1. Evidence--basis for expert's report--initial evidence gathering by another
Testimony from an expert SBI firearms examiner was properly admitted where it was
based in part on initial evidence taken by another agent who did not testify. The evidence was
corroborative and helped form the basis of the expert's opinion; the expert testified that he
independently analyzed the entirety of the evidence, including the other agent's report; defendant
was afforded a full opportunity to cross-examine the expert as to the basis of his expert opinion;
and defendant did not request a limiting instruction.
2. Homicide--instructions--final mandate--self-defense
There was no plain error in the trial court's treatment of self-defense in its final mandate
in a first-degree murder prosecution. The trial court correctly discussed self-defense in the body
of its charge, and, in its final mandate instructed the jury that it could return a not guilty verdict if
the state failed to satisfy the jurors beyond a reasonable doubt that the defendant did not act in
self-defense.
3. Homicice--short-form indictment--constitutional
The short-form first-degree murder indictment was constitutional where defendant
received the presumptive term of life without parole.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Paul Pooley for defendant-appellant.
CALABRIA, Judge.
James Daryl Walker (“defendant”) appeals from a judgment
entered on a jury verdict of guilty of first-degree murder.
Defendant was sentenced to life imprisonment without possibility ofparole in the North Carolina Department of Correction. We find no
error.
The State presented evidence at trial that on the night of 10
November 2001 and during the early morning hours of 11 November
2001, Gerald Williams (“Williams”), Glenwood Loftin (the “victim”),
and Jonathan Battle (“Battle”) were driving in the Rocky Mount area
to find a club to patron. After declining a couple of clubs due to
inactivity, the three went to Moore's Ball Field at approximately
1:00 a.m. After a couple of conflicts with an individual
identified as Rickshawn, Williams went outside and observed another
conflict between Larry Williams and Jarvis Richardson. Williams,
Battle, and Jeffrey Battle attempted to become involved, but
Williams was prevented from doing so by an individual identified as
Bohanon. At approximately the same time, defendant began firing at
the victim as the victim was running from defendant in the area
where cars were parked outside of the club. Defendant followed the
victim and continued shooting him, even when the victim continued
to try to flee after falling on the hood of a car. After the
shooting, defendant left with Shawn Brake (“Brake”). Although
multiple guns were involved, including 9mm pistols belonging to
both defendant and Brake, ballistics comparisons revealed that the
victim was shot and killed by bullets fired from defendant's
weapon.
Defendant also presented evidence at trial. Defendant called
Shanell Nicole Williams as a witness. She testified that the
victim was holding a beer bottle during the time the fightsoccurred and was shot by Brake after Brake told him to drop the
bottle. Next, defendant testified that, during the time the fights
were ongoing, the victim approached him with an upraised beer
bottle, and, when the victim failed to heed defendant's warnings to
“[s]top or [he was] going to shoot,” defendant closed his eyes and
shot at the victim because he was afraid the victim was going to
attack him and injure him using the bottle as a weapon. Defendant
testified he did not want to hurt the victim but also did not want
to get hurt. Defendant said when he opened his eyes, he saw the
victim falling on the car and heard additional shots.
Defendant was arrested, charged, and indicted for first-degree
murder. At the close of the State's evidence and again at the
close of all the evidence, defendant moved to dismiss the charge.
The trial court denied defendant's motions, and the jury found him
guilty of first-degree murder. Defendant was sentenced to life
imprisonment without the possibility of parole. Defendant appeals
from the judgment imposed.
I. Confrontation Clause
[1] In the instant case, State Bureau of Investigation (“SBI”)
Agent Peter Ware (“Agent Ware”) testified as an expert in the field
of forensic firearms identification. Agent Ware testified that,
according to standard procedure, Special Agent Dave Santora
initially took the evidence. He described the standard procedure
as follows:
What happens is when an individual examiner
[here, Agent Santora] gets in evidence and
they work the case, they compile their notes,
and once their notes have been compiled andthey issue a draft report, they then take that
evidence, the fired casings and the
projectile, whatever they may have from the
scene, and then they are test fired, if there
was a weapon involved. They take that to a
senior examiner [here, Agent Ware]. The
Senior examiner will then independently
microsopically look at the casings or
projectiles that have been test fired, reach
their conclusions, and then they will review
the notes and the report of the examiner who
originally did the notes and report, and make
sure that all the conclusions are in there and
it's appropriately documented, and then they
will sign off on that report, and it goes back
to the examiner to have an administrative
review done [before the final report from the
SBI is issued].
