               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-10

                               Filed: 16 October 2018

Wilson County, Nos. 14CRS001662, 15CRS001595, 14CRS001653-54

STATE OF NORTH CAROLINA

             v.

ANFERNEE D. KNIGHT, Defendant.


      Appeal by defendant of judgments entered 23 May 2017 by Judge Walter H.

Godwin, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 23

August 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Peter A.
      Regulski, for the State.

      Sarah Holladay for defendant.


      BERGER, Judge.


      On May 23, 2017, Anfernee D. Knight (“Defendant”) was convicted of first-

degree murder; assault with a deadly weapon with intent to kill inflicting serious

injury; attempted first-degree murder; and two counts of discharging a weapon into

an occupied dwelling. Defendant argues that the trial court erred in: (1) denying

Defendant’s motion for severance; (2) failing to instruct the jury regarding the jury’s

use of hearsay statements; and (3) dismissing an impaneled juror. We disagree.

                        Factual and Procedural Background
                                   STATE V. KNIGHT

                                   Opinion of the Court



      This appeal arose from two gang-related shootings on July 23, 2014. The first

shooting occurred around 4:30 p.m. near National Grocery in Wilson (“the National

Grocery shooting”). Defendant was sitting in a parked car with Donnell Hill (“Hill”),

Demetrius Spells (“Spells”), and Demonte Briggs (“Briggs”). Defendant, Hill, and

Spells were members of a local gang. Antonio Pate (“Pate”), a rival gang member,

drove past Defendant’s parked car and opened fire. According to the testimony of

Hill, Spells, and Briggs, Defendant returned fire and struck Pate in his right shoulder

as he fled the scene. Defendant, Hills, Spells, and Briggs left the scene without calling

the police. Police later recovered six .45-caliber shell casings and eight 9-mm shell

casings from the National Grocery shooting scene.

      In retaliation for the National Grocery shooting, Defendant and other members

of his gang opened fire on a group associated with Pate’s gang later that evening at

Starmount Circle, an apartment complex (“the Starmount Circle shooting”).             In

preparing to retaliate, Defendant and Spells borrowed Spell’s girlfriend’s green

Honda, which was described as very loud. Spells drove and Defendant sat in the back

seat, still armed with the 9-mm pistol used in the earlier National Grocery shooting.

After picking up Hill, the three men met several others associated with their gang at

a local convenience store. After a group discussion, the group split up—three men

left in a silver Maxima while Hill, Spells, and Defendant drove away in the loud green




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                                   Opinion of the Court



Honda. The convenience store’s video surveillance recorded the meeting, which was

played for the jury.

         Around 9:30 p.m., several witnesses at Starmount Circle observed a dark car

with a loud muffler and a silver car approach the apartment complex.         Shortly

thereafter, gunshots were heard. Seven-year-old Kamari Antonio Jones (“Jones”) was

killed when a bullet from the exchange struck him while he was in bed.

         At trial, Spells testified that Defendant exited the green Honda when they

arrived at Starmount Circle armed with the 9-mm pistol that he used earlier that

day. Defendant met two other men from the silver Maxima; and the three men

walked between the homes near Starmount Circle. While they were gone, Spells

heard gunshots. When Defendant returned to the green Honda, he did not have the

9-mm pistol. Spells drove them away.

         Police later recovered three .45-caliber shell casings and four 9-mm shell

casings from the Starmount Circle scene. Testing confirmed the 9-mm shell casings

recovered from the National Grocery shooting were fired from the same pistol as the

9-mm used in the Starmount Circle shootings. Defendant’s DNA profile also matched

the DNA profile obtained from a cigarette located near the Starmount Circle crime

scene.

         On May 23, 2017, a Wilson County jury found Defendant guilty of one count of

first-degree murder; four counts of attempted first-degree murder; three counts of



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                                    Opinion of the Court



assault with a deadly weapon with intent to kill; one count of assault with a deadly

weapon with intent to kill inflicting serious injury; and two counts of discharging a

firearm into an occupied dwelling. Defendant was sentenced to life imprisonment

without parole for first-degree murder and consecutive sentences of 157 to 201

months for attempted first-degree murder, 73 to 100 months for assault with a deadly

weapon with intent to kill inflicting serious injury, and 64 to 89 months each for two

counts of discharging a weapon into an occupied dwelling. Judgment was arrested

on the remaining counts, which served as the felonies underlying Defendant’s first-

degree felony murder conviction. Defendant timely appeals, challenging the trial

court’s denial of his motion to sever, failure to instruct the jury regarding their limited

use of hearsay statements, and dismissal of an impaneled juror.

