               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-741

                              Filed: 21 November 2017

Moore County, No. 13CRS052702

STATE OF NORTH CAROLINA

              v.

CARLOUSE LATOUR ALLBROOKS, Defendant.


        Appeal by defendant from judgment entered 8 January 2016 by Judge James

M. Webb in Superior Court, Moore County. Heard in the Court of Appeals 9 March

2017.


        Attorney General Joshua H. Stein, by Senior Deputy Attorney General
        Alexander McC. Peters, for the State.

        M. Gordon Widenhouse, Jr., for defendant-appellant.


        STROUD, Judge.


        Defendant appeals his conviction and judgment for first degree murder. Where

the written witness statement provided to police soon after the incident was

presented by the State to corroborate her trial testimony, we find that the statement

did not materially differ from her trial testimony, so the trial court properly allowed

the statement for this purpose. The trial court also correctly instructed the jury only

on first degree murder and not voluntary manslaughter, since the State’s evidence

was positive as to all of the elements of first degree murder, and there was no evidence
                                STATE V. ALLBROOKS

                                    Opinion of the Court



that defendant acted in “the immediate grip of sufficient passion” to require

instruction on a lesser offense. We therefore conclude that there was no error in

defendant’s trial.

                                      I.      Background

      The State’s evidence tended to show that on 12 September 2013, defendant was

trying to get into Shannon Smith’s home while she, her boyfriend Tyrone Allmond,

and her children were inside. Ms. Smith yelled at defendant to leave and eventually

threw a chair at him. Mr. Allmond told defendant to leave; the two continued to have

“some words[,]” and then defendant shot Mr. Allmond who died from his gunshot

wounds. Defendant was indicted for murder and found guilty by a jury of first degree

murder.    The trial court entered judgment and sentenced defendant to life

imprisonment without parole. Defendant appeals.

                              II.      Out-of-Court Statement

      An eyewitness had provided a signed statement to the police which the State

later introduced at trial over defendant’s objection. The statement read:

                    Tyrone Allmond was at my mother’s house,
             Kimberly Durant . . . . It was me, my sister and my cousin,
             Tyrone. Ma was in bed. Me and my sister was in the room
             playing with my son. Tyrone came in and said, Cuz, come
             up to the top of the hill and let’s talk. . . .
                    He told Ma bye and he left. I asked my sister
             Ty'Onika to watch my baby. So I got him ready for bed and
             put him down. It had to be after 10:00 o’clock p.m. but I
             remember telling my sister 10:47 when she asked about the
             time.


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                     By this time Shanda, my cousin, had came down. I
             asked her to walk with me up to the top of the hill, and she
             did. . . . We were by Edwina Hainey’s apartment when I
             heard Shannon, Tyrone’s girlfriend, fussing. She was
             fussing about something on FaceBook and Twitter. She
             was loud and that drew attention.
                     A group of guys started getting closer. She was
             coming out of Ms. Edwina’s apartment. As I was getting
             close Tyrone had walked up. Shannon was walking back to
             her apartment and Tyrone was following. He was like, Get
             the kids inside, wash them up. It’s a school night. The kids
             were outside running around. There are two of them.
                     Tyrone goes in the apartment followed with the kids,
             then Shannon. Just then Smoke[, defendant,] started in
             the apartment and Shannon told him to get out. Smoke
             tried to push his way in. Shannon threw a chair at Smoke.
             That’s when Tyrone got in the middle and told Smoke to
             leave. He was like, “Just leave. Go on ahead, just leave.”
             Smoke was like, “Word, Word Bone.” Bone was like, “What,
             what you mean?” Smoke was like, “All right, Bones, all
             right.” That’s when Smoke pulled a little handgun like a
             little smaller than yours. Smoke started shooting at Bones.
             Bones started to run, but couldn’t get far before he
             collapsed.
                     After I saw my cousin drop, I ran to my mama’s
             house and told her Smoke was -- and told her. Smoke was
             wearing a black shirt and blue jeans. They could have been
             shorts because you know how they sag. It wasn’t long after
             the shooting I went back up the hill after I told Ma about
             it. I’ve known Smoke my whole life growing up and have
             seen him around.
                     All this is what I saw. No one has made any threats
             or promises against me for me to say this. I don't know
             Smoke’s real name but his last name’s Allbrooks. I
             remember now his first name is Carlouse. Bones is a
             nickname we call my cousin Tyrone Allmond.

The trial court allowed the jury to hear the testimony “not for the truth of the matters

asserted therein but to determine whether or not State’s Exhibit 3A does or does not


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corroborate the testimony of Bre'Onica Durant.” (Emphasis added.)            Defendant

contends that the trial court erred in overruling his objection and allowing the

witness to testify to the out-of-court statement “where it added critical details that

were not otherwise shown by the evidence[.]” (Original in all caps.)

