State v. Johnson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-360
NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 11 CRS 214093
FLOYD JAMAR JOHNSON,
Defendant.

Appeal by defendant from judgment entered 16 May 2012 by

Judge Michael J. O'Foghludha in Wake County Superior Court.

Heard in the Court of Appeals 23 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Thomas D. Henry, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for defendant-appellant.

GEER, Judge.

Defendant Floyd Jamar Johnson appeals from his conviction

of assault with a deadly weapon with the intent to kill, first

degree burglary, misdemeanor child abuse, and misdemeanor

assault by pointing a gun. On appeal, defendant primarily

argues that the trial court committed plain error by admitting

testimony recounting unsworn statements of a witness taken on
 -2-
the night of the alleged crime when, defendant asserts, the

statements did not corroborate the witness' in-court testimony.

Although the unsworn statement differed slightly from the in-

court testimony of the witness, both accounts were substantially

the same, and the unsworn statement tended to add weight and

credibility to the witness' account. The testimony regarding

the unsworn statement was, therefore, admissible corroborative

evidence.

Facts

The State's evidence tended to show the following facts.

Defendant was married to Saroya Johnson with whom he had two

children. In February 2011, their marriage was experiencing

difficulties, and Ms. Johnson moved out of the marital home.

She began a relationship with Floyd Farrow, her co-worker.

In March 2011, defendant learned of the relationship

between Ms. Johnson and Mr. Farrow. One evening in April 2011,

defendant waited outside Ms. Johnson's home and upon seeing Ms.

Johnson return to the house with Mr. Farrow, charged Mr. Farrow

and took swings at him. Mr. Farrow responded by rushing to his

truck to get his gun. The situation de-escalated when Mr.

Farrow realized who defendant was and asked defendant to talk

"man to man." Defendant agreed and asked Mr. Farrow to put away

his gun, which he did. Mr. Farrow offered to "back off" from
 -3-
Ms. Johnson if defendant wanted to make their relationship work,

but defendant replied "Nah, nah, she's yours." The two men

shook hands before defendant left. Between April and June 2011,

defendant had no further contact with Mr. Farrow.

On the night of 20 June 2011, defendant was driving back to

Raleigh from Elizabeth City with his nine-year-old son. Over

the weekend, defendant had called Ms. Johnson several times, and

the final call had ended abruptly when Ms. Johnson's phone went

dead. Ms. Johnson was staying at Mr. Farrow's apartment that

night. Around 12:15 a.m., defendant knocked on Mr. Farrow's

apartment door, and Mr. Farrow's roommate, Kenneth Hamlin,

answered. Defendant asked if Mr. Farrow was at home. Mr.

Hamlin was unsure, so he knocked on Mr. Farrow's bedroom door.

When he did not get a response, he told defendant that Mr.

Farrow was not home. Defendant asked, "So that's not his truck

outside?" Mr. Hamlin replied, "I guess so, man, but nobody came

to his door so nobody's there." When defendant asked whether

his wife was inside, Mr. Hamlin replied that he did not know.

Sensing that defendant was upset, Mr. Hamlin then tried to close

the door. However, defendant blocked the door and entered the

apartment with his gun pointed at Mr. Hamlin, saying, "Where the

fuck are they?"
 -4-
Meanwhile, Mr. Farrow and Ms. Johnson had heard the knock

at the door from inside the bedroom. Ms. Johnson recognized

defendant's voice and told Mr. Farrow "[t]hat's Jamar." Mr.

Farrow called 911 and grabbed his gun because he "knew nothing

good was going to happen." Ms. Johnson retreated to the

bathroom.

Mr. Farrow then opened his bedroom door to peek out and

found defendant standing in front of the bedroom. He attempted

to shut the door on defendant who started pushing on the door

from the hallway, trying to gain entry into the bedroom. Mr.

Farrow saw defendant's arm come around the door and saw that

defendant had a gun. Mr. Farrow dropped to the ground, aimed

his gun at defendant, and fired five shots at defendant,

thinking "[i]t's either him or me."

Defendant was hit in the neck and chest. He fired one shot

from his gun, but it did not strike Mr. Farrow. Police found

five 40 caliber shells and one 45 caliber shell at the scene.

After the shots were fired and defendant lay incapacitated on

the floor, Mr. Farrow took control of both guns, released the

magazine from his gun, unloaded defendant's gun, placed them

both on the kitchen counter, and redialed the police. Ms.

