*1 IN THE COURT OF STATE WILLIAMS App. (2006)] [175 “[although court found that ing in its eventual demolition. Premises, building for the on the the Lease allowed destruction of contemplated proceed con- only if Defendants were to with this was facility operate a does not con- Pizza Hut.” Defendant struction of simply finding respect, argues in this but that its test the trial court’s of lease rather of its loans caused the breach lenders’ acceleration any However, complete dom- defendant Bland. Bland’s than action Tycorp companies’ business ination and exclusive control ultimately in the acceleration of thesе loans. This decisions resulted argument is overruled. this was an arm’s
Finally,
argues the lease in
corporations
two
and their
length
negotiated
transaction
between
attorneys,
equity
require piercing
respective
therefore
does
“
theory
liability
instrumentality
under the
rule
corporate veil.
[T]he
place
equitable
purpose
Its
is to
the burden
the loss
an
doctrine.
upon
upon
responsible.
reality, not
party
who should be
Focus is
upon
upon
operation
corporation,
form,
defend-
operation.”
Id. at
Affirmed.
Judges McGEE and ELMOREconcur. WILLIAMS
STATE OF NORTH CAROLINA v. GARY ANTHONY COA04-1734 No. 2006) (Filed 7 February length time of of discre- 1. Criminal Law— recess —abuse tion standard by refusing not abuse its discretion
The trial court did
than five minutes to decide
allow defendant
recess more
first-degree murder,
whether to
evidence in his trial
IN THE COURT OF APPEALS
*2
(1)
position
because:
the
court
in a
trial
much better
to make
a
grant
length
decision to
recess and the
of that recess instead
appellate
of an
reviewing
transcript
court
a written
since
trial
parties
court
able to
counsel,
observe the
and their
and observe
interactions;
their
(2)
constituting prejudice
none of the factors
cited in State v.
(1980),
3. Weapons— discharging Firearms and Other firearm into
occupied property knowledge—sufficiency of evidence — did not err denying defendant’s motion occupied to dismiss the a firearm into property even though defendant contends there was insufficient evidence that he knew or property should have known the occuрied at he discharged weapon, (1) the time because: rea- grounds might sonable to believe that building occupied be can be found where a shot during defendant has into a residence evening hours as homeowners are during most often at home hours; these and (2) defendant fired shots at the victim who was standing lighted porch apartment building on a front of an near a shortly baby carriage a.m., after 3:00 and a witness testified that spoke apart- she with car rather than inside the family asleep ment since her in there and it was late. IN THE COURT OF v. WILLIAMS
STATE first-degree to instruct on murder —failure 4. Homicide— voluntary manslaughter imper- lesser-included offense — — fect self-defense case when first-degree murder did not err
The trial court offense of the lesser-included to instruct the it refused voluntary manslaughter theory imperfect self- on the based prejudicial error defense, a trial court does commit because when a voluntary manslaughter instruction give failing in rejects second-degree and instead guilty of murder a verdict of first-degree murder. finds defendant argue preservation Appeal of issues —failure and Error— *3 argue in his failed to assignments of error that defendant The App. 28(b)(6). P. under N.C. R. deemed abandoned brief are part. concurring part dissenting and Judge Hunter by judgments entered 30 June 2004 Appeal defendant from County Wayne Superior Court. Heard B. Fullwood in Judge Ernest Appeals August Court the Special Deputy Roy Cooper, III, by
Attorney A. General Crawley, W. the State. Attorney General Francis for Ozer, Ozer, by Marilyn G. Massengale & for defendant- appellant. STEELMAN,Judge. appeals his Gary Anthony Williams, convictions
Defendant, weapon occupied prop- discharging a first-degree murder and prejudicial herein, we no error. erty. For discussed find the reasons tending at trial show The State early victim, (Davis), during the and Juhan Dаvis shot killed February had been 2003. Defendant and Davis morning hours of 23 earlier when Davis discov- altercation several hours involved an Joyce sitting and girlfriend, (Banks), and defendant ered his Banks together. argued men and defendant talking parked in a car two argue on the his vehicle. Davis and Banks continued to drove off in time, apartment building. At the Banks’ porch of her lighted front apartment. asleep inside the minor son and four other children were apartment, brother, also lived at the came outside Banks’ who porch, were on the to leave. While the three ordered Davis IN THE COURT OF vehicle, pistol, immеdiately
