State v. Gettys

724 S.E.2d 579, 219 N.C. App. 93, 2012 WL 540738, 2012 N.C. App. LEXIS 280
CourtCourt of Appeals of North Carolina
DecidedFebruary 21, 2012
DocketNo. COA11-810
StatusPublished
Cited by12 cases

This text of 724 S.E.2d 579 (State v. Gettys) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gettys, 724 S.E.2d 579, 219 N.C. App. 93, 2012 WL 540738, 2012 N.C. App. LEXIS 280 (N.C. Ct. App. 2012).

Opinion

STEELMAN, Judge.

Defendant failed to establish that it was plain error to admit his girlfriend’s statement that she was scared he would beat her. The trial court did not err in submitting the charge of felony first-degree murder to the jury because there was sufficient evidence of the underlying robbery. Defendant was not prejudiced by the trial court’s refusal to instruct on the lesser included offense of voluntary manslaughter because the trial court submitted the charge of second-degree murder to the jury. Defendant failed to establish that it was plain error to give the pattern jury instructions Allen charge after the trial court inquired into the numerical split of the jury.

I. Background

Late on the evening of 29 December 2006, James Timothy Gettys (“defendant”) returned home. He gave Donna Baker, his girlfriend, some cash, suggesting it was from the paycheck he received and cashed that day. He then told Baker, “I think I killed somebody.” He also related that he had hit a man with a rock several times. Defendant contacted the Morganton police and arranged a meeting. Just before midnight, defendant met with Officer James Coward at a gas station. Defendant informed Officer Coward that he thought he might have killed someone during a narcotics dispute. He told Officer Coward where the altercation occurred, and they traveled to that location.

The Morganton police found the body of Steven Drew Snoddy face down in a ditch. A wrecked pickup truck was also at the scene. A chain was attached to Snoddy’s trousers that had been connected to his wallet, but his wallet was not there when the police discovered his body. Snoddy’s trousers were slightly pulled down.

[95]*95On 1 February 2007, defendant was indicted for murder. Defendant’s trial began on 29 November 2010. The State proceeded under two theories of first-degree murder: (1) premeditation and deliberation and (2) felony murder based upon a robbery. At the close of evidence, the trial court submitted four options to the jury: premeditated and deliberate first-degree murder, first-degree felony murder, second-degree murder, and not guilty. The trial court refused to instruct the jury on voluntary manslaughter as a lesser included offense of first-degree murder.

The evidence presented at trial tended to show that defendant and Snoddy were involved in a physical altercation on the side of the road. Defendant testified at trial that, in the course of the fight, he struck Snoddy three or four times in the head with a rock. He claimed that he had no plans to harm Snoddy before they got into the altercation. He also denied taking Snoddy’s wallet. The jury found defendant guilty of first-degree murder under the felony murder rule but not guilty of premeditated and deliberate first-degree murder. Defendant was sentenced to life imprisonment without the possibility of parole.

Defendant appeals.

II. Baker’s Testimony

In his first argument, defendant contends that the trial court erred in overruling his objection to Baker’s testimony that she did not press defendant for information on what happened that night because she did not want “to get him pissed off and beat [her] ass.” We disagree.

A. Standard of Review

Defense counsel objected after Baker testified that she was afraid defendant would beat her, but counsel did not move to strike the testimony. Defense counsel did not provide a specific basis for the objection. Once a witness responds to a question, any objection to that response is waived absent a motion to strike. See State v. Burgin, 313 N.C. 404, 409, 329 S.E.2d 653, 657 (1985). (“The one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.”). Furthermore, an appellant may not argue error on appeal if his “underlying objection fails to present the nature of the alleged error to the trial court.” State v. Catoe, 78 N.C. App. 167, 168, 336 S.E.2d 691, 692 (1985). Because this issue was not preserved, we only review for plain error. State v. Wilson, 203 N.C. App. 547, 551, 691 S.E.2d 734, 738 (2010).

[96]*96Under the plain error standard of review, defendant has the burden of showing: (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.

Id. (citations omitted) (internal quotation marks omitted).

B. Analysis

After the altercation between defendant and Snoddy, defendant went to Baker’s residence. He was living with her at the time. He gave Baker $298 in cash. Defendant had received his paycheck that day, and it appears that it was the couple’s expectation that defendant give some or all of his paycheck to Baker. Baker was disturbed by defendant’s demeanor and conduct. She testified that defendant’s shirt was dirty “and he was pale as a ghost.” Baker testified, “[I]t was a little odd because he had worked overtime . . . [the] Saturday before so it should have showed up on the check . . . .” She then explained, “I wasn’t going to push the issue about the money or anything because I didn’t want him to get pissed off and beat my ass . . . .” Later in the trial, Detective Calvin Daniels recounted his interview of Baker. He testified, “She stated that she didn’t want to push the issue because she didn’t want him to get pissed off and fight with her.” Our review of the transcript indicates Detective Daniel’s description of Baker’s statement differed from the language employed by Baker at trial because the prosecutor asked the detective not to use Baker’s “literal language.” Defendant did not object to this testimony or move to strike it.

Defendant contends that Baker’s statement at trial was irrelevant, that the danger of unfair prejudice substantially outweighed the statement’s probative value, and that the statement was inadmissible character evidence. See generally N.C. Gen. Stat. § 8C-1, Rules 401 to 404 (2011). Assuming arguendo that the admission of this evidence was in error, we conclude that the alleged error does meet the high burden for plain error. There was other evidence suggesting Baker believed defendant would assault her if she questioned him concerning the Detective Daniel’s testimony, which defendant does not challenge on appeal. Therefore, there was evidence that is unchallenged on appeal that is substantially similar to Baker’s statement. Moreover, in light of the other evidence presented at trial, including defendant’s admission that he struck Snoddy several times in the head with a rock, it is not probable that the jury would have [97]*97arrived at a different outcome in this case but for the admission of Baker’s statement. See Wilson, 203 N.C. App. at 551, 691 S.E.2d at 738 (stating standard for plain error); see also State v. Towe, _ N.C. App. _, _, 707 S.E.2d 770, 774 (“We must determine whether, absent the alleged error, the ‘jury probably would have returned a different verdict.’ ” (quoting State v. Davis, 321 N.C.

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Bluebook (online)
724 S.E.2d 579, 219 N.C. App. 93, 2012 WL 540738, 2012 N.C. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gettys-ncctapp-2012.