Opinion
No. COA11–1581.
2012-08-21
STATE of North Carolina, v. Roderick Tynell RICHARDSON.
Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, for the State. Parish & Cooke, by James R. Parish, for Defendant-appellant.
Appeal by defendant from judgments entered 19 November 2010 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 May 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, for the State. Parish & Cooke, by James R. Parish, for Defendant-appellant.
ERVIN, Judge.
Defendant Roderick Tynell Richardson appeals from judgments entered based upon his convictions for two counts of assault with a deadly weapon with intent to kill inflicting serious injury and one count of possession of a firearm by a convicted felon. In his brief, Defendant argues that the trial court committed plain error by allowing the prosecutor to question him and to make comments to the jury concerning Defendant's failure to make a statement to investigating officers; that the trial court erroneously failed to exercise its discretion in responding to the jury's request to review two witness statements; and that the trial court erred by denying his motion to dismiss the charge that he assaulted Darwin Springs with a deadly weapon with the intent to kill inflicting serious injury. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable legal principles, we conclude that Defendant is not entitled to any relief on appeal.
I. Factual Background
A. Substantive Facts
1. State's Evidence
On the early morning of 20 May 2009, Sherman Cunningham was employed as a bouncer by the Carousel Club, an establishment located on South Boulevard in Charlotte. Mr. Cunningham's duties including checking check patrons for guns, drugs, and other contraband. Defendant; his friend, Richard Snowden; Marcus Kinard; and Carousel Club employees Bryan Herron, Mr. Springs, and a female bartender named Lakeshia Reed, were present at the Carousel Club on that occasion as well.
Although Mr. Kinard and Ms. Reed had once been involved in a romantic relationship, Defendant and Ms. Reed had begun dating after the Kinard–Reed relationship ended. During the evening, Ms. Reed became angry because Defendant was speaking with a dancer known as “Egypt.” According to Mr. Cunningham, Ms. Reed was intoxicated and was flirting with both Defendant and Mr. Kinard.
As the club was closing, Mr. Cunningham saw Defendant get into the passenger side of a car which then drove away from the club. At the time that Defendant and Mr. Snowden returned, Defendant approached Mr. Cunningham to ask about giving “Egypt” a ride home. At about the same time, Mr. Kinard was leaving with Ms. Reed, who kept getting out of Mr. Kinard's car and attempting to start a fight with “Egypt.” After Defendant told Ms. Reed to come with him instead, Defendant and Mr. Kinard began arguing.
As Defendant approached Mr. Kinard, Mr. Cunningham saw the butt of a gun protruding from Defendant's pants. “[W]hen [Mr. Cunningham] saw the gun, [he] told [Defendant] that he needed to go back to the car with that” and told both men that “this was a stupid argument.” As the dispute “escalated,” “[Mr. Kinard] stepped closer” and “hit [Defendant]” with his hand. After Mr. Kinard hit him, Defendant “pulled out his gun and started shooting,” at which point “[Mr. Cunningham] jumped behind a car,” where he remained during “the time that everybody was shooting.” “[A]s [Mr. Kinard] was running away[, Defendant] was still shooting at him” even though Mr. Kinard was unarmed. Defendant left the Carousel Club with Mr. Snowden after the shooting.
Mr. Springs, head of security, testified that, on the evening of 20 May 2009, he was carrying a nine millimeter Glock handgun. After the Carousel Club closed, Mr. Springs went to the parking lot, where he saw a small crowd that included Defendant, Mr. Cunningham, and Mr. Herron. As Mr. Springs approached Defendant, who was walking towards his car, Defendant “reversed direction and came towards [Mr. Kinard]” even though Mr. Springs was between the two men. Although Mr. Springs tried to stop the men from arguing, Mr. Kinard “was able to reach over the group ... and smack the Defendant.” At that point, Mr. Springs “saw the gun being pulled from the waist area of the Defendant,” who “began firing” and hit Mr. Kinard. In response, Mr. Springs fired a shot at Defendant, who turned and shot at Mr. Springs. After Mr. Springs' gun jammed, he attempted to hide behind his car. As Mr. Springs ducked behind his vehicle, he was shot in the arm. About “two seconds” later, Mr. Springs was shot in his leg. Although Mr. Springs did not see who shot him, he had seen Defendant and Mr. Herron, but not Mr. Kinard, in the possession of firearms.
