State v. Johnson ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-360
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 11 CRS 214093
FLOYD JAMAR JOHNSON,
Defendant.
Appeal by defendant from judgment entered 16 May 2012 by
Judge Michael J. O'Foghludha in Wake County Superior Court.
Heard in the Court of Appeals 23 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas D. Henry, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant-appellant.
GEER, Judge.
Defendant Floyd Jamar Johnson appeals from his conviction
of assault with a deadly weapon with the intent to kill, first
degree burglary, misdemeanor child abuse, and misdemeanor
assault by pointing a gun. On appeal, defendant primarily
argues that the trial court committed plain error by admitting
testimony recounting unsworn statements of a witness taken on
-2-
the night of the alleged crime when, defendant asserts, the
statements did not corroborate the witness' in-court testimony.
Although the unsworn statement differed slightly from the in-
court testimony of the witness, both accounts were substantially
the same, and the unsworn statement tended to add weight and
credibility to the witness' account. The testimony regarding
the unsworn statement was, therefore, admissible corroborative
evidence.
Facts
The State's evidence tended to show the following facts.
Defendant was married to Saroya Johnson with whom he had two
children. In February 2011, their marriage was experiencing
difficulties, and Ms. Johnson moved out of the marital home.
She began a relationship with Floyd Farrow, her co-worker.
In March 2011, defendant learned of the relationship
between Ms. Johnson and Mr. Farrow. One evening in April 2011,
defendant waited outside Ms. Johnson's home and upon seeing Ms.
Johnson return to the house with Mr. Farrow, charged Mr. Farrow
and took swings at him. Mr. Farrow responded by rushing to his
truck to get his gun. The situation de-escalated when Mr.
Farrow realized who defendant was and asked defendant to talk
"man to man." Defendant agreed and asked Mr. Farrow to put away
his gun, which he did. Mr. Farrow offered to "back off" from
-3-
Ms. Johnson if defendant wanted to make their relationship work,
but defendant replied "Nah, nah, she's yours." The two men
shook hands before defendant left. Between April and June 2011,
defendant had no further contact with Mr. Farrow.
On the night of 20 June 2011, defendant was driving back to
Raleigh from Elizabeth City with his nine-year-old son. Over
the weekend, defendant had called Ms. Johnson several times, and
the final call had ended abruptly when Ms. Johnson's phone went
dead. Ms. Johnson was staying at Mr. Farrow's apartment that
night. Around 12:15 a.m., defendant knocked on Mr. Farrow's
apartment door, and Mr. Farrow's roommate, Kenneth Hamlin,
answered. Defendant asked if Mr. Farrow was at home. Mr.
Hamlin was unsure, so he knocked on Mr. Farrow's bedroom door.
When he did not get a response, he told defendant that Mr.
Farrow was not home. Defendant asked, "So that's not his truck
outside?" Mr. Hamlin replied, "I guess so, man, but nobody came
to his door so nobody's there." When defendant asked whether
his wife was inside, Mr. Hamlin replied that he did not know.
Sensing that defendant was upset, Mr. Hamlin then tried to close
the door. However, defendant blocked the door and entered the
apartment with his gun pointed at Mr. Hamlin, saying, "Where the
fuck are they?"
-4-
Meanwhile, Mr. Farrow and Ms. Johnson had heard the knock
at the door from inside the bedroom. Ms. Johnson recognized
defendant's voice and told Mr. Farrow "[t]hat's Jamar." Mr.
Farrow called 911 and grabbed his gun because he "knew nothing
good was going to happen." Ms. Johnson retreated to the
bathroom.
Mr. Farrow then opened his bedroom door to peek out and
found defendant standing in front of the bedroom. He attempted
to shut the door on defendant who started pushing on the door
from the hallway, trying to gain entry into the bedroom. Mr.
Farrow saw defendant's arm come around the door and saw that
defendant had a gun. Mr. Farrow dropped to the ground, aimed
his gun at defendant, and fired five shots at defendant,
thinking "[i]t's either him or me."
Defendant was hit in the neck and chest. He fired one shot
from his gun, but it did not strike Mr. Farrow. Police found
five 40 caliber shells and one 45 caliber shell at the scene.
After the shots were fired and defendant lay incapacitated on
the floor, Mr. Farrow took control of both guns, released the
magazine from his gun, unloaded defendant's gun, placed them
both on the kitchen counter, and redialed the police. Ms.
