Opinion
No. 06-829.
Filed 5 June 2007.
Wayne County No. 04CRS053438.
Appeal by defendant from judgment entered 19 September 2005 by Judge Jay D. Hockenbury in Wayne County Superior Court. Heard in the Court of Appeals 19 February 2007.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Lars F. Nance, for the State. Sofie W. Hosford for defendant-appellant.
Marcus Dominique Moore ("defendant") was convicted of second degree murder on 19 September 2005 and was sentenced to 220 to 273 months. The State offered evidence that tended to show that defendant pistol-whipped then shot and killed Jonathan Yarborough ("the victim"). Defendant testified that he shot the victim only after the victim had charged him and did so only during a scuffle for the gun.
Kwamisha Kornegay ("Kornegay") testified that on the day of the crime an occupied car was parked in defendant's yard and that defendant had walked in and out of his house two or three times to speak with those in the car. Kornegay later testified that the dispute between the victim and defendant arose when the victim sold drugs to the occupants of the car before defendant had an opportunity to do the same. Kornegay next said that the defendant pulled out his gun and shot the victim, across the car, around the top of victim's shoulders. Kornegay testified that she ran away after the first shot but did hear a second shot as she was fleeing.
Shalita Hopson ("Hopson") testified that she was awakened by a gunshot on 16 April 2004 around midnight. Hopson said that she saw defendant holding the victim down while striking him with a gun. She later called 911 and testified that she saw defendant shoot the victim and hit him again with the gun. Hopson testified that she did not see the victim put up any defense.
The remainder of the State's witnesses were used to establish the following: (1) the victim had two gunshot wounds and some contusions on the right side of his face; (2) a bullet entered his chest at a downward angle and damaged his heart, liver, stomach, and spleen — the fatal shot; (3) a second bullet entered his back but was not incapacitating; and (4) the victim was shot from a range greater than three to five feet.
Defendant testified that: (1) he had purchased a gun off the street before the incident; (2) earlier that night he was drinking at a local store and had a gun concealed; (3) he saw the victim in the front of his house talking to the passengers in a car; (4) assuming the victim was selling drugs, he confronted the victim and the victim charged him; (5) he stated that they fell to the ground, where he was hit twice, and the gun went off for the first time; and (6) the second time the gun went off he concedes that he pulled the trigger but asserted that it was only to get the victim off of him.
Defendant presents the following issues: Did the trial court (1) err in admitting the recording of a 911 phone call made by a witness; (2) err in admitting nine (9) color photographs of the victim's deceased body from multiple angles; (3) commit plain error by allowing cross-examination of defendant regarding his character; and (4) err in submitting the charge of second degree murder to the jury. After careful consideration, we find no error.
I.
The trial court's decision to admit evidence is a matter within its discretion. State v. McCree, 160 N.C. App. 19, 28, 584 S.E.2d 348, 354 (2003). A trial court's decision with regards to the admission of evidence will only be reversed upon a showing of abuse of discretion. Id. That is, an appellant must show that the ruling was "'manifestly unsupported by reason and could not have been the result of a reasoned decision.'" Id. (quoting State v. Brown, 350 N.C. 193, 209, 513 S.E.2d 57, 67 (1999)). In the instant case, the trial court admitted into evidence a compact disc ("CD") recording of a 911 call made by one of the witnesses to the alleged crime.
Under N.C. Gen. Stat. § 8C-1, Rule 901(a) (2005), an audio recording may be authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. The tape may be authenticated by voice identification. In the instant case, the State claimed that the CD was a recording of the 911 call between Hopson's house and the 911 emergency center. Rhonda Branch, formerly of the 911 communication center in Wayne County, testified that she recognized Hopson's voice, her own voice, and that the CD was accurate. We find this evidence sufficient to support a finding that the tape was what the State contended it to be: A recording of the 911 call made during this incident.
Defendant contends that "[t]here was a distinct break in the recording" that differed from the actual recording and that this rendered the evidence incompetent. We disagree. "Defendant correctly states that an otherwise properly authenticated tape should not be admitted unless it is audible, intelligible, and not obviously fragmented." State v. Rourke, 143 N.C. App. 672, 676, 548 S.E.2d 188, 191 (2001) (emphasis added) (citation omitted). Whether an audio recording meets this standard, however, is in the trial court's discretion and will not be overturned absent an abuse of discretion. Id. at 676-77, 548 S.E.2d at 191. We cannot say that the trial court committed an abuse of discretion in admitting the CD because defense counsel was free to cross-examine the witness regarding the alleged breaks and otherwise attack the credibility of that evidence.
