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State v. McLean

Court of Appeals of North Carolina

February 7, 2017

STATE OF NORTH CAROLINA
v.
JAMES MCLEAN

          Heard in the Court of Appeals 20 October 2016

         Appeal by defendant from judgments entered 15 October 2015 by Judge James M. Webb in Scotland County Superior Court No. 14 CRS 050962.

          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.

          McCULLOUGH, Judge.

         James 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.

         I. Background

         On 27 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.

         Defendant's 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.

         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.

         Lieutenant 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."

         Officer 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[.]"

         At 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 testify.

         On 15 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.

         Defendant 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.

         Defendant appeals.

         II. Discussion

         Defendant presents five issues on appeal. We address each in turn.

         A. Discharging a Firearm Within an Enclosure to Incite Fear

         In his 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 ...


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