State v. Moss, COA18-680
| Decision Date | 19 March 2019 |
| Docket Number | No. COA18-680,COA18-680 |
| Parties | STATE of North Carolina, Plaintiff, v. Elton Samuel MOSS, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Orlando L. Rodriguez, for the State.
Appellate Defender Glen Gerding, by Assistant Appellate Defender Anne M. Gomez, for Defendant-Appellant.
Elton Samuel Moss1 ("Defendant") appeals from his jury conviction of assault with a deadly weapon inflicting serious injury. We find reversible error in part and no error in part, and grant Defendant a new trial.
On 4 August 2015, Defendant and Wayne Odom ("Odom") had an altercation during which Defendant stabbed Odom. It was not the first time the men had encountered one another; they had a previous altercation on 13 July 2015, about three weeks before the stabbing incident.
On 2 May 2016, the Grand Jury of Clay County indicted Defendant for assault with a deadly weapon inflicting serious injury.2 On 12 December 2016, Defendant gave notice he intended to pursue a defense of self-defense.
In this case, Defendant contends the trial court erred by (1) failing to instruct the jury that Defendant had no duty to retreat; (2) failing to intervene in the prosecutor’s argument; and (3) allowing the prosecutor to cross-examine Defendant concerning his rights to silence and to counsel.
During Defendant’s trial for the 4 August 2015 stabbing, the court conducted a voir dire hearing to consider whether to allow evidence of the prior 13 July 2015 altercation involving Defendant and Odom. From that hearing, the court’s findings of fact included, among other things: (1) Defendant admitted to stabbing Odom but claimed self-defense; and (2) Defendant offered evidence of the prior incident to show evidence of intent in the August incident, state of mind relevant to reasonableness of the self-defense allegation, and evidence of whether Defendant or Odom was the aggressor in the August assault. The court concluded as a matter of law: (1) the evidence of the prior assault on Defendant was "sufficiently similar to the offense charged and close enough in time to be admissible pursuant to 404(b)"; and (2) the evidence was admissible to show "[D]efendant’s intent on 4 August 2015," "the alleged victim’s intent relating to the [D]efendant’s assertion of self-defense," "[D]efendant’s state of mind relevant to his claim of self-defense," and "whether the [D]efendant or the victim was the aggressor ... relevant to the [D]efendant’s self-defense claim[.]" The court further concluded the "probative value of this evidence outweighs any chance of undue prejudice to either side," and the "evidence in question is relevant to the [D]efendant’s claim of self-defense and non-confusing to the jury." Accordingly, the court allowed Defendant to testify in the instant case as to the 13 July 2015 assault on him and his resulting injuries, limited to the 404(b) purposes.
Odom, Defendant’s brother-in-law,3 testified that on 13 July 2015, Defendant had "screwed somebody over and got the crap beat out of him for it." Odom was not involved, but he was there. Although Odom did not have a baseball bat, there were two at the scene. Defendant was seriously injured and had to be taken to the hospital by ambulance. Odom had no weapon with him, and he did not defend Defendant because "[Defendant] was down there with another woman."
Defendant testified he was with Amanda Locklear ("Locklear") camping by a creek on 13 July 2015, about three weeks before the stabbing incident. Odom, Ed Robinson ("Robinson"), and Jamie Moore ("Moore") came through a pasture to the campsite, Moore arriving on an ATV, and Odom and Robinson arriving by vehicle. Moore "stayed over in the weeds," but Odom and Robinson "got out with ball bats, start[ed] running their mouth ... and words were exchanged[.]" Odom was "ranting and raving" that Defendant should not be there with another woman, since he was still married to Jackie. As the argument "started escalating," Defendant "reached down and grabbed" his bat, from under the seat of his van. Robinson "reared his back ... and just lunged in to hit [Defendant.]" Robinson, who "wanted to try to finish it off right there, came at Defendant with the baseball bat raised and "swinging down at him." Defendant "hit him somewhere," since "[Robinson] was already in full swing to hit [Defendant]." Odom grabbed Defendant’s bat. Robinson hit Defendant in the head, and Defendant fell to the ground and "started blacking out from then."
In voir dire, Defendant testified that Robinson said, and Odom agreed, "they were gonna leave [Defendant] for dead[,]" "[t]his is the end of it right here[,]" and "when they were done with [Defendant] the fish [were] gonna eat him up[.]" Odom threw Defendant’s bat into the creek. Defendant remembered hearing Robinson say "we got to get rid of the evidence," and seeing his bat "go flying through the air into the creek."
