{ "id": 11869579, "name": "STATE OF NORTH CAROLINA v. GARY MARICE SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1997-03-04", "docket_number": "No. COA96-341", "first_page": "562", "last_page": "567", "citations": [ { "type": "official", "cite": "125 N.C. App. 562" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "308 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765149 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0623-01" ] }, { "cite": "301 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "921" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520004 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0001-01" ] }, { "cite": "331 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526182 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0488-01" ] }, { "cite": "364 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "88 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358916 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0659-01" ] }, { "cite": "353 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743860 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0152-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-2.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "251 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "296 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568184 ], "year": 1979, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0559-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "420 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "667", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "332 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504371 ], "year": 1992, "pin_cites": [ { "page": "360-61", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0351-01" ] }, { "cite": "440 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "784", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "335 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531405 ], "year": 1994, "pin_cites": [ { "page": "661", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0647-01" ] } ], "analysis": { "cardinality": 587, "char_count": 12468, "ocr_confidence": 0.758, "pagerank": { "raw": 6.041502013137158e-08, "percentile": 0.37413243011465147 }, "sha256": "8dc44f1215db9e41df69c1b7f933a76288959236d6681e8984a3c32dbab2aa4d", "simhash": "1:0e578dc676371910", "word_count": 2078 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY MARICE SMITH" ], "opinions": [ { "text": "WYNN, Judge.\nHaving been charged with the first degree murder of Cleveland Barden, Jr. on 7 November 1994, defendant Gary Marice Smith pled not guilty at his trial on 16 August 1995 in Columbus County Superior Court. As proof of his guilt, the State presented evidence which we summarize as follows:\nOn 6 November 1994, Floyd Baldwin, the deceased\u2019s brother, saw defendant go into Barden\u2019s trailer in Whiteville seeking from Barden the repayment of a $350 debt due to him. After hearing cursing and the sounds of a struggle, Baldwin saw Barden throw defendant out the front door of the trailer.\nThe next day, Barden asked Baldwin to accompany him across the street to talk to defendant at a used car lot. On their arrival at the lot, defendant jumped up from between two cars, walked toward Barden with his right hand behind his back, held up his left hand and told Barden not to walk toward him. Barden held up both his hands, lifted his shirt, and took off his black leather hat which he held in his left hand, waving it back and forth. As he continued walking toward defendant, Barden told defendant that he did not have a gun. Defendant shot Barden when they were an arm\u2019s length apart.\nDefendant agreed that he went to Barden\u2019s trailer on 6 November 1994 and to the car lot the next day; but in his defense, he presented a different version of the events which we summarize as follows:\nInside the trailer, Barden jumped on defendant and threw him out the front door. The next day, he saw Baldwin and Barden walking across the street toward the car lot. Defendant knew that Barden was a drug dealer who carried a gun with him nearly everywhere he went. He asked a car lot employee to tell them to leave him alone. When the men continued to approach the car lot, defendant told the men that he did not want any trouble and showed them a gun that he kept in his car. Defendant fearing that Barden and Baldwin were going to kill him, asked the men to leave, but Barden kept walking toward him while holding his hands up. When Barden suddenly lunged at him, defendant fired the gun.\nAt the close of all the evidence, the jury returned a verdict of guilty of voluntary manslaughter. At sentencing, the trial court made no written findings of aggravation or mitigation, but applied the firearm enhancement provision of the Structured Sentencing Act to impose an active sentence of 85 to 120 months. Defendant appeals from his conviction and sentence.