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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JHALMAR EMMANUEL MEDINA
Filed: 6 December 2005
1. Evidence_out-of-court statement--door opened on cross-examination_no error
Defense counsel opened the door during cross-examination to an out-of-court statement
by defendant's cousin (Jorge), and the statement was correctly admitted during redirect
2. Constitutional Law_effective assistance of counsel_tactical decisions_no error
Defendant's Sixth Amendment guarantee of the effective assistance of counsel was not
violated by his counsel's decisions about testimony and an objection. Defense counsel
apparently made a tactical decision; even so, any error was not so serious that his attorney was
not functioning as counsel guaranteed by the amendment.
3. Constitutional Law_right of confrontation_detective's testimony about
witness_evidence otherwise admitted_no error
The trial court did not violate the Sixth Amendment right to confrontation in a first-
degree murder prosecution by admitting a detective's testimony that he considered defendant's
cousin Jorge (who did not testify) a material witness against defendant based on an interview
with Jorge. The jury had already heard that Jorge had been with defendant before and
immediately after the murder and had implicated defendant as the murderer. The State was not
trying to do indirectly what it could not do directly.
4. Evidence_gang membership and colors_identification_admissible
The trial court did not err in a prosecution for first-degree murder by admitting evidence
that defendant was a gang member. Defendant's identity was in issue and the gang color and
defendant's gang involvement helped the witness in identifying defendant.
5. Appeal and Error_preservation of issues--failure to assign error_references to
defendant having been in jail
Failure to assign error to a ruling by the trial court meant failure to preserve for appeal
issues concerning references to defendant having been in jail.
6. Appeal and Error; Constitutional Law_preservation of issues--
failure to assign
error_life sentence for minor_death sentence ruling distinguished
Defendant did not assign error and did not preserve for appeal the question of whether a
life sentence without parole for a 16-year old violated the Eighth and Fourteenth Amendments.
The U.S. Supreme Court ruling forbidding the death penalty for those under 18, Roper v.
Simmons, 161 L. Ed. 2d 1 (2005), did not consider life imprisonment.
Appeal by defendant from judgments entered 1 September 2004 by
Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.
Heard in the Court of Appeals 2 November 2005.
Attorney General Roy Cooper, by Solicitor General Christopher
G. Browning, Jr., for the State.
Kathryn L. VandenBerg, for defendant-appellant.
Jhalmar Emmanuel Medina (defendant)
appeals from judgments
entered after a jury found him to be guilty of first-degree murder
and attempted first-degree murder. We find no error.
The State's evidence tended to show that fifteen-year-old
Omega Daniel Graham Morris (Morris)
was walking his girlfriend,
fourteen-year-old Emily Stitt (Stitt)
, toward home late in the
evening on 10 March 2003 when Morris
was shot eight times and
Stitt was shot in the face and in the back but survived
Stitt testified that during their walk toward home,
crept out of the woods and approached them. One of the individuals
drew a handgun out of his pocket and asked Morris, Where is my
Mother F_-king speakers? Stitt recognized the voice to be
defendant's, one of Morris's friends. Stitt began walking and ran
when she heard gunshots. Stitt testified that defendant came up
beside her, shot her in the face, and she fell to the ground. Defendant pressed the hot tip of the gun onto her neck, burning
her. Defendant realized that he had emptied the gun of bullets,
reloaded, and shot Stitt in the back. When Stitt's father came out
of his house, defendant ran away.
As Stitt waited for an ambulance at the scene of the attack,
she identified defendant to police officers as the attacker. Later
that evening, Stitt told detectives that defendant wore a bandanna
tied around his face, blue or black in color, covering the lower
part of his face up past his nose. She told detectives that
: (1) had very short hair; (2) wore a hood over his head;
and (3) wore high-top Chuck Taylor Converse shoes and black
Stitt informed detectives that she had known defendant for at
least one month and a half. She identified defendant from a police
lineup of six people. Stitt told detectives defendant lived in
Holly Hills, was El Salvadorian, was a member of the Crips gang,
and carried a black revolver with a brown handle.
