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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JAMES W. DURHAM, Defendant
Filed: 21 February 2006
1. Constitutional Law_right to confrontation_expert testimony based on report
The introduction of an autopsy report by a non-testifying pathologist did not violate
defendant's confrontation rights under Crawford v. Washington, 541 U.S. 36, and was not plain
error. The pathologist who testified was accepted as an expert, had observed the autopsy, and
relied on the report of the pathologist who performed the autopsy (who has since taken
employment outside North Carolina). The report was tendered as evidence of the basis of the
expert witness's opinion, and defendant was given the opportunity to cross-examine the expert.
2. Homicide_lesser included offense_not supported by evidence
The evidence at trial could not have supported a verdict of voluntary manslaughter and
the trial court did not err by not instructing the jury on that lesser included offense in a
prosecution for second-degree murder. Although defendant contended that the shooting occurred
during a struggle after an earlier confrontation, there was evidence that defendant initiated the
confrontation, evidence that tended to show an unlawful killing with malice, and the defense was
that defendant did not shoot the victim.
3. Evidence_exhibit excluded_two dimensional
The exclusion of a defense exhibit showing the trajectory of the bullets that hit the victim
was not an abuse of discretion where the trial court stated that the exhibit was two dimensional,
and possibly misleading, as opposed to the pathologist's three dimensional testimony.
4. Sentencing_aggravating factor_not submitted to jury_no stipulation
Finding an aggravating factor (using a weapon hazardous to more than one person)
without submitting it to the jury or a stipulation from defendant resulted in the remand of
sentences for second-degree murder and discharging a weapon into occupied property.
Appeal by Defendant from convictions and sentences entered 19
August 2003 by Judge Robert H. Hobgood in Superior Court,
County. Heard in the Court of Appeals 24 January 2006.
Attorney General Roy Cooper, by Assistant Attorney GeneralJoan M. Cunningham, for the State.
M. Gordon Widenhouse, Jr., for defendant-appellant.
The admission of expert opinion based upon information not
itself admissible into evidence does not violate the Sixth
Amendment right of confrontation where the expert is available for
(See footnote 1)
Here, Defendant contends that expert testimony
based on an autopsy conducted by someone other than the testifying
expert violated his right to confrontation under the rationale of
(See footnote 2)
Because Defendant had an opportunity to
cross-examine the expert, and the autopsy report on which the
expert testimony was based was not hearsay,
we affirm the admission
of the expert testimony.
We further find no error in the remaining assignments of error
except that we must remand for resentencing under the Blakely
(See footnote 3)
The record reflects that during the late afternoon of 18 May
2001, cousins Rickie and Charles Downey were at their grandmother'shouse when
Defendant James W. Durham beckoned Rickie to come over
to the house next door.
The two men then argued about drugs that
Defendant thought Rickie had stolen from him.
When Charles heard
Defendant say, I'll beat your ass, boy, he pulled Rickie back to
their grandmother's front porch.
Late that evening, Charles and Rickie rode to a local
Charles drove because Rickie was drunk and asleep during
When Charles pulled into the parking lot of the
nightclub, he saw a white Jeep belonging to Kip Hargrove,
Charles tried to turn around but the car
stalled almost directly in front of Hargrove's Jeep.
attempted to restart the car, Defendant reached inside the car with
a revolver in his hand.
According to Charles, Defendant put the revolver in Rickie's
face, and said, [w]hat's up now, n--ger.
Defendant then opened
the door and got into the car.
Rickie awoke, grabbed Defendant's
gun and struggled over the gun with Defendant.
opened the driver's door, rolled out of the car, ducked behind the
back seat door,
raised up to look into the car, and saw Defendant
shooting Rickie in the chest.
After the shooting, Charles got back into the car, moved
Rickie's leg off the gear shift, reached over Rickie to shut the
passenger side door, took a fully loaded revolver from under thepassenger's seat and threw it out of the car window from the
The gun was later retrieved with no rounds fired.
Charles then drove Rickie to the hospital, but Rickie died before
Other State witnesses included Hargrove who agreed to testify
under a plea agreement with the State, whereby he pled guilty to
accessory after the fact to voluntary manslaughter.
The State also
presented expert testimony from Dr. Deborah Radisch of the Office
of the Chief Medical Examiner. Dr. Radisch testified that she was
present and observed the victim's autopsy, but that the autopsy was
actually performed by Dr. Karen Chancellor, a forensic pathologist
who had since left North Carolina for employment elsewhere.
