State v Ingram, (04-610) 09/06/2005

Appeal by defendant from judgments entered 21 November 2003 by Judge Michael E. Beale in Anson County Superior Court. Heard in the Court of Appeals 8 December 2004.

Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.

Irving Joyner for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals after being convicted of assault with a deadly weapon inflicting serious injury and assault inflicting serious injury. The State's evidence tended to show that on 25 August 2001, Keisha White and Doris Rorie were speaking with Keith Leak outside of their apartment building in Wadesboro. The two women saw defendant cross the parking lot, approach Leak from behind, and tap him on the shoulder. Defendant punched Leak as he turned around. The two men began struggling on the sidewalk, and defendant tried to pull something from his pocket. Defendant's half-brother, Keith Thomas, suddenly appeared and shot Leak. The bullet hit Leak's hand when he went to cover his face. Leak then fled and ran up the stairs of the apartment building.     White retreated to her apartment on the second floor and closed the door. After not hearing further shots, White opened her door slightly and saw defendant, Keith Thomas, and Leak. Defendant shot at Leak, so White shut her door immediately.
    Doris Rorie, who had run into her apartment as well, eventually opened her door and saw Leak and defendant. She did not see Keith Thomas. Rorie heard another shot and saw Leak heading back down the steps.
    The two assailants chased Leak, who was shot in the back of the leg. Keith Thomas fired one more shot. Leak collapsed, and the two assailants ran down a path behind the building.
    Leak received treatment at Carolinas Medical Center in Charlotte. He remained there until his release in November.
    Leak's wounds included a shot to the hand which left him with limited movement in one finger. Months after the attack, Leak had a bullet removed from his leg. Previously, the bullet had moved around inside Leak's leg and caused an infection. Leak's most serious wound was the gunshot to his stomach. It led to a lengthy confinement in the hospital and forced his mother to bathe and care for him for weeks after Leak's release. Tissue from Leak's leg had to be grafted into his stomach cavity to repair the wound. Because of the shooting, Leak underwent surgery approximately seven times.     Leak also testified that he and defendant had an altercation at a party which occurred on the night before the shooting. Because he feared that further trouble would ensue, Leak left the party.     Defendant's half-brother, Keith Thomas, testified for the defense. He contended that he and Jimmy Parker of South Carolina committed the shooting and that defendant was not there.
    Michael Yates testified that defendant was not present during the shooting. He overheard Leak tell the police that he did not know who had just shot him.
    After hearing all of the evidence, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury and guilty of assault inflicting serious injury. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) allowing defendant to be sentenced twice for the same offense and (2) making incorrect evidentiary rulings during the cross- examination of prosecution witnesses. Defendant has also filed a Motion for Appropriate Relief which challenges his aggravated sentences. We conclude that defendant received a fair trial, free from reversible error, but that he is entitled to be resentenced.

    Defendant argues that the trial court erred because defendant's conviction of both charges violates double jeopardy. In short, defendant claims that he has been punished twice for the same offense.
    Pursuant to N.C. R. App. P. 10(b)(1) (2005):
        In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make ifthe specific grounds were not apparent from the context.

    In the present case, defendant failed to raise this issue at trial. However, on appeal, defendant asserts that this error constitutes plain error, and the trial court should have intervened on its own.
    Under the plain error rule, “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). The plain error rule “is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . .'” Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). To prevail on plain error review, defendant must show the jury would have likely reached a different result absent the alleged error. Id. The North Carolina Supreme Court has applied the plain error rule only to jury instructions and evidentiary matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
    At the outset, we note that this objection is not related to jury instructions or evidentiary matters. Even if we assume arguendo that this argument is properly before us, we cannot conclude that any alleged error amounts to plain error. The Statepresented evidence tending to show that there were three shootings. Defendant shot the victim after he tapped defendant on the shoulder and punched him. The second shooting occurred in front of the building after the victim ran up the stairs toward Keisha White's door. Finally, the third shooting occurred as the victim was running away; Keith Thomas shot the victim in the stomach near a speed bump in the road. These assaults occurred at three different intervals, resulted in different wounds, and were committed by two different gunmen, defendant and his brother.
    The State charged defendant with three crimes. Defendant was acquitted of the charge of attempted first-degree murder and found guilty of assault with a deadly weapon inflicting serious injury and assault inflicting serious injury. Although the jury did not find all of the elements of attempted first-degree murder, the two assault verdicts were rationally based on the evidence presented. Therefore, defendant cannot show that absent the alleged error, the jury would have reached a different result at trial. We overrule this assignment of error.

