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State v. Allbrooks

Court of Appeals of North Carolina

November 21, 2017

STATE OF NORTH CAROLINA
v.
CARLOUSE LATOUR ALLBROOKS, Defendant.

          Heard in the Court of Appeals 9 March 2017.

         Appeal by defendant from judgment entered 8 January 2016 by Judge James M. Webb in Superior Court, Moore County. No. 13CRS052702

          Attorney General Joshua H. Stein, by Senior Deputy Attorney General Alexander McC. Peters, for the State.

          M. Gordon Widenhouse, Jr., for defendant-appellant.

          STROUD, Judge.

         Defendant appeals his conviction and judgment for first degree murder. Where the written witness statement provided to police soon after the incident was presented by the State to corroborate her trial testimony, we find that the statement did not materially differ from her trial testimony, so the trial court properly allowed the statement for this purpose. The trial court also correctly instructed the jury only on first degree murder and not voluntary manslaughter, since the State's evidence was positive as to all of the elements of first degree murder, and there was no evidence that defendant acted in "the immediate grip of sufficient passion" to require instruction on a lesser offense. We therefore conclude that there was no error in defendant's trial.

         I. Background

         The State's evidence tended to show that on 12 September 2013, defendant was trying to get into Shannon Smith's home while she, her boyfriend Tyrone Allmond, and her children were inside. Ms. Smith yelled at defendant to leave and eventually threw a chair at him. Mr. Allmond told defendant to leave; the two continued to have "some words[, ]" and then defendant shot Mr. Allmond who died from his gunshot wounds. Defendant was indicted for murder and found guilty by a jury of first degree murder. The trial court entered judgment and sentenced defendant to life imprisonment without parole. Defendant appeals.

         II. Out-of-Court Statement

         An eyewitness had provided a signed statement to the police which the State later introduced at trial over defendant's objection. The statement read:

Tyrone Allmond was at my mother's house, Kimberly Durant . . . . It was me, my sister and my cousin, Tyrone. Ma was in bed. Me and my sister was in the room playing with my son. Tyrone came in and said, Cuz, come up to the top of the hill and let's talk. . . .
He told Ma bye and he left. I asked my sister Ty'Onika to watch my baby. So I got him ready for bed and put him down. It had to be after 10:00 o'clock p.m. but I remember telling my sister 10:47 when she asked about the time.
By this time Shanda, my cousin, had came down. I asked her to walk with me up to the top of the hill, and she did. . . . We were by Edwina Hainey's apartment when I heard Shannon, Tyrone's girlfriend, fussing. She was fussing about something on FaceBook and Twitter. She was loud and that drew attention.
A group of guys started getting closer. She was coming out of Ms. Edwina's apartment. As I was getting close Tyrone had walked up. Shannon was walking back to her apartment and Tyrone was following. He was like, Get the kids inside, wash them up. It's a school ...

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