State v. Ransome

Justice Whichard

dissenting.

Assuming arguendo that the uncommunicated threats were admissible, I nonetheless disagree with the majority’s holding that their exclusion prejudiced defendant to such an extent that he is entitled to a new trial.

It is the rule in this jurisdiction that not every erroneous ruling on the admissibility of evidence will result in a new trial being ordered. State v. Galloway, 304 N.C. 485, 496, 284 S.E.2d 509, 514 (1981). To warrant a new trial, an appellant must show not only error, but also that “there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.” State v. Martin, 322 N.C. 229, 238-39, 367 S.E.2d 618, 624 (1988); accord N.C.G.S. § 15A-1443(a) (1988). A new trial should not be granted where evidence improperly excluded would not, if included, have-changed the outcome of the trial. “[W]hether the [trial court’s] actions amount to reversible error is a question to be considered in light of all of the circumstances, and the burden is on the defendant to show prejudice.” State v. Heath, 77 N.C. App. 264, 271, 335 S.E.2d 350, 355 (1985), rev’d on other grounds, 316 N.C. 337, 341 S.E.2d 565 (1986).

Here, the State’s evidence tended to show that defendant entered the Hardee’s restaurant waving a pistol at Marcel and Kelvin Johnson, who were sitting in booths. Marcel Johnson and Antonio Jones both told defendant to put the pistol away. The restaurant manager also came over and attempted to calm defendant. Despite their combined efforts, defendant continued to brandish the weapon and behave in a threatening manner. When Marcel Johnson stood up and walked toward the door, defendant shot him. After Marcel had fallen, defend*855ant fired a second, fatal shot at his back. Kelvin Johnson tried to run, but defendant shot him in the chest and then fired another shot. The paramedics and police officers who went to the crime scene found no weapons on either victim. All of the State’s witnesses testified that the only person they had seen with a weapon was defendant and that the victims appeared to have done nothing to provoke defendant at the time of the shootings. Other than defendant’s own self-serving testimony, no evidence was presented to the contrary.

Additionally, evidence substantively similar to that excluded was introduced through defendant’s own testimony. As the majority notes, defendant testified about statements Marcel Johnson made to him in front of the Whitley home the afternoon of the murders. Defendant testified that Marcel Johnson said: “You a punk. I been wanting you anyway. I ain’t never really liked you anyway.” Defendant also testified that when he retreated to his car, Johnson ran over, kicked the door of the car, and said, “I’m going to get you.”

As the majority concedes, the exclusion of testimony cannot be held prejudicial when the same witness is thereafter allowed to testify to the same import, or the evidence is thereafter admitted, or the party offering the evidence has the full benefit of the fact sought to be established thereby by other evidence. State v. Edmondson, 283 N.C. 533, 538-39, 196 S.E.2d 505, 508 (1973). Defendant’s own testimony about the threats Marcel communicated to him the very afternoon of the murders gave defendant the full benefit of presenting evidence to the jury supporting his claim that Marcel was the aggressor. Thus, because defendant, through his own testimony, received the full benefit of evidence that Marcel was the aggressor, the exclusion of the testimony of Tonya Sumlin and Mark Johnson concerning Marcel Johnson’s uncommunicated threats was not prejudicial.

In view of the totality of the evidence presented, I cannot conclude that defendant carried his burden of proving that had the error in question not been committed, a different result would have been reached at trial. I therefore respectfully dissent.

Justices PARKER and LAKE join in this dissenting opinion.