{ "id": 793065, "name": "STATE OF NORTH CAROLINA v. FREDDIE LEWIS CANNON", "name_abbreviation": "State v. Cannon", "decision_date": "1995-07-28", "docket_number": "No. 442A94", "first_page": "79", "last_page": "91", "citations": [ { "type": "official", "cite": "341 N.C. 79" } ], "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": "37 ALR3d 238", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "380 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "97-98", "parenthetical": "citations omitted" }, { "page": "99" } ], "opinion_index": 0 }, { "cite": "324 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486845 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0489-01" ] }, { "cite": "258 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "354", "parenthetical": "holding that defendant's statement amounted to a confession when he acknowledged that he had committed certain acts which constituted the crimes of rape and burglary" } ], "opinion_index": 0 }, { "cite": "298 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569845 ], "year": 1979, "pin_cites": [ { "page": "245", "parenthetical": "holding that defendant's statement amounted to a confession when he acknowledged that he had committed certain acts which constituted the crimes of rape and burglary" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0238-01" ] }, { "cite": "196 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "283 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559299 ], "year": 1973, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0520-01" ] }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "404 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "329 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553489 ], "year": 1991, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0202-01" ] }, { "cite": "273 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568868, 8568914, 8568948, 8568989, 8568825, 8568765 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0528-03", "/nc/301/0528-04", "/nc/301/0528-05", "/nc/301/0528-06", "/nc/301/0528-02", "/nc/301/0528-01" ] }, { "cite": "269 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "205" }, { "page": "205" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550560 ], "year": 1980, "pin_cites": [ { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0356-01" ] }, { "cite": "390 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "326 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304261 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0404-01" ] }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "124" }, { "page": "124", "parenthetical": "holding not prejudicial error to allow photographs to go into the jury room over defendant's objection, in part because it was within court's discretion to permit the jury to reexamine the pictures at length in the courtroom" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "114" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "404 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "663-64" } ], "opinion_index": 0 }, { "cite": "329 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552903 ], "year": 1991, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0191-01" ] }, { "cite": "51 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "348", "parenthetical": "holding that while the victim started the fight, the defendant pursued it; thus, the defendant was the aggressor and not entitled to a self-defense instruction" } ], "opinion_index": 0 }, { "cite": "229 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167716 ], "year": 1949, "pin_cites": [ { "page": "722", "parenthetical": "holding that while the victim started the fight, the defendant pursued it; thus, the defendant was the aggressor and not entitled to a self-defense instruction" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0718-01" ] }, { "cite": "170 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "466", "parenthetical": "holding that while the victim began altercation, \"defendant had become and remained the aggressor\" when he pursued the fleeing victim" } ], "opinion_index": 0 }, { "cite": "275 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559824 ], "year": 1969, "pin_cites": [ { "page": "669", "parenthetical": "holding that while the victim began altercation, \"defendant had become and remained the aggressor\" when he pursued the fleeing victim" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0662-01" ] }, { "cite": "131 L. Ed. 2d 569", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "338 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519058 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0168-01" ] }, { "cite": "87 S.E. 511", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "170 N.C. 785", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662874 ], "year": 1916, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0785-01" ] }, { "cite": "244 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "quoting State v. Crisp, 170 N.C. 785, 790, 87 S.E. 511, 514 (1916)" } ], "opinion_index": 0 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "pin_cites": [ { "parenthetical": "quoting State v. Crisp, 170 N.C. 785, 790, 87 S.E. 511, 514 (1916)" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0126-01" ] } ], "analysis": { "cardinality": 916, "char_count": 30034, "ocr_confidence": 0.715, "pagerank": { "raw": 1.740555286382408e-07, "percentile": 0.7069634175583209 }, "sha256": "a2530aa8098905f9780f06443fc6690c7b884ce9fb43fcc07dd80c2ea48fd585", "simhash": "1:2beed12a70f0ab70", "word_count": 5041 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FREDDIE LEWIS CANNON" ], "opinions": [ { "text": "PARKER, Justice.