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State v. Clonts

Court of Appeals of North Carolina

June 20, 2017


          Heard in the Court of Appeals 9 January 2017.

         Appeal by Defendant from judgment entered 19 June 2015, and orders entered 19 June 2015 and 29 February 2016, by Judge Jeffrey P. Hunt in Superior Court, Mecklenburg County No.14 CRS 229990.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N. Bolton, for the State.

          Hale Blau & Saad Attorneys at Law, P.C., by Daniel M. Blau, for Defendant.

          McGEE, Chief Judge.

         I. Factual Basis and Trial

         A. 28 July 2014

         Sam Babb Clonts, III ("Defendant") shot Aaron Brandon Allen ("Allen") on the evening of 28 July 2014. Defendant and Allen became friends while training together prior to deployment to Afghanistan; Defendant was in the Navy and Allen was in the Marine Corps. During their time together in Afghanistan, they became "almost like brothers." Allen left the military in 2011 and moved back to Mint Hill, North Carolina. Defendant left the military in early 2014, and moved into Allen's house in Mint Hill ("the house"). Denise Kathleen Whisman-Vazquez ("Whisman")[1] stopped in Mint Hill on 28 July 2014 to visit Defendant, a friend from the Navy, while on her way to Jacksonville.

         The following alleged facts are taken from: (1) a video interview Defendant gave to police the night of 28 July 2014, which was played for the jury at the 16 June 2015 trial; (2) deposition testimony given by Whisman on 23 March 2015; and (3) Allen's testimony at trial. We present the relevant statements and testimony from all three individuals because the similarities and differences between their statements are particularly relevant to our review.

         Defendant and Whisman were having drinks at Whisman's hotel when Defendant texted Allen and asked Allen to join them. Whisman had never met Allen, but she had heard a lot about him from Defendant, and testified: "In fact, I [honestly] believed they were brothers." Allen left work at approximately 6:30 p.m. and joined Defendant and Whisman at the hotel. All three possessed valid concealed carry permits and were armed. Allen visited with Defendant and Whisman before he left to return home in his Jeep. Shortly thereafter, Defendant drove Whisman in her Jeep back to the house, and stopped on the way to purchase beer. At the house, Allen joined Defendant and Whisman on the porch and all three drank some beers.

         All three continued to drink and things were, according to Allen, "happy go lucky, joking around" until later in the night, when Whisman stated that she wanted to go back to her hotel. Defendant stated that, because he was planning to drive Whisman back to her hotel that night, he had stopped drinking at approximately 9:30 p.m., but that Whisman was intoxicated at the time she asked to leave the house.

         Allen testified concerning Whisman: "She was happy throughout the whole night, obviously became more and more intoxicated throughout the night, and she wanted to leave." Allen testified that because of Whisman's condition, he "asked her to stay, stick around. I told her she could sleep [anywhere in the house], just stay here. She agreed." According to Allen, after the first time he asked Defendant and Whisman not to leave, they all "continued to drink and laugh and joke and have fun." Allen testified that only later did Whisman again state her desire to leave, and that "[Defendant] and [ ] Whisman decided they were going to go jump in [Whisman's] Jeep." Allen believed at the time Whisman attempted to leave that she was impaired, but that Defendant was not impaired. However, Allen did not want Defendant to drive anywhere at that time because Defendant had been drinking. Neither Whisman nor Defendant corroborated Allen's testimony concerning this initial encounter.

         Whisman testified that, after a few hours of drinking at the house, she wanted to return to her hotel room. When she told Defendant and Allen that she wanted to leave, Defendant "was cool with it. And I guess [Allen] was okay with it until it was a reality, and then he wasn't okay with it anymore." She testified that Allen did not want either her or Defendant to drive because they had both been drinking, but that Defendant had stopped drinking earlier "because he was going to drive back to the hotel, and so he got into the driver's side."

