{ "id": 6769249, "name": "STATE OF NORTH CAROLINA v. JERRY DENARD POSEY, II", "name_abbreviation": "State v. Posey", "decision_date": "2014-05-06", "docket_number": "No. COA13-1342", "first_page": "723", "last_page": "729", "citations": [ { "type": "official", "cite": "233 N.C. App. 723" } ], "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": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "335 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "511" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "689 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "861" }, { "page": "861-62" } ], "opinion_index": 0 }, { "cite": "363 N.C. 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151228 ], "year": 2010, "pin_cites": [ { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0815-01" ] }, { "cite": "565 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "163" }, { "page": "163" } ], "opinion_index": 0 }, { "cite": "355 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220071 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "729" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0719-01" ] }, { "cite": "571 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "276" }, { "page": "276" }, { "page": "276" } ], "opinion_index": 0 }, { "cite": "153 N.C. 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App.", "case_ids": [ 8359179 ], "year": 1986, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0450-01" ] }, { "cite": "713 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2011, "pin_cites": [ { "page": "199" }, { "page": "200" } ], "opinion_index": 0 }, { "cite": "213 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4233081 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "548" }, { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/213/0545-01" ] } ], "analysis": { "cardinality": 814, "char_count": 17072, "ocr_confidence": 0.724, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18206447557367245 }, "sha256": "d100f5c1e15e45cbe4c9470d78aa51f8d319cbd94ce32a07211aea3d486de759", "simhash": "1:cf03c42a34ee9c5a", "word_count": 2821 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY DENARD POSEY, II" ], "opinions": [ { "text": "McGEE, Judge.\nJerry Denard Posey, II (\u201cDefendant\u201d) was indicted on 10 December 2012 for first-degree murder of Terrance Murchison (\u201cMr. Murchison\u201d), possession of a firearm by a felon, and carrying a concealed gun. A jury found Defendant guilty of second-degree murder, possession of a firearm by a felon, and carrying a concealed gun. The facts relevant to the issues on appeal are discussed in the analysis section of this opinion. Defendant appeals.\nI. Physical Restraints\nDefendant first argues the trial court abused its discretion in requiring Defendant to wear restraints at trial. We disagree.\nA. Standard of Review\n\u201cWe review the trial court\u2019s decision of whether to place [defendant in physical restraints for abuse of discretion.\u201d State v. Stanley, 213 N.C. App. 545, 548, 713 S.E.2d 196, 199 (2011). \u201cA review for abuse of discretion requires the reviewing court to determine whether the decision of the trial court is manifestly unsupported by reason, or so arbitrary that it cannot be the result of a reasoned decision.\u201d Id.\nB. Analysis\nA defendant may be \u201cphysically restrained during his trial when restraint is necessary to maintain order, prevent the defendant\u2019s escape, or protect the public.\u201d State v. Wright, 82 N.C. App. 450, 451, 346 S.E.2d 510, 511 (1986). \u201cWhat is forbidden- \u2014 by the due process and fair trial guarantees of the Fourteenth Amendment to the United States Constitution and Art. I, Sec. 19 of the North Carolina Constitution \u2014 is physical restraint that improperly deprives a defendant of a fair trial.\u201d Id. In deciding whether restraints are appropriate, a trial court may consider, among other things, the following circumstances:\n\u201cthe seriousness of the present charge against the defendant; defendant\u2019s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.\u201d\nStanley, 213 N.C. App. at 550, 713 S.E.2d at 200 (quoting State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353, 368 (1976)). \u201cHowever, the ultimate decision must remain with the trial judge, who may not resign his exercise of discretion to that of his advisors.\u201d Tolley, 290 N.C. at 368, 226 S.E.2d at 368.\nThe record in the present case shows Defendant objected to having to wear a \u201cstiff knee brace[.]