              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA 16-365

                               Filed: 6 December 2016

Cleveland County, Nos. 12 CRS 51546-48

STATE OF NORTH CAROLINA

             v.

DEVONTE SHAWMAR LYONS


      Appeal by Defendant from judgment entered 30 July 2015 by Judge Forrest D.

Bridges in Superior Court, Cleveland County. Heard in the Court of Appeals 19

September 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Sonya Calloway-
      Durham, for the State.

      Glover and Petersen, P.A., by Ann B. Petersen and James R. Glover, for
      Defendant.


      McGEE, Chief Judge.


      Devonte Shawmar Lyons (“Defendant”) appeals his convictions for first-degree

murder under the felony murder rule, attempted robbery with a dangerous weapon,

and conspiracy to commit robbery with a dangerous weapon. Defendant contends he

was prejudiced by the trial court’s failure to exercise its discretion pursuant to N.C.

Gen. Stat. § 15A-1233(a) to permit the jury to review certain witness testimony. We

find no prejudicial error.
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                                  I. Background

      The evidence at trial tended to show the following: Defendant, Aryka Roberts

(“Roberts”), Rashad Schenck (“Schenck”), and Jessica Edwards (“Edwards”) gathered

at the residence of their mutual friend, Garrett Frederick (“Frederick”), in Kings

Mountain around 6:30 p.m. on 13 March 2012. Roberts was Defendant’s girlfriend.

Schenck and Edwards were dating each other. The four of them sat in a sunroom

where they smoked marijuana and listened to music. Roberts called a “chat line”

used for “meet[ing] men [in the area] who want to talk or do other things.” Roberts

explained the chat line process at trial: “You just call and [record] a [voicemail]

greeting and either [the men] can message you or you message them.” Using the

speakerphone, Roberts began playing messages men had left for her on the chat line.

      One of the messages was from a man with a heavy foreign accent. Roberts

decided to send him a message, and she and the man had a brief conversation over

the phone making “small talk[].” Roberts told the man she lived in Kings Mountain

and asked him to meet her there. Later, when asked why the man was interested in

meeting her, Roberts testified “[she] told him for sex.”   Roberts and the caller

exchanged phone numbers. After hanging up, Defendant and Roberts decided to “rob

[the man with the accent] and get [his] money.”

      Defendant, Roberts, Schenck, and Edwards left Frederick’s residence together

around 9:00 p.m. and drove in a 1998 Toyota Camry (“the Camry”) belonging to



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Roberts to Ebenezer, a small community outside Kings Mountain. During the ten-

minute drive to Ebenezer, they discussed whether Roberts should meet the man at a

hotel, but it was ultimately decided that Roberts should meet him at 206 Putnam

Place, a vacant house where her father used to live. Along the way, they stopped at

another home and picked up Schenck’s cousin, Sheldon Thompson (“Thompson”).

Roberts was “on and off [Defendant’s cell phone]” with the man they intended to rob,

giving him driving directions to Ebenezer from Charlotte. Roberts testified that

             [t]he plan [they developed while on the way to Ebenezer]
             was for [Roberts] to go get in [the man’s] car. [Edwards]
             was going to wait in [Roberts’s] car . . . at [a neighbor’s]
             house.    [Defendant, Schenck, and Thompson] were
             supposed to hide in the bushes, come up to the car, scare
             the man and only rob him, and we [were] all supposed to
             go back to my car and leave.

Roberts “didn’t remember . . . having a conversation about who [specifically] was

going to take the money.”

      Schenck testified Defendant was supposed to get the money using a gun, and

Schenck was supposed to “watch out [from the Camry] . . . to make sure . . . nothing

happen[ed] to [Defendant].” Schenck also testified it “was not unusual for [him] to

back up [Defendant] in a prostitution situation . . . involving [Roberts].”

      They next stopped at Schenck’s grandmother’s house in Ebenezer. Roberts and

Schenck went inside and Defendant and Edwards remained in the Camry. The man

from the chat line “was calling back and forth on [Defendant’s] phone” and Edwards



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spoke to him while Roberts was inside Schenck’s grandmother’s house.          When

Schenck and Roberts returned to the car, Roberts drove “right down the road . . .

[about] a minute” and parked at the residence of her family friend, Wayne Bell

(“Bell”). Roberts spoke over the phone to the man a final time to give him specific

directions to 206 Putnam Place.

