An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
STATE OF NORTH CAROLINA
Nos. 01 CRS 2600
ROGER DEL HERRING, 01 CRS 2601
01 CRS 2602
Appeal by defendant from judgment entered 9 October by Judge
Catherine C. Eagles in Guilford County Superior Court. Heard in
the Court of Appeals 19 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson for the State.
Paul Pooley for defendant-appellant.
The victim in this case, a girl, was seven years old at the
time of the alleged incidents. Her testimony was that Roger Del
Herring (defendant) touched her in her private area and had sex
with her while she was asleep. A doctor's exam produced evidence
which supported a finding of sexual abuse: both physical evidence
and a positive STD test. Health Department records showed that
defendant had tested positive and been treated for the same STD in
1999. He tested negative for the STD after the victim's test.
Defendant's ex-wife also testified that during their marriage she
suspected defendant was having sex with her when she was asleep,
and confirmed that on one occasion he tried while she feignedsleep. Defendant stated in a statement to law enforcement that the
victim had slept in his bed, that he was able to have sex in his
sleep, and that any sex that he had with the victim would have been
Defendant was tried by a jury and found guilty of taking
indecent liberties with a child, statutory sex offense, and
statutory rape. Defendant was sentenced for his sex offense
conviction to an aggravated term of 420 to 513 months. The rape
and indecent liberties convictions were consolidated for sentencing
purposes, and defendant was sentenced to another aggravated term of
420 to 513 months to run consecutively with the first. Defendant
now brings this appeal.
Defendant first argues on appeal that he was denied his right
to the effective assistance of counsel by
the trial court's
decision to allow him to proceed at trial when he was at an impasse
with his attorney.
Both sides agree that under the authority of State v. Ali, 329
N.C. 394, 407 S.E.2d 183 (1991), if the defendant and his counsel
are at an absolute impasse then the wishes of the defendant
should govern, and counsel should make a record of the situation.
In cases where there is disagreement but not an absolute impasse,
then counsel is responsible for making tactical decisions. State
v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991)
, explains this
Tactical decisions at trial, other than the
right to testify and plead, are generally leftto attorney discretion. . . . However, this
does not mean that the client has no input
into tactical decisions. . . . In a case
filed today, State v. El Amin Ahmad Ali, 329
N.C. 394, 407 S.E.2d 183 (1991), this Court,
after a complete analysis of defendant's sixth
amendment right to counsel, concluded that
where defense counsel allowed defendant to
make a decision not to peremptorily challenge
a juror, against the recommendations of both
his attorneys, the client's wishes must
control. Contrary to El Amin Ahmad Ali, in
the case sub judice, the record reveals that
counsel and defendant were not in conflict as
to whether to pass or strike these jurors, but
simply that defense counsel gave deference to
his client's wishes.
McDowell, 329 N.C. at 380, 407 S.E.2d at 209-10 (citations
The McDowell Court held:
Although defense counsel took defendant's
feelings into consideration, he did not
abdicate his role as effective counsel. We
find that the trial court did not err in
permitting defendant to give input into the
voir dire decision-making process and that
defendant was not denied effective assistance
of counsel. Cf. State v. El Amin Ahmad Ali,
329 N.C. 394, 407 S.E.2d 183 (defendant not
denied effective assistance of counsel where
defendant made a decision to accept a juror,
against the recommendations of both his
counsel); State v. Davis, 101 N.C. App. 12,
398 S.E.2d 645 (1990) (not prejudicial error,
if error at all, to allow a criminal defendant
to call a witness over the recommendation of
McDowell, 329 N.C. at 381-82, 407 S.E.2d at 210.
In Ali, the defendant appealed based upon the trial court's
allowing his decision to rule over his attorney's. This Court
upheld the trial court, reasoning that the defendant should beallowed to make decisions when he is at an impasse with his
The issue on appeal is whether this defendant and his counsel
were at an absolute impasse which would require his counsel to
abide by his decisions.
The record shows that after the jury was empaneled and left
the courtroom, the trial court allowed the following statement by
defendant's counsel for the record:
MR. WANNAMAKER: Thank you. If your Honor
please, I'll be brief, but I feel that I must
indicate for the record that my client and I
don't see eye to eye on very many things, and
not the least of which is the rejection of
what we brought him here for, but that's his
right, but now he is more or less determined
that this doesn't concern him, and I'm, you
know, he's not participating in any way.
And that's fine, also. I just want the
record to reflect that, lest, down the road at
some point, depending on the outcome of this
trial, my decisions, which are being made by
myself without his willingness to even address
the issue or deign to participate or pay any
attention to what's going on, should be called
into question. I feel that that's necessary
that I put that on the record.
THE COURT: Okay.
MR. WANNAMAKER: So I have now, I guess,
THE COURT: Thank you.
Mr. Herring, would you just stand up for a
minute? First of all, you do not have to talk
to me, you don't have to say anything to me.
You have that right, and I'm not going to ask
you any questions. I just want to tell you
that if there is anything you want to say at
this point, in light of what Mr. Wannamaker
said, you may speak but you do not have to.
