State v. McKoy, 2022-NCCOA-60, ___ N.C. App. ___ (Feb. 1, 2022)

aff’d, 71A22, ___ N.C. ___ (Sep. 1, 2023)

In this Durham County case, the defendant was found guilty by a jury of voluntary manslaughter. The charge arose out of the defendant’s shooting of Augustus Brandon, a long-time acquaintance that the defendant generally tried to avoid because of his perceived criminal and gang activity. In December 2016, the defendant was driving when he saw Brandon drive past him. Brandon turned his car around, followed the defendant, pulled in front of him, and then stopped his car in front of the defendant’s. When Brandon began approaching the defendant’s car, which had become stuck in a ditch, the defendant “just panicked” and fired his semi-automatic rifle three times, hitting Brandon once in the back and once in the back of the head, killing him. Mr. Brandon was unarmed. At trial, the jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter. The jury returned a verdict of voluntary manslaughter. 

On appeal, the defendant argued that the trial court erred by granting the State’s motion in limine regarding text messages and photographs on the victim’s cell phone. The State had asserted that the evidence—which pertained to the victim’s past violent acts and ownership and use of guns—would be more prejudicial than probative because specific acts of conduct are impermissible to prove a victim’s propensity for violence. The defendant argued that the State had opened the door to admission of the cell-phone evidence by introducing testimony about Brandon’s personality through his parents’ testimony, and that the evidence was admissible to impeach the victim’s father’s testimony that he did not previously know his son had possessed a gun.

The Court of Appeals concluded over a dissent that even if the cell-phone evidence was excluded in error, any error would not be sufficiently prejudicial to warrant a new trial, because the defendant did not show a reasonable possibility that a different result would have been reached had the error not occurred. Other admissible evidence supported the defendant’s theory of self-defense, including the defendant’s own testimony about Brandon’s reputation for “gang bang[ing] and tot[ing] guns,” a previous incident in which Brandon showed the defendant a video of himself shooting a gun, and the fact that he was “terrified” at the time of the shooting. ¶ 23. Additionally, the evidence showed that even if the defendant was honestly in fear for his life, the degree of force he used was more than reasonably necessary—Brandon was unarmed and running away from the defendant when he was shot, and the defendant testified that he never saw Brandon holding a gun that day. In the absence of prejudicial error, the defendant’s conviction stood.

Judge Tyson dissented to say that he would have concluded that the State opened the door to the admission of the photos and texts from the victim’s phone when it introduced testimony from Brandon’s parents about his lack of guns and reputation for peacefulness and being a “happy guy.” The exclusion of that evidence, he argued, prejudiced the defendant’s right to present his defense by easing the State’s burden of proving that the defendant used unreasonable force.

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