State v. Gettys

• Decision Date: 20 October 2015
• Docket Number: No. COA15–51.,COA15–51.
• Citation: 777 S.E.2d 351,243 N.C.App. 590
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ralph Lewis GETTYS, Defendant.

243 N.C.App. 590

777 S.E.2d 351

STATE of North Carolina

v.Ralph Lewis GETTYS, Defendant.

No. COA15–51.

Court of Appeals of North Carolina.

Oct. 20, 2015.

Attorney General, Roy A. Cooper III, by Assistant Attorney General, Brandon L. Truman, for the State.

Cheshire Parker Schneider & Bryan, PLLC, Raleigh, by John Keating Wiles, for defendant-appellant.

STROUD, Judge.

Ralph Lewis Gettys ("defendant") appeals from judgments entered after a jury found him guilty of second-degree murder, possession of a firearm by a felon, and simple assault. Defendant contends that the trial court erred in (1) denying his motion to strike the jury venire; (2) admitting a recording of a police interview and allowing a police detective to read from a transcript of that recording; and (3) denying defendant's request for a special jury instruction on sequestration. We find no error.

I. Background

In the early hours of 15 December 2012, defendant worked as a bouncer at a "liquor house" in Charlotte. Defendant patted down customers for firearms, among whom were Joshua Lampkins and Raymona Abraham. Around 5:00 a.m. or 6:00 a.m., defendant told his brother that he wanted to leave the liquor house. Defendant's brother gave him the keys to his car, which he had parked down the street, so that defendant could move the car in front of the liquor house and then they could leave together. Defendant's ex-girlfriend, Teshalla Dunlap, accompanied defendant as he walked down the street to the car.

With Dunlap as a passenger, defendant drove the car back up the street and parked it in front of the liquor house. When defendant and Dunlap got out of the car, Lampkins and Abraham confronted them and claimed that defendant had hit Lampkins with the car. Lampkins and Abraham demanded that defendant pay them fifty dollars, and when defendant refused, they threatened to attack him. When the conflict escalated, Dunlap walked toward the liquor house to tell defendant's brother to come outside. During the confrontation, defendant shot and killed Abraham and beat Lampkins unconscious. As part of the investigation of the homicide, Detectives Carter and Greenly interviewed Dunlap and recorded the interview.

On or about 7 January 2013, a grand jury indicted defendant for murder, possession of a firearm by a felon, and simple assault. See N.C. Gen.Stat. §§ 14–17, –33(a), –415.1 (2011). At trial, defendant moved to strike the petit jury venire, but the trial court denied his motion. On 16 January 2014, the jury found defendant guilty of second-degree murder, possession of a firearm by a felon, and simple assault. The trial court sentenced defendant to 339 to 419 months' imprisonment for the second-degree murder offense, 21 to 35 months' imprisonment for the possession of a firearm by a felon offense, and 60 days of imprisonment for the simple assault offense. The trial court ordered that defendant serve the second-degree murder sentence and possession of a firearm by a felon sentence consecutively and serve the simple assault sentence concurrently. Defendant gave notice of appeal in open court.

II. Motion to Strike the Jury Venire

Defendant first contends that the trial court erred in denying his motion to strike the jury venire. Defendant alleges that his venire was racially disproportionate to the demographics of Mecklenburg County and therefore deprived him of his constitutional right to a jury of his peers.

A. Standard of Review

We review alleged violations of constitutional rights de novo. State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

B. Analysis

Our state and federal Constitutions protect a criminal defendant's right to be tried by a jury of his peers. This constitutional guarantee assures that members of a defendant's own race have not been systematically and arbitrarily excluded from the jury pool which is to decide his guilt or innocence. However, the Sixth Amendment does not guarantee a defendant the right to a jury composed of members of a certain race or gender.

The burden is upon the defendant to show a prima facie case of racial systematic exclusion. In order for a defendant to establish a prima facie violation for disproportionate representation in a venire, he must show the following:

(1) that the group alleged to be excluded is a "distinctive" group in the community;

(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

State v. Jackson, 215 N.C.App. 339, 341–42, 716 S.E.2d 61, 64 (2011) (emphasis added and citations, quotation marks, and brackets omitted) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668–69, 58 L.Ed.2d 579, 587 (1979) ).