Mr. Kinard testified that he went to the Carousel Club on 20 May 2009 for the purpose of giving some CDs to the substitute disk jockey, Mr. Herron. Mr. Kinard testified that he had had several drinks during his time at the Carousel Club, and that he did not have a weapon in his possession on that evening. Mr. Kinard acknowledged having “messed around off and on for years” with Ms. Reed. Although he had heard that Defendant and Ms. Reed had “messed around,” Mr. Kinard “didn't have any problems with that.”
After the Carousel Club closed, Mr. Kinard went to the parking lot, where Ms. Reed told him that she would see him later. At that point, Defendant advised Ms. Reed to refrain from speaking with Mr. Kinard. After the two men began arguing, Defendant “flashed a gun” and said, “I've got you.” In response, Mr. Kinard removed his jacket and approached Defendant. Although Mr. Cunningham positioned himself between the two men and urged them not to fight, Mr. Kinard stepped “to the side and [ ] slapped [Defendant]” on the face. At that point, Defendant shot Mr. Kinard “right above [his] ankle” and “above [his] knee.” As Mr. Kinard tried to “get behind the car,” Defendant “hit [him] four more times.”
Mr. Herron testified that, after the Carousel Club closed on 20 May 2009, he retrieved a gun from his truck and started smoking a cigarette in the parking lot. As he stood there, Mr. Herron observed that Defendant and Mr. Kinard had begun arguing about Ms. Reed. As the argument continued, the two men “got closer to each other and the next thing you know [Mr. Kinard] slapped [Defendant].” After Defendant “flashed a gun,” Mr. Kinard, who was unarmed, removed his coat and placed it on a car. At that point, when “[Mr. Springs] was about in the middle of [Defendant and Mr. Kinard,]” “[Defendant] pulled out a gun and pointed it at [Mr. Kinard,]” “started shooting from there,” and continued to fire at Mr. Kinard even though Mr. Kinard had fallen. As soon as “[Mr. Herron] saw that [Defendant] wasn't going to stop shooting, [he] pulled [his] gun up and started shooting at [Defendant.]”
At approximately 2:30 a.m. on 20 May 2009, Joseph Willinsky, a Charlotte–Mecklenburg Police Department crime scene investigator, went to the Carousel Club parking lot. After arriving at that location, Officer Willinsky collected a Smith and Wesson handgun, a Glock handgun containing several rounds of ammunition and one jammed bullet, and various other items, including bullets and spent shells. More particularly, Officer Willinsky collected several projectiles that had become embedded in a green Ford pick-up truck and a number of nine millimeter and .45 shell casings. According to Todd Nordhoff, a firearms examiner with the Charlotte–Mecklenburg Police Department, the weapons recovered from the parking lot were both 9 millimeter firearms, while the bullets that were removed from Mr. Kinard's leg had been fired from a .45 caliber handgun.
2. Defendant's Evidence
Mr. Snowden testified that he and Defendant, who had been friends for four or five years, regularly patronized the Carousel Club. On 20 May 2009, Mr. Snowden and Defendant travelled to the Carousel Club in Mr. Snowden's car, where Mr. Snowden had “quite a few drinks” and talked to girls he knew. After the club closed at around 2:00 a.m., Mr. Snowden went to his car and waited for Defendant, who was waiting for a dancer named “Egypt” to finish work. After Defendant emerged from the Carousel Club, Mr. Snowden drove to a nearby gas station before returning to the Carousel Club parking lot.
