State v. Abraham
| Decision Date | 09 December 1994 |
| Docket Number | No. 478A91,478A91 |
| Citation | 451 S.E.2d 131,338 N.C. 315 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. James Tyrone ABRAHAM and Patrick Lavell Cureton. |
Michael F. Easley, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., for the State.
Joseph F. Lyles, Charlotte, for defendant-appellant Abraham.
Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, for defendant-appellant Cureton.
Defendants James Tyrone Abraham and Patrick Lavell Cureton were indicted for the first-degree murder of Tariano Gaddy and for felonious assaults against Darryl Foster and Joice Hardin. They were tried capitally in a joint trial. A jury convicted each defendant of first-degree murder on the theory of felony murder and two counts of assault with a deadly weapon with intent to kill. Upon the jury's recommendation of life imprisonment for both defendants on the first-degree murder convictions, the trial court imposed a life sentence on each defendant and a consecutive three-year sentence on one assault conviction. The trial court arrested judgment on the other assault conviction as to each defendant.
On appeal, defendant Abraham brings forth six assignments of error and defendant Cureton brings forth twelve assignments of error. Because of a fatal variance in the indictments for felonious assault of Joice Hardin, we arrest judgment on defendant Abraham's conviction for assault with a deadly weapon with intent to kill Joice Hardin. We conclude defendants' trial was otherwise free of prejudicial error.
The State's evidence tended to show the following:
In November 1989 Darryl Foster, then age twenty three, lived with his mother and two sisters in Charlotte. Joice ("JJ") Hardin, then age seventeen, lived with the Foster family.
On the evening of 28 November 1989, Foster, Hardin and Tariano Gaddy, the deceased, drank beer at the Hornet's Rest Motel and returned to the Foster house. After Foster gave Gaddy his blue- hooded coat to wear, the three men proceeded to Dave's Liquor House on Rozzells Ferry Road. A man identified only as "Steve" joined them en route. Upon entering the liquor house, Foster noticed a blue Cadillac he identified as belonging to defendant Cureton parked in front of the building.
Around 1:30 a.m. on 29 November 1989, Sharon Whitley (alias "Sharon Tate") observed defendant Abraham and two or three other men outside the area of the liquor house. Whitley observed Abraham and the others get into a blue Cadillac and drive toward Oregon and Lander streets.
When Whitley saw Foster and Hardin in the liquor house, she informed them that defendant Abraham and some other men had gone down the street. Without responding, Foster and Hardin, along with Gaddy and Steve, left the liquor house and proceeded down Rozzells Ferry Road in the direction of Halsey Street. To reach Halsey Street, the four men headed in the direction of Lander Street and Oregon Street and followed a shortcut on Lander Street. The shortcut took them through a parking lot behind an establishment called the Queens and Kings Lounge.
As they proceeded through the lot, defendants Abraham and Cureton stepped out from behind the lounge. Foster had known Abraham for about three years and Cureton for about seven years. Abraham told the four men that he heard someone had fired shots at his mother's house. When Foster denied Abraham's accusation, Cureton displayed a gun and pointed it toward the four men. At that time, Abraham's hand was inside his trenchcoat pocket. Cureton shot twice in the air, and Foster, Hardin, Steve and Gaddy began to run. Several gunshots ensued. Foster heard about fourteen gunshots. Foster fell into some bushes and then ran across Lander Street. As he did so, he saw defendants walking behind a house on Rozzells Ferry Road. He then got up and ran home where he found Hardin holding a shotgun in the driveway.
Hardin also had run toward the bushes. Hardin had known Abraham for about a year. He saw Cureton shoot in his direction and Abraham shoot toward the right side of the street where Foster had run. At that time, both defendants were standing in the middle of the street. Hardin ran toward Boyd Street and began walking when he reached a path. On the path, Hardin met a man he knew by the name of Rocky and borrowed a shotgun from him. He then proceeded to the Foster house. Hardin did not see what happened to Gaddy. Hardin's leg was grazed by a bullet as he ran.
While at the Foster house, Foster and Hardin discussed the shooting with Foster's mother. Foster's sister arrived about fifteen minutes later and drove the two men to Westwood where they visited a friend, Herman Meeks. On their way to Meeks' house, Foster and Hardin drove by Lander Street where they saw Gaddy's body in the street surrounded by police. From Meeks' house the two men went to the Knights Inn and registered for a room.
