State v. Smith ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-719
Filed 06 June 2023
Buncombe County, No. 17 CRS 87031
STATE OF NORTH CAROLINA
v.
DAVON SMITH
Appeal by defendant from judgment entered 24 June 2021 by Judge Forrest D.
Bridges in Buncombe County Superior Court. Heard in the Court of Appeals
22 February 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
Calloway-Durham for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
Andrews, for defendant-appellant.
ARROWOOD, Judge.
Davon Smith (“defendant”) appeals from judgment entered upon his conviction
for first-degree murder. Defendant contents the trial court erred by: (1) failing to
instruct the jury on second-degree murder; (2) failing to instruct the jury on intent,
premeditation, and deliberation for adolescents; (3) admitting a video interview and
identification of a witness; (4) admitting an identification of another witness because
investigators were improperly suggestive during the interview; and (5) permitting
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officers to testify the witnesses were forthcoming when they identified defendant
because that invaded the province of the jury. Defendant further contends that the
“cumulative prejudice” of these alleged errors entitles him to a new trial. For the
following reasons, we hold the trial court did not err.
I. Background
At 12:15 p.m. on 25 June 2017, Asheville Police Department (“APD”) was
dispatched to a shooting at the Pisgah View Apartments. Upon arrival, law
enforcement located a victim “on the ground behind” one of the apartment buildings.
The victim was “in a large pool of blood” and surrounded by a crowd of people, some
of whom were attempting to render aid. The victim was transported by EMS to the
hospital but was later pronounced deceased.
The victim was identified as Rondy Samuel Shields, III (“Mr. Shields”), also
known as “ManMan[.]” An autopsy revealed Mr. Shields was shot once, and the bullet
“entered on the right side of [his] back . . . then exited . . . through the front of [his]
neck.” His cause of death was determined to be a gunshot wound to the back.
Although five shell casings from a 40-caliber Smith & Wesson firearm were recovered
from the scene, the casings produced no identifiable latent prints.
As part of the investigation, law enforcement also obtained a video of the
shooting from one of the cameras at the apartment complex. The video showed two
apartment complexes separated by a street, with a parked gold sedan in the lower
right portion of the screen. At the beginning of the video, Mr. Shields can be seen in
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the distance walking up the street towards the camera. While Mr. Shields is walking,
a woman in a pink shirt walks up to the gold sedan, and two vehicles drive by, a silver
vehicle followed by a dark colored sedan. Although the silver vehicle leaves the view
of the camera, the black sedan stops abruptly and then backs up. Then, as a person
in a black hoodie comes into view in the bottom right-hand corner of the video, a
female in a red shirt emerges from the back passenger side of the gold sedan.
When Mr. Shields sees the person in the black hoodie, he pauses, takes a few
steps back, then starts running away behind the apartment complex. Although the
woman in the red shirt approaches the person in the black hoodie and attempts to
stop them, the person in the hoodie runs a few steps while shooting in the direction
of Mr. Shields. A woman in a blue shirt emerges from the driver’s seat of the gold
sedan and the other woman from the vehicle begin to run away. As most are running
away, another person in a white shirt, dark-colored jacket, and shorts emerges from
the bottom right corner of the screen and runs towards the shooter. Then, the shooter
and the person in the shorts both run out of frame in the same direction. From the
video, law enforcement identified potential witnesses, and a suspect vehicle which
they believed to be the vehicle defendant exited before the shooting occurred.
One potential witness identified from the video was Samantha Pulliam (“Ms.
Pulliam”). Ms. Pulliam went to APD the afternoon of the shooting for an interview
with Detective Jonathan Morgan (“Detective Morgan”) and Detective Tracy Crowe
(“Detective Crowe”). During the interview, Ms. Pulliam wrote out a statement and
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looked at photographs of potential suspects, ultimately identifying defendant as the
shooter. Ms. Pulliam’s written statement read:
I was sittin [sic] in Pisgah View pickin [sic] up my
granddaughter [and her] mother Mellasia. A silver car
pulled up the shooter “Bop” got out click [sic] the gun I
grabbed his arm tried to stop him and he just kept shootin
[sic] even after (ManMan) was [on] the ground then he got
back in the car and left with 2 guys an [sic] possibly a
female.
Furthermore, Ms. Pulliam identified Mahogany Fair (“Ms. Fair”), also known as
“Hog,” as someone who was on scene and picked her out of a photo lineup. That
evening, Detective Morgan obtained a warrant for defendant’s arrest for the first-
degree murder of Mr. Shields. At the time of the shooting, defendant had just turned
sixteen.
The next day, 26 June 2017, a silver Chevrolet Impala, believed to be the
suspect vehicle from the surveillance video, was located at a different apartment
complex. Pursuant to a search warrant, the vehicle was searched “for possible touch
DNA[,]” processed for latent fingerprints, and trace taped. Although the fingerprints
from the vehicle were not of “useful quality[,]” they were entered into the automated
fingerprint identification system. The prints produced no potential suspects.
On 27 June 2017, Detectives Morgan and Crowe interviewed Mellasia Skyes
(“Ms. Skyes”), someone Ms. Pulliam identified as being a witness to the shooting.
Although Ms. Skyes initially denied knowing the shooter, she eventually admitted
defendant, also known as “Bop,” was her cousin, and identified him as the shooter in
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a lineup. Ms. Skyes stated in her recorded interview that Mr. Shields and defendant
were arguing over Latrina or Trina (“Trina”), defendant’s fourteen-year-old sister
who allegedly had sex with Mr. Shields. Ms. Skyes further stated she had calmed
defendant down earlier that day, but Ms. Fair was encouraging him to harm Mr.
Shields. Ms. Skyes said that during the shooting and when defendant got out of the
car, she heard someone yelling at defendant not to “let it slide.”
Although law enforcement attempted to locate defendant for several months,
they were unsuccessful until November. On 8 November 2017, U.S. Marshals, who
were assisting in the search for defendant, got information that defendant was at a
Motel 6 off Tunnel Road in room 123. Motel 6 records showed the room was rented
6 November to a Chad Case. Defendant was located inside the motel room, in the
bathroom. The lights in the bathroom were off and defendant was “in the bathtub
against the corner.” Thereafter, on 4 December 2017, a Buncombe County grand jury
indicted defendant for first-degree murder and possession of a handgun by a minor.
