{ "id": 4158652, "name": "STATE OF NORTH CAROLINA v. LAMAR DAMEIAN BASS", "name_abbreviation": "State v. Bass", "decision_date": "2008-05-06", "docket_number": "No. COA07-604", "first_page": "339", "last_page": "349", "citations": [ { "type": "official", "cite": "190 N.C. App. 339" } ], "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": "655 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640208 ], "year": 2007, "pin_cites": [ { "parenthetical": "\"[0]n appeal, the standard of review of a trial court's decision to exclude or admit evidence is that of an abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0402-01" ] }, { "cite": "647 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638976 ], "year": 2007, "pin_cites": [ { "page": "684", "parenthetical": "\"[0]n appeal, the standard of review of a trial court's decision to exclude or admit evidence is that of an abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0679-01" ] }, { "cite": "625 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635046 ], "year": 2006, "pin_cites": [ { "page": "584", "parenthetical": "citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0575-01" ] }, { "cite": "334 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "747", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685694 ], "year": 1985, "pin_cites": [ { "page": "471", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0460-01" ] }, { "cite": "361 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735905, 3743043, 3746508, 3743410, 3738611, 3744404, 3735988, 3737112, 3740671 ], "year": 2007, "pin_cites": [ { "parenthetical": "\"[0]n appeal, the standard of review of a trial court's decision to exclude or admit evidence is that of an abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0703-04", "/nc/361/0703-05", "/nc/361/0703-03", "/nc/361/0703-06", "/nc/361/0703-07", "/nc/361/0703-09", "/nc/361/0703-01", "/nc/361/0703-02", "/nc/361/0703-08" ] }, { "cite": "185 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209211 ], "year": 2007, "pin_cites": [ { "page": "231-32", "parenthetical": "\"[0]n appeal, the standard of review of a trial court's decision to exclude or admit evidence is that of an abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0227-01" ] }, { "cite": "415 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "730", "parenthetical": "where State's evidence supported each element of first-degree murder, no instruction on second-degree murder was warranted" } ], "opinion_index": 0 }, { "cite": "331 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498038 ], "year": 1992, "pin_cites": [ { "page": "247", "parenthetical": "where State's evidence supported each element of first-degree murder, no instruction on second-degree murder was warranted" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0239-01" ] }, { "cite": "175 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352878 ], "year": 2006, "pin_cites": [ { "page": "623", "parenthetical": "citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0613-01" ] }, { "cite": "412 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171860 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "208" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/us/412/0205-01" ] }, { "cite": "539 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "924", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135796 ], "year": 2000, "pin_cites": [ { "page": "237", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0234-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "citations and internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "year": 1988, "pin_cites": [ { "parenthetical": "citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "313 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "527-28" } ], "opinion_index": 0 }, { "cite": "310 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402840 ], "year": 1984, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0541-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "278 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1981, "pin_cites": [ { "page": "222" }, { "page": "223" } ], "opinion_index": 0 }, { "cite": "303 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572874 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "295" }, { "page": "296" }, { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0293-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "410 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1991, "pin_cites": [ { "page": "481", "parenthetical": "citing State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984)" }, { "page": "481" }, { "page": "479" }, { "page": "481" }, { "page": "481" }, { "page": "481" } ], "opinion_index": 0 }, { "cite": "330 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512574 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "428", "parenthetical": "citing