    Defendant insists that the trial court erred in a number of its evidentiary rulings. We will consider each argument in turn.
    First, defendant argues that the trial court erred in limiting the cross-examination of Keisha White. During her testimony, White indicated that defendant was wearing a hat during the attack. She also stated that the hat was a derby hat, and it was similar to the kind of hats defendant wore all the time. White could not rememberthe color of the hat and could not recall if she mentioned the hat to police. At some point, the questioning became repetitive, and the trial judge prevented defendant's attorney from asking the witness again whether she had described the hat to police.     Pursuant to N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003),
        [t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

    After reviewing the transcript closely, we believe that the trial judge was exercising reasonable control over the mode of interrogation. Because the judge acted to avoid needless consumption of time and to protect the witness from harassment, this argument is without merit.
    Defendant next contends that the trial court erred by preventing defendant's attorney from asking White about an appearance she made on the Jerry Springer Show. Defendant claims that White went on the program and made false statements about events that never happened. In contrast, the State argues that this was a role playing situation in which White read from a script. The State also suggests that the probative value of the evidence was outweighed by the prejudicial effect it would have on the jury. At trial, the judge excluded the evidence under Rule 403.
    Pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2003),        [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

    “Whether or not to exclude evidence under . . . [this rule] is a matter within the sound discretion of the trial judge.” State v. Schultz, 88 N.C. App. 197, 203, 362 S.E.2d 853, 857 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988).
    We believe that the trial judge did not abuse his discretion in this case. Defendant has not shown that people who give scripted performances are less credible than others. Furthermore, this evidence's probative value is outweighed by the danger of unfair prejudice. Thus, the trial judge acted appropriately in excluding it.
    Defendant alleges that the trial court erred by limiting his cross-examination of Jacklyn Kindall. First, defendant claims that the trial judge prevented defendant's attorney from asking Kindall about a statement she made to the police after the shooting. The statement, which the officer prepared, mistakenly described the building where the shooting occurred as Building Seven, instead of Building Five, the correct location. Defendant's attorney asked Kindall to read the statement that she made to the police. As she did, Kindall noticed that the building listed in the number was wrong. She said, “I don't know what building he has there. But it is supposed to be building five.” Defendant's attorney then asked if the statement said “seven” instead of “five.” Kindallresponded, “No. It looks like a two.” The prosecutor then objected, and the trial judge sustained the objection because the question had been asked and answered.
    Defendant has not shown that the trial judge committed reversible error by sustaining the objection. The record shows that Kindall could not ascertain the number on the written statement, and she testified that the number should have been five. Furthermore, because the question was asked and answered, it was appropriate for the trial court to prevent repetitive questioning.
    Lastly, defendant argues that the trial court erred in preventing his attorney from asking Kindall about a prior conviction for giving fictitious information to a police officer. However, the record indicates that minutes earlier, defense counsel had asked the exact same question, and Kindall admitted that she had been convicted of that offense. Since the question had been asked and answered, the trial judge acted appropriately in preventing defendant's attorney from asking the question again.
    Even if we assume arguendo that any of the evidentiary rulings were improper, “[n]ot every erroneous ruling on the admissibility of evidence will result in a new trial.” State v. Knox, 78 N.C. App. 493, 496, 337 S.E.2d 154, 157 (1985). Defendant is only entitled to a new trial if “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” N.C. Gen. Stat. § 15A- 1443(a) (2003). Defendant has the burden of showing such prejudice under this subsection. Id.    In the present case, defendant has not shown that a different result would have been reached if the alleged errors had not been committed. Therefore, we overrule this assignment of error.

    Defendant has also filed a Motion for Appropriate Relief in which he contends that he was unconstitutionally sentenced to terms in the aggravated range based on judicial findings that certain aggravating factors existed. Specifically, defendant contends that his sentences could not be aggravated in the absence of a jury finding beyond a reasonable doubt that the alleged aggravating factor existed. We agree and remand for defendant to be sentenced in accordance with the principles set forth in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, ___ U.S. ___, 159 L. Ed. 2d 851 (2004), and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
    After reviewing the record, transcript, and briefs, we conclude that defendant received a fair trial free from reversible error; however, we remand for imposition of new sentences.
    No error in trial; remanded for resentencing.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

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