State v. Woodley ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-746
No. COA21-670
Filed 15 November 2022
Pasquotank County, No. 18 CRS 050635
STATE OF NORTH CAROLINA
v.
RAYMOND WOODLEY
Appeal by defendant from judgment entered 15 January 2021 by Judge Jeffery B.
Foster in Pasquotank County Superior Court. Heard in the Court of Appeals 21
September 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Robert
C. Montgomery, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel
Shatz, for defendant-appellant.
TYSON, Judge.
¶1 Raymond Woodley (“Defendant”) appeals from judgment entered after a jury’s
unanimous verdict convicted him of first-degree murder. We find no error.
I. Background
¶2 Trevon Blount, a nineteen-year-old black male, and his friend, Trevor
Debowski, left a party at a friend’s house around 9:30 p.m. on 3 May 2018. The pair
walked onto Holly Street in Elizabeth City. The men approached a crowd of people
on the street. Defendant, also a nineteen-year-old black male, was present in the
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2022-NCCOA-746
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crowd on the street, and began “fussing and arguing” with Blount. Defendant pulled
a gun from the waistband of his pants and began shooting at Blount as he ran down
the street.
¶3 An autopsy of Blount’s body revealed he had suffered nine .40 caliber gunshot
wounds, including three in his back, one in the back of his left shoulder, and one to
his head. Two of the shots to Blount’s back caused damage to the lungs, heart, and
liver, and were fatal. Blount’s body also displayed lacerations on his head and upper
extremities.
¶4 Charlie Unangst, who lived nearby, heard the commotion, witnessed the
shooting, and called 911 to report the shooting. Unangst reported the shooter was a
black male and wearing a Nike jacket.
¶5 Miranda Darlene Lane was sitting inside a car on Holly Street with Keion
Burnham and Angelina Silver smoking marijuana. Lane also observed the shooting
and reported seeing Blount and the shooter running past her car, Blount falling down,
and the shooter continuing to shoot. When the police interviewed Lane, she identified
Defendant as a black male with braided hair and the shooter with eighty to ninety
percent certainty in a photographic lineup.
¶6 Burnham also observed the shooting. He clearly saw the shooter’s silver and
black handgun, got a good look at the shooter’s face, and had “no doubt” it was
Defendant. Silver was seated in the backseat and did not see the shooter’s face, but
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testified she recognized Defendant as the shooter, based upon the appearance of his
hair.
¶7 Police arrived at the scene of the shooting shortly before 9:30 p.m. and observed
people running from the area where Blount’s body lay. Police found no weapon at the
scene but found and collected six Smith and Wesson .40 caliber shell casings. A K9
unit tracked a scent approximately three quarters of a mile to the back door of a
residence where Jamariaron Taylor lived.
¶8 Defendant’s cousin, Rashawn Cole, informed Police he was present with
Defendant on the night of the shooting. Cole described the shooting and how he and
Defendant ran to Taylor’s house after the shooting. While Cole and Defendant were
incarcerated, Defendant later threatened to “beat up” Cole because he had spoken to
law enforcement.
¶9 Police later learned Kimberly Ashley, Defendant’s sister, had contacted
Britney Spence, Blount’s sister, via Facebook Messenger almost eight months prior
to the murder. In the Facebook message, Ashley asserted Blount had taken money
from Defendant and had not provided him with a gun as was promised. Spence told
Blount about the message, but he denied any involvement. Defendant’s sister,
Ashley, had acquired a Smith and Wesson .40 caliber handgun prior to the murder.
¶ 10 While incarcerated and awaiting trial, Defendant described Blount’s murder
to his cellmate. Defendant said he went looking for Blount over “disrespect” with
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about a dozen friends, found and argued with him, became frustrated, and began
shooting. After emptying the “clip” in his weapon, Defendant caught up to Blount
attempting to escape, kicked his legs out from under him, and beat and kicked Blount
until Defendant was certain Blount was dead. Blount’s body displayed lacerations
on his head and upper extremities, in addition to the gunshot wounds, consistent with
Defendant’s post-shooting actions. Defendant went to Taylor’s house, where he
wrapped the gun in his windbreaker until he could retrieve it, and take it to Virginia.
Defendant was indicted by the grand jury for first-degree murder.
¶ 11 The jury unanimously found Defendant guilty of first-degree murder and he
was sentenced to life in prison without parole. Defendant appeals.
