in the Court of Appeals 20 October 2016
by defendant from judgments entered 15 October 2015 by Judge
James M. Webb in Scotland County Superior Court No. 14 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General Kenneth Sack, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
McLean ("defendant") appeals from judgments entered
upon his convictions of assault with a deadly weapon
inflicting serious injury, robbery with a dangerous weapon,
and discharging a firearm from within a building with the
intent to incite fear. On appeal, defendant argues that
judgment entered upon his conviction for discharging a
firearm within a building with the intent to incite fear must
be vacated, the trial court erred by denying his motion to
dismiss the robbery with a dangerous weapon charge, the trial
court erred by allowing Lieutenant Jason Butler to vouch for
the credibility of a victim, the trial court erred by
allowing Shaquana McInnis to provide testimony amounting to
inadmissible hearsay, and the trial court erred by assessing
a fee against defendant to pay for the State's expert
witness. For the reasons stated herein, we hold no error in
part and vacate in part.
October 2014, defendant was indicted for the following:
attempted first degree murder in violation of N.C. Gen. Stat.
§ 14-17; assault with a deadly weapon with intent to
kill inflicting serious injury in violation of N.C. Gen.
Stat. § 14-32(a); robbery with a dangerous weapon in
violation of N.C. Gen. Stat. § 14-87; and, discharging a
firearm within an enclosure to incite fear in violation of
N.C. Gen. Stat. § 14-34.10.
trial commenced at the 12 October 2015 criminal session of
Scotland County Superior Court, the Honorable James M. Webb
presiding. The State's evidence tended to show as
follows: On 25 April 2014, approximately nine people,
including the State's witnesses Rodrigues McRae
("McRae"), Vincent Smith ("Smith"), John
Shaw ("Shaw"), Acey Braddy ("Braddy"),
and Shaquana McInnis ("McInnis"), were playing
cards in a cinder-block building behind a residence located
at 508 Morris Street in Laurinburg, North Carolina. Sometime
between 3:00 and 4:00 a.m., four individuals, each armed,
entered the building. Three of the intruders had on masks and
one was unmasked. The unmasked man said, "Don't
move" and "Y'all killed my brother. I'm
going to terrorize you Laurinburg mother****ers[.]" The
unmasked man then fired two shots. Braddy was shot in his
chest and said "Man, you shot me. You shot me."
McRae and Braddy identified the unmasked shooter who shot
Braddy as defendant.
ordered everyone to "get facedown on the ground and take
our clothes off" and then said, "Give me all your
money." Braddy testified that the three masked intruders
"just stood like soldiers" while defendant
"did everything by hisself [sic]." McRae testified
that "I just took my pants and my wallet and everything,
and my keys and my cell phone, and just gave it all to
them." The following items were taken from the
State's witnesses: a cell phone and twenty dollars from
Smith; $800.00 from Shaw; a cell phone and money from Braddy;
and "a couple hundred dollars" from McInnis. The
testimony from Smith, Shaw, and McInnis corroborated Braddy
and McRae's testimony.
Jason Butler ("Lieutenant Butler") from the
Laurinburg Police Department testified that in the early
morning hours of 26 April 2014, he was dispatched to Scotland
Memorial Hospital in reference to a gunshot wound. Lieutenant
Butler was directed to a trauma room where he interviewed
Braddy. Braddy had suffered a single gunshot wound. Braddy
informed Lieutenant Butler that he was playing cards with
several people when four people ran into the room, three of
them wearing masks, and one of them made the statement,
"Y'all killed my brother. I'm going to terrorize
you n****** in Laurinburg." Braddy stated that the
intruders ordered them "to take their clothes off and
lay on the ground, where some cash and cell phones and things
like that were taken from them." As the intruders were
exiting, Braddy heard a gunshot and felt pain in his back.
Braddy told Lieutenant Butler that the unmasked person was
"the brother of Chris McKoy." Lieutenant Butler
testified that Braddy "was agitated and seemed to be in
some pain. But he was - to me, he seemed truthful."
Merica Zabitosky ("Officer Zabitosky"), who was
employed with the City of Laurinburg, interviewed Braddy
later that morning on 26 April 2014. Braddy identified
defendant as the masked shooter, gave a description of
defendant's appearance, and stated that defendant
"[l]ook[ed] just like his brother Chris McKoy[.]"
trial, McInnis testified that after the robbery, she was
incarcerated. While in a holding cell with a few other
females, she heard one of the females having a conversation
with a man in a nearby cell. The man wanted to know the
identity of all the females in the cell. McInnis provided her
name and the man said through the cell wall, "You wrote
a statement against me[.]" McInnis testified that she
recognized the voice as that of the unmasked shooter from the
26 April 2014 robbery. McInnis responded that she did not
write a statement and the male voice said "that they
were going to put him in a cell with me, and 'We'll
see what you say then.' " McInnis testified that she
asked the jailer whether "James McLean" was in
there and "she did say he was in there." McInnis
testified that because of this incident, she was scared to
October 2015, a jury found defendant not guilty of attempted
first degree murder. The jury found defendant guilty of
assault with a deadly weapon inflicting serious injury,
robbery with a firearm, and discharging a firearm from within
a building with the intent to incite fear.
was sentenced as a prior record level IV to 38 to 58 months
for his assault with a deadly weapon inflicting serious
injury conviction, 97 to 129 months for his robbery with a
dangerous weapon conviction, and 25 to 39 months for
discharging a firearm from within a building with the intent
to incite fear conviction.
presents five issues on appeal. We address each in turn.
Discharging a Firearm Within an Enclosure to Incite
first argument on appeal, defendant contends that the
judgment entered upon his conviction for discharging a
firearm within an enclosure to incite fear must be
vacated because the indictment was insufficient to ...