In the early morning of 29 November Joseph Adamo, a patrol officer with the Charlotte Police Department, was parked in the vicinity of Nelson Avenue, located across Rozzells Ferry Road from Lander Street. He heard gunshots coming from the Lakeview neighborhood, which is in the vicinity of Lander and Boyd streets. Adamo proceeded toward the area of the shooting without sirens or blue lights and arrived within a few minutes. He approached Oregon Street and observed two men, later identified as defendants Abraham and Cureton, walking toward his car. As Adamo approached defendants, they detoured across a parking lot. Adamo stopped his car and asked defendants if they had heard any gunshots. Without stopping or slowing down, defendants told Adamo that they had not heard anything. Adamo proceeded toward Lander Street where he found Gaddy's body prone in the middle of the street. Gaddy had blood around his head and showed no signs of a pulse.
An autopsy revealed that Gaddy had received four gunshot wounds. One bullet had entered his head above the right ear and passed through the brain before exiting. A second bullet had entered the neck and then traveled up through the head. A third had entered the right arm, abdomen and liver, and a fourth bullet had entered the sole of the right foot. The cause of death was determined to be gunshot wounds to the head and abdomen. The autopsy further revealed powder particles around the entrance wound to the head, indicating that this wound had been delivered at a range of two to three feet.
Officer C.D. Bryant, Charlotte Police Department crime scene technician, arrived at Lander Street at 2:23 a.m. on 29 November and found Gaddy dead in the street wearing a blue, blood-stained, hooded coat, a Yale University sweatshirt and jeans. Bryant found eight spent casings at the scene. One of the casings was found next to Gaddy's head, and others were strewn up the street to as far as 45 feet from Gaddy's body.
Todd Nordhoff, a firearms and tool examiner with the Charlotte Police Department Crime Laboratory, examined the casings and determined that they were all 9 mm. Luger semi-automatic casings which had been fired from two firearms--five had been fired from one firearm and three from another firearm. Nordhoff determined that two bullets recovered from Gaddy's neck and abdomen were consistent with 9 mm., or .38-caliber, bullets and had been fired from the same weapon. He could not determine, ballistically, whether the bullets had been fired from the same weapon which fired the cartridges.
On 30 November Officer Adamo determined that Abraham was one of the men he had earlier witnessed walking near the scene of the shooting. Upon discussing the incident with Officer Hollingsworth, Adamo identified Cureton as the man he had seen with Abraham.
Cureton presented no evidence. Abraham, however, presented evidence which included the testimony of Willie Beckman and Spencer Hunter. Beckman testified he saw Hardin and Foster after the shooting and that Hardin was carrying a handgun. Hunter testified he lived in Foster's neighborhood at the time of the shooting. When he heard gunfire, he went outside and saw Foster and Hardin running up a path through a neighboring field. Hunter testified that Foster was carrying a long gun, either a rifle or a shotgun.
The jury returned verdicts finding Abraham guilty of the following crimes: assault with a deadly weapon with intent to kill Hardin by acting in concert; assault with a deadly weapon with intent to kill Foster first-degree felony murder of Gaddy; and second-degree murder of Gaddy by acting with malice but without premeditation and deliberation.
The jury found Cureton guilty of the following crimes: assault with a deadly weapon with intent to kill Foster by acting in concert; assault with a deadly weapon with intent to kill Hardin; first-degree felony murder of Gaddy; and second-degree murder of Gaddy by acting in concert without premeditation and deliberation.
The trial court, apparently believing the verdicts finding defendants guilty of both first- and second-degree murder of Gaddy were inconsistent and mutually exclusive, reinstructed the jury on first-degree murder, felony-murder and second-degree murder and asked the jury to reconsider its verdicts as to those charges. After about three hours, the jury returned verdicts finding both defendants guilty of first-degree felony murder of Gaddy; not guilty of first-degree murder by premeditation and deliberation and not guilty of second-degree murder.
Each defendant appealed separately and has filed separate briefs. Except for one issue common to both defendants, each defendant has raised different questions on appeal.
Abraham first contends the trial court erred in denying his motion to dismiss on the ground that the evidence was insufficient to prove that either Abraham or Cureton fired the fatal bullets. He argues that even though the evidence is sufficient to place him at the scene and to show he discharged a 9 mm....
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