II. Jurisdiction
¶ 12 At trial and in briefing before this Court Defendant conceded the trial court’s
jurisdiction. However, Defendant’s appellate counsel at oral argument asserted: “In
preparing for this argument and thinking about it, I’m not sure that this isn’t a
[subject matter jurisdiction issue.]” The test of subject matter jurisdiction is well
settled.
¶ 13 “Subject matter jurisdiction involves the authority of a court to adjudicate the
type of controversy presented by the action before it[.]” State v. Petty, 212 N.C. App.
368, 371, 711 S.E.2d 509, 512 (2011) (citation omitted). “[A] trial court must have
subject matter jurisdiction over a case in order to act in that case[,] and [ ] a court’s
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lack of subject matter jurisdiction is not waivable and can be raised at any time”
including for the first time on appeal. Id. (internal quotation marks and citations
omitted). “The State bears the burden in criminal matters of demonstrating beyond
a reasonable doubt that a trial court has subject matter jurisdiction.” State v.
Williams, 230 N.C. App. 590, 595, 754 S.E.2d 826, 829 (2013) (citation omitted).
¶ 14 Subject matter jurisdiction “is conferred upon the courts by either the North
Carolina Constitution or by statute.” Petty, 212 N.C. App at 371, 711 S.E.2d at 512(citation omitted). Article IV, section 1 of the North Carolina Constitution vests the
judicial power of the State in a General Court of Justice. N.C. Const. art IV, § 1. The
General Court of Justice consists “of an Appellate Division, a Superior Court Division,
and a District Court Division.” N.C. Const. art IV, § 2.
A. Article IV, § 12 of the North Carolina Constitution
¶ 15 Pursuant to Article IV, section 12 of the North Carolina Constitution, “the
Superior Court shall have original general jurisdiction throughout the State.” N.C.
Const. art IV, § 12; see N.C. Gen. Stat. § 7A-271 (2021) (“The superior court has
exclusive, original jurisdiction over all criminal actions not assigned to the district
court division[.]”).
¶ 16 Our General Statutes provide:
Authority of Chief Justice. — When the Chief Justice of the
North Carolina Supreme Court determines and declares
that catastrophic conditions exist or have existed in one or
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more counties of the State, the Chief Justice may by order
entered pursuant to this subsection:
(1) Extend, to a date certain no fewer than 10 days after
the effective date of the order, the time or period of
limitation within which pleadings, motions, notices, and
other documents and papers may be timely filed and
other acts may be timely done in civil actions, criminal
actions, estates, and special proceedings in each county
named in the order. The Chief Justice may enter an
order under this subsection during the catastrophic
conditions or at any time after such conditions have
ceased to exist. The order shall be in writing and shall
become effective for each affected county upon the date
set forth in the order, and if no date is set forth in the
order, then upon the date the order is signed by the Chief
Justice.
(2) Issue any emergency directives that,
notwithstanding any other provision of law, are
necessary to ensure the continuing operation of essential
trial or appellate court functions, including the
designation or assignment of judicial officials who may
be authorized to act in the general or specific matters
stated in the emergency order, and the designation of the
county or counties and specific locations within the State
where such matters may be heard, conducted, or
otherwise transacted. The Chief Justice may enter such
emergency orders under this subsection in response to
existing or impending catastrophic conditions or their
consequences. An emergency order under this
subsection shall expire the sooner of the date stated in
the order, or 30 days from issuance of the order, but the
order may be extended in whole or in part by the Chief
Justice for additional 30-day periods if the Chief Justice
determines that the directives remain necessary.
N.C. Gen. Stat. § 7A-39 (b) (2021) (emphasis supplied).
¶ 17 Pursuant to N.C. Gen. Stat. § 7A-39(b)(2) then Chief Justice Cheri Beasley on
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14 December 2020 reinstated Emergency Directive 1 and modified and reinstated
Emergency Directive 10. See Order of the Chief Justice of North Carolina, (14 Dec.
2020), https://www.nccourts.gov/assets/news-uploads/14%20December%202020%20-
%207A39%28b%29%282%29%20Order%20Extending%20Emergency%20Directives
%201-5%2C%208-15%2C%2018%2C%2020
22%20%28Final%29.pdf?fwcb9Jh3QU_twAJOVr6Vpa0PuktaRX2c=#:~:text=Emerg
ency%20Directive%201,All%20superior%20court&text=the%20senior%20resident%
20superior%20court,and%20safety%20of%20all%20participants.
