Appeal by defendant from judgment entered 2 June 2003 by Judge
Andy Cromer in Forsyth County Superior Court. Heard in the Court
of Appeals 12 May 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for the State.
HALL & HALL ATTORNEYS AT LAW, P.C., by Susan P. Hall, for
Rodney Michael Fisher (defendant) appeals his convictions
for one count of assault with a deadly weapon with intent to kill
inflicting serious injury and three counts of assault with a deadly
weapon with intent to kill. For the reasons discussed herein, we
hold that defendant received a trial free of prejudicial error.
The State's evidence presented at trial tends to show the
following: On the night of 2 June 1998, defendant was at the
residence of Jay Irvin (Irvin) on 24th Street in Winston-Salem,
North Carolina. At approximately 10:00 p.m., Irvin and defendant
were approached by Ray Von Rousseau (Ray Von) and Marlo Rousseau
(Marlo). Shortly thereafter, a confrontation between the four
men ensued. At some point during the confrontation, defendant
pointed a weapon at Ray Von and Marlo. As Ray Von and Marlo were
telling defendant and Irvin that they did not have weapons, Donald
Lewis Rousseau (Donald) approached the men. Donald pointed a
weapon at defendant, and the two began to argue over whether Ray
Von and Irvin should fight. Ray Von and Irvin thereafter began
fighting, and, at some point during the fight, Ray Von stabbed
After the fight between Ray Von and Irvin ended, Ray Von,
Donald, and Marlo heard a gunshot. Donald and Marlo believed Ray
Von had been shot, and they helped Ray Von up from the ground. The
three men then began walking down 24th Street, toward Cleveland
Avenue and away from Irvin's residence. As they turned onto
Cleveland Avenue, Donald, Ray Von, and Marlo heard gunshots fired
from behind them. The three men separated, and Ray Von ran towardthe corner of Cleveland Avenue and 23rd Street. As he reached the
corner of Cleveland Avenue and 23rd Street, Ray Von heard a woman
scream and fall to the ground.
April Penn Bailey (Bailey) and Debra Boyd (Boyd) were
standing on the corner of Cleveland Avenue and 23rd Street when
they heard gunshots coming from the direction of 24th Street.
Immediately after hearing the first shot, Bailey was struck by a
bullet that entered her stomach area. Bailey fell to the ground
and began crawling into a nearby manhole. Bailey thereafter heard
more gunshots fired from 24th Street.
After learning that Bailey had been shot, Boyd ran to a nearby
store for help. As she was running to the store, Boyd heard more
gunshots fired from the direction of 24th Street. In total, Boyd
heard eight gunshots and Bailey heard eight or nine gunshots.
Winston-Salem Police Department Officer Priscilla Thomas
(Officer Thomas) was dispatched to the area of Cleveland Avenue
and 24th Street to investigate an alleged assault with a deadly
weapon. Upon arrival at the scene, Officer Thomas learned that
Irvin, the alleged victim of the assault, had been transported to
the hospital. Officer Thomas went to the hospital and spoke to
Irvin, who informed Officer Thomas that he did not want to
prosecute the individual who stabbed him. Officer Thomas
thereafter ordered the destruction of the evidence gathered by her
fellow law enforcement officers, including seven shell casings
collected from the corner of Cleveland Avenue and 24th Street.
At or around the same time Officer Thomas was dispatched tothe area of Cleveland Avenue and 24th Street, Winston-Salem Police
Department Officer Douglas McGraw (Officer McGraw) was dispatched
to the area to investigate a shooting. As he arrived at the corner
of Cleveland Avenue and 23rd Street, Officer McGraw noticed a large
crowd standing at the intersection. Officer McGraw and other law
enforcement officers began interviewing witnesses in the area.
Based upon the information that the officers collected, a warrant
was subsequently issued for defendant's arrest.
On 17 June 1998, Officer McGraw observed defendant in the
passenger seat of a vehicle traveling in Winston-Salem. Officer
McGraw initiated a vehicle stop and placed defendant under arrest.
