Appeal by defendant from judgments dated 23 February 1996 by Judge Robert L. Farmer in Alamance County Superior Court.
Greene, Judge. Chief Judge Arnold and Judge Mcgee concur.
The opinion of the court was delivered by: Greene
Alfred William Riley, Jr. (Defendant) appeals convictions for first degree murder and assault with a deadly weapon inflicting serious injury.
On 24 November 1994, Defendant and his brother Anthony Lafontant (Lafontant) went to a crowded Burlington bar and dance club known as the Pac-Jam II Club (Club). Michael Angelo Faucette (Faucette) and Varnodia Tinnin (Tinnin) were wounded as a result of gunshots fired in the Club that night. Tinnin subsequently died of the wounds he had received.
Various witnesses testified that, at some point during the evening, Lafontant and Anthony Ray Hurdle (Hurdle) argued. Hurdle's half-brother, Tinnin, ended the argument by hitting Lafontant over the head with a chair. Lafontant fell to the floor, bleeding from a head wound. Gunshots were then heard in the Club. Either before or after the gunshots were heard, the lights in the Club flashed off for a few seconds.
A friend of Tinnin's testified that he saw Defendant firing a gun into the crowd, and that Defendant shot Tinnin as Defendant and Tinnin wrestled. Another friend of Tinnin's testified that after Lafontant fell to the floor, he saw Defendant standing over Tinnin firing gunshots at Tinnin. Hurdle stated that Defendant shot Tinnin after Tinnin hit Lafontant over the head with a chair.
Defendant did not testify. Michael Sharod Evans (Evans), a friend of Defendant, testified for the defense that after Tinnin hit Lafontant over the head with a chair, Defendant and Tinnin began wrestling. Evans testified that as he tried to separate Defendant and Tinnin, Defendant "kept repeating . . . that he wasn't going to let [Tinnin] go because [Tinnin] had that gun." This testimony, elicited on voir dire, was excluded by the trial court over defense counsel's objection that it fell under the "excited utterance" exception to the hearsay rule. Out of the jury's presence, the trial court stated its reasons for exclusion of Evans's testimony as follows:
If you want that evidence, if you want that evidence in, you're going to put the defendant on the stand. That's the only way it's going to get in under the rules. I think you probably know what the rule is. There's no way you can get that evidence in through this witness. You have to let the defendant testify to it; and then if you want to put this witness back on to corroborate his testimony, then that's, that's fine.
Other witnesses testified that Tinnin had shown them a gun earlier that night; however, no one else testified that Tinnin had a gun during his struggle with Defendant.
A defense witness testified that he heard gunfire from more than one gun at the time Faucette and Tinnin were shot. Another defense witness testified that she heard several gunshots, some "loud," making a "pow, pow, pow" noise, and others that were "softer," making a "pop, pop, pop" noise.
Tinnin himself was still conscious when he arrived at the hospital. An emergency room nurse testified that she asked Tinnin who had shot him. Tinnin responded "I don't know."
At the close of all the evidence, Defendant requested the trial court to instruct the jury on defense of ...