State v. Eubanks

• Decision Date: 16 July 2002
• Docket Number: No. COA01-1031.,COA01-1031.
• Citation: 565 S.E.2d 738,151 NC App. 499
• Parties: STATE of North Carolina v. Tommy Lee EUBANKS.
• Court: North Carolina Court of Appeals

565 S.E.2d 738

151 NC App. 499

STATE of North Carolina v. Tommy Lee EUBANKS.

No. COA01-1031.

Court of Appeals of North Carolina.

July 16, 2002.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Steven F. Bryant, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defenders Beth S. Posner and Daniel R. Pollitt, Durham, for defendant-appellant.

HUNTER, Judge.

Tommy Lee Eubanks ("defendant") appeals the trial court's judgment sentencing him to a prison term of 240 to 297 months for second degree murder. We find no prejudicial error.

The evidence at trial tended to establish the following facts. The victim, Jimmy Quick, had been friends with defendant, despite the fact that Quick had stolen items from defendant on multiple occasions, and despite the fact that defendant had, as a result, previously taken out criminal charges against Quick and had threatened to kill Quick. On 22 January 2000, Quick was present at defendant's home, along with defendant (who was sick and in bed that day), Candy Sharpe, Wanda Smith, Donald Dawkins, and defendant's ex-wife, Betty Eubanks. The individuals were all friends and some had been smoking crack cocaine and consuming alcohol. At some point during the evening, while defendant was asleep, Sharpe, Eubanks, Smith and Quick took defendant's van. Due to heavy snow, they were unable to return defendant's van to defendant's home that evening. Sharpe called defendant, and defendant became angry and threatened to kill Quick because Quick had stolen defendant's vehicle on a prior occasion. Due to the weather, Smith and Quick spent the night at Sharpe's home.

The following day, after Smith called defendant, defendant and Dawkins (who had spent the night at defendant's home) arrived at Sharpe's home in a truck at approximately 12:45 p.m. Defendant was angry, but appeared to calm down once Smith showed defendant where the van was parked. Shortly thereafter, after returning to the kitchen of Sharpe's home, Smith heard defendant, Quick, and Dawkins talking outside. She then heard Quick scream, "`No, Tommy Lee; no, Tommy Lee,'" and saw him run by the window. Smith heard a single gunshot, opened the door, and saw Quick laying on the ground and defendant standing nearby holding a shotgun and aiming it at Quick. Defendant said, "`You'd better call some son of a bitch to come after this mother f____er,'" and then he and Dawkins left. Quick subsequently died as a result of the gunshot wound. At some point immediately following the shooting, defendant took the gun and hid it in his sister's house.

Richmond County Chief Deputy Sheriff Phil Sweatt arrived at the scene of the shooting and subsequently called defendant's home and left a message for him. Defendant returned Deputy Sweatt's call within minutes and asked about the severity of Quick's injuries and whether defendant had killed Quick. Defendant indicated that he was at the house of Linda Jacobs, and he agreed to meet with Deputy Sweatt and to help the police locate the gun. Deputy Sweatt and other deputies then went to Jacobs' home. Deputy Robert Lee Taylor took defendant to locate the gun, and defendant admitted that he had left the gun at his sister's house. During the ride to defendant's sister's house, defendant said to Deputy Taylor, "`I tried to shoot him in the ass, but I missed.'" Deputy Taylor located the gun in a closet at defendant's sister's house.

Defendant was charged and tried for the offense of first degree murder. The jury found defendant guilty of second degree murder, and the trial court entered judgment and sentenced defendant to a prison term of 240 to 297 months. On appeal, defendant has entered twenty-five assignments of error. Defendant has incorporated five of these into the four arguments in his appellate brief; defendant's remaining assignments of error are deemed abandoned. See N.C.R.App. P. 28(b)(6). Defendant's four arguments are: (1) the trial court erred in admitting certain testimony by Sharpe and Smith; (2) the trial court erred by instructing the jury on "flight"; (3) the trial court erred by refusing to submit the charge of involuntary manslaughter to the jury; and (4) the trial court erred in determining defendant's prior record level.

