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STATE OF NORTH CAROLINA v. LAWRENCE LEE ASH
Filed: 19 April 2005
1. Confessions and Incriminating Statements--motion to suppress--videotape of
interrogation--right to counsel--right to remain silent
The trial court did not err in a first-degree murder and conspiracy to commit robbery with
a dangerous weapon case by denying defendant's motion to suppress the videotape of his
interrogation by a detective which he contends denied his rights to counsel and to remain silent,
because: (1) defendant was informed of his right to counsel and subsequently voluntarily waived
his right to counsel by signing a waiver form; (2) defendant indicated his desire to answer
questions without a lawyer being present and his desire to waive his rights by initialing the rights
form in the proper place; (3) defendant failed to unambiguously invoke his right to remain silent;
and (4) assuming arguendo that the trial court erred, the error was harmless beyond a reasonable
doubt when the State presented overwhelming evidence of defendant's guilt including the
testimony of two witnesses, and further, defendant failed to object during a detective's testimony
regarding defendant's confession and statements made to the detective which are consistent with
2. Criminal Law--removal of defendant from courtroom during trial-_restraint of
defendant at trial
The trial court did not err in a first-degree murder and conspiracy to commit robbery with
a dangerous weapon case by restraining and removing defendant from the courtroom during trial,
because: (1) defendant has a right to be present during each stage of his trial, but in a noncapital
case, may waive that right through disruptive behavior; (2) the transcript revealed numerous
outbursts by defendant during jury selection; (3) the trial court followed the requirement of
N.C.G.S. § 15A-1032(b)(1) and defendant waived the instruction required under N.C.G.S. §
15A-1032(b)(2); (4) defendant failed to object to his restraint at trial and thus waived appellate
review of this argument; and (5) N.C.G.S. § 15A-1031 allows the trial court to order a defendant
to be subjected to physical restraint in the courtroom when it is reasonably necessary to maintain
order, prevent defendant's escape, or to provide for the safety of persons.
3. Constitutional Law--right of confrontation--videotaped deposition--unavailable
Although the trial court violated defendant's constitutional right of confrontation in a
first-degree murder and conspiracy to commit robbery with a dangerous weapon case by
admitting a doctor's videotaped deposition into evidence without hearing evidence regarding the
doctor's unavailability, the error was harmless because excluding the deposition testimony, the
State presented other overwhelming evidence from which the jury could find that the victim died
from injuries caused by a shotgun wound to the chest and that defendant fired the shotgun
inflicting the wound.
Appeal by defendant from judgments entered 17 November 2003 by
Judge James Floyd Ammons, Jr., in Cumberland County Superior Court.
Heard in the Court of Appeals 2 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Daniel Shatz, for defendant-appellant.
Lawrence Lee Ash (defendant) appeals from judgments entered
after a jury found him to be guilty of first-degree murder pursuant
to the felony murder rule, conspiracy to commit robbery with a
dangerous weapon, and attempted robbery with a dangerous weapon.
The trial court arrested judgment on the conviction of attempted
robbery. We find error at trial but hold such error was harmless
beyond a reasonable doubt.
Jonathan Pruey (Pruey) and his wife Jennifer lived in a
mobile home in Cumberland County. Pruey stored marijuana in his
bedroom and sold it out of his mobile home. In June 2000, two
males, Corrie Cordier (Cordier) and Chris were residing at
A. Cordier's Testimony
Around 10:30 p.m. on 27 June 2000, Cordier heard a knock at
the front door. Pruey looked out the window and asked Cordier to
illuminate the front porch lights. Cordier observed two people
dressed in all black clothing huddling in the corner of the porch.
