{ "id": 8244080, "name": "STATE OF NORTH CAROLINA v. BRIAN DECARLOS JUNIOUS, Defendant", "name_abbreviation": "State v. Junious", "decision_date": "2006-12-19", "docket_number": "No. COA06-169", "first_page": "656", "last_page": "663", "citations": [ { "type": "official", "cite": "180 N.C. App. 656" } ], "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": "624 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634819 ], "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0329-01" ] }, { "cite": "444 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "336 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534862 ], "year": 1994, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0499-01" ] }, { "cite": "166 L. Ed. 2d 281", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "588 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "357 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491533 ], "year": 2003, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0068-01" ] }, { "cite": "360 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792897 ], "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0231-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "150", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "year": 2002, "pin_cites": [ { "page": "518", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "380 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "97", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486845 ], "year": 1989, "pin_cites": [ { "page": "495", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0489-01" ] }, { "cite": "577 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511488, 1511204, 1511286, 1511583 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0682-01", "/nc/356/0682-02", "/nc/356/0682-03", "/nc/356/0682-04" ] }, { "cite": "524 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240802 ], "year": 2000, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0515-01" ] }, { "cite": "572 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "211", "parenthetical": "quoting State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250142 ], "year": 2002, "pin_cites": [ { "page": "381", "parenthetical": "quoting State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0375-01" ] } ], "analysis": { "cardinality": 736, "char_count": 18923, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2017001763423273 }, "sha256": "5182d30c6ef97762ef6f685ab7dce70d6249b7638499689ba796066a2d22918a", "simhash": "1:eb6f703b5e6e10b1", "word_count": 3106 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BRIAN DECARLOS JUNIOUS, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nBrian DeCarlos Junious (defendant) appeals from judgments dated 9 August 2005, entered consistent with a jury verdict finding defendant guilty of possession of a firearm by a felon, discharging a firearm into an occupied vehicle, and first degree murder. For the reason's below, we find no error occurred at defendant\u2019s trial.\nFacts\nAt approximately 2:30 a.m. on the morning of 5 July 2003 Wayne Mitchell was shot multiple times from close range as he sat behind the wheel of his green Ford Expedition in the parking lot outside the Seahorse Lounge in Wilmington, North Carolina. Wayne Mitchell bled to death at the scene of the shooting as a result of one of the gunshot wounds he sustained. Defendant was seen with a handgun standing at the passenger window of Wayne Mitchell\u2019s Ford Expedition and shooting into the vehicle.\nShannon Mitchell was a passenger in the backseat of defendant\u2019s vehicle that morning, trying, to go to sleep but he was awakened by the sound of gunshots. Looking up, Shannon Mitchell saw defendant standing by the passenger side door of Wayne Mitchell\u2019s Ford Expedition with his arm in the window, and the person in the Ford Expedition was \u201cbouncing in the truck.\u201d Upon entering his own vehicle, defendant placed a semi-automatic handgun on the armrest and drove off. D\u00e9fendant later gave Shannon Mitchell the semi-automatic handgun and told him to get rid of the gun.\nOn 25 August 2003, responding to a tip regarding the location of the handgun used in the shooting, Officer Michael Overton of the Wilmington City Police Department located and took custody of a rusted Taurus nine-millimeter semi-automatic handgun he found inside a plastic Food Lion bag by a trash can in a Wilmington City Park. This was the same handgun defendant gave Shannon Mitchell. All of the casings and bullets recovered from the shooting scene were fired from the Taurus firearm.\nProcedural History\nOn 5 January 2004, defendant was indicted by the New Hanover County Grand Jury for the offense of first degree murder. Defendant was subsequently indicted on 1 March 2004 for the offenses of discharging a firearm into an occupied vehicle and possession of a firearm by a felon. From 1 August to 9 August 2005, defendant was tried before a jury on these charges in New Hanover County Superior Court, the Honorable W Allen Cobb, Jr., presiding. On 9 August 2005, the jury returned a verdict of guilty on all three charges, and the trial court entered judgments consistent with the jury verdict.