{ "id": 9080874, "name": "STATE OF NORTH CAROLINA v. JUNIOUS LEE RHUE, JR.", "name_abbreviation": "State v. Rhue", "decision_date": "2002-05-21", "docket_number": "No. COA01-718", "first_page": "280", "last_page": "291", "citations": [ { "type": "official", "cite": "150 N.C. App. 280" } ], "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": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "opinion_index": -1, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "73 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524733 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0487-01" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "year": 2002, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "467 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "394", "parenthetical": "essential question in self-defense is reasonableness of defendant's belief that deadly force is necessary" } ], "opinion_index": 0 }, { "cite": "342 N.C. 869", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796015 ], "year": 1996, "pin_cites": [ { "page": "873", "parenthetical": "essential question in self-defense is reasonableness of defendant's belief that deadly force is necessary" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0869-01" ] }, { "cite": "543 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155584, 1155616, 1155683, 1155722, 1155756 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0477-02", "/nc/351/0477-03", "/nc/351/0477-04", "/nc/351/0477-01", "/nc/351/0477-05" ] }, { "cite": "523 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238218 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "13" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0001-01" ] }, { "cite": "499 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "763" }, { "page": "762" } ], "opinion_index": 0 }, { "cite": "348 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659696 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "257" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0254-01" ] }, { "cite": "552 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "201", "parenthetical": "victim's prior statements, as testified to by both family members and detective, admissible for purposes of corroborating victim's trial testimony" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355641 ], "year": 2001, "pin_cites": [ { "page": "232", "parenthetical": "victim's prior statements, as testified to by both family members and detective, admissible for purposes of corroborating victim's trial testimony" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0220-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "617", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "104", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "544 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684986, 685113, 684938, 685089 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0360-03", "/nc/352/0360-04", "/nc/352/0360-02", "/nc/352/0360-01" ] }, { "cite": "529 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095935 ], "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0726-01" ] }, { "cite": "148 L. Ed. 2d 110", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9538048, 9537729, 9537923, 9537860, 9537989, 9537638, 9537799, 9538117, 9538377, 9538435, 9538319, 9538197, 9537686, 9538264 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0867-08", "/us/531/0867-03", "/us/531/0867-06", "/us/531/0867-05", "/us/531/0867-07", "/us/531/0867-01", "/us/531/0867-04", "/us/531/0867-09", "/us/531/0867-13", "/us/531/0867-14", "/us/531/0867-12", "/us/531/0867-10", "/us/531/0867-02", "/us/531/0867-11" ] }, { "cite": "524 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "351 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155594 ], "year": 2000, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0192-01" ] }, { "cite": "556 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "24" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380301 ], "year": 2001, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0485-01" ] }, { "cite": "341 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "554-55", "parenthetical": "defendant cannot object to introduction of portions of a letter written by defendant when defendant later read letter into evidence on direct examination" } ], "opinion_index": 0 }, { "cite": "316 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697392 ], "year": 1986, "pin_cites": [ { "page": "362", "parenthetical": "defendant cannot object to introduction of portions of a letter written by defendant when defendant later read letter into evidence on direct examination" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0356-01" ] }, { "cite": "381 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "459" } ], "opinion_index": 0 }, { "cite": "325 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491441 ], "year": 1989, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0187-01" ] }, { "cite": "473 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "607", "parenthetical": "no due process or Brady violation where State provided officer's notes to defense four days prior to State resting its case; defense counsel had \"ample opportunity\" to make use of the evidence, including contacting witnesses if defendants so desired" }, { "page": "605", "parenthetical": "police