in the Court of Appeals 6 August 2019.
by defendant from judgment entered 16 March 2018 by Judge
Andrew Taube Heath in Mecklenburg County No. 16CRS200252,
Attorney General Joshua H. Stein, by Assistant Attorney
General, Marc X. Sneed, for the State.
& Petersen, P.A., by Ann B. Petersen and James R. Glover,
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.
and Procedural Background
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.
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.
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.
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.
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.
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
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.
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.
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).
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
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
[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.
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,
[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