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