Johnson heard her nine-year-old son screaming outside the

apartment and ran to comfort him.
 -5-
On 12 September 2011, defendant was indicted for assault

with a deadly weapon with intent to kill, first degree burglary,

misdemeanor child abuse, and misdemeanor assault by pointing a

gun. The jury found defendant guilty of all the indicted

offenses. The trial court consolidated the offenses for

sentencing and sentenced defendant to one presumptive-range term

of 60 to 81 months imprisonment. Defendant filed a written

notice of appeal and a petition for writ of certiorari.

Discussion

We first address this Court's jurisdiction to hear this

appeal. Defendant filed a written pro se notice of appeal on 31

May 2012, 15 days after judgment was entered. The notice of

appeal was filed one day late. See N.C.R. App. P. 4(a), (b).

Our Supreme Court has held that a jurisdictional default, such

as a failure to comply with Rule 4 of the Rules of Appellate

Procedure, "precludes the appellate court from acting in any

manner other than to dismiss the appeal." Dogwood Dev. & Mgmt.

Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361,

365 (2008). Because defendant's notice of appeal was untimely,

we must dismiss his appeal. Defendant has, however, filed a

petition for writ of certiorari pursuant to Rule 21(a)(1) of the
 -6-
Rules of Appellate Procedure. We exercise our discretion to

allow the petition and address the merits of this appeal.1

I

Defendant first argues that the trial court erred by

admitting testimony regarding prior unsworn statements of Ms.

Johnson to the police on the night of the incident when those

statements did not corroborate Ms. Johnson's testimony at trial.

Because defendant did not object to the admission of this

evidence at trial, we review for plain error. Our Supreme Court

has explained:

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice -- that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

"A witness's prior consistent statements may be admitted to

corroborate the witness's courtroom testimony." State v.

1
We note that the State has not responded to defendant's
petition and did not move to dismiss the appeal.
 -7-
Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991). An

out-of-court statement will not be admitted, however, if it is

inconsistent with or contradicts the declarant's substantive

testimony at trial. State v. Stills, 310 N.C. 410, 416, 312

S.E.2d 443, 447 (1984). Moreover, if the statement "'contains

additional evidence going beyond [the declarant's] testimony,

the State is not entitled to introduce the "new" evidence under

a claim of corroboration . . . .'" State v. Warren, 289 N.C.

551, 557, 223 S.E.2d 317, 321 (1976) (quoting State v. Brooks,

260 N.C. 186, 189, 132 S.E.2d 354, 356 (1963)).

On the other hand, "if the testimony offered in

corroboration is generally consistent with the witness's

testimony, slight variations will not render it inadmissible."

Id. Where the testimony is substantially similar, "[slight]

variations affect only the credibility of the evidence which is

always for the jury." Id. Moreover, "[n]ew information

contained within the witness' prior statement, but not referred

to in his trial testimony, may also be admitted as corroborative

evidence if it tends to add weight or credibility to that

testimony." State v. Garcell, 363 N.C. 10, 40, 678 S.E.2d 618,

637 (2009) (quoting State v. Davis, 349 N.C. 1, 28, 506 S.E.2d

455, 469-70 (1998)).

At trial, Ms. Johnson testified to the following:
 -8-
Q. When you looked out of the
bathroom, what did you see?

A. I just seen him coming in the
door.

Q. When you say him, who are you
talking about?

A. The defendant, Floyd.

Q. You saw him come in the door? Of
what door?

A. Orlando's bedroom door.

Q. You saw him come into the bedroom
door?

A. Uh-huh.

Q. Did you see anything prior to
that?

A. No.

Q. And what was the next thing that
you -- did you see whether or not the
defendant had anything in his hands?

A. I did see him, like, with a gun in
his hand.

Q. I can't hear you.

A. I seen him with a gun in the hand
when the door opened and he came in.

Q. You saw him with a gun in his hand
and the door open?

A. Uh-huh.

Q. What were you thinking at that
point?
 -9-
A. I wasn't. Like, I just went
blank. I just --

Q. What's the next thing that you
recall after seeing him come into the
bedroom with a gun?

A. I just seen fire.

Q. When you say fire, what do you
mean?

A. Just seen, I guess, gunshots.

Later, to corroborate Ms. Johnson's testimony, Detective

Doug Bacon testified as follows:

Q. And did [Ms. Johnson] tell you
what she saw from the bathroom?

A. She stated that she was standing
at the -- in the bathroom, and when she saw
her husband pushing on the door, which he
finally got open, she stated that her
husband entered the room with a gun in his
hand.

