State Of North Carolina v. Kirby
| Decision Date | 17 August 2010 |
| Docket Number | No. COA09-1631.,COA09-1631. |
| Citation | 697 S.E.2d 496 |
| Parties | STATE of North Carolinav.Ryan Marcus KIRBY. |
| Court | North Carolina Court of Appeals |
Appeal by defendant from judgment entered 17 April 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 12 May 2010.
Attorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.
Sofie W. Hosford, Wilmington, for defendant appellant.
Ryan M. Kirby (“defendant”) appeals his conviction of voluntary manslaughter for which he was sentenced to a term of 69 to 92 months' imprisonment. On appeal, defendant asserts that (1) the trial court erred by denying defendant's motions to dismiss the charge of second-degree murder for insufficient evidence that defendant did not act in self-defense; and (2) the trial court erred by allowing the State to ask defendant on cross-examination if he had been selling drugs in the area earlier in the day prior to the shooting.1 After review, we conclude that the trial court did not err.
On 1 November 2007, defendant was involved in a shoot-out on South Street in Raleigh, North Carolina, with Joseph Dunn (“Dunn”) resulting in his death. Defendant was charged with second-degree murder. Defendant entered a plea of not guilty and was tried before a jury on 13 April 2009.
At trial, the State's evidence tended to show the following: Chris Braswell (“Chris”) testified that he was walking up the street when he heard a lot of hollering and cussing from the area behind him on South Street. Chris observed that the source of the commotion was located in front of a little store on South Street and involved defendant and Dunn. Although Chris did not witness the shooting, he testified that “the shorter man appeared to have a gun and was pointing it at the bigger man.” After hearing gunshots, Chris called 911.
Officer Charlie Jacobs (“Jacobs”) of the Raleigh Police Department responded to the call which reported a shooting on South Street in Raleigh, North Carolina, at 2:00 p.m. on the afternoon of 1 November 2007. Upon arriving at the scene, he found Dunn lying down beside the curb. Jacobs witnessed Dunn as he took his last breath and died. Jacobs did not see a gun in the vicinity of Dunn; however, he did see a black ski mask with a little face on it beside the victim.
The State also presented the testimony of Francis Manachino, (“Manachino”). Manachino said that he saw two men, one standing behind the other. Manachino testified that defendant was wearing a heavy coat and had Dunn in a half nelson in complete submission. He also stated that he believed that it was clear that Dunn, given his smaller frame and submissive position, could not retaliate while in a half nelson. Manachino testified that he made eye contact with defendant, but that he became afraid and looked away. A second later, he heard six gunshots. While he did not witness the shooting itself, Manachino testified that after the shooting, he saw Dunn lying lifeless on the ground. Manachino also stated that he recognized Dunn as the smaller man who had been held by defendant in a half nelson moments earlier.
Danny Weston (“Weston”) testified that on the afternoon of 1 November 2007, he was working a roofing job on South Street. While talking to his boss about the job, Weston heard gunshots. Weston threw himself onto the ground underneath a truck. From this vantage point, he saw defendant picking up cartridges off the ground. Weston testified that defendant had a heavy coat on and a hood over his head with fur lining. After defendant had picked up the cartridges, he ran toward a nearby convenience store.
Mary Williams Ellison (“Ellison”) testified that on 1 November 2007, she was at her home across the street from the scene of shooting, watching a movie, when she heard arguing. When Ellison looked out the window, she saw Dunn and defendant yelling at each other. Ellison testified that the men argued for approximately five to six minutes about a woman. During the argument, Ellison heard Dunn say to defendant, Then she saw Dunn walk off towards South Street. Ellison testified that there was another person with defendant, but that Dunn was alone. After Dunn walked away from defendant, Ellison witnessed defendant go into a house located at 518 West Lenoir Street next door to the crime scene, then come back out and open up the trunk of a car and retrieve a black coat with a hood and orange lining inside. Ellison further testified that she saw defendant walk toward South Street and that she heard gunshots a few minutes after defendant walked off. After hearing the shots, Ellison walked in the direction of the gunshots and saw Dunn lying on the ground. Ellison testified that she never saw Dunn with a gun. After returning to her house, Ellison saw defendant and an unnamed man running from South Street where the shooting had taken place. At this time, she heard the unnamed man say to defendant: “Yo, yo, man, you need to go ahead and get on out of here.” Ellison heard defendant say, “I'm about to be out” as he was running away.
