{ "id": 9005203, "name": "STATE OF NORTH CAROLINA v. ARTHUR HAMES", "name_abbreviation": "State v. Hames", "decision_date": "2005-05-17", "docket_number": "No. COA04-968", "first_page": "312", "last_page": "323", "citations": [ { "type": "official", "cite": "170 N.C. App. 312" } ], "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": "380 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "119", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "324 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485509 ], "year": 1989, "pin_cites": [ { "page": "540", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0539-01" ] }, { "cite": "470 U.S. 856", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300388 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "865" }, { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/us/470/0856-01" ] }, { "cite": "391 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2171202 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "167" }, { "page": "167" }, { "page": "167-68" } ], "opinion_index": 0, "case_paths": [ "/sc/301/0374-01" ] }, { "cite": "326 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308335 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0576-01" ] }, { "cite": "410 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "82" }, { "page": "82" }, { "page": "82" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521815 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "386" }, { "page": "386" }, { "page": "386" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0375-01" ] }, { "cite": "473 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798842, 798763, 798870, 798847 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0755-01", "/nc/343/0755-04", "/nc/343/0755-02", "/nc/343/0755-03" ] }, { "cite": "470 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918111 ], "year": 1996, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0482-01" ] }, { "cite": "575 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511433, 1511435, 1511380, 1511347 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0621-01", "/nc/356/0621-04", "/nc/356/0621-02", "/nc/356/0621-03" ] }, { "cite": "574 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "26" }, { "page": "29" }, { "page": "29" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249790 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "283" }, { "page": "289" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0282-01" ] }, { "cite": "429 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "333 N.C. 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547016 ], "year": 1993, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0756-01" ] }, { "cite": "526 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "351 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155828 ], "year": 2000, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0454-01" ] }, { "cite": "595 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "182", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895190 ], "year": 2004, "pin_cites": [ { "page": "11", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0001-01" ] }, { "cite": "440 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "335 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531405 ], "year": 1994, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0647-01" ] }, { "cite": "346 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "317 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772035 ], "year": 1986, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0590-01" ] }, { "cite": "337 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "157" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522281 ], "year": 1985, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0493-01" ] }, { "cite": "474 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "344 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867693 ], "year": 1996, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0290-01" ] }, { "cite": "83 L. Ed. 2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11992065, 11991589, 11992134, 11991687, 11991848, 11991914, 11991307, 11991372, 11991758, 11991442, 11991091, 11991990, 11991511, 11991158 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0839-13", "/us/469/0839-07", "/us/469/0839-14", "/us/469/0839-08", "/us/469/0839-10", "/us/469/0839-11", "/us/469/0839-03", "/us/469/0839-04", "/us/469/0839-09", "/us/469/0839-05", "/us/469/0839-01", "/us/469/0839-12", "/us/469/0839-06", "/us/469/0839-02" ] }, { "cite": "311 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "310 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399643 ], "year": 1984, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0245-01" ] }, { "cite": "254 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "254", "parenthetical": "\"If testimony is otherwise admissible, it is not to be excluded merely because it is 'self-serving.' \"" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548152 ], "year": 1979, "pin_cites": [ { "page": "151", "parenthetical": "\"If testimony is otherwise admissible, it is not to be excluded merely because it is 'self-serving.