{ "id": 2544335, "name": "STATE OF NORTH CAROLINA v. JOHNNY BRADLEY GLENN", "name_abbreviation": "State v. Glenn", "decision_date": "1993-02-12", "docket_number": "No. 60A92", "first_page": "296", "last_page": "307", "citations": [ { "type": "official", "cite": "333 N.C. 296" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 ALR5th 784", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "79 ALR3d 14", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "302 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "302 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708624 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0362-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "349" }, { "page": "349" }, { "page": "349" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "695" }, { "page": "694-95" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "406 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "329 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553215 ], "year": 1991, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0636-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "114 L. Ed. 2d 395", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6223686 ], "year": 1991, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "407 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "146" }, { "page": "147" } ], "opinion_index": 0 }, { "cite": "329 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554806 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "430" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0423-01" ] }, { "cite": "73 S Ct 891", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 372567 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/us/345/0559-01" ] }, { "cite": "97 L Ed 1244", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1952, "opinion_index": 0 }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "89" }, { "page": "83" }, { "page": "87-88", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "year": 1991, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/326/0689-01" ] } ], "analysis": { "cardinality": 1046, "char_count": 26331, "ocr_confidence": 0.753, "pagerank": { "raw": 1.5529633073998624e-07, "percentile": 0.6755094602040506 }, "sha256": "604a31c907f7967e32b8fd64f1c5b47953948d11e31a98a350810136cf027552", "simhash": "1:c444a300f4363c53", "word_count": 4392 }, "last_updated": "2023-07-14T15:19:51.258099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNY BRADLEY GLENN" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant was indicted by a Mecklenburg County grand jury on 11 March 1991 for the murders of Johnnie Sampson and Subrina Osborne. Defendant was tried capitally in Superior Court, Mecklenburg County, in August 1991, and the jury returned verdicts finding defendant guilty of the first-degree murders of Sampson and Osborne. Following a sentencing proceeding conducted pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended sentences of life imprisonment for both convictions of first-degree murder. In accordance with the jury\u2019s recommendation, Judge Ferrell sentenced defendant to two life sentences for the murders. Defendant appeals to this Court as of right.\nEvidence presented at defendant\u2019s trial shows the following. On 1 December 1990, the two victims, defendant, and Forist Foster lived in Sampson\u2019s residence at 1932 Umstead Street in Charlotte, North Carolina. Osborne and defendant were dating and shared a bedroom. In the afternoon prior to the murders, Foster and Sampson were sitting in the house watching football. Osborne ran into the house and asked Sampson if she could hide in his bedroom because she \u201cwas scared of [defendant] . . . [b]ecause he had been drinking.\u201d Osborne then went into Sampson\u2019s bedroom and hid. Some time later, defendant ran into the house and went into his and Osborne\u2019s bedroom. After rummaging around in the room, defendant returned to the living room and started talking to Sampson. Defendant then started hitting Sampson. Foster asked defendant to leave, and when defendant ignored him, Foster went to call the police. Foster ran to the Villa Heights Store and found that he could not use the phone there. Foster then ran to Louis Cunningham\u2019s house and told Cunningham that defendant was \u201cbeatin\u2019 [the victim Sampson] up.\u201d Foster asked Cunningham to walk back down to Sampson\u2019s with him. Upon arriving at Sampson\u2019s house, Foster found the front door ajar. When Foster and Cunningham went into the house, they saw Sampson lying on the floor, with blood all over his face. They then walked down the hallway and found Osborne, with blood all over her, lying in the hallway. Foster then went to John Kirby\u2019s Mart and called the police.