¶ 18 Emergency Directive 1 provides:
All superior court and district court proceedings, including
proceedings before the clerks of superior court, must be
scheduled or rescheduled for a date no sooner than 14
January 2021, unless:
a. the proceeding will be conducted remotely;
b. the proceeding is necessary to preserve the right to
due process of law (e.g., a first appearance or bond
hearing, the appointment of counsel for an indigent
defendant, a probation hearing, a probable cause
hearing, etc.);
c. the proceeding is for the purpose of obtaining
emergency relief (e.g., a domestic violence protection
order, temporary restraining order, juvenile custody
order, judicial consent to juvenile medical treatment
order, civil commitment order, etc.); or
d. the senior resident superior court judge, chief business
court judge, or chief district court judge determines that
the proceeding can be conducted under conditions that
protect the health and safety of all participants.
The examples provided above are not exhaustive.
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Id. (emphasis supplied).
¶ 19 Emergency Directive 10 provides: “No jury trials shall be conducted in the
superior or district court of any county for the next thirty (30) days, unless a jury has
already been empaneled.” Id.
B. Specific Commission
¶ 20 On 1 January 2021, Senior Associate Justice Paul M. Newby took his oath as
Chief Justice of North Carolina. Under the authority of the Chief Justice and order,
the Administrative Office of the Courts (“AOC”) issued a commission on 5 January
2021, to a superior court judge to preside over a Regular Session of Superior Court in
Pasquotank County, Schedule B, for the trial of Criminal and Civil cases calendared
to begin 11 January 2021. See Hinkle v. Hartsell, 131 N.C. App. 833, 836, 509 S.E.2d
455, 457 (1998) (“[J]udicial notice is appropriate to determine the existence and
jurisdiction of the various courts of the State; their terms or sessions, and judges; the
counties comprising the various judicial districts; and, any earlier proceedings in the
court involving the same case.” (citing 1 Kenneth S. Broun, Brandis & Broun on
North Carolina Evidence § 26, at 102 (5th ed. 1998)).
¶ 21 On 11 January 2021, Chief Justice Newby issued a letter to Judicial Branch
Stakeholders where a draft of an order of the Chief Justice of the Supreme Court of
North Carolina to be issued on 13 January 2021 and become effective on 14 January
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2021, including the expiration of the 14 December 2020 Emergency Directives,
wherein Emergency Directives 1 and 10 were ordered to expire.
¶ 22 Emergency Directive 10 did not divest the superior court of either its
Constitutional or Statutory jurisdiction. The superior court session was presided over
by a superior court judge, who was lawfully commissioned under the authority of the
Chief Justice for the superior court civil or criminal sessions beginning on 11 January
2021, which included this case by counsel’s prior agreement and consent. Jury
Selection began on 12 January 2021 and the jury was empaneled the following day
on 13 January 2021. This panel need not examine the validity of orders issued beyond
the term of the Chief Justice. The 5 January 2021 AOC commission for this session
and the 13 January 2021 order from Chief Justice Newby effectively repudiated and
superseded the 14 December 2020 order. Defendant’s challenge to the trial court’s
subject matter jurisdiction is without merit and overruled.
¶ 23 Appellate jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b)(1) and 15A-1444(1) (2021).
III. Issues
¶ 24 Defendant argues the trial court erred by: (1) denying his motion to continue;
(2) improperly excluding his father from the courtroom; (3) varying from the statutory
jury selection procedure; and, (4) admitting inadmissible evidence.
IV. Defendant’s Motion to Continue
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A. Standard of Review
¶ 25 A motion to continue generally rests within the trial court’s discretion and is
reviewable on appeal only for an abuse of discretion. State v. Thomas, 294 N.C. 105,
111, 240 S.E.2d 426, 431 (1978) (citations omitted). When the motion to continue is
based upon a constitutional right, “the question presented is one of law and not of
discretion, and the order of the court below is reviewable” on appeal. State v. Harris,
290 N.C. 681, 686, 228 S.E.2d 437, 440 (1976) (citations omitted).
B. COVID-19
¶ 26 In arguing her motion to continue, Defendant’s trial counsel asserted in the
wake of the COVID-19 pandemic she did not feel it was the “correct time” to proceed
to trial. She argued purported concerns for her own health would deprive Defendant
of effective assistance of counsel, and she would have to put herself at risk by being
in court and by going to visit the jail each evening to discuss the trial progress with
Defendant. During the hearing on the motion to continue, the following colloquy
occurred between Defendant’s counsel and the trial court:
DEFENDANT’S COUNSEL: And so, again, as I stated
earlier, when I agreed the last time to get the case tried, I
had no idea the numbers were going to go up. I don’t have
any control over that. And yes, I have grave concerns and
I do not believe that I can be effective for [Defendant]. I
have explained that to [Defendant]. I have explained that,
you know, my mind is all over the place as it relates [to
COVID-19].
