State v. Hinton

• Decision Date: 19 March 2013
• Docket Number: No. COA12–796.,COA12–796.
• Citation: 738 S.E.2d 241
• Parties: STATE of North Carolina v. Tyshawn HINTON, Defendant.
• Court: North Carolina Court of Appeals

738 S.E.2d 241

STATE of North Carolina

v.Tyshawn HINTON, Defendant.

No. COA12–796.

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by defendant from judgment entered 9 December 2011 by Judge Walter H. Godwin, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 13 December 2012.

Roy Cooper, Attorney General, by Tina L. Hlabse, Special Deputy Attorney General, for the State.

Staples Hughes, Appellate Defender, by Kristen L. Todd, and Hannah Hall, Assistant Appellate Defenders, for defendant-appellant.

MARTIN, Chief Judge.

Defendant Tyshawn Hinton was charged in a true bill of indictment with attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weapon with intent to kill. A jury acquitted defendant of the attempted first-degree murder charge, but found defendant guilty of both assault charges. Judgment was entered upon the jury's verdict sentencing defendant to not less than 25 months and not more than 39 months of imprisonment for assault with a deadly weapon with intent to kill, and a consecutive term of not less than 73 months and not more than 97 months of imprisonment for assault with a deadly weapon with intent to kill inflicting serious injury. He appeals.

The State's evidence at trial tended to show that on or about the night of 22 February 2009, Myquetta McPherson was alerted by a neighbor's screams to call 911. Ms. McPherson telephoned 911 and told the dispatcher that someone had been shot and was lying in the road on Pritchard Street. The individual was later identified as Daniel Lindsey. Mr. Lindsey had been shot in the neck and was lying in a large pool of blood. Mr. Lindsey was taken to Albemarle Hospital where he was diagnosed as paralyzed below his chest due to a spinal cord injury from the gunshot. Mr. Lindsey was ultimately airlifted to Norfolk General Hospital because of the seriousness of his injuries.

Officer Leroy Owen, a crime scene investigator for the Elizabeth City Police Department, was called to the scene of the Pritchard Street shooting. From the scene, Officer Owen collected the victim's cell phone and a nine-millimeter shell casing with a Winchester headstamp. Though the fired bullet exited the victim's body, Officer Owen was unable to locate the projectile at the scene.

Officer Owen left the scene of the Pritchard Street shooting to investigate an earlier shooting at the Sunoco gas station located at the intersection of Halstead Boulevard and Hughes Boulevard, commonly referred to as “H & H.” In the Sunoco parking lot, Officer Owen found another nine-millimeter shell casing with a Winchester headstamp and a red bandana. Officer Owen also discovered that an alarm had been triggered at the Ruby Tuesday's restaurant across the intersection from the Sunoco. Officer Owen observed that one of the restaurant's windows had been shattered. After a search of the interior of the restaurant, Officer Owen found a fragment of a bullet's copper jacket and testified at trial that it had likely been fired from the direction of the Sunoco. Officer Owen also testified that the shell casing he recovered from Pritchard Street was “consistent” with the shell casing found at the Sunoco and that they would both “fit in the same gun.” However, the trial court did not allow an SBI agent to testify as to whether the two casings Officer Owen recovered were fired from the same weapon. The court ruled the testimony inadmissible because the SBI agent could not identify one of the two casings entered into evidence as having her markings and therefore could not say whether it was the casing she actually tested in the lab. A gun was never introduced into evidence nor connected to defendant.

Sergeant P.W. Perry obtained a statement from a woman who said she saw a short, black male about 5' 4? tall wearing a dark jacket and jeans leaving Pritchard Street after the gunshot. This description was never connected to defendant.

About a month later, Detective Barbara Morgan and Sergeant Gary Bray interviewed Mr. Lindsey at Norfolk General Hospital. Due to his injuries, Mr. Lindsey's speech was impaired and the officers could not hear him, but he was able to make facial expressions and shake his head. Mr. Lindsey told the officers that it was defendant who had shot him. Mr. Lindsey made a second consistent statement to the officers the following month. He also told the officers he had been at the Sunoco station ten minutes before the incident on Pritchard Street and that defendant had shot at him and missed. Detective Morgan testified that “[Mr. Lindsey] knew exactly what he was talking about.”

