1. Criminal Law_continuance denied_no prejudice
The trial court did not abuse its discretion by denying defendant's motion for a
continuance to prepare for a witness not disclosed by the State until the morning of the trial. The
trial court did postpone the trial for one day to allow defense counsel to interview the witness and
there was no evidence of how defendant would have been better prepared with the continuance or
that he was materially prejudiced by its denial.
2. Criminal Law_impermissible juror contact_requested limiting instruction denied
There was no prejudicial error in the trial court's refusal give defendant's requested
limiting instruction that neither the defense nor the State was connected with an impermissible
contact with jurors in an elevator. The court questioned the jurors about their ability to be fair
and impartial, and defendant did not show that any jurors were prejudiced by the misconduct or
that there would have been a different result with the instruction.
3. Criminal Law_control of witness examination_no abuse of discretion
The trial court did not abuse its discretion in a prosecution for murder and assault in its
efforts to control the examination of witnesses by defense counsel. Although defendant argued
that the court gave the jury a sense of partiality favoring the State, it is clear that the court
focused on moving the trial forward.
4. Constitutional Law_right of confrontation--reports forming basis of expert
opinion_no violation
The Confrontation Clause does not act as a bar to testimonial statements admitted for
purposes other than the truth of the matter asserted. The trial court here did not err when it
allowed an SBI agent to use another agent's report as the basis of his expert opinion that shell
casings were discharged from the weapon in question. It is clear in this case that the testimony
was offered as the basis of an expert's opinion rather than for the truth of the matter asserted.
5. Constitutional Law_double jeopardy_attempted first-degree murder and assault_no
violation
Double jeopardy was not violated by the submission to the jury of both attempted first-
degree murder and assault with a deadly weapon inflicting serious injury. The charge of
attempted murder does not contain an assault with a deadly weapon or serious injury requirement,
and assault with a deadly weapon with intent to kill inflicting serious injury does not require
premeditation and deliberation.
6. Sentencing_prior record level_defendant's stipulation_no prejudice
There was no prejudicial error in the determination of defendant's prior record level for
sentencing where defense counsel appeared to stipulate to the State's worksheet. Moreover,
defendant's record level is the same even without the conviction defendant now claims was
erroneously considered.
Judge HUDSON concurs in the result only.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Kathleen M. Waylett, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
JACKSON, Judge.
On 10 September 2003, a jury convicted Teddy Terrell Bethea
(“defendant”) of one count of attempted first-degree murder and one
count of assault with a deadly weapon with intent to kill
inflicting serious injury against Efrem Colson (“Colson”). The
jury also convicted defendant of one count of attempted
first-degree murder and one count of assault with a deadly weapon
with intent to kill inflicting serious injury against Michelle
Carden (“Carden”). After consolidating the counts, the trial court
sentenced defendant, a level IV offender, to confinement in the
North Carolina Department of Correction for a minimum of two
hundred and fifty-one months and a maximum of three hundred and
eleven months.
On 27 November 2001, Carden and Colson were shot while sitting
in Carden's car in front of a house located in Guilford County,
North Carolina. After the shooting, Carden and Colson left the
scene to find help. Upon finding police officers, Carden got outof the vehicle and Colson drove away. Carden had a gunshot wound
to her right shoulder, and was bleeding from her left forearm.
Colson was found in the vehicle into which defendant had fired.
Both individuals were subsequently hospitalized for their injuries.
Defendant was apprehended leaving the scene of the shooting.
At the scene, officers found three shell casings in the
roadway. The windshield of the vehicle Colson was found in had a
bullet hole in it. The passenger's side window had been shot out
and there was blood located on that side of the vehicle. A 9mm
Glock Pistol (the “weapon”) was found a few weeks after the
shooting near where defendant had been seen running away from the
scene of the shooting. State Bureau of Investigation Agent Dave
Santora (“Agent Santora”), a forensic firearms examiner, tested the
weapon and determined that the four shell casings recovered from
the scene were from the same weapon recovered by officers
investigating the shooting. It was later determined that the gun
used in the shooting had been stolen by Colson and Kevin Darden
(“Darden”), approximately one month prior to the shooting and that
Darden subsequently had sold the weapon to defendant.