The matter came on for trial in the Buncombe County Superior Court on
7 June 2021, Judge Bridges presiding. The State did not proceed with the possession
of a handgun by a minor charge, so the only matter for trial was the first-degree
murder charge.
As an initial matter, the trial court addressed defendant’s pre-trial motions.
Defendant filed a motion in limine, requesting an order prohibiting the State “from
calling witnesses, including but not limited to [Ms. Pulliam] and [Ms. Skyes], to
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testify[,]” arguing there was “substantial likelihood the witnesses w[ould] deny or
contradict their prior statements to law enforcement[.]” Defendant further requested
the State be prohibited “from asking Ms. Pulliam questions about . . . defendant being
the shooter[,]” or alternatively a voir dire of witnesses.
In court, defendant’s attorney stated that he and his investigator spoke with
Ms. Pulliam, and she told them she could not identify defendant and he was
concerned the witness would contradict their prior statement and the State would
impeach her with the prior statement. Defense counsel said that if the State was on
notice of the contradiction, admission of the prior statement would be improper. The
court denied the voir dire request, but found the State was “on notice” and “may be
bound by what [Ms. Pulliam] says.”
The court also addressed defendant’s motion to suppress pretrial and in-court
identification evidence. In this motion, defendant argued the lineup identification by
Ms. Pulliam should be suppressed due to violations of the Eyewitness Identification
Reform Act (“the Act”), Ms. Skyes’s lineup identification should be suppressed for due
process concerns, and both witnesses should not be allowed to do in-court
identifications. Specifically, as to Ms. Pulliam, defendant argued the fact that Ms.
Pulliam was not alone during the photo lineup, and her boyfriend was allowed to stay
in the room with her, was a “substantial violation” of the Act, requiring suppression
of both the lineup and any in-court identification. Both of defendant’s pre-trial
motions were denied.
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Before the trial began, the State requested a show cause order and an arrest
warrant for Ms. Pulliam, who was subpoenaed to be in court to testify but “failed to
appear pursuant to the subpoena.” Later that day, Ms. Pulliam was located, taken
into custody, and brought to the courthouse to testify.
Ms. Pulliam testified that on 25 June 2017, she was with Ms. Skyes, who she
identified as the woman in the video wearing the red shirt, and Ms. Skyes’s friends
Nadia and Trina at the Pisgah View Apartments. Ms. Pulliam testified that she got
“a glimpse” of the shooter’s face and that she had “seen him previously in the”
apartment complex. Although Ms. Pulliam stated she “didn’t know” defendant, she
was familiar with who he was “in passing” and recognized him as “Bop.” Ms. Pulliam
further testified that she did go to APD on the day of the shooting, but only because
law enforcement “told [her] that [she] was on camera and that [she] had no choice.”
[T4 485] Ms. Pulliam’s statement from her interview was admitted into evidence
and published to the jury.
When questioned about the lineup identification that she also did that day, Ms.
Pulliam stated she picked the person “that looked the closest” but she “wasn’t a
hundred percent [sure][.]” She further testified that she initialed the photograph of
defendant in the lineup “because that resembled who it was and it turned out to be
the same guy . . . sitting [in the courtroom] [that day].” When asked whether she saw
the person in the courtroom that was shooting on 25 June 2017, Ms. Pulliam stated
“correct[,]” and when asked to identify that person, she identified defendant. Ms.
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Pulliam also testified she did not see or hear Mr. Shields do anything to provoke
defendant.
On cross, Ms. Pulliam denied telling defense counsel and his investigator that
she could not identify defendant and stated the shooter did not have anything
obstructing their face. When defense counsel showed Ms. Pulliam the video again
and asked whether it appeared the shooter had on a mask, she admitted it did, “[f]rom
that angle[.]” Furthermore, Ms. Pulliam acknowledged that during her interview she
told detectives she grabbed the shooter, even though the video did not show that, but
stated she “thought that [she] grabbed him because that’s what [she] intended to do
was [to] try to stop the situation.” Lastly, Ms. Pulliam testified that she “thought
[defendant] was arguing with his sister[,] [Trina,] again.”
Next, the State called Ms. Skyes to the stand. Although Ms. Skyes testified
she recalled being at the Pisgah View Apartments on 25 June 2017 with Ms. Pulliam
and her friend Nadia, Ms. Skyes stated she did not “remember nothing [sic] from that
day at all[,]” and denied Trina was there. Ms. Skyes further testified that she did not
remember her interview with detectives on 27 June 2017 and stated three times that
reading the transcript of the interview would not refresh her recollection. Ms. Skyes
did, however, remember doing the photo lineup and picking out a picture of
defendant, her cousin, but stated she did not think she was picking out the
perpetrator. Furthermore, she testified she did not recall telling Detective Morgan
she was very confident the person she identified in the lineup was the perpetrator.
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Although Ms. Skyes stated she did recall going to the APD, she did not
remember the substance of the interview. Ms. Skyes testified she “told [detectives]
the truth if [she] talked to them[,]” but then later stated she did not remember if she
told detectives the truth. At this point, the State moved to “admit [Ms. Skyes]
recorded interview as a recorded recollection since she ha[d] insufficient knowledge
to testify about [the interview.]” Outside the presence of the jury, the defense
vehemently objected to the admission of the video, arguing the exception did not apply
in this situation, the video would present a Constitutional confrontation issue, and
under Rule 403, the probative value of the video interview was substantially
outweighed by unfair prejudice.
The trial court, based on “the totality of the circumstances[,]” found the State
satisfied the requirements of Rule 803(5) and the recorded interview could be played
for the jury, but the transcript of the interview could not be admitted. Ms. Skyes was
recalled to the stand and the recorded interview was played for the jury over defense
counsel’s objection.
After the video was played, Ms. Skyes testified that it did not refresh her
recollection of her interview. Ms. Skyes did, however, acknowledge her signature on
the photo lineup identification, but did not remember the other pictures in the lineup.
The photo lineup identification where Ms. Skyes identified defendant as the shooter
on 27 June 2017 was admitted into evidence over defense’s objection.