State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984)" }, { "page": "429" }, { "page": "425-26" }, { "page": "429" }, { "page": "428" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0425-01" ] }, { "cite": "321 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "312 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759556 ], "year": 1984, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0162-01" ] }, { "cite": "475 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "344 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867711 ], "year": 1996, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0242-01" ] }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "524", "parenthetical": "internal quotations omitted" }, { "page": "524", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "200", "parenthetical": "internal quotations omitted" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "548 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 15, "year": 2001, "pin_cites": [ { "page": "805", "parenthetical": "citation omitted" }, { "page": "803" }, { "page": "804" }, { "page": "803" }, { "page": "805" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435500 ], "weight": 7, "year": 2001, "pin_cites": [ { "page": "529", "parenthetical": "citation omitted" }, { "page": "530" }, { "page": "527" }, { "page": "527" }, { "page": "526" }, { "page": "530-31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0526-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "117" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "98" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] } ], "analysis": { "cardinality": 959, "char_count": 22943, "ocr_confidence": 0.752, "pagerank": { "raw": 5.8494565408735007e-08, "percentile": 0.36322021090804907 }, "sha256": "67b22b5ff6e80174ec4665b0646f0f5b2716bc4aca62251d262e4825bce94f40", "simhash": "1:b72ad522e1334c88", "word_count": 3795 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LAMAR DAMEIAN BASS" ], "opinions": [ { "text": "CALABRIA, Judge.\nLamar Dameian Bass (\u201cdefendant\u201d) appeals from a judgment entered upon a jury verdict finding him guilty of first-degree murder. We find no prejudicial error.\nAt trial, the State presented evidence showing that several people boarded a bus in downtown Durham, North Carolina on 26 December 2005. Brittany Johnson (\u201cJohnson\u201d), then fifteen years old, was already seated when defendant boarded the bus then sat down at the back of the bus near Johnson. Lazarren Tyqwan McClean (\u201cthe victim\u201d), his brother David Barnhill, Jr. (\u201cBarnhill\u201d), the victim\u2019s younger sister, Shenalda McClean (\u201cShenalda\u201d), then fourteen years old, and some friends also boarded the bus. Shenalda and her friend sat in two empty seats at the front of the bus. Johnson testified the bus was packed and defendant said \u201cthere\u2019s some seats back here,\u201d and told the victim \u201cas long as we separate you cool.\u201d Some of the girls on the bus knew Shenalda\u2019s brother and his friends and offered to give up their seats so the girls could sit on their laps. A boy who sat with defendant said \u201cthere ain\u2019t no room on the bus, you all are going to have to stand up.\u201d The victim sat near the middle of the bus in front of defendant and Johnson. The victim did not move to the back of the bus, but remained in his seat.\nJohnson observed an imprint of a gun in the defendant\u2019s pants pocket and after defense counsel\u2019s objection was overruled by the trial court, Johnson testified she heard someone say \u201cLamar got that burner.\u201d (The word \u201cburner\u201d is slang for a gun.) An unidentified boy on the bus wearing a yellowish gold jacket (\u201cboy with the gold jacket\u201d) and sitting next to the defendant said \u201cmy boy got a gun.\u201d Johnson said defendant smiled and said \u201cI\u2019m not going to shoot nobody.\u201d\nThe bus arrived at Northgate Mall in Durham, and stopped at the bus stop closest to Hechts department store (\u201cHechts\u201d). The victim and his companions exited the. bus followed by defendant and his friends. Defendant remarked to his Mends, \u201cI\u2019m going to have to snatch her up,\u201d referring to the victim\u2019s sister. The victim replied, \u201cain\u2019t nobody going to snatch my sister up.\u201d When Shenalda and the victim exited the bus, the boy with the gold jacket said \u201cwe[\u2019d] like to snatch the shorty in the white coat.\u201d (The word \u201cshorty\u201d is slang for a girl.) Shenalda was wearing a white coat. Defendant said, \u201cyeah, we\u2019d like to snatch the shorty in the white coat.\u201d The victim replied \u201cyou all ain\u2019t about [to] snatch the shorty in the white coat because that\u2019s my little sister.\u201d\nShenalda testified that the boy in the gold jacket replied \u201cwe was just playing.\u201d Shenalda stated the victim answered \u201cif you\u2019re just playing then why would you say something like that. . . because stuff can get serious around here.