State v Love

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-1578 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 STATE OF NORTH CAROLINA v. Cumberland County No. 09 CRS 61249 WALTER ALEXANDER LOVE Appeal by defendant from judgment entered 29 April 2011 by Judge Robert F. Floyd in Cumberland County Superior Court. Heard in the Court of Appeals 7 June 2012. Attorney General Roy Cooper, by Special General Gerald K. Robbins, for the State. Deputy Attorney Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellant. CALABRIA, Judge. Walter Alexander Love ( defendant ) appeals from a judgment entered upon a jury verdict finding him guilty of second-degree murder. We find no error in part and no prejudicial error in part. I. Background -2On 29 June 2008, a fight occurred at a house located at 723 Wilma Street in Fayetteville, North Carolina in an area known for drug activity and liquor sales. The house was a non-tax paid liquor house known by law enforcement as a shot house. During the fight, defendant s aunt, Deborah Jones ( Jones ) was struck in the face. She claimed the person who hit her with a pistol was the manager of the shot house, James Wilkins ( Wilkins ). Wilkins was arrested for assault on a female, but posted bond and was released. The next day, when Wilkins was in the process of closing down the shot house, Marion Sadler ( Sadler ) arrived. Wilkins informed Sadler that the shot house was closed and the two of them stood in the street talking. Wilkins heard shots fired in the vicinity of Paulio Wilkerson s ( Wilkerson ) home located up the street from the shot house. started again. The shooting stopped then When the shooting resumed, Sadler was shot. He died as a result of a gunshot wound to the chest. The bullets and shell casings found in the area were identified as .40 and .38 caliber. When officers from the Fayetteville Police Department ( FPD ) arrived, Wilkins identified four young men as potential suspects of the shooting. Defendant was not included as one of -3the men initially identified by Wilkins. The four men were questioned by officers at the FPD, and their hands were tested for gunshot residue, however none of them were arrested at that time. On the night of the shooting, resident of Wilma Street, told Willie Smith ( Smith ), a officers that he had heard between ten and twelve shots and that it sounded as though there were two individuals doing the shooting. However, he did not identify any Sergeant Gary individuals. Womble This ( Sergeant information Womble ) of was FPD. relayed to Sergeant Womble indicated that Smith was elusive and he was unable to establish contact with Smith. Sergeant Womble interviewed Wilkins on 2 July. Although Wilkins told him that defendant was present during the fight where Jones was struck, he did not identify defendant as one of the individuals responsible for the shooting. seeing anyone fire a gun. Wilkins denied What he did see, when he looked down the street on the night of the shooting, was a person wearing a white t-shirt who had long dreadlocks. Subsequently, FPD received four anonymous tips. Two of the four tips reported that Wilkerson possessed and fired a gun. During his investigation, Sergeant Womble received information that a man named David Hewitt ( Hewitt ) claimed that defendant -4and Devon Gales ( Gales ) were responsible for the shooting. However, when Sergeant Womble interviewed Hewitt, Hewitt indicated that after the shooting he observed Gales and a man known as Black running from the area. Black lived on Jasper Street. Hewitt said he thought Hewitt indicated that as Gales and Black were running, Black told Hewitt, you ain t see [sic] us. Black was the nickname of another man in the community, Keith Grady ( Grady ), who lived on Jasper Street. When Sergeant Womble interviewed Wilkins again on 8 July, Wilkins said he believed Gales and defendant shot Sadler. On 9 July, Sergeant Womble interviewed Riccardo Wallace, one of the young men initially detained after the shooting. Wallace said Wilkerson and Gales shot Sadler and described one of them as having dreadlocks and wearing a LeBron James basketball jersey. Based on Wallace s interview, Wilkerson was arrested the next day. On 11 July, Tacara Davis ( Davis ), Wilkerson s girlfriend and the mother of his child, initially told Sergeant Womble that Gales and defendant shot Sadler. However, Davis admitted she was inside her home when the shooting occurred, and that she did not see defendant or Gales fire a gun. On 15 July, Gales was arrested for the shooting. Sergeant Womble interviewed Hewitt again on 17 July, When Hewitt -5viewed a photographic lineup. defendant as the man he At that time, Hewitt identified knew as Black. identified as the man Hewitt knew as Black. Grady was not In December 2008, during a vehicle pursuit, FPD recovered a .40 caliber handgun that matched the handgun that was fired when Sadler was shot. Someone riding in the vehicle was close friends with one of defendant s relatives. However, Sergeant Womble testified that defendant s fingerprints were not found on any of the handguns, bullets, or shell casings tested. At the