Q. And what did she tell you that she
saw next?

A. Ms. Johnson stated that she saw
her husband fire the gun in the bedroom, and
then she heard her son screaming, at which
time she took off running out of the bedroom
and ran out into the parking lot looking for
him.

Defendant argues that the detective's testimony that Ms.

Johnson "saw her husband fire the gun in the bedroom" adds

additional information to her trial testimony that she merely

saw "fire" or "gunshots" when her husband entered the bedroom
 -10-
with his gun, and was, therefore, inadmissible to corroborate

her testimony. However, "a statement that merely contains

additional facts is not automatically barred." Harrison, 328

N.C. at 682, 403 S.E.2d at 304. The dispositive question is

whether the testimony is sufficiently similar such that it tends

to strengthen and add credibility to the witness' testimony.

Id. at 682-83, 403 S.E.2d at 304.

This test was applied in State v. Rogers, 299 N.C. 597, 264

S.E.2d 89 (1980), which we find analogous to this case. In

Rogers, a passenger in the defendant's vehicle testified at

trial that he saw the defendant pull the victim out of the car

and onto the bridge, heard someone say, "'Man, . . . don't throw

that boy in that cold-ass water'" and then heard a splash. Id.

at 600, 264 S.E.2d at 91-92. The detective then testified that

the witness had told him the defendant threw the victim over the

bridge. Id., 264 S.E.2d at 92. Our Supreme Court noted that

although the witness never testified that he actually saw the

defendant throw the victim over the bridge, "the clear

implication of [the witness'] testimony is that defendant did

precisely that act." Id. at 601, 264 S.E.2d at 92. Further,

the fact that the witness "did not mention one act which was

clearly a component of a series of interrelated acts does not in

any way serve to abridge the probative force of the rest of his
 -11-
testimony." Id. The Court concluded that the detective's

testimony was admissible as corroborative evidence because of

the substantial similarity of the testimony. Id.

Here, as in Rogers, the detective's testimony was

substantially similar to Ms. Johnson's. The prosecutor's line

of questioning focused on what Ms. Johnson had observed with

respect to her husband. There were no questions about and no

mention of Mr. Farrow at this point in the testimony. Ms.

Johnson testified, with respect to her husband, that she saw him

enter the room with his gun, and the next thing she saw was

"fire" or "gunshots." A reasonable juror could, given the

context, infer that Ms. Johnson meant that she saw "fire" or

"gunshots" from defendant's gun.

Any additional precision in the detective's testimony

regarding Ms. Johnson's out-of-court statement was no different

than the added detail in Rogers. It amounted to nothing more

than what a reasonable juror would have been able to infer from

the witness' testimony alone, and, by the same token, tended to

add weight and credibility to her testimony. We, therefore,

hold that it was admissible corroborative evidence. See also

State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001)

(holding detective's testimony that witness told him "'Willie

shot my mama'" was "an admissible shorthand statement of fact"
 -12-
corroborating witness' testimony that he "heard defendant and

the victim arguing, heard shots, saw the victim bleeding and

lying on the porch, and saw defendant fleeing the crime scene").

Even if it were error to admit the statement, it was not

prejudicial. Defendant argues that this evidence had a probable

impact on the jury's finding of guilt because it was a closely

contested case and the out-of-court statement was the only

testimony that a witness saw or heard defendant fire his gun.

Defendant contends that the out-of-court statement undercut his

claims that he fired only after Mr. Farrow began shooting and

that he did not intentionally fire his weapon.

However, it was undisputed at trial that defendant in fact

fired his gun once, although Mr. Farrow fired his gun five

times. Ms. Johnson's out-of-court statement only arguably added

that she saw him fire the gun, a fact immaterial to defendant's

defense. It indicated neither who fired first nor whether

defendant intentionally squeezed the trigger. Indeed, Detective

Bacon expressly noted the lack of witnesses regarding who fired

first:

Q. Detective, you were asked as far
as whether Orlando Farrow knew who fired
first. Does anybody know who fired first?

A. I don't think so. From everything
I know of, Ms. Johnson doesn't. She says
that she knows that her husband did fire.
It's obvious that Mr. Farrow did fire as
 -13-
well because Mr. Johnson got struck.

Further, the jury was instructed to use Detective Bacon's

testimony only to assess the credibility of Ms. Johnson, and

Detective Bacon explained at trial that he was testifying based

on his report of the incident and that he was not repeating Ms.

