in the Court of Appeals 27 March 2019.
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
F. Hedgpeth, Jr., for defendant-appellant.
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.
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
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."
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."
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
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
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.
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).
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)).
404(b) of the North Carolina Rules of Evidence provides, in
[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).
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