As Defendant walked towards the door from which “Egypt” was expected to emerge, Mr. Snowden noticed that Mr. Kinard was also in the parking lot. For that reason, Mr. Snowden got out of his car and approached Defendant and Mr. Kinard. According to Mr. Snowden, there was “just a whole bunch of commotion,” during which Mr. Snowden, who did not have a gun, was shot from behind by an unknown assailant. Despite the fact that Defendant “did not have a weapon out,” Mr. Snowden saw Mr. Herron “push[ Defendant] in the head” with what he thought was a gun. Mr. Snowden believed that Mr. Springs had a weapon in his possession as well. Mr. Snowden never saw Defendant either have a gun in his possession or fire a shot.
According to Defendant, he and Mr. Snowden went to the Carousel Club “to get a female” on 20 May 2009. In view of the fact that Mr. Kinard and Ms. Reed had previously been involved in a long-term relationship, Mr. Kinard bore a certain amount of animosity toward Defendant after he started dating Ms. Reed. At the club, Defendant attempted to persuade “Egypt” to return home with him after work. Defendant's activities angered Ms. Reed, who attempted to fight “Egypt” after the club closed.
At the end of the evening, Defendant and Mr. Snowden went to a nearby gas station for the purpose of buying condoms and then returned to the Carousel Club parking lot to wait for “Egypt.” As the girls exited the club, there was a “commotion” between Ms. Reed and “Egypt,” leading Defendant to get out of the car. However, a Carousel Club employee told Defendant that “Egypt” could not leave with him, a development which Defendant found annoying. At that point, Mr. Kinard “started directing all of his aggressions towards [Defendant] and he started taking his coat and his stuff off.” Although Defendant did not approach Mr. Kinard or have any desire to fight with him, Mr. Kinard was “calling names” and making “derogatory remarks” about Defendant.
As Mr. Kinard approached Mr. Snowden, the two “squared off” and “the commotion started.” Defendant attempted to pull Mr. Snowden away from Mr. Kinard, saying “Man, this ain't worth it.” Defendant did not flash a gun or have a firearm in his possession. As Defendant “started pulling [Mr. Snowden] back,” his friend “kind of fell and [Defendant] ran.” After Mr. Snowden was shot, Defendant reentered Mr. Snowden's car and eventually discovered that he had been wounded in the leg, chest, and back. At the hospital, law enforcement officers performed a gunshot residue test on Defendant's hands and arms.
Although Ms. Reed was employed as a bartender at the Carousel Club, she had gone to that establishment as a customer on 20 May 2009. At the Carousel Club, Ms. Reed drank shots of whiskey until she was “drunk.” Upon noticing that Defendant had been talking with another woman, Ms. Reed made a rude gesture towards Defendant. After the other woman called Ms. Reed an offensive name, the two of them began arguing.
Ms. Reed left the building at about the same time as Mr. Kinard. After going outside, Ms. Reed realized that Mr. Snowden and Mr. Kinard were about to fight. For that reason, Ms. Reed grabbed Mr. Snowden's arm while a friend tried to restrain Mr. Kinard. As Ms. Reed understood the situation, the fight was between Mr. Snowden and Mr. Kinard, although Defendant had also approached the two men. When Ms. Reed grabbed Mr. Snowden's arm, he “snatched away” and she heard gunshots. As a result, Ms. Reed “just automatically got down and [ ] didn't see anything.” Ms. Reed never saw anyone, including Defendant, with a firearm.
Although Starnecca Brown had previously worked at the Carousel Club, she was present at that location as a customer on 20 May 2009. Ms. Brown left the club at the same time that Ms. Reed and Mr. Kinard left. When the group got outside, Ms. Reed began arguing with another woman, causing Ms. Brown to attempt to “calm her down.” After Mr. Kinard became upset, Ms. Brown saw him taking off his jacket. Although Ms. Brown heard Mr. Snowden and Mr. Kinard arguing, she could not see them. According to Ms. Brown, “[t]hey was arguing and so much commotion outside, so much arguing, and about a few minutes later after the argument started, shots were fired.” At the time these shots were fired, Ms. Brown was talking with Defendant.