      At Bell’s house, Defendant, Roberts, Schenck and Thompson got out of the

Camry and Edwards got into the front seat.          Defendant, Roberts, Schenck and

Thompson walked through Bell’s backyard and approached the back of the house at

206 Putnam Place. Roberts went to the left of the house and the others went to the

right. Roberts could see a white Cadillac (“the Cadillac”) parked in the driveway of

206 Putnam Place. Roberts got in the Cadillac’s passenger side and the driver

introduced himself to her as Francis Munufie (“Munufie”). After talking to Munufie

briefly, Roberts got out of the Cadillac and went back behind the house, where she

spoke with Defendant, who was still with Schenck and Thompson. Roberts testified

she was “really nervous and antsy” and told Defendant that Munufie “was . . .

touching [her] uncomfortably, and [she] wanted for it to be over.” She asked “what

the holdup was.” Defendant told Roberts: “Shut up. We got this. We’re going to do

this. We’re coming.” Roberts had not seen Defendant with a weapon at that point.

      Roberts returned to the Cadillac. Defendant came up to the driver’s side door

and “knocked on the window with a gun.” Defendant told Munufie to get out of the



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Cadillac and tried to open the door, but it was locked. Roberts unlocked the door from

inside. Roberts testified she immediately got out and ran to the back of 206 Putnam

Place and then to the Camry parked in Bell’s driveway. She heard four or five

gunshots as she ran.

      Schenck testified that Munufie opened the door and Defendant began

“reach[ing] for [Munufie’s] pockets” while Munufie was still sitting in the Cadillac.

Defendant told Munufie to get out of the car and when Munufie did, “[Defendant] had

the gun in [Munufie’s] face telling him to give [Defendant] the money.” Munufie

motioned as if he was going to pull something out of his back pocket, but brought his

hand up empty. Defendant was still holding the gun in Munufie’s face, demanding

money, and Munufie “slapped [at] the gun.” Schenck testified that after Munufie

slapped the gun a third time, Defendant shot Munufie in his left upper arm. Schenck,

Roberts, and Thompson then ran back to the Camry. As he was running, Schenck

heard “multiple [gun] shots.” Edwards testified that, while waiting in the Camry,

she “heard five or six gunshots. And less than a minute later [Schenck, Thompson,

and Roberts] were in the back seat [of the Camry] and [Roberts] told me to go.”

      According to Roberts, Defendant returned to the Camry last, and “jump[ed] in

the front seat” as Edwards was pulling out of Bell’s driveway. Edwards drove away,

but “ran off the side of the road at one point because [she] was shook [up].” Edwards

testified “[e]verybody was frantic.   [Roberts] was like, ‘What happened?         What



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happened? Did you kill him?’ And [Defendant] said, ‘I don’t know. I shot him in the

face.’ And that’s – I think at that point I swerved off the road. [Defendant] said, ‘I’m

sorry. I’m sorry.’” Schenck testified Roberts was “screaming [at Defendant] . . .

[asking] did [Defendant] shoot the dude.” According to Schenck, Defendant did not

respond at first, but eventually said, “I had to do it.” Roberts testified she “was . . .

crying really bad and . . . [asking Defendant] ‘What happened? What happened?’”

and that Defendant simply responded, “I’m sorry.”

      Roberts switched seats with Edwards and began driving. She drove to the

apartment of Schenck’s cousin, Angelica Adams (“Adams”), in Gastonia. At Adams’s

apartment, the group sat in the living room smoking marijuana.             According to

Roberts, Defendant asked Adams for “[s]ome Comet or some bleach or some kind of

stuff to clean with” and went to the bathroom. Around 3:00 a.m., Adams drove

Edwards to her home in Galilee and drove Schenck and Thompson back to Ebenezer.

      Roberts and Defendant got in the Camry parked outside Adams’s apartment

and talked for about twenty minutes. Roberts later told police that, after Adams and

the others left, Roberts saw Defendant wrap a gun in a yellow t-shirt and hide it

under some stairs at the apartment complex. Around 6:00 a.m., Defendant and

Roberts went to Defendant’s mother’s apartment in Kings Mountain. They fell asleep

briefly, but were awakened by police knocking on the door of the apartment. Two

officers spoke with Roberts and Defendant separately.            Roberts testified she



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“[b]asically gave [the officers] the runaround, a bunch of lies, jumbled up lies.” Before

leaving, the officers told Roberts they wanted to talk to her again. They also seized

the Camry, saying it had been seen near 206 Putnam Place the previous night.

