Opinion
No. COA14–820.
03-17-2015
STATE of North Carolina v. Lamont Dashawn LAFOUCADE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Adam M. Shestak, for the State. William D. Spence for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Adam M. Shestak, for the State.
William D. Spence for Defendant–Appellant.
McGEE, Chief Judge.
Lamont Dashawn Lafoucade (“Defendant”) appeals from judgments entered upon jury verdicts finding him guilty of felonious assault with a deadly weapon inflicting serious injury and possession of a firearm by a felon. We find no error.
I. Facts and Procedural History
The evidence presented at trial tended to show that Wilmington Police Officer Scott Solano (“Officer Solano”) was on duty and patrolling the area of the 1100 block of Castle Street in Wilmington, North Carolina, around 2:00 a.m. on 4 January 2013. As Officer Solano turned onto Castle Street, where the Sportsmen's Club was located, he heard a single gunshot and saw a large crowd of people standing in front of the Sportsmen's Club. Officer Solano immediately exited his vehicle and saw a woman in the crowd, later identified as Jasmine Hines, bending over. As Officer Solano approached the area, the crowd pointed toward Third Street, and people in the crowd said: “[T]he guy over there in the dark jacket, you know, somebody's been shot, the dark jacket.” When Officer Solano looked in the direction that the crowd was pointing, he saw three men matching the crowd's description, and asked which of the three men was the shooter. A person in the crowd specifically identified the shooter as “the one on the left.”
Officer Solano then started running towards the person “on the left,” who was identified as Defendant at trial. Although Defendant had begun walking away from the scene, when he saw Officer Solano running towards him, Defendant started running. Defendant ran behind the Sportsmen's Club just as a K–9 officer pulled up, and as Officer Solano continued to chase Defendant, Officer Solano shouted to the K–9 officer: “Him, that's him, that's him.” Officer Solano lost sight of Defendant for a few seconds as Defendant rounded the corner of the fence that surrounded a field behind the Sportsmen's Club and turned onto 11th Street. When Officer Solano saw Defendant again, Defendant had run approximately twenty yards along the fence and had just been apprehended by the K–9 dog. According to Officer Solano, no one else was present in the area.
Officer Gregory Willett, II (“Officer Willett”) was in a helicopter that was dispatched at the time of the incident in order to assist the K–9 officer who was attempting to locate a firearm in the field behind the Sportsmen's Club. Using thermal imaging technology, Officer Willett noticed two anomalies in the field, which meant the objects were warmer than the surrounding area. The first object was a handgun, and the second was a sprinkler attached to an irrigation system. Officer Kirti Vithalani (“Officer Vithalani”) found a handgun in the field with the aid of Officer Willett. Officer Vithalani testified that, due to the “dewy frost” on the field, he could see his own footprints on the field, and these were the only footprints he saw. Officer Vithalani did not see any other person in the area. Furthermore, the handgun was dry and had no frost on it.
Amanda Holowaty (“Ms.Holowaty”), a crime scene technician, collected evidence from the scene, including a spent shell casing found in front of the Sportsmen's Club, and identified as a Hornady 380 Auto. Ms. Holowaty testified that the brand of ammunition found in the chamber and magazine of the handgun recovered from the field was also a Hornady 380 Auto. Ms. Holowaty further testified that there was no frost on the handgun. She later conducted a gun residue test on Defendant, who identified himself as “Lamar Sessions” and said he was left-handed. However, after fingerprinting Defendant, law enforcement learned Defendant's real name was Lamont Dashawn Lafoucade, and that he was right-handed. The residue test results for Defendant's hands and clothing were negative. Ms. Holowaty also testified that gun residue can easily be wiped off.
Officer Brandon McInerney (“Officer McInerney”) arrived at the Sportsmen's Club within a minute or two after the shooting and interviewed Jasmine Hines's mother, Fredericka Hines (“Ms.Hines”). Ms. Hines said she had seen the shooting and could identify the perpetrator, so Officer McInerney placed Ms. Hines in his patrol car and drove her to where Defendant had been apprehended less than a block away. Officer McInerney testified that, as soon as he turned the corner onto 11th Street and Ms. Hines saw Defendant, she said: “That's him.” Officer McInerney asked Ms. Hines how sure she was of her identification, and she responded that she was “a hundred percent sure that that was the suspect.” Ms. Hines then told Officer McInerney that there had been an argument between her son and Defendant immediately prior to the shooting. Her statements were not reduced to writing. Nonetheless, at trial Ms. Hines testified for Defendant that he was not the person involved in the argument with her son. Ms. Hines also testified that she did not actually hear the gunshot or see her daughter, Jasmine Hines, get shot. Ms. Hines also denied talking with Officer McInerney.
Defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and possession of a firearm by a felon. Defendant moved to dismiss the charges against him, at the close of the State's evidence and at the close of all the evidence, which the trial court denied. A jury found Defendant guilty of possession of a firearm by a felon and of the lesser offense of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to thirty-three to fifty-two months' imprisonment for assault, and to a consecutive term of seventeen to thirty months' imprisonment for possession of a firearm by a felon. Defendant appeals.
II. Analysis
A. Motions to Dismiss
“This Court reviews the denial of a motion to dismiss for insufficient evidence de novo.” State v. Robledo,193 N.C.App. 521, 525, 668 S.E.2d 91, 94 (2008). Viewing the evidence “in the light most favorable to the State and giving the State every reasonable inference therefrom,” id.at 524, 668 S.E.2d at 94 (internal quotation marks omitted), evidence is sufficient to sustain a conviction “if there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant's being the perpetrator of such offense.” Id.(internal quotation marks omitted). Substantial evidence is evidence that “is relevant and adequate to convince a reasonable mind to accept a conclusion.” Id.at 525, 668 S.E.2d at 94 (internal quotation marks omitted). “In considering a motion to dismiss, the trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness's credibility.” Id.(internal quotation marks omitted). “Ordinarily, the credibility of witnesses and the proper weight to be given their testimony is to be determined by the jury, not by the court upon a motion for judgment of nonsuit.” State v. Miller, 270 N.C. 726, 730, 154 S.E.2d 902, 904 (1967). “If substantial evidence, whether direct, circumstantial, or both, supports a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury.” State v. Bettis, 206 N.C.App. 721, 729, 698 S.E.2d 507, 512 (quoting State v. Wilkerson,196 N.C.App. 706, 708–09, 675 S.E.2d 678, 680 (2009) ), disc. review denied,364 N.C. 619, 705 S.E.2d 371 (2010).
Defendant first argues that the trial court erred by denying his motions to dismiss the charge of AWDWIKISI because there was not substantial evidence that Defendant was the individual who fired the shot that struck Jasmine Hines in the leg. We disagree.
The evidence in the record showed that, as Officer Solano pulled up to the Sportsmen's Club, he heard a gunshot and, as he exited his vehicle, he observed that the crowd of people was gathered outside and pointing toward Defendant to indicate that Defendant was the person who shot Jasmine Hines. When Officer Solano asked which one of the three men was the shooter, a person in the crowd responded, “the one on the left,” which was where Defendant was standing. As Officer Solano started chasing Defendant, he lost sight of Defendant for a few seconds as Defendant rounded a corner bordering a field surrounded by a tall fence. Officer Solano saw Defendant again as Defendant was running along the fence, at which time Defendant was apprehended by a K–9 dog, approximately twenty yards from the corner of the fence. Officer Vithalani then found a handgun in the field twenty feet from the inside corner of the fence, where Officer Solano had lost sight of Defendant. When Officer Vithalani retrieved the handgun, he noticed the field was covered with “dewy frost” and that his own footprints were the only ones visible on the field. The handgun was dry, even though the grass was moist. Heat-sensing technology in the helicopter flying overhead indicated that the handgun was warmer than its surroundings. Neither Officer Solano nor Officer Vithalani saw anyone else in the area.
Officer McInerney testified that, immediately after the shooting, Ms. Hines said she witnessed the shooting and identified Defendant as the shooter. Ms. Hines also told Officer McInerney that her son and Defendant were arguing immediately before her daughter was shot. Even though Ms. Hines testified at trial that she had not seen the shooting, the weight and credibility of Ms. Hines's statements were appropriate issues to be determined by the jury. See Miller, 270 N.C. at 730, 154 S.E.2d at 904.
Further, the ammunition in the handgun found in the field matched that of the spent shell casing found outside the Sportsmen's Club. Finally, Defendant identified himself with a false name and told police he was left-handed for purposes of the gunshot residue test when, in fact, Defendant was right-handed.
Thus, considered in the light most favorable to the State, we conclude the State presented substantial direct and circumstantial evidence that Defendant was the individual who shot Jasmine Hines. Therefore, we hold that the trial court did not err in denying Defendant's motions to dismiss the charge of AWDWIKISI.
Defendant also argues the trial court erred by denying his motions to dismiss the charge of possession of a firearm by a felon because there was insufficient evidence to show that Defendant was ever in possession of the semi-automatic handgun alleged in the indictment. We disagree.
