An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-361
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
STATE OF NORTH CAROLINA
v. Cleveland County
No. 12 CRS 050344
TERRENCE MONTREAL NORRIS
Appeal by defendant from judgment entered 26 August 2013 by
Judge C. Thomas Edwards in Cleveland County Superior Court.
Heard in the Court of Appeals 24 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Alvin W. Keller, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
CALABRIA, Judge.
Terrence Montreal Norris (“defendant”) appeals from a
judgment entered upon jury verdicts finding him guilty of second
degree murder and possession of a firearm by a felon. We find
no error at trial, but remand to the trial court to reconsider
the amount of restitution.
I. Background
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On 20 January 2012, twin sisters Patricia “Fonda” Watkins
(“Fonda”) and Rita “Wonda” Watkins (“Wonda”) (collectively, “the
Watkins sisters”), and Brian Galmer (“Galmer”) were gathered at
Wonda’s home in Shelby, North Carolina. Later, they all
relocated across the street to Fonda’s residence, because they
intended to purchase crack cocaine and did not want to smoke the
cocaine in front of Wonda’s children. They contacted “T-Mack”
(later identified as defendant) to buy crack cocaine from him.
Kelton Ross (“Ross”), a close friend of the Watkins sisters,
subsequently arrived at Fonda’s residence. Ross was upset and
had argued with defendant earlier in the evening because
defendant had not paid him for work he had completed. When Ross
and defendant saw one another at Fonda’s house, the men argued,
left the house, returned, and resumed arguing.
Although Wonda, Fonda, and Galmer encouraged both men to
stop arguing, defendant fired three shots at Ross. At the time,
Galmer stood next to Ross across the room from defendant. Two
of the shots, from a firearm that had been concealed in
defendant’s jacket pocket, hit Ross in the chest. Ross later
died from his injuries.
Sergeant William Craig Earwood (“Sgt. Earwood”) of the
Shelby Police Department (“SPD”), one of the law enforcement
officers who helped to secure the scene, discovered Ross lying
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face down on the floor, partially blocking the front door of the
house. When emergency medical services personnel entered the
house to perform lifesaving procedures, they discovered Ross had
been lying on top of a gold-colored candleholder. Later, Randy
Conner (“Conner”), an SPD crime scene investigator, recovered
the candleholder from under a loveseat in the living room, where
it had been moved by emergency services personnel. Conner also
recovered another brass candleholder from under the coffee
table.
Defendant fled to South Carolina, where he briefly stayed
with his family. Three days later, defendant surrendered to law
enforcement. Before surrendering, defendant called Wonda and
offered to send her something of value if she agreed not to
identify him to law enforcement. Defendant was charged with
first degree murder, intimidating a witness, possession of a
firearm by a felon, and obstruction of justice. At trial, the
State presented testimony from several witnesses, including
Wonda, Fonda, Galmer, Sgt. Earwood, and Conner. The witness
intimidation offense was dismissed at the close of the State’s
evidence.
On 26 August 2013, the jury found defendant not guilty of
obstruction of justice. However, the jury found defendant
guilty of second degree murder and possession of a firearm by a
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felon. The trial court sentenced defendant to a minimum of 156
months and a maximum of 200 months in the custody of the North
Carolina Division of Adult Correction. Defendant was also
ordered to pay restitution in the amount of $6,670 to Ross’s
mother and $46 to Shelby Radiological Associates. Defendant
appeals.
II. Jury Instruction
Defendant first argues that the trial court committed plain
error by instructing the jury that he could not receive the
benefit of self-defense if he were the aggressor. We disagree.
Because defendant failed to object to the jury instruction
as given, we must apply plain error review. The Supreme Court
of North Carolina “has elected to review unpreserved issues for
plain error when they involve . . . errors in the judge’s
instructions to the jury[.]” State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996). Plain error arises when the
error is “so basic, so prejudicial, so lacking in its elements
that justice cannot have been done[.]” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation
marks omitted). “Under the plain error rule, defendant must
convince this Court not only that there was error, but that
absent the error, the jury probably would have reached a
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different result.” State v. Jordan, 333 N.C. 431, 440, 426
S.E.2d 692, 697 (1993).
