{ "id": 4156855, "name": "STATE OF NORTH CAROLINA, Plaintiff v. BREON JERRARD BEATTY, Defendant", "name_abbreviation": "State v. Beatty", "decision_date": "2008-04-01", "docket_number": "No. COA07-593", "first_page": "464", "last_page": "473", "citations": [ { "type": "official", "cite": "189 N.C. App. 464" } ], "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": "644 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638379, 12638380, 12638381 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0555-01", "/se2d/644/0555-02", "/se2d/644/0555-03" ] }, { "cite": "639 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637635 ], "weight": 2, "pin_cites": [ { "page": "80" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0078-01" ] }, { "cite": "357 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "year": 1987, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0064-01" ] }, { "cite": "572 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "242", "parenthetical": "quoting State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987)" }, { "page": "242" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250118 ], "year": 2002, "pin_cites": [ { "page": "372", "parenthetical": "quoting State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0366-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "889", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "93-94", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "463 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "342 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796093 ], "year": 1995, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0123-01" ] }, { "cite": "361 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745058, 3736136, 3740395, 3737164, 3747250, 3736854, 3737407 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0364-07", "/nc/361/0364-02", "/nc/361/0364-06", "/nc/361/0364-03", "/nc/361/0364-04", "/nc/361/0364-01", "/nc/361/0364-05" ] }, { "cite": "608 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "359 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802538 ], "year": 2005, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0312-01" ] }, { "cite": "181 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373678 ], "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0287-01" ] } ], "analysis": { "cardinality": 852, "char_count": 21028, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13539109809104702 }, "sha256": "de32832266cbd4c17537081f00a74ac78e0cdf04c3b2efc71433c59b2f3bc038", "simhash": "1:8a2ffdfa057c17fa", "word_count": 3560 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NO ERROR.", "Judges HUNTER and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. BREON JERRARD BEATTY, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of voluntary manslaughter. Defendant appeals. The issues before this Court are whether the trial court erred (1) in refusing to give defendant\u2019s proposed jury instruction and (2) in admitting a notebook into evidence. For the following reasons, we find no error.\nI. Background\nThe State\u2019s evidence tended to show the following: On 11 January 2005, Calib Thomas (\u201cThomas\u201d), Antonio Dent (\u201cDent\u201d), and several other boys were at the Joy Store Food Mart (\u201cFood Mart\u201d) when they saw \u201ctwo dudes riding on bikes . . . throwing gang signs\u201d which they recognized to be from the Folk Nation (\u201cFolk\u201d) gang. At the Food Mart, Thomas and Dent were associating with gang members from the Bloods and the Crips. Thomas and Dent approached the boys throwing gang signs. Dent said, \u201cBlood Time\u201d to the two boys on bikes who said they didn\u2019t \u201cbang\u201d (were not members of the gang). Thomas and Dent then left them alone arid went to Jarrell\u2019s house to smoke.\nLater Thomas and Dent returned to the Food Mart and then decided to visit Thomas\u2019 aunt. As Thomas and Dent were crossing Banner Street they saw three \u201cdudes on bikes\u201d in the Advance Auto parking lot, including the two individuals from their earlier encounter and defendant. Thomas knew defendant because they had attended the same school. Defendant pulled out a gun and Thomas heard shots as he and Dent headed back to the Food Mart. Dent asked if he was shot and then \u201cstarted shaking, his eyes started rolling back in his head, he fell down, and that\u2019s when he started screaming and saying call the ambulance.\u201d Dent died as a result of \u201ca gunshot wound of the abdomen.\u201d\nOn 22 February 2005, Cindy Felts (\u201cFelts\u201d), a crime scene investigator with the Durham Police Department visited defendant\u2019s home \u201cto locate documents and collect evidence from the scene.