Opinion
No. COA11-73
Filed 19 July 2011 This case not for publication
Appeal by Defendant from judgments entered 7 July 2010 by Judge Arnold O. Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 23 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Mary D. Winstead, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defendant Constance E. Widenhouse, for Defendant.
Wayne County Nos. 08 CRS 54068, 54059.
Factual and Procedural Background
On 6 April 2009, Defendant Brandon Lee Williams ("Williams") was indicted on one count each of first-degree murder, felonious breaking and entering, attempted first-degree rape, attempted first-degree sexual offense, and impersonating a law enforcement officer. The case was tried before a jury at the 28 June 2010 Criminal Session of Wayne County Superior Court, the Honorable Arnold O. Jones, II, presiding.
The evidence presented at trial tended to show the following: On 3 March 2008, Sylvia Morales ("Morales"), the victim in this case, was found dead in her home by her daughter, Marisol. When Morales' husband Javier Acuna ("Acuna") returned home from work, he noticed some spinning tire marks and his children standing by the back door. Marisol told Acuna that Morales was lying on the floor of their bedroom. Acuna immediately called the Wayne County Sheriff's Department. When sheriff's department detectives arrived, they discovered Morales lying at the foot of the bed in her children's bedroom. Morales' slip was tucked inside her panties and there were hemorrhages on her head, face, and thighs. There was no evidence of forced entry and nothing was reported missing from the house. A subsequent postmortem examination revealed that Morales died of a single gunshot wound to her mid-forehead fired from no more than a foot away.
Through their investigation of Morales' death, sheriff's deputies learned that around 1:00 in the afternoon of the day Morales was shot, Marjorie Speight ("Speight"), who lived near Morales, heard her dogs barking and noticed a young man, whom she later identified as Williams, walking toward her front porch. Williams asked Speight for directions and left. Williams returned 15 minutes later and asked to use Speight's telephone to call his grandmother. Speight stepped into the house, got her cell phone, and returned to the door. She noticed Williams standing against the house with his sweatshirt raised, holding a gun against his stomach. Williams then dropped his head and told her that he was with the police department. Speight handed him the telephone, Williams made his telephone call, and he left a second time.
Between 4 March and 10 March 2008, Williams was questioned several times by Detective Sergeant Tammy Odom ("Detective Sergeant Odom") in connection with Morales' death. During questioning, Williams initially denied ever going to Speight's residence. However, Williams later admitted that he went to Speight's home, but maintained that he did not have a gun at the time.
On 13 June 2008, sheriff's department detectives obtained arrest warrants for Williams for murder and impersonating a police officer. After his arrest, Williams gave a statement to Detective Sergeant Odom, in which Williams alleged that he was asked by Bobby Wayne Joyner ("Joyner") to accompany him to Morales' house to collect money owed to Joyner. Williams stated that after entering Morales' home through the back door, Williams saw a struggle between Joyner and Morales. Williams then stated that he heard a gunshot so he ran out the door and drove home, leaving Joyner behind.
On 25 July 2008, while Williams was in custody, Williams summoned law enforcement officers to discuss why Joyner had not been arrested even though he was the actual shooter. During this conversation, Williams stated that he had been a drug user in the past, but had been clean lately except for marijuana and alcohol use.
On 10 March 2009, Williams gave another statement, in which he admitted that he went alone to Morales' house with the primary purpose of stealing marijuana. Williams stated that during a struggle between Williams and Morales, the "crappy safety turned off somehow," and Morales was shot. Williams further stated, "It was an accident, I swear."
At the conclusion of the State's evidence, the trial court dismissed the charges of attempted rape and attempted sexual offense. Following the close of all evidence, on 7 July 2010, the jury returned verdicts finding Williams guilty of first-degree murder, felonious breaking and entering, and impersonating a law enforcement officer. The trial court imposed a sentence of life imprisonment without parole for murder, consolidated the remaining offenses, and for the consolidated offenses imposed a term of six to eight months imprisonment set to begin at the end of the sentence for murder. Williams gave notice of appeal in open court.