       Deputy Jimmy Ellis (“Deputy Ellis”) of the Cleveland County Sheriff’s Office

(“CCSO”) testified he responded to a 911 call around 10:55 p.m. on 13 March 2012

reporting five or six gun shots fired near Putnam Place in Ebenezer. Deputy Ellis

observed a white Cadillac parked in the driveway at 206 Putnam Place. The vehicle’s

lights were on, and there was music blaring loudly from inside. As Deputy Ellis

approached the Cadillac, he saw the driver’s side door was open and found a man,

later identified as Francis Munufie, lying on his back with an apparent gunshot

wound to his head. Deputy Ellis radioed a request for EMS and backup deputies. A

number of officers arrived and began canvassing the neighborhood. Investigators

spoke with Bell, who informed them he had seen Roberts and several others in her

Camry parked nearby earlier that evening. Police found four spent nine millimeter

gun shell casings in the grass and driveway ten to fifteen feet from Munufie’s body.1

       A medical examiner performed an autopsy on Munufie’s body on 14 March

2012, and determined Munufie suffered gunshot wounds to the left side of his head,

to his upper right, and “graze wounds” to the right side of his abdomen. The examiner



       1 Crime scene investigators observed three spent shell casings on the night of the murder
before Munufie’s body was removed from the scene. A fourth cartridge was found by a detective upon
returning to 206 Putnam Place around 4:00 p.m. the next day.

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collected an intact bullet from behind Munufie’s right collarbone, several small bullet

fragments from Munufie’s arm, and a small bullet fragment located near Munufie’s

jawbone. The bullet and bullet fragments were packaged as evidence and returned

to CCSO. CCSO investigators also discovered a bullet fragment lodged in the interior

of Munufie’s Cadillac when the vehicle was processed for fingerprints on 16 March

2012. The shell casings, bullet and bullet fragments, and a subsequently recovered

firearm were all sealed and delivered to the State Bureau of Investigation’s Western

Lab by CCSO Detective Gary Lee for ballistics testing.

      Throughout the week following Munufie’s death, investigators interviewed

Defendant, Roberts, Schenck, Thompson, and Edwards.               Roberts submitted

fingerprint and DNA samples on 20 March 2012. On the way to the Law Enforcement

Center for fingerprinting, Roberts told detectives she had been involved with the

attempted robbery of Munufie. Roberts also suggested investigators should search

Adams’s apartment building in Gastonia for the gun used during the robbery attempt.

The same day, CCSO Sergeant Mark Craig (“Sgt. Craig”) went to Adams’s apartment,

where he found a nine millimeter, semi-automatic handgun wrapped in a yellow t-

shirt underneath a staircase on the outside of the building. Roberts later agreed to

speak to Defendant while wearing a hidden audio recording device. She testified

Defendant was “real standoffish” during the conversation and “kept telling her to

shut the fuck up, and [saying] he didn’t want to talk about [the robbery attempt].”



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      CCSO Detective Jessica Woosley (“Det. Woosley”) testified Defendant was

arrested on 23 March 2012 on charges of first-degree murder, attempted robbery with

a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon.

Roberts, Schenck, Edwards, and Thompson were also arrested on the same charges

and later entered into plea agreements with the State.          A grand jury indicted

Defendant on 9 April 2012 for first-degree murder, robbery with a dangerous weapon,

and conspiracy to commit robbery with a dangerous weapon.

      Roberts, Schenck, Edwards, and Thompson testified for the State at

Defendant’s trial on 13 July 2015. Deborah Chancey (“Chancey”), a firearms analyst

at the State Crime Lab, testified regarding her analysis of the four fired shell casings,

five bullets and/or bullet fragments, and handgun submitted to the Crime Lab for

testing.    It was Chancey’s opinion that the shell casings exhibited “a sufficient

amount of agreement” with casings test-fired from the handgun received by the Crime

Lab. However, Chancey also testified that although the bullet and bullet fragments

received by the Crime Lab “exhibited some agreement of detail with the test-fires,

. . . the amount of agreement was not sufficient to identify [them] to any particular

firearm.”

      Erin Ermish (“Ermish”), a DNA analyst at the State Crime Lab, testified about

forensic testing she performed on a number of items of evidence in the case, including

DNA swabbings from the exterior driver’s side door handle of Munufie’s Cadillac; the



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gun recovered from Adams’s apartment; and the yellow t-shirt that had been wrapped

around the gun. On cross-examination, Ermish testified, “For any of the items that

I tested, I did not get a match between [Defendant’s] [DNA] profile and the DNA

[detected on the item].” Defendant did not testify or present any additional evidence.

