1. Evidence--subsequent crime or act--defendant's use of handgun
The trial court did not err in a prosecution for first-degree murder, attempted murder, and
robbery with a dangerous weapon which occurred in June 1995 by admitting evidence under
N.C.G.S. § 8C-1, Rule 404(b) from a witness about an incident in Asheville in July 1995 where
defendant had a handgun and threatened to kill someone if she did not tell him where he could
locate his marijuana, because: (1) the evidence tended to show that defendant was present in
North Carolina in July 1995, possessed and was involved in the sale of marijuana in July 1995,
possessed a handgun in July 1995, and had motive to commit the crimes in this case; (2) there
was temporal proximity between the Asheville incident and the crimes in this case, as well as
similarity between the incidents when both involved the use of a handgun; and (3) defendant
cannot show how he was prejudiced by the admission of this evidence when plenary evidence of
defendant's guilt was offered at trial.
2. Constitutional Law--North Carolina--right to be present at all stages--in-chambers
conference
Although the trial court erred in a first-degree murder, attempted murder, and robbery
with a dangerous weapon case by holding an unrecorded in-chambers conference with the
attorneys in defendant's absence in violation of North Carolina Constitution Article I, Section 23,
the error was harmless beyond a reasonable doubt because: (1) the substance of the unrecorded
in-chambers conference was reconstructed and summarized for the record, and defendant was
present in the courtroom when the trial court reconstructed and summarized what transpired; and
(2) defendant had ample opportunity to make any objections or comments to his attorney, or to
inquire of his attorney regarding the substance of the conference.
3. Evidence--photostatic reproduction--hotel registration card--authenticity--chain of
custody
The trial court did not err in a first-degree murder, attempted murder, and robbery with a
dangerous weapon case by admitting a photostatic reproduction of a hotel registration card,
because: (1) defendant's signature was properly authenticated under N.C.G.S. § 8C-1, Rule
901(a) by a comparison of his university identification card to the signature on the motel
registration card; (2) although the original motel registration card was turned over to the police
and its location was unknown, the owner of the motel testified that the exhibit was an exact copy
of the original registration card and defendant has not raised any real issue as to the authenticity
of the original; and (3) a detailed chain of custody was not necessary when there was no reason to
believe the document was altered.
4. Homicide--first-degree murder--indictment--constitutionality
Although defendant contends the trial court erred by denying his motion to dismiss the
indictment for first-degree murder based on a failure to disclose the theory and precise elements,
defendant concedes that this precise issue has been considered and rejected by our Supreme
Court.
Attorney General Michael F. Easley, by Special Deputy AttorneyGeneral James Peeler Smith, for the State.
Margaret Creasy Ciardella, for defendant-appellant.
EAGLES, Chief Judge.
Defendant Christopher Lee Ferguson was tried capitally and
found guilty of first-degree murder, attempted murder and robbery
with a dangerous weapon in Duplin County Superior Court on 17
September 1997. Defendant was sentenced on 20 September 1997 to
consecutive sentences of life imprisonment without parole for
murder, 190 to 237 months for attempted murder, and 89 to 116
months for robbery with a dangerous weapon. Defendant appeals.
After careful review, we hold that defendant received a fair trial
free from prejudicial error.
In the light most favorable to the State, the evidence tended
to show the following: On 26 June 1995, defendant and Marcos Nunez
(Nunez) rented a room at the Liberty Inn Motel in Wallace. There,
defendant and Nunez met Arturo Gonzalez (victim) and Edwin Caranza
(Caranza) to discuss a drug transaction. Caranza testified that
defendant and Nunez agreed to pay the victim $30,000.00 for thirty
pounds of marijuana.
The next morning, defendant and Nunez followed the victim and
Caranza to a house located at 681 Kinsey Mill Road in Duplin County
where the marijuana was located. Defendant and Nunez were driving
an Oldsmobile owned by Nunez's girlfriend, Yolanda Munoz (Munoz).
