State v. Gettys , 243 N.C. App. 590 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-51
Filed: 20 October 2015
Mecklenburg County, Nos. 12CRS254087-89
STATE OF NORTH CAROLINA
v.
RALPH LEWIS GETTYS, Defendant.
Appeal by defendant from judgments entered on or about 16 January 2014 by
Judge Lucy N. Inman in Superior Court, Mecklenburg County. Heard in the Court
of Appeals on 6 May 2015.
Attorney General Roy A. Cooper III, by Assistant Attorney General Brandon L.
Truman, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
defendant-appellant.
STROUD, Judge.
Ralph Lewis Gettys (“defendant”) appeals from judgments entered after a jury
found him guilty of second-degree murder, possession of a firearm by a felon, and
simple assault. Defendant contends that the trial court erred in (1) denying his
motion to strike the jury venire; (2) admitting a recording of a police interview and
STATE V. GETTYS
Opinion of the Court
allowing a police detective to read from a transcript of that recording; and (3) denying
defendant’s request for a special jury instruction on sequestration. We find no error.
I. Background
In the early hours of 15 December 2012, defendant worked as a bouncer at a
“liquor house” in Charlotte. Defendant patted down customers for firearms, among
whom were Joshua Lampkins and Raymona Abraham. Around 5:00 a.m. or 6:00 a.m.,
defendant told his brother that he wanted to leave the liquor house. Defendant’s
brother gave him the keys to his car, which he had parked down the street, so that
defendant could move the car in front of the liquor house and then they could leave
together. Defendant’s ex-girlfriend, Teshalla Dunlap, accompanied defendant as he
walked down the street to the car. With Dunlap as a passenger, defendant drove the
car back up the street and parked it in front of the liquor house. When defendant
and Dunlap got out of the car, Lampkins and Abraham confronted them and claimed
that defendant had hit Lampkins with the car. Lampkins and Abraham demanded
that defendant pay them fifty dollars, and when defendant refused, they threatened
to attack him. When the conflict escalated, Dunlap walked toward the liquor house
to tell defendant’s brother to come outside. During the confrontation, defendant shot
and killed Abraham and beat Lampkins unconscious. As part of the investigation of
the homicide, Detectives Carter and Greenly interviewed Dunlap and recorded the
interview.
-2-
STATE V. GETTYS
Opinion of the Court
On or about 7 January 2013, a grand jury indicted defendant for murder,
possession of a firearm by a felon, and simple assault. See N.C. Gen. Stat. §§ 14-17,
-33(a), -415.1 (2011). At trial, defendant moved to strike the petit jury venire, but the
trial court denied his motion. On 16 January 2014, the jury found defendant guilty
of second-degree murder, possession of a firearm by a felon, and simple assault. The
trial court sentenced defendant to 339 to 419 months’ imprisonment for the second-
degree murder offense, 21 to 35 months’ imprisonment for the possession of a firearm
by a felon offense, and 60 days of imprisonment for the simple assault offense. The
trial court ordered that defendant serve the second-degree murder sentence and
possession of a firearm by a felon sentence consecutively and serve the simple assault
sentence concurrently. Defendant gave notice of appeal in open court.
II. Motion to Strike the Jury Venire
Defendant first contends that the trial court erred in denying his motion to
strike the jury venire. Defendant alleges that his venire was racially disproportionate
to the demographics of Mecklenburg County and therefore deprived him of his
constitutional right to a jury of his peers.
A. Standard of Review
We review alleged violations of constitutional rights de novo. State v. Graham,
200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review
denied, 363 N.C. 857, 694 S.E.2d 766 (2010).
-3-
STATE V. GETTYS
Opinion of the Court
B. Analysis
Our state and federal Constitutions protect a
criminal defendant’s right to be tried by a jury of his peers.
This constitutional guarantee assures that members of a
defendant’s own race have not been systematically and
arbitrarily excluded from the jury pool which is to decide
his guilt or innocence. However, the Sixth Amendment
does not guarantee a defendant the right to a jury
composed of members of a certain race or gender.
