State v. Posey , 233 N.C. App. 723 ( 2014 )

NO. COA13-1342
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 12 CRS 52033-34, 52036
JERRY DENARD POSEY, II
Appeal by Defendant from judgments entered 30 May 2013 by
Judge William Z. Wood in Superior Court, Forsyth County. Heard
in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Marc Bernstein, for the State.
Sharon L. Smith for Defendant.
McGEE, Judge.
Jerry Denard Posey, II (“Defendant”) was indicted on 10
December 2012 for first-degree murder of Terrance Murchison
(“Mr. Murchison”), possession of a firearm by a felon, and
carrying a concealed gun. A jury found Defendant guilty of
second-degree murder, possession of a firearm by a felon, and
carrying a concealed gun. The facts relevant to the issues on
appeal are discussed in the analysis section of this opinion.
Defendant appeals.
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I. Physical Restraints
Defendant first argues the trial court abused its
discretion in requiring Defendant to wear restraints at trial.
We disagree.
A. Standard of Review
“We review the trial court’s decision of whether to place
[d]efendant in physical restraints for abuse of discretion.”
State v. Stanley, 213 N.C. App. 545, 548, 713 S.E.2d 196, 199
(2011). “A review for abuse of discretion requires the
reviewing court to determine whether the decision of the trial
court is manifestly unsupported by reason, or so arbitrary that
it cannot be the result of a reasoned decision.” Id.B. Analysis
A defendant may be “physically restrained during his trial
when restraint is necessary to maintain order, prevent the
defendant’s escape, or protect the public.” State v. Wright, 82
N.C. App. 450, 451, 346 S.E.2d 510, 511 (1986). “What is
forbidden——by the due process and fair trial guarantees of the
Fourteenth Amendment to the United States Constitution and Art.
I, Sec. 19 of the North Carolina Constitution——is physical
restraint that improperly deprives a defendant of a fair trial.”
Id. In deciding whether restraints are appropriate, a trial
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court may consider, among other things, the following
circumstances:
“the seriousness of the present charge
against the defendant; defendant’s
temperament and character; his age and
physical attributes; his past record; past
escapes or attempted escapes, and evidence
of a present plan to escape; threats to harm
others or cause a disturbance; self-
destructive tendencies; the risk of mob
violence or of attempted revenge by others;
the possibility of rescue by other offenders
still at large; the size and mood of the
audience; the nature and physical security
of the courtroom; and the adequacy and
availability of alternative remedies.”
Stanley, 213 N.C. App. at 550, 713 S.E.2d at 200 (quoting State
v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353, 368 (1976)).
“However, the ultimate decision must remain with the trial
judge, who may not resign his exercise of discretion to that of
his advisors.” Tolley, 290 N.C. at 368, 226 S.E.2d at 368.
The record in the present case shows Defendant objected to
having to wear a “stiff knee brace[.]” At Defendant’s request,
the trial court held a hearing to determine whether Defendant
should wear the knee brace during trial. A deputy testified
that it was “standard operating procedure to place any inmate”
being tried for “a murder offense in some sort of restraint at
any time when [the inmate was] out of [the sheriff’s] custody.”
Defendant contends that the trial court’s ruling “was nothing
more than an accommodation of Sheriff’s Department policy[.]”
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However, the trial court did not base its decision upon
this testimony alone. The trial court considered Defendant’s
past convictions for common law robbery, misdemeanor possession
of stolen goods, misdemeanor larceny, and two counts of assault
on a female, along with Defendant’s three failures to appear in
2012 and two failures to appear in 2011, which the trial court
commented tended to show “some failure to comply with the
[c]ourt orders[.]” The trial court also considered Defendant’s
pending charge for simple assault that arose while Defendant was
in custody.
As in State v. Simpson, the trial court “was in the better
position to observe [] [D]efendant, to know the security
available in the courtroom and at the courthouse, to be aware of
other relevant facts and circumstances, and to make a reasoned
decision, in light of those factors, that restraint was
necessary or unnecessary.” State v. Simpson, 153 N.C. App. 807,
809, 571 S.E.2d 274, 276 (2002). Furthermore, where the “record
fails to disclose that a defendant’s shackles were visible to
the jury, ‘the risk is negligible that the restraint undermined
the dignity of the trial process or created prejudice in the
minds of the jurors,’ and the defendant will not be entitled to
a new trial[.]” Id. at 809-10, 571 S.E.2d at 276 (quoting State
v. Holmes, 355 N.C. 719, 729, 565 S.E.2d 154, 163 (2002)).