During cross-examination, when asked whether the shooter had on a mask,
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Ms. Skyes testified they did, but then stated she thought so, but she did not
remember. This was the first time Ms. Skyes ever mentioned the shooter wearing a
mask. Furthermore, when asked if she continuously testified she could not remember
anything because she “knew at the time [of the interview]” she could not ID the
shooter because she “couldn’t really see that person’s face[,]” Ms. Skyes replied in the
affirmative, and stated she was “just scared and ready to get out of the room.”
The detectives who conducted the interviews of Ms. Skyes and Ms. Pulliam
also testified for the State. Detective Crowe testified that Ms. Skyes was not
forthcoming and “standoffish” at the beginning of the interview, but once her
demeanor and story changed, she did not waver in her narrative and was unequivocal
about the person they were discussing. Detective Morgan testified that Ms. Pulliam
was cooperative and forthcoming in her interview, but that she “appeared much more
reluctant to testify . . . in court[.]” Detective Morgan also testified that as part of the
investigation, detectives identified a Facebook page belonging to defendant under the
name “KaPo Bop.” The “profile image” on the account was a photograph of defendant,
and on 5 May 2017 a photograph of defendant with Ms. Fair was uploaded to his
Facebook account.
Sarah Ellis (“Ms. Ellis”), a forensic scientist with the North Carolina State
Crime Lab, testified as to the DNA results from the Chevrolet Impala. Ms. Ellis
tested “a swab from [the] driver’s side front door interior of [the] Chevy Impala, a
swab from [the] driver[’s] side rear door interior of the same vehicle, a swab from [the]
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passenger side rear interior, and a swab from the passenger side front door interior”
for DNA. Although most of the swabs produced DNA profiles that “were inconclusive
due to complexity and/or insufficient quality of DNA recovered[,]” the swab from the
rear passenger side interior produced a DNA profile that was a mixture of three
contributors. Defendant and Mr. Shields were excluded as contributors to the major
DNA profile, but the minor profile “was inconclusive due to complexity and/or
insufficient quality of DNA.”
The State also introduced, over defense’s objection, three of defendant’s
recorded jail calls, from 11 November 2017 and 12 November 2017. In the calls,
defendant discussed “Hog,” inquired about how law enforcement got the Motel 6 room
number, and stated he “ain’t gonna [sic] run no more.” Lastly, Chad Case (“Mr. Case”)
testified for the State. Mr. Case testified that on 6 November 2017, while he was at
the BP on Tunnel Road, “[a] guy and a girl” approached him and offered him money
to rent a room for them at the Motel 6 using his ID. Mr. Case booked the room in
exchange for thirty dollars.
Defendant made a motion to dismiss at the close of the State’s evidence, and
at the close of all evidence, arguing the State presented insufficient evidence. Both
motions were denied. Defendant did not present any evidence.
At the charge conference, defense counsel requested an instruction on the
lesser-included offenses of involuntary manslaughter and second-degree murder.
Defense counsel argued Ms. Skyes’s statements in her interview that defendant
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“didn’t want to shoot [Mr. Shields][,]” but someone was “in his ear . . . telling him
to[,]” and that “witnesses [at the shooting] were egging him on,” along with the fact
that Mr. Shields was “having some kind of relationship with [defendant’s] sister” all
“warrant[ed] an instruction on manslaughter because that’s classic heat of passion[.]”
Defense counsel also requested a special instruction “on intent, premeditation and
deliberation for adolescents[.]” The trial court declined to provide either instruction.
As part of the State’s closing, they utilized a PowerPoint presentation of the
evidence presented, including wording from Ms. Skyes’s recorded interview. The
defense objected, arguing the wording was “verbatim wording from the transcript
that [the court] rule[d] was not to be admitted as an exhibit” and moved for a mistrial.
The trial court found this was not the transcript, but a tool created by the State, and
once brought to the court’s attention the State was instructed to “take [it] down[,]”
and a curative instruction was provided. Defendant’s motion for a mistrial was
denied.
On 22 June 2017, the jury found defendant guilty of first-degree murder and a
sentencing hearing was set for 24 June 2021. Prior to the sentencing hearing, the
State and defendant’s counsel stipulated to several mitigating factors, including
defendant’s age at the time of the offense. Following the sentencing hearing,
defendant was sentenced to life imprisonment with the possibility of parole.
Defendant gave oral notice of appeal in open court.
II. Discussion
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On appeal, defendant raises six issues. Specifically, defendant argues the trial
court erred by: (1) failing to instruct the jury on second-degree murder; (2) failing to
give the instruction on intent, premeditation, and deliberation for adolescents; (3)
admitting the recorded interview with Ms. Skyes and her identification of defendant
as the shooter; (4) admitting Ms. Pulliam’s identification of defendant as the shooter
when detectives used “impermissibly suggestive” interview tactics; and (5) permitting
detectives to testify Ms. Pulliam and Ms. Skyes were “forthcoming and unequivocal
when they identified” defendant as the shooter because this invaded the province of
the jury. Defendant further argues that the “cumulative prejudice from the trial
court’s errors” entitle him to a new trial. We address each of defendant’s arguments
in turn.
A. Second-Degree Murder Jury Instruction
First, defendant argues the trial court erred by failing to instruct the jury on
the lesser-included offense of second-degree murder. Specifically, defendant contends
the jury could have found defendant did not act with premeditation and deliberation
since defendant was sixteen at the time, there was evidence defendant “react[ed]
impulsively to the repeated provocation from [Ms.] Fair[,]” defendant had learned of
Mr. Shield’s relationship with his underage sister, and defendant “smoked marijuana
on the day of the shooting.” We disagree.
As an initial matter, we address two issues defendant raised in his brief. First,
we note that although defendant claims he used marijuana “earlier on the day of the
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shooting[,]” voluntary intoxication can only “negate the evidence of . . . specific intent
if it is shown that the defendant was so intoxicated at the time he committed the crime
that he was utterly unable to form the necessary specific intent.” State v. Williams,
308 N.C. 47, 71, 301 S.E.2d 335, 350 (emphasis added) (citations omitted), cert.
denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh’g denied, 464 U.S. 1004, 78 L. Ed. 2d 704(1983). “Evidence of mere intoxication, however, is not enough[.]” State v. Williams,
343 N.C. 345, 365, 471 S.E.2d 379, 390 (1996), cert. denied, 519 U.S. 1061, 136 L. Ed.
2d 618, reh’g denied, 519 U.S. 1156, 137 L. Ed. 2d 231 (1997). Furthermore, voluntary
intoxication is an affirmative defense, so evidence of “intoxication to a degree
sufficient to negate mens rea” is the burden of defendant. State v. Chapman, 359 N.C.
