State v Finch
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-174 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA Buncombe County Nos. 09 CRS 64830 09 CRS 64832 10 CRS 42 10 CRS 43 v. HERNANDEZ JEWEL FINCH, JR. Defendant. Appeal by defendant from judgments entered 19 August 2010 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 1 September 2011. Attorney General Roy Cooper, by Senior General Robert T. Hargett, for the State. Deputy Attorney Marilyn G. Ozer for defendant-appellant. GEER, Judge. Defendant conviction deadly of weapon Hernandez attempted with Jewel first intent to Finch, degree kill Jr. appeals murder, from assault inflicting serious his with a injury ("AWDWIKISI"), discharging a firearm into an occupied vehicle, and possession of a firearm by a felon. Defendant primarily argues erred on appeal that the trial court in admitting -2testimony that a witness had made a prior out-of-court statement explaining that he had not wanted to talk to the police because he was scared acquaintances. that the of retaliation by the victim's friends and We hold that even assuming, without deciding, evidence was improperly admitted, any error was harmless given the evidence of defendant's guilt, the perceived threat having come from the victim and not from defendant, and the admission of testimony of another witness regarding fear of retaliation by the victim. Facts The State's evidence tended to show the following facts. In the early morning hours of 7 November 2009, after a dispute at a nightclub in west Asheville, defendant, along with Daniel Young, Roy Leake, and Cordarall Horne, followed Rodriguez Paul and two women from the night club to the Pisgah View housing project. While Paul was still in his car, Young opened Paul's car and door told Paul, "'You need to call your homeboys; something bad's about to happen to you.'" As Young was beating Paul, Paul looked past Young and saw the barrel of a gun. Young also looked backwards, and he saw that defendant was the one with the gun. gun, but defendant started shooting. Paul grabbed at the When the gun jammed, Paul was able to get out of the passenger side of the car, and he -3started running. Ultimately, Paul was shot five or six times, including in the back. Later, five shell casings were recovered from the parking area. All of the casings had been fired from one gun. The shooting was filmed from three surveillance cameras in the parking lot. different angles by At trial, the jury was shown the film multiple times while the events were narrated by detectives and other witnesses who were present at the shooting. Two witnesses specifically identified defendant as the shooter. After the shooting, defendant left the scene by car with Horne, Leake, and another individual. Defendant disposed of his gun by throwing it off a bridge into a river. After dropping Leake off at his mother's house, the three remaining men drove to Hillcrest Apartments, another housing project. Defendant then left the State and was ultimately arrested in Kansas City, Kansas. Defendant was indicted for attempted first degree murder, AWDWIKISI, discharging a firearm into an occupied vehicle, and possession of a firearm by a felon. any evidence during guilty of defendant each to a of the the Defendant did not put on trial, and the jury found defendant charges. The presumptive-range term trial of 220 court to sentenced 273 months imprisonment for attempted first degree murder, a consecutive -4presumptive-range sentence of 116 to 149 months imprisonment for the offenses of AWDWIKISI and discharging a firearm into an occupied vehicle, and a consecutive presumptive-range sentence of 16 to 20 months imprisonment for possession of a firearm by a felon. Defendant timely appealed to this Court. Discussion Defendant first contends that the trial court erred in allowing a police officer to testify as to what Roy Leake had said in the second of three interviews about why he had been reluctant to discuss the shooting in his first interview. In that first interview, Leake did not identify the shooter, but in the second interview, Leake reported to the police that defendant had been the shooter. At trial, Leake refused to identify defendant as the shooter and repeatedly failed to answer questions regarding the events at issue, either asserting his Fifth Amendment right or stating that he did not remember because he was intoxicated and afraid during the events. When asked about what he told officers during his interviews (including whether he went to the Pisgah View housing project, whether defendant was the shooter, whether Young punched Paul, whether Leake had driven away from the scene with defendant, and whether defendant threw the gun in -5the river), Leake repeatedly answered by saying that he did not want to talk about "this." After Leake's testimony, the State called Sergeant Michael Garrison of the Asheville Police Department to testify regarding his interviews with Leake. Sergeant Garrison testified that he first interviewed Leake over the phone and then second interview According to Garrison, being in more the of Leake second forthcoming in person. interview, in the Leake first conducted apologized interview. a Sergeant for not Sergeant Garrison testified over defendant's objection that Leake gave the following reason for not saying more in the first interview: He stated he was in fear for his life and his mother's life from the victim's friends and associates in retaliation. And he also stated that he's old school, meaning that there is a certain degree of respect for not snitching and that he didn't want to lose credibility or respect on the street by making a statement regarding one of his own friends. (Emphasis added.) Defendant contends that this testimony should have been excluded as inadmissible hearsay. Assuming, without deciding, that the trial court should have excluded this testimony, we hold that defendant has failed to show that there is a reasonable possibility that in the absence of this testimony, the jury would have found defendant not guilty. See N.C. Gen. Stat. ยง 15A-1443(a) (2009). The only -6prejudice statement trial: identified provided that he an by defendant explanation feared is for retaliation that Leake's from Leake's prior evasiveness Paul's (and at not defendant's) friends and acquaintances. Even if Leake's prior statement to Sergeant Garrison had been excluded, however, Horne also testified that he was afraid: MR. HORNE: Your Honor, do I have to answer the question? THE COURT: Yes. MR. HORNE: I these questions, sir. THE COURT: What did you