State v. Richardson

741 S.E.2d 434, 226 N.C. App. 292, 2013 WL 1296730, 2013 N.C. App. LEXIS 333
CourtCourt of Appeals of North Carolina
DecidedApril 2, 2013
DocketNo. COA11-1581-2
StatusPublished
Cited by16 cases

This text of 741 S.E.2d 434 (State v. Richardson) 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. Richardson, 741 S.E.2d 434, 226 N.C. App. 292, 2013 WL 1296730, 2013 N.C. App. LEXIS 333 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendant Roderick Tynell Richardson appeals from judgments entered based upon his convictions for two counts of assault with a deadly weapon with intent to kill inflicting serious injury and one count of possession of a firearm by a convicted felon. On appeal, Defendant argues, among other things, that the trial court committed plain error by allowing the prosecutor to question him and to make comments to the jury concerning his decision to refrain from making a statement to investigating officers. After careful consideration of Defendant’s challenge to the trial court’s judgments in light of the remand instructions that we have received from the Supreme Court, the record, and the applicable law, we conclude that Defendant is entitled to a new trial.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

On the early morning of 20 May 2009, Sherman Cunningham was employed as a bouncer by the Carousel Club, an establishment located on South Boulevard in Charlotte. Mr. Cunningham’s duties included checking patrons for guns, drugs, and other undesirable items. Defendant; his friend, Richard Snowden; Marcus Kinard; and Carousel Club employees Biyan Herron, Darwin Springs, and Lakeshia Reed were also present at the Carousel Club.

Although Mr. Kinard and Ms. Reed had once been involved in a romantic relationship, Defendant and Ms. Reed had begun dating after the Kinard-Reed relationship ended. During the evening, Ms. Reed became angry because Defendant was speaking with a dancer known as “Egypt.” According to Mr. Cunningham, Ms. Reed had become intoxicated and was flirting with both Defendant and Mr. Kinard.

As the club was closing, Mr. Cunningham saw Defendant enter the passenger side of a car operated by Mr. Snowden which drove away [294]*294from the dub. Upon returning, Defendant approached Mr. Cunningham to ask about giving “Egypt” a ride home. At about the same time, Mr. Kinard was leaving with Ms. Reed, who kept getting out of Mr. Kinard’s car and attempting to start a fight with “Egypt.” After Defendant told Ms. Reed to come with him instead, Defendant and Mr. Kinard began arguing.

As Defendant approached Mr. Kinard, Mr. Cunningham saw the butt of a gun protruding from Defendant’s pants. After noticing the gun, Mr. Cunningham “told [Defendant] that he needed to go back to the car with that” and informed both men that “this was a stupid argument.” As the dispute “escalated,” “[Mr. Kinard] stepped closer” and “hit [Defendant]” with his hand. After Mr. Kinard hit him, Defendant “pulled out his gun and started shooting,” at which point Mr. Cunningham “jumped behind a car,” where he remained during “the time that everybody was shooting.” In addition, Mr. Snowden “went to his pocket like he had a gun.” As “[Mr. Kinard] was running away[, Defendant] was still shooting at him” despite the fact that Mr. Kinard was unarmed. Defendant left the Carousel Club with Mr. Snowden after the shooting.

Mr. Springs, the head of security for the Carousel Club, testified that, on the evening of 20 May 2009, he was carrying a nine millimeter Glock handgun. After the Carousel Club closed, Mr. Springs went to the parking lot, where he saw a small crowd that included Defendant, Mr. Cunningham, and Mr. Herron. As Mr. Springs approached Defendant, who had been walking towards his car, Defendant “reversed direction and came towards [Mr. Kinard]” even though Mr. Springs was between the two men. Although Mr. Springs tried to stop the men from arguing, Mr. Kinard “was able to reach over the group” and “smack the Defendant.” At that point, Mr. Springs “saw the gun being pulled from the waist area of the Defendant,” who “began firing” and hit Mr. Kinard. In response, Mr. Springs fired a shot at Defendant, who turned and shot at Mr. Springs. After firing that shot, Mr. Springs’ gun jammed, causing him to attempt to hide behind his car. As Mr. Springs ducked behind his vehicle, he was hit in the arm and, about “two seconds” later, in his leg. Although Mr. Springs did not see who shot him, he had seen Defendant and Mr. Herron, but not Mr. Kinard, in the possession of firearms.