THE COURT: You mentioned that a couple of times. Is it
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your position to the Court that you are emotionally and
mentally unable to proceed as counsel for this defendant?
DEFENDANT’S COUNSEL: At this point, yes.
THE COURT: Okay. And so you are calling into question
your own competency to represent him?
DEFENDANT’S COUNSEL: Yes, sir.
¶ 27 Following a recess, the trial court further inquired into Defendant’s counsel’s
preparation for trial and basis for apprehension:
THE COURT: [Defendant’s counsel], I’ve got a couple of
follow-up things I need to address with you before I rule.
Number one, notwithstanding the COVID issue that you
have raised, are you otherwise prepared to go forward with
this case?
DEFENDANT’S COUNSEL: Can you clarify the question?
THE COURT: Yes. Are you legally ready, done your
preparation, and are you ready to present your case and
defend your client based on the work that needed to be
done?
DEFENDANT’S COUNSEL: Based on the work that needs
to be done, yes.
THE COURT: So you are prepared to go forward from a
work standpoint?
DEFENDANT’S COUNSEL: As far as all of the evidence in
the case?
THE COURT: Absent COVID, you would be fine to go
ahead and try this case?
DEFENDANT’S COUNSEL: I’m just trying to figure out
how to clearly answer that question.
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THE COURT: Yes or no.
DEFENDANT’S COUNSEL: I think my concerns with
COVID, absent that, yes.
THE COURT: So the only reason for your motion to
continue here is COVID and not any lack of preparation on
your part that would prejudice or bias your client?
DEFENDANT’S COUNSEL: As it relates to preparation to
advise my client, no. As it relates to my concerns with
COVID and - -
THE COURT: Notwithstanding your concerns about
COVID, we’re not talking about COVID now. Let’s assume
COVID is not in the picture and we’re all here without
masks on, you would be ready to go forward with the
defense of your client?
DEFENDANT’S COUNSEL: Yes.
¶ 28 Defendant’s counsel initially expressed potential concerns about her health
and about her ability to represent Defendant in a courtroom, specifically
communicating without a mask to the jury and having to remain seated six feet apart
from Defendant at the counsel table. She argued Defendant may be prejudiced, if the
jury observed her sitting so far away from him at the table.
¶ 29 Defendant’s trial counsel further argued she was worried about staying with
her mother, who is a nurse. The trial court informed Defendant’s counsel the State
could authorize funds for her to stay in a hotel instead of staying with her mother.
Defendant’s counsel stated she was legally prepared to try the case. Defendant’s
counsel had earlier picked and agreed to the calendared date to try the case when
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jury trials resumed after the COVID-19 pandemic.
¶ 30 In arguing her motion to further continue, the calendared date of trial
Defendant’s counsel only stated she was concerned about the COVID-19 pandemic
and its effects on her being in court. Criminal defendants are constitutionally
guaranteed “a fair trial and a competent attorney.” Engle v. Isaac, 456 U.S. 107, 134,
71 L.Ed.2d 783, 804 (1982). “To establish a constitutional violation, a defendant must
show that he did not have ample time to confer with counsel and to investigate,
prepare and present his defense.” State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d
331, 337 (1993) (citation omitted).
¶ 31 In order to show ineffective assistance of counsel, a defendant must satisfy the
two-prong test announced by the Supreme Court of the United States in Strickland
v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). This test for ineffective
assistance of counsel has also been explicitly adopted by the Supreme Court of North
Carolina for state constitutional purposes. State v. Braswell, 312 N.C. 553, 562-63,
324 S.E.2d 241, 248 (1985). Pursuant to Strickland:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it
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cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result
unreliable.
Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693; accord Braswell, 312 N.C. at 561-62,
324 S.E.2d at 248.
¶ 32 Defendant has failed to show he suffered prejudice or the trial court abused its
discretion by denying Defendant’s motion to continue. As Defendant’s counsel stated,
she was legally prepared to try the case, but was solely worried about potential
COVID-19 risks. Defendant’s appellate counsel points to several instances where he
asserts Defendant’s trial counsel’s personal interest in avoiding COVID-19
purportedly caused her to perform deficiently but makes no showing of any deficient
representation throughout trial. Defendant did not and cannot meet either prong of
Strickland. He cannot show the errors are “so serious as to deprive [him] of a fair
trial” nor can or did he show any prejudice. Id. Defendant’s argument is overruled.
