{ "id": 11653744, "name": "STATE OF NORTH CAROLINA v. ALFRED WILLIAM RILEY, JR.", "name_abbreviation": "State v. Riley", "decision_date": "1998-01-06", "docket_number": "No. COA97-147", "first_page": "265", "last_page": "271", "citations": [ { "type": "official", "cite": "128 N.C. App. 265" } ], "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": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "194", "parenthetical": "declining to address errors which are \"unlikely\" to arise again at the defendant's new trial" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "63", "parenthetical": "declining to address errors which are \"unlikely\" to arise again at the defendant's new trial" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "284 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "483, n.2" } ], "opinion_index": 0 }, { "cite": "304 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569290 ], "year": 1981, "pin_cites": [ { "page": "504-05, n.2" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0499-01" ] }, { "cite": "74 L. Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6495875 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1080-01" ] }, { "cite": "293 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "434 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "197", "parenthetical": "citations omitted" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "334 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530846 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "556", "parenthetical": "citations omitted" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0551-01" ] }, { "cite": "446 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "6" }, { "page": "6", "parenthetical": "prosecutor stated, when discussing the number of times the victim had been sexually assaulted, \"[the defendant's] not going to tell you\"" }, { "page": "6" } ], "opinion_index": 0 }, { "cite": "336 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535590 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "758" }, { "page": "758" }, { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0748-01" ] }, { "cite": "456 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "quoting State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994)" } ], "opinion_index": 0 }, { "cite": "340 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790210, 790099, 790235, 790109, 790206 ], "year": 1995, "pin_cites": [ { "parenthetical": "quoting State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0262-05", "/nc/340/0262-04", "/nc/340/0262-01", "/nc/340/0262-02", "/nc/340/0262-03" ] }, { "cite": "454 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "275", "parenthetical": "quoting State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916386 ], "year": 1995, "pin_cites": [ { "page": "39", "parenthetical": "quoting State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0033-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "364 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "351", "parenthetical": "quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570243 ], "year": 1988, "pin_cites": [ { "page": "459", "parenthetical": "quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0454-01" ] } ], "analysis": { "cardinality": 623, "char_count": 13807, "ocr_confidence": 0.765, "pagerank": { "raw": 8.2875477061174e-08, "percentile": 0.47928856083887517 }, "sha256": "e0f1d2017c75156ab44fb2bf35a51df1462bf8dd22bfcfc7161d1c2c0dc18ca6", "simhash": "1:df720070714e0df4", "word_count": 2278 }, "last_updated": "2023-07-14T19:05:25.972365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALFRED WILLIAM RILEY, JR." ], "opinions": [ { "text": "GREENE, Judge.\nAlfred William Riley, Jr. (Defendant) appeals convictions for first degree murder and assault with a deadly weapon inflicting serious injury.\nOn 24 November 1994, Defendant and his brother Anthony Lafontant (Lafontant) went to a crowded Burlington bar and dance club known as the Pac-Jam II Club (Club). Michael Angelo Faucette (Faucette) and Varnodia Tinnin (Tinnin) were wounded as a result of gunshots fired in the Club that night. Tinnin subsequently died of the wounds he had received.\nVarious witnesses testified that, at some point during the evening, Lafontant and Anthony Ray Hurdle (Hurdle) argued. Hurdle\u2019s half-brother, Tinnin, ended the argument by hitting Lafontant over the head with a chair. Lafontant fell to the floor, bleeding from a head wound. Gunshots were then heard in the Club. Either before or after the gunshots were heard, the lights in the Club flashed off for a few seconds.\nA friend of Tmnin\u2019s testified that he saw Defendant firing a gun into the crowd, and that Defendant shot Tinnin as Defendant and Tinnin wrestled. Another friend of Tinnin\u2019s testified that after Lafontant fell to the floor, he saw Defendant standing over Tinnin firing gunshots at Tinnin. Hurdle stated that Defendant shot Tinnin after Tinnin hit Lafontant over the head with a chair.\nDefendant did not testify. Michael Sharod Evans (Evans), a friend of Defendant, testified for the defense that after Tinnin hit Lafontant over the head with a chair, Defendant and Tinnin began wrestling. Evans testified that as he tried to separate Defendant and Tinnin, Defendant \u201ckept repeating . . . that he wasn\u2019t going to let [Tinnin] go because [Tinnin] had that gun.\u201d This testimony, elicited on voir dire, was excluded by the trial court over defense counsel\u2019s objection that it fell under the \u201cexcited utterance\u201d exception to the hearsay rule. Out of the jury\u2019s presence, the trial court stated its reasons for exclusion of Evans\u2019s testimony as follows:\nIf you want that evidence, if you want that evidence in, you\u2019re going to put the defendant on the stand. That\u2019s the only way it\u2019s going to get in under the rules. I think you probably know what the rule is. There\u2019s no way you can get that evidence in through this witness. You have to let the defendant testify to it; and then if you want to put this witness back on to corroborate his testimony, then that\u2019s, that\u2019s fine.