\nDefendant was sentenced to a term of imprisonment of sixteen to twenty-one months for the conviction on the charge of possession of a firearm by a felon, and a term of life imprisonment without the possibility of parole for the conviction on the charge of first degree murder. The trial court arrested judgment for the conviction on the charge of discharging a firearm into an occupied vehicle because it served as the underlying felony in defendant\u2019s first degree murder conviction. Defendant appeals.\nDefendant raises the issues of whether the trial court erred in: (I) stating in its instructions to the jury the specific facts shown by the State\u2019s 404(b) evidence, but not mentioning defendant\u2019s contentions; (II) overruling defendant\u2019s objections to the prosecutor\u2019s closing argument; and (III) denying defendant\u2019s motion to dismiss based upon the State\u2019s failure to provide him with exculpatory information.\nI\nDefendant first argues the trial court erred in stating, in its instructions to the jury, the specific facts shown by the State\u2019s 404(b) evidence but not mentioning defendant\u2019s contentions. At trial the State introduced evidence of a prior confrontation between defendant and Officer Eddie Reynolds. Officer Reynolds testified as to a previous encounter with defendant where he saw defendant with a semiautomatic handgun. This evidence was admitted pursuant to Rule 404(b) of the North Carolina Rules of Evidence for the purpose of showing the identity of the person who committed the crimes charged in this case and to show that defendant had the requisite intent to commit the crimes charged. See N.C. Gen. Stab \u00a7 8C-1, Rule 404(b) (2005).\nDuring the subsequent charge conference at trial, defendant brought forward his concern over the trial court\u2019s instruction on the Rule 404(b) evidence presented at trial. In regards to this instruction, the State asked for the following:\nYour Honor, I would say evidence from Officer Eddie Reynolds to show the Defendant on a prior occasion had possession of an automatic firearm, that he kept this firearm tucked in his front belt and that he pulled the firearm on the \u2014 I guess the security guard, Officer Reynolds, or you could just say you got evidence from Officer Reynolds concerning an altercation on a prior occasion and let the jury determine what the facts were.\nDefendant objected to this request, seeking to limit the specific evidence listed in the charge, and requested the trial court give the instruction stating that \u201cevidence has been received to show that at an earlier time the Defendant possessed what appeared to be a handgun.\u201d During its charge to the jury, the trial court instructed that\nevidence has been received tending to show that Officer Eddie Reynolds saw the Defendant at an earlier time and that the Defendant possessed what appeared to be a handgun. This evidence was received in this trial solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed, and that the Defendant had the intent, which is a necessary element of the crime charged in this case. If you believe this evidence, you may consider it but only for the limited purpose for which it was received.\nIt is well settled that \u201c \u2018[i]f a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court must give the instruction at least in substance.\u2019 \u201d State v. Childers, 154 N.C. App. 375, 381, 572 S.E.2d 207, 211 (2002) (quoting State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000)), cert. denied, 356 N.C. 682, 577 S.E.2d 899 (2003). The instruction given by the trial court is substantially similar to that which defendant requested, the only difference is that the trial court\u2019s actual instruction identifies Officer Eddie Reynolds as the person who saw defendant in possession of what appeared to be a handgun. The instruction was given pursuant to Instruction 104.15 of the North Carolina Pattern Jury Instructions. See N.C.P.I. \u2014 Crim. 104.15 (1984). Instruction 104.15 is a limiting instruction which the trial court gives to inform the jury that certain evidence was admitted solely for other purposes pursuant to Rule 404(b).\nDefendant argues that by stating the specific evidence which was admitted solely for 404(b) purposes, as required under Instruction 104.15 of the North Carolina Pattern Jury Instructions, the trial court improperly gave its opinion as to the State\u2019s evidence and prejudiced defendant by emphasizing the State\u2019s evidence over his contentions. First, we note that \u201c[t]he use of the words \u2018tending to show\u2019 or \u2018tends to show\u2019 in reviewing the evidence does not constitute an expression of the trial court\u2019s opinion on the evidence.\u201d State v. Young, 324 N.C. 489, 495, 380 S.E.2d 94, 97 (1989) (citations omitted). In its instruction regarding the State\u2019s 404(b) evidence, the trial court stated that \u201cevidence has been received tending to show[,]\u201d thus the trial court has not expressed an opinion as to this evidence. Further, contrary to defendant\u2019s argument, the challenged instruction did not emphasize the State\u2019s evidence, but appropriately informed the jury that if the evidence was believed, it could only be considered for the limited purpose for which it was received. This assignment of error is overruled.