\nIndicted for the first-degree murder of Virginia Nile Craine (victim) in violation of N.C.G.S. \u00a7 14-17, defendant was tried noncapitally and found guilty as charged on the theories of premeditation and deliberation and felony murder. The trial court sentenced defendant to life imprisonment.\nDefendant and the victim were married on 2 November 1991. The couple began having problems in January 1993. Sometime in July 1993, defendant moved in with his friend James Buchanan. On 29 August 1993, between 6:00 and 7:00 p.m., the victim went to Buchanan\u2019s home and pulled her car into Buchanan\u2019s driveway. The victim got out of her car and began screaming at defendant about taking a refrigerator from a mobile home in which the two had lived. Buchanan, who had been sleeping in the house, was awakened by the noise and heard the victim yell at defendant to come outside. Defendant, who had been sitting in the living room, went outside. Defendant had a gun in his back pocket. The victim continued to yell at defendant, and the argument escalated. Buchanan heard the victim say she was going to kill defendant, and he heard defendant ask her to leave. The victim slapped defendant on the head two times, and defendant then pushed the victim towards her car and forced her into her car.\nAfter being forced into her car by defendant, the victim backed up her car and deliberately ran it into defendant\u2019s car, which was also parked in the driveway. The victim then straightened her car up to start going down the driveway. When the victim\u2019s car was directed down the driveway, defendant was standing about eight feet away, on the passenger side of the victim\u2019s car. Both windows in the victim\u2019s car were rolled down. Defendant pulled his gun out of his pocket, cocked it, pointed it at the victim, and shot into the car three times. The victim was struck by three bullets, and her car rolled partway down the driveway.\nOn 29 August 1993 Clifton Scott was living with his mother-in-law, who was a neighbor of Buchanan\u2019s. Scott observed the original argument between defendant and the victim. Scott stopped watching the two when the victim was forced into her car by defendant. Scott returned to the window when he heard a loud crash and a gunshot. Scott then saw defendant shoot the victim two times. Scott testified that while defendant was shooting at the victim, defendant was standing at the passenger side of the car, about four or five feet away from the car, and the car was moving down the driveway.\nAfter the shooting defendant jumped into his own car and pulled out of the driveway, pushing the victim\u2019s car out of the way with his car as he left. Defendant then drove to Tennessee, where he was arrested two days later. Defendant gave a statement to police in which he said that after the victim had \u201cstraightened her car up to go out the driveway,\u201d he shot into the victim\u2019s car three times. Defendant stated that he intended to shoot between the victim and the windshield to scare the victim.\n. An autopsy revealed that the victim had suffered from three gunshot wounds. One bullet entered the back of the victim\u2019s right arm and traveled sideways through the arm and then into the victim\u2019s body. A second bullet entered the \u201cright back chest area\u201d and exited the left side of the chest. A third bullet entered the back of the right shoulder and exited the front of the right shoulder. The victim died from the gunshot wounds to the chest.\nAdditional facts will be addressed as necessary to the discussion of a particular issue.\nDefendant begins by arguing that the trial court, over objection, erred by instructing the jury that self-defense was unavailable to defendant if defendant was the aggressor. Defendant contends no evidence in the record supports a finding that defendant was the aggressor. We disagree.\nA defendant may be deemed an aggressor if he \u201c \u2018has wrongfully assaulted another or committed a battery upon him.\u2019 \u201d State v. Potter, 295 N.C. 126, 144 n.2, 244 S.E.2d 397, 409 n.2 (1978) (quoting State v. Crisp, 170 N.C. 785, 790, 87 S.E. 511, 514 (1916)). In State v. Watson, 338 N.C. 168, 449 S.E.2d 694 (1994), cert. denied, -U.S.