              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-51

                               Filed: 20 October 2015

Mecklenburg County, Nos. 12CRS254087-89

STATE OF NORTH CAROLINA

             v.

RALPH LEWIS GETTYS, Defendant.


      Appeal by defendant from judgments entered on or about 16 January 2014 by

Judge Lucy N. Inman in Superior Court, Mecklenburg County. Heard in the Court

of Appeals on 6 May 2015.


      Attorney General Roy A. Cooper III, by Assistant Attorney General Brandon L.
      Truman, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
      defendant-appellant.


      STROUD, Judge.


      Ralph Lewis Gettys (“defendant”) appeals from judgments entered after a jury

found him guilty of second-degree murder, possession of a firearm by a felon, and

simple assault. Defendant contends that the trial court erred in (1) denying his

motion to strike the jury venire; (2) admitting a recording of a police interview and
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allowing a police detective to read from a transcript of that recording; and (3) denying

defendant’s request for a special jury instruction on sequestration. We find no error.

                                  I.     Background

      In the early hours of 15 December 2012, defendant worked as a bouncer at a

“liquor house” in Charlotte. Defendant patted down customers for firearms, among

whom were Joshua Lampkins and Raymona Abraham. Around 5:00 a.m. or 6:00 a.m.,

defendant told his brother that he wanted to leave the liquor house. Defendant’s

brother gave him the keys to his car, which he had parked down the street, so that

defendant could move the car in front of the liquor house and then they could leave

together. Defendant’s ex-girlfriend, Teshalla Dunlap, accompanied defendant as he

walked down the street to the car. With Dunlap as a passenger, defendant drove the

car back up the street and parked it in front of the liquor house. When defendant

and Dunlap got out of the car, Lampkins and Abraham confronted them and claimed

that defendant had hit Lampkins with the car. Lampkins and Abraham demanded

that defendant pay them fifty dollars, and when defendant refused, they threatened

to attack him. When the conflict escalated, Dunlap walked toward the liquor house

to tell defendant’s brother to come outside. During the confrontation, defendant shot

and killed Abraham and beat Lampkins unconscious. As part of the investigation of

the homicide, Detectives Carter and Greenly interviewed Dunlap and recorded the

interview.



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      On or about 7 January 2013, a grand jury indicted defendant for murder,

possession of a firearm by a felon, and simple assault. See N.C. Gen. Stat. §§ 14-17,

-33(a), -415.1 (2011). At trial, defendant moved to strike the petit jury venire, but the

trial court denied his motion. On 16 January 2014, the jury found defendant guilty

of second-degree murder, possession of a firearm by a felon, and simple assault. The

trial court sentenced defendant to 339 to 419 months’ imprisonment for the second-

degree murder offense, 21 to 35 months’ imprisonment for the possession of a firearm

by a felon offense, and 60 days of imprisonment for the simple assault offense. The

trial court ordered that defendant serve the second-degree murder sentence and

possession of a firearm by a felon sentence consecutively and serve the simple assault

sentence concurrently. Defendant gave notice of appeal in open court.

                        II.    Motion to Strike the Jury Venire

      Defendant first contends that the trial court erred in denying his motion to

strike the jury venire. Defendant alleges that his venire was racially disproportionate

to the demographics of Mecklenburg County and therefore deprived him of his

constitutional right to a jury of his peers.

A.    Standard of Review

      We review alleged violations of constitutional rights de novo. State v. Graham,

200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review

denied, 363 N.C. 857, 694 S.E.2d 766 (2010).



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B.    Analysis

                    Our state and federal Constitutions protect a
             criminal defendant’s right to be tried by a jury of his peers.
             This constitutional guarantee assures that members of a
             defendant’s own race have not been systematically and
             arbitrarily excluded from the jury pool which is to decide
             his guilt or innocence. However, the Sixth Amendment
             does not guarantee a defendant the right to a jury
             composed of members of a certain race or gender.
                    The burden is upon the defendant to show a prima
             facie case of racial systematic exclusion. In order for a
             defendant to establish a prima facie violation for
             disproportionate representation in a venire, he must show
             the following:

                   (1)    that the group alleged to be excluded is
                   a “distinctive” group in the community;

                   (2)    that the representation of this group in
                   venires from which juries are selected is not
                   fair and reasonable in relation to the number
                   of such persons in the community; and

                   (3)    that this underrepresentation is due to
                   systematic exclusion of the group in the jury-
                   selection process.