Defendant presented evidence at trial tending to indicate that
he was standing near or inside the nightclub when the gunshots were
fired and that he did not have a gun that evening.
presented expert testimony from Michael Grissom, an independent
scene investigator. Grissom testified that he examined the
car where the victim was sitting when he was shot. He observed
that the right front passenger seat was reclined, but that he found
no bullet holes in the seat or in the front right door.
attempted to testify using a diagram that he drew to illustrate the
victim's body in the car, however, the trial court excluded the
diagram from evidence.
Defendant was convicted of one count of second degree murder
and one count of discharging a weapon into occupied property.
trial court sentenced Defendant to a term of 237 to 294 months for
the second degree murder conviction and thirty-six to fifty-three
months for the discharging a weapon into occupied property
conviction, to run consecutively.
 On appeal, Defendant argues that the trial court committed
plain error by allowing the prosecution to introduce evidence of an
autopsy report performed by a non-testifying pathologist because
the admission of that evidence violated his confrontation rights
under the rationale of Crawford, 541 U.S. 36, 158 L. Ed. 2d 177.
In Crawford, the United States Supreme Court held that a
witness's recorded out-of-court statement to the police regarding
the defendant's alleged stabbing of another was testimonial in
nature and thus inadmissible due to Confrontation Clause
requirements. Id. However, the Supreme Court stated: Where
nontestimonial hearsay is at issue, it is wholly consistent with
the Framers' design to afford the States flexibility in their
development of hearsay law . . . as would an approach that exempted
such statements from Confrontation Clause scrutiny altogether.
Id. at 68, 158 L. Ed. 2d at 203. Crawford made explicit that itsholding does not apply to evidence admitted for reasons other than
proving the truth of the matter asserted. Id. at 60 n.9, 158 L.
Ed. 2d at 198 n.9 (stating that the Confrontation Clause . . .
does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted. (citation
In North Carolina, our Supreme Court has held that testimony
as to information relied upon by an expert when offered to show the
basis for the expert's opinion is not hearsay, since it is not
offered as substantive evidence. Huffstetler, 312 N.C. at 107,
322 S.E.2d at 120 (citing State v. Wood, 306 N.C. 510, 294 S.E.2d
310 (1982)). Indeed, it is the expert opinion itself, not its
underlying factual basis, that constitutes substantive evidence[,]
and that [a]n expert may properly base his or her opinion on tests
performed by another person, if the tests are of the type
reasonably relied upon by experts in the field. State v. Fair,
354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001), cert. denied, 535
U.S. 1114, 153 L. Ed. 2d 162 (2002) (citation omitted).
As it relates to expert testimony and the Confrontation
Clause, our Supreme Court held that [t]he admission into evidence
of expert opinion based upon information not itself admissible into
evidence does not violate the Sixth Amendment guarantee of the
right of an accused to confront his accusers where the expert isavailable for cross-examination. Huffstetler, 312 N.C. at 108,
322 S.E.2d at 120 (citation omitted).
In this case, after a recitation of her credentials, Dr.
Radisch was tendered and accepted, without objection by Defendant,
as an expert in forensic pathology. Dr. Radisch relied on the
autopsy report in forming her opinion that the cause of the
victim's death was due to a gunshot wound to the right of the
abdomen into the chest , and her opinion was based on data
reasonably relied upon by others in the field. See Fair, 354 N.C.
at 162, 557 S.E.2d at 522. It is clear that Dr. Radisch's
testimony was expert testimony as to the cause of Rickie's death.
We therefore hold that the autopsy report was not tendered to prove
the truth of the matter asserted therein, but to demonstrate the
basis of Dr. Radisch's opinion.
Since it is well established that an expert may base an
opinion on tests performed by others in the field and Defendant was
given an opportunity to cross-examine Dr. Radisch on the basis of
her opinion, we conclude that Crawford does not apply to the
circumstances presented in this case. See Huffstetler, 312 N.C. at
108, 322 S.E.2d at 120; State v. Delaney, 171 N.C. App. 141, 143,
613 S.E.2d 699, 700 (2005) (holding that expert testimony regarding
the chemical analysis of drugs which was based on analyses
conducted by someone other than the testifying expert did notviolate defendant's right of confrontation); State v. Walker, 170
N.C. App. 632, 635-36, 613 S.E.2d 330, 333 (2005) (holding that the
expert ballistics testimony of an agent that included a non-
testifying agent's report did not violate the Confrontation
Clause); State v. Lyles, 172 N.C. App. 323, 325, 615 S.E.2d 890,
894 (2005) (holding that a drug lab report of non-testifying
analyst was properly admitted as the basis of expert opinion
testimony by analyst's supervisor and did not violate the
confrontation clause). Thus, we reject this assignment of error.
