NO. COA14-100
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 251563
ELLIS EUGENE ROYSTER
Appeal by defendant from judgment entered 29 May 2013 by
Judge W. Robert Bell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 11 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
Law Office of Margaret C. Lumsden PLLC, by Margaret C.
Lumsden, for defendant-appellant.
McCULLOUGH, Judge.
Defendant Ellis Eugene Royster appeals from a judgment
entered based upon his conviction for first degree murder. For
the following reasons, we find no error in part and no
prejudicial error in part.
I. Background
On 1 November 2010, a Mecklenburg County Grand Jury
indicted defendant on a charge of murdering Amias Bernard
Robinson on 12 August 2010.
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Defendant’s case came on for trial during the 20 May 2013
Criminal Session of Mecklenburg County Superior Court, the
Honorable W. Robert Bell, Judge presiding.
The State’s evidence at trial tended to show the following:
Alvin Alexander testified that at 4:00 p.m. on 12 August 2010,
he met his friend Randall Henry (otherwise known as “Randy”) at
defendant’s residence on Eastbrook Road in Charlotte, North
Carolina. Defendant lived with his grandmother “Miss D” and
grandfather “Mr. D.” “Miss D” was known in the neighborhood as
the “Candy Lady.” Alvin went into defendant’s bedroom where
defendant and Randy played a video game while Alvin smoked
marijuana. Sometime thereafter, Alvin, Randy, and defendant
went outside to the end of defendant’s driveway to smoke
cigarettes. Shariff Baker, a resident of defendant’s
neighborhood, approached Alvin, Randy, and defendant and told
them that “a couple guys took his money from him.” Alvin
testified that Shariff had stated that “[h]e was going to buy
some weed from them, and they just pulled off with his money.”
Shariff testified that on 12 August 2010, he tried to buy
$10.00 worth of marijuana from Jadarius McCall, otherwise known
as “J.D.” Shariff was standing in front of a house on Eastbrook
Road when J.D. drove by in a blue car. Three other people were
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in the car with him – a man by the name of Delehay, Tim, and an
unidentified male. Shariff gave $10.00 to Delehay, the group
told Shariff to get out of their way, and J.D. drove off without
giving Shariff marijuana or returning his money. Shariff was
upset and began walking towards defendant’s residence. Once
Shariff saw defendant, he told defendant that J.D., Delehay, and
Tim had taken his money. Defendant told Shariff that he “would
get it back for me.”
Alvin testified that he knew Tim’s stepfather, Chris, and
that he told Shariff that he would talk with Chris. Alvin drove
to Chris’ house, “told Chris that his stepson had just took one
of the guy’s money out of the neighborhood. And [Chris] said he
would take care of it.” After their conversation, Alvin then
drove back to defendant’s residence. Several people from the
neighborhood were standing outside. A group of three to four
teenage girls, including the victim’s cousins, were pushing a
baby stroller holding the victim, Amias Robinson.
Alvin testified that while he was in the driveway of
defendant’s residence, he saw a blue Oldsmobile drive past them.
Shariff also testified that “J.D.’s car came down the street.”
Randy pointed out the vehicle and stated, “[t]here he go right
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there.” Shariff testified that Randy’s comment meant, “[t]hat
those are the people that took my money.”
Defendant was standing at the end of the driveway when he
pulled a gun from his rear waistband area. Alvin and Shariff
witnessed defendant start firing shots “up the street” towards
J.D.’s vehicle. Alvin heard approximately ten shots and then
heard a girl scream “[y]ou shot my cousin; you shot my cousin.”
Defendant repeatedly stated “I’m going to jail” and Randy asked
defendant, “[w]hy did you start shooting[?]” Shariff testified
that, after the shooting, defendant stated, “I f***ed up.”
Thereafter, defendant walked quickly down the street and
returned within a couple of minutes without a gun. Alvin left
the scene in his vehicle soon after the shooting.
