NO. COA02-1258

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

    Appeal by defendant from judgment entered 31 March 2000 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 11 June 2003.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Alexander McC. Peters, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    
    MARTIN, Judge.
    
    Defendant appeals from a judgment sentencing him to life in prison without parole upon his conviction of the first degree murder of Valerie Renee McCullers. The State's evidence tended to show that in March 1999 McCullers lived in Raleigh with her two year old son and cousin Leon Hinton. McCullers and defendant were involved in a romantic relationship that was volatile at times. On more than one occasion, defendant hit McCullers, requiring that she seek treatment at the hospital. Although McCullers and defendant were not engaged, McCullers had accepted, and wore, a ring which defendant gave her.
    McCullers' friend Wanda Anderson testified that on 15 March 1999, McCullers arrived at Anderson's home at approximately 9:30p.m. McCullers appeared worried and told Anderson she needed to talk. McCullers stated that she had argued with defendant earlier that evening and had noticed he was following her. McCullers expressed to Anderson that she was tired of defendant and wanted to end their relationship, but was scared of him because he had physically hurt her in the past. Anderson testified that approximately fifteen minutes after McCullers arrived, defendant knocked on the door. Defendant came inside and immediately walked toward McCullers and asked her several times the whereabouts of the ring he had given her. McCullers told defendant she did not have the ring. Defendant emptied McCullers' pocketbook onto the table. The two began to talk, and McCullers told defendant “she wanted to break up with him because she was tired of going to school with black eyes.” Anderson testified that defendant and McCullers continued to talk at her kitchen table for some time until defendant left at approximately 11:30 p.m. McCullers told Anderson that defendant said he would not bother her when she went home, but that she did not believe him. McCullers appeared worried that defendant might hurt her later that evening. McCullers left Anderson's house about fifteen minutes after defendant.
    Leon Hinton testified that around midnight that evening, defendant came to McCullers' house and asked Hinton if he had seen McCullers. Hinton responded that he had not. Defendant then began to pack some belongings he kept at McCullers' house and told Hinton he was moving home. Defendant loaded the belongings into his car and left. Hinton testified that defendant returned to the houseapproximately one hour later and asked Hinton if he had seen McCullers yet. Hinton responded that he had not, and defendant went outside. Hinton testified that at approximately 1:45 a.m., McCullers arrived home, and defendant entered the house after her. Hinton heard defendant asking McCullers for a ring, and McCullers told defendant “you gave me this ring and you said it was mine and I should not give it back to you.” Hinton testified the two were speaking loudly, and that defendant reiterated he would leave if McCullers would simply give him the ring. Hinton also heard defendant asking McCullers if she had been with another man earlier that evening, which McCullers denied. Hinton testified he did not want to be in the house while the two were fighting, so he left at approximately 2:20 a.m. and walked to an uncle's house where he spent the rest of the night.
    At approximately 2:40 a.m., McCullers' father Ira Jackson received a telephone call from defendant. Defendant told Jackson that he and McCullers “couldn't come to an agreement” and that Jackson should “[c]heck Wake Medical.” Jackson testified that defendant was “snicker[ing]” on the phone and acting “[l]ike he had done something great.” Defendant also called 911 and was at McCullers' house when assistance arrived. Police discovered McCullers, barely conscious, sitting on the floor covered in blood. There were signs of struggle and blood throughout McCullers' house and large amounts of blood in the master bedroom. Defendant, whose hands and pants were spattered with blood, confessed to being the perpetrator of McCullers' injuries and voluntarily placed his handsbehind his back. Defendant was placed under arrest and informed of his rights. While being transported to the police station defendant told police they would find the weapon in the bedroom. Police recovered a broken paring knife from the master bedroom. McCullers was transported to Wake Medical Center where she died 17 March 1999 as a result of multiple stab wounds.
    Defendant presented the testimony of Dr. Nathan Strahl, an expert in forensic and substance abuse psychiatry, that defendant suffered from “intermittent explosive disorder” such that he becomes “very angry very, very quickly . . . far in excess of what is called for for the incident” and is “explosive and then after that anger is exploded upon he comes back down very quickly to feeling back to his old self.” Dr. Strahl testified that this diagnosis required a showing of repetitive disproportionate explosive behavior, and that he was able to substantiate such a history with defendant. Dr. Strahl testified that defendant acknowledged having assaulted McCullers, but was remorseful and in disbelief that he could have stabbed McCullers some thirty times. In Dr. Strahl's opinion, defendant “was significantly impaired from his mental illness of intermittent explosive disorder at the time of the assault,” and was incapable of forming the specific intent to kill McCullers.
    In rebuttal, the State offered the testimony of Dr. Robert Rollins who also testified as an expert in forensic psychiatry. Dr. Rollins diagnosed defendant with adjustment disorder with mixed anxiety and depressed mood, personality disorder evidenced by anonspecific pattern of dysfunctional behavior, and partner relational problems, inasmuch as defendant had significant difficulties in his relationships with females. Dr. Rollins testified that defendant's dysfunctional behavior and explosiveness was explained by his personality disorder, not intermittent explosive disorder, which is viewed as a rare occurrence, because defendant had admitted to some fifty episodes of rage, and the incidents were therefore not sufficiently rare to constitute intermittent explosive disorder. In Dr. Rollins' opinion, while defendant was clearly upset and exhibited inappropriate and aggressive behavior at the time of the assault, defendant did not have a mental disorder at that time which would have prevented him from planning the assault and forming a specific intent to kill McCullers.