\nThat evening at approximately 6:22 p.m., Charlotte Police Officer David Schwob went to 1932 Umstead Street in response to a dispatcher\u2019s call. As Officer Schwob approached the front door, he saw a male figure, later identified as Johnnie Sampson, lying on the floor in the living room. Upon opening the storm door, Schwob noticed drops of blood on the floor just inside the doorway and a large amount of blood underneath Sampson\u2019s body. Schwob then looked down a hallway and observed a female victim, later identified as Subrina Osborne, lying on her back. The female victim\u2019s face, neck, and chest area were covered with blood. Schwob subsequently advised his supervisor that he had located two deceased subjects and requested crime scene search technicians and a homicide investigator.\nOn 2 December 1990 at approximately 11:00 a.m., Officer G.L. Robbins with the Charlotte Police Department was dispatched to Number 11, 1530 Hawthorne Lane. Defendant, or someone on his behalf, had called the police department and requested that an officer come down and carry defendant to the Law Enforcement Center to talk to an investigator. Upon Robbins\u2019 arrival at the apartment, he was met by defendant and his three sisters. Robbins told defendant and his sisters that defendant was not under arrest. Officers Brandon and Hobson arrived at 1530 Hawthorne Lane approximately five minutes after Robbins. Brandon and Hobson had a conversation with defendant\u2019s sisters as defendant and Robbins were leaving en route to the Law Enforcement Center. Pursuant to the conversation, one of defendant\u2019s sisters gave Hobson a grocery bag containing personal property of the defendant. Hobson turned the bag over to Robbins, who was already in his police car with defendant in the back seat.\nRobbins transported defendant to the Law Enforcement Center along with the bag of defendant\u2019s personal effects. At the Law Enforcement Center, Robbins introduced defendant to Investigator L.D. Walker. After Walker seated defendant in an interview room, he then walked back out to talk with Robbins. While Robbins was explaining that the bag belonged to defendant, Robbins looked down into the bag, which was partially open, and saw a spot of blood on a boot inside the bag. Robbins told Walker about the spot of blood on the boot. Robbins then gave the bag to Brandon, who turned the bag of clothes in to the Property Control Room.\nWalker went back into the interview room, where he began questioning defendant at approximately 12:00 p.m. Defendant initially told Walker that he did not commit the offenses but that he might know who did. Walker then advised defendant that since one of the victims was defendant\u2019s girlfriend, this may indicate he was a suspect. At this point, Walker advised defendant of his Miranda rights, and defendant then signed a waiver of rights form. Walker then told defendant that he was considered a suspect in the case, but defendant denied any involvement in the murders. Walker asked defendant about the blood on defendant\u2019s boot that was in the bag of clothes. Initially, defendant told Walker that around midnight, he had walked into the house after the murders had been committed and that was how he had gotten blood on his shoes. Walker told him that this was impossible based on the fact that the police had already roped off the area. Walker then asked defendant why he killed the two victims. At this point, \u201ctears came into [defendant\u2019s] eyes, and he stated, T did it because I caught them f \u2014 ing in bed.\u2019 \u201d Defendant then gave a statement to Walker which Walker reduced to writing and had defendant sign.\nIn his confession, defendant stated that on 1 December 1990, he and Osborne rented a room from Sampson. After defendant sat around drinking with Sampson, Foster, and Osborne, he left the house to go walking around. When he arrived back at the house, he did not see anyone. He walked down to Sampson\u2019s room and \u201clooked into the bedroom and saw [Sampson] and [Osborne] f \u2014 ing in the bed.\u201d Defendant stated that he \u201ctotally flipped out\u201d and \u201cwent into a fit of rage.\u201d At this point, he said that he grabbed a steak knife from his back pocket and stabbed Osborne in the back. Defendant said he then went after Sampson. Defendant stabbed Sampson \u201cseveral times,\u201d and he stated that he thought he left the knife in Sampson. Defendant then went to the kitchen to get another knife. He found a butter knife and then went and stabbed Sampson some more. Defendant stated that as he was walking down the hallway, Osborne grabbed his legs. He \u201cturned and kicked her and then . . . stomped her with [his] foot.\u201d Defendant confessed that he was not sure how many times he stabbed the victims but that he meant \u201cto kill them.