walked to his retrieved a fir- began ing pistol empty. at Davis until his He then returned to ve- away. subsequently multiple hicle and drove Davis gunshot died of wounds. Police evidence technicians spent collected nine shell cas- ings, bullets, fragments street, and bullet from yard, porch, front apartment. and inside One bullets fired apartment an window, entered living room, ricocheted across the lodged in apartment fragments wall. Bullet were also found in baby carriage porch. located near front
Defendant’s trial began morning of 28 June 2004. The shortly rested its case after four o’clock on the afternoon 29 June 2004 immediately and the trial court excused the from p.m. the courtroom at 4:08 Defendant charges moved dismiss the argument. immediately The trial court denied this motion. attorney requested Defendant’s then that court be recessed for the day so he could consult with concerning he whether would evidence. Defense counsel advised the court: “We family this, have talked about has talked about this but couldn’t make everything.” decision until we judge heard The trial told counsel give he would him five minutes. requested Defense counsel fifteen minutes, but request. court denied took re- p.m., cess until 4:20 after which defense counsel informed the court present any defendant was not going to evidence. The court then conducted the conference and recessed until *4 following morning. When morning, court resumed the next defendant did not move the court to be to allowed evidence. At no time did specific defendant advise the trial of a court reason why he needed a certain amount of time to decide whether or not to present evidence. jury first-degree found defendant of murder and dis- weapon occupied a
charging property. The trial court sentencеd imprisonment parole, twenty-nine to life without and to to forty-four imprisonment weapon months a into occu- pied property. appeals. Defendant
[1] In his first argument, contends the trial court erred in refusing to allow him more than five minutes decide whether to in first-degree his trial for murder. disagree.
A making trial court afforded wide latitude decisions which procedural arising during affect various matters the course of a including recess, grant length whether to as as well of that OF APPEALS IN THE COURT WILLIAMS
STATE v.
the trial court’s sound
are vested within
recess, and such decisions
726, 729-30,
Goode, discretion. State
appeal that the еxer-
seeks to establish on
“Whena defendant
error,
prej-
he must show harmful
is reversible
cise of such discretion
729,
In our at the automatically entitled to a recess close No defendant is is addressed to the evidence because such motion the State’s so, where, here, Even as sound discretiоn of the court. unnamed motions presence denies immediately they made, and denies defense coun- are then before request for to decide whether defendant sel’s a short recess prejudicial to evidence, a clear abuse of discretion would offer requires This new trial. cause is established. by the None the factors cited N.C. at prejudice present here. constituting Supreme Court Goode request case, judge, its When the State rested Defendant then made counsel, from the courtroom. excused Finally, dismiss, which denied. the court did his motion to request, albeit deny fоr a short recess. It counsel’s requested. assuming period of than Even for a shorter time *5 refusing arguendo that the trial abused his discretion recess, than five minutes defend- grant defendant fifteen rather prejudiced. Haywood, 144N.C. show he was ant has failed to effect, In defendant and App. 223, 233, both granting shorter would have this Court hold the dissent IN THE COURT OF APPEALS recess in this case than requested per prejudicial se to defendant. Such a holding contrary to the law of this state. id; Goode, See 300 N.C.at argument S.E.2d at 84. This is with- out merit.
[2] In his second argument, defendant contends the trial court erred in allowing Banks to regarding police-taped telephone con versation with defendant following shooting. Defendant contends testimony Banks’ regarding the conversation was inaccurate and highly prejudicial. disagree. We testified, part,
Banks telephone to the conversation with defendant as follows: And him, said, so then I asked I ‘[w]hy “[Banks]: you did said, shoot He T didn’t gun. know if he had a I [Davis]?’ did- ” n’t know if he gun.’ had a transcript taped of the conversation between Banks reads, and defendant part, as follows: Hey
Banks: man, why why you look you, come back and do that,
that to like man? [Davis] Huh?