One of the men was wearing a Jason mask, which Cordier described
as a white hockey mask with small black lines, and brandishing a
long metallic object, which appeared to Cordier to be a baseball
bat. Cordier stepped away from the door and yelled to Pruey. The
door swung open, and the individual wearing the Jason mask fell
through the partially-opened door. Cordier kicked the masked man
as Pruey closed the door. A few seconds later, Cordier heard a
loud noise. Pruey's wife turned on some lights and observed
Cordier with blood on his side. After Chris turned on more
lights, Cordier and Pruey's wife observed Pruey lying spread-
eagled on the floor between the kitchen and the living room
bleeding profusely. Cordier attempted to administer first aid to
Pruey, while Chris took Pruey's wife, who became hysterical, next
door to Michael Grimes's (Grimes) home.
B. Grimes's Testimony
Grimes testified that shortly before 10:30 p.m. on 27 June
2000, he heard a slamming noise, a shotgun blast, and someone
screaming. He went outside and observed a car accelerating past
Pruey's mobile home. Grimes could not identify the tag number, but
noticed the car's headlights were not activated until after it
reached Cumberland Road. Grimes returned inside his home and
C. Deputy Porter's Testimony
Cumberland County Deputy Sheriff Jennifer Porter (Deputy
Porter) was the first officer to arrive at the scene. Deputy
Porter testified she spoke with Grimes and Cordier upon arrival.
Deputy Porter found Pruey to have a faint pulse and called the 911
dispatcher regarding Pruey's condition. Emergency medical services
personnel and other officers arrived and assumed the investigation. Investigators processing the scene found a mask identified by
Cordier as the Jason mask worn by one of the perpetrators. The
mask was found on the dirt road leading from Pruey's mobile home to
Cumberland Road next to tire impressions and a nylon rag. The
police attempted unsuccessfully to cast a mold of the tire
Investigators collected fingerprints, but were unable to
gather any useful fingerprints from the front door or the mask.
Inside Pruey's home, officers recovered a shotgun shell wadding
from the kitchen floor, and removed and collected a portion of the
front door containing the hole from the gun shot. Officers also
recovered a metal box containing money and green vegetable
D. B.G.'s Testimony
B.G. testified that in June 2000 she was a fifteen-year-old
runaway and lived with a man named Kenny in the Sunset Trailer
Park along with her boyfriend, Craig Wissink (Wissink) and
defendant. Defendant was B.G.'s ex-boyfriend. Approximately one
week prior to 27 June 2000, B.G. observed a male named Shawn give
Wissink a shotgun. Prior to the attempted robbery and murder, she
heard Wissink and Damian Jackson (Jackson) discuss plans to rob
Around 4:00 p.m. on 27 June 2000, B.G. visited Victoria
Lawson's (Lawson) mobile home. B.G. testified that Wissink and
defendant came by Lawson's home around 7:00 p.m. Wissink told B.G.
to stay where she could be found. At about 10:45 p.m., she
received a call at Lawson's home from Wissink, who told her toreturn to Kenny's mobile home alone. Upon arrival, Wissink
informed B.G. he was leaving town and, if she wanted to accompany
him, she should pack her things. After gathering her belongings,
B.G. and Wissink left town, stopping along the way for Wissink to
speak with Jackson.
B.G. and Wissink traveled to Wissink's mother's home in
Kingman, Arizona, where they were subsequently arrested. Wissink
carried a shotgun with them. This gun was identified by B.G. as
the same gun State Bureau of Investigation Agent Ronald Marrs
(Agent Marrs) had earlier identified as the murder weapon during
B.G. was charged with accessory after the fact to murder and
entered into a plea agreement with the State. In exchange for her
testimony, her charges were retained in juvenile court and she was
not bound over for trial as an adult.
E. C.P.'s Testimony
C.P. testified that on 27 June 2000, he lived with his mother
in Sunset Trailer Park and knew both Wissink and defendant. That
morning, he was present with Wissink and defendant when Wissink
stated that he was planning to rob a drug dealer on Cumberland Road
to get money so he and B.G. could leave town. According to C.P.,
defendant stated that he also needed money, but did not say
anything about participating in Wissink's planned robbery. While
Wissink was discussing the robbery, C.P. observed a twenty-gauge
shotgun and a Jason mask similar to the one later identified by
Cordier and recovered near the scene. C.P. testified that during the day after the robbery,
defendant confessed that he and Wissink had been the perpetrators
and that he had shot Pruey. Defendant informed C.P. that he and
Wissink drove to Pruey's home in C.P.'s mother's car, parked the
car, and approached the front door. Defendant stated he was
wearing the Jason mask and dark gloves, and Wissink was wearing
a green camouflage mask. After Wissink knocked on the door,
defendant attempted to kick in the door. Defendant observed a man
kick Wissink in the face. Wissink stood up, and the door closed.