\nOther witnesses testified that Tinnin had shown them a gun earlier that night; however, no one else testified that Tinnin had a gun during his struggle with Defendant.\nA defense witness testified that he heard gunfire from more than one gun at the time Faucette and Tinnin were shot. Another defense witness testified that she heard several gunshots, some \u201cloud,\u201d making a \u201cpow, pow, pow\u201d noise, and others that were \u201csofter,\u201d making a \u201cpop, pop, pop\u201d noise.\nTinnin himself was still conscious when he arrived at the hospital. An emergency room nurse testified that she asked Tinnin who had shot him. Tinnin responded \u201cI don\u2019t know.\u201d\nAt the close of all the evidence, Defendant requested the trial court to instruct the jury on defense of another. The trial court refused.\nDuring the State\u2019s closing argument, the following exchange occurred before the jury:\n[Prosecutor:] But they want you to think that there\u2019s some kind of self-defense. In order to have self-defense, you got to get on the witness stand and you got to admit that you ....\n[Defense Counsel:] Objection to any further references to self-defense as the Court is not going to charge on it. Also object to this commentary on whether or not the defendant has chosen to testily. That is improper. [The prosecutor] should know that.\nCOURT: Sustained as to latter part of it. As to self-defense, motion denied. You may continue.\nThe court made no further curative instruction during the State\u2019s closing argument. The trial court did later include, in its jury charge, the following instruction:\nNow, during this trial, members of the jury, the defendant, Mr. Riley, has not testified himself. The law of the State of North Carolina gives him this right and privilege. This same law also assures him that his decision not to testify creates no presumption against him. Therefore, his not testifying during this trial is not to influence your decision in any way in this case.\nThe jury found Defendant guilty of the first degree murder of Tinnin, and assault with a deadly weapon inflicting serious injury to Faucette. Defendant was sentenced to life imprisonment without parole for the murder of Tinnin, to be followed by a minimum of forty-two months and a maximum of sixty months imprisonment for the assault of Faucette.\nThe issues are whether: (I) the trial court improperly excluded defense witness testimony; and (II) the State\u2019s prosecutor improperly commented on Defendant\u2019s decision not to testify.\nI\nHearsay is \u201ca 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.G.S. \u00a7 8C-1, Rule 801(c) (1991). Hearsay is generally inadmissible at trial. N.C.G.S. \u00a7 8C-1, Rule 802. An \u201cexcited utterance,\u201d which is a statement \u201crelating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,\u201d however, is not excluded by the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(2). For a statement to qualify as an excited utterance, there must be \u201c(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)).\nIn this case, Evans\u2019s proffered testimony, that Defendant \u201ckept repeating . . . that he wasn\u2019t going to let [Tinnin] go because [Tinnin] had that gun,\u201d was not offered to prove \u201cthe truth of the matter asserted\u201d (i.e.: that Tinnin had a gun while Defendant and Tinnin were wrestling). Instead, defense counsel contended before the trial court that Evans\u2019s testimony was offered to show Defendant\u2019s \u201cmotivation in refusing ... to let [Tinnin] go\u201d (i.e.: that Defendant believed Tinnin had a gun while they were wrestling). As such, Evans\u2019s testimony was arguably not excludable as hearsay; however, even considering the statement as hearsay, the circumstances show that it would fall under the excited utterance exception to the rule. The evidence revealed that Defendant had just witnessed his brother fall to the floor bleeding after being hit over the head with a chair by Tinnin. In addition, Defendant was wrestling with Tinnin when the statement to Evans was made. These events were \u201csufficiently startling\u201d to suspend reflective thought, and Defendant\u2019s comments occurred while Defendant was under the stress of these events. Defendant\u2019s comments were therefore excited utterances within the meaning of Rule 803(2).\nDuring a voir dire discussion after the trial court sustained the State\u2019s objection to Evans\u2019s testimony, the court stated why it found the Defendant\u2019s excited utterance inadmissible.\nIf you want that evidence, if you want that evidence in, you\u2019re going to -put the defendant on the stand. That\u2019s the only way it\u2019s going to get in under the rules. I think you probably know what the rule is. There\u2019s no way you can get that evidence in through this witness. You have to let the defendant testify to it-, and then if you want to put this witness back on to corroborate his testimony, then that\u2019s, that\u2019s fine.\n(Emphasis added.) The trial court obviously believed that Defendant would have to take the stand and testify on his own behalf in order to have Evans\u2019s testimony as to Defendant\u2019s statements admitted into evidence. This was an erroneous belief. The applicability of the excited utterance exception to the hearsay rule does not depend on the declarant actually testifying in the trial where the excited utterance is offered. 2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 216, at 85, n.344 (4th ed. 1993) [hereinafter 2 Broun on Evidence]; see also N.C.G.S. \u00a7 8C-1, Rule 803 (listing exceptions to the hearsay rule, including the excited utterance exception, which do not require declarant unavailability). This is so even if the declarant is the defendant in a criminal trial and exercises his constitutional right not to testify. 