Opinion
No. COA09-1149
Filed 20 April 2010 This case not for publication
Appeal by Defendant from judgment entered 11 February 2009 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.
Guilford County No. 07 CRS 88251.
I. Procedural History
Defendant Timothy Bernard White, Jr. was indicted for first-degree murder on 2 July 2007. The case came on for trial at the 2 February 2009 criminal session of Guilford County Superior Court. On 5 February 2009, the jury returned a verdict finding Defendant guilty of second-degree murder. The trial court entered judgment upon the jury verdict, sentencing Defendant to 251 to 311 months in prison. Defendant gave notice of appeal in open court.
II. Evidence
Defendant was convicted of second-degree murder for the shooting death of Charles Jones ("Jones"). At trial, the evidence tended to show the following:
A. The State's Evidence 1. Travis Lee
Travis Lee ("Lee") testified that he and Defendant were friends. On 12 May 2007, Defendant picked Lee up in Defendant's car, and they went to a party together. While they were at the party, Lee called Jones, a mutual friend of Defendant's and Lee's. Defendant spoke with Jones and agreed to meet him at a nearby motel called the Landmark Inn. When Defendant and Lee arrived at the motel, Jones got into Defendant's car. Corry Frierson ("Frierson"), another mutual friend of Defendant's and Lee's, was with Jones. Frierson asked Defendant to take him to the apartment of Lisa Bradley ("Bradley"), his child's mother. Defendant took Frierson to Bradley's apartment and then returned to the party with Lee and Jones.
While they were at the party, Frierson repeatedly called Jones to ask if Defendant would pick him up. Defendant, Lee, and Jones eventually left the party to get Frierson. Defendant did not remember where Bradley's apartment was, and Lee and Jones decided to play a trick on Defendant by giving him incorrect directions. Defendant eventually became upset and refused to pick Frierson up. Defendant and Jones got into an argument, and Jones hit Defendant in the ear. Jones got out of the car. Defendant made a u-turn and threw a cup at him.
Defendant then drove to a house to pick up another man. Defendant talked to the man, but Lee did not remember what they said. Defendant asked Lee to call Jones. When Jones answered, Defendant got on the phone and told Jones, "[W]e don't need to be arguing and fighting because we too good of friends to do that." Lee testified that Defendant "had me thinking like he really going to squash the beef with [Jones]." Defendant told Lee that they were headed back to the Landmark Inn to get Jones.
Defendant and Lee got to the motel before Jones and Frierson. When Jones and Frierson arrived and got out of the vehicle they were in, "[Defendant] drove around and started shooting out the window at [Jones]." Lee testified that he did not remember where Defendant pulled the gun came from. He also denied that he was the one who shot Jones. When Lee asked Defendant why he was shooting at his friend, Defendant responded, "['H]e hit me. . . . [H]e hit me and I'm not about to take that[.']" Defendant drove the other man back to his house and took Lee to his brother's house.
2. Corry Frierson
Frierson testified that he was at a party with Jones on the night of 12 May 2007. While they were at the party, Lee called Frierson and said that he was with Defendant. Defendant got on the phone and spoke with Jones. Defendant and Jones decided they would all go to the party together. They agreed to meet at the Landmark Inn, where Frierson, Jones, and another man shared a room. When Frierson and Jones arrived at the motel, they got into Defendant's car. Frierson asked Defendant to take him to Bradley's apartment. Defendant dropped Frierson off at Bradley's apartment and went to the party with Jones and Lee.
Later, Frierson called Jones because he had gotten into an argument with Bradley. He asked Jones if Defendant would pick him up. Jones told Frierson that Defendant agreed to pick him up, but that he wanted some gas money. Frierson agreed to provide gas money and walked to a nearby gas station to wait for Defendant. Soon thereafter, Jones arrived at the gas station in a gray car. Jones told Frierson that he had gotten into an argument with Defendant and that he had punched Defendant. Defendant had kicked Jones out of the car, and Jones went to the motel and got the car. Defendant then called Frierson's phone and said that he wanted to "[peace] it up" with Jones. Frierson gave the phone to Jones. Defendant and Jones talked for a bit and Jones advised Defendant that he and Frierson were on the way back to the Landmark Inn. Jones got off the phone and told Frierson that they were going to meet at the motel to "[peace] it up, smoke a blunt." Frierson understood that they "were meeting back at the [Landmark] Inn . . . to sit around, be friends, and smoke some dope."