[Defendant]: Why you Banks: come back and do that to like [Davis]
that? Uum.
[Defendant]: Hey man,
Banks: up. that was f-— Hum?
[Defendant]:
Banks: That up you was f-— did, what mаn. saying I’m I thought [going shoot me.
[Defendant]: [he] to] Banks: He didn’t have gun though. no on him I didn’t know that. [Defendant]: question
Defendant him, “[w]hy you contends Banks’ come back and do that to transcript taped like that?” in the con- [Davis] substantially testimony versation differs from her which was ” him, so then I said, ‘[w]hy you asked I did shoot “[a]nd [Davis]?’ argues inaccuracy Defendant this rendered Banks’ inad- hearsay. missible disagree. telephone
Banks’ recollection of her conversation with defend- ant was admissible under Rule 801 of the North Carolina Rules Evidence as an party-opponent. admission N.C. Gen. Stat. *6 THE COURT OF APPEALS IN
646 App. (2006)] N.C. 640
[175 285, White, 264, 457 v. 340 N.C. 8C-1, 801(d) (2005); Rule State § tape to of 841, alsо listened the audio (1995). 853 S.E.2d Any or defendant and Banks. inaccuracies the conversation between testimony go to tape and Banks’ discrepancies between the audio credibility given be to the evidence. weight issues jury.” v. solely province “These are matters within the Moreover, 617, (1988). while Jordan, 714, 717, 365 S.E.2d 619 321 N.C. language testimony not verbatim identical Banks’ was import Banks’ was consistent taped conversation, the argument without merit. transcript tape. of the audio This is with the [3] Defendant next argues erred denying his motion occupied property. firearm into discharging to dismiss the knew presented evidence that he He contends the State insufficient occupied dis property the time he should have at or known weapon. disagree. charged consider requires to dismiss court to
Defendant’s motion State, giving to the light favorable all the evidence most from the every inference be drawn State the benefit of reasonable 223-24, 443, 447 Stewart, 219, 292 232 N.C. evidence. State is evidence— question is whether there substantial (1977). “[T]he support a the offense direct, circumstantial, finding or both—to that accused it.” Id. charged has been committed and that the committed 224, 232 S.E.2d at occupied property into рerson A a firearm discharges a “intentionally, legal justification excuse, or if he occupied the build- building knowledge firearm into an with the occupied by when reasonable persons one or more or he has ing might occupied be one or grounds building to believe that James, 589, 596, 710, 715 persons.” 342 N.C. 466 S.E.2d more State v. grounds N.C. 14-34.1 “Reasonable (1996); § Gen. Stat. certainly occupied can be found building might that a be believe hours, during evening into where a defendant has shot a residence during hours.” State v. as homeowners are most often at home these 505, 512, 418, also Fletcher, App. (1997); see 481 S.E.2d (uphold- Hicks, App. (1983) Statе v. charge of dis- ing the denial a defendant’s motion to dismiss the occupied people are weapon property noting charging usually a.m., occurred). 5:00 when the offense home at shortly
Here, tending to show that the State February multiple fired shots at a.m. 2003 defendant after 3:00 on 23 THE OF APPEALS COURT v. WILLIAMS
STATE apartment of an standing lighted porch who front Davis, one of baby Investigating officers traced building carriage. near a apartment win- through a hole in the the bullets fired *7 living window room. The bullet crossed dow and into the frame Bullet lodged opening. in the wall beside a door living the room and baby porch. the At carriage found the near fragments were also in apartment. Be- shooting, occupied of five the the time the children spoke parked Banks in the sat and with shooting, fore spoke car, than Banks she with defendant in the rather car. testified “family my asleep, in there apartment her because her was inside asleep, in was late.” From the nephews nieces and there and it jury presented, the find that defendant we conclude could apartment occupied the the grounds had reasonable believe discharged weapon. argument he This merit. time [4] In his fourth and final argument, defendant contends the trial jury when it refused to instruct the court committed reversible error voluntary manslaughter of based on on the lesser included offense theory imperfect disagree. of self-defense. prejudicial in failing give not error trial court does commit “[A] voluntary jury rejects a of manslaughter when a verdict instruction guilty of second-degree of murder and instead finds guilty 646, 663, 770, first-degree Lyons, 340 459 S.E.2d murder.” State N.C. applies of asserts regardless rule whether defendant (1995). 