\u201d\nInvestigator R.A. Holl arrived at the Law Enforcement Center at 1:00 p.m. on 2 December 1990. Officers Brandon and Robbins were outside the interview room in which defendant was located. Walker exited the room and told Holl about defendant\u2019s confession. Upon entering the interview room, Holl questioned defendant, and defendant related to Holl substantially the same statement he had given to Walker. Holl then went to the magistrate\u2019s office to obtain arrest warrants.\nDr. James M. Sullivan, medical examiner for Mecklenburg County, testified as an expert in forensic pathology. Dr. Sullivan performed autopsies on both Osborne and Sampson. He testified that Osborne had multiple external wounds about her head, face, and neck. Specifically, Sullivan found seventeen cutting wounds to the area of the head, nine of which were cutting wounds to the neck. The injuries to Osborne\u2019s chest were six stab wounds and several superficial cutting wounds. Sullivan opined that any one of the three stab wounds to the heart could have been potentially lethal wounds. Sullivan testified that Sampson suffered multiple cutting wounds to the face, blunt trauma injuries, and a black eye. Sampson also had twenty-one stab wounds on his buttocks and upper leg area and two stab wounds to the neck. Sullivan opined that the two stab wounds to the neck were the most significant wounds contributing to the cause of death. In Sullivan\u2019s opinion, all the wounds inflicted on both victims were premortem wounds, meaning they were inflicted prior to death.\nAdditional facts will be set forth as necessary with respect to the various issues.\nAs defendant\u2019s first assignment of error, he contends that he is entitled to a new trial because the prosecutor violated his state and federal constitutional rights by peremptorily challenging a prospective juror solely on the basis of race. Article I, Section 26 of the Constitution of North Carolina prohibits peremptory challenges based solely on the race of the prospective juror. State v. Smith, 328 N.C. 99, 119, 400 S.E.2d 712, 723 (1991). The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution also prohibits such discrimination. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). In Batson, the Supreme Court of the United States admonished that \u201cthe Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State\u2019s case against a black defendant.\u201d Id. at 89, 90 L. Ed. 2d at 83.\nIn Batson, the Supreme Court established a three-part test for determining whether a defendant has established a prima facie case of purposeful discrimination:\nTo establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant\u2019s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits \u201cthose to discriminate who are of a mind to discriminate.\u201d Avery v Georgia, 345 US [559], 562, 97 L Ed 1244, [1247-48], 73 S Ct 891 [(1952)]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.\nId. at 96, 90 L. Ed. 2d at 87-88 (citation omitted). The initial burden is on the defendant who alleges such racial discrimination to make a prima facie showing that the prosecutor used peremptory challenges to exclude jurors because of their race. State v. Thomas, 329 N.C. 423, 430, 407 S.E.2d 141, 146 (1991). In Hernandez v. New York, \u2014 U.S. \u2014, \u2014, 114 L. Ed. 2d 395, 405 (1991), the United States Supreme Court held that where the prosecutor offers racially neutral explanations for his peremptory challenges and the trial court finds them to be true and not pretextual, the issue of the prima facie case is moot.\nIn this case, defendant and both victims are black. The record shows that at the time the prosecutor sought to remove prospective juror Brown, he had used four peremptory challenges to remove three otherwise qualified white jurors. Therefore, before challenging juror Brown, the prosecution had not used a peremptory challenge against a black venire person. In fact, defendant does not argue, and the record does not reflect, that the prosecution peremptorily challenged any black venire person other than juror Brown. Defense counsel objected to the excusal of juror Brown, referring to Batson v. Kentucky. The trial court asked the prosecutor if he wanted to place the reasons for his challenge on the record. The prosecutor stated that Brown\u2019s statement, during his examination of Brown, that he \u201cwould let [the death penalty] be the last alternative\u201d was indicative of greater equivocation toward the death penalty than had been expressed by other jurors. This reason is \u201c \u2018clear and reasonably specific\u2019 and \u2018related to the particular case to be tried.\u2019 \u201d Thomas, 329 N.C. at 431, 407 S.E.2d at 147 (quoting State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990)).