The burden is upon the defendant to show a prima
facie case of racial systematic exclusion. In order for a
defendant to establish a prima facie violation for
disproportionate representation in a venire, he must show
the following:
(1) that the group alleged to be excluded is
a “distinctive” group in the community;
(2) that the representation of this group in
venires from which juries are selected is not
fair and reasonable in relation to the number
of such persons in the community; and
(3) that this underrepresentation is due to
systematic exclusion of the group in the jury-
selection process.
State v. Jackson, 215 N.C. App. 339, 341-42, 716 S.E.2d 61, 64 (2011) (emphasis added
and citations, quotation marks, and brackets omitted) (quoting Duren v. Missouri,
439 U.S. 357, 364, 58 L. Ed. 2d 579, 587 (1979)).
A single venire that fails to proportionately represent a cross-section of the
community does not constitute systematic exclusion. See State v. Williams, 355 N.C.
501, 549-50, 565 S.E.2d 609, 638 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d
-4-
STATE V. GETTYS
Opinion of the Court
808 (2003). “The fact that a particular jury or a series of juries does not statistically
reflect the racial composition of the community does not in itself make out an
invidious discrimination forbidden by the Equal Protection Clause.” Jackson, 215
N.C. App. at 343, 716 S.E.2d at 65 (brackets omitted). Systematic exclusion occurs
when a procedure in the venire selection process consistently yields non-
representative venires. See Duren, 439 U.S. at 366-67, 58 L. Ed. 2d at 588-89 (holding
that a venire selection process favoring female exemption from jury duty constituted
systematic exclusion).
Defendant argues that Mecklenburg County’s computer program, Jury
Manager, generated a racially disproportionate venire and thus deprived him of a
jury of his peers. Defendant relies on Turner v. Fouche, 396 U.S. 346, 359, 24 L. Ed.
2d 567, 578 (1970). But in interpreting Turner, our Supreme Court noted:
[T]he United States Supreme Court did not conclude that
the prima facie case was solely based upon the disparity of
representation of African-Americans in the jury venire.
Rather, that Court’s conclusion ultimately rested upon the
finding that the underrepresentation was the result of the
systematic exclusion of African-Americans in the jury-
selection process. Under our interpretation of Turner,
merely showing a disparity under the second prong of the
Duren test, standing alone, will not establish a prima facie
case of disproportionate representation.
State v. Bowman, 349 N.C. 459, 469, 509 S.E.2d 428, 434 (1998) (citation omitted),
cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999). Although defendant asserts
that there is a disparity under the second prong of Duren, he concedes the absence of
-5-
STATE V. GETTYS
Opinion of the Court
systematic exclusion under the third prong. Because defendant has failed to satisfy
the third Duren prong, systematic exclusion, we hold that the trial court did not err
in denying defendant’s motion to strike the jury venire. Id., 509 S.E.2d at 434-35; see
also Williams, 355 N.C. at 549-50, 565 S.E.2d at 638; State v. Avery, 299 N.C. 126,
134-35, 261 S.E.2d 803, 808-09 (1980).
III. Admission of Evidence
Defendant argues that the trial court erred in admitting the recording of
Dunlap’s police interview for both corroboration and impeachment. Defendant
further contends that the trial court erred in allowing Detective Carter to read
portions of the transcript of that recording. We find no error in either circumstance.
A. Standard of Review
The standard of review for this Court assessing
evidentiary rulings is abuse of discretion. A trial court may
be reversed for an abuse of discretion only upon a showing
that its ruling was so arbitrary that it could not have been
the result of a reasoned decision. The abuse of discretion
standard applies to decisions by a trial court that a
statement is admissible for corroboration.
State v. Tellez, 200 N.C. App. 517, 526, 684 S.E.2d 733, 739 (2009) (citations and
quotation marks omitted). We also review for an abuse of discretion a trial court’s
decision to admit a statement for impeachment. State v. Banks, 210 N.C. App. 30,
38, 706 S.E.2d 807, 814 (2011).
Relying on Sherrod v. Nash General Hospital, Inc., defendant argues that the
-6-
STATE V. GETTYS
Opinion of the Court
proper standard for reviewing a trial court’s decision to admit a statement for
corroboration is de novo. See 126 N.C. App. 755, 762, 487 S.E.2d 151, 155 (1997), aff’d
in part and rev’d in part, 348 N.C. 526, 500 S.E.2d 708 (1998). But there, this Court
did not discuss a trial court’s ruling on whether evidence was admissible for
corroboration; rather it discussed a trial court’s ruling on whether evidence was
relevant under N.C. Gen. Stat. § 8C-1, Rule 401. Id., 487 S.E.2d at 155. Accordingly,
we hold that Sherrod is inapposite.