\u201d Shenalda testified that \u201c[defendant] and some other boys that [were] behind [the boy] in the yellowish gold[] coat . . . was saying[,] then what\u2019s popping. Popping meaning like what you want to do.\u201d The victim turned around and started walking to Northgate Mall when the shooting started.\nQuinzell Williamson (\u201cWilliamson\u201d) testified he was also on the bus. After he exited and was walking to the mall, he was shot in the back. Williamson was taken to the hospital and treated for his injuries.\nJohnson saw the victim run towards Hechts and defendant ran in the opposite direction around Hechts. Johnson did not see the gun or the shooting, but described what she saw and heard. She found the victim lying at the entrance to Hechts, saw blood running down his chest into his boxers and she heard him gasping for breath.\nBarnhill testified some boys said they would \u201csnatch\u201d the \u201cshorty in the white coat\u201d and the victim said \u201cyou all ain\u2019t going to touch my sister.\u201d The victim turned around and started walking to the mall. Barnhill heard gunshots, ducked to the side, and saw his brother run in front of him. Barnhill saw the defendant pointing a gun behind his brother and shooting.\nDr. Deborah Radisch, an associate chief medical examiner, performed an autopsy on the victim and determined the cause of death was a gunshot wound to \u201cthe left posterior chest or back.\u201d The defendant was charged with first-degree murder and assault with a deadly weapon inflicting serious injury.\nThe trial was held in Durham County Superior Court on 22 January 2007, before the Honorable Henry W. Hight, Jr. At the close of the State\u2019s evidence, defendant moved to dismiss for insufficient evidence. The trial court denied the motion. Defendant did not present any evidence at trial. At the close of all the evidence, defendant moved to dismiss for insufficient evidence and the trial court denied the motion.\nOn 25 January 2007, the jury returned a verdict finding defendant guilty of first-degree murder of the victim and not guilty of assault with a deadly weapon inflicting serious injury on Williamson. Defendant was sentenced to life imprisonment without parole in the North Carolina Department of Correction. Defendant appeals.\nI. Insufficient Evidence\nDefendant contends the trial court erred in denying his motion to dismiss at the close of all the evidence because the State failed to present sufficient evidence to support a charge of first-degree murder. We disagree.\nThe standard of review on a motion to dismiss for insufficient evidence is whether there is substantial evidence of each element of the offense charged and whether the defendant is the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is relevant evidence a \u201creasonabl\u00e9 mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The reviewing court considers the evidence in the light most favorable to the State, giving the State every reasonable inference arising from the evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117.\n\u201cFirst degree murder consists of the unlawful killing of another with malice, premeditation and deliberation.\u201d State v. Williams, 144 N.C. App. 526, 529, 548 S.E.2d 802, 805 (2001) (citation omitted). \u201cPremeditation means that the defendant thought about the killing for some length of time, however short, before he killed.\u201d State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985) (internal quotations omitted). \u201cDeliberation means that the intent to kill was formulated in a cool state of blood, one not under the influence of a violent passion suddenly aroused by some lawful or just cause or legal provocation.\u201d Id. Cool state of blood means that the defendant\u2019s anger or emotion was not \u201csuch as to overcome the defendant\u2019s reason.\u201d State v. Elliott, 344 N.C. 242, 267, 475 S.E.2d 202, 212 (1996).\nThis Court in State v. Williams, outlined a \u201cnon-exclusive list of factors to be considered in determining whether the defendant committed the crime after premeditation and deliberation....\u201d Williams, 144 N.C. App. at 530, 548 S.E.2d at 805 (citing State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984)). Those factors are: (1) lack of provocation on the part of the deceased; (2) the defendant\u2019s conduct and statements before and after the killing; (3) the defendant\u2019s threats and declarations before and during the course of the occurrence giving rise to the death of the deceased; (4) ill will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased was rendered helpless; and (6) evidence that the killing was done in a brutal manner. Id. The nature and number of the victim\u2019s wounds is also \u201ca circumstance from which an inference of premeditation and deliberation can be drawn.\u201d State v. Hunt, 330 N.C. 425, 428, 410 S.E.2d 478, 481 (1991) (citing State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984)).