IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-885
Filed: 21 May 2019
New Hanover County, Nos. 17 CRS 54155-56
STATE OF NORTH CAROLINA
v.
KOLTON JAMES THOMPSON, Defendant.
Appeal by defendant from judgments entered 5 April 2018 by Judge Richard
Kent Harrell in New Hanover County Superior Court. Heard in the Court of Appeals
27 March 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General John P.
Barkley, for the State.
James F. Hedgpeth, Jr., for defendant-appellant.
ARROWOOD, Judge.
Kolton James Thompson (“defendant”) appeals from judgments entered on his
convictions for assault with a deadly weapon with intent to kill inflicting serious
injury and possession of a firearm by a felon. For the reasons stated herein, we find
no error in part, and dismiss in part.
I. Background
A New Hanover County Grand Jury indicted defendant for assault with a
deadly weapon with intent to kill inflicting serious injury and possession of a firearm
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Opinion of the Court
by a felon on 31 July 2017. The matter came on for trial on 4 April 2018 in New
Hanover County Superior Court, the Honorable Richard Kent Harrell presiding. The
State’s evidence tended to show as follows.
On 7 May 2017, the Wilmington Police Department responded to a report that
a shooting had taken place at a nightclub called the Sportsman’s Club. One of the
responding officers, Officer Wade Rummings, testified that “[a] lot of people” were
“hanging around the parking lot, walking out of the club[,]” but “[e]veryone said they
didn’t see or hear anything.” However, when he canvassed the scene, Officer
Rummings “located a spent shell casing on the sidewalk leading north to the back
parking lot.” He also found a shell about five to ten feet from the shell casing.
Eventually, the officers were able to determine the victim, Angeleos Williams, had
been transported to the hospital to be treated for “a gunshot wound to his leg or
thigh.”
The officers obtained a copy of the nightclub’s security video that recorded the
shooting. The video depicts “[a] subject[ ] walking . . . down the northwest side of the
building towards the front of the . . . business. And then, again, shortly thereafter
with the victim, walking alongside of the victim, and then the shooting occurred.”
Based on the video, Detective Lonnie Waddell (“Detective Waddell”) identified the
shooter as defendant. Detective Jeremy David Barsaleau (“Detective Barsaleau”) and
one other detective used this information to create a photo lineup that included
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Opinion of the Court
defendant. The lineup was shown to the victim, who did not confirm the shooter’s
identity. However, Detective Barsaleau testified the victim’s demeanor “appeared [as
though] he wanted not to really identify the suspect, that -- that he knew who he was,
but has had personal dealings with a brother of his in the past that had been killed
because he had snitched and didn’t want to become part of that as well.”
Based upon the videotape evidence, defendant was arrested on 9 June 2017.
After his arrest, he underwent a custodial interrogation with Detective Barsaleau, a
recording of which was entered into evidence at trial. During the interview,
defendant acknowledged being present at the club the night of the shooting, but
denied shooting the victim. When Detective Barsaleau showed defendant still photos
of the surveillance video, he “dropped his head and basically said he was done.”
The jury found defendant guilty of both charges. The trial court imposed an
active sentence of 110 to 114 months for the offense of assault with a deadly weapon
with intent to kill inflicting serious injury, and 19 to 32 months for the offense of
possession of a firearm by a felon, to run consecutively.
Defendant appeals.
II. Discussion
On appeal, defendant contends the trial court committed plain error by
allowing the State: (1) to present inadmissible character evidence; and (2) to elicit
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improper testimony and make improper comments during closing argument related
to defendant’s exercise of his right to remain silent.
A. Character Evidence
Defendant argues the trial court plainly erred by allowing the State to present
character evidence of criminal conduct that was inadmissible under Rule 404(b) of
the North Carolina Rules of Evidence, including evidence defendant had a history of
gang membership, narcotics activity, and witness intimidation. We review for plain
error because defendant did not object on this basis at trial.
In criminal cases, an issue that was not preserved
by objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C.R. App. P. 10(a)(4) (2019).
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723
S.E.2d 326, 334 (2012) (citation omitted). For our Court to find “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.” Id. (citations and internal quotation marks omitted); see also State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (explaining plain error arises
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when an error is “so basic, so prejudicial, so lacking in its elements that justice cannot
have been done[.]” (citation and quotation marks omitted)).