Sergeant Michael Abbondanza with the Charlotte Mecklenburg
Police Department (“CMPD”) testified that, on 12 August 2010, he
was dispatched in response to a call that a baby had been shot
and was the first officer to arrive on the scene. Sergeant
Abbondanza testified that, when he arrived at a residence on
Eastbrook Road, there were fifteen to twenty people in the
street. Thereafter, he found the victim lying on the front
porch with what appeared to be a gunshot wound through his neck.
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The victim of the stray bullet, Amias Robinson, was born on
8 July 2008. In August 2010, Amias’ mother had made
arrangements with her cousins to watch Amias in Charlotte, North
Carolina. She received a phone call on 12 August 2010, urging
her to go to the hospital because Amias had been shot after he
had been taken to the “Candy Lady.” Amias died on 16 August
2010 as the result of a gunshot wound to the neck.
Todd Norhoff, an expert in the field of firearms and tool
mark analysis with the Charlotte-Mecklenburg Crime Laboratory,
testified that he analyzed eleven (11) spent shell casings found
at the scene of the crime. The casings were 9 millimeter Luger
Remington Peters casings. All eleven casings were found to have
been discharged from the same firearm.
Defendant testified on his own behalf. On 12 August 2010,
defendant lived with his grandmother, the “Candy Lady,” at 5826
Eastbrook Road. Defendant picked up Randy and Alvin and went to
defendant’s residence to play video games. Around 5:00 p.m. or
6:00 p.m., the three went outside and stood in the driveway,
waiting on someone to bring them marijuana. The “weed man” came
by defendant’s residence, sold them $80.00 worth of marijuana,
and left. Defendant testified that he gave Randy half of the
marijuana and then went inside his house, leaving Randy and
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Alvin outside. Defendant was inside the house with his baby’s
mother, uncle, grandmother, and grandfather. Twenty-five
minutes later, defendant testified that he heard 10 gunshots.
He had not seen Randy or Alvin during this period of time.
After he heard the gunshots, defendant, his baby’s mother,
uncle, grandmother, and grandfather met at the front door of the
house. Defendant’s grandmother saw the victim bleeding and
started to perform CPR on the victim.
Defendant testified that earlier that day, he had had a
conversation with Shariff. Shariff told defendant that he had
been robbed by J.D. Defendant tried to call J.D. to get
Shariff’s money back but because J.D. did not answer his phone
calls, defendant sent him a text message that read “Man, I ain’t
about to be blowing up your phone like a b****. Bring that
n***** money back or stay out of my hood.” Defendant denied
shooting a gun at J.D., shooting a gun at J.D.’s vehicle, or
shooting a gun “up in the air or down on the ground to scare
J.D.”
Testimony from the following witnesses demonstrated that
they had initially implicated Alvin Alexander as the shooter:
Shariff Baker; Porchia Glenn; Kyshonna Williams; and Kourtney
Williams.
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On 29 May 2013, the jury returned a verdict finding
defendant guilty of first degree murder. The trial court
sentenced defendant to life imprisonment without parole.
Defendant gave notice of appeal in open court.
II. Discussion
On appeal, defendant argues that the trial court erred by
(A) allowing the admission of testimony about 9 millimeter
ammunition and a gun found in defendant’s grandmother’s house;
(B) not ordering a mistrial after a profane outburst from the
victim’s father in the presence of the jury; (C) releasing an
out-of-state witness from his subpoena and forcing defense
counsel to elect whether to call the witness with only a few
hours’ notice; (D) refusing defendant’s request to instruct the
jury concerning flight as an indication of the guilt of another
person; and (E) allowing the admission of inadmissible hearsay
and cumulative evidence consisting of a witness’ self-serving
statements implicating defendant.