Alternatively, even assuming a trial court error, defendant failed to allege that there is a reasonable possibility that a different result would have been reached had the error not occurred. In order to prevail in these circumstances, defendant must demonstrate "'that a reasonable possibility exists that a different result would have been reached absent the error.'" State v. Smith, 357 N.C. 604, 610, 588 S.E.2d 453, 458 (2003) (quoting State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988)). Having failed to so allege, we cannot say that the trial court abused its discretion in admitting the CD of the 911 call. Thus, both because the alleged gap in the CD recording goes to the credibility of the evidence rather than its admissibility, and because defendant failed to allege that a different result would have occurred without its admission, we find no error in the trial court's ruling as to this issue.
II.
Defendant next argues that the admission of nine (9) photographs of the deceased were repetitive and inflammatory. We disagree. After a trial court has determined that evidence is admissible it then must decide whether "there exists a danger that unfair prejudice substantially outweighs the probative value of the evidence." State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005) (citing N.C. Gen. Stat. § 8C-1, Rule 403 (2003)). "'That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision.'" Id. at 800-01, 611 S.E.2d at 209 (citation omitted).
It is settled law that "the unnecessary use of inflammatory photographs in excessive numbers solely for the purpose of arousing the passions of the jurors may deny defendant a fair and impartial trial." State v. Sledge, 297 N.C. 227, 231, 254 S.E.2d 579, 582 (1979). The fact that photographs depict a horrible, gruesome or revolting scene, however, does not render them incompetent. Id. at 231, 254 S.E.2d at 583. Rather, they may be used to illustrate testimony regarding the manner and/or cause of death. State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988).
The repetitive use of gruesome photos lowers their probative value when compared to their tendency to prejudice the jury. Id. That said, "'[w]hat constitutes an excessive number of photographs must be left largely to the discretion of the trial court in the light of their respective illustrative values.'" Sledge, 297 N.C. at 232, 254 S.E.2d at 583 (citation omitted).
In the instant case, the State put forth evidence of nine (9) different photos, all from different angles, of the deceased's body. This evidence illustrated the medical examiner's conclusions regarding the cause of death and the determination that the victim was shot from a distance greater than defendant testified; thus, it cannot be said that they were merely repetitious. In Sledge, our Supreme Court found no abuse of discretion when nine (9) photos of two bodies were admitted into evidence because they were all taken from different angles. Id. We find the holding in Sledge applicable to the instant case and conclude that the trial court committed no error. See also State v. Dollar, 292 N.C. 344, 355, 233 S.E.2d 521, 527 (1977) (upholding the use of repetitive photos when taken from different angles).
Additionally, we point out that defendant did not allege that the result of the case would have been different had the photos not been admitted. As stated previously, in order to prevail, a defendant must establish that there was a reasonable probability of a different outcome. Smith, 357 N.C. at 610, 588 S.E.2d at 458.
III.
Defendant next argues that the trial court committed plain error in allowing the State to cross-examine him about a specific instance of fleeing from the police in June 2002. We disagree. "[P]lain error analysis is the appropriate standard of review when a defendant does not object to the admission of evidence at trial." Rourke, 143 N.C. App. at 675, 548 S.E.2d at 190. In the instant case, trial counsel failed to object to a line of questioning by the prosecutor regarding defendant's alleged prior bad acts. An error will be "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).
Before assessing whether there was plain error we must determine whether there was an error at all. State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). Where a defendant testifies, "evidence of prior convictions is admissible for the purpose of impeaching his credibility under Rule 609(a)." State v. Lynch, 334 N.C. 402, 408-09, 432 S.E.2d 349, 352 (1993). The scope of inquiry for impeachment purposes is limited, however, "to [1] the name of the crime, [2] the time and place of the conviction, and [3] the punishment imposed." Id. at 409, 432 S.E.2d at 352. When the scope of this rule has been exceeded it has been held to be reversible error. Id.
Rule 609(a) provides: "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter." N.C. Gen. Stat. § 8C-1, Rule 609(a) (2005).
In the instant case, defendant testified and admitted to the following charges: Breaking and entering, possession with intent to sell and distribute, and assault inflicting serious injury. The State, on cross-examination, exceeded the standard set out in Lynch by inquiring into the details of the drug charge, specifically, defendant's alleged flight from the police. While this constitutes an error, it is not a reversible error because defendant's trial counsel failed to object to this line of questioning. See State v. Ragland, 80 N.C. App. 496, 498, 342 S.E.2d 532, 533 (1986) (holding that failure to object to incompetent testimony will be regarded as a waiver of objection and its admission presents no question for review on appeal). Thus, we must assess whether this error amounted to plain error.