When Frierson and Jones got to the motel, Defendant and Lee were already in the parking lot. Frierson "was like something ain't right" because Defendant and Lee were supposedly 20 minutes away from the motel at the time of the phone call. Jones backed the gray car into a parking spot, and he and Frierson got out of the car. As soon as they got out of the car, Defendant "just spin the jeep around and started shooting." Frierson and Jones "took off running." Frierson heard about four shots. He and Jones ran through an alleyway and up some stairs. Frierson made it to the top of the stairs but when he turned around, Jones was "falling back down the stairs." Frierson ran back down the stairs and Jones fell into Frierson's arms. A man came out of one of the nearby rooms, touched Jones's neck, and said Jones was dead.
After the shooting, Frierson called Lee and "told him I was going to f — him and [Defendant] up." Lee told Frierson that he did not have anything to do with the shooting. Defendant took the phone from Lee and told Frierson, "You don't got nothing to do with this, this is between me and [Jones]." Frierson told Defendant that Jones was dead. Defendant responded, "How he dead? I only shot him with a .32 — .22." Frierson called Bradley and told her that Defendant had just killed Jones. Soon after talking to Frierson, Bradley and her sister arrived at the motel.
3. Erica Alston
Erica Alston ("Alston") testified that Jones was her daughter's father. Frierson called her on the morning of 13 May 2007 and told her that Jones had been shot. Alston met Frierson at the motel. When she arrived, Frierson told her that Jones had been shot by Defendant. She and Frierson went to Defendant's house. Nobody answered the door at Defendant's house, so they went to see Susan Bennett ("Bennett"), Defendant's mother. Alston told Bennett that Jones was dead. Bennett went to the hospital believing that Jones was alive, but realized that he was dead when she went to the motel and saw an ambulance was parked nearby without any lights activated. Alston and Frierson also went to the motel after speaking with Bennett.
4. Officer Jesse Hillis
Officer Jesse Hillis ("Hillis") was on patrol in Greensboro, North Carolina on the morning of 13 May 2007. Around 5:50 a.m., he received a call that someone had been shot outside the Landmark Inn. When Hillis arrived at the motel, a man, who identified himself as Corry Frierson, approached him and indicated that his friend had been shot. Hillis saw a man laying on the ground nearby. Hillis checked for a pulse, but got no response. Paramedics arrived and moved the man to an ambulance.
5. Detective Tim Parrish
At 6:25 a.m., Detective Tim Parrish ("Parrish") received a call that there had been a homicide at the Landmark Inn. When Parrish arrived at the scene, he looked through the victim's pockets and found a driver's license that belonged to Charles Jones. At 7:30 a.m., Alston arrived at the motel. Alston told Parrish that a man named "Murda" told her that Defendant had killed Jones. Parrish later determined that "Murda" was Frierson. Alston said that she knew where Defendant's house was. Parrish then instructed Detective Matthew Smith ("Smith") to accompany Alston to Defendant's house.
Alston took Smith to 11 Dan Hughes Court. She identified a Honda Passport in the driveway as the car that Defendant drove. Smith described the car to another officer, who checked the police records and confirmed that it belonged to Defendant. Parrish testified that Frierson, who was not at the motel when Parrish arrived, arrived at the motel at 7:49 a.m. Frierson told Parrish that Jones, Defendant, and Lee were all friends of his. On the night of 12 May 2007, Frierson went to a liquor house with the other three men. Afterward, they went to the Landmark Inn. Frierson and Jones went to the motel in one car and Defendant and Lee went in another car. Frierson said that when Defendant pulled into the motel parking lot, he shot Jones. At 9:30 a.m., Parrish got an arrest warrant for Defendant. Shortly after 10:45 a.m., Defendant was arrested as he walked out the back door of his house.
Around 2:00 p.m. on 13 May 2007, Bennett called Parrish and said that Lee was at her house and was willing to talk to him. Parrish met Lee at Bennett's house. Lee described the argument that Jones had with Defendant. Lee told Parrish that after the argument, Defendant made Jones get out of the car, threw a bottle at him, and told him, "I know where your momma lives." Lee also told Parrish that when Defendant picked up the other man, the man said, "I'll bet he won't hit nobody else. I wish I had the gun. I would have killed him." Parrish also testified that Lee told him that Defendant gave the gun back to the man after the shooting and that Defendant described the gun as a .32 revolver.
Lee did not provide a description of the other man or indicate where the man lived. Instead, he directed Parrish to a "string of houses." Parrish did surveillance on the houses, but did not find anyone who appeared to be connected to the case.