Discussion
Defendant brings forward six arguments on appeal: (1) that the prosecutor's opening statement was grossly improper; (2) that the prosecutor's opening statement exaggerated evidence; (3) that the prosecutor improperly asked leading questions of the State's lead witness; (4) that the prosecutor improperly cross-examined Williams; (5) that the prosecutor's closing argument was grossly improper; and (6) that the trial court erred in admitting evidence of Morales' character. Each argument is discussed separately below.
Gross Impropriety in Opening Statement
Williams first argues that the State's opening statement was grossly improper because the prosecutor (1) did not forecast any evidence that the State intended to offer; (2) referenced the character of the victim and the State's witnesses; (3) attacked Williams' character by calling him a "teller of untruths"; and (4) alluded to the sexual assault, rape, and sex offense charges when there was no evidence of sexual assault and the charges were dismissed at the close of the State's evidence.
When a defendant fails to object to the arguments made in an opening statement, as is the case here, these arguments are reviewable only to determine whether they were so grossly improper that the trial court erred by failing to intervene ex mero motu to correct the errors. State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986).
First, Williams contends that the prosecutor's opening remarks were grossly improper because they did not forecast any of the evidence the State intended to offer. It is well established, however, that parties are accorded wide latitude in making opening statements. Id. Further, the proper function of an opening statement is not only to allow a party to inform the trial court and the jury of the evidence he plans to offer in support of his case, but also "to inform the trial court and the jury of the nature of the case." State v. Burmeister, 131 N.C. App. 190, 195-96, 506 S.E.2d 278, 281 (1998). Counsel, therefore, is not limited to a forecasting of evidence. Rather, he has wide latitude to discuss matters relevant to the nature of the case. Accordingly, the prosecutor's opening statement in this case was not grossly improper simply because it was not limited to a forecast of evidence. Williams' argument is, therefore, overruled.
Williams next contends that the prosecutor's opening remarks were grossly improper because they alluded to the character of Speight and Morales. This Court has held, however, that brief references to victims in opening statements are not grossly improper. See, e.g., State v. Summerlin, 98 N.C. App. 167, 171-72, 390 S.E.2d 358, 360 (1990) (holding that it was "entirely proper" for the prosecutor in opening statement to introduce the victim to the jury). Here, the prosecutor described Morales as "a woman defined by her hard work, her dedication to her family, her innocence as a victim, defined by her resolve to protect her virtue to the extent that she was beaten to death before she'll submit to the sexual advances of that defendant." Further, the prosecutor described Speight as "a person who will be defined by her faith, her courage, her intelligence." In our view, the prosecutor's references served solely to introduce Speight and Morales to the jury and did not warrant ex mero motu intervention by the trial court. This argument is overruled.
Williams next asserts that the trial court should have intervened during the prosecutor's opening statement because the prosecutor attacked Williams' character by referring to him as a "teller of untruths" and a "bringer of falsehood."
Our Supreme Court has held that "[i]t is improper for the district attorney . . . to assert in his argument that a witness is lying." State v. McKenna, 289 N.C. 668, 687, 224 S.E.2d 537, 550 (1976). Further, "[counsel] can argue to the jury that they should not believe a witness, but he should not call him a liar." State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967). While such conduct is improper, it does not merit a new trial unless it is found to be "grossly improper." See State v. Ocasio, 344 N.C. 568, 580, 476 S.E.2d 281, 288 (1996) (finding no error where trial court failed to intervene ex mero motu when the State "implicitly called defendant a `liar'"); cf. State v. Sexton, 336 N.C. 321, 363, 444 S.E.2d 879, 903 (holding that calling a defendant a liar improper, but defendant unable to show requisite prejudice), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994); cf. also State v. Nance, 157 N.C. App. 434, 442-43, 579 S.E.2d 456, 461-62 (2003) (finding that while prosecutor should not have called defendant a liar, it did not result in prejudice to warrant a new trial).
