{ "id": 4181037, "name": "STATE OF NORTH CAROLINA v. TRAVIS LEVANCE WALTERS, Defendant", "name_abbreviation": "State v. Walters", "decision_date": "2011-01-04", "docket_number": "No. COA10-281", "first_page": "158", "last_page": "165", "citations": [ { "type": "official", "cite": "209 N.C. App. 158" } ], "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": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "year": 2005, "pin_cites": [ { "page": "20", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "594 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "815-16", "parenthetical": "holding no error where the instruction given to the jury was \"virtually identical\" to the pattern instruction and thus gave the substance of the requested instruction" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895898 ], "year": 2004, "pin_cites": [ { "page": "123", "parenthetical": "holding no error where the instruction given to the jury was \"virtually identical\" to the pattern instruction and thus gave the substance of the requested instruction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0120-01" ] }, { "cite": "328 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "313 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723320 ], "year": 1985, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0266-01" ] }, { "cite": "261 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552065 ], "year": 1979, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0251-01" ] }, { "cite": "428 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "249", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525878 ], "year": 1993, "pin_cites": [ { "page": "526", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0518-01" ] }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "pin_cites": [ { "page": "674", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0644-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "686 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "503", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151348 ], "year": 2009, "pin_cites": [ { "page": "704", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0689-01" ] }, { "cite": "378 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1989, "pin_cites": [ { "page": "757" }, { "page": "756" }, { "page": "756" }, { "page": "759" }, { "page": "757" }, { "page": "757-58" } ], "opinion_index": 0 }, { "cite": "324 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487826 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "349" }, { "page": "345-46" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0343-01" ] } ], "analysis": { "cardinality": 691, "char_count": 16965, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13736379997443868 }, "sha256": "d9e20a8367fe6f64ffa28929afb1e029ea9ffb328e7a0b07765dfd2d2a411c36", "simhash": "1:836291263fb99afe", "word_count": 2819 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STEPHENS concur.", "Judge JACKSON concurred in this opinion prior to 31 December 2010." ], "parties": [ "STATE OF NORTH CAROLINA v. TRAVIS LEVANCE WALTERS, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nDefendant was convicted of first degree murder based upon the felony murder doctrine, as well as the underlying felony, robbery with a dangerous weapon; he was sentenced to life imprisonment without parole. Defendant raises two assignments of error on appeal: (1) the trial court erred by admitting into evidence the prior unsworn testimony of Latashia Waters, and (2) the trial court erred by instructing the jury using North Carolina Pattern Jury Instruction 101.40 rather than the language of N.C.G.S. \u00a7 15A-1235.\nFacts\nOn 6 January 1998, defendant shot Betty Oxendine during his robbery of the Hardee\u2019s restaurant at which she worked; she later died of the wound she sustained. Investigating officers interviewed defendant\u2019s sister Latashia Waters and his mother before interviewing defendant. When they did interview defendant, he admitted shooting the victim, but stated that the gun just \u201cwent off\u2019 during the robbery.\nDefendant was arrested for first degree murder on 6 January 1998. During the trial, Ms. Waters was called as a witness for the State. On direct examination, Ms. Waters was asked if she remembered speaking with an officer shortly after the killing occurred, and she responded that she did not remember. The prosecutor then showed Ms. Waters a statement that she had given to Lieutenant Barnes and asked her to identify it. She identified the document as her statement. The prosecutor then moved to introduce the statement into evidence; the defendant\u2019s attorney objected, and the trial court sustained the objection. Even after reading the statement, Ms. Waters stated that she did not remember what she told the officer; the prosecutor then asked her to read it again to see if it would refresh her memory. After reading the statement a second time, Ms. Waters answered that reading the statement had refreshed her recollection.\nThe prosecutor proceeded to ask Ms. Waters questions about her interactions with her brother the night of the murder. Ms. Waters testified that her brother had said that he shot the girl at Hardee\u2019s \u201c[b]ecause him and his girlfriend was fussing,\u201d and that \u201c[h]e was going to take it out on somebody.\u201d The prosecutor then moved a second time for the statement to be introduced into evidence, but the trial court again sustained defendant\u2019s objection. After asking further questions regarding the events of the night of the murder, the prosecutor again moved to introduce the statement into evidence; this time, the trial court granted the motion and received it into evidence. Immediately after the statement was admitted, defendant requested a limiting instruction that the evidence was only being offered and received for the purpose of corroborating the testimony of the witness; the trial court granted that request.\nAfter the close of arguments, the jury began deliberations, which eventually spanned three days. After a series of requests by the jury, the trial court repeated the charges, the elements of each, and the verdict options for each.