                                        Analysis

I. Severance

       Defendant first alleges the trial court erred by denying his motion to sever the

National Grocery case from the Starmount Circle case.            Defendant asserts that

severance was necessary to protect Defendant’s constitutional right to testify in his

own defense and to prevent the introduction of certain evidence that was relevant to

some, but not all charges. We disagree.

       “It is well established that a trial court’s ruling on the consolidation or

severance of cases is discretionary and will not be disturbed absent a showing of



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                                   Opinion of the Court



abuse of discretion.” State v. Shipp, 155 N.C. App. 294, 305, 573 S.E.2d 721, 728

(2002) (citation omitted). “Abuse of discretion results where the court’s ruling is

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988).

      Consolidation of offenses for trial is appropriate “when the offenses, whether

felonies or misdemeanors or both, are based on the same act or transaction or on a

series of acts or transactions connected together or constituting parts of a single

scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (2017). Our courts generally favor

consolidation of offenses for trial because it “expedites the administration of justice,

reduces the congestion of trial dockets, conserves judicial time, lessens the burden

upon citizens who must sacrifice both time and money to serve upon juries, and avoids

the necessity of recalling witnesses who would otherwise be called upon to testify only

once.” State v. Williams, 355 N.C. 501, 531, 565 S.E.2d 609, 627 (2002) (citation

omitted), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).

      To determine whether there was a transactional connection between joined

offenses, “[w]e consider the following factors to make this determination: (1) the

nature of the offenses charged; (2) any commonality of facts between the offenses; (3)

the lapse of time between the offenses; and (4) the unique circumstances of each case.”




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                                  Opinion of the Court



State v. Perry, 142 N.C. App. 177, 181, 541 S.E.2d 746, 749 (2001) (citation and

quotation marks omitted).

      Nevertheless, a motion to sever offenses must be granted if, during trial,

             it is found necessary to achieve a fair determination of the
             defendant’s guilt or innocence of each offense. The court
             must consider whether, in view of the number of offenses
             charged and the complexity of the evidence to be offered,
             the trier of fact will be able to distinguish the evidence and
             apply the law intelligently as to each offense.

N.C. Gen. Stat. § 15A-927(b)(2) (2017). “The question before the court on a motion to

sever is whether the offenses are so separate in time and place and so distinct in

circumstances as to render consolidation unjust and prejudicial.” State v. Bracey, 303

N.C. 112, 117, 277 S.E.2d 390, 394 (1981).

      Additionally, our Supreme Court and the Supreme Court of the United States

have held that severance may be necessary “[i]f such consolidation hinders or

deprives the accused of his ability to present his defense.” State v. Davis, 289 N.C.

500, 508, 223 S.E.2d 296, 301 (citation omitted), vacated in part on other grounds,

429 U.S. 809, 50 L. Ed. 2d 69 (1976); see also Pointer v. United States, 151 U.S. 396,

403, 38 L. Ed. 208, 212 (1894) (recognizing the fundamental principal that a court

“must not permit the defendant to be embarrassed in his defence by a multiplicity of

charges embraced in one indictment and to be tried by one jury”).

      However, severance is not required merely because the defendant would have

elected to testify against one offense without being compelled to testify against


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                                   Opinion of the Court



another. Davis, 289 N.C. at 508, 223 S.E.2d at 301 (citation omitted); see also Shipp,

155 N.C. App. at 306, 573 S.E.2d at 729 (“A defendant fails to show abuse of discretion

on the part of the trial judge in joining two offenses for trial where defendant’s only

assertion of possible prejudice is that he might have elected to testify in one of the

cases and not in the others.” (citation and quotation marks omitted)); State v. Sutton,

34 N.C. App. 371, 374, 238 S.E.2d 305, 307 (1977), disc. review denied, 294 N.C. 186,

241 S.E.2d 521 (1978) (finding the trial court did not abuse its discretion in denying

defendant’s motion to sever because his “only assertion of possible prejudice is that

he might have elected to testify in one of the cases and not in the others”).