2 Broun on Evidence \u00a7 216, at 85, n.344.\nII\n\u201c[A] criminal defendant may not be compelled to testify, and . . . \u2018any reference by the State regarding his failure to testify is violative of his constitutional right to remain silent.\u2019 \u201d State v. Thompson, 118 N.C. App. 33, 39, 454 S.E.2d 271, 275, disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995) (quoting State v. Baymon, 336 N.C. 748, 758, 446 S.E.2d 1, 6 (1994)). Our courts have consistently held that where the State comments on the defendant\u2019s failure to testify, \u201cthe error may be cured by a withdrawal of the remark or by a statement from the court that it was improper, followed by an instruction to the jury not to consider the failure of the accused to offer himself as a witness.\u201d State v. Reid, 334 N.C. 551, 556, 434 S.E.2d 193, 197 (1993) (citations omitted). The \u201csubsequent inclusion in the jury charge of an instruction on a defendant\u2019s right not to testify\u201d does not, by itself, cure such comments. Baymon, 336 N.C. at 758, 446 S.E.2d at 6 (prosecutor stated, when discussing the number of times the victim had been sexually assaulted, \u201c[the defendant\u2019s] not going to tell you\u201d). If the trial court does not give a curative instruction to the jury immediately following prosecutor comments before the jury concerning the defendant\u2019s failure to testify, \u201cthe prejudicial effect of such an uncured, improper reference mandates the granting of a new trial,\u201d Reid, 334 N.C. at 556, 434 S.E.2d at 197, unless the State can show the error was harmless beyond a reasonable doubt, Baymon, 336 N.C. at 758, 446 S.E.2d at 6; N.C.G.S. \u00a7 15A-1443(b). If the State shows overwhelming evidence of the defendant\u2019s guilt, this may render such comments harmless beyond a reasonable doubt. State v. Brown, 306 N.C. 151, 164, 293 S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982).\nIn this case, the prosecuting attorney argued before the jury: \u201cIn order to have self-defense, you got to get on the witness stand and you got to admit that you....\u201d When defense counsel objected on two grounds to the comments of the prosecutor, the trial court\u2019s sole curative instruction was: \u201cSustained as to latter part of it.\u201d The trial court gave no further curative instruction at that time. Although the trial court later (after the closing arguments of counsel) included within the jury charge that the defendant had a right not to testify and that his failure to testify should not influence them, this instruction does not cure the error committed earlier (during the State\u2019s closing argument).\nThe State has not shown that this error was harmless beyond a reasonable doubt. Although there is testimony from several witnesses that Defendant fired the shots that injured Faucette and killed Tinnin, the Defendant\u2019s witnesses presented evidence tending to show that someone other than Defendant also fired shots during the struggle. In addition, Tinnin himself did not know who shot him. This evidence does not overwhelmingly show that Defendant is guilty of first degree murder. The prosecutor\u2019s comments concerning Defendant\u2019s failure to testify, not timely corrected by the trial court, therefore require a new trial.\nDefendant has raised other arguments on appeal that are mooted by our grant of a new trial and we therefore do not address them. See State v. Fearing, 304 N.C. 499, 504-05, n.2, 284 S.E.2d 479, 483, n.2 (1981). Cf. State v. Collins, 334 N.C. 54, 63, 431 S.E.2d 188, 194 (1993) (declining to address errors which are \u201cunlikely\u201d to arise again at the defendant\u2019s new trial).\nNew trial.\nChief Judge ARNOLD and Judge McGEE concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General John H. Watters, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Benjamin Sendor, for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALFRED WILLIAM RILEY, JR.\nNo. COA97-147\n(Filed 6 January 1998)\n1. Evidence and Witnesses \u00a7 945 (NCI4th)\u2014 statement by defendant \u2014 excited utterance\nA murder defendant\u2019s statement, made while he was wrestling with the victim after the victim had hit defendant\u2019s brother over the head with a chair, that he wasn\u2019t going to let the victim go because the victim had a gun, if hearsay, was admissible under the excited utterance exception to the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(2).\n2. Evidence and Witnesses \u00a7 929 (NCI4th)\u2014 excited utterance \u2014 testimony by declarant not required\nThe applicability of the excited utterance exception to the hearsay rule does not depend on the declarant actually testifying in the trial in which the excited utterance is offered.\n3. Criminal Law \u00a7 433 (NCI4th Rev.)\u2014 closing argument\u2014 comment on defendant\u2019s failure to testify \u2014 error not cured\nThe prosecutor\u2019s statement during closing argument in a murder trial that \u201cIn order to have self-defense, you got to get on the witness stand and you got to admit that you\u201d constituted an improper comment on defendant\u2019s failure to testify. This error was not cured by the trial court\u2019s inclusion in the jury charge of an instruction on defendant\u2019s right not to testify, and the error was not harmless where the evidence of defendant\u2019s guilt was not overwhelming.\nAppeal by defendant from judgments dated 23 February 1996 by Judge Robert L. Farmer in Alamance County Superior Court. Heard in the Court of Appeals 27 October 1997.\nAttorney General Michael F. Easley, by Special Deputy Attorney General John H. Watters, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Benjamin Sendor, for the defendant appellant." }, "file_name": "0265-01", "first_page_order": 301, "last_page_order": 307 }