officer's testimony regarding witness' prior statement admissible to corroborate witness' trial testimony" } ], "opinion_index": 0 }, { "cite": "344 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867700 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "50", "parenthetical": "no due process or Brady violation where State provided officer's notes to defense four days prior to State resting its case; defense counsel had \"ample opportunity\" to make use of the evidence, including contacting witnesses if defendants so desired" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0031-01" ] }, { "cite": "508 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "801", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201666 ], "year": 1998, "pin_cites": [ { "page": "490", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0488-01" ] }, { "cite": "422 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "703" }, { "parenthetical": "holding State's cross-examination of character witnesses as to 1963 assault permissible after witnesses had testified they had never known defendant to be violent" } ], "opinion_index": 0 }, { "cite": "332 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504164 ], "year": 1992, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0487-01" ] }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 1019", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679395, 9679139, 9679434, 9679470, 9679118, 9679312, 9679215, 9679186, 9679251, 9679283, 9679351, 9679069, 9679101, 9679165 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1019-12", "/us/531/1019-04", "/us/531/1019-13", "/us/531/1019-14", "/us/531/1019-03", "/us/531/1019-10", "/us/531/1019-07", "/us/531/1019-06", "/us/531/1019-08", "/us/531/1019-09", "/us/531/1019-11", "/us/531/1019-01", "/us/531/1019-02", "/us/531/1019-05" ] }, { "cite": "528 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "12" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "351 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155711 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0536-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "541 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "807", "parenthetical": "\"[w]here the strategy of trial counsel is 'well within the range of professionally reasonable judgments,' the action of counsel is not constitutionally ineffective\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439892 ], "year": 2001, "pin_cites": [ { "page": "152", "parenthetical": "\"[w]here the strategy of trial counsel is 'well within the range of professionally reasonable judgments,' the action of counsel is not constitutionally ineffective\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0145-01" ] }, { "cite": "325 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "219" }, { "page": "219" } ], "opinion_index": 0 }, { "cite": "312 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757749 ], "year": 1985, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0647-01" ] }, { "cite": "332 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726019, 4722090, 4724332, 4725677, 4720721 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0604-05", "/nc/313/0604-03", "/nc/313/0604-02", "/nc/313/0604-01", "/nc/313/0604-04" ] }, { "cite": "326 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "927" }, { "page": "927" }, { "page": "924", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1062, "char_count": 27715, "ocr_confidence": 0.758, "pagerank": { "raw": 2.7625253381906877e-07, "percentile": 0.8336818092483385 }, "sha256": "949943c3a7999e27c30d6fc762eba942fb0c097a0a1bbef3709c55a6f1f3b869", "simhash": "1:a3370032678b6edc", "word_count": 4466 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JUNIOUS LEE RHUE, JR." ], "opinions": [ { "text": "HUNTER, Judge.\nJunious Lee Rhue, Jr. (\u201cdefendant\u201d) appeals his conviction of second degree murder and resulting sentence. Defendant assigns error to the admission of various testimony and to the denial of his motion for appropriate relief. For reasons stated herein, we conclude there was no error.\nThe State\u2019s evidence tended to show that on 12 July 1999, Thomas Holiday and his brother Charles Nichols encountered defendant on a street in Smithfield, North Carolina at approximately 8:00 p.m. Holiday and Nichols knew defendant from living in the same neighborhood for several years. Defendant began walking with Holiday and Nichols. Holiday testified that defendant seemed \u201cagitated\u201d and was making comments about the \u201cyoung kids\u201d in the neighborhood who \u201cdon\u2019t care about nothing.\u201d Defendant then removed a pistol from the front of his pants and began waving it in the air. At Holiday\u2019s and Nichols\u2019 request, defendant replaced the pistol in his pants and continued walking with them until Holiday and Nichols arrived at their mother\u2019s house.\nHoliday testified that he left his mother\u2019s house to walk home around 11:00 p.m. that evening. Holiday observed defendant talking to a lady who was in her car, stopped at a stop sign. Holiday overheard the two talking about Kevin Shumpert, whom Holiday knew from the neighborhood. Holiday heard the lady in the car tell defendant that Shumpert had \u201cdone her wrong.