State v. Jones

• Decision Date: 18 May 1993
• Docket Number: No. 9118SC1156.,9118SC1156.
• Citation: 110 N.C. App. 169,429 S.E.2d 597
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Bill JONES, Jr.

429 S.E.2d 597

110 N.C. App. 169

STATE of North Carolina v. Bill JONES, Jr.

No. 9118SC1156.

Court of Appeals of North Carolina.

May 18, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Janine M. Crawley, Raleigh, for defendant-appellant.

COZORT, Judge.

Defendant was convicted of two counts of second-degree murder. He was sentenced to two consecutive life terms in prison. Defendant disputes the following on appeal: (1) the trial court's admission into evidence for corroboration purposes the prior statements given to police by three of the State's witnesses, (2) the trial court's failure to dismiss the charges based on insufficiency of the evidence, and (3) the trial court's denial of defendant's motion for a mistrial because the jury deliberated for an unreasonable amount of time. We conclude the defendant received a fair trial free from prejudicial error.

The State's evidence at trial tended to show that during March of 1989, defendant Bill Jones, Jr., resided with his girlfriend Queen Esther Zimmerman (Queen Esther) in an apartment located in Building # 1424 at East Commerce Street in High Point, North Carolina. On the evening of 24 March 1989, Melanie Tucker, a friend of Queen Esther, testified that around 6:00 p.m., Queen Esther picked up Melanie to come over for a visit. The two women went initially to the apartment of Queen Esther's brother, Sam Zimmerman, and then proceeded to Queen Esther's apartment where they watched television. Throughout the evening, various neighbors and friends of Queen Esther would come to the apartment, or "drink house," where they drank alcohol at the mobile bar in the kitchen, socialized, contributed money to pay for the drinks, and then left. The defendant was in and out of the apartment at various times after the women arrived.

At approximately 9:00 p.m., Melanie and Queen Esther ordered a pizza. While waiting for the pizza to be delivered, Melanie sat in the living room and watched television, while Queen Esther entertained her guests in the kitchen. Between 9:45 and 10:00 p.m., Betty Dunlap and her daughter, Cynthia Dunlap, stopped by the apartment and went into the kitchen. Cynthia left the apartment for a few minutes and returned shortly. Melanie indicated that from where she was sitting in the living room, she could see Cynthia and her mother in the kitchen, though they could not see her. Melanie saw the defendant enter the kitchen and stand behind Cynthia. Defendant began to pull something out of his pocket with his hand, but when he saw Melanie looking at him from the living room, he hurriedly left the apartment. Defendant returned to the apartment after a few minutes and spoke privately with Queen Esther. Queen Esther then asked the Dunlaps to leave. Before Cynthia could leave the apartment, the defendant attempted to grab her, but Queen Esther restrained him by clutching his arms. When Queen Esther asked the defendant why he was behaving so badly, the defendant replied, "in a few days you'll find out why." The defendant left soon after the Dunlaps exited the premises.

As Melanie and Queen Esther began eating the pizza which had been delivered, they heard a "popping" noise outside. Melanie thought the noise came from the opening of Queen Esther's screen door, but Queen Esther went to the door, opened it, and looked outside because she thought she had heard a gunshot. Not long after the noise was heard, the defendant came back into the apartment and went upstairs. Some boys from the neighborhood came inside with the defendant, but did not say much to either Melanie or Queen Esther. Melanie indicated she wanted to go home because she sensed something was wrong, but Queen Esther persuaded her to accompany her and the defendant to defendant's mother's house. The three then got into defendant's car to drive to Sally Jones' home. During the trip, Queen Esther asked the defendant why he "did it," and the defendant said, "Do what?" Queen Esther then asked the defendant, "Why did you shoot those people?" Defendant replied, "What people?" Queen Esther then said, "Those people that you ran out of the house." Melanie testified that she observed defendant removing a gun from his pants and giving the gun to Queen Esther. From Mrs. Jones' house, Melanie called a taxi to take her home.

