STATE OF NORTH CAROLINA
v
.
Polk County
Nos. 02 CRS 50986, 50988
JAMES JUNIOR CUMMINGS
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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