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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1465 NORTH CAROLINA COURT OF APPEALS Filed: 2 January 2007 STATE OF NORTH CAROLINA v. DERRICK LYNN HENDRICKS Appeal by Defendant from judgments dated 17 December 2004 by Judge Michael E. Helms in Superior Court, Guilford County. in the Court of Appeals 10 October 2006. Attorney General Roy Cooper, by Special General Daniel S. Johnson, for the State. Deputy Attorney Heard Guilford County Nos. 03CRS24477; 03CRS86195

Joseph E. Zeszotarski, Jr. for Defendant-Appellant. McGEE, Judge. Derrick Lynn Hendricks (Defendant) was convicted on 17

December 2004 of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The

trial court sentenced Defendant to a term of 282 months to 348 months in prison on the attempted murder charge. The trial court

sentenced Defendant to a consecutive term of 151 months to 191 months in prison on the assault charge. Defendant appeals.

At trial, Perry Barrino (Mr. Barrino) testified that he was a long-distance bus driver and that he was at the Paradise Restaurant (the restaurant) in Greensboro on 14 March 2003. Mr. Barrino was

-2wearing his bus driver uniform, which looked similar to a police uniform. Mr. Barrino saw Defendant, who had dreadlocks, having an

altercation with the owner of the restaurant, Alwyn Gentles (Mr. Gentles). Barrino When Defendant saw Mr. Barrino, Defendant called Mr. which is slang for police, and said that

"Babylon,"

"Babylon must die." touched his shoulder. from his back pocket.

Defendant began shouting at Mr. Barrino and Defendant then grabbed a switchblade knife Mr. Barrino managed to take the knife away

from Defendant and dragged Defendant to the door of the restaurant. Defendant left the restaurant but, shortly thereafter, walked back into the restaurant. Mr. Gentles got a gun, pointed the gun at Defendant looked at Mr. I'm going to leave. But

Defendant, and told Defendant to leave. Gentles and said, "I'll tell you what. I'm coming back to get you."

Defendant left the restaurant.

Janette Whitner (Ms. Whitner) testified that in March 2003 she owned a clothing store next to the restaurant. Ms. Whitner

testified that on 14 March 2003, she saw Mr. Gentles and Mr. Barrino struggling with Defendant, who had long dreadlocks and was holding a knife. After the altercation, Ms. Whitner saw Defendant

leave the restaurant and heard him say that "somebody's going to die today." Mr. Gentles testified that he owned the restaurant and that prior to 14 March 2003, Defendant had been a regular customer at the restaurant for about two years. Mr. Gentles testified that on

14 March 2003, Defendant got involved in an argument with Mr. Barrino and called Mr. Barrino "Babylon." While Mr. Gentles was

-3preparing food in the back of the restaurant, he heard people fighting in the restaurant. Mr. Gentles came out of the kitchen Mr.

and saw Mr. Barrino fighting with Defendant, who had a knife.

Barrino removed Defendant from the restaurant and Defendant left. Mr. Gentles testified that after this altercation, his

employee, Linval White (Mr. White), arrived at the restaurant for work. Mr. Gentles was in the back of the restaurant with Mr. White He went to the

when he heard a customer enter the restaurant.

front of the restaurant, and while he was speaking with the customer, Defendant opened the door and came into the restaurant. Defendant came towards Mr. Gentles with a gun in his hand and shouted, "You and your son is a bitch." Defendant then fired five Mr. Gentles

or six shots at Mr. Gentles, hitting him four times.

further testified that Mr. White came up to the front of the restaurant. Mr. Gentles told Mr. White that the person who shot

him was "the same dread that was fighting with Mr. Barrino." Mr. White testified that he was working at the restaurant the day Mr. Gentles was shot. When Mr. White arrived at work, Mr.

Gentles told him there had been a problem with a customer earlier in the day, and Mr. Gentles described the customer as having "light complexion, gold teeth, . . . dreadlocks, and funny-looking eyes." Mr. White knew who Mr. Gentles had described, and Mr. White While Mr.

identified that customer in open court as Defendant.