         Defendant stated that once Whisman told him she wanted to leave, Defendant told Allen goodbye and got into the driver's seat of Whisman's Jeep, while Whisman got into the front passenger seat. After Defendant started the Jeep, Allen came "storming out, " and the mood of the evening, which had up until then been jovial, changed dramatically. Defendant said that Allen was screaming at them and "it was bad." Defendant had the Jeep in reverse, ready to leave, when Allen approached the Jeep and told Defendant to "turn off the f*cking truck." Defendant claimed Allen was "irrational." At this point, Defendant stated that Whisman "started to freak, quite literally."

         According to Whisman's testimony, after she said she wanted to leave she got into the passenger side of her Jeep, "[a]nd then [Allen] . . . walked over . . . and was very angry and was trying to tell [Defendant] not to drive." Whisman testified that Allen yelled something like "where the f*ck do you think you're going." She said that Allen "seemed very agitated that we were leaving" and was yelling at Defendant; Defendant than "got out of [Whisman's] Jeep and tried to calm him down."

         Allen testified that he may have told Whisman at some point in time that she was "not going to leave[, ]" but that Whisman and Defendant attempted to leave anyway. Allen testified that he was by his porch when he heard the Jeep doors "open, " so he "grabbed [his] gun, met them out there." Allen testified that Defendant and Whisman had their guns with them, too. He stated: "Why? I don't know. We just did."[2] Allen testified that it was not Defendant who was in the driver's seat; that it was Whisman who was going to drive Defendant back to the hotel.

         Allen testified that he went to the driver's side of Whisman's Jeep, reached into the vehicle, and retrieved the keys. He was not certain "if [he] pulled 'em out of the ignition or if [Defendant] handed 'em to me." Allen testified that he might have asked Whisman "What the f*ck are you doing?" Allen testified he threw Whisman's keys into the woods near his recycling container, whereupon Whisman "freaked out."

         Defendant stated that, in response to Allen's behavior, he took the key out of the ignition, exited the Jeep, and tried to talk to Allen and calm him down. Defendant stated that Whisman then got out of the passenger seat, recovered a spare key from a bag in her Jeep, climbed into the driver's seat, and placed the spare key in the ignition.

         Whisman testified that she made it clear to Allen that she wanted to leave, but "the more I said it, the more irritated [Allen] got, so I decided to get into the driver seat because I was bound and determined that I was going to leave." Whisman testified that, once she sat down, Allen "pulled me out of the driver seat of my Jeep, lifted me out of the driver seat of my Jeep, threw me up against a tree and was screaming at me" saying "how dare you try to leave." Whisman stated that Allen's hands were "[a]round my shoulders and neck." Whisman testified that she was terrified because she had been in "a situation like that before."

         According to Defendant, after he had exited Whisman's Jeep and Whisman had gotten into the driver's seat, Allen "came up, shoved me out of the way, grabbed [Whisman] by the hair, [and] pulled her out onto the ground." Defendant stated that at first, while on the ground, Whisman was laughing, perhaps thinking that Allen was joking around. However, Whisman's laughing "infuriated" Allen, and he grabbed Whisman and "had her up against a tree, hand around her throat, faces nose to nose, asking her if she thought it was a f*cking joke." Defendant stated that at this point Whisman was "hysterical. I'm trying to break them up, but - it might be cowardly -but I knew that he would go off. And, with her in close proximity, that would not be a very good thing." Defendant stated that Whisman "got free" and started "backing away, down towards the pond."

         According to Whisman, Defendant "got [Allen] away from me and was trying to calm me down[, ]" then she walked around the side of the house while Defendant and Allen were still up at her Jeep. Whisman "just stood around on the side of the house. I was very upset and [Defendant] was calming [Allen] down." She testified that at one point Allen was "crouching and calling me basically like I was his dog, telling me that it was okay, come here, patting his leg."