328, 378, 611 S.E.2d 794, 830 (2005) (citation omitted). Here, no evidence of such
intoxication was presented to the jury, nor does defendant make any argument that
he was so intoxicated that he could not form intent.
Furthermore, although age may be a “factor” in the Miranda analysis, J.D.B.
v. North Carolina, 564 U.S. 261, 277, 180 L. Ed. 2d 310, 326-27 (2011), and in
sentencing, Roper v. Simmons, 543 U.S. 551, 568, 161 L. Ed. 2d 1, 21 (2005);
Thompson v. Oklahoma, 487 U.S. 815, 838, 101 L. Ed. 2d 702, 720 (1988), defendant
has presented no case law that his age alone negates any element of first-degree
murder. Accordingly, we need not consider these issues, and instead address whether
defendant was entitled to an instruction based on his other arguments.
Since this alleged error was preserved for appeal, we review the trial court’s
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decision de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009)
(citations omitted) (“Assignments of error challenging the trial court’s decisions
regarding jury instructions are reviewed de novo, by this Court.”). “An instruction on
a lesser-included offense must be given only if the evidence would permit the jury
rationally to find defendant guilty of the lesser offense and to acquit him of the
greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation
omitted).
If the evidence is sufficient to fully satisfy the State’s
burden of proving each and every element of the offense of
murder in the first degree . . . and there is no evidence to
negate these elements other than defendant’s denial that
he committed the offense, the trial judge should properly
exclude from jury consideration the possibility of a
conviction of second degree murder.
State v. Sterling, 233 N.C. App. 730, 732-33, 758 S.E.2d 884, 886 (citation omitted),
disc. review denied and appeal dismissed, 367 N.C. 523, 763 S.E.2d 142 (Mem) (2014).
“The substantive elements of first-degree murder are: (1) the unlawful killing,
(2) of another human being, (3) with malice, and (4) with premeditation and
deliberation.” State v. Guin, 282 N.C. App. 160, 166, 870 S.E.2d 285, 290 (citation,
internal quotation marks, and brackets omitted), disc. review denied, 876 S.E.2d 281(Mem) (2022). By contrast, the elements of second-degree murder are: “(1) [the]
unlawful killing (2) of a human being (3) with malice, but without premeditation and
deliberation.” State v. Vassey, 154 N.C. App. 384, 390, 572 S.E.2d 248, 252 (2002)
(citation omitted), disc. review denied, 356 N.C. 692, 579 S.E.2d 96 (Mem), and cert.
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denied, 357 N.C. 469, 587 S.E.2d 339 (Mem) (2003).
Premeditation is a “thought beforehand for some length of time, however
short.” State v. Horskins, 228 N.C. App. 217, 221, 743 S.E.2d 704, 708 (citation
omitted), disc. review denied, 367 N.C. 273, 752 S.E.2d 481 (Mem) (2013). However,
murder is “committed with deliberation if it is done in a ‘cool state of blood,’ without
legal provocation, and in furtherance of a fixed design to gratify a feeling of revenge,
or to accomplish some unlawful purpose.” Id. at 221, 743 S.E.2d at 708 (citation
omitted).
“Cool state of blood” does not mean the absence of passion
and emotion, but an unlawful killing is deliberate and
premeditated if done pursuant to a fixed design to kill,
notwithstanding that defendant was angry or in an
emotional state at the time unless such anger or emotion
was such as to disturb the faculties and reason.
Id. at 221-22, 743 S.E.2d at 708-709 (emphasis added) (citation omitted).
“[P]remeditation and deliberation are not usually susceptible of direct proof
and are therefore, susceptible of proof by circumstances from which the facts sought
to be proven may be inferred.” State v. Faust, 254 N.C. 101, 107, 118 S.E.2d 769, 772-
73 (citations and quotation marks omitted), cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49(1961). Factors relevant to the determination of whether the defendant acted with
premeditation and deliberation include:
Want of provocation on the part of deceased. The conduct
of defendant before and after the killing. Threats and
declarations of defendant before and during the course of
the occurrence giving rise to the death of deceased. The
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dealing of lethal blows after deceased has been felled and
rendered helpless.
Id. at 107, 118 S.E.2d at 773 (citations omitted). “Additional factors include the
nature and number of the victim’s wounds, whether the defendant left the deceased
to die without attempting to obtain assistance for the deceased, whether he disposed
of the murder weapon, and whether the defendant later lied about what happened.”
Horskins, 228 N.C. App. at 222, 743 S.E.2d at 709 (citing State v. Hunt, 330 N.C. 425,
428-29, 410 S.E.2d 478, 481 (1991) (citations and quotation marks omitted)).
“Premeditation and deliberation may [also] be inferred from the multiple shots fired
by defendant.” Chapman, 359 N.C. at 376, 611 S.E.2d at 828 (citations omitted).
Here, the State satisfied its burden of proving every element of the offense of
first-degree murder and, despite defendant’s argument, there was no evidence to
negate any element, therefore the trial court did not err by declining to instruct the
jury on second-degree murder. See Sterling, 233 N.C. App. at 733, 758 S.E.2d at 886;
see also State v. Leazer, 353 N.C. 234, 240, 539 S.E.2d 922, 926 (2000) (citation
omitted) (“Because there was positive, uncontradicted evidence of each element of
first-degree murder, an instruction on second-degree murder was not required.”). “ ‘A
defendant is not entitled to an instruction on a lesser included offense merely because
the jury could possibly believe some of the [S]tate’s evidence but not all of it.’ ” Leazer,
353 N.C. at 240, 539 S.E.2d at 926 (citation omitted). Furthermore “ ‘mere
speculation [as to the rationales for defendant’s behavior] is not sufficient to negate
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evidence of premeditation and deliberation.’ ” Id. (alterations in original) (citation
omitted). Here, the evidence teneded to show defendant arrived at the scene armend,
fired multiple times as Ms. Shields’ back was turned and he was attempting to flee,
Mr. Shields did not provoke defendant at the time of the shooting, and defendant fled
the scene leaving Mr. Shields to die.