779 This voluntary manslaughter based on he is entitled to an instruction on 663-64, passion imperfect Id. at of of or self-defense. theories heat 779; Price, State v. by “finding rule is that The rationale behind the pre- beyond murder based on first-degree a reasonable doubt of guilty murder, rejecting second-degree deliberation and meditation and possibilities doubt, the necessarily rejected, beyond a reasonable jury imperfect passion self- acted in heat of or that the defendant ...”. (voluntary manslaughter) defense jury possible with case,
In the instant murder, and murder, second-degree guilty. first-degree verdicts first-degree murder When the returned verdict any deliberation, premeditation harmless this rendered based any, court, failing if to submit the crime of the trial there error voluntary jury. argument id. This manslaughter Accord without merit. IN THE OF COURT
STATE v. WILLIAMS [5] remaining assignments of errors asserted the record on appeal, argued brief, but not are deemed abandoned. App. 28(b)(6). N.C. R. P. conclusion,
In (1) we hold: trial court not abuse did its dis- refusing cretion in to allow defendant fifteen rather than five minutes attorney to confer with his and decide whether to evidence in his trial first-degree murder; (2) did not err in testimony by admitting regarding telephone Banks her conversation (3) properly with defendant; the trial court denied defendant’s motion occupied property; dismiss the firearm into (4) the trial court did not commit reversible error in failing to voluntary instruct the on the manslaughter. lesser offense NO PREJUDICIALERROR.
Judge TYSONconcurs. Judge part part by sepa- HUNTER concurs in and dissents opinion. rate Judge, part
HUNTER, concurring dissenting part. and portions majority’s I concur with the opinion addressing telephone Banks, conversation between defendant and the denial dismiss, requested defendant’s motion to instructions. however, I disagree, properly the trial denied defendant’s request for a recess of fifteen minutes in which to decide whether or not to degree evidence his trial first murder. I would hold defendant is entitled to a trial. new began
Defendant’s on 28 June 2004. The rested State its case shortly after four o’clock in the afternoon of 29 June 2004. The trial jurors court then courtroom, point sent the from the at which defend- attorney requested “adjourn day ant’s give the trial court for the or at least any
us some time make a decision to offer all. We this, family have talked talked about has about this but couldn’t make just everything. decision until we heard everything.” heard adjournment trial court denied defendant’s for an and informed had him he “five minutes.” Defense then asked, counsel you give responded, No, me minutes?” The trial court “[c]an “[n]o. sir. got pоint.” You’ve five minutes. we’d Youknew be at this Defense truly stated, “Judge, counsel I did but we didn’t know what all the evi- IN THE COURT OF
STATE WILLIAMS counsel had The trial court reiterated defense dence would be.” with subsequently conferred defend- “five Defense counsel minutes.” family, offer evi- ant and after which defendant decided his first murder and dis- found defendant dence. occupied property, whereupon into the trial court charging weapon parole, imprisonment without and to defendant to life sentenced twenty-nine forty-four imprisonment for his months’ weapon occupied property conviction. a criminal are relating matters to the conduct of
Procedural long as the largely left to the sound discretion of “scrupulously afforded him.” State v. rights 726, 729, Such discretion is not subject by the unlimited, however, and, abused, when to reversal appellate Id. courts. alike, generally and Bar that the deci- recognized,
“It
Bench
in a criminal case will
evidence or
sion whether a defendant
importance.”
paramount
will
in his own
is a
behalf
matter
added).
