarding self-defense in its supplemental
instructions to the jury, and by failing to instruct the jury on
voluntary manslaughter based on provocation.
We first note that in addition to arguing the trial court
erred in its supplemental instructions to the jury, Defendant
argues the trial court failed to include not guilty by reason of
self-defense as a possible verdict in its final mandate
jury. Defendant did not assign error to this basis and therefore
Defendant's argument is not properly before us. N.C.R. App. P.
28(b)(6). Further, Defendant concedes, and the transcript clearly
shows, that the trial court did include in its final mandate a
self-defense instruction along with instructions on first-degree
murder, second-degree murder, voluntary manslaughter, and voluntary
intoxication as requested by Defendant at the charge conference.
Therefore, even if Defendant's argument that the trial court erred
in its final mandate was properly before us, this argument is
During deliberations, the jury requested reinstruction on the
elements of first-degree and second-degree murder. The trial court
confirmed with Defendant that he had no objection to reinstructing
the jury on first-degree and second-degree murder. Afterreinstructing the jury, the trial court confirmed that Defendant
had no additions, corrections or objections to the reinstruction as
given. Because Defendant failed to object to the reinstruction,
Defendant is only entitled to plain error review of the trial
court's reinstruction. N.C.R. App. P. 10(c)(4). In order to be
plain error, the error must be "fundamental
error, something so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done[.]" State v. Odom
, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (quoting United States v. McCaskill
F.2d 995, 1002 (4th Cir.) (footnotes omitted), cert. denied
U.S. 1018, 74 L. Ed. 2d 513 (1982)).
In State v. Southern
, our Court held that the trial court did
not abuse its discretion by reinstructing the jury only on malice
when the jury only requested additional instructions on malice.
State v. Southern
, 71 N.C. App. 563, 568, 322 S.E.2d 617, 620-21
(1984), aff'd per curiam
, 314 N.C. 110, 331 S.E.2d 688 (1985). Our
Court reasoned that because the jury only requested additional
instructions on malice, "giving additional instructions on self-
defense might unduly influence" the jury. Id.
The present case is directly analogous to Southern
. The jury
in the present case only requested a reinstruction on first-degree
and second-degree murder. As in Southern
, the trial court's
decision not to reinstruct on self-defense was not an abuse of
discretion, and therefore clearly did not amount to plain error.
Defendant also argues the trial court erred by failing toinstruct the jury on voluntary manslaughter based on provocation.
"[W]hen a jury is properly instructed on both first-degree and
second-degree murder and returns a verdict of guilty of
first-degree murder, the failure to instruct on voluntary
manslaughter is harmless error." State v. East
, 345 N.C. 535, 553,
481 S.E.2d 652, 664, cert. denied
, 522 U.S. 918, 139 L. Ed. 2d 236
(1997). Our Supreme Court has reasoned that where "the jury . . .
did not find that [the] defendant was in the grip of sufficient
passion to reduce the murder from first-degree to second-degree,
then ipso facto it would not have found sufficient passion to find
the defendant guilty only of voluntary manslaughter." State v.
, 323 N.C. 668, 675, 374 S.E.2d 577, 581 (1989).
In this case, Defendant has not alleged that the trial court
improperly instructed the jury on first-degree and second-degree
murder. Because the jury was properly instructed on first-degree
and second-degree murder and returned a verdict of guilty of first-
degree murder, any possible error from the trial court's denial of
Defendant's request for an instruction on voluntary manslaughter
based on provocation was harmless. Therefore, Defendant's
assignment of error number seven is overruled.
Defendant argues the trial court committed plain error by
failing to instruct the jury that Defendant had no duty to retreat
when Johnson confronted Defendant with murderous intent. Because
Defendant failed to specifically request this instruction at trial
and did not object to the trial court's failure to instruct thejury on duty to retreat, our Court reviews for plain error. N.C.R.
App. P. 10(c)(4).
"A comprehensive self-defense instruction requires
instructions that a defendant is under no duty to retreat if the
facts warrant it, and it is error for the trial court not to give
this instruction if it is requested
." State v. Davis
, 177 N.C.
App. 98, 102, 627 S.E.2d 474, 477 (2006) (emphasis added) (citing
State v. Everett
, 163 N.C. App. 95, 100, 592 S.E.2d 582, 586
(2004)). However, "[w]here a defendant's right to stand his ground
and shoot an assailant in self-defense is a 'substantial feature
of a defense, it is error for the trial court to fail to give the
instruction, 'even in the absence of a special request therefor.'"
at 103, 627 S.E.2d at 478 (emphasis added) (quoting State v.
, 26 N.C. App. 159, 162, 215 S.E.2d 394, 396 (1975)).
Since Defendant in this case did not request the instruction
that he had no duty to retreat, the relevant question is whether
Defendant's right to stand his ground was a "substantial feature"
of his defense. Id.
While Defendant argues the evidence supported
an instruction that he had no duty to retreat, Defendant fails to
argue, nor does the evidence show, that he made the issue of his
duty to retreat a substantial feature
of his defense. Further, the
State made no suggestion that Defendant should have retreated nor
does Defendant contend the State put his duty to retreat at issue
in the case. Because the question of whether or not Defendant had
any duty to retreat was not a substantial feature of his defense,
the trial court did not err in failing to instruct the jury thatDefendant had no duty to retreat.
Defendant did not argue his remaining assignments of error and
therefore they are abandoned pursuant to N.C.R. App. P. 28(b)(6).
Judges GEER and BEASLEY concur.
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