C. Emergency Directive 2
¶ 33 Defendant further argues the trial court should have granted his motion for a
continuance because Defendant’s trial counsel should not have been allowed in the
courtroom and trial should not have commenced pursuant to Emergency Directive 2.
Chief Justice Beasley reinstated Emergency Directive 2 on 14 December 2020. See
Order of the Chief Justice of North Carolina, (14 Dec. 2020),
https://www.nccourts.gov/assets/news-uploads/14%20December%202020%20-
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%207A-
39%28b%29%282%29%20Order%20Extending%20Emergency%20Directives%201-
5%2C%208-15%2C%2018%2C%2020-
22%20%28Final%29.pdf?fwcb9Jh3QU_twAJOVr6Vpa0PuktaRX2c=#:~:text=Emerg
ency%20Directive%201,-
All%20superior%20court&text=the%20senior%20resident%20superior%20court,and
%20safety%20of%20all%20participants.
¶ 34 Emergency Directive 2 provides:
The clerks of superior court shall post a notice at the
entrance to every court facility in their county directing
that any person who has likely been exposed to COVID-19
should not enter the courthouse. A person who has likely
been exposed to COVID-19 and who has business before the
courts shall contact the clerk of superior court’s office by
telephone or other remote means, inform court personnel of
the nature of his or her business before the court, and receive
further instruction. For purposes of this order, a person
who has likely been exposed to COVID-19 is defined as any
person who:
a. is experiencing fever, cough, shortness of breath, or
loss of smell and/or taste;
b. is under a direction to quarantine, isolate, or self-
monitor;
c. has been exposed to a person who tested positive for
COVID-19 within the last fourteen (14) days;
d. has been diagnosed with COVID-19 within the last
fourteen (14) days; or
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e. resides with or has been in close contact with any
person in the abovementioned categories.
Id. (emphasis supplied).
¶ 35 Defendant’s counsel’s motion to continue filed on the commencement of the 11
January 2021 session asserted no reference to Emergency Directive 2. Defendant’s
counsel made no prior contact with the clerk of superior court and only asserted her
potential COVID-19 exposure and Emergency Directive 2 in open court while arguing
her motion.
¶ 36 Defendant’s counsel did not invoke any of the protocols established in Directive
2, specifically, “A person who has likely been exposed to COVID-19 and who has
business before the courts shall contact the clerk of superior court’s office by
telephone or other remote means, inform court personnel of the nature of his or her
business before the court, and receive further instruction.” Id.¶ 37 Defendant’s counsel did not contact any official or officer of the court via any
“remote means” for further instructions, but, only after coming to court and as
asserted support in arguing her motion, did she inform the court of this potential
issue. Defendant has shown no abuse of discretion or constitutional violation in the
trial court’s denial of his day of trial motion to continue. Defendant’s argument is
overruled.
V. Courtroom Closure
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¶ 38 Defendant asserts his federal and state constitutional rights to a public trial
were violated when Defendant’s father was excluded from the courtroom during jury
selection.
A. Standard of Review
¶ 39 Defendant failed to object to the exclusion of his father from the courtroom
during jury selection. Defendant has failed to preserve this issue for appellate review.
“Constitutional issues not raised and passed upon at trial will not be considered for
the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607
(2001) (citation omitted).
B. Rule 2 of the North Carolina Rules of Appellate Procedure
¶ 40 Defendant seeks for this Court to invoke Rule 2 of the Appellate Rules of
Procedure to review the merits of this argument. This Court may suspend the
Appellate Rules under Rule 2, in order “[t]o prevent manifest injustice to a party, or
to expedite decision in the public interest.” N.C. R. App. P. 2.
¶ 41 Our Supreme Court has addressed the appropriateness of discretionarily
invoking Rule 2 on many occasions. “Rule 2 relates to the residual power of our
appellate courts to consider, in exceptional circumstances, significant issues of
importance in the public interest or to prevent injustice which appears to manifest to
the Court and only in such instances.” State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d
201, 205 (2007) (citations and quotation marks omitted) (emphasis supplied).
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¶ 42 “[T]he exercise of Rule 2 was intended to be limited to occasions in which a
fundamental purpose of the appellate rules is at stake, which will necessarily be rare
occasions.” Id. at 316, 644 S.E.2d at 205 (citations and internal quotation marks
omitted).