      Here, the transactional connection between the offenses was sufficient for

joinder. Each offense arose from a continuous course of violent criminal conduct

related to gang rivalries. The evidence tended to show that the Starmount Circle

shooting was in retaliation for the earlier National Grocery shooting.          The two

shootings occurred the same day; the same 9-mm pistol was used in both shootings;

and witnesses testified at trial to evidence that applied to both shootings, or testified

that they were present at both crime scenes. Thus, joinder was proper.

      Additionally, neither the number of offenses nor the complexity of the evidence

offered necessitated severance of the offenses for trial. The evidence presented was

not unduly complicated or confusing. The jury instructions clearly and carefully

separated Defendant’s offenses, and the verdict forms unmistakably distinguished



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                                  Opinion of the Court



the offenses according to the victim’s names. Therefore, no showing has been made

that severance was necessary to ensure a fair determination by the jury on each

charge.

      Moreover, we reject Defendant’s assertion that severance was necessary to

protect Defendant’s constitutional right to choose to testify against charges arising

from either the National Grocery shooting or the Starmount Circle shooting without

testifying regarding the other shooting. This is an insufficient argument to warrant

severance. As previously discussed, a trial court does not abuse its discretion by

refusing to sever multiple offenses against the same defendant “where defendant’s

only assertion of possible prejudice is that he might have elected to testify in one of

the cases and not in the others.” Shipp, 155 N.C. App. at 306, 573 S.E.2d at 729

(citation and quotation marks omitted); see also Davis, 289 N.C. at 508, 223 S.E.2d

at 301; Sutton, 34 N.C. App. at 374, 238 S.E.2d at 307.

      Finally, we decline to address the merits of Defendant’s argument that the trial

court’s denial of his motion to sever prevented a fair trial as it allowed the jury to

hear testimony regarding Defendant’s gang ties and evidence of seven-year-old Jones’

murder. Defendant waived appellate review of this issue as he did not raise this

argument at trial. “In order to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection, or motion, stating the

specific grounds for the ruling the party desired the court to make if the specific



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                                   Opinion of the Court



grounds were not apparent from the context.” N.C.R. App. P. 10(a)(1) (emphasis

added).

      Accordingly, the trial court did not abuse its discretion by denying Defendant’s

motion to sever.

II. Hearsay Jury Instruction

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

on their limited use of six hearsay statements for corroborative and impeachment

purposes only.     While we agree that this omission was error, we find the error

harmless.

      “It is the duty of the trial court to instruct the jury on all substantial features

of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546,

549 (1988). “The prime purpose of a court’s charge to the jury is the clarification of

issues, the elimination of extraneous matters, and a declaration and an application

of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d

186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). “Failure to

instruct upon all substantive or material features of the crime charged is error.” State

v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989).

      However, “[w]hen a trial court agrees to give a requested pattern instruction,

an erroneous deviation from that instruction is preserved for appellate review

without further request or objection.” State v. Lee, 370 N.C. 671, 676, 811 S.E.2d 563,



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                                   Opinion of the Court



567 (2018). “[A] request for an instruction at the charge conference is sufficient

compliance with the rule to warrant our full review on appeal where the requested

instruction is subsequently promised but not given, notwithstanding any failure to

bring the error to the trial judge’s attention at the end of the instructions.” Id.

(quoting State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988)). Where the

trial court “substantively deviate[s] from the agreed-upon pattern jury instruction,

. . . this issue [is preserved] for appellate review under N.C.G.S. § 15A-1443(a).” Id.

      Per Section 15A-1443(a), a defendant

             is prejudiced by errors relating to rights arising other than
             under the Constitution of the United States when there is
             a reasonable possibility that, had the error in question not
             been committed, a different result would have been
             reached at the trial out of which the appeal arises. The
             burden of showing such prejudice under this subsection is
             upon the defendant. Prejudice also exists in any instance
             in which it is deemed to exist as a matter of law or error is
             deemed reversible per se.