In this case, the prosecutor's statements could not have been prejudicial considering that (1) defense counsel twice conceded that Williams was a liar in his closing argument by stating that "[i]f this case was solely about whether [Williams] was a liar and has lied throughout the investigation of this, I would tend to agree with the State, that the case was over," and that "the fact remains, [Williams] has told lies in this case"; and (2) Williams himself admitted during cross-examination that he had lied during his psychological evaluation. Given the overwhelming evidence of Williams' guilt, including his statement admitting that he shot Morales, and that Williams lied on several occasions, this Court cannot conclude that the prosecutor's statements were prejudicial and warrant a new trial. Accordingly, this argument is overruled.
Finally, Williams contends that the allusions in the prosecutor's opening statement to the sexual assault, rape, and sex offense charges were grossly improper because there was no evidence of sexual assault and the charges were dismissed at the close of the State's evidence. As discussed supra, "[t]he proper function of an opening statement is to allow the party to inform the trial court and the jury of the nature of the case and the evidence counsel plans to offer in support of his case." Burmeister, 131 N.C. App. at 195-96, 506 S.E.2d at 281. In this case, although the sex offense charges were ultimately dismissed, at the time the prosecutor made his opening statement, those charges had not been dismissed. Accordingly, it was not improper for the prosecutor to reference those charges. This argument is overruled.
Exaggeration of Evidence
Williams next argues that the prosecutor, in his opening and closing remarks, exaggerated evidence and law by stating that Williams' implication of Joyner in Morales' shooting subjected Joyner to the death penalty. Specifically, Williams contends that (1) his statement about Joyner did not describe a death-eligible crime; (2) the police never believed Williams' story about Joyner; and (3) the prosecutor's cross-examination of Williams about his implication of Joyner was improper. We disagree.
Because Williams failed to object to the arguments in the opening and closing remarks, our standard of review is "whether the argument was so grossly improper that the trial judge abused his discretion in failing to intervene ex mero motu." Gladden, 315 N.C. at 417, 340 S.E.2d at 685. Further, because Williams did not object to the questions on cross-examination, this Court reviews for plain error. State v. Forte, 360 N.C. 427, 441, 629 S.E.2d 137, 147 (2006); N.C. R. App. P. 10(a)(4).
Williams first contends that the implication of Joyner in his statement to police did not describe a death-eligible crime, thereby rendering the prosecutor's allusion to it in his opening and closing statements grossly improper. The pertinent portion of the opening remarks is as follows:
That's how [Williams] will be defined because you see, he not only took the life of an innocent person, he was willing to put an innocent person perhaps to death by putting the finger of blame at some third innocent party, saying they did it, they had done what he had done.
In his closing argument, the prosecutor stated, "[Williams] would subject an innocent man to the death penalty for his own advantage."
Pursuant to N.C. Gen. Stat. § 15A-2000(c), a defendant may not receive a sentence of death in the absence of an aggravating circumstance. N.C. Gen. Stat. § 15A-2000(c) (2009); State v. Seward, 362 N.C. 210, 215, 657 S.E.2d 356, 359 (2008). One such aggravating circumstance is the commission of first-degree murder "while engaged . . . in the commission of, or an attempt to commit . . . robbery, rape or a sex offense." N.C. Gen. Stat. § 15A-2000(e)(5).
In this case, Williams implicated Joyner in Morales' death and stated that Joyner was going to Morales' house with a gun to collect money owed to him. Williams further alleged that after an argument resulting in a struggle, Joyner shot and killed Morales. Had Joyner been falsely convicted, this scenario could plausibly satisfy the aggravating factor needed for a death-eligible crime because Morales was killed while Joyner was in commission of a robbery. Therefore, the prosecutor's statements alluding to the death penalty were not an exaggeration of the evidence and, thus, were not grossly improper. This argument is overruled.
Williams further contends that the police never believed his statement implicating Joyner in the crime and, therefore, Joyner was never in danger of the death penalty. Williams' argument, however, is belied by Detective Sergeant Odom's testimony that on 13 June 2008, she still found Joyner to be a plausible suspect. Accordingly, Williams' contention is meritless.