¶ 43 Nothing in the record or in either party’s brief demonstrates “exceptional
circumstances” sufficient to justify suspending or varying the rules in order to
prevent “manifest injustice” to Defendant.” Id. at 315, 644 S.E.2d at 205. The trial
court reported the Defendant’s father was not allowed to enter because the courtroom
had no occupancy to accommodate him due to the limited occupancy as a result of
COVID-19 social distancing protocols with members of the jury pool who had already
been brought into the courtroom. In the exercise of our discretionary authority, we
decline to invoke Rule 2 to further review this assertion. Defendant’s unpreserved
argument is dismissed.
VI. Jury Selection
¶ 44 Defendant argues the trial court erred by allowing the State to question and
pass a panel of fewer than twelve prospective jurors to him. Defendant contends this
violated the provisions of N.C. Gen. Stat § 15A-1214 (2021) and entitles him to a new
trial.
A. Standard of Review
¶ 45 “When a trial court acts contrary to a statutory mandate, the defendant’s right
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to appeal is preserved despite the defendant’s failure to object during trial.” State v.
Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000) (citation omitted). “In reviewing
a trial court’s deviation from the statutory procedure for the passing of jurors to the
defendant where [the] defendant failed to object to the procedure, we review for plain
error. State v. Gurkin, 234 N.C. App. 207, 213, 758 S.E.2d 450, 455 (2014).
¶ 46 To show plain error “a defendant must demonstrate that a fundamental error
occurred at trial. To show 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.” State v. Lawrence, 365
N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and internal quotation marks
omitted). The plain error rule is to be applied cautiously and only in exceptional
cases, and the error will be one so prejudicial and that “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings[.]” Id. (citations and quotation
marks omitted).
B. Analysis
¶ 47 Our appellate rules provide:
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.
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N.C. R. App. P. 10(a)(4). Defendant does not argue the passing of fewer than twelve
prospective jurors during jury selection amounted to plain error. Defendant has
failed to “specifically and distinctly contend [ ] . . . plain error” and is not entitled to
plain error review on the issue. Id.; see State v. Goncalves, __ N.C. App. __, __, __
S.E.2d __, __, 2022-NCCOA-610, ¶ 21 (2022) (unpublished).
¶ 48 Presuming Defendant did not waive appellate review of this issue, he is not
entitled to a new trial. The North Carolina jury selection statute provides, inter alia:
(d) The prosecutor must conduct his examination of the
first 12 jurors seated and make his challenges for cause and
exercise his peremptory challenges. If the judge allows a
challenge for cause, or if a peremptory challenge is
exercised, the clerk must immediately call a replacement
into the box. When the prosecutor is satisfied with the 12
in the box, they must then be tendered to the defendant.
Until the prosecutor indicates his satisfaction, he may
make a challenge for cause or exercise a peremptory
challenge to strike any juror, whether an original or
replacement juror.
(e) Each defendant must then conduct his examination of
the jurors tendered him, making his challenges for cause
and his peremptory challenges. If a juror is excused, no
replacement may be called until all defendants have
indicated satisfaction with those remaining, at which time
the clerk must call replacements for the jurors excused.
The judge in his discretion must determine order of
examination among multiple defendants.
N.C. Gen. Stat. § 15A-1214(d), (e) (2021).
¶ 49 In order to comply with COVID-19 guidance on social distancing, the trial court
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called five prospective jurors spaced out six feet apart into the jury box. When the
State accepted five jurors, the trial court tendered those jurors to Defendant for
examination.
¶ 50 Defendant exercised two pre-emptory challenges on two of these five
prospective jurors. The trial court called two replacement prospective jurors for the
State to question. The State passed these two prospective jurors to Defendant.
Defendant challenged one of those prospective jurors. A single replacement was
called, whom Defendant questioned and accepted to serve. Once Defendant had
accepted five jurors, the trial court called five more prospective jurors socially
distanced. When Defendant challenged two of those prospective jurors, the trial court
called four new jurors into the box. The State and Defendant questioned and accepted
these four jurors to complete the jury.