\u201d At Defendant\u2019s request, the trial court held a hearing to determine whether Defendant should wear the knee brace during trial. A deputy testified that it was \u201cstandard operating procedure to place any inmate\u201d being tried for \u201ca murder offense in some sort of restraint at any time when [the inmate was] out of [the sheriff\u2019s] custody.\u201d Defendant contends that the trial court\u2019s ruling \u201cwas nothing more than an accommodation of Sheriff\u2019s Department policy[.]\u201d\nHowever, the trial court did not base its decision upon this testimony alone. The trial court considered Defendant\u2019s past convictions for common law robbery, misdemeanor possession of stolen goods, misdemeanor larceny, and two counts of assault on a female, along with Defendant\u2019s three failures to appear in 2012 and two failures to appear in 2011, which the trial court commented tended to show \u201csome failure to comply with the [c]ourt orders[.]\u201d The trial court also considered Defendant\u2019s pending charge for simple assault that arose while Defendant was in custody.\nAs in State v. Simpson, the trial court \u201cwas in the better position to observe [] [Defendant, to know the security available in the courtroom and at the courthouse, to be aware of other relevant facts and circumstances, and to make a reasoned decision, in light of those factors, that restraint was necessary or unnecessary.\u201d State v. Simpson, 153 N.C. App. 807, 809, 571 S.E.2d 274, 276 (2002). Furthermore, where the \u201crecord fails to disclose that a defendant\u2019s shackles were visible to the jury, \u2018the risk is negligible that the restraint undermined the dignity of the trial process or created prejudice in the minds of the jurors,\u2019 and the defendant will not be entitled to a new trial[.]\u201d Id. at 809-10, 571 S.E.2d at 276 (quoting State v. Holmes, 355 N.C. 719, 729, 565 S.E.2d 154, 163 (2002)).\nIn the present case, counsel for Defendant acknowledged that the restraint was \u201cnot visible\u201d and, when the trial court commented that it \u201ccouldn\u2019t hear any jingling[,]\u201d counsel for Defendant agreed. The trial court observed that the knee brace did not make noise or jingle and that the knee brace could not be seen by jurors or potential jurors. When Defendant later walked back into the courtroom, the trial court observed that Defendant \u201cseems to be moving well.\u201d The trial court noticed \u201cno problems, no sign of anything.\u201d Counsel for Defendant replied that he did not dispute the trial court\u2019s observations, but that the knee brace still constituted a restraint. Furthermore, the trial court allowed Defendant to walk to the witness stand out of the sight of the jury.\nThe present case is analogous to Simpson and Holmes, in which the shackles were not visible to the jury. Holmes, 355 N.C. at 729, 565 S.E.2d at 163; Simpson, 153 N.C. App. at 809, 571 S.E.2d at 276. We conclude that the trial court did not abuse its discretion on this basis.\nII. Cross-Examination of Medical Examiner\nDefendant next argues the trial court abused its discretion by \u201cprecluding [Defendant] from cross-examining medical examiner McLemore regarding her preliminary report of death[.]\u201d However, in \u201corder for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010). Our Supreme Court also held that \u201cthe essential content or substance of the witness\u2019 testimony must be shown before we can ascertain whether prejudicial error occurred.\u201d Id. \u201cAbsent an adequate offer of proof, we can only speculate as to what a witness\u2019s testimony might have been.\u201d Id. at 818, 689 S.E.2d at 861-62.\nAt trial, the State objected when counsel for Defendant approached the -witness with \u201ca document called a preliminary report of death[.]\u201d After the jury exited the courtroom, the State argued that the handwritten note on the report that read \u201cfighting in a club earlier\u201d constituted hearsay. Following a brief voir dire examination of the witness, counsel for Defendant argued to the trial court that \u201cit\u2019s admissible under the expert rules of testimony.\u201d It appears that counsel for Defendant was referring to the preliminary report of death. The trial court stated: \u201cI think under Rule 403 it would be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.\u201d\nDefendant made no offer of proof as to the questions Defendant\u2019s counsel would have asked of the medical examiner. Defendant also made no offer of proof as to what the medical examiner\u2019s response to the questions would have been. Defendant \u201chas failed to preserve this issue for appellate review under the standard set forth in\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2013). State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443 (2000).