Mr. Kinard testified that he went to the Carousel Club on 20 May 2009 to give some CDs to the substitute disk jockey, Mr. Herron. Mr. Kinard, who denied having had a firearm in his possession that evening, had several drinks during his time at the Carousel Club. Mr. Kinard had “messed around off and on for years” with Ms. Reed. Although he had heard that Defendant and Ms. Reed had “messed around,” Mr. Kinard “didn’t have any problems with that.”

[295]*295After the Carousel Club closed, Mr. Kinard went to the parking lot, where Ms. Reed told him that she would see him later. At that point, Defendant advised Ms. Reed to refrain from speaking with Mr. Kinard. After the two men began arguing, Defendant “flashed a gun” and said, “I’ve got you.” In response, Mr. Kinard removed his jacket and approached Defendant. Although Mr. Cunningham positioned himself between the two men and urged them not to fight, Mr. Kinard stepped “to the side” and “slapped [Defendant]” on the face. At that point, Defendant shot Mr. Kinard “right above [his] ankle” and “above [his] knee.” As Mr. Kinard tried to “get behind the car,” Defendant “hit [him] four more times.”

Mr. Herron testified that, after the Carousel Club closed on 20 May 2009, he retrieved a gun from his truck and started smoking a cigarette in the parking lot. As he stood there, Mr. Herron observed that Defendant and Mr. Kinard had begun arguing about Ms. Reed. As the argument continued, the two men “got closer to each other and the next thing you know [Mr. Kinard] slapped [Defendant].” After Defendant “flashed a gun,” Mr. Kinard, who was unarmed, removed his coat and placed it on a car. At that point, when “[Mr. Springs] was about in the middle of [Defendant and Mr. Kinard,]” “[Defendant] pulled out a gun and pointed it at [Mr. Kinard,]” “started shooting from there,” and continued to fire at Mr. Kinard even after Mr. Kinard had fallen. When Mr. Herron “saw that [Defendant] wasn’t going to stop shooting, [he] pulled [his] gun up and started shooting at [Defendant.]”

At approximately 2:30 a.m. on 20 May 2009, Joseph Wiflinsky, a Charlotte-Mecklenburg Police Department crime scene investigator, went to the Carousel Club parking lot. At that location, Officer Wiflinsky collected a Smith and Wesson handgun, a dock handgun containing several rounds of ammunition and one jammed bullet, and various other items, including bullets and spent shells. More specifically, Officer Wiflinsky collected several projectiles that had become embedded in a green Ford pick-up truck and a number of nine millimeter and .45 caliber shell casings. According to Todd Nordhoff, a firearms examiner with the Charlotte-Mecklenburg Police Department, the weapons recovered from the parking lot were both 9 millimeter firearms, while the bullets that were removed from Mr. Kinard’s leg had been fired from a .45 caliber handgun.

2. Defendant’s Evidence

Mr. Snowden, who had been convicted of conspiracy to commit murder in Connecticut in 1999, testified that he and Defendant had been friends for several years and regularly patronized the Carousel Club. At [296]*296around 11:30 p.m. on 20 May 2009, Mr. Snowden and Defendant trav-elled to the Carousel Club in Mr. Snowden’s car, where Mr. Snowden had “quite a few drinks” and talked to girls he knew. When the club closed at around 2:00 a.m., Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
741 S.E.2d 434, 226 N.C. App. 292, 2013 WL 1296730, 2013 N.C. App. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richardson-ncctapp-2013.