\nOn the second day of deliberations, the jury informed the judge that there was an eleven to one deadlock regarding the first degree murder charge but not on the charge of robbery with a dangerous weapon. The judge sent the jury back to the jury room and directed them to continue deliberations on both charges and to report back if they could not reach a unanimous verdict. He then stated:\nI remind you that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women in an effort to reconcile your differences, if you can, without surrender of conscientious convictions, but no juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.\nBefore the jury entered the courtroom, defendant objected to some of the language to be used in this instruction and requested that the court re-instruct the jury by reading instead from the applicable statute. The court stated: \u201cYour objection is noted[,]\u201d but denied the request. The next day the jury returned with a unanimous verdict of guilty on the first degree murder charge, under the felony murder rule, as well as the underlying felony, robbery with a dangerous weapon.\nDiscussion\nDefendant appeals both the admission of Ms. Waters\u2019s statement and the failure of the trial court to instruct the jury using the language of N.C. Gen. Stat. \u00a7 15A-1235, and instead instructing the jury using North Carolina Pattern Jury Instruction 101.40.\nI.\nDefendant first argues that the trial court erred by admitting the unsworn out-of-court statement Ms. Waters made to the police. Defendant asserts that the trial court was in error based on two grounds: (1) under North Carolina Rule of Evidence 607, it was improper for the trial court to admit the substance of Ms. Waters\u2019s previous statement; and (2) even if this Court finds that it was not error for the trial court to admit the statement under Rule 607, the trial court should have excluded the statement under Rule of Evidence 403.\nNorth Carolina Rule of Evidence 607\nRule 607 explicitly states that the \u201ccredibility of a witness may be attacked by any party, including the party calling him.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 607 (2009). In State v. Hunt, our Supreme Court held that impeachment by prior inconsistent statement may not be allowed when used merely for the purposes of placing evidence that would not otherwise be admissible before the jury. 324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989). Prior statements of a witness may be admitted as corroborative evidence \u201cif they tend to add weight or credibility to the witness\u2019 trial testimony.\u201d State v. Williams, 363 N.C. 689, 704, 686 S.E.2d 493, 503 (2009) (quotations and citation omitted).\nBased on Hunt, defendant argues that it was error for the trial court to admit Ms. Waters\u2019s statements into evidence for corroboration or for impeachment. There are, however, several differences between the facts of the case at bar and the facts of Hunt that lead us to conclude that it was proper for the trial court to allow the substance of Ms. Water\u2019s previous statement into evidence.\nFirst, the witness in Hunt was deemed to be a hostile or unwilling witness and had expressly denied the substance of her prior statements. Hunt, 324 N.C. at 345-46, 378 S.E.2d at 756. Conversely, although Ms. Waters testified that she did not remember speaking with the police on the night of the murder, she did not ever deny making the statement to the police, nor did the trial court make a determination that Ms. Waters was a hostile or unwilling witness. Second, in Hunt, the previous out-of-court statement was being offered into evidence through a police officer who was testifying as to the substance of that statement, and the statement was to be used to corroborate the officer\u2019s testimony. Id. at 347, 378 S.E.2d at 756. In this case, the State was offering the substance of Ms. Waters\u2019s statement to corroborate her in-court testimony. Finally, in Hunt, the prior statement was entered into evidence without a limiting instruction, and the judge did not inform the jury that they must not consider the prior statement as evidence of the truth until his final charge.- Id. at 351-52, 378 S.E.2d at 759. In this case, however, the trial court issued a limiting instruction when the evidence was admitted, and the statement was immediately published to the jury, in combination, these facts serve to distinguish the facts of this case from the facts in Hunt.\nIn Hunt, the Supreme Court was concerned with keeping impeachment or corroboration from being used improperly by the State to admit evidence that would otherwise be inadmissible. Id. at 349, 378 S.E.2d at 757. This concern stems from the likely confusion of a jury in distinguishing between the impeachment, corroborative, and substantive uses of evidence. Id. at 349, 378 S.E.2d at 757-58. The concerns raised in Hunt are not present in the case at hand, however; here, a limiting instruction was given in conjunction with the admission of her statement, just before the statement was published to the jury. This limiting instruction served to limit the risk of confusion where the final charge by the trial judge in Hunt did not.\nHere, because the statement was being used to corroborate the testimony of the witness who originally made the statement, there is no improper use as in Hunt. Therefore, it was not error for the trial court to admit the statement.\nFinally, we note that defendant argues that admission of the statement violated the Confrontation Clause and Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), inasmuch as it was a testimonial hearsay statement which the State knew the witness could not remember making. As Ms. Waters was present to testify and be cross-examined at trial, however, this argument is unavailing.\nNorth Carolina Rule of Evidence 403\nIn the alternative, defendant argues that, even if this Court finds that the statement was admissible under Rule 607, it should have been excluded under Rule 403, because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). We disagree.\nRule 403 states that, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .\u201d Id. Whether to exclude evidence pursuant to the Rule\nis 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. A 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.\nState v. Campbell, 359 N.C. 644, 674, 617 S.E.2d 1, 20 (2005) (quotations and citations omitted).