State v. Carroway
| Decision Date | 16 August 2011 |
| Docket Number | NO. COA10-1473,COA10-1473 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. THOMAS CARROWAY |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Durham County No. 07 CRS 45692
Appeal by defendant from judgment entered 16 April 2009 by Judge J. B. Allen, Jr. in Durham County Superior Court. Heard in the Court of Appeals 12 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for the defendant-appellant.
Defendant Thomas Carroway appeals from a judgment sentencing him to a minimum term of 189 months and a maximum term of 236 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for second-degree murder. On appeal, Defendant contends that the trial court erroneously failed to instruct the jury concerning the issue of Defendant's guilt of the lesser included offense ofinvoluntary manslaughter and erroneously sustained the State's objection to the introduction of a video recording of certain tests performed by a defense expert witness upon the shotgun with which the victim was killed. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant received a fair trial that was free from prejudicial error and that the trial court's judgment should remain undisturbed.
Although Defendant had been living at 3007 Angier Avenue in Durham with Lakeisha Brodie, her mother, her brother, and her sister for approximately eleven months, he was in the process of moving to the house at 3005 Angier Avenue, which was located next door, on 7 May 2007. At approximately 8:00 p.m. on that date, Ms. Brodie arrived at 3007 Angier Avenue. After hearing screams emanating from the front of the residence, Ms. Brodie came out of her room and saw Sheridan Glenn Pierce lying in the doorway. When Mr. Pierce told her that he had been shot, Ms. Brodie called 911 using her cell phone.
At about the same time, Jarmont Barbee, who was driving by, saw a man wearing a blood-drenched tee shirt stumbling on the porch of 3007 Angier Avenue. After making a u-turn, Mr. Barbeeobserved the man fall into a doorway and called 911. About five to ten minutes before he heard emergency sirens, Odell Pratt, another Angier Avenue resident, witnessed Defendant walking quickly down the street from the direction of 3007 Angier Avenue.
Officer T.M. Greathouse of the Durham Police Department responded to the 911 calls made by Ms. Brodie and Mr. Barbee. Upon arriving at 3007 Angier Avenue, Officer Greathouse saw Mr. Pierce lying inside a doorway with a wound to the chest. Officer Greathouse also observed a 12-gauge shotgun and a .22 caliber rifle, which were partially visible under a couch near the spot at which Mr. Pierce was lying. A fired shotgun shell was also located on the couch.
Shortly thereafter, Officer D.J. Kuszaj of the Durham Police Department arrived at 3007 Angier Avenue and was directed, along with other investigating officers, to secure a house located at 3005 Angier Avenue. At 3005 Angier Avenue, Officer Kuszaj saw a pool of blood smeared on the landing and on the ground next to the building. Upon entering the residence, Officer Kuszaj also noticed a pool of blood next to the couch and a blood smear leading to the doorway.
Investigator S.M. Pate and another homicide detective with the Durham Police Department located Defendant, who claimed that he was getting ready to turn himself in, on the following day.At the time that he was apprehended, Defendant gave oral and written statements to the investigating officers. In these statements, Defendant admitted that he had shot Mr. Pierce with a shotgun; however, Defendant claimed that the shooting of Mr. Pierce was an accident which occurred while he was checking to see if the gun was loaded. Defendant claimed to have received a busy signal when he called 911 on his cell phone after Mr. Pierce was injured.
After Defendant was taken to the police station, Investigator Delois West took possession of Defendant's cell phone. Subsequently, investigating officers obtained the call records relating to Defendant's phone. At trial, Officer William McFayden of the Durham Police Department, a specialist in digital forensics, testified that tests showed no indication that a 911 call had been made from Defendant's cell phone. In addition, James Soukup, the director of Durham's emergency response system, testified that he had never heard of any caller encountering a busy signal while attempting to call 911. According to Mr. Soukup, the 911 call center only received two calls relating to the shooting at 3007 Angier Avenue.
A number of witnesses described the relationship between Defendant and Mr. Pierce. Kareem Fox testified that six men, including Defendant, Mr. Pierce, and himself, were smoking marijuana on the afternoon of 7 May 2007. Although Mr. Fox didnot recall that Defendant and Mr. Pierce had had any specific dispute within the month preceding Mr. Pierce's death, he testified that Defendant was both "cool" with and afraid of Mr. Pierce. According to Mr. Pierce's mother, Inita Glenn, Defendant had "beat . . . up" Mr. Pierce approximately two months prior to the date of Mr. Pierce's death.
At trial, Defendant admitted owning the shotgun involved in Mr. Pierce's death. In addition, Defendant testified that he "didn't [ever] mess with that gun" and that he "just thought about going to play with the gun" on the date that Mr. Pierce was killed. Defendant claimed that he was "just playing with the [shot]gun" and that he cocked and pulled the trigger four times before the shotgun discharged the fifth time he repeated the action. Although Defendant had told Mr. Pierce that he would attempt to get help, he left the house at 3005 Angier Avenue, went next door to 3007 Angier Avenue, and placed the firearms under a futon. At the time that he encountered Ms. Brodie, Defendant did not say anything about the shooting.
Mark Duncan, who owned and operated two shooting facilities, testified on Defendant's behalf as an expert witness in firearm operations. Mr. Duncan stated that, despite having repeatedly cycled the shotgun with which Mr. Pierce had been killed, he "could not get it to feed up." According to Mr.Duncan, this meant that the shotgun would not feed shells into the chamber so as to permit the shotgun to be fired. However, when Mr. Duncan tested the firearm in the courtroom, it functioned properly. After noting on cross-examination that, although a video recording had been made of the test in which the shotgun malfunctioned, Mr. Duncan claimed to have lost this recording in a computer crash. Although at least part of the recording was discovered during a weekend recess, the trial court sustained the State's objection to the introduction of the recording.
On 8 May 2007, a warrant for arrest was issued charging Defendant with murdering Mr. Pierce. On 21 May 2007, the Durham County grand jury returned a bill of indictment charging Defendant with the murder of Mr. Pierce. The charge against Defendant came on for trial before the trial court and a jury at the 1 April 2009 criminal session of the Durham County Superior Court. On 8 April 2009, the jury returned a verdict finding Defendant guilty of second-degree murder. At the ensuing sentencing hearing, the trial court found that Defendant had accumulated two prior record points and should be sentenced as a Level II offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of 189 months and a maximum term of 236 months imprisonment in the custody of theNorth Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.
On appeal, Defendant initially contends that the trial court committed plain error by failing to instruct the jury on the issue of his guilt of the lesser included offense of involuntary manslaughter on the grounds that a reasonable jury could have found that Defendant acted with culpable negligence at the time of Mr. Pierce's death. We do not find Defendant's argument persuasive.
As a general proposition, this Court reviews a defendant's challenge to a trial court's failure to instruct the jury on the issue of the defendant's guilt of a lesser included offense, such as involuntary manslaughter, on a de novo basis. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) () (citing State v. Ligon, 332 N.C. 224, 241-42, 420 S.E.2d 136, 146-47 (1992) and State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)). "[A] judge presiding over a jury trial must instruct the jury as to a lesser included offense of the crime charged where there is evidence from which the jurycould reasonably conclude that the defendant committed the lesser included offense." State v. McConnaughey, 66 N.C. App. 92, 95, 311 S.E.2d 26, 28 (1984) (). In determining whether the evidence is sufficient to support the submission of the issue of a defendant's guilt of a lesser included offense to the jury, "'courts must consider the evidence in the light most favorable to [t...
To continue reading
Request your trial