\nDefendant has failed to establish a prima facie case that the State was acting out of any racial bias or any desire to exclude black persons from the jury on the basis of race. Defendant has not met the Batson test, and this assignment of error is overruled.\nDefendant next contends that the trial court erred by denying his motion in limine and admitting into evidence a 911 tape recording on the grounds that the recording was not properly authenticated in that the identification procedure was impermissibly suggestive. On 2 December 1990 at 1:57 a.m., Officer Wayne Watkins received a call on the 911 line at the Charlotte Police Department. During his conversation with Watkins, the caller stated, \u201cI killed two people on Umstead.\u201d State\u2019s witness Johnny Glenn, Jr., defendant\u2019s son, met Investigator Holl in the office of Glenn\u2019s former employer to listen to the tape recording. The witness, Johnny Glenn, Jr., identified the voice on the tape as that of his father.\nDefendant asserts that at the time Glenn listened to the recording, he not only knew that his father was in custody charged with murder, but also felt that his father had confessed to the two murders. Based upon the totality of the circumstances, defendant argues that the identification procedure was impermissibly suggestive.\nPrior to the State\u2019s efforts to place this recording in evidence, defendant filed a motion in limine to exclude the tape recording on the grounds of authenticity. Following a voir dire hearing, the trial court made certain findings of fact and denied defendant\u2019s motion to exclude the recording.\nOur examination of the record discloses that defendant did not object to the admission of the recording on the basis of a \u201csuggestive\u201d identification procedure so as to place this contention at issue before the trial judge at the voir dire hearing. Rather, the gravamen of defendant\u2019s motion was the chain of custody of the 911 tape and the reliability of State\u2019s witness, Johnny Glenn, Jr. Having failed to challenge at trial the admission of the 911 tape on the ground that the identification procedure was impermissibly suggestive, the defendant will not be allowed to do so for the first time on his appeal to this Court. State v. McPhail, 329 N.C. 636, 641, 406 S.E.2d 591, 595 (1991); N.C. R. App. P. 10(b)(1). We specifically reject defendant\u2019s assignment of error for this reason.\nDefendant further contends that the trial court erroneously allowed into evidence the hearsay testimony of Otis Lewis. We find no merit in this assignment of error.\nOn the afternoon of 26 November 1990 (five days prior to the murders), one of the victims, Subrina Osborne, talked to Otis Lewis. Osborne told Lewis that she wanted to move in with him \u201cbecause [defendant] was trying to kill her the night before.\u201d Osborne stated that the defendant \u201chad pinned her down to the bed with a knife and tried to stab her in the throat with the knife.\u201d Osborne further told Lewis that she did not want- to go back to the house on Umstead Street. After pretrial motions and objections at trial, Lewis was permitted to testify to this conversation. The trial court instructed the jury that the testimony was \u201cadmissible only for the purpose of proving motive, intent or identification of the defendant, or fear of the defendant by Sabrina [sic] Osborne.\u201d Defendant contends that admission of this testimony under N.C.G.S. \u00a7 8C-1, Rule 803(3) was reversible error because the State failed to demonstrate a factual basis or plausible reason for any alleged fear by the victim.\nRule 803 of the North Carolina Rules of Evidence establishes the admissibility of state of mind evidence. Rule 803 reads, in pertinent part:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness: N.C.G.S. \u00a7 8C-1, Rule 803(3) (1992). \u201cEvidence tending to show the state of mind of the victim is admissible as long as the declarant\u2019s state of mind is relevant to the case.\u201d State v. Meekins, 326 N.C. 689, 695, 392 S.E.2d 346, 349 (1990); see also State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990); State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). In Meekins, this Court held that the trial court did not err in admitting the testimony of the victim\u2019s niece that the victim told her \u201cthat she was afraid of [the defendant]\u201d and that the victim had previously said several times that she was fearful of defendant. Meekins, 326 N.C. at 694-95, 392 S.E.2d at 349. We held in Meekins that the niece\u2019s testimony on voir dire that the victim told her two weeks before her murder that she feared defendant because defendant had asked for one hundred dollars and she had refused to give it to him provided a plausible reason and factual basis for the victim\u2019s fear of defendant. Id. at 696, 392 S.E.2d at 349.