\u201d Felts found a red notebook \u201cin the bottom left dresser drawer\u201d in the bedroom belonging to defendant\u2019s brother, Nick. That same day a warrant was issued for defendant\u2019s arrest because defendant \u201cunlawfully, willfully and feloniously did of malice aforethought kill and murder Antonio Demetrius Dent.\u201d On or about 21 March 2005, defendant was indicted for second degree murder. On 5 September 2006, defendant notified the State he would be claiming self-defense. Trial was held 14-27 September 2006.\nDuring defendant\u2019s case-in-chief, defendant testified that he was a member of the Folk gang and that he shot Dent because Dent had pulled a gun on him. Defendant was convicted of voluntary manslaughter, but the jury did not find an aggravating factor regarding gang involvement. Defendant appeals. The issues before this Court are whether the trial court erred (1) in refusing to give defendant\u2019s proposed jury instruction and (2) in admitting the red notebook into evidence. For the following reasons, we find no error.\nII. Proposed Jury Instruction\nDefendant first contends \u201c[t]he trial court erred when it denied Mr. Beatty\u2019s request for jury instructions supported by the evidence and by the law.\u201d Defendant argues that the refusal of the trial court to submit the proposed jury instructions was prejudicial error. We disagree with defendant\u2019s argument.\nAt the charge conference, defendant\u2019s counsel proposed three jury instructions, only one of which is before us on appeal. The proposed jury instruction which is at issue read,\nLadies and Gentlemen of the Jury, I further instruct you that\nWhen a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force; and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable [sic].\nOne who merely does an act which affords an opportunity for conflict is not thereby precluded from claiming self-defense. Fault implies misconduct not lack of judgment. That one is armed does not foreclose the right of self-defense if otherwise the defendant would have been entitled to the defense.\nDuring the discussions regarding the proposed instruction, the trial court initially declined to give the instruction, then agreed to give the instruction, and then later declined to give the instruction. Defendant\u2019s counsel objected. The jury was brought back into the courtroom and heard defendant\u2019s closing argument. The jury was then excused for lunch and the judge asked the attorneys if they had any further requests before the lunch break; the attorneys did not.\nUpon reconvening, outside of the presence of the jury, the judge reviewed the jury instructions which he intended to give. Both attorneys actively analyzed the instructions and defendant\u2019s counsel did not bring up the proposed jury instruction, which was not included in the final instructions. The jury entered the courtroom and heard the State\u2019s closing argument. The court then took an afternoon break and the judge again asked the lawyers outside of the presence of the jury if they would like to address any other matters; neither attorney did.\nUpon reconvening from their afternoon break, the court handed out the jury instructions for the jurors to follow along with as they were read aloud. Those instructions did not contain defendant\u2019s proposed jury instruction. After being instructed the jury retired to the jury room to select a foreperson. The judge asked the attorneys if there were \u201cany requests for any additional, or modified, or corrected instructions or anything of that nature[.]\u201d Defendant\u2019s counsel did not mention the proposed jury instruction.\nWhen the jury returned, the judge gave some final instructions and dismissed the jury for the evening. Before leaving for the evening, the trial judge asked the attorneys one final time if they had anything further; neither attorney did.\nUpon reconvening the next day, the judge sent the jury back into the jury room for deliberations and asked the attorneys if there was anything they needed to talk about; defense counsel did not address the proposed instruction. After approximately two hours, the court received two notes from the jury \u2014 one requesting \u201ca better definition of aggressor and of excessive force\u201d and the other requesting a break. In discussing the issue of a \u201cbetter definition of aggressor and of excessive force\u201d defendant\u2019s counsel again requested the proposed jury instruction and the court agreed to instruct the jury accordingly, stating that he had intended to give that instruction earlier and had \u201cneglected\u201d to do so.