State v. Jackson, 215 N.C. App. 339, 341-42, 716 S.E.2d 61, 64 (2011) (emphasis added

and citations, quotation marks, and brackets omitted) (quoting Duren v. Missouri,

439 U.S. 357, 364, 58 L. Ed. 2d 579, 587 (1979)).

      A single venire that fails to proportionately represent a cross-section of the

community does not constitute systematic exclusion. See State v. Williams, 355 N.C.

501, 549-50, 565 S.E.2d 609, 638 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d



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808 (2003). “The fact that a particular jury or a series of juries does not statistically

reflect the racial composition of the community does not in itself make out an

invidious discrimination forbidden by the Equal Protection Clause.” Jackson, 215

N.C. App. at 343, 716 S.E.2d at 65 (brackets omitted). Systematic exclusion occurs

when a procedure in the venire selection process consistently yields non-

representative venires. See Duren, 439 U.S. at 366-67, 58 L. Ed. 2d at 588-89 (holding

that a venire selection process favoring female exemption from jury duty constituted

systematic exclusion).

      Defendant argues that Mecklenburg County’s computer program, Jury

Manager, generated a racially disproportionate venire and thus deprived him of a

jury of his peers. Defendant relies on Turner v. Fouche, 396 U.S. 346, 359, 24 L. Ed.

2d 567, 578 (1970). But in interpreting Turner, our Supreme Court noted:

             [T]he United States Supreme Court did not conclude that
             the prima facie case was solely based upon the disparity of
             representation of African-Americans in the jury venire.
             Rather, that Court’s conclusion ultimately rested upon the
             finding that the underrepresentation was the result of the
             systematic exclusion of African-Americans in the jury-
             selection process. Under our interpretation of Turner,
             merely showing a disparity under the second prong of the
             Duren test, standing alone, will not establish a prima facie
             case of disproportionate representation.

State v. Bowman, 349 N.C. 459, 469, 509 S.E.2d 428, 434 (1998) (citation omitted),

cert. denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999). Although defendant asserts

that there is a disparity under the second prong of Duren, he concedes the absence of


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systematic exclusion under the third prong. Because defendant has failed to satisfy

the third Duren prong, systematic exclusion, we hold that the trial court did not err

in denying defendant’s motion to strike the jury venire. Id., 509 S.E.2d at 434-35; see

also Williams, 355 N.C. at 549-50, 565 S.E.2d at 638; State v. Avery, 299 N.C. 126,

134-35, 261 S.E.2d 803, 808-09 (1980).

                            III.   Admission of Evidence

      Defendant argues that the trial court erred in admitting the recording of

Dunlap’s police interview for both corroboration and impeachment.            Defendant

further contends that the trial court erred in allowing Detective Carter to read

portions of the transcript of that recording. We find no error in either circumstance.

A.    Standard of Review

                    The standard of review for this Court assessing
             evidentiary rulings is abuse of discretion. A trial court may
             be reversed for an abuse of discretion only upon a showing
             that its ruling was so arbitrary that it could not have been
             the result of a reasoned decision. The abuse of discretion
             standard applies to decisions by a trial court that a
             statement is admissible for corroboration.

State v. Tellez, 200 N.C. App. 517, 526, 684 S.E.2d 733, 739 (2009) (citations and

quotation marks omitted). We also review for an abuse of discretion a trial court’s

decision to admit a statement for impeachment. State v. Banks, 210 N.C. App. 30,

38, 706 S.E.2d 807, 814 (2011).