Utilizing Stitt's information, the police located defendant at
his home. While searching defendant's house, the police found a
gray hooded sweatshirt in a bedroom being used by Jorge Sotero-Sosa
(Jorge), defendant's cousin. Jorge was present when the police
searched the house. Wrapped inside the sweatshirt was a pair of
black sweat pants, a black toboggan, a blue bandanna, a pair of
white gloves, and Converse Chuck-Taylor high-top shoes.
contained fresh mud on the soles. Rashard Little (Little) andCarly Ann Strand (Strand), defendant's friends, recounted seeing
Jorge and defendant together on the night of the murder.
B. Rashard Little
Little testified that he saw defendant on three occasions on
10 March 2003. Defendant told Little that morning
he planned to
kill Morris. Little saw defendant later in the afternoon when
defendant retrieved his Converse Chuck Taylor high tops. Little
saw defendant a third time around 11:30 p.m. Little testified that
defendant and Jorge arrived at Little's house and asked if Little
wanted to go with them to kill Morris. Before Little could get
dressed, Jorge and defendant had left. Little said he heard
gunshots and two people running through the woods about ten minutes
C. Carly Ann
Defendant's girlfriend, Strand, was with defendant and Jorge
until 9:00 p.m. on the night of the murder. Defendant called
Strand that night and told her that he and Jorge were going to work
out before going to bed. The following morning defendant called
Strand from jail and told her he had killed Morris the night before
and hid the pistol in the woods. At defendant's request, Strand
agreed to recover and dispose of the gun. Strand testified she and
her friend, Brandi, retrieved the gun, threw it into a pond in a
local neighborhood and threw the bullets into another nearby pond.
After Strand's disposal of the pistol, defendant learned that Derek
Oaks, Strands's friend, threatened to inform the police of Strand's
disposal of the gun. On defendant's instructions, Strand tookanother friend, Waylen, to the pond so Waylen could remove the
pistol from the pond. Although Strand stated she did not see
Waylen remove the pistol from the pond, law enforcement officers
later searched the pond but did not find a gun.
D. Tijuan Kenkins
Tijuan Kenkins (Kenkins) testified that he knew Morris and
defendant. He had a conversation with defendant about a week and
a half before Morris was murdered. In that conversation defendant
told Kenkins he wanted to kill Morris because some of defendant's
belongings being kept at Morris's house were missing. Kenkins also
testified that defendant had threatened to kill him the following
day if he told Morris and his family about defendant's plan to kill
Morris. Kenkins recalled that defendant carried a black .38
revolver with a brown handle. Kenkins testified, without
objection, that defendant was a member of the Crips gang and that
he wore a blue bandanna.
E. Felicia Ann Garland
Felicia Ann Garland (Garland), defendant's girlfriend,
testified that she had a conversation with defendant on Thursday
afternoon during the first week of the trial. Defendant told her
that a mutual friend would pick her up at her high school at 6:30
a.m. the next morning. Garland testified that she had agreed to go
with defendant, who had skipped court during lunch and was on the
run. Defendant told Garland that he had killed Morris and had
attempted to kill Stitt. Defendant stated Morris had worn his
clothes and stole his speakers. Defendant told Garland he sentStrand to retrieve the murder weapon and explained Strand had
disposed of it in the pond behind her old neighborhood. Garland
testified that defendant stated he had told Strand to tell the
truth because he was leaving and never coming back. While the
trial was ongoing, defendant attempted to flee but was apprehended.
Defendant was convicted of one count of first-degree murder
and one count of attempted first-degree murder. He was sentenced
to life imprisonment without parole on the conviction for first-
degree murder. Defendant was sentenced to a minimum of 189 months
and a maximum of 236 months for the attempted murder conviction.
The sentences were ordered to run consecutively. Defendant
Defendant argues the trial court erred when it: (1) admitted
Jorge's alleged statements; (2) admitted evidence that he was a
gang member and was previously in jail; and (3) sentenced him, a
sixteen-year-old, to life imprisonment without parole.
III. Standard of Review
A trial court may be reversed for an abuse of discretion only
upon a showing that its ruling was so arbitrary that it could not
have been the result of a reasoned decision. State v. Sims, 161
N.C. App. 183, 190, 588 S.E.2d 55, 60 (2003) (quoting State v.
Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985)).
IV. Out of Court Statements
Defendant argues: (1) the admission of Jorge's alleged
statements violated defendant's right to confront witnesses againsthim; (2) defense counsel provided ineffective assistance in
eliciting testimony about Jorge's alleged statements to Little; and
the trial court erred in allowing Charlotte Police
Harold Henson (Detective Henson)
to testify that he considered
Jorge to be a material witness against defendant
A. Jorge's Statements
 While cross-examining Little, defense counsel asked
whether part of Little's testimony was based on information Jorge
had told him. Defense counsel asked Little to recount Jorge's out
of court statement as follows:
Q. What did Jorge tell you?
A. He told me what happened.
On re-direct, the State used the same phrase in repeating the
question to Little. Without objection, Little testified on
redirect as follows:
Q. The defense lawyer asked you some
question that you answered by telling him
that you were told by Jorge what had
happened to [Morris] and [Stitt]; is that
Q. What did Jorge tell you had happened to
[Morris] and [Stitt]?
A. He told me that [defendant] killed them.
Our Supreme Court has stated, [t]he purpose of redirect
examination is to clarify any questions raised on cross-examination
concerning the subject matter of direct examination and to confront
any new matters which arose during cross-examination. State v.Baymon, 336 N.C. 748, 754, 446 S.E.2d 1, 4 (1994) (citing State v.
Price, 301 N.C. 437, 452, 272 S.E.2d 103, 113 (1980)).
Defense counsel initiated testimony concerning Jorge's
statements to Little during cross-examination. Defendant concedes
this opened the door for the State to elicit any alleged
statements made by Jorge.
The State was entitled to introduce
evidence to explain the statement on redirect. Id. Little's
testimony provided that explanation.
This assignment of error is
B. Ineffective Assistance of Counsel
Defendant argues that defense counsel was ineffective by:
(1) eliciting information about Jorge's statement directly from
Little; (2) eliciting information from Stitt regarding his
involvement in a gang and time spent in jail; and (3) failing to
object when a police officer testified that Stitt had told him
defendant was a member of a gang.
In Strickland v. Washington, the United States Supreme Court
provided a two-prong test for a defendant to establish ineffective
assistance of counsel. 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). The test requires:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
counsel guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Our Supreme Court has stated, this court engages in a
presumption that trial counsel's representation is within the
boundaries of acceptable professional conduct when reviewing
ineffective assistance of counsel claims. State v. Roache, 358
N.C. 243, 280, 595 S.E.2d 381, 406 (2004).
In State v. Lowery, the
Court stated, [w]e ordinarily do not consider it to be the
function of an appellate court to second-guess counsel's tactical
decisions. 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986).
Defendant admits his counsel's decision to ask Little about
Jorge's statements was an apparent tactical decision. We will not
second-guess counsel's tactical decisions. Id. Even if defense
counsel erred in eliciting the testimony from Little and Stitt and
in failing to object to the police officer's testimony, the error
so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment.
Washington, 466 U.S. at 687, 80 L. Ed. 2d at 693. This assignment
of error is overruled.
3. Detective Henson's Testimony
 Jorge did not testify at trial. Detective Henson
testified that he interviewed Jorge on 11 March 2003. Over
objection, the prosecutor elicited the following testimony:
Q. As a result of that interview, please
state whether or not you considered Jorge
to be a material witness against the
A. Yes, Sir, I did.
Defendant argues the Detective Henson's testimony that Jorge
would have been a material witness was based on hearsay
statements he elicited from Jorge in violation of defendant's Sixth
Amendment right of confrontation.
Defendant contends Detective
Henson's testimony regarding Jorge constitutes hearsay because
Detective Henson was testifying as to the content of Jorge's
statement, and Jorge was not available for cross-examination at
Under Crawford v. Washington, the confrontation clause
prohibits testimonial statements from being admitted into evidence
when the declarant is unavailable at trial and was not subject to
cross-examination when the statement was made. 541 U.S. 36, 59,
158 L. Ed. 2d 177, 197 (2004) (Testimonial 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.).
In Schaffer v. State, the Court of Criminal Appeals of Texas
held a police officer's testimony regarding information he received
out of court from an unavailable witness in the course of his
investigation was inadmissible hearsay. 777 S.W.2d 111 (Tex. Crim.