Defendant confessed to C.P. that he shot through the door one time.
According to C.P., defendant suggested that C.P. call the
police to report that Wissink committed the offense and that they
would split the reward money. C.P. contacted the police and
informed them that Wissink committed the offenses. C.P. did not
mention defendant's involvement, but stated that someone named
Miko had committed the crimes with Wissink that night. C.P.
admitted Miko was a fake name.
On 29 June 2000, C.P. informed police that both Wissink and
defendant had committed the offense. C.P. was charged with
multiple felony charges and entered into a plea agreement. In
exchange for his testimony, he received a reduction of two armed
robbery charges to common law robbery, dismissal of other charges,
and was sentenced to ten to twelve months imprisonment followed by
F. Defendant's Arrest and Statements
On 29 June 2000, defendant was arrested and interrogated over
two and one-half hours by Detective Sterling McClain (DetectiveMcClain). The interrogation was videotaped. Prior to trial,
defendant moved to suppress the videotape of the interrogation.
The trial court denied this motion and played portions of the
videotape for the jury. On the videotape, defendant initially
denied any involvement but later confessed he and Wissink went to
Pruey's mobile home and attempted to enter it. Defendant stated
that he was attempting to get Wissink to leave when Wissink fired
Detective McClain acknowledged that during the interrogation
he lied to defendant about finding defendant's: (1) fingerprints
and his blood on the mask; (2)hair fibers; and (3) shoes in a lake.
Detective McClain also falsely informed defendant that Wissink had
been arrested and had implicated defendant. Detective McClain
testified that falsehoods or deceptions are an interrogation
technique or tactic commonly used by investigators.
Over defendant's objections, the State also introduced a
videotaped deposition of Dr. Kenneth Lidonnici (Dr. Lidonnici).
Dr. Lidonnici testified that an autopsy revealed a large hole and
three smaller holes in Pruey's chest. Internal examination showed
Pruey died from a gunshot wound to the chest. Dr. Lidonnici
testified he removed three projectiles, some shotgun shell
wadding, and some white plastic sphere[s] from Pruey's body.
Agent Marrs later testified that shell wadding recovered at the
scene and from Dr. Lidonnici was consistent with shells found in a
20 gauge shotgun recovered from Wissink. The white plastic
styrofoam balls recovered from Pruey by Dr. Lidonnici were
consistent with the material inside Pruey's front door. Defendant did not testify or present any evidence. The jury
found him to be guilty of first-degree murder, conspiracy to commit
armed robbery, and attempted armed robbery. After arresting
judgment on the attempted armed robbery conviction, the trial court
sentenced defendant to life-imprisonment without parole for the
murder conviction and twenty-nine to forty-four months for the
conspiracy conviction, to run consecutive to the life sentence.
Defendant argues the trial court erred by: (1) denying
defendant's motion to suppress the videotape of his interrogation;
(2) restraining and removing defendant from the courtroom during
trial; and (3) admitting Dr. Lidonnici's videotaped deposition into
III. Motion to Suppress
 Defendant contends the trial court erred by denying his
motion to suppress the videotape of his interrogation by Detective
McClain and argues he was denied his rights to counsel and to
remain silent. We disagree.
Defendant's motion to suppress was heard and denied on 15
August 2003. Contrary to the State's argument that defendant
failed to renew his objection, defense counsel sufficiently
preserved this assignment of error for review on appeal. Upon the
State's tender of the videotape at trial, defense counsel renewed
his objection to what's been previously ruled on and preserved
the issue for appellate review.