At the scene, Detective James O'Connor (“Detective O'Connor”)
questioned Carden about the identity of the shooter. Carden stated
that she did not know defendant and had never seen him before, but
that she heard Colson yell, “Teddy Bethea shot us.” Carden also
identified defendant as the shooter in a lineup and at trial, and
provided a statement to the police, identifying defendant as the
shooter. On 30 June 2003, the trial court granted defense counsel's
motion to continue in order to allow for additional time to prepare
for the hearing and to investigate the facts relating to the weapon
used in the shooting. On 2 September 2003, the first day of trial,
the State provided defendant with a copy of a statement it had
obtained from Darden. The State's attorney notified defense
counsel approximately two hours prior to trial that they had
located and interviewed a witness (Darden) incarcerated in the
North Carolina Department of Correction, who was prepared to
testify at trial that he had stolen the weapon during a breaking
and entering and then sold that firearm to defendant. Defense
counsel moved to continue the case because he needed more time to
investigate this new information. The trial court denied defense
counsel's motion, but recessed the hearing until the following
morning to allow time for defense counsel to interview Darden.
Defendant, while testifying at trial, denied shooting Colson
and Carden, denied buying the weapon from Colson and Darden, and
denied accusing Colson of stealing from him.
[1] Defendant first asserts that the trial court committed
reversible error when it denied defense counsel's motion to
continue because defense counsel was not permitted sufficient time
to investigate and prepare for the State's untimely disclosure of
a new witness on the morning of defendant's trial. Defendant
further contends that the trial court committed reversible error
when it denied defendant's motion for a mistrial when there wasimpermissible contact with jurors, prejudicing defendant's jury
panel.
It is within the trial court's discretion to grant or deny a
motion for continuance. State v. Tunstall, 334 N.C. 320, 328, 432
S.E.2d 331, 336 (1993) (citing Ungar v. Sarafite, 376 U.S. 575,
589, 11 L. Ed. 2d 921, 931 (1964)); State v. Roper, 328 N.C. 337,
348, 402 S.E.2d 600, 606, cert. denied, 502 U.S. 902, 116 L. Ed. 2d
232 (1991). While this determination rests within the trial
court's discretion, “that discretion does not extend to the point
of permitting the denial of a continuance that results in a
violation of a defendant's right to due process.” Tunstall, 334
N.C. at 328, 432 S.E.2d at 336; Roper, 328 N.C. at 349, 402 S.E.2d
at 606. When a motion for continuance is based upon a defendant's
constitutional right to assistance of counsel and to confront
witnesses, the issue is one of law and thus becomes fully
reviewable on appeal. State v. Harris, 290 N.C. 681, 686, 228
S.E.2d 437, 440 (1976); see Tunstall, 334 N.C. at 328, 432 S.E.2d
at 336 (citing State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d
742, 744 (1977); State v. Smathers, 287 N.C. 226, 230, 214 S.E.2d
112, 114-15 (1975); State v. Hackney, 240 N.C. 230, 235, 81 S.E.2d
778, 781 (1954); State v. Farrell, 223 N.C. 321, 326, 26 S.E.2d
322, 325 (1943)). This constitutional right to assistance of
counsel and the right to confront witnesses are “'guaranteed by the
Sixth and Fourteenth Amendments to the Constitution of the United
States and by sections 19 and 23 of Article I of the Constitution
of North Carolina.'” Tunstall, 334 N.C. at 328, 432 S.E.2d at 336(citing State v. Harris, 290 N.C. 681, 686-87, 228 S.E.2d 437, 440
(1976)).
A defendant further is entitled to have “'reasonable time to
investigate, prepare and present his defense.'” Tunstall, 334 N.C.
at 328, 432 S.E.2d at 336 (quoting Harris, 290 N.C. at 687, 228
S.E.2d at 440). Our Court previously has found that there is no
definite “'length of time for investigation, preparation and
presentation . . ., and whether [the] defendant is denied due
process must be determined upon the basis of the circumstances of
each case.'” Tunstall, 334 N.C. at 329, 432 S.E.2d at 337 (quoting
Harris, 290 N.C. at 687, 228 S.E.2d at 440); State v. Horner, 310
N.C. 274, 277, 311 S.E.2d 281, 284 (1984). To establish that a
constitutional violation has occurred,“a defendant must show that
he did not have ample time to confer with counsel and to
investigate, prepare and present his defense.” Tunstall, 334 N.C.
at 329, 432 S.E.2d at 337. Inadequate time to prepare may be shown
by defendant through either a showing of “'how his case would have
been better prepared had the continuance been granted or that he
was materially prejudiced by the denial of his motion.'” Id.