Johnson's words exactly. "My report is basically a paraphrased

statement of what the individual had told me. I can't recall

exactly the specifics and therefore do not want to give

untruthful testimony in court so therefore I utilize my notes

that -- directly what I wrote, not what somebody else has

written."

Because (1) the jury knew that the statement was

paraphrased by the detective, (2) it did not undermine the

defense's theory of how the events occurred, and (3) the jury

was instructed to use the evidence only to assess the

credibility of Ms. Johnson, we hold that the testimony did not

have a probable impact on the jury's finding of guilt.

II

Defendant next argues that the trial court committed plain

error in its instruction on the first element of first degree

burglary, which required the jury to find beyond a reasonable

doubt:

First, that the defendant broke and
entered a dwelling house. A breaking need
 -14-
not be actual, that is, the defendant need
not physically remove a barrier. The
defendant may, by a threat of force, inspire
such fear as to induce the occupant to allow
entry. In this situation, the defendant
would have constructively broke, and such
constructive breaking is a sufficient
breaking for the purposes of this offense.

Defendant does not contend that this is an incorrect statement

of the law. Rather, he argues that this jury instruction was

improper because it amounted to both (1) an impermissible

opinion by the trial court and (2) a peremptory instruction that

an element of the offense had been proven beyond a reasonable

doubt.

"In instructing the jury, the judge shall not express an

opinion as to whether or not a fact has been proved . . . ."

N.C. Gen. Stat. § 15A-1232 (2013). This prohibition is

mandatory. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97

(1989). Our courts review the totality of the circumstances to

determine whether the judge expressed an improper opinion.

State v. Foye, ___ N.C. App. ___, ___, 725 S.E.2d 73, 81 (2012).

"'Whether the judge's language amounts to an expression of

opinion is determined by its probable meaning to the jury, not

by the judge's motive.'" Id. at ___, 725 S.E.2d at 81 (quoting

State v. McEachern, 283 N.C. 57, 59–60, 194 S.E.2d 787, 789

(1973)).
 -15-
Defendant contends that instructing the jury that "[i]n

this situation, the defendant would have constructively broke"

specifically referred to defendant and expressed the trial

court's opinion that defendant in fact constructively broke into

the apartment. However, "a charge must be construed as a whole,

and isolated portions of a charge will not be held to be

prejudicial where the charge as a whole is correct and free from

objection." State v. Slade, 291 N.C. 275, 283, 229 S.E.2d 921,

926 (1976). "'It is not sufficient to show that a critical

examination of the judge's words, detached from the context and

the incidents of the trial, are capable of an interpretation

from which an expression of opinion may be inferred.'" Id.

(quoting State v. Gatling, 275 N.C. 625, 633, 170 S.E.2d 593,

598 (1969)).

When viewed in context, "[i]n this situation" refers to the

previous two sentences which state that "[a] breaking need not

be actual, that is, the defendant need not physically remove a

barrier. The defendant may, by a threat of force, inspire such

fear as to induce the occupant to allow entry." In other words,

"[i]n this situation" refers to a hypothetical situation where

the defendant -- any defendant -- breaks and enters through non-

physical means. In that event, "the defendant would have

constructively broke." (Emphasis added.) The use of "would
 -16-
have" instead of "has" indicated that the trial court was not

referring to defendant specifically, but rather to the law

generally.

Additionally, before listing the elements, the judge stated

"[f]or you to find the defendant guilty of [first degree

burglary], the State must prove five things beyond a reasonable

doubt." After stating the elements, he instructed the jury "if

you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant [committed all the elements

of the offense], it would be your duty to return a verdict of

guilty of first-degree burglary. If you do not so find or have

a reasonable doubt as to one or more of these things, you will

not return a verdict of guilty." Finally, the judge stated that

"[t]he law requires the presiding judge to be impartial. You

should not infer from anything I have done or said that the

evidence is to be believed or disbelieved, that a fact has been

proved, or what your findings ought to be. It is your duty to

find the facts and render a verdict reflecting the truth."

When viewed in context, the judge's instruction regarding

first degree burglary did not constitute an improper expression

of opinion or amount to an instruction that an element of the

offense had been proven beyond a reasonable doubt. Defendant
 -17-
has, therefore, failed to show any error in the jury

instructions.

No error.

Chief Judge MARTIN and Judge STROUD concur.

Report per Rule 30(e).