Rule 404(b) of the North Carolina Rules of Evidence provides, in relevant part,
[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment, or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017). Significantly, “the Rule 404(b) list of other
purposes is nonexclusive,” as “Rule 404(b) is a rule of inclusion of relevant evidence
with but one exception, that is, the evidence must be excluded if its only probative
value is to show that [the] defendant has the propensity or disposition to commit an
offense of the nature of the crime charged.” State v. Weldon, __ N.C. App. __, __, 811
S.E.2d 683, 689-90 (2018) (citations and internal quotation marks omitted) (emphasis
in original).
i. Narcotics
Defendant first argues the trial court erred when it failed to exclude Detective
Waddell’s testimony that he knew defendant and “had . . . direct observations of [ ]
defendant as an interest in part of [his] job” “around the end of 2013, 2014 time
period” when he “was working vice/narcotics, and it was a narcotic-related case”
pursuant to Rule 404(b).
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Defendant supports his argument with State v. Weldon. In Weldon, an officer
testified that he had seen the defendant when he “was dealing with a complaint about
[a] house on Blatent Court. It was a drug complaint that I got from the citizens.
While investigating that I saw the defendant come out of the house and get into the
vehicle.” Weldon, __ N.C. App. at __, 811 S.E.2d at 689 (alteration in original).
Although the Court determined the “challenged portions of [the officer’s] testimony
were relevant in that they established [his] familiarity with defendant’s
appearance[,]” it also determined that the inclusion of the detail that the officer was
investigating “a drug complaint” did not add to the reliability of the officer’s
identification of defendant, and was thus inadmissible under Rule 404(b). Id. at __,
811 S.E.2d at 690. Nonetheless, Weldon determined this error did not constitute
plain error because:
[n]otwithstanding the character implications of the
admission of testimony that defendant was seen exiting a
house that was being investigated in response to “a drug
complaint,” the State presented the testimony of three
witnesses familiar with defendant who identified him as
the individual shooting a weapon in the surveillance video.
This testimony was strong enough to have supported the
jury’s verdict on its own.
Id.
Similarly, here, the challenged testimony was relevant to establish Detective
Waddell’s familiarity with defendant’s appearance, providing the basis for his
identification of defendant as the shooter in the surveillance video. However, the
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Opinion of the Court
testimony also contains the detail that Detective Waddell encountered defendant
related to a narcotics case, which has negative character implications, but does not
add to the reliability of the detective’s identification of defendant. Therefore,
although the testimony admitted tending to show Detective Waddell was familiar
with defendant’s appearance was admissible under Rule 404(b) as relevant for a
purpose other than to establish defendant’s character, the detail that Detective
Waddell encountered defendant related to a narcotics case constituted error.
Even so, this error does not constitute plain error. The State presented
surveillance video of an individual shooting the victim, and a witness familiar with
defendant, Detective Waddell, identified him as the individual in the video. As in
Weldon, this evidence is sufficient to support the jury’s verdict on its own. Thus,
defendant cannot establish plain error because he cannot show the error at issue had
a probable impact on the jury’s finding that the defendant was guilty.
ii. Gang Membership
Next, defendant argues the trial court plainly erred by admitting improper
character evidence of criminal conduct under Rule 404(b) of defendant’s purported
gang membership. This argument challenges the following excerpt of Detective
Waddell’s testimony:
[DETECTIVE WADDELL]: Immediately after I saw [the
surveillance video], I -- I said, “That’s Kolton Thompson.”
[THE STATE]: So it was immediate?
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Opinion of the Court
[DETECTIVE WADDELL]: Yes, sir.
[THE STATE]: And -- and why was it so immediate for
you?
[DETECTIVE WADDELL]: Because the multiple times
I’ve dealt with [defendant], of me knowing him, and it is
my job to know him by who’s related to any type of gang
activity in the city.
[DEFENDANT]: Objection.
THE COURT: Sustained.
As evidenced by the transcript, defendant objected to the statement regarding gang
activity at trial, and the trial court sustained the objection. Therefore, the trial court
corrected any error, and we need not address this allegation of error on appeal.
iii. Witness Intimidation
Defendant also challenges the following testimony of Detective Barsaleau,
which defendant argues constitutes inadmissible character evidence based on his
intimidation of the victim.
[THE STATE]: What did you do after speaking with
Detective Waddell and looking at that [surveillance] video?
[DETECTIVE BARSALEAU]: I put a photo lineup
together and went out to the hospital with another
detective, who wasn’t familiar with the case, showed the
victim -- the other victim -- or, excuse me -- the other
detective showed the victim the photo lineup out at the
hospital.