B. Corroboration and Impeachment
The prior consistent statements of a witness may be
offered at trial for corroborative, nonhearsay purposes.
Corroborative testimony is testimony which tends to
strengthen, confirm, or make more certain the testimony of
another witness. In order to be corroborative and therefore
properly admissible, the prior statement of the witness
need not merely relate to specific facts brought out in the
witness’s testimony at trial, so long as the prior statement
in fact tends to add weight or credibility to such testimony.
The trial court has wide latitude in deciding when a prior
consistent statement can be admitted for corroborative,
nonhearsay purposes.
State v. Duffie, ___ N.C. App. ___, ___, 772 S.E.2d 100, 104 (2015) (citations and
quotation marks omitted). “Prior statements of a witness which are inconsistent with
his present testimony are not admissible as substantive evidence because of their
hearsay nature. Even so, such prior inconsistent statements are admissible for the
purpose of impeachment.” State v. Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780
(1997); see also N.C. Gen. Stat. § 8C-1, Rule 607 (2013). “[I]mpeachment evidence
-7-
STATE V. GETTYS
Opinion of the Court
has been defined as evidence used to undermine a witness’s credibility, with any
circumstance tending to show a defect in the witness’s perception, memory, narration
or veracity relevant to this purpose.” State v. Allen, 222 N.C. App. 707, 721, 731
S.E.2d 510, 520 (citations, quotation marks, and brackets omitted), appeal dismissed
and disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert. denied, ___ U.S.
___, 185 L. Ed. 2d 876 (2013).
A trial court may admit evidence for both corroboration and impeachment. See
State v. Ayudkya, 96 N.C. App. 606, 610, 386 S.E.2d 604, 606-07 (1989) (holding that
a pretrial statement that supported a witness’s direct testimony but contradicted his
cross-examination testimony was admissible to either corroborate or impeach,
“whichever the jury found”). “Where a witness’s prior statement contains facts that
manifestly contradict his trial testimony, however, such evidence may not be
admitted under the guise of corroborating his testimony.” State v. Alexander, 152
N.C. App. 701, 704, 568 S.E.2d 317, 319 (2002) (quotation marks omitted).
Additionally, this Court in Ayudkya cautioned that courts must apply carefully this
combination of the evidentiary rules of corroboration and impeachment; otherwise, a
party could introduce “almost any out-of-court statement made by a witness.”
Ayudkya, 96 N.C. App. at 610, 386 S.E.2d at 606-07.
Here, the trial court admitted the recording of Dunlap’s police interview for
both corroboration and impeachment. Before admitting the recording, the trial court
-8-
STATE V. GETTYS
Opinion of the Court
carefully reviewed the transcript of the recording and addressed defendant’s concern
that the State had called Dunlap as a witness only to introduce her prior inconsistent
statements, which would have been otherwise inadmissible as hearsay:
Now, as I understand what happened here, the State put
on the witness. I would—I don’t think the State expected
[Dunlap] to not say something consistent. What she said
was 90 percent consistent with what she said before. This
is not a case where the State has put on a witness the State
knows has changed his or her story, that the State doesn’t
reasonably expect to testify about what the witness said
before for the pure purpose of pre-textually getting in that
prior statement.
As a matter of fact, here the State has put on a
witness who has testified largely consistent[ly] with what
she said.
The trial court also gave a limiting instruction to the jury before the recording was
played to them:
Ladies and gentleman, you’re going to hear evidence
of Ms. Dunlap’s earlier statement to the police in the
interview. I instruct you that you must not consider this
earlier statement as evidence of the truth of what was said
at that earlier time because the earlier statement was not
made under oath at this trial. If you believe that the earlier
statement was made and that any portions of the earlier
statement conflict with or are consistent with the
testimony of Ms. Dunlap at this trial, you may consider
these prior statements and all other facts and
circumstances bearing upon Ms. Dunlap’s truthfulness in
deciding whether you will believe or disbelieve Ms.