White was working in the back of the restaurant, he heard shots fired and went towards the front of the restaurant. heard Mr. Gentles moaning and saw him bleeding. Mr. White

He testified that

-4Mr. Gentles said "the guy came back and he shot [me]." Mr. White

testified that he called 911 and then called Mr. Gentles' son, Dwayne Gentles, and left a message on his answering machine. Dwayne Gentles testified as follows: Q What, if anything, did Mr. White tell you about what he knew? A He was like, he was in the back, when he heard shooting ring off. And then he came out, my father was on the floor. And then he was like -- I was asking him, "So, who did it?" And he was like, "Crazy Dreads." [DEFENDANT]: Objection, Your Honor. A And I'm like, "Who's Crazy Dreads?" like -THE COURT: answer. Overruled. Restate He was your

[DWAYNE GENTLES]: Huh? THE COURT: You said, "Who did it?" he say? A Q What did

He was like, "Crazy Dreads did it." And what was your response?

A I was like, "I know who that is," because I had an altercation with him on Monday. Q A With who? With . . . [D]efendant. [DEFENDANT]: Objection, Your Honor. THE COURT: Overruled. The trial court gave the jury the following limiting instruction immediately preceding this line of questioning: "Ladies and

gentlemen, again, this is for the purpose of corroborating the prior testimony of Mr. White, only to that -- only for that

-5purpose, and only to the extent that it does." Michael Bitner (Officer Bitner) testified that he was a police officer with the Greensboro Police Department and that he responded to a shooting at the restaurant on 14 March 2003. Officer Bitner

spoke with Mr. White on the day of the shooting and testified as follows about that conversation: Mr. White stated he heard someone ask him what he wanted, and then he heard someone state, "What? What? What?" Mr. White stated he saw smoke, and saw the victim holding his stomach, crying. Mr. White stated he saw a cloud of smoke, and he peeked around the corner, and he saw the suspect, and he was firing. The trial court gave the jury the following limiting instruction prior to Officer Bitner's testimony: "All right. Ladies and

gentlemen, I will allow this for the purpose of corroborating the prior testimony of Mr. White, only to the extent that it does, and only for that purpose." D.S. Atkins (Officer Atkins) testified that he was on duty as an officer with the Greensboro Police Department on 22 May 2003 and that police received an anonymous call that a burglary was in progress at 3606 Temple Street. Defendant objected and the trial

court instructed the jury as follows: The objection is well taken. However, ladies and gentlemen, I will allow this testimony, not for the truth of the matter asserted by the call, but to show why this officer and perhaps the other officer did or did not do what they did or did not do, if you understand what I mean[;] only to show why they reacted, if they did. Officer Atkins also testified, over Defendant's objection, that the anonymous call received by police "stated that [there] was

-6a burglary in progress, [and] stated that the suspect was also the shooter in the incident that happened at the Paradise Restaurant." The trial court then sustained Defendant's objection and instructed the jury to disregard the portion of the anonymous call that identified the burglary suspect as the shooter in the restaurant shooting. Officer Atkins testified that he encountered Defendant

at 3606 Temple Street and that Defendant produced a Washington, D.C. identification card. The identification card bore the name

Jarold Asburn and had a photograph of Defendant with long, thick dreadlocks. Officer Atkins also testified that he had been briefed regarding the suspect in the restaurant shooting and that the suspect was a black male with dreadlocks, gold in his teeth, and a Jamaican accent. At this point, the trial court engaged Officer

Atkins in the following colloquy: THE COURT: . . . . Now, in addition, you had been told something else, that I told the jury to strike from their mind [a while] ago. Is that a "yes" or "no"? You were told something else when you received the call? [OFFICER ATKINS]: Yes. THE COURT: Did that play also in your decision to do whatever you then did? [OFFICER ATKINS]: Yes, it did. THE COURT: I will allow that, ladies and gentlemen, what I previously told you to disregard, being the second part of the information he was given, that was allowed to be stated, to show why he did as he did. I'll allow you to consider that at this time. If you want to review that with him . . . since I've told him earlier to --

-7[THE STATE]: Yes, Your Honor. Q What was the full nature of the call that you received on the police radio? A The full nature of the call stated [there] was a burglary in progress at this address at 3606 Temple Street. It also stated that the suspect from the Paradise Restaurant shooter -[DEFENDANT]: Objection -A -- was the -[DEFENDANT]: -- Your Honor. Hearsay.

THE COURT: Overruled. I'm allowing it for that limited purpose. A -- was the suspect in the break-in.