(quoting State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526
(1986)); see also State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d
886, 894 (2004) (“'[W]hen the motion raises a constitutional issue,
denial of the motion is grounds for a new trial only upon a showing
that “the denial was erroneous and also that [the] defendant was
prejudiced as a result of the error.”'”) (quoting State v. Branch,
306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)). In the instant case, defendant has shown no evidence that he
would have been better prepared had the motion to continue been
granted or that he was materially prejudiced by the denial of his
motion. The record tended to show the State voluntarily gave
defendant a copy of Darden's written statement on the morning of
trial. Darden's statement noted that in October 2001, he and
Colson stole the weapon at issue, which they later sold to
defendant. The State, however, was not required to provide
defendant with a copy of Darden's statement prior to Darden's
testifying on direct examination. State v. Harris, 323 N.C. 112,
122, 371 S.E.2d 689, 695-96 (1988). Moreover, defendant conceded
that the statement provided to defense counsel on the day of trial
did not constitute discoverable information and that the State
voluntarily had provided a copy to defendant.
State: I don't believe . . . that this
information is discoverable. It's
certainly not exculpatory as to his
client, so it wouldn't be Brady
material. He is getting it before
trial, before jury selection. . . .
Court: Mr. Butler, sir, do you wish to
respond to the State's contention
that under our rules of discovery
this material is not included?
. . . .
Defense: And I can't, in all fairness, . . .
say that it's required. . . . I
would rather [the State] let me know
about information so I can do a
better job representing my client,
so I can do a better job pretrial in
determining whether to go to trial
or not. You know, whether or not
that's true doesn't change the factthat the State did voluntarily
disclose it . . . .
In the interest of justice, the trial court postponed the
trial until the following morning to allow defense counsel an
opportunity to interview Darden, although it denied defendant's
second motion to continue.
Court: The Court having considered the
arguments before it denies the
motion to continue. However, in the
spirit of accommodating counsel for
the defendant, the Court will hold
this matter open for jury selection
until in the morning in order to
allow counsel some time to
investigate the matters that he has
referred to here in his arguments
for a continuance.
The record further indicated that prior to 2 September 2003,
the trial court granted defendant's first motion to continue to
allow defense counsel more time to prepare adequately, including
more time to prepare for newly discovered information relating to
scientific evaluation of the crime weapon. Defense counsel had
ample opportunity to conduct an investigation into the facts
surrounding the October 2001 incident.
Defense: The alleged weapon that was used . .
. was discovered some five or six
weeks later . . . . It was sent
away, and I learned in the discovery
process that in fact, the gun had
belonged in . . . a breaking and
entering . . . . One of the victims
of the shooting in this case was a
codefendant with . . . Darden.
That's the new witness that I found
out about five minutes after twelve
this morning . . . . Darden and . .
. Colson . . . were codefendants on
this matter. I did an
investigation. I talked to OfficerSaintsing, I've seen all the records
from that. I've got everything that
I need to show the connection that
this particular [weapon] had been
stolen by the victim and a
codefendant. But I come in today .
. . and find out . . . he's going to
be a witness.
(Emphasis added).
Therefore, we conclude that “the trial court did not abuse its
discretion in denying defendant's motion to continue, as there was
no evidence presented to show how defendant 'would have been better
prepared had the continuance been granted or that he was materially
prejudiced by the denial of his motion.'” State v. McCullers, 341
N.C. 19, 30-33, 460 S.E.2d 163, 170-71 (1995) (quoting State v.
Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986)). This
assignment of error is overruled.
[2] Defendant next asserts that the trial court committed
reversible error by refusing to give defendant's proposed limiting
instruction regarding the impermissible contact with jurors.
“A mistrial is appropriate only when there are such serious
improprieties as would make it impossible to attain a fair and
impartial verdict under the law.” State v. Blackstock, 314 N.C.
232, 243-44, 333 S.E.2d 245, 252 (1985) (citing State v. Calloway,
305 N.C. 747, 291 S.E.2d 622 (1982)). Whether to grant a motion
for mistrial is within the trial court's discretion, and its ruling
will not be disturbed unless it clearly amounts to a manifest abuse
of discretion. State v. Perkins, 345 N.C. 254, 277, 481 S.E.2d 25,
34, cert. denied, 522 U.S. 837, 139 L. Ed. 2d 64(1997); State v.
Wood, 168 N.C. App. 581, 608 S.E.2d 368, 370 (2005); State v. Ward,338 N.C. 64, 92-93, 449 S.E.2d 709, 724 (1994), cert. denied, 514
U.S. 1134, 131 L. Ed. 2d 1013 (1995). The question of misconduct
is determined based on the facts and circumstances of each case.