B. Procedural History
On 20 May 2009, Defendant was arrested for assaulting Mr. Springs and Mr. Kinard with a deadly weapon with the intent to kill inflicting serious injury. On 8 June 2009, the Mecklenburg County grand jury returned bills of indictment charging Defendant with assaulting Mr. Kinard and Mr. Springs with a deadly weapon with the intent to kill inflicting serious injury. On 30 November 2009, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with possession of a firearm by a convicted felon. The charges against Defendant came on for trial at the 15 November 2010 criminal session of the Mecklenburg County Superior Court. At the conclusion of the trial, the jury convicted Defendant as charged. Based upon the jury's verdicts, the trial court sentenced Defendant to sixteen to twenty months imprisonment for possession of a firearm by a convicted felon, consolidated the two felonious assault charges for judgment, and sentenced Defendant to a consecutive term of 112 to 144 months imprisonment for assaulting Mr. Kinard and Mr. Springs with a deadly weapon with the intent to kill inflicting serious injury. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Comments on Defendant's Silence
As an initial matter, Defendant argues that “the trial court [committed] plain error [by] allowing the prosecutor to [ ] ask the defendant on cross-examination why he refused to give a statement after he had been arrested for the crimes and about his refusal to waive his rights” and to comment on Defendant's failure to make a statement to investigating officers. Although we believe that certain of the challenged questions and comments were improper, the trial court's failure to preclude the prosecutor from posing these questions to Defendant did not rise to the level of plain error or render Defendant's trial fundamentally unfair.
1. Scope of Questioning
At the beginning of his cross-examination of Defendant, the prosecutor briefly questioned Defendant about certain frames contained in a surveillance video that had been introduced into evidence. After posing those questions, the prosecutor established that Defendant had not given “a statement in this case” prior to that day despite having had since 20 May 2009 “to think about it.” Defendant did not, however, object to this line of questioning. In addition, Defendant failed to object to the prosecutor's next line of questioning, which established that, unlike Defendant, Mr. Herron, Mr. Cunningham, Mr. Springs, Mr. Kinard, and Mr. Snowden had all made statements to investigating officers. Similarly, Defendant failed to object to prosecutorial questions that elicited evidence that Mr. Snowden had given a statement to investigating officers despite having been more seriously injured than Defendant. After Defendant testified that he did not make a statement to investigating officers due to the pain he was experiencing, the prosecutor, again without objection, asked Defendant whether others who had been shot had given statements. When the prosecutor questioned Defendant about the fact that law enforcement officers had visited him while he was in the hospital and had repeatedly asked him to tell his “side of the story,” Defendant successfully objected to several, but not all, of these questions, on hearsay-related (but not constitutional) grounds. At the end of that line of questioning, the prosecutor inquired:
Q. Do you recall [Detective Strother] telling you anything?
A. Yes.
Q. Okay. What did she tell you before you were arrested?
A. I didn't know at what point I was arrested until I asked her, “Am I under arrest?”, and that was at the point when she was saying about the waiver, and I asked her what the waiver was for and she said that I would be waiving my right to talk to her. I asked her, “Am I under arrest?” and she said, “Yes.” Then I said, “I need a lawyer.”
Q. And she could ask you for your side of the story, didn't she?
A. Well, at that point—I mean I never heard her say that. I know at that point she turned her tape recorder on to record it.
At that point, the prosecutor resumed his efforts, which were met with a limited number of successful objections from Defendant's trial counsel, to elicit evidence tending to show that Defendant had been afforded an opportunity to make a statement to investigating officers. At the conclusion of his cross-examination of Defendant, the prosecutor asked:
Q. Did you give her your side of the story? Yes or no.
A. She asked me to sign a ...
Q. Sir, I am asking you a yes or no question—did you give her your side of the story—yes or no?
[DEFENSE COUNSEL]: Your Honor, I am going to ask that I be heard outside of the presence of the jury, if the Court thinks it is appropriate.
COURT: No. Just answer the question, Mr. Richardson.