-, 131 L. Ed. 2d 569 (1995), the victim initially approached the defendant and began arguing with the defendant over a woman. The victim eventually stopped arguing with the defendant and returned to his vehicle. After the victim got into his car, the defendant approached the victim and shot him. Holding that the trial court did not err in declining to instruct that defendant had no duty to retreat, this Court stated: \u201cDefendant, not the victim, was the aggressor. The evidence is that after the victim quit the argument and returned to his vehicle, defendant left his vehicle, walked over to the victim\u2019s car and began shooting.\u201d Id. at 186, 449 S.E.2d at 705; see also State v. Freeman, 275 N.C. 662, 669, 170 S.E.2d 461, 466 (1969) (holding that while the victim began altercation, \u201cdefendant had become and remained the aggressor\u201d when he pursued the fleeing victim); State v. Church, 229 N.C. 718, 722, 51 S.E.2d 345, 348 (1949) (holding that while the victim started the fight, the defendant pursued it; thus, the defendant was the aggressor and not entitled to a self-defense instruction).\nJust as in Watson, the evidence in this case permits the inference that defendant was the aggressor at the time he shot the victim; thus, an instruction to this effect is not erroneous. While the evidence shows that the victim initially went to defendant\u2019s home and began to argue with him, the evidence also shows that immediately before the victim was shot, she had \u201cstraightened her car up to go out the driveway,\u201d and she was about to leave. The evidence also reflects that the victim was shot from the side and from behind, further supporting the inference that defendant shot at the victim only after the victim had quit the argument and was trying to leave. On the evidence before it, the trial court properly allowed the triers of fact to determine that defendant was the aggressor. See State v. Terry, 329 N.C. 191, 199, 404 S.E.2d 658, 663-64 (1991). Defendant\u2019s assignment of error on this issue is overruled.\nIn defendant\u2019s second and third issues, he argues that the trial court erred in permitting the jury, over defendant\u2019s objection, to take State\u2019s exhibits 1-10, 12, 13, 15, and 16 into the jury room, in violation of N.C.G.S. \u00a7 15A-1233(b). These exhibits included photographs from the scene of the crime and the autopsy, a copy of defendant\u2019s confession, witness Buchanan\u2019s first statement to the police, and a diagram of the crime scene.\nN.C.G.S. \u00a7 15A-1233(b) provides:\nUpon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits, or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, he must, upon request, instruct the jury not to conduct any experiments with the exhibit.\nN.C.G.S. \u00a7 15A-1233(b) (1988). We hold that the trial court erred in allowing the jury to take these exhibits to the jury room without the consent of all parties. See State v. Huffstetler, 312 N.C. 92, 114, 322 S.E.2d 110, 124 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). We must now consider whether this error was prejudicial to defendant.\nA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.\nN.C.G.S. \u00a7 15A-1443(a) (1988).\nTo begin, defendant argues that the court erred by allowing the jury to review the first written statement of witness Buchanan. The statement had been admitted but not read into evidence. Further, the first written statement was not as detailed as witness Buchanan\u2019s second statement to the police and his testimony at trial, which the jury was not allowed to review during deliberation. While the statement did not include details discussed by Buchanan during his testimony at trial, it did state that defendant and the victim were arguing, that the victim was cursing at defendant, and that defendant repeatedly asked the victim to leave. At trial both eyewitnesses testified that the victim had initiated the original confrontation, yelled at defendant, and hit him. The statement reviewed by the jury does not contradict the trial testimony on these critical points. Nothing in the statement suggests that the victim did not hit defendant or that the victim did not initiate the confrontation by arguing with and cursing at defendant.\nDefendant also argues that submission of this first statement was prejudicial since the trial court denied the jury\u2019s request to review Buchanan\u2019s second, more detailed statement. In this second statement Buchanan stated, as he did at trial, that the victim threatened to kill defendant and that she hit defendant. However, this second statement had not been admitted into evidence. The trial court has no authority to permit the jury to examine or take into a jury room exhibits which have not been introduced into evidence. See State v. Bacon, 326 N.C. 404, 417, 390 S.E.2d 327, 334 (1990). Defendant cannot argue he was prejudiced by the trial court\u2019s failure to submit a statement that the court had no authority to allow the jury to review.