      Relying on Sherrod v. Nash General Hospital, Inc., defendant argues that the



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proper standard for reviewing a trial court’s decision to admit a statement for

corroboration is de novo. See 126 N.C. App. 755, 762, 487 S.E.2d 151, 155 (1997), aff’d

in part and rev’d in part, 348 N.C. 526, 500 S.E.2d 708 (1998). But there, this Court

did not discuss a trial court’s ruling on whether evidence was admissible for

corroboration; rather it discussed a trial court’s ruling on whether evidence was

relevant under N.C. Gen. Stat. § 8C-1, Rule 401. Id., 487 S.E.2d at 155. Accordingly,

we hold that Sherrod is inapposite.

B.    Corroboration and Impeachment

                    The prior consistent statements of a witness may be
             offered at trial for corroborative, nonhearsay purposes.
             Corroborative testimony is testimony which tends to
             strengthen, confirm, or make more certain the testimony of
             another witness. 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.
             The trial court has wide latitude in deciding when a prior
             consistent statement can be admitted for corroborative,
             nonhearsay purposes.

State v. Duffie, ___ N.C. App. ___, ___, 772 S.E.2d 100, 104 (2015) (citations and

quotation marks omitted). “Prior statements of a witness which are inconsistent with

his present testimony are not admissible as substantive evidence because of their

hearsay nature. Even so, such prior inconsistent statements are admissible for the

purpose of impeachment.” State v. Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780

(1997); see also N.C. Gen. Stat. § 8C-1, Rule 607 (2013). “[I]mpeachment evidence


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has been defined as evidence used to undermine a witness’s credibility, with any

circumstance tending to show a defect in the witness’s perception, memory, narration

or veracity relevant to this purpose.” State v. Allen, 222 N.C. App. 707, 721, 731

S.E.2d 510, 520 (citations, quotation marks, and brackets omitted), appeal dismissed

and disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert. denied, ___ U.S.

___, 185 L. Ed. 2d 876 (2013).

      A trial court may admit evidence for both corroboration and impeachment. See

State v. Ayudkya, 96 N.C. App. 606, 610, 386 S.E.2d 604, 606-07 (1989) (holding that

a pretrial statement that supported a witness’s direct testimony but contradicted his

cross-examination testimony was admissible to either corroborate or impeach,

“whichever the jury found”). “Where a witness’s prior statement contains facts that

manifestly contradict his trial testimony, however, such evidence may not be

admitted under the guise of corroborating his testimony.” State v. Alexander, 152

N.C. App. 701, 704, 568 S.E.2d 317, 319 (2002) (quotation marks omitted).

Additionally, this Court in Ayudkya cautioned that courts must apply carefully this

combination of the evidentiary rules of corroboration and impeachment; otherwise, a

party could introduce “almost any out-of-court statement made by a witness.”

Ayudkya, 96 N.C. App. at 610, 386 S.E.2d at 606-07.

      Here, the trial court admitted the recording of Dunlap’s police interview for

both corroboration and impeachment. Before admitting the recording, the trial court



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carefully reviewed the transcript of the recording and addressed defendant’s concern

that the State had called Dunlap as a witness only to introduce her prior inconsistent

statements, which would have been otherwise inadmissible as hearsay:

             Now, as I understand what happened here, the State put
             on the witness. I would—I don’t think the State expected
             [Dunlap] to not say something consistent. What she said
             was 90 percent consistent with what she said before. This
             is not a case where the State has put on a witness the State
             knows has changed his or her story, that the State doesn’t
             reasonably expect to testify about what the witness said
             before for the pure purpose of pre-textually getting in that
             prior statement.
                    As a matter of fact, here the State has put on a
             witness who has testified largely consistent[ly] with what
             she said.

The trial court also gave a limiting instruction to the jury before the recording was

played to them:

                    Ladies and gentleman, you’re going to hear evidence
             of Ms. Dunlap’s earlier statement to the police in the
             interview. I instruct you that you must not consider this
             earlier statement as evidence of the truth of what was said
             at that earlier time because the earlier statement was not
             made under oath at this trial. If you believe that the earlier
             statement was made and that any portions of the earlier
             statement conflict with or are consistent with the
             testimony of Ms. Dunlap at this trial, you may consider
             these prior statements and all other facts and
             circumstances bearing upon Ms. Dunlap’s truthfulness in
             deciding whether you will believe or disbelieve Ms.
             Dunlap’s testimony at this trial.

