in the Court of Appeals 22 February 2017.
by defendant from judgment entered 11 December 2015 by Judge
Michael R. Morgan in Wake County Superior Court Wake County,
Nos. 14CRS001805, 14CRS209220.
Attorney General Joshua H. Stein, by Assistant Attorney
General Marc X. Sneed, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
Harris ("Defendant") appeals from judgment entered
following his conviction for second degree murder and
possession of a firearm by a convicted felon. Defendant
contends the trial court erred (1) by allowing the State to
introduce a video of a witness' interview by law
enforcement into evidence, both substantively and
corroboratively, and to play the video for the jury; and (2)
by giving supplemental jury instructions urging the jurors to
continue their deliberations when it was communicated to the
trial court that they were unable to agree upon a verdict.
review, we disagree with Defendant on his first assignment of
error and hold that the trial court did not commit error in
allowing the State's video interview evidence to be
played for the jury, first as a 'past recorded
recollection' exception to hearsay, and second as
corroborative evidence substantiating their witness'
testimony. We agree with Defendant on his second assignment
of error that the trial court erred by giving some, but not
all, of the supplemental jury instructions required by
statute if it appears to the judge that the jury has been
unable to agree upon a verdict. However, because this was
unpreserved error and the trial court's instructions did
not coerce the jury into reaching its verdict, it did not
rise to the level of plain error. For these reasons,
Defendant received a fair trial free from prejudicial error.
State presented evidence at trial that tended to show the
following chain of events led to the death of Corey Jackson
("Jackson"). Donivan Bridges ("Bridges"),
a close friend of Defendant for approximately 12 years,
testified that he, Jackson, and Defendant were at a cookout
together on April 20, 2014. At the cookout, Jackson and
Defendant began to argue when Jackson told Defendant,
"We used to take your drugs and we used to beat you up
whenever you was on the streets." Jackson's comment
was made in the presence of Defendant's girlfriend,
Africa Ledbetter ("Ledbetter"), and their children.
After this verbal exchange, Defendant expressed anger to
Bridges at this insult and his intent to shoot Jackson that
day. Defendant also asked Bridges about acquiring a gun.
Defendant did not know where his gun was located because
Ledbetter had hidden it from him.
Wilson ("Wilson") testified that on April 21, 2014,
she noticed that Jackson seemed agitated and anxious when she
saw him at the home of Cora Bost ("Bost"),
Wilson's mother. When Wilson asked Jackson why he was
anxious, he said that he was in the middle of a confrontation
with Defendant and wanted it resolved that day. Jackson let
Wilson know about the confrontation so that he
"wouldn't get jumped, " and also said that he
wanted to fight Defendant in the parking lot their adjacent
Jackson, Wilson, and others left Bost's home and returned
to Defendant and Jackson's apartment complex, Defendant
was found pacing outside as he talked on his telephone.
Jackson challenged Defendant to a fight, but Defendant said
he did not have time to fight. Bost testified that Jackson,
in reference to a previous domestic incident between
Defendant and Ledbetter in which police were called, said to
Defendant, "You must be still mad because you think my
girl called the cops on you when you was beating
continued his telephone conversation and requested the person
to whom he was speaking to bring him a gun. Jackson continued
to call Defendant inflammatory names as he challenged him to
fight, but Defendant continued to decline Jackson's
invitation. Later that day, Jackson informed his wife,
Tyaisha Smalley ("Smalley"), about his
confrontation with Defendant and how Defendant had accused
Jackson of trying to "holler at" Ledbetter. Jackson
denied having ever pursued any kind of relationship with
days passed, and on April 24, 2014, Smalley and her son
Christian returned to the apartment they shared with Jackson.
Jackson had previously sent Smalley a text message at
approximately 2:40 p.m. saying that he was at their apartment
cleaning. When Smalley and Christian arrived, Smalley paused
briefly outside to speak with Ledbetter's parents who
were sitting on Defendant and Ledbetter's front porch.
Christian entered the apartment first, and came back outside
to tell Smalley that Jackson was lying on the floor of their
living room, face down and unresponsive. Ledbetter's
stepfather called for police and an ambulance.
of law enforcement's initial investigation, Raleigh
Police Detective Brian Neighbors ("Detective
Neighbors") interviewed Ledbetter's 13-year-old son,
Xavier Gibbes ("Gibbes"), on that same day, April
24. Gibbes informed Detective Neighbors during this interview
that he had heard a gunshot at approximately 2:45 to 3:00
p.m. earlier that day in the vicinity of Jackson's
apartment, and several seconds later had observed Defendant
walking away from the apartment with a jacket in his hand.
Bridges returned to his apartment on April 24 and saw the
ongoing investigation at Jackson's apartment, he called
Defendant because of the conversation he and Defendant had
the previous day. During this conversation, Defendant asked
whether the police were looking for him, and admitted that
"he [had] shot [Jackson] and thought he hit him at least
once". Bridges was interviewed by Raleigh Police
Detective Eric Emser ("Detective Emser") on April
24, and he conveyed the content of his conversation with
Defendant to Detective Emser.