When the four men arrived at the Kinsey Mill Road house, Caranza
testified that the victim directed him to retrieve the drugs from
behind the house. When Caranza returned with the marijuana, he
placed the bags on the ground to be counted. Nunez and Caranza
then knelt on the ground to count the drugs.
Caranza testified that as he was kneeling on the ground, hesaw defendant shoot the victim who fell to the ground.
Caranza
then turned toward defendant and saw a gun in defendant's hand.
Defendant then shot Caranza in the leg. As Caranza was running
away, defendant again shot him in the hand. Caranza, however,
managed to keep running. Later, Caranza took a bus to Miami where
he remained for approximately four to five months. When Caranza
returned to North Carolina, he identified defendant as the person
who shot him and the victim.
Nunez also testified at defendant's trial. Nunez testified
that as he was kneeling on the ground he heard a gun shot, saw
blood splatter and turned to see defendant holding a gun. Nunez
then ran toward the front of the house. As he was running, Nunez
heard two more shots. Defendant then yelled to Nunez to stop
running and help him with the marijuana. Nunez returned and
defendant loaded marijuana into the trunk of the Oldsmobile.
At approximately 4:00 a.m. 28 June 1995, Nunez called Dion
Newkirk (Newkirk) and told Newkirk that defendant had shot someone.
Nunez called Newkirk later that morning, at approximately 10:00
a.m., and asked Newkirk to meet him and defendant at a Hardees
Restaurant in Goldsboro because they were lost. Newkirk testified
that when he arrived at the Hardees, both Nunez and defendant had
blood on their clothing. Newkirk testified that Nunez again told
him that defendant shot someone. Defendant told Newkirk that he
(defendant) had “shot [the victim and], . . . that Nunez was
screaming and yelling like a little bitch.” Later that day,
Newkirk saw bloody marijuana bags in the trunk of the Oldsmobile.
Newkirk further testified that defendant was carrying a small black
handgun.
That morning, the victim's body was found in the backyard of
the Kinsey Mill Road house. It was later determined by Dr. ThomasClark, a forensic pathologist, that the victim had sustained a
fatal close range gunshot wound to the right side of his head. A
loaded Colt .38 caliber semiautomatic pistol was found in the
victim's waistband. Near the victim's body, Detective Ramsey of
the Duplin County Sheriff's Department found several bags and
bricks of marijuana.
Defendant presented videotaped depositions of five witnesses
all of whom testified that defendant was in New York at the time of
the shootings. Defendant did not testify.
[1]By his first assignment of error, defendant contends that
the trial court committed reversible error by admitting evidence
under Rule 404(b) of the North Carolina Rules of Evidence. We
disagree.
Rule 404(b) of the North Carolina Rules of Evidence provides
in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake . . . .
G.S. 8C-1, Rule 404(b). Our Supreme Court has held that Rule
404(b) states
a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)
(quoting State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247
(1987)); State v. King, 343 N.C. 29, 43, 468 S.E.2d 232, 241
(1996). Thus, even though the evidence may tend to show adefendant's propensity to commit other crimes, wrongs or acts, it
is admissible under Rule 404(b) so long as it is relevant for some
other purpose. Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54.
When prior incidents are offered for a permissible purpose,
“the ultimate test of admissibility is whether they are
sufficiently similar and not so remote as to run afoul of the
balancing test between probative value and prejudicial effect” of
Rule 403. State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197
(1991). The similarities between the other crime, wrong or act and
the crime charged need not, however, “'rise to the level of the
unique and bizarre' in order for the evidence to be admitted under
Rule 404(b).” State v. Thomas, 350 N.C. 315, 356, 514 S.E.2d 486,
511 (1999) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d
876, 891 (1991)). Moreover, remoteness in time generally goes to
the weight of the evidence not its admissibility. State v. Hipps,
348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998).
Here, Rhonda Bethea (Bethea) testified on behalf of the State
at defendant's trial. During the summer of 1995, Bethea lived next
door to Munoz in Asheville. Bethea testified that she first became
acquainted with defendant in June 1995 when she, along with Munoz,
drove defendant and Nunez from Wallace to Asheville. Bethea then
testified that approximately one month after her initial encounter
with defendant in June 1995, she saw defendant in Asheville with a
handgun. When the State questioned Bethea about the circumstances
surrounding this incident in Asheville, the trial court sustained
defendant's objection and a voir dire of the witness ensued.