request of Wilkerson s lawyers, more than one year after Sadler was shot, Smith spoke with detectives. Smith indicated that he saw Gales and defendant aim at Wilkins, but hit Sadler instead. He was certain that it was a retaliation shooting for what Wilkins did to [Jones] the day before. While Smith did indicate that Wilkerson fired a gun the night Sadler was shot, he said that Wilkerson only fired his gun into the air after the shooting. Subsequently, after Wilkerson was released, defendant was charged with first-degree murder, attempted first-degree murder, and felonious conspiracy to commit first-degree murder. The jury returned verdicts finding defendant guilty of second-degree murder but not guilty of attempted first-degree murder or -6conspiracy to commit first-degree murder as to Wilkins. Defendant was sentenced to a minimum of 189 to a maximum of 236 months in the North Carolina Department of Correction. Defendant appeals. II. Statement of Co-Conspirator Defendant alleges that the trial court erred by admitting Davis s testimony regarding an out-of-court statement Gales made to her because it was inadmissible hearsay. We agree, however we find the error was not prejudicial. When preserved by an objection, a trial court s decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo. State v. Johnson, ___ N.C. App. ___, ___, 706 S.E.2d 790, 797 (2011). Hearsay is 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. Generally, hearsay Gen. Stat. evidence § is 8C-1, Rule 801(c) inadmissible. (2011). State Valentine, 357 N.C. 512, 515, 591 S.E.2d 846, 851 (2003). v. An assertion of one other than the presently testifying witness is hearsay and inadmissible if offered for the truth of the matter asserted. State v. Sibley, 140 N.C. App. 584, 587-88, 537 S.E.2d 835, 838 (2000) (citations omitted). -7In the instant case, Davis testified about a conversation she had with Gales after Wilkerson s arrest. The statement pertained to Wilkerson s involvement in the shooting. Davis indicated that she spoke to Gales on Wilma Street: [The State]: about? [Davis]: to stay something like, no, it. And what did you all talk He was just like [Wilkerson] has strong. I said, well, is there I m missing; did he do it. He was, he didn t have nothing to do with [The State]: So, [Gales] ---- [Defense Counsel]: Objection as to the conversation between [Wilkerson] and ---[The State]: He s an alleged coconspirator, Your Honor; and, according to her, it was a time before he was arrested and talked to law enforcement; and, he s talking to her, not law enforcement. So, we would contend it s a statement of a coconspirator that does come in under the hearsay exception ---[Defense counsel]: Conspiracy to do what? There s no allegation that we were involved in a conspiracy to obstruct justice or a crime or anything. [The State]: ---- There s an ongoing conspiracy [The court]: Overruled. [The State]: ---- to first-degree murder Although the State questioned Davis, Gales was not a -8witness who testified at trial. Gales out-of-court Therefore, the State elicited statement through Davis testimony. Furthermore, Gales statement was offered to prove the truth of the matter asserted, that Gales told Davis that Wilkerson was not involved in the shooting. See N.C. Gen. Stat. § 8C-1, Rule 801(c) (2011). Although Davis statement at trial was hearsay, because she repeated her conversation with Gales, who was not testifying at trial, the statement may still be admissible at trial if it falls within an exception to the hearsay rule. See N.C. Gen. Stat. § 8C-1, Rule 801(d) (2011). A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . a statement by a coconspirator of such party during the course and in furtherance of the conspiracy. N.C. Gen. Stat. § 8C-1, Rule 801(d)(E) (2011). The State must show that (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. Valentine, 357 N.C. at 521, 591 S.E.2d at 854 (citations omitted). The State must establish a prima facie case of conspiracy, without reliance omitted). on the statement at issue. Id. (citations In making its prima facie case, the State is granted -9wide latitude, and the evidence is viewed in a favorable to the State. Id. (citations omitted). light most A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Privette, __ N.C. App. ___, ___, 721 S.E.2d 299, 313 (2012), disc. review denied, __ N.C. ___, 724 S.E.2d 532 (2012) (citation omitted). In the instant case, in the light most favorable to the State, the State presented some evidence of a conspiracy. The State s evidence established a motive for the shooting because the night defendant before and the Gales shooting, aunt. In Wilkins addition, assaulted some presented that defendant and Gales shot Sadler. Jones, evidence was While Davis did not see defendant shoot Sadler, she testified that prior to the shooting, she heard defendant say, let s just get to it and that shortly thereafter she heard shots fired. Smith testified that he was standing outside talking to defendant when he saw Gales walking down a path, started firing a .45 or .9 and then defendant fired a .38. Additionally, Hewitt testified that after Sadler was shot, he saw both Gales and defendant running away from Wilma Street and that defendant told Hewitt you ain t see [sic] us. In the light most favorable to the State, the -10State provided sufficient evidence to establish a prima facie case of a conspiracy between defendant and Wilkins in retaliation for Jones injuries. Gales to shoot See Valentine, 357 N.C. at 521, 591 S.E.2d at 854 (citations omitted). However, to be admissible as a statement of a co- conspirator, the statement must be made during the course and in furtherance of the conspiracy. N.C. Gen. Stat. § 8C-1, Rule 801(d)(E) (2011). A declaration made after the termination of the conspiracy is not admissible against other members of the conspiracy. 