Finally, Williams contends that the following excerpt from his cross-examination was improper:
[Prosecutor]: Okay. That was not true. It wasn't true, those things you were saying about [] Joyner?
[Williams]: No, sir.
[Prosecutor]: And you were subjecting him, perhaps, to the penalty of death by your words?
[Williams]: Yes, sir.
As discussed supra, our review of this issue is limited to plain error based on Williams' failure to object to the prosecutor's line of questioning.
[T]he 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. . . .
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (internal quotation marks omitted) (bracket, first ellipsis, and emphasis in original). In order to prevail under the plain error rule, "defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different verdict." State v. Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991).
We concluded supra that it was not an exaggeration of evidence for the prosecutor to reference Williams' potential subjection of Joyner to the death penalty. Moreover, similar testimony had been previously elicited from Williams, without objection, in response to the prosecutor's question, "That's the one when you point the finger, blaming an innocent man, knowing you could be subjecting him to the death penalty, didn't you?" Williams replied, "Yes, sir." In light of the fact that Williams does not allege that this additional cross-examination was erroneous, we cannot conclude that the jury probably would have reached a different verdict in the absence of the complained-of questioning. We therefore conclude that the challenged cross-examination of Williams does not rise to the level of plain error.
Leading Questions
Next, Williams argues that he was prejudiced when the prosecutor improperly testified and argued the State's case through leading questions and statements of fact during the direct examination of Detective Sergeant Odom. Williams did not object to the questioning at trial, and, therefore, we may review this issue only for plain error. N.C. R. App. P. 10(a)(4).
A leading question is one that, by its form or substance, suggests the answer. State v. Smith, 135 N.C. App. 649, 655, 522 S.E.2d 321, 326 (1999), disc. review denied, 351 N.C. 367, 543 S.E.2d 143 (2000). The North Carolina Rules of Evidence provide that "[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." N.C. Gen. Stat. § 8C-1, Rule 611(c) (2009). This rule is intended to prevent counsel from suggesting the desired response to a pliant witness. See, e.g., State v. Hosey, 318 N.C. 330, 334, 348 S.E.2d 805, 808 (1986). Rulings by the trial judge on the use of leading questions in direct examination are discretionary and reversible only for abuse of discretion. State v. Riddick, 315 N.C. 749, 755-56, 340 S.E.2d 55, 59 (1986).
There does not appear to be unanimity in this jurisdiction regarding the propriety of reviewing for plain error issues left to the discretion of the trial court. See State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000) ("Even though Rule 10(b)(1) is a general rule pertaining to the preservation of questions for appellate review, this Court has not applied the plain error rule to issues which fall within the realm of the trial court's discretion, and we decline to do so now."), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001); State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) ("The balancing test of Rule 403 is reviewed by this court for abuse of discretion, and we do not apply plain error `to issues which fall within the realm of the trial court's discretion.'"); but see State v. Garcell, 363 N.C. 10, 38, 678 S.E.2d 618, 636 (applying plain error review to admission of evidence under Rule 403, a decision that is normally reviewed for abuse of discretion), cert. denied, ___ U.S. ___, 175 L. Ed. 2d 362 (2009); State v. Chapman, 359 N.C. 328, 351-52, 611 S.E.2d 794, 813-14 (2005) (same); State v. Locklear, 174 N.C. App. 547, 554, 621 S.E.2d 254, 258-59 (2005) (same). Given this discrepancy in our case law, and in the interest of ensuring that Williams received a fair trial, free of prejudicial error, we address Williams' arguments on this issue.
