NO.COA 07-1513 TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * *STATE OF NORTH CAROLINA,

Appellee, V. FROM WAKE COUNTY NO.06 CRS 37197 TRAVIS MCLEAN,

Defendant-Appellant,

*****************************

DEFENDANT-APPELLANT’S BRIEF

*****************************

Subject Index

TABLE OF AUTHORITIES.................................................................................iii

QUESTIONS PRESENTED...................................................................................1

STATEMENT OF CASE........................................................................................2

STATEMENT OF APPELLATE JURISDICTION.............................................4

STATEMENT OF FACTS......................................................................................4

ARGUMENT............................................................................................................9

I. THE TRIAL COURT ERRED IN OMITTING THE INSTRUCTION ON ACCIDENT AND MISTAKE FROM THE PATTERN INSTRUCTION ON INVOLUNTARY MANSLAUGHTER. ................................................................................9

II. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENT OF MR. BRAY REGARDING A PRIOR ARGUMENT WITH THE DEFENDANT, WHICH WAS NOT AN EXCITED UTTERANCE AS THE PRIOR INCIDENT OCCURRED AT LEAST A WEEK BEFORE THE CHARGED INCIDENT..............................................................................................16

CONCLUSION.......................................................................................................19

WORD COUNT.....................................................................................................20

ii

CERTIFICATE OF SERVICE............................................................................21

Appendix (Transcript Page 168-172, 392-394)

iii

TABLE OF AUTHORITIES

CASES

State v. Hames, 170 N.C. App. 312, 316, 612 S.E.2d 408, 412 (2005).............- 16 -

State v. Hearst, 356 N.C. 132, 567 S.E.2d 124 (2002)........................................- 4 -

State v. Lane, 115 N.C. App. 25, 25, 444 S.E.3d 233, 233 (1994)....................- 13 -

State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1987)..........- 17 -, - 18 -

State v. Moss, 139 N.C. App. 106, 112, 532 S.E.2d 588, 593 , review denied, 546 S.E.2d 387 (2000)............................................................................... - 10 -, - 12 -

State v. Muhammad, ___ N.C. App.___, 651 S.E.2d 569, 574 (2007)................- 9 -

State v. Phillips, 264 N.C. 508, 513, 142 S.E.2d 337, 340 (1965)..........- 10 -, - 11 -

State v. Safrit, 145 N.C. App. 541, 547, 551 S.E.2d 516, 520 (2001)..............- 17 -

State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)...........................- 17 -

State v. Tirado, 358 N.C. 551, 599, 599 S.E.2d 515, 547 (2004)........................- 9 -

State v. Turner, 330 N.C. 249, 262, 410 S.E.2d 847, 854 (1991)......................- 10 -

State v. Williams, 264 N.C. 508, 513, 142 S.E.2d 337, 340 (1965)........- 10 -, - 11 -

STATUTES

N.C. Gen. Stat. § 15A-1444 (2007)....................................................................- 4 -

N.C. Gen. Stat. § 8C-1 803(2) (2007)...............................................................- 17 -

iv

NO. COA 07-1513 TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * *STATE OF NORTH CAROLINA,

Appellee, V. FROM WAKE COUNTY NO.06 CRS 37197 TRAVIS MCLEAN,

Defendant-Appellant,

* * * * * * * * * * * * * * * *

QUESTIONS PRESENTED

1. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE INVOLUNTARY MANSLAUGHTER CHARGE THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THAT MR. BRAY DID NOT DIE BECAUSE OF ACCIDENT OR MISADVENTURE?

2.DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING THE STATE TO INTRODUCE THE HEARSAY STATEMENT UNDER THE EXCITED UTTERANCE EXCEPTION OF MR. BRAY WHEN IT CONCERNED AN ALTERCATION THAT OCCURRED TWO WEEKS BEFORE THE STATEMENT WAS MADE?

1

STATEMENT OF THE CASE

On May 1, 2006, the Defendant was arrested on a warrant for murder

(Rp. 3). On May 1, 2006, the State indicted the Defendant on the charge of

first degree murder (Rp. 5). On January 5, 2007, the Defendant filed a

request for notice of 404(b) items (Rpp. 11-14). A Motion for Reciprocal

Discovery was filed by the State on January 4, 2007 (Rpp. 15-16). On July

19, 2006, the Defendant filed request for voluntary discovery (Rpp. 17-18).

On February 9, 2007, the Defendant was arraigned and rejected a plea offer

to involuntary manslaughter (See arraignment transcript).

