Defendant first argues on appeal that the trial court erred in
admitting into evidence two videotapes as substantive evidence of
the crimes alleged without properly authenticating the videotapes.
While Defendant failed to object on this basis at trial, he alleged
plain error as to this issue in both the relevant assignment oferror and his brief. We therefore review only for plain error.
Plain error is error that amounts to the denial of a
fundamental right or is “so lacking in its elements that justice
cannot have been done.”
State v. Carpenter, 147 N.C. App. 386,
397, 556 S.E.2d 316, 323 (2001),
cert. denied, 536 U.S. 967, 153 L.
Ed. 2d 851 (2002) (citations omitted). To prevail under the plain
error analysis, a defendant must show that there was error, and
that absent the error, the jury would have reached a different
result.
Id.
A trial court may allow a videotape into evidence for
substantive and/or illustrative purposes where the offeror has laid
a proper foundation for such evidence. N.C. Gen. Stat. § 8-97
(2004). North Carolina General Statutes section 8C-1, Rule 901
states that “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901 (2004).
A proper foundation for a videotape may be laid by:
(1) testimony that the motion picture or
videotape fairly and accurately illustrates the
events filmed (illustrative purposes); (2)
“proper testimony concerning the checking and
operation of the video camera and the chain of
evidence concerning the videotape ...”; (3)
testimony that “the photographs introduced at
trial were the same as those [the witness] had
inspected immediately after processing,”
(substantive purposes); or (4) “testimony that
the videotape had not been edited, and that the
picture fairly and accurately recorded the actual
appearance of the area 'photographed.'”
Smith, 152 N.C. App. at 38, 566 S.E.2d at 800 (quoting
State v.Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988),
rev'd
on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990))
.
Here, defense counsel stipulated to the authenticity of the
videotapes, stating “I have not made an issue nor do I intend to
make an issue of identity of the tapes made wherein [Defendant]'s
interacting with [the child victims and with the mentally retarded
adult victim]. Again, the tapes speak for themselves on that.”
Defense counsel also stipulated to the chain of custody of the
videotapes, stating “Your Honor, I'm not contesting chain of
custody[]” and suggesting that “[f]or court efficiency if she wants
to dispense with the regular formalities.” Nevertheless, extensive
testimony regarding the videotapes' chain of custody was provided
by Defendant's nephew, who, along with Defendant's daughter, found
the videotapes, the child victims' grandmother and mother, to whom
Defendant's nephew and daughter showed the tapes, and the police,
who received the videotapes from the child victims' mother.
Moreover, on the very transcript page to which Defendant assigned
error, Detective Christina McMurray of the Harnett County Sheriff's
Office testified that the videotapes accurately depicted the actual
appearance of Defendant's home and that the videotapes did not
appear to have been altered since the first time she viewed them.
Under these circumstances, the trial court committed neither error
nor plain error in admitting the videotapes for lack of a proper
foundation.
Defendant also contends that the admission of the videotapes
into evidence violated his Sixth Amendment right to confront hisaccusers under
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d
177 (2004)
.
In
Crawford
, the United States Supreme Court held that
recorded out-of-court statements made by the defendant's wife to
police regarding the defendant's alleged stabbing of another were
testimonial in nature and thus inadmissible due to Confrontation
Clause requirements. Regarding the definition of testimonial, it
has been held that “
Crawford at least suggests that the
determinative factor in determining whether a declarant bears
testimony is the declarant's awareness or expectation that his or
her statements may later be used at a trial.”
United States v.
Saget, 377 F.3d 223, 228 (2d Cir. 2004),
cert denied, _ U.S._, 160
L. Ed. 2d 821 (2005).
Defendant here has failed to explain how videotapes depicting
himself engaging in sex offenses constitute statements, and how
those purported statements could possibly be considered to be
testimonial in nature.
In sum, we find Defendant's contention that the trial court
committed plain error by admitting the videotapes into evidence to
be without merit.
Defendant next contends that defense counsel rendered
ineffective assistance in failing to object to the admission of the
videotapes.
An ineffective assistance of counsel claim is subject to a
two-part analysis, where Defendant must show: (1) his “counsel's
performance fell below an objective standard of reasonableness asdefined by professional norms[,]” and (2) “the error committed was
so serious that a reasonable probability exists that the trial
result would have been different absent the error.”
State v. Lee,
348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998) (citing
Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984);
State v.
Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (same)).
Our Supreme Court has made clear that a party “may not swap
horses after trial in order to obtain a thoroughbred upon appeal.”
State v. Hester, 343 N.C. 266, 271, 470 S.E.2d 25, 28 (1996)
(quotation omitted). Moreover, this Court has held that
“[i]neffective assistance of counsel claims are not intended to
promote judicial second-guessing on questions of strategy and trial
tactics.”
State v. Taylor, 79 N.C. App. 635, 638, 339 S.E.2d 859,
861 (quotation omitted),
disc. review denied, 317 N.C. 340, 346
S.E.2d 146 (1986).
Here, Defendant has failed to show that his counsel's
performance fell below an objective standard of reasonableness by
failing to object to the videotapes. Before trial, Defendant
adopted the strategy of conceding his guilt as to the indecent
liberty charges while maintaining his innocence as to the other
offenses. The trial court questioned Defendant about this strategy
during voir dire, and Defendant stated on the record that he had
discussed the strategy with his counsel and had authorized his
counsel to take such a strategy. At trial, Defendant attempted to
demonstrate, through showing the videotapes and questioning
Detective McMurray about the acts being committed on the tapes,that Defendant did not engage in a number of the offenses committed
because,
inter alia, Defendant
's penis was in a flaccid state
during parts of the videotape in which he allegedly committed sex
offenses against the child victims, the acts committed against the
mentally retarded victim were not nonconsensual, and the mentally
retarded victim was not incapacitated. While Defendant may be
dissatisfied with the outcome of his trial, he may not now contend
that his consciously chosen trial strategy constituted ineffective
assistance of counsel.
Finally, Defendant contends that the trial court erred in
omitting jury instructions on two of the seven counts of indecent
liberties.
Because Defendant failed to object on this basis at trial, the
proper standard for review is plain error.
State v. Odum, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (“Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court.”); N.C. R. App. P. 10(b) (a
party must object to a jury charge omission to preserve the issue
for appeal, and the party must specifically and distinctly contend
plain error where such issue is unpreserved).
Defendant failed,
however, to assert plain error in both his relevant assignment of
error and his appellate brief. Where a defendant fails
specifically and distinctly to allege plain error, the defendant
waives his right to have the issues reviewed for plain error, and
we therefore refrain from any review.
State v. Forrest, 164 N.C.
App. 272, 277, 596 S.E.2d 22, 25-26 (2004) (“when a defendant failsto specifically and distinctly allege that the trial court's ruling
amounts to plain error, defendant waives his right to have the
issues reviewed under plain error[]”) (citing
State v. Hamilton,
338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994);
State v. Flippen,
349 N.C. 264, 274-75, 506 S.E.2d 702, 710 (1998) (same),
cert.
denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999)).
Defendant failed to argue his remaining assignments of error.
They are therefore deemed abandoned. N.C. R. App. P. 28(b).
No error.
Judges BRYANT and JACKSON concur
.
Report per Rule 30(e).
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