Johnson heard her nine-year-old son screaming outside the
apartment and ran to comfort him.
-5-
On 12 September 2011, defendant was indicted for assault
with a deadly weapon with intent to kill, first degree burglary,
misdemeanor child abuse, and misdemeanor assault by pointing a
gun. The jury found defendant guilty of all the indicted
offenses. The trial court consolidated the offenses for
sentencing and sentenced defendant to one presumptive-range term
of 60 to 81 months imprisonment. Defendant filed a written
notice of appeal and a petition for writ of certiorari.
Discussion
We first address this Court's jurisdiction to hear this
appeal. Defendant filed a written pro se notice of appeal on 31
May 2012, 15 days after judgment was entered. The notice of
appeal was filed one day late. See N.C.R. App. P. 4(a), (b).
Our Supreme Court has held that a jurisdictional default, such
as a failure to comply with Rule 4 of the Rules of Appellate
Procedure, "precludes the appellate court from acting in any
manner other than to dismiss the appeal." Dogwood Dev. & Mgmt.
Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361,
365 (2008). Because defendant's notice of appeal was untimely,
we must dismiss his appeal. Defendant has, however, filed a
petition for writ of certiorari pursuant to Rule 21(a)(1) of the
-6-
Rules of Appellate Procedure. We exercise our discretion to
allow the petition and address the merits of this appeal.1
I
Defendant first argues that the trial court erred by
admitting testimony regarding prior unsworn statements of Ms.
Johnson to the police on the night of the incident when those
statements did not corroborate Ms. Johnson's testimony at trial.
Because defendant did not object to the admission of this
evidence at trial, we review for plain error. Our Supreme Court
has explained:
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)
(internal citations and quotation marks omitted).
"A witness's prior consistent statements may be admitted to
corroborate the witness's courtroom testimony." State v.
1
We note that the State has not responded to defendant's
petition and did not move to dismiss the appeal.
-7-
Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991). An
out-of-court statement will not be admitted, however, if it is
inconsistent with or contradicts the declarant's substantive
testimony at trial. State v. Stills, 310 N.C. 410, 416, 312
S.E.2d 443, 447 (1984). Moreover, if the statement "'contains
additional evidence going beyond [the declarant's] testimony,
the State is not entitled to introduce the "new" evidence under
a claim of corroboration . . . .'" State v. Warren, 289 N.C.
551, 557, 223 S.E.2d 317, 321 (1976) (quoting State v. Brooks,
260 N.C. 186, 189, 132 S.E.2d 354, 356 (1963)).
On the other hand, "if the testimony offered in
corroboration is generally consistent with the witness's
testimony, slight variations will not render it inadmissible."
Id. Where the testimony is substantially similar, "[slight]
variations affect only the credibility of the evidence which is
always for the jury." Id. Moreover, "[n]ew information
contained within the witness' prior statement, but not referred
to in his trial testimony, may also be admitted as corroborative
evidence if it tends to add weight or credibility to that
testimony." State v. Garcell, 363 N.C. 10, 40, 678 S.E.2d 618,
637 (2009) (quoting State v. Davis, 349 N.C. 1, 28, 506 S.E.2d
455, 469-70 (1998)).
At trial, Ms. Johnson testified to the following:
-8-
Q. When you looked out of the
bathroom, what did you see?
A. I just seen him coming in the
door.
Q. When you say him, who are you
talking about?
A. The defendant, Floyd.
Q. You saw him come in the door? Of
what door?
A. Orlando's bedroom door.
Q. You saw him come into the bedroom
door?
A. Uh-huh.
Q. Did you see anything prior to
that?
A. No.
Q. And what was the next thing that
you -- did you see whether or not the
defendant had anything in his hands?
A. I did see him, like, with a gun in
his hand.
Q. I can't hear you.
A. I seen him with a gun in the hand
when the door opened and he came in.
Q. You saw him with a gun in his hand
and the door open?
A. Uh-huh.
Q. What were you thinking at that
point?
-9-
A. I wasn't. Like, I just went
blank. I just --
Q. What's the next thing that you
recall after seeing him come into the
bedroom with a gun?
A. I just seen fire.
Q. When you say fire, what do you
mean?
A. Just seen, I guess, gunshots.
Later, to corroborate Ms. Johnson's testimony, Detective
Doug Bacon testified as follows:
Q. And did [Ms. Johnson] tell you
what she saw from the bathroom?