A. Well, I guess I was not able to give her my side of the story—no.
In his summation, the prosecutor used the evidence concerning Defendant's failure to give a statement to investigating officers to attack Defendant's credibility, arguing that:
You are the judges of the credibility of these witnesses and the things you use to judge whether somebody is being credible in their testimony is how they respond to the questions. [Defense counsel] asked him, had he ever had a chance to tell his story, and he said no. Well, when I started asking him questions, what did he say? He had some chances and he didn't. Out of all of these witnesses, Sherman Cunningham, Bryan Herron, DC Springs, Marcus Kinard, Richard Snowden—all of them gave statements to the police. The only one who didn't, and he needed to give a statement, but the only one who didn't was that man right here, Roderick Richardson. Was he hurt and did he not give a statement because he was hurt? He was hurting but so was everybody else. So was Marcus Kinard, so was [Mr.] Springs, so was Richard Snowden—they were all shot and they all gave a statement.
After carefully reviewing the record, we conclude that the principal focus of the questions that the prosecutor posed to Defendant on cross-examination related to Defendant's failure to make a statement to investigating officers; that the prosecutor's questions of Defendant related to both Defendant's pre-arrest and his post-arrest silence; that Defendant objected to only a few of the relevant questions and never challenged the constitutionality of the prosecutor's conduct before the trial court; that the prosecutor persisted in questioning Defendant about his failure to give his “side of the story” even after the trial court sustained certain of Defendant's hearsay-based objections; and that the prosecutor attacked Defendant's credibility in his final argument on the grounds that he had failed to make a statement to investigating officers.
The State has not argued that Defendant opened the door to the challenged questions and comments, so we will not address the extent to which any such contention would have been valid.
2. Standard of Review
According to Defendant, the prosecutor's decision to question him about his failure to make a statement to investigating officers and to comment upon Defendant's failure to make such a statement in his closing argument violated his rights under the Fifth and Fourteenth Amendments of the United States Constitution. Although Defendant contends that he is entitled to relief from his convictions on the basis of this argument “unless the Appellate Court finds that it was harmless beyond a reasonable doubt,” Defendant's argument overlooks the fact that he did not object to most of the questions and prosecutorial comments upon which his claim is based and that none of the limited number of objections that he did make were constitutionally-based. As a result, we conclude that, given the absence of a contemporaneous objection, Defendant's challenge to the prosecutor's questions must be reviewed utilizing a plain error standard. State v. Mendoza, 206 N.C.App. 391, 395, 698 S.E.2d 170, 174 (2010) (stating that, since defendant “did not [ ] object to any of this testimony at trial,” “we, therefore, review the admission of the testimony only for plain error”). Similarly, given that Defendant did not object to the prosecutor's discussion of Defendant's failure to give a statement in his closing argument, Defendant is only entitled to an award of appellate relief on the basis of those prosecutorial comments in the event that the trial court's failure to intervene in the absence of an objection effectively “ ‘imped[ed] defendant's right to a fair trial.’ “ State v. Chapman, 359 N.C. 328, 366–67, 611 S.E.2d 794, 822–23 (2005) (quoting State v. Smith, 351 N.C. 251, 269, 524 S.E.2d 28, 41,cert. denied, 531 U.S. 862, 121 S.Ct. 151, 148 L.Ed.2d 100 (2000) (internal citation omitted).
Although Defendant did object to several of the prosecutor's questions on hearsay grounds, those objections were sustained. We note that, prior to the presentation of evidence, the court instructed the jury that, “[w]hen the Court sustains an objection to a question, you [ ] must disregard the question and the answer if one has been given....” “Absent circumstances indicating otherwise, jurors are presumed to follow a trial court's instructions.” State v. McQueen, 165 N.C.App. 454, 458, 598 S . E.2d 672, 676 (2004) (citing State v. McCarver, 341 N.C. 364, [384], 462 S.E.2d 25, 36 (1995), cert. denied,517 U.S. 1110, 116 S.Ct. 1332, 134 L.Ed.2d 482 (1996)), disc. review denied,359 N.C. 285, 610 S.E.2d 385 (2005). As a result, we will presume that the jury disregarded the questions to which the trial court sustained Defendant's objections.