Dunlap’s testimony at this trial.
The trial court later included a similar limiting instruction in the jury charge:
Evidence has been received tending to show that at
-9-
STATE V. GETTYS
Opinion of the Court
an earlier time a witness made a statement which may
conflict or be consistent with the testimony of the witness
at this trial. You must not consider such earlier statement
as evidence of the truth of what was said at that earlier
time because it was not made under oath at this trial.
If you believe the earlier statement was made and
that it conflicts or is consistent with the testimony of the
witness at this trial, you may consider this and all other
facts and circumstances bearing upon the witness’s
truthfulness in deciding whether you will believe or
disbelieve the witness’s testimony.
In light of the trial court’s abundance of caution as demonstrated in its conscientious
review of the transcript of the recording and its limiting instructions, we hold that
under Ayudkya, the trial court did not abuse its discretion in admitting the recording
for both corroboration and impeachment. See Ayudkya, 96 N.C. App. at 610, 386
S.E.2d at 606-07; Tellez, 200 N.C. App. at 527-28, 684 S.E.2d at 740-41 (approving of
a similar limiting instruction).
Defendant contends that admitting the recording for both corroboration and
impeachment is “logically contradictory and counterintuitive.” But the State did not
introduce a single pretrial statement for both corroboration and impeachment;
rather, it introduced a recording of Dunlap’s police interview, which included many
pretrial statements, some of which tended to corroborate Dunlap’s testimony and
some of which tended to impeach her testimony.
Defendant relies on State v. Frogge for the proposition that prior contradictory
statements do not corroborate a witness’s testimony and may not be admitted under
- 10 -
STATE V. GETTYS
Opinion of the Court
such a theory. See 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997). But Frogge is
distinguishable, because here, the State proffered and the trial court admitted
Dunlap’s pretrial statements for both corroboration and impeachment purposes.
Defendant next attempts to distinguish Ayudkya. There, the pretrial
statement corroborated the witness’s direct testimony “although it tended to impeach
his cross-examination testimony.” Ayudkya, 96 N.C. App. at 610, 386 S.E.2d at 606.
Defendant argues that Ayudkya is distinguishable, because “the State was not
offering Ms. Dunlap’s previous statement[s] . . . in an attempt to rehabilitate her by
corroborating her direct testimony and impeaching her cross-examination
testimony.” But nothing in Ayudkya suggests that its holding is limited to this
particular situation. See id., 386 S.E.2d at 606-07. Following Ayudkya, we hold that
the trial court did not err in admitting the recording of the police interview for both
corroboration and impeachment purposes. See id., 386 S.E.2d at 606-07.
C. Reading from Transcript
Defendant also contends that the trial court’s decision to allow Detective
Carter to read aloud portions of the transcript that the State believed were not clearly
audible from the recording intruded upon the province of the jury. But because
Detective Carter was one of the detectives who interviewed Dunlap, she had personal
knowledge of the interview. An individual who has personal knowledge of a matter
may testify directly about that matter at trial. See N.C. Gen. Stat. § 8C-1, Rule 602
- 11 -
STATE V. GETTYS
Opinion of the Court
(2013); State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671 (2001), appeal
dismissed and disc. review denied, 356 N.C. 169, 568 S.E.2d 619 (2002). Here,
Detective Carter merely read or clarified statements that had been made in her
presence. Additionally, the trial court gave the following limiting instruction to the
jury:
Ladies and gentleman, I will instruct you that—I
will instruct you that you need to listen as carefully as you
can and not give any greater weight to those portions of the
statement that Detective Carter reads than you give to the
portions of the statement that you only hear. I instruct you
to treat them all—all without regard to whether you only
heard them on the [recording] or also heard the detective
say them.
Because Detective Carter had personal knowledge of Dunlap’s interview, we hold that
the trial court did not err by allowing her to read from the transcript and clarify
portions of the recording to the jury. See N.C. Gen. Stat. § 8C-1, Rule 602; Cole, 147
N.C. App. at 645, 556 S.E.2d at 671.
IV. Jury Instruction Request
Defendant finally contends that the trial court erred by denying his request for
a special jury instruction on sequestration. N.C. Gen. Stat § 1-181 provides:
(a) Requests for special instructions to the jury must be—
(1) In writing,
(2) Entitled in the cause, and
(3) Signed by counsel submitting them.