132, 134 State v. Littlejohn, 264 N.C. 571, 573, 142 S.E.2d (1965). A conspiracy can be terminated by the achievement of its purpose or by the failure to achieve it. Id. Success or failure or abandonment terminates a conspiracy. State v. Mettrick, 54 N.C. App. 1, 13, 283 S.E.2d 139, 147 (1981). Furthermore, the declaration must be made in furtherance of the common design [to] be introduced in evidence against the other members of the conspiracy. State v. Wells, 219 N.C. 354, 356, 13 S.E.2d 613, 614 (1941) (citation omitted). When a declaration was merely narrative as to what [had] been done or [would] be done this Court has held that the statement was incompetent, and should not be admitted except as against the defendant making them, or in whose presence they are made. -11Id. (citation omitted). According to the State s theory, Gales and defendant conspired to shoot Wilkins on 30 June 2008. A shooting occurred, but Sadler, not Wilkins was shot. Assuming the State s theory was correct, the conspiracy between Gales and defendant ended when they failed to complete the purpose of the conspiracy, which was to shoot Wilkins. 283 S.E.2d at 147. occurred at least See Mettrick, 54 N.C. App. at 13, The conversation between Davis and Gales 10 days after the shooting. Since Gales statement to Davis occurred after the shooting, it was not made during the course of a conspiracy. See State v. Marlow, 334 N.C. 273, 282-83, 432 S.E.2d 275, 280 (1993) (where the Court held that the trial court erred in admitting testimony regarding a conversation the day after a murder because the conversation occurred after the termination of the conspiracy, and therefore not during its course). The statement of a co-conspirator furtherance of the conspiracy. 801(d)(E) (2011). Gales must also occur in N.C. Gen. Stat. § 8C-1, Rule statement indicated that Wilkerson needed to stay strong and that Wilkerson had nothing to do with the shooting. regarding There Wilkerson was no indication furthered a that conspiracy Gales statement with defendant. -12Therefore, the State failed to show how Gales statement to Davis regarding Wilkerson was in furtherance of a conspiracy between Gales and defendant. Although the State offered some evidence of a conspiracy, it failed to show that Gales statement was made during the course of or in furtherance of the alleged conspiracy between Gales and defendant. The trial court erred in admitting Davis testimony concerning Gales statement. While we conclude that the trial court erred in admitting Gales statement, the defendant must also show that he was prejudiced by Davis testimony. Erroneous admission of evidence is prejudicial when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. N.C. Gen. Stat. § 15A-1443(a) (2011); see Marlow, 334 N.C. at 283, 432 S.E.2d at 280 (where the Court held that while admission of a co-conspirator statement was error, the defendant was not prejudiced because the evidence against him was overwhelming ). In the instant case, the evidence at trial indicated that witnesses gave varying reports of the identity of the second shooter. Some evidence was presented that defendant shot -13Sadler. However, there was also evidence that Wilkerson shot Sadler. Defendant claims that the admission of Gales statement was prejudicial because according to the defense s Gales accomplice was Wilkerson, not defendant. theory, Therefore, any evidence tending to exculpate Wilkerson would tend to implicate defendant. We disagree. There was no physical evidence linking either defendant or Wilkerson to Sadler s Davis death, testified only witness testimony. that defendant and Both Wilkins and Gales Sadler. Davis saw defendant in possession of a gun prior to the shooting and heard him say, let s just get to it. shot Hewitt testified at trial that he saw defendant running from the area of the shooting. defendant fire Furthermore, towards the Smith shot testified house on that the he night saw in question. There was some evidence including Sergeant Womble s received indicating that Sergeant Womble ultimately that testimony Wilkerson released inculpated regarding shot Wilkerson, evidence Sadler. Wilkerson and he However, arrested defendant. Furthermore, Wallace, who identified Wilkerson as one of the shooters, moved to Washington sometime prior to the trial and did not testify. -14We find that it was unlikely that the hearsay testimony affected the jury. Since defendant