State v. Johnson, 2009 N.C. App. LEXIS 1085 (NC Ct. App. 2009)


NO. COA08-1479


2009 N.C. App. LEXIS 1085

June 17, 2009, Heard in the Court of Appeals
July 7, 2009, Filed

COUNSEL: Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.
Glenn Gerding for defendant-appellant.

JUDGES: ELMORE, Judge. Chief Judge MARTIN and Judge BRYANT concur.


Appeal by defendant from judgment entered 16 July 2008 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 17 June 2009.

ELMORE, Judge.

In 2005, defendant Robert Lee Johnson, Jr. (defendant) was indicted on charges of attempted first-degree murder, first-degree kidnapping, felony breaking or entering, felony larceny, and attaining the status of a violent habitual felon. Defendant was tried during the 16 January 2006 session of Wake County Superior Court before Judge A. Leon Stanback, and the jury found defendant guilty of second-degree kidnapping, felonious breaking or entering, felony larceny, and attaining the status of a violent habitual felon. The jury found defendant not guilty of attempted murder. The trial court entered judgment on 23 January 2006 and sentenced defendant to life in prison without parole. Defendant appealed.

In an opinion filed 5 June 2007, this Court found no error with the breaking or entering and larceny convictions, but vacated the second-degree kidnapping conviction and ordered a new trial due to an erroneous jury instruction. State v. Johnson, 183 N.C. App. 576, 584-85, 646 S.E.2d 123, 128 (2007). This Court also vacated the violent habitual felon conviction and ordered a new trial. Id. at 585, 646 S.E.2d at 128.

Defendant was tried during the 14 July 2008 session of Wake County Superior Court before Judge Paul G. Gessner on the second-degree kidnapping and violent habitual felon charges. At trial, Melissa Greene, the victim, testified that she had lived with her boyfriend in a second floor apartment in the Shellbrook Court Apartments in Raleigh. Ms. Greene and her boyfriend were polite to defendant, their downstairs neighbor, but did not socialize with him.

On 9 April 2005, Ms. Greene and her boyfriend took their dog to play in the apartment complex’s tennis courts. Ms. Greene returned to the apartment alone ten to fifteen minutes later to take a shower and noticed that the door was ajar. Ms. Greene and her boyfriend had left the door closed, but not locked, when they left with the dog.

Ms. Greene assumed that someone was doing maintenance work in her apartment and she went inside. As she attempted to enter, the door hit something. She pushed the door further, stepped inside, and saw defendant behind the door, holding four or five of her DVDs. Ms. Greene asked defendant what he was doing, and he told her he was fixing something for her boyfriend. Ms. Greene asked defendant to leave the apartment at least five or six times, but he did not leave. Ms. Greene then retrieved her cell phone and attempted to call 911, but defendant came towards her. At some point, defendant had closed and locked the door and was standing between Ms. Greene and the door. Because he was blocking her path to the door, Ms. Greene attempted to move towards the kitchen. Ms. Greene testified that defendant then grabbed her and put her in a headlock, and she could not move. Defendant kept his arm around her neck, covered her mouth, and plugged her nose with his other hand. Ms. Greene could not breathe and lost consciousness. When she woke up, a blanket was covering her head. Ms. Greene then found her phone and called 911. Ms. Greene testified that, as a result of the incident, she had several scratches and cuts on her face, several broken blood vessels around her face, and bruising around her neck.

Ms. Greene’s boyfriend also testified about the events of 9 April 2005. He stayed out with the dog while Ms. Greene went back to their apartment to shower. When he returned to the apartment, the door was locked. He confirmed that the door was not locked when they left the apartment. He began ringing the doorbell, but no one answered. He assumed that Ms. Greene had locked the door while taking a shower, so he left to take the dog for another short walk. He came back after five minutes, and the door was cracked open. He found Ms. Greene on the phone, crying, and extremely flustered.

Dr. Robert Denton, an emergency room physician at Rex Hospital, was tendered as an expert in emergency medicine. Dr. Denton examined Ms. Greene after the incident. Dr. Denton testified that Ms. Greene had subconjunctival hemorrhages in the whites of her eyes, capillary bruises across her hairline, flushing of her checks, scratch marks and abrasions around her mouth, abrasions on her neck, and a small bite mark on her tongue. In Dr. Denton’s opinion, the findings were consistent with a strangle injury. Dr. Denton explained that hemorrhaging in Ms. Greene’s eyes and ruptured capillaries were consistent with a person “trying to breathe or forcing high pressures in [her] head and chest.” He testified that “[a] high pressure situation . . . could essentially rupture the small blood vessels in the eye and the skin, the capillaries, and can cause these findings.”

Defendant testified on his own behalf, stating that, in April 2005, he lived with his daughter in the Shellbrook Apartments. Defendant testified that he occasionally purchased drugs, such as cocaine and Valium, for Ms. Greene and other people. On 8 April 2005, Ms. Greene gave defendant $ 60.00 to buy drugs, so defendant rode the bus downtown to buy drugs, but could not find his supplier. Defendant decided to stay downtown, spent the $ 60.00 on himself, and “had a good time.”