On cross-examination, defense counsel attempted to introduce a note that Parrish had handwritten after he received a phone call on 12 April 2008 from a woman named Marian Hall ("Hall") concerning the shooting. The trial court prevented defense counsel from eliciting any testimony regarding the note. During an offer of proof, Parrish explained that Hall told him that Bradley told her that Lee was the "triggerman." Hall also said that Jones's body had been moved and that Lee had fled to Reidsville and Frierson had fled to Atlanta or South Carolina. After Parrish spoke to Hall, he noted the information on a piece of paper and put it in his case file. Parrish did not question Bradley or follow up with Lee or Frierson. The trial court admitted a copy of the note for the record on appeal.
6. John D. Butts, M.D.
Dr. John D. Butts, North Carolina's Chief Medical Examiner, performed the autopsy on Jones. In Dr. Butts's opinion, Jones died from a gunshot wound to his back.
B. Defendant's Evidence
Defendant testified that he did not shoot Jones. He testified that he picked up Lee shortly after 12:30 a.m. on 13 May 2007 and went to a store next to a club. While they were at the store, Lee called Jones. After the phone call, Lee asked Defendant to take him to Jones's "trapspot." Defendant explained that a trapspot is a place to sell drugs. Jones's trapspot was the Landmark Inn. When Defendant and Lee arrived at the motel, Jones handed Lee a bag containing a white substance. Jones wanted to sell the substance to Lee for $100, but Lee wanted a better deal.
While Jones and Lee were talking, Frierson arrived and asked if Defendant would take him to see Bradley. Defendant agreed to drop Frierson off at Bradley's apartment. Afterward, he drove to a liquor store with Jones and Lee. Later, Jones asked Defendant to take him back to the motel. Defendant agreed to do so. On the way back to the motel, Jones and Lee started arguing about the drug deal. As Defendant pulled into the parking lot, Jones hit Lee in the back of his head. Jones also ended up scratching Defendant's ear after hitting Lee. Jones got out of the car when they arrived at the motel.
Defendant then drove to a gas station with Lee to get cigarettes. When he returned to the car, Lee was on the phone with Frierson. When the call ended, Lee asked Defendant to take him back to the motel so he could buy some drugs from Frierson. When Defendant and Lee arrived at the motel, no one was there. As Defendant was driving away, Frierson and Jones arrived. Defendant turned around and headed back to the motel. As he pulled up beside Jones, Lee pulled out a gun and started shooting.
Lee then ordered Defendant to drive him to his brother's house. While they were driving, Lee called Frierson and said that Jones had tried to "play" him. He said that Frierson did not need to worry about Defendant saying anything because Defendant "know what time it is." When Lee got off the phone, he told Defendant that if he "snitched on him," he knew where Defendant's family lived. Defendant testified that he was scared because he knew that Lee had a history of shooting people. After Defendant dropped Lee off, he went home and fell asleep. He woke up four or five hours later and was arrested as he left the house.
III. Discussion
Defendant first argues that the trial court erred by excluding as hearsay Parrish's handwritten note of his conversation with Marian Hall and his testimony regarding the note because the evidence was admissible for a relevant, non-hearsay purpose.
The North Carolina Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2007). In general, hearsay statements are not admissible at trial. N. C. Gen. Stat. § 8C-1, Rule 802 (2007). However, "[w]hen evidence of such statements by one other than the witness testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible." State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990), cert. denied, ___ N.C. ___, 421 S.E.2d 360 (1992). Statements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence. Id.
In State v. Leyva, 181 N.C. App. 491, 640 S.E.2d 394, disc. review denied and appeal dismissed, 361 N.C. 573, 651 S.E.2d 370 (2007), disc. review dismissed, ___ N.C. ___, 673 S.E.2d 872 (2009), the trial court admitted testimony by detectives regarding statements made by a confidential informant. Id. at 498, 640 S.E.2d at 398. The defendant argued that his right to confrontation was violated by the admission of the testimonial hearsay evidence. This Court concluded that defendant incorrectly categorized the statements as testimonial hearsay because the evidence was introduced to explain the officers' presence at the location of a drug sale, not for the truth of the matter asserted. Id. at 500, 640 S.E.2d at 399; see also State v. Wiggins, 185 N.C. App. 376, 384, 648 S.E.2d 865, 871 (Testimony by a deputy concerning statements made by a confidential informant was properly admitted for the nonhearsay "`purpose of explaining the actions of the investigating officers.'"), disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007), disc. review denied, ___ N.C. ___, 674 S.E.2d 421 (2009).
In this case, Defendant attempted to introduce into evidence the note that Parrish had written after he received a phone call from Hall. The note indicated that Bradley told Hall that Lee, not Defendant, was the "triggerman" who had killed Jones. Defendant contends that the note and Detective Parrish's testimony regarding the note were not offered to show that Lee, and not Defendant, had killed Jones, but were instead offered "to explain how little Detective Parrish did in response to Ms. Hall's phone call."