matters
(emphasis
should be discussed be until the close of the State’s evidence.” intelligently cannot made Appropriate at the close of the State’s evidence are recesses and, deeply practice course of our courts ingrained in the long as a so requested, when have been matter course contrary.” memory man runneth not to the The recess that “the position. If to evaluate their defendant and enables strong against has made a the evidence offered may defendant, he to “throw towel” tender decide *9 rely weak, may rest on plea. he decide to and If the State’s case strong If has a acquittal. for of defendant that weakness a verdict may witnesses, decide to offer his he well defensе and credible of the case. regardless strength of the State’s Id. and breaking with felonious charged
The in Goodewas larceny having a of of wine value entering a and felonious restaurant trial, at defendant’s coun- $108.00. of the State’s evidence At the close “ ” ‘motions,’ which trial he to the trial court had sel informed “ ‘[t]hey Will be evidence for responded, are denied. there court ” counsel then re- at S.E.2d at 83. Defense defense?’ “ ” question of confer with his client on quested a ‘short recess’ to THE COURT OF APPEALS present whether to evidence. trial The court denied defense counsel’s request. ultimatеly against own testified on his behalf aby the advice of his counsel. He convicted both counts years eight given consecutive sentences to ten on each count. Supreme Upon review, our noted Court that defendant is “[n]o automatically entitled to recess the close of the State’s evidence because such to motion addressed the sound discretion of the trial Id. at 84. However, continued, court.” “where, S.E.2d at the Court here, presence as trial denies denies they made, immediately unnamed motions before and then short to defense counsel’s for a recess decide whether prejudi- evidence, defendant would offer clear abuse of discretion cial to defendant’s cause is established.” Id. present case,
In the was on trial first mur- potential imprisonment der and faced a sentence life parole. present Defendant’s decision whether to evidence, com- parison potential larceny to the for breaking, entering, sentence by Goode, faced greater therefore of far conse- quence. Although true, it is the trial court indicated when it “[y]ou point[,]” right stated knew we’d be at this that defendant’s to trial, evidence was established at the beginning “the actual intelligently decision cannot be made [to evidence] until close (emphasis added). the State’s evidence." Id. reality may this fact be seen defense counsel’s to the statement family that have this, court talked about has talked about “[w]e just this couldn’t until but make decision we heard everything. everything.” heard provided twenty thirty
The State
here
notice
defendant of
potential
potential
At
witnesses.
twelve
witnesses testi-
fied. Defendant needed time to evaluate these witnesses and their tes-
timony
position
in order to understand his
at the close of the State’s
evidence. See
(stating
Five minutes Notwithstanding majority’s oth- intelligent assertion decision. motion a recess erwise, denying I not hold that defendant’s would per refusal prejudice se, but rather that the court’s constituted whether to allow more than five minutes to determine here degree рrejudicial in his trial for first murder was evidence (con- law State. id. of this case and the of this See under facts prejudicial of dis- cluding that the defendant had established abuse where for a the trial court denied defense counsel’s cretion would evi- short recess to decide whether the defendant subpoenaed three on his dence). Defendant witnesses any, potential impact behalf, time, but he little if to consider the had presented by State. light that the evidence Ultimately, presented evidence, impossible and it is no evidence, any, if have had ascertain what defendant would given to make decision. See id. at he been more time which abuse at the defendant established clear (holding 268 S.E.2d that discretion, prejudicial). and that such abuse also majority Haywood, State v. cites case of dismissed, appeal 38, disc. review denied and In support argument. of its (2001), after the defend Haywood, the close the State’s evidence p.m., denied, approximately 4:15 had ant’s motion to dismiss been morn requested that court recess until for the defendant whether with his client ing so he could discuss in his defense. The trial court denied take the stand own should request a recess. The defend did not shorter motion. Defense counsel ultimately subsequently presented and was convicted ant conspiracy offense, and to com degree rape, first sexual first him to concurrent sen degree rape. The trial court sentenced mit first rape 240 to charge, first degree of 240 297 months on the tences charge, to 151 to degree sexual offense months on the first conspiracy charge. 191 months on the error, prejudicial stating no