App. 1989). The defendant claimed to be a police informant when
police officers found him inside a van that contained peyote, a
controlled substance. Id. at 112. In attempting to disprove the
defendant's status as a police informant, the State called Officer
Segovia to testify. Id. Officer Segovia testified that as aresult of his investigation he did not think the state should drop
the case against the defendant:
Q. Officer Segovia, when was the first time
you heard the name of -- a person by the
name of Jimmy Seals?
A. This morning.
Q. And who, if anybody, informed you of that
A. You did, sir.
Q. And were you able to contact Officer
A. Yes, sir.
Q. And when was this?
A. This morning.
Q. And did you have occasion to talk to him?
A. Yes, sir, I did.
Q. Without telling us what he told you,
Officer Segovia, would you, at this time,
ask the State to drop charges against Mr.
A. No, sir.
Id. at 113. Mr. Seals was not subpoenaed for trial and did not
testify. Id. The court stated:
In the case before us, the State did
indirectly that which it could not do directly
-- Officer Segovia's testimony informed the
jury that Seals told him that appellant was
not an informant . . . There is no doubt that
the State's sole intent in pursuing this line
of questioning was to convey to the jury that
Seals had told Segovia that appellant was not
Id. at 114. In the present case, the State did not seek indirectly to do
what it could not do directly. Detective Henson's testimony did
not convey to the jury any specific statement Jorge made to
Detective Henson. Rather, as a result of his investigation,
Detective Henson testified that Jorge would have been a material
When Detective Henson testified, the jury had already heard,
without objection, that Jorge had implicated defendant as the
murderer. The jury was aware through other testimony that Jorge
was staying with defendant and had been with defendant immediately
before and after the murder. Moments before the shooting, Jorge
was present when defendant asked Little to come with them to murder
Morris. Jorge stood as a material witness in defendant's
Our Supreme Court in State v. Covington, made clear that
counsel must be allowed wide latitude in the argument of hotly
contested cases. He may argue to the jury the facts in evidence
and all reasonable inferences to be drawn therefrom together with
the relevant law so as to present his side of the case. 290 N.C.
313, 327-28, 226 S.E.2d 629, 640 (1976) (citing State v. Monk, 286
N.C. 509, 212 S.E.2d 125 (1975); State v. Noell, 284 N.C. 670, 202
S.E.2d 750 (1974)).
Given the uncontested evidence before the jury about Jorge's
knowledge of the shooting, Jorge would have been a material
witness. The court did not violate defendant's Sixth Amendmentright of confrontation by admitting the evidence. This assignment
of error is overruled.
V. Victim's Identification of Defendant
 Defendant argues the trial court erred when it admitted
evidence that he was a gang member and was previously in jail.
During Stitt's direct testimony she stated:
Q. Do you recall the detectives asking you if
J.R. was involved in a gang?
Q. What did you tell them?
A. He was a crip.
. . . .
Q. Do you recall the detective asking you if J.R.
had some problem with Buddy concerning some
clothes or something?
Q. What did you tell her?
A. That before he had went to jail, he had left _
A. That he left his speakers at Buddy's house,
and when he got back, they weren't there.
DEFENSE: Motion to Strike
COURT: Motion to Strike is Allowed
. . . .
Q. Ms. Stitt, you said that the bandanna was
Q. And you knew that the Crip colors were blue.
During cross-examination of Stitt, defense counsel elicited
further testimony regarding defendant's time in jail. Following
Stitt's testimony, the jury sent a note to the trial court asking:
(1) How does Emily know JR was in a gang?
(2) Was Buddy in a gang?
The prosecutor elicited testimony from Jenkins concerning
defendant being in jail and defendant's involvement in a gang.