      At the close of the evidence, but prior to closing arguments, the trial court

instructed the jury:

             As jurors you are often referred to as the fact finders, which
             simply means that it’s up to you to find the true facts in
             this case from the evidence according to what your
             recollection of the evidence is. When you go back and start
             deliberating, if six of you say, Well, I remember this
             witness says things this way and the other six of you say
             No, I don’t remember it that way, . . . you don’t have the
             option of saying, Well, let’s go ask the judge and let the
             judge tell us what did that witness really say. Because if
             you ask that question, my response is going to be, That’s
             part of your job, to figure it out and to make that
             determination based on your recollection and not what I
             say the evidence is, what [the lawyers] say the evidence is,
             but what you say the evidence is. That’s why you’ve been
             listening so carefully, so that you can determine the true
             facts from the evidence as you find the evidence to be.

After closing arguments, the trial court further instructed the jury, “If you need to

review any exhibits or if you have any questions, please write out such request and

. . . I will bring you back into the courtroom to address any such questions or

requests.”   Defendant was convicted on 30 July 2015 of first-degree felony murder,




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attempted robbery with a dangerous weapon,2 and conspiracy to commit robbery with

a dangerous weapon.          The trial court arrested judgment on the conviction for

attempted robbery with a dangerous weapon and consolidated the remaining

convictions into a single judgment. Defendant was sentenced to an active term of life

in prison without parole. Defendant gave notice of appeal in open court.

                   II. Jury Instructions Regarding Witness Testimony

                                    A. Standard of Review

       Defendant contends the trial court violated a statutory mandate requiring trial

courts to exercise discretion in considering jury requests to review witness testimony

or other evidence. Specifically, N.C. Gen. Stat. § 15A-1233(a) provides in part:

               If the jury after retiring for deliberation requests a review
               of certain testimony or other evidence, the jurors must be
               conducted to the courtroom. The judge in his discretion,
               after notice to the prosecutor and defendant, may direct
               that requested parts of the testimony be read to the jury
               and may permit the jury to reexamine in open court the
               requested materials admitted into evidence.

N.C. Gen. Stat. § 15A-1233(a) (2015). According to Defendant, certain comments

made by the trial court to the jury prior to closing arguments demonstrate the court’s

failure to exercise discretion as directed by the statute. Defendant’s argument is

reviewable despite the fact that he did not raise this objection at trial. See State v.



       2  During the charge conference, following an argument by defense counsel that the robbery
was incomplete, the trial court dismissed the charge of robbery with a dangerous weapon and replaced
it with attempted robbery.

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Starr, 365 N.C. 314, 317, 718 S.E.2d 362, 365 (2011) (“When a trial court violates

[N.C.G.S. § 15A-1233(a)] by denying the jury’s request . . . upon the ground that the

trial court has no power to grant the motion in its discretion, the ruling is reviewable,

and the alleged error is preserved by law even when the defendant fails to object.”

(citation and internal quotation marks omitted)). “Alleged violation of a statutory

mandate presents a question of law, which we review de novo on appeal.” Dion v.

Batten, ___ N.C. App. ___, ___, 790 S.E.2d 844, 852, 2016 WL 4088417 at *8 (2016).

      A trial court’s failure to exercise its discretion under N.C.G.S. § 15A-1233(a)

warrants a new trial only where the error was prejudicial. See State v. Johnson, 164

N.C. App. 1, 20, 595 S.E.2d 176, 187 (2004). Accordingly, to prevail in the present

appeal, Defendant must show not only a failure by the trial court to exercise its

discretion but also “a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at [his] trial[.]” See N.C. Gen.

Stat. § 15A-1443(a) (2015); State v. Hatfield, 225 N.C. App. 765, 769, 738 S.E.2d 236,

239 (2013).

      As this Court recently held upon its review of relevant case law,

              a trial court’s error in failing to exercise its discretion in
              denying a jury’s request to review testimony constitutes
              prejudicial error when the requested testimony (1) is
              ‘material to the determination of [a] defendant’s guilt or
              innocence’; and (2) involves ‘issues of some confusion or
              contradiction’ such that the jury would want to review this
              evidence to fully understand it.



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State v. Chapman, ___ N.C. App. ___, ___, 781 S.E.2d 320, 327 (2016) (quoting State

v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 377 (1997)).

                                        B. Analysis

                1. Exercise of Discretion Under N.C.G.S. § 15A-1233(a)

       Our Supreme Court has observed that N.C.G.S. § 15A-1233(a) codifies “the

long-standing common law rule that the decision whether to grant or refuse a request

by the jury for a restatement of the evidence lies within the discretion of the trial

court.” State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999). It is error for

a trial court to make statements that, even considered contextually, “suggest[] the

trial court [does] not have discretion to grant the jury’s request [to review witness

testimony].” See Hatfield, 225 N.C. App. at 771, 738 S.E.2d at 240. For example, a

trial court fails to exercise its discretion to deny a jury’s request to review witness

testimony by responding that a transcript is “not available,” see State v. Lang, 301

N.C. 508, 511, 272 S.E.2d 123, 125 (1980), or that the court lacks “the ability” to

present the transcript to the jury, see Barrow, 350 N.C. at 648, 517 S.E.2d at 379.

