State v. Moore

236 N.C.App. 642

763 S.E.2d 561

STATE of North Carolina

v.Shawn MOORE, Defendant.

No. COA14–244.

Court of Appeals of North Carolina.

Oct. 7, 2014.

Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.

Parish & Cooke, Fayetteville, by James R. Parish, for defendant-appellant.

BRYANT, Judge.

Where the prior statement of a witness did not differ significantly from the witness' trial testimony, the trial court did not abuse its discretion in admitting the statement for corroborative purposes.

On 24 June 2013, defendant Shawn Moore was indicted by a Scotland County grand jury for robbery with a dangerous weapon. The matter came on for trial during the 28 October 2013 criminal session of Scotland County Superior Court, the Honorable Richard Brown, Judge presiding. At trial, the State's evidence tended to show the following.

On 15 March 2012, Sergeant Jeffrey Cooke of the Scotland County Sheriff's Office responded to an emergency call. When Sergeant Cooke arrived at the scene, he found Travis McLean lying on the ground bleeding from a foot injury. McLean told Sergeant Cooke that three men came to his house to look at some electronic equipment. The men then grabbed McLean's shotgun and shot McLean in the foot before taking McLean's cell phone and fleeing in McLean's car, a lavender-colored 1994 Cadillac Fleetwood Brougham. McLean's car was later found abandoned and seriously damaged in Marlboro, South Carolina.

At trial, McLean testified that he knew one of the three men who robbed him because his cousin once introduced the two men. This man, defendant, was known to McLean as "Mook" or "Mooky." McLean stated that defendant and two other men, later identified as Michael Liles and Ari Miles, came to McLean's house to buy a half pound of marijuana. McLean testified that because he did not have enough marijuana to sell, he texted his supplier "Scottie" to bring additional marijuana to his house.

While the men waited for the marijuana, defendant noticed McLean's shotgun in the corner of the living room and asked if he could buy it. After McLean declined to sell the shotgun, defendant then asked if he could shoot it; McLean said yes. After defendant fired the shotgun outside in the backyard, defendant asked McLean to show him McLean's car's electronics. McLean went to his car and turned it on to run the audio system.

After McLean turned on his car's audio system, he stated that he received a phone call and began to walk back towards his house. McLean testified that as he walked back towards his house, Ari Miles suddenly stepped in front of him, pointed the shotgun at him, and demanded McLean give Miles his cell phone. Miles then fired the shotgun towards McLean's feet. McLean threw his cell phone at Miles and began to run away but realized that he had been shot in the left foot and ankle and was unable to run. McLean testified that immediately after the shooting, defendant got into McLean's car and drove away. Liles and Miles both left in Liles' car. McLean stated that the shotgun damage to his foot was so severe his Achilles tendon had to be removed.

The State also presented the testimony of Ari Miles at trial. Miles was currently being held at the Scotland County Correctional facility following his conviction for the armed robbery of McLean. Miles testified that he went with defendant and Liles to McLean's house to purchase marijuana and that while McLean was trying to find more marijuana for them, defendant told Miles he wanted to steal McLean's car. Miles said defendant threatened him by flashing a gun tucked into his waistband and ordered Miles to use McLean's shotgun for the robbery. Miles testified that he did not want to hurt McLean and that he thought he had only shot at the ground, rather than hitting McLean's left foot and ankle. Miles said that after the robbery, he traded McLean's cell phone to another person for a different cell phone.

On 29 October 2013, defendant filed a motion in limine to exclude/redact statements or exhibits. During the pre-trial hearing, the trial court heard arguments from counsel regarding two of the State's exhibits: a statement made by Ari Miles on 28 March 2012; and a statement by Ari Miles made 9 October 2013. The trial court denied defendant's motion on grounds that the two statements were not significantly different but noted that if Miles testified at trial and his testimony changed significantly from the prior statements, the trial court would reconsider its decision.

Ari Miles testified during trial as to his involvement with defendant and the robbery of McLean. Defendant then objected during the testimony of Investigator Laviner when Miles' 28 March 2012 statement was read aloud to the jury. The trial court, after reconsidering the arguments of counsel and the statement in question, overruled defendant's objection and allowed the statement to be admitted for corroborative purposes. The trial court also gave limiting instructions to the jury regarding their consideration of Miles' prior statement.

On 31 October, a jury convicted defendant of robbery with a dangerous weapon. Defendant was found to be a prior record level II and was sentenced to 59 to 83 months imprisonment. Defendant appeals.

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In his sole issue on appeal, defendant argues that the trial court erred in allowing Ari Miles' 28 March 2012 statement to be admitted for corroborative purposes, and that defendant was prejudiced as a result. We disagree.

"The standard of review for this Court assessing evidentiary rulings is abuse of discretion. A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Cook, 193 N.C.App. 179, 181, 666 S.E.2d 795, 797 (2008) (citation and quotation omitted). "The abuse of discretion standard applies to decisions by a trial court that a statement is admissible for corroboration." State v. Tellez, 200 N.C.App. 517, 526, 684 S.E.2d 733, 739 (2009) (citations omitted).

Defendant contends the trial court erred in admitting Miles' 28 March 2012 statement into evidence because the statement contained significant differences from Miles' own testimony during trial and these differences resulted in prejudicial error entitling defendant to a new trial.

[C]orroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. In order to be admissible as corroborative evidence, a witness' [ ] prior consistent statements merely must tend to add weight or credibility to the witness's testimony. Further, it is well established that such corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates. If the previous statements are generally consistent with the witness' testimony, slight variations will not render the statements inadmissible, but such variations ... affect [only] the credibility of the statement. A trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, non [-]hearsay purposes.

Id. at 52627, 684 S.E.2d at 740 (citations omitted). "The trial court is [ultimately] in the best position to determine whether the testimony of [one witness as to a prior statement of another witness] corroborate[s] the testimony of [the latter]." State v. Bell, 159 N.C.App. 151, 156, 584 S.E.2d 298, 302 (2003) (citation omitted). "Only if the prior statement contradicts the trial testimony should the prior statement be excluded." Tellez, 200 N.C.App. at 527, 684 S.E.2d at 740 (citation omitted).

Ari Miles testified at trial that he went with Michael Liles and defendant to McLean's house to purchase marijuana. Miles stated that defendant became interested in McLean's shotgun and that after discussing the marijuana purchase with him and Liles, told Miles "he was going to give me the shotgun for me to stick [McLean] up." Miles said defendant then began to ask McLean questions about McLean's car, and McLean turned the car and its audio system on. Miles stated that once McLean began to walk away from the car, defendant signaled for Miles to rob McLean. After Miles fired the shot gun at McLean, McLean "threw his cell phone and ran" while defendant got into McLean's car. Miles stated that defendant threatened him by flashing a gun tucked into defendant's waistband before driving away. Miles further said that he gave the shotgun to Liles and fled in Liles' car, and traded McLean's cell phone to another person for a...