Agent Ware further affirmed that he “actually work[ed] with every
piece of evidence and every test firing of the weapons and
everything” and “personally looked over all the evidence in the
case and the conclusions.” Detective Ware testified that he
“c[a]me to the same conclusions as Mr. Santora did in his draft
report” and had brought Agent Santora's original issued report and
findings with him to court. Thereafter, Agent Ware testified, in
relevant part, that the two 9mm bullets retrieved from the victim's
body were fired from defendant's gun. One of those bullets
lacerated the victim's aorta, causing his death.
At trial, defendant objected to Agent Ware's testimony on
grounds of hearsay and to Agent Santora's report on the grounds
that “the person who prepared [the report was] not [t]here to
testify.” The trial court overruled defendant's objections and
admitted both the testimony and the report into evidence. In his
first assignment of error, defendant asserts the trial court erred
in allowing the ballistics report and related testimony becauseAgent Santora did not appear at trial, was not unavailable, and who
defendant did not have a prior opportunity to cross-examine. We
disagree.
In 2004, the United States Supreme Court issued its opinion in
Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d 177, 199
(2004), determining that the Confrontation Clause of the United
States Constitution was a procedural, rather than substantive,
guarantee designed to ensure a particular method of testing
reliability _ cross-examination _ as opposed to ensuring a
particular quantum of reliability with respect to certain
statements. The Confrontation Clause bars testimonial statements
of witnesses if they are not subject to cross-examination at trial
unless (1) the witness is unavailable and (2) there has been a
prior opportunity for cross-examination. Crawford, 541 U.S. at 59,
158 L. Ed. 2d at 197. The Court defined testimony as follows: “[a]
solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51, 158
L. Ed. 2d at 192. An exception to the new rule espoused in
Crawford is a familiar one: where evidence is admitted for a
purpose other than the truth of the matter asserted, the protection
afforded by the Confrontation Clause against testimonial statements
is not at issue. Crawford, 541 U.S. at 59-60, n.9, 158 L. Ed. 2d
at 197-98, n. 9. Thus, where the evidence is admitted for, inter
alia, corroboration or the basis of an expert's opinion, there is
no constitutional infirmity. See, e.g., State v. Baymon, 336 N.C.
748, 759-60, 446 S.E.2d 1, 6-7 (1994) (corroboration); State v.Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991) (basis of
expert's opinion).
In the instant case, we conclude the evidence was properly
admissible for non-testimonial purposes both because it was
corroborative and because it helped form the basis of an expert's
opinion. Agent Ware testified that he independently analyzed the
entirety of the ballistics evidence, including Agent Santora's
report, and concluded defendant's gun fired the bullets recovered
from the victim's body. He further testified that his conclusions
accorded with Agent Santora's report. As a result, the report was
corroborative of Agent Ware's testimony and admissible for that
purpose. In addition, Agent Ware was qualified as an expert in the
area of forensic firearm identification and was entitled,
therefore, to use Agent Santora's report for the purpose of forming
his opinion on the issue of whether defendant's gun fired the
bullets which were recovered from the victim's body. Defendant
was, moreover, fully afforded the opportunity to cross-examine
Agent Ware as to the basis of his expert opinion. While the report
might be used to prove the truth of the matter asserted and,
therefore, be considered testimonial, the trial court properly
admitted the evidence due to the permissible non-testimonial
purposes. Defendant could have, but failed to, request a limiting
instruction that would have clarified the appropriate evidentiary
use of the evidence. State v. Noble, 326 N.C. 581, 585, 391 S.E.2d
168, 171 (1990). This assignment of error is overruled.