A. Weapon and Ammunition Testimony
In his first argument on appeal, defendant contends that
the trial court erred by allowing the admission of testimony
concerning 9 millimeter ammunition and a gun found during the
search of defendant’s house. Specifically, defendant argues
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that the challenged evidence was not relevant, in violation of
Rule 401 of the North Carolina Rules of Evidence. Defendant
also asserts that, if the evidence was relevant, the prejudice
to defendant outweighed the probative value of the evidence
under Rule 403 of the North Carolina Rules of Evidence. We
disagree.
“The admissibility of evidence is governed by a threshold
inquiry into its relevance. In order to be relevant, the
evidence must have a logical tendency to prove any fact that is
of consequence in the case being litigated.” State v. Griffin,
136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000) (citation and
quotation marks omitted); see also N.C. Gen. Stat. § 8C-1, Rule
401 (2013) (“‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”). "All
relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by the Constitution of
North Carolina, by Act of Congress, by Act of the General
Assembly or by these rules. Evidence which is not relevant is
not admissible." N.C. Gen. Stat. § 8C-1, Rule 402 (2013).
Nevertheless, under Rule 403, relevant evidence “may be excluded
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if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C. Gen. Stat.
§ 8C-1, Rule 403 (2013).
Although the trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial
court is better situated to evaluate whether
a particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court's ruling on
relevancy pursuant to Rule 401 is not as
deferential as the "abuse of discretion"
standard which applies to rulings made
pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)
(internal quotations and citation omitted).
At trial, a hearing was held prior to admission of the
challenged evidence. Detective Miguel Santiago, a witness for
the State, found a 9 millimeter machine-gun style pistol during
a search of defendant’s home. The gun had nineteen (19)
Winchester 9 millimeter bullets and fifteen (15) Remington 9
millimeter bullets. The State wanted to introduce evidence
regarding the 9 millimeter ammunition that was found at
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defendant’s house to show that defendant possessed the same
caliber and brand of ammunition as the shell casings that had
been found at the crime scene and were used to kill the victim.
The State did not intend to introduce the 9 millimeter gun.
Over defendant’s objection, the trial court allowed the State to
present the following evidence about the 9 millimeter ammunition
found in the house:
[State:] . . . Did you assist with executing
a search warrant on [defendant’s] home on
October 27th, 2010?
[Santiago:] Yes, I did.
[State:] And yes or no, Detective, during
that search, did you find any 9 millimeter
ammunition?
[Santiago:] Yes, I did.
In order to dispel any suggestion that defendant possessed
the 9 millimeter gun used in the shooting, defendant elicited
testimony that a 9 millimeter gun also found in his house, in
which the 9 millimeter ammunition was found, was not the murder
weapon. Thereafter, based on a trial court ruling that
defendant had “opened the door”, on re-direct the State
introduced further evidence concerning the gun found in the
house, including photographs. Defendant later testified that he
only owned the 9 millimeter gun found during the search.
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After thoughtful review, we hold that the evidence
concerning the 9 millimeter ammunition that was found in
defendant’s home was relevant because it tended to link
defendant to the scene of the crime, where eleven shell casings
of the same brand and caliber were found, thus allowing the jury
to infer that defendant was the perpetrator of the crime.
Because evidence of the 9 millimeter ammunition was probative of
defendant’s connection to the crime and the danger of unfair
prejudice did not outweigh the probative value of the evidence,
we hold that the trial court did not err by admitting this
evidence.
Next, we address the admission of evidence regarding the
gun that was found pursuant to a search of defendant’s home. We
note that the trial court ruled that evidence of the gun found
in defendant’s home would not be admissible. However, defendant
“opened the door” to the admission of this evidence. “The State
has the right to introduce evidence to rebut or explain evidence
elicited by defendant although the evidence would otherwise be
incompetent or irrelevant.” State v. Johnston, 344 N.C. 596,
605, 476 S.E.2d 289, 294 (1996) (citation omitted). “The law
has long been that, even where [t]he type of testimony is not
allowed[,] . . . when a party first raises an issue, it opens
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the door to questions in response to that issue and cannot later
object to testimony regarding the subject raised.” State v.
