Heard in the Court of Appeals October 23, 2013.
[Copyrighted Material Omitted]
Caswell County. Nos. 11 CRS 618-19, 11 CRS 621, 11 CRS 623, 11 CRS 625, 11 CRS 627, 11 CRS 629, 11 CRS 631. W. Osmond Smith III, Judge.
Roy Cooper, Attorney General, by Ryan Haigh, Special Deputy Attorney General, for the State.
McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III for defendant-appellant.
DAVIS, Judge. Judges ELMORE and MCCULLOUGH concur.
Appeal by defendant from judgments entered 2 November 2012 by Judge W. Osmond Smith, III in Caswell County Superior Court. Heard in the Court of Appeals 23 October 2013.
Defendant Donnell Tracy Cousin (" Defendant" ) appeals from his convictions of felonious obstruction of justice and accessory after the fact. His primary contentions on appeal are that the trial court erred in (1) denying him the opportunity to question and cross-examine an investigator about suspects in the murder out of which Defendant's charges arose; (2) denying his motions to dismiss; (3) allowing the prosecution to make statements during closing argument that appealed to the passion and prejudice of the jury; and (4) imposing multiple consecutive sentences for the same acts and offenses in violation of his constitutional rights. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.
The State presented evidence at trial tending to establish the following facts: On 8 July 2005, Larry Mebane (" Mebane" ) was found mortally wounded in his car in Caswell County with three gunshot wounds to his head. Lieutenant Michael Adkins (" Lt. Adkins" ) of the Caswell County Sheriff's Office was one of the first officers to arrive on the scene after emergency services had been contacted via a 911 call. He found a handgun wedged between the driver's seat and the center console of the car. Lt. Adkins also noticed that the front passenger window of Mebane's car was " busted out" and that a beer can was lying near the car. The car was running with loud music playing on the radio.
Law enforcement officers first became aware of Defendant on 15 July 2005 when he was stopped at a checkpoint set up in the area of the shooting, which led to a subsequent interview of Defendant 11 days later at the Caswell County Sheriff's Office. When Defendant arrived at the Sheriff's Office on 26 July 2005, he gave a written statement to Investigator Jerald Brown (" Investigator Brown" ), who was heading the investigation into the Mebane shooting along with State Bureau of Investigation (" SBI" ) Special Agent Brian Norman (" Agent Norman" ). In this statement, Defendant indicated to Investigator Brown that he had seen Mebane around 10:30 p.m. on the night of the shooting. Defendant also named three specific individuals, Josh Anderson, Hugh Anderson, and Terrance Jackson, as having been with Mebane at the time of the shooting.
Defendant then voluntarily returned to the Caswell County Sheriff's Office on 30 March 2006 and provided additional information to Investigator Brown. During this meeting, Defendant stated that Mebane had been stopped earlier in the day by a man named Jeffrey Murdock and that Murdock had demanded money from Mebane. However, Defendant did not directly implicate Jeffrey Murdock in the shooting.
Defendant gave his next statement on 22 June 2006 at the Alamance County Sheriff's Office where he was being questioned in regard to unrelated felony charges in Alamance County. Defendant told investigators that " I know who the damn shooter is and I ain't going to tell him [referring to Agent Norman] nothing." Defendant proceeded to say that " Tego  [sic] Anderson is your shooter." Defendant added that " Josh and Hugh (Anderson) were on [sic] Josh's car and the two of them pulled over in front of Larry and got out." He then stated that " Tego [sic] pulled up behind Larry on [sic] the white truck and boxed him in so Larry couldn't go forwards or backwards. Larry got out of his car and was arguing with Josh and Hugh when Tego [sic] walked up from behind and shot Larry in the head!"
On 26 June 2006, Defendant gave another statement to Investigator Brown in which -- this time -- he stated that he was actually with Mebane when he was shot. Defendant stated that Mebane was being chased by Josh Anderson, Hugh Anderson, and Tino Anderson. He further related that Hugh Anderson " took a pistol and smacked Larry upside the face with it." He also said that " Hugh was the only one I saw with my own eyes with a gun."