During the voir dire hearing, Bethea testified that in July
1995, defendant arrived at her apartment in Asheville with a
handgun. At the time, Bethea, her two year old daughter and asixteen year old friend, “Chicago,” were in the apartment. Bethea
then testified that at her apartment defendant
was yelling at [Chicago] asking her where was
his weed was [sic] at, if she didn't tell him,
he was going to kill her. She kept saying --
well, she was crying and she was saying, I
don't where your weed is at. I don't know
what you're talking about. I was saying, she
has nothing to do with this, please, let my
daughter out of the room. And he said, I
don't give a -- I'll kill them both. I want
my weed.
;
Q. And did he finally -- how did -- he
didn't kill either one of them; is that
correct?
;
A. No. &n
bsp;
Q. Did he finally leave?
A. Yes, sir. &n
bsp;
Q. How long was he in the room with
them? &n
bsp;
A. I would say probably about five or
ten minutes.
At the conclusion of the voir dire hearing, the trial court
ruled that the evidence concerning the incident in Asheville was
admissible under Rule 404(b) because it tended to show that
defendant was present in North Carolina in July 1995, possessed and
was involved in the sale of marijuana in July 1995, possessed a
handgun in July 1995, and had motive to commit the Duplin County
crimes. The trial court further found that there was temporal
proximity between the Duplin County crimes and the incident in
Asheville, as well as similarity between the incidents because both
involved the use of a handgun. Finally, the trial court concluded
that although the evidence possessed some prejudicial effect, the
prejudicial effect was outweighed by the probative value of the
evidence. Following Bethea's testimony, the trial court gave a
limiting instruction to the jury.
Here, defendant argues that the incidents in Asheville and
Duplin County were so dissimilar and remote in time as to run afoul
of the balancing test between probative value and prejudicialeffect. “The party who asserts that evidence was improperly
admitted usually has the burden to show the error and that he was
prejudiced by its admission.” State v. Anthony, 133 N.C. App. 573,
579, 516 S.E.2d 195, 199 (1999). Evidentiary errors are harmless
unless a defendant proves that absent the error a different result
would have been reached at trial. State v. Campbell, 133 N.C. App.
531, 540, 515 S.E.2d 732, 738 (1999). Thus, assuming arguendo that
defendant has met his burden of showing this Court that evidence of
the Asheville incident was not admissible under Rule 404(b), he is
still required to show he was prejudiced by its admission. Id. On
this record, he cannot do so.
Plenary evidence of defendant's guilt was offered at trial.
Caranza testified that he saw defendant shoot the victim on 27 June
1995. Cranaza further testified that immediately after defendant
shot the victim, defendant shot him, wounding him in the hand and
the leg. Nunez testified that on the morning of 27 June 1995, he
heard several gunshots, saw blood and saw defendant holding a
handgun. Finally, Newkirk testified that he saw defendant with a
handgun on 28 June 1995, and that defendant admitted to Newkirk
that he shot the victim. On this record, defendant cannot show
that if the trial court had excluded Bethea's testimony, a
different result would have been reached at trial. This assignment
of error fails.
[2]By his next assignment of error, defendant contends that
the trial court committed reversible error by holding an unrecorded
in-chambers conference with the attorneys in defendant's absence.
Defendant argues that by holding such an in-chambers conference,
the trial court violated his nonwaivable constitutional right to be
present at every stage of his capital trial. Based on State v.Moss, 332 N.C. 65, 418 S.E.2d 213 (1992), we are compelled to hold
that under Article I, Section 23 of the North Carolina Constitution
the trial court erred in failing to insure defendant's presence at
every stage of his capital trial. Here, we conclude that the State
has shown that the error was harmless beyond a reasonable doubt.
