State v. Jones, 280 N.C. App. 241, 2021-NCCOA-592 (Nov. 2, 2021)

In this Wake County case, the defendant was charged with two counts each of attempted first-degree murder and several related assault and conspiracy charges stemming from an altercation between two groups of people. At trial, a man named Ronald Cameron, who had shared a cell block with the defendant during his pretrial confinement, and who wrote a letter to the district attorney detailing conversations he had with the defendant about his charges, testified for the State. After Cameron initially gave limited testimony and said he did not remember anything else, the trial court allowed the State to use his letter to refresh his recollection. Cameron then gave additional testimony, eventually without reference to the letter, including some details of his conversations with the defendant that were not included in the letter. The trial court found that the letter was properly used to refresh the witness’s recollection, and also admitted the letter itself as a prior consistent statement that could be used to corroborate his testimony. When instructing the jury, the trial judge explained to the parties that he intended to give the instructions, including the defendant’s requested alibi instruction, only once even though there were two counts of each charge (one for each victim)—a plan to which the defendant did not object. The jury found the defendant guilty of all charges. One page of the attempted first-degree murder judgment listed the crime as a Class B1 felony.

(1) On appeal, the defendant argued that the trial court erred by allowing Cameron to reference his letter to the district attorney during his testimony, claiming that the letter was used as a “testimonial crutch” rather than merely as a means to presently refresh his recollection. The Court of Appeals disagreed, concluding that this was not a case where Cameron’s testimony was “clearly a mere recitation of the refreshing memorandum.” Slip op. ¶ 21 (citing State v. Black, 197 N.C. App. 731 (2009)). To the contrary, Cameron testified to part of his jail conversation with the defendant before looking at the letter to refresh his recollection and included some details in his testimony that were not contained in the letter at all, such as the specific location where the gun used to commit the crimes could be found. Because it was not clear that Cameron was merely reciting the letter at trial or using it as a testimonial crutch, the Court of Appeals concluded that the trial court did not abuse its discretion by allowing the refreshed testimony.

(2) The defendant also argued that the trial court erred by admitting the letter into evidence as a prior consistent statement. The Court of Appeals disagreed, concluding that the letter qualified as a prior consistent statement in that it corroborated Cameron’s testimony both as to how he came to have the information about the defendant’s crime as well as the information about the crime itself. The Court noted that one inconsistency between the letter and Cameron’s trial testimony did not undermine its status as a prior consistent statement because it did not directly contradict that testimony.

(3) The defendant argued that the trial court plainly erred when instructing on attempted first-degree murder when it fashioned its own instruction combining the pattern instructions on general attempt (N.C.P.I. – Criminal 201.10) and first-degree murder (206.10) rather than using the specific pattern instruction for attempted first-degree murder (206.17A). The Court acknowledge minor differences between 206.17A and the trial court’s combined instruction—most notably in the definition of malice based on intentional infliction of a “wound” instead of “serious bodily harm.” However, the Court of Appeals ultimately concluded that the difference did not amount to plain error because the defendant was unable to show prejudice resulting from it. Regardless of the instruction used in the attempted murder charge, the jury found the element of intent to kill when it found the defendant guilty of ADWIKISI based on the same action (shooting at the victims). Moreover, the crux of the defendant’s defense was an alibi—the defendant did not argue that he lacked malice, but rather that he was not involved at all. As a result, any alleged error in the instruction would not have had a probable impact on the jury’s finding of guilt, and was thus not plain error.

(4) Finally, the Court of Appeals agreed that the attempted first-degree murder judgment included a clerical error when it referenced the crime in one place as a class B1 felony. It is a class B2 felony under G.S. 14-2.5, and the Court remanded the matter to the trial court for correction of that error.