A single venire that fails to proportionately represent a cross-section of the community does not constitute systematic exclusion. See State v. Williams, 355 N.C. 501, 549–50, 565 S.E.2d 609, 638 (2002), cert. denied, 537 U.S. 1125, 123 S.Ct. 894, 154 L.Ed.2d 808 (2003). "The fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Equal Protection Clause." Jackson, 215 N.C.App. at 343, 716 S.E.2d at 65 (brackets omitted). Systematic exclusion occurs when a procedure in the venire selection process consistently yields non-representative venires. See Duren, 439 U.S. at 366–67, 99 S.Ct. at 669–70, 58 L.Ed.2d at 588–89 (holding that a venire selection process favoring female exemption from jury duty constituted systematic exclusion).

Defendant argues that Mecklenburg County's computer program, Jury Manager, generated a racially disproportionate venire and thus deprived him of a jury of his peers. Defendant relies on Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539–40, 24 L.Ed.2d 567, 578 (1970). But in interpreting Turner, our Supreme Court noted:

[T]he United States Supreme Court did not conclude that the prima facie case was solely based upon the disparity of representation of African–Americans in the jury venire. Rather, that Court's conclusion ultimately rested upon the finding that the underrepresentation was the result of the systematic exclusion of African–Americans in the jury-selection process. Under our interpretation of Turner, merely showing a disparity under the second prong of the Duren test, standing alone, will not establish a prima facie case of disproportionate representation.

State v. Bowman, 349 N.C. 459, 469, 509 S.E.2d 428, 434 (1998) (citation omitted), cert. denied, 527 U.S. 1040, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999). Although defendant asserts that there is a disparity under the second prong of Duren , he concedes the absence of systematic exclusion under the third prong. Because defendant has failed to satisfy the third Duren prong, systematic exclusion, we hold that the trial court did not err in denying defendant's motion to strike the jury venire. Id., 509 S.E.2d at 434–35 ; see also Williams, 355 N.C. at 549–50, 565 S.E.2d at 638 ; State v. Avery, 299 N.C. 126, 134–35, 261 S.E.2d 803, 808–09 (1980).

III. Admission of Evidence

Defendant argues that the trial court erred in admitting the recording of Dunlap's police interview for both corroboration and impeachment. Defendant further contends that the trial court erred in allowing Detective Carter to read portions of the transcript of that recording. We find no error in either circumstance.

A. Standard of Review

The standard of review for this Court assessing evidentiary rulings is abuse of discretion. A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision. The abuse of discretion standard applies to decisions by a trial court that a statement is admissible for corroboration.

State v. Tellez, 200 N.C.App. 517, 526, 684 S.E.2d 733, 739 (2009) (citations and quotation marks omitted). We also review for an abuse of discretion a trial court's decision to admit a statement for impeachment. State v. Banks, 210 N.C.App. 30, 38, 706 S.E.2d 807, 814 (2011).

Relying on Sherrod v. Nash General Hospital, Inc., defendant argues that the proper standard for reviewing a trial court's decision to admit a statement for corroboration is de novo. See 126 N.C.App. 755, 762, 487 S.E.2d 151, 155 (1997), aff'd in part and rev'd in part, 348 N.C. 526, 500 S.E.2d 708 (1998). But there, this Court did not discuss a trial court's ruling on whether evidence was admissible for corroboration; rather it discussed a trial court's ruling on whether evidence was relevant under N.C. Gen.Stat. § 8C–1, Rule 401. Id., 487 S.E.2d at 155. Accordingly, we hold that Sherrod is inapposite.

B. Corroboration and Impeachment

The prior consistent statements of a witness may be offered at trial for corroborative, nonhearsay purposes. Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. In order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony. The trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay purposes.

State v. Duffie, ––– N.C.App. ––––, ––––, 772 S.E.2d 100, 104 (2015) (citations and quotation marks omitted). "Prior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature. Even so, such prior inconsistent statements are admissible for the...