\nThe defendant asserts this case is controlled by State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981) and State v. Williams, 144 N.C. App. 526, 548 S.E.2d 802 (2001). In Corn, the defendant was lying on his sofa in his home, when the victim entered his home, sat beside him and began to argue with him. Corn, 303 N.C. at 295, 278 S.E.2d at 222. Defendant testified the victim grabbed him, began slinging him around, tried to hit him and accused him of being a homosexual. Id. Defendant pulled a .22 caliber rifle from a crack between the sofa cushion and the back of the sofa and shot the victim eight to ten times in the chest. Id. After the shooting, defendant called the police department and waited for law enforcement officers to arrive. Id. Defendant was convicted of first-degree murder and appealed, arguing lack of evidence to support premeditation and deliberation. Id., 303 N.C. at 296, 278 S.E.2d at 223. The Supreme Court remanded the case for a new trial, noting that\n[t]he shooting was a sudden event, apparently brought on by some provocation on the part of the deceased. The evidence is uncontroverted that [the victim] entered defendant\u2019s home in a highly intoxicated state, approached the sofa on which defendant was lying, and insulted defendant by a statement which caused the defendant to reply \u201cyou son-of-a-bitch, don\u2019t accuse me of that.\u201d\nId., 303 N.C. at 297-98, 278 S.E.2d 223-24.\nIn Williams, the victim was at a dance club when two patrons of the club started fighting. Williams, 144 N.C. App. at 527, 548 S.E.2d at 803. The fight ended and the club closed. Id. Soon thereafter, the patrons started fighting again and a crowd gathered outside the club to watch the fight. Id. Defendant and another man pushed people away to allow the two patrons to continue fighting. Id. Defendant pushed the victim back and \u201ctold him to allow a \u2018one on one fight.\u2019 \u201d Id. The victim punched the defendant in the jaw, defendant pulled a handgun and fired a shot which hit the victim in the neck and killed him. Id., 144 N.C. App. at 527, 548 S.E.2d at 804. Although defendant left the scene, the next day he surrendered to the sheriff\u2019s department. Id. Defendant was convicted of first-degree murder and appealed. Id., 144 N.C. App. at 526, 548 S.E.2d at 803. This Court held there was insufficient evidence to support premeditation and deliberation because there was no evidence 'the victim and defendant knew each other before the incident, defendant had not made threatening remarks to the victim, defendant was provoked by the victim\u2019s assault, the shooting occurred immediately after the victim\u2019s assault, and defendant turned himself in the next day. Id., 144 N.C. App. at 530-31, 548 S.E.2d at 805.\nIn State v. Hunt, the Supreme Court held there was sufficient evidence to support premeditation and deliberation, 330 N.C. at 429, 410 S.E.2d at 481. In Hunt, the defendant and the victim (the \u201cdeceased\u201d) were on a hill near a canal looking for an eight-ball of cocaine hidden near a tree. Id., 330 N.C. at 425-26, 410 S.E.2d at 479. After they were unable to locate the cocaine, the deceased became angry, called the defendant names and pushed him down the hill. Id. When the deceased started walking up the hill, the defendant took his pistol out of his pocket and shot the deceased three times. Id. There was evidence that the deceased\u2019s actions angered the defendant until \u201che formed the intention to kill the deceased and carried out this plan. The deceased was moving away from the defendant and there was sufficient time for the defendant to weigh the consequences of his act.\u201d Id., 330 N.C. at 429, 410 S.E.2d at 481.\nIn the case sub judice, viewed in the light most favorable to the State, there is sufficient evidence to support the elements of premeditation and' deliberation in the form of defendant\u2019s statements and conduct before and after the killing, ill will between the parties, and the nature and number of the victim\u2019s wounds. Hunt, 330 N.C. at 428, 410 S.E.2d at 481.\nUnlike the defendants in Williams and Com, in the instant case there was sufficient time for the defendant to contemplate his actions. Johnson testified she saw the imprint of a gun in defendant\u2019s pocket on the bus, the defendant told Johnson he was not going to \u201cshoot nobody.\u201d Shenalda testified another boy on the bus told her the defendant had a gun. Evidence was submitted that defendant told the victim \u201cas long as we separate you cool.\u201d A rational juror could infer that the defendant\u2019s remark was a threat. Three witnesses testified that the defendant made a remark about \u201csnatching\u201d the victim\u2019s sister. The victim responded to the remark, then turned around and started walking to the mall. Barnhill and Shenalda testified the victim had his back turned away from the defendant when defendant started shooting. Defendant did not surrender to law enforcement but was arrested. In addition, evidence was presented that the victim was shot twice in the back of the chest and in the back left shoulder.