\nDefendant also argues that the submission of eleven photographs to the jury for review was prejudicial. Eight of the photographs were of the deceased either at the scene of the crime or at the autopsy. Some of these photographs showed the victim\u2019s wounds, and one photograph showed the victim\u2019s face at the autopsy with her eyes and mouth open. Defendant argues that allowing the jury to take these photographs into the jury room permitted the jury to concentrate on the inflammatory aspects of the photographs and was prejudicial.\nThe photographs in question had been previously admitted and shown to the jury to illustrate the testimony of witnesses. Under N.C.G.S. \u00a7 15A-1233(a), the trial court had the discretion to permit the jury to reexamine the pictures closely and at length in the courtroom. On the record before us, we are not persuaded that defendant has shown a reasonable possibility that had the jury not been allowed to review these photographs in the jury room, a different result would have been reached. See Huffstetler, 312 N.C. at 115, 322 S.E.2d at 124 (holding not prejudicial error to allow photographs to go into the jury room over defendant\u2019s objection, in part because it was within court\u2019s discretion to permit the jury to reexamine the pictures at length in the courtroom).\nDefendant also argues he was prejudiced when the jury was allowed to review a diagram which had never actually been admitted into evidence. The Court agrees that it was error to submit this diagram to the jury for review for two reasons: (i) defendant did not consent to the admission, N.C.G.S. \u00a7 15A-1233(b), and (ii) the trial court did not have authority to allow the jury to review exhibits that have not been admitted into evidence, Bacon, 326 N.C. at 417, 390 S.E.2d at 334. However, we conclude this error was not prejudicial to defendant.\nThe diagram, which was used by three of the State\u2019s witnesses, illustrated where defendant\u2019s car, the victim\u2019s car, and two other cars were parked when the argument between defendant and the victim began. The diagram also showed the location of defendant\u2019s home in relation to witness Scott\u2019s home and the location of the driveway at defendant\u2019s home. Witness Scott used the diagram to explain what occurred during the incident at issue. Defendant used the diagram to reiterate where the victim and defendant were when they began fighting and to establish that only one car could get down the driveway at a time. The record reflects that the diagram itself, as submitted to the jury, did not actually depict where defendant was standing when he shot at the victim\u2019s car or where the victim\u2019s car was located when defendant shot the victim. The diagram simply illustrated the scene as it was during the initial confrontation. Defendant has not shown a reasonable possibility that based on the information contained in the diagram as submitted, the jury would have reached a different verdict if the diagram had not been submitted for review.\nFinally, defendant argues he was also prejudiced by the submission of his confession, the most damaging evidence the State adduced against defendant. Defendant contends that denying the jury the opportunity to review the favorable trial testimony given by witnesses Scott and Buchanan permitted the jury to concentrate on defendant\u2019s statement, which was devoid of details favorable to defendant.\nIn State v. Bell, 48 N.C. App. 356, 363-64, 269 S.E.2d 201, 205, disc. rev. denied and appeal dismissed, 301 N.C. 528, 273 S.E.2d 455 (1980), the defendant argued that the trial court committed prejudicial error when it allowed the jury, over the defendant\u2019s objection, to review three written statements that presented the evidence in the light most favorable to the State, while not allowing trial testimony which was more favorable to the defendant to be taken into the jury room. The defendant in Bell argued that the reason the statements that were taken to the jury room were prejudicial was that they did not fully show that the victim was the aggressor. Id. at 364, 269 S.E.2d at 205. The court noted that there was some evidence that the victim was the aggressor in the statements taken into the jury room. Id. The court also noted that the evidence against the defendant presented at trial and in the written statements at issue was substantial. Id. The court concluded that the defendant failed to meet his burden of showing a reasonable possibility that had the alleged error not occurred, the outcome of the trial would have been different. Id.\nIn this case, as in Bell, the jury was given written statements to review that defendant argues were not as favorable to defendant as certain testimony from trial that was not given to the jury to review. In the present case the evidence against defendant was substantial. Defendant\u2019s statement had been read in its entirety to the jury by a State\u2019s witness. Accordingly, we conclude defendant has not shown that there is a reasonable possibility that if defendant\u2019s confession had not been given to the jury, the outcome of the trial would have been different.