         Allen testified that he did not remove Whisman from her Jeep, that after he threw her keys she got out herself "and she took off screaming." According to Allen, "Whisman jumped out of the Jeep, took off running down . . . on the left side of the house. She screamed, 'Sam [Defendant], don't let him do this to me again.'" Allen testified that Whisman ran in back around his house "into the dark[.]" Allen also denied pushing Whisman up against a tree or screaming right in her face once she was out of her Jeep. Allen testified that at that point he disarmed himself by placing his weapon on his chicken coop because "'[o]bviously, for some reason she was afraid of me[, ]'" then he moved toward Whisman and "tried to reason with her." However, Allen later testified that, after Whisman ran off, he remained standing by the chicken coop for a minute then walked back to his porch. Allen told police investigators that he disarmed himself because Whisman was "screaming she was afraid for her life." The State introduced photographs of Allen's handgun and magazine on top of his chicken coop, which was positioned between his house and Whisman's Jeep.

         Allen testified that Whisman screamed: "Sam [Defendant], don't let him do this to me again" either once or twice, but mainly she was screaming: '"Help." Allen testified that he did not know what Whisman meant by: "Sam [Defendant], don't let him do this to me again." Allen denied clapping his hands together and calling for Whisman to come back like he was calling to a dog. Allen testified that Defendant went into the woods to find Whisman, and she eventually stopped screaming.

         Defendant stated that he decided to go find Whisman, and he located her near the back of the house. He stated that he was going to walk Whisman to Allen's parent's house, which was nearby, "because I didn't have a vehicle to drive her out of there." Defendant walked Whisman around the house and back to the driveway "to get back to the road" to walk her to Allen's parent's house, but Allen came out and said: "No, you're not going anywhere. You need to go to sleep or we're gonna have a f*cking problem."

         Allen testified that while Whisman was in his back yard, and

after I announced that I had unloaded my gun and put it down, she still kept screaming. . . . I tried to reason with [her]. It had irritated me. [Defendant] had walked around the left side of the house to try to calm [her] down. I walked onto the deck. [ ] Whisman and [Defendant] walked around. I walked back out into the driveway. [Defendant] c[a]me up to the back end of my Jeep there.

         Whisman testified that, after she walked beside the house, Defendant came down to where she was standing "and tried to calm me down. He walked me back up towards the front of the house [near] my Jeep. I got back into the passenger side of the Jeep, and [Allen] started screaming at [Defendant] again, and they walked over toward [Allen's] Jeep." Allen testified that he remembered Defendant meeting him at the rear of his Jeep, and remembered telling Defendant to: "Fix your bitch[, ]" and "get her under control."

         Defendant said Whisman was still hysterical, and Allen told her to "sit down" but she refused. Defendant stated that Allen then said to him "you and I are going to have some words, " and that Allen got "in my face, nose to nose, says why are you choosing this bitch over me, etc, etc." Defendant stated that he had his gun in his right-side waistband, so he kept his hands "firmly in [his] pockets" and he "wasn't going to move them." Defendant stated that he did this to be non-threatening, and out of fear that Allen might either take Defendant's gun away from him, or retrieve his own gun from the chicken coop.

         Allen testified that he told Defendant: "You need to tell your bitch to shut up." He said he called Whisman a "bitch" twice. Allen testified that Defendant "chest-bumped" him and said "'[d]on't call her a bitch[, ]'" so Allen gave Defendant a "right-hook . . . to the face[.]" Allen testified that he hit Defendant because Allen was just "trying to help" and Defendant was being "disrespectful" by bumping him in the chest. Allen testified that he was shorter than Defendant, but a physically "bigger guy, " and that he knocked Defendant to the ground with "one punch." Allen testified that he turned to walk back to the house but Defendant pushed him in the back, so he turned and "I hit him again, " and Defendant "went down."

         Defendant stated that once he and Allen were at the rear of Allen's Jeep, Allen "chest pushed" Defendant a few times, and asked him "you want to go [meaning fight with Allen]?" Allen then hit Defendant with a closed fist two times to the left side of Defendant's face. Defendant said his hands remained inside his pockets and he did not retaliate, hoping that Allen would calm down and go inside the house. Defendant stated that Allen was "infuriated at this point[, ]" and that Defendant had seen Allen in bar fights and "they're not pretty." Defendant stated about Allen: "I can't match him physically, I just can't." Defendant said that he fell backwards, but not down, in response to Allen's punches.