was not prejudiced by Davis testimony, we find no prejudicial error. III. Lie Detector Test Defendant contends that the trial court erred by denying his motion for a mistrial after Smith testified that he was given a lie detector test. We disagree. The decision to grant a motion for mistrial rests in the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. Wood, 168 N.C. App. 581, 583, 608 S.E.2d 368, 370 (2005). recognized that because polygraph results This Court has are inherently unreliable, such evidence is inadmissible in any criminal or civil trial. State v. Willis, 109 N.C. App. 184, 192, 426 S.E.2d 471, 476 (1993). However, not every reference to a polygraph test will necessarily result in prejudicial error. State v. Sanders, 201 N.C. App. 631, 638, 687 S.E.2d 531, 536 (2010), disc. rev. denied, 363 N.C. 858, 695 S.E.2d 106 (2010). It is well-settled that where the trial court withdraws incompetent evidence and instructs the jury not to consider that evidence, any prejudice is ordinarily cured. State v. Davis, -15130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). In State v. Montgomery, a witness testified during crossexamination that he took a polygraph. 291 N.C. 235, 243, 229 S.E.2d 904, 909 (1976). The defendant immediately moved to strike the testimony and moved for a mistrial. Id. The trial court allowed the motion to strike and told the jury not to consider the witness s statement, but the trial court denied the motion for prejudicial a mistrial. error where Id. the The Court found witness there testified was on no cross- examination and [t]here was no evidence before the jury as to the nature of the test, the questions propounded, the answers given or the result of the test and when the trial court immediately granted defendant s motion to strike and instructed the jury that they were not to consider the evidence. Id. at 244, 229 S.E.2d at 909. In the instant case, Smith testified about submitting to a lie detector test during cross-examination: [Defense Counsel]: And, in fact, Sergeant Womble s not the only person you gave a statement to in July of 2009, is he? [Smith]: No. I gave a statement to [Wilkerson] lawyers. [Defense Counsel]: Well, you gave you gave a statement to Sergeant Hart with the [FPD], didn t you? -16[Smith]: Sergeant Hart? [Defense Counsel]: A female police officer. [Smith]: The only statement through a lie detector test. I got was Motion [Defense Counsel]: Objection. strike. I ask for a mistrial. gave to The trial court immediately granted defendant s motion to strike and instructed the jury that [t]hat response is not to be considered by you as evidence. In the instant case, Smith s statement regarding the lie detector test during cross-examination was testimony of the witness in Montgomery. statements were unintentionally similar to the In both cases, the elicited by the defense. Furthermore, there was no evidence before the jury regarding the nature of the test, the answers that were given or the results of the test. Therefore, since the trial court granted defendant s motion to strike and instructed the jury not to consider the response as evidence, the trial court did not abuse its discretion by denying defendant s motion for a mistrial. Defendant alleges that by mentioning the lie detector test, the jury would infer that Smith passed since Wilkerson was released and defendant was arrested. However, the results of the test were never mentioned, and more importantly the trial court -17presumably cured any prejudice by immediately ordering the jury to disregard the statement regarding the test. Davis, 130 N.C. App. at 679, 505 S.E.2d at 141. Defendant cites State v. Moose contending that he should be granted a new trial. 115 N.C. App. 707, 446 S.E.2d 112 (1994). A new trial was granted in Moose because the prosecutor asked questions about the polygraph after being warned twice that he was not to mention it without consulting the judge. Id. at 70910, 446 S.E.2d distinguishable. at 113. Here the However, State the did not instant elicit case is testimony regarding a lie detector test. In fact, Smith was instructed twice by the prosecutor that he was not to mention the test. Therefore, the holding from Moose is not applicable and we find no error. IV. Hearsay Defendant alleges the trial court erred by admitting several hearsay statements from Davis and Wilkins. We agree that some of the testimony was inadmissible. However, we find that any error was not prejudicial. Initially, we note that the State s brief does not address the admissibility of any of Davis or Wilkins statements. The State does not take the position that these statements were not -18hearsay, nor does the State allege that the statements fall within an exclusion or exception to the hearsay rule. Rather, the State believes that Davis inconsistent testimony goes to the weight of her testimony, not its admissibility. Ultimately, the State concludes that defendant failed to meet his burden of proving that the trial court s admission of Davis and Wilkins statements was plain error and therefore the defendant s argument should be overruled. The trial court s determination as to whether an out-ofcourt statement constitutes hearsay is reviewed de novo on appeal. State v. Castaneda, ___ N.C. App. ___, ___, 715 S.E.2d 290, 293, appeal dismissed and disc. review denied, 365 N.C. 354, 718 S.E.2d 148 (2011). Hearsay is 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. Generally, hearsay Gen. Stat. evidence is N.C. at 515, 591 S.E.2d at 851. § 8C-1, Rule inadmissible. 