At the outset we note that “[t]hough alluding to the federal
constitution as a basis of the right to presence, defendant's
argument relies exclusively on the definition of the right
contained in North Carolina law. We limit our discussion
accordingly.” State v. Adams, 335 N.C. 401, 408, 439 S.E.2d 760,
763, n.1 (1994).
Article I, Section 23 of the North Carolina Constitution
provides: “In all criminal prosecutions, every person charged with
a crime has the right to be informed of the accusation and to
confront the accusers and witnesses with other testimony . . . .”
“This protection guarantees an accused the right to be present in
person at every stage of his trial.” State v. Payne, 320 N.C. 138,
139, 357 S.E.2d 612, 612 (1987); State v. Exum, 343 N.C. 291, 293,
470 S.E.2d 333, 334 (1996). This State constitutional protection
imposes on the trial court the affirmative duty to insure a capital
defendant's presence at every stage of a capital trial. Exum, 343
N.C. at 294, 470 S.E.2d at 334; Moss, 332 N.C. at 73-74, 418 S.E.2d
at 218; State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363
(1990). Furthermore, it is well settled in North Carolina that
”the right to presence cannot be waived in capital cases and
includes chambers conferences with counsel.” State v. Call, 349
N.C. 382, 398, 508 S.E.2d 496, 506 (1998); Exum, 343 N.C. at 294,
470 S.E.2d at 334-35; State v. Huff, 325 N.C. 1, 29, 381 S.E.2d635, 651 (1989), sentence vacated on other grounds, 497 U.S. 1
021,
111 L.Ed.2d 777 (1990).
Our courts have found error where the trial court conducted
in-chambers conferences in a defendant's absence even though
counsel for both the State and defendant were present. State v.
Call, 349 N.C. 382, 508 S.E.2d 496 (1998); State v. Exum, 343 N.C.
291, 470 S.E.2d 333 (1996); State v. Brogden, 329 N.C. 534, 407
S.E.2d 158 (1991).
However, error caused by the absence of the
defendant at some portion of his capital trial
does not require automatic reversal. This
Court has adopted the “harmless error”
analysis in cases where a defendant is absent
during a portion of his capital trial. The
State has the burden of establishing that the
error was harmless beyond a reasonable doubt.
Brogden, 329 N.C. at 541, 407 S.E.2d at 163 (internal citations
omitted); Exum, 343 N.C. at 295, 470 S.E.2d at 335. If the State
can establish that an error is harmless beyond a reasonable doubt,
a new trial is not required. Exum, 343 N.C. at 295-96, 470 S.E.2d
at 335; Moss, 332 N.C. at 74, 418 S.E.2d at 218.
Thus, “[n]otwithstanding an accused's right to be present,
certain violations of this right may be harmless if such appears
from the record.” State v. Buchanan, 330 N.C. 202, 222, 410 S.E.2d
832, 844 (1991). “An error is harmless beyond a reasonable doubt
if it did not contribute to the defendant's conviction.” State v.
Nelson, 341 N.C. 695, 701, 462 S.E.2d 225, 228 (1995). Even though
an in-chambers conference is not recorded, if the “nature and
content of the private discussion” can “be gleaned from the
record,” for example by a subsequent summary of the conference on
the record by the trial court, then the reviewing court may review
the record to determine whether the defendant was prejudiced. Exum, 343 N.C. at 295-96, 470 S.E.2d at 335; State v. Hayes, 130
N.C. App. 154, 177, 502 S.E.2d 853, 869 (1998), aff'd in part and
modified in part, 350 N.C. 79, 511 S.E.2d 302 (1999).
Here, the record reveals that at the end of the court
proceedings on Friday, 12 September 1997, the trial court held a
conference with counsel and defendant, out of the presence of the
jury. During the 12 September conference, defendant was called
regarding his decision not to testify on his own behalf. The
record also reflects that there was a discussion regarding the
availability of alibi witnesses to testify on behalf of defendant
Monday morning, 15 September 1997. The defense then rested,
subject to the possibility of reopening on Monday morning for the
purpose of presenting additional witnesses.