“[T]he defendant can be considered the aggressor when [he]
‘aggressively and willingly enters into a fight without legal
excuse or provocation.’” State v. Vaughn, ___ N.C. App. ___,
___, 742 S.E.2d 276, 279 (2013) (quoting State v. Wynn, 278 N.C.
513, 519, 180 S.E.2d 135, 139 (1971)). “A person is considered
to be an aggressor . . . when he has provoked a present
difficulty by language or conduct towards another that is
calculated and intended to bring it about.” State v. Effler,
207 N.C. App. 91, 97, 698 S.E.2d 547, 551-52 (2010) (citation
omitted). When “more than sufficient evidence was presented to
indicate that [a] defendant could have been the aggressor in the
fight resulting in the victim’s death[,]” it is not error to
deliver an instruction that the defendant was not entitled to
self-defense if he was the aggressor. State v. Wood, 149 N.C.
App. 413, 419, 561 S.E.2d 304, 308-09 (2002).
In the instant case, the trial court instructed the jury,
in pertinent part, as follows:
The defendant would not be guilty of any
murder or manslaughter if the defendant
acted in self-defense, and if the defendant
was not the aggressor in provoking the fight
and did not use excessive force under the
circumstances.
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. . .
A person is . . . justified in using
defensive force when the force used by the
person who was provoked is so serious that
the person using defensive force reasonably
believes that he was in imminent danger of
death or serious bodily harm, the person
using defensive force had no reasonable
means to retreat, and the use of force
likely to cause death or serious bodily harm
was the only way to escape the danger.
The defendant is not entitled to the benefit
of self-defense if the defendant was the
aggressor with the intent to kill or inflict
serious bodily injury upon the deceased.
Defendant relies upon four cases to support his argument
that the jury instruction was erroneous because there was no
evidence that he was the aggressor: State v. Washington, 234
N.C. 531, 67 S.E.2d 498 (1951); State v. Tann, 57 N.C. App. 527,
291 S.E.2d 824 (1982); State v. Jenkins, 202 N.C. App. 291, 688
S.E.2d 101 (2010); and State v. Vaughn, __ N.C. App. ___, 742
S.E.2d 276 (2013). However, defendant’s cases are
distinguishable. All of them held that the aggressor
instruction was erroneous because there was no evidence to
establish that the defendants were the aggressors in their
respective situations. In the instant case, there is sufficient
evidence to suggest that defendant was, or could have been, the
aggressor in his encounter with Ross.
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The State presented evidence from several witnesses that
although Ross had argued with defendant throughout the evening,
that argument had never escalated to a physical altercation.
Galmer testified that Ross picked up a candleholder, but quickly
returned it to the coffee table when Wonda scolded him. Wonda
corroborated Galmer’s testimony regarding Ross picking up the
candleholder and returning it to the table. Wonda also
testified that Ross did not raise the candleholder or swing it
in defendant’s direction. Although defendant argues that he
feared for his life, alleging that Ross attacked him with a
candleholder, testimony from the State’s witnesses indicated
that Ross was not holding the candleholder when defendant fired
the shots.
The evidence also indicates that Ross was unarmed and
attempting to leave the house when defendant fired the shots.
Fonda testified that she thought the argument had “settled
down,” when she heard a “firecracker” in the living room. She
also testified that she heard Ross say “no, man, you ain’t got
to do that” just before she saw defendant fire the last shot.
Both Wonda and Galmer testified that Ross had nothing in his
hands and was attempting to leave the house through the front
door when defendant fired. Sgt. Earwood testified that Ross was
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lying on the floor in front of the door when law enforcement and
emergency medical services personnel arrived.