801(c) (2011). Valentine, 357 Once a statement qualifies as hearsay, it is inadmissible unless it is allowed by statute or an applicable exception. See N.C. Gen. Stat. § 8C-1, Rule 802804 (2011). Our statutes indicate that [a] witness may not testify to -19a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. 602 (2011). Testimony inadmissible. N.C. Gen. Stat. § 8C-1, Rule which is mere speculation is State v. Elkins, __ N.C. App. __, __, 707 S.E.2d 744, 750 (2011) (citation omitted). Personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 495, 566 S.E.2d 151, State v. Wright, 151 N.C. App. 493, 153 (2002) (brackets and citations omitted). A. Davis Testimony Davis testified for the State at trial. Davis was a resident on Wilma Street at the time Sadler was shot, however she had no personal knowledge of the shooters identities because once she heard gunshots, she went inside her home during the shooting. Defendant contends that several portions of Davis testimony were inadmissible. The State elicited testimony from Davis about statements defendant made prior to the shooting: [The State]: Before the shooting or after the shooting, did you tell [Sergeant Womble] what [defendant] said? -20[Davis]: I told him that they were outside arguing and [defendant] was like let s just ---[Defense Honor. Counsel]: [The court]: [Defense object. Objection, Your Basis? Counsel]: [The court]: overruled. Hearsay. The We objection s [The State]: What did [defendant] say? [The court]: You may answer, ma am. [Davis]: I heard him arguing, saying they were all out there arguing. [The State]: What did you hear ---- [Davis]: I heard him say let s just get to it. They were all out there arguing, but I didn t see him shoot. I never saw him shoot. [The State]: You heard him say, shooting, let s get to it, yes or no? [Davis]: before Correct. [Defense Counsel]: Objection to the characterization, Your Honor, or to the leading. [The court]: Sustained. [The State]: Before you heard the shooting, did you hear him make that state[ment]? [Davis]: I believe so. This has happened -21so long ago, I really don t know. [Defense Counsel]: Motion the entire line, Your Honor. [The Court]: to strike Overruled. The admitted statement was hearsay because the declarant, defendant, did not testify at trial and the State elicited the statement through Davis testimony. Furthermore, the statement was offered to prove the truth of the matter asserted, that prior to the shooting defendant said let s just get to it. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2011). However, the statement is admissible if it falls within an exception to the hearsay rule. See N.C. Gen. Stat. § 8C-1, Rule 803-804 (2011). Pursuant to the state of mind exception to the hearsay rule, [e]vidence tending to show a presently existing state of mind is admissible if the state of mind sought to be proved is relevant and the prejudicial effect of the evidence does not outweigh its probative value. 549, 481 citations S.E.2d 652, omitted). declarant's State v. East, 345 N.C. 535, 662 (1997) (internal When intent is statements, relative to directly his intention[,] are admitted without question. S.E.2d at 662 (citations omitted). quotations in then and issue, a existing Id. at 549, 481 In State v. Bryant, the Court held that the defendant's statement to his sister that he -22was going to meet two guys to buy stolen merchandise was admissible ... as a statement of his then-existing intent to engage in a future act. 337 N.C. 298, 310, 446 S.E.2d 71, 78 (1994). In the instant case, Davis testimony that prior to the shooting defendant said let s just get to it shows defendant s intent to engage in a future act. The context of the statement indicated that defendant, Gales, Wilkerson and others were in Wilkerson s house. front yard, several houses away from the shot Davis observed both defendant and Gales had guns in their possession. As the men stood in the front yard, Davis heard statement. defendant s defendant fire a gun. Davis did not see Gales or While the statement does not indicate what defendant was referring to when he said he wanted to get to it, the statement does indicate that defendant intended to engage in a future act. The statement was relevant to show defendant s actions on the day of the shooting. Defendant s statement, let s just get to it was admissible as an exception to the hearsay rule under N.C. Gen. Stat. § 8C-1, Rule 803(3) and therefore the trial court did not err in admitting the statement. The State also questioned Davis about whether she told -23Sergeant Womble that Gales told her to stick to the script. She replied: [Davis]: I told him so many things. [The State]: Would you listen to my question, please, Ms. Davis. Did