\nContrary to the defendant\u2019s characterization that the victim \u201cinitiated a quarrel by confronting Lamar Bass and his friends,\u201d viewed in the light most favorable to the State, the victim\u2019s response to defendant\u2019s comment about \u201csnatching\u201d his sister, does not rise to the level of provocation such as the physical altercations that provoked the defendants in Williams and Com. Furthermore, just as the defendant in Hunt shot the victim in the back, the victim here had his back turned when defendant fired his weapon, giving defendant adequate time to \u201cweigh the consequences of his act.\u201d Hunt, 330 N.C. at 429, 410 S.E.2d at 481. We conclude no error.\nII. Jury Instructions on Second-Degree Murder \u2014 Plain Error\nDefendant next contends the trial court\u2019s failure to instruct the jury on the charge of second-degree murder as a lesser included offense of first-degree murder was error. To the extent this error was not preserved, defendant asserts plain error. Defense counsel did not request an instruction from the trial court on the lesser included offense of second-degree murder, therefore we review this error under a plain error analysis. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).\nPlain error is a fundamental error, so lacking in its elements that justice cannot be done. State v. Murray, 310 N.C. 541, 546, 313 S.E.2d 523, 527-28 (1984), disapproved oh other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988) (citations and internal quotations omitted). Plain error amounts to a denial of a fundamental right of the accused such as denial of a fair trial or the error seriously impacted the fairness, integrity or public reputation of the judicial proceedings, or where \u201cit can fairly be said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Id.\n'\u201c[A] [defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury to rationally find him guilty of the lesser offense and acquit him of the greater.\u201d State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (internal quotations omitted) (citing Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). \u201cWhere there is no evidence to negate [the elements of the crime charged] other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense.]\u201d State v. Reid, 175 N.C. App. 613, 623, 625 S.E.2d 575, 584 (2006) (citations and internal quotations omitted); see also State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 730 (1992) (where State\u2019s evidence supported each element of first-degree murder, no instruction on second-degree murder was warranted).\nDefendant contends Shenalda\u2019s testimony establishes that the victim provoked the defendant. Shenalda testified that after the defendant said \u201cyeah, we\u2019d like to snatch the shorty in the white coat,\u201d the victim \u201cthreatened them like, you all ain\u2019t about to snatch the shorty in the white coat because that\u2019s my little sister.\u201d We disagree.\nThe victim\u2019s verbal response is unlike the provocation in Williams and Corn, where the victims in those cases reacted with physical violence. Furthermore, the witness\u2019 characterization of the event, \u201cthreatened them like,\u201d was not supported by any other evidence that the victim used violence or threatened violence in relation to his reactive statement regarding his sister. Given the encounter between the defendant and victim on the bus and defendant\u2019s comment to the victim \u201cas long as we separate we cool,\u201d the victim\u2019s verbal reaction to defendant\u2019s comment about his sister does not negate the elements of premeditation and deliberation. In addition, defendant shot the victim after the victim had his back turned. \u201cPremeditation means that the defendant thought about the killing for some length of time, however short, before he killed.\u201d Fields, 315 N.C. at 200, 337 S.E.2d at 524 (quotation and citation omitted). Without evidence to negate the elements of first-degree murder, no instruction on second-degree murder was warranted.\nDefendant also contends that the fact the jury took two days to deliberate and a juror\u2019s comment that \u201cit took us a long time\u201d to arrive at a verdict, \u201ccries out\u201d for a second-degree murder instruction. We disagree.\nThe standard of review is whether a jury could rationally find the defendant guilty of the lesser offense. Leazer, supra. We conclude that the evidence supports the elements of first-degree murder and the defendant did not present evidence to negate first-degree murder. Therefore, no instruction on second-degree murder is warranted. This assignment of error is overruled.\nIII. Admissibility of Evidence\nNext defendant asserts the trial court committed prejudicial error by admitting over the defendant\u2019s hearsay objection, two statements that were out-of-court statements in violation of N.C. Gen. Stat. \u00a7 8C-1, Rules 802 & 803 and N.C. Gen. Stat. \u00a7 15A-1442(4)(c) (2007). We disagree.