Opinion
No. COA12–87.
2012-08-7
STATE of North Carolina v. Daniel Jeremiah JOHNSON.
Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State. Charlotte Gail Blake, for Defendant-appellant.
Appeal by Defendant from judgments entered 8 September 2011 by Judge Eric L. Levinson in Lincoln County Superior Court. Heard in the Court of Appeals 5 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State. Charlotte Gail Blake, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Daniel Jeremiah Johnson (“Defendant”) appeals from separate judgments finding him guilty of possession of a firearm by a felon and obtaining habitual felon status. Defendant argues the trial court abused its discretion by excluding relevant evidence at trial. We disagree and find no error.
I. Factual & Procedural Background
On 12 July 2010, Defendant was indicted for possession of a firearm by a felon. On 27 June 2011, Defendant was indicted as a habitual felon. A bifurcated jury trial was held on both charges during the 6 September 2011 criminal session of Lincoln County superior court, the Honorable Eric L. Levinson presiding. The State's evidence tended to show the following.
Defendant lived on the same lot with his father, David Johnson. For nearly all of his life, Defendant lived in the same neighborhood with the Hendershot family. Defendant's next-door neighbor, Amanda Hendershot, testified that she lived approximately 200 to 300 yards from Defendant's residence. In the early morning of 29 May 2010, she woke to “yelling and cussing and gun shots.” Ms. Hendershot went to her window and saw Defendant in her yard holding a “long gun” while “yelling and cursing religious people.” Ms. Hendershot also testified that four or five years earlier Defendant beat to death a neighborhood horse.
Ms. Hendershot's husband, Michael Hendershot, testified that he also woke to gun shots on 29 May 2010 and saw Defendant holding a “long gun” which resembled a shotgun or a rifle. Mr. Hendershot saw Defendant fire the gun once into the ground as Defendant was walking away from the Hendershots' house. Mr. Hendershot then called 911. Mr. Hendershot also testified that about five years prior, there was a boundary dispute over a shared driveway with Defendant's father.
Sergeant Jordan Cody of the Lincoln County Sheriff's office testified to the following. At 6:07 a.m. on 29 May 2010, Sergeant Cody was dispatched to Defendant's residence in response to a call of shots being fired. Sergeant Cody went directly to Defendant's residence, finding Defendant upset and “stating that someone had stolen a chainsaw that belonged to his father.” To secure the scene, Sergeant Cody and two deputies immediately detained and handcuffed Defendant.
Defendant consented to a search of his house, where officers found no weapons. Sergeant Cody and the two deputies found “numerous shell casings around the front of” Defendant's building, consisting of both .22 and 7.62 caliber rounds. Most of the casings were spent rounds, but one live round was found on the front porch of Defendant's father's house. No shell casings were found in the Hendershots' yard. Sergeant Cody saw two guns in a gun rack on the wall of Defendant's father's home: an SKS rifle and what appeared to be a .22 caliber rifle. At the time of the incident, Defendant's father was away at a bass fishing tournament.
Defendant told Sergeant Cody he did not fire a weapon. Sergeant Cody testified that Defendant “seemed to be impaired[,]” “had some slurred speech [,] and you could smell alcohol about his breath.” No ballistic or fingerprint testing was conducted on the guns or the shells, nor were Defendant's hands tested for gunshot residue. At the close of the State's evidence, Defendant made a motion to dismiss the case for lack of evidence. The court denied the motion.
Defendant's evidence tended to show the following. Defendant's father testified that when he left for the bass fishing tournament, he left his home unlocked to let Defendant and others use the refrigerator inside. He testified that he often shot rifles in the woods and that he may have left the live round on his porch. He also testified about prior incidents with the Hendershots, stating that the Hendershots' horses “have got out in our garden” and that “[w]e've had words about that.” He testified the Hendershots blamed Defendant for the death of one of their horses. Defendant's father also testified about a dispute when he re-graveled the driveway shared with the Hendershots but the Hendershots refused to help pay for the service.