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    Defendant brings forth in his brief only ten of the thirty- eight assignments of error contained in the record on appeal. Defendant has therefore abandoned all remaining assignments of error not addressed in his brief. See N.C. R. App. 28(a); 28(b)(6). Defendant presents the following issues for our review: whether the trial court erred in admitting (1) hearsay testimony regarding a prior assault committed by defendant; (2) evidence of a prior assault committed by defendant under G.S. § 8C-1, Rule 404(b); (3) testimony that defendant exercised his right to remain silent after his arrest; (4) statements that defendant had been charged with kidnapping in relation to another incident; and (5) testimonypertaining to defendant's character. For the following reasons, we find no prejudicial error which would entitle defendant to a new trial.

I.

    We address defendant's first two arguments concurrently, as they pertain to admission of the same evidence, i.e., testimony that defendant assaulted girlfriend Johnnie Mae Williams in October 1996. The State argued the evidence was admissible under G.S. § 8C-1, Rule 404(b), and the trial court agreed, finding the evidence probative as to motive, intent, preparation, absence of plan and mistake. Defendant objected to admission of the evidence on hearsay grounds, but the trial court agreed with the State that the evidence fell within the hearsay exception provided by G.S. § 8C-1, Rule 804.
    The trial court permitted Deputy Travis Holdorf, who investigated the Williams assault, to testify that he received a call from the police dispatcher about a domestic violence situation involving a knife. When Holdorf arrived on the scene, defendant was on the front porch. Holdorf asked defendant the location of the knife, and defendant, who appeared calm, rolled his head towards a machete laying on the porch a few inches from him. Williams came out of a neighbor's house with her hand wrapped in a towel and told police defendant had cut her. Holdorf testified that Williams looked like she had been “beaten up and cut pretty good.” Williams told Holdorf that she and defendant cohabitated, and that he had asked her to go to a bar with him that evening. When Williams refused, defendant became angry, told Williams to pack her bags, and when she began to do so, he attacked and beat her in the bedroom. When Williams retreated to the bathroom, defendant retrieved the machete and struck Williams' hand with the knife resulting in a significant wound. Deputy Tina Goff identified the machete used in the assault.
    Defendant argues the admission of this testimony constituted reversible error because it was inadmissible hearsay and because its probative value was outweighed by its prejudice to defendant. However, evidence of the Williams assault and other similar incidents were later elicited from Dr. Strahl both on direct examination and on cross-examination without objection from defendant. Dr. Strahl referenced the Williams incident during his direct examination, testifying about a 1996 altercation in which defendant cut his girlfriend with a machete and was very calm after the assault. On cross-examination, and without objection, Dr. Strahl further testified that his notes about the Williams incident indicated the two had been in an argument and defendant hurt Williams badly. Dr. Strahl also testified regarding several other incidents in which defendant exhibited sudden explosive behavior and physically harmed a female with whom he was involved in a relationship, including an assault on his wife during an argument in 1986 in which he placed her in a headlock, and an incident in 1994 wherein defendant became very angry and assaulted his girlfriend with a club. Indeed, Dr. Strahl testified that when he reviewed defendant's history, there was “time and time and timeagain where what happened to Ms. McCullers has also happened in the past in terms of violence,” and “case after case . . . where [defendant] becomes explosive on a moments notice.”
    “An objection to the admission of evidence is waived where the same or similar evidence is subsequently admitted without objection.” State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748 (2002). Moreover, the erroneous admission of hearsay and other evidence does not require a new trial unless the defendant can carry his burden of showing “a reasonable possibility that a different result would have been reached at trial if such error had not occurred.” State v. Smith, 351 N.C. 251, 264, 524 S.E.2d 28, 38 (citing N.C. Gen. Stat. § 15A-1443(a) (1999)), cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000). In light of Dr. Strahl's testimony about the Williams incident and other instances of defendant's violence similar to the Williams and McCullers assaults, defendant cannot carry his burden of establishing a reasonable possibility that he would not have been convicted of first degree murder had Deputies Holdorf and Goff not testified about the Williams assault. These assignments of error are overruled.