The next morning, Ms. Greene came to defendant’s apartment and asked him to bring the drugs up to her apartment, and defendant said “okay.” Defendant then went to her apartment to discuss the drug deal and to return DVDs he had previously borrowed. According to defendant, the door was already partially open when he arrived, and Ms. Greene was standing close to the doorway. Defendant testified that, when he told Ms. Greene he did not have the drugs, she got angry, acted crazy, and attempted to hit him with her cell phone. Defendant then grabbed Ms. Greene to restrain her until she “cooled down.” Defendant testified that Ms. Greene hit him and he then grabbed her and spun her around. During the struggle, she asked to be freed, screaming “let me go.” Defendant testified that Ms. Greene was trying to wiggle free from his hold, but he had her arm and was holding her down. He claimed that the only time he put his hand over her face was when she was trying to break from his hold. Defendant estimated that he held Ms. Greene down for approximately two minutes.

Defendant testified that he saw Ms. Greene’s boyfriend coming up the stairs with the dog and worried that he would fight defendant. Therefore, defendant kicked the door shut with his foot, but did not lock it. He then threw Ms. Greene down and ran to the back door. Defendant heard Ms. Greene’s boyfriend knocking on the door, so he jumped off the patio to the first floor and returned to his apartment. Defendant denied putting a blanket over Ms. Greene’s head. He also claimed that she was conscious and crying when he left the apartment. Defendant testified that, after he saw the police and an ambulance, he knew he was in trouble, so he took the bus downtown.

The day after the incident, police officers found defendant hiding in the attic of a house on Hargett Street in Raleigh. After defendant was arrested and given his Miranda rights, he gave a statement to law enforcement. However, defendant gave the officers a different version of the events. Defendant told Detective Leonard Harrington that he and Ms. Greene were friends and that had borrowed a VHS tape from her. Defendant told Detective Harrington that he went to return the tape on 8 April 2005, and, while he was in Ms. Greene’s apartment, she had a small seizure.

A jury found defendant guilty of second-degree kidnapping and attaining the status of a violent habitual felon. The trial court entered judgment on 16 July 2008 and sentenced defendant to life in prison without parole. Defendant timely gave notice of appeal in open court.

On appeal, defendant first argues that the trial court committed plain error by failing to give a jury instruction on self-defense. Defendant concedes that he failed to request an instruction on self-defense. Our Supreme Court has held that “it is the duty of the trial court to instruct the jury on all of the substantive features of a case. This is a duty which arises notwithstanding the absence of a request by one of the parties for a particular instruction.” State v. Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1988) (internal citations omitted). Nonetheless, in the absence of a request for a specific instruction, this Court will review the instruction’s omission for plain error only. N.C.R. App. P. 10(c)(4) (2007).

“A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense.” State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (citation omitted). In determining whether an instruction on self-defense is warranted, the facts are viewed in the light most favorable to the defendant. State v. Watkins, 283 N.C. 504, 509, 196 S.E.2d 750, 754 (1973). “The theory of self-defense entitles an individual to use ‘such force as is necessary or apparently necessary to save himself from death or great bodily harm. . . . A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.'” State v. Moore, 111 N.C. App. 649, 653, 432 S.E.2d 887, 889 (1993)(quoting State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)) (omission in original). However, “[i]n the absence of an intent to kill, a person may fight in his own self-defense to protect himself from bodily harm or offensive physical contact, even though he is not put in actual or apparent danger of death or great bodily harm.” State v. Beaver, 14 N.C. App. 459, 463, 188 S.E.2d 576, 579 (1972) (citations omitted). Defendant argues that a jury instruction on self-defense was warranted because the State’s theory of restraint involved a physical touching by defendant. Thus, he contends that self-defense is a legal justification for his actions against Ms. Greene. Defendant claims that omission of a self-defense instruction was plain error because he essentially admitted to the elements of kidnapping. He contends that, without a self-defense instruction, the jury had no choice but to find him guilty.
Defendant acknowledges that he has not identified any case law in which a defendant was entitled to a self-defense instruction in defense of a kidnapping charge. However, we decline to address this specific question, because, even assuming arguendo that defendant was entitled to a self-defense instruction, we do not find any plain error after reviewing the entire record. “Plain error is error ‘so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted). Our Supreme Court has explained:

[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations and emphasis in original) (citations and quotation marks omitted). Under plain error analysis, the burden is on the defendant to show that “absent the error the jury probably would have reached a different verdict.” State v. Hartman, 90 N.C. App. 379, 383, 368 S.E.2d 396, 399 (1988) (citations omitted). As explained below, we do not find that a jury probably would have reached a different verdict, even if a self-defense instruction had been given.

Even if defendant’s version of events is believed, Ms. Greene’s throwing of her cell phone constituted non-deadly force. Therefore, defendant was required to retreat if possible and was permitted to use only the amount of force necessary to repel Ms. Greene’s assault. See State v. Allen, 141 N.C. App. 610, 618, 541 S.E.2d 490, 497 (2000). Our Supreme Court has explained:

Another distinction applicable to the deadly force-nondeadly force dichotomy is made between assaults with felonious intent (use of deadly force) and assaults made without felonious intent (use of nondeadly force). In the latter the person assaulted may not stand his ground and kill his adversary, if there is any way of escape open to him, although he is permitted to repel force by force and give blow for blow.