The trial commenced on February 12, 2007 with Judge Gessner

presiding. On February 14, 2007, the jury returned a verdict of guilty to

involuntary manslaughter (Rp. 39). On February 14, 2007, Judge Gessner

sentenced the Defendant to a 25-30 month sentence on the involuntary

manslaughter charge prior record level IV (Rpp. 42-43). The appellate

entries were signed by Judge Gessner on February 14. (Rpp. 44-45).

Counsel filed a request to extend the delivery date for the transcript which

was granted (Rp.47). The deadline to serve the record was extended to

October 23, 2007 by the Court of Appeals (Rp. 77). The Record was served

2

on October 23, 2007 (Rp. 93). The Record was settled on December 5,

2007, when the State failed to make response (Rp. 94). Record was mailed

to the Court of Appeals on December 10, 2007 (Rp. 96).

3

STATEMENT OF APPELLATE JURISDICTION

This case involves the appeal of a judgment, after a return of a guilty verdict

by the jury. The N.C. Court of Appeals has jurisdiction over this matter pursuant to

North Carolina General Statute § 15A-1444 and Rule 4 of the North Carolina Rules

of Appellate Procedure. N.C. Gen. Stat. § 15A-1444 (2007). Therefore, a direct

appeal is authorized in this case.

STATEMENT OF FACTS

Summary Incident

On June 5, 2006, the State of North Carolina indicted the Defendant, Travis

McLean, on the single charge of first degree murder for causing the death of

Kenneth Talmadge Bray on May 1, 2006 with an alleged assault that occurred on

the evening of April 30, 2006. The State alleged that the Defendant and Hassan

Gannaway assaulted Mr. Bray, which caused the death of Mr. Bray. The assault

occurred at a boarding house on 115 Chamberlain Avenue in Wake County, which

was the residence of Mr. Bray.

4

The Defendant proceeded to trial in Wake County on February 12, 2007.

The evidence presented by the State alleged that the Defendant and Mr. Bray had a

prior argument. Hassan Gannaway told the court that he was told there was a prior

incident between the Defendant and Bray in the last two weeks (Tpp. 169-170).

Angelia Gill, an acquaintance of the Defendant, testified that she was in the

presence of the Defendant on April 30, 2006. On this day, she accompanied the

Defendant to a boarding house on Chamberlain Street. While there, the Defendant

had a heated encounter on the second floor with a white male with salt and pepper

hair (Tpp. 259-261).

On April 30, 2006, an incident occurred at the boarding house between Mr.

Bray and the Defendant. However, the exact details are unclear. John Atkinson, a

resident, was downstairs preparing his dinner. He heard what sounded like a

scuffle upstairs. It sounded like a fight to Mr. Atkinson (Tp. 200). Thomas Ray

Wooten, who resided across the hall, was in the hallway when the altercation

occurred. He described the incident as a scuffle. He heard voices and noises that

sounded like a two way fight (Tpp. 238-240). He saw Mr. Bray about fifteen

minutes after the fight was finished. Mr. Bray stated that he had gotten into a fight

and his head hurt from the fight (Tp. 240). Later that night, after the Defendant

and Gannaway had left, Mr. Wooten and Mr. Goldman heard a loud thump coming

5

from Bray’s room after the Defendant had left the residence (Tpp. 232, 241). They

later investigated and found Mr. Bray on the floor next to the bed. He heard Mr.

Goldman, another resident, state that Mr. Bray was dead (Tpp. 243-46).

Dr. Clark, a forensic pathologist employed at the State of North

Carolina’s Medical Examiner’s Office, testified to his examination of the body.

During his examination, he did see evidence of brain injury. This appeared to be

caused by several blows. However, he could not determine, which blow or blows,

caused the death of Mr. Bray. He also could not determine, which blows came

from a punch and which, if any, blows came from Mr. Bray’s head hitting the floor

(Tpp. 277-289).

Randy Miller was the lead homicide detective for the Raleigh Police

Department. He related the statements that he took from the Defendant. Mr.

Mclean described the incident as follows:

Mclean stated that he and Hassan Gannaway went to 115 chamberlain St. to collect a drug debt. Bray owed both Gannaway and Mclean 25.00 for earlier purchases. Mclean had went to the Wooten’s room, while Gannaway went to Bray’s room. While in Wooten’s room Mclean overheard Gannaway sell Bray some crack. Mclean then goes into Bray’s room and demands the money that is owed. Bray told Mclean to get out of his room and got into Mclean’s face. Mclean pushed Bray and Bray came back towards Mclean. Mclean then hit him and he fell onto the bed and slid to the floor.