Dr. Thomas Clark, the forensic pathologist who performed the autopsy on Dunn, testified that there were two gunshot wounds present on Dunn's body. The first wound was located behind the right side of the head above the ear. Dr. Clark testified that the bullet that inflicted the first wound entered Dunn's head causing damage to the brain. Dr. Clark testified that the first gunshot wound caused Dunn's death. In addition, Dr. Clark testified that the second bullet entered the right side of Dunn's upper chest, fractured Dunn's clavicle, and caused physical damage, but absent the gunshot wound to the head, this shot would not have resulted in death.
Furthermore, firearms examiner and Special Agent Beth S. Desmond of the North Carolina State Bureau of Investigation, testified that she received the evidence from the 1 November 2007 crime scene. This evidence included a .38 revolver which was recovered from an ivy bush at a drug house, two live rounds, four fired cartridge cases, two fired .380 cartridge cases, and two fired bullets. Agent Desmond testified that the two fired .380 cartridge cases could not have been used in a .38 revolver. However, Agent Desmond further determined that the two bullets taken from Dunn's body were fired from the .38 revolver found at the crime scene. Moreover, gunshot residue testing of the .38 revolver compared to residue found on Dunn revealed that Dunn had either fired a firearm, handled a discharged firearm, or was near a firearm that had been recently fired. However, it could not be definitively determined that Dunn had fired a weapon. Residue testing also found gunshot residue on a North Face jacket that was recovered from defendant.
In addition, Detective Timothy Fanney (“Fanney”) investigated the house at 519 West Lenoir Street where Mary Ellison testified that she saw defendant and the unnamed man after the shooting. Fanney described the house as a “drug house” and noted that investigators found a small amount of marijuana and crack cocaine in the house. On a footpath near the house, Fanney found the .38 caliber gun in an ivy bush near the “drug house.” The gun contained four fired shells in the cylinder and two unfired shells. Fanney advised that a revolver does not eject shotgun shells, but noted that the .38 caliber revolver smelled as though it had been recently fired. Fanney also testified that investigators found a cell phone inside the “drug house” with the name “Kirb” displayed on the face. Fanney further noted that examination of latent fingerprints on the gun indicated that defendant had touched the .38 caliber revolver, which was collected by Fanney as evidence at the crime scene.
Law enforcement officers located defendant approximately three hours after the shooting. After being taken into custody and read his Miranda rights, defendant was questioned by Detective Robert LaTour. Defendant told LaTour that Dunn approached him and began to argue with him about a girl named Shameka. Defendant also said that he felt disrespected by Dunn because he was wearing a “Scream” mask with red on it, like blood, because defendant was a member of the Blood gang and Dunn was a member of the Folk gang.
About 10 minutes after defendant's argument with Dunn, defendant stated that he and a friend walked to a nearby convenience store to purchase a soft drink. At this time, defendant took a gun out of what he referred to as a “stash.” Defendant stated that he brought the gun with him because he knew that the Folk gang, of which Dunn was a member, was known for robbing people, and if something happened, he wanted to be able to protect himself. Defendant also told Detective LaTour that, while en route to the store, Dunn approached him and said that the boss of the Folk gang did not want defendant around their territory anymore. In response to Dunn's remark, defendant told Detective LaTour that he stated to Dunn that the Folk gang could not tell him what to do. Detective LaTour testified that defendant told him that as he turned around and started to walk away from Dunn, Dunn grabbed defendant from behind with his left arm. Defendant further told Detective LaTour that Dunn ordered him to show his hands, held a gun to defendant's head, and stated that he was going to kill defendant. At this point, defendant pulled a gun out of his pocket with his right hand, switched it to his left hand, spun around, and he and Dunn both fired their guns. Defendant told Detective LaTour that after he saw Dunn fall to the ground, he ran to West Lenoir Street where he threw his .38 caliber revolver into a vacant lot. Defendant, subsequently, ran to his car and drove away from the scene alone.
Detective LaTour noted that defendant signed his Miranda form with his right hand...
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...is relevant is a question of law ... [and] we review the trial court's admission of the evidence de novo. " State v. Kirby , 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010). Even though we review these rulings de novo, we give "great deference on appeal" to trial court rulings regarding ......
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