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Home / Courts / Criminal Practice – Murder – Circumstantial Evidence – Witness’ Prior Statement – Hearsay – Subsequent Acts – Motion to Continue – Expert Evaulation

Criminal Practice – Murder – Circumstantial Evidence – Witness’ Prior Statement – Hearsay – Subsequent Acts – Motion to Continue – Expert Evaulation

State v. Banks. (Lawyers Weekly No. 11-07-0218, 36 pp.) (Sanford L. Steelman Jr., J.) Appealed from Buncombe County Superior Court. (Mark E. Powell, J.) N.C. App. Click here for the full text of the opinion.

Holding: The state presented evidence that (1) defendant was jealous of the victim’s relationship with Brittany Jones and made numerous threats of violence toward the victim, (2) the murder weapon was found in the brush off Pearson Bridge Road where the victim was murdered, (3) four spent casings found in defendant’s bedroom were fired from the murder weapon, (4) defendant drove a black Jetta and the victim was seen getting into a black Jetta shortly before he was murdered, and (5) a red polyester fiber consistent with the victim’s jacket was recovered from defendant’s Jetta. This circumstantial evidence rises above mere speculation that defendant was the perpetrator of the murder and was sufficient to withstand defendant’s motion to dismiss.

No prejudicial error in defendant’s conviction of first-degree murder.

Witness’s Prior Statement

Two days after the victim’s murder, the longtime girlfriend of defendant’s brother, Renee Harrin, signed a statement in which she said defendant told her he shot the victim in the head and that he threw the gun over in some bushes or leaves where the victim’s body was found.

Shortly before she was called to testify, Harrin told the prosecutor that police had threatened her and that she did not remember certain things in the statement. She “could not remember whether [defendant] said he shot [the victim] in the head or shot him a couple more times” or “whether [defendant] told her he threw the gun in the bushes,” saying she might have heard that from someone else.

Harrin testified, without objection, that on Dec. 3, 2007, she was out Christmas shopping, and that defendant was at her residence when she returned. Defendant was upset. She spoke with him in one of the bedrooms.

On Dec. 5, 2007, Harrin spoke to police concerning the events of Dec. 3, 2007, and acknowledged writing out a statement which she signed. Harrin was shown a copy of her statement. She denied that it refreshed her recollection.

Over objection, she testified that she heard that the gun “was throwed in the bushes,” but could not recall who told her. Harrin could not recall her conversation with defendant on Dec. 3, 2007, but admitted that she had spoken with no one but defendant and police about the gun.

The prosecutor asked Harrin about a number of items contained in the statement. Harrin testified that she could not recall what she told officers.

At 2:37 p.m. the jury was excused from the courtroom, at the request of the prosecutor, after the court sustained several of defendant’s objections. The trial court sustained defendant’s objection to the admission of the statement.

Thereafter, the prosecutor questioned Harrin before the jury concerning some of the matters contained in her handwritten statement. As to each of these questions either the trial court sustained the objection, or Harrin testified “I can’t remember.” Harrin’s handwritten statement (State’s Exhibit 7) was never received into evidence.

A witness may be impeached with a prior statement where the witness admitted making the prior statement and then testified that he could not remember making certain parts of the prior statement. Harrin recalled writing out and signing a statement for Det. Downing on Dec. 5, 2007, but testified that she did not “remember some things in the statement and cannot say if [defendant] said any of it.”

Following her testimony, the court instructed the jury, “Members of the jury, remember the questions aren’t evidence. It’s what the witness says in response to the questions that’s evidence.”

The trial court’s instruction made it clear to the jury that the prosecutor’s questions were not evidence to be considered by the jury. This left as evidence from Harrin’s testimony a string of answers of “I don’t remember.” The jury is presumed to follow the instructions of the trial court.

Even assuming arguendo that the trial court erred in allowing the state to impeach Harrin using her prior statement, based on other admissible evidence, we find that defendant failed to demonstrate prejudice from the error.

The statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.

Det. Downing testified that Harrin was asked about “what had happened to the gun.” Defendant objected to that part of Det. Downing’s testimony which explained the subsequent conduct of Det. Downing and other police officers. The trial court did not abuse its discretion in overruling defendant’s objection to Det. Downing’s testimony.

Where no evidence indicates that Det. Weaver was present during Det. Downing’s interview of Harrin, the trial court erred in permitting Det. Weaver to testify about Harrin’s statements about the murder weapon.

However, although Det. Weaver’s testimony contained more extensive details as to where the murder weapon was found, its import is no different than the admissible testimony of Det. Downing. As a result of the interview of Harrin, police returned to the murder scene and located the murder weapon. Since Det. Downing’s testimony was admissible, there was no prejudicial error in the admission of Weaver’s testimony.

Defendant contends that his constitutional right to a fair trial was denied by the prosecutor’s cross-examination of defendant using Harrin’s pre-trial statement.

One may not suffer prejudice where his objections are sustained.

The trial court sustained defendant’s objections to each of the questions now complained of, and defendant did not provide an answer to any of the questions. Immediately following these questions the trial court instructed the jury, “Members of the jury, the prosecution can ask the witness questions, but that exhibit is not in evidence and you’re not to consider that exhibit. You haven’t seen it.” Because defendant’s objections to all three questions were sustained, he cannot demonstrate prejudice arising from these questions.

Motion to Continue

Defendant sought a continuance based upon the fact that he did not previously realize that items Q10 through Q15, referred to in an SBI report, were shell casings found by police on a dresser in defendant’s room. Because defendant did not realize the source of the shell casings until the eve of trial, he was unable to procure independent testing of these shell casings and the murder weapon.

Defendant’s court-appointed counsel was allowed to withdraw on July 14, 2008, and defendant was thereafter represented by retained counsel. His motion to continue on Aug. 7, 2008 was granted, and the trial date rescheduled from Sept. 8, 2008 to Feb. 16, 2009.

SBI Special Agent Greene’s report was delivered to defendant in 2008. Defendant did not file additional discovery requests until Feb. 3, 2009, followed by Brady and Kyles motions on Feb. 11, 2009.

The trial court afforded defendant an opportunity to have the forensic examination conducted during the trial. Apparently, defendant declined to do so. Based upon these facts, we hold that defendant is not entitled to a presumption of prejudice under the rationale of State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000).

His argument is that had he been given additional time to procure an independent forensic examination of items Q10 through Q15 and the murder weapon, such an analysis might have shown that the casings found in defendant’s bedroom were not fired by the murder weapon. While we acknowledge that the expert testimony linking these shell casings to the murder weapon was a vital piece of evidence in the state’s case, we decline to hold that defendant has made a showing of prejudice based upon the mere possibility that an independent test might be contrary to the results of the SBI laboratory.

Ineffective Assistance Claim

Defendant only asserts that counsel’s performance was deficient in not objecting to the prosecutor’s cross-examination of his mother and father concerning defendant’s shooting into a vehicle with an AK-47. However, defendant does not assert that his counsel was ineffective in not objecting to the prosecutor’s examination of the defendant himself concerning the incident.

The cross-examination of defendant on this incident was far more extensive than that of his parents. Defendant cannot show prejudice where the same evidence was received into evidence, without objection, and no error is assigned to its adjudication on appeal.

No prejudicial error.


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