\nThe standard of review on admissibility of evidence is abuse of discretion. State v. Wood, 185 N.C. App. 227, 231-32, 647 S.E.2d 679, 684, rev. denied by, 361 N.C. 703, 655 S.E.2d 402 (2007) (\u201c[0]n appeal, the standard of review of a trial court\u2019s decision to exclude or admit evidence is that of an abuse of discretion.\u201d) (citation and internal quotation omitted). \u201cA trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation omitted).\nDefendant asserts he properly objected to the admission of Johnson\u2019s testimony regarding a declarant\u2019s out-of-court statement and preserved this error for prejudicial error review. We agree. Defendant timely objected to the testimony, the trial court ruled on defendant\u2019s objection and defendant excepted from the trial court\u2019s ruling. N.C.R. App. P. Rule 10 (2007). We also note defendant properly objected to admission of Shenalda\u2019s testimony that a boy said on the bus, \u201cmy boy got a gun.\u201d\nNorth Carolina Rules of Evidence 802 provides that \u201c[h]earsay is not admissible except as provided by statute or by these rules.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 802. Hearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801. The State does not contest that the statements in question are hearsay. Therefore, we examine whether the trial court abused its discretion in admitting the statements over defendant\u2019s objection.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803(1) & (2) provide that\n[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present Sense Impression. \u2014 -A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited Utterance. \u2014 A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803(1-2) (2007).\nDefendant contends Johnson\u2019s testimony that she heard a boy on the bus say, \u201cLamar got that burner\u201d and Shenalda\u2019s testimony that she heard an unknown declarant on the bus state, \u201cmy boy got a gun\u201d while gesturing to the defendant, are inadmissible under either the present sense impression or under the excited utterance exceptions. In addition, defendant argues the record is devoid of evidence to support the admission of the hearsay statements.\nEven if we assume that the State presented no evidence to support admission of the hearsay statements under either the present sense impression or excited utterance exceptions, and the admission of the hearsay statements was an abuse of discretion, we find no prejudicial error. N.C. Gen. Stat. \u00a7 15A-1442(4)(c). In this case, other evidence established that defendant was armed while on the bus. First, Johnson testified she saw an imprint of a gun in defendant\u2019s pocket while on the bus. Second, Johnson testified defendant told her, \u201cI\u2019m not going to shoot nobody.\u201d Defendant does not allege error in admitting this statement. Third, David Barnhill testified that after they exited the bus, he saw defendant point his weapon and shoot it in the direction of the victim. Since other testimony establishes the fact that defendant was armed, the admission of the hearsay statements did not prejudice the defendant.\nNo prejudicial error.\nJudges HUNTER and STROUD concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.", "Paul F. Herzog, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAMAR DAMEIAN BASS\nNo. COA07-604\n(Filed 6 May 2008)\n1. Homicide\u2014 first-degree murder \u2014 premeditation and deliberation \u2014 evidence sufficient\nDefendant\u2019s statements and conduct before and after a shooting, ill will between the parties, and the nature and number of the victim\u2019s wounds provided sufficient evidence of premeditation and deliberation in a first-degree murder prosecution involving teenagers on a bus and in a shopping mall.\n2. Homicide\u2014 first-degree murder \u2014 no instruction on lesser offense \u2014 no plain error\nNo instruction on second-degree murder was warranted, and there was no plain error in not giving that instruction, where defendant did not present evidence to negate the elements of first-degree murder. The victim\u2019s verbal reaction to defendant\u2019s comment about his sister does not negate those elements; moreover, defendant shot the victim in the back.\n3. Evidence\u2014 hearsay \u2014 other evidence to same effect\nThere was no prejudice in a first-degree murder prosecution in the admission of a declarant\u2019s out-of-court hearsay statement. There was other competent testimony to same effect.\nAppeal by defendant from judgment entered 25 January 2007 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 28 November 2007.\nAttorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.\nPaul F. Herzog, for defendant-appellant." }, "file_name": "0339-01", "first_page_order": 371, "last_page_order": 381 }