\nIn this case, defendant offers no evidence suggesting that the trial court abused its discretion. Instead, defendant points to a single quote from the statement of Ms. Waters, taken out of context, and declares that the statement is extremely prejudicial. In response to questions from the police regarding why her brother had killed the victim, Ms. Waters answered that it was \u201c[b]ecause him and his girlfriend was fussing,\u201d and that \u201c[h]e was going to take it out on somebody.\u201d While this statement may be prejudicial to defendant\u2019s case, mere prejudice is not the determining factor in the Rule 403 balancing test. Rather, the trial judge must determine whether the unfair prejudice substantially outweighs the probative value. See N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). Defendant has failed to present evidence which shows that the probative value of Ms. Waters\u2019s statement was substantially outweighed by the risk of unfair prejudice.\nIn sum, we hold that the trial judge did not abuse his discretion in admitting Ms. Waters\u2019s statement.\nII.\nDefendant\u2019s second argument centers on the decision of the trial court to instruct the juiy based on North Carolina Pattern Juiy Instruction 101.40 (pattern instruction), rather than N.C. Gen. Stat. \u00a7 15A-1235.\n\u201cA trial court is not required to give a requested instruction in the exact language of the request, but where the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.\u201d State v. Summey, 109 N.C. App. 518, 526, 428 S.E.2d 245, 249 (1993) (citation omitted).\nThe language of N.C. Gen. Stat. \u00a7 15A-1235(b) states:\nBefore the jury retires for deliberation, the judge may give an instruction which informs the jury that:\n(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;\n(2) Each juror must decide the case for himself, but only after animpartial consideration of the evidence with his fellow jurors;\n(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and\n(4) No juror should weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\nN.C. Gen. Stat. \u00a7 15A-1235(b) (2009) (emphasis added).\nThe pattern instruction states:\nYour foreman informs me that you have so far been unable to agree upon a verdict. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women and to reconcile your differences, if you can, with-, out the surrender of conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict. I will let you resume your deliberations and see if you can reach a verdict.\nN.C.P.I. Crim. 101.40 (2004). Finally, as stated above, the trial court\u2019s instructions to the jury were:\nI remind you that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women in an effort to reconcile your differences, if you can, without surrender of conscientious convictions, but no juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.\nAs is clear from a cursory reading of the three, they are virtually identical. Defendant argues that the slight rewording by the trial court makes it into a misstatement of the jury\u2019s duty as being to simply reach any verdict, rather than a truthful verdict. See, e.g., State v. Lamb, 44 N.C. App. 251, 252, 261 S.E.2d 130, 131 (1979).\nWhen reviewing a trial court\u2019s decision to instruct a jury using a pattern instruction rather than a direct reading of a statute, the question is whether the instruction as given by the trial court \u201cforce[d] a verdict or merely serve[d] as a catalyst for further deliberations[.]\u201d State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985). Defendant points to no evidence to show that the instruction was anything more than a catalyst for further deliberation besides one question from the jury: \u201cJudge, there appears to be a total difference of interpretation of the second degree verdict option.\u201d However, defendant provides no explanation as to how that statement shows that the trial court\u2019s instruction was in error or caused the jury to misunderstand its role.\nBecause defendant has not shown evidence which indicates a discrepancy between the substance of the pattern instruction and N.C. Gen. Stat. \u00a7 15A-1235, it was not an abuse of discretion for the trial court to instruct the jury using the pattern instruction. See State v. Borders, 164 N.C. App. 120, 123, 594 S.E.2d 813, 815-16 (2004) (holding no error where the instruction given to the jury was \u201cvirtually identical\u201d to the pattern instruction and thus gave the substance of the requested instruction).\nConclusion\nFor the reasons stated above, we hold that it was not error for the trial court to admit Ms. Waters\u2019s statement, nor for it to instruct the jury based on North Carolina Pattern Jury Instruction 101.40, rather than reading N.C. Gen. Stat. \u00a7 15A-1235 directly to the jury.\nNo error.\nJudges JACKSON and STEPHENS concur.\nJudge JACKSON concurred in this opinion prior to 31 December 2010.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Bur\u00e9n R. Shields, III, for the State.", "M. Alexander Chams for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TRAVIS LEVANCE WALTERS, Defendant\nNo. COA10-281\n(Filed 4 January 2011)\n1. Evidence\u2014 admission of prior unsworn statement \u2014 corroborative \u2014 probative value not substantially outweighed by prejudice\nThe trial court did not err in a first-degree murder trial by admitting into evidence the prior unsworn statement of the deceased victim\u2019s sister where the statement was being used to corroborate the testimony of the witness who originally made the statement. Furthermore, defendant failed to show that the probative value of the statement was substantially outweighed by the risk of unfair prejudice.\n2. Jury \u2014 jury instructions \u2014 continue deliberations \u2014 pattern jury instruction \u2014 language of statute \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by instructing the jury to continue its deliberations using North Carolina Pattern Jury Instruction 101.40 rather than the language of N.C.G.S. \u00a7 15A-1235. Defendant failed to show a discrepancy between the substance of the pattern instruction and N.C.G.S. \u00a7 15A-1235.\nAppeal by defendant from judgment entered 25 September 2009 \u2022 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 16 September 2010.\nAttorney General Roy Cooper, by Special Deputy Attorney General Bur\u00e9n R. Shields, III, for the State.\nM. Alexander Chams for defendant." }, "file_name": "0158-01", "first_page_order": 168, "last_page_order": 175 }