“In order to obtain a conviction for possession of a firearm by a felon, the State must establish that (1) the defendant has been convicted of or pled guilty to a felony and (2) the defendant, subsequent to the conviction or guilty [plea], possessed a firearm.” State v. Taylor, 203 N.C.App. 448, 458–59, 691 S.E.2d 755, 764 (2010), cert. dismissed,366 N.C. 408, 736 S.E.2d 180 (2012). “Possession of a firearm may be actual or constructive.” Id.at 459, 691 S.E.2d 755, 691 S.E.2d at 764. “Actual possession requires that the defendant have physical or personal custody of the firearm.” Id.“In contrast, the defendant has constructive possession of the firearm when the weapon is not in the defendant's physical custody, but the defendant is aware of its presence and has both the power and intent to control its disposition or use.” Id.“When the defendant does not have exclusive possession of the location where the firearm is found, the State is required to show other incriminating circumstances in order to establish constructive possession.” Id.“Constructive possession depends on the totality of the circumstances in each case .” Id.“No single factor controls, but ordinarily the questions will be for the jury.” State v. Mewborn, 200 N.C.App. 731, 737–38, 684 S.E.2d 535, 539 (2009) (internal quotation marks omitted).
In the present case, because Defendant stipulated that he had previously been convicted of a felony in New York in 1997, he does not challenge that the State proved the first element of this offense. However, because the weapon was not in Defendant's physical custody at the time of his arrest, we consider whether there was sufficient evidence that Defendant had constructive possession over the handgun recovered from the field.
In Mewborn,police recovered a handgun laying in an open field in a high traffic area that the defendant had run through while being pursued by police officers. Mewborn, 200 N.C.App. at 733, 737, 684 S.E.2d at 536, 539. Although the defendant appeared to make throwing motions, none of the police officers actually saw the defendant throw the weapon on the ground. Id.at 733, 737, 684 S.E.2d at 536–37, 539. Further, the defendant did not own the weapon and his fingerprints were not found on the weapon. Id.at 733, 684 S.E.2d at 537. Finally, while the grass in the field was wet, the weapon police found was dry and free of leaves or debris. Id.In Mewborn,this Court held that “there was sufficient evidence presented for the State to proceed on a theory of constructive possession.” Id.at 738, 684 S.E.2d at 539.
Similarly, in the present case, Officer Solano pursued Defendant after a crowd identified Defendant as the shooter. Although Officer Solano lost sight of Defendant as Defendant rounded a corner, the officer saw Defendant again only seconds later as Defendant was running along a field surrounded by a high fence. Officer Vithalani then found a handgun twenty feet from the inside corner of the fence, which was the same corner Defendant had run around when Officer Solano lost sight of him. Officer Vithalani testified that, when he collected the weapon, the weapon was dry, even though the grass was covered in “dewy frost.” Furthermore, there were no footprints visible on the field other than Officer Vithalani's. Heat-sensing technology in the helicopter indicated the handgun was warmer than the surrounding area. Finally, the ammunition in the handgun matched the spent casing found in front of the Sportsmen's Club.
Taken together, we conclude the State presented substantial evidence to establish that Defendant was in constructive possession of the handgun. Accordingly, we hold the trial court did not err by denying Defendant's motions to dismiss the charge of possession of a firearm by a felon.
B. Challenges to Officer Solano's Testimony
1. Challenge to Testimony as Hearsay
Defendant argues the trial court erred by admitting the testimony of Officer Solano regarding the crowd's identification of Defendant as the shooter, because Defendant asserts such evidence was hearsay and that the State failed to lay a sufficient foundation for admission of the statements. We disagree.
“When preserved by an objection, a trial court's decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo.” State v. Rollins,––– N.C.App. ––––, ––––, 738 S.E.2d 440, 445 (2013) (internal quotation marks omitted), disc. reviews denied and dismissed as moot and appeal dismissed,367 N.C. 324, 755 S.E.2d 610, cert. denied,––– U.S. ––––, 135 S.Ct. 125, 190 L.Ed.2d 96 (2014).
While hearsay is “typically inadmissible” as evidence under N.C. Gen.Stat. § 8C–1, Rule 802, “the Rules of Evidence provide a number of exceptions to this general rule.” Id.at ––––, 738 S.E.2d at 445. One such exception is for an excited utterance, defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen.Stat. § 8C–1, Rule 803 (2013). “To fall within the exception, the proponent must establish that there was (1) a sufficiently startling experience suspending the declarant's reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Wilkerson, 363 N.C. 382, 417, 683 S.E.2d 174, 195 (2009) (internal quotation marks omitted), cert. denied,559 U.S. 1074, 130 S.Ct. 2104, 176 L.Ed.2d 734 (2010). “[O]ur courts have consistently held that statements or comments made in response to questions do not necessarily rob the statements of spontaneity.” State v. Wright, 151 N.C.App. 493, 497, 566 S.E.2d 151, 154 (2002) (internal quotation marks omitted). In determining whether the excited utterance exception applies, we examine all the facts and circumstances surrounding the statement. See State v. Carter, 216 N.C.App. 453, 463, 718 S.E.2d 687, 696 (2011), rev'd on other grounds, 366 N.C. 496, 739 S.E.2d 548 (2013). The excited utterance may be admissible even if the declarant is able to testify at trial. SeeN.C. Gen.Stat. § 8C1, Rule 803.