\nII\nDefendant next contends the trial court erred in overruling defendant\u2019s objections to the prosecutor\u2019s closing argument. During closing arguments, defendant twice objected to statements made by the prosecutor referencing testimony that a female passenger in defendant\u2019s truck stated \u201c[the victim] deserved it\u201d immediately after the shooting. Defendant argues the trial court abused its discretion in overruling his objections and allowed the prosecutor to focus on the female\u2019s statement that \u201c[the victim] deserved it\u201d and argue to the jury that defendant believed the victim deserved to die because the victim hit defendant\u2019s truck. We disagree.\nOur Supreme Court has consistently held that trial \u201ccounsel must be allowed wide latitude in the argument of hotly contested cases[,]\u201d and \u201cmay argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case.\u201d State v. Berry, 356 N.C. 490, 518, 573 S.E.2d 132, 150 (2002) (citation and quotations omitted). Where there is an objection to a statement made during closing arguments, \u201cthis Court must determine \u2018whether the trial court abused its discretion by failing to sustain the objection.\u2019 \u201d State v. McNeill, 360 N.C. 231, 245, 624 S.E.2d 329, 339 (quoting State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003)), cert. denied, - U.S. \u2014, 166 L. Ed. 2d 281 (2006). Our inquiry has two parts: \u201c[f]irst, this Court must determine whether the remarks were in fact improper; second, this Court must determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.\u201d Id. (citation and quotations omitted).\nAt trial, Shannon Mitchell testified for the State that after shooting the victim and returning to his vehicle, defendant said the victim hit defendant\u2019s truck and a female passenger responded that \u201c[the victim] deserved it.\u201d Defendant did not object to Mitchell\u2019s testimony and the female passenger was never identified and did not testify. At the start of his closing argument the prosecutor stated:\nWith all the credible evidence, this man was literally gunned down in the street because ... of what can only be described as a minor traffic accident.\nAnd what\u2019s most disturbing about that, not just that someone would feel the necessity to pull a gun and kill a man because he had an accident, was the voice that we heard shortly thereafter by the girl in the car, that he deserved it. You got an individual who got gunned down literally in the street because that man carried a gun and he didn\u2019t want to pay and so he took it upon himself to shoot a man over that.\nAnd even more disturbing is we have his friend, [saying] he deserved it, he deserved it. And there [are] a lot of people out there that feel that way, there [are] a lot of people that feel the first resort to anything that [doesn\u2019t] suit them is violence.\nWell, folks, Wayne Mitchell did not deserve to die. It\u2019s going to be up to you to let him know that he did not deserve to die. It\u2019s going to be up to you, the State [sic], in a loud clear voice: No, he did not. The State of North Carolina, his family, and justice requires that you tell these people that nobody deserves to die.\nContrary to defendant\u2019s argument, the statements of the prosecutor are not improper. The prosecutor never attributes the statement that the victim \u201cdeserved to die\u201d to defendant. The prosecutor uses the statement that the victim \u201cdeserved to die\u201d not as an argument that defendant believed the victim deserved to die, but as an opening imploring the jury to find the facts in the State\u2019s favor and convict defendant of the murder of Wayne Mitchell. Subsequent to the above-quoted language, which is the beginning of the prosecutor\u2019s closing argument, the prosecutor went on at length reviewing the evidence presented and allowable inferences, and did not \u201cfocus\u201d on the single statement made by the female passenger that the victim deserved to die. This assignment of error is overruled.\nIll\nDefendant lastly argues the trial court erred in denying defendant\u2019s motion to dismiss based upon the State\u2019s failure to provide him with exculpatory information. Prior to trial, defendant filed a motion to compel discovery pursuant to N.C. Gen. Stat. \u00a7 15A-903 (2005). The State subsequently disclosed to defendant that a potential eye witness, Ms. Haynes, did not identify defendant in a photographic array presented to her shortly after the shooting. Thereafter, at trial Ms. Haynes testified that not only did she not identify defendant in the photographic array, but she identified another man in the photographic array as the shooter. However, Ms. Haynes did identify defendant as the shooter at trial. In light of Ms. Haynes\u2019 testimony that she identified another man as the shooter in the photographic array, defendant filed a motion to dismiss the charges against him.\nThe trial court conducted a hearing on defendant\u2019s motion outside the presence of the jury, where the prosecutor in this case disclosed that he did not know Ms. Haynes had identified another man from the photographic array as the shooter until she so testified at trial. Further, the hearing revealed that Detective Michael Overton of the Wilmington City Police Department presented the photographic \u00e1rray to Ms. Haynes. Detective Overton testified that he did not recall Ms. Haynes pointing to any picture in the photographic array, and if she had, it would have been standard practice for Ms. Haynes to circle the photograph she chose and initial and date the card, which had not been done. The trial court denied defendant\u2019s motion to dismiss.