\u201d Defendant appeared to be angry, and Holiday heard him state that he was \u201cfed up with these young people\u201d and that he \u201cneeds to teach somebody a lesson.\u201d Holiday then observed Shumpert walking nearby, whereupon the lady in the car said to defendant, \u201c[t]here he goes right now.\u201d Defendant said \u201cI\u2019ll go straighten this out,\u201d and began walking towards Shumpert. Holiday called to defendant, asking if he \u201cstill [had] what [he] had earlier today,\u201d meaning the pistol. Defendant responded that he did, and told Holiday he was going to \u201cteach [Shumpert] a lesson.\u201d\nDefendant began calling to Shumpert, who then turned to walk towards defendant. Holiday observed defendant remove the pistol from his pants and tell Shumpert to \u201c[h]old it.\u201d Defendant held the gun on Shumpert and demanded that he \u201cgo into [his] pockets\u201d and give defendant \u201cwhat [he] owe[d] [him].\u201d Shumpert then placed his hands in his pockets, whereupon defendant \u201cfroze up\u201d and instructed Shumpert not to remove his hands. Shumpert told defendant that he would give him whatever he wanted, and begged defendant not to shoot him. Defendant told Shumpert that he could remove his hands from his pockets on the count of three. Defendant counted to two, then shot and killed Shumpert, whose hands were still in his pockets. Defendant then squatted beside Shumpert, looked in his pockets, and ran away.\nDefendant testified on his own behalf. He stated that someone had stolen a bicycle from him a few days prior. On the evening of the shooting, defendant testified that he was on his way to his cousin\u2019s house, and that he took his pistol because it was dark and he was alone. According to defendant, Shumpert approached defendant on the street and told him that he was the one who took his bicycle, and began to taunt him, saying he was going to \u201csmoke\u201d him. Defendant told Shumpert that he had \u201cno animosity\u201d and asked to be left alone. Defendant turned from Shumpert, and as he looked back at him over his shoulder, he saw Shumpert\u2019s hand go \u201cback to the right,\u201d whereupon defendant pulled the pistol, fired, and ran. Defendant testified that he was fearful for his life when he saw Shumpert move his hand, and he believed Shumpert would follow through with his threats.\nA jury convicted defendant on 22 September 2000 of second degree murder. The trial court entered judgment on that date, sentencing defendant to 151-191 months in prison. On 24 October 2000, defendant filed a handwritten, pro se document which the trial court treated as a motion for appropriate relief. On 27 October 2000, a trial judge other than the one who presided over the trial entered an order denying the motion without a hearing. Defendant appeals his judgment and commitment.\nDefendant first argues the trial court erred in permitting the State to cross-examine defendant\u2019s character witnesses regarding defendant\u2019s 1980 conviction for assault with a deadly weapon. Prior to trial, defendant moved to suppress evidence of the conviction. The trial court granted defendant\u2019s motion to suppress, thereby prohibiting the State from questioning defendant on the conviction, but left open the possibility that the evidence might be admissible through other witnesses if defendant were to put his character into issue. Defendant presented two character witnesses, both of whom testified that they had known defendant since childhood, and that they had always known him to be a peaceful person. On cross-examination, the State questioned each witness as to whether they remembered \u201chearing a report in 1980 that [defendant] assaulted a person with a deadly weapon, inflicting serious injuryf.]\u201d Defendant argues that this was error because the incident was too remote to the crime at issue and therefore, its prejudice outweighed its probative value.\n\u201cA criminal defendant is entitled to introduce evidence of his good character, thereby placing his character at issue. The State in rebuttal can then introduce evidence of defendant\u2019s bad character.\u201d State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12, cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498 (2000). Under N.C. Gen. Stat. \u00a7 8C-1, Rule 405(a) (1999), the State may do so by cross-examining a defendant\u2019s character witnesses as to \u201crelevant specific instances of conduct.\u201d Thus, where the defendant in Roseboro introduced testimony from family members regarding his reputation for peacefulness, the State was entitled to cross-examine the witnesses as to whether they knew of any accusations that the defendant acted violently towards his wife. Roseboro, 351 N.C. at 553, 528 S.E.2d at 12.\nMoreover, unlike evidence of prior bad acts being offered under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999), Rule 405(a) does not contain any time limit or rule regarding remoteness, and our Supreme Court has explicitly refused to impose one. See State v. Cummings, 332 N.C. 487, 507, 422 S.E.2d 692, 703 (1992). Rather, \u201c[a] \u2018relevant\u2019 specific instance of conduct under Rule 405(a) would be any conduct that rebuts the earlier reputation or opinion testimony offered by the defendant.