¶ 51 While the jury selection procedure the court utilized here may have varied the
express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a
full panel of twelve prospective jurors, Defendant cannot show reversible prejudice to
award a new trial. Defendant questioned and accepted juror White, without
objection, who he now asserts he possibly would have excluded. Defendant failed to
exhaust his pre-emptory challenges and did not move for the removal of juror White
for cause. Defendant was not forced to accept any undesirable juror as a result of the
passing of less than twelve prospective jurors during jury selection procedure under
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Opinion of the Court
these circumstances. Lawrence, 352 N.C. at 13, 530 S.E.2d at 815 (citing N.C. Gen.
Stat. § 15A-1443(c) (1999); State v. Miller, 339 N.C. 663, 681, 455 S.E.2d 137, 147,
cert. denied, 516 U.S. 893, 133 L.Ed.2d 169 (1995); State v. Fletcher, 348 N.C. 292,
312, 500 S.E.2d 668, 680 (1998), cert. denied, 525 U.S. 1180, 143 L.Ed.2d 113 (1999)).
To any extent Defendant’s argument is not waived, no prejudice is shown.
Defendant’s argument is overruled.
VII. Admission of State’s Exhibits 54, 55, and 57
¶ 52 Defendant argues the trial court erred by admitting the State’s Exhibits 54,
55, and 57 over his objections. The State’s Exhibit 54 is a copy of Facebook social
media messages between Defendant’s and Blount’s sisters, Spence and Ashley. In
the 13 August 2017 message from Ashley to Spence, she was trying to reach Blount
because he had allegedly sold her brother a gun for $260, did not deliver the firearm,
and had allegedly made “off with the money.” Ashley also messaged Spence asserting
Blount had “better cough up $260,” and if her brother saw Blount there would be a
fight.
¶ 53 State’s Exhibit 55 is a copy of Facebook messages between Spence and
decedent Blount. In the message Spence informed her brother, Blount, that Ashley
was looking for him. Spence told Blount that Ashley had asserted Blount was
supposed to have sold a gun to her brother, but had taken the money and did not
deliver the weapon.
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¶ 54 State’s Exhibit 57 is documentation of Ashley’s handgun purchase of a .40
caliber Smith and Wesson handgun. Ashley applied for and was granted a handgun
permit on 8 March 2018. She purchased a .40 caliber Smith and Wesson handgun on
30 March 2019.
C. Relevance
¶ 55 Defendant argues the admission of this evidence was irrelevant under North
Carolina Rules of Evidence 401 and 402. N.C. Gen. Stat. § 8C-1, Rules 401, 402
(2021).
¶ 56 Rule 401 defines relevant evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-
1, Rule 401. Irrelevant evidence is evidence “having no tendency to prove a fact at
issue in the case.” State v. Hart, 105 N.C. App. 542, 548, 414 S.E.2d 364, 368, disc.
review denied, 332 N.C. 348, 421 S.E.2d 157 (1992). Under Rule 402, relevant
evidence is generally admissible at trial, while irrelevant evidence is inadmissible.
See N.C. Gen. Stat. § 8C-1, Rule 402.
1. Standard of Review
¶ 57 “Although a trial court’s rulings on relevancy are not discretionary and we do
not review them for an abuse of discretion, we give them great deference on appeal.”
State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265 (2006) (citation omitted),
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disc review denied, 361 N.C. 223, 642 S.E.2d 712 (2007).
2. Analysis
¶ 58 Defendant asserts the statements made by Ashley in her Facebook messages
were not relevant because it was not clear whether Ashley meant Defendant when
she referenced her “brother.” The evidence produced shows Ashley has three
brothers: Defendant, Dataveus White, and Dustin Hartley. Defendant maintains the
testimony was without proper foundation and irrelevant regarding Ashley’s contact
with Spence under Rules 401 and 402.
¶ 59 Defendant’s argument is misplaced, Spence’s testimony showed she was
unaware of Ashley having any brothers other than Defendant. Spence testified she
understood Ashley to mean Defendant in the messages. Defendant’s objections to
relevancy to Exhibits 54 and 55 were properly overruled.
¶ 60 Defendant further argues the trial court erred in allowing documents showing
Ashley’s purchase of a Smith and Wesson .40 caliber handgun on 30 March 2018 into
evidence. Our Supreme Court has long held: “in criminal cases, every circumstance
that is calculated to throw any light upon the supposed crime is admissible.” State v.
Hamilton, 264 N.C. 277, 286-87, 141 S.E.2d 506, 513 (1965). The .40 caliber handgun
Ashley purchased was the same caliber as the shell casings recovered at the scene
and recovered from Blount’s body. Defendant’s objections to relevancy to admission
of Exhibit 57 was properly overruled.
