An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-653
            
                                        
NORTH CAROLINA COURT OF APPEALS
    

Filed: 6 April 2004

STATE OF NORTH CAROLINA

v .                         Harnett County
                            No. 97 CRS 3573-74
SALRAMON GONZALES

    Appeal by defendant from judgment entered 24 May 2002 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 1 March 2004.

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

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.

    LEVINSON, Judge.

    Salramon Gonzales (defendant) appeals from convictions of first degree sexual offense and first degree kidnapping. We conclude the defendant's trial was free of reversible error.
    The State's evidence is summarized as follows: On 5 February 1997 law enforcement officers from the Dunn, North Carolina, police department were dispatched to an apartment at 211 N. King, Dunn, where they found the body of an Hispanic man, later identified as Tomas Cabrera. While there, Dunn Police Department Lieutenant Hawley spoke briefly with Guadencia Aguirre Martinez. Hawley testified that Martinez had dried blood on his face, was upset and crying, and told Hawley he had been “treated like a woman” and that “they killed my friend.”     Martinez was taken to the hospital, where he was treated by R.N. Dwight Pope before being released. Pope testified without objection   (See footnote 1)  that Martinez appeared “anxious . . . bruised and bloody,” and that he had a black eye, blood and bruises on his face and legs, and dried blood on his rectum. Martinez was not wearing underwear when he arrived at the hospital. He told Pope that he had been visiting the apartment of two Hispanic men who had beaten and raped him and sodomized him with a bottle. While at the hospital, Martinez spoke with Hawley again about the assault, and identified photos of defendant and one “Johnny Bonilla” as being his attackers.
    When law enforcement officers found Cabrera's body, he was trussed up with electric cord, and cloth was stuffed in his mouth. The officers removed various items from the apartment, including electric cord, articles of clothing, scissors, and a bottle with fecal material on the neck. Dr. Robert Thompson with the office of the Chief Medical Examiner determined that Cabrera's death resulted from a combination of strangulation by the cloth in his mouth and the cord wrapped around his neck, and a fractured spine caused by the pressure from the cord that had arched his neck backwards to “an extreme degree.”
    Four years after Cabrera was killed, in February 2001, defendant was arrested in Florida and charged with first degreemurder and first degree sex offense against Cabrera, and first degree sex offense and first degree kidnapping against Martinez. On the plane flight back to North Carolina, defendant made a statement to Special Agent Michael East of the S.B.I., admitting involvement in the events of 4 February 1997. East testified that defendant told him the following: Defendant had been in the U.S. since 1988 and could speak and read English. In 1997, he knew a man named Johnny Bonilla and in February 1997 he and Bonilla were staying in Cabrera's apartment. Martinez visited Cabrera's apartment on the night of 4 February 1997 and the four men drank a lot of beer. At some point in the evening, defendant heard Bonilla fighting with Cabrera in the bedroom. He went back to the bedroom and saw Bonilla tying Cabrera up with a cord and stuffing a cloth in his mouth. Bonilla then tied up Martinez with defendant's help. Defendant took off Martinez's pants and belt, used scissors to cut up his underwear, and inserted a bottle in Martinez's rectum. Thereafter, Bonilla had anal sex with Martinez and defendant left the room. Defendant told East that he took part in the attack at Bonilla's direction because he was frightened of Bonilla. He denied harming Cabrera, having anal sex with either Cabrera or Martinez, or threatening Martinez with a knife or scissors. When he and Bonilla left for work the next morning, Martinez was still alive but Cabrera was no longer moving.
    The defendant did not present evidence. The jury acquitted defendant of the charges of first degree murder and first degree sex offense against Cabrera, and convicted him of first degree sexoffense and kidnapping of Martinez. Defendant received concurrent prison terms of 384 to 450 months (32 to 37 years) for first degree sex offense and 107 to 138 months for first degree kidnapping. From these convictions, defendant appeals.