\u201d Id. (holding State\u2019s cross-examination of character witnesses as to 1963 assault permissible after witnesses had testified they had never known defendant to be violent). Nevertheless, the trial court possesses the sound discretion to exclude evidence otherwise admissible under Rule 405(a) where the probative value of the rebuttal evidence is substantially outweighed by its prejudice. Id.; N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1999).\nIn this case, defendant was approximately twenty-two years old at the time of the prior conviction. Both character witnesses testified that they knew defendant in 1980 at the time of the conviction. Thus, their testimony that they had always known defendant to be a peaceful person applied to their knowledge of him in 1980. Their testimony that they knew defendant in 1980 as a peaceful person made that time-frame relevant, and the State was therefore entitled under Rule 405(a) to rebut their character evidence by asking the witnesses if they were aware of a report of a prior assault by defendant. We discern no abuse of discretion in the trial court\u2019s determination that this Rule 405(a) evidence was also admissible under Rule 403.\nDefendant argues next that the trial court erred in allowing the investigating detective, Steve Knox, to read from interviews that he conducted with defendant and Holiday following the shooting because the interviews contained exculpatory evidence which was not timely disclosed to defendant by the State. Detective Knox interviewed both defendant and Holiday separately the day after the shooting, 13 July 1999. Detective Knox did not transcribe the interviews. According to the prosecutor, the State did not become aware of the existence of the interviews until 3 August 2000, whereupon the State made a motion to have the interviews transcribed, and informed defense counsel of their existence. The trial court entered an order allowing the motion for transcription on 9 August 2000, and directed the State to provide a copy of the transcript of defendant\u2019s interview to defense counsel in accordance with N.C. Gen. Stat. \u00a7 15A-903 (1999). Under N.C. Gen. Stat. \u00a7 15A-903(a)(l), upon a defendant\u2019s motion, the State must be ordered to allow the defendant \u201cto inspect and copy or photograph any relevant written or recorded statements made by the defendant. . . within the possession, custody, or control of the State the existence of which is known or by the exercise of due diligence may become known to the prosecutor.\u201d N.C. Gen. Stat. \u00a7 15A-903(a)(l).\nWe first note that under N.C. Gen. Stat. \u00a7 15A-903(f)(l), the State was not required to disclose Holiday\u2019s statements in advance of trial. Under that rule, \u201cno statement or report in the possession of the State that was made by a State witness or prospective State witness, other than the defendant, shall be the subject of subpoena, discovery, or inspection until that witness has testified on direct examination in the trial of the case.\u201d N.C. Gen. Stat. \u00a7 15A-903(f)(1). Defendant argues that this statute aside, Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963) and due process required that the State disclose the interview promptly after it was conducted, regardless of the prosecutor\u2019s knowledge of the interview.\nIn fact, \u201c[o]ur Supreme Court has held \u2018that due process and Brady are satisfied by the disclosure of the evidence at trial, so long as disclosure is made in time for the defendants to make effective use of the evidence.\u2019 \u201d State v. Small, 131 N.C. App. 488, 490, 508 S.E.2d 799, 801 (1998) (citation omitted). Defendant argues that he was unable to make effective use of the Holiday interview because the delay in disclosure deprived him of the opportunity to use the interview to investigate and possibly locate more witnesses. However, similar arguments based on the loss of the defense\u2019s ability to use the evidence as an investigatory tool due to the State\u2019s failure to disclose in advance of trial have been rejected by this Court as being both speculative, see id., and not required by law, see State v. Taylor, 344 N.C. 31, 50, 473 S.E.2d 596, 607 (1996) (no due process or Brady violation where State provided officer\u2019s notes to defense four days prior to State resting its case; defense counsel had \u201cample opportunity\u201d to make use of the evidence, including contacting witnesses if defendants so desired).\nThe record in the present case reveals that defense counsel had possession of the Holiday interview before the trial even commenced, and that he made effective use of the transcript at trial by extensively cross-examining Holiday with the interview transcript. Indeed, we observe that the State did not introduce Detective Knox\u2019s testimony regarding Holiday\u2019s interview until after defense counsel had already vigorously cross-examined Holiday regarding the content of the interview. It is well-established that the benefit of any objection to the introduction of evidence is lost where the evidence is previously admitted without objection, and particularly, where defendant is responsible for first introducing the evidence. See State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989); State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 554-55 (1986) (defendant cannot object to introduction of portions of a letter written by defendant when defendant later read letter into evidence on direct examination).