We disagree. Unlike in Leyva and Wiggins, neither the note nor the testimony solicited from Detective Parrish during voir dire explained Parrish's actions or inactions in investigating the case. On the contrary, this evidence merely documented hearsay on hearsay.
Although Defendant could have directly questioned Detective Parrish about his decision not to follow up on the information contained in the note, Defendant failed to do so. Furthermore, although Defendant could have subpoenaed Bradley and questioned her under oath concerning what she allegedly told Hall, Defendant failed to do so. We agree with the State that the challenged evidence "would have done little more than present the jury with out-of-court statements that supported [D]efendant's . . . assertion that Lee was the one who shot Jones." Accordingly, the trial court did not err in excluding it. Defendant's argument is overruled.
By his next assignment of error, Defendant contends that the trial court committed plain error by admitting into evidence a written out-of-court statement made by Lee to Detective Parrish. Defendant argues that Lee's statement was not admissible as corroborative evidence because it "manifestly contradicted" Lee's testimony at trial.
An error will rise to the level of "plain error" if
"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 instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"
State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984) (citations omitted).
In State v. Riddle, 316 N.C. 152, 340 S.E.2d 75 (1986), the Supreme Court defined the term "corroboration" as follows:
Corroboration is "the process of persuading the trier of the facts that a witness is credible." We have defined "corroborate" as "to strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence." Prior consistent statements of a witness are admissible as corroborative evidence even when the witness has not been impeached. However, the prior statement must in fact corroborate the witness'[s] testimony.
Id. at 156-57, 340 S.E.2d at 77-78 (internal citations omitted). "In order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony." State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986). However, a "witness's prior statements as to facts not referred to in his trial testimony and not tending to add weight or credibility to it are not admissible as corroborative evidence." Id. at 469, 349 S.E.2d at 574. Thus, a "witness's prior contradictory statements may not be admitted under the guise of corroborating his testimony." Id.
At trial, the State questioned Lee concerning what happened after Lee observed Defendant throw a plastic bottle at Jones from Defendant's car:
[STATE:] After [Defendant] — you observed [Defendant] throw the drink or whatever it was at . . . Jones, what happened next?
[LEE:] I was like, man, y'all tripping, take me home.
[STATE:] So you asked to be taken home?
[LEE:] (Nodding head.)
[STATE:] What happened next?
[LEE:] He was like, all right, I'll take you home but ride with me real quick.
[STATE:] So he said — so, [Defendant] said, You ride with me real quick?
[LEE:] Yes.
Parrish testified that Lee told him Defendant "threw a Gator Aid [sic] bottle at [Jones, and Defendant] told [Jones], I know where your momma lives."
The State argues that Lee's pretrial statement, "made when the incident was much fresher in Lee's mind, does not contradict Lee's trial testimony; it merely adds corroborative detail regarding the drink and a contemporaneous utterance." While we agree that Lee's pretrial statement adds corroborative detail regarding the bottle thrown at Jones, we disagree with the State's contention that the pretrial statement adds corroborative detail about a contemporaneous utterance. Parrish's testimony that Lee told him that right after Defendant threw the plastic bottle at Jones, Defendant said, "I know where your momma lives" does not corroborate Lee's trial testimony that Defendant said, "[A]ll right, I'll take you home but ride with me real quick." Accordingly, it was error to allow Parrish to testify regarding Lee's pretrial statement in this respect.
Additionally, Lee testified at trial that after Defendant threw the plastic bottle at Jones, Defendant drove to an unidentified man's house where another man got into the back seat of Defendant's car. The State then questioned Lee concerning what Defendant and the man said to each other:
[STATE:] Did . . . [Defendant] and the person who got in the back seat of the car, did they talk, did they say anything?
[LEE:] They were saying — they said something.
[STATE:] If you recall, if anything?
[LEE:] I really don't remember what they were — what was said.
Parrish testified that Lee told him the man got in the car and said, "If you wake me up this early[,] you better be ready to do something."
The State contends that there is no contradiction between Lee's trial testimony and Parrish's testimony regarding what Lee told him, "only the addition of a relatively minor detail to what Lee said at trial." We disagree. Lee's statement that "I really don't remember what . . . was said" is inherently contradicted by Lee's prior statement as to what he remembers was said. The State repeatedly emphasizes that Lee's pretrial statement was "made only a few hours after the incident[.]" The State's attempt to attribute enhanced credibility to Lee's pretrial statement over his trial testimony highlights the fact that the pretrial statement did not corroborate the trial testimony.