\nIn conclusion we have determined that while the trial court erred in submitting exhibits to the jury for review over defendant\u2019s objection, defendant has failed to show that he was prejudiced by this error.\nIn a related issue defendant argues that the trial court abused its discretion when it denied the jury\u2019s request to review the trial testimony of State\u2019s witnesses Scott and Buchanan in violation of N.C.G.S. \u00a7 15A-1233. Defendant contends the testimony not submitted to the jury for review was favorable to defendant, while the evidence and exhibits that were submitted to the jury for its review were favorable to the State. Defendant argues the trial testimony of Scott and Buchanan tended to show that the victim was the aggressor and that defendant acted in self-defense. Specifically, defendant notes that Buchanan stated that at some point, defendant had to jump out of the way of the victim\u2019s car.\nN.C.G.S. \u00a7 15A-1233(a) provides:\nIf the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.\nThe judge in this case stated that the testimony of Scott and Buchanan was \u201cnot available in writing for you to observe, and the Court in it\u2019s [sic] discretion will not require it.\u201d\n\u201cWhen the trial court states for the record that, in its discretion, it is allowing or denying a jury\u2019s request to review testimony, it is presumed that the trial court did so in accordance with N.C.G.S. \u00a7 15A-1233.\u201d State v. Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 675 (1991). Defendant does not argue that the trial court did not act in its discretion, , but instead argues that the trial court abused this discretion and, in doing so, prejudiced defendant. We disagree.\nTo show that the trial court abused its discretion, \u201cdefendant must demonstrate that the trial court\u2019s action was \u2018so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Id. at 209, 404 S.E.2d at 676 (quoting State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)). While Scott and Buchanan testified that the victim initiated the confrontation, their testimony also suggested that the car was moving away from defendant and down the driveway when defendant shot the victim. Buchanan did mention at trial that at some point, defendant had to jump out of the way of the victim\u2019s car, but Buchanan\u2019s testimony was conflicting and contradictory as to when and if defendant may have had to jump out of the way of the victim\u2019s car. During direct examination, Buchanan failed to mention that defendant ever had to jump out of the way of the car; during cross-examination, Buchanan stated that defendant had to move out of the way of the car when the victim hit defendant\u2019s car; during redirect examination, Buchanan testified that defendant had to jump out of the way the \u201csecond time,\u201d not the first time, the victim moved her car. Buchanan never testified that defendant shot at the victim to avoid being hit by the car, or even that defendant shot at the victim\u2019s car as it was being driven in defendant\u2019s direction. In fact, Buchanan testified on direct examination that the car was pointed down the driveway and rolling forward, as if to leave, when defendant shot at the victim three times. Buchanan never changed or contradicted this part of his testimony. A review of the testimony reveals that the testimony taken as a whole supports the State\u2019s version of the events at issue. The evidence and exhibits reviewed by the jury were not inconsistent with the testimony not reviewed by the jury; the reviewed statements were simply not as detailed as the trial testimony.\nNothing in the record supports defendant\u2019s contention that the trial court\u2019s decision not to allow this testimony to be reconsidered by the jury was so arbitrary that it could not have been the result of a reasoned decision. The trial- court did not abuse its discretion by refusing to allow the jury to review the requested trial testimony.\nMoreover, assuming arguendo that the trial court did abuse its discretion in not allowing the jury to review this testimony, defendant has not shown how he was prejudiced by this decision. Defendant has not shown that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d N.C.G.S. \u00a7 15A-1443(a). The statements in Buchanan\u2019s trial testimony that could be deemed the most helpful were Buchanan\u2019s statements that defendant jumped out of the way of the victim\u2019s car at some point in time. Buchanan\u2019s testimony pertaining to when defendant had to move out of the way of the car was contradictory and confusing, and Buchanan never actually stated that defendant shot the victim to avoid being hit. The testimony defendant argues should have also been reviewed by the jury supported the State\u2019s theory of the case and specifically indicated that defendant shot at the victim when her car was going down the driveway, away from defendant. We conclude that defendant has not shown there was a reasonable possibility that the jury would have reached a different verdict had the testimony been submitted. Defendant\u2019s assignment of error is overruled.