State v. Allbrooks , 256 N.C. App. 505 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-741
Filed: 21 November 2017
Moore County, No. 13CRS052702
STATE OF NORTH CAROLINA
v.
CARLOUSE LATOUR ALLBROOKS, Defendant.
Appeal by defendant from judgment entered 8 January 2016 by Judge James
M. Webb in Superior Court, Moore County. Heard in the Court of Appeals 9 March
2017.
Attorney General Joshua H. Stein, by Senior Deputy Attorney General
Alexander McC. Peters, for the State.
M. Gordon Widenhouse, Jr., for defendant-appellant.
STROUD, Judge.
Defendant appeals his conviction and judgment for first degree murder. Where
the written witness statement provided to police soon after the incident was
presented by the State to corroborate her trial testimony, we find that the statement
did not materially differ from her trial testimony, so the trial court properly allowed
the statement for this purpose. The trial court also correctly instructed the jury only
on first degree murder and not voluntary manslaughter, since the State’s evidence
was positive as to all of the elements of first degree murder, and there was no evidence
STATE V. ALLBROOKS
Opinion of the Court
that defendant acted in “the immediate grip of sufficient passion” to require
instruction on a lesser offense. We therefore conclude that there was no error in
defendant’s trial.
I. Background
The State’s evidence tended to show that on 12 September 2013, defendant was
trying to get into Shannon Smith’s home while she, her boyfriend Tyrone Allmond,
and her children were inside. Ms. Smith yelled at defendant to leave and eventually
threw a chair at him. Mr. Allmond told defendant to leave; the two continued to have
“some words[,]” and then defendant shot Mr. Allmond who died from his gunshot
wounds. Defendant was indicted for murder and found guilty by a jury of first degree
murder. The trial court entered judgment and sentenced defendant to life
imprisonment without parole. Defendant appeals.
II. Out-of-Court Statement
An eyewitness had provided a signed statement to the police which the State
later introduced at trial over defendant’s objection. The statement read:
Tyrone Allmond was at my mother’s house,
Kimberly Durant . . . . It was me, my sister and my cousin,
Tyrone. Ma was in bed. Me and my sister was in the room
playing with my son. Tyrone came in and said, Cuz, come
up to the top of the hill and let’s talk. . . .
He told Ma bye and he left. I asked my sister
Ty'Onika to watch my baby. So I got him ready for bed and
put him down. It had to be after 10:00 o’clock p.m. but I
remember telling my sister 10:47 when she asked about the
time.
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By this time Shanda, my cousin, had came down. I
asked her to walk with me up to the top of the hill, and she
did. . . . We were by Edwina Hainey’s apartment when I
heard Shannon, Tyrone’s girlfriend, fussing. She was
fussing about something on FaceBook and Twitter. She
was loud and that drew attention.
A group of guys started getting closer. She was
coming out of Ms. Edwina’s apartment. As I was getting
close Tyrone had walked up. Shannon was walking back to
her apartment and Tyrone was following. He was like, Get
the kids inside, wash them up. It’s a school night. The kids
were outside running around. There are two of them.
Tyrone goes in the apartment followed with the kids,
then Shannon. Just then Smoke[, defendant,] started in
the apartment and Shannon told him to get out. Smoke
tried to push his way in. Shannon threw a chair at Smoke.
That’s when Tyrone got in the middle and told Smoke to
leave. He was like, “Just leave. Go on ahead, just leave.”
Smoke was like, “Word, Word Bone.” Bone was like, “What,
what you mean?” Smoke was like, “All right, Bones, all
right.” That’s when Smoke pulled a little handgun like a
little smaller than yours. Smoke started shooting at Bones.
Bones started to run, but couldn’t get far before he
collapsed.
After I saw my cousin drop, I ran to my mama’s
house and told her Smoke was -- and told her. Smoke was
wearing a black shirt and blue jeans. They could have been
shorts because you know how they sag. It wasn’t long after
the shooting I went back up the hill after I told Ma about
it. I’ve known Smoke my whole life growing up and have
seen him around.
All this is what I saw. No one has made any threats
or promises against me for me to say this. I don't know
Smoke’s real name but his last name’s Allbrooks. I
remember now his first name is Carlouse. Bones is a
nickname we call my cousin Tyrone Allmond.
The trial court allowed the jury to hear the testimony “not for the truth of the matters
asserted therein but to determine whether or not State’s Exhibit 3A does or does not
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Opinion of the Court
corroborate the testimony of Bre'Onica Durant.” (Emphasis added.) Defendant
contends that the trial court erred in overruling his objection and allowing the
witness to testify to the out-of-court statement “where it added critical details that
were not otherwise shown by the evidence[.]” (Original in all caps.)
“A trial court’s determination that evidence is admissible as corroborative
evidence is reviewed for abuse of discretion.” State v. Cook, 195 N.C. App. 230, 243,
672 S.E.2d 25, 33 (2009).
Prior consistent statements of a witness are
admissible for purposes of corroboration even if the witness
has not been impeached. When so offered, evidence of a
prior consistent statement must in fact corroborate a
witness’s later testimony; however, there is no requirement
that the rendition of a prior consistent statement be
identical to the witness’s later testimony. Slight variances
in the corroborative testimony do not render it
inadmissible. In order to be corroborative and therefore
properly admissible, the prior statement of the witness
need not merely relate to specific facts brought out in the
witness’s testimony at trial, so long as the prior statement
in fact tends to add weight or credibility to such testimony.