Wood, 168 N.C. App. at 583-84, 608 S.E.2d at 370. “The trial judge
is in a better position to investigate any allegations of
misconduct, question witnesses and observe their demeanor, and make
appropriate findings.” Id. Accordingly, when a defendant alleges
juror misconduct, the trial court is responsible for investigating
the matter and making an appropriate inquiry. Id. (quoting State
v. Najewicz, 112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993)
(emphasis omitted)). “'Not every violation of a trial court's
instruction to jurors is such prejudicial misconduct as to require
a mistrial.'” Wood, id. at 584, 608 S.E.2d at 370 (quoting State
v. Harris, 145 N.C. App. 570, 578, 551 S.E.2d 499, 504 (2001)).
In the instant case, three days after defendant's trial began,
a juror reported to the trial judge that two courtroom spectators
told five jurors in an elevator that the victims were lying when
they said that defendant had shot them. The trial court instructed
the five jurors not to “consider in any way what took place, set it
completely out of your mind and not consider it in any way in your
deliberations.” The trial court then questioned each of the five
jurors individually and asked if they could completely set aside
the comment, not consider the spectator's comments, and not allow
it to influence them in any way. All five jurors responded
affirmatively. The trial court instructed the five jurors not to
discuss what they had heard with other members of the jury. When the jury was brought back into the courtroom, the trial
judge informed the jury that two people expressed “an opinion about
the lack of credibility . . . of a person or persons . . . in this
trial.” The trial judge further instructed that the jurors were to
“base [their] verdict on the evidence presented in [the] courtroom,
the law as given to [them] by this judge, and [their] common sense,
not something that may have been said in an elevator or any other
matter outside [the] court proceeding.” The trial judge then made
the following statement to the jury:
Court: It has been brought to my attention
that there is a possibility that
some other event or events or
transactions may have occurred that
should not have occurred with
regards to the jury and other
persons. . . . Has anything
happened, anything been said in your
presence, any gesture been made, has
anything occurred at all since this
trial began, that causes you to feel
that you cannot be fair and
impartial to both sides in the trial
of this case? If anything of that
sort has occurred, please raise your
hand.
Jury: (No response)
Court: I have made arrangements for you to
be able to use an elevator that's
back here in the back, to spare you
having to walk through the public
lobby and use the public elevator.
So when you leave today, you will be
escorted a different route than
you've been taking.
At the conclusion of this inquiry, the trial judge once again asked
the five jurors who had been in the elevator whether they could put
aside the comments. The five jurors reiterated that they could. Subsequently, the trial court denied defendant's request to
instruct the jury that there was no evidence this event was
connected to either the State or defense.
Here, the trial court made an appropriate investigation into
the matter and questioned the jurors individually. The trial court
further questioned each juror regarding his or her ability to be
fair and impartial. Defendant has not shown that any of the jurors
were prejudiced by the alleged misconduct or that a different
result would have been reached had the trial court granted
defendant's request to give a limiting instruction regarding the
impermissible contact with jurors. See State v. Brown, 335 N.C.
477, 488, 439 S.E.2d 589, 596 (1994); see also State v. Larrimore,
340 N.C. 119, 456 S.E.2d 789 (1995); State v. Lippard, 152 N.C.
App. 564, 574, 568 S.E.2d 657, 664, disc. rev. denied, 356 N.C.
441, 573 S.E.2d 159 (2002). Accordingly, the denial of defendant's
motion to continue did not result in a “substantial and irreparable
prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061
(2003). Therefore, this assignment of error is overruled.
[3] Defendant next contends the trial court committed plain
error when it repeatedly entered objections on behalf of the
prosecution and criticized defense counsel in front of the jury,
thus giving the jury a sense of partiality favoring the State.
Specifically, defendant argues that such conduct by the trial court
violated defendant's due process rights and his right to a fair
trial. We disagree.
Our Supreme Court previously has stated that: [a] prerequisite to our engaging in a “plain
error” analysis is the determination that the
[trial court's action] constitutes “error” at
all. Then “before deciding that an error by
the trial court amounts to 'plain error,' the
appellate court must be convinced that absent
the error the jury probably would have reached
a different verdict.”