 Defendant next contends that because the State's evidence
did not unequivocally show the greater offense of second degree
murder, the trial court erred by failing to instruct the jury on
the lesser included offense of voluntary manslaughter. We
Second degree murder is the unlawful killing of a human being
with malice but without premeditation and deliberation. State v.
Jenkins, 300 N.C. 578, 591, 268 S.E.2d 458, 466-67 (1980). [T]o
reduce second degree murder to voluntary manslaughter, there must
be some evidence that the defendant killed his victim in the heat
of passion engendered by provocation which the law deems adequate
to depose reason. State v. Burden, 36 N.C. App. 332, 334-35, 244
S.E.2d 204, 205, disc. review denied, 295 N.C. 468, 246 S.E.2d 216
(1978) (internal citation and quotation omitted). Words alone arenever sufficient provocation to mitigate second degree murder to
voluntary manslaughter. State v. Watson, 287 N.C. 147, 156, 214
S.E.2d 85, 91 (1975).
Defendant argues that the evidence at trial would have
supported a reasonable finding by the jury that, assuming he shot
the victim, he did not act with malice. Defendant contends there
was evidence to show that when he allegedly shot the victim, it
occurred during a struggle and after the two had been involved in
a confrontation earlier that day. However, the amount of time that
elapsed between the earlier confrontation and the time of the
shooting does not support an argument that Defendant acted in the
heat of passion upon provocation thus entitling him to a jury
instruction on voluntary manslaughter.
To the contrary, the State presented evidence through
Charles's testimony that Defendant initiated the confrontation with
the victim. Charles testified that Defendant approached the car
while the victim was asleep in the passenger's seat, reached into
the car with a chrome, silver revolver, and put the revolver in the
victim's face and said, [w]hat's up now, n--ger[.] After
Defendant opened the passenger's car door, the victim and Defendant
struggled over Defendant's gun inside the car. Charles then opened
the driver's car door, rolled out of the car and ducked behind the
back door. Charles further testified that he raised up to lookinto the car and saw Defendant shooting Rickie in the chest. Dr.
Radisch, the expert forensic pathologist, testified that the victim
had ten bullet wounds, and died as a result of a gunshot wound to
the chest. Such evidence unequivocally tends to show an unlawful
killing with malice.
Defendant, on the other hand, presented testimony through
several witnesses that he did not have a gun on the night of the
shooting, and that he was standing in the doorway of the building,
not beside the car in which the victim was killed, when the
gunshots were fired. [A] defendant is not entitled to have the
jury consider a lesser offense when his sole defense is one of
alibi[.] State v. Corbett, 339 N.C. 313, 335, 451 S.E.2d 252, 264
(1994). Indeed, our Supreme Court has held:
where a defendant's sole defense is one of
alibi, he is not entitled to have the jury
consider a lesser offense on the theory that
jurors may take bits and pieces of the
State's evidence and bits and pieces of
defendant's evidence and thus find him guilty
of a lesser offense not positively supported
by the evidence.
State v. Brewer, 325 N.C. 550, 576, 386 S.E.2d 569, 584 (1989).
Here, Defendant's sole defense was simply that he did not shoot the
victim at all. Defendant did not concede in any way that he may
have been near the car where the victim was shot, or that he shot
him in a heat of passion or in self-defense. Because the evidencepresented at trial would not have supported a verdict finding
Defendant guilty of voluntary manslaughter, and Defendant's only
defense to the murder charge was that he was not present at the
time of the shooting, the trial court did not err in failing to
submit the lesser included offense to the jury.
 Defendant next contends the trial court improperly
excluded from evidence an exhibit prepared by Defendant's expert
that purported to show the trajectory of the ten bullets that hit
the victim. Defendant argues that the trial court's exclusion of
this evidence deprived him of his constitutional right to present
evidence at his trial. We disagree.
The admissibility of evidence is governed by Rule 403 of the
North Carolina Rules of Evidence, which provides:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading of the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
N.C. Gen. Stat. § 8C-1, Rule 403 (2005).
Rulings under North Carolina Rule of Evidence 403 are
discretionary, and a trial court's decision on motions made