State Of North Carolina v. Starling, COA0 9-1703
| Decision Date | 07 September 2010 |
| Docket Number | No. 07 CRS 53733,NO. COA0 9-1703,COA0 9-1703,07 CRS 53733 |
| Parties | STATE OF NORTH CAROLINA v. CLIFTON LEE STARLING |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by defendant from judgment entered 2 5 August 2 009 by Judge James G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 26 May 2010.
While Sean Hunt's statement provided new or additional facts not elicited in his trial testimony, the statement reasonably followed the trial testimony's narrative and its admission was not plain error. The failure of defendant's trial counsel to object to Hunt's statement or to request a limiting instruction was not prejudicial. Defendant is not permitted to raise constitutional issues on appeal that were not preserved at trial. Dr. Butts' recitation of the autopsy findings by another doctor was not hearsay and was properly admitted as the basis of his independent analysis and opinions. Since defendant does not contest Dr. Butts'opinions on appeal, he was not prejudiced by the failure of his trial counsel to object to Dr. Butts' testimony at trial.
On the night of 10 June 2007, Clifton Lee Starling (defendant) drove with Andy Locklear (Andy) to a field where a large crowd had gathered for a dog fight. Danny Ray Freeman (Freeman) had already arrived and was arguing with another man when he said, "f all you all son of a Defendant began a heated exchange with Freeman, which quickly escalated into a fistfight. Freeman's brother, Jamie Simpson (Simpson), joined the fight but was restrained by a member of the crowd. Freeman got the better of defendant and released him after defendant repeatedly asked for mercy.
Once defendant got away from Freeman, Simpson heard him say, I'm going to "break me a pack of SOBs." Defendant then ran twenty to thirty yards to Andy's truck. Simpson heard someone say, "don't you go get you no gun," and the crowd began running in the opposite direction toward a wooded area.
Sean Hunt (Hunt) was running beside Freeman when he saw defendant retrieve a handgun from the truck and heard at least three gun shots. Hunt heard Freeman say "help me boys," but Hunt continued running until he reached his truck. After turning on his headlights, Hunt saw defendant and Freeman standing twenty feet apart. Defendant then shot at Freeman twice. Freeman fell to his knees with his hands up, and according to Hunt's pretrial statement, said, "don't kill me." Defendant, who was circling Freeman, said, "he should not have done him like that." People atthe scene yelled for defendant not to shoot Freeman. Once Freeman collapsed, defendant got in Daniel Locklear's (Daniel) truck, still holding the gun, and told Daniel to drive him home.
Defendant was arrested the next day, and on 14 January 2008, was indicted for first degree murder. On 25 August 2009, the jury found defendant guilty of first degree murder. Defendant was sentenced to life in prison without parole.
Defendant appeals.
We review a trial court's decision to admit evidence for abuse of discretion. State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009). We reverse for abuse of discretion only when "the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Id. (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
Errors to which there was no objection at trial are reviewed for plain error only. Under plain error, defendant must prove "not only that there was error, but that absent the error, the jury probably would have reached a different result." Id. (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)). Plain error must be so fundamental, basic, and prejudicial that "justice cannot have been done." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert, denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
In his first argument, defendant contends that the trial court erred in admitting Sean Hunt's statement as corroborative evidence and committed plain error in failing to give the jury an instruction limiting their consideration of the evidence to whether it corroborated Hunt's testimony at trial. Defendant alternatively contends that his counsel was ineffective. We disagree.
Defendant objected to the admission of Hunt's statement on the basis that it contained noncorroborative hearsay and inadmissible character evidence. We review for abuse of discretion. Williams, 363 N.C. at 701, 686 S.E.2d at 501. Hunt's pretrial statement related that after hearing the second round of gun shots, Hunt yelled for defendant not to kill Freeman. Hunt's trial testimony indicated that at this time, "[Hunt] heard some guys hollering" for defendant to show mercy.
Hunt's pre-trial statement also included additional facts not elicited at trial. The statement related an exchange between Freeman and defendant following the second round of gun shots, after Freeman had fallen to his knees. In Hunt's statement, Freeman said, "[d]on't kill me," and defendant responded, "he should not have done him like that." Defendant argues that this exchange could be construed as evidence of defendant's premeditation and deliberation and that its admission was prejudicial.
Statements, which contain new or additional information, are admissible so long as the "narration of events substantially is similar to the witness' in-court testimony." State v. Demos, 148 N.C. App. 343, 348, 559 S.E.2d 17, 20 (2002) (quoting State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992), cert, denied, 355 N.C. 495, 564 S.E.2d 47 (2002)).
As in Demos, when an alleged threat was not included in the trial testimony, Hunt's statement was admissible because it reasonably followed the narrative of events. Hunt's trial testimony was that after the second shots, Freeman fell to his knees with his hands in the air. It is reasonable to infer from Hunt's testimony that Freeman begged for his life. Because Hunt's statement closely tracked his trial testimony, the trial court did not err in admitting Hunt's statement.
Defendant further argues that Hunt's statement was inadmissible character evidence because it included hearsay that defendant had been previously charged in a shooting. N.C. Gen Stat. § 8C-1, Rule 404(b) (2009) states in part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person." Out-of-court statements that explain the declarant's subsequent conduct and are not offered to prove the truth of the matter asserted are admissible nonhearsay. State v. Canady, 355 N.C. 242, 248, 559 S.E.2d 762, 765 (2002). Hunt's statement was not introduced as character evidence, nor does it have that effect. Hunt's statement that "he knew that [defendant] had been charged with shooting someone in the past" explained Hunt's fear of defendant and his desire to quickly run away from defendant.
This argument is without merit.
Defendant contends that the trial court committed plain error by (1) failing to include a limiting instruction in the jury charge, and (2) failing to give a limiting instruction at the time that Hunt's statement was admitted. We review a trial court's instructions for plain error when defendant neither requested a limiting instruction nor objected to the trial court's charge. Demos, 148 N.C. App. at 348, 559 S.E.2d at 21. Since Hunt's statement was admissible for a proper purpose, any instructional error was not so fundamental as to have a probable impact on the verdict and did not constitute plain error. Id. at 349, 559 S.E.2d at 21 (citing State v. Sneeden, 108 N.C. App. 506, 511, 424 S.E.2d 449, 452 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994)).
This argument is without merit.
Defendant argues that his counsel was ineffective for failing to request a limiting instruction at the time Hunt's statement was offered or to object to the trial court's omission of a limiting instruction in its final jury charge. We disagree.
Our courts follow the Strickland v. Washington, 466 U.S. 688, 80 L. Ed. 2d 674 (1984), two-part test for ineffective assistance of counsel. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). The Strickland test requires appellant to firstshow that counsel failed to conform to the reasonable standard of practice guaranteed by the Sixth Amendment. Id. at 562, 324 S.E.2d at 248. Second, appellant must demonstrate prejudice by showing that but for counsel's errors, there would have been a different result at trial. Id.; N.C. Gen. Stat. § 15A-1443(a) (2009).
We have held that Hunt's statement was admissible. Therefore, defendant cannot show resulting prejudice from its admission. We further note that even absent Hunt's pretrial statement, there was plenary evidence presented to the jury to support its findings of both premeditation and deliberation.
Hunt's trial testimony that defendant ran back to Andy's truck, retrieved a handgun, shot Freeman out of a running crowd, and pursued Freeman, shooting him twice more at a close range, demonstrated that defendant had sufficient time to premeditate and deliberate his actions. It is unlikely that any error by counsel in failing to request a limiting instruction at admission of Hunt's statement or at the final jury charge conference would...
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