The trial court later included a similar limiting instruction in the jury charge:

                    Evidence has been received tending to show that at


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             an earlier time a witness made a statement which may
             conflict or be consistent with the testimony of the witness
             at this trial. You must not consider such earlier statement
             as evidence of the truth of what was said at that earlier
             time because it was not made under oath at this trial.
                    If you believe the earlier statement was made and
             that it conflicts or is consistent with the testimony of the
             witness at this trial, you may consider this and all other
             facts and circumstances bearing upon the witness’s
             truthfulness in deciding whether you will believe or
             disbelieve the witness’s testimony.

In light of the trial court’s abundance of caution as demonstrated in its conscientious

review of the transcript of the recording and its limiting instructions, we hold that

under Ayudkya, the trial court did not abuse its discretion in admitting the recording

for both corroboration and impeachment. See Ayudkya, 96 N.C. App. at 610, 386

S.E.2d at 606-07; Tellez, 200 N.C. App. at 527-28, 684 S.E.2d at 740-41 (approving of

a similar limiting instruction).

      Defendant contends that admitting the recording for both corroboration and

impeachment is “logically contradictory and counterintuitive.” But the State did not

introduce a single pretrial statement for both corroboration and impeachment;

rather, it introduced a recording of Dunlap’s police interview, which included many

pretrial statements, some of which tended to corroborate Dunlap’s testimony and

some of which tended to impeach her testimony.

      Defendant relies on State v. Frogge for the proposition that prior contradictory

statements do not corroborate a witness’s testimony and may not be admitted under



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such a theory. See 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997). But Frogge is

distinguishable, because here, the State proffered and the trial court admitted

Dunlap’s pretrial statements for both corroboration and impeachment purposes.

      Defendant next attempts to distinguish Ayudkya.             There, the pretrial

statement corroborated the witness’s direct testimony “although it tended to impeach

his cross-examination testimony.” Ayudkya, 96 N.C. App. at 610, 386 S.E.2d at 606.

Defendant argues that Ayudkya is distinguishable, because “the State was not

offering Ms. Dunlap’s previous statement[s] . . . in an attempt to rehabilitate her by

corroborating her direct testimony and impeaching her cross-examination

testimony.” But nothing in Ayudkya suggests that its holding is limited to this

particular situation. See id., 386 S.E.2d at 606-07. Following Ayudkya, we hold that

the trial court did not err in admitting the recording of the police interview for both

corroboration and impeachment purposes. See id., 386 S.E.2d at 606-07.

C.    Reading from Transcript

      Defendant also contends that the trial court’s decision to allow Detective

Carter to read aloud portions of the transcript that the State believed were not clearly

audible from the recording intruded upon the province of the jury. But because

Detective Carter was one of the detectives who interviewed Dunlap, she had personal

knowledge of the interview. An individual who has personal knowledge of a matter

may testify directly about that matter at trial. See N.C. Gen. Stat. § 8C-1, Rule 602



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(2013); State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671 (2001), appeal

dismissed and disc. review denied, 356 N.C. 169, 568 S.E.2d 619 (2002). Here,

Detective Carter merely read or clarified statements that had been made in her

presence. Additionally, the trial court gave the following limiting instruction to the

jury:

                     Ladies and gentleman, I will instruct you that—I
              will instruct you that you need to listen as carefully as you
              can and not give any greater weight to those portions of the
              statement that Detective Carter reads than you give to the
              portions of the statement that you only hear. I instruct you
              to treat them all—all without regard to whether you only
              heard them on the [recording] or also heard the detective
              say them.

Because Detective Carter had personal knowledge of Dunlap’s interview, we hold that

the trial court did not err by allowing her to read from the transcript and clarify

portions of the recording to the jury. See N.C. Gen. Stat. § 8C-1, Rule 602; Cole, 147

N.C. App. at 645, 556 S.E.2d at 671.