         Whisman testified that Defendant's hands were at his sides when he was talking to Allen, and when Allen punched Defendant. Whisman did not believe Defendant had done anything to provoke Allen, or "make any type of aggressive gesture towards" him. Whisman saw Defendant fall against Allen's Jeep, but did not see Defendant fall to the ground. Whisman further stated that because she was getting out of her Jeep to try and assist Defendant, she did not know if Allen hit Defendant a second time. As Whisman was heading over to the two men, Defendant was not fighting back, and as she got near, Allen turned his attention to her.

         Allen testified that, after the second time he hit Defendant, which knocked Defendant back to the ground, Whisman came up to him and said: "'Don't hit him. Hit me.'" According to Allen, once Whisman approached him, "some words were exchanged, " and "I got hit in . . . the right side of my head [by Whisman.]" Allen testified that, in response: "I believe I had pushed [Whisman] twice." He testified that first he "gave [Whisman] a little shove to get a little bit of distance between us[, ]" but she "stepped back into it" so he stepped toward her and gave her another stronger push with two hands. Allen testified that Defendant was behind him at this time, that after his second push of Whisman, she ended up "in the middle of [a] green patch" in his yard, but that she never fell to the ground.

         According to Allen, after the second time he pushed Whisman: "I heard bang bang. All I remember is going down to my knees and then bang again, and that's the round that knocked me over." Allen testified that Defendant screamed Allen's name just before the first shot was fired. Allen testified that the last time he saw Whisman after having been shot, she was standing about fifteen to twenty feet away from him.

         According to Defendant, after Allen punched him twice, Whisman was to Defendant's left and Allen then "changed targets" and "went after [Whisman] and had his hand around her throat again and leg-swept her onto the ground." He said this all happened very fast, and he heard a "smack" and Allen had Whisman on the ground. According to Defendant, Allen had "one hand full of [Whisman's] hair, " and had his other arm drawn back and ready to strike downwards with a balled fist.

         Defendant stated that "at this point [when Allen had Whisman on the ground] I decided that he was going to kill either of us, or at least seriously injure, so I made the split instant decision to defend myself and her." Defendant said he drew his weapon from his waistband, "lined up my sights, I screamed [Allen's] name" at least twice. "When I lined up my shot, because I did not want to hit her, I had his full frontal chest." Defendant stated that he wanted to make sure he did not hit Whisman, but as he fired Allen had turned to "deliver a strike" to Whisman so Allen's "back ended up to me[.]" Defendant stated that he was standing three to seven feet from Allen when he fired, and that his weapon jammed after the third shot.

         Whisman testified concerning those final moments:

[Defendant and Allen] were standing by [Allen]'s Jeep and I was watching them, and [Allen] hit [Defendant]. And [Defendant] was leaned up against the side of [Allen's] Jeep, and I got out of my Jeep to step between them. And while I was between them [Allen] was screaming at me, and he pushed me to the ground and I felt my ankle pop. And I buried my face in the ground and covered my head with my arms.
. . . .
[Defendant]'s back was to us when I stepped up between them because he was leaning against the Jeep, and [Allen] was facing [Defendant].
Q. And you said that [Allen] shoved you, is that correct, of what happened next?
A. Yes.
Q. And with one hand, with two hands? How did he shove you?
A. I believe he grabbed my shoulder and threw me to the ground.
Q. And you said that you then fell to the ground and put your hands over your head; is that correct?
A. Yes.
Q. And what happened next?
A. I was really afraid that he was going to - he was going to kill me, so I stayed in that position. And then I heard three rapid fired shots and I stood up and I thought it was me that was shot. And I looked behind me and [Allen] was on the ground calling Doc, Doc, [3] I've been hit; I can't feel my legs.

Whisman testified that, when Allen threw her to the ground, she landed so hard that her "glasses came off[, ]" then Allen "came towards" her. Whisman stated that she covered her head because she "thought [Allen] was going to kick my face in." Whisman testified that she could not remember for certain if Allen was touching her when she heard the shots, but she did not believe he was. Whisman stated that the last thing she remembered seeing before the shots were fired was Allen "over the top of me." Whisman testified that she did not believe Allen would have stopped attacking her if Defendant had not intervened.