      “A trial court’s determination that evidence is admissible as corroborative

evidence is reviewed for abuse of discretion.” State v. Cook, 195 N.C. App. 230, 243,

672 S.E.2d 25, 33 (2009).

                    Prior consistent statements of a witness are
             admissible for purposes of corroboration even if the witness
             has not been impeached. When so offered, evidence of a
             prior consistent statement must in fact corroborate a
             witness’s later testimony; however, there is no requirement
             that the rendition of a prior consistent statement be
             identical to the witness’s later testimony. Slight variances
             in the corroborative testimony do not render it
             inadmissible. In order to be corroborative and therefore
             properly admissible, the prior statement of the witness
             need not merely relate to specific facts brought out in the
             witness’s testimony at trial, so long as the prior statement
             in fact tends to add weight or credibility to such testimony.
                    In order to be admissible as corroborative
                    evidence, a witness’ prior consistent
                    statements merely must tend to add weight or
                    credibility to the witness’ testimony. Further,
                    it is well established that such corroborative
                    evidence may contain new or additional facts
                    when it tends to strengthen and add
                    credibility to the testimony which it
                    corroborates.
             Moreover, if the previous statements are generally
             consistent with the witness’ testimony, slight variations
             will not render the statements inadmissible, but such
             variations affect only the credibility of the statement. On


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               the other hand, the witness’s prior statements as to facts
               not referred to in his trial testimony and not tending to add
               weight or credibility to it are not admissible as
               corroborative evidence; additionally, the witness’s prior
               contradictory statements may not be admitted under the
               guise of corroborating his testimony.

State v. Walker, 204 N.C. App. 431, 435–36, 694 S.E.2d 484, 488–89 (2010) (citations,

quotation marks, ellipses, and brackets omitted).

         Defendant argues that the statement added the following “critical facts”:

defendant

               purportedly said to Tyrone Allmond (“Word, Word Bone”)
               and a description of Mr. Allbrooks “pulling a little handgun
               like a little small[er] than yours” and “started shooting at
               [Tyrone]” at which Tyrone “started to run but couldn’t get
               far before he collapsed.”

First, many of the “critical facts” noted by defendant are present in both the witness’s

statement and testimony. For instance, the witness testified, “He was like, “’Word,

Bone,’ ‘Word, Bone[,]’” and “that’s when the shots started going off, and I seen my

cousin running.” But other facts noted by defendant as “critical facts” are not critical

facts.    Both the witness’s statement and trial testimony agreed that defendant

approached Ms. Smith’s apartment, Mr. Allmond told him to leave, an argument

ensued, and defendant shot Mr. Allmond. “[S]light variations will not render

statements inadmissible[,]” id., 204 N.C. App. at 436, 694 S.E.2d at 488, and thus the

trial court did not abuse its discretion in allowing in the out-of-court statement for




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corroboration of the witness’s testimony. See Cook, 195 N.C. App. at 243, 672 S.E.2d

at 33. This argument is overruled.

                     III.   Lesser-Included Offense Instruction

      Defendant next argues that the trial court erred in failing to instruct the jury

on the lesser-included offense of voluntary manslaughter. “A trial court’s decision

not to give a requested lesser-included offense instruction is reviewed de novo on

appeal.” State v. Matsoake, ___ N.C. App. ___, ___, 777 S.E.2d 810, 814 (2015), disc.

review denied, 368 N.C. 685, 781 S.E.2d 485 (2016).

                    The trial court must instruct the jury upon a lesser-
             included offense when there is evidence to support it.
             However, when the State’s evidence is clear and positive
             with respect to each element of the offense charged and
             there is no evidence showing the commission of a lesser-
             included offense, it is not error for the trial judge to refuse
             to instruct the jury on the lesser offense.
                    To determine whether the evidence supports the
             submission of a lesser-included offense, courts must
             consider the evidence in the light most favorable to the
             defendant.

Id. at ___, 777 S.E.2d at 814–15 (citations, quotation marks, and brackets omitted).

      Defendant contends that when he “responded to Tyrone’s words or his non-

lethal assault, . . . [he] was acting under the immediate grip of sufficient passion so

as to be guilty of at most voluntary manslaughter.” Defendant did not testify nor

did any witnesses testify on his behalf. The evidence offered from the State indicated

defendant was the initial aggressor in the incident, and he was the only one to make



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any threats or to perform any violent actions. There is simply no evidence to support

“the immediate grip of sufficient passion” for the purposes of a voluntary

manslaughter instruction. See State v. Long, 87 N.C. App. 137, 141, 360 S.E.2d 121,

123 (1987) (“The court is required to instruct the jury as to a lesser included offense

only when there is evidence from which the jury could find that such lesser offense

was committed. Voluntary manslaughter is a lesser included offense of murder and

is defined as the unlawful killing of a human being without malice, premeditation or

deliberation. Killing another while under the influence of passion or in the heat of

blood produced by adequate provocation is voluntary manslaughter. To reduce the

crime of murder to voluntary manslaughter, the defendant must either rely on

evidence presented by the State or assume a burden to go forward with or produce

some evidence of all elements of heat of passion on sudden provocation.” (citations

and quotation marks omitted)). This argument has no merit.

                               IV.      Double Jeopardy

      Lastly, defendant “preserve[s]” the argument that the trial court erred in

denying his motion to dismiss because “the constitutional prohibition against double

jeopardy prevented him from being tried a second time after the first trial ended

when the jury could not reach a unanimous verdict.” (Original in all caps.)

Defendant acknowledges that our courts have already rejected his contention but

raises it “to preserve the matter for further review.” Indeed, “[t]he courts in this



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country have long held that the prohibition against double jeopardy does not prevent

defendant’s retrial when his previous trial ended in a hung jury.” See State v. Odom,

316 N.C. 306, 309, 341 S.E.2d 332, 334 (1986). We note defendant’s attempt to

preserve the issue.

                                 V.     Conclusion

      For the foregoing reasons, we determine there was no error.

      NO ERROR.

      Judges DIILLON and MURPHY concur.




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