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0148-01" ] }, { "cite": "277 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644076 ], "year": 1981, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0493-01" ] }, { "cite": "566 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "154", "parenthetical": "quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 164 (3d ed. 1988)" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080916 ], "year": 2002, "pin_cites": [ { "page": "497", "parenthetical": "quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 164 (3d ed. 1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0493-01" ] }, { "cite": "504 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "801" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470144 ], "year": 1998, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0702-01" ] }, { "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" ] } ], "analysis": { "cardinality": 1060, "char_count": 27643, "ocr_confidence": 0.761, "pagerank": { "raw": 2.349364408721665e-07, "percentile": 0.7930470077599119 }, "sha256": "c4f795fea25ab88f49a3e6340c0b5ad046a3f6492e18e189c6ff7fa5c9818d81", "simhash": "1:9fe5c16a4e3d7ef2", "word_count": 4436 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ARTHUR HAMES" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nArthur Hames (\u201cdefendant\u201d) appeals his convictions for voluntary manslaughter of his brother, assault with a deadly weapon inflicting serious injury upon Stephanie Marzette (\u201cMarzette\u201d), and attempted voluntary manslaughter of Marzette. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error with respect to the voluntary manslaughter conviction. However, because we conclude that the offenses of assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter are mutually exclusive, we hold that defendant is entitled to a new trial with respect to the shooting of Marzette.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 21 April 2002, Charles Kenneth Hames (\u201cHames\u201d) and Marzette were driving through Charlotte in search of a store where they could buy sewing thread. Hames and Marzette decided to drive to a residence shared by Hames and defendant, his younger brother. Shortly after they arrived at the residence, an argument. ensued between Hames and defendant. While Hames and Marzette were in Hames\u2019 bedroom, defendant entered the room and shot Hames with a handgun. Defendant subsequently approached Marzette and shot her as well.\nAfter law enforcement officers arrived at the residence, defendant accompanied two officers inside the residence. Defendant told the officers where the handgun was located, and the officers secured it. The officers thereafter searched the residence and found Hames laying on the floor of his bedroom and Marzette laying in the closet of the bedroom.\nDefendant was arrested and medical personnel transported Hames and Marzette to Carolinas Medical Center. Hames subsequently died from his gunshot wounds. Although she survived the shooting, Marzette was hospitalized for several days.\nOn 13 May 2002, defendant was indicted for first-degree murder of Hames and assault with a deadly weapon with intent to kill inflicting serious injury upon Marzette. On 17 March 2003, defendant was also indicted for attempted murder of Marzette. At trial, defendant testified that he shot Hames and Marzette by accident and in self-defense. The jury found defendant guilty of voluntary manslaughter of Hames, guilty of assault with a deadly weapon inflicting serious injury upon Marzette, and guilty of attempted \"voluntary manslaughter of Marzette. The trial court thereafter sentenced defendant to a total of 163 to 215 months incarceration. Defendant appeals.\nWe note initially that defendant\u2019s brief contains arguments supporting only three of the original thirteen assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the ten omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.\nThe issues on appeal are whether the trial court erred by: (I) excluding statements made by defendant to law enforcement officers following the shootings; (II) excluding statements made by Izella Miller (\u201cMiller\u201d) to law enforcement officers following the shootings; and (III) entering judgment against defendant for attempted voluntary manslaughter.\nDefendant first argues that the trial court erred by excluding statements he made to law enforcement officers following the shootings. Defendant asserts that his statements should have been admitted as excited utterances, and that he was prejudiced by their exclusion. We disagree.