I.

By two assignments of error, defendant argues that the trial court erred in admitting testimony by Sharpe and Smith tending to show that defendant orchestrated a scheme whereby Quick, Sharpe, Smith, and others routinely stole clothing and then obtained refunds by returning the stolen clothing, and that, in exchange for their participation in the scheme, defendant provided them with drugs, and also that defendant himself used drugs.¹ Defendant argues that this evidence should have been excluded pursuant to Rule 404(b) of the North Carolina Rules of Evidence ("Rule 404(b)") because its only purpose was to demonstrate defendant's character. However, a review of the transcript reveals that defendant elicited substantively similar testimony during cross-examination of Smith. Thus, even assuming arguendo that the admission of the testimony in question during the direct examinations of Sharpe and Smith constituted error, we hold that any such error was not prejudicial. See, e.g., State v. Featherson, 145 N.C.App. 134, 138, 548 S.E.2d 828, 831 (2001)

. These assignments of error are overruled.

II.

Defendant next argues that the trial court erred by instructing the jury on "flight" (pursuant to N.C.P.I., Crim. 104.36) over defendant's objection. It is well established that

"[e]vidence of a defendant's flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt." A trial court may properly instruct on flight where there is "`some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged.'" However, "[m]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension."

State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001) (citations omitted). Defendant argues that the instruction on flight was not supported by the record because, although it was undisputed that defendant drove away from Sharpe's home shortly after the shooting, there was no additional evidence that defendant "took steps to avoid apprehension." Id. Furthermore, defendant argues, the prejudice resulting from the improper instruction is demonstrated by the fact that the prosecutor for the State specifically argued to the jury during his closing argument that the jury could infer defendant's intent to kill Quick from the fact that he fled the scene and hid his gun.

We disagree with defendant that the instruction was improper. The undisputed evidence established the following factors which, taken together, support an instruction on flight: (1) defendant provided no assistance to Quick after shooting him, see id. at 119, 552 S.E.2d at 626; (2) defendant fled the scene of the shooting and disposed of his gun, see State v. Nixon, 117 N.C.App. 141, 152, 450 S.E.2d 562, 568 (1994)

; and (3) defendant did not voluntarily contact the police or turn himself into the police but, rather, merely cooperated with their investigation once he was contacted by the police, see State v. Brewton, 342 N.C. 875, 878-79, 467 S.E.2d 395, 397-98 (1996). This assignment of error is overruled.

III.

Defendant next argues that the trial court erred by denying his request to submit the verdict of involuntary manslaughter to the jury. A defendant is entitled to have a verdict of a lesser included offense submitted to the jury if it is supported by the evidence, and in determining whether a lesser included offense is supported by the evidence, the evidence must be viewed in the light most favorable to the defendant. See State v. Barlowe, 337 N.C. 371, 377-78, 446 S.E.2d 352, 356-57 (1994). Involuntary manslaughter, which is a lesser included offense of murder, "is the unlawful and unintentional killing of another without malice which proximately results from an unlawful act not amounting to a felony nor naturally dangerous to human life, or by an act or omission constituting culpable negligence." State v. Barts, 316 N.C. 666, 692, 343 S.E.2d 828, 845 (1986). Defendant argues that a verdict of involuntary manslaughter should have been submitted to the jury because there was evidence tending to show that "the shooting occurred through the mishandling of an extremely old, indeed, antique and battered, firearm which [defendant] was negligently waving around." However, although there was evidence that the shotgun was old and, therefore, might generally have been prone to being discharged by accident, there was no evidence tending to show that this particular firing of the gun by defendant resulting in Quick's death was unintentional. In fact, there was evidence tending to show that defendant fired the gun intentionally, including evidence that defendant told Deputy...