See also Johnson, 346 N.C. at 124, 484 S.E.2d at 376 (holding trial court failed to

exercise its discretion to grant jury’s request where “[t]he trial court told the jury, ‘I’ll

need to instruct you that we will not be able to replay or review the testimony for

you.” (emphases in original)); Hatfield, 225 N.C. App. at 771, 738 S.E.2d at 240

(holding trial court failed to exercise its discretion in considering jury’s request where,



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after jury requested review of witness testimony, “the trial court simply told the jury,

‘[w]e can’t do that.’”); State v. Thompkins, 83 N.C. App. 42, 45, 348 S.E.2d 605, 607

(1986) (holding trial court failed to exercise its discretion in denying jury request to

rehear testimony where the trial court told the jury, “[I]t is not possible to arrange

that. . . . I’m sorry that there is no way I can accommodate that request.”).

      In the present case, the trial court failed to exercise its discretion to grant or

deny a request by the jury to review witness testimony. Contrary to the State’s

contention that the trial court merely made it “clear [to the jurors] that if they asked

him for his interpretation [of witness testimony],” the judge would instruct them to

“make that determination based on [their own] recollection[s],” the court did not

inform the jury it would refuse to interpret the meaning of any particular testimony

or “recapitulate the facts” of the case. Rather, the court made comments prior to

closing arguments that suggested it would be futile for the jury to request to review

witness testimony whatsoever:

             When you go back and start deliberating, if six of you say,
             Well, I remember this witness says things this way and the
             other six of you say, No, I don’t remember it that way . . .
             you don’t have the option of saying, Well, let’s go ask the
             judge and let the judge tell us what did that witness really
             say. Because if you ask that question, my response it going
             to be, That’s part of your job, to figure it out and to make
             that determination based on your recollection[.]

Although the trial court’s surrounding comments may have emphasized the jury’s

fact-finding role, its unequivocal statement that jurors “[would not] have the option,”


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during deliberations, to ask the court “what . . . [a] witness really [said]” suggested

the court lacked the ability to even consider such a request. This was error. See State

v. Long, 196 N.C. App. 22, 40, 674 S.E.2d 696, 706 (2009) (citing “cases in which our

courts have concluded that although the trial court admonished the jury to rely upon

their recollections, the trial court did not exercise its discretion because of

accompanying language which indicated the trial court did not believe it had the

discretion to grant the request.” (citation and internal quotation marks omitted)); see

also Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187 (“While [§ 1233(a)] refers solely

to requests made by the jury for review of certain testimony or evidence, we

nonetheless find that the purpose and intent of the statute are violated . . . [where]

the trial court’s pretrial comments could have foreclosed the jury from making a

request for such testimony or evidence. Thus, we find error even without a request

by the jury.” (emphasis added)).

                                   2. Prejudicial Error

      Even when a trial court fails to exercise its discretion to grant or deny a jury’s

request to review evidence, a defendant must demonstrate he was prejudiced by the

trial court’s failure to exercise discretion. See N.C.G.S. § 15A-1443(a) (providing in

part that “[t]he burden of showing . . . prejudice . . . is upon the defendant.”). This

Court has held it is not necessarily prejudicial error to preemptively deny a jury an

opportunity to request to review witness testimony even where “a [defendant’s]



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conviction hinges in large part on the credibility of an alleged accomplice who testifies

at trial[.]” Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187. The defendant must

show that certain testimony involved issues of some confusion and contradiction such

that it is likely a jury would want to review the testimony. See id. (citation and

internal quotation marks omitted).

       This Court has also distinguished “cases where material evidence was

requested [by the jury], [as opposed to] cases where the evidence requested was not

determinative of guilt or innocence.” Long, 196 N.C. App. at 40, 674 S.E.2d at 707

(citations omitted) (emphases added). We thus consider whether, in the present case,

Defendant has identified specific witness testimony involving issues of such confusion

and contradiction that the jury would have likely wanted to review it or that was

material to the determination of Defendant’s guilt or innocence. We conclude he has

not.

