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NO. COA11-1343 NORTH CAROLINA COURT OF APPEALS Filed: 5 June 2012 STATE OF NORTH CAROLINA v. ANDRE SHARROD SHARPLESS New Hanover County Nos. 09 CRS 63128-29

1.

Evidence -- witness testimony victim's impressions

--

personal

beliefs

--

not

The trial court did not err in a felony first-degree murder, attempted robbery with a dangerous weapon, firstdegree burglary, and assault with a deadly weapon with intent to kill inflicting serious injury case by allowing a witness to testify regarding the victims' impressions when the victim first opened the door and allegedly struggled with defendant. The witness testified regarding his own beliefs of the sequence of events that took place at the door between the victim and defendant, not the victim's impression of defendant. 2. Evidence -- hearsay -- 911 report -- anonymous phone call -- door not opened The trial court erred in a felony first-degree murder, attempted robbery with a dangerous weapon, first-degree burglary, and assault with a deadly weapon with intent to kill inflicting serious injury case by allowing the State to offer into evidence a 911 report, including the phone call of an anonymous citizen that officers should treat the third victim at the hospital, defendant, as a suspect because he had been involved in a narcotics robbery. The anonymous call was hearsay and defendant had not opened the door to the admission of the substance of the anonymous call.

NO. COA11-1343 NORTH CAROLINA COURT OF APPEALS Filed: 5 June 2012 STATE OF NORTH CAROLINA v. ANDRE SHARROD SHARPLESS Appeal by defendant from judgments entered 8 March 2011 by Judge Kenneth F. Crow in New Hanover County Superior Court. New Hanover County Nos. 09 CRS 63128-29

Heard in the Court of Appeals 3 April 2012. Attorney General Roy Cooper, by Special General Steven M. Arbogast, for the State. Deputy Attorney

Glover & Petersen, P.A., by Ann B. Petersen, for defendant appellant. McCULLOUGH, Judge. Andre convictions Sharrod of Sharpless ("defendant") murder, appeals from his

felony

first-degree

attempted

robbery

with a dangerous weapon, first-degree burglary, and assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWITKISI"). Defendant was sentenced to life without parole based on the murder conviction and received sentences of 103 to 133 months for burglary and 116 to 149 months for AWDWITKISI to run consecutively with the murder charge. For the following

reasons, we award defendant a new trial.

-2I. Background On the evening of 30 November 2009, at around 6:30 p.m., Tarell Phillips, the victim, and his friend, Kamala Dowd, were at Phillips' house on North 10th Street, Wilmington, North

Carolina, when someone knocked on the door.

The two had been

friends since childhood and were expecting two other friends, who were going to join got in up watching to answer a the football door game on Dowd

television.

Phillips

while

remained seated on the couch, with his back towards the door. Dowd testified at trial that as Phillips opened the door Dowd heard some noise, which he thought was Phillips welcoming

someone into the house. However, he then heard Phillips say, "Come on, man," which is when he stood up and turned around thinking Phillips was in danger and was questioning the person at the door. As he turned around, Dowd saw Phillips "tussling" with a man with dreadlocks who did not have a mask on. Dowd perceived

that Phillips was trying to keep the man out of the house. However, at that point, two other men, both wearing bandanas and masks over their faces, barged in. The second intruder then shot Dowd once in the stomach and when Dowd saw the shooter prepare to shoot again he raised his arms to shield himself, which

-3resulted in him getting shot in both wrists by a single shot. Dowd then fell to the floor where he lay still, unable to see anything that was going on. He heard another gunshot, at which point he got up and ran out of the house. He ran around the

corner and hid behind a shed where he called 911 to report the shooting. He then called his uncle to pick him up and transport

him to the hospital. Dowd was unsure whether he saw two or three men enter Phillips' house because at various times he mentioned the unmasked man who struggled with Phillips, and two masked men, one with a red bandana and the other with a black mask. During the break-in, Phillips ended up being shot four to five times. He managed to call 911 and was still on the phone when officers arrived. Phillips was transferred to New Hanover Regional Medical Center, where he ultimately died as a result of blood loss. Defendant testified at trial that on the morning of the murder his girlfriend had driven him to his mother's house. She

picked him up around noon and drove him to a friend's house. She also gave him one of her cell phones because the battery had died in his. While at another friend's house, defendant decided that he wanted to buy some marijuana from Phillips, also known by defendant as Rell, from whom he occasionally purchased.