Lauren Scott ("Dr. Scott") of the Office of the
Chief Medical Examiner performed an autopsy of Jackson on
April 25, 2014. Dr. Scott testified about the autopsy,
finding that Jackson had suffered four gunshot wounds. Two of
these gunshot wounds entered Jackson's back and were
determined to be fatal.
was arrested on the morning of April 25, 2014. Following his
arrest, Defendant was interviewed by Raleigh Police Detective
Zeke Morse ("Detective Morse"). During the
interview, Defendant informed Detective Morse where he would
be able to find the weapon with which he had shot Jackson.
trial, Defendant freely, voluntarily, and understandingly
elected to remain silent and not present any evidence on his
own behalf, after consultation with his counsel.
was indicted by a Wake County Grand Jury on June 2, 2014, for
possession of a firearm by a convicted felon in violation of
N.C. Gen. Stat. § 14-415.1, and first degree murder in
violation of N.C. Gen. Stat. § 14-17. These charges were
joined for trial as they arose from the same acts of
Defendant. Defendant was tried before a jury beginning on
December 7, 2015, in Wake County Superior Court, the
Honorable Michael R. Morgan presiding. The jury returned
guilty of possession of a firearm by a convicted felon, for
which Defendant was sentenced to a term of 17 to 30 months,
and guilty of second degree murder, for which he was
sentenced to a term of imprisonment of 328 to 406 months; the
sentence terms to run consecutively. Defendant gave oral
notice of appeal.
has two assignments of error asserted in this appeal. His
first assignment contests the introduction of a video
interview conducted by Detective Neighbors of Gibbes into the
State's evidence, and allowing said interview to be
played twice for the jury. His second assignment of error,
albeit unpreserved at trial, challenges supplemental jury
instructions given by the trial court when the jury
communicated that it was unable to reach a verdict after
three hours of deliberation. We take each in turn.
Video Recording of Witness' Interview
first assignment of error, Defendant contends that the trial
court erred by allowing the State to twice play for the jury
a video recording of its witness being interviewed by law
enforcement. Defendant argues that it was error for the trial
court to allow the video interview to be introduced as
evidence both substantively, and thereafter corroboratively.
In other words, it should have failed substantively, and
therefore failed corroboratively. We disagree.
we must note that "[e]vidence of an out-of-court
statement of a witness, related by the in-court testimony of
another witness, may be offered as substantive
evidence or offered for the limited purpose of
corroborating the credibility of the witness making the
out-of-court statement." State v. Ford, 136
N.C.App. 634, 640, 525 S.E.2d 218, 222 (2000) (footnotes in
original). "Although the better practice calls for the
party offering the evidence to specify the purpose for which
the evidence is offered, unless challenged there is no
requirement that the purpose be specified." Id.
"If the offering party does not designate the purpose
for which the evidence is offered, the evidence is admissible
if it qualifies either as corroborative evidence or competent
substantive evidence." Id. (citing State v.
Goodson, 273 N.C. 128, 129, 159 S.E.2d 310, 311 (1968);
State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d
728, 735 (1989)).
Introduction of Recording as Hearsay Exception
first argues that the trial court erred in allowing the video
interview to be introduced as substantive evidence and played
for the jury when the State's witness, Gibbes, was unable
to recall any of the statements he made to Detective
Neighbors soon after Defendant had shot and killed Jackson.
Defendant argues that the State introduced the video
interview pursuant to Rule 612 of the North Carolina Rules of
Evidence as a 'present recollection refreshed', and
in allowing it to do so, the trial court erred. However, in
light of the testimony of Gibbes, the arguments of counsel,
and the ruling of the trial court, the evidence was properly
introduced pursuant to Rule 803(5) as a hearsay statement
that fits within an exception to exclusion. Therefore, as
shown below, the trial court did not err, and this portion of
this alleged error is overruled.
time evidence is admitted, exceptions to the admission must
generally be preserved by counsel with an objection. N.C.
Gen. Stat. § 8C-1, Rule 103; N.C. R. App. P. 10(a)(1).
"In order to preserve a question for appellate review, a
party must have presented the trial court with a timely
request, objection or motion, stating the specific grounds
for the ruling sought if the specific grounds are not
apparent." State v. Eason, 328 N.C.
409, 420, 402 S.E.2d 809, 814 (1991) (citing N.C. R. App. P.
specific grounds for objection raised before the trial court
must be the theory argued on appeal because "the law
does not permit parties to swap horses between courts in
order to get a better mount in the [appellate court]."
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934). Furthermore, when counsel objects to the admission of
evidence on only one ground, he or she fails to preserve the
additional grounds for appeal, unless plain error is
specifically and distinctly argued on appeal. State v.
Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995)
(citing N.C. R. App. P. 10(c)(4)). For this issue, Defendant