6

Mclean and Gannaway then leave. While walking down the hallway, Bray comes out of his room. Mclean and Gannaway are confronted walking down the stairs by the house person, who walked them outside. They were told they were not suppose to be there, Mclean and Gannaway get on their bicycles and leave (Exhibit 34, Miller typed report, p. 4, See, Tpp. 354-55).

The Defendant in the statement that he gave to Detective Miller as well as

Detective Copeland expressed remorse and stated that he did not intend to harm

Mr. Bray.

Hearsay Statement

During the testimony of Mr. Gannaway, Mr. Cummings, the prosecutor, asked the

witness what Mr. Bray said on the night of the incident about a previous incident.

Mr. Cutler objected to this on hearsay grounds. (Tpp. 169, ln. 21, 170, ln. 8). The

court overruled this objection and allowed Gannaway to testify that Ken Bray said

there was another incident two weeks ago, and he did not want to go through this

incident again. The court stated this was admissible pursuant to N.C. Rule of

Evidence 803(2) (Tpp. 168, ln. 10-17).

Jury Instructions

The Judge instructed the jury on Second Degree Murder and Involuntary

Manslaughter. When Judge Gessner charged the jury on Involuntary

Manslaughter, he omitted several portions of the Involuntary Manslaughter Pattern

7

Instruction, which is part of North Carolina Pattern Instruction 206.10. N.C. P.I.

Crim.§ 206.10 (May 2004). The court removed all reference to the criminal

negligence provisions as well as the provisions concerning the Defendant dying by

accident or misadventure. The Court removed the following portion of the

instruction:

If the victim died by accident or misadventure, that is, without wrongful purpose or criminal negligence on the part of the defendant, the defendant would not be guilty. The burden of proving accident is not on the defendant. His assertion of accident is merely a denial that he has committed any crime. The burden remains on the State to prove the defendant’s guilt beyond a reasonable doubt (Rpp. 33-34) (Tpp. 80-81).

In the charge conference, the State requested instructions that they were not

required to prove there was an intent to kill. Mr. Cutler objected to the proposed

instructions because they minimized the State’s burden of proof . Mr. Cutler

explained his concern: “…it’s confusing to me at this point, and I’m, afraid it’s

going to be confusing to the jury” (Tpp. 393-94).

8

ARGUMENT

I. THE TRIAL COURT ERRED IN OMITTING THE INSTRUCTION ON ACCIDENT AND MISTAKE FROM THE PATTERN INSTRUCTION ON INVOLUNTARY MANSLAUGHTER.

Assignment of Error 7-8, Rp. 90.

Standard of Review

The court reviews the failure of the trial to give an instruction for prejudice,

which requires the court to determine that a different result would have been

reached. State v. Muhammad, ___ N.C. App.___, 651 S.E.2d 569, 574 (2007).

Counsel for the Defendant adequately preserved this error at the charge conference

(Tpp. 392-394). If the error was not adequately preserved, counsel requests that

the court review this error under the plain error standard. See, State v. Tirado, 358

N.C. 551, 599, 599 S.E.2d 515, 547 (2004).

* * *

9

The trial court committed reversible error in failing to instruct on mistake

and accident when it instructed on Involuntary Manslaughter. Evidence presented

during the trial could be interpreted as either criminal negligence or accident. Case

law clarifies that the State must prove beyond a reasonable doubt that the death

was not caused by accident. Because the jury was not instructed on this issue,

retrial is required.

Legal Summary

Accident or mistake is not an affirmative defense to Murder or Manslaughter.

Instead, it is part of the burden proof on the charges of Murder and Involuntary

Manslaughter. State v. Phillips, 264 N.C. 508, 513, 142 S.E.2d 337, 340 (1965).

The defense of accident “is triggered in factual situations where a defendant

without premeditation, intent, or culpable negligence commits acts, which brings

about the death of another….” State v. Turner, 330 N.C. 249, 262, 410 S.E.2d

847, 854 (1991) (Quoting State v. Williams, 264 N.C. 508, 513, 142 S.E.2d 337,

340 (1965)). State v. Moss, 139 N.C. App. 106, 112, 532 S.E.2d 588, 593 , review

denied, 546 S.E.2d 387 (2000).