During the arrest, Officer McGraw retrieved a loaded handgun from
the portion of the dashboard directly in front of the passenger
seat. Defendant was served with an arrest warrant and transferred
to the Forsyth County Detention Center for an interview. During
the interview, Officer McGraw asked defendant questions and
recorded defendant's answers in a report.
On 13 August 2001, Defendant was indicted for one count of
assault with a deadly weapon with intent to kill inflicting serious
injury upon Bailey, one count of assault with a deadly weapon with
intent to kill Ray Von, one count of assault with a deadly weapon
with intent to kill Donald, and one count of assault with a deadly
weapon with intent to kill Marlo. At trial, Officer McGraw read
the following pertinent narration from his report:
I transported [defendant] to the jail and
interviewed him in the BT room. . . . I asked
[defendant] if he would start from the
beginning and tell me the entire story. Hebegan saying the whole thing began at J's
lounge . . . . J's lounge is located in the
2500 block of north Liberty Street. Ray Von
Rousseau thought Jay Irvin hit him from behind
but Jay didn't hit anyone. On June 2nd of
1998, Ray Von, Marlo and Donald Rousseau
confronted Jay in front of his
residen[ce] . . . . Ray Von and Jay were fist
fighting and the next thing I knew was that
Jay had been stabbed. I ran to help Jay.
After I got to him I helped him to his feet
and I noticed a lot of blood coming from his
chest. When Jay got on his feet he fired one
shot at Ray Von who was running toward
Cleveland Avenue. Ray Von fell as if he had
been shot but he hadn't. Donald and Marlo
kept running and I took the gun from Jay and
followed. Jay got in the car and left for the
hospital. While I followed -- while I was
following the [Rousseaus] I fired eight or
nine times at them while they were running
from 24th street towards 23rd on Cleveland
Avenue. . . . I went to [the] hospital to
check on my cousin Jay. While I was at the
hospital I saw the ambulance bring [Bailey] in
the emergency [room]. I didn't know that she
ha[d] been shot. I was in the room with Jay
when I heard that she had been shot. I
asked [defendant] if he had shot April.
[Defendant] said I didn't shoot her I will
admit that I was shooting but I don't think I
On cross-examination, Officer McGraw read further from his report,
which stated that after making the above-detailed statement,
defendant informed Officer McGraw that he had an attorney and had
telephoned [Bailey] and her father and told them that [he] wasn't
the person who shot her.
Defendant presented evidence from Irvin, Irvin's wife, Tanesha
Irvin (Tanesha), and Larry Puryear (Puryear). Tanesha
testified that she saw Irvin and Ray Von fighting, and that she saw
defendant pull his gun out while Donald was approaching the
fight. Although she testified that she heard gunshots fired on thestreet after the fight, Tanesha testified that she did not see
defendant shoot the weapon that he was holding.
Irvin testified that on 2 June 1998, defendant was present at
a fight between Irvin and Ray Von. Irvin testified that after he
and Ray Von fought, he realized he had been stabbed. Irvin further
testified that, after being stabbed, he drew his gun and fired one
shot at Ray Von in order to prevent Ray Von from approaching him
Puryear testified that he saw the fight between Irvin and Ray
Von, and that he also saw defendant point a gun at Donald during
the fight. Puryear testified that after Irvin pulled out a gun
and shot one time[,] he transported Irvin to the hospital.
On 24 July 2002, the jury found defendant guilty of assault
with a deadly weapon with intent to kill inflicting serious injury
upon Bailey, assault with a deadly weapon with intent to kill Ray
Von, assault with a deadly weapon with intent to kill Donald, and
assault with a deadly weapon with intent to kill Marlo. The trial
court subsequently determined that defendant had a prior felony
record level III, and on 2 June 2003, the trial court sentenced
defendant to a total of 218 to 269 months imprisonment. Defendant
The issues on appeal are: (I) whether the trial court erred
by denying defendant's motion to suppress his custodial statement
to Officer McGraw; (II) whether the trial court erred by denying
defendant's motion to dismiss the charges against him; (III)whether the trial court erred by continuing the trial following the
dismissal of a juror; (IV) whether the trial court erred by failing
to give a curative instruction following a prior misstatement of
the charges against defendant; (V) whether the trial court erred by
failing to instruct the jury to disregard testimony following a
sustained objection; and (VI) whether defendant's due process
rights were denied by the destruction of the shell casings.
