State v. Holliman

• Decision Date: 31 December 2002
• Docket Number: No. COA02-133.,COA02-133.
• Citation: 573 S.E.2d 682,155 NC App. 120
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Shawn Kristopher HOLLIMAN.

573 S.E.2d 682

155 NC App. 120

STATE of North Carolina v. Shawn Kristopher HOLLIMAN.

No. COA02-133.

Court of Appeals of North Carolina.

December 31, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State.

Parish & Cooke, by James R. Parish, Fayetteville, for defendant appellant.

TIMMONS-GOODSON, Judge.

Shawn Kristopher Holliman ("defendant") appeals from his conviction of first-degree murder. For the reasons discussed herein, we find no error by the trial court.

The State's evidence at trial tended to show the following: On 14 December 1999, Natalie Ann Fox ("Fox") returned to her apartment on Sykes Avenue which she shared with her seventeen-year-old daughter, Tanika Fox ("Tanika"). Upon arriving at her apartment, Fox found Tanika lying on the floor and called an emergency response unit. Officers from the Greensboro Police Department and paramedics responded to the call. Tanika was taken to Moses Cone Hospital where she was pronounced dead by Dr. Allen Davidson ("Dr.Davidson"). Tanika had suffered two gunshot wounds to the back of the head. Fox provided the following testimony: that she and Tanika shared the apartment; that she telephoned Tanika three times on the evening of 14 December 1999 and spoke to her by telephone twice; that Fox last placed a telephone call to Tanika at approximately 9:30 p.m. during her break at work, but Tanika did not answer the phone; and that Tanika was pregnant at the time she was killed.

On 15 December 1999, Detective R.W. Saul ("Detective Saul") learned that defendant was possibly the father of Tanika's unborn child. Detective Saul also learned that the pregnancy caused some problems between Tanika and defendant, because he did not want Tanika to have the baby. Upon learning this information, Detective Saul visited defendant's home to interview him about Tanika's death. Defendant accompanied Detective Saul to the police station for the interview. Defendant informed Detective Saul and later testified at trial that on 14 December 1999, he worked from noon until 9:00 p.m.; returned to his mother's home; visited the home of Ricky Jones ("Jones"); drove to Goldsboro with a friend by the name of "Carlos;" and then returned to his mother's home in Greensboro. "Carlos" did not testify at trial.

On 18 January 2000, the police interviewed Jones, who provided a written statement. According to information tendered by Jones, defendant drove to his house on 14 December 1999; the two men left the house and drove to an apartment where defendant previously resided; and after entering the apartment and remaining for some period of time, defendant and Jones then drove to a parking lot on Sykes Avenue. Jones testified that he remained in the car while defendant walked across a parking lot toward an apartment complex. According to Jones, defendant returned to the car "five minutes later" with a "tear in [his] eye." According to Jones, he learned of Tanika's death on 15 December 1999.

As a result of the interview with Jones, Detective Saul conducted a second interview with defendant on 18 January 2000. Defendant was shown a picture of Tanika and was confronted with the statement given by Jones. Defendant then confessed to killing Tanika and provided a written statement detailing the events. On 21 February 2000, defendant was indicted for the first-degree murder of "Tamika R. Fox." On 9 July 2001, the State moved to amend the indictment to read "Tanika," as the previous indictment misspelled her first name. The trial court granted the motion to amend.

At trial, defendant denied involvement with Tanika's death. Defendant testified that he and Tanika had a sexual relationship; and that when he learned that she was pregnant, he discussed with her the abortion option, but she rejected the idea and was determined to have the baby. Defendant denied visiting Tanika on 14 December 1999. Tameka Harris ("Harris") and Christina Potts ("Potts") testified that on 14 December 1999 each spoke with Tanika over the telephone and she informed them that she was expecting a visit from defendant.

Upon conclusion of the evidence, the jury found defendant guilty of first-degree murder. Defendant was sentenced to a term of life imprisonment. Defendant appeals.