\n(3) Then Existing Mental, Emotional, or Physical Condition. \u2014 A statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) ....\nHere, Lewis\u2019 testimony on voir dire that Osborne told him that defendant attempted to.kill her and that Osborne wanted to move in with Lewis provides a plausible reason and factual basis for the victim\u2019s fear of defendant. The victim\u2019s fear of defendant was relevant to show the nature of the victim\u2019s relationship with defendant and the impact of defendant\u2019s behavior on the victim\u2019s state of mind prior to the murder. At trial, Lewis testified that the victim told him that defendant tried to kill her five days before the murder. The victim\u2019s statement to Lewis that defendant had attacked her, pinned her to the bed, and attempted to stab her in the throat with a knife provided the factual basis for the victim\u2019s fear of the defendant and her desire to move in with Lewis. Therefore, the admission of Lewis\u2019 testimony was consistent with the limits that this Court imposed on such testimony in State v. Alston, 307 N.C. 321, 328, 298 S.E.2d 631, 637 (1983).\nInitially, it is within the trial court\u2019s discretion to determine whether the probative value of relevant evidence is outweighed by its tendency to unfairly prejudice defendant. Meekins, 326 N.C. at 696, 392 S.E.2d at 350. We do not find that the trial court abused its discretion in its determination that the evidence in question met this test. The evidence was highly relevant to show the status of the victim\u2019s relationship with the defendant prior to the victim\u2019s death, as well as being relevant to the issues of motive or intent. We find that the trial court did not abuse its discretion when it permitted Lewis to testify about the conversation that he had with the victim.\nIn defendant\u2019s final arguments, he contends that (1) the trial court erred when it sustained objections to defendant\u2019s questions of witnesses during the voir dire hearing conducted to determine the admissibility of a tape recording of the defendant\u2019s voice, (2) the trial court erred when it sustained objections to certain questions of defense counsel on cross-examination, (3) the trial court erred when it sustained the State\u2019s objection to defense counsel\u2019s questions to a psychologist regarding defendant\u2019s ability to think and plan, and (4) the prosecutor made highly improper and prejudicial remarks in his closing argument. These assignments of error are deemed waived for failure to comply with Rule 28(d) of the Rules of Appellate Procedure.\nRule 28(d)(1) of the Rules of Appellate Procedure provides that when the transcript of proceedings is filed pursuant to Rule 9(c)(2), a party must either reproduce as an appendix to its brief \u201cthose portions of the transcript of proceedings which must be reproduced verbatim in order to understand any question presented in the brief\u201d or \u201cthose portions of the transcript showing the pertinent questions and answers when a question presented in the brief involves the admission or exclusion of evidence.\u201d N.C. R. App. P. 28(d)(1)(a), (d)(1)(b). Under Rule 28(d)(2)(a), appendixes to defendant\u2019s brief are not required \u201cwhenever the portion of the transcript necessary to understand a question presented in the brief is reproduced verbatim in the body of the brief.\u201d N.C. R. App. P. 28(d)(2)(a). In State v. Edmonds, 308 N.C. 362, 302 S.E.2d 223 (1983), this Court held that if a defendant\u2019s brief did not contain portions of the transcript sufficient to understand the question presented, then the defendant\u2019s appeal on that question was subject to dismissal under Rule 28(b)(4), the predecessor to Rule 28(d).\nContrary to Rule 28(d) of the Rules of Appellate Procedure, defendant in the case sub judice has not identified the specific questions or answers which he wants this Court to review, has not included the portions of the transcripts containing those questions or answers in the appendix, and has not included a verbatim recitation of those questions or answers in his brief. Therefore, in accordance with State v. Edmonds, 308 N.C. 362, 302 S.E.2d 233, these assignments of error are dismissed.\nWe have carefully reviewed each of the defendant\u2019s exceptions and assignments of error and find that his trial was free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "MEYER, Justice." }, { "text": "Justice WEBB\nconcurring in the result.\nI concur in the result reached by the majority although I believe the testimony by Otis Lewis as to what Subrina Osborne told him before she died was inadmissible hearsay testimony. It is true, as the majority says, that N.C.G.S. \u00a7 8C-1, Rule 803(3) allows, as an exception to the hearsay rule, testimony as to what an extrajudicial declarant says in order to prove the declarant\u2019s state of mind. The state of mind of the declarant must be relevant to some issue in the case, however, to be admissible. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990). I do not believe Subrina Osborne\u2019s state of mind was relevant to the matters that had to be proved to convict the defendant.\nThe evidence against the defendant was so strong that I do not believe what I perceive to be error in the admission of testimony demonstrates there is a reasonable possibility that had the error not been made there would have been a different result. I would hold that this was harmless error. N.C.G.S. \u00a7 15A-1443 (1988).", "type": "concurrence", "author": "Justice WEBB" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, for the State.", "Isabel Scott Day, Public Defender, by Grady Jessup, Assistant Public Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY BRADLEY GLENN\nNo. 60A92\n(Filed 12 February 1993)\n1. Jury \u00a7 257 (NCI4th)\u2014 peremptory challenge \u2014racial basis \u2014 prima facie case not shown\nA defendant on trial for two first degree murders failed to establish a prima facie case that the prosecutor peremptorily challenged a prospective juror solely on the basis of race where defendant and both victims are black; the record does not reflect that the prosecutor peremptorily challenged any other black venire person; and the prosecutor stated that he peremptorily challenged this prospective juror because his statement that he \u201cwould let [the death penalty] be the last alternative\u201d was indicative of greater equivocation toward the death penalty than had been expressed by other jurors.\nAm Jur 2d, Jury \u00a7 173.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n2. Appeal and Error \u00a7 150 (NCI4th|\u2014 challenge to evidence on appeal \u2014 failure to object at trial\nWhere defendant did not object at trial to the admission of a 911 tape recording on the basis of a \u201csuggestive\u201d identification procedure, he will not be allowed to challenge the admission of the recording on that ground for the first time on appeal.\nAm Jur 2d, Appeal and Error \u00a7 602.\nAdmissibility of tape recording or transcript of \u201c911\u201d emergency telephone call. 3 ALR5th 784.\n3. Evidence and Witnesses \u00a7 959 (NCI4th)\u2014 hearsay rule \u2014 state of mind exception \u2014victim\u2019s fear of defendant\nTestimony by a witness that a murder victim told him that she wanted to move in with him because defendant had attacked her, pinned her to the bed, and attempted to stab her was admissible under the state of mind exception to the hearsay rule set forth in N.C.G.S. \u00a7 8C-1, Rule 803(3) to show the victim\u2019s fear of defendant where similar testimony by the witness on voir dire provided a plausible reason and factual basis for the victim\u2019s fear of defendant, and the victim\u2019s fear of defendant was relevant to show the nature of the victim\u2019s relationship with defendant and the impact of defendant\u2019s behavior on the victim\u2019s state of mind prior to the murder. Furthermore, the trial court did not abuse its discretion in its determination that the probative value of this evidence outweighed its tendency to unfairly prejudice defendant since the evidence was highly relevant to show motive or intent as well as to show the status of the victim\u2019s relationship with defendant prior to her death.\nAm Jur 2d, Evidence \u00a7 650.\n4. Appeal and Error \u00a7 439 (NCI4th)\u2014 transcript of testimony\u2014 assignments of error \u2014 exclusion of questions \u2014failure to comply with Rules of Appellate Procedure\nDefendant\u2019s assignments of error to the trial court\u2019s exclusion of testimony by certain witnesses were dismissed for failure to comply with Appellate Procedure Rule 28(d) where the transcript of the proceedings was filed pursuant to Rule 9(c)(2), and defendant has not identified the specific questions or answers which he wants the appellate court to review, has not included the portions of the transcript containing those questions or answers in the appendix, and has not included a verbatim recitation of those questions or answers in his brief.\nAm Jur 2d, Appeal and Error \u00a7 658.\nJustice WEBB concurring in the result.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing two consecutive life sentences entered by Ferrell, J., at the 19 August 1991 Criminal Session of Superior Court, Mecklenburg County, upon a jury verdict finding defendant guilty of two counts of first-degree murder. Heard in the Supreme Court 14 January 1993.\nLacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, for the State.\nIsabel Scott Day, Public Defender, by Grady Jessup, Assistant Public Defender, for defendant-appellant." }, "file_name": "0296-01", "first_page_order": 344, "last_page_order": 355 }