3. Analysis of Prosecutorial Questions and Comments
“Whether the State may use a defendant's silence at trial depends on the circumstances of the defendant's silence and the purpose for which the State intends to use such silence.” State v. Boston, 191 N.C.App. 637, 648, 663 S.E.2d 886, 894,disc. review denied,362 N.C. 683, 670 S.E.2d 566 (2008).
In Boston, this Court explained that a defendant's pre-arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used by the State to impeach the defendant by suggesting that the defendant's prior silence is inconsistent with his present statements at trial. A defendant's post-arrest, post-Miranda warnings silence, however, may not be used for any purpose. Because different law applies to the different circumstances surrounding the testimony challenged by defendant, we [must] analyze each circumstance separately.
Mendoza, 206 N.C.App. at 395, 698 S.E.2d at 173–74 (citing Boston, 191 N.C. App at 648–49, 663 S.E.2d at 894, and Doyle v.. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976)). We will now analyze the prosecutor's cross-examination of Defendant and his comments to the jury during his closing argument utilizing this analytical framework.
A significant portion of the prosecutor's cross-examination of Defendant focused on eliciting evidence that almost all of the other witnesses had given a statement to investigating officers immediately after the shootings. To the extent that such questions were intended to impeach Defendant for failing to make a pre-arrest statement despite the fact that other witnesses provided information to investigating officers, we believe that they did not run afoul of the applicable constitutional provisions. As a result of this fact and the fact that Defendant has not challenged these questions on any other basis, we conclude that the trial court did not err, much less commit plain error, by failing to intervene without objection to preclude this portion of the prosecutor's cross-examination of Defendant. Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005)(per curiam) (stating that “[i]t is not the role of the appellate courts ... to create an appeal for an appellant”). The same logic precludes a grant of appellate relief based upon the prosecutor's questions concerning the extent to which law enforcement officers sought to obtain Defendant's “side of the story” before placing him under arrest. Had the prosecutor stopped at that point, Defendant would have had no basis for complaint on appeal.
The record clearly reflects, however, that the prosecutor directly questioned Defendant about and commented upon Defendant's failure to make a statement throughout the entire period between his arrest and the delivery of his trial testimony. In posing this series of questions, the prosecutor exceeded the bounds of permissible examination and comment. As the Supreme Court has explained:
The cross-examination about which the defendant belatedly complains violated the implicit assurance contained in the Miranda warnings that silence will carry no penalty. The Supreme Court of the United States has made it clear that “breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Therefore, fundamental rights of the defendant were violated by the cross-examination of the prosecutor.
State v. Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 83 (1986) (quoting Wainwright v. Greenfield, 474 U.S. 284, 291, 88 L.E.2d 623, 630, 106 S.Ct. 634, 638 (1986) (other citation omitted). Similarly, the prosecutor's comments during his closing argument concerning Defendant's failure to give a statement were not limited to the period of time prior to the point at which Defendant was placed under arrest and informed of his Miranda rights. As a result, at least some portion of the challenged questions and comments violated Defendant's constitutional rights, necessitating a determination of the extent, if any, to which Defendant is entitled to appellate relief based upon those questions and comments.
4. Plain Error
“For error to constitute plain error, a defendant must demonstrate” that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.’ “ State v. Lawrence, –––N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (quoting 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), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)).
The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to “plain error,” the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question “tilted the scales” and caused the jury to reach its verdict convicting the defendant. Therefore, the test for “plain error” places a much heavier burden upon the defendant than that imposed by N.C. [Gen.Stat.] § 15A–1443 upon defendants who have preserved their rights by timely objection.
Walker, 316 N.C. at 39, 340 S.E.2d at 83 (citing Odom, 307 N.C. at 661, 300 S.E.2d at 378–79, and quoting State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 806–07 (1983)). As a result, determining the extent to which a particular error constitutes “plain error” or otherwise rendered Defendant's trial fundamentally unfair is necessarily a fact-specific inquiry.
