# State v. Phillpott

> Court of Appeals of North Carolina · July 19, 2011 · 213 N.C. App. 468

URL: https://www.frixlaw.com/law-library/cases/9781166

## Case

- **Full name:** State of North Carolina v. Jayson Collins Phillpott
- **Court:** Court of Appeals of North Carolina
- **Decided:** July 19, 2011
- **Citations:** 213 N.C. App. 468; 713 S.E.2d 202; 2011 N.C. App. LEXIS 1493
- **Precedential status:** Published
- **Opinion:** Concurrence by Beasley
- **Judges:** Stroud, Bryant, Beasley
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BEASLEY, Judge
concurring with separate opinion.
While I concur with the majority opinion that the trial court did not commit error, I believe that the trial court properly admitted Akeem Davis’ statement to Detective Lewis as a prior inconsistent statement.
The trial court may permit the State to impeach its own witness when “the district attorney has been misled and surprised by [its] witness, whose testimony as to a material fact is contrary to what the State had a right to expect.” State v. McDonald, 312 N.C. 264, 269 , 321 S.E.2d 849, 852 (1984) (internal quotation marks omitted). “Surprise” means more than “mere disappointment”; in this context it is defined as “taken unawares.” State v. Smith, 289 N.C. 143, 158 , 221 S.E.2d 247, 256 (1976).
For the State to be allowed to impeach its own witness, it must abide by the following procedure. The State should move “to . . . impeach its own witness by proof of his prior inconsistent statements”; (2) the motion should be made as soon as the prosecutor is surprised; (3) the motion “is addressed to the sound discretion of the trial court”; (4) the preliminary questions of whether the prosecutor is surprised and misled as to the witness’ expected testimony on a material fact is to be determined in a voir dire hearing in the absence of the jury; and (5) “[i]f the trial judge finds that the State should be allowed to offer prior inconsistent statements, his findings should also specify the extent to which such statements may be offered.” State v. Pope, 287 N.C. 505, 512-13 , 215 S.E.2d 139, 145 (1975); State v. Cope, 309 N.C. 47 , 305 S.E.2d 676 (1983).
As with any impeachment, the admission of the prior inconsistent statement is not considered substantive evidence, but instead permitted to demonstrate the element of surprise to the State by its witness’ unanticipated testimony. State v. Woods, 33 N.C. App. 252, 256 , 234 S.E.2d 754, 757 (1977). Any statement offered to show that it is inconsistent with the witness’ current testimony must have previously been given to a law enforcement officer or other person who represents the district attorney’s office. Id.
*481 The State, in the case sub judice, followed the above procedure. Davis had informed the State prior to trial that his testimony would be consistent with his prior statement to Detective Lewis.
In Davis’ prior statement to Detective Lewis, he stated that he “knew [Defendant] from the streets as Pott”, “had seen him around Edgecombe” and he further provided a physical description of Defendant. Davis had also told Detective Lewis that he knew that Defendant shot Shawan Jones because he “looked up and saw the shooter fire the gun” and the shooter walked in Shawan’s house “right before [Davis].”
In contrast, on direct examination by the State, Davis denied that he knew Defendant and testified that he told Detective Lewis that the identity of the shooter was Defendant because “I thought it’s what he wanted to hear.” When asked, “[i]s Jayson Phil[l]pot the person who shot Shawan Jones?” Davis replied, “[i]f that’s supposed to be Jayson, Phil[l]pot, no”. Prosecutor asked Davis, “[a]nd you didn’t know who this guy was” (emphasis added) and Davis replied “I ain’t know him. I know of him. I heard his name.”
The trial court properly allowed the State to impeach its own witness as Davis’ statements to Detective Lewis were not consistent with his testimony and the State was “taken unawares.” Because I agree with the balance of the majority’s analysis and believe that it reached the correct result, I concur in the majority’s result only.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781166. Public record. Not legal advice.