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¶ 61 The challenged testimony and exhibits were clearly relevant under Rules 401
and 402. They were probative to issues of Defendant’s guilt, Defendant’s opportunity
to acquire a weapon, and Defendant’s possible motive for the killing. Defendant has
failed to show Spence’s testimony and the exhibits at issue are irrelevant and
inadmissible under Rules 401 and 402. N.C. Gen. Stat. § 8C-1, Rules 401, 402.
D. Hearsay
¶ 62 Defendant argues the trial court erred in admitting the State’s Exhibit 54 over
his hearsay objections and admitting Ashley’s statements in Exhibit 54 into evidence
under Rule 804. N.C. Gen. Stat. § 8C-1, Rule 804 (2021). In ruling on Defendant’s
objections the trial court found:
The Court further finds that the witness was a participant
in the conversation, the online conversation, and as such,
read and saw the things that were being said
contemporaneously with the publication, that the State
will be bound by the requirement that they lay the
appropriate foundation with regard to identification of the
fact that Ms. Ashley was a participant in this conversation
and how the witness knew her. Subject to laying the
appropriate foundation, the Court is going to find that the
post of Kimberly Ashley is admissible.
With regard to the Facebook messages of Trevon Blount,
the Court is going to make the same findings. Further, the
Court is going to find that the messages to Trevon Blount
indicate further the fact that the witness, Britney Spence,
believed the threats to be true that were communicated,
and communicated them to Mr. Blount, which gives it some
indicia of reliability. Mr. Blount is deceased, therefore he
cannot be called as a witness. He is therefore unavailable
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Opinion of the Court
under Rule 804. The Court is going to find that, subject to
the proper foundation, that those Facebook messages are
admissible as well, and that they are relevant to establish
or make more likely facts at issue in this case.
¶ 63 The trial court later stated: “I think I found that Spence was not hearsay, the
one was hearsay, subject to exception under 804, is what I found.” Defendant does
not challenge Spence’s conversation with Blount that is contained in Exhibit 55 on
appeal.
1. Standard of Review
¶ 64 This Court reviews a trial court’s ruling on the admission of evidence over a
party’s hearsay objection de novo. State v. Miller, 197 N.C. App. 78, 87-88, 676 S.E.2d
546, 552, disc review denied, 363 N.C. 586, 683 S.E.2d 216 (2009). “Under a de novo
review, the court considers the matter anew and freely substitutes its own judgment
for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (citations and internal quotation marks omitted).
2. Analysis
¶ 65 Our North Carolina Rules of Evidence provide: “Hearsay is a statement, other
than one made by the declarant while testifying at trial or hearing, offered into
evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801
(2021). Hearsay is inadmissible except as provided by the statutes or by the rules of
evidence. N.C. Gen. Stat. § 8C-1, Rules 802 (2021).
¶ 66 “The erroneous admission of hearsay testimony is not always so prejudicial as
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to require a new trial, and the burden is on the defendant to show prejudice.” State
v. Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997) (citations omitted); see
N.C. Gen. Stat. § 15A-1443(a) (2021). Prejudicial errors occur when there is a
reasonable possibility that a different result would have been reached, had the error
not been committed. Allen, 127 N.C. App. at 186, 488 S.E.2d at 297.
¶ 67 Our Supreme Court has stated: “The law permits declarations of one person to
be admitted into evidence for the purpose of showing that another person has
knowledge or notice of the declared facts and to demonstrate his particular state of
mind.” State v. Swift, 290 N.C. 383, 393, 226 S.E.2d 652, 661 (1976). The statement
was offered to show the effect and impact of Ashley’s messages on Spence and on
Blount. Presuming, without deciding, this conversation was inadmissible hearsay,
Defendant cannot demonstrate any prejudice. The trial court did not err as a matter
of law in admitting State’s Exhibit 54 into evidence. Defendant’s argument is
overruled.
VIII. Conclusion
¶ 68 We hold the trial court had subject matter jurisdiction to try Defendant. We
find no prejudicial error in the trial court’s denial of his motion for a continuance, the
alleged exclusion of Defendant’s father from the courtroom, the variance in the jury
selection and procedure, and the admission into evidence of State’s Exhibits 54, 55,
and 57.
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¶ 69 Defendant received a fair trial, free from prejudicial errors he preserved and
argued. Our review shows no error in the jury’s verdict or in the judgment entered
thereon. It is so ordered.
NO ERROR.
Judges CARPENTER and WOOD concur.