see? don't want to answer Sir? MR. HORNE: I don't feel comfortable answering these questions, like -Q. Have you seen the video? A. Yes, sir. I'm just honestly telling you, you know what I'm saying. I'm not comfortable answering these questions. I'm scared, you know what I'm saying. I don't know -Q. Why are you scared? A. Because I don't want to get in the middle of it and then be -- you know what I'm saying, if something happens to me or anybody that I love or anything like that. So, you know, like I honestly don't want to get in the middle of it, like -- -7Horne's and identical, Leake's and participation Horne's in explanation the for events his was reticence nearly would likely be viewed as explaining Leake's evasiveness as well. In addition, there was ample evidence of defendant's guilt. Both Young and Horne identified defendant as the shooter, and the jury had an opportunity to view the surveillance tape. Further, Leake did not, at trial, deny that defendant was the shooter -- he simply refused to answer the question. In light of the evidence of defendant's guilt and Horne's testimony about being afraid to testify, we cannot find prejudicial the jury's hearing that Leake was reluctant to provide information to the police because he was afraid of the victim's friends and acquaintances. Defendant next points to his trial counsel's request that the trial court instruct defendant about his right to testify: "Your Honor, I've spoken to my client about testifying. This might be a good time to go over that with him on the record. He's chosen not to testify." The trial court, however, declined to instruct defendant on his right to testify. Defendant argues on appeal that the trial court was required to advise defendant of his constitutional right to testify and conduct an inquiry to determine whether defendant was waiv[ing] his right to testify." "clearly and unequivocally -8State v. Smith, 357 N.C. 604, 588 S.E.2d 453 (2003), is controlling. In Smith, the defendant argued that his constitutional rights were violated "because the trial court did not inquire as to whether defendant wished to testify . . . ." Id. at 618, 588 S.E.2d at 463. "This Court has never The Supreme Court squarely held: required trial courts to inform a defendant of his right to testify or to make an inquiry on the record regarding his waiver of the right to testify." The Court explained further that "absent Id. a defendant's indication that he wished to testify, it cannot be said that the trial court denied defendant of his right." Id. at 619, 588 S.E.2d who at 463. In Smith, the defendant, had counsel available to advise him "at all times," had "made it clear to the trial court that defendant wished to waive the right to testify on his own behalf." Id. The Court concluded that "[g]iven these circumstances, and because defendant never made a request to testify on his own defendant's rights were violated." Similarly, here, the trial behalf, we cannot say that Id. court specifically confirmed with defendant's counsel that counsel had advised defendant of his rights, and defendant had elected not to testify. Smith, therefore, was not violated. Under defendant's constitutional right to testify While defendant argues that Smith is -9distinguishable because defense counsel, in that case, did not actually request that the trial court instruct the defendant on his rights, the Court's holding in Smith did not hinge on any lack of a request. Since the plain language of the holding applies on its face to defendant's argument in this case, we are bound by Smith. Defendant next contends that instructing the jury on flight. the trial court erred by It is well established that "[s]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given." Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). State v. On the other hand, "[m]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). The evidence in this case permits an inference that defendant not only left the crime scene, but that he also took steps to avoid apprehension. Defendant fired his gun repeatedly at Paul, hitting him five or six times. He then left the scene without rendering any assistance to Paul or seeking to obtain any medical aid for Paul. See State v. Anthony, 354 N.C. 372, -10425, 555 properly S.E.2d 557, instructed 591 on (2001) flight (holding when that defendant, trial after court shooting victims in front of witnesses, "immediately entered his car and quickly drove away from the crime scene without rendering any assistance to the victims or seeking to obtain medical aid for them"). After defendant left the scene of the shooting, he threw his gun off a bridge into a river where it was never found. See State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990) (holding that actions of defendant were "clearly sufficient" to support instruction on flight when defendant threw murder weapon in nearby river where it was never recovered, defendant attempted to hide victim's body, and defendant threw victim's belongings over a guard rail by a major highway). Defendant then left North Carolina and traveled to Kansas. See State v. Wilson, 338 N.C. 244, 255, 449 S.E.2d 391, 398 (1994) (holding flight instruction proper when, shortly after crime was committed, defendant traveled by bus to New York); State v. Stitt, 201 N.C. App. 233, 251, 689 S.E.2d 539, 553 (2009) (holding that when defendant traveled to New York after crime, flight instruction properly given because he did so alone and stayed longer than usual), disc. review denied, 364 N.C. 246, 699 S.E.2d 920 (2010). -11The evidence collectively is trial court's flight instruction. sufficient to support the Defendant, however, contends that he did not flee the scene because he was guilty, but rather because he was afraid, and he further asserts that his traveling to Kansas could not constitute returning home. flight because he was simply As the Supreme Court explained in Irick, 291 N.C. at 494, 231 S.E.2d at 842, "[t]he fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper." Consequently, the trial court in this case did not err by giving a jury instruction on flight. Lastly, as a preservation issue, defendant contends that punishing him for both attempted first degree AWDWIKISI violates the Double Jeopardy Clause. murder and As defendant acknowledges, our Supreme Court has specifically rejected this contention. See State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004). We are bound by that decision. No error. Judges STROUD and THIGPEN concur. Report per Rule 30(e).
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