_____________________________________
    Defendant argues first that the trial court erred by admitting into evidence the second statement given by Martinez to Lt. Hawley. Martinez made his first statement shortly after Cabrera's body was discovered, while he was in a patrol car. Later that day, Hawley took a second statement from Martinez, at the hospital where Martinez was being treated for his injuries. Defendant argues that the trial court committed reversible error by admitting this statement. We disagree.
    Martinez did not testify at trial, but his hearsay statement was admitted over objection, under North Carolina Rule of Evidence 804(b)(5). The erroneous admission of hearsay statements violates a defendant's Sixth Amendment right to confront witnesses against him. Crawford v. Washington, __ U.S. __, __ L. Ed. 2d __ (2004 U.S. LEXIS 1838). “In considering whether a violation of a defendant's constitutional right constituted prejudicial error, this Court must determine whether the error was harmless beyond a reasonable doubt.” State v. Jolly, 332 N.C. 351, 360-61, 420 S.E.2d 661, 667 (1992) (citation omitted). In the instant case, we conclude that the error, if any, in the admission of Martinez's second statement to Hawley was harmless beyond a reasonable doubt.     Martinez's second statement to Hawley tended to show the following: On 4 February 1997, after quarreling with his girlfriend, Martinez went to Cabrera's apartment and drank alcoholic beverages. Also present at the apartment were Cabrera and two other men whom Martinez knew as “Alex” and “Johnny.” When Johnny and Cabrera began arguing and Martinez intervened, Johnny responded by tying up both Martinez and Cabrera. Alex threatened Martinez with a knife while Johnny tied him up. Alex also cut off his underwear and threatened to castrate Martinez. When Martinez was tied up, Alex inserted a bottle in Martinez's rectum, and both men had anal sex with him. After Alex and Johnny left for work the next morning, Martinez freed himself and escaped.
    Upon consideration of Martinez's second statement to Hawley, we conclude that essentially the same information was introduced through other witnesses or testimony. In his initial statement to Hawley, Martinez said he had been “treated like a woman” and that his friend had been murdered. At the hospital, Martinez told Pope he was tied up, assaulted, raped, and sodomized with a beer bottle. He also identified a photograph of defendant as being “Alex,” one of his assailants. Moreover, defendant admitted to (1) being present during the assault; (2) helping Bonilla tie up Martinez and cutting off his underwear; and (3) inserting a beer bottle in Martinez's rectum.
    In the instant case, defendant does not challenge the admission of any of the evidence and testimony above, thereby waiving appellate review of their admissibility. N.C.R. App. P.28(b)(6). Where the same evidence is properly admitted through other testimony, any error in admission of a given statement is harmless beyond a reasonable doubt. State v. Wiggins, 159 N.C. App. 252, 259, 584 S.E.2d 303, 310 (2003). We conclude that “even if the evidence were improperly admitted, there was other evidence to the same effect . . . corroborating this testimony . . . and thus the error, if any, was harmless beyond a reasonable doubt.” State v. Roper, 328 N.C. 337, 360, 402 S.E.2d 600, 613 (1991). Accordingly, we have no need to determine if its admission was erroneous. This assignment of error is overruled.
_______________________________
    Defendant argues next that the trial court erred by not inquiring, sua sponte, whether defendant understood and knowingly waived his right to testify. Defendant acknowledges that the North Carolina Supreme Court ruled to the contrary in State v. Hayes, 314 N.C. 460, 474-75, 334 S.E.2d 741, 750 (1985), but asks this Court to reconsider the holding of Hayes. In State v. Jones, 357 N.C. 409, 417, 584 S.E.2d 751, 756 (2003), the North Carolina Supreme Court rejected defendant's argument:
        [D]efendant argues that the trial court erred in failing to inquire sua sponte whether defendant wanted to testify on his own behalf. . . . Defendant argues that just as an accused's failure to request counsel on his own does not constitute a waiver of counsel in the context of custodial interrogations, defendant's failure to notify the trial court on his own cannot constitute a waiver of defendant's right to testify. We reject this argument. Unlike an accused in a custodial interrogation, defendant in this case had two defense attorneys representing him. We find no reason to overrule our decision in Hayes.
(citing State v. Hayes, id.). Defendant argues that Jones is distinguishable from the instant case because the defendant herein had limited education and was not a native English speaker. However, the holding of Jones was not based on the characteristics of the defendant, but on the fact that he was represented by counsel, as is the defendant in the instant case. We find Jones controlling on this issue. This assignment of error is overruled.
__________________________
    Finally, defendant argues that the use of the “short form” indictment to charge him with first-degree sexual offense was unconstitutional because it does not allege all the elements of first degree sex offense. Defendant concedes that the North Carolina Supreme Court has ruled otherwise, see State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000). “As defendant only presents the issue for preservation purposes, we note this assignment of error and overrule it.” State v. Gantt, __ N.C. App. __, __, 588 S.E.2d 893, 895, disc. review denied, __ N.C. __, __ S.E.2d __ (2004 N.C. LEXIS 127) (binding precedent of the North Carolina Supreme Court bars defendant's argument that short-form indictment charging second-degree sexual offense was unconstitutional).
    We conclude that the defendant had a fair trial, free of prejudicial error.
    No Error.
    Judge WYNN concurs in the result with separate opinion.
    Judge TIMMONS-GOODSON concurs.    Report per Rule 30(e).
NO. COA03-653
    

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

v .                         Harnett County
                            No. 97 CRS 3573-74
SALRAMON GONZALES,
    Defendant.

