State v. White

• Decision Date: 02 November 2021
• Docket Number: No. COA20-893,COA20-893
• Citation: 864 S.E.2d 544 (Table)
• Parties: STATE of North Carolina v. Gerrard R. WHITE, Defendant.
• Court: North Carolina Court of Appeals

864 S.E.2d 544 (Table)

STATE of North Carolina

v.Gerrard R. WHITE, Defendant.

No. COA20-893

Court of Appeals of North Carolina.

Filed November 2, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Phyllis A. Turner, for the State.

Edward Eldred, for Defendant.

GRIFFIN, Judge.

¶ 1 Defendant Gerrard R. White ("Defendant") appeals from judgments entered upon a jury conviction finding him guilty of (1) violating a domestic violence protective order and (2) assault on a female. Defendant argues that the trial court's admission of out-of-court statements from the alleged victim and her mother violated his right to confrontation and the rule against hearsay. We hold Defendant received a fair trial free from prejudicial error.

I. Factual and Procedural Background

¶ 2 On or about 24 June 2017, Defendant was charged with (1) violating a domestic violence protective order, and (2) assaulting a female. Defendant's case was tried by jury from 1 to 4 October 2019 in Mecklenburg County Superior Court.

¶ 3 Police officers Ryan Blackmon and Nicholas Luiz testified for the State. Tomia Alston (the alleged victim) and her mother did not testify. The State introduced into evidence photographs of Ms. Alston while she was hospitalized, which depicted her injuries. The court took judicial notice of a domestic violence protective order that was filed by Ms. Alston and issued against Defendant on 21 November 2016.

A. Officer Blackmon's Testimony

¶ 4 Officer Blackmon's testimony tended to show the following:

¶ 5 On the afternoon of 24 June 2017, Officer Blackmon responded to a call for service. About three or four minutes after receiving the call, he arrived on the scene and "found three individuals ... on the side of the road." He saw "a black female that was on the ground that had a rag or shirt on her face. ... [A]nother black female [was] standing behind her. She looked like she was supporting her. ... [A] black male ... was on scene standing next to them." The woman on the ground was Ms. Alston, the other woman was Ms. Alston's mother ("Mother"), and the man was Mother's boyfriend.

¶ 6 Ms. Alston "was extremely upset and crying"; there was "blood on her person" and "a little bit of blood on the ground that appeared to be coming from the left side of her face." She was "holding the rag to the left side of her face" where there "appeared to be some sort of injury[.]" "[S]he was ... bleeding from the left side of her face." "[Mother's boyfriend] seemed concerned about Ms. Alston and what was happening to her ... [and] that she was on the side of the road injured."

¶ 7 Officer Blackmon testified, "When I first arrived on scene [Mother] gave me the full name of the alleged perpetrator[,] ... Gerrard White." Officer Blackmon asked them how to spell the name. "The victim, Ms. Tomia Alston, she helped me to spell his first name, and then provided me with a date of birth of the alleged perpetrator." While Ms. Alston was on the ground, "[s]he said that it hurts, and ... when I asked how many times she had been hit, she stated that she had been hit four times."

B. Officer Luiz's Testimony

¶ 8 Officer Luiz and Officer Choice arrived on the scene a few minutes after Officer Blackmon. Officer Luiz's testimony tended to show the following:

¶ 9 Ms. Alston was taken away from the scene in an ambulance. Afterwards, Officer Luiz and his partner received a call for service, and they realized that Defendant had placed the call. The service call from Defendant was placed approximately 20 to 30 minutes after the call for service on behalf of Ms. Alston. Officer Luiz testified, "We responded to the area that he sa[id] he was at. And from there we proceeded to talk with him, get his side of the story, take his statement from him. And then after we completed all that, we placed the Defendant under arrest." Officer Luiz identified Defendant in court.

C. Defendant's Testimony

¶ 10 Defendant testified in his own defense. Defendant's testimony tended to show the following:

¶ 11 On 24 June 2017, Defendant "received a call from Ms. Alston stating that she wanted to go grab something to eat." Defendant then "drove to her house and picked her up."

¶ 12 During the drive, Ms. Alston "confront[ed] [Defendant] about a Facebook post along [sic] with [Defendant] having another child with another female." Defendant stated that Ms. Alston "was up-raged [sic] and angry." Defendant ignored her questions and kept driving. Eventually, Ms. Alston "got fed up[.]" Defendant "told her, I'll just turn around and take you back home then. I can easily go back to where I was at." In response, Ms. Alston "jumped across the seat", and started "swinging on" and "jumping on" Defendant. Defendant "had to use force to get her off of [him]." He moved his elbow, which made contact with Ms. Alston's body.