[THE STATE]: And after doing that, did you have any
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Opinion of the Court
success in further identifying --
[DETECTIVE BARSALEAU]: No --
[THE STATE]: -- who the shooter was?
[DETECTIVE BARSALEAU]: -- I was not.
[THE STATE]: Do -- how would you describe Mr. Williams’
demeanor as you were interacting with him?
[DETECTIVE BARSALEAU]: He appeared he wanted not
to really identify the suspect, that -- that he knew who he
was, but has had personal dealings with a brother of his in
the past that had been killed because he had snitched and
didn’t want to become part of that as well.
[THE STATE]: On May 23rd, did you again meet with the
victim and kind of run into the same behavior that you had
done -- done before?
[DETECTIVE BARSALEAU]: Yes, sir.
Assuming arguendo this testimony suggested defendant intimidated the
victim, the testimony was not admitted in violation of Rule 404(b) because it was
relevant as an explanation for why the victim did not identify the shooter, and for
why the victim did not testify at trial. Therefore, it was admissible for a purpose
other than its negative character implications. As a result, we hold the trial court
did not plainly err by admitting this testimony into evidence.
B. Right to Remain Silent
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Opinion of the Court
Defendant argues the trial court plainly erred by allowing the prosecutor: (1)
to elicit improper testimony, and (2) to make improper comments during closing
argument related to defendant’s exercise of his right to remain silent.
i. Detective Barsaleau’s Testimony
We first address defendant’s allegation that the trial court plainly erred by
allowing the prosecutor to elicit improper testimony from Detective Barsaleau
concerning defendant’s constitutional right to remain silent.
Defendant did not object to the admission of this testimony; therefore, he did
not preserve a constitutional question which would have entitled him to have the
error examined under the constitutional harmless beyond a reasonable doubt
framework. However, a defendant who argues that testimony to which he did not
object violated his constitutional rights is entitled to have the admission of this
testimony reviewed for plain error. State v. Moore, 366 N.C. 100, 105-106, 726 S.E.2d
168, 173 (2012) (citing N.C.R. App. P. 10(a)(4) (“In criminal cases, an issue that was
not preserved by objection . . . may be made the basis of an issue presented on appeal
when the judicial action questioned is specifically and distinctly contended to amount
to plain error.”)) (citations omitted).
To establish the trial court plainly erred, 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
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error had a probable impact on the jury’s finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and
internal quotation marks omitted). “In order to ensure plain error is reserved for the
exceptional case, . . . plain error requires a defendant to show that the prejudicial
error was one that seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” State v. Grice, 367 N.C. 753, 764, 767 S.E.2d 312, 321 (2015)
(citation and internal quotation marks omitted).
We afford the right to silence, enshrined in the Fifth Amendment of the
Constitution of the United States, a “liberal construction in favor of the right it was
intended to secure.” Moore, 366 N.C. at 105, 726 S.E.2d at 172-73 (citations and
internal quotation marks omitted). Thus, “[e]xcept in certain limited circumstances,
any comment upon the exercise of [the right to remain silent], nothing else appearing,
[is] impermissible. An improper adverse inference of guilt from a defendant’s exercise
of his right to remain silent cannot be made, regardless of who comments on it.” Id.
at 105, 726 S.E.2d at 172 (citations and internal quotation marks omitted)
(alterations in original).
Detective Barsaleau testified as follows concerning his interview with
defendant:
[THE STATE]: Can you describe after you read him his
rights what you said and how he answered?
[DETECTIVE BARSALEAU]: More or less he said that,
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Opinion of the Court
yes, he was at the Sportsman’s Club that night for a
birthday party of a friend, but denied to the shooting. I told
him that we had the whole thing on video from the
Sportsman’s Club. He asked to see the video. I told him I -
- I couldn’t show him the video, but to hang tight where I
came back with some still shots from the video. I showed
him the still shot from the video, and he just dropped his
head and basically said he was done.
....
[THE STATE]: So these were the [still photos] where you
said after you showed them to the defendant, he ultimately
put his head down and said that he was done talking?
[DETECTIVE BARSALEAU]: Yes, sir.
[THE STATE]: Your Honor, permission to publish
defendant’s interview to the jury.
....
THE COURT: You can publish that to the jury.