N.C. Gen. Stat. § 15A-1443(a) (2017) (emphasis added).

      Here, at least twice during trial, Defendant specifically requested North

Carolina Pattern Jury Instruction 105.20 (“Instruction 105.20”), which limits the

jury’s permissible reliance on hearsay statements to corroborative and impeachment

purposes only. During the charge conference, the parties and trial court further

agreed that the jury would be charged with Instruction 105.20. However, the trial

court omitted Instruction 105.20 from the final jury charge. We conclude that, by



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                                  Opinion of the Court



omitting Instruction 105.20 from the final jury charge, the trial court committed

error, which we “review under N.C.G.S. § 15A-1443(a).” Lee, 370 N.C. at 676, 811

S.E.2d at 567. Nevertheless, Defendant has failed to demonstrate that there is “a

reasonable possibility that, had the error in question not been committed, a different

result would have been reached at the trial.” N.C. Gen. Stat. § 15A-1443(a).

      The trial court reiterated Instruction 105.20—or a close variation of it—six

times to the jury throughout trial.      Although the trial court failed to provide

Instruction 105.20 during the final jury charge, the jury was sufficiently advised of

this instruction throughout relevant portions of the trial.

      Moreover, even if the instructions had not been given during the course of the

trial, Defendant cannot show prejudice as the record reflects overwhelming evidence

of Defendant’s guilt. Defendant does not contest the trial testimony of Spells, his

fellow gang member. Spells testified that Defendant returned fire on Pate using his

9-mm pistol at the National Grocery shooting. Spells further testified that Defendant

was armed with the same 9-mm pistol when he exited Spells’ car and opened fire at

Starmount Circle later that same evening. Moreover, the physical evidence showed

that the 9-mm shell casings found at the National Grocery and Starmount Circle

scene matched. Finally, police also recovered a cigarette at the Starmount Circle

crime scene which connected Defendant to the shooting. Given the overwhelming

evidence of Defendant’s guilt, Defendant has failed to demonstrate that but for the



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                                   Opinion of the Court



trial court’s instructional error, there was a reasonable possibility of a different

outcome at trial. Thus, Defendant has failed to demonstrate prejudice pursuant to

N.C. Gen. Stat. §15A-1443(a).

III. Removing Impaneled Juror

      Finally, Defendant argues that the trial court erred by dismissing an

impaneled juror. We disagree.

      Trial courts’ “decisions relating to the competency and service of jurors are not

reviewable on appeal absent a showing of abuse of discretion, or some imputed legal

error.” State v. Davis, 325 N.C. 607, 628, 386 S.E.2d 418, 429 (1989) (citation and

quotation marks omitted), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). The

abuse of discretion standard applies because “[t]he trial court’s discretion in

supervising the jury continues beyond jury selection and extends to decisions to

excuse a juror and substitute an alternate.” State v. Lovin, 339 N.C. 695, 715-16, 454

S.E.2d 229, 241 (1995) (citation omitted). Accordingly, “[t]he decision whether to

reopen examination of a juror previously accepted by both the State and defendant .

. . is a matter within the sound discretion of the trial judge.” State v. Freeman, 314

N.C. 432, 437, 333 S.E.2d 743, 746 (1985) (citation and quotation marks omitted).

      “If before final submission of the case to the jury, any juror dies, becomes

incapacitated or disqualified, or is discharged for any other reason, an alternate juror

becomes a juror, in the order in which selected, and serves in all respects as those



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                                  Opinion of the Court



selected on the regular trial panel.” N.C. Gen. Stat. § 15A-1215(a) (2017). This

section “allows the trial court to replace a juror with an alternate juror should the

original one become disqualified or be discharged for some reason.”           State v.

Richardson, 341 N.C. 658, 672-73, 462 S.E.2d 492, 502 (1995) (citation omitted).

      “The test is whether the challenged juror is unable to render a fair and

impartial verdict.” Id. (citation and quotation marks omitted).

             The trial court has the opportunity to see and hear the
             juror on voir dire and, having observed the juror’s
             demeanor and made findings as to his credibility, to
             determine whether the juror can be fair and impartial. For
             this reason, among others, it is within the trial court’s
             discretion, based on its observation and sound judgment,
             to determine whether a juror can be fair and impartial.

