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State v. Kimble

Court of Appeals of North Carolina

October 1, 2019


          Heard in the Court of Appeals 6 August 2019.

          Appeal by defendant from judgment entered 16 March 2018 by Judge Andrew Taube Heath in Mecklenburg County No. 16CRS200252, Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General, Marc X. Sneed, for the State.

          Glover & Petersen, P.A., by Ann B. Petersen and James R. Glover, for defendant-appellant.

          BERGER, JUDGE.

         On March 16, 2018, Shelton Andrea Kimble ("Defendant") was convicted of first-degree murder for killing Tyrone Burch ("Burch"). On appeal, Defendant contends that the State violated his Fourteenth Amendment right to substantive due process by failing to correct false testimony given by witness Sharon Martin ("Martin"). We disagree.

         Factual and Procedural Background

         On January 3, 2016, Defendant shot and killed Burch in the parking lot of a dance club in Charlotte, North Carolina. Martin testified that earlier that night, between 10:30 and 11:00 p.m., she arrived alone at the dance club and noticed Defendant was sitting at the bar. Martin bought Defendant a drink and the two went to the dance floor and continued to talk. Subsequently, Burch arrived at the dance club and met Martin near the dance floor. Martin testified that Burch was her boyfriend at the time of the shooting and that she had previously dated Defendant for eight years.

         Martin and Burch left to talk outside. Afterward, Defendant walked outside, and as he passed Martin and Burch, he said something, which prompted Burch to punch Defendant in the face. The two then fought for approximately 30-45 seconds. A bouncer and a patron of the dance club broke up the fight.

         The facts are disputed as to the exact circumstances that followed, but on appeal both parties concede that Defendant fired a gun multiple times at Burch causing fatal injuries. The bouncer testified that he observed Defendant go to his vehicle and subsequently fire a gun at Burch while Defendant chased after him. Martin testified that she saw Defendant open the driver's side door of his vehicle and that Defendant typically kept his gun in a pocket on the driver's side door. After firing his gun, Defendant ran to his vehicle, dropping his gun in the process, and drove home. Later that same night, Defendant turned himself in to authorities, and he was charged with murdering Burch.

         An autopsy of Burch's body showed multiple injuries consistent with gunshot wounds. One of the gunshot wounds was to the top back right side of his head, and the projectile traveled "almost straight down" through his head and lodged near the brain stem on the right side A second gunshot wound was to the right side of his neck, which had a similar trajectory as the projectile that entered near the top of Burch's head. This second projectile exited through the chest. Another gunshot wound was under his right underarm, and the projectile exited near his back shoulder. A fourth projectile entered near Burch's back left shoulder blade and lodged in his chest. The fifth projectile entered the back of his left thigh and exited through the front of the same thigh. A firearms and toolmark expert testified that the five projectiles recovered from the scene and from Burch's body were fired from the same firearm.

         Prior to trial, Martin met with prosecutors to prepare for her testimony. During the meeting, Martin was given the 35-page statement she had made to detectives on the day of the incident. Martin read the statement and informed the prosecutors that it reflected what had taken place on the night of the incident. In her statement, Martin told detectives that she did not see the shooting, but that she saw Defendant "holding a gun" and "running" towards Burch. After the meeting, prosecutors provided defense counsel a page and a half of notes that they had taken from the meeting with Martin.

         However, at trial Martin testified that she saw Defendant shoot Burch, saw Burch fall to the ground, and saw Defendant stand over Burch and shoot him. When challenged about her failure to tell anyone about witnessing the shooting, Martin testified that she had told a prosecutor those same details during a pre-trial meeting.

         Outside the presence of the jury, the State informed the trial court and defense counsel that during their pre-trial meeting, Martin had never told them that she had witnessed Defendant stand over Burch and shoot him. Defense counsel requested, in an attempt to correct any false evidence from Martin's testimony, that the State make a statement to the jury explaining that Martin had not informed the State that she had in fact witnessed Defendant stand over Burch and shoot him. The State replied that had they received new information, they would have turned it over to defense counsel in compliance with discovery rules and that any misunderstandings could be cured by cross-examination.