Wilson, 151 N.C. App. 219, 226, 565 S.E.2d 223, 228 (2002)
(citations and quotation marks omitted). Since he first
introduced evidence about the gun found in his residence,
defendant cannot now challenge the admission of testimony that
he first elicited. Defendant’s arguments are overruled.
B. Mistrial
In his second argument on appeal, defendant contends that
the trial court erred by failing to declare a mistrial after an
outburst by the victim’s father in the presence of the jury.
During the testimony of Sergeant Abbondanza of the CMPD
describing the victim’s injuries, the victim’s father, stated
“[m]otherf***** -- my baby. You shot my mother f***** baby –
(unintelligible).” Shortly thereafter, as the court concluded
for the day, the trial judge addressed the jury concerning the
outburst:
Finally, I can't let go -- or can't let it
go without saying something about the
outburst of the gentleman a moment ago. If
you'll recall before we started, I said, you
know, this is when we start; this is when we
end; that these trials take on a life of
their own. We're dealing with -- this is
not television. These are the real facts
and real tragedies. He clearly was
emotional. But it's your responsibility as
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a juror and as a finder of fact to base your
decision on the law and on the evidence and
not on emotion. I don't know whether this
gentleman will be back. I can promise you
if he is back, he will not act like that
again in this courtroom.
The following morning, the trial judge again addressed the issue
with the jury at the request of the defense.
We're going to start in just a moment with
the cross-examination of this witness by the
defendant. But I do have one final
instruction for you concerning the incident
that occurred yesterday afternoon. I'm not
sure exactly what Mr. Robinson said. But
regardless of what he said or what you may
have thought he said or remember him to have
said, that is not evidence and should not be
considered by you as evidence and should
have no bearing upon your deliberations.
Defendant concedes in his brief that “defense counsel
failed to seek a mistrial” and thus contends that the proper
standard of review is plain error. The North Carolina Supreme
Court has restricted review for plain error to issues
“involv[ing] either errors in the trial judge’s instructions to
the jury or rulings on the admissibility of evidence.” State v.
Cummings, 346 N.C. 291, 314, 488 S.E.2d 550, 563 (1997)
(citation omitted). Because plain error review is not available
to defendant, this issue is not properly preserved for appeal.
See State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900
(2004) (where the defendant failed to move for a mistrial after
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individuals in the courtroom signaled to the victim during her
testimony, plain error review was not available and the argument
was waived).
C. Defendant’s Sixth Amendment Rights
Defendant next argues that the trial court erred by
releasing an out-of-state witness, Shariff Baker, from his
subpoena, forcing the defense to elect whether to call him as a
witness with only a few hours’ notice. Specifically, defendant
argues that the trial court violated his confrontation rights as
secured by the Sixth Amendment of the United States Constitution
and Article I Section 23 of the North Carolina Constitution. We
find defendant’s arguments meritless.
Defendant relies on State v. Barlowe, 157 N.C. App. 249,
578 S.E.2d 660 (2003) to support his argument. Our Court in
Barlowe stated the following:
The right to present evidence in one’s own
defense is protected under both the United
States and North Carolina Constitutions. As
noted by the United States Supreme Court . .
. [t]he right of an accused in a criminal
trial to due process is, in essence, the
right to a fair opportunity to defend
against the State’s accusations. The rights
to confront and cross-examine witnesses and
to call witnesses in one’s own behalf have
long been recognized as essential to due
process. In addition, the right to face
one’s accusers and witnesses with other
testimony is guaranteed by the sixth
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amendment to the federal constitution,
applicable to the states through the
fourteenth amendment, and by Article I,
sections 19 and 23 of the North Carolina
Constitution.
Id. at 253, 578 S.E.2d at 663 (citations and quotation marks
omitted).