At the beginning of court on Monday morning with the defendant
present, the following transpired out of the presence of the jury:
THE COURT: Now, I believe that on
Friday the Defendant rested subject to
reopening this day, is that correct, sir.
MR. SAPP: Yes, your Honor.
THE COURT: And I believe that the
understanding that I had with you was that the
witnesses from New York who had -- at the time
that you advised me that they were then in
Rocky Mount, North Carolina, there was one who
we had concerns about not being able to do
[sic] be here today, a minister.
MR. SAPP: Yes, sir.
;
THE COURT: And I told you to let me
know over the weekend, we had set up a
conference call and that we would make plane
ticket arrangements. I have heard nothing
from you -- and it is my understanding Mr.
Sapp from a brief conversation in chambers
with counsel that there would be no further
evidence for the Defendant in the guilt
innocence phase; that correct, sir. (Emphasis
added).
MR. SAPP: That is correct, Your
Honor. &
nbsp;
THE COURT: Anything further in that
line for the Defendant.
MR. SAPP: No.
;
Here, the substance of the unrecorded in-chambers conference
was reconstructed and summarized for the record. Furthermore, the
record reflects that defendant was present in the courtroom when
the trial court reconstructed and summarized what transpired in the
in-chambers conference. Under these circumstances, defendant had
ample opportunity to make any objections or comments to his
attorney, or to inquire of his attorney regarding the substance of
the conference. We have carefully reviewed the record and conclude
that although the trial court erred by conducting the conference in
defendant's absence, the error was rendered harmless beyond a
reasonable doubt by the trial court's actions in assuring that the
record reflects what transpired during that conference. Call, 349
N.C. at 398, 508 S.E.2d at 507. Accordingly, the assignment of
error fails.
[3]Next, defendant contends that the trial court erred by
admitting a photostatic reproduction of a hotel registration card.
Defendant argues that (1) the signature on the card was not
properly authenticated, (2) the card was not the best evidence, and
(3) the State failed to establish a chain of custody. We
disagree.
Danny Norris (Norris), the owner of the Liberty Inn Motel
(motel) in Wallace, testified at defendant's trial. Over
objection, Norris identified State's Exhibit 18 as a copy of a
registration card used at the motel, dated 26 June 1995. Norris
testified that the card routinely is filled out by customers at the
time they check into the motel and is then maintained in the
motel's business records. When defendant again objected to the
introduction of the registration card, a voir dire of Norris was
conducted.
During the voir dire, Norris testified that prior todefendant's trial the original registration card was tur
ned over to
the police. Norris further testified that although he did not
remember registering defendant at the motel on 26 June 1995 he did
recognize the registration card labeled State's Exhibit 18.
I recognize my handwriting on the number of --
the number of the room that he was assigned
and I recognize my handwriting and the amount
of money that he paid. And all the other
writing is his except for the date. I
recognize the date as my handwriting.
At the conclusion of the voir dire, the trial court overruled
defendant's objections as to the admissibility of the registration
card. Norris then testified that the registration card was signed
“Saladin Pasha” and the address provided by the guest was 1933 B
North Hills Drive, Raleigh, North Carolina.
Michael Downing, a detective with the Asheville Police
Department, testified that on 24 August 1995 he saw defendant at
the Asheville Police Department. When Downing asked defendant for
identification on 24 August 1995, defendant identified himself as
“Saladin Pasha.” Downing testified that defendant then handed him
a North Carolina Central University student identification card
which contained defendant's photograph and the signature “Saladin
Pasha,” and provided his address as 1933 B North Hills Drive,
Raleigh, North Carolina. The North Carolina Central University
student identification card, labeled State's Exhibit 26, was
admitted without objection. State's Exhibits 18 and 26 were then
handed up to the jury in order for comparison of the signatures
contained on the motel registration card and the university
identification card.