\nFor a statement to qualify as an excited utterance, the statement must be in response to \u201ca sufficiently startling experience suspending reflective thought and ... a spontaneous reaction, not one resulting from reflection or fabrication.\u201d State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). However, \u201cstatements or comments made in response to questions do not necessarily rob the statements of spontaneity.\u201d State v. Boczkowski, 130 N.C. App. 702, 710, 504 S.E.2d 796, 801 (1998). Instead, \u201c[t]he critical determination is whether the statement was made under conditions which demonstrate that the declar-ant lacked the \u2018opportunity to fabricate or contrive\u2019 the statement.\u201d State v. Wright, 151 N.C. App. 493, 497, 566 S.E.2d 151, 154 (2002) (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 164 (3d ed. 1988)).\nIn the instant case, Charlotte-Mecklenburg Police Department Officer Scott A. Sharp (\u201cOfficer Sharp\u201d) filed a report following his investigation of the shootings. The report contains the following pertinent narration:\nAs Officer Buchanan assessed the victim[s], I looked back to the front of the home and asked the black male, identified as Arthur Lee Hames, who shot the victim[s]. He immediately responded \u201cI f[*****]g shot the m[*:|:**]r f[*****]s!\u201d I ordered Mr. Hames to turn around and place his hands behind his back, which he did, and secured him with handcuffs. While I was securing the suspect he said the male victim, identified as his brother Charles Hames, approached him with a gun and that he shot him in self defense.\nCharlotte-Mecklenburg Police Department Officer W.L. Guild (\u201cOfficer Guild\u201d) interviewed defendant the night of the shootings. Officer Guild\u2019s report of the interview contains the following pertinent narration:\n4:05 a.m. I entered the interview room with Arthur Hames [who] was seated at the back of the room .... I advised him that his brother was dead. He became extremely upset. ... He stated \u201cLord Jesus. I didn\u2019t want to get rid of my brother. He jumped on me and pushed me. He came off on me like he always do.\u201d\nPrior to trial, the trial court allowed the State\u2019s motion in limine regarding these statements. The trial court ruled that because defendant was a party in the trial, his statements to the law enforcement officers were self-serving declarations that could be introduced by defendant for corroborative or impeachment purposes during his own case, but not for substantive purposes during the State\u2019s case. The trial court concluded that \u201cwhat is before me now would not qualify as an excited utterance[,]\u201d and the trial court agreed that those officers testifying for the State should be held under subpoena in order to provide corroborative information during defendant\u2019s case. Defendant contends that the trial court\u2019s determination limited his ability to present self-defense evidence.\nWe note that \u201c[i]f a statement fits an exception, then it is admissible even if self-serving, unless the particular exception prohibits it.\u201d State v. Harper, 51 N.C. App. 493, 497, 277 S.E.2d 72, 75 (1981); see State v. Moore, 41 N.C. App. 148, 151, 254 S.E.2d 252, 254 (1979) (\u201cIf testimony is otherwise admissible, it is not to be excluded merely because it is \u2018self-serving.\u2019 \u201d). However, while it is true that the trial court may admit corroborative evidence prior to the testimony of a witness, State v. Hinson, 310 N.C. 245, 256, 311 S.E.2d 256, 263, cert. denied, 469 U.S. 839, 83 L. Ed. 2d 78 (1984), \u201c[t]here is no right to corroboration in advance of the testimony of a witness.\u201d State v. Ball, 344 N.C. 290, 307, 474 S.E.2d 345, 355 (1996).\nIn the instant case, the statements defendant gave to Officers Sharp and Guild would only have corroborated the testimony given by defendant during his case-in-chief. Defendant repeatedly testified at trial that Hames was verbally abusive to him the night of the shootings, stating that Hames \u201cwent off on\u201d him when a male named Roosevelt arrived at the residence. Defendant testified that Hames \u201cgot in my face and started cussing, cursing me, calling me all kind of this and that.\u201d Defendant stated that he was \u201cafraid to sit down with him standing on top of me[,]\u201d and that \u201c[t]he way he would talk and the rage he was in, I \u2014 I thought he was getting ready to kill me.\u201d Defendant further testified that\nThen he got to \u2014 he got to running off the mouth about I didn\u2019t have no \u2014 no business there, it was his house too, and all this punk, sissy sucker, and all this mother, you know, he was saying anything else in the book, and spitting in my face and he pulled something out and stuck it to my head.