Still, defendant argues a second-degree murder instruction was warranted
since the jury could have found he acted without premeditation and deliberation
because he had, at some indeterminate time earlier in the day, told Ms. Skyes he was
only going to fight Mr. Shields, because he acted after being provoked and bullied by
Ms. Fair, and because he “was angry at Mr. Shields for having sex with his younger
sister[.]”
Defendant’s argument regarding Ms. Fair is not supported by a review of the
law related to provocation. Our case law recognizes evidence of provocation by the
deceased may be considered in the deliberation analysis, but provocation by a third-
party is not. State v. Elliott, 344 N.C. 242, 271, 475 S.E.2d 202, 214 (1996) (emphasis
added) (finding the trial court did not err by narrowing the scope to lack of provocation
“by the deceased” since the instruction was based on pattern jury instructions and
consistent with case law), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997). This
concept is consistent with our Supreme Court’s established holding that duress and
coercion are not valid defenses to first-degree murder, as the influence of a third
person cannot excuse murder in the first-degree. State v. Dowell, 106 N.C. 722, 11
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S.E. 525, 526 (1890) (“ ‘And, therefore, though a man may be violently assaulted, and
hath no other possible means of escaping death but by killing an innocent person,
this fear and force shall not acquit him of murder; for he ought rather to die himself
than escape by the murder of an innocent.’ ”); State v. Cheek, 351 N.C. 48, 61, 520
S.E.2d 545, 553 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
Defendant’s second argument, that Ms. Skyes’s interview showed he was
“angry” at Mr. Shields but agreed he was only going to fight the victim, is likewise
without merit. Our case law holds that deliberation occurs in a “cool state of blood”
if done in furtherance of revenge, even if defendant is angry at the time of the killing,
as long as defendant’s emotions are not “such as to disturb the faculties and reason.”
Horskins, 228 N.C. App. at 221-22, 743 S.E.2d at 708-709. Defendant presented no
evidence his anger amounted to such a level. See State v. Bedford, 208 N.C. App. 414,
419, 702 S.E.2d 522, 528 (2010).
In fact, the interview with Ms. Skyes which defendant relies upon does not help
this argument but hinders it. Ms. Skyes stated in the interview she had “talked
[defendant] out of it and [she] had calmed him down earlier that day” and told
defendant to “fight” Mr. Shields, but not shoot him, and defendant agreed. This
statement is not sufficient to negate the element of premeditation and deliberation
and to warrant an instruction of second-degree murder. Even if in some moment
earlier in that day defendant did not have the intent to kill Mr. Shields, this is not a
reflection of his state of mind and intent at the time of the shooting, as premeditation
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Opinion of the Court
only requires some “thought beforehand . . . however short.” Horskins, 228 N.C. App.
at 221-22, 743 S.E.2d at 708. This argument is particularly unpersuasive when, later
that day, defendant arrived at the crime scene with a gun and proceeded to fire five
shots at the victim with the fatal shot striking him in the back as he ran away.
Accordingly, we hold the trial court did not err by declining to provide defendant’s
requested instruction for second-degree murder.
B. Special Jury Instruction
Next, defendant argues the trial court erred in failing to provide his requested
special instruction on intent, premeditation, and deliberation for adolescents.
Specifically, defendant contends this “novel” instruction “would have enabled the jury
to determine . . . whether [defendant] had the necessary mens rea for first-degree
murder[,]” and defendant was prejudiced by the by the trial court’s failure to provide
the instruction. We disagree.
“A trial court should give a specific jury instruction when ‘(1) the requested
instruction [i]s a correct statement of law and (2) [i]s supported by the evidence, and
. . . (3) the [pattern jury] instruction . . ., considered in its entirety, fail[s] to
encompass the substance of the law requested and (4) such failure likely misle[ads]
the jury.’ ” State v. Steele, 281 N.C. App. 472, 482, 868 S.E.2d 876, 884 (alterations
in original) (citation omitted), disc. review denied, 878 S.E.2d 809 (Mem) (2022).
“Failure to give a requested and appropriate jury instruction is reversible error if the
requesting party is prejudiced as a result of the omission.” State v. Guerrero, 279
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N.C. App. 236, 241, 864 S.E.2d 793, 798 (citation and internal quotation marks
omitted). “[W]here the request for a specific instruction raises a question of law, ‘the
trial court’s decisions regarding jury instructions are reviewed de novo by this
Court.’ ” State v. Edwards, 239 N.C. App. 391, 393, 768 S.E.2d 619, 621 (2015)
(citation omitted).
Here, defendant requested an instruction which stated, in pertinent part:
In this case, you may examine the defendant’s actions and
words, and all of the circumstances surrounding the
offense, to determine what the defendant’s state of mind
was at the time of the offense. However, the law recognizes
that juveniles are not the same as adults. An adult is
presumed to be in full possession of his senses and
knowledgeable of the consequences of his actions. By
contrast, the brains of adolescents are not fully developed
in the areas that control impulses, foresee consequences,
and temper emotions. Additionally, adolescents often lack
the capacity to exercise mature judgment and possess only
an incomplete ability to understand the world around
them.
You should consider all the circumstances in the case, any
reasonable inference you draw from the evidence, and
differences between the way that adult and adolescent
brains functions in determining whether the State has
proved beyond a reasonable doubt that defendant
intentionally killed the victim after premeditation and
deliberation.
The trial court refused to provide this instruction, stating no evidence of adolescent
brain development had been presented and although case law made a distinction
between adults and juveniles for sentencing purposes, this was not an appropriate
determination for the jury.
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Opinion of the Court
Although we agree the Supreme Court of the United States has stated
“children are constitutionally different from adults for purposes of sentencing[,]” it
has never found this difference relevant to a finding of guilt. Miller v. Alabama, 567
U.S. 460, 471, 183 L. Ed. 2d 407, 418 (2012) (emphasis added). In fact, the Supreme
Court has articulated their decisions do not “suggest an absence of legal responsibility
where crime is committed by a minor.” Eddings v. Oklahoma, 455 U.S. 104, 116, 71
L. Ed. 2d 1, 12 (1982). Defendant concedes that no court has held such and we decline
to announce a new legal precedent.