\nThe issues on appeal are: (I) Whether the trial court committed prejudicial error by allowing the prosecutor to introduce inadmissible hearsay into evidence, and (II) Whether the trial court improperly applied the firearm enhancement provision to increase defendant\u2019s sentence under the Structured Sentencing Act. We find no prejudicial error in the determination of defendant\u2019s guilt, but find error in the application of the enhancement provision and therefore remand for resentencing.\nI.\nOn the merits of his conviction, defendant objects to the trial court permitting Floyd Baldwin to testify that the deceased wanted to talk to defendant prior to the shooting \u201cto find out what reason [defendant] wanted to shoot him.\u201d Defendant also objects to the testimony of Don Baldwin, Floyd Baldwin\u2019s brother, who testified he confronted defendant prior to the shooting and told him that he \u201cheard that [defendant] told someone that he was going to shoot up the [victim\u2019s] trailer house.\u201d Defendant contends that the trial court committed prejudicial error by allowing the prosecutor to bring before the jury inadmissible hearsay that defendant had declared that he intended to shoot Barden, thereby violating his constitutional right to confront witnesses. For the following reasons, we find that defendant\u2019s objections do not warrant the award of a new trial on the question of his guilt.\nHearsay \u201cis 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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801 (1992). \u201cWhen evidence of a statement by someone other than the testifying witness is offered for a purpose other than to prove the truth of the matter asserted, the evidence is not hearsay.\u201d State v. Reid, 335 N.C. 647, 661, 440 S.E.2d 776, 784 (1994) (citation omitted).\nIn the instant case, Floyd Baldwin\u2019s testimony does not qualify as hearsay because it was offered to explain the victim\u2019s motivation for going across the street to talk to defendant, not to prove that defendant threatened to kill him.\nOn the other hand, Don Baldwin\u2019s testimony clearly did contain hearsay and the State does not argue in its brief nor is there evidence in the record that it was admissible under any of the hearsay rule\u2019s exceptions. Therefore, the trial court erred by admitting that testimony into evidence, but this error was harmless.\nIn considering whether a violation of a defendant\u2019s constitutional right (confrontation clause) constitutes prejudicial error, the issue is whether the error was harmless beyond a reasonable doubt. State v. Jolly, 332 N.C. 351, 360-61, 420 S.E.2d 661, 667 (1992) (citation omitted). In the instant case, the evidence complained of was apparently offered to establish a specific intent to harm or kill the victim after premeditation and deliberation. The statement could have provided some evidence of malice as well. Specific intent, premeditation and malice are elements required to establish first or second degree murder. N.C. Gen. Stat. \u00a7 14-17 (1993). The defendant, however, was found guilty of voluntary manslaughter, which does not require a finding of malice or premeditation. State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979). It follows that the admission of Don Baldwin\u2019s testimony was harmless beyond a reasonable doubt in the determination of defendant\u2019s guilt on the charge of voluntary manslaughter.\nNevertheless, defendant argues that if a juror believed the inadmissible testimony that defendant had threatened to shoot Barden, then that juror would have had much more of a reason to believe that defendant, although not acting with malice, was in a state of mind which led him to respond unreasonably to the confrontation. We disagree.\nThe record shows that the victim attacked defendant the day before.the shooting. Defendant knew the victim was a drug dealer and that he usually carried a gun. Finally, the victim and his brother were about to confront defendant in the car lot and defendant testified that he feared for his life. This evidence shows that defendant was in a state of mind which led him to respond unreasonably to the situation. In the face of this direct evidence supporting this element of his conviction, we find that the error in admitting Don Baldwin\u2019s testimony was harmless beyond a reasonable doubt.\nII.\nFollowing the return of the jury\u2019s verdict of guilty of voluntary manslaughter, the trial court noted that the offense was a Class E felony, and the parties agreed that because defendant had no points for qualifying prior convictions, he would be subject to a prior record level of Level I under N.C. Gen. Stat. \u00a7 15A-1340.14 of the Structured Sentencing Act. The prosecutor then asked the court to \u201cmake a finding that the Defendant was armed with a deadly weapon at the time of the crime, since use of a deadly weapon is not a necessary element of voluntary manslaughter.