-4Phillips occasionally dealt marijuana to friends for

recreational use.

Their usual procedure consisted of defendant

calling Phillips and placing an order. Then, defendant would call again when he was outside Phillips' house and Phillips would come out to make the exchange. However, on the day of the murder, because defendant's cell phone battery was dead, he could not call ahead. As a result, he just walked to Phillips' house to knock on the door. When he

got to Phillips' house, defendant noticed a van parked outside. He knocked on the door of the house and when Phillips answered he asked defendant why he had not called ahead. Phillips told

defendant to come in, at which point the two masked men rushed in, pushing defendant into Phillips. Defendant ended up being shot in his right forearm during the intrusion. After being

shot, defendant lay on the floor, not far from the front door, until the shooting stopped and he saw the man in the black mask run out the back door. At that point, he proceeded to run out

of the house to the nearby home of his friend, Kenneth Gore a/k/a "Little Rell," on North 11th Street, because he lost his girlfriend's cell phone while fleeing and could not call anyone. Gore called defendant's mother and 911 while defendant lay

bleeding on Gore's front porch.

-5Sergeant Kelvin Hargrove responded to the call to Gore's house where he found defendant on the porch. At Phillips' house, investigators recovered several bullets and casings matching a .40 caliber gun and a .38 caliber/.357 magnum gun, meaning there were two shooters. Investigators also used gunshot residue The

("GSR") kits on the hands of Phillips, Dowd, and defendant.

GSR kits did not indicate any residue on the hands of Dowd or defendant, but did indicate some on Phillips' hands, from either firing a gun or being in close proximity to the firing of one. Investigators living found. room, A finally hallway, from took and the blood first hallway swabs from the front door, was

bedroom matched

where

Phillips

swab

defendant's

blood.

Defendant gave three interviews to police, one at the hospital, and two at the police station, with his being arrested after the third interview on 3 December 2009. While in the county jail, defendant was placed in the same pod as Tige Utley. Utley had been in the jail since October 2009 on a series of charges, of which if convicted he would face a sentence greater than his life expectancy. In the first week of January 2010, Utley sent a letter to the New Hanover County District Attorney, mentioning that he had useful information

regarding the charges against defendant. He claimed that while

-6the two were in the same pod, defendant told Utley about his role in the murder, armed robbery, and home invasion. Utley sought a concession in his charges in exchange for testifying against defendant. He received a plea bargain from an assistant district attorney, but later wrote the district attorney saying that the concessions were not enough. The parties eventually reached an agreement which consolidated Utley's charges into a single judgment of 36 to 53 months in addition to any time received from three indictments for possession of heroin with intent to sell and deliver. At trial, Utley testified that he and defendant were in the recreation yard when defendant asked him what he knew about GSR testing. Utley told defendant that he was familiar with the testing, however, he could not explain the procedure at trial. Utley claimed defendant told him that he was interested in the subject because he was waiting for results. Defendant stated to Utley that he had not shot anyone, but had actually been shot. Defendant Utley. In another instance, Utley, defendant, and another inmate named Dwayne Burton, were sitting in a holding cell on 17 testified that he never had this discussion with

December 2009. Utley claimed that he overheard defendant tell

-7Burton that he needed some money and that these two guys had offered to pay defendant to knock on Phillips' door so they could gain entry. According to Utley, defendant went to