Here, even if the statements in defendant’s proposed instructions are, arguably
supported by current scientific research, they are not supported by the evidence, since
no evidence was presented on adolescent brain function, and they are not a correct
statement of the law. The instruction for first-degree murder provided by the trial
court fully encompassed the elements of the offense. Guin, 282 N.C. App. at 166, 870
S.E.2d at 290; see Steele, 281 N.C. App. at 482, 868 S.E.2d at 884. Defendant’s age is
not considered nor contemplated in the analysis of premeditation and deliberation,
therefore, this instruction would be incorrect and likely to mislead the jury. Guin,
282 N.C. App. at 166, 870 S.E.2d at 290; see State v. Palmer, 273 N.C. App. 169, 173,
847 S.E.2d 449, 452 (2020) (finding “[t]he trial court did not err in denying
[d]efendant’s request for a special jury instruction on lawful possession of a controlled
substance where the requested instruction improperly characterized an exception as
an element”); see also Steele, 281 N.C. App. at 483, 868 S.E.2d at 884. Accordingly,
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the trial court did not err.
C. Ms. Skyes’s Interview and Identification
Defendant next contends the trial court erred by playing the video of Ms.
Skyes’s 27 June 2017 interview and introducing her photo lineup identification of
defendant because both were inadmissible hearsay and violated Rule 403. We note
that this is the evidence that defendant extensively relies upon in his argument for
the instruction on second-degree murder addressed above. This argument is without
merit.
1. Hearsay Exception
“The admission of evidence alleged to be hearsay is reviewed de novo when
preserved by an objection.” State v. Harris, 253 N.C. App. 322, 327, 800 S.E.2d 676,
680 (citation omitted), disc. review denied, 370 N.C. 70, 803 S.E.2d 388 (Mem) (2017).
“Evidentiary errors are harmless unless a defendant proves that absent the error a
different result would have been reached at trial.” State v. Ferguson, 145 N.C. App.
302, 307, 549 S.E.2d 889, 893 (citation omitted), disc. review denied, 354 N.C. 223,
554 S.E.2d 650 (Mem) (2001).
“Evidence of an out-of-court statement of a witness . . . may be offered as
substantive evidence” if the evidence is “offered for the truth of the matter asserted
and qualifie[s] as an exception under [North Carolina] hearsay rules.” State v. Ford,
136 N.C. App. 634, 640, n. 1, 525 S.E.2d 218, 222, n.1 (2000). “Evidence which falls
within a ‘firmly rooted’ hearsay exception is sufficiently reliable to prevent violation
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Opinion of the Court
of a defendant’s right to confrontation.” State v. Valentine, 357 N.C. 512, 520, 591
S.E.2d 846, 854 (2003) (citations omitted); State v. Leggett, 135 N.C. App. 168, 175,
519 S.E.2d 328, 333 (1999) (finding Rule 803(5) is firmly rooted in North Carolina),
disc. review denied and appeal dismissed, 351 N.C. 365, 542 S.E.2d 650 (Mem) (2000).
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2022). Although “hearsay is not
admissible[,]” our statutes provide exceptions to this general rule. Id. § 8C-1, Rules
802-803 (2022). One such exception is for recorded recollections. The relevant statute
allows for the admission of such evidence if it meets the following criteria:
A memorandum or record concerning a matter about which
a witness once had knowledge but now has insufficient
recollection to enable him to testify fully and accurately,
shown to have been made or adopted by the witness when
the matter was fresh in his memory and to reflect that
knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party.
Id. § 8C-1, Rule 803(5) (“the Rule”). “While the Rule speaks of a ‘memorandum or
record,’ the word record is broadly construed to include both audio and video
recordings.” State v. Thomas, 281 N.C. App. 159, 166, 867 S.E.2d 377, 385 (2021)
(citations omitted), disc. review denied, 878 S.E.2d 808 (Mem) (2022).
Before hearsay can be admitted under this exception, the party offering the
evidence must show: (1) the evidence “pertain[s] to matters about which the
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Opinion of the Court
declarant once had knowledge;” (2) the declarant does not now have sufficient
recollection of the matters; and (3) the evidence was made by declarant, or if made by
someone other than declarant, was “examined and adopted . . . when the matters
were fresh in [declarant’s] memory[,]” and “reflect[ed] [declarant’s] knowledge
correctly.” State v. Love, 156 N.C. App. 309, 314, 576 S.E.2d 709, 712 (2003) (citation
omitted); State v. Brown, 258 N.C. App. 58, 68, 811 S.E.2d 224, 230-31, disc. review
denied, 371 N.C. 340, 813 S.E.2d 853 (Mem) (2018). However, “the mere fact a
statement is recorded is not enough to meet the requirement the statements
contained therein reflected the witness’s knowledge accurately at the time.” Thomas,
281 N.C. App. at 167, 867 S.E.2d at 386 (citation omitted).
Here, defendant takes issue with two criteria: (1) “Ms. Skyes did not testify”
that the matters were fresh in her mind when she participated in the interview and
photo lineup; and (2) the interview and lineup did not correctly reflect her knowledge
of the shooting. As to defendant’s first issue, the trial court concluded Ms. Skyes’s
statement was made “only two days” after the shooting, and thus was made “while
her memory of those events were still fresh[.]” Ms. Skyes’s testimony to such a fact
was not required, and the trial court can conclude from the fact that the interview
occurred two days after the shooting that the matter was fresh in her memory at the
time. State v. Nickerson, 320 N.C. 603, 608, 359 S.E.2d 760, 762 (1987) (finding the
trial court “could properly conclude” the witness’s statement, “made approximately
five weeks after the incident[,]” was fresh in the witness’s memory at the time the
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Opinion of the Court
statement was made despite the defendant’s contention that this was not shown).
Next, we consider whether the interview and lineup correctly reflect Ms.
Skyes’s knowledge of the event.
The caselaw on whether the record correctly reflected the
witness’s knowledge at the time involves the far sides of
the spectrum. On the one end, this Court has ruled the
record did not correctly reflect the witness’s knowledge at
the time where the witness disagreed with or disavowed
their prior statements on the stand.