       Defendant alleges he was prejudiced by the trial court’s failure to exercise its

discretion because “[t]he only evidence linking [Defendant] to the homicide” came

from four accomplice witnesses who “gave conflicting testimony about [1] the alleged

plan to commit a robbery and how and when it developed[;] . . . [2] the details of what

happened during the robbery attempt[;] . . . [3] what Defendant . . . allegedly said

during the drive to Gastonia[;] and . . . [4] what allegedly happened at the apartment

of [Adams] in Gastonia.” As Defendant bears the burden of showing prejudice, we



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limit our review to the specific areas of purportedly “conflicting [witness] testimony”

Defendant identifies. We address each in turn.

                      a. The alleged plan to commit a robbery

      Defendant first contends that Roberts, Schenck, and Edwards “gave

contradictory testimony about the alleged discussions prior to the homicide

concerning the plan to rob [Munufie after] lur[ing him] to the scene by [Roberts]

through the chat line connection[.]” Beyond this general assertion, Defendant does

not point to any specific testimony by the individual witnesses which he characterizes

as “conflicting” on this subject. Our review of the record indicates that, in fact, the

accomplice witnesses gave largely consistent accounts of the planning stage leading

up to the attempted robbery.     For example, Roberts, Schenck, and Edwards all

testified that, while they were at Frederick’s house, Roberts was talking on the chat

line in order to select a person to rob. Roberts, Schenck, and Edwards all testified

the original plan was to lure Munufie to a hotel, but after group discussion, they

settled on 206 Putnam Place. It was undisputed that Roberts gave Munufie driving

directions to Kings Mountain and later to Putnam Place specifically. Roberts testified

that, after picking up Thompson in Ebenezer, the plan that emerged

             was for [Roberts] to go get in [Munufie’s] car. [Edwards]
             was going to wait . . . in the Camry . . . . [Defendant,
             Schenck, and Thompson] were supposed to hide in the
             bushes [behind 206 Putnam Place], come up to the
             [Cadillac], scare [Munufie] and only rob him, and we [were]
             all supposed to go back to [the Camry] and leave.


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Roberts testified she could not recall whether there was any discussion of who would

actually take Munufie’s money. Schenck also testified that the plan was for Roberts

to get in the Cadillac, but that Defendant was supposed to “get the money . . . with a

gun.” However, both Roberts and Schenck testified they did not see Defendant with

a gun during the planning stage.       Edwards testified that “[t]he plan was that

[Munufie would] come down [to Kings Mountain] and [Roberts] was going to get in

the car with him and then he was going to get robbed, I guess.” We are unable to

discern any material contradictions among the accomplice witnesses’ testimony on

this issue, and Defendant has not pointed to any specific conflicts in support of his

argument.

            b. The details of what happened during the robbery attempt

      Defendant next argues the accomplice witnesses “gave conflicting testimony

about the details of what happened during the robbery attempt.”           Specifically,

Defendant contends that “[t]he testimony of [Schenck] and [Roberts] that [Defendant]

was seen holding a gun when he allegedly encountered . . . Munufie at the driver’s

side door of [the] Cadillac was both confusing and contradicted.” Defendant offers

two reasons why the testimony of Schenck and Roberts on this point was “confusing

and contradicted.” First, Defendant maintains the evidence showed that during the

attempted robbery, Defendant “was wearing loose-waisted pajama pants, the kind of

clothing . . . unlikely to provide a means for holding and concealing a . . . firearm.”


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Second, Defendant notes that, while Schenck and Roberts both testified Defendant

touched the driver’s side door handle of Munufie’s Cadillac, Defendant’s DNA was not

discovered anywhere on the vehicle’s exterior.

      The factual details Defendant identifies did not contradict the testimony of

Schenck and Roberts about their own observations of Defendant holding a gun during

the robbery attempt. Although Schenck testified Defendant was wearing “pajama

pants” during the attempted robbery, he did not testify they were “loose-waisted.”

Schenck also did not testify that he saw Defendant pull the gun from his waistband;

he testified only that, by the time Defendant approached the driver’s side door of the

Cadillac, “[Defendant] had pulled out a gun[.]” Roberts testified that, when she got

out of the Cadillac the first time and went to the back of the house to ask Defendant

what was taking so long, she did not see Defendant with a gun. Roberts then returned

to the Cadillac, with her back to Defendant as he approached the driver’s side door,

and testified she could only see “shadows out of [her] peripheral view.” Like Schenck,

Roberts testified that Defendant “knocked on the [driver’s side] window with a gun.”

Roberts testified she did not actually see a gun in Defendant’s possession “[until] he

knocked on the window with the gun.” Neither witness testified about when or how

Defendant obtained the gun; where he concealed it on his person, if at all; or when he

first pulled out the gun.