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In the present case, counsel for Defendant acknowledged
that the restraint was “not visible” and, when the trial court
commented that it “couldn’t hear any jingling[,]” counsel for
Defendant agreed. The trial court observed that the knee brace
did not make noise or jingle and that the knee brace could not
be seen by jurors or potential jurors. When Defendant later
walked back into the courtroom, the trial court observed that
Defendant “seems to be moving well.” The trial court noticed
“no problems, no sign of anything.” Counsel for Defendant
replied that he did not dispute the trial court’s observations,
but that the knee brace still constituted a restraint.
Furthermore, the trial court allowed Defendant to walk to the
witness stand out of the sight of the jury.
The present case is analogous to Simpson and Holmes, in
which the shackles were not visible to the jury. Holmes, 355
N.C. at 729, 565 S.E.2d at 163; Simpson, 153 N.C. App. at 809,
571 S.E.2d at 276. We conclude that the trial court did not
abuse its discretion on this basis.
II. Cross-Examination of Medical Examiner
Defendant next argues the trial court abused its discretion
by “precluding [Defendant] from cross-examining medical examiner
McLemore regarding her preliminary report of death[.]” However,
in “order for a party to preserve for appellate review the
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exclusion of evidence, the significance of the excluded evidence
must be made to appear in the record and a specific offer of
proof is required unless the significance of the evidence is
obvious from the record.” State v. Jacobs, 363 N.C. 815, 818,
689 S.E.2d 859, 861 (2010). Our Supreme Court also held that
“the essential content or substance of the witness’ testimony
must be shown before we can ascertain whether prejudicial error
occurred.” Id. “Absent an adequate offer of proof, we can only
speculate as to what a witness’s testimony might have been.”
Id. at 818, 689 S.E.2d at 861-62.
At trial, the State objected when counsel for Defendant
approached the witness with “a document called a preliminary
report of death[.]” After the jury exited the courtroom, the
State argued that the handwritten note on the report that read
“fighting in a club earlier” constituted hearsay. Following a
brief voir dire examination of the witness, counsel for
Defendant argued to the trial court that “it’s admissible under
the expert rules of testimony.” It appears that counsel for
Defendant was referring to the preliminary report of death. The
trial court stated: “I think under Rule 403 it would be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury.”
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Defendant made no offer of proof as to the questions
Defendant’s counsel would have asked of the medical examiner.
Defendant also made no offer of proof as to what the medical
examiner’s response to the questions would have been. Defendant
“has failed to preserve this issue for appellate review under
the standard set forth in” N.C. Gen. Stat. § 8C-1, Rule
103(a)(2) (2013). State v. Braxton, 352 N.C. 158, 184, 531
S.E.2d 428, 443 (2000).
III. Sufficiency of the Evidence of Second-Degree Murder
Defendant next argues the trial court erred in denying
Defendant’s motion to dismiss the charge of second-degree
murder. Defendant contends there was insufficient evidence that
Defendant acted with malice and not in self-defense.
A. Standard of Review
We review the trial court’s denial of a motion to dismiss
de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,
33 (2007). The “trial court must determine whether there is
substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345,
347 (2012) (internal quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id.-8-
The “trial court must consider the evidence in the light
most favorable to the State, drawing all reasonable inferences
in the State's favor.” Id. at 92, 728 S.E.2d at 347. “All
evidence, competent or incompetent, must be considered. Any
contradictions or conflicts in the evidence are resolved in
favor of the State, and evidence unfavorable to the State is not
considered.” Id. at 93, 728 S.E.2d at 347 (internal citations
and quotation marks omitted).
B. Analysis
Defendant presents two different arguments in this section.
First, as to malice, the “intentional use of a deadly weapon
proximately causing death gives rise to the presumption that
(1) the killing was unlawful, and (2) the killing was done with
malice.” State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772
(1980). “Evidence raising an issue on the existence of malice
and unlawfulness causes the presumption to disappear, leaving
only a permissible inference which the jury may accept or
reject.” State v. Weeks, 322 N.C. 152, 173, 367 S.E.2d 895,
907-08 (1988) (internal quotation marks omitted).
If “there is any evidence of heat of passion on sudden
provocation, either in the State’s evidence or offered by the
defendant, the trial court must submit the possible verdict of
voluntary manslaughter to the jury.” Id. at 173, 367 S.E.2d at
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908. In the present case, the trial court did submit the charge
of voluntary manslaughter to the jury. Defendant has not shown
error on this basis.
Second, Defendant argues that the State failed to show that
Defendant did not act in self-defense. “A person who kills
another is not guilty of murder if the killing was an act of
self-defense.” State v. Hamilton, 77 N.C. App. 506, 513, 335
S.E.2d 506, 511 (1985). To survive a motion to dismiss, the
State must present “evidence which, when taken in the light most
favorable to the State, is sufficient to convince a rational
trier of fact that [the] defendant did not act in self-defense.”
