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State v. Thompson

Court of Appeals of North Carolina

April 16, 2019

STATE OF NORTH CAROLINA
v.
KOLTON JAMES THOMPSON, Defendant.

          Heard in the Court of Appeals 27 March 2019.

          Appeal by defendant from judgments entered 5 April 2018 by Judge Richard Kent Harrell in New Hanover County Superior Court Nos. 17 CRS 54155-56.

          Attorney General Joshua H. Stein, by Assistant Attorney General John P. Barkley, for the State.

          James F. Hedgpeth, Jr., for defendant-appellant.

          ARROWOOD, JUDGE.

         Kolton James Thompson ("defendant") appeals from judgments entered on his convictions for assault with a deadly weapon with intent to kill inflicting serious injury and possession of a firearm by a felon. For the reasons stated herein, we find no error in part, and dismiss in part.

         I. Background

         A New Hanover County Grand Jury indicted defendant for assault with a deadly weapon with intent to kill inflicting serious injury and possession of a firearm by a felon on 31 July 2017. The matter came on for trial on 4 April 2018 in New Hanover County Superior Court, the Honorable Richard Kent Harrell presiding. The State's evidence tended to show as follows.

         On 7 May 2017, the Wilmington Police Department responded to a report that a shooting had taken place at a nightclub called the Sportsman's Club. One of the responding officers, Officer Wade Rummings, testified that "[a] lot of people" were "hanging around the parking lot, walking out of the club[, ]" but "[e]veryone said they didn't see or hear anything." However, when he canvassed the scene, Officer Rummings "located a spent shell casing on the sidewalk leading north to the back parking lot." He also found a shell about five to ten feet from the shell casing. Eventually, the officers were able to determine the victim, Angeleos Williams, had been transported to the hospital to be treated for "a gunshot wound to his leg or thigh."

         The officers obtained a copy of the nightclub's security video that recorded the shooting. The video depicts "[a] subject[ ] walking . . . down the northwest side of the building towards the front of the . . . business. And then, again, shortly thereafter with the victim, walking alongside of the victim, and then the shooting occurred." Based on the video, Detective Lonnie Waddell ("Detective Waddell") identified the shooter as defendant. Detective Jeremy David Barsaleau ("Detective Barsaleau") and one other detective used this information to create a photo lineup that included defendant. The lineup was shown to the victim, who did not confirm the shooter's identity. However, Detective Barsaleau testified the victim's demeanor "appeared [as though] he wanted not to really identify the suspect, that -- that he knew who he was, but has had personal dealings with a brother of his in the past that had been killed because he had snitched and didn't want to become part of that as well."

         Based upon the videotape evidence, defendant was arrested on 9 June 2017. After his arrest, he underwent a custodial interrogation with Detective Barsaleau, a recording of which was entered into evidence at trial. During the interview, defendant acknowledged being present at the club the night of the shooting, but denied shooting the victim. When Detective Barsaleau showed defendant still photos of the surveillance video, he "dropped his head and basically said he was done."

         The jury found defendant guilty of both charges. The trial court imposed an active sentence of 110 to 114 months for the offense of assault with a deadly weapon with intent to kill inflicting serious injury, and 19 to 32 months for the offense of possession of a firearm by a felon, to run consecutively.

         Defendant appeals.

         II. Discussion

         On appeal, defendant contends the trial court committed plain error by allowing the State: (1) to present inadmissible character evidence; and (2) to elicit improper testimony and make improper comments during closing argument related to defendant's exercise of his right to remain silent.

         A. Character Evidence

         Defendant argues the trial court plainly erred by allowing the State to present character evidence of criminal conduct that was inadmissible under Rule 404(b) of the North Carolina Rules of Evidence, including evidence defendant had a history of gang membership, narcotics activity, and witness intimidation. We review for plain error because defendant did not object on this basis at trial.

In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C. R. App. P. 10(a)(4) (2019).

         "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). For our Court to find "that an error was fundamental, a defendant must establish prejudice-that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. (citations and internal quotation marks omitted); see also State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (explaining plain error arises when an error is "so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]" (citation and quotation marks omitted)).

         Rule 404(b) of the North Carolina Rules of Evidence provides, in relevant part,

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017). Significantly, "the Rule 404(b) list of other purposes is nonexclusive," as "Rule 404(b) is a rule of inclusion of relevant evidence with but one exception, that is, the evidence must be excluded if its only probative value is to show that [the] defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Weldon, __ N.C.App. __, __, 811 S.E.2d 683, 689-90 (2018) (citations and internal quotation marks omitted) (emphasis in original).

         i. Narcotics

         Defendant first argues the trial court erred when it failed to exclude Detective Waddell's testimony that he knew defendant and "had . . . direct observations of [ ] defendant as an interest in part of [his] job" "around the end of 2013, 2014 time period" when he "was working vice/narcotics, ...


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