State v. Shepherd, 163 N.C. App. 646, 652, 594 S.E.2d 439, 443-44
(2004) (quoting State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465,
468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986),
distinguished by State v. Young, 317 N.C. 396, 346 S.E.2d 626
(1986) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83
(1986))). “The court may interrogate witnesses, whether called by
itself or by a party,” and may question a witness to clarify
confusing or conflicting testimony. N.C. Gen. Stat. § 8C-1, Rule
614(b) (2003); Shepherd, 163 N.C. App. at 652, 594 S.E.2d at 444
(quoting State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337,
339 (1990) (citing State v. Whittington, 318 N.C. 114, 347 S.E.2d
403 (1986))). On appeal, the trial judge's broad discretionary
power to supervise and control the trial “'will not be disturbed
absent a manifest abuse of discretion.'” State v. Mack, 161 N.C.
App. 595, 598, 589 S.E.2d 168, 171 (2003), cert. denied, __ U.S.
__, 160 L. Ed. 2d 236 (2004) (quoting State v. Goldman, 311 N.C.
338, 350, 317 S.E.2d 361, 368 (1984)).
In evaluating whether a judge's comments cross
into the realm of impermissible opinion, a
totality of the circumstances test is
utilized. Unless it is apparent that such
infraction of the rules might reasonably have
had a prejudicial effect on the result of the
trial, the error will be considered harmless.
Mack, 161 N.C. App. at 598, 589 S.E.2d at 171 (quoting Larrimore,
340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (emphasis added)).
In the instant case, the trial judge interrupted defense
counsel's questioning of witnesses on numerous occasions. For
example, during the cross examination of the State's first witness,
the trial court interjected:
Defense: Have you also seen a statement
that's been signed by . . .
Colson that [defendant] was not
the shooter?
Witness: Have I seen it? Yes.
. . . .
Defense: Well, the document that you saw
- -
Witness: It's notarized; yes.
Defense: Okay. And it says that
[defendant] did not shoot him.
[Defendant] was there, but [he]
did not shoot him. You've seen
that document, haven't you?
Witness: Yes, I have.
. . . .
Defense: And in that notarized statement
that you've seen, he clearly
says [defendant] did not shoot
him?
Court: Well, asked and answered.
Please proceed.
Additional similar exchanges occurred. All of the trial judge's
comments were made in open court in the presence of the jury. The
last time the trial judge interrupted defense counsel was not in
open court. Court: I'm laughing because I'm not
going to believe that any time
is going to be saved in this
trial by any method whatsoever.
Go ahead. I'm listening to
your serious argument about the
admissibility or
inadmissibility of these
exhibits. Go ahead.
As demonstrated by the exchanges recited above, the trial
court did not abuse its discretion in its efforts to control
examinations of witnesses by defense counsel. Our courts
previously have stated that “[t]he trial court has a duty to
control the examination of witnesses, both for the purpose of
conserving the trial court's time and for the purpose of protecting
the witness from prolonged, needless, or abusive examination.”
State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861, cert.
denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995). Based on the
record before this Court, it is clear that the trial court focused
on moving the trial forward by maintaining control over certain
witness examinations by defense counsel. This assignment of error
is overruled.
[4] Defendant also asserts the trial court erred when it
allowed an incompetent witness to testify as to evidence regarding
the ballistics and firearms testing. Specifically, defendant
argues the trial court erred when it allowed Agent Scott Jones
(“Agent Jones”), a forensic firearms examiner assigned to the
firearms and toolmark section for the State Bureau of Investigation
lab, to rely on Agent Santora's findings in order to form an
opinion as to the identity of the weapon used to fire shell casingsrecovered from the scene of the shooting. Defendant argues that
Agent Jones' testimony violated the rule set forth in Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). We disagree.
The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides, in pertinent part, that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S. Const. amend.
VI. In essence, the goal of the Confrontation Clause is to ensure
reliability of the evidence and to act as “a procedural rather than
a substantive guarantee.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d
at 199.
It commands, not that evidence be reliable,
but that reliability be assessed in a
particular manner: by testing in the crucible
of cross-examination. The Clause thus reflects
a judgment, not only about the desirability of
reliable evidence (a point on which there
could be little dissent), but about how
reliability can best be determined.
Id.
A violation of the defendant's Sixth Amendment right of
confrontation is determined by examining “(1) whether the evidence
admitted was testimonial in nature; (2) whether the trial court
properly ruled the declarant was unavailable; and (3) whether
defendant had an opportunity to cross-examine the declarant.”
State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc.
rev. denied, 358 N.C. 734, 601 S.E.2d 866, appeal dismissed, 359
N.C. 192, 607 S.E.2d 651 (2004) (citing Crawford, 541 U.S. at 54,
158 L. Ed. 2d at 203 (2004)). In Crawford, the Court determined that “[t]estimonial
statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.” Crawford, 541 U.S.
at 59, 158 L. Ed. 2d at 197. “Where nontestimonial hearsay is at
issue, it is wholly consistent with the Framers' design to afford
the States flexibility in their development of hearsay law . . . .”