\nDefendant testified that the object \u201clooked\u201d and \u201cfeeled\u201d like a handgun, and that he thought it was a handgun. Defendant testified that Hames then \u201csaid man, I\u2019ll blow your m****r-f |:**:|:*g brains out if you say one d**n word. He said, \u2014 then he showed me it again and said do you think I\u2019m lying? Say something and I\u2019ll blow your- \u2014 I\u2019ll blow your d**n brains out.\u201d\nDefendant further testified that as he attempted to retrieve his own weapon, Hames continued to call him names and yell at him out the window of the residence. Defendant testified that when he returned to the residence and entered Hames\u2019 bedroom, Hames pointed an object \u201cright between\u201d his eyes. Defendant testified that he knew the barrel of a gun when he saw a barrel pointed at his eyes.\nAfter testifying that the gun \u201ckicked back up\u201d and \u201cdouble shot [Hames] twice[,]\u201d defendant asserted that he and Marzette attempted to call 9-1-1, but were unsuccessful. Defendant testified that he then returned to Hames\u2019 bedroom, where Marzette \u201csaid Lee, you m****r f****r, and she reached down on the floor to pick up something off the floor.\u201d Defendant further testified that he \u201cwas still thinking it was a gun in that room\u201d and that Marzette was going to shoot him. Defendant stated that \u201cI thought my life was \u2014 my life was in danger, then I fired the gun right behind her legs.\u201d Defendant also stated that he was \u201cdistraught\u201d after the shootings, and that he \u201cnever had any intent of hurting\u201d Hames or Marzette. Defendant testified that he was \u201cfrightened\u201d by Hames\u2019 threats, and that he felt it was necessary to protect himself from Hames. Although defendant did not call Officer Guild to testify, Officer Sharp testified during defendant\u2019s case-in-chief and stated that defendant was agitated and upset following the shootings. Officer Sharp testified that while he was handcuffing defendant, defendant told him that Hames had approached him with a gun and defendant had shot Hames in self-defense.\n\u201cNot every erroneous ruling on the admissibility of evidence will result in a new trial.\u201d State v. Knox, 78 N.C. App. 493, 496, 337 S.E.2d 154, 157 (1985). Instead, \u201c[t]he burden is on [the] appellant to show both error and a reasonable possibility \u2018that had the error in question not been committed, a different result would have been reached at the trial.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 15A-1443). In the instant case, assuming arguendo that the trial court erred by limiting defendant\u2019s questioning of law enforcement officers during the State\u2019s casein-chief, in light of the evidence introduced by defendant during his case-in-chief, we conclude that the alleged error by the trial court was not prejudicial. As detailed above, defendant testified on his own behalf regarding his statements and intentions during the shootings, and Officer Sharp corroborated portions of defendant\u2019s testimony. Defendant has failed to demonstrate that a different result would have been reached had the trial court allowed him to question the law enforcement officers further during the State\u2019s case-in-chief. Accordingly, defendant\u2019s first argument is overruled.\nDefendant next argues that the trial court erred by excluding Miller\u2019s statements to law enforcement officers following the shootings. Defendant asserts that Miller\u2019s statements to Officer Sharp were admissible as excited utterances, and that he was prejudiced by their exclusion. We disagree.\nOfficer Sharp\u2019s report of the shootings contains the following pertinent narration:\nI spoke to the witness Izella Miller, and asked her what happened. She told me the male victim and the suspect had been arguing and the male victim approached the suspect with what appeared to be a silver handgun and pointed it at him. The suspect then went outside to his car and returned with a gun and shot the male victim. The female victim, who had not been shot yet, told her to call 911. She said that when she tried from her home, her phone wasn\u2019t working and she went to her next door neighbor[\u2019]s house ... and called 911. She said when she came back to the home, she found out the suspect had shot the female victim while she was gone, and she called 911 again from her home. She also said the suspect went outside to the back of the house and fired at least one shot.... I asked Ms. Miller to clarify her story about the suspect going outside, and she recanted her story and said he had gone to the padlocked closet in the bedroom and gotten the gun from in there. When asked why she had two different stories, she did not answer.\nDuring direct examination by the State, Officer Sharp testified that he spoke to Miller at the scene, but that she was \u201cupset\u201d and \u201cappeared to be intoxicated.