No? All right, you can be seated.
If the only evidence of record is that the defendant would not
participate in any way, and the defendant was given opportunity inopen court and did not respond to that statement, then there seem
to be no wishes of the defendant that counsel contradicted. They
were not at an impasse if they were not at odds. If the defendant
is merely unhelpful or unsupportive of counsel, then counsel has
nothing to do but proceed without regard for his client's
unexpressed wishes. The trial court did not err in allowing the
defendant's counsel to so proceed.
The defendant next argues on appeal that the trial court erred
in allowing testimony from a witness who defendant asserts lacked
personal knowledge and whose testimony failed to meet the
requirements for present recollection refreshed.
Before being refreshed, the victim testified that defendant
took her and her sister to his house, and put her in his bed and
her sister on the floor beside the bed to sleep. She testified
that before she went to sleep she was wearing her shirt, shorts,
and panties, and that when she woke up she was only wearing her
shirt and was on top of the defendant. She testified that he was
touching her in her private area. During the direct examination
counsel had to repeatedly tell the nine-year-old witness to speak
up and coax her to answer. It was not inappropriate for her
recollection to be refreshed with a report which she had given
earlier, since it was her own words recorded by the officer's
report which were used to refresh her memory. See State v.
, 337 N.C. 243, 269, 446 S.E.2d 298, 311 (1994) (stating
that a party may use any material to refresh the memory of awitness), cert. denied
, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995);
N.C. Gen. Stat. § 8C-1, Rule 612(b) (2003).
present case, the witness was not thereafter testifying to the
contents of the report, but to the events of the incident in
Defense counsel sought to bring this out on cross-examination
in the following exchange with the victim:
Q Hey [witness's name], how are you?
Q . . . do you remember before we took the
recess and you went outside? Do you
Q You didn't remember any of this, did you?
Q And you went outside, and you talked with
everybody and Detective Willis, and now
you remember what Detective Willis says;
isn't that right?
Q You don't remember it yourself, do you?
Aren't you remembering what he said?
A I remember what he wrote down on paper
for me _
Q You're remembering what _
THE COURT: Okay, well, wait. You need to
let her finish her answer.
A I remember what he wrote down on paper
that I said.
Q You remember what he told you he wrote
down on a piece of paper that you said.
That's what you're remembering; not what
you said, but what he wrote down on the
piece of paper that he told you you said;
isn't that right?
MR. CARROLL: Objection, it's
THE COURT: Well, sustained as to the
Q He read to you the piece of paper; is
Q And you now remember what he read to you;
is that right? A Yes.
Q And that's what you're testifying about,
what he read to you; isn't that right?
Q Thank you . . .
Considering the tender age of the witness and her shyness on
the stand, this line of questioning does not amount to an admission
that she was not testifying to her own recollections but only to
what he told her. The officer's report was made from an interview
with the witness in which her words were recorded. The testimony
she gave before the recollection was not inconsistent in any way
with the testimony she gave after hearing the report read to her;
it was just not as detailed. We discern no prejudicial error.
Defendant next argues on appeal that the trial court erred in
admitting and playing a videotape that he asserts failed to meet
the requirements for a recorded recollection.
Defendant did not object to the admission of the video tape,
so the standard of review for the evidentiary admission is plain
error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779
(1997). Under the plain error standard of review, defendant has
the burden of showing: (i) that a different result probably would
have been reached but for the error or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial. Id.
Because the interviewer in the video was actually on the stand
testifying, the child's statements during the interview, offered as
corroborative evidence, would have reached the jury anyway, even ifonly by the interviewer's live testimony. The showing of the video
did not change the outcome of the trial. The defendant was
therefore not prejudiced by the evidence.
Defendant next assigns error to the trial court's admission
into evidence of statements made by the pediatrician who examined
the victim, which statements defendant argues were not made for
purposes of medical diagnosis or treatment. Defendant argues that
the following testimony by the pediatrician was inadmissible and
[. . .] I asked her if she knew why she was
here. At which point she answered, Roger.
And I asked, What about Roger? She answered,
He touches me places I didn't want to be
touched. I asked her where he touched her.
She answered, my privates, and pointed to
her genitalia. She stated, He touched me
with his private, and with his hand, and at
that point she didn't want to discuss this any
further so I stopped the interview.