 Defendant first argues that the trial court committed
plain error by denying his motion to suppress Officer McGraw's
report of defendant's custodial interview. Defendant asserts that
the trial court erred by finding that defendant voluntarily waived
rights and made the statement in the report. We
We note initially that although he filed a pretrial motion in
, defendant did not object at trial to the State's questions
regarding Officer McGraw's report. In order to preserve a question
for appellate review, N.C.R. App. P. 10(b)(1) (2005) requires the
complaining party to obtain a ruling upon the party's request,
objection or motion. When the party's objection involves the
admissibility of evidence, the complaining party must present an
objection when the evidence is introduced at trial, even where, as
here, the objection was previously considered in a motion in
. State v. Hayes
, 350 N.C. 79, 80, 511 S.E.2d 302, 303
(1999) (per curiam); but see
N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)
(2003) (effective October 1, 2003) (Once the court makes a
definitive ruling on the record admitting or excluding evidence,either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.).
Nevertheless, a criminal defendant may preserve an evidentiary
issue where he or she assigns plain error to the issue on appeal.
N.C.R. App. P. 10(c)(4).
In the instant case, defendant asserts that the trial court
committed plain error by denying his motion in limine
. In support
of this assertion, defendant contends that there was evidence
introduced at the suppression hearing tending to show that he was
intoxicated while being interviewed by Officer McGraw, and
therefore he was unable to voluntarily waive his right to an
Plain error exists where, after reviewing the entire record,
the claimed error is so fundamental, so basic, so prejudicial, or
so lacking in its elements that justice could not have been done.
State v. Fleming
, 350 N.C. 109, 132, 512 S.E.2d 720, 736, cert.
, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). A prerequisite to
our engaging in a 'plain error' analysis is the determination that
the [trial court's action] constitutes 'error' at all. State v.
, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied
U.S. 836, 93 L. Ed. 2d 77 (1986). In the instant case, we conclude
that the trial court did not err.
A trial court's findings of fact regarding a motion to
suppress are conclusive on appeal if supported by competent
evidence. State v. Fernandez
, 346 N.C. 1, 11, 484 S.E.2d 350, 357
The trial court's findings of fact must support itsconclusions of law, and the trial court's conclusions must be
legally correct, reflecting a correct application of applicable
legal principles to the facts found. Id
. (citing State v. Payne
327 N.C. 194, 208-09, 394 S.E.2d 158, 166 (1990), cert. denied
U.S. 1092, 112 L. Ed. 2d 1062 (1991)).
In the instant case, the trial court found that defendant was
responsive to questions asked about the shooting . . . and the
events surrounding it[,] that defendant did understand what was
being told to him and asked by Officer McGraw, and that defendant
did understand the Miranda rights given and did not ask for a
lawyer or indicate that he was represented by a lawyer until the
conclusion of the interview. The trial court chose not to make
any findings as to whether  defendant had consumed any alcohol
or not, but it did find that defendant was responsive and
understood the rights that were indicated regardless of whether he
had consumed any alcohol or not in the hours previous to the
Defendant contends that the trial court's findings that he
voluntarily waived his constitutional rights are unsupported by
competent evidence. In support of this contention, defendant cites
his own testimony during the suppression hearing, in which
defendant stated that he was arrested at approximately 2:30 a.m.,
after having consumed around 15 shots of Seagram's Gin at a local
bar. Defendant testified that he did not recall Officer McGraw
reading him his Miranda
rights, and he did not recall making a
statement to Officer McGraw. However, defendant did recallrepeatedly telling Officer McGraw that he had hired an attorney
and needed to use the restroom.