State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975) (citations omitted).

Even if defendant acted in self-defense when he initially grabbed Ms. Greene, his testimony establishes that (1) the force he used was excessive and (2) he had an opportunity to retreat but failed to do so. Defendant testified that he grabbed Ms. Greene after she attempted to hit him with her cell phone. At this point, defendant could have walked out of Ms. Greene’s apartment if he feared for his safety, but he instead grabbed Ms. Greene. According to defendant, she was wiggling around, asked to be freed, and hit him while he had a hold on her. Even after this occurred, defendant still could have let go of Ms. Greene and left her apartment, as he was standing in the doorway. Instead, he pinned her down for approximately two minutes and let Ms. Greene go only after he saw her boyfriend heading to the apartment. Based on the foregoing, the jury could have found that defendant’s actions were not justified, because he used excessive force and failed to retreat. Accordingly, even with a self-defense jury instruction, it is unlikely that the jury would have reached a different result.

Moreover, the testimony of at least two witnesses corroborates Ms. Greene’s version of the events and casts doubt on defendant’s version. Ms. Greene’s boyfriend testified that, when he came back with the dog, the door to their apartment was locked and no one answered. Ms. Greene’s boyfriend also testified that he had never seen Ms. Greene use drugs, had no reason to suspect that she used drugs, and had never seen her have any dealings with defendant. Dr. Denton testified that Ms. Greene’s injuries were consistent with a strangle injury. He further explained that the hemorrhaging of her eyes and ruptured capillaries suggested that she was trying to breathe and had high pressure forced into her head. The testimony of these two witnesses is consistent with Ms. Greene’s testimony that defendant restrained her with such force that she lost consciousness for a short period of time. Moreover, defendant’s shifting explanation of the events tends to cast doubt on his credibility. Taken as a whole, the overwhelming evidence supports Ms. Greene’s version of the events, making a different result by the jury unlikely. Accordingly, we conclude that the trial court did not commit plain error.

Next, defendant challenges a statement made by the prosecutor during his closing argument, which defendant did not object to during trial. Defendant contends that the trial court should have intervened ex mero motu to correct the prosecutor’s statements. After careful review, we do not find prejudicial error.

On cross-examination, the State questioned defendant about two prior misdemeanor larceny convictions in 2003 and 2004, but defendant testified that he had not been convicted of misdemeanor larceny on either occasion. Thereafter, the State did not introduce any evidence to prove that defendant had indeed been convicted of misdemeanor larceny. Nonetheless, during the State’s closing argument, the assistant district attorney stated the following:

You can also consider, if you think it bears on his truthfulness, the fact that the defendant has been convicted in the past of armed robbery or misdemeanor larceny.

Counsel for defendant did not object to the statement.

Our Supreme Court has held that “[t]he standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). Further, our Supreme Court has explained that “the trial court is not required to intervene ex mero motu unless the argument strays so far from the bounds of propriety as to impede defendant’s right to a fair trial.” State v. Atkins, 349 N.C. 62, 84, 505 S.E.2d 97, 111 (1998) (citations omitted). Here, it is undisputed that the prosecutor made reference to a fact which was not presented in evidence. Defendant argues that the jury’s perception of defendant’s credibility was critical. Therefore, defendant contends, the prosecutor’s statement was so prejudicial as to warrant intervention by the trial court ex mero motu.

Although we agree with defendant that the prosecutor should not have mentioned the alleged misdemeanor conviction, we cannot agree that the error is so grave that it prejudiced the result of the trial. Even if the prosecutor mentions a fact not in evidence, it does not necessarily follow that the prosecutor “strayed from all bounds of propriety” so as to impede defendant’s right to a fair trial. See State v. Glasco, 160 N.C. App. 150, 158-59, 585 S.E.2d 257, 263 (2003) (holding that the trial court did not abuse its discretion in refusing to declare a mistrial where prosecutor twice referred to facts not in evidence in the closing argument). Here, the prosecutor briefly mentioned the alleged conviction on only one occasion. However, defendant admitted to more serious criminal activity than a misdemeanor larceny conviction. Defendant admitted to an armed robbery conviction and to procuring illegal drugs for other individuals. Morever, defendant’s version of the events on the witness stand was different than the version he told to law enforcement after he was arrested. Defendant’s armed robbery conviction, drug activity, and shifting story have more of a bearing on his credibility than a misdemeanor larceny conviction. Given the totality of the evidence presented and the context in which the prosecutor made the misstatement, we do not believe the misstatement had such a prejudicial effect as to require a new trial. See State v. Lawson, N.C. App. , , 669 S.E.2d 768, 773 (2008) (noting that “fair consideration” must be given to the context of the remarks). This assignment of error is overruled.

No error.

Chief Judge MARTIN and Judge BRYANT concur.

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