\u201d During cross-examination, defendant attempted to elicit from Officer Sharp Miller\u2019s statements regarding the shootings. The trial court sustained the State\u2019s objection to the presentation of such evidence, noting that \u201c[t]here\u2019s nothing about. . . these circumstances that indicate an excited utterance. She was answering his query. And there\u2019s nothing about this that appears to meet any of the qualifications of something stated in spur of the moment .... He\u2019s asking her what happened and then [she] changed her story.\u201d\nDefendant contends that the trial court erred in finding that Miller\u2019s statements to Officer Sharp were inadmissible because they were in response to questioning, and he asserts that the statements were made following the shooting of two people in close proximity to Miller. However, we note that \u201c[t]he rationale for the admissibility of an excited utterance is its trustworthiness.\u201d State v. Wingard, 317 N.C. 590, 598, 346 S.E.2d 638, 644 (1986). In State v. Reid, 335 N.C. 647, 662, 440 S.E.2d 776, 784 (1994), our Supreme Court explained the doctrine of excited utterance as follows:\nThe reason for allowing this exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces \u201cspontaneous and sincere\u201d utterances. \u201c[T]he trustworthiness of this type of utterance lies in its spontaneity .. . .\u201d There is simply no time to \u201cfabricate or contrive\u201d statements spontaneously made during the excitement of an event. For a statement to qualify as an \u201cexcited utterance,\u201d \u201cthere must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d\n(citations omitted) (alteration in original).\n\u201cA trial court \u2018has broad discretion over the scope of cross-examination\u2019 and its \u2018rulings regarding the scope of cross [-] examination will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination.\u2019 \u201d State v. Johnson, 164 N.C. App. 1, 11, 595 S.E.2d 176, 182 (2004) (citation omitted). In the instant case, Officer Sharp testified at trial that Miller was \u201cintoxicated\u201d and \u201cupset,\u201d and that he did not take a written statement from her but was able to \u201cget an idea of . . . her account[]\u201d of the shootings. During voir dire, Officer Sharp testified that Miller changed part of her story while talking to him, and when he asked her why she had two different stories, Miller did not respond. Miller\u2019s statements regarding Hames\u2019 possession of what appeared to be handgun as well as her statements regarding the argument between defendant and Hames tend only to corroborate testimony provided by defendant and Officer Sharp during defendant\u2019s case-in-chief. In light of the foregoing, we conclude that defendant has failed to demonstrate that the trial court abused its discretion by not admitting Miller\u2019s statements. Accordingly, we overrule defendant\u2019s second argument.\nDefendant\u2019s final argument is that the trial court erred by entering judgment against him for both assault with a deadly weapon inflicting serious injury upon Marzette and attempted voluntary manslaughter of Marzette. Because we conclude that these offenses are mutually exclusive, we order a new trial with respect to the shooting of Marzette.\nWe note initially that N.C.R. App. P. 10(b)(1) (2005) provides that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d In the instant case, following the jury\u2019s verdicts, the State requested that the trial court sentence defendant to concurrent forty-six to sixty-five month sentences for attempted voluntary manslaughter of Marzette and assault with a deadly weapon inflicting serious injury upon Marzette. Defendant thereafter requested that \u201cwith regard to the two charges of assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter, since they arise out of the very same conduct, . . . the Court particularly should consider consolidation of those charges.\u201d The trial court initially addressed \u201cthe question of whether or not the Court should arrest judgment on the attempted voluntary [manslaughter]\u201d conviction by noting that \u201cthe law is just evolving on that, but it would appear that attempted voluntary [manslaughter] is an alter [native theory to [assault with a deadly weapon with intent to kill inflicting serious injury].\u201d Both parties thereafter provided argument to the trial court on the issue, with defendant contending that concurrent sentences for the two convictions created \u201ca double jeopardy problem\u201d that required him to \u201crequest the Court not to sentence on both.\u201d Following argument from both parties, the trial court determined that \u201cit is not double jeopardy and the defendant could be sentenced consecutively[,]\u201d but \u201cunder the circumstances of this case the Court in its discretion should run those [convictions\u2019 sentences] concurrently.