\nFinally, defendant argues that the record is devoid of evidence to support the trial court\u2019s instruction that there was evidence tending to show that defendant confessed that he committed the crime charged. Defendant also argues that the instruction was an impermissible expression of opinion on the part of the trial court. We disagree.\n\u201cA trial judge should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence.\u201d State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973). In this case the trial judge instructed the jury:\nThere is evidence which tends to show that the Defendant confessed that he committed the crime charged in this case.\nIf you find that the Defendant made that confession, then you should consider all of the circumstances under . . . which it was made, in determining whether it was a truthful confession, and the weight you will give to it.\nDefendant was charged with first-degree murder. One of the theories upon which he was tried was felony murder with the underlying felony being discharging a firearm into an occupied motor vehicle.\nConfession is defined as a \u201c[voluntary statement made by one who is [a] defendant in [a] criminal trial at [a] time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting [a] crime for which he is on trial; a statement which, if true, discloses his guilt of that crime.\u201d Black\u2019s Law Dictionary 296 (6th ed. 1990).\nN.C.G.S. \u00a7 14-17 defines \u201cfirst-degree murder\u201d in pertinent part as a\nmurder which shall be perpetrated by . . . willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any . . . felony committed or attempted with the use of a deadly weapon.\nN.C.G.S. \u00a7 14-34.1 provides that \u201c[a]ny person who willfully or wantonly discharges or attempts to discharge [] ... [a] firearm into any ... vehicle . . . while it is occupied is guilty of a . . . felony.\u201d In his confession defendant stated in part: \u201cI pulled the gun out of my pocket and cocked it. I was going to shoot into the car, between her and the windshield, just to scare her. I pointed my gun toward the car and shot 3 times.\u201d\nA reasonable reading of this statement is that defendant willfully and with knowledge that the vehicle was occupied discharged his gun three times into an occupied vehicle. The evidence is uncontradicted that the victim died from gunshot wounds sustained when defendant shot into the vehicle. Thus, the murder was committed in perpetration of a felony committed with the use of a deadly weapon. Defendant admitted that he had engaged in certain conduct which constituted the crime of felony murder. His statement amounts to a \u201cconfession\u201d to first-degree murder. See State v. Hamilton, 298 N.C. 238, 245, 258 S.E.2d 350, 354 (1979) (holding that defendant\u2019s statement amounted to a confession when he acknowledged that he had committed certain acts which constituted the crimes of rape and burglary). We conclude the trial court\u2019s instruction was \u201cbased upon a state of facts presented by some reasonable view of the evidence\u201d and was not erroneous.\nDefendant also argues that the trial court in this case impermissibly expressed an opinion in characterizing defendant\u2019s statement as a confession in violation of N.C.G.S. \u00a7\u00a7 15A-1222 and -1232. Pursuant to N.C.G.S. \u00a7\u00a7 15A-1222 and -1232, a judge may not express an opinion on a question of fact to be decided by the jury and specifically may not express an opinion as to whether a fact has been proven when instructing the jury. We conclude that the trial court\u2019s confession instruction was not an expression of opinion.\nIn State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989), the defendant argued that the trial court\u2019s instructions that evidence tended to show that defendant confessed to the crime charged amounted to an impermissible expression of opinion in violation of N.C.G.S. \u00a7\u00a7 15A-1222 and -1232. The Court held:\nThe use of the words \u201ctending to show\u201d or \u201ctends to show\u201d in reviewing the evidence does not constitute an expression of the trial court\u2019s opinion on the evidence. Nor did the trial court\u2019s statement that the evidence tended to show that the defendant had \u201cconfessed\u201d that he \u201ccommitted the crime charged\u201d amount to an expression of opinion by the trial court, because evidence had been introduced which in fact tended to show that the defendant had confessed and to the crime charged, first[-]degree murder.\nYoung, 324 N.C. at 495, 380 S.E.2d at 97-98 (citations omitted).\nIn Young the Court determined that the trial court\u2019s instructions did not amount to an expression of opinion that the defendant had in fact confessed. The trial court\u2019s instructions also contained the instruction that \u201cif you find that the defendant made that confession, then you should consider all the circumstances under which it was made in determining whether it was a truthful confession and the weight which you will give it.