                            IV.    Jury Instruction Request

        Defendant finally contends that the trial court erred by denying his request for

a special jury instruction on sequestration. N.C. Gen. Stat § 1-181 provides:

              (a) Requests for special instructions to the jury must be—
                     (1) In writing,
                     (2) Entitled in the cause, and
                     (3) Signed by counsel submitting them.
              (b) Such requests for special instructions must be
              submitted to the trial judge before the judge’s charge to the
              jury is begun. However, the judge may, in his discretion,


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             consider such requests regardless of the time they are
             made.
             (c) Written requests for special instructions shall, after
             their submission to the judge, be filed as a part of the
             record of the same.

N.C. Gen. Stat § 1-181 (2013) (emphasis added).

      In closing argument, the prosecutor argued:

                    [Defendant is] cherry-picking the best parts of
             everybody’s story after he’s had a year to think about it and
             after he’s had a year—or after he’s had the entire trial to
             listen to what everybody else would say. You’ll notice that
             our witnesses didn’t sit in here while everybody else was
             testifying.

In response, defendant made two requests for a special jury instruction on

sequestration. Defendant first orally requested an instruction before the trial court

read the jury charge, and the trial court responded that it would examine the

requested instruction when defendant submitted it in writing. This initial request

was not written and thus did not satisfy subsection (a)(1). See id. §§ 1-181(a)(1), 15A-

1231(a) (2013); State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997) (“[A]

trial court’s ruling denying requested instructions is not error where the defendant

fails to submit his request for instructions in writing.”), cert. denied, 522 U.S. 1053,

139 L. Ed. 2d 647 (1998).

      Defendant later renewed his request in writing after the jury had been charged

and had left the courtroom to begin its deliberations.       The request was for the

following instruction:


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                     In this case, all witnesses allowed by law were
              sequestered at the request of the State. These witnesses
              could not be present in court except to testify until they
              were released from their subpoenas, or to discuss the
              matter with other witnesses or observers in court.
                     By law, the defendant and lead investigator for the
              State cannot be sequestered.

This written request satisfied N.C. Gen. Stat § 1-181(a)(1), but we analyze the trial

court’s decision under subsection (b), because defendant made the written request

after the jury was charged; accordingly, we review for an abuse of discretion. See N.C.

Gen. Stat § 1-181(b). “A trial court may be reversed for an abuse of discretion only

upon a showing that its ruling was so arbitrary that it could not have been the result

of a reasoned decision.” Tellez, 200 N.C. App. at 526, 684 S.E.2d at 739.

      In denying defendant’s written request, the trial court properly exercised its

discretion:

              THE COURT: . . . . I don’t think this instruction is
              required. I don’t think this instruction goes to any issue
              that is going to be dispositive or even close to dispositive in
              this case. And I agree with [the State] that, you know,
              sometimes if the Court forgets an instruction or a pattern
              instruction in something that’s given in every case, you
              have to call the jury back in because you forgot it. But for
              a special instruction that I was not inclined to give, to call
              them back in—I do think it would give undue—

              [Defendant’s counsel]: I had only put this in, to be honest,
              Your Honor—you had already ruled, in my opinion. I just
              simply put this in because the rules of procedure say there
              has to be a copy. And so I did not—to be honest, I hadn’t
              expected you to give it. I simply wanted to put it in the
              record[.]


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Given that the requested instruction did not relate to a dispositive issue in the case,

we hold that the trial court did not abuse its discretion in denying defendant’s

request.1

                                        V.      Conclusion

       For the foregoing reasons, we hold that the trial court committed no error.

       NO ERROR.

       Judges CALABRIA and TYSON concur.




       1  We note that the prosecutor’s argument did not violate defendant’s constitutional right to
presence. See Portuondo v. Agard, 529 U.S. 61, 73, 146 L. Ed. 2d 47, 59 (2000) (“In sum, we see no
reason to depart from the practice of treating testifying defendants the same as other witnesses. A
witness’s ability to hear prior testimony and to tailor his account accordingly, and the threat that
ability presents to the integrity of the trial, are no different when it is the defendant doing the
listening. Allowing comment upon the fact that a defendant’s presence in the courtroom provides him
a unique opportunity to tailor his testimony is appropriate—and indeed, given the inability to
sequester the defendant, sometimes essential—to the central function of the trial, which is to discover
the truth.”).

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