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      Roberts and Schenck both testified Defendant tried to open the driver’s side

door of Munufie’s Cadillac. Thus, the State offered consistent testimony on this issue

from multiple eyewitnesses to the actual robbery attempt, and Defendant did not

offer contradictory testimony. Cf. Hatfield, 225 N.C. App at 773, 738 S.E.2d at 241

(holding trial court’s failure to exercise its discretion under N.C.G.S. § 15A-1233(a)

was prejudicial where requested testimony was that of the sole eyewitness to the

defendant’s alleged crimes, and defendant directly contradicted the witness’s

testimony at trial.).   The jury heard expert testimony regarding the lack of

Defendant’s DNA on Munufie’s Cadillac, against which it could weigh the testimony

of Roberts and Schenck that Defendant in fact touched the Cadillac’s door handle.

Defendant has failed to show some confusion or contradiction that would make it

likely that the jury would have wanted to review the testimony of Roberts or Schenck

on this issue.

           c. Defendant’s alleged statements during the drive to Gastonia

      Defendant next contends that Roberts, Schenck, and Edwards “gave

contradictory testimony about the statements allegedly made by [Defendant] during

the drive to Gastonia after the homicide.” Once again, Defendant does not direct us

to specific testimony by the individual witnesses.

      Thompson testified that, during the car ride to Gastonia, “[n]obody said

anything.” Thompson was the only accomplice witness to deny ever having gone to



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206 Putnam Place on 13 March 2012. He also testified he had a “bad memory” and

remembered very little about the night of the attempted robbery or the days that

followed. However, Roberts, Schenck, and Edwards all testified about statements

Defendant made during the drive. The statements attributed to Defendant by these

witnesses, although not identical, were not inconsistent. Roberts testified she “was

. . . crying really bad and [asking Defendant], ‘What happened? What happened?’

. . . [and after a couple of minutes Defendant] just said, ‘I’m sorry.’” Roberts also

testified that she said, “Damn, we’re going to get in trouble,” and that Defendant

replied, “No, we ain’t.” According to Schenck, Roberts

             kept asking [Defendant] why – “Did you shoot him? Why
             did you shoot him? How many times did you shoot him?”
             [Defendant] wasn’t really saying nothing [sic] [at first]. . . .
             And while we [were] driving [Roberts] just kept asking
             [Defendant] like, “Why did you do it?” And [Defendant]
             was just like, “I had to do it.”

Edwards testified that, during the drive to Gastonia, “[e]verybody was frantic.

[Roberts] was like, ‘What happened? What happened? Did you kill him? And

[Defendant] said, ‘I don’t know. I shot him in the face.’ . . . [Defendant] said, ‘I’m

sorry. I’m sorry.’”

      This testimony from Roberts, Schenck, and Edwards about Defendant’s alleged

statements during the drive to Gastonia was mutually reinforcing, not mutually

exclusive. Each witness described a similar sequence of events: Roberts pressing

Defendant to explain what happened; Defendant’s initial silence; and an eventual


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statement by Defendant suggesting some level of culpability. Defendant has not

shown any direct contradictions among the witness accounts. Further, as the State

presented testimony from multiple eyewitnesses to the actual robbery attempt, the

statements Defendant allegedly made after the fact were not material to the

determination of defendant’s guilt or innocence.

          d. What allegedly happened at Adams’s apartment in Gastonia

      Finally, Defendant contends he was prejudiced by the trial court’s error

because the accomplice witnesses “gave conflicting testimony about what allegedly

happened at the apartment of Angelica Adams in Gastonia.” Defendant makes this

assertion generally but, in arguing prejudice, does not point to specific examples of

“conflicting [witness] testimony” about what transpired at Adams’s apartment. We

find nothing in the relevant witness testimony on this topic that was either material

to a determination of Defendant’s guilt or innocence or involved issues of such

confusion or contradiction that the jury would likely have needed to review the

testimony in order to understand it.

      Adams and the four accomplice witnesses testified about what happened while

they were at the apartment, and certain details differed among the witnesses.

Schenck, Edwards, and Thompson all testified that, at some point while they were at

Adams’s apartment, Defendant and the four accomplices went outside and talked.

Schenck and Edwards testified that while they were outside, they discussed possible



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alibis. Thompson testified that they didn’t “talk[] about too much of [anything]” while

outside the apartment. Adams testified that, “[a]s far as [she could] remember,” the

group remained in her apartment for their entire visit and the only person who left

her presence was Defendant, who used a bathroom in the apartment.              Roberts

testified that the group was only at the apartment for approximately ten minutes

before Adams drove Schenck, Edwards, and Thompson home; Edwards testified the

group stayed for approximately one hour; and Adams testified the group stayed for

several hours.

