NO. COA13-1342

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Forsyth County

Nos. 12 CRS 52033-34, 52036

JERRY DENARD POSEY, II

Appeal by Defendant from judgments entered 30 May 2013 by 

Judge William Z. Wood in Superior Court, Forsyth County. Heard 

in the Court of Appeals 7 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Marc Bernstein, for the State.

Sharon L. Smith for Defendant.

McGEE, Judge.

Jerry Denard Posey, II (“Defendant”) was indicted on 10 

December 2012 for first-degree murder of Terrance Murchison

(“Mr. Murchison”), possession of a firearm by a felon, and 

carrying a concealed gun. A jury found Defendant guilty of 

second-degree murder, possession of a firearm by a felon, and 

carrying a concealed gun. The facts relevant to the issues on 

appeal are discussed in the analysis section of this opinion. 

Defendant appeals.
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I. Physical Restraints

Defendant first argues the trial court abused its 

discretion in requiring Defendant to wear restraints at trial. 

We disagree.

A. Standard of Review

“We review the trial court’s decision of whether to place 

[d]efendant in physical restraints for abuse of discretion.” 

State v. Stanley, 213 N.C. App. 545, 548, 713 S.E.2d 196, 199 

(2011). “A review for abuse of discretion requires the 

reviewing court to determine whether the decision of the trial 

court is manifestly unsupported by reason, or so arbitrary that 

it cannot be the result of a reasoned decision.” Id.

B. Analysis

A defendant may be “physically restrained during his trial 

when restraint is necessary to maintain order, prevent the 

defendant’s escape, or protect the public.” State v. Wright, 82 

N.C. App. 450, 451, 346 S.E.2d 510, 511 (1986). “What is 

forbidden——by the due process and fair trial guarantees of the 

Fourteenth Amendment to the United States Constitution and Art. 

I, Sec. 19 of the North Carolina Constitution——is physical 

restraint that improperly deprives a defendant of a fair trial.” 

Id. In deciding whether restraints are appropriate, a trial 
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court may consider, among other things, the following 

circumstances:

“the seriousness of the present charge 

against the defendant; defendant’s 

temperament and character; his age and 

physical attributes; his past record; past 

escapes or attempted escapes, and evidence 

of a present plan to escape; threats to harm 

others or cause a disturbance; selfdestructive tendencies; the risk of mob 

violence or of attempted revenge by others; 

the possibility of rescue by other offenders 

still at large; the size and mood of the 

audience; the nature and physical security 

of the courtroom; and the adequacy and 

availability of alternative remedies.”

Stanley, 213 N.C. App. at 550, 713 S.E.2d at 200 (quoting State 

v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353, 368 (1976)). 

“However, the ultimate decision must remain with the trial 

judge, who may not resign his exercise of discretion to that of 

his advisors.” Tolley, 290 N.C. at 368, 226 S.E.2d at 368.

The record in the present case shows Defendant objected to 

having to wear a “stiff knee brace[.]” At Defendant’s request, 

the trial court held a hearing to determine whether Defendant 

should wear the knee brace during trial. A deputy testified 

that it was “standard operating procedure to place any inmate” 

being tried for “a murder offense in some sort of restraint at 

any time when [the inmate was] out of [the sheriff’s] custody.” 

Defendant contends that the trial court’s ruling “was nothing 

more than an accommodation of Sheriff’s Department policy[.]”
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However, the trial court did not base its decision upon 

this testimony alone. The trial court considered Defendant’s 

past convictions for common law robbery, misdemeanor possession 

of stolen goods, misdemeanor larceny, and two counts of assault 

on a female, along with Defendant’s three failures to appear in 

2012 and two failures to appear in 2011, which the trial court 

commented tended to show “some failure to comply with the 

[c]ourt orders[.]” The trial court also considered Defendant’s 

pending charge for simple assault that arose while Defendant was 

in custody.

As in State v. Simpson, the trial court “was in the better 

position to observe [] [D]efendant, to know the security 

available in the courtroom and at the courthouse, to be aware of 

other relevant facts and circumstances, and to make a reasoned 

decision, in light of those factors, that restraint was 

necessary or unnecessary.” State v. Simpson, 153 N.C. App. 807, 

809, 571 S.E.2d 274, 276 (2002). Furthermore, where the “record 

fails to disclose that a defendant’s shackles were visible to 

the jury, ‘the risk is negligible that the restraint undermined 

the dignity of the trial process or created prejudice in the 

minds of the jurors,’ and the defendant will not be entitled to 

a new trial[.]” Id. at 809-10, 571 S.E.2d at 276 (quoting State 

v. Holmes, 355 N.C. 719, 729, 565 S.E.2d 154, 163 (2002)).
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In the present case, counsel for Defendant acknowledged 

that the restraint was “not visible” and, when the trial court 

commented that it “couldn’t hear any jingling[,]” counsel for 

Defendant agreed. The trial court observed that the knee brace 

did not make noise or jingle and that the knee brace could not 

be seen by jurors or potential jurors. When Defendant later 

walked back into the courtroom, the trial court observed that 

Defendant “seems to be moving well.” The trial court noticed 

“no problems, no sign of anything.” Counsel for Defendant 

replied that he did not dispute the trial court’s observations, 

but that the knee brace still constituted a restraint. 