Id.Officer Geddings testified that he was monitoring the
crowds exiting from a club shortly after 2:00 a.m. when he
noticed “a muzzle flash of a gun” and heard a gunshot. He
looked in the direction of the gunshot and saw Defendant lower a
gun. Officer Geddings was about twenty to twenty-five yards
away from Defendant. Officer Geddings saw no fight or
altercation before the gunshot. He did not see anyone running
or hear any yelling before the gunshot. Officer Geddings
allowed Defendant to make calls from his cell phone while in the
back seat of the patrol vehicle. Defendant told his mother on
the phone that he “shot somebody.” When his mother asked why,
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Defendant answered: “Disrespect.” Officer Geddings also did not
find any other firearms in the parking lot.
Tommy Murchison, the brother of Mr. Murchison, testified
that he and his brother went to the club with their girlfriends.
Tommy Murchison exited the club at 2:00 a.m., with his brother
behind him, but he was parted from his brother on the way to the
vehicle. Tommy Murchison testified that he heard a gunshot and
later saw his brother lying on the ground. At that time, Tommy
Murchison thought his brother was on the ground because he was
simply intoxicated. An officer helped Mr. Murchison into the
vehicle. Tommy Murchison testified that they went to get
something for his brother to eat. He then noticed that his
brother was injured and went directly to a hospital. Tommy
Murchison testified that he did not see his brother with a gun
that night, nor did he see a weapon in the vehicle.
Tiara Stowe (“Ms. Stowe”), the driver of the vehicle, also
testified that no one in her vehicle had a gun. Mr. Murchison’s
shirt and pants were “fitted tight on him, so you would be able
to see” if there was a weapon in his pockets. Ms. Stowe
testified that, from her position in the club, she kept an eye
on her group. She saw “a little fight break out” near Mr.
Murchison around closing time, but Mr. Murchison was not
involved in the fight.
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Officer Bullard testified that he was about seventy-five
feet away from where he thought he heard the gunshot originate.
When he approached, he saw an individual staggering and falling
to his knees. The individual told Officer Bullard that he had
been shot. Officer Bullard testified that he called an
ambulance, and that the individual would not speak further to
him. Officer Bullard saw no weapon on the individual.
Dedrick Springs (“Mr. Springs”) testified for Defendant
that he saw “one guy” approach Defendant and say “something
like, I’m going to get you after the club.” He further
testified that this individual and Defendant were “in each
other’s faces.” When Mr. Springs exited the club at closing
time, he saw the same individual “pull his gun out on”
Defendant. Mr. Springs testified that the individual pulled the
gun from his pocket.
Defendant testified that, as he walked to the bathroom, Mr.
Murchison asked him “what the f--- [Defendant] was looking at.”
Defendant further testified that Mr. Murchison approached him
aggressively, and Tommy Murchison pulled Mr. Murchison away.
When Defendant exited the club at closing time, Mr. Murchison
walked up to Defendant, “looked [Defendant] in the eyes, g[a]ve
[him] a[n] evil look and said he was going to f---ing kill
[Defendant].” Defendant testified that he kept walking, trying
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to avoid Mr. Murchison, but Mr. Murchison came toward him again
and pulled a weapon. Defendant testified that he shot at the
ground to scare Mr. Murchison, but when he shot, “the gun lifted
up, like recoiled like that[.]”
Although Defendant contends on appeal that “[a]ll of the
evidence in the record supported a finding that the shooting
occurred during a sudden quarrel between” Mr. Murchison and
Defendant, the transcript belies this assertion. Officer
Geddings testified that he was outside the club to provide
security, and he testified that he saw no fight or altercation
before the gunshot.
As previously stated, the “trial court must consider the
evidence in the light most favorable to the State, drawing all
reasonable inferences in the State's favor.” Bradshaw, 366 N.C.
at 92, 728 S.E.2d at 347. “Any contradictions or conflicts in
the evidence are resolved in favor of the State, and evidence
unfavorable to the State is not considered.” Id. at 93, 728
S.E.2d at 347 (internal citations and quotation marks omitted).
The State’s evidence in the present case, particularly the
testimony of Officer Geddings, is sufficient to convince a
rational trier of fact that there was no quarrel or altercation
between Mr. Murchison and Defendant prior to the shooting, and
that Defendant did not act in self-defense. The discrepancy
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between the testimony of Officer Geddings and the testimony of
Defendant presented a conflict in the evidence, which was for
the jury to resolve. Hamilton, 77 N.C. App. at 514, 335 S.E.2d
at 511. The trial court did not err in denying Defendant’s
motion to dismiss and in submitting the charge of second-degree
murder, along with the charge of voluntary manslaughter, to the
jury.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.