In determining the voluntariness of the confession and the
waiver of Miranda
rights, we look to the totality of the
circumstances. State v. McKoy
, 323 N.C. 1, 21, 372 S.E.2d 12, 23
(1988), sentence vacated on other grounds
, 494 U.S. 433, 108 L. Ed.
2d 369 (1990). While intoxication is a circumstance critical to
the issue of voluntariness, intoxication at the time of a
confession does not necessarily render it involuntary. It is
simply a factor to be considered in determining voluntariness.
. at 22, 372 S.E.2d at 23 (citations omitted). The confession
'is admissible unless the defendant is so intoxicated that he is
unconscious of the meaning of his words.' Id
. (quoting State v.
, 303 N.C. 235, 243, 278 S.E.2d 200, 205 (1981)).
Unless a defendant's intoxication amounts to
mania -- that is, unless he is so drunk as to
be unconscious of the meaning of his words --
his intoxication does not render inadmissible
his confession of facts tending to incriminate
him. The extent of his intoxication when the
confession was made, however, is a relevant
circumstance bearing upon its credibility, a
question exclusively for the jury's
State v. Logner
, 266 N.C. 238, 243, 145 S.E.2d 867, 871, cert.
, 384 U.S. 1013, 16 L. Ed. 2d 1032 (1966).
In the instant case, Officer McGraw testified at the
suppression hearing that he read defendant the Miranda warnings as
printed on the Miranda warnings card[,] and that defendant
acknowledged that he understood the warnings and waived his
right and agreed to answer any of [Officer McGraw's] questions. Officer McGraw further testified that he did not smell alcohol on
defendant, that defendant was not stumbling or slurring his speech,
that defendant did not seem impaired in the slightest[,] and that
defendant made no indication that he had any difficulty at all in
understanding Officer McGraw's questions. Although we note that
defendant presented testimony to the contrary, we further note that
'[i]f there is a conflict between the [S]tate's evidence and
defendant's evidence on material facts, it is the duty of the trial
court to resolve the conflict and such resolution will not be
disturbed on appeal.' Fernandez
, 346 N.C. at 11, 484 S.E.2d at
357 (quoting State v. Chamberlain
, 307 N.C. 130, 143, 297 S.E.2d
540, 548 (1982)). Therefore, in light of the foregoing, we
conclude that ample evidence supports the trial court's
determination regarding defendant's intoxication and voluntary
waiver of his Miranda
Defendant maintains that the trial court erred by concluding
that his statement to Officer McGraw was admissible, in that he did
not sign it or otherwise acquiesce to its contents. We disagree.
Generally, a statement of an accused reduced to writing by
another person, where it was freely and voluntarily made, and where
it was read to or by the accused and signed or otherwise admitted
by him as correct shall be admissible against him. State v.
, 298 N.C. 687, 693, 259 S.E.2d 883, 887 (1979), cert.
, 446 U.S. 911, 64 L. Ed. 2d 264 (1980); see State v. Cole
293 N.C. 328, 334, 237 S.E.2d 814, 818 (1977). In State v.
, 269 N.C. 135, 139-41, 152 S.E.2d 133, 137-39 (1967), ourSupreme Court held that a defendant must indicate his acquiescence
in the correctness of a written statement in order for it to be
tendered by the State as his confession. However, our courts have
since recognized that the written instrument is admissible,
without regard to the defendant's acquiescence, if it is a
'verbatim record of the questions [asked] . . . and the answers'
given by him. State v. Bartlett
, 121 N.C. App. 521, 522, 466
S.E.2d 302, 303 (1996) (quoting State v. Byers
, 105 N.C. App. 377,
383, 413 S.E.2d 586, 589 (1992)); see Cole
, 293 N.C. at 334-35, 237
S.E.2d at 818 (officer wrote down statements in longhand in
defendant's own words and swore they were defendant's actual
words); State v. Fox
, 277 N.C. 1, 25, 175 S.E.2d 561, 576 (1970)
(sheriff testified that the transcription was an exact copy of
the conversation between himself and defendant). Therefore, the
Court's decision in Walker
does not preclude admission of an
unsigned statement taken in longhand if it contains a record of
a defendant's actual responses to the recorded questions. State
, 343 N.C. 250, 256-57, 470 S.E.2d 33, 36 (1996).