\u201d\nDefendant contends on appeal that the trial court erred by failing to arrest judgment on either the attempted voluntary manslaughter conviction or the assault with a deadly weapon inflicting serious injury conviction because the offenses are mutually exclusive. However, we note that because defendant did not assert this precise contention at trial, defendant\u2019s theory on appeal does not reflect the same \u201cspecific grounds\u201d as those provided to the trial court, and therefore his argument seemingly violates N.C.R. App. R 10. Nevertheless, in our discretion pursuant to N.C.R. App. P. 2 (2005), we have chosen to review defendant\u2019s argument on appeal, and, as discussed below, we find it persuasive.\nThe elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault; (2) with a deadly weapon; (3) an intent to kill; and (4) infliction of a serious injury not resulting in death. State v. Grigsby, 351 N.C. 454, 456, 526 S.E.2d 460, 462 (2000). \u201cA specific intent to kill is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.\u201d State v. Daniel, 333 N.C. 756, 763, 429 S.E.2d 724, 729 (1993).\nThis Court has previously held that \u201cattempted voluntary manslaughter is (1) a crime in North Carolina, and, (2) a lesser-included offense of attempted first-degree murder[.]\u201d State v. Rainey, 154 N.C. App. 282, 283, 574 S.E.2d 25, 26, disc. review denied, 356 N.C. 621, 575 S.E.2d 520 (2002). Although voluntary manslaughter had previously been considered a general intent crime, see State v. McCoy, 122 N.C. App. 482, 485, 470 S.E.2d 542, 544, disc. review denied, 343 N.C. 755, 473 S.E.2d 622 (1996), in Rainey, we recognized that \u201cin North Carolina, heat of passion voluntary manslaughter is essentially a first-degree murder, where the defendant\u2019s reason is temporarily suspended by legally adequate provocation.\u201d 154 N.C. App. at 289, 574 S.E.2d at 29. Therefore, we concluded that\n[t]he specific intent to kill does exist in the mind of [a defendant charged with attempted voluntary manslaughter]; however, the defendant is only legally culpable for the general intent because the \u201cspecific intent\u201d is not based on \u201ccool reflection.\u201d The specific intent is based on an \u201cadequate provocation\u201d that would cause an individual with an ordinary firmness of mind ... to commit an act spawned by provocation rather than malice.\nId.\nIn the instant case, defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury upon Marzette, and attempted murder of Marzette. The jury subsequently found defendant guilty of assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter. Defendant contends that the jury\u2019s determination that defendant did not commit assault with a deadly weapon with intent to kill inflicting serious injury upon Marzette excluded the possibility that defendant committed attempted voluntary manslaughter against her. We agree.\n\u201cWhere several offenses charged allegedly arise from the same transaction, and the offenses are mutually exclusive, a defendant may not be convicted of more than one of the mutually exclusive offenses.\u201d State v. Hall, 104 N.C. App. 375, 386, 410 S.E.2d 76, 82 (1991). Instate v. Speckman, 326 N.C. 576, 391 S.E.2d 165 (1990), the defendant was convicted of one count of embezzlement and one count of obtaining property by false pretenses, both of which arose from a single transaction involving the sale of a waterslide operation. On appeal, our Supreme Court noted that because \u201cproperty cannot be obtained simultaneously pursuant to both lawful and unlawful means, guilt of either embezzlement or false pretenses necessarily excludes guilt of the other.\u201d Id. at 578, 391 S.E.2d at 167. Therefore, the Court held that although it was not improper for the State to bring both charges against the defendant or for the trial court to submit both charges to the jury, because the offenses were mutually exclusive, the trial court was required to instruct the jury that it may convict the defendant of only one of the offenses or the other, but not both. Id. at 579, 391 S.E.2d at 167.\nSimilarly, in Hall, defendants Hall and Shoats were charged with three counts of conspiracy to traffick in cocaine, the first count covering a period from 10 April 1989 through 15 April 1989, the second count covering a period of 23 April 1989 through 31 May 1989, and the third count covering a period of 10 April 1989 through 31 May 1989. The jury convicted the defendants of each charge. The trial court subsequently arrested judgment on the third charge and sentenced the defendants for the remaining two convictions. On appeal, this Court concluded that the three offenses were mutually exclusive, in that the determination that the defendants entered into one agreement to commit a series of unlawful acts over a period of time was inconsistent with the determination that multiple agreements to commit the same series of acts over the same period of time were also made. 104 N.C. App. at 386, 410 S.E.2d at 82. We noted that \u201ceither one agreement was made or two agreements were made. Both views cannot exist at the same time.