         Defendant stated that, after the shooting, the "air [was let] out of the balloon. He was my friend again." Defendant was not certain Allen was not a continuing threat, so he grabbed Whisman's arm and pulled her away to a safe distance, then called 911. Defendant said that Allen was crying, asked him to call 911, and asked Defendant to give him a hug. Defendant stated that he placed his weapon on the ground and went to Allen, found his wounds, and started administering first aid, which he continued doing until police arrived and took over.

         Allen testified that he could not remember asking Defendant to "[g]ive me a hug" after he was shot, but that he did not doubt that he had said it. Whisman testified that, after the shooting, Defendant called 911 and told her to "go inside and get his med bag." Defendant then administered aid to Allen until the police arrived.

         When Mint Hill Police Officer Joshua Kelly ("Officer Kelly") arrived at the scene of the shooting with two other officers, he first saw Defendant "administering first aid" to Allen. Defendant alerted Officer Kelly to the presence of his handgun seven to ten feet away by pointing and saying: "The weapon is over there.'" Defendant also pointed out where another handgun was located, and informed the officers that that weapon had not been fired. Officer Kelly testified that, after Defendant was arrested, he transported Defendant to jail, and that Defendant was not showing obvious signs of impairment.

         Allen was taken to the hospital, where he remained for a "month and a half." The bullets remained in Allen's body, and he remained wheelchair-bound at the time of trial, unable to walk, with a diagnosis of permanent partial paralysis.

         Mint Hill Police Detective Keith A. Mickovic ("Detective Mickovic") interviewed Defendant at the police department just before midnight on 28 July 2014. Defendant signed a waiver of his Miranda rights. Detective Mickovic testified, that after his nearly two hour interview with Defendant, he did not believe Defendant to be "in the least" intoxicated.

         B. Pre-Trial Motions, Deposition of Whisman

         Relevant to this appeal, Defendant notified the State that he would be pursuing a claim of defense of others. The State filed a "Motion to Depose Witness Prior to Trial" on 25 February 2015, claiming that Whisman was "an essential witness, " that the "State intends to call the above-captioned matter for trial the week of June 14, 2015, " and that Whisman would be "unavailable" to attend trial at that time because she was currently under orders of deployment lasting from 19 February 2015 until 31 December 2015. Arguing that the trial court "has the inherent authority 'to do all things that are reasonably necessary for the proper administration of justice' and [ ] Whisman's testimony is essential for the proper administration of justice in the above-captioned case[, ]" the State requested that "the certified transcript and/or video of the deposition . . . be admissible at trial in lieu of [ ] Whisman's live testimony, pursuant to NCGS § 804(b)(1), as well as NCGS § 8-85." In anticipation of Defendant's request that the trial be continued until Whisman's deployment ended, the State argued that her "currently-scheduled and past international deployments suggest that, even if the State were to wait until she returns from her currently-scheduled deployment, she will always be in danger of being deployed overseas yet again."

         Defendant responded to the State's 25 February 2015 motion on 27 February 2015, opposing the request to allow a pre-trial video deposition of Whisman's testimony, and opposing being deprived of the right to confront Whisman in person at trial. Defendant argued that the 14 June 2015 date was the first time the matter had been scheduled for trial, that Defendant "would consent to a continuance of the trial until such time that Whisman is available[, ]" and that Defendant "would further waive any speedy trial rights if the matter were continued." Defendant further argued that since Whisman had already been deployed - beginning 19 February 2015 - having her return to North Carolina during deployment for a deposition would not be any different than having her return for trial. Defendant argued that "the State does not have the authority to conduct pretrial depositions of witnesses" without Defendant's consent, citing our Supreme Court's opinion in State v. Hartsfield.[4] Defendant disputed the State's assertion that the trial court's "inherent authority 'to do all things that are reasonably necessary for the proper administration of justice' would . . . extend to allow the prosecution to take a deposition of one of its witnesses when resetting the trial date would resolve the issue." Defendant finally argued that to deprive him of his right to question Whisman in front of the jury, when she could be made available, violated his Sixth Amendment rights as guaranteed by the Confrontation Clause, as well as the corresponding rights guaranteed him by the North Carolina Constitution.