Upon appeal, this Court found denying “[ajssuming arguendo trial court erred attorney, has to confer with his motion for recess *11 652 IN THE COURT OF APPEALS App. (2006)] N.C. 640
[175 prejudiced by that shown hе was his decision to take the stand and present 233, a witness in his behalf.” Id. at S.E.2d was 550 at 45. This only testimony through because was defendant’s that was he “[i]t present necessity able to on the evidence defense of and evidence conspiracy.” negating Further, Id. the trial court had not permitted prior the State cross-examine regarding the defendant communicating convictions for threats assault on a female because these convictions had not been furnished to the discovery. that, Id. The also noted of a Court instead short recess requested Goode, Haywood an defendant аsked for such, say overnight noted, recess. As Court are unable to “[w]e that the trial court here would not have a recess of shorter clearly if duration defendant had asked for one.” Haywood distinguishable from the facts of the case. Haywood, request Unlike defendant here renewed his for a short request Moreover, recess after his for an overnight recess was denied. Haywood question the Court in never answered the whether recess; failing grant ráther, that, trial court erred in it held assuming error, prej- there was the defendant had failed to establish presented udice because the Here, he evidence critical to his case. Finally, no evidence. unlike the defendant Haywood, here faced and received a sentence life imprisonment parole.
In evaluating
of the
in light
the facts
case
of our
law
case
precedent,
closely
the instant case more
resembles Goode than
Haywood.
in Goode,
Like the case
there
no sound
reason for the
request
denial
defendant’s
for a reasonable amount of time to con
fer with counsel to
an intelligent
make
and considered
decision
“paramount importance.”
730,
Sеe
300 N.C.
IN THE COURT RE OF COLE FORECLOSURE pre- will in a a defendant criminal dеcision whether [T]he para- own is a matter or will in his behalf sent be discussed importance. matters can and should Such mount cannot intelli- prior the actual decision but generally made until close of the State’s evidence. be gently deeply of the State’s evidence recesses the close [S]uch *12 and, practice and our courts when ingrained course long matter so have as a of course requested, been memory contrary.” of man not to “the runneth was entitled to a N.C. at at 84. Defendant Goode, 300 in his trial amount of time to make such critical decision reasonable requested fifteen The trial court murder. He minutes. first a new trial. See id. gave five. I would hold defendant entitled to him respectfully I dissent. therefore THE OF A DEED OF TRUST EXECUTED MATTER OF FORECLOSURE THE COLE, and COLE AND ELSIE CELESTINE husband BY HERCULES wife, HUTCHENS, PA, HERCULES COLE and H. TERRY Substitute Trustee, COLE, COMPANY, v. BRANCH BANKING AND TRUST CELESTINE Plaintiffs agent NEVILLE, Individually BANKING AND M. of BRANCH THOMAS agent Individually COMPANY, DAVIS, BRANCH TRUST PATRICIA and as P.A., HUTCHENS, COMPANY, and H. TERRY AND TRUST Substitute BANKING Defendants Trustee, YARBROUGH, COLE, E. v. VESTAL
HERCULES COLE CELESTINE Plaintiffs BUILDERS, YARBROUGH, INC., QUALITY WINSLOW EDWARD SHIRLEY NEVILLE, Individually COMPANY, AND M. BANKING TRUST THOMAS BRANCH agent COMPANY, DAVIS, TRUST PATRICIA BANKING AND of BRANCH and as agent COMPANY, Individually BANKING AND TRUST of BRANCH and as HUTCHENS, P.A., Defendants H. TERRY Substitute Trustee, No. COA05-7 February 2006) (Filed 7 delayed ruling pro Attorneys— hac admission vice — delay hearing motion for admission of four months before A plaintiffs deprive of their funda- pro hac did not practice vice represent them. Admission to right to mental select right but dis- pro hac in North Carolina is not practice vice cretionary privilege.