Criminal Practice – Excited Utterance – Voluntary Manslaughter Instruction

The trial court’s failure to provide a “not guilty” mandate for the voluntary manslaughter instruction did not prejudice Defendant’s case, and the trial court did not plainly err. Further, the trial court’s exclusion of the hearsay statement—although admissible under the excited utterance exception—was not prejudicial to Defendant, and as such, not reversible error.

The trial court did not commit cumulative error.

Defendant appealed from the trial court’s judgment finding him guilty of voluntary manslaughter.

Defendant contended the trial court erred by failing to instruct the jury it was required to return a verdict of not guilty if the State failed to prove the elements of voluntary manslaughter beyond a reasonable doubt. Upon our review of the trial court’s voluntary manslaughter instruction, it appears the trial court failed to comport with the requirement of instructing the jury that it could return a verdict of not guilty if the State failed to prove the elements of voluntary manslaughter beyond a reasonable doubt. The trial court, however, comported with this requirement in its final mandates on first-degree and second-degree murder; set forth the option of “not guilty” in other parts of its instructions, specifically providing that one of the four possible verdicts the jury may reach is “not guilty” and that “Defendant would not be guilty of any murder or manslaughter if . . . [he] acted in self-defense of another”; and included on the verdict sheet a “not guilty” option. The presence of these factors demonstrates that the trial court’s failure to provide a “not guilty” mandate in its voluntary manslaughter instruction had no probable impact on the jury’s finding of guilt. Accordingly, Defendant’s case was not prejudiced, and the trial court did not plainly err.

Defendant next contended that Duane Tabron’s statement “[m]an, I shot him” was an excited utterance, and as such, the trial court erred and prejudicially erred in excluding the statement as inadmissible hearsay. We disagreed. In consideration of the first factor for an excited utterance statement— that it relates a sufficiently startling experience suspending reflective thought— Record evidence demonstrates Tabron made the hearsay statement in the minutes after being involved in a lethal shooting. Per our assessments of the excited utterance exception in Allen and Pickens—where the hearsay declarants made their statements after witnessing a shooting—the first factor is certainly met. Next, as to the second factor—that the statement be a spontaneous reaction, not resulting from reflection or fabrication—per Defendant’s testimony, following the shooting, it took “some minutes” for Defendant and Tabron to run from the scene of the shooting to their vehicle, and when Tabron made the hearsay statement he was “very hysterical, in near tears.” Again, per Allen—where the hearsay statements were made twenty minutes after the shooting, the declarants were under “extreme stress,” and they were crying just before making their statements—and Pickens— where the hearsay statement was made at a “still-chaotic” scene, and the declarant had just witnessed a shooting—Tabron’s hearsay statement was certainly one of spontaneity. Although “some minutes” had passed between the shooting and the hearsay statement, Tabron was “still experiencing the effects of the” shooting, and the second factor is therefore met. As Tabron’s hearsay statement meets both requirements to constitute an excited utterance, we concluded his statement was “one related to a startling event or condition made while . . . under the stress of excitement caused by the event or condition[.]” Tabron’s hearsay statement falls squarely under the excited utterance exception, and as such, it was error for the trial court to exclude the statement as inadmissible hearsay. However, the trial court’s exclusion of the testimony was not reversible error.

Defendant lastly contended that, even if the trial court’s errors are not prejudicial on their own, the combined effect of these errors prejudiced Defendant and violated his right to a fair trial. We disagreed. Under the cumulative error doctrine, “[c]umulative errors lead to reversal when taken as a whole they deprived the defendant of his due process right to a fair trial free from prejudicial error.” The only error committed by the trial court was its exclusion of Tabron’s hearsay statement, and this error was not prejudicial. Further, even if the trial court did err in failing to provide a “not guilty” mandate in its voluntary manslaughter instruction, upon our review of the entire Record, and comparing the evidentiary error and alleged instructional error to the State’s evidence, we concluded Defendant was not deprived of his due process right to a fair trial. The trial court did not cumulatively err.

No error and no plain error.

State of North Carolina v. Horace Devon Teel (Lawyers’ Weekly No. 011-273-24, 21 pp.) (Julee Flood, J.) Appealed from Wake County Superior Court (Keith O. Gregory, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Zachary K. Dunn, for the State; Office of the Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for defendant-appellant. North Carolina Court of Appeals