\u201d Id. Accordingly, we vacated the defendants\u2019 convictions on the separate offenses.\nIn the instant case, by finding defendant guilty of the lesser-included offense of assault with a deadly weapon inflicting serious injury, the jury necessarily found that defendant did not have the \u201cintent to kill\u201d Marzette required to convict defendant of the greater offense of assault with a deadly weapon with intent to kill inflicting serious injury. However, by subsequently finding defendant guilty of attempted voluntary manslaughter, the jury also necessarily found that defendant had the intent to kill Marzette, but that \u201cheat of passion, arising from sudden provocation, negated the element of malice and made [defendant\u2019s] mind incapable of \u2018cool\u2019 premeditation and deliberation.\u201d Rainey, 154 N.C. App. at 288, 574 S.E.2d at 29. These two verdicts are logically inconsistent, in that defendant either did or did not have the intent to kill Marzette when he shot her. Because \u201c[b]oth views cannot exist at the same time[,]\u201d Hall, 104 N.C. App. at 386, 410 S.E.2d at 82, we conclude that the trial court erred by entering judgment on both convictions.\nAlthough we note that the trial court imposed the same sentence for both convictions and ordered that they run concurrent, our courts have previously held that separate convictions for mutually exclusive offenses, even though consolidated for a single judgment, have potentially severe adverse collateral consequences. See Ball v. United States, 470 U.S. 856, 865, 84 L. Ed. 2d 740, 748 (1985); State v. Barnes, 324 N.C. 539, 540, 380 S.E.2d 118, 119 (1989) (per curiam). Furthermore, \u201c[w]here the trial court fails to instruct the jury that it may convict the defendant of only one of the mutually exclusive offenses, the jury returns guilty verdicts on the mutually exclusive offenses, and the trial court consolidates the offenses for a single judgment, the defendant is entitled to a new trial.\u201d Hall, 104 N.C. App. at 387, 410 S.E.2d at 82 (citing Speckman, 326 N.C. at 580, 391 S.E.2d at 167-68). Therefore, in light of the foregoing, we are compelled to hold that the trial court\u2019s error in the instant case was not harmless, and, accordingly, we order a new trial with respect to the shooting of Marzette.\nIn conclusion, we hold that defendant received a trial free of prejudicial error with respect to the voluntary manslaughter of Hames. However, with respect to the shooting of Marzette, we order a new trial.\nNo error in part; new trial in part.\nJudges CALABRIA and GEER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Fred Lamar, for the State.", "Miles & Montgomery, by Lisa Miles, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARTHUR HAMES\nNo. COA04-968\n(Filed 17 May 2005)\n1. Evidence\u2014 statements at scene of shooting \u2014 admissibility limited \u2014 no prejudice\nIn light of the evidence introduced by defendant during his case-in-chief about his statements at the scene of a shooting tending to show that he acted in self-defense, there was no prejudice from the limitation of defendant\u2019s questioning of law enforcement officers about those statements during the State\u2019s case-in-chief.\n2. Evidence\u2014 witness\u2019s statement at scene \u2014 not trustworthy \u2014 not excited utterance\nThere was no abuse of discretion in excluding a witness\u2019s statement, claimed to be an excited utterance, where an officer testified that the witness had appeared intoxicated and that she had changed her story while talking to him. The rationale for the excited utterance exception is trustworthiness; moreover, the testimony would only have corroborated other evidence.\n3. Criminal Law\u2014 inconsistent verdicts \u2014 manslaughter and assault \u2014 intent to kill\nA new trial was awarded where the offenses of which defendant was found guilty were mutually exclusive and the jury\u2019s verdicts were logically inconsistent. Defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury and attempted murder of the same victim, and found guilty of assault with a deadly weapon inflicting serious injury and voluntary manslaughter. The jury necessarily found intent to kill for the manslaughter but not for the assault.\nAppeal by defendant from judgment entered 4 December 2003 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 March 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Fred Lamar, for the State.\nMiles & Montgomery, by Lisa Miles, for defendant-appellant." }, "file_name": "0312-01", "first_page_order": 342, "last_page_order": 353 }