Defendant relies primarily on State v. Austin, 285 N.C. 364,
204 S.E.2d 675 (1974) to support his argument that the trial court
erred by admitting the copy of the 26 June 1995 motel registrationcard. In Austin, our Supreme Court held that it was error for a
motel registration card bearing the purported signature of the
defendant to be admitted into evidence when the clerk neither knew
the defendant nor registered him at the hotel. The Austin Court
reasoned that the card was not properly admitted because “the
signature[] had not been authenticated, that is, the State did not
present evidence . . . that it was actually the . . . defendant[]
who had signed the card[].” State v. Ligon, 332 N.C. 223, 235, 420
S.E.2d 136, 141 (1992). Austin is inapposite here.
Pursuant to Rule 901 of the North Carolina Rules of Evidence,
every writing sought to be admitted must first be properly
authenticated. G.S. 8C-1, Rule 901(a). Rule 901(b)(3) of the
North Carolina Rules of Evidence provides that a jury may
authenticate a document by comparing a known sample of a person's
handwriting with the handwriting on a disputed document. G.S. 8C-
1, Rule 901(b)(3). Expert or other testimony is not required.
Here, the State offered the signature on defendant's university
identification card to the jury for comparison to the signature on
the motel registration card. This was a proper method of
authentication. Therefore, we conclude that the motel registration
card was properly authenticated and Austin does not apply.
We also reject defendant's “best evidence rule” argument.
When an original document is lost or destroyed, cannot be obtained
or is in the possession of an opponent, “[a] duplicate is
admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original or (2) in
the circumstances would be unfair to admit the duplicate in lieu of
the original.” G.S. 8C-1, Rule 1003. Here, Norris testified that
State's Exhibit 18 was an “exact copy” of the original registrationcard. Although there is nothing in the record to indicate what
happened to the original motel registration card after it was
turned over to the police, defendant has not raised any real issue
as to the authenticity of the original. Moreover, the
circumstances presented here do not indicate that it would have
been unfair to admit the copy of the registration card. Therefore,
we hold that the trial court correctly found that neither Rule 1003
exception applied requiring the production of the original
document.
Defendant further argues that the State failed to establish a
chain of custody for either the original or the copy of the motel
registration card. Admission of evidence at trial is in the trial
court's discretion, and the identification of such evidence need
not be unequivocal. State v. Smith, 134 N.C. App. 123, 516 S.E.2d
902 (1999); State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696
(1998). A trial court
exercises its discretion “in determining the
standard of certainty that is required to show
that an object offered is the same as the
object involved in the incident and is in
unchanged condition. A detailed chain of
custody need be established only when the
evidence offered is not readily identifiable
or is susceptible to alteration and there is
reason to believe that it may have been
altered. Further, any weak links in a chain
of custody relate only to the weight to be
given the evidence and not to its
admissibility.
Stinnett, 129 N.C. App. at 198, 497 S.E.2d at 700 (quoting State v.
Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984)); State
v. Jones, 342 N.C. 523, 536, 467 S.E.2d 12, 20 (1996). Here, the
trial court properly exercised its discretion in determining that
the copy of the motel registration card was “involved in the
incident” and was in unchanged condition. Although the documentmay be of the type that is susceptible to alteration, there is no
reason to believe that the document was, in fact, altered.
Therefore, under the circumstances presented here, a detailed chain
of custody was not necessary. Our courts have consistently stated
that any weak links in a chain of custody go to the weight of the
evidence, not its admissibility. Campbell, 311 N.C. 386, 389, 317
S.E.2d 391, 392 (1984); Smith, 134 N.C. App. at 126, 516 S.E.2d at
905. This assignment of error fails.
[4]Finally, defendant contends that the trial court erred by
denying his motion to dismiss his indictment for first degree
murder. Defendant argues that the indictment was faulty in that it
“failed to disclose the theory of first degree murder and failed to
disclose the precise elements against which defendant would have to
defend himself, which failure violated defendant's constitutional
rights.” Defendant acknowledges that he has raised this issue for
preservation purposes and concedes that this precise issue was
considered and rejected by our Supreme Court in State v. Wallace,
351 N.C. 481, 528 S.E.2d 326 (2000). Accordingly, this assignment
of error fails.
No error.
Judges McGEE and TYSON concur.
*** Converted from WordPerfect ***