Defendant argues the State should not have presented evidence of
defendant's bad character when he neither testified nor introduced
evidence of his good character. Defendant contends that evidence
that he was in a gang and served time in jail is evidence of bad
character and was improperly admitted and resulted in an unfair
Rule 404(b) of the North Carolina Rules of Evidence states:
(b) Other crimes, wrongs, or acts. -- Evidence
of other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake,
entrapment or accident. Admissible evidence
may include evidence of an offense committed
by a juvenile if it would have been a Class A,
B1, B2, C, D, or E felony if committed by an
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003) (emphasis supplied).
Our Supreme Court has stated, Rule 404(b) is a rule of inclusion,
subject to the single exception that such evidence must be excludedif its only probative value is to show that defendant has the
propensity or disposition to commit an offense of the nature of the
crime charged. State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132,
In State v. Ruof,
the defendant argued the trial court erred
in allowing evidence that he was a gang member. 296 N.C. 623, 252
S.E.2d 720 (1979).
Our Supreme Court stated:
Defendant contends that the trial judge erred
in allowing testimony relating to defendant's
association with The Outlaws motorcycle gang
because such evidence was irrelevant and was
introduced solely to prejudice the jury. We
do not agree. Relevant evidence will not be
excluded simply because it may tend to
prejudice the jury or excite its sympathy.
The witnesses who identified defendant
testified that they had seen him at The Hut
prior to the night in question dressed in
Outlaw clothes and in the company of other
Outlaws. This testimony was relevant and
admissible for the purpose of identifying
Id. at 630, 252 S.E.2d at 725 (citing State v. Hairston, 280 N.C.
220, 185 S.E.2d 633, cert. denied, 409 U.S. 888, 34 L. Ed. 2d 145
Defendant's identity was at issue at trial. Stitt's
familiarity with the gang's color of blue and her knowledge of
defendant's involvement in the gang aided her in identifying
defendant as the perpetrator. This testimony was relevant and
admissible for the purpose of identifying defendant. Id.
 Defendant argues that the references made by two witnesses
concerning his time in jail violated his right to a fair trial.
However, defendant failed to preserve this issue for appeal. Defendant did not assign as error any rulings by the trial court
regarding the introduction of any evidence involving his time in
jail. N.C.R. App. P. 10(a) (2004); State v. Diehl, 353 N.C. 433,
438, 545 S.E.2d 185, 188 (2001) (The scope of appellate review is
limited to those issues raised in an assignment of error set out in
the record on appeal, N.C.R. App. P. 10(a), and where no assignment
of error can fairly be considered to encompass additional issues
that a party seeks to raise at the appellate level, those issues
are not properly before the reviewing court.)
, cert. denied, 356
N.C. 170, 568 S.E.2d 624 (2002). We decline to consider this
Defendant failed to show the trial court's allowing admission
of testimony regarding his involvement in a gang was an abuse of
discretion. This assignment of error is overruled.
VI. Life Imprisonment Without Parole
 Defendant argues the trial court erred when it sentenced
him, a sixteen-year-old, to life imprisonment without parole in
violation of the United States and North Carolina Constitutions.
Defendant contends that because the Supreme Court recently held
[t]he Eighth and Fourteenth Amendments forbid imposition of the
death penalty on offenders who were under the age of 18 when their
crimes were committed, sentencing a sixteen-year-old to life
imprisonment also violates the Eighth and Fourteenth Amendments.
Roper v. Simmons, ___ U.S. ___, 161 L. Ed. 2d. 1, 28 (2005). In
Roper, the Court did not consider life imprisonment of juveniles.
Defendant failed to raise this argument at trial and did not assignit as error. Defendant failed to preserve this argument for
This issue is not properly before us and is dismissed.
The trial court did not err in admitting: (1) Detective
Henson's testimony that Jorge was a material witness; (2) Little's
statements on redirect concerning what Jorge told him; or (3)
evidence that defendant was a gang member and was previously in
Defendant failed to preserve for review the issues whether
his Eighth and Fourteenth Amendment rights were violated when he
was sentenced to life imprisonment without parole.
We find no
error in defendant's trial or sentence.
Judges JACKSON and SMITH concur.
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