you tell him, in July of 2008, along with the other things that you told him, that that night, after the shooting ---[Davis]: After the shooting, yes, [Gales] called ---[The State]: Did [Gales] call you and ---[Davis]: Yes. [The State]: script---- ---- tell you to stick to the [Davis]: No, not that night, no. [The State]: When did he call you ---[Davis]: This was when [Sergeant] Womble, apparently, was making his appearances in the neighborhood to talk with people. He said I went downtown and talked to the detective. Well, he had never went downtown, but what he told [Wilkerson] was I went downtown and talked to the detective, and they re -- just -- you know what I m saying -- stick with the story, you know ---[The State]: And didn t ---[Davis]: ---- and he was like I got your back and everything. [The State]: Did he tell you to stick with the script? [Davis]: No. He was referring to [Wilkerson]. -24[The State]: So, he told [Wilkerson] to stick to the script? [Davis]: The story, yes, I guess -- but he wasn t there or whatever. The admitted statement was hearsay because the declarant, Gales, did not testify at trial and statement through Davis testimony. the State elicited the Furthermore, the statement was offered to prove the truth of the matter asserted, that after the shooting Gales indicated that there was some script that Wilkerson needed to adhere to when interacting with the detectives. See N.C. Gen. Stat. § 8C-1, Rule 801(c) (2011). The State cites no exception, and we can find none, to indicate Davis statement that Gales told her Wilkerson should stick with the script was admissible hearsay. Therefore, this that told statement should have been excluded. Davis testified on direct examination she Sergeant Womble that [Wilkerson] was not shooting, but [Gales] and [defendant] were the ones that were shooting. In that same line of questioning, Davis indicated that she also told Sergeant Womble that she did not actually see Gales and defendant shoot Sadler, but rather saw them with guns, and that she did not see Wilkerson shoot a gun, but heard that he shot one into the air. While defendant is correct that this testimony is certainly -25inconsistent and that Davis has no personal knowledge of the shooters identities, the only portion of the testimony that was hearsay was Davis statement that she did not see Wilkerson shoot a gun, but that she heard that he shot a gun into the air. Davis was allowed to testify to Wilkerson s actions as if they were based on her personal knowledge, yet she had only heard that information from a third party who was not testifying at trial. The statement was offered to prove that Wilkerson was not one of the shooters, because he had only fired a gun into the air, not towards the shot house. Davis testimony concerning Wilkerson s activities on the night of the shooting should have been excluded. Davis further testified during direct examination regarding statements she made to Sergeant Womble regarding information she had obtained from the neighborhood about the identity of the shooters. Davis testified that she told Detective Womble that she saw Gales and defendant go through the path by the fence, but then said, I didn t see them, no, but that s what I heard. . . . That s what I told him cause that s what I heard. In addition, Womble, Davis he had testified the that wrong she man. repeatedly I was like [defendant] had something to do with it too[.] told I Sergeant hear that -26Initially, we note that Davis had no personal knowledge about the accuracy of these statements. She admitted that she did not see Gales and defendant go through the path by the fence and that she heard rather than knew that defendant was involved in the shooting. While [p]ersonal knowledge is not an absolute and may consist of what the witness thinks he knows from personal perception, Wright, 151 N.C. App. at 495, 566 S.E.2d at 153, there was no evidence presented, in the instant case, that Davis perceived the events she testified about. Furthermore, were hearsay. sources that defendant is correct that these statements The declarants of these statements were unnamed made these statements to Davis, rather than witnesses testifying at the trial or hearing. In addition, the statements were offered for the truth of the matter asserted, that Gales and defendant were the after the shooting. shooting and that perpetrators defendant was who ran involved in away the The State did not contend at trial, or on appeal, that these statements were offered for any other value other than the truth of the statements. The State cites no exception, and we can find none, that would indicate Davis statements regarding what she heard in the neighborhood were admissible hearsay. -27On cross-examination, over defense objection, Davis was permitted to testify, I did try to get some witnesses, but some of the people didn t want to go to court[.] For hearsay purposes, a statement is defined as (1) an oral or written assertion or (2) nonverbal conduct intended by him as an assertion. 