         Judge W. Robert Bell heard the State's motion on 4 March 2015, and entered an order 9 March 2015. At the hearing, the State stated: "I don't see how the state can get this case done without having [Whisman] here." The trial court ruled that because Whisman would likely be deployed out of the country "[b]eginning in early April 2015 . . . until December 2015[, ]" and because she would, after that date, remain "in danger of being deployed overseas again[, ]" Whisman should be deposed the week of March 23 in case "she is unavailable' according to NCGS § 8C-1, Rule 804(a)(5) when the matter is called for trial."

         Whisman was subpoenaed, returned to North Carolina from Camp Pendleton, in California, and was deposed 23 March 2015 in the presence of Judge Carl Fox. Defendant again objected to the taking of Whisman's deposition. Following the deposition, the following discussion occurred:

[THE STATE]: Your Honor, at this time the State would ask this hearing be terminated and ask that [ ] Whisman be allowed to go back to serving our country.
THE COURT: All right. Do you have any objection to releasing the witness?
[DEFENDANT'S COUNSEL]: Well, we would in light of our objections to this proceeding. If she's under a subpoena we would ask that she not be released from her subpoena. [Emphasis added].
THE COURT: Well, you do agree that this terminates the deposition, though.
[DEFENDANT'S COUNSEL]: This terminates this proceeding, yes, Your Honor.
THE COURT: All right. Then the Court notes the defendant's objection and the witness is released from her subpoena to go.
[THE STATE]: Thank you, Your Honor.

         The State filed "Notice of Intention to Admit Prior Testimony" on 22 May 2015, "because the State anticipate[d] Whisman being 'unavailable' for trial[.]" Ten days after filing this notice, 1 June 2015, the State apparently deposited a subpoena in the mail, destination Darwin, Australia, demanding Whisman's appearance at trial. This matter came to trial on 15 June 2015, in front of Judge Jeffrey P. Hunt. The State filed a "Motion in Limine" that same day moving the trial court "to allow the State to introduce the transcript and/or video recording from former testimony of [Whisman], an unavailable yet critical witness, during trial pursuant to N.C. G.S. § 8C-1, Rule 804(b)(1)."

         C. Trial

         The State's motion in limine was heard the morning of 15 June 2015, the first day of Defendant's trial. The State did not argue any basis in support of its motion beyond that contained in its written motion. Defendant again objected, reiterating his belief that the State had no authority to depose its witness prior to trial without Defendant's consent, that "[a]s far as her unavailability, my understanding is that, if the request was made to her command to have her come, they would make arrangements[, ]" that Defendant had objected to Whisman being released from subpoena after her deposition, but "she was released and we're here today [, ]" and that "[a]ll we had to do was continue the trial . . . and she would be here." The trial court granted the State's motion based upon the following relevant findings:

I'm going to enter the following order. That the matter came up on motion of the State to use - I believe it's 804. Is that the rule - to use 804, testimony in the form of a video of a - of an indispensable witness who's in the military. The Court heard argument of both sides regarding the availability or unavailability of said witness. The Court finds the witness is in the military and is stationed outside of the State of North Carolina currently. May be in Australia or whereabouts may be unknown as far as where she's stationed.

         Based on these findings, the trial court ruled that Whisman was unavailable, and that Defendant's confrontation rights would not be violated by allowing the video of Whisman's deposition to be entered into evidence in lieu of her live testimony before the jury. Whisman did not appear at trial, and her video deposition testimony was entered into evidence in lieu of her live testimony. The evidentiary portion of Defendant's trial concluded on 18 June 2015.