\nIII. Sufficiency of the Evidence of Second-Degree Murder\nDefendant next argues the tri\u00e1l court erred in denying Defendant\u2019s motion to dismiss the charge of second-degree murder. Defendant contends there was insufficient evidence that Defendant \u00e1cted with malice and not in self-defense.\nA. Standard of Review\nWe review the trial court\u2019s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). The \u201ctrial court must determine whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (internal quotation marks omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id.\nThe \u201ctrial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State\u2019s favor.\u201d Id. at 92, 728 S.E.2d at 347. \u201cAll evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered.\u201d Id. at 93, 728 S.E.2d at 347 (internal citations and quotation marks omitted).\nB. Analysis\nDefendant presents two different arguments in this section. First, as to malice, the \u201cintentional use of a deadly weapon proximately causing death gives rise to the presumption that (1) the killing was unlawful, and (2) the killing was done with malice.\u201d State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980). \u201cEvidence raising an issue on the existence of malice and unlawfulness causes the presumption to disappear, leaving only a permissible inference which the jury may accept or reject.\u201d State v. Weeks, 322 N.C. 152, 173, 367 S.E.2d 895, 907-08 (1988) (internal quotation marks omitted).\nIf \u201cthere is any evidence of heat of passion on sudden provocation, either in the State\u2019s evidence or offered by the defendant, the trial court must submit the possible verdict of voluntary manslaughter to the jury.\u201d Id. at 173, 367 S.E.2d at 908. In the present case, the trial court did submit the charge of voluntary manslaughter to the jury. Defendant has not shown error on this basis.\nSecond, Defendant argues that the State failed to show that Defendant did not act in self-defense. \u201cA person who kills another is not guilty of murder if the killing was an act of self-defense.\u201d State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985). To survive a motion to dismiss, the State must present \u201cevidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that [the] defendant did not act in self-defense.\u201d Id.\nOfficer Geddings testified that he was monitoring the crowds exiting from a club shortly after 2:00 a.m. when he noticed \u201ca muzzle flash of a gun\u201d and heard a gunshot. He looked in the direction of the gunshot and saw Defendant lower a gun. Officer Geddings was about twenty to twenty-five yards away from Defendant. Officer Geddings saw no fight or altercation before the gunshot. He did not see anyone running or hear any yelling before the gunshot. Officer Geddings allowed Defendant to make calls from his cell phone while in the back seat of the patrol vehicle. Defendant told his mother on the phone that he \u201cshot somebody.\u201d When his mother asked why, Defendant answered: \u201cDisrespect.\u201d Officer Geddings also did not find any other firearms in the parking lot.\nTommy Murchison, the brother of Mr. Murchison, testified that he and his brother went to the club with their girlfriends. Tommy Murchison exited the club at 2:00 a.m., with his brother behind him, but he was parted from his brother on the way to the vehicle. Tommy Murchison testified that he heard a gunshot and later saw his brother lying on the ground. At that time, Tommy Murchison thought his brother was on the ground because he was simply intoxicated. An officer helped Mr. Murchison into the vehicle. Tommy Murchison testified that they went to get something for his brother to eat. He then noticed that his brother was injured and went directly to a hospital. Tommy Murchison testified that he did not see his brother with a gun that night, nor did he see a weapon in the vehicle.\nTiara Stowe (\u201cMs. Stowe\u201d), the driver of the vehicle, also testified that no one in her vehicle had a gun. Mr. Murchison\u2019s shirt and pants were \u201cfitted tight on him, so you would be able to see\u201d if there was a weapon in his pockets. Ms. Stowe testified that, from her position in the club, she kept an eye on her group. She saw \u201ca little fight break out\u201d near Mr. Murchison around closing time, but Mr. Murchison was not involved in the fight.