Williams points to three exchanges in particular that he alleges amounted to plain error. In the first exchange the prosecutor asked, "Because [Williams and his grandmother] live so close together when he was first giving you this story about using [] Speight's phone to call his grandmother's house, did that cause you to think that didn't make any sense?" Detective Sergeant Odom responded that she did find that Williams' statement "didn't make any sense" because there was no explanation for why Williams drove approximately three miles back to Speight's house to call his grandmother when he was already close to his grandmother's house. Williams alleges that the prosecutor's question was improper because the question suggested the answer to the witness. We disagree. Detective Sergeant Odom responded with her own explanation, not an explanation offered by the prosecutor, for why Williams' statement "didn't make any sense," viz., that driving three miles to borrow a phone from a stranger in order to talk to a relative who was already nearby would have been illogical. Assuming arguendo that the prosecutor's question in this instance was leading, we would not find plain error. Through this line of questioning, the prosecutor was attempting to establish that Williams lied in statements he made to police on 4 March and 7 March 2008. The fact that the statements Williams made on these dates and other statements made before and during trial were inconsistent with one another was already in the record. As such, we cannot conclude that "absent the error, the jury probably would have reached a different verdict." Faison, 330 N.C. at 361, 411 S.E.2d at 151.
Williams further alleges that the prosecutor used leading questions when asking Detective Sergeant Odom about (1) a conversation Detective Sergeant Odom had with Williams in which Williams denied owning a gun, and (2) Williams' actions on the day of Morales' death. Again, assuming that the prosecutor's questions were leading in these two instances, we cannot conclude that the evidence was prejudicial. The fact that Williams lied when he claimed that he did not own a handgun was also elicited on cross-examination of Williams. Further, the prosecutor's questions about Williams' actions on the day of Morales' death merely confirmed the contents of a statement signed by Williams on 13 June 2008, which had been admitted into evidence and published to the jury. Because the complained-of questioning led to admission of evidence admitted at other points during trial, we conclude that the prosecutor's use of leading questions did not amount to plain error. Williams' argument is overruled.
Cross-examination
Williams next argues that the prosecutor improperly played a tape recording of a telephone call between Williams and his stepmother Tammy. Williams contends that (1) the tape recording was played without being properly authenticated; (2) the recorded phone call was irrelevant to the crime; and (3) the prosecutor's questions about Williams' conduct were improper. Because Williams did not object to the playing of the tape or to the questioning that he now claims was unfairly prejudicial, this Court reviews for plain error. N.C. R. App. P. 10(a)(4).
Regarding Williams' first contention that the tape recording was not properly authenticated, Williams argues that there was no sworn testimony establishing the source of the recording and that it was not certain that the telephone call was actually between Williams and his stepmother. We disagree.
A caller's identity "may be established by testimony that the witness recognized the caller's voice, or by some circumstantial evidence." State v. Williams, 288 N.C. 680, 698, 220 S.E.2d 558, 571 (1975). In this case, after Williams testified that his adrenaline was rushing during his encounter with Morales and that he is a "pugilist" who is "good with [his] hands," the prosecutor played a tape recording of a portion of a telephone conversation between Williams and Tammy in which Williams states: "You know me, Tammy, when I get mad, it's over and I become the Incredible Hulk for real. I really do. I mean, I don't feel anything, my strength triples." Prior to the prosecutor's playing of the call, Williams testified that he recognized the telephone number as his father's number. He further testified that Tammy lived with his father and that he would recognize her voice. In the recording, Williams refers to the woman as Tammy and she also calls him by name. This evidence from Williams' testimony is sufficient to properly authenticate the tape.
Next, Williams contends that the tape recording and the description of his conduct when he spoke with Tammy are irrelevant to the crime. As a general rule, relevant evidence is admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2009). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009).
In our view, because the evidence tended to show that Morales had been beaten repeatedly before her death, Williams' description of his strength and anger on the tape recording was relevant to the crime at issue. Accordingly, we hold that the telephone conversation was relevant.
Finally, Williams alleges that the prosecutor's cross-examination of him about his conduct was improper under North Carolina Rule of Evidence 404. Rule 404(a) states that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." N.C. Gen. Stat. § 8C-1, Rule 404(a) (2009).
In his brief, Williams contends that
[b]y playing the recording, the prosecutor blatantly violated [Rule 404(a)] by offering evidence of [Williams'] prior conduct toward his stepmother for the sole, express purpose of showing that [Williams] acted in conformity therewith. That is, the CD was played to show [Williams'] anger and how he spoke and behaved toward his stepmother so the jury would infer he must have acted the same way toward Morales.
