An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-560
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2014
STATE OF NORTH CAROLINA
v. Rockingham County
No. 12 CRS 053123, 053125
JOSEPH WOODROW TURNER
Appeal by defendant from judgments entered 1 October 2013
by Judge L. Todd Burke in Rockingham County Superior Court.
Heard in the Court of Appeals 22 October 2014.
Roy Cooper, Attorney General, by Yvonne B. Ricci, Assistant
Attorney General, for the State.
Law Offices of John R. Mills, by John R. Mills for
defendant-appellant.
STEELMAN, Judge.
Defendant failed to demonstrate that evidence admitted at
trial was prejudicial. As such, the admission of this evidence
did not rise to the level of plain error. Where the defendant’s
intoxicated and disruptive conduct occurred in the front yard of
a private residence, the trial court erred in not dismissing
this charge.
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I. Factual and Procedural Background
On 17 September 2012, Elsie Turner (Ms. Turner) was
attacked in the front yard of the residence she shared with her
son, Jamie Turner. Both of her sons, Jamie Turner (Jamie) and
Joseph Turner (defendant) were present when the attack occurred.
Jamie and defendant had been drinking that day. The assailant
had knocked Ms. Turner to the ground and repeatedly struck her
about the head. A passerby notified authorities of the attack.
Steven Hunter (Hunter), a parole officer, was the first to
arrive at Ms. Turner’s home. Jamie and defendant were in the
front yard, and defendant was standing over Ms. Turner. Hunter
did not witness the assault, but testified that defendant’s
hands were red. Defendant asserted that he had been checking
Ms. Turner for injuries.
Officer John Deane (Officer Deane) spoke with Ms. Turner at
her residence. At that time, she said that she was unsure of
whether Jamie had attacked her, but she was certain that
defendant did not attack her. Ms. Turner had serious brain
injuries and was treated overnight at a hospital for brain
hemorrhages. At trial, she testified that defendant hit her in
the jaw and repeatedly kicked her in the head.
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As Hunter entered the property, defendant approached
Hunter, pointing and clenching his fist. Hunter told defendant
to stop. Defendant then repeatedly called Hunter a “nigger” and
swore at him, telling Hunter to get off the property. When
defendant repeatedly ignored Hunter’s instructions to desist,
Hunter pepper sprayed defendant.
Defendant then went inside the residence, into the kitchen,
and used water to clean the pepper spray from his eyes.
Officers misunderstood his statement, that “I am cleaning my
eyes,” to be “cleaning my knives,” and arrested defendant.
Defendant resisted being handcuffed. During the arrest,
officers smelled alcohol on his breath.
Defendant was taken outside and placed in a lawn chair.
While outside, he informed officers he was a member of the Ku
Klux Klan. He remained uncooperative when paramedics attempted
to treat him for a cut he had received during the arrest.
Defendant was charged with assault with a deadly weapon
with intent to kill inflicting serious injury with respect to
Ms. Turner, intoxicated and disruptive conduct with respect to
his use of loud and profane language during his arrest, and
resisting a public officer.1 He was found guilty on all three
1
Defendant was also charged with interfering with emergency
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charges by the jury. Defendant was sentenced to an active term
of 110-144 months imprisonment on the assault charge, 20 days
imprisonment on the intoxicated and disruptive charge, and 60
days imprisonment on the resisting a public officer charge, to
be served consecutively.
Defendant appeals.
II. Plain Error
In his first, second, and third arguments, defendant
contends that the trial court committed plain error (1) in
permitting the State to ask defendant whether he was calling the
State’s witness a liar; (2) in admitting Detective Webb’s
testimony that defendant refused to speak while in custody; and
(3) in admitting evidence of defendant’s use of racial epithets
and references to his membership in the Klan. We disagree.
A. Standard of Review
We review “unpreserved issues for plain error when they
involve either (1) errors in the judge’s instructions to the
jury, or (2) rulings on the admissibility of evidence.” State v.
Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
communication. At the close of the State’s evidence, the court
dismissed this charge.
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entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,
333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)).
B. State’s Cross-Examination of Defendant
First, defendant contends that the trial court committed
plain error by permitting the State to ask defendant whether the
State’s witness was a liar. Specifically, defendant testified
that his brother, not defendant, was the assailant. The State
then asked defendant about the testimony of Hunter: “Now, this –
this gentleman, with all his training and experience as a police
officer and probation officer, was he lying?” The State later
asked about Hunter again: “We’ve got a probation officer who
testified, former Greensboro police officer who said you were
advancing toward him in an aggressive manner. That’s a lie,
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right?” The State also asked defendant, with regard to the
testimony of Sgt. Earles, an officer who examined Jamie’s knife:
“Do you know why that – so when Sgt. Earles was testifying there
was no blood on that knife, he was lying, too, wasn’t he?” At
no point did defendant object to these questions, and our review
is limited to plain error.
We have held that it is highly improper to ask a witness
whether another witness is lying. State v. Campbell, 30 N.C.
App. 652, 656, 228 S.E.2d 52, 55 (1976). We held, in Campbell,
that it is for the jury, not another witness, to determine the
credibility of witnesses. Id.
Defendant compares this case with that of State v.
Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978), in which the
prosecutor accused a defense witness of perjury. In that case,
our Supreme Court held that such an accusation was grossly
improper, and granted a new trial. However, in the instant
case, the State did not accuse defendant of lying; rather, it
asked defendant, rhetorically, to compare his testimony with
conflicting testimony from other witnesses.