A. She stated that she was standing
at the -- in the bathroom, and when she saw
her husband pushing on the door, which he
finally got open, she stated that her
husband entered the room with a gun in his
hand.
Q. And what did she tell you that she
saw next?
A. Ms. Johnson stated that she saw
her husband fire the gun in the bedroom, and
then she heard her son screaming, at which
time she took off running out of the bedroom
and ran out into the parking lot looking for
him.
Defendant argues that the detective's testimony that Ms.
Johnson "saw her husband fire the gun in the bedroom" adds
additional information to her trial testimony that she merely
saw "fire" or "gunshots" when her husband entered the bedroom
-10-
with his gun, and was, therefore, inadmissible to corroborate
her testimony. However, "a statement that merely contains
additional facts is not automatically barred." Harrison, 328
N.C. at 682, 403 S.E.2d at 304. The dispositive question is
whether the testimony is sufficiently similar such that it tends
to strengthen and add credibility to the witness' testimony.
Id. at 682-83, 403 S.E.2d at 304.
This test was applied in State v. Rogers, 299 N.C. 597, 264
S.E.2d 89 (1980), which we find analogous to this case. In
Rogers, a passenger in the defendant's vehicle testified at
trial that he saw the defendant pull the victim out of the car
and onto the bridge, heard someone say, "'Man, . . . don't throw
that boy in that cold-ass water'" and then heard a splash. Id.
at 600, 264 S.E.2d at 91-92. The detective then testified that
the witness had told him the defendant threw the victim over the
bridge. Id., 264 S.E.2d at 92. Our Supreme Court noted that
although the witness never testified that he actually saw the
defendant throw the victim over the bridge, "the clear
implication of [the witness'] testimony is that defendant did
precisely that act." Id. at 601, 264 S.E.2d at 92. Further,
the fact that the witness "did not mention one act which was
clearly a component of a series of interrelated acts does not in
any way serve to abridge the probative force of the rest of his
-11-
testimony." Id. The Court concluded that the detective's
testimony was admissible as corroborative evidence because of
the substantial similarity of the testimony. Id.
Here, as in Rogers, the detective's testimony was
substantially similar to Ms. Johnson's. The prosecutor's line
of questioning focused on what Ms. Johnson had observed with
respect to her husband. There were no questions about and no
mention of Mr. Farrow at this point in the testimony. Ms.
Johnson testified, with respect to her husband, that she saw him
enter the room with his gun, and the next thing she saw was
"fire" or "gunshots." A reasonable juror could, given the
context, infer that Ms. Johnson meant that she saw "fire" or
"gunshots" from defendant's gun.
Any additional precision in the detective's testimony
regarding Ms. Johnson's out-of-court statement was no different
than the added detail in Rogers. It amounted to nothing more
than what a reasonable juror would have been able to infer from
the witness' testimony alone, and, by the same token, tended to
add weight and credibility to her testimony. We, therefore,
hold that it was admissible corroborative evidence. See also
State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001)
(holding detective's testimony that witness told him "'Willie
shot my mama'" was "an admissible shorthand statement of fact"
-12-
corroborating witness' testimony that he "heard defendant and
the victim arguing, heard shots, saw the victim bleeding and
lying on the porch, and saw defendant fleeing the crime scene").
Even if it were error to admit the statement, it was not
prejudicial. Defendant argues that this evidence had a probable
impact on the jury's finding of guilt because it was a closely
contested case and the out-of-court statement was the only
testimony that a witness saw or heard defendant fire his gun.
Defendant contends that the out-of-court statement undercut his
claims that he fired only after Mr. Farrow began shooting and
that he did not intentionally fire his weapon.
However, it was undisputed at trial that defendant in fact
fired his gun once, although Mr. Farrow fired his gun five
times. Ms. Johnson's out-of-court statement only arguably added
that she saw him fire the gun, a fact immaterial to defendant's
defense. It indicated neither who fired first nor whether
defendant intentionally squeezed the trigger. Indeed, Detective
Bacon expressly noted the lack of witnesses regarding who fired
first:
Q. Detective, you were asked as far
as whether Orlando Farrow knew who fired
first. Does anybody know who fired first?
A. I don't think so. From everything
I know of, Ms. Johnson doesn't. She says
that she knows that her husband did fire.
It's obvious that Mr. Farrow did fire as
-13-
well because Mr. Johnson got struck.
Further, the jury was instructed to use Detective Bacon's
testimony only to assess the credibility of Ms. Johnson, and
Detective Bacon explained at trial that he was testifying based
on his report of the incident and that he was not repeating Ms.