Defendant subsequently gave a different statement on 6 July 2006 to the Alamance County Sheriff's Office. On this occasion he stated that " [t]he night of the shooting I saw the man who shot Larry. It was Tino."
On 17 October 2006, Defendant was interviewed by Sheriff Michael Welch (" Sheriff Welch" ) of the Caswell County Sheriff's Office. During this interview, Defendant stated that " Tino was there, but he didn't shoot Larry."
On 14 November 2006, Defendant requested to speak with the " sheriff or someone in charge" about Mebane's murder. Chief Deputy Tim Britt (" Chief Deputy Britt" ) of the Alamance County Sheriff's Office was notified of Defendant's request and conducted an interview with him that was observed by Investigator Brown and Sheriff Welch. Defendant proceeded to give the following statement to Chief Deputy Britt:
We [Defendant and Mebane] then turned right onto Dailey Store Road. . . . Sylvester Harris was in the middle of the road waving his hands. Larry Mebane stopped and got out. . . . As I was getting out of the car, I heard Sylvester Harris say to Larry Mebane, " Where is the drugs and money at, I know you got it!" . . . Sylvester's brother was standing beside the car they had been in. His name is Maurice Harris. . . . The next thing I saw as I got out of the car was Sylvester Harris shoot Larry Mebane in the back of the head.
The last statement that Defendant gave investigators occurred on 14 April 2008. Defendant claimed he had information regarding the gun used in the Mebane murder, and Investigator Brown and Sheriff Welch conducted an interview with him. Defendant denied knowing the location of the weapon but stated he could point them " in the right direction of that." He stated that Josh Anderson was Mebane's killer and admitted that his prior statements naming Tino Anderson as the shooter were deliberate falsehoods designed to mislead and misdirect law enforcement in their ongoing investigation into the murder. He admitted that " I put Tino in the middle as a block one time" and that in his earlier statements he had been " making you waste your time and gas and your ink pen." Defendant then stated that " I wasn't there on the scene period. Never was." At the end of the interview, Investigator Brown asked if everything he had told the officers was truthful, and Defendant replied " nope."
On 15 November 2011, Defendant was indicted on one count of accessory after the fact to first degree murder and seven counts of felonious obstruction of justice. A jury trial was held in Caswell County Superior Court on 29 October 2012. At the conclusion of the State's evidence, Defendant moved to dismiss all of the charges against him. The motion was denied. Defendant renewed his motion to dismiss at the close of all the evidence, and the trial court once again denied the motion.
Defendant was convicted of all charges. He was sentenced consecutively to: (1) 168 to 211 months on the accessory after the fact charge; and (2) 168 to 211 months on the seven counts of obstruction of justice charges after the charges were consolidated. Defendant gave notice of appeal in open court.
I. Denial of Defendant's Opportunity to Question Investigator Brown Regarding Other Suspects.
Defendant first argues that the trial court erred by denying him the opportunity to question Investigator Brown about other suspects in the Mebane murder. At trial, Defendant's counsel sought to elicit from Investigator Brown during cross-examination information about his interviews with persons involved in the Mebane murder investigation. Specifically, she inquired whether during his interviews with Oscar Jackson and Terrence
Jackson, either of those individuals had discussed or divulged any information relating to the identity of the shooter. The State objected to this entire line of questioning on the ground that the questions sought inadmissible hearsay because the statements sought were being offered to prove the truth of the matter asserted. The trial court sustained the State's objections. As an alternative basis, the trial court excluded the evidence under Rule 403 of the North Carolina Rules of Evidence based on the danger of unfair prejudice, confusion of the issues, and the possibility of confusing the jury.
Defendant argues the trial court's exclusion of the statements as inadmissible hearsay and under Rule 403 was erroneous. Defendant contends that this evidence was directly relevant to the issues presented and that its ...