         Closing arguments were delivered on 19 June 2015. In its closing argument, the State focused primarily on the following evidence. Allen was unarmed when Defendant shot him three times in the back, that "the crux of this entire case [was] did [Defendant] use excessive force" in response to Allen's actions, thus negating any claim of defense of other. The State argued: "Three shots to the back of an unarmed man who [D]efendant knew to be unarmed, excessive force." The State argued that, even if the jury believed Defendant's first shot was reasonable, the second and third shot were clearly excessive. The State argued that Defendant gave conflicting statements during his interview with Detective Mickovic concerning the moments right before he shot Allen. Specifically, the State argued that Defendant first said Allen had a handful of Whisman's hair, then that Allen was standing over Whisman when he was shot, and finally, that in his written statement Defendant said Allen had his hands around Whisman's throat.

         The State conceded certain evidence from Whisman and Defendant, and thereby acknowledged that Allen had not been completely truthful in his own testimony. Specifically, the State argued:

[W]e know when the ruckus started near [Whisman]'s Jeep, both [Whisman] and [D]efendant tell us that . . . Allen had [Whisman] up against the tree briefly. [D]efendant said that [Allen] had her by the throat. [Whisman] said it was sort of the shoulder/neck area. [ ] Allen did not say this happened, but, again, the two of them pretty quickly after this happened said that that's what happened, so I think you could reasonably assume that there was something like that going on.

         The State informed the jury that it generally believed Whisman to be a credible witness. The State then went on to explain why it believed Whisman was screaming: "Sam [Defendant], don't let him do this to me again."

Also on the stand, pretty significant, clearly she'd been through something like this. Remember, [ ] Allen testified he heard her saying, "Don't let him do this to me again." There's no dispute [ ] Allen had never met [ ] Whisman before. They had never met once. They talked on the phone maybe a couple times, if even that. So she was clearly going somewhere in her own mind that was not having anything to do with [ ] Allen. We know that. (Emphasis added).

         The State argued that Whisman was not pleading with Defendant to prevent Allen from assaulting her again, but was reliving some incident in her past that made her unreasonably fearful that evening.

         The State told the jury to focus on Defendant's intent, arguing: "You don't get to empty a weapon or attempt to empty a weapon in someone's back and say you weren't trying to kill them." The State focused on the elements of defense of another - whether it was "reasonable" for Defendant "to perceive this kind of harm based on the fact that [Allen] had touched [Whisman] three times[, ]" and whether Defendant actually felt that Whisman was in imminent danger of death or great bodily harm. The State's theory on Defendant's motive to shoot Allen was revenge: "[W]as he really thinking I just got punched twice in the face and now I've got my chance? Because remember, right before he shot [ ] Allen he'd been punched twice in the face. Didn't hit back." The State further argued that firing three shots at Allen constituted excessive force and, therefore, prevented Defendant from being able to rely on defense of another.

         In Defendant's closing, he focused on the testimony of Whisman, Defendant, Officer Kelly, and Detective Mickovic that Defendant was not intoxicated the night of 28 July 2014. "[Defendant] and [Whisman] go to the Jeep and [Defendant] is going to drive because he had stopped drinking and he says that and the officers said that he was sober. He was using common sense. That makes sense, he's the designated driver. His car is back at the hotel." Defendant focused on the fact that Allen's own rules were that you did not mess with guns when you'd been drinking, but that when Allen went out to confront Defendant and Whisman about leaving, he picked up his handgun and brought it with him. Defendant contended that, after Allen pulled Whisman out of her Jeep and onto the ground, she laughed, and this angered Allen, who then "takes her and puts her up against that tree and she freaks out." That once Defendant came to assist her, Whisman ran "into the night, the woods, and she's screaming, 'Don't let him do this to me again.'" Defendant recalled Allen's testimony that he didn't know what Whisman meant by "don't let him do this to me again, " but suggests: "let's use our common sense. [Allen] pulls [Whisman] out of the car and puts her up against a tree. Maybe don't let [Allen] attack me again, does that make sense?"

