Appeal by defendant from judgments dated 20 May 2004 by Judge
J. Marlene Hyatt in Jackson County Superior Court. Heard in the
Court of Appeals 8 June 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General John J. Aldridge, III, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant.
Bryant, Judge.
On 8 December 2003, Harold Leo McVay, III, (defendant) was
indicted on seven counts of assault with a firearm on a law
enforcement officer (03 CRS 2746-2748, 2752, 2753-55); assault with
a deadly weapon with intent to kill (03 CRS 2750); attempted murder(03 CRS 2751); and discharging a firearm in city limits (03 CRS
2756). Defendant was tried before a jury at the 17 May 2004
criminal session of the Jackson County Superior Court, the
Honorable J. Marlene Hyatt presiding. On 20 May 2004, the jury
found defendant guilty of attempted murder, assault with a deadly
weapon with intent to kill, and four counts of assault with a
firearm on a law enforcement officer. The jury found defendant not
guilty on three counts of assault with a firearm on a law
enforcement officer. The trial court dismissed the charge of
discharging a firearm in city limits for insufficient evidence and
arrested judgment on the charge of assault with a deadly weapon
with intent to kill. Defendant appeals his convictions.
Facts
On 18 October 2003 at approximately 6:00 p.m., Officer Shannon
Ashe of the Sylva Police Department responded to a call of shots
fired at 69 Magnolia Street in Sylva, North Carolina. Upon
arrival, Officer Ashe saw defendant standing on the porch of the
house and talking to an individual standing inside the doorway.
Officer Ashe ordered defendant to show his hands, whereupon
defendant turned around and fired two shots at Officer Ashe with a
nine-millimeter handgun. Officer Ashe was struck once in his
abdomen, but was protected from the full force of the shot by his
bulletproof vest. Officer Ashe retreated to cover and called for
backup. Defendant fired two or three more shots at Officer Ashe
and Officer Ashe returned fire. His backup having not arrived,
Officer Ashe retreated down the street and lost sight of defendant. Several officers from various law enforcement agencies
responded to the scene to support Officer Ashe. After setting up
a perimeter and conducting a search of the area, defendant was
located in his house at 61 Magnolia Drive. The officers took up
positions around the back of the house and Deputy Matthew Helton of
the Jackson County Sheriff's Department established a dialogue with
defendant through the storm door. Deputy Helton attempted to
convince defendant to lay down his weapon and surrender to the
officers, but defendant refused. Defendant and Deputy Helton
talked off and on for at least 45 minutes. During this time
defendant would speak with Deputy Helton while standing behind a
closed storm door, holding his handgun in his right hand and often
drinking a beer he held in his left hand. At one point during the
dialogue defendant stated, “This is going to end in thirty
seconds.” Shortly thereafter, defendant broke out the glass of the
storm door and began firing toward Deputy Helton. Defendant swept
his weapon in an arc from right to left while firing a total of
three to four times. The defendant's shots were heard going over
the heads of Trooper Denny Wood of the North Carolina Highway
Patrol, and Deputy Blake Watson of the Jackson County Sheriff's
Department.
Deputy John Fox of the Jackson County Sheriff's Department
returned fire with his rifle, firing two or three shots, none of
which struck defendant. Deputy Helton also returned fire with his
shotgun, discharging a total of three rounds, hitting defendant and
causing him to fall back into his house. Officers then ran intothe house, finding defendant wounded and lying on the floor.
Defendant was taken into custody and then transported by ambulance
to Harris Regional Hospital.
_________________________
On appeal, defendant raises three issues: (I) whether
defendant's conviction for attempted first degree murder must be
vacated because North Carolina does not authorize a short-form
indictment for attempted murder; (II) whether the trial court erred
by admitting lay opinion testimony by various law enforcement
officers that defendant “tried to kill” Officer Ashe; and (III)
whether the trial court committed reversible error when it denied
the jury's request to review the testimony of Deputy Watson. For
the following reasons, we find no error.
I
[1] Defendant first argues that as North Carolina does not
specifically authorize the use of a short-form indictment for the
crime of attempted murder and because the indictment at issue did
not sufficiently allege the offense of attempted first-degree
murder, his conviction for attempted murder must be vacated.
Defendant also relies on a recent decision by this Court where a
conviction for attempted murder was vacated based on a faulty
indictment which used short-form language for first-degree murder
and charged attempted common law murder.
See State v. Jones, 165
N.C. App. 540, 598 S.E.2d 694 (2004),
rev'd 359 N.C. 832, 616
S.E.2d 496 (2005). Subsequent to defendant's filing of his brief,
the North Carolina Supreme Court reversed this Court's holding in
Jones, finding short-form indictments for attempted first-degree
murder constitutional and statutorily authorized.
State v. Jones,
359 N.C. 832, 616 S.E.2d 496 (2005). See also,
State v. Andrews,
154 N.C. App. 553, 559-60, 572 S.E.2d 798, 803 (2002);
State v.
Trull, 153 N.C. App. 630, 640, 571 S.E.2d 592, 599 (2002); and
State v. Choppy, 141 N.C. App. 32, 41, 539 S.E.2d 44, 50-51 (2000);
all finding short-form indictments sufficient to charge attempted
first-degree murder.
Section 15-144 of the North Carolina General Statutes provides
in an indictment for murder, “it is sufficient in describing murder
to allege that the accused person feloniously, willfully, and of
his malice aforethought, did kill and murder [victim's name].”
N.C. Gen. Stat. § 15-144 (2003). Section § 15-170 further provides
that “[u]pon the trial of any indictment the prisoner may be
convicted of the crime charged therein or of a less degree of the
same crime, or of an attempt to commit the crime so charged, or of
an attempt to commit a less degree of the same crime.” N.C. Gen.