A. Right to Counsel
It is well-settled that during a custodial interrogation, if
the accused invokes his right to counsel, the interrogation must
cease and cannot be resumed without an attorney being present
'unless the accused himself initiates further communication,
exchanges, or conversations with the police.' State v. Golphin,
352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Edwards v.
Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)) (other
citations omitted) (emphasis in original), cert. denied, 532 U.S.
931, 149 L. Ed. 2d 305 (2001), cert. denied, 358 N.C. 157, 593
S.E.2d 84 (2003).
A trial court is to make an initial
determination as to whether a defendant waived
his/her right to counsel. Those findings of
fact are conclusive on appeal if supported by
competent evidence, even if the evidence is
conflicting. Conclusions of law which are
supported by findings of fact are binding on
appeal. Further, the trial court's
conclusions of law must be legally correct,
reflecting a correct application of applicable
legal principles to the facts found.
Golphin, 352 N.C. at 409, 533 S.E.2d at 201 (internal quotations
and citations omitted). The question is whether the suspect
'articulate[d] his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.' Id. at
450, 533 S.E.2d at 225 (alteration in original) (quoting Davis v.
United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371 (1994)).
In Davis, the United States Supreme Court held, [i]f the suspect's
statement is not an unambiguous or unequivocal request for counsel,
the officers have no obligation to stop questioning him. Davis,512 U.S. at 461-62, 129 L. Ed. 2d at 373. The Supreme Court
explained the requirement.
We recognize that requiring a clear assertion
of the right to counsel might disadvantage
some suspects who -- because of fear,
intimidation, lack of linguistic skills, or a
variety of other reasons -- will not clearly
articulate their right to counsel although
they actually want to have a lawyer present.
But the primary protection afforded suspects
subject to custodial interrogation is the
Miranda warnings themselves. Full
comprehension of the rights to remain silent
and request an attorney [is] sufficient to
dispel whatever coercion is inherent in the
interrogation process. A suspect who
knowingly and voluntarily waives his right to
counsel after having that right explained to
him has indicated his willingness to deal with
the police unassisted. Although Edwards
provides an additional protection -- if a
suspect subsequently requests an attorney,
questioning must cease -- it is one that must
be affirmatively invoked by the suspect.
Id. at 460-61, 129 L. Ed. 2d at 372 (emphasis supplied) (internal
citations and quotations omitted). The Supreme Court ruled the
statement, Maybe I should talk to a lawyer, was ambiguous and
insufficient to require termination of the interrogation. Id. at
462, 129 L. Ed. 2d at 373.
In State v. Hyatt, our Supreme Court ruled that the defendant
did not unambiguously convey [his] desire to receive the
assistance of . . . counsel and invoke his Fifth Amendment right
to counsel when he stated to two police officers that his father
wanted a lawyer to be present during the interrogation. 355 N.C.
642, 656, 566 S.E.2d 61, 71 (2002), cert. denied, 537 U.S. 1133,
154 L. Ed. 2d 823 (2003), cert. denied, __ N.C. __, __ S.E.2d __
(No. 402A00-2) (Feb. 3, 2005). Further, the Hyatt Court explained,
[d]efendant's willingness to speak to [the officers] unassisted bycounsel after having his Miranda rights read to him, printed out
for his review, and explained to him upon his ambiguous utterances
regarding his father's wishes constituted a waiver of defendant's
Fifth Amendment rights. 355 N.C. at 657, 566 S.E.2d at 71. The
Court relied on language from Davis, 512 U.S. at 460, 129 L. Ed. 2d
at 372, which states:
'[F]ull comprehension of the rights to remain
silent and request an attorney [is] sufficient
to dispel whatever coercion is inherent in the
interrogation process,' and '[a] suspect who
knowingly and voluntarily waives his right to
counsel after having that right explained to
him has indicated his willingness to deal with
the police unassisted.'
Hyatt, 355 N.C. at 657, 566 S.E.2d at 71 (internal quotation
omitted and alteration in original).