         The trial court did not require the State to enter into any stipulation or make a statement to the jury. It reasoned that this was not a statutory violation, but rather a "discrepancy between what the witness believes she told the State and what the State has recorded in their notes." The trial court then provided defense counsel the opportunity to further cross-examine Martin, which it declined to do.

          The jury found Defendant guilty of first-degree murder, and he was sentenced to life in prison. Defendant appeals, arguing that he was denied due process by the State's failure to correct Martin's false testimony. We disagree.


It is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Further, with regard to the knowing use of perjured testimony, the Supreme Court has established a standard of materiality under which the knowing use of perjured testimony requires a conviction to be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Thus, when a defendant shows that testimony was in fact false, material, and knowingly and intentionally used by the State to obtain his conviction, he is entitled to a new trial.

State v. Murrell, 362 N.C. 375, 403, 665 S.E.2d 61, 80 (2008) (citation, quotation marks, and brackets omitted).

         "Evidence that affects the jury's ability to assess a witness' credibility may be material." State v. Wilkerson, 363 N.C. 382, 403, 683 S.E.2d 174, 187 (2009) (citation omitted). "To establish materiality, a defendant must show a reasonable likelihood that the false testimony could have affected the judgment of the jury." State v. Phillips, 365 N.C. 103, 126, 711 S.E.2d 122, 140 (2011) (internal citation and quotation marks omitted). However, to the extent that a witness's testimony may have led jurors mistakenly to believe false evidence against the defendant, subsequent admissions during cross-examination may correct any misunderstandings elicited and allow the jury to assess a witness's credibility. See Wilkerson, 363 N.C. at 404-05, 683 S.E.2d at 188 (determining that "the State did not obtain defendant's conviction through the use of false testimony, nor did the State permit false testimony to go uncorrected" because "[t]o the extent that Mrs. Davis' testimony may have led jurors mistakenly to believe that she could not receive a benefit from her testimony against defendant, any misunderstanding was corrected by her subsequent admission during cross-examination that she hoped her sentence would be further reduced.").

         In State v. Phillips, the defendant asserted that the witness's trial testimony was false and material because "it contradicted the notes made of her pretrial statements and that the State benefited in both the guilt-innocence and penalty portions of the trial." 365 N.C. at 126, 711 S.E.2d at 140. Our Supreme Court disagreed with the defendant's argument and reasoned as follows:

Although Cooke's trial testimony is inconsistent with the notes taken by others during her pretrial interviews, the record does not establish whether Cooke's direct testimony was inaccurate, whether her pretrial interview statements were inaccurate, whether the notes of those interviews were inaccurate, or whether Cooke's recollection changed. At any rate, it is not apparent that Cooke testified falsely at trial or that her trial testimony conflicted in any material way with her pretrial statements. Moreover, any inconsistency was addressed in the presence of the jury by Cooke's subsequent cross-examination when she made the following pertinent clarification:
[Defense Counsel:] You testified that you do not recall [defendant] saying anything about I have nothing left to live for?
[Cooke:] Not on those terms, no.
[Defense Counsel:] Do you remember telling [Investigator] Kimbrell in this year that [defendant's] brother had been shot and he had nothing left to live for?
[Cooke:] I don't think that I put it quite that way, but I might have, but that is not the way that [defendant] actually, you know, said it.

Id. at 126-27, 711 S.E.2d at 140.

         In the present case, Martin testified on direct-examination that she saw Defendant stand over Burch and shoot him. On cross-examination, defense counsel used Martin's 35-page statement to refresh Martin's memory and to impeach her. The following exchange then occurred:

[Defense Counsel:] Okay. Now, you did not see the shooting, did you?
[Martin:] I seen him running with the gun shooting it.
[Defense Counsel:] Now, but didn't you tell the police a few hours after this happened back on January 3rd, 2016, you ...

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