\nWith respect to Detective Knox\u2019s reading of defendant\u2019s interview, we likewise observe that defendant failed to object to the introduction of this testimony, and then proceeded to use the interview transcript to extensively cross-examine Detective Knox. Although defendant\u2019s assignment of error contained in the record alleges that the introduction of this testimony was plain error, defendant has not argued in his brief on appeal that the alleged error amounted to plain error. Our Supreme Court has held that when a defendant who fails to object at trial also fails to \u201cspecifically and distinctly argue in his brief that the trial court\u2019s [actions] amounted to plain error, this Court will not conduct plain error review.\u201d State v. Parks, 147 N.C. App. 485, 490, 556 S.E.2d 20, 24 (2001); see also N.C.R. App. P. 10(c)(4) (defendant must \u201cspecifically and distinctly\u201d contend judicial action amounts to plain error). These arguments are therefore rejected.\nIn a related argument, defendant maintains that Detective Knox should not have been permitted to read from Holiday\u2019s interview because it constituted inadmissible hearsay, and that the trial court\u2019s admission of this evidence constituted plain error. Defendant concedes that our courts allow the admission of prior statements made by a witness for the purpose of corroborating that witness\u2019 testimony at trial, despite the statements\u2019 hearsay nature. See State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000).\n\u201cCorroborative evidence by definition tends to \u2018strengthen, confirm, or make more certain the testimony of another witness.\u2019 \u201d State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497 (citation omitted), disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000). \u201cCorroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates.\u201d Id. \u201cIn other words, \u2018[w]here testimony which is offered to corroborate the testimony of another witness does so substantially, it is not rendered incompetent by the fact that there is some variation.\u2019 \u201d State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001) (citation omitted). Such variations only affect the weight of the evidence, not its admissibility. Id.\nHere, defendant argues that Holiday\u2019s prior statements were not sufficiently consistent with Holiday\u2019s trial testimony to be considered admissible prior consistent statements. Again, we disagree. Although Holiday\u2019s prior statements differed slightly from Holiday\u2019s testimony and provided some new pieces of information, such variation is permissible. See id. Our review of the transcript leads us to conclude that despite some minor variations, Holiday\u2019s prior statements tended to confirm and corroborate Holiday\u2019s trial testimony. To the extent there were variations between the two, the jury was to consider this fact in assessing the weight to afford the evidence presented. See id. The trial court did not commit plain error in allowing Detective Knox\u2019s testimony.\nMoreover, defendant suggests that the State impermissibly used Detective Knox to present Holiday\u2019s prior statements to the jury, as opposed to Holiday himself. However, defendant has failed to point to any rule, nor are we aware of one, that limits testimony on prior consistent statements to the declarant only. See, e.g., Taylor, 344 N.C. at 46, 473 S.E.2d at 605 (police officer\u2019s testimony regarding witness\u2019 prior statement admissible to corroborate witness\u2019 trial testimony); State v. Beane, 146 N.C. App. 220, 232, 552 S.E.2d 193, 201 (2001) (victim\u2019s prior statements, as testified to by both family members and detective, admissible for purposes of corroborating victim\u2019s trial testimony). This assignment of error is overruled.\nIn his final argument, defendant contends the trial court erred in denying, without a hearing, his pro-se motion for appropriate relief, which raised various issues. On appeal, defendant argues that the trial court was required to have conducted a hearing on his motion for two reasons: (1) because the motion established that defendant possessed newly discovered evidence which \u201cwould drastically change the defense of the case\u201d; and (2) because defendant sufficiently established a claim for ineffective assistance of counsel.\nUnder N.C. Gen. Stat. \u00a7 15A-1420(c)(l) (1999), a defendant \u201cis entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit.\u201d Thus, a defendant is not entitled to a hearing on a motion for appropriate relief if it can be determined from the motion itself that the defendant is not entitled to relief. See State v. McHone, 348 N.C. 254, 257, 499 S.E.2d 761, 763 (1998).\nIn this case, we agree with the trial court that defendant\u2019s motion failed to show that he was entitled to any relief, and thus, defendant was not entitled to a hearing on his motion. Defendant first argues that he is entitled to relief on the basis of newly discovered evidence consisting of a witness who would be willing to testify that Holiday and Nichols took a gun from Shumpert on the night of the shooting. Defendant maintains that this new evidence \u201cwould drastically change the defense of the case, given that Defendant\u2019s claim of self-defense and the fact that, at trial, the prosecutor elicited testimony from Holiday that Shumpert had no weapon.