State v. Moore

• Decision Date: 06 January 2009
• Docket Number: No. COA08-345.,COA08-345.
• Citation: 671 S.E.2d 545
• Parties: STATE of North Carolina v. Joshua Carlen MOORE.
• Court: North Carolina Court of Appeals

671 S.E.2d 545

STATE of North Carolina v. Joshua Carlen MOORE.

No. COA08-345.

Court of Appeals of North Carolina.

January 6, 2009.

Appeal by defendant from judgment entered 17 October 2007 by Judge Frank R. Brown in Superior Court, Edgecombe County. Heard in the Court of Appeals 23 September 2008.

Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist, for the State.

Thomas & Farris, P.A., by Albert S. Thomas, Jr. and Newton Lee & Boyd, by Eldon S. Newton, III, Wilson, for defendant-appellant.

WYNN, Judge.

Defendant-Appellant Joshua Carlen Moore appeals a jury conviction for voluntary manslaughter. We find no merit in his arguments on appeal.

At trial, the State presented evidence tending to show that on 8 July 2006, Defendant-Appellant Moore, then sixty-four years old, and his wife Carol Moore worked at their produce stand. The street-side stand consisted of a U-shaped configuration of tables arranged in front of Mr. Moore's cargo truck. A cash box was bolted to a folding table, located behind the truck. Sometime that morning, the decedent, sixteen-year-old Emmanuel Harris, approached the couple's stand. He walked over to the meat container where he indecisively picked up and then put back various packages of meat, ostensibly looking for a particular selection.

Soon thereafter, a struggle between Ms. Moore and Mr. Harris broke out when Mr. Harris attempted to take money out of the cash box. Ms. Wilkins, a customer who was attempting to pay for her salad during this time, testified that the struggle began when Ms. Moore went to the cash box to make change. She stated that Ms. Moore "[l]ifted up the top of the cash box and that's when [Mr. Harris] reached his arm and they was tussling over the cash box." Further, she testified that she saw Defendant come down from the back of the truck during the struggle with a gun, and that at the time she heard the shot fired by Defendant, she thought Mr. Harris still had his hands on the cash box. Additionally, Mr. Jasper Lindsey who also was present during the incident, testified that Mr. Harris's hands were on the cash box when Defendant shot Mr. Harris. Defendant admitted to shooting Mr. Harris.

Mr. Harris died as a result of a gunshot wound to the chest. Defendant was indicted, tried, and convicted of the voluntary manslaughter of Mr. Harris and sentenced to a term of not less than 64 months and not more than 86 months. He appeals, arguing (I) the trial court erred by denying his motion and failing to instruct the jury on killing in lawful defense of a family member and self-defense; (II) the trial court erred by denying his motion and request for access to the juvenile records of the victim; (III) the trial court erred by improperly limiting his examination of witnesses; and (IV) he was deprived of his right to effective assistance of counsel.

I.

Defendant argues that the trial court erred in denying his request for a jury instruction on self-defense and on the defense of a family member. "[B]efore the defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was that belief reasonable?" State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982). Further, "in exercising the right of self-defense one can use no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm." State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971).

This Court's review of Defendant's request for instruction on the defense of a family member is similar. "[T]he right to kill in defense of another cannot exceed such other's right to kill in his own defense as that other's right reasonably appeared to the defendant." State v. Perry, 338 N.C. 457, 466, 450 S.E.2d 471, 476 (1994) (internal quotation marks and citation omitted). This Court has stated, "Where there is no evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another, it would be improper for the Court to instruct on defendant's defense of a third person as justification for the assault." State v. Moses, 17 N.C.App. 115, 116, 193 S.E.2d 288, 289 (1972). Thus, the question before the Court is whether there was evidence, taken in the light most favorable to the Defendant, that Defendant formed a reasonable belief that it was necessary to kill Mr. Harris to protect either himself or his wife from death or great bodily harm.

We find no error in the trial court's decision to deny Defendant's request for instructions on self-defense and defense of another. The record on appeal and transcript show insufficient evidence to support the conclusion that Defendant believed his or his wife's life was in danger, and no evidence to suggest that this belief, even if formed, was reasonable. Prior to being shot by Defendant, Mr. Harris had made no attempt to harm Defendant or his wife in any way. In fact, according to both Defendant and Ms. Moore, Mr. Harris never threatened them. Ms. Moore testified that, even during their struggle, Mr. Harris never threatened her physically, and his only contact with her was to push her hand and arm away from the cash box. Further, she testified that she had no reason to believe Mr. Harris was interested in anything other than the cash box. Ms. Moore stated, "No, he didn't threaten me. He was only trying to get the cash box."

Accordingly, we find that the trial court committed no error in denying Defendant's requests for instruction on self-defense or defense of another because the record includes evidence that Defendant did not reasonably believe he or his wife was in danger of death or great bodily harm from the decedent at the time of the shooting.

II.

Defendant next argues that the trial court erred by denying his motion and request for access to the victim's juvenile records. Generally, an appellate court reviews the motion and request for access to juvenile records of a victim de novo by examining the sealed records to determine whether they contain information that is "favorable" or "material" to defendant's guilt or punishment. See State v. Taylor, 178 N.C.App. 395, 408, 632 S.E.2d 218, 227 (2006). However, in this case, Defendant failed to include the juvenile records in his record on appeal, making it impossible for this Court to examine whether or not the evidence was favorable or material. Accordingly, we decline to address this assignment of error.

III.

Defendant next argues that the trial court erred by sustaining the State's objections to repetitive questioning by defense counsel. First, Defendant argues that the trial court erred by limiting counsel's redirect examination of Defendant on how he "felt" when he saw Mr. Harris coming back toward the produce stand, the same inquiry the trial court disallowed as repetitive on direct examination. Next, Defendant argues that the trial court erred by cutting off defense counsel's cross-examination of Ms. Wilkins, after counsel asked Ms. Wilkins, for a third time, if she had grabbed her daughter and fled from the produce stand when Mr. Harris first approached Ms. Moore. Last, Defendant argues the trial court erred by sustaining the State's objection to defense counsel's redirect examination of Ms. Moore, despite having questioned Ms. Moore extensively on the same issue during direct examination.

Generally, the trial court has a duty to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence" in order to "avoid needless consumption of time." N.C. Gen. Stat. § 8C-1, Rule 611(a) (2007). In keeping with this principle, trial judges may properly sustain objections to witness examination where they find an inquiry to be repetitious or unnecessary. State v. Jetton, 1 N.C.App. 567, 568, 162 S.E.2d 102, 104 (1968) (concluding that because the witness had answered questions on the same issue previously, the defendant was not prejudiced by not being allowed to have the witness repeat his testimony). Similarly, the record in this case indicates that the inquiries made by defense counsel on direct, redirect, and cross-examination were repetitive, since counsel had just asked, and the witnesses had just answered, the same questions either on direct examination or only moments earlier on cross-examination. While counsel would have been permitted to ask clarifying questions on redirect or cross-examination, it was well within the trial judge's discretion to limit such repetitious witness inquiries. Therefore, we find no error.

IV.

Finally, Defendant argues that he was deprived of his right to effective assistance of counsel. This Court reviews a criminal defendant's claim of ineffective assistance of counsel by considering (1) whether counsel's performance was "deficient" and (2) whether the performance deficiency was "`so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984)). "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell, 312 N.C. at 563, 324 S.E.2d at 249. Further, the U.S. Supreme Court has noted, "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2067, 80 L.Ed.2d at 695.

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