When Defendant's father was asked if the Hendershots had ever personally threatened him, the State objected. The trial court sustained the objection. After excusing the jury, the trial court allowed Defendant's father to answer the question as an offer of proof. Defendant's father responded that the Hendershots had not threatened him but had told him that they would “get even” because Defendant had harmed their horse. Defendant's father also testified that when he asked the Hendershots to pay part of the driveway graveling bill, he was told, “Hell, no I'm not paying no bill and still ain't forgot what your son done.” The trial court excluded the testimony under North Carolina Rule of Evidence 403, noting that “much of the same information came out from the cross examination of the earlier witnesses for the State.”
During deliberations, the jury asked the trial court six questions, two of which concerned the disputes between the two families: “Why was Ms. Hendershot not aware of the driveway dispute?” and “When was gravel placed on the driveway and did the Hendershot's [sic] know in advance about the gravel?” The trial court instructed the jury that all the evidence had been received, appropriate instructions had been given, and it was the jury's duty to reach a unanimous verdict based on the received evidence and instructions.
On 7 September 2011, the jury found Defendant guilty of possession of a firearm by a felon and marked this option on the verdict sheet. Also on the verdict sheet there is a handwritten statement, “THE JURY COULD NOT REACH A UNANIMOUS DECISION,” that is crossed out. Next to this crossed out sentence are the foreman's initials and the date of 7 September 2011. After the verdict was given, the jury was polled and each juror confirmed the guilty verdict. Defendant was also found guilty of obtaining the status of habitual felon. Defendant was sentenced to a term of imprisonment for a minimum of 88 months and a maximum of 115 months. Defendant entered timely notice of appeal in open court.
II. Jurisdiction & Standard of Review
As Defendant appeals from the final judgment of a superior court, an appeal lies of right with this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
“We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
III. Analysis
Defendant argues the trial court abused its discretion by excluding relevant evidence regarding the long-standing feud between Defendant's family and the Hendershots. Defendant specifically contends the court erred by excluding his father's testimony that the Hendershots would “get even” and that they “ain't forgot what your son done” because such evidence shows the Hendershots' bias.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed unfair prejudice, confusion of the issues, jury, or by consideration of undue delay, needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403; see also State v. Barton, 335 N.C. 696, 704–705, 441 S.E.2d 295, 299 (1994) (holding the trial court's exclusion of additional testimony on an issue already in evidence was not error because the trial court merely excluded cumulative evidence which “would have added little, if anything, to the testimony ... already given”).
Here, the trial court excluded testimony by Defendant's father on the alleged feud between Defendant and the Hendershots under Rule 403. The court supported the exclusion of additional evidence by stating that “much of the same information came out from the cross examination of the earlier witnesses for the State.” Defendant's father and both Mr. and Ms. Hendershot had already testified at length about the prior incidents involving the horse and the graveling of the driveway. With such testimony already on record and instructions on witness bias, weight, and credibility given to the jury, we hold further testimony regarding the same issue and/or incidents could reasonably be determined to be a “waste of time” or “needless presentation of cumulative evidence” under N.C. Gen.Stat. § 8C1, Rule 403.
Defendant argues the jury was confused by a lack of evidence and contends this is why the jury enquired further about the specific incidents between the two families during deliberation. Defendant contends the jury's confusion is also apparent because the marked out statement, “THE JURY COULD NOT REACH A UNANIMOUS VERDICT,” is written on the verdict sheet. However, the statement was marked out and initialed by the foreman. No objection was raised at trial concerning the writing on the verdict sheet. Moreover, the jury showed no confusion when it was polled after the verdict; each juror confirmed the guilty verdict. Therefore, the contention the jury was confused regarding the feud is mere speculation at best, and, based on such speculation, we will not hold the trial court abused its discretion by refusing to admit needless cumulative evidence. See State v. King, 342 N.C. 357, 365, 464 S.E.2d 288, 294 (1995).
IV. Conclusion
For the foregoing reasons, we find
No error. Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).