In the present case, Officer Solano approached the crowd gathered outside the Sportsmen's Club immediately after someone in the crowd had been seriously injured by a single gunshot and while the shooter was still visible by the crowd. The crowd was pointing in the direction of the shooter as Officer Solano approached. When Officer Solano asked the crowd to clarify which of the three men the crowd was pointing to as the shooter, a person in the crowd specifically identified the shooter as “the one on the left.” Officer Solano also testified he had seen a woman bending over in the crowd as he got out of his car, and that “the crowd was pretty hectic.” This Court has recognized that witnessing “the shooting of another person” may qualify as “an extremely startling event.” State v. Braxton, 344 N.C. 702, 711, 477 S.E.2d 172, 177 (1996). The crowd's response was spontaneous because, immediately following the shot that Officer Solano heard as he approached the scene, “everybody” in the crowd was pointing in the same direction.
Based on the evidence in the record, we conclude these statements were trustworthy because they were made to Officer Solano while the crowd was under the stress and excitement caused by witnessing the immediately preceding shooting of a woman and while the shooter was still visible by the crowd. Therefore, we hold the trial court did not err by admitting Officer Solano's testimony.
2. Challenge to Testimony as Violative of Confrontation Clause
Finally, Defendant argues admission of Officer Solano's testimony of the crowd's identification of the shooter violated Defendant's right to confrontation because he had no opportunity to cross-examine the witnesses against him. We disagree.
This Court reviews whether the right to confrontation was violated de novo. State v. Seelig,––– N.C.App. ––––, ––––, 738 S.E.2d 427, 433, disc. review denied,366 N.C. 598, 743 S.E.2d 182 (2013).
This Court applies a three-step process to determine whether a defendant's right to confrontation has been violated. State v. Allen, 171 N.C.App. 71, 74, 614 S.E.2d 361, 364, disc. reviews denied and dismissed as moot and appeal dismissed,360 N.C. 66, 621 S.E.2d 875–78 (2005). “We must determine: (1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant.” Id .at 74–75, 614 S.E.2d at 365 (internal quotation marks omitted). Admission of hearsay evidence does not violate the defendant's right to confrontation when the evidence is nontestimonial. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177, 203 (2004). The United States Supreme Court held in Crawford v. Washingtonthat “[s]tatements taken by police officers in the course of interrogations” are testimonial. Id.at 52, 158 L.Ed.2d at 193 ; Allen, 171 N.C.App. at 75, 614 S.E.2d at 365. However, where the primary purpose of statements made to the police is to assist police to meet an ongoing emergency, such statements are nontestimonial. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224, 237 (2006). “[T]he Confrontation Clause does not require such statements to be subject to the crucible of cross-examination” because the prospect of fabrication in statements made to assist police during emergency situations is “significantly diminished.” Michigan v. Bryant,562 U.S. ––––, ––––, 131 S.Ct. 1143, 179 L.Ed.2d 93, 109 (2011). “[W]hether ‘interrogation’ encompasses a statement made in response to police questioning at the scene of a crime is a factual question that must be determined on a case-by-case basis.” Allen, 171 N.C.App. at 76, 614 S.E.2d at 365.
The facts in the present case suggest that the statements made to Officer Solano by the crowd to identify the shooter were made to assist police in an ongoing emergency. A woman in the crowd had just been shot, and the shooter was still visible and presumably armed. The crowd was pointing to the shooter to provide Officer Solano with the shooter's identity so that Officer Solano could apprehend the shooter as quickly as possible. Because the statements were made with the primary purpose of enabling officer assistance during an ongoing emergency, we conclude that the statements were nontestimonial and did not implicate the Confrontation Clause.
III. Conclusion
In sum, the trial court did not err by denying Defendant's motions to dismiss either the charge of AWDWIKISI or possession of a firearm by a felon because there was sufficient evidence for the jury to find that Defendant committed these offenses. The trial court did not err by admitting Officer Solano's testimony that members of the crowd identified Defendant as the shooter because this testimony properly fit under the excited utterance exception to hearsay. Finally, admission of Officer Solano's testimony did not violate Defendant's right to confrontation because the statements made by the crowd were nontestimonial.
No error.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments entered 19 February 2014 by Judge John E. Nobles in Superior Court, New Hanover County. Heard in the Court of Appeals 3 December 2014.