Id. (citation omitted). Therefore, “[a]bsent a showing that the trial court’s decision

was so arbitrary that it could not have been the result of a reasoned decision, the

decision must stand.” Id. (citation omitted).

      Here, five days into the trial and after the jury had been impaneled, the State

moved for the trial court to inquire into the competency of Juror 7 to render a fair

and impartial verdict. The trial court conducted a hearing on the motion in which a

21-year veteran bailiff took the stand and testified that Juror 7 spoke with him during

a break on the previous day. Juror 7 had first asked the bailiff “if they could have

prayer during the breaks in the jury room.” Juror 7 then said that “he felt it was




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                                   STATE V. KNIGHT

                                   Opinion of the Court



inappropriate and rude for [the District Attorney] to be pointing at people in the

audience while a witness was testifying.”

      Juror 7 was subsequently questioned about the statements. Juror 7 testified

that he did not “remember making any statement pertaining to the case” and agreed

that he had not “formed an opinion concerning any of the parties in this case that

would affect [him] from being a fair and impartial juror in this matter.” Rather than

dismiss Juror 7, the trial court gave curative instructions to the jury.

      Later that same day, the State played audio from a jailhouse call between

Defendant and Defendant’s mother, which revealed that the Defendant’s mother

knew Juror 7. The State renewed its request to dismiss Juror 7. The trial court again

asked Juror 7 whether he told “the bailiff yesterday at the lunch break that [he] felt

that the District Attorney was rude in that he pointed out certain individuals within

the courtroom.” In response, Juror 7 admitted that he could “vaguely remember”

discussing the jury’s security and whether he could pray for the jury because he

believed that they were “in jeopardy somehow.”

      Given this testimony, the trial court made the following findings of fact and

conclusions of law:

             This matter coming on to be heard and being heard before
             the undersigned judge presiding on this date, the 19th of
             May 2017, upon reconsideration of the motion to excuse
             [Juror 7], . . . for expressing an opinion concerning any
             matter involved in this case, that sworn testimony was
             taken from the bailiff this morning in which he testified


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                                    STATE V. KNIGHT

                                    Opinion of the Court



             that [Juror 7] mentioned to him that he was, that he
             thought that the District Attorney was rude at such time
             he pointed to certain individuals within the courtroom.
             Upon given a written transcript of the question and answer
             session with [Juror 7] earlier today, the record reflects
             upon my question, “have you discussed this case with
             anyone in any manner outside of this courtroom” that his
             response was “no, sir.” Upon questioning him at the, after
             lunch break concerning this issue, the witness, [Juror 7],
             among other things, stated that he was not sure and could
             not remember.
                    The Court having heard the testimony of the bailiff
             and having heard his responses to ensure that the
             Defendant has a right to a neutral and impartial jury, the
             Court makes a finding, after these findings of fact, makes
             conclusions of law that [Juror 7] made, expressed an
             opinion about this case in disregard to the Court’s
             instructions. Further, that it is within the sound discretion
             of the Court concerning jury conduct based upon the
             foregoing findings of fact and conclusions of law, the Court
             finds that an opinion was expressed concerning this case in
             violation of the Court’s instructions, therefore, [Juror 7]
             has been excused by the Court.

      Based on the trial court’s investigation and findings that Juror 7 provided

different response to the same question during two separate hearings and ignored

the trial court’s instructions, the trial court dismissed Juror 7. Defendant has failed

to demonstrate that the trial court’s decision to dismiss Juror 7 “was so arbitrary that

it could not have been the result of a reasoned decision.” Richardson, 341 N.C. at

673, 462 S.E.2d at 502 (citation omitted). Therefore, the trial court did not abuse its

discretion by dismissing Juror 7.

                                       Conclusion



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                                    STATE V. KNIGHT

                                    Opinion of the Court



       The trial court did not abuse its discretion by denying Defendant’s motion for

severance or dismissing Juror 7. Although omitting the requested instruction during

the final jury charge was erroneous, this error was harmless. Accordingly, Defendant

received a fair trial, free from prejudicial error.

       NO ERROR.

       Judges DIETZ and TYSON concur.




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