\nThe judge then informed the jury,\nI further instruct you at this time that if you find from the evidence that the defendant was not the aggressor, he could stand his ground and repel force with force, regardless of the character of the assault being made upon \"him. However, the defendant would not be excused if he used excessive force.\nWe note that the record indicates that the judge\u2019s stated intent was to give the instruction as previously requested by defendant\u2019s counsel, because he had \u201cneglected\u201d to do so. Defendant did not object to the instruction as given or request any modification to it. After the jury again retired to deliberate the judge asked the attorneys if they had anything further and defendant\u2019s counsel did not address the proposed jury instruction.\n\u201cWhere a defendant fails to properly object at trial, he may argue plain error on appeal. N.C.R. App. P. 10(c)(4). However, [where a] defendant h\u00e1s not asserted plain error .. . [he] has waived plain error review.\u201d State v. Johnson, 181 N.C. App. 287, 290, 639 S.E.2d 78, 80 (citing State v. Dennison, 359 N.C. 312, 312, 608 S.E.2d 756, 757 (2005)), disc. rev. denied, 361 N.C. 364, 644 S.E.2d 555 (2007).\nHere, defendant argues the trial court erred in refusing to give his proposed jury instruction. However, the trial court actually did give the proposed jury instruction and afterward defendant did not object at trial to the substance of the instruction as given. We are aware that the trial judge originally declined to give defendant\u2019s proposed jury instruction and that the proposed jury instruction was not actually given to the jury until almost two hours after the jury had begun deliberations; however, defendant does not argue that this delay caused any prejudice, but rather only contends that his proposed jury instructions were not given and that he was prejudiced because of the failure of the trial court to give the proposed jury instructions. We find defendant\u2019s argument to be factually incorrect as an instruction addressing the same issue as the proposed instructions was actually given to the jury, even if the wording was not exactly as defendant had proposed. We note that defendant has not objected to the wording of the instruction as given, but instead contends that the instruction was not given at all. However, the instruction was given and defendant did not object or request any modification or addition to the instruction when it was given. Defendant also failed to assert plain error on this appeal. Therefore, this issue is not properly before us. See Johnson at 290, 639 S.E.2d at 80.\nIII. Admissibility of the Red Notebook\nDefendant next contends \u201c[t]he trial court erred when it overruled [defendant's objection to the admission of the red notebook found in [defendant's brother\u2019s room because no evidence connected the notebook to the [defendant and any probative value was outweighed by its prejudicial effect.\u201d \u201cWhether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion.\u201d State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995).\nAt trial defendant\u2019s counsel objected to the introduction of the red notebook found by Felts into evidence and the following dialogue took place outside of the presence of the jury:\nMS. BROWN: Your Honor, I would object based on the fact that there is no tie-in with my client and that notebook, at least\u2014 maybe the State is going to bring a tie-in later, but at the moment, I would just \u2014 I\u2019d object insofar as being admitted in this case. I certainly would not object to the fact that they have shown a chain of custody and having received that notebook out of the house, and they properly brought it here, and I don\u2019t contend that there\u2019s any alteration to the notebook or anybody has done anything to the notebook. I\u2019m just simply saying \u2014 the State is yet to make a connection between that notebook that was found in in [sic] Nicholas\u2019 room with my client. And so I at this moment, I would object to that.\nTHE COURT: So is it a relevancy argument at this point?\nMS. BROWN: It\u2019s a relevancy argument.\nTHE COURT: Mr. Saacks.\nMR. SAACKS: Your Honor, clearly, this notebook and the whole reason that this is an argument is this notebook has a bunch of gang graffiti and bunch of gang information inside of it. The point is just like anything that\u2019s found in a house would be relevant. For instance, if a movie was found in the living room, or the den, or a book, you know, that outlined how to do something, even though you can\u2019t show that the defendant actually read that book or saw that movie, it would be relevant and be circumstances to be considered by the jury. The point is that even though this is Nick\u2019s room, this is obviously a close family member of this defendant, and he probably had access to it. It\u2019s in the home where he\u2019s living and it was in the room of an immediate family member that was there.