In State v. Williams, the court explained the application of this rule:

…testimony tending to show that the weapon was fired in a scuffle or by some other accidental means is competent

10

to rebut an intentional shooting. No burden rests on the defendant. He merely offers his evidence to refute one of the essential elements of murder in the second degree. If upon a consideration of all the testimony, including the testimony of the defendant, the jury is not satisfied beyond a reasonable doubt that the defendant intentionally killed [the] deceased, it should return a verdict of not guilty of murder in the second degree. State v. Williams, 235 N.C. 752, 753, 71 S.E.2d 138, 139 (1965).

The facts of State v. Phillips parallel the fact in the present case. The

description of a struggle in Phillips is striking similar to the struggle between the

Defendant and Mr. Bray. In the Phillips case, the Defendant had purchased a

handgun for personal safety, when her husband was away from home. 246 N.C. at

510, 142 S.E.2d at 338. One evening, she had placed the gun in her purse before

traveling to her daughter’s residence. When she left her residence, her husband

was parked in the driveway and appeared drunk. Id. The Defendant attempted to

gain control of her husband’s car keys in order to prevent him from driving drunk.

While wresting for the keys, the gun, which was still in her purse, fired. Id.

When the court instructed the jury , the judge told the jurors that the

Defendant bore the burden of proof that her husband’s death was caused by

accident or misadventure. The jury found the Defendant guilty of voluntary

manslaughter. Id. at 516, 142 S.E.2d at 343.

11

On appeal, the court ruled that the trial court had improperly instructed on

the legal theory of accident, and this improper instruction may have affected

question of whether the defendant was guilty of voluntary manslaughter,

involuntary manslaughter, or neither remaining charge. Id.

The facts of State v. Moss also are similar to the facts in the present case.

In the Moss case, the Defendant’s infant child died from a fall. 139 N.C. App. at

107, 532 S.E.2d at 590. The Defendant told the court that he had placed the child

on the bed and believed his dog may have pushed the child off of the bed. In

Moss, the trial court refused to give an instruction on accident. Id. at 114, 532

S.E.2d at 594.

On appeal, the court found this error to be harmless. However, this was

specifically because the jury convicted on Second Degree Murder. The court

reasoned that the intent necessary to convict of Second Degree Murder obviated

the necessity to give the accident instruction on the murder charge. Id. However,

the Court of Appeals conceded that had the jury convicted on manslaughter this

may have been reversible error.

12

Analysis

In the present case, the jury could have accepted two separate theories of

how Mr. Bray died where the law on accident and mistake could have been

relevant. One theory is similar to the facts of the Phillips case, and the other theory

is similar to the facts of the Moss case.

On the Phillips theory, there is competent evidence that there was a two way

fight between the Defendant and Mr. Bray as opposed to a one way attack.

Clearly, the Defendant cannot argue self defense, but he may argue the injury was

not intentional but resulted from the scuffle. Both the Williams and Phillips cases

stand for the proposition that when there is a struggle or scuffle between two

parties, the jury should at least be instructed on accident. Case law on the legal

theory of accident and misadventure frequently distinguishes scuffles from one

way attacks. See, State v. Lane, 115 N.C. App. 25, 25, 444 S.E.3d 233, 233

(1994)(Holding that an unprovoked punch that directly leads to death requires only

minimal instruction on intent and causation). Because there is credible evidence

in the present case that this was a two way attack, the jury in the present case

should have been instructed on accident.

13

The Moss case provides an additional theory that warranted an instruction on

accident or misadventure. In the Moss case, the accident instruction would have

been warranted if the jury convicted on the theory of manslaughter. In Moss, the

Defendant claimed that his child had rolled off the bed and hit the floor with his

head.

In the present case, the residents of the house consistently remembered two

altercations. The first altercation was the fight between the Defendant and Bray.

After this incident, it was clear that Mr. Bray was injured, but it was equally clear

that he was alive and was seen walking in the hallway. With the second incident,

there was a loud thud heard coming from Mr. Bray’s room after the Defendant and

Gannaway had left. The residents found the Defendant unconscious after the

second incident. Dr. Clark was unable to offer an opinion concerning what blow

caused the death of Mr. Bray. He also could not determine which blows came

from an assault and which blow or blows came from hitting the floor (Tp. 289). If

the jury had believed this was an accident that stemmed from Bray rolling off the

bed, there is a strong probability that the jury would have voted for acquittal.

However, the trial court’s instruction failed to explain that the State bore the

burden of proving this offense did not occur because of accident. Therefore,

reversal is required.

14

The trial court committed reversible error by failing to instruct on the legal

theory of accident or misadventure. The evidence presented at trial presented two

possible theories of accident that the jury could have adopted. The failure to

instruct on accident likely altered the verdict in this case. Therefore, reversal and

retrial is required.