II. Jury Instruction [2] Defendant's second assignment of error concerns the jury
instruction. Defendant asserts the trial court committed plain
error by failing to include in its final mandate to the jury a
possible verdict of not guilty by reason of self-defense to the
murder and manslaughter charges. Plain error review is the
appropriate standard where, as here, defendant failed to object to
the jury charge at trial.
“[T]he plain error rule . . . is always to be applied
cautiously[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (citation omitted). “Under plain error review,
'reversal is justified when the claimed error is so basic,
prejudicial, and lacking in its elements that justice was not
done[,]'” State v. Miller, 357 N.C. 583, 592, 588 S.E.2d 857, 864
(2003), cert. denied, ___ U.S. ___, 159 L. Ed. 2d 819 (2004)
(quoting State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484
(2002), and, “absent the [claimed] error, the jury probably would
have reached a different result.” State v. Jones, 355 N.C. 117,
125, 558 S.E.2d 97, 103 (2002).
Defendant correctly contends that, where warranted, (1) a
trial court's failure to include a possible verdict of not guilty
by reason of self-defense in its final mandate to the jury results
in prejudicial error entitling a defendant to a new trial and (2)
that failure is not cured by a discussion of the law of
self-defense in the body of the charge. State v. Dooley, 285 N.C.
158, 165-66, 203 S.E.2d 815, 820 (1974). The failure to charge the
jury with self-defense entitled the defendant in Dooley to a newtrial because “the jury could have assumed that a verdict of not
guilty by reason of self-defense was not a permissible verdict in
the case.” Id., 285 N.C. at 165, 203 S.E.2d at 820. In Dooley,
our Supreme Court set forth a model instruction for charging the
jury as to the proper mandate for not guilty by reason of
self-defense, but rigid adherence to this model instruction is not
required where the trial court “adequately explain[s] to the jury
that they can find the defendant not guilty by reason of
self-defense.” State v. Bevin, 55 N.C. App. 476, 477, 285 S.E.2d
873, 873 (1982).
In the instant case, the trial court correctly discussed the
law of self-defense in the body of its charge to the jury. In its
final mandate, the trial court instructed as follows:
Finally, if the state has failed to satisfy
you beyond a reasonable doubt that the
defendant did not act in self-defense, then
the defendant's action would be justified by
self-defense and therefore, you would return a
verdict of not guilty.
The trial court's instruction was not plainly erroneous for failing
to adequately explain to the jury that they were permitted to find
defendant acted in self-defense, and, that if they so found, the
proper course of action would be to find defendant not guilty as a
result. This assignment of error is overruled.
III. Short-Form Indictment
[3] In the instant case, the State utilized the short-form
murder indictment for charging defendant with the offense of first-
degree murder. Defendant asserts the use of the short-form
indictment violated his state and federal constitutional rights. Our Supreme Court has rejected defendant's constitutional attacks
on the short-form indictment with respect to all cases cited by
defendant except for one. See State v. Morgan, 359 N.C. 131, 147,
604 S.E.2d 886, 896 (2004). The sole exception defendant cites is
the United State Supreme Court holding in Blakely v. Washington,
___ U.S. ___, 159 L. Ed. 2d 403 (2004) that a trial court alone may
not sentence a defendant in excess of the “statutory maximum”
absent either findings in aggravation by a jury or a waiver by
defendant of his Sixth Amendment right to a trial by jury. In the
instant case, defendant received the presumptive term for the
charge with which he was convicted. Moreover, our Supreme Court
has noted that the law of this State requires that, “whenever a
defendant is charged with murder, questions of fact related to
guilt or innocence . . . must be determined by the jury[.]” State
v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 438 (2000). We are
unpersuaded that this holding, especially in light of North
Carolina's long adherence to the use of the short-form murder
indictment, renders that use constitutionally unsound. This
assignment of error is overruled.
No error.
Judges McGEE and TIMMONS-GOODSON concur.
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