(b) Such requests for special instructions must be
submitted to the trial judge before the judge’s charge to the
jury is begun. However, the judge may, in his discretion,
- 12 -
STATE V. GETTYS
Opinion of the Court
consider such requests regardless of the time they are
made.
(c) Written requests for special instructions shall, after
their submission to the judge, be filed as a part of the
record of the same.
N.C. Gen. Stat § 1-181 (2013) (emphasis added).
In closing argument, the prosecutor argued:
[Defendant is] cherry-picking the best parts of
everybody’s story after he’s had a year to think about it and
after he’s had a year—or after he’s had the entire trial to
listen to what everybody else would say. You’ll notice that
our witnesses didn’t sit in here while everybody else was
testifying.
In response, defendant made two requests for a special jury instruction on
sequestration. Defendant first orally requested an instruction before the trial court
read the jury charge, and the trial court responded that it would examine the
requested instruction when defendant submitted it in writing. This initial request
was not written and thus did not satisfy subsection (a)(1). See id. §§ 1-181(a)(1), 15A-
1231(a) (2013); State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997) (“[A]
trial court’s ruling denying requested instructions is not error where the defendant
fails to submit his request for instructions in writing.”), cert. denied, 522 U.S. 1053,
139 L. Ed. 2d 647 (1998).
Defendant later renewed his request in writing after the jury had been charged
and had left the courtroom to begin its deliberations. The request was for the
following instruction:
- 13 -
STATE V. GETTYS
Opinion of the Court
In this case, all witnesses allowed by law were
sequestered at the request of the State. These witnesses
could not be present in court except to testify until they
were released from their subpoenas, or to discuss the
matter with other witnesses or observers in court.
By law, the defendant and lead investigator for the
State cannot be sequestered.
This written request satisfied N.C. Gen. Stat § 1-181(a)(1), but we analyze the trial
court’s decision under subsection (b), because defendant made the written request
after the jury was charged; accordingly, we review for an abuse of discretion. See N.C.
Gen. Stat § 1-181(b). “A trial court may be reversed for an abuse of discretion only
upon a showing that its ruling was so arbitrary that it could not have been the result
of a reasoned decision.” Tellez, 200 N.C. App. at 526, 684 S.E.2d at 739.
In denying defendant’s written request, the trial court properly exercised its
discretion:
THE COURT: . . . . I don’t think this instruction is
required. I don’t think this instruction goes to any issue
that is going to be dispositive or even close to dispositive in
this case. And I agree with [the State] that, you know,
sometimes if the Court forgets an instruction or a pattern
instruction in something that’s given in every case, you
have to call the jury back in because you forgot it. But for
a special instruction that I was not inclined to give, to call
them back in—I do think it would give undue—
[Defendant’s counsel]: I had only put this in, to be honest,
Your Honor—you had already ruled, in my opinion. I just
simply put this in because the rules of procedure say there
has to be a copy. And so I did not—to be honest, I hadn’t
expected you to give it. I simply wanted to put it in the
record[.]
- 14 -
STATE V. GETTYS
Opinion of the Court
Given that the requested instruction did not relate to a dispositive issue in the case,
we hold that the trial court did not abuse its discretion in denying defendant’s
request.1
V. Conclusion
For the foregoing reasons, we hold that the trial court committed no error.
NO ERROR.
Judges CALABRIA and TYSON concur.
1 We note that the prosecutor’s argument did not violate defendant’s constitutional right to
presence. See Portuondo v. Agard, 529 U.S. 61, 73, 146 L. Ed. 2d 47, 59 (2000) (“In sum, we see no
reason to depart from the practice of treating testifying defendants the same as other witnesses. A
witness’s ability to hear prior testimony and to tailor his account accordingly, and the threat that
ability presents to the integrity of the trial, are no different when it is the defendant doing the
listening. Allowing comment upon the fact that a defendant’s presence in the courtroom provides him
a unique opportunity to tailor his testimony is appropriate—and indeed, given the inability to
sequester the defendant, sometimes essential—to the central function of the trial, which is to discover
the truth.”).
- 15 -