      Roberts was the only one of the four accomplice witnesses who testified

Defendant used the bathroom at Adams’s apartment. Roberts was also the only

witness to testify that Defendant asked Adams for some cleaning products before

going into the bathroom. Adams testified that Defendant used her bathroom, and

that when she returned home later she found “dirt, [and] black stuff all over [the

bathroom] sink.” Adams and all four accomplice witnesses testified consistently that,

at some point, Adams drove Schenck, Edwards, and Thompson home, leaving Roberts

and Defendant alone together. No witness testified he or she saw Defendant with a

gun while the group was together inside or outside Adams’s apartment. Thus, there

was no “conflicting” witness testimony on any of these issues.

      Roberts testified that, after the others left, she and Defendant sat in the Camry

talking for approximately twenty minutes. According to Roberts, she again asked



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Defendant what happened during the attempted robbery, and Defendant replied,

“Sorry, I had to.” Roberts testified that, while they were still sitting in the car, she

saw Defendant wrap a gun in a t-shirt and then go “hide it up under the [apartment]

stairs.” Although Roberts was the only eyewitness to testify about Defendant hiding

a gun at Adams’s apartment after the attempted robbery, Defendant was not

prejudiced by the jury’s lack of opportunity to review that specific testimony.

        Roberts’s testimony was corroborated by several investigating officers who

testified at trial. Det. Woosley testified Roberts told investigating officers they might

find the gun at Adams’s apartment on 20 March 2012.3 Det. Woosley testified she

relayed that information to other CCSO officers who then acted upon it. CCSO

Lieutenant Mark Craig (“Lt. Craig”) testified he went to Adams’s apartment on 20

March 2012 “[t]o look for a yellow shirt and a gun . . . [after] receiv[ing] a call from

[his CCSO] captain[.]” CCSO Officer John Kaiser (“Officer Kaiser”) testified he was

with Lt. Craig on 20 March 2012 when Lt. Craig received a call indicating they should

search Adams’s apartment. Officer Kaiser testified they “were looking for a yellow

cloth or [t]-shirt. And the information we had was that there would be a gun inside

this yellow cloth or [t]-shirt. That’s what we were looking for.” Upon arriving at




        3 The jury also heard an audio recording of portions of Roberts’s 20 March 2012 interview with
Det. Woosley and CCSO Detective Amy Stroupe. The State offered the recording into evidence as a
prior consistent statement, and the trial court received it “for the purposes [sic] of corroboration and
only for that purpose.”


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Adams’s apartment complex, Lt. Craig immediately “noticed something yellow under

a staircase. And I was there to retrieve something yellow and . . . thought surely it

couldn’t be this easy.” Taken together, these officers’ testimony established that,

based on information received from Roberts, CCSO officers found a gun at Adams’s

apartment wrapped in a yellow t-shirt and placed beneath a staircase, consistent with

Roberts’s eyewitness testimony.

      Additionally, Roberts’s testimony about Defendant hiding a gun at Adams’s

apartment was not the only evidence linking Defendant to the crime of attempted

robbery. Cf. Hatfield, 225 N.C. App. at 772, 738 S.E.2d at 241 (“Our Supreme Court

has previously held that a jury is likely to want to review testimony that is the only

evidence directly linking [a] defendant to the alleged crimes.” (citation and internal

quotation marks omitted)).    Instead, Roberts’s testimony was the only evidence

linking Defendant to the subsequent possession of a gun possibly used in the robbery

attempt. Both Schenck and Roberts testified they saw Defendant committing the

attempted robbery. Cf. Thompkins, 83 N.C. App. at 46, 348 S.E.2d at 607 (finding

trial court’s failure to exercise its discretion was prejudicial where “[t]he jury

requested a review of the testimony of . . . the only witness to identify defendant as

the perpetrator. Whether the jury fully understood [that witness’s] testimony was

material to the determination of defendant’s guilt or innocence.”) Accordingly, we

cannot conclude Roberts’s testimony about Defendant hiding a gun at the apartment



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complex was “determinative of [Defendant’s] guilt or innocence.” See Long, 196 N.C.

App. at 40, 674 S.E.2d at 707.

      Defendant has failed to identify any particular testimony by the accomplice

witnesses which, if reviewed by the jury, suggests “a reasonable possibility . . . [of] a

different result . . . at [Defendant’s] trial[.]” See N.C.G.S. § 15A-1443(a). Accordingly,

we find Defendant received a trial free from prejudicial error.

      NO PREJUDICIAL ERROR.

      Judges STROUD and INMAN concur.




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