In order to be admissible as corroborative
evidence, a witness’ prior consistent
statements merely must tend to add weight or
credibility to the witness’ testimony. Further,
it is well established that such corroborative
evidence may contain new or additional facts
when it tends to strengthen and add
credibility to the testimony which it
corroborates.
Moreover, if the previous statements are generally
consistent with the witness’ testimony, slight variations
will not render the statements inadmissible, but such
variations affect only the credibility of the statement. On
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Opinion of the Court
the other hand, the witness’s prior statements as to facts
not referred to in his trial testimony and not tending to add
weight or credibility to it are not admissible as
corroborative evidence; additionally, the witness’s prior
contradictory statements may not be admitted under the
guise of corroborating his testimony.
State v. Walker, 204 N.C. App. 431, 435–36, 694 S.E.2d 484, 488–89 (2010) (citations,
quotation marks, ellipses, and brackets omitted).
Defendant argues that the statement added the following “critical facts”:
defendant
purportedly said to Tyrone Allmond (“Word, Word Bone”)
and a description of Mr. Allbrooks “pulling a little handgun
like a little small[er] than yours” and “started shooting at
[Tyrone]” at which Tyrone “started to run but couldn’t get
far before he collapsed.”
First, many of the “critical facts” noted by defendant are present in both the witness’s
statement and testimony. For instance, the witness testified, “He was like, “’Word,
Bone,’ ‘Word, Bone[,]’” and “that’s when the shots started going off, and I seen my
cousin running.” But other facts noted by defendant as “critical facts” are not critical
facts. Both the witness’s statement and trial testimony agreed that defendant
approached Ms. Smith’s apartment, Mr. Allmond told him to leave, an argument
ensued, and defendant shot Mr. Allmond. “[S]light variations will not render
statements inadmissible[,]” id., 204 N.C. App. at 436, 694 S.E.2d at 488, and thus the
trial court did not abuse its discretion in allowing in the out-of-court statement for
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corroboration of the witness’s testimony. See Cook, 195 N.C. App. at 243, 672 S.E.2d
at 33. This argument is overruled.
III. Lesser-Included Offense Instruction
Defendant next argues that the trial court erred in failing to instruct the jury
on the lesser-included offense of voluntary manslaughter. “A trial court’s decision
not to give a requested lesser-included offense instruction is reviewed de novo on
appeal.” State v. Matsoake, ___ N.C. App. ___, ___, 777 S.E.2d 810, 814 (2015), disc.
review denied, 368 N.C. 685, 781 S.E.2d 485 (2016).
The trial court must instruct the jury upon a lesser-
included offense when there is evidence to support it.
However, when the State’s evidence is clear and positive
with respect to each element of the offense charged and
there is no evidence showing the commission of a lesser-
included offense, it is not error for the trial judge to refuse
to instruct the jury on the lesser offense.
To determine whether the evidence supports the
submission of a lesser-included offense, courts must
consider the evidence in the light most favorable to the
defendant.
Id. at ___, 777 S.E.2d at 814–15 (citations, quotation marks, and brackets omitted).
Defendant contends that when he “responded to Tyrone’s words or his non-
lethal assault, . . . [he] was acting under the immediate grip of sufficient passion so
as to be guilty of at most voluntary manslaughter.” Defendant did not testify nor
did any witnesses testify on his behalf. The evidence offered from the State indicated
defendant was the initial aggressor in the incident, and he was the only one to make
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any threats or to perform any violent actions. There is simply no evidence to support
“the immediate grip of sufficient passion” for the purposes of a voluntary
manslaughter instruction. See State v. Long, 87 N.C. App. 137, 141, 360 S.E.2d 121,
123 (1987) (“The court is required to instruct the jury as to a lesser included offense
only when there is evidence from which the jury could find that such lesser offense
was committed. Voluntary manslaughter is a lesser included offense of murder and
is defined as the unlawful killing of a human being without malice, premeditation or
deliberation. Killing another while under the influence of passion or in the heat of
blood produced by adequate provocation is voluntary manslaughter. To reduce the
crime of murder to voluntary manslaughter, the defendant must either rely on
evidence presented by the State or assume a burden to go forward with or produce
some evidence of all elements of heat of passion on sudden provocation.” (citations
and quotation marks omitted)). This argument has no merit.
IV. Double Jeopardy
Lastly, defendant “preserve[s]” the argument that the trial court erred in
denying his motion to dismiss because “the constitutional prohibition against double
jeopardy prevented him from being tried a second time after the first trial ended
when the jury could not reach a unanimous verdict.” (Original in all caps.)
Defendant acknowledges that our courts have already rejected his contention but
raises it “to preserve the matter for further review.” Indeed, “[t]he courts in this
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country have long held that the prohibition against double jeopardy does not prevent
defendant’s retrial when his previous trial ended in a hung jury.” See State v. Odom,
316 N.C. 306, 309, 341 S.E.2d 332, 334 (1986). We note defendant’s attempt to
preserve the issue.
V. Conclusion
For the foregoing reasons, we determine there was no error.
NO ERROR.
Judges DIILLON and MURPHY concur.
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