Defendant contends the trial court erred by denying his motion
to suppress and argues he invoked his right to counsel during the
interrogation. Defendant admits being advised of his rights prior
to interrogation, but argues the trial court erred by finding that
he did not . . . ever ask to talk to an attorney. After being
advised of his right to have an attorney present, defendant asked,
Now? Detective McClain responded affirmatively. Defendant then
asked, Where's my lawyer at? [Inaudible] come down here?
Detective McClain replied that the lawyer who was representing
defendant on a pending, but unrelated, breaking and entering charge
had nothing to do with what [he was] going to talk to [defendant]
about. Defendant responded, Oh, okay, and signed the waiver of
Although defendant carries the burden of unequivocally
asserting his right to counsel, see Davis, 512 U.S. at 461-62, 129L. Ed. 2d at 372-73, the State has the burden of establishing by
a preponderance of the evidence that the defendant voluntarily
waived the rights afforded to [him] under Miranda, and that the
voluntariness of a waiver is to be determined by the totality of
the circumstances. State v. Strobel, 164 N.C. App. 310, 317, 596
S.E.2d 249, 255 (2004) (citations omitted), appeal dismissed and
disc. rev. denied, 359 N.C. 286, __ S.E.2d __ (No. 311P04) (Feb. 3,
2005). Here, defendant was informed of his right to counsel and
subsequently voluntarily waived his right to counsel by signing the
waiver form. See Hyatt, 355 N.C. at 657, 566 S.E.2d at 71.
Substantial evidence supports the trial court's finding that
defendant did not ask to talk to an attorney. See State v.
Barnes, 154 N.C. App. 111, 115, 572 S.E.2d 165, 168 (2002) (this
Court may not set aside or modify findings in an order denying a
motion to suppress if the findings are substantiated by evidence,
even if conflicting evidence exists), disc. rev. denied, 356 N.C.
679, 577 S.E.2d 892 (2003). The trial court further found
defendant indicated his desire to answer questions without a
lawyer being present and his desire to waive his rights . . . by
initialing the rights form in the proper place. Defendant does
not assign error to or contest this finding. Defendant has failed
to show the trial court's findings do not support its conclusion
that defendant never made a clear and unequivocal assertion of his
Right to Counsel . . . .
The trial court's order sufficiently shows defendant's
statements were not an unambiguous and unequivocal request forcounsel. Davis, 512 U.S. at 461-62, 129 L. Ed. 2d at 373. This
assignment of error is overruled.
B. Right to Remain Silent
Defendant also argues he invoked his right to remain silent
during the interrogation.
In Golphin, our Supreme Court held, [b]ecause [the defendant]
did not unambiguously invoke his right to remain silent, the trial
court did not err in admitting the portion of his statement . . .
. 352 N.C. at 451-52, 533 S.E.2d at 225 (emphasis supplied).
During the interrogation by Detective McClain, defendant
confessed that he and others had planned to do a robbery, but ended
their plan when they drove by the mobile home and observed all the
interior lights illuminated in Pruey's home. After Detective
McClain asked defendant whether he was scared when the gun went
off, defendant stated, I don't want to talk no more 'cause you're
talking some crazy s--t now. Detective McClain continued to
question defendant, stating, You didn't even know how many people
was [sic] in the house, did you? Defendant responded, That's why
the f--k I didn't stop, and the interrogation continued.
Defendant continued to deny his involvement in the crime, but
admitted his participation after further questioning.
The trial court found, Notwithstanding this statement,
[defendant] continued to talk without significant prompting by the
officer. . . . [T]he court is unconvinced that the defendant
clearly and unequivocally asserted his right to remain silent.
Substantial evidence supports this finding and satisfies theGolphin test that defendant failed to unambiguously invoke his
right to remain silent. Id. at 451-52, 533 S.E.2d at 225. This
assignment of error is overruled.