801(a) (2011). court is not individuals. of a person, if it is N.C. Gen. Stat. § 8C-1, Rule The fact that some people did not want to attend an oral or written assertion by these unnamed There is no suggestion in the transcript that the act of not wanting to go to court was intended by the declarants as an assertion. Davis did not mention anyone actually telling her that they did not want to testify. This statement expressed Davis opinion on others feelings, not necessarily what they had said to her. See N.C. Gen. Stat. § 8C-1, Rule 701 (2011); Elkins, __ N.C. App. at ___, 707 S.E.2d at 750 ( a lay witness may testify as to his or her opinion, provided the opinion is rationally based upon his or her perception and is helpful to the jury's understanding of the testimony or the determination of a fact in issue (citation omitted)). Therefore, Davis statement does not qualify as hearsay and was properly admitted at trial. Finally, Davis was allowed to testify during cross- -28examination about Wilkerson s release. incidents that occurred subsequent to Defendant read a post made by Davis on the social networking site, MySpace, in October 2009: Can t stand mother-f---ers that don t got no damn sense; how the f--- you going be a snitch in District Court, no indictment, no plea, nothing; the damn DA don t even got a case; free my nigga, [Gales], ND, only he knows what s going down; the same mother-f--ers scream and snitch ain t got heart to wear no f---ing charge; here it is, real as it get, release papers, yeah, unsufficient evidence; Defendant also dismissal of pointed out Wilkerson s that charges Davis on posted her a MySpace copy of page. the On redirect examination, the State questioned Davis about why she posted the statement. Davis responded: Someone pulled out a gun on [Wilkerson] that night [a month prior to the post] which led to someone else getting shot, and that s when people were calling my phone, writing on MySpace that he was a snitch and that -as far as me writing the DA part, I wasn t talking about the DA. I was talking about [Sergeant] Womble didn t have a case because he -- and I was saying that [Wilkerson] wasn t a snitch because he didn t get indicted, and he couldn t have been a snitch. He didn t have to take a plea, and he couldn t have been the snitch because it stayed in District Court; and, I copied the release papers and put them on there to prove that he was not a snitch; that s why he got released, because the newspaper, when he got out, said that he was released, that he cooperated with the police; and, they had -29-- like, everywhere on the streets, people wanted to kill him for that. So, I posted that on my page to say that he was released due to insufficient evidence, cause that s what that paper says. On appeal, defendant contends Davis testimony was error because she described the incident where someone pulled a gun on Wilkerson, that unidentified people called Wilkerson a snitch, that when Wilkerson was released, cooperative with law the newspaper said he was enforcement and that the dismissal indicated Wilkerson was released for insufficient evidence. A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. N.C. Gen. Stat. § 15A 1443 (c) (2011). Thus, a defendant who invites error concerning has the waived invited his right error, to including all appellate plain error review review. State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001). When examination, the invited error. a defendant admission elicits of the a statement statement, if on cross- error, is State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007). After one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant -30had it been offered initially. State v. Brown, 64 N.C. App. 637, 645, 308 S.E.2d 346, 351 (1983). In the instant case, defendant introduced Davis MySpace post into evidence. Defendant read the post which included references to several of the topics defendant claims should have been excluded, including the discussion of a snitch and that there was insufficient evidence against Wilkerson. After reading the post, defendant also pointed out that Wilkerson s charges were dismissed. Since defendant introduced this information into evidence, any error is invited error and is waived for appellate review. statements Davis made on Furthermore, while some of the redirect were not introduced by defendant, they were offered as an explanation of her MySpace post and were therefore admissible. See id. The trial court did not err in admitting these statements. B. Wilkins Testimony Wilkins testimony at trial also included a statement that defendant contends was supposed eyewitness testimony ... merely disguised [as] hearsay. The testimony was as follows: [The State]: Did you ever see anybody doing the shooting? [Wilkins]: I saw two people one like everybody say, he was in the wood he wasn t in the woods. He was the one on the -31side of the house, and my friend saw him with the that s why I was surprised you all didn t subpoena him. [The State]: Who is that? [Wilkins]: Pete Todd. [The State]: Pete Todd? [Wilkins]: [Nodding head in the affirmative.] He had came around from the girl house, around the back of the other house. He was standing on the side of the building. [Gales] was in