Thomas, 281 N.C. App. at 167, 867 S.E.2d at 386 (citations omitted). However, “this
Court has ruled that the record accurately reflected the witness’s knowledge at the
time when the person testified they recorded all the information they had at the
time.” Id. at 168, 867 S.E.2d at 386. In cases where the witness “did not testify the
statements were correct at the time, but [they] likewise did not disavow the
statements on the stand[,]” unless the witness makes “any direct statements
indicating she was lying,” the court can find the witness relayed information that
correctly represented their knowledge. Id. (finding the witness’s testimony that she
was “laying it all out” in her previous statement and no direct statement she was
lying were enough for the court to properly conclude the hearsay statement correctly
reflected her knowledge). Furthermore, “[t]his Court previously considered signing
and dating a statement . . . to support a finding that the written statement correctly
reflected the witness’s prior knowledge.” Id. at 169, 867 S.E.2d at 387.
Here, Ms. Skyes testified that she remembered being at the Pisgah View
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Opinion of the Court
Apartments on 25 June 2017, she identified herself as the person in the red shirt in
the surveillance footage, and she stated she did recall participating in a photo lineup
and identified her signature and initials on the lineup packet. Ms. Skyes testified
she picked out the photograph of defendant because detectives asked her to pick out
“Bop[,]” but she did not think she was identifying the perpetrator. Furthermore, Ms.
Skyes testified she did recall going to APD and speaking with detectives on 27 June,
but repeatedly testified she did not remember the substance of the interview. Ms.
Skyes also refused to review the transcript of the interview to refresh her recollection.
When asked whether she told detectives the truth that day, she testified, “[y]es, I
hope so. I don’t remember nothing [sic] from that day. I told them the truth if I talked
to them.” However, later on direct examination when asked whether she told
detectives the truth during her interview, Ms. Skyes stated she “didn’t remember
nothing [sic] from four years ago[.]”
We find no error in the trial court’s decision. Although Ms. Skyes did not testify
her statements to detectives in the interview were correct, she did not disavow her
statements before the trial court made its decision, and at one point testified she told
law enforcement the truth if she spoke to them. See Thomas, 281 N.C. App. at 167,
867 S.E.2d at 386. Furthermore, Ms. Skyes identified her signature and initials on
the pre-trial identification paperwork, and acknowledged she picked out defendant,
even though she claimed she did not think she was picking out the perpetrator.
Accordingly, we find the interview and photo lineup were properly admitted.
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Opinion of the Court
Defendant further argues the trial court erred in admitting the video and
playing it for the jury because it “violated” the rule “proscription” which states that
if admissible, the evidence can be read into the evidence but not offered as an exhibit
unless offered by the other party. Defendant acknowledges that video evidence is a
“record” under the exception and does not provide any legal basis for this contention.
Nor does defendant provide any basis for their contention that the State’s PowerPoint
slides containing quotes from the interview, which were taken down and a corrective
instruction given, violated the Rule. Accordingly, this argument is likewise without
merit.
2. Rule 403
Lastly, defendant contends the lineup and the interview, even if admissible,
violated North Carolina Rule of Evidence 403 (“Rule 403”). “Rulings under [Rule 403]
are discretionary, and a trial court’s decision on motions made pursuant to Rule 403
are binding on appeal, unless the dissatisfied party shows that the trial court abused
its discretion.” Chapman, 359 N.C. at 348, 611 S.E.2d at 811 (citations omitted). “A
trial court will not be reversed for an abuse of discretion absent ‘a showing that its
ruling was so arbitrary that it could not have been the result of a reasoned decision.’ ”
State v. Hyde, 352 N.C. 37, 46, 530 S.E.2d 281, 288 (2000) (citations omitted), cert.
denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001).
Under Rule 403, relevant “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
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Opinion of the Court
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2022).
“Unfair prejudice . . . means an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, as an emotional one.” State v. Wilkerson,
363 N.C. 382, 418, 683 S.E.2d 174, 196 (2009) (citation and internal quotation marks
omitted), cert. denied, 559 U.S. 1074, 176 L. Ed. 2d 734 (2010).
Here, the trial court did not abuse its discretion in admitting the interview
over defense’s Rule 403 objection since it was highly probative of defendant’s motive.
Although the State is not required to prove motive for a first-degree murder, “[t]he
existence of a motive is . . . a circumstance tending to make it more probable that the
person in question did the act, hence evidence of motive is always admissible where
the doing of the act is in dispute.” State v. Coffey, 326 N.C. 268, 280, 389 S.E.2d 48,
55 (1990) (citations and internal quotation marks omitted). Considering the high
probative value of the interview and the information it contained about defendant’s
issue with Mr. Shields, we do not think it is substantially outweighed by the danger
of unfair prejudice. Accordingly, the trial court did not abuse its discretion.
D. Ms. Pulliam’s Identification
Defendant next argues the trial court erred by admitting Ms. Pulliam’s in-court
and photo lineup identification of defendant “because the procedures used by
investigators to obtain the identification were so impermissibly suggestive that there
was a substantial likelihood of irreparable misidentification.”
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Opinion of the Court
As an initial matter, defendant makes several references to the recorded
interview of Ms. Pulliam, which was not shown to the jury. Although it was admitted
during the pre-trial motion to suppress hearing, defendant does not argue on appeal
the trial court incorrectly denied this motion. Accordingly, we do not consider the
video and limit our review to the evidence presented at trial.
“Identification evidence must be suppressed on due process grounds where the
facts show that the pretrial identification procedure was so suggestive as to create a
very substantial likelihood of irreparable misidentification.” State v. Wilson, 313 N.C.
516, 528-29, 330 S.E.2d 450, 459 (1985) (citations omitted). This analysis requires a
two-step determination. “First[,] we must determine whether an impermissibly
suggestive procedure was used in obtaining the out-of-court identification.” State v.
Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984) (citations omitted). If not, we
need not proceed with the analysis. Id. (citation omitted). However, “[i]f it is
answered affirmatively, the second inquiry is whether, under all the circumstances,
the suggestive procedures employed gave rise to a substantial likelihood of
irreparable misidentification.” Id. (citation omitted). To determine whether the
procedures are impermissibly suggestive, the court must examine “the totality of the
circumstances” to determine whether the procedure was “so unnecessarily suggestive
and conducive to irreparable mistaken identity as to offend fundamental standards
of decency and justice.” Id. (citation omitted).
