An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-553

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2003

STATE OF NORTH CAROLINA

    v .                         Mecklenburg County
                            No. 98 CRS 51470
JAMIE WILLIAM CALDWELL

    Appeal by defendant from judgment dated 5 September 2001 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Stowers & James, P.A., by Paul M. James, III for defendant appellant.

    BRYANT, Judge.

    Jamie William Caldwell (defendant) appeals from a judgment dated 5 September 2001 entered consistent with a jury verdict finding him guilty of voluntary manslaughter.
    On 8 February 1999, defendant was indicted for first-degree murder on a short-form murder indictment. The trial court, on motion of the State, joined defendant and his brother Antonio Lamont Caldwell (co-defendant) for trial. The State's evidence presented at trial tends to show defendant, co-defendant, and others were involved in an altercation at a nursing home with Shavarez Thompson (the victim). When the victim began to get the better of the brothers, defendant ran to retrieve a sawed-offshotgun. After returning with the gun, defendant shot the victim at close range, hitting him in the abdomen. The victim later died of his wounds.
    As part of its case in chief, the State introduced redacted statements given individually to the police by defendant and co- defendant. The State also introduced videotaped deposition testimony from Christopher Robinson (Robinson), a security guard at the nursing home.   (See footnote 1)  Robinson testified he was viewing security monitors showing footage from surveillance cameras on the night before the shooting and saw two men approach the rear entrance of the nursing home and try to open the door. Because the door was locked, the two men left. This footage was recorded on the surveillance videotape. Robinson stated the surveillance videotape was already running when he started work and appeared to be in operational condition. Following the shooting, Robinson viewed the surveillance videotape with his supervisor Lisa Haimbaugh and confirmed the events depicted on the videotape. The tape was then placed in the custody of the police and checked into the property control room. Prior to giving his deposition, Robinson had reviewed the surveillance videotape and determined it had not been edited. Patrice Bidgood, co-defendant's girlfriend, testified she had been waiting in a car at the nursing home on the night before the shooting and witnessed the attempt by two men to enter the nursing home. She identified the two men in the surveillancevideotape as defendant and co-defendant. The surveillance videotape itself was admitted into evidence and shown to the jury.
    The trial court submitted to the jury charges of first and second-degree murder, voluntary manslaughter, and involuntary manslaughter. The jury returned its guilty verdict on voluntary manslaughter, and defendant was sentenced in the aggravated range based on the aggravating factor that defendant “knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.”

________________________________

    The issues are whether: (I) the short-form murder indictment should have been dismissed; (II) the trial court erred in joining defendant and co-defendant for trial and admitting their redacted statements; (III) it was error to admit the videotape depicting footage from the surveillance camera, along with the corresponding testimony of Robinson and Bidgood; (IV) failure to dismiss the first-degree murder charge prejudiced defendant; and (V) there was sufficient evidence to support the aggravating sentencing factor.
I

    Defendant first contends the use of the short-form murder indictment was error. He raises this error to preserve the claim for federal review and acknowledges that the North Carolina Supreme Court has upheld the short-form murder indictment. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000); see also State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000). As our Supreme Courthas addressed this issue in a written decision, we are bound by that precedent. See State v. Parker, 140 N.C. App. 169, 172, 539 S.E.2d 656, 659 (2000). Accordingly, we find this assignment of error to be without merit.
II

    Defendant next contends the trial court erred in joining defendant for trial with co-defendant and by admitting their redacted statements. Defendant specifically argues that some of the redacted portions of the statements were beneficial to his defense.
    The decision to allow joinder of criminal defendants for trial pursuant to N.C. Gen. Stat. § 15A-926 is ordinarily left to the sound discretion of the trial court and, “[a]bsent a showing that a defendant has been deprived of a fair trial,” the trial court's ruling will not be disturbed. State v. Green, 321 N.C. 594, 600, 365 S.E.2d 587, 591 (1988). Where a defendant has objected to joinder because of a co-defendant's out-of-court statement, it is permissible for the trial court to allow “a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him.” N.C.G.S. § 15A-927(c)(1) (2001).
    In this case, defendant asserts he was denied a fair trial because the redacted statements prevented him from using evidence that the shooting was in self-defense and/or in defense of co- defendant and that defendant did not intend to kill the victim. The redacted statements, however, clearly present defendant's contentions that he: retrieved the shotgun when he believed his brother's life was in danger; did not intentionally pull the trigger; and that the shooting occurred when the victim grabbed the shotgun. In addition, co-defendant's statement shows that he was in fear after the victim gained the upper hand in the altercation and therefore requested that someone retrieve the shotgun from the car, and further, that he was attempting to escape from the victim when the shot was fired. From this review of the redacted statements, we conclude defendant was not deprived of a fair trial by the admission of the redacted statements of defendant or his co- defendant. Accordingly, these assignments of error are also overruled.
III

    Defendant also argues it was error for the trial court to allow into evidence: (A) Robinson's videotaped deposition; (B) the surveillance videotape showing footage taken the night before the shooting; and (C) testimony from Bidgood identifying both defendant and co-defendant.
A