The State also presented evidence from the medical examiner
regarding the shape of the bullet trajectory. The fact that the
trajectory was curved instead of straight indicated that Ross
was not directly facing the direction of the shots, but was
turned with his left shoulder rotated forward when he was struck
by the bullets.
When there is conflicting evidence as to which party was
the aggressor, the jury, as the finders of fact, are entitled to
determine which of the parties, if either, is the aggressor.
See State v. Cannon, 341 N.C. 79, 82-83, 459 S.E.2d 238, 241
(1995) (trial court “properly allowed the triers of fact to
determine that [the] defendant was the aggressor” when the
evidence supported an inference that the defendant shot at the
victim as she was trying to leave); see State v. Williams, 100
N.C. App. 567, 572, 397 S.E.2d 364, 367 (1990) (no error in
aggressor instruction when there was evidence that the victim
was unarmed and the defendant shot the victim a second time even
after he pleaded with the defendant not to shoot again).
However, even if Ross were the aggressor, the evidence is
sufficient to support an inference that defendant used excessive
force under the circumstances by firing three shots at Ross, who
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was unarmed and attempting to leave. Since defendant has failed
to convince this Court that the jury would have reached a
different result, he fails to show that the trial court’s
instruction constituted plain error. Therefore, the jury
properly returned a verdict finding defendant guilty of second
degree murder. This argument is overruled.
III. Restitution
Defendant also argues that the trial court erred in
ordering a total of $6,816 in restitution because the amount was
not supported by evidence. We agree.
“[A] defendant’s failure to specifically object to the
trial court’s entry of an award of restitution does not preclude
appellate review.” State v. Mauer, 202 N.C. App. 546, 551, 688
S.E.2d 774, 777-78 (2010). “On appeal, we consider de novo
whether the restitution order was supported by evidence adduced
at trial or at sentencing.” State v. McNeil, 209 N.C. App. 654,
667, 707 S.E.2d 674, 684 (2011) (citation and internal quotation
marks omitted).
“[T]he amount of restitution recommended by the trial court
must be supported by evidence adduced at trial or at
sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d
192, 196 (1995). “[A] restitution worksheet, unsupported by
testimony or documentation, is insufficient to support an order
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of restitution.” Mauer, 202 N.C. App. at 552, 688 S.E.2d at
778. “Unsworn statements of a prosecutor, standing alone,
cannot support an award of restitution.” McNeil, 209 N.C. App.
at 668, 707 S.E.2d at 684.
In the instant case, the State submitted a restitution
worksheet for medical bills and funeral costs totaling $6,816.
However, the State did not present any evidence to show the
total amount of restitution. Defendant neither stipulated nor
objected to the proposed amount of restitution. In addition,
defendant also did not object to the admission of the State’s
restitution worksheet. “Furthermore, the worksheet was an
unsworn statement by a prosecutor and as such does not
constitute evidence and cannot support the amount of restitution
recommended.” McNeil, 209 N.C. App. at 668, 707 S.E.2d at 684
(citation omitted). On appeal, the State concedes that the
record fails to show that the State introduced any evidence to
support the requested amount of restitution.
Since a restitution worksheet alone is insufficient to
support an order of restitution, and since the State concedes
that the record on appeal fails to show that the State
introduced any evidence to support the requested amount of
restitution, we remand to the trial court to reconsider the
amount of restitution. See McNeil, 209 N.C. App. at 668, 707
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S.E.2d at 685 (vacating and remanding the portion of the
judgment ordering restitution where the State failed to present
evidence of the appropriate amount of restitution).
IV. Conclusion
Since there was more than sufficient evidence presented to
indicate that defendant was the aggressor in the encounter with
Ross, the trial court properly instructed and allowed the jury
to determine whether defendant was entitled to the rule of self-
defense. Therefore, defendant’s argument regarding plain error
fails. However, the State failed to provide evidence to support
the amount of restitution. Therefore, we hold that there was no
error in defendant’s trial, but that the matter be remanded to
reconsider the amount of restitution.
No error; remand for reconsideration of restitution.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).