Defendant’s arm was shattered; his hand was crushed; his skull was fractured
; he was bleeding out of his ear; he had "about" twenty broken ribs, where he had been kicked with Odom’s boot; and he blacked out. He woke as Locklear poured water on his face, and she then drove him to the hospital. Robinson was charged with the incident.
B. 4 August 2015, Defendant Stabs Odom
The State called Odom. On 4 August 2015, at about 10:00 or 10:30 p.m., Odom and Defendant met up on the Square in Hayesville. Odom and his wife, Stephanie Odom ("Stephanie"), "were headed home" leaving a dinner at his sister Rhonda’s house; he left "to go lock the gates there in town." Soon after, Odom’s sister, Jackie Moss ("Jackie") left Rhonda’s house with Odom’s dad to take Jackie back to the "safe house" called "Reach,"4 where she was staying. Jackie’s kids were also in the vehicle and were staying at the safe house. Odom explained Reach was "[f]or women that need to get away from their spouses, whether it’s physical, mental, whatever it may be."
Odom’s dad called him to say Moss had begun following Odom’s dad and Jackie. Odom went towards them, towards the house. His dad did not want Moss to know where he was taking Jackie. Odom passed Defendant, who was driving a Pontiac Montana Minivan. As Odom headed out of town, Defendant—who had turned around towards town—tapped his brakes. Odom then turned around to head back towards town. As both cars headed up a hill, Defendant pulled over at the top of the hill, on the other end of the square from Reach. Odom pulled up beside Defendant’s vehicle.
The two men were "cussing back and forth," with Odom "cussing across [his] wife." Odom then backed up behind Defendant, got out of the car, and started to walk up to Defendant’s vehicle. As Odom approached Defendant’s vehicle from the rear, Defendant tried to "back over" him. Odom sought to get Defendant to "just leave [Jackie] alone." He told Defendant, "it’s over, just let it go and go on." Defendant "kept telling [Odom] ... [i]t ain’t none of your business[.]" During cross-examination, Odom admitted he was "angry" at Defendant, put himself in the middle of Defendant and Jackie’s marriage, and intended to confront Defendant when he turned around in his vehicle and approached Defendant.
Odom testified he never touched the vehicle, never stepped closer to it than beyond the parking space, and remained in the same position that he was—standing at the parking spot, outside of the white dividing line between the parking space and the highway. He did not step into Defendant’s parking space. He described the distance between Defendant, when sitting in the driver’s side of his vehicle, and himself, when standing on the other side of the white line in the parking lot, to be about an "arm length." He said Defendant was "maxed out when he hit [Odom]."
The next thing he knew, he "thought [Defendant had] just hit [him] in the stomach." Odom did not know Defendant had stabbed him until he "reached down and felt the blood that was on [his] fingers." Defendant had struck him in the abdomen. Defendant stated: "I told you I’d f---ing kill you." Defendant was "pulling forward before the knife [came] out of [Odom’s] stomach." Defendant’s hand was still on the knife as "the vehicle was rolling forward."
Defendant pulled away from the parking lot, and Odom turned and walked back to his vehicle where Stephanie had waited in the passenger seat during the altercation. As Stephanie tried to call 911, Odom began driving towards his house, and then decided to go to the EMS office. He decided to go to the fire and rescue building because he was "[g]etting faint[,] [f]eeling like [he] was going to pass out." He explained at the fire and rescue station that he had been stabbed and needed to sit down. Odom laid down on the table, and the fire and rescue workers checked his wound
. Paramedics arrived, took Odom to the EMS office, put him in a helicopter, and airlifted him to Erlanger Hospital in Chattanooga, Tennessee. He reported his injuries "went through [his] gallbladder, nicked – or cut [his] liver and nicked the main artery in the stomach."
The State called Stephanie, Defendant’s sister-in-law. Stephanie had been married to Wayne Odom since 2006. On 4 August 2015, Stephanie and Odom had been to Rhonda’s house, trying to help with her kids and having dinner. To help Jackie make curfew at the Reach Center, they were cleaning up and getting ready. Stephanie, a passenger, left in a vehicle with Odom, who was driving, to "make sure [Defendant] wasn’t sitting anywhere waiting on [Jackie and her three kids] to come out." Since they did not see Defendant along the way, she and Odom called to tell the rest of the family that it was okay for Jackie and the kids to leave for Reach.
They received a phone call from her father-in-law saying Defendant was...
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...that necessary part of the record we must dismiss Defendant's appeal as it relates to this issue."); State v. Moss, ___ N.C. App. ___, 824 S.E.2d 925, 2019 WL 1283815, at *12 (2019) ("This Court is precluded from addressing alleged error in the prosecutor's argument unless a defendant provi......