II.

    Next, defendant contends the trial court erred in admitting testimony regarding defendant's exercise of his right to remain silent following his arrest in the Williams assault. Deputy Holdorf was permitted to testify over objection that defendant, while seated in the back of Holdorf's patrol car, would not answerhis question as to what had occurred, and that defendant never complained of being injured. In response to the prosecutor's question as to what happened to defendant later that evening, Holdorf testified that he “was taken to [police] headquarters where he was read his rights . . . and he invoked his right to an attorney.”
    While it is generally the case that a defendant's exercise of his constitutionally protected right to remain silent may not be used against him at trial, any such “'constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt.'” State v. Bailey, __ N.C. App. __, __, 577 S.E.2d 683, 687 (2003) (citation omitted). Holdorf's statements regarding defendant's silence related only to the investigation of the Williams assault and did not pertain to the events for which defendant was being tried or to the issue of premeditation and deliberation in the McCullers assault, which defendant concedes was the only issue in dispute at his trial. Thus, even if the trial court's failure to sustain defendant's objection were error, there is no reasonable doubt that the error was harmless. In any event, defense counsel subsequently elicited repeated testimony from Deputy Holdorf on cross-examination, without objection or a motion to strike, that defendant refused to answer investigators' questions about the assault. See State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (defendant cannot complain of testimony that he exercised right to remain silent where testimony was elicited by defense on cross-examination and defense neither objected nor movedto strike testimony), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Defendant is not entitled to a new trial on this basis.

III.