As has already been discussed in detail above, Mr. Kinard and Mr. Springs were shot in the course of an altercation that occurred during the early morning hours of 20 May 2009. The record developed at trial established that Mr. Kinard and Ms. Reed had previously been involved in a romantic relationship; that, after Defendant began dating Ms. Reed, some animosity existed between himself and Mr. Kinard; that, after the Carousel Club closed, Defendant and Mr. Kinard argued; that Mr. Kinard removed his coat in order to fight Defendant; that Mr. Kinard slapped Defendant; and that, after Mr. Kinard slapped Defendant, shots were fired, resulting in injuries to several people. As a result, the only issue in serious dispute at trial was the identity of the individual who shot Mr. Springs and Mr. Kinard. In support of its contention that Defendant wounded Mr. Springs and Mr. Kinard, the State offered the testimony of four employee eyewitnesses, each of whom testified that Defendant drew a weapon and fired at Mr. Kinard and Mr. Springs. Although the witnesses called by the State acknowledged that they knew each other and although Mr. Kinard had consumed impairing substances and was involved in an altercation with Defendant immediately prior to the shooting, the record contains no indication that any of these employees had a criminal record or were, with the exception of Mr. Kinard, otherwise biased against Defendant. On the other hand, Defendant and Mr. Snowden were close friends, Defendant and Ms. Reed were romantically involved, Defendant and Ms. Reed had consumed a substantial amount of alcohol, and Mr. Snowden had a prior felony conviction. In addition, none of Defendant's witnesses claimed to have seen who fired the shots that injured Mr. Springs and Mr. Kinard or were willing to state in an unequivocal manner that Defendant was unarmed. Finally, the surveillance video that was introduced into evidence at Defendant's trial, despite being of poor quality, tends to corroborate the testimony of the State's witnesses in a number of important respects. As a result, although the manner in which the prosecutor questioned Defendant and argued the State's case to the jury exceeded permissible bounds, we are unable to say, given the specific facts at issue here, that the outcome at Defendant's trial would have probably been different had the challenged questions not been asked or the challenged comments not been made, or that the prosecutor's conduct deprived Defendant of a fair trial. As a result, Defendant is not entitled to relief on the basis of this component of his challenge to the trial court's judgments.
B. Jury's Request to View Exhibits
Secondly, Defendant argues that “the trial court [committed] prejudicial error [by] failing to exercise its discretion when it ruled as a matter of law that the statements of two (2) witnesses which the jury requested to review could not be viewed by the jury since they had been introduced into evidence but not published to the jury[.]” Once again, we conclude that Defendant's argument lacks merit.
After retiring to deliberate, the jury requested “to see the 45 caliber shells, the written witness statements from all witnesses, all of the photos, the video, and the report from the CSI guy.” According to Defendant, after responding to the jury's request by “indicat[ing] his concern with the statements of Cunningham and Springs since they were introduced but not published,” the trial court declined to allow the jury to see these statements based on a belief that “he could not as a matter of law send to the jury or let them see a statement that was introduced into evidence but not originally published to them during the course of the trial.” We are not persuaded by Defendant's argument.
At the time of its initial response to the jury's inquiry, the trial court, after addressing certain other issues, stated that “you may take the witness statements, those that were admitted into evidence with you to the jury room.” Similarly, after deciding to dismiss the jury for the day, the trial court informed the members of the jury that they could reconvene in the morning and that the trial court “will have you take the witness statements that were admitted back into the jury room.” On the following morning, the trial court had a colloquy with counsel concerning the items that the jury had requested to review, during which the following proceedings transpired:
[PROSECUTOR]: We talked about that, and I think we decided that it was every piece of evidence that was published. I know the only statements that was put in was Cunningham's and Springs statement, but it was not published to them.
COURT: Well, it was admitted but not published, okay.
[PROSECUTOR]: That's right, so that goes back.