Furthermore, the trial court allowed Defendant to walk to the 

witness stand out of the sight of the jury.

The present case is analogous to Simpson and Holmes, in 

which the shackles were not visible to the jury. Holmes, 355 

N.C. at 729, 565 S.E.2d at 163; Simpson, 153 N.C. App. at 809, 

571 S.E.2d at 276. We conclude that the trial court did not 

abuse its discretion on this basis.

II. Cross-Examination of Medical Examiner

Defendant next argues the trial court abused its discretion 

by “precluding [Defendant] from cross-examining medical examiner 

McLemore regarding her preliminary report of death[.]” However, 

in “order for a party to preserve for appellate review the 
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exclusion of evidence, the significance of the excluded evidence 

must be made to appear in the record and a specific offer of 

proof is required unless the significance of the evidence is 

obvious from the record.” State v. Jacobs, 363 N.C. 815, 818, 

689 S.E.2d 859, 861 (2010). Our Supreme Court also held that 

“the essential content or substance of the witness’ testimony 

must be shown before we can ascertain whether prejudicial error 

occurred.” Id. “Absent an adequate offer of proof, we can only 

speculate as to what a witness’s testimony might have been.” 

Id. at 818, 689 S.E.2d at 861-62.

At trial, the State objected when counsel for Defendant 

approached the witness with “a document called a preliminary 

report of death[.]” After the jury exited the courtroom, the 

State argued that the handwritten note on the report that read 

“fighting in a club earlier” constituted hearsay. Following a 

brief voir dire examination of the witness, counsel for 

Defendant argued to the trial court that “it’s admissible under 

the expert rules of testimony.” It appears that counsel for 

Defendant was referring to the preliminary report of death. The 

trial court stated: “I think under Rule 403 it would be excluded 

if its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the 

jury.”
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Defendant made no offer of proof as to the questions 

Defendant’s counsel would have asked of the medical examiner. 

Defendant also made no offer of proof as to what the medical 

examiner’s response to the questions would have been. Defendant 

“has failed to preserve this issue for appellate review under 

the standard set forth in” N.C. Gen. Stat. § 8C-1, Rule 

103(a)(2) (2013). State v. Braxton, 352 N.C. 158, 184, 531 

S.E.2d 428, 443 (2000).

III. Sufficiency of the Evidence of Second-Degree Murder

Defendant next argues the trial court erred in denying

Defendant’s motion to dismiss the charge of second-degree 

murder. Defendant contends there was insufficient evidence that 

Defendant acted with malice and not in self-defense.

A. Standard of Review

We review the trial court’s denial of a motion to dismiss 

de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 

33 (2007). The “trial court must determine whether there is 

substantial evidence (1) of each essential element of the 

offense charged and (2) that defendant is the perpetrator of the 

offense.” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 

347 (2012) (internal quotation marks omitted). “Substantial 

evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Id.
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The “trial court must consider the evidence in the light 

most favorable to the State, drawing all reasonable inferences 

in the State's favor.” Id. at 92, 728 S.E.2d at 347. “All 

evidence, competent or incompetent, must be considered. Any 

contradictions or conflicts in the evidence are resolved in 

favor of the State, and evidence unfavorable to the State is not 

considered.” Id. at 93, 728 S.E.2d at 347 (internal citations 

and quotation marks omitted).

B. Analysis

Defendant presents two different arguments in this section. 

First, as to malice, the “intentional use of a deadly weapon 

proximately causing death gives rise to the presumption that 

(1) the killing was unlawful, and (2) the killing was done with 

malice.” State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 

(1980). “Evidence raising an issue on the existence of malice 

and unlawfulness causes the presumption to disappear, leaving 

only a permissible inference which the jury may accept or 

reject.” State v. Weeks, 322 N.C. 152, 173, 367 S.E.2d 895, 

907-08 (1988) (internal quotation marks omitted).

If “there is any evidence of heat of passion on sudden 

provocation, either in the State’s evidence or offered by the 

defendant, the trial court must submit the possible verdict of 

voluntary manslaughter to the jury.” Id. at 173, 367 S.E.2d at 
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908. In the present case, the trial court did submit the charge 

of voluntary manslaughter to the jury. Defendant has not shown 

error on this basis.

Second, Defendant argues that the State failed to show that 

Defendant did not act in self-defense. “A person who kills 

another is not guilty of murder if the killing was an act of 

self-defense.” State v. Hamilton, 77 N.C. App. 506, 513, 335 

S.E.2d 506, 511 (1985). To survive a motion to dismiss, the 

State must present “evidence which, when taken in the light most 

favorable to the State, is sufficient to convince a rational 

trier of fact that [the] defendant did not act in self-defense.” 