Sergeant Bray testified that he has special training in narcotics and gang investigations. In February 2009, he was the commander of the drug and gang unit with the Elizabeth City Police Department. Over the years, he has been involved in hundreds of gang-related investigations, including numerous gang-related shootings. Sergeant Bray testified that Bloods and Crips ¹ are the predominant gangs in Elizabeth City. Sergeant Bray testified regarding the subsets of the Bloods organization in Elizabeth City. Sergeant Bray also discussed the rivalries and conflicts between gangs and their subsets. Sergeant Bray maintains a database of gang members. The individuals in the database are either self-admitted gang members or persons who meet certain criteria, including associating with known gang members, engaging in criminal activity with a gang, or having tattoos, markings, and clothing consistent with gang membership. Sergeant Bray discussed the leadership and hierarchy of gangs as well.

As the commander of the drug and gang unit, Sergeant Bray was required to investigate all “shots-fired” calls in Elizabeth City, including the shooting on Pritchard Street. Pritchard Street, according to Sergeant Bray, is not a known gang area. Sergeant Bray testified that the red bandana recovered at H & H was “consistent with” what the Bloods would wear. H & H is a place where people often congregate after the clubs close, and has been the scene of numerous shootings, but Detective Bray did not testify that it was a known gang area. When the State asked if anyone connected to the events at issue was a known member of a gang, defense counsel objected. After a lengthy voir dire and arguments to the trial court, the trial court excluded the State's proffered evidence that defendant was a self-admitted gang member, due to a violation of his juvenile Miranda rights when he made the statement.

Mr. Lindsey testified with difficulty despite the aid of an interpreter to verbalize his testimony. His testimony was also interrupted numerous times by objections for leading and the trial court's reprimands to the State. At times, the interpreter resorted to the use of a legal pad with the alphabet written on it, reading each letter and judging Mr. Lindsey's response, attempting to spell out the answer. Through the interpreter, Mr. Lindsey testified that he was at the Sunoco station at Hughes and Halstead and saw defendant there. He testified that defendant shot at him at the gas station. Mr. Lindsey testified that after he left the gas station, he was later shot in the neck. Mr. Lindsey again identified defendant as the shooter at this second location. Mr. Lindsey was unable to testify as to the street on which the second shooting occurred. Mr. Lindsey testified that defendant and another individual named “Joey” then left in a pink car. Joey was the driver. Mr. Lindsey believed defendant shot him because he was in a sexual relationship with defendant's aunt. Defendant presented no evidence.

After the jury retired for deliberations, it sent a note to the trial judge, asking to review the testimony of Detective Morgan and Sergeant Bray concerning their interview of Mr. Lindsey in the hospital. The jury also wanted to review the SBI agent's testimony about the shell casings and asked if the casings matched. The trial court read the note to counsel for the State and counsel for defendant, and indicated that the court was going to give Pattern Jury Instruction 101.50, “Duty to Recall the Evidence.” The trial court then asked counsel whether the court should tell the jury “that the information that they have requested has already been presented and is not in a form which can be presented to them, or just leave it at the instruction?” When the jury was brought in, the court simply read the instruction.

After further deliberations, the jury found defendant not guilty of attempted first-degree murder, but found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon with intent to kill. Though the State gave notice of intent to prove several aggravating factors, among them that defendant committed the crime for the benefit of or at the direction of a criminal street gang, or with the intent to promote, further, or assist in the criminal activities of a criminal street gang, the State ultimately did not pursue an aggravated sentence.

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Defendant first argues the trial court erred by allowing testimony from Sergeant Bray regarding gang activity in Elizabeth City. Specifically, defendant contends the testimony was irrelevant and highly inflammatory when no evidence was presented to the jury that the offense in question was gang related. Defendant did not object to the testimony at trial; thus, the standard of review is plain error. SeeN.C.R.App. P. 10(a)(4); see also State v. Rourke, 143 N.C.App. 672, 675, 548 S.E.2d 188, 190,cert. denied,354 N.C. 226, 553 S.E.2d 396 (2001).

“For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error is one where “after...