\u201d Id. at 498, 380 S.E.2d at 99. This Court held that \u201c[t]his instruction made it clear that, although there was evidence tending to show that the defendant had confessed, the trial court left it entirely for the jury to determine whether the evidence showed that the defendant in fact had confessed.\u201d Id. In this case the trial court included the same instruction as in Young, leaving it to the jury to determine whether the evidence showed that the defendant had in fact confessed.\nUnder Young defendant\u2019s argument that the trial court erred by instructing that the evidence tended to show that defendant confessed to the crime charged is without merit.\nHaving reviewed all defendant\u2019s assignments of error, we conclude that defendant received a fair trial free from prejudicial error.\nNO ERROR.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Michael S. Fox, Associate Attorney General, for the State.", "Isabel Scott Day, Public Defender, by Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDDIE LEWIS CANNON\nNo. 442A94\n(Filed 28 July 1995)\n1. Homicide \u00a7 382 (NCI4th)\u2014 argument initiated by murder victim \u2014 argument quit by victim \u2014 defendant as aggressor\u2014 jury question\nThe trial court properly allowed the jury to determine whether defendant was the aggressor where the evidence tended to show that the victim initially went to defendant\u2019s home and began to argue with him, but immediately before she was shot she had straightened her car up to go out of the driveway and was about to leave; furthermore, the evidence also reflected that the victim was shot from the side and from behind, further supporting the inference that defendant shot at the victim only after the victim had quit the argument and was trying to leave.\nAm Jur 2d, Homicide \u00a7 448.\n2. Criminal Law \u00a7 497 (NCI4th)\u2014 State\u2019s exhibits taken to jury room over defendant\u2019s objection \u2014 error not prejudicial\nThough the trial court erred in permitting the jury, over defendant\u2019s objection, to take State\u2019s exhibits into the jury room, including photographs from the crime scene and autopsy, a copy of defendant\u2019s confession, a witness\u2019s statement to police, and a diagram of the crime scene, defendant was not prejudiced where he failed to show that there was a reasonable possibility that, had the exhibits not been allowed in the jury room, the outcome of the trial would have been different. N.C.G.S. \u00a7 15A-1233(b)\nAm Jur 2d, Trial \u00a7\u00a7 1668, 1669, 1672, 1678, 1680.\nPermitting documents or tape recordings containing confessions of guilt or incriminating admissions to be taken into jury room in criminal case. 37 ALR3d 238.\n3. Criminal Law \u00a7 497 (NCI4th)\u2014 evidence allegedly favorable to defendant \u2014 denial of jury\u2019s request to review\u2014 defendant not prejudiced\nThe trial court did not abuse its discretion when it denied the jury\u2019s request to review the trial testimony of two witnesses which was favorable to defendant while allowing review of testimony favorable to the State, since the evidence and exhibits reviewed by the jury were not inconsistent with the testimony not reviewed by the jury; nothing in the record supported defendant\u2019s contention that the trial court\u2019s decision not to allow this testimony to be reconsidered by the jury was so arbitrary that it could not have been the result of a reasoned decision; and even if the trial court did abuse its discretion, defendant failed to show how he was prejudiced by this decision.\nAm Jur 2d, Trial \u00a7\u00a7 1685, 1687, 1688.\n4. Criminal Law \u00a7 747 (NCI4th)\u2014 trial court\u2019s instruction on confession \u2014 no improper expression of opinion\nThe evidence was sufficient to support the trial court\u2019s instruction that there was evidence tending to show that defendant confessed that he committed the crime charged where defendant stated in his confession that he pulled a gun out of his pocket, cocked it, intended to scare the victim by shooting between her and the windshield, and shot at the car three times; furthermore, the trial court did not impermissibly express an opinion in characterizing defendant\u2019s statement as a confession.\nAm Jur 2d, Trial \u00a7\u00a7 1197, 1204-1207.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment imposing a sentence of life imprisonment entered by Ferrell, J., at the 11 April 1994 Criminal Session of Superior Court, Mecklenburg County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 8 May 1995.\nMichael F. Easley, Attorney General, by Michael S. Fox, Associate Attorney General, for the State.\nIsabel Scott Day, Public Defender, by Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0079-01", "first_page_order": 113, "last_page_order": 125 }