In the instant case, Officer McGraw's report of his interview
with defendant contains a record of his questions as well as the
answers provided by defendant. Officer McGraw testified at the
suppression hearing that defendant made the statement contained in
the report, and at trial Officer McGraw testified that he asked
the questions to [defendant], [defendant] answered and I wrote
[defendant's] answer down in my report. There is no indication in
the record that Officer McGraw's report contains merely [his own]impressions of the import of defendant's statements. Cole
N.C. at 334-35, 237 S.E.2d at 818. Instead, the sworn testimony
indicates that the report contains the actual answers provided by
defendant in response to Officer's McGraw's actual questions.
Therefore, in light of the foregoing, we conclude that the trial
court did not err by admitting into evidence defendant's statement
to Officer McGraw following his arrest. Accordingly, defendant's
first argument is overruled.
 Defendant next argues that the trial court erred by
denying his motion to dismiss the charges against him. Defendant
asserts that the State produced insufficient evidence to
demonstrate that he was the perpetrator of the crimes. We
When considering a motion to dismiss, the trial court must
determine whether substantial evidence exists to support each
element of the crime charged and that [the] defendant was the
perpetrator[.] State v. Morgan
, 359 N.C. 131, 161, 604 S.E.2d
886, 904 (2004). [T]he trial court must view the evidence in the
light most favorable to the State, giving the State the benefit of
all reasonable inferences. Id
. [C]ontradictions and
discrepancies do not warrant dismissal of the case -- they are for
the jury to resolve. State v. Earnhardt
, 307 N.C. 62, 67, 296
S.E.2d 649, 653 (1982).
In the instant case, the evidence tends to show that after the
fight between Ray Von and Irvin, someone fired a shot at Ray Von.
Donald, Marlo, and Ray Von thereafter ran down 24th Street andturned onto Cleveland Avenue toward 23rd Street. While they were
running, Donald, Marlo, and Ray Von heard several more shots fired
from behind them. A bullet from one of these gunshots injured
Bailey, who was standing on the corner of 23rd Street and Cleveland
Avenue. Although both Irvin and Puryear testified that Irvin fired
the initial shot at Ray Von, both Irvin and Puryear further
testified that Puryear transported Irvin to the hospital after the
initial shot was fired. In his statement to Officer McGraw,
defendant admitted that he took the gun from Irvin after Irvin
fired the initial shot, and that he thereafter followed Donald,
Marlo, and Ray Von down the street. Defendant stated that while
[he] was following [Donald, Marlo, and Ray Von], [he] fired eight
or nine times at them while they were running from 24th street
towards 23rd on Cleveland Avenue. Boyd testified that she heard
eight total gunshots and Bailey testified that she heard eight or
nine total gunshots. Considering the foregoing evidence in the
light most favorable to the State, we conclude that the State
offered sufficient evidence to demonstrate that defendant was the
perpetrator of the crimes for which he was charged. Accordingly,
we overrule defendant's second argument.
 Defendant next argues that the trial court erred by
continuing the trial following the dismissal of a juror. Our
review of the record indicates that during the trial, the trial
court dismissed one juror due to his sleeping problem. However,
there is no indication in the record that defendant thereafter
moved for a mistrial or offered any objection to the trial court'scontinuation of the trial with an alternate juror. Although we
note that defendant has assigned plain error to this issue on
appeal, we also note that our Supreme Court has only elected to
review unpreserved issues for plain error that involve
instructional errors or the admissibility of evidence. State v.
, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001)
(citing State v. Steen
, 352 N.C. 227, 536 S.E.2d 1 (2000), cert.
, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001) and State v.
, 342 N.C. 580, 467 S.E.2d 28 (1996)), disc. review denied
355 N.C. 217, 560 S.E.2d 143, cert. denied
, 536 U.S. 967, 153 L.