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203.
In the instant case, however, even if Agent Jones' statements
were testimonial in nature, his statements still do not violate the
rule set forth in Crawford. This is because the Court recognized
various exceptions to its rule: the Confrontation Clause does not
act as a bar to testimonial statements admitted for purposes other
than the truth of the matter asserted. Crawford, 541 U.S. at 59,
n.9, 158 L. Ed. 2d at 197 (citing Tennessee v. Street, 471 U.S.
409, 414, 85 L. Ed. 2d 425 (1985)). One such purpose may include
the basis for an expert's opinion.
North Carolina General Statutes section 8C-1, Rule 703 (2003)
provides:
[F]acts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to him
at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
In State v. Jones, our Supreme Court stated that this rule
permits “an expert witness to rely on an out-of-court communication
as a basis for an opinion and to relate the content of thatcommunication to the jury.” 322 N.C. 406, 410, 368 S.E.2d 844, 846
(1988) (citing In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458
(1987)). In Jones, over defendant's objection, the trial court
allowed a State Bureau of Investigation agent to testify as to the
standard State Bureau of Investigation procedures for fingerprint
identification and to inform the jury that another agent verified
the match. Id. “Rule 703 permits an expert witness to base an
opinion on the out-of-court opinion of an expert who does not
testify.” Id. at 410-11, 368 S.E.2d at 846. As such, the Court
held that “[t]he opinion of the other examiner thus necessarily
forms a part of the basis for the opinion to which the witness
testified, and it clearly was reasonable for an expert in the field
of fingerprint identification to rely upon such a procedure.” Id.
at 414, 368 S.E.2d at 848. See also, State v. McCord, 140 N.C.
App. 634, 649, 538 S.E.2d 633, 642-43 (2000) (When the court
allowed an expert witness, who had reviewed another SBI Agent's
file, to testify as to SBI procedures and that someone other than
himself conducted the testing of DNA, . . . this information was
“inherently reliable.”); State v. Daughtry, 340 N.C. 488, 511, 459
S.E.2d 747, 758 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d
739 (1996); State v. Quick, 329 N.C. 1, 29-30, 405 S.E.2d 179, 196
(1991) (establishing the basis for expert testimony is admissible
for non-hearsay purposes); State v. Wade, 296 N.C. 454, 462, 251
S.E.2d 407, 412 (1979) (If the expert's opinion “is admissible the
expert may testify to the information he relied on in forming it
for the purpose of showing the basis of the opinion.”). In the instant case, the weapon was located twenty days after
the shooting of Carden and Colson. Agent Santora of the State
Bureau of Investigation lab received the weapon and several shell
casings from the scene for investigation. Agent Santora then
examined these items, conducted tests, and prepared a report of his
findings. At trial, Agent Jones, a forensic examiner for the State
Bureau of Investigation, testified in Agent Santora's place.
State: Have you had occasion to review
your records at the SBI lab to
see who conducted the
examination?
Witness: Yes, I have.
State: And who was it?
Witness: It was at that time Agent Dave
Santora . . . .
State: And is he still with the SBI
lab?
Witness: No, he's not.
Without objection, Agent Jones was accepted as an expert in
forensic firearms identification. His duties included examining
fired cartridge cases, bullets, and projectiles recovered from
crime scenes to identify their characteristics. Agent Jones also
tested firearms to determine whether the cases, bullets, or
projectiles recovered were from certain firearms.
Based on Agent Jones's examination of the shell casings
recovered from the shooting, and his review of tests conducted by
Agent Santora, Agent Jones, over defendant's objection, testified
to his conclusion that the four shell casings recovered from the
shooting had been fired from the weapon in question. State: And have you reviewed [Agent
Santora's] notes and his
findings?
Witness: Yes, sir.
State: Have you also reviewed his lab
report?
Witness: Yes, sir.
State: Have you, since you've been
here today, examined, at least
with the naked eye, the gun and
the shell casings?
Witness: Yes, I have.
State: From looking at the records,
what did your section receive
for firearms examination in
this case?
Defense: If your Honor please, I'm going
to have to object, . . . I'm
going to request a voir dire at
this time.
. . . .
Defense: I think it's very important
that we have the person, so
that I can properly cross-
examine the person who
conducted these tests . . . .
