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State v. Harris

Court of Appeals of North Carolina

May 2, 2017

STATE OF NORTH CAROLINA,
v.
JEROME HARRIS, Defendant.

          Heard in the Court of Appeals 22 February 2017.

         Appeal 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.

          BERGER, Judge.

         Jerome 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.

         After 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.

         Factual Background

         The 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.

         Tyshia 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 apartments shared.

         Once 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 [Ledbetter]."

         Defendant 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 Ledbetter.

         Several 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.

         As part 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.

         When 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.

         Dr. 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.

         Defendant 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.

         At trial, Defendant freely, voluntarily, and understandingly elected to remain silent and not present any evidence on his own behalf, after consultation with his counsel.

         Procedural Background

         Defendant 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 verdicts finding

         Defendant 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.

         Analysis

         Defendant 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.

         I. Video Recording of Witness' Interview

         By his 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.

         Initially, 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[1] or offered for the limited purpose of corroborating the credibility of the witness making the out-of-court statement.[2]" 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)).

         A. Introduction of Recording as Hearsay Exception

         Defendant 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.

         At the 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. 10(b)(1)).

         The 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 ...


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