After Officer Atkins testified to the substance of the anonymous call, the following colloquy occurred: Q And based on your encounter with . . . [D]efendant and your opportunity to speak with him and to be given this identification bearing the picture with the dreadlocks, what did you do next? A I contacted the lead investigator, Detective Edwards, for the shooting case. Q And did Detective Edwards respond to the scene where you were? A He did. I. Defendant argues the trial court erred by allowing testimony regarding pretrial testimony. pretrial statements statements did not made by Mr. White, Mr. where such trial

corroborate

White's

"It is well-settled that a witness' prior consistent

statements are admissible to corroborate the witness' sworn trial

-8testimony." State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d

493, 497, disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000). Testimony is corroborative if it tends to "strengthen, confirm, or make more certain the testimony of another witness." Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 State v. (1980).

"Corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates." S.E.2d at 497. However, a McGraw, 137 N.C. App. at 730, 529 witness' prior statements which

contradict the witness' trial testimony are not corroborative and are inadmissible. Id.

Specifically, Defendant argues that Officer Bitner's testimony that Mr. White said he "saw the suspect, and he was firing" contradicted Mr. White's trial testimony because Mr. White never claimed to have seen the shooter. However, "'[i]n a noncapital case, where portions of a

statement corroborate and other portions are incompetent because they do not corroborate, the defendant must specifically object to the incompetent portions.'" State v. Jones, 110 N.C. App. 169,

173, 429 S.E.2d 597, 600 (1993) (quoting State v. Harrison, 328 N.C. 678, 682, 403 S.E.2d 301, 304 (1991)), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). "'Where a defendant in a noncapital

trial makes only a broadside objection to the allegedly incompetent corroborative testimony, the assignment of error is waived.'" State v. Holliman, 155 N.C. App. 120, 128, 573 S.E.2d 682, 688

-9(2002) (quoting Jones, 110 N.C. App. at 173, 429 S.E.2d at 600). In the present case, Defendant did not specifically challenge the portion of the testimony at trial that he now challenges on appeal. Therefore, Defendant has waived this assignment of error. Even

See Holliman, 155 N.C. App. at 128, 573 S.E.2d at 688.

assuming, arguendo, that the trial court erred by admitting this testimony, the error was not prejudicial. The trial court

instructed the jury to consider the testimony only to the extent it corroborated Mr. White's trial testimony. Moreover, there was Mr.

substantial other evidence that Defendant was the shooter.

Gentles testified that he had known Defendant for years as a customer in his restaurant and identified Defendant as the person who shot him on 14 March 2003. Mr. Barrino and Ms. Whitner also

identified Defendant as the man who fought with Mr. Barrino earlier in the day and threatened to kill someone and return to "get" Mr. Gentles. Defendant also challenges testimony of Dwayne Gentles

regarding a conversation Dwayne Gentles allegedly had with Mr. White on the day of the shooting. Defendant argues this testimony

did not corroborate Mr. White's trial testimony because Mr. White never testified that he spoke with Dwayne Gentles on the day of the shooting; Mr. White only testified that he left a message on Dwayne Gentles' answering machine. because Mr. White's Defendant argues this was prejudicial statement "create[d] a second

pretrial

eyewitness" to the shooting. Assuming, arguendo, this was error, it was not prejudicial.

-10The trial court instructed the jury only to consider Dwayne

Gentles' testimony to the extent that it corroborated Mr. White's trial testimony. Additionally, as stated above, there was

substantial evidence that Defendant was the shooter.

Moreover,

Defendant's claim of prejudice is that Mr. White's statements to Dwayne Gentles created a second eyewitness. However, while he did

not testify that he witnessed the shooting, Mr. White did identify Defendant as the shooter during his testimony. Mr. White testified that Mr. Gentles identified the shooter to Mr. White. Mr. White

also testified he recognized the description as that of Defendant, whom he then identified in open court. this assignment of error. II. Defendant argues the trial court erred by allowing Officer Atkins to testify that the Greensboro police received an anonymous tip that the suspect in the burglary had been the shooter in the restaurant shooting incident. Specifically, Defendant argues this Defendant also contends that Accordingly, we overrule

testimony was inadmissible hearsay.

if the evidence was properly admitted for a non-hearsay purpose, it should have been excluded pursuant to N.C. Gen. Stat.

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