\u201d\nAmong the factors a defendant must prove to obtain a new trial on the basis of newly discovered evidence are: (1) \u201cthe evidence is material, competent and relevant\u201d; (2) \u201cthe newly discovered evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness\u201d; and (3) \u201cthe evidence is of such a nature that a different result will probably be reached at a new trial.\u201d State v. Garner, 136 N.C. App. 1, 13, 523 S.E.2d 689, 698 (1999), appeal dismissed and cert. denied, 351 N.C. 477, 543 S.E.2d 500 (2000).\nApplying these principles here, defendant\u2019s motion does not entitle him to relief on this ground because defendant cannot establish that, even if true, the newly discovered evidence would have changed the result at trial. Regardless of whether Shumpert was armed at the time of the shooting, defendant testified that he never saw a gun or other weapon on Shumpert. Thus, the reality of whether Shumpert was actually armed is irrelevant to the issue of self-defense, which is examined from the point of view of the defendant. See State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392, 394 (1996) (essential question in self-defense is reasonableness of defendant\u2019s belief that deadly force is necessary). Moreover, to the extent defendant sought to discredit Holiday\u2019s testimony that Shumpert was unarmed, this is not a proper basis for granting a motion on the grounds of newly discovered evidence. See Garner, 136 N.C. App. at 13, 523 S.E.2d at 698. We therefore disagree with defendant that this newly discovered evidence, even if true, would have had the necessary bearing on his trial to warrant the grant of a new trial.\nWe likewise disagree with defendant that his claim for ineffective assistance of counsel mandated an evidentiary hearing. Defendant maintained in his motion that his counsel was deficient in two respects: (1) in failing to call a particular witness; and (2) in failing to strike a juror who allegedly knew defendant from school and disliked him. In order to successfully assert an ineffective assistance of counsel claim, a defendant must establish the following: (1) that his counsel\u2019s performance fell below an objective standard of reasonableness; and (2) that his counsel\u2019s performance deficiency was so serious that a reasonable probability exists that the result of the trial would have been different. State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002). \u201cThere is a presumption that trial counsel acted in the exercise of reasonable professional judgment.\u201d Id.\nIn State v. Aiken, 73 N.C. App. 487, 326 S.E.2d 919, appeal dismissed and disc. review denied, 313 N.C. 604, 332 S.E.2d 180 (1985), we held that the trial court properly denied, without a hearing, the defendant\u2019s motion for appropriate relief based on ineffective assistance of counsel where the defendant failed to produce any supporting affidavits or other evidence beyond the bare assertions of the motion. Id. at 500-01, 326 S.E.2d at 927. The defendant based his claim on the fact that his attorney failed to move to suppress the defendant\u2019s statement to police and to contact various defense witnesses. Id. We observed that N.C. Gen. Stat. \u00a7 15A-1420(c)(6) requires that a defendant seeking relief by a motion for appropriate relief \u201c \u2018must show the existence of the asserted ground for relief.\u2019 \u201d Id. at 501, 326 S.E.2d at 927 (quoting N.C. Gen. Stat. \u00a7 15A-1420(c)(6)). Thus, where the defendant did not comply with N.C. Gen. Stat. \u00a7 15A-1420(c)(6) by failing to file anything but bare assertions that his counsel was ineffective, \u201cthe trial court\u2019s summary denial of the motion for appropriate relief was not error.\u201d Id.\nOur Supreme Court has also stated that the rules which govern \u201cthe procedure for filing a motion for appropriate relief clearly require[] supporting affidavits to accompany the motion.\u201d State v. Payne, 312 N.C. 647, 668, 325 S.E.2d 205, 219 (1985). The Court observed that aside from subsection (c)(6), N.C. Gen. Stat. \u00a7 15A-1420(b)(1) provides that motions for appropriate relief made after the entry of judgment \u201c \u2018must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion.\u2019 \u201d Id. at 669, 325 S.E.2d at 219 (quoting N.C. Gen. Stat. \u00a7 15A-1420(b)(1)).\nThe record in this case reveals that defendant failed to file any affidavits or other evidence to support his assertions that counsel was ineffective. According to Aiken, such failure supports the trial court\u2019s summary denial of defendant\u2019s motion. In any event, as we noted in Aiken, decisions such as which witnesses to call, whether and how to conduct examinations, which jurors to accept or strike, and what trial motions should be made are strategic and tactical decisions that are within the \u201c \u2018exclusive province\u2019 \u201d of the attorney. Aiken, 73 N.C. App. at 496, 326 S.E.2d at 924 (citation omitted). \u201c \u2018Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.