Ed. 2d 851 (2002). Thus, in light of the foregoing, we conclude
that defendant has failed to properly preserve this issue for
appeal. Accordingly, we overrule defendant's third argument.
 Defendant next argues that the trial court erred by
failing to give a curative instruction following a prior
misstatement of the charges against him. The record reflects that,
at the opening of the trial, the trial court informed the jury that
defendant was being tried in part for the crime of assault with a
deadly weapon inflicting serious injury upon Bailey. Later in the
trial, the State advised the trial court that the calendar did not
correctly reflect what was indicted in 98 CRS 27852, in that it
appeared on the calendar that defendant was indicted for assault
with a deadly weapon inflicting serious injury upon Bailey rather
than assault with a deadly weapon with intent to kill
serious injury upon Bailey. The trial court inquired as to whether
either party wanted to tell the jury about that[,] noting that itwas not sure they paid that much attention to detail in the
beginning[,] and that [t]hey know it is a serious assault
charge. Although defendant did not request a curative instruction
at that time, he now contends that the trial court committed plain
error by not issuing a curative instruction sua sponte
As discussed above, [a] prerequisite to our engaging in a
'plain error' analysis is the determination that the [trial court's
action] constitutes 'error' at all. Torain
, 316 N.C. at 116, 340
S.E.2d at 468
. Once we have determined that the trial court erred,
'[b]efore 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
. (quoting State v. Walker
, 316 N.C. 33, 39, 340
S.E.2d 80, 83 (1986)). In the instant case, we conclude that
defendant has failed to meet this burden. Although the trial court
did not give any additional instructions to the jury at the time
the issue was first raised, in its charge to the jury following
presentation of all the evidence, the trial court correctly
instructed the jury that defendant was charged with assault with a
deadly weapon with intent to kill inflicting serious injury upon
Bailey. The trial court also correctly instructed the jury
regarding the elements of the offense. Defendant has failed to
demonstrate how the alleged error impacted the jury's verdict.
Accordingly, we overrule defendant's fourth argument.
 Defendant next argues that the trial court erred byfailing to instruct the jury to disregard testimony following a
sustained objection. The record reflects that at trial, the State
introduced testimony from Winston-Salem Police Department Detective
Brian Frady (Detective Frady). Detective Frady testified that he
was employed by the Winston-Salem Police Department as a crime
scene technician, and that on 2 June 1998, he responded to the area
of 24th Street and Cleveland Avenue in response to an assault with
a deadly weapon call. Detective Frady stated that his
investigation of the area produced seven fired shell casings, each
.45 automatic caliber. During direct examination, the State asked
Detective Frady to [t]ell the jury the difference between an
automatic weapon and a revolver, what happens to a shell casing[.]
Defendant objected to this question unless he is an expert[,] and
the trial court sustained the objection. Following both parties'
examination of Detective Frady regarding his experience and
training, the trial court again sustained defendant's objection.
The State thereafter examined Detective Frady as follows:
Q: Have you ever shot an automatic weapon?
Q: Can you tell the jury what happens when
you shoot an automatic weapon with the
A: Well the shell casing ejects out of the
weapon and lands on the ground somewhere
Q: And have you ever shot a revolver?
Q: Can you tell the members of the jury what
happens when you shoot a revolver?
A: Well it depends on how many shots it is
after you get through firing the last
shot, you have to actually open the gun
up and dump the shells out, they don't
eject after each round is fired.
Q: So the difference then as you have seen
it is that when a revolver is shot the
shell casings stay within the revolver?
A: That is correct they stay in the
Q: And [with an] automatic weapon they are
ejected from the gun, [is] that right?
A: That is correct.