“The standard of review for alleged violations of
constitutional rights is de novo. Once error is shown, the
State bears the burden of proving the error was harmless beyond
a reasonable doubt.” State v. Graham, 200 N.C. App. 204, 214,
683 S.E.2d 437, 444 (2009) (citing State v. Tate, 187 N.C. App.
593, 599, 653 S.E.2d 892, 897 (2007) and N.C. Gen. Stat. § 15A-
1443(b)).
In the case sub judice, the State, pursuant to N.C. Gen.
Stat. § 15A-811 et seq., summoned Shariff Baker from New York to
testify at the trial. On 22 - 23 May 2013, Baker testified and
defendant had an opportunity to cross-examine him. After Baker
stepped down from the witness stand, the State informed the
trial court judge that the defense had attempted to serve a
subpoena on Baker the day before. The State argued that the
subpoena was invalid. Baker refused to speak with the defense
out-of-court and the trial court required the defense to decide
whether to call Baker as a witness before 2:00 p.m. that day.
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When the defense indicated it had not yet decided whether it
would be calling Baker as a witness at 2:00 p.m., the trial
court judge released Baker from the summons.
After reviewing the record, we are unable to agree with
defendant that his confrontation rights regarding the State’s
witness, Shariff Baker, were violated. Baker was available at
trial and defendant had the opportunity to conduct a cross-
examination of Baker. Moreover, we note that Baker was summoned
as an out-of-state witness by the State. Pursuant to N.C. Gen.
Stat. § 15A-814,
[i]f a person comes into this State in
obedience to a summons directing him to
attend and testify in this State he shall
not, while in this State pursuant to such
summons, be subject to arrest or the service
of process, civil or criminal, in connection
with matters which arose before his entrance
into this State under the summons.
N.C. Gen. Stat. § 15A-814 (2013). Thus, the subpoena served
upon Baker during trial was invalid because Baker was in North
Carolina pursuant to the State’s summons. As such, we hold that
the trial court did not err by releasing Baker from his summons
after he testified as a witness for the State. Based on the
foregoing reasons, we reject defendant’s contentions.
D. Jury Instruction Concerning Flight
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In the fourth issue raised by defendant on appeal,
defendant argues that the trial court erred in refusing his
request to instruct the jury concerning flight as an indication
of Alvin Alexander’s guilt. Defendant contends that the failure
of the trial court to deliver the requested instruction
concerning flight was a violation of his constitutional rights
pursuant to the Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution and Article I, Sections 18, 19, 24,
and 27 of the North Carolina Constitution.
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo, by this
Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d
144, 149 (2009) (citation omitted).
In the present case, Alvin testified that he left the scene
of the crime after the shooting because he “didn’t want to be
around when the police showed up” since he was in possession of
“crack.” The defense requested a special instruction concerning
the flight of Alvin from the crime scene. The trial court
denied the request for the instruction, but allowed the defense
to argue the point.
Defendant now argues that the trial court should have
delivered an instruction concerning the flight of Alvin as an
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indication of his guilt. Defendant contends that the evidence
at trial suggested that Alvin “might have been the shooter” and
that his flight from the scene of the crime “in fear of the
police is particularly incriminating.”
It is well established that “[e]vidence of a defendant’s
flight following the commission of a crime may properly be
considered by a jury as evidence of guilt or consciousness of
guilt.” State v. King, 343 N.C. 29, 38, 468 S.E.2d 232, 238
(1996) (citation omitted).
Assuming arguendo that it was error for the trial court to
refuse to instruct the jury that it would consider Alvin’s
flight as evidence that he, rather than defendant, was the
perpetrator of the crime, we do not believe that this decision
amounted to prejudicial error. According to N.C. Gen. Stat. §
15A-1443(a), “[a] defendant is prejudiced by errors relating to
rights arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the
error in question not been committed, a different result would
have been reached at the trial out of which the appeal arises.”