Johnson's words exactly. "My report is basically a paraphrased
statement of what the individual had told me. I can't recall
exactly the specifics and therefore do not want to give
untruthful testimony in court so therefore I utilize my notes
that -- directly what I wrote, not what somebody else has
written."
Because (1) the jury knew that the statement was
paraphrased by the detective, (2) it did not undermine the
defense's theory of how the events occurred, and (3) the jury
was instructed to use the evidence only to assess the
credibility of Ms. Johnson, we hold that the testimony did not
have a probable impact on the jury's finding of guilt.
II
Defendant next argues that the trial court committed plain
error in its instruction on the first element of first degree
burglary, which required the jury to find beyond a reasonable
doubt:
First, that the defendant broke and
entered a dwelling house. A breaking need
-14-
not be actual, that is, the defendant need
not physically remove a barrier. The
defendant may, by a threat of force, inspire
such fear as to induce the occupant to allow
entry. In this situation, the defendant
would have constructively broke, and such
constructive breaking is a sufficient
breaking for the purposes of this offense.
Defendant does not contend that this is an incorrect statement
of the law. Rather, he argues that this jury instruction was
improper because it amounted to both (1) an impermissible
opinion by the trial court and (2) a peremptory instruction that
an element of the offense had been proven beyond a reasonable
doubt.
"In instructing the jury, the judge shall not express an
opinion as to whether or not a fact has been proved . . . ."
N.C. Gen. Stat. § 15A-1232 (2013). This prohibition is
mandatory. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97
(1989). Our courts review the totality of the circumstances to
determine whether the judge expressed an improper opinion.
State v. Foye, ___ N.C. App. ___, ___, 725 S.E.2d 73, 81 (2012).
"'Whether the judge's language amounts to an expression of
opinion is determined by its probable meaning to the jury, not
by the judge's motive.'" Id. at ___, 725 S.E.2d at 81 (quoting
State v. McEachern, 283 N.C. 57, 59–60, 194 S.E.2d 787, 789
(1973)).
-15-
Defendant contends that instructing the jury that "[i]n
this situation, the defendant would have constructively broke"
specifically referred to defendant and expressed the trial
court's opinion that defendant in fact constructively broke into
the apartment. However, "a charge must be construed as a whole,
and isolated portions of a charge will not be held to be
prejudicial where the charge as a whole is correct and free from
objection." State v. Slade, 291 N.C. 275, 283, 229 S.E.2d 921,
926 (1976). "'It is not sufficient to show that a critical
examination of the judge's words, detached from the context and
the incidents of the trial, are capable of an interpretation
from which an expression of opinion may be inferred.'" Id.
(quoting State v. Gatling, 275 N.C. 625, 633, 170 S.E.2d 593,
598 (1969)).
When viewed in context, "[i]n this situation" refers to the
previous two sentences which state that "[a] breaking need not
be actual, that is, the defendant need not physically remove a
barrier. The defendant may, by a threat of force, inspire such
fear as to induce the occupant to allow entry." In other words,
"[i]n this situation" refers to a hypothetical situation where
the defendant -- any defendant -- breaks and enters through non-
physical means. In that event, "the defendant would have
constructively broke." (Emphasis added.) The use of "would
-16-
have" instead of "has" indicated that the trial court was not
referring to defendant specifically, but rather to the law
generally.
Additionally, before listing the elements, the judge stated
"[f]or you to find the defendant guilty of [first degree
burglary], the State must prove five things beyond a reasonable
doubt." After stating the elements, he instructed the jury "if
you find from the evidence beyond a reasonable doubt that on or
about the alleged date the defendant [committed all the elements
of the offense], it would be your duty to return a verdict of
guilty of first-degree burglary. If you do not so find or have
a reasonable doubt as to one or more of these things, you will
not return a verdict of guilty." Finally, the judge stated that
"[t]he law requires the presiding judge to be impartial. You
should not infer from anything I have done or said that the
evidence is to be believed or disbelieved, that a fact has been
proved, or what your findings ought to be. It is your duty to
find the facts and render a verdict reflecting the truth."
When viewed in context, the judge's instruction regarding
first degree burglary did not constitute an improper expression
of opinion or amount to an instruction that an element of the
offense had been proven beyond a reasonable doubt. Defendant
-17-
has, therefore, failed to show any error in the jury
instructions.
No error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).