A similar discussion occurred concerning the extent to which the jury should be allowed to review certain expert witness statements, at the conclusion of which the trial court, after being informed that a particular statement had been admitted into evidence, but not published to the jury, made a statement similar to the one recited above. As a result, in light of the statements made during the trial court's conversations with the prosecutor and Defendant's trial counsel in the aftermath of the jury's request for additional information, we are unable to determinate that the record clearly establishes that the trial court refused to allow the jury to review items that had been admitted into evidence, but not published to the jury, during its deliberations. In addition to the extent that the record does, in fact, support an inference that the trial court refused to allow the jury to review the relevant statements, there is no indication that the trial court did not exercise its discretion in the manner required by N.C. Gen.Stat. § 15A–1233 (a). State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 376 (1997) (stating that, “ ‘[w]hen no reason is assigned by the court for a ruling which may be made as a matter of discretion, ... the presumption on appeal is that the court made the ruling in the exercise of its discretion’ ”) (quoting Ralph G. Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 703, 120 S.E.2d 72, 76 (1961)). As a result, we do not find Defendant's challenge to the manner in which the trial court responded to the jury's inquiry persuasive.
C. Sufficiency of the Evidence
Finally, Defendant contends that the trial court erred by denying his motion to dismiss the charge that he had assaulted Mr. Springs with a deadly weapon with the intent to kill inflicting serious injury on the grounds that the evidence was not sufficient to support a finding of guilt. This argument lacks merit.
In order to justify the denial of a motion to dismiss for insufficient evidence, the State must present substantial evidence of “(1) each essential element of the [charged offense] and (2) defendant's being the perpetrator of such offense.” State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citation omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). In evaluating the denial of a motion to dismiss for insufficiency of the evidence, a reviewing court must examine “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied,546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005). “Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993) (citing State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). A trial court's decision to deny a motion to dismiss for insufficient evidence is reviewed de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“ ‘The elements of [assault with a deadly weapon with intent to kill inflicting serious injury] are (1) an assault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death.’ “ State v. Grigsby, 351 N.C. 454, 456, 526 S.E.2d 460, 462 (2000) (citing State v. James, 321 N.C. 676, 687, 365 S.E.2d 579, 586 (1988)). In challenging the trial court's ruling, Defendant argues that the evidence did not suffice to establish his identity as the perpetrator of the offense. We disagree.
At trial, Mr. Springs testified that, in response to a radio call, he ran to the club's parking lot, where he saw Defendant, who was armed, arguing with Mr. Kinard. As Defendant walked towards Mr. Kinard, Mr. Springs positioned himself between the two men, who were only “a few feet” apart. After Defendant and Mr. Kinard exchanged angry words, they moved closer to each other to such an extent that the “separation [between them] became approximately zero.” At that point, Mr. Kinard slapped Defendant. After Mr. Kinard hit Defendant, Mr. Springs “saw the gun being pulled from the waist area of the Defendant and immediately after that [Defendant] drew the weapon and [ ] began firing.” Mr. Springs, in turn, advanced on and fired at Defendant, who “turned around to his right to face [Mr. Springs] and fired one shot in [Mr. Spring's] direction” without hitting him. At that point, Mr. Springs' gun jammed, so he retreated behind his vehicle. As Mr. Springs tried to hide behind his car, “immediately after turning, [he] was shot,” with “[t]he [shot in his] arm [being] received before [he got] underneath the vehicle” and “the [shot to his] leg [being] received at least two seconds after [he slid] under the vehicle.” Mr. Springs could not identify the individual who fired the shots that hit him given the fact that his vision was obstructed by his vehicle. However, Mr. Cunningham testified that, although he did not know if Defendant “meant to sho[ot] at anyone else, he was just shooting and [Mr. Springs] was shot twice.” Similarly, Mr. Herron testified that he saw Defendant shoot at Mr. Springs at least once and that Mr. Springs sustained two gunshot wounds. As a result, we conclude that the State presented sufficient evidence to permit a reasonable jury to determine that Defendant was the person who shot and wounded Mr. Springs.
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of Defendant's challenges to the trial court's judgments have merit. As a result, the trial court's judgments should, and hereby do, remain undisturbed.
NO ERROR. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).