State v. Brewer

¶1concurring.

¶2I believe it was error to exclude the testimony of the Quality Mart employees, Ruby Vaughn and Joan Overby, as well as the testimony of Deputy Carpenter regarding his pursuit of a small, white Honda CRX. Since much evidence of similar import was admitted, I see no reasonable possibility that there would have been a different result at trial had this evidence been admitted as well. I therefore concur in the result reached by the majority.

¶3The excluded evidence was admissible for the same reasons that the testimony of Bobby Kye, Numa and Angie McGee was admissible and, indeed, was admitted at trial. The excluded evidence *580tended to “cast doubt” on the State’s case, State v. McElrath, 322 N.C. 1, 12, 366 S.E.2d 442, 448 (1988), and it also tended to show that someone other than defendant committed the crime. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987).

¶4State’s witness Donald Stout testified that defendant shot at the Kye, Calhoun, Cain and Curtis McGee homes from Lillian Thomas’ 1974 light blue, four-door Plymouth Valiant with vertical taillights and no third brake light in the rear window. Bobby Kye and Numa and Angie McGee testified that the shots fired at the Kye and Curtis McGee homes came from a small light-colored or white car with a sloped back, wraparound taillights, and a third brake light in the rear window.1 Kye testified that the shooting at his home occurred between 8:55 and 8:58 p.m. The McGees’ testimony indicated that the shooting at Curtis McGee’s home occurred between 9:20 and 9:40. If, as both the State and defendant seem to argue, the person who shot at the Kye and McGee homes is the person who shot at the Calhoun home, the testimony of Kye and the McGees casts doubt on Stout’s testimony that defendant was doing the shooting, and it points directly to someone other than defendant as being guilty of the Calhoun homicide.

¶5The excluded testimony is of like import and tends to corroborate the testimony of Kye and the McGees. The two Quality Mart employees, Ruby Vaughn and Joan Overby, would have testified, had they been permitted, that a man with shaggy hair who was riding in a small white or silver car with a red stripe on the side, wraparound taillights and a third brake light in the rear window arrived at the Quality Mart in Stanleyville between 9:40 and 9:55. The man came into the store intoxicated and demanded to use the phone. When refused, he behaved rudely. When asked to leave, he inquired whether they wanted to get his license plate number now or later, and said they would be reading about him in the papers the next day. He then got back in the passenger side of the car and headed in the direction of Rural Hall.

¶6The Quality Mart in Stanleyville is approximately three miles from the McGee residence, and two buildings across the road and adjacent to the Quality Mart also had shots discharged into them. Clearly, then, the incident at the Quality Mart was close temporally *581to the Kye and McGee shootings and close geographically to the sites of those shootings. The car in which the man was riding fitted the description of the car seen by Kye and the McGees. From this evidence the jury could conclude that the man seen at the Quality Mart was the man who shot at the Calhoun, Kye and McGee homes. This, consequently, is evidence tending to cast doubt on the State’s case and to show someone other than defendant committed the Calhoun homicide.

¶7The other evidence that was excluded was the testimony of Deputy Carpenter relating to a car chase that occurred shortly after the Quality Mart incident. Had he been permitted, Deputy Carpenter would have testified that he left the McGee residence at 9:58 after investigating the shooting there. He headed toward Rural Hall when he saw a small, white Honda CRX with a red stripe down the side and a third brake light in the rear window. Noting that it was similar to the car described to him by Bobby Kye thirty minutes earlier and by the McGees moments before, Deputy Carpenter turned around, activated his blue light, sounded his siren and pursued the Honda. The Honda did not respond to the blue light or siren. Deputy Carpenter continued the pursuit until his patrol car crashed in a curve about three-tenths of a mile past the McGee residence. The Honda drove out of sight up the dirt portion of Edwards Road into Stokes County.

¶8Again, Deputy Carpenter’s testimony tends to show that a car matching the description of the car observed by Kye, the McGees and the Quality Mart employees was in the area close to the time of the shootings, including the Calhoun shooting. This car fled from the deputy and did not respond to his flashing blue lights or siren. This car did not match the description of the car in which defendant was riding. A jury could reasonably conclude that this was the car from which the shots were fired at the Kye, McGee and Calhoun residences. Thus, Deputy Carpenter’s testimony also tends to cast doubt on the State’s case and points directly to the guilt of another party.

¶9The excluded testimony was clearly relevant. Rule 401 provides:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

¶10*582N.C.G.S. § 8C-1, Rule 401 (emphasis added). The use of the word “any” in the statute erects a very low relevancy threshold. “The relevance standard to be applied is relatively lax.” McElrath, 322 N.C. at 13, 366 S.E.2d at 449. “[T]he standard in criminal cases is particularly easily satisfied. ‘Any evidence calculated to throw light upon the crime charged’ should be admitted by the trial court.” Id.,quoting State v. Huffstetler, 312 N.C. 92, 104, 322 S.E.2d 110, 118, cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1984).

¶11Evidence tending to point to the guilt of another is always relevant and admissible, provided that it “does more than create an inference or conjecture in this regard. It must point directly to the guilt of the other party.” Cotton, 318 N.C. at 667, 351 S.E.2d at 279. “The admissibility of evidence of the guilt of one other than the defendant is governed now by the general principle of relevancy.” Id. at 667, 351 S.E.2d at 280.

¶12Evidence which “casts doubt upon such a fundamental part of the State’s case —namely, that defendant was in fact the perpetrator of the crime” is relevant and admissible. McElrath, 322 N.C. at 12, 366 S.E.2d at 448.

¶13As I have demonstrated, the excluded evidence both cast doubt upon the State’s case against Brewer and pointed directly to the guilt of someone else. It was, therefore, relevant and admissible under Rule 401, McElrathand Cotton.

¶14Though I believe the evidence was relevant and admissible, I do not believe its exclusion was reversible error. Defendant was able to present to the jury through the Kye and McGee testimony his theory that another person was responsible for the shootings. This testimony was based on the witnesses’ observing a car immediately after shots were fired from it. If this evidence did not raise a reasonable doubt as to defendant’s guilt in the minds of the jurors, I am relatively confident that the excluded evidence would not have succeeded in doing so. Indeed, the evidence excluded here was admitted in the companion case of State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989). Thomas, nevertheless, was found guilty of first degree murder on the theory that she, as the driver of the car, acted in concert with Brewer.