The interview of the defendant that was published to the jury showed that, after
Detective Barsaleau read defendant his Miranda rights and showed him the
photographs, defendant twice stated, “I don’t want to talk” while being interrogated.
Assuming arguendo the prosecutor elicited improper evidence concerning
defendant’s invocation of his right to silence, the testimony did not constitute plain
error. To assess plain error in this context, our Court considers the following factors,
none of which are determinative:
(1) whether the prosecutor directly elicited the improper
testimony or explicitly made an improper comment; (2)
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Opinion of the Court
whether the record contained substantial evidence of the
defendant’s guilt; (3) whether the defendant’s credibility
was successfully attacked in other ways in addition to the
impermissible comment upon his or her decision to exercise
his or her constitutional right to remain silent; and (4) the
extent to which the prosecutor emphasized or capitalized
on the improper testimony by, for example, engaging in
extensive cross-examination concerning the defendant’s
post-arrest silence or attacking the defendant’s credibility
in closing argument based on his decision to refrain from
making a statement to investigating officers.
State v. Richardson, 226 N.C. App. 292, 302, 741 S.E.2d 434, 442 (2013) (footnote
omitted).
Here, the prosecutor directly elicited the testimony. Further, the prosecutor
impermissibly used this evidence in closing argument to attack defendant’s
credibility based on his decision to invoke his constitutional right to silence.
Defendant’s credibility was not otherwise successfully attacked. These factors weigh
in favor of a plain error determination; however, we must also consider the
substantial evidence of defendant’s guilt in the record. See id.
In the instant case, the evidence tends to show defendant acknowledged being
at the club the night of the shooting. Law enforcement obtained a copy of security
video footage from the club that showed the shooting take place. As Detective
Barsaleau testified, the video showed: “[a] subject[ ] walking . . . down the northwest
side of the building towards the front of the . . . business. And then, again, shortly
thereafter with the victim, walking alongside of the victim, and then the shooting
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Opinion of the Court
occurred.” Detective Waddell was able to immediately identify the subject in the
video as defendant. Both the video and still shots from the video were admitted into
evidence. The strength of this evidence weighs strongly against a plain error
determination.
In weighing the Richardson factors it is the duty of this Court to weigh all the
factors. No one of the four Richardson considerations is determinative. In addition,
the fact that three factors support the defendant and only one factor supports the
State is also not determinative. Where, as in the situation we have here, there is
such strong uncontroverted evidence against defendant, the strength of the evidence
may still support a determination of no plain error even though all the other factors
weigh in defendant’s favor. After an examination of the entire record, we hold that,
given the video surveillance evidence described herein, the error alleged did not
constitute plain error.
ii. Closing Argument
We now turn to defendant’s argument that the trial court plainly erred by
allowing the prosecutor to make improper comments during closing argument related
to defendant’s exercise of his right to remain silent. Specifically, the prosecutor
referenced defendant’s decision to remain silent after seeing the stills of the
surveillance video, and asked the jury,
The defendant puts his head down after that, didn’t he? He
put his head down on the table because he knew he was
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done. He even said, “I’m done talking.”
At that point, the game was over for him. What does he do
after that? Now, he has a perfect right not to say anything,
not to be interviewed, not to testify, and every defendant
enjoys that right in our court system.
But if you were in an interview room and a detective was
accusing you of committing this shooting and you didn’t do
it, how would you react? Would you put your head down
and go to sleep?
However, we are unable to review this issue on appeal.
Our Supreme Court has held that constitutional arguments regarding closing
arguments which are not objected to at trial are waived. State v. Phillips, 365 N.C.
103, 135, 711 S.E.2d 122, 145 (2011). Although the Supreme Court declined to review
the constitutional argument in Phillips because of defendant’s failure to object, the
Court did review for violations of N.C. Gen. Stat. § 15A-1230 (2017) in this context.
Id. Here, unlike the defendant in Phillips, defendant did not make an argument
under N.C. Gen. Stat. § 15A-1230 on appeal. Accordingly, we cannot review on this
basis. Thus, defendant failed to preserve this argument for appellate review. We
decline to review this argument for the first time on appeal.
III. Conclusion
For the forgoing reasons, we find no error in part, and dismiss defendant’s
argument that the trial court plainly erred by allowing the prosecutor to make
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improper comments on his exercise of his right to remain silent during closing
argument.
NO ERROR IN PART; DISMISSED IN PART.
Judges BRYANT and DILLON concur.
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