¶ 13 Ms. Alston called her mother "[l]iterally right after[, l]ike in the midst" of the incident. Within two minutes after Defendant pulled over to the side of the road and stopped, Mother and Mother's boyfriend arrived. They were "furious." Ms. Alston was "grabbing her face" when she got out of the car. Defendant drove away.

D. Objections, Motions to Dismiss, and Jury Verdict

¶ 14 Before Officer Blackmon testified as to Ms. Alston's statements, Defendant's counsel objected on the grounds of hearsay, confrontation, and due process. The State moved to admit Ms. Alston's statements as excited utterances. The trial court allowed the statements on that basis. The trial court added that Officer Blackmon would be allowed to testify as to Mother's statement naming Gerrard White as the alleged perpetrator, reasoning that "[M]other's statement just explained what happened next, why she had to spell his name or help spell his name."

¶ 15 Defendant moved to dismiss both charges at close of the State's evidence and at the close of all the evidence. The trial court denied Defendant's motions. The jury found Defendant guilty of both charges.

II. Analysis

A. Preservation

¶ 16 The trial transcript does not reflect that Defendant gave oral notice of appeal in court. "Without the trial transcript, we cannot make a determination as to whether [D]efendant gave proper oral notice of appeal to this Court[.]" State v. Parker , 214 N.C. App. 190, 192, 713 S.E.2d 770, 772 (2011) (citations omitted). Defendant did not file a written notice of appeal. "[W]hen a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal." State v. McCoy , 171 N.C. App. 636, 638, 615 S.E.2d 319, 321 (citations omitted), appeal dismissed , 360 N.C. 73, 622 S.E.2d 626 (2005).

¶ 17 Other documents before this Court support a conclusion that Defendant did in fact give oral notice of appeal. The judgments and appellate entries indicate that Defendant gave notice of appeal to the North Carolina Court of Appeals. Defendant's trial counsel signed an affidavit stating that he "personally gave oral notice of appeal in open court from the judgments to the North Carolina Court of Appeals" pursuant to Defendant's direction and wishes.

¶ 18 Defendant has filed a petition for writ of certiorari requesting appellate review of his case. The State concedes that there is evidence that Defendant gave oral notice of appeal and does not oppose Defendant's petition for writ of certiorari. We grant Defendant's petition.

B. Hearsay

¶ 19 Defendant argues that the statements of Ms. Alston and Mother, introduced through Officer Blackmon's testimony, were inadmissible hearsay. We disagree that Ms. Alston's statements were inadmissible hearsay and hold that the admission of Mother's statement did not prejudice Defendant.

1. Standard of Review

¶ 20 Defendant objected on hearsay grounds to the admission of Ms. Alston's and Mother's statements. "When preserved by an objection, a trial court's decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo. " State v. Johnson , 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011) (citation omitted).

2. Ms. Alston's Statements

¶ 21 Ms. Alston did not testify at trial. Defendant objected on hearsay grounds to the introduction of her statements via Officer Blackmon's testimony. The State argued that the statements were admissible as excited utterances. We agree that the statements fit within the excited utterance exception.

¶ 22 In State v. Hamlette , 302 N.C. 490, 493, 276 S.E.2d 338, 341 (1981), the North Carolina Supreme Court upheld the trial court's admission of a victim's statements to the police as excited utterances. The Supreme Court pointed to circumstances that supported the trustworthiness of the victim's statements: the victim "was suffering from three gunshot wounds, was bleeding from the mouth and chest, was at the crime scene and, at the time of the second statement, was being prepared by ambulance attendants for the trip to the hospital." Id. at 495, 276 S.E.2d at 342. The victim's statements were made within three to thirteen minutes of the shooting. Id. at 493, 276 S.E.2d at 341. The Supreme Court noted that "[t]he statements do not in any way lose their spontaneous character because they were in response to questions such as: ‘What is wrong?’ ‘Who shot you?’ ‘How did they leave?’ " Id. at 495, 276 S.E.2d at 342 (citations omitted).

¶ 23 The present case is analogous to Hamlette and other controlling case law where out-of-court statements to the police were admissible as excited utterances. When Ms. Alston made the challenged statements to Officer Blackmon, she was bleeding from the face. See id. (noting fact that victim was bleeding as a circumstance supporting trustworthiness of statements). An ambulance took her to the hospital soon after she made the statements. See id. (noting fact that victim "was being prepared by ambulance attendants for the trip to the hospital" as a circumstance supporting trustworthiness of statements). Officer Blackmon stated that Ms. Alston "was extremely upset and crying[.]" See State v. Murphy , 321 N.C. 72, 77...