Defendant fails to show that the jury probably would have reached a different result had the evidence of prior bad acts not been admitted. See Smith, 357 N.C. at 610, 588 S.E.2d at 458. He also fails to demonstrate that the admission of the evidence resulted in a fundamental miscarriage of justice. In light of the compelling evidence of defendant's guilt presented at trial (discussed in section IV of this opinion), we hold that the trial court did not commit plain error in admitting evidence of defendant's alleged prior bad acts. See State v. Parks, 148 N.C. App. 600, 609, 560 S.E.2d 179, 185 (2002).
IV.
Defendant's final argument is that there was insufficient evidence to support the verdict of second degree murder. We disagree. Our test for determining the sufficiency of the evidence states that "'"there must be substantial evidence of all material elements of the offense"'" in order to create a question of guilt or innocence for the jury. State v. Casey, 59 N.C. App. 99, 116, 296 S.E.2d 473, 483 (1982) (citations omitted).
In ruling on this question: "'[(1)] the evidence is to be considered in [the] light most favorable to the State; [(2)] the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; [(3)] contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and [(4)] all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.'" Id. (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
Defendant was charged and subsequently convicted of second degree murder. "'Second-degree murder is an unlawful killing with malice, but without premeditation and deliberation.'" State v. Ammons, 167 N.C. App. 721, 725, 606 S.E.2d 400, 404 (2005) (citation omitted). "A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter." State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 324 (1955) (emphasis omitted). At trial, defendant attempted to establish perfect self-defense. Under perfect self-defense, a defendant will be found not guilty if the following four elements are met:
"'(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.'"
State v. Richardson, 341 N.C. 585, 588, 461 S.E.2d 724, 726 (1995) (citations omitted).
Defendant concedes in his brief, however, that he was not entitled, in the light most favorable to the State and based upon the State's evidence, to a complete exoneration by the trial court at the close of the evidence based on perfect self-defense. Accordingly, defendant limits his argument to the grounds that the second degree murder charge should have been dismissed and that the charge of voluntary manslaughter should have been submitted to the jury because he engaged in imperfect self-defense. We limit our discussion to the same.
As to imperfect self-defense, "'if the first two elements [of perfect self-defense] existed at the time of the killing, but defendant, although without murderous intent, was the aggressor in bringing on the affray or used excessive force, defendant is guilty at least of voluntary manslaughter.'" Id. at 588, 461 S.E.2d at 726-27 (citation omitted). To prevail, the State need only prove beyond a reasonable doubt the non-existence of either the first or the second element. Ammons, 167 N.C. App. at 726, 606 S.E.2d at 404. That is, either: (1) the defendant did not believe "that it was necessary to kill to save himself from death or great bodily harm," or (2) that the defendant's belief was unreasonable "because the circumstances as they appeared to defendant were not sufficient to create such a belief in the mind of a person of ordinary firmness." Id.
In the instant case, the evidence, taken in the light most favorable to the State, tends to show that defendant came armed with a gun to confront the victim over who would sell drugs to three individuals in a car. It was at this point that defendant shot the victim from across the hood of the car while standing more than three to five feet away. After the first shot, defendant attacked the victim by pistol whipping him. An eyewitness testified that, after she saw defendant striking the victim with the gun, she saw defendant lay the victim down and shoot him. The eyewitness also testified that the victim did not make any movement during the altercation. We also note that defendant conceded during his testimony that he did not see the victim carrying a gun.
In light of this evidence, a jury could find that defendant lacked a reasonable belief in the threat of serious bodily injury after the first shot due to the distance between the two men and could have reasonably concluded that the victim was unarmed. The jury could also have reasonably concluded that the victim did not fight back during the altercation, and thus found defendant's belief of serious bodily harm unreasonable. The evidence in this case is especially strong as two eyewitnesses saw significant portions of defendant's actions. Further evidence negating the reasonableness of defendant's belief in the need to kill was found in his hasty departure from the scene. Id. at 726-27, 606 S.E.2d at 404 (citing State v. Watson, 338 N.C. 168, 181, 449 S.E.2d 694, 702 (1994), overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995) (holding such flight would permit a jury to infer the defendant harbored a sense of guilt inconsistent with a killing justified on the basis of self-defense)). As sufficient evidence negating defendant's claim of self-defense was presented, the trial court correctly denied defendant's motion to dismiss the charge of second degree murder at the close of all the evidence, and the case was properly submitted to the jury for determination of the disputed factual issues.
V.
In summary, we find no error in the admission of the recording of the 911 phone call made by a witness, no error in the admission of nine (9) photographs of the deceased's body, and hold that the trial court did not commit plain error in admitting evidence of details regarding one of defendant's past convictions. We similarly find no error in the trial court's submission of the second degree murder charge to the jury.
No error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).