         Defendant argued that Defendant tried to remove Whisman from the scene, and thus end the altercation, but when they came around the other side of the house, Whisman "starts to scream again because [Allen] is waiting for them because he wants to stop them[.]" Defendant further argued:

Some things everyone agreed on, [Allen] hit [Defendant], either they had chest-bumped or [Defendant] was like this trying to reason with his brother. [Whisman] comes to help [Defendant] because she's not going to sit there and watch her friend get hit. And [Allen] turns his attention to her, and he pushes her once according to her testimony, maybe twice according to [Allen], twice according to [Defendant], and she ends up on the ground. She is covering her head because she's afraid of what he is going to do. This man that she has never met has changed. Everything was fine until it's time to go. He assaults her when he pulls her from the Jeep and assaults her when he puts her up against the tree, and now it's even more vicious because he has punched and put [Defendant] on the ground and now it's her turn. The violence is escalating. And before he can inflict gross bodily injury, before he can kick her face and before he can kill her [Defendant] shoots three times.

         Following the closing arguments, the trial court instructed the jury, inter alia, on assault with a deadly weapon with intent to kill inflicting serious injury, and on the lesser included offense of assault with a deadly weapon inflicting serious injury. Concerning the "intent to kill" element of assault with a deadly weapon with intent to kill inflicting serious injury, [5] the trial court instructed the jury: "The State must prove that [D]efendant had the specific intent to kill the victim." "You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom." The trial court also instructed the jury on defense of another:[6]

[You must] also consider whether [D]efendant's actions are excused and [D]efendant is not guilty because [D]efendant acted in defense of a third person. The State has the burden of proving from the evidence beyond a reasonable doubt that [D]efendant's action was not in defense of a third person. If the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary or reasonably appeared to be necessary to protect a third person from imminent death or great bodily harm and the circumstances did reasonably create such a belief in [D]efendant's mind at the time [D]efendant acted, such assault would be justified - such assault would be justified by defense of a third person. You the jury determine the reasonableness of [D]efendant's belief from the circumstances appearing to [D]efendant at the time.
Now, a defendant does not have the right to use excessive force. [D]efendant had the right to use only such force as reasonably appeared necessary to [D]efendant under the circumstances to protect a third person from death or great bodily harm. In making this determination, you should consider the circumstances as you find them to have existed from the evidence, including the size, age and strength of [D]efendant and the third person as compared to the victim, the fierceness of the assault, if any, upon the third person, whether the victim had a weapon in the victim's possession and the reputation, if any, of the victim for danger and violence. (Emphasis added).

         The jury found Defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury on 19 June 2015. Defendant filed a motion for appropriate relief ("MAR") on 29 June 2015, then filed an amended MAR on 15 December 2015, arguing that "the trial court erred by permitting the State to introduce a video deposition of a witness rather than calling that witness live at trial" in violation of Defendant's rights under the North Carolina and United States Constitutions, that the trial court erred by failing to instruct the jury on the doctrine of imperfect self-defense, and that there was insufficient evidence to have convicted Defendant. The trial court denied Defendant's MAR by order entered 29 February 2016. Defendant appeals.

         II. Analysis

         A. Whisman's "Unavailability"

         In Defendant's first argument, he contends the trial court erred by finding Whisman "unavailable" for the purposes of N.C. Gen. Stat. § 8C-1, Rule 804(a)(5), and allowing her deposition testimony to be presented instead of requiring her live testimony at trial. Defendant further argues that depriving him of his right to confront Whisman in front of the jury violated the Confrontation Clause of the Sixth Amendment of the United States Constitution, as well as his rights under Article I, Sections 19 and 23, of the North Carolina Constitution. Defendant also contends that the trial court erred in denying that portion of his amended MAR based upon the above arguments. We agree.

         1. Standards of review

         Rule 804 of the North Carolina Rules of Evidence allows prior testimony of a witness to be introduced at trial in lieu of the live testimony of that witness in certain circumstances, including:

         The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. - Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

N.C. Gen. Stat. § 8C-1, Rule 804(b) (2015). Our Supreme Court has discussed how Rule 804 limits when a witness may be declared "unavailable, " and the State relied upon the following condition - (5) - to argue Whisman was unavailable:

Under the Rules of Evidence, a witness is considered "unavailable" when that witness:
. . . .
(5) Is absent from the hearing and the proponent of [her] statement has been unable to procure [her] attendance . . . by ...

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