Defendant did not object to this testimony at trial. On appeal,
defendant contends that the trial court committed plain error by
failing to instruct the jury to disregard the testimony. We
N.C. Gen. Stat. § 8C-1, Rule 701 (2003) provides that where a
witness is not testifying as an expert witness, his testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue. In State v. Shaw
N.C. 797, 370 S.E.2d 546 (1988), our Supreme Court affirmed the
trial court's decision to allow a police officer to testify that
two pairs of shoes showed similar wearing on their respective
heels. The Court noted that [n]o specialized expertise or
training is required for one to determine that two shoes share wear
patterns[,] and that [s]uch a determination may be made by merely
observing each pair. Id
. at 809, 370 S.E.2d at 552-53. Similarly, in the instant case, Detective Frady's testimony
regarding the location of shell casings when a bullet is fired from
two different weapons was based not upon any specialized expertise
or training, but merely upon his own personal experience and
observations in firing different kinds of weapons. Having failed
to qualify Detective Frady as an expert in shell casing ballistics,
the State was not prevented from eliciting lay opinion testimony
from him. Accordingly, we overrule defendant's fifth argument.
 Defendant's final argument is that his due process rights
were violated by the destruction of the shell casings prior to his
trial. Defendant asserts that the destruction of the shell casings
violated his discovery rights under N.C. Gen. Stat. § 15A-903 and
prevented him from proving that the weapon in his possession when
he was arrested was not involved in the shooting. We disagree.
N.C. Gen. Stat. § 15A-903(e) (2003)
(See footnote 1)
provides as follows:
Reports of Examinations and Tests. -- Upon
motion of a defendant, the court must order
the prosecutor to provide a copy of or to
permit the defendant to inspect and copy or
photograph results or reports of physical or
mental examinations or of tests, measurements
or experiments made in connection with the
case, or copies thereof, within the
possession, custody, or control of the State,
the existence of which is known or by the
exercise of due diligence may become known to
the prosecutor. In addition, upon motion of a
defendant, the court must order the prosecutor
to permit the defendant to inspect, examine,
and test, subject to appropriate safeguards,any physical evidence, or a sample of it,
available to the prosecutor if the State
intends to offer the evidence, or tests or
experiments made in connection with the
evidence, as an exhibit or evidence in the
The State has no statutory duty to provide discovery absent a
request from [the] defendant. State v. Cummings
, 346 N.C. 291,
322, 488 S.E.2d 550, 568 (1997), cert. denied
, 522 U.S. 1092, 139
L. Ed. 2d 873 (1998). This Court has previously stated that
[w]hether the destruction [of evidence] infringes upon the rights
of an accused depends upon the circumstances in each case. State
, 57 N.C. App. 602, 610, 292 S.E.2d 163, 168, disc.
, 306 N.C. 559, 294 S.E.2d 372 (1982). '[U]nless a
criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute
a denial of due process of law.' State v. Mlo
, 335 N.C. 353, 373,
440 S.E.2d 98, 108 (quoting Arizona v. Youngblood
, 488 U.S. 51, 58,
102 L. Ed. 2d 281, 289 (1988)), cert. denied
, 512 U.S. 1224, 129 L.
Ed. 2d 841 (1994).
In the instant case, there is no indication in the record that
defendant filed a discovery request for the shell casings, and
defendant has neither alleged nor demonstrated any bad faith on the
part of the prosecutor or police department in the destruction of
the shell casings. Officer Thomas testified that she had no idea
[the shell casings] were related to the stabbing of Irvin, and
that after learning that Irvin did not wish to prosecute Ray Von,
she ordered the destruction of the evidence gathered during the
investigation of the stabbing, including the shell casings. Oncross-examination, Officer Thomas testified that she could never
ascertain if the shell casings were involved in the shootings, and
therefore she had the casings destroyed because [they] were not
related to [her] stabbing case. Officer Thomas further testified
that had [she] know[n] that these two cases were related [she]
would have kept the shell casings. In light of the foregoing, we
conclude that defendant's due process rights were not violated by
the destruction of the shell casings. Accordingly, we overrule
defendant's final argument.
In light of the foregoing conclusions, we hold that defendant
received a trial free of prejudicial error.
Judges McCULLOUGH and STEELMAN concur.