Defendant presents five assignments of error on appeal, arguing that the trial court erred by (1) denying his motion to suppress his statement; (2) denying his motion to dismiss the charge of first-degree murder; (3) allowing the State to amend the indictment before trial; (4) allowing impermissible hearsay testimony; and (5) allowing the admission of Jones' written statement.

In his first assignment of error, defendant argues that the trial court erred by denying his motion to suppress his statement provided to police. Defendant asserts that his statement was inadmissible because his Fourth Amendment right to be free from unreasonable seizures was violated and there was no probable cause for his seizure. For the reasons stated herein, defendant has waived this assignment of error.

Our Supreme Court "has long held that where a theory argued on appeal was not raised before the trial court, `the law does not permit parties to swap horses between courts in order to get a better mount'" in the appellate courts. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6 (1996)(quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)); see also State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988)

(holding that where defendant relied on one theory at trial as basis for written motion to suppress and then asserted another theory on appeal, "no swapping horses" rule applied); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). According to Rule of Appellate Procedure 10(b)(1), in order to preserve a question for appellate review, the party must state the specific grounds for the ruling the party desires the court to make. N.C.R.App. P. 10(b)(1) (2002). "The defendant may not change his position from that taken at trial to obtain a `steadier mount' on appeal." State v. Woodard, 102 N.C.App. 687, 696, 404 S.E.2d 6, 11 (1991) (quoting State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)), disc. review denied, 329 N.C. 504, 407 S.E.2d 550 (1991).

In the instant case, the motion to suppress was heard in the trial court and defense counsel stated the following:

... our allegation [is] that Dectective Saul at some point coerced [defendant's] confession. And frankly, Judge Eagles, that's the only legal basis that I can see in this case for suppressing the confession.

....

... Of course, the problem is from the standpoint of Miranda. He was Mirandized. And he did sign the Miranda waiver form. So we can't argue that it was an un-Mirandized statement. We're not arguing that. We're arguing that it was coerced.

At trial, defendant argued that the statement should be suppressed, because it was coerced. For the first time on appeal, defendant asserts that the statement should be suppressed for lack of probable cause to effectuate his seizure. Because defendant impermissibly presents a different theory on appeal than argued at trial, this assignment of error was not properly preserved. Therefore, it is waived by defendant.

By his second assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree murder due to the insufficiency of evidence. In this assignment of error, defendant argues that the State's evidence was only sufficient for a charge of seconddegree murder. We disagree.

In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). "A motion to dismiss on the ground of insufficient evidence should be denied if there is substantial evidence of each element of the crime, and that defendant [is] the perpetrator." State v. Cozart, 131 N.C.App. 199, 202, 505 S.E.2d 906, 909 (1998), disc. review denied, 350 N.C. 311, 534 S.E.2d 600 (1999); State v. Roddey, 110 N.C.App. 810, 812, 431 S.E.2d 245, 247 (1993). Evidence is substantial when a jury "could find the fact to be proved beyond a reasonable doubt." State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986). "The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense." State v. Jones, 110 N.C.App. 169, 177, 429 S.E.2d 597, 602 (1993), disc. review denied, 336 N.C. 612, 447 S.E.2d 407 (1994).

"Murder in the first-degree is the unlawful killing of a human being with malice and with premeditation and deliberation." State v. Russell Council Judge, 308 N.C. 658, 661, 303 S.E.2d 817, 820 (1983). "`Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.' " Cozart, 131 N.C.App. at 199, 505 S.E.2d at 909 (quoting State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994)). "`Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.'" Id.

In defendant's written statement he gave the following information:

I got off work a little before 9:00. Went home. Talked to my mother. Went to Cameron Avenue. Left. Went to Tanika's house. Asked her why are you putting me through this. How can I provide [for] three kids and I'm barely providing for two. Then I asked [Tanika] why do you want to have a baby by me anyway. And she said to make up for the last one. It seemed to be a way

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