I preserve my right to claim it
is hearsay, and that this agent
is not the one who conducted
the tests, and therefore I'm
not being given an opportunity
to examine the person who did
do the testing.
. . . .
Court: The court notes the objection,
the Court overrules the
objection.
. . . . State: And based on your review of
Agent Santora's notes and the
other records there from your
section, was a firearms
examination done concerning
those items of evidence?
Witness: Yes, it was.
. . . .
State: Okay. And does your file and
the notes of Agent Santora
indicate that the shell casings
under this case number were
examined and compared to test
fired casings from this weapon?
Witness: Yes.
State: Okay. And did Agent Santora
prepare a laboratory report
based upon that examination?
Witness: Yes, he did.
. . . .
State: Agent Jones, based on your
training and experience, and
your review of Agent Santora's
notes, do you have an opinion,
to a scientific certainty and
to your own satisfaction, as to
whether or not the shell
casings that were examined were
fired from this [weapon]. . . ?
Witness: Yes, I do.
. . . .
Witness: That is that all the fired
casings, all four fired
cartridge cases, were fired in
this [weapon], to the exclusion
of all other guns.
Defendant alleges that Agent Jones' testimony concerning the
contents of Agent Santora's report was hearsay, and therefore,inadmissible at trial. Based on the evidence, however, it is clear
that Agent Jones' testimony was not offered for the truth of the
matter asserted. Rather, his testimony was offered as a basis of
an expert's opinion, which falls within the exception set forth in
Crawford.
Accordingly, we hold that the trial court did not err when it
allowed Agent Jones to use Agent Santora's report as the basis of
his expert opinion that the shell casings were discharged from the
weapon in question. Therefore, this assignment of error is
overruled.
[5] In the instant case, defendant was convicted of attempted
first-degree murder and assault with a deadly weapon with the
intent to kill inflicting serious injury of both Colson and Carden.
Defendant also contends the trial court erred when it submitted to
the jury both attempted first-degree murder and assault with a
deadly weapon with the intent to kill inflicting serious injury in
violation of his state and federal constitutional rights to be free
from double jeopardy.
The Double Jeopardy Clause of the Fifth Amendment provides, in
relevant part, that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V; see also N.C. Const. art. I, section 19. This Clause is
made applicable to North Carolina through the Fourteenth Amendment.
State v. Battle, 279 N.C. 484, 486, 183 S.E.2d 641, 643 (1971).
In order for double jeopardy to apply, the two convictions
must be identical: [E]ven where evidence to support two or more
offenses overlaps, double jeopardy does not
occur unless the evidence required to support
the two convictions is identical. If proof of
an additional fact is required for each
conviction which is not required for the
other, even though some of the same acts must
be proved in the trial of each, the offenses
are not the same.
State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004),
cert. denied sub nom, Queen v. North Carolina, ___ U.S. ___, 161 L.
Ed. 2d 285 (2005) (quoting State v. Murray, 310 N.C. 541, 548, 313
S.E.2d 523, 529 (1984), overruled on other grounds by State v.
White, 322 N.C. 506, 369 S.E.2d 813 (1988)).
To be convicted of attempted first-degree murder, the State
must prove the defendant (1) had a specific intent to kill another;
(2) made a calculated overt act to carry out that intent; (3)
possessed malice, premeditation, and deliberation accompanying the
act; and (4) failed to complete the intended killing. N.C. Gen.
Stat. § 14-17 (2003); Tirado, 358 N.C. at 579, 599 S.E.2d at 534;
State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000).
“The elements of assault with a deadly weapon with intent to kill
inflicting serious injury are: (1) an assault, (2) with the use of
a deadly weapon, (3) with an intent to kill, and (4) inflicting
serious injury, not resulting in death.” Tirado, 358 N.C. at 579,
599 S.E.2d at 534 (citing N.C. Gen. Stat. § 14-32(a)(2003);
Peoples, 141 N.C. App. at 117, 539 S.E.2d at 28). When the
defendant is charged with assault with a deadly weapon with intent
to kill inflicting serious injury, the State must prove “the use of
a deadly weapon” and “proof of serious injury;” however, the chargeof attempted murder does not contain the assault with a deadly
weapon or serious injury requirement. Tirado, 358 N.C. at 579, 599
S.E.2d at 534; State v. Rainey, 154 N.C. App. 282, 285, 574 S.E.2d
25, 27 (2002); see N.C. Gen. Stat. § 14-17, -32(a) (2003).