Defendant did not object to this testimony at trial, so the
standard of review on appeal is plain error. As noted above, under
the plain error standard of review, defendant must show either (i)
that a different result probably would have been reached but for
the error or (ii) that the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial. Bishop, 346
N.C. at 385, 488 S.E.2d at 779. Moreover, our Supreme Court has
stated as follows:
The plain error rule applies only in truly
exceptional cases. Before deciding that an
error by the trial court amounts to plain
error, the appellate court . . . mustdetermine that the error in question tilted
the scales and caused the jury to reach its
verdict convicting the defendant. Therefore,
the test for plain error places a much
heavier burden upon the defendant than that
imposed by N.C.G.S. § 15A-1443 upon defendants
who have preserved their rights by timely
objection. This is so in part at least
because the defendant could have prevented any
error by making a timely objection.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)
Rule 803(4) of our Rules of Evidence provides as follows:
[T]he following are not excluded by the
hearsay rule, even though the declarant is
available as a witness: . . .(4) Statements
made for purposes of medical diagnosis or
treatment and describing medical history, or
past or present symptoms, pain, or sensations,
or the inception or general character of the
cause or external source thereof insofar as
reasonably pertinent to diagnosis or
N.C. Gen. Stat. § 8C-1, Rule 803(4) (2003). In order to be
admissible under this hearsay exception, the challenged statement
must meet a two-part inquiry. The court must determine (1)
whether the declarant's statements were made for purposes of
medical diagnosis or treatment; and (2) whether the declarant's
statements were reasonably pertinent to diagnosis or treatment.
State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
Defendant argues on appeal that the doctor's testimony
regarding statements made by the victim during her examination was
inadmissible because these statements were not made for the purpose
of medical diagnosis or treatment. We disagree. The interview was
relevant to her exam and diagnosis of the victim since sexual abusewas suspected.
However, even assuming arguendo that the
challenged testimony of the pediatrician fails to satisfy the
purpose prong of the Hinnant test, our Supreme Court's decision
in Hinnant is not controlling on the question of whether the
admission of such testimony rises to the level of plain error,
which, although not objected to at trial, entitles the defendant to
a new trial. Walker, 316 N.C. at 38, 340 S.E.2d at 83. In the
present case, our review of the entire record leads us to conclude
that even if the trial court erred in admitting the testimony which
is now challenged for the first time on appeal, such error was not
The victim's statements to the doctor during her
examination were consistent with testimony adduced at trial from
the victim and other witnesses and defendant's only response to the
police was that any sex occurred while he was asleep and was
unintentional. The defendant has not shown plain error.
Defendant next argues that the proof that defendant committed
first-degree sex offense and first-degree rape was legally
There must be evidence of penetration in order to support a
charge of first-degree sex offense. Defendant argues that evidence
of penetration was insufficient. The testimony of the doctor about
the victim's anatomy supported a finding of penetration. The
defendant's argument depends on the exclusion of the victim's
testimony. Because that testimony was admissible, there was
sufficient evidence. Even absent the questioned evidence, therewas enough evidence from the victim's testimony prior to her
recollection being refreshed, from the doctor, from defendant's ex-
wife's testimony, and from the investigating officer to go to the
Defendant next argues that the errors committed by the trial
court, in aggregate, deprived defendant of the fair trial to which
he was due. Considering the great weight of the testimonial and
physical evidence against defendant, and upon examination of the
record and transcript, we determine that defendant received a fair
trial, free from prejudicial error.
Defendant also assigns error to the trial court's sentence,
which he argues does not comply with constitutional sentencing
requirements. He argues that our state's sentencing scheme,
allowing the trial court to find statutory aggravating factors by
a preponderance of the evidence, is structural error and violates
his Sixth Amendment right to a jury trial. Here, the trial court
sentenced defendant in the aggravated range based on its finding
that 1) defendant took advantage of a position of trust and 2)
transmitted a sexually transmitted disease to the victim . . . .
Defendant's brief was filed 26 November 2003, and as stated
above, his appeal was heard on 19 May 2004. While defendant's
appeal has been pending before this Court, the United States
Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L.
Ed. 2d 403 (2004). Further, during the pendency of defendant'sappeal, this Court decided State v. Allen, 166 N.C. App. 139, 601
S.E.2d 299 (2004), which was recently affirmed in State v. Allen,
___ N.C. ___, ___ S.E.2d ___ (01 July 2005) (485PA04)
. There, our
Supreme Court applied Blakely and held that
N.C. Gen. Stat. § 15A-
was unconstitutional to the extent that it required the
trial court to find aggravating factors by a preponderance of the
evidence, rather than presenting them to the jury for a
determination beyond a reasonable doubt. See id. at ___, ___
S.E.2d at ___. The remedy applied in Allen for this structural
error was remand for resentencing. Id.
Our Supreme Court stated that its ruling in Allen was
applicable to all cases that are now pending on direct review or
are not yet final. Id. at ___, ___ S.E.2d at ___ (citing Griffith
v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649 (1987)). In Griffith,
the United States Supreme Court noted that final meant a case in
which a judgment of conviction had been rendered, the availability
of appeal exhausted, and the time for petition for certiorari
elapsed or a petition for certiorari finally denied. 479 U.S. at
321 n.6, 93 L. Ed. 2d at 657 n.6. By defendant's preservation of
this error and his case still pending review, or otherwise not
final, upon the issuance of Allen, we see no reason not to apply
Allen and remand defendant's convictions for resentencing.
Defendant lastly argues that the short-form indictments failed
to meet constitutional standards. This same short-form indictment has been found
constitutionally sound in State v. Wallace
, 351 N.C. 481, 505, 528
S.E.2d 326, 342, cert. denied
, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000). It is not within our purview to review our Supreme Court.
No error at trial, remanded for resentencing.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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