in the Court of Appeals 9 March 2017.
by defendant from judgment entered 8 January 2016 by Judge
James M. Webb in Superior Court, Moore County. No.
Attorney General Joshua H. Stein, by Senior Deputy Attorney
General Alexander McC. Peters, for the State.
Gordon Widenhouse, Jr., for defendant-appellant.
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
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.
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
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 ...