Accepting defendant's argument that the trial court erred by
denying his motion to suppress and admitting the videotape of
defendant's statements made to Detective McClain, this error is
harmless beyond a reasonable doubt. The State presented other
overwhelming evidence of defendant's guilt, including the testimony
of B.G. and C.P. See State v. Atkins, 58 N.C. App. 146, 292 S.E.2d
744 (overwhelming evidence of the defendant's guilt qualifies error
as harmless since it could not have affected the outcome), cert.
denied and appeal dismissed, 306 N.C. 744, 295 S.E.2d 480 (1982).
Further, defendant failed to object during Detective McClain's
testimony regarding defendant's confession and statements made to
Detective McClain, which are consistent with the videotape. State
v. Wiggins, 159 N.C. App. 252, 584 S.E.2d 303 (harmless error in
the admission of the victim's written statements because the
recorded 911 call and witnesses' testimony duplicated the victim's
written statements), disc. rev. denied, 357 N.C. 511, 588 S.E.2d
472 (2003), cert. denied, 541 U.S. 910, 158 L. Ed. 2d 256, reh'g
denied, ___ U.S. ___, 158 L. Ed. 2d 726 (2004). This assignment of
error is overruled.
IV. Restraint and Removal from Courtroom
 Defendant argues the trial court erred by restraining him
and removing him from the courtroom. We disagree.
The transcript included in the record on appeal reveals
numerous outbursts by defendant during jury selection. He accusedjurors of lying, blurted out questions, cursed, babbled, sucked his
thumb, and sang. Two jurors were excused for cause because they
felt they could not be fair and impartial in light of defendant's
disruptive behavior at trial.
The trial court recessed the proceedings and, outside the
presence of the jury, stated that trial would resume the next day
in the video courtroom, with defendant present in the adjoining
judge's chambers. The trial court instructed the bailiff to employ
whatever security measures were necessary, including restraining
defendant. The trial court informed defendant's two attorneys that
one attorney would remain with defendant and the other would be
present in the courtroom. The trial court assured the defense
attorneys of ample time to confer during trial and allow them to
switch places as needed to cross-examine different witnesses.
A. Removal from the Courtroom
Defense counsel objected to defendant's removal from the
courtroom. Under this Court's holding in State v. Reid, defendant
has a right to be present during each stage of his trial, but, in
a non-capital case, may waive that right through disruptive
behavior. 151 N.C. App. 379, 386-87, 565 S.E.2d 747, 753 (citing
State v. Miller, 146 N.C. App. 494, 499-500, 553 S.E.2d 410, 414
(2001), appeal dismissed and disc. rev. denied, 356 N.C. 622, 575
S.E.2d 522 (2002). N.C. Gen. Stat. § 15A-1032(a) (2003) authorizes
the trial court to remove a defendant from the courtroom if the
defendant's conduct is so disruptive that the trial cannot proceed
in an orderly manner. In doing so, the trial court is required to
set forth an explanation on the record for the reasons to removedefendant and instruct the jury that removal is not to be a factor
in weighing the evidence or determining his guilt. N.C. Gen. Stat.
§ 15A-1032(b)(1)-(2) (2003).
After removing defendant from the courtroom, the trial court
He has been a little bit disruptive from the
beginning, although he was on fairly good
behavior, particularly when he wouldn't talk
to anybody. But he began to curse and speak
when he wasn't supposed to and speak out of
turn. Wouldn't be quiet when I asked him to
and became disruptive to the point that
defense counsel asked me to not inquire of the
jury whether that would affect them or not.
So that's why he's out of the courtroom,
although he can see and hear us.
Defense counsel specifically waived the instruction required under
N.C. Gen. Stat. § 15A-1032(b)(2) because they felt it will just
call more attention to the fact that he's not here. The trial
court followed the requirement of N.C. Gen. Stat. § 15A-1032(b)(1)
and defendant waived the instruction under N.C. Gen. Stat. § 15(A)-
1032(b)(2). See State v. Miller, 146 N.C. App. 494, 553 S.E.2d 410
(2001). This assignment of error is dismissed.