    Defendant argues the videotaped deposition of Robinson was irrelevant and should have been excluded as it failed to establish that the surveillance videotape was an accurate depiction of what occurred on the night before the shooting and because Robinson did not identify any particular videotape as the one that recorded the surveillance footage. Defendant apparently misconstrues theevidence. Robinson did testify that the surveillance videotape he reviewed depicted the events he had watched on the monitor on the night before the shooting. Furthermore, the State presented additional evidence showing that once Robinson identified the surveillance videotape as depicting the events he had witnessed, that particular videotape was placed in police custody and kept in the property control room.
B

    Defendant maintains that the surveillance videotape was admitted into evidence without proper foundation. “Videotapes are admissible in evidence for both substantive and illustrative purposes under N.C. Gen. Stat. § 8-97 . . . .” State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909 (1998). In order to lay an evidentiary foundation for the admission of a videotape, four things must be established:
        (1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed; (2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape; (3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing; or (4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.

State v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608 (1988) (internal quotations omitted) (citations omitted), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990); Mewborn, 131 N.C. App. at 498, 507 S.E.2d at 909.    In this case, Robinson testified he viewed the videotape once after the shooting and again prior to giving his testimony. He stated the videotape depicted what he had seen on the security monitor on that night and it did not appear to have been edited. He also testified that the surveillance system was running and appeared to be operational. The State established a chain of custody by demonstrating that once Robinson identified the surveillance videotape as depicting the events of the night prior to the shooting, that videotape was delivered to the police who placed it in the property control room. We conclude from this evidence that a proper foundation was established for the admission of the videotape depicting footage recorded by the surveillance cameras.
C

    Defendant also asserts that Bidgood's testimony identifying the two men in the videotape as defendant and co-defendant should not have been allowed as Bidgood was not present at the surveillance monitor when the events were recorded and had no personal knowledge of the events depicted by the videotape. Bidgood, however, testified that on the night before the shooting she was in a car at the nursing home and witnessed co-defendant and defendant attempt to enter the home. Based on this evidence, Bidgood had personal knowledge of both the individuals and the events depicted on the surveillance videotape and thus was properly allowed to testify to these facts. See N.C.G.S. § 8C-1, Rule 602 (2001). Therefore, we find these assignments of error withoutmerit.
IV

    Defendant contends the trial court also erred by denying his motion to dismiss the charge of first-degree murder. He argues allowing that charge to go to the jury might have resulted in a compromise verdict of guilty of voluntary manslaughter. Defendant presents nothing in the record to support this contention and, in fact, made no request to poll the jury following the reading of the verdict and before the jury was released. The trial court sua sponte asked the jurors to raise their hands if they assented to the verdict, and the record reflects unanimous agreement by the jury. Accordingly, we reject this assignment of error.
V

    Defendant finally contends the trial court erred in finding as an aggravating factor that defendant knowingly created great risk of death to more than one person through the use of a weapon that would normally be hazardous to the lives of more than one person. See N.C.G.S. § 15A-1340.16(d)(8) (2001). A shotgun is a weapon that would normally be hazardous to more than one person if it is fired into a group of two or more persons in close proximity to each other. State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990). Defendant concedes a sawed-off shotgun is a weapon normally hazardous to more than one person but disputes the trial court's finding that the weapon was fired into a group of people in close proximity to each other.
    In this case, there is no clear evidence of where the victimwas in relation to the other persons in the room or their proximity to each other. See id. at 606, 398 S.E.2d at 318 (victim was sitting on a couch next to two people); see also State v. Baldwin, 139 N.C. App. 65, 70-71, 532 S.E.2d 808, 812 (2000) (defendant fired sawed-off shotgun at two people on a bed in a small hotel room); State v. Moose, 310 N.C. 482, 497, 313 S.E.2d 507, 517 (1984) (shotgun fired into a car containing driver and passenger). Furthermore, the evidence is clear that only a single shot was fired. See State v. Bruton, 344 N.C. 381, 393, 474 S.E.2d 336, 345 (1996) (evidence showed defendant fired more than one shot in the direction of two people). In this case, the evidence of record shows the shotgun was fired at fairly close range into the victim's abdomen. There is no evidence to indicate defendant threatened anyone else with the weapon or intentionally endangered others. Also, the trial court made no attempt during sentencing to ascertain the proximity of the persons in the room. Baldwin, 139 N.C. App. at 71, 532 S.E.2d at 812. From this record, we conclude there is insufficient evidence to support the aggravating sentencing factor that defendant knowingly created a great risk of death to more than one person through the use of a weapon which would normally be hazardous to more than one person. Accordingly, it was error to find this aggravating factor, and this case must be remanded for resentencing.
    No error in Guilt/Innocence Phase.
    Remanded for resentencing.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
    Robinson's testimony was videotaped because he was serving in the United States Air Force and awaiting deployment to southwest Asia.

*** Converted from WordPerfect ***