Moreover, when the defendant is charged with attempted first-degree
murder, the State must show proof of premeditation and
deliberation; however, these elements are not required for the
charge of assault with a deadly weapon with intent to kill
inflicting serious injury. Tirado, 358 N.C. at 579, 599 S.E.2d at
534 (citing N.C. Gen. Stat. § 14-17, -32(a) (2003)). “[E]ach
offense contains at least one element not included in the other.”
Tirado, 358 N.C. at 579, 599 S.E.2d at 534. Defendant contends the
instant case is unique on its facts and therefore requests this
Court to reevaluate Tirado. However, this we cannot do, for “we
are bound by this holding until it is overturned by a higher
court.” State v. Forrest, ___ N.C. App. ___, ____, 609 S.E.2d 241,
247 (2005) (citing In the Matter of Appeal from Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989)). Accordingly, defendant
has not been subjected to double jeopardy and this assignment of
error is overruled.
[6] Finally, Defendant asserts the trial court erred when it
sentenced defendant as a prior record level IV offender because his
prior convictions were ineligible to be considered when determining
his prior record points.
A defendant's prior record level is calculated by taking the
“sum of the points assigned to each of the [defendant's] priorconvictions that the court finds to have been proved in accordance
with” the North Carolina General Statutes, section 15A-1340.14.
Under section 15A-1340.14(f), a prior conviction shall be proved by
any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
N.C. Gen. Stat. § 15A-1340.14(f) (2003). The State must prove, by
a preponderance of the evidence, that defendant's prior convictions
exist and that the defendant standing before the court is the same
defendant named in the prior conviction. Id.
Here, the trial court, after determining defendant had eleven
points, sentenced defendant within the presumptive range as a
Record Level IV offender, to two hundred and fifty-one months
minimum and three hundred and eleven months maximum in the North
Carolina Department of Correction. Defendant's prior convictions
included: (1) misdemeanor larceny, on 18 November 1992; (2)
possession of cocaine, on 25 May 1993; (3) felony larceny, on 16
September 1996; (4) possession of stolen goods, on 11 April 1996;
and (5) attempted assault with a deadly weapon with intent to
inflict serious injury, on 11 April 1996. During the sentencing
phase, the trial court, the State, and defendant engaged in the
following exchange: State: The only evidence I have on
sentencing is the prior record
work sheet that I prepared. I
believe counsel has seen this.
I show him with 11 prior record
points, placing him in Record
Level IV. . . . Do you
stipulate he has 11 points,
Record Level IV?
Defense: I stipulate that that document
is the same as what I looked at
and researched; yes.
. . . .
State: Your Honor, that's the only
additional evidence I have at
sentencing. I would like to be
heard at the appropriate time.
Court: Will there be any evidence for
the defendant?
Defense: No, your Honor.
No other documents were offered to the Court and the State did not
present original or copied records of defendant's prior
convictions. While the State did not offer any document other than
their own worksheet of calculated points, defendant appeared to
stipulate to the State's findings listed within that worksheet -
that defendant had eleven prior record points. Defense counsel
certainly failed to make clear that he was not stipulating to the
State's prior record worksheet and presented no contrary
information to the court at the time the stipulation was being
discussed. Based on North Carolina General Statutes, section
15A-1340.14(f), stipulation of the parties is sufficient to prove
defendant in fact had eleven prior record points. Assuming, arguendo, that the State did not meet their burden
of proof by a preponderance of the evidence, that error was merely
harmless. State v. Smith, 139 N.C. App. 209, 219-20, 533 S.E.2d
518, 524 (2000) (trial court's erroneous determination that
defendant had ten points, when it should have found defendant had
nine points, was harmless as defendant correctly was determined to
have a prior record level of IV). Defendant, relying on North
Carolina General Statutes, section 15A-1340.14(d), contends in his
brief that the trial court should have counted only one of
defendant's two convictions on 11 April 1996. Pursuant to
subsection (d), which provides, in pertinent part, that “if an
offender is convicted of more than one offense in a single superior
court during one calendar week, only the conviction for the offense
with the highest point total is used.” N.C. Gen. Stat. § 15A-
1340.14(d) (2003). Even if the trial court had included only the
points for the conviction on 11 April 1996, the trial court still
would have determined that defendant had a total of nine points,
which is within the Record Level IV point range. Therefore, we
hold that defendant was sentenced properly as a Record Level IV
offender and this assignment of error is overruled.
No error.
Chief Judge MARTIN concurs.
Judge HUDSON concurs in results only.
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