In his brief, defendant did not make any arguments as to why the procedures
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Opinion of the Court
detectives used were unnecessarily suggestive or conducive to misidentification.
Rather, defendant’s argument is based on the second step of the analysis.
Accordingly, we find defendant’s argument, based solely on the second prong of the
test without meeting the first hurdle, is without merit. Nevertheless, we address
defendant’s argument as to the second step of the analysis.
The factors to be considered in evaluating the likelihood of
irreparable misidentification include: (1) the opportunity
of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior description of the criminal; (4) the level of
certainty demonstrated by the witness at the
confrontation; and (5) the length of time between the crime
and the confrontation.
State v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293, 294-95 (1983) (citation
omitted).
Based on the totality of the circumstances, we find no error in the admission of
Ms. Pulliam’s identification of defendant. She saw him during the shooting in the
daytime, she testified she got “a glimpse” of the shooter’s face and that she had “seen
him previously in the” apartment complex and recognized him as “Bop,” and she
stated he did not have anything obstructing his face. Ms. Pulliam participated in the
lineup less than six hours after the shooting, and in her identification packet that she
signed, she was “100%” sure defendant was the perpetrator. Even if she faltered on
the stand, her credibility and the weight given to her identification of defendant was
for the jury. Hannah, 312 N.C. at 293, 322 S.E.2d at 153 (citation omitted) (“[T]he
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Opinion of the Court
credibility of the witness and the weight to be given his identification testimony is for
the jury to decide.”).
“Since we find the pretrial identification procedures free of the taint of
impermissible suggestiveness, we hold the trial court properly admitted the in-court
identification of defendant by [Ms. Pulliam].” Id. at 294, 322 S.E.2d at 153.
Accordingly, this argument is without merit.
E. Detectives’ Statements
Defendant also contends the trial court plainly erred by allowing detectives to
testify Ms. Skyes and Ms. Pulliam were “forthcoming” and “unequivocal”
when they identified defendant as the shooter, because such statements invaded the
province of the jury as they were improper lay opinions under Rule 701. Defendant
argues “credibility determinations” are for the jury to decide, and thus the detectives
should not have been allowed to “bolster [the witnesses’] identifications[.]” This
argument is likewise without merit.
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C.R. App. P. 10(a)(1) (2023). However, “[i]n
criminal cases, an issue that was not preserved by objection . . . 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.
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Opinion of the Court
10(a)(4). Because defendant did not preserve any errors related to the testimony in
question, this Court’s review is limited to whether the trial court’s actions constituted
plain error.
Our Supreme Court has stated:
For error to constitute 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. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affect[s] the fairness, integrity[,] or public reputation of
judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (alteration in
original) (citations and quotation marks omitted). “Plain error includes error that is
a fundamental error, something so basic, so prejudicial, so lacking in its elements
that justice cannot have been done; or grave error that amounts to a denial of a
fundamental right of the accused; or error that has resulted in a miscarriage of justice
or in the denial to appellant of a fair trial.” State v. Gregory, 342 N.C. 580, 586, 467
S.E.2d 28, 32 (1996) (citation omitted).
Under Rule 701, a lay witness’s “testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of his testimony or
the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2022). This
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Opinion of the Court
Court has found that law enforcement’s testimony concerning a witness’s “demeanor
does not constitute an opinion as to the credibility of [the witness] that is subject to
Rule 701.” State v. Orellana, 260 N.C. App. 110, 116, 817 S.E.2d 480, 485 (2018)
(citing State v. Gobal, 186 N.C. App. 308, 317, 651 S.E.2d 279, 285 (2007), aff’d, 362
N.C. 342, 661 S.E.2d 732 (Mem) (2008)). Therefore, detectives’ testimony that the
witnesses were “standoffish” or “forthcoming” was admissible.
Furthermore, we do not believe detectives’ testimony that Ms. Skyes did not
waver in her narrative during her interview and was unequivocal about the person
they were discussing once she changed her story is a comment on her credibility. This
observation is based on his perception of the interview and is helpful considering the
difference between her initial statement that she did not know the shooter and her
later statement during her interview. See State v. Dickens, 346 N.C. 26, 46, 484
S.E.2d 553, 564 (1997) (finding the detective’s opinion about the witness’s “demeanor
was based on his personal observations” and “was helpful to a clear understanding of
his testimony concerning the differences between” the witness’s first and second
statement).
We do not believe the testimony by detectives were improper statements as to
Ms. Skyes’s credibility, as “[t]he cases in which this Court and [our] Supreme Court
have reversed convictions based upon [a witness vouching for the credibility of
another witness] generally involve testimony that directly comments on the
credibility of the” witness. State v. Dew, 225 N.C. App. 750, 762, 738 S.E.2d 215, 223,
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Opinion of the Court
disc. review denied, 366 N.C. 595, 743 S.E.2d 187 (Mem) (2013). Here, detectives did
not directly comment on whether Ms. Skyes was telling the truth. Gobal, 186 N.C.
App. at 318-19, 651 S.E.2d at 286 (finding detective’s testimony that it was his
“impression” the witness “told [him] the truth” was improper testimony as to the
witness’s credibility).
Even assuming arguendo that the statements were admitted in error, given
the video of defendant shooting the victim in the back as he attempted to run away,
and Ms. Pulliam’s and Ms. Skyes’s identifications of defendant as the perpetrator,
such statements cannot rise to the level of plain error. Accordingly, this argument is
without merit.
F. Cumulative Prejudice
Lastly, defendant argues the “cumulative effect of the preserved errors”
requires this Court to grant defendant a new trial. As we have found no errors, we
find no merit in this contention. See State v. Beane, 146 N.C. App. 220, 234, 552
S.E.2d 193, 202 (2001), appeal dismissed, 355 N.C. 350, 563 S.E.2d 562 (Mem) (2002).
III. Conclusion
For the foregoing reasons, we hold defendant received a fair trial free from
prejudicial error.
NO ERROR.
Judge DILLON concurs.
Judge MURPHY concurs in Parts II-A through II-D and concurs in
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Opinion of the Court
result only in Parts II-E and II-F.
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