15

II. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENT OF MR. BRAY REGARDING A PRIOR ARGUMENT WITH THE DEFENDANT, WHICH WAS NOT AN EXCITED UTTERANCE AS THE PRIOR INCIDENT OCCURRED AT LEAST A WEEK BEFORE THE CHARGED INCIDENT.

Assignments of Error 3, Rp. 87.

Standard of ReviewEvidence rulings are reviewed for abuse of discretion. State v. Hames, 170

N.C. App. 312, 316, 612 S.E.2d 408, 412 (2005). Reversal requires a finding of

prejudice to the defendant. Id.

* * *

The trial committed reversible error in allowing the use of the hearsay

statement of Mr. Bray as related by Mr. Gannaway. The prior incident referenced

in the hearsay statement occurred approximately two weeks before the statement

was given. The statement was too far removed from the incident to be considered

an excited utterance.

In North Carolina, the law is well settled on excited utterances. In order to

admit a statement under the excited utterance exception two things must be

16

established. First, there must be a sufficiently startling experience that suspends

reflective thought. If the first requirement is met, the statement must be a

“spontaneous reaction”, not one resulting from reflection or fabrication. N.C. Gen.

Stat. § 8C-1 803(2) (2007). State v. Safrit, 145 N.C. App. 541, 547, 551 S.E.2d

516, 520 (2001)(Quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841

(1985)); State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1987).

A review of the facts of the Safrit and Maness cases explains when a

statement is too remote from the original incident to be considered spontaneous. In

the Safrit case, the defendant was involved in a fight where the victim was

seriously injured. The defendant arrived home approximately thirty minutes after a

911 call for assistance was made. The defendant had fled the scene with the

assistance of a friend who drove him home in his van. Safrit 145 N.C. App. at 547,

551 S.E.2d at 521. The court ruled that the half an hour delay gave the defendant

the opportunity to make a statement that could not be considered spontaneous. The

court ruled that the statement could not be considered an excited utterance because

of the gap between the incident and the statement. Id.

In the Maness case, the court addressed the issue of the statement being too

remote under both the excited utterance and present sense impression exceptions.

In the Maness case, the Defendant made a statement to the police when he was

17

arrested on the charge. However, the arrest occurred nine days after the incident

occurred. Maness, 321 N.C. at 459, 364 S.E.2d at 351.

The court explained that the nine day delay affected both exceptions. A

presence sense impression must occur at the time that the event occurred or

“immediately thereafter.” A nine day delay cannot be considered “immediately

thereafter”. The nine day delay also prevents the statement from being considered

“spontaneous.” Id.

In the present case, the first confrontation occurred between one and two

weeks before the incident that led to the death of Mr. Bray. A two week delay

clearly cannot be considered spontaneous. The court’s ruling that this constituted

an excited utterance is clearly an error. This also amounts to a prejudicial error.

Allowing the State to discuss a prior assault caused the jury to view the Defendant

in a much more negative light than would have been the case if the evidence had

been excluded. Therefore, retrial is required.

18

CONCLUSION

The Defendant should be granted a new trial. This issue is based upon two

issues. First, the trial court committed reversible error by failing to instruct the jury

on accident. Second, the trial court committed reversible error by admitting the

excited utterance concerning the prior fight between the Defendant and Mr. Bray.

This the 22nd day of February 2008.

s/Eric A. Bach (electronically filed)

Attorney for the DefendantP.O. Box 33566

Charlotte NC 28233704-364-6580

email ebach@mindspring.com

19

Certification Of Word Count

I hereby certify the text of this brief printed in proportional Times Roman Font 14 for MS Word 12 is less than a maximum word allotment of in that the last word count run listed 3,421 words.

This the 22nd of February 2008.

Eric A. Bach

Attorney for the DefendantP.O. Box 33566

Charlotte NC 28233704-364-6580

20

Certificate Of Service

I hereby certify that a copy of the Defendant's Brief has been filed at the

N.C. Court of Appeals addressed to the Court of Appeal Post Office Box on the

below date by placing a copy in the United States Mail prepaid and duly served

upon the State by placing a copy in the United States Mail prepaid addressed as

follows:

Tom Moore Dept. of Justice (Correction Section)

PO Box 629Raleigh NC 27602

This the 22nd day of February 2008.

s/ Eric A. Bach Attorney for the Defendant

21

APPENDIX TRANSCRIPT PAGES

22