An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1228


Filed: 2 August 2005


v .                         Polk County
                            Nos. 02 CRS 50986, 50988

    Appeal by defendant from judgments entered 17 December 2003 by Judge James L. Baker, Jr., in Polk County Superior Court. Heard in the Court of Appeals 18 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas G. Meachum, Jr., for the State.

    Daniel Shatz, for defendant-appellant.

    CALABRIA, Judge.

    James Junior Cummings (“defendant”) seeks review of judgments entered on jury verdicts finding him guilty of second-degree murder of Rebecca Smith (the “victim”) and felonious larceny. We find no error.
    On 22 November 2002, defendant approached James Alvin Warren (“Warren”) outside the Polk County residence in which Warren and the victim, defendant's half-sister, lived. Defendant asked Warren if he could stay the night. Warren informed defendant that he had recently moved from the residence due to arguments with the victim and the victim's use of crack cocaine. Warren telephoned the victim, who was away from home at the time, and inquired whether defendant could stay the night with the victim. Upon speaking withthe victim, Warren informed defendant that the victim did not want defendant at her residence.
    On the morning of 23 November 2002, the victim telephoned Warren, stated defendant was at her residence, and asked Warren to drive to the residence and instruct defendant to leave. Warren stated he was an hour away and told the victim to call law enforcement. A few hours later, Warren's nephew telephoned him and said he had seen defendant driving the truck that Warren had loaned the victim. After calling the victim's residence and receiving no answer, Warren drove to her residence. Upon arriving, Warren noticed the door appeared “kicked in,” saw blood in the yard, and called 911. While on the telephone with law enforcement, Warren observed defendant drive toward the residence in Warren's truck. Defendant then reversed the truck and drove away quickly.
    When Detective Lieutenant Chris Beddingfield (“Det. Beddingfield”) of the Polk County Sheriff's Department arrived at the residence, he observed blood in the yard and drag marks as well as droplets of blood leading into the woods. He followed the drag marks to a mound of leaves and branches under which he discovered the victim's body. Det. Beddingfield observed that the victim had suffered severe facial trauma. The victim's jaw appeared broken, and her face appeared bloody and misshapen. She had a half-moon shaped bruise on her forehead along with bruises and scratches. Det. Beddingfield also observed bruises on her hands and legs and several puncture wounds to the victim's upper chest as well as two stab wounds to her abdomen. Inside the residence, Det.Beddingfield observed blood on the kitchen countertops, cabinets, and appliances. He seized a butcher knife from the kitchen sink and a hammer from the kitchen table. The hammer appeared to have blood on it and looked to Det. Beddingfield to be consistent with some of the victim's wounds. A DNA test later revealed the blood on the hammer was the victim's.
    A forensic pathologist testified the victim had several lacerations and blunt force traumas to her face and head including a fractured nose and jaw. He also testified the victim suffered the following puncture wounds and stab wounds to her chest and abdomen: (1) three puncture wounds over her breast bone that did not penetrate through her breast bone; (2) two stab wounds below her right collar bone that punctured her right lung; and (3) a deep stab wound below her breast bone and another deep stab wound to her lower abdomen, both of which caused severe internal bleeding and likely caused her death. The victim suffered the four stab wounds prior to death, but several abrasions on her chest, abdomen, and legs occurred post-mortem. Tests revealed cocaine metabolites and trace amounts of cocaine in the victim's blood, which indicated the victim had ingested cocaine earlier on the day of her death.
    On 25 November 2004, Det. Beddingfield and another officer transported defendant from Fayetteville, where he had been apprehended, to Polk County. Defendant confessed to Det. Beddingfield that he killed the victim. Defendant stated that, on 23 November, he went to the victim's residence to persuade her to stop using crack cocaine and express his concern that she wouldlose custody of her children. At trial, he testified that after talking to the victim at her front door, she became angry, retrieved a knife from the kitchen, and attacked him, cutting one of his hands. Defendant punched her in the face. They struggled and fell to the ground. He then took the knife from the victim and stabbed her accidentally but was unsure how many times. He could only remember the knife going into her twice. He cut his other hand grabbing the knife blade while attempting to save the victim by removing the knife from her body. Defendant hid the victim's body, took the truck, and fled because he was afraid Warren would find the victim's body and shoot him. Defendant denied hitting the victim with a hammer.
    Defendant was indicted for first-degree murder and felonious larceny of Warren's truck. On 17 December 2003, the jury found defendant guilty of second-degree murder and felonious larceny. The trial court sentenced defendant to a minimum of 220 months and a maximum of 273 months and a consecutive sentence of a minimum of ten months and a maximum of twelve months in the custody of the North Carolina Department of Correction. Defendant filed notice of appeal for review of both judgments but his arguments relate only to his conviction of second-degree murder.
    Defendant asserts the trial court committed plain error by permitting Det. Beddingfield to testify regarding his opinion that certain wounds on the victim were consistent with the characteristics of the hammer. Specifically, defendant argues Det. Beddingfield was not qualified as an expert and therefore could notproperly testify regarding his impression that certain wounds were consistent with the hammer seized at the crime scene.