B. Defendant's Restraint at Trial
Defendant did not object to his restraint at trial and has
waived appellate review of this argument. See State v. Thomas,
134 N.C. App. 560, 568, 518 S.E.2d 222, 228 ('failure to object to
the shackling, . . . waive[s] any error which may have been
committed') (quoting State v. Tolley, 290 N.C. 349, 369, 226
S.E.2d 353, 370 (1976)), appeal dismissed and cert. denied, 351
N.C. 119, 541 S.E.2d 468 (1999). Further, under N.C. Gen. Stat. §
15A-1031 (2003), A trial judge may order a defendant or witnesssubjected to physical restraint in the courtroom when the judge
finds the restraint to be reasonably necessary to maintain order,
prevent the defendant's escape, or provide for the safety of
persons. This assignment of error is overruled.
V. Deposition Testimony
 Defendant argues his constitutional right of confrontation
was violated in the trial court's admission of a videotaped
deposition of Dr. Lidonicci. We hold that any error was harmless
beyond a reasonable doubt.
Our review of whether defendant's Sixth Amendment right of
confrontation was violated is three-fold: (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 (citing
Crawford v. Washington, 541 U.S. 36, 54, 158 L. Ed. 2d 177, 203
(2004)), disc. rev. denied, 358 N.C. 734, 601 S.E.2d 866, appeal
dismissed, 359 N.C. 192, 607 S.E.2d 651 (2004).
It is undisputed that Dr. Lidonicci's deposition was
testimonial in nature and defendant had an opportunity, which he
availed himself of, to cross-examine Dr. Lidonicci during the
deposition. The trial court failed to hear evidence to support or
enter a finding of fact regarding Dr. Lidonicci's unavailability.
Clark, 165 N.C. App. at 285-86, 598 S.E.2d at 218-19 (citing State
v. Nobles, 357 N.C. 433, 439, 584 S.E.2d 765, 770 (2003)). Prior
to playing the videotape, the trial court informed the jury, For
the convenience of the doctor you are about to see testify, we didthis last week. . . . This statement in the record is
insufficient under Clark and Nobles to establish unavailability.
Without receiving evidence on or making a finding of
unavailability, the trial court erred in admitting Dr. Lidonicci's
As defendant's constitutional right was violated through the
admission of Dr. Lidonicci's deposition, the State has the burden
of proving the error was harmless beyond a reasonable doubt to
sustain defendant's conviction. Clark, 165 N.C. App. at 289, 598
S.E.2d at 220. Defendant argues the trial court's error in
admitting the deposition testimony requires a new trial because no
other evidence establishes Pruey's death and the cause of his
death. We disagree.
Cordier testified that after he heard a loud bang, Pruey's
wife turned on the lights and he saw Pruey lying on the floor
bleeding profusely from his chest. Grimes testified that Pruey had
a large, bleeding hole in his chest and looked dead. Deputy
Porter testified Pruey was lying on the floor in a pool of blood
when she arrived on the scene. Upon arrival at the scene,
Detective McClain was informed by Deputy Porter that Pruey was
dead. The State presented photographs to the jury showing Pruey's
body lying on the floor and his chest wound. Agent Marrs testified
the shotgun was fired at a slight angle within inches of the front
door to the mobile home. Defendant confessed to Detective McClain
that he fired the shotgun through the front door.
Excluding the deposition testimony, the State presented other
overwhelming evidence from which the jury could find that Prueydied from injuries caused by a shotgun wound to the chest and that
defendant fired the shotgun inflicting the wound. Any error in
admitting Dr. Lidonnici's deposition testimony is harmless beyond
a reasonable doubt.
The trial court did not err in denying defendant's motion to
suppress the videotape of his interrogation. The trial court did
not err in restraining defendant and removing him from the
courtroom due to his disruptive behavior. The trial court erred in
admitting the deposition testimony of Dr. Lidonnici without
entering a finding of fact that Dr. Lidonnici was unavailable to
testify. However, any error was harmless beyond a reasonable doubt
in light of the other overwhelming evidence of defendant's guilt
from which the jury could find Pruey died from a shotgun blast and
defendant fired the gun inflicting the wound.
Judges MCGEE and GEER concur.
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