the woods, but he wasn t he wasn t in the woods. He was beside the house. [The State]: So, you re saying [Gales] was in the woods; and, when you re saying he, who are you talking about beside the house? [Wilkins]: [Defendant] [The State]: And, when you heard these shots, did you actually see who was doing the shooting? [Wilkins]: No, I didn t, cause I once [Sadler] said he got shot, I ducked behind my truck, then I saw them running through the woods and came out that way there [pointing]; and, all four of them some of them split that s why I told him there were four that I saw walking, those are the four I saw coming in the woods. ... [Defense Counsel]: Okay. you see who was shooting? [Wilkins]: I saw [Gales]. the wood fence. All right. Did He was next to -32[Defense Counsel]: All right. [Wilkins]: I didn t see him, but somebody else saw him. [Defense Counsel]: [Wilkins]: the house. Okay. He the one that ran from behind [Defense Counsel]: Objection, Your Honor. Motion to strike. He s saying he didn t see him, somebody else said they saw him. [The State]: He asked the question. [The court]: It s overruled at this point. Let me see counsel up here. [Following bench conference, which was attended by counsel for both sides and the Court, and which was held out of the hearing of any jurors and the defendant, counsel for both sides resumed their respective seats in the courtroom.] [Defense Counsel]: shoot? [Wilkins]: Pardon? [Defense Counsel]: shooting, right? [Wilkins]: Uh-huh affirmative.] [Defense Counsel]: [defendant] shoot? [Wilkins]: You said you saw [Gales] You said you saw [Gales] [nodding But you head in the didn t see I saw him behind the house. I -33didn t see him shoot. He was behind the house with a white T-shirt on ---... [Defense Counsel]: see him shooting? Okay; but, you didn t [Wilkins] No. [Defense Counsel]: Okay. [Wilkins]: But my friend saw him shooting. He was ---[Defense Counsel]: [The court]: The trial court Objection, Your Honor. All right. also granted Sustained. defendant s motion to strike Wilkins last statement. The State elicited statements from Wilkins that his friend, Pete Todd ( Todd ), saw defendant during the shooting. As Todd did not testify at trial, and the statement was offered to prove that defendant was present during the shooting, the statement was hearsay. none, that The State cites no exception, and we can find would indicate Wilkins friend saw was admissible hearsay. statement about what his Therefore, the trial court erred in overruling defendant s objection and allowing Wilkins to testify about information that he had no personal knowledge of based witness. on statements made to Wilkins by a non-testifying -34C. Prejudice While we agree with defendant that the trial court erred by admitting several of Davis and Wilkins statements, defendant must also show that he was prejudiced by these errors. Although defendant focuses on plain error review in his brief, some of the statements were objected to at trial. 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 (2001). In a criminal case, when a party fails to object to an issue at trial and the issue is not deemed preserved by rule or law without any such action [it] 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. 10(a)(4) (2012); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). The North Carolina Supreme Court has elected to review unpreserved issues for plain judge s error when instructions they to involve the admissibility of evidence. jury, either or (1) (2) errors rulings in the on the State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the -35error is so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.] State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result. State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). In the instant case, there was strong evidence presented that defendant shot Sadler, including the fact that Jones was Gales and defendant s aunt, but was not related to Wilkerson. Smith, a resident of the neighborhood for twenty years, testified that he saw defendant fire at least four shots. Davis testified that, prior to the shooting, she saw defendant with a gun and heard him say, let s just get to it. Furthermore, Hewitt heard the shots and subsequently saw Gales and defendant coming from Wilma Street. [sic] us. Defendant told Hewitt, you ain t see Based on this evidence, we find that even if the errors in question had not occurred, under either standard of review, the jury would not have reached a different verdict. V. Conclusion The trial court erred by admitting Gales statement that Wilkerson did not shoot Sadler since the statement was -36inadmissible hearsay, prejudiced defendant. however, it trial were unlikely the statement The trial court did not err by denying defendant s motion for mistrial. at is hearsay, and While several statements made therefore inadmissible, unlikely that the statements prejudiced defendant. we find no prejudicial error. No error in part, no prejudicial error in part. Judges STROUD and McCULLOUGH concur. Report per Rule 30(e). it is Therefore,

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