\u2019 \u201d Id. (citation omitted). Defendant\u2019s bare assertions in his motion are insufficient to show that his attorney\u2019s decisions with respect to which jurors to strike and which witnesses to call were anything but proper tactical decisions within the range of professionally reasonable judgment. See State v. Campbell, 142 N.C. App. 145, 152, 541 S.E.2d 803, 807 (2001) (\u201c[w]here the strategy of trial counsel is \u2018well within the range of professionally reasonable judgments,\u2019 the action of counsel is not constitutionally ineffective\u201d (citation omitted)).\nNo error.\nJudges GREENE and TIMMONS-GOODSON concur.\n. We acknowledge that under N.C. Gen. Stat. \u00a7 15A-1420(c)(7), the trial court is required to make conclusions of law and state its reasoning before denying the motion where the defendant asserts with specificity in his motion that the judgment was obtained in violation of his constitutional rights. Defendant in this case did assert a violation of his constitutional rights in his motion, but the trial court did not make conclusions of law. However, defendant has not assigned error to this omission, and we therefore do not address it here. Nevertheless, for clarity, we note that our Supreme Court has held that N.C. Gen. Stat. \u00a7 15A-1420(c)(7), as well as the fact that a defendant raises constitutional issues, does not operate as an \u201cexpansion either of defendant\u2019s right to be heard or his right to present evidence.\u201d McHone, 348 N.C. at 257, 499 S.E.2d at 762. Thus, any error in the trial court\u2019s omission does not affect the pertinent question of whether defendant was entitled to an evidentiary hearing.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Daniel D. Addison, for the State.", "Martin A. Tetreaultfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JUNIOUS LEE RHUE, JR.\nNo. COA01-718\n(Filed 21 May 2002)\n1. Evidence\u2014 prior crimes or bad acts \u2014 assault with a deadly weapon\nThe trial court did not abuse its discretion in a second-degree murder case by permitting the State to cross-examine defendant\u2019s character witnesses under N.C.G.S. \u00a7 8C-1, Rule 405(a) regarding defendant\u2019s 1980 conviction for assault with a deadly weapon, because: (1) the State in rebuttal can introduce evidence of defendant\u2019s bad character after defendant introduces evidence of his good character; (2) Rule 405(a) does not contain any time limit or rule regarding remoteness, and our Supreme Court has explicitly refused to impose one; and (3) the witnesses\u2019 testimony that they knew defendant in 1980 as a peaceful person made that time-frame relevant.\n2. Discovery\u2014 witness interview \u2014 timely disclosure to defendant \u2014 due process\nA detective\u2019s interview with a witness was timely disclosed to defendant so that the detective was properly allowed to read from the interview transcript, although the State did not disclose the interview promptly after it was conducted, because (1) under N.C.G.S. \u00a7 15A-903(f)(l) the State was not required to disclose a witness\u2019s statement in advance of trial, and (2) the due process requirements of Brady v. Maryland, 373 U.S. 83, were satisfied where defense counsel had possession of the interview before the trial commenced, he made effective use of the transcript at trial by extensively cross-examining the witness with the interview transcript, and the State did not introduce the detective\u2019s testimony regarding the interview until after defense counsel had already vigorously cross-examined the witness about the content of the interview.\n3. Evidence\u2014 hearsay \u2014 corroboration\u2014prior consistent statements\nThe trial court did not commit plain error in a second-degree murder case by permitting the investigating detective to read from a witness\u2019s interview even though defendant contends it constituted inadmissible hearsay, because: (1) although the witness\u2019s prior statements differed slightly from his testimony and provided some new pieces of information, such variation is permissible; (2) despite some minor variations, the witness\u2019s prior statements tended to confirm and corroborate his trial testimony, and any variations were to be considered by the jury in assessing the weight to afford the evidence presented; and (3) defendant has failed to point to a rule that limits testimony on prior consistent statements to the declarant only.\n4. Criminal Law\u2014 pro se motion for appropriate relief \u2014 failure to show entitlement to hearing\nThe trial court did not err in a second-degree murder case by denying, without a hearing, defendant\u2019s pro se motion for appropriate relief, because: (1) defendant\u2019s alleged newly discovered evidence, even if true, would not have the necessary bearing on his trial to warrant the grant of a new trial; and (2) defendant failed to file any affidavits or other evidence to support his assertions that his counsel was ineffective.\nAppeal by defendant from judgment entered 22 September 2000 by Judge Jack Thompson in Johnston County Superior Court. Heard in the Court of Appeals 16 April 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Daniel D. Addison, for the State.\nMartin A. Tetreaultfor defendant-appellant." }, "file_name": "0280-01", "first_page_order": 310, "last_page_order": 321 }