Stat. § 15-170 (2003). The North Carolina Supreme Court has held
that when N.C.G.S. § 15-144 is construed alongside N.C.G.S. §
15-170, the use of a short-form indictment to charge attempted
first-degree murder is authorized.
Jones, 359 N.C. at 838, 616
S.E.2d at 499. “[W]hen drafting such a indictment, it is
sufficient for statutory purposes for the state to allege 'that the
accused person feloniously, willfully, and of his malice
aforethought, did [attempt to] kill and murder' the named victim.”
Id. The indictment in the instant case charges defendant with the
offense of attempted first-degree murder using the language from
N.C. Gen. Stat. § 15-144, and states: “The jurors for the State
upon their oath present that on or about the date of the offense
shown and in the county named above the defendant named above
unlawfully, willfully and feloniously did OF MALICE AFORETHOUGHT
ATTEMPT TO KILL AND MURDER SHANNON RICHARD ASHE.” Defendant was
properly charged in a short-form indictment with attempted first-
degree murder. This assignment of error is overruled.
II
[2] Defendant next argues the trial court erred by admitting
lay opinion testimony of various law enforcement officers that
defendant “tried to kill” Officer Ashe. Defendant contends such
testimony amounted to an improper expression of opinion in
violation of the rules of evidence governing lay opinion testimony.
Under the North Carolina Rules of Evidence, a lay witness may
testify in the form of opinions or inferences only if the opinions
or inferences 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.” N.C. Gen. Stat. § 8C-1,
Rule 701 (2003). “Testimony in the form of an opinion or inference
is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” N.C. Gen. Stat. § 8C-1, Rule 704
(2003).
[Our courts have] long held that a witness may
state the 'instantaneous conclusions of the
mind as to the appearance, condition, or
mental or physical state of persons, animals,and things, derived from observation of a
variety of facts presented to the senses at
one and the same time.' Such statements are
usually referred to as shorthand statements of
facts.
State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975),
sentence vacated on other grounds, 428 U.S. 904, 49 L. Ed. 2d 1210
(1976).
See also, State v. Marlow, 310 N.C. 507, 523-24, 313
S.E.2d 532, 542 (1984) (testimony that an event occurred “after the
murder” held to be a shorthand statement of fact);
State v. Porter,
303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981) (witness' testimony
he had been “robbed” properly admitted as a shorthand statement of
fact).
Here, the testimony by the officers amounted to nothing more
than shorthand statements of fact based on their knowledge and
observations. The statements made by the officers do not implicate
the guilt or mental state or intent of defendant, but rather
explain their perceptions and the impact of those perceptions on
their actions. This assignment of error is overruled.
III
[3] Finally, defendant contends the trial court failed to
exercise its discretion in denying the jury's request to review the
testimony of Deputy Watson. The trial court has the discretionary
authority to allow the jury, upon request, to reexamine material
received in evidence and to review portions of the testimony. N.C.
Gen. Stat. § 15A-1233(a) (2003). When presented with a request to
review the testimony of a witness “the trial court must exercise
its discretion in determining whether to permit requested evidenceto be read to or examined by the jury together with other evidence
relating to the same factual issue.”
State v. Ashe, 314 N.C. 28,
34, 331 S.E.2d 652, 656 (1985). A court's complete failure to
exercise discretion amounts to reversible error.
Ashe, 314 N.C. at
35, 331 S.E.2d at 656-57 (Where the trial court felt it could not
grant the request because the transcript was not available . . .
the court erred by not exercising its discretion in denying the
request.);
see also, State v. Lang, 301 N.C. 508, 272 S.E.2d 123
(1980) (Where our Supreme Court found a failure to exercise
discretion when the trial court responded to a request to have the
transcript of a witness' testimony read to it by stating “the
transcript is not available to the jury.”). Otherwise, a court's
ruling under N.C. Gen. Stat. § 15A-1233(a) is a discretionary
decision and it ordinarily will be reviewed only for an abuse of
discretion.
State v. Perez, 135 N.C. App. 543, 554, 522 S.E.2d
102, 110 (1999). An abuse of discretion occurs “where the court's
ruling is manifestly unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned decision.”
State
v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Defendant argues the trial court's decision not to permit the
jury review of Deputy Watson's testimony was both arbitrary and not
the result of a reasoned decision-making process. However, the
record clearly shows the trial court reasonably exercised its
discretion in denying the jury's request. With all of the jurors
in the courtroom, the court stated:
I am sorry but I am not going to grant your
request. The jury has the responsibility ofrecalling all the evidence. To begin
rehearing parts of the evidence by means of
providing you with a written transcript would
tend to emphasize certain portions of the
evidence without giving equal publication to
the other evidence in the case.
For that reason, it would be best not to let
portions of the evidence be repeated without
having it all repeated because all of the
evidence is important.
The trial court was clearly concerned that by allowing the
jury to review the testimony of only one of the many witnesses
heard at the trial the jury might overemphasize the testimony of
Deputy Watson and not properly consider the totality of the
evidence before them. Our Supreme Court has held that “[i]n
instructing the jury to rely upon their individual recollections to
arrive at a verdict, the trial court exercised its discretion and
complied with the requirements of N.C.G.S. § 15A-1233(a).”
State
v. Corbett, 339 N.C. 313, 338, 451 S.E.2d 252, 265 (1994);
see
also, State v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669
(1996). The trial court property exercised its discretion in
denying the jury's request to review Deputy Watson's testimony and
the denial was not an abuse of the trial court's discretion. This
assignment of error is overruled.
No error.
Judges McCULLOUGH and TYSON concur.
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