    Defendant next argues he is entitled to a new trial because the trial court erroneously allowed the State to ask Dr. Strahl on cross-examination whether he knew defendant had been arrested for kidnapping as a result of a prior assault in 1994. In an effort to disprove Dr. Strahl's theory that defendant suffered from intermittent explosive disorder such that he would immediately calm down and return to normal after an explosive rage, the State questioned Dr. Strahl as to whether he was aware that in the 1994 incident defendant held the victim hostage for three days after assaulting her with a club. As a follow-up question, the State asked Dr. Strahl whether he was aware defendant had been arrested for kidnapping as a result. Defendant objected, and Dr. Strahl was permitted to testify that he did not recall. Defendant argues the prosecutor's statement about the prior arrest was wholly irrelevant and therefore unduly prejudicial.
    “Our courts, however, 'wisely permit[] evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.'” State v. Cabe, 131 N.C. App. 310, 313, 506 S.E.2d 749, 751 (1998). “'“Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidencewould be incompetent or irrelevant had it been offered initially.”'” State v. Pretty, 134 N.C. App. 379, 388, 517 S.E.2d 677, 684 (citations omitted), disc. review denied, 351 N.C. 117, 540 S.E.2d 745 (1999); see also, e.g., State v. Belfield, 144 N.C. App. 320, 548 S.E.2d 549 (2001) (defendant opened door to State's question as to whether reason witness would not leave children home alone with defendant was because defendant smoked crack cocaine in front of children; defense counsel had asked witness whether she left children at home alone with defendant, thereby entitling State to examine details of situation).
    In the present case, defendant presented extensive testimony from Dr. Strahl regarding his diagnosis, which was based on defendant's exhibition of a pattern of exploding in a rage that would drive him to assault another person and immediately calming and returning to his normal self after the anger had exploded. Dr. Strahl testified specifically that the 1994 assault was typical of this pattern of behavior and that he had examined and considered the circumstances of the 1994 assault in diagnosing defendant with intermittent explosive disorder. Additionally, Dr. Strahl testified on direct that he had reviewed defendant's prior criminal record in conjunction with his assessment of defendant's mental condition.
    We believe that, with this testimony, defendant opened the door to questions about the 1994 incident and specifically about defendant's behavior after the assault and any evidence which might have indicated that defendant did not return to normal immediatelyfollowing the assault. Moreover, because Dr. Strahl testified that he had reviewed defendant's prior criminal history as relevant to his assessment of defendant, we believe the State was permitted to question Dr. Strahl about this history as it specifically pertained to the 1994 incident and Dr. Strahl's observations about defendant's pattern of behavior. Even if the trial court erred in permitting the question, “'the admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded.'” State v. Wilson, 151 N.C. App. 219, 226-27, 565 S.E.2d 223, 228 (citation omitted), cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002). In light of all of the evidence, particularly as to defendant's history of violence, defendant cannot establish that the prosecutor's question about the kidnapping charge in an unrelated incident likely caused his conviction.

IV.

    In his final argument, defendant asserts the trial court erred in permitting McCullers' sister, Sherry Paysour, to testify to her observations of how defendant treated McCullers and acted around McCullers and her family. Defendant argues Paysour's testimony was nothing more than evidence of defendant's bad character which was inadmissible because defendant had not put his character into issue. However, a review of Paysour's testimony reveals that the purpose of her testimony was not to establish defendant's bad character but to illustrate the nature of the relationship he hadwith McCullers and her family through specific instances of conduct which Paysour had personally observed. Though this testimony may have painted defendant in a negative light, Paysour was entitled to testify to the specific conduct she observed about defendant as it related to his behavior around McCullers and his actions toward McCullers and her family.
    Under G.S. § 8C-1, Rule 701, a lay witness may testify in the form of opinions or inferences that are based on the witness' own perceptions and are helpful to an understanding of the witness' testimony or a fact in issue. N.C. Gen. Stat. § 8C-1, Rule 701 (2002). “'The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence.'” State v. Lloyd, 354 N.C. 76, 109, 552 S.E.2d 596, 620 (2001) (citation omitted). In State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999), the defendant objected to testimony from State witnesses to the effect that the victim did not appear to be happy in his relationship with the defendant, that there appeared to be tension between the defendant and the victim, that suspicion was on the defendant following the victim's murder, and that after the murder, the defendant appeared to be trying to act emotional. Id. at 203, 513 S.E.2d at 63. Our Supreme Court held that “the witnesses' testimony of their impressions of the victim, the defendant, and their marital relationship were all based on their own personalobservations and were as such shorthand statements of fact” clearly falling within Rule 701. Id. at 203, 513 S.E.2d at 64. Similarly, Paysour's testimony as to her impressions of defendant and his relationship with McCullers were based on her personal observations and were admissible under Rule 701. These assignments of error are overruled.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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