The bodies of Betty and Cynthia Dunlap were discovered on the morning of 25 March 1989. The women had been shot while sitting in the front seat of their car. Autopsies conducted on both bodies revealed the women died from head injuries caused by the entry of a .38 caliber bullet. Other witnesses who testified for the State placed defendant near the Dunlaps' automobile at the time the shots were fired. Additional testimony tended to show that defendant had brandished a gun that evening and was intoxicated. Defendant presented no evidence.

Defendant first argues on appeal that the admission of statements given to police officers by State's witnesses Melanie Ferree Tucker, Jenny Harris, and Validia Scott should have been excluded because they did not corroborate the in-court testimony of the witnesses and because they were unduly prejudicial to the defendant.

The law is well-settled that a witness's prior consistent statement may be admitted into evidence where the statements corroborate the witness's in-court testimony. State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991). Prior statements admitted for corroborative purposes cannot be received as substantive evidence. State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, 447 (1984).

If a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this "new" evidence under a claim of corroboration.... However, if the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury.

State v. Brooks, 260 N.C. 186, 189, 132 S.E.2d 354, 357 (1963) (citations omitted). "Brooks imposes a `threshold test of substantial similarity.'" Harrison, 328 N.C. at 682, 403 S.E.2d at 304 (quoting State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980).) Accordingly, it is clear that "prior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the witness' in-court testimony." State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992). Although a statement containing additional facts is not automatically barred from admission, our courts have found error in the admission of statements "when the content went far beyond the witness's in-court testimony." Harrison, 328 N.C. at 682, 403 S.E.2d at 304. See, e.g., State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); State v. Moore, 300 N.C. 694, 268 S.E.2d 196 (1980); State v. Stills, 310 N.C. 410, 312 S.E.2d 443 (1984).

Additionally, "in a noncapital case, where portions of a statement corroborate and other portions are incompetent because they do not corroborate, the defendant must specifically object to the incompetent portions." Harrison, 328 N.C. at 682, 403 S.E.2d at 304. "Objections to evidence en masse will not ordinarily be sustained if any part is competent." Brooks, 260 N.C. at 189, 132 S.E.2d at 357. Where a defendant in a noncapital trial makes only a broadside objection to the allegedly incompetent corroborative testimony, the assignment of error is waived. State v. Benson, 331 N.C. 537, 549, 417 S.E.2d 756, 764 (1992).

In the present case, the State contends the defendant failed to preserve the assignment of error relating to the corroboration issue because the defendant did not object to the specific portions of the witnesses' statements which purportedly were noncorroborative of their in-court testimony. The record reveals that on the morning the statements were to be offered into evidence, the trial court held a conference in the jury's absence to discuss the defendant's objection to the admission of the statements. The transcript reports the following:

THE COURT: ... Now, when we recessed yesterday, the State indicated they were going to offer prior statements of the witness sic Ferree, Validia Scott and Jenny Harris—Melanie Ferree, Validia Scott and Jenny Harris.

Now, Mr. Dockery, you are objecting?

MR. DOCKERY defense counsel: That's correct, Your Honor.

THE COURT: All right. Now, we spent considerable time in chambers this morning trying to sort through this and expedite the ultimate hearing of the evidence by the jury.

Now, let me be sure of the basis of your objection. The State indicated that they have tapes of the conversations, which they are prepared to offer, but in an effort to expedite the consideration of such by the jury, they have reduced those tapes to transcript fashion. Now, are you objecting on the basis that the State needs to establish a foundation to admit the tape?

MR. DOCKERY: No, sir.

THE COURT: All right. Now, you're not raising that point?

MR. DOCKERY: No, sir.

THE COURT: You're just objecting generally that what's about to be offered doesn't corroborate the testimony?

MR. DOCKERY: Yes, Your Honor. They—

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THE COURT: What's been eliminated at least in the Court's opinion are the gross disparities. And I've attempted to rule out any prejudicial matter that appears in those statements. And counsel for the defendant and the district attorneys have been present and participated in that process. So what we have left is the excised version of the transcript....

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... You're not objecting to the foundation question? If you object that they have to lay a foundation, we have to go through

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