\nDefendant now contends the State failed to provide him with exculpatory information showing that two hours after the shooting Ms. Haynes identified someone other than the defendant as the shooter. Defendant argues there is a reasonable probability that had Ms. Haynes alleged misidentification been disclosed, the result of the trial would have been different. However, the record before this Court, including the voir dire hearing on defendant\u2019s motion to dismiss, does not show that the State knew of any prior identification by Ms. Haynes. The prosecutor stated he knew of no such prior identification until Ms. Haynes testified in court, the detective conducting the photographic lineup stated he did not recall a prior identification, and the photographic array was not marked as required by the procedures of the Wilmington City Police Department indicating an identification by Ms. Haynes of someone in the photographic array as the shooter. Our Supreme Court has held:\nThe State cannot reasonably be expected to relate a statement to defendant which it has no knowledge of such as in the case at hand. Under these circumstances, we find that the State did not violate the discovery rules of N.C.G.S. \u00a7 15A-903(a); thus, the trial court did not err....\nState v. Godwin, 336 N.C. 499, 507, 444 S.E.2d 206, 210 (1994). Similarly, here the trial court did not err in denying defendant\u2019s motion to dismiss. This assignment of error is overruled.\nNo error.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRIAN DECARLOS JUNIOUS, Defendant\nNo. COA06-169\n(Filed 19 December 2006)\n1. Evidence\u2014 prior crimes or bad acts \u2014 possession of handgun \u2014 instruction\nThe trial court did not err in a possession of a firearm by a felon, discharging a firearm into an occupied vehicle, and first-degree murder case by stating in its instructions to the jury the specific facts shown by the State\u2019s N.C.G.S. \u00a7 8C-1, Rule 404(b) evidence regarding an officer\u2019s testimony of a prior encounter with defendant where he saw defendant with a semi-automatic handgun, but not mentioning defendant\u2019s contentions, because: (1) the trial court\u2019s instruction was substantially similar to what defendant requested, and the only difference was that the trial court\u2019s actual instruction identified the officer as the person who saw defendant in possession of what appeared to be a handgun; (2) the use of the words \u201ctending to show\u201d or \u201ctends to show\u201d in reviewing the evidence does not constitute an expression of the trial court\u2019s opinion of the evidence; and (3) contrary to defendant\u2019s argument, the challenged instruction did not emphasize the State\u2019s evidence, but appropriately informed the jury that if the evidence was believed, it could only be considered for the limited purpose for which it was received.\n2. Criminal Law\u2014 prosecutor\u2019s arguments \u2014 passenger stated victim deserved to die\nThe trial court did not abused its discretion in a possession of a firearm by a felon, discharging a firearm into an occupied vehicle, and first-degree murder case by overruling defendant\u2019s objections to the prosecutor\u2019s closing argument including the prosecutor referencing testimony that a female passenger in defendant\u2019s truck stated immediately after the shooting that the victim deserved it after defendant said the victim hit his truck, because: (1) the prosecutor never attributed the statement, that the victim deserved to die, to defendant; (2) the prosecutor used the statement as an opening imploring the jury to find the facts in the State\u2019s favor and convict defendant of the murder; and (3) the prosecutor went on at length reviewing the evidence presented and allowable inferences, and did not focus on the single statement made by the female passenger.\n3. Discovery\u2014 failure to disclose exculpatory information\u2014 identification of another person in photographs \u2014 no knowledge of information until trial\nThe trial court did not err in a possession of a firearm by a felon, discharging a firearm into an occupied vehicle, and first-degree murder case by denying defendant\u2019s motion to dismiss based upon the State\u2019s failure to provide him with exculpatory information that a witness identified another man as the shooter in the photographic array presented to her shortly after the shooting, because: (1) the prosecutor disclosed during a hearing outside the jury\u2019s presence that he did not know the witness had identified another man from the photographic array as the shooter until she so testified at trial; (2) the hearing revealed that the detective who presented the photographic array to the witness did not recall her pointing to any picture in the photographic array, and if she had, it would have been standard practice for the witness to circle the photograph she chose and initial and date the card, which had not been done; and (3) the State cannot reasonably be expected to relate a statement to defendant which it has no knowledge of such as in the case at hand.\nAppeal by defendant from judgments dated 9 August 2005 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 11 October 2006.\nAttorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant." }, "file_name": "0656-01", "first_page_order": 686, "last_page_order": 693 }