We are not persuaded that the tape recording was played for the purpose that Williams suggests. Rather, we conclude that the recording was played for the purpose of cross-examining Williams about his own statements regarding his behavior prior to Morales' death. Therefore, we cannot conclude that admission of the challenged testimony was plain error. Williams' argument is overruled.
Closing Argument
Williams next argues that, during his closing argument, the prosecutor improperly referenced a psychological evaluation that had not been offered into evidence. Specifically, Williams contends that the prosecutor improperly (1) read from a hospital report that was never introduced into evidence; and (2) argued to the jury that Williams told the evaluating doctor that he never used heroin or needles. Because Williams did not object at trial to the argument, this Court reviews "only to determine whether [it was] so grossly improper that the trial court erred by failing to intervene ex mero motu." State v. Gregory, 340 N.C. 365, 424, 459 S.E.2d 638, 672 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478 (1996).
It is well established that counsel may not travel outside the record by injecting into his closing argument facts not included in the evidence. State v. Lynch, 300 N.C. 534, 551, 268 S.E.2d 161, 171 (1980). However, counsel is "entitled to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom." Id. Further, "[c]ounsel must be allowed wide latitude in the argument of hotly contested cases." Id.
In the present case, part of Williams' defense was that he was high on heroin at the time of the shooting. During his closing remarks, the prosecutor referred to a hospital report where Williams allegedly discussed his drug use with the evaluating doctor and denied ever using heroin. The relevant portion of the closing argument is as follows:
Exhibit 171. Mr. Williams endorsed a history of substance abuse, saying in the past and he used, quote, everything except heroin in the year of our Lord 2008. But in the year of our Lord 2010, he said, "Whoa, nope. Back in the day, the heroin and I were good friends." And then the doctor notes that, you know even though he said he used all these drugs and the frequency, he said he never used a needle.
Assuming it was error for the prosecutor to read from the hospital report, we cannot conclude that Williams was prejudiced by this error. The prosecutor's closing argument serves only to point out that while Williams admitted in 2010 that he had used heroin in the past, Williams had earlier opportunities to admit his heroin use, but failed to do so. This point was previously made during Williams' direct examination, when Williams testified that he never told anyone about his heroin use until he told his lawyer in 2010. Given that the prosecutor was repeating a point previously made during Williams' direct examination, we cannot conclude that Williams was prejudiced by the prosecutor's argument. This is especially so in light of the overwhelming evidence of Williams' guilt. Williams' argument is overruled.
Character Evidence of Victim
Finally, Williams argues that a portion of the testimony of Maria Benitez ("Benitez"), Morales' sister, was erroneously admitted as evidence of Morales' character. Rule 404(a)(2) provides that evidence of a character trait of a crime victim is admissible only when offered by the accused or by the prosecution to rebut the same. N.C. Gen. Stat. § 8C-1, Rule 404(a)(2). The complained-of evidence in this case is Benitez' testimony that Morales (1) was uneasy about living out in the country; (2) would never open the door for a stranger; (3) would never leave her child unattended; and (4) would never turn her back on a stranger who was in her house. Assuming the admission of this testimony was erroneous, Williams has failed to satisfy his burden to show that the error was prejudicial. See State v. Galloway, 304 N.C. 485, 496, 284 S.E.2d 509, 516 (1981) ("The burden is on the appellant not only to show error but also to show that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial." (internal quotation marks and citation omitted)).
Williams asserts that without the character testimony of Benitez, his defense of accidental killing was more believable and he would likely have been convicted of a lesser charge. We are unpersuaded. Williams changed his story on several occasions in regard to the circumstances leading to Morales' death. Further, Morales was badly beaten and shot in the middle of the forehead at close range. Based on the foregoing, we cannot conclude that, had Benitez' testimony not been admitted, the jury would probably have reached a different result. Accordingly, Williams' argument is overruled.
Based on the foregoing, we conclude that Williams received a fair trial, free of prejudicial error.
NO PREJUDICIAL ERROR.
Chief Judge MARTIN and Judge THIGPEN concur.
Report per rule 30(e).