Even assuming arguendo that the State’s inquiries were
improper, however, defendant has presented no argument that
suggests that, absent these questions, the jury would probably
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have reached a different verdict. Even absent the State’s
active contrast of defendant’s testimony with that of Hunter and
Sgt. Earles, the jury heard and was able to rely upon the
testimony of all three witnesses. We hold that defendant has
not shown that these questions prejudiced his case. The trial
court did not commit plain error.
This argument is without merit.
C. Commenting on the Right to Remain Silent
Second, defendant contends that the trial court committed
plain error in permitting Detective Webb to testify concerning
defendant’s exercise of his right to remain silent.
At trial, Detective Webb testified:
After the initial visit, I did leave the
hospital, come back to Rockingham County,
stopped at the crime scene and then I
proceeded to the sheriff's office.
I went back into the jail area to speak with
Mr. Turner. I always like to give them the
option if they would like to give a
statement, or if they would like to provide
additional information, check on his well-
being.
I did step back over to the jail to see if
everything was okay back there. Mr. Turner
did not wish to speak with me at that point
in time.
Defendant did not object to this testimony at trial. On
appeal, defendant contends that this testimony was an improper
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comment on defendant’s exercise of his right to remain silent,
and that the trial court committed plain error in admitting it.
A defendant’s post-arrest silence is inadmissible as
substantive evidence. Doyle v. Ohio, 426 U.S. 610, 619, 49
L.Ed.2d 91, 98 (1976); State v. Mendoza, 206 N.C. App. 391, 395,
698 S.E.2d 170, 174 (2010). The bar on admitting such evidence
includes any comment on a defendant’s silence. State v. Ward,
354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001).
Even assuming arguendo that the admission of this testimony
was an improper remark on defendant’s silence, defendant has
failed to show that this prejudiced his case before the jury.
Defendant’s bare contention that “[t]he jury likely viewed
[defendant]’s refusal to talk to Detective Webb as evidence that
he was guilty” is insufficient, when contrasted with the
eyewitness testimony of officers and those present during the
assault, to rise to the level of prejudice necessary to
establish plain error. We hold that the trial court did not
commit plain error in admitting Detective Webb’s testimony.
This argument is without merit.
D. Evidence of Racial Epithets and Klan Membership
Third, defendant contends that the trial court committed
plain error in admitting into evidence testimony concerning
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statements made by defendant during his arrest, consisting of
racial epithets and his assertion of Klan membership.
At trial, Hunter testified about defendant’s use of racial
epithets during his arrest. An officer testified that, during
his arrest, defendant stated that he was a member of the Ku Klux
Klan. Defendant contends that these facts were not relevant to
the case before the jury, and “evoked some of the most
incendiary issues in our State’s history.” Defendant failed to
object to this testimony at trial, and contends on appeal that
the trial court committed plain error in admitting it.
Irrelevant evidence is not admissible. N.C. R. Evid. 402.
Even if evidence is relevant, it may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice. N.C. R. Evid. 403. Defendant contends that
his use of racial epithets and membership in the Klan is not
relevant, and that even if it were relevant, the danger of
unfair prejudice substantially outweighs any probative value of
the comments made during his arrest.
Even assuming arguendo that the trial court erred in
admitting this testimony, however, defendant has once again
failed to show prejudice. The evidence at trial shows that
defendant was present during the assault of his mother, and that
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defendant swore at officers and resisted arrest. Even in the
absence of the statements at issue, there was ample evidence
from which the jury could determine defendant’s guilt. We hold
that the trial court did not commit plain error in admitting
these statements.
This argument is without merit.
II. Intoxicated and Disruptive Conduct
In his fourth argument, defendant contends that the trial
court erred in denying his motion to dismiss the charge of
intoxicated and disruptive conduct. We agree.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
“‘Upon defendant’s motion for dismissal, the question for
the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator
of such offense. If so, the motion is properly denied.’” State
v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),
cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
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B. Analysis
Defendant contends that the trial court should have granted
his motion to dismiss the charge of intoxicated and disruptive
conduct, due to the fact that the location of the alleged
offenses was not a public place.
N.C. Gen. Stat. § 14-444, under which defendant was
sentenced, provides in relevant part:
(a) It shall be unlawful for any person in
a public place to be intoxicated and
disruptive in any of the following ways:
. . .
(3) Grabbing, shoving, pushing or fighting
others or challenging others to fight, or
(4) Cursing or shouting at or otherwise
rudely insulting others[.]
N.C. Gen. Stat. § 14-444(a) (2013) (emphasis added).
A public place is defined to be “[a]ny location that the
local, state, or national government maintains for the use of
the public, such as a highway, park, or public building.”
Black’s Law Dictionary 1351 (9th Ed. 2009). We have previously
held that an altercation which took place in the front yard of a
group home for juveniles was private property, and that the
trial court in that case erred in denying a motion to dismiss.
In re May, 153 N.C. App. 299, 303, 569 S.E.2d 704, 708 (2002).
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In the instant case, as in May, all interactions between
defendant and police officers occurred in the front yard of a
private residence. We hold that this was not a location “that
the . . . government maintains for the use of the public,” and
that it was not a public place. Accordingly, the State failed
to demonstrate that defendant’s conduct occurred in a public
place, and the trial court erred in denying defendant’s motion
to dismiss the charge of intoxicated and disruptive conduct. We
reverse the trial court’s judgment on that charge.
NO ERROR IN PART, REVERSED IN PART.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).