    The plain error rule allows our appellate courts to review unpreserved errors in a trial court's “instructions to the jury or rulings on the admissibility of evidence” when specifically assigned as plain error on appeal. State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997). “Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d 334, 342 (2000). We hold the trial court properly admitted Det. Beddingfield's testimony as a non-expert opinion under N.C. Gen. Stat. § 8C-1, Rule 701 (2003) and therefore need not reach a plain error analysis.
    Pursuant to N.C. Gen. Stat. § 8C-1, Rule 701, a witness “not testifying as an expert” may testify as to his opinions or inferences if “those 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.” This rule permits a witness' testimony concerning “'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.'” State v. Wilson, 313 N.C. 516, 531, 330 S.E.2d 450, 461 (1985) (quoting State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975)). Under N.C. Gen. Stat. § 8C-1, Rule 701, a detective may offer a non-expert “opinion based on his personal observations at the [crime] scene and his investigative training background as a police officer.” State v. Ray, 149 N.C. App. 137, 145, 560 S.E.2d 211, 217 (2002). See State v. Rick, 126 N.C. App. 612, 619, 486 S.E.2d 449, 452 (1997) (finding no error in allowing a crime scene technician's non-expert opinion “that the impressions in the dirt around the victim's house were 'similar in size and shape' to the cinder block and rock tied to the victim's body”). “The basis or circumstances behind a non-expert opinion affect only the weight of the evidence, not its admissibility.” State v. Edmondson, 70 N.C. App. 426, 430, 320 S.E.2d 315, 318 (1984) (finding no error in allowing an investigating officer's non-expert opinion regarding “whether defendant's tennis shoes made the tracks present at the crime scene”).
    In the instant case, Det. Beddingfield stated he was not sure certain wounds were caused by the hammer. However, he seized the hammer from the kitchen table based on his observation that it had blood on it and his belief from observing the victim's body that certain wounds, including bruises on her forehead and hands, were similar to the characteristics of the hammer. Det. Beddingfield's opinion testimony was based on his perception of the physical state of the victim's body and the hammer at the crime scene. His opinion testimony was also helpful in explaining to the jury the basis for his reason for seizing the hammer as evidence, and it also afforded the jury an opportunity to weigh his observations atthe crime scene against other evidence of the victim's wounds. Accordingly, the trial court properly admitted Det. Beddingfield's testimony regarding the hammer as a non-expert opinion under N.C. Gen. Stat. § 8C-1, Rule 701.
    Defendant next asserts the trial court erred by allowing State's exhibits 2, 3, 6, and 13, four photographs (the “photographs”) juxtaposing the hammer with the victim's injuries, when the photographs were not used by any witness to illustrate his testimony or otherwise establish the necessary foundation for admission of the photographs. “[P]hotographs are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words.” State v. Watson, 310 N.C. 384, 397, 312 S.E.2d 448, 457 (1984). “Properly authenticated photographs of a homicide victim may be introduced into evidence if the trial court instructs the jury that their use is limited to illustrating the witnesses' testimony.” State v. Gray, 337 N.C. 772, 776, 448 S.E.2d 794, 797 (1994).
    After Det. Beddingfield's non-expert opinion regarding the hammer was properly admitted, he testified that the photographs accurately depicted certain wounds on the victim's body and that those wounds were similar to characteristics of the hammer. The trial court then properly instructed the jury, both at the time they were admitted into evidence and during the jury charge, that the photographs were for illustrative purposes only. Accordingly, the photographs were properly authenticated and admitted intoevidence to illustrate Det. Beddingfield's testimony regarding the hammer.
    Defendant finally asserts his conviction resulted from ineffective assistance of counsel in violation of his constitutional rights. “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). “[D]efendant must prove that counsel's performance was so deficient as to deprive him of his [Sixth Amendment] right to be represented and that absent the deficient performance by defense counsel, there would have been a different result at trial.” State v. Strickland, 346 N.C. 443, 455, 488 S.E.2d 194, 201 (1997). It is well established that trial counsel is necessarily granted wide latitude in the matter of trial strategy, and our appellate courts do not ordinarily second-guess such a basic part of counsel's strategy as the handling of a witness. State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986).
    Defendant argues certain portions of his counsel's cross- examination of Det. Beddingfield and Warren fell below an objectively reasonable standard of performance. Specifically, defendant complains his counsel elicited (1) Det. Beddingfield's opinions that defendant's hand wounds were self-inflicted and that defendant was not credible and (2) Warren's testimony thatdefendant attempted to sell some of Warren's personal items and that defendant was using crack cocaine.
    Contrary to defendant's assertion, the transcript reflects that, after inadvertently eliciting the unfavorable testimony, defense counsel attempted through further cross-examination to minimize the negative impact of that testimony. As our Supreme Court has noted, “every practicing attorney knows that a 'hindsight' combing of a criminal record will in nearly every case reveal some possible error in judgment or disclose at least one trial tactic more attractive than those employed at trial.” State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871-72 (1974). After reviewing the entire transcript, we conclude defense counsel mounted a competent defense and his inadvertent elicitation of unfavorable testimony in furtherance of his defense strategy did not fall below an objective standard of reasonableness. Moreover, even assuming arguendo defense counsel's performance was deficient, an absence of the unfavorable testimony would not have resulted in a different result at trial. Accordingly, defendant's assertion of ineffective assistance of counsel is without merit.
    For the foregoing reasons, we hold defendant received a fair trial free from error.
    No error.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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