N.C. Gen. Stat. § 15A-1443(a) (2013).1 Here, the record is
1
Although defendant argues in his brief that his constitutional
rights were violated, he failed to advance any constitutionally
based arguments in support of his request for the delivery of a
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replete with evidence from which a jury could find defendant
guilty of first degree murder. At trial, several witnesses
testified that defendant fired the shots that resulted in the
victim’s death. Witnesses also testified that defendant made
highly incriminating statements after the shooting. On the
other hand, although several witnesses initially told officers
that Alvin fired the shots that killed the victim, the testimony
at trial was devoid of any direct evidence tending to show that
Alvin was the perpetrator of the crime. In addition, despite
the fact that Alvin testified that he left the scene of the
crime after the shooting because he had drugs on his person, he
testified that he returned after learning that officers were
searching for him. Based on the foregoing, we are unable to
hold that there is a reasonable possibility that a different
result would have been reached at trial had the trial court
delivered defendant’s requested third party flight instruction.
Therefore, we find no prejudicial error.
E. Admission of Alvin Alexander’s Testimony
third party flight instruction before the trial court. Because
our Court does not consider constitutional issues raised for the
first time on appeal, State v. Hunter, 305 N.C. 106, 112, 286
S.E.2d 535, 539 (1982) (stating that “a constitutional question
which is not raised and passed upon in the trial court will not
ordinarily be considered on appeal”), we apply the applicable
prejudice standard applicable to non-constitutional errors to
defendant’s claim.
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In the final issue that he has raised on appeal, defendant
argues that the trial court erred by admitting evidence of phone
calls made by Alvin Alexander to his friends which were “self-
serving statements implicating defendant.” Defendant argues
that this evidence amounted to hearsay and was cumulative. We
disagree.
“Hearsay” is defined as “a statement, other than one made
by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
N.C. Gen. Stat. § 8C-1, Rule 801(c) (2013). Hearsay is not
admissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2013). The trial
court’s determination about whether an out-of-court statement
constitutes hearsay is reviewed de novo. State v. Miller, 197
N.C. App. 78, 87-88, 676 S.E.2d 546, 552 (2009). The trial
court’s determination concerning whether there is a “needless
presentation of cumulative evidence” pursuant to Rule 403 of the
North Carolina Rules of Civil Procedure is reviewed for an abuse
of discretion. State v. Jacobs, 363 N.C. 815, 823, 689 S.E.2d
859, 864 (2010).
The challenged evidence, which consisted of recordings of
phone calls made by Alvin while he was in jail, was admitted
during Alvin’s testimony. The substance of the recordings
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indicated that Alvin did not shoot at the vehicle and that
defendant was the shooter on 12 August 2010.
Defendant argues that Alvin’s credibility was a key issue
at trial and that allowing the tapes to bolster his testimony
was prejudicial to defendant. Without the repeated statements
by Alvin, defendant argues that the jury could have reached a
different result.
After conducting de novo review of the challenged evidence,
we hold that the recordings of Alvin’s conversations did not
amount to hearsay. In order to constitute hearsay, it must be
“[a]n assertion of one other than the presently testifying
witness” and must be offered for the truth of the matter
asserted. State v. Sibley, 140 N.C. App. 584, 587-88, 537
S.E.2d 835, 838 (2000) (citation omitted). In the case sub
judice, the recordings were admissible for the non-hearsay
purpose of corroborating Alvin’s testimony, which means that
they were not used for the truth of the matter asserted. In
addition, the recordings were not a needless presentation of
cumulative evidence because the statements Alvin made in the
recordings corroborated his testimony, excluded him as a
suspect, and established defendant as the perpetrator of the
crime. For these reasons, we are unable to hold that the trial
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court abused its discretion by admitting the challenged
testimony as a needless presentation of cumulative evidence.
III. Conclusion
Based on the reasons discussed above, we find no error in
part and no prejudicial error in part.
Judges ERVIN and DILLON concur.