    WYNN, Judge concurring in the result.

    The United State Supreme Court's recent opinion in Crawford v. Washington, 541 U.S. ____ (8 March 2004) established new rules for determining whether a criminal defendant's constitutional right to be confronted with the witnesses against him was violated. Prior to Crawford, the admission of an unavailable witness's statement against a criminal defendant was not violative of the sixth amendment confrontation right if the witness's statement bore adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980). To meet that test, evidence must fall within a firmly rooted hearsay exception or bear particularized guarantees of trustworthiness. Crawford, 541 U.S. at _____. Crawford replaced this test with a new focus upon the testimonial or nontestimonial nature of the out-of-court statement.
    Writing for the Court in Crawford, Justice Scalia stated:
        Where testimonial evidence is at issue, ..., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
Crawford, 541 U.S. at _____. Thus, out-of-court testimonial statements are admissible only when the witness is unavailable and there has been a prior opportunity for cross-examination of that witness. As for nontestimonial statements, hearsay law governs its admissibility. Id.
    In determining whether hearsay statements violate a defendant's Sixth Amendment right to confront witnesses against him, Crawford requires us to first determine whether the statement is testimonial or nontestimonial in nature. Crawford, however, did not define the term testimonial statements; nonetheless, the Court recognized the following as testimonial in nature: (1) plea allocutions showing the existence of a conspiracy, (2) grand jury testimony, (3) prior trial testimony, and (4) ex parte testimony at a preliminary hearing, and (5) statements taken by police officers taken in the course of interrogations.   (See footnote 2)  Crawford, 541 U.S. at _____ (p. 16, 29). Indeed, the Court indicated that some statements covered by the hearsay exceptions were not testimonial in nature-- such as, business records or statements in furtherance of a conspiracy. Crawford, 541 U.S. at _____ (p. 20). Moreover, the Court also left open the question of whether the Sixth Amendment incorporated an exception for testimonial dying declarations. Id. at FN 6.     If the statement is testimonial, it must then be determined whether the declarant was unavailable and if there was a prior opportunity for cross-examination. If the declarant was available or if there was not a prior opportunity for cross-examination, then Defendant's Sixth Amendment right to confront the witnesses against him was violated. However, if the statement is characterized as nontestimonial, then the rules of evidence, including hearsay rules, apply.
    Implicitly, the majority recognizes that the statement in this case was testimonial, the declarant was unavailable, Defendant had no prior opportunity to confront the witness; and therefore, Defendant's Sixth Amendment right to confront the witness against him was violated. Crawford likewise found the statement in that case to be violative of the Sixth Amendment but did not thereafter undertake a harmless error analysis to determine if the constitutional violation constituted prejudicial error. However, the facts of Crawford indicate the violation did not constitute harmless error. Indeed, in that case, the prosecution relied upon the wife's tape-recorded statement to undermine the husband's assertion of self-defense. In its closing argument, the prosecution characterized her statement as “damning evidence” that “completely refutes [the defendant's] claim of self-defense.” Crawford, 541 U.S. at ____ (p. 4). Thus, in Crawford, the facts indicate the admission of the testimonial statement was not harmless beyond a reasonable doubt.     Unlike Crawford, in this case, Defendant admitted to (1) being present during the assault; (2) helping Bonilla tie up Martinez and cutting off his underwear; and (3) inserting a beer bottle in Martinez's rectum. Moreover, the victim identified Defendant's picture as one of his assailants. Therefore, as the majority concludes, upon consideration of Martinez's second statement to Hawley, essentially the same evidence was introduced through other witnesses or testimony. As this renders the constitutional violation non-prejudicial, I concur in the result.


Footnote: 1
    In his reply brief, defendant asserts that he objected to Pope's testimony. In fact, defendant objected to only one question asked of Pope, and later apologized to the trial court for arguing that Pope's testimony was inadmissible, saying he had “no problem with that testimony anyway.”
Footnote: 2
        By interrogation, the Court indicated it used the t erm in its colloquial, rather than any technical legal, sense. As stated by the Court: “Just as various definitions of testimonial exist, one can imagine various definitions of interrogation, and we need not select among them in this case.” Crawford, 541 U.S. at ______, FN 4.

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