\u201d The prosecutor asserted that such a finding would bring into play the sentencing enhancement worked by N.C. Gen. Stat. \u00a7 14-2.2 and \u00a7 15A-1340.16A which essentially state:\nIf a person is convicted of a Class A, Bl, B2, C, D, or E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months.\nN.C.G.S. \u00a7 15A-1340.16A(a).\nBoth statutes make their enhancement provisions inapplicable in cases in which \u201cevidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying . . . felony.\u201d N.C.G.S. \u00a7 14-2.2(b)(2); N.C.G.S. \u00a7 15A-1340.16A(b)(2). However, in the instant case, the trial court apparently agreed with the prosecutor\u2019s contention that the statutes\u2019 applicability turned on whether use or display of a firearm is actually an element of the offense. We disagree.\nUnder these statutes, the pertinent question is whether the use of a firearm is necessary \u201cto prove an element,\u201d not whether it is an actual element. The law is well-settled that when use of firearm is used to prove an element of the underlying offense, it cannot later be used to enhance the punishment for the same offense. See State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987); State v. McKinney, 88 N.C. App. 659, 364 S.E.2d 743 (1988); State v. Heidmous, 75 N.C. App. 488, 331 S.E.2d 200 (1985); State v. Green, 62 N.C. App. 1, 301 S.E.2d 920, modified on other grounds, 309 N.C. 623, 308 S.E.2d 326 (1983). For example, in Green, this Court held that under the Fair Sentencing Act, the defendant\u2019s use of a deadly weapon was improperly used as an aggravating factor to lengthen the sentence for a voluntary manslaughter conviction. The Court reasoned:\nThe unlawful killing proven here was accomplished by shooting the victim with a gun, a deadly weapon. Evidence of use of the deadly weapon to shoot the victim was thus necessary to prove the unlawful killing, which was the essence of the offense.\n62 N.C. App. at 4, 301 S.E.2d at 921.\nIn the instant case, the State contends that it could have proven that defendant was guilty of manslaughter without ever mentioning the gun, therefore, it was not necessary to prove an element of the offense. We disagree. The trial court specifically instructed the jury that in order to find defendant guilty of manslaughter, it had to find, inter alia, that he intentionally killed Barden with a deadly weapon. Therefore, as in Green, the possession arid discharge of the gun to shoot the victim was necessary to prove the unlawful killing, which was the essence of the offense of voluntary manslaughter.\nIn sum, we find that defendant received a trial free of prejudicial error but remand for resentencing.\nChief Judge ARNOLD and Judge COZORT concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Hal F. Askins, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY MARICE SMITH\nNo. COA96-341\n(Filed 4 March 1997)\n1. Evidence and Witnesses \u00a7 871 (NCI4th)\u2014 victim\u2019s motivation \u2014 testimony not hearsay\nTestimony by a shooting victim\u2019s brother that the victim wanted to talk with defendant prior to the shooting \u201cto find out what reason [defendant] wanted to shoot him\u201d was not inadmissible hearsay because it was offered to explain the victim\u2019s motivation for going across the street to talk to defendant and not to prove that defendant threatened to kill him.\nAm Jur 2d, Evidence \u00a7\u00a7 664, 667.\n2. Evidence and Witnesses \u00a7 906 (NCI4th)\u2014 hearsay testimony \u2014 admission to show premeditation and deliberation \u2014 conviction of voluntary manslaughter \u2014 harmless error\nThe admission of hearsay testimony by a shooting victim\u2019s relative that he told defendant prior to the shooting that he \u201cheard that [defendant] told someone that he was going to shoot up the [victim\u2019s] trailer house\u201d was harmless error where the testimony was admitted to establish a specific intent to kill the victim after premeditation and deliberation, and defendant was convicted of voluntary manslaughter, which does not require a finding of malice and deliberation.\nAm Jur 2d, Criminal Law \u00a7 908; Evidence \u00a7\u00a7 659, 661.\n3. Criminal Law \u00a7 1096 (NCI4th Rev.)\u2014 voluntary manslaughter \u2014 use of firearm \u2014 enhancement of sentence improper\nThe trial court erred in enhancing the defendant\u2019s sentence for voluntary manslaughter, a Class E felony, because he was armed with a firearm at the time he committed the offense, even though use of the firearm was not an element of voluntary manslaughter, since defendant\u2019s use of the firearm was used to prove an element of the offense. N.C.G.S. \u00a7\u00a7 14-2.2, 15A-1340.16A(a).\nAm Jur 2d, Criminal Law \u00a7\u00a7 537, 538, 599.\nAppeal by defendant from judgment entered 12 September 1995 by Judge Narley L. Cashwell in Columbus County Superior Court. Heard in the Court of Appeals 13 January 1997.\nMichael F. Easley, Attorney General, by Hal F. Askins, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0562-01", "first_page_order": 600, "last_page_order": 605 }