\nI agree with what we were talking about before, I think that goes to the weight of the evidence as opposed to the admissibility of it, and I think there will be some further evidence which shows even more relevance than what already does exist, because there\u2019s going to be other items coming up, another notebook that was found in this defendant\u2019s room, that has the same kinds of gang graffiti in it as well. So it\u2019s going to corroborate each other to show that he\u2019s involved, just as his brother, in this kind of gang stuff.\nSo we would argue that clearly goes to the weight. If he wants to argue that at closing, that\u2019s fine, but it has nothing to do with whether it\u2019s admissible or not.\nTHE COURT: Let me make sure I understand what you\u2019re saying. What you\u2019re saying is that there is another notebook that was' found in this defendant\u2019s room?\nMR. SAACKS: Yes, sir.\nTHE COURT: That has basically the same types, of information.\nMR. SAACKS: Not everything, but some of the same types, yes, sir. Specifically, some of the same symbols and graffiti and things like that. And this will come out when Detective Dodson gets on the stand and talks about that. The red notebook is more of what might be known as a Book of Knowledge. It\u2019s really a gang manual. It gives a lot of codes, it gives a lot of symbols, it gives a lot of terms that are used. In the blue notebook you\u2019re going to have a lot of just random drawings and things of that nature, but\u2014 which are very similar, or the same, as to what is found in the red notebook that was found in Nicholas\u2019 room.\nTHE COURT: And other than it being information that a family member had, the defendant had, you know, potentially had access to, is there any other tie between this defendant and that notebook, other than it was in the house?\nMR. SAACKS: Only other thing I can think of is that, you know, we had the school issue, there was that graffiti on the school desk that was done earlier. I don\u2019t know when this notebook was prepared, so I can\u2019t say the school graffiti was before the notebook was prepared. Certainly before it was found. That would be' the only other thing that I would think, plus, obviously, the gang issue being involved. I mean this all goes to the same basic motive that we keep talking about in this case and what\u2019s going on out there. It\u2019s gang related, it\u2019s a gang motive. And this is showing either gang knowledge or gang involvement.\nTHE COURT: Mr. Brown, do you want to be heard in response to that?\nMR.' BROWN: Well, as the Court well knows, from the time we did jury voir dire, we never contended that our client was not a member of a gang, and we do not now contend he\u2019s not a member of the gang. We have not changed our position on that. We\u2019re\u2014 and we don\u2019t \u2014 we don\u2019t disagree with Mr. Saacks that what he found in my client\u2019s room is not relevant and should not be admitted. We\u2019re not objecting to that. We\u2019re just simply saying that insofar as what\u2019s in his brother\u2019s room, he can\u2019t be held liable for his brother\u2019s stuff unless there\u2019s some tie-in here.\nNow, I don\u2019t doubt for a second that there is gang material in the notebook that they took from Mr.- \u2014 from Breon\u2019s room, but, and certainly \u2014 and I don\u2019t object to it. I don\u2019t object. But just insofar as this \u2014 insofar as Nicholas\u2019 room, unless there\u2019s some tie-in, I just simply contend that he would be no more guilty than if, you know, for example, you know, you found some child pornography in, you know, the father\u2019s bedroom, or something, you know, that would not make my client guilty of that. It would-n\u2019t make the whole house guilty of that.\nTHE COURT: Well, let me ask this. If your position during the course of this trial is that your client is in fact a member of a gang, and that there\u2019s no dispute as to that, there\u2019s no dispute as to the gang \u2014 the particulars of the gang involvement, what\u2019s the prejudice in this coming in? Is there any particular prejudice based on the information contained in the notebook, or is it just that this is not something that was found in his room and therefore it shouldn\u2019t be tied to him?\nMR. BROWN: May we approach the bench?\nTHE COURT: Sure. .\n(Bench conference not reported.)