State v. Lee

• Decision Date: 02 August 2016
• Docket Number: No. COA15–1352.,COA15–1352.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gyrell Shavonta LEE.

248 N.C.App. 763

789 S.E.2d 679

STATE of North Carolina

v.Gyrell Shavonta LEE.

No. COA15–1352.

Court of Appeals of North Carolina.

Aug. 2, 2016.

Attorney General, Roy Cooper, by Special Deputy Attorney General, Kimberly D. Potter, for the State.

Appellate Defender, Glenn Gerding, by Assistant Appellate Defender, Paul M. Green, for Defendant.

McGEE, Chief Judge.

Gyrell Shavonta Lee ("Defendant") appeals his conviction for second-degree murder. Defendant contends that the trial court erred by: (1) omitting a no duty to retreat instruction from its jury instructions; (2) instructing the jury it could find Defendant was the initial aggressor despite a lack of evidence to support that theory; (3) not instructing the jury on the lawful defense of a third person; (4) excluding a non-hearsay statement made by Defendant; (5) violating a statutory mandate by requiring the jury to deliberate for an unreasonable length of time; and (6) not considering evidence of aggravating or mitigating factors in sentencing Defendant as mandated by statute. We find no error.

I. Background

Defendant celebrated New Year's Eve on 31 December 2012 in Elizabeth City, where Defendant lived with his brother. Shortly after midnight, Defendant exited a home across the street from his residence and encountered several individuals, including Quinton Epps ("Epps") and Defendant's cousin, Jamieal Walker ("Walker"), congregated around a blue 1993 Grand Marquis automobile. Epps and Walker were engaged in a heated verbal dispute. Walker seemed "very agitated" and told Defendant that Epps "felt verbally disrespected." Epps left in the Grand Marquis, and Defendant went inside his residence.

About twenty minutes later, a black Cadillac STS vehicle ("the Cadillac") approached Defendant's residence. Defendant and Walker were standing "beside the house ... in the front yard." Defendant saw Epps get out of the Cadillac's back passenger side. Walker and Epps began arguing, and Defendant observed that Epps was "verbally disrespectful [and] verbally aggressive." Epps got back into the Cadillac and it sped away.

Approximately twenty minutes later, a burgundy Mitsubishi Galant ("the Mitsubishi") drove up alongside Defendant's backyard, stopping briefly. Defendant retrieved a .45 caliber handgun from his car and concealed it on his person, "[out of] instinct," although Defendant believed "Epps ... wasn't a threat at th[at] time." The Mitsubishi pulled off, circled the block, and parked two or three houses down from Defendant's residence in front of a cemetery across the street, at the intersection of Shepard Street and Herrington Road. Epps and several other individuals exited the Mitsubishi.

Defendant and Walker walked down the street to talk to Epps. Epps and Walker began arguing. Defendant saw Epps had a gun behind his back. The argument escalated, and Walker punched Epps in the face. After being punched, Epps leaned back, grabbed the hood of Walker's jacket, and shot Walker in the stomach. When Epps shot Walker a second time, Defendant withdrew his handgun. Walker was able to get up, and Epps continued shooting at Walker as he attempted to flee. After Epps fired a final shot at Walker, Epps turned and pointed his gun at Defendant. Before Epps could fire, Defendant shot Epps several times. Epps died as a result of a gunshot wound

to his torso inflicted by Defendant.

Police Chief Eddie Buffaloe ("Chief Buffaloe") and other officers from the Elizabeth City Police Department ("ECPD") arrived at the scene of the shooting at approximately 2:30 a.m., after noticing a crowd gathered at the intersection of Shepard Street and Herrington Road. Chief Buffaloe observed an individual, later identified as Epps, lying in the road with apparent gunshot wounds

. After Epps was transported from the scene, ECPD K–9 Officer David Sutton performed a search of the area and discovered Defendant's .45 caliber handgun, its magazine empty, beneath a trash can located behind Defendant's residence.

ECPD Crime Scene Investigator Leroy Owen ("Investigator Owen") was also called to the scene. Investigator Owen did a walk-through, marking potential evidence and taking photographs. Among other things, Investigator Owen collected a spent, bloodied bullet from the spot where Epps had been lying on the ground; five 9 millimeter shell casings; and eight .45 caliber shell casings. Investigator Owen noticed a "divot" in the ground where he found the spent bullet. Subsequent ballistics testing matched the spent bullet, the .45 caliber bullet casings, and the bullets removed from Epps's body during an autopsy, with Defendant's handgun. Walker's body was discovered several hours later approximately 120 yards from where Epps's body was found. Defendant was indicted for first-degree murder on 7 January 2013.