Furthermore, it is well-settled that "a party may use any material to refresh the memory of a witness[.]" State v. Brown, 350 N.C. 193, 210, 513 S.E.2d 57, 67 (1999). In this case, when Lee testified that he did not remember what was said between Defendant and the unidentified man, the State was at liberty to use Defendant's pretrial statement to refresh his recollection. The State failed to do so and, instead, attempted to introduce the pretrial statement "under the guise of corroborating [Lee's] testimony." Ramey, 318 N.C. at 469, 349 S.E.2d at 574. We conclude it was error to allow Parrish to testify regarding Lee's pretrial statement in this instance as well.
Defendant also argues that Lee's testimony that "he did not remember where the gun came from" contradicts Parrish's testimony that Lee told him that Defendant "acquired the gun from the unidentified man." However, Lee did not testify that he did not remember where the gun came from. Instead, he testified that he did not know where Defendant pulled the gun from when Defendant prepared to shoot Jones. Accordingly, we do not find error in the admission of Parrish's testimony regarding Lee's pretrial statement that Defendant acquired the gun from the unidentified man.
Although we conclude that it was error to allow Parrish's challenged testimony, we conclude further that the error did not rise to the level of plain error.
Defendant contends that the statements "provided potent evidence that [Defendant] acted with malice[.]" We disagree. Malice "comprehends not only particular animosity but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person." State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978) (citations and quotation marks omitted). Lee's statements that Defendant told Jones, "I know where your momma lives" and that the unidentified man said, "If you wake me up this early[,] you better be ready to do something[,]" did not constitute proof, much less "potent" proof, of Defendant's malice in shooting Jones. Moreover, there was plenary evidence of Defendant's malice in both Lee's and Frierson's trial testimony, both of whom testified that Defendant tricked Jones into meeting him at the Landmark Inn. Furthermore, Lee testified that Defendant stated, "[Jones] hit me and I'm not about to take that."
Defendant also argues that "the trial court never restricted the jury from relying on Mr. Lee's out-of-court statements for their truth." It was Defendant's responsibility, however, to request any limiting instruction, State v. Short, 322 N.C. 783, 789, 370 S.E.2d 351, 354 (1988), and the record does not reflect that Defendant made such a request.
We conclude that the erroneously admitted statements concerned relatively minor details that did not prejudice Defendant. Accordingly, we further conclude that the error was not a "` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" Moore, 311 N.C. at 445, 319 S.E.2d at 152 (citations omitted). The assignments of error upon which these arguments are based are overruled.
By Defendant's final argument, he contends that the trial court committed plain error by allowing Bennett and Alston to testify that Defendant killed Jones and to testify how they felt immediately after learning of Jones's death.
"A witness is not competent to testify to a fact beyond [her] personal knowledge or to base an opinion upon facts of which [she] has no knowledge." Robbins v. C. W. Myers Trading Post, Inc., 251 N.C. 663, 666, 111 S.E.2d 884, 886 (1960); N.C. Gen. Stat. § 8C-1, Rules 602 and 701 (2007). Furthermore, while a victim has the right to offer admissible evidence of the impact of the crime, victim impact testimony is only admissible during the sentencing phase. State v. Nicholson, 355 N.C. 1, 39, 558 S.E.2d 109, 136, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). Victim impact testimony may include "[a] description of the nature and extent of any physical, psychological, or emotional injury suffered by the victim as a result of the offense committed by the defendant." N.C. Gen. Stat. § 15A-833(a)(1) (2007).
At trial, Alston testified that she went to Defendant's house on the morning of the shooting
[b]ecause he killed my baby daddy. My daughter wasn't even born. She never seen her daddy before. To this day she don't know him. All she know is a picture. So I felt some kind of rage.
Alston further testified that she was "upset" and "angry" that Defendant had killed Jones.
Bennett testified that her son died on Mother's Day and that "[Alston] told me when she came that [Defendant] had shot him." She further testified that she went to the hospital because she "felt like maybe he was alive," but accepted that he was dead only after she saw the ambulance was parked at the motel without any lights on.
Assuming arguendo that this evidence was inadmissible, given the overwhelming evidence that Defendant was the shooter, including testimony from two eyewitnesses who gave similar accounts of the events, and corroborating testimony from the officers, we cannot conclude that, absent the admission of Alston's and Bennett's statements, the jury would have probably reached a different result or that the admission of the evidence caused a miscarriage of justice. Defendant's assignments of error are overruled.
Defendant received a fair trial, free of prejudicial error.
NO PREJUDICIAL ERROR.
Chief Judge MARTIN and Judge WYNN, JR. concur.
Report per Rule 30(e).