\nTHE COURT: All right, with respect to the defendant\u2019s objection as to the introduction of State\u2019s Exhibit \u2014 -is it 30 \u2014 State\u2019s Exhibit 30, the objection is overruled. Based on a consideration of the probative value and the potential prejudice, I do find that under Rule 403 that the probative value of the evidence outweighs the potential of any unfair prejudice, given that there is no dispute as to the defendant\u2019s involvement in gang-related activities, and that there is in fact another notebook of similar \u2014 of a similar nature and quality that was found in the defendant\u2019s room, I do find that there is some probative value as to the notebook and the potential for unfair prejudice is fairly low. So the objection is overruled.\nThe red notebook was then admitted into evidence. The blue notebook was also later admitted into evidence.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401. \u201cAll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 402.\n[R]elevant evidence may be excluded if the probative value of the evidence is substantially outweighed by unfair prejudice. N.C. Gen. Stat. \u00a7 8C-1, Rule 403.\nRule 403 calls for a balancing of the proffered evidence\u2019s probative value against its prejudicial effect. Necessarily, evidence which is probative in the State\u2019s case will have a prejudicial effect on the defendant; the question, then, is one of degree. The relevant evidence is properly admissible under Rule 402 unless the judge determines that it must be excluded, for instance, because of the risk of unfair prejudice. See N.C.G.S. \u00a7 8C-1, Rule 403 (Commentary) (Unfair prejudice\u2019 within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.)\nState v. Cunningham, 188 N.C. App. -, \u2014, \u2014 S.E.2d \u2014, \u2014 (2008) (quoting State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986) (internal quotations omitted)).\nThe burden is on the party who asserts that evidence was improperly admitted to show both error and that he was prejudiced by its admission. The admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded.\nState v. Taylor, 154 N.C. App. 366, 372, 572 S.E.2d 237, 242 (2002) (quoting State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987)).\nWe need not address whether the red notebook was relevant, as even assuming arguendo that the red notebook was irrelevant, defendant failed to establish prejudice as the blue notebook found in defendant\u2019s room containing gang information was entered into evidence without objection and defendant himself testified that he was a member of the Folk gang. See N.C. Gen. Stat. \u00a7 15A-1443(a) (2005); Taylor at 372, 572 S.E.2d at 242. Furthermore,' the jury specifically found that the following aggravating factor did not exist: \u201cThe offense was committed for the benefit of any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, and the defendant was not charged with committing a conspiracy!;]\u201d as the jury did not find that gang involvement was an aggravating factor of the crime, we see no undue prejudice from the introduction of the red notebook containing gang information into evidence. This argument is overruled.\nIV. Conclusion\nFor the foregoing reasons, we find that the trial court did not err in the jury instructions it provided or in admitting the red notebook into evidence. Accordingly, we conclude that defendant received a fair trial, free from prejudicial error.\nNO ERROR.\nJudges HUNTER and CALABRIA concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Special Deputy Attorney General Melissa L. Trippefor the State.", "Leslie C. Rawls for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. BREON JERRARD BEATTY, Defendant\nNo. COA07-593\n(Filed 1 April 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 proposed instruction \u2014 given without objection \u2014 plain error not alleged\nAn issue concerning a self-defense instruction in a homicide case was not properly before the appellate court where the proposed instruction was given (despite' defendant\u2019s contention to the contrary) and defendant did not object to the wording, request any modification or addition, and did not assert plain error.\n2. Evidence\u2014 notebook found in brother\u2019s bedroom \u2014 prejudice not established\nDefendant did not establish prejudice from the admission of a notebook with gang information found in the bedroom of defendant\u2019s brother, assuming that the notebook was irrelevant. The jury did not find that gang involvement was an aggravating factor.\nAppeal by defendant from judgment entered on or about 27 September 2007 by Judge Ripley E. Rand in Superior Court, Durham County. Heard in the Court of Appeals 28 November 2007.\nAttorney General Roy A. Cooper, III by Special Deputy Attorney General Melissa L. Trippefor the State.\nLeslie C. Rawls for defendant-appellant." }, "file_name": "0464-01", "first_page_order": 496, "last_page_order": 505 }