At trial, the State's sole eyewitness, Quentin Jackson ("Jackson"), testified that, shortly after leaving work at 2:00 a.m. on 1 January 2013, he drove up to a stoplight on Shepard Street and saw Epps and Walker running nearby and then simultaneously fall to the ground. Jackson testified he saw "one guy reach over on the guy that was falling and shoot [him], and then ... one get up and run and one continuously get shot." According to Jackson, Walker was able to run away and Epps remained on the ground, at which point Defendant "came out of nowhere," stood over Epps, and began repeatedly shooting Epps at close range. Jackson also testified that another unidentified individual was shooting at Defendant, but that Epps never aimed at, or shot, Defendant.

ECPD Officer Joseph Felton ("Officer Felton") interviewed Jackson at the scene on the night of the shooting, and Jackson described seeing "five black guys run up to the victim and shoot[ ] him point blank." When asked by Officer Felton to describe the shooter, Jackson said it was "a big dude with long dreads wearing an orange sweater" who had taken off running after the shooting. Defendant did not have dreadlocks at the time of the shooting. Jackson later denied ever having given this account. Defendant maintained that he shot Epps only after Epps pointed a gun at Defendant, and Defendant denied continuing to shoot after seeing Epps fall to the ground. Defendant was found guilty of second-degree murder and sentenced to a term of 192 to 243 months' imprisonment. Defendant appeals.

II. Omission of No Duty to Retreat Jury Instruction

A. Standard of Review

Defendant first argues the trial court erroneously omitted a no duty to retreat instruction from its jury instructions. The "[d]efendant did not object to the ... instruction given by the trial court, and our review is therefore limited to plain error." State v. Withers, 179 N.C.App. 249, 257, 633 S.E.2d 863, 868 (2006). To show plain error,

a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.

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) ) (internal quotation marks omitted). We apply plain error "cautiously and only in the exceptional case." Id.

Defendant cites Withers for the proposition that "[a]lthough there was no objection, the omission of part of [the pattern instruction] is preserved for de novo review because the trial court stated it would instruct according to the pattern." Defendant misapplies Withers. The portion of that opinion Defendant relies upon addressed the trial court's failure to " instruct [the jury] on not guilty by reason of self-defense as a possible verdict in its final mandate to the jury." 179 N.C.App. at 255, 633 S.E.2d at 867 (emphasis added). In the present case, the trial court properly instructed the jury that "if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self-defense, ... it will be your duty to return a verdict of not guilty." The Withers defendant also alleged the trial court erred by failing to instruct the jury, as part of its self-defense instruction, that the defendant did not have a duty to retreat. Id., 179 N.C.App. at 256, 633 S.E.2d at 868. On that issue, this Court concluded that because the defendant did not object to the self-defense instruction, review was limited to plain error. See also State v. Davis, 177 N.C.App. 98, 102, 627 S.E.2d 474, 477 (2006) (holding that "[s]ince defendant neither requested the [no duty to retreat] instruction nor objected to the court's failure to give the instruction, we review the assignment of error under the plain error standard.").

More recently, in State v. Eaton, ––– N.C.App. ––––, 781 S.E.2d 532, 2016 WL 47973 (2016) (unpublished), this Court rejected a similar argument, i.e., that an instructional issue was preserved despite the defendant's lack of objection because the trial court indicated it would give a specific pattern instruction and then omitted a portion of the pattern instruction from its instructions to the jury. In the present case, as in Eaton,

the trial court did not merely indicate that it would instruct pursuant to [the pattern instruction] and then fail to instruct as indicated, as [D]efendant insinuates.... The trial court ... repeated the instructions it intended to offer. The trial court never indicated it would give the portion of [the pattern instruction] which [D]efendant now contends was erroneously omitted and [D]efendant did not take issue with the proposed instruction.... [T]he trial court instructed the jury precisely as proposed, [and] ... the trial court's reference to the pattern instruction did not preserve the issue for appeal absent an objection by defendant.

Id., 2016 WL 47973 at *11.

B. Analysis

Defendant contends the omission of a no duty to retreat instruction amounted to plain error because, if the jury had been instructed on the...