Phillips' house with two guys, one known as Hell Rell. Defendant also allegedly told Burton that he had pulled a gun on Phillips, Phillips wrestled it away from him, and the other guy reached over defendant and shot Phillips. Allegedly, defendant got some marijuana out of the robbery, but not everything that he wanted because it all happened too quickly. Defendant remembered being in the holding cell that day with Utley and Burton, but denied ever talking to the two of them. James Oxendine also testified at the trial that he had been in the holding cell with the three other men, but that he never heard defendant discuss the

shooting. Oxendine testified that the cell was so small that it was not possible to have a private conversation and that he and defendant had actually talked about defendant's attorney because he had previously been represented by her. Utley testified to a final instance, a week later, where he was seated next to defendant during visitation. Defendant was talking to his sister and Utley to his mother. Utley testified

that he heard defendant tell his sister not to worry because the GSR results showed he did not fire a gun and for her to also get

-8word to Hell Rell that everything was all right. Visitation

logs showed that defendant did meet with his sister around that time, and that Utley was not in the visitation area at the same time. The visitation logs did show that Utley and defendant were at visitation together at one point, but that was prior to the two being in been the holding to cell his that together and at had defendant that talked had

actually

talking

girlfriend the two

time. about

Defendant's

sister

testified

Christmas and defendant's girlfriend. Furthermore, defendant's sister testified that they did not discuss their cousin Titus Grady, otherwise known as Hell Rell. Also at trial, Deborah Cottle, Deputy Director of the New Hanover County 911, testified to computer generated reports from the night of the shooting. The reports included a "be on the lookout" ("BOLO") call from police, describing the suspect as a black male wearing a red hoodie or sweater with blue jeans and white tennis shoes. Cottle further testified, over objection, to information regarding a call, four and half hours later, from an anonymous citizen alerting authorities to the possibility that the third individual shot and taken to the hospital, meaning defendant, should also be considered a suspect in the shooting.

-9On returned 11 two January 2010, a New Hanover defendant County grand him jury with

indictments

against

charging

five crimes:

(1) AWDWITKISI on Dowd; (2) attempted murder of

Dowd; (3) murder of Phillips; (4) first-degree burglary of a dwelling house while it was occupied by Phillips and Dowd; and (5) robbery with a firearm of drugs and money from Phillips and Dowd. The charges were consolidated and came up for trial on 21 February 2011. At the close of evidence the State dismissed the attempted murder charge, but the charge of murder was submitted to the jury on the theory of felony murder. The jury returned

guilty verdicts on 8 March 2011, for which defendant received a sentence of life without parole on the murder charge to run consecutively burglary and with sentences charges same of and day 103 116 the to to 133 149 months months court on on the the

robbery

AWDWITKISI

charge.

The

trial

arrested

judgment on the robbery charge, but reimposed the sentence on the burglary charge. Defendant gave oral notice of appeal. II. Analysis A. Admission of Dowd's Testimony Defendant raises two issues on appeal, with his first being that the trial court erred in allowing Dowd to testify regarding Phillips' impressions when Phillips first opened the door and

-10allegedly struggled with defendant. Defendant contends that Dowd did not have direct personal knowledge of Phillips' impressions of the man at the door, as Phillips was the only person with personal knowledge of his own thoughts. We disagree. "[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion." State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000). "A trial court abuses its discretion if its determination is `manifestly unsupported by reason' and is `so arbitrary that it could not have been the result of a reasoned decision.'" State v. Lasiter, 361 N.C. 299, 301-02, 643 S.E.2d 909, 911 (2007) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). "In our review, we consider not whether we might disagree with the trial court, but whether the trial court's actions are fairly supported by the record." Id. at 302, 643 S.E.2d at 911. "Evidentiary errors are harmless unless a defendant proves that absent the error a

different result would have been reached at trial." State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001). "The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge[,]" State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671 (2001), and "`[p]ersonal knowledge is not an absolute but may consist of

-11what the witness thinks he knows from personal perception.'" State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661, 669 (2003) (quoting N.C. Gen. Stat.

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