\nOfficer Bullard testified that he was about seventy-five feet away from where he thought he heard the gunshot originate. When he approached, he saw an individual staggering and falling to his knees. The individual told Officer Bullard that he had been shot. Officer Bullard testified that he called an ambulance, and that the individual would not speak further to him. Officer Bullard saw no weapon on the individual.\nDedrick Springs (\u201cMr. Springs\u201d) testified for Defendant that he saw \u201cone guy\u201d approach Defendant and say \u201csomething like, I\u2019m going to get you after the club.\u201d He further testified that this individual and Defendant were \u201cin each other\u2019s faces.\u201d When Mr. Springs exited the club at closing time, he saw the same individual \u201cpull his gun out on\u201d Defendant. Mr. Springs testified that the individual pulled the gun from his pocket.\nDefendanttestified that, ashe walked to the bathroom, Mr. Murchison asked him \u201cwhat the f\u2014 [Defendant] was looking at.\u201d Defendant further testified that Mr. Murchison approached him aggressively, and Tommy Murchison pulled Mr. Murchison away. When Defendant exited the club at closing time, Mr. Murchison walked up to Defendant, \u201clooked [Defendant] in the eyes, g[a]ve [him] a[n] evil look and said he was going to f \u2014 ing kill [Defendant].\u201d. Defendant testified that he kept walking, trying to avoid Mr. Murchison, but Mr. Murchison came toward him again and pulled a weapon. Defendant testified that he shot at the ground to scare Mr. Murchison, but when he shot, \u201cthe gun lifted up, like recoiled like that[.]\u201d\nAlthough Defendant contends on appeal that \u201c[a]ll of the evidence in the record supported a finding that the shooting occurred during a sudden quarrel between\u201d Mr. Murchison and Defendant, the transcript belies this assertion. Officer Geddings testified that he was outside the club to provide security, and he testified that he saw no fight or altercation before the gunshot.\nAs previously stated, the \u201ctrial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State\u2019s favor.\u201d Bradshaw, 366 N.C. at 92, 728 S.E.2d at 347. \u201cAny contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered.\u201d Id. at 93, 728 S.E.2d at 347 (internal citations and quotation marks omitted).\nThe State\u2019s evidence in the present case, particularly the testimony of Officer Geddings, is sufficient to convince a rational trier of fact that there was no quarrel or altercation between Mr. Murchison and Defendant prior to the shooting, and that Defendant did not act in self-defense. The discrepancy between the testimony of Officer Geddings and the testimony of Defendant presented a conflict in the evidence, which was for the jury to resolve. Hamilton, 77 N.C. App. at 514, 335 S.E.2d at 511. The trial court did not err in denying Defendant\u2019s motion to dismiss and in submitting the charge of second-degree murder, along with the charge of voluntary manslaughter, to the jury.\nNo error.\nChief Judge MARTIN and Judge CALABRIA concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State.", "Sharon L. Smith for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY DENARD POSEY, II\nNo. COA13-1342\nFiled 6 May 2014\n1. Criminal Law \u2014 restraints\u2014defendant wore shackles at trial\nThe trial court did not abuse its discretion in a second-degree murder, possession of a firearm by a felon, and carrying a concealed gun case by requiring defendant to wear restraints at trial. The shackles were not visible to the jury.\n2. Appeal and Error \u2014 preservation of issues \u2014 failure to make offer of proof\nAlthough defendant argued in a second-degree murder, possession of a firearm by a felon, and carrying a concealed gun case that the trial court abused its discretion by precluding him from cross-examining the medical examiner regarding her preliminary report of death, defendant failed to preserve this issue for appellate review by failing to make an offer of proof.\n3. Homicide \u2014 second-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of second-degree murder. The State\u2019s evidence, including the testimony of the officer, was sufficient to convince a rational trier of fact that there was no quarrel or altercation between the victim and defendant prior to the shooting, and that defendant did not act in self-defense.\nAppeal by Defendant from judgments entered 30 May 2013 by Judge William Z. Wood in Superior Court, Forsyth County. Heard in the Court of Appeals 7 April 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State.\nSharon L. Smith for Defendant." }, "file_name": "0723-01", "first_page_order": 733, "last_page_order": 739 }