Id.

Officer Geddings testified that he was monitoring the

crowds exiting from a club shortly after 2:00 a.m. when he 

noticed “a muzzle flash of a gun” and heard a gunshot. He 

looked in the direction of the gunshot and saw Defendant lower a 

gun. Officer Geddings was about twenty to twenty-five yards 

away from Defendant. Officer Geddings saw no fight or 

altercation before the gunshot. He did not see anyone running 

or hear any yelling before the gunshot. Officer Geddings 

allowed Defendant to make calls from his cell phone while in the 

back seat of the patrol vehicle. Defendant told his mother on 

the phone that he “shot somebody.” When his mother asked why, 
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Defendant answered: “Disrespect.” Officer Geddings also did not 

find any other firearms in the parking lot.

Tommy Murchison, the brother of Mr. Murchison, testified 

that he and his brother went to the club with their girlfriends. 

Tommy Murchison exited the club at 2:00 a.m., with his brother 

behind him, but he was parted from his brother on the way to the

vehicle. Tommy Murchison testified that he heard a gunshot and 

later saw his brother lying on the ground. At that time, Tommy 

Murchison thought his brother was on the ground because he was 

simply intoxicated. An officer helped Mr. Murchison into the 

vehicle. Tommy Murchison testified that they went to get 

something for his brother to eat. He then noticed that his 

brother was injured and went directly to a hospital. Tommy

Murchison testified that he did not see his brother with a gun 

that night, nor did he see a weapon in the vehicle.

Tiara Stowe (“Ms. Stowe”), the driver of the vehicle, also 

testified that no one in her vehicle had a gun. Mr. Murchison’s 

shirt and pants were “fitted tight on him, so you would be able 

to see” if there was a weapon in his pockets. Ms. Stowe 

testified that, from her position in the club, she kept an eye 

on her group. She saw “a little fight break out” near Mr. 

Murchison around closing time, but Mr. Murchison was not 

involved in the fight.
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Officer Bullard testified that he was about seventy-five

feet away from where he thought he heard the gunshot originate. 

When he approached, he saw an individual staggering and falling 

to his knees. The individual told Officer Bullard that he had 

been shot. Officer Bullard testified that he called an 

ambulance, and that the individual would not speak further to 

him. Officer Bullard saw no weapon on the individual.

Dedrick Springs (“Mr. Springs”) testified for Defendant

that he saw “one guy” approach Defendant and say “something 

like, I’m going to get you after the club.” He further 

testified that this individual and Defendant were “in each 

other’s faces.” When Mr. Springs exited the club at closing 

time, he saw the same individual “pull his gun out on” 

Defendant. Mr. Springs testified that the individual pulled the 

gun from his pocket.

Defendant testified that, as he walked to the bathroom, Mr. 

Murchison asked him “what the f--- [Defendant] was looking at.” 

Defendant further testified that Mr. Murchison approached him 

aggressively, and Tommy Murchison pulled Mr. Murchison away. 

When Defendant exited the club at closing time, Mr. Murchison

walked up to Defendant, “looked [Defendant] in the eyes, g[a]ve 

[him] a[n] evil look and said he was going to f---ing kill 

[Defendant].” Defendant testified that he kept walking, trying 
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to avoid Mr. Murchison, but Mr. Murchison came toward him again 

and pulled a weapon. Defendant testified that he shot at the 

ground to scare Mr. Murchison, but when he shot, “the gun lifted 

up, like recoiled like that[.]”

Although Defendant contends on appeal that “[a]ll of the 

evidence in the record supported a finding that the shooting 

occurred during a sudden quarrel between” Mr. Murchison and 

Defendant, the transcript belies this assertion. Officer 

Geddings testified that he was outside the club to provide 

security, and he testified that he saw no fight or altercation 

before the gunshot.

As previously stated, the “trial court must consider the 

evidence in the light most favorable to the State, drawing all 

reasonable inferences in the State's favor.” Bradshaw, 366 N.C. 

at 92, 728 S.E.2d at 347. “Any contradictions or conflicts in 

the evidence are resolved in favor of the State, and evidence 

unfavorable to the State is not considered.” Id. at 93, 728 

S.E.2d at 347 (internal citations and quotation marks omitted).

The State’s evidence in the present case, particularly the 

testimony of Officer Geddings, is sufficient to convince a 

rational trier of fact that there was no quarrel or altercation 

between Mr. Murchison and Defendant prior to the shooting, and 

that Defendant did not act in self-defense. The discrepancy 
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between the testimony of Officer Geddings and the testimony of 

Defendant presented a conflict in the evidence, which was for 

the jury to resolve. Hamilton, 77 N.C. App. at 514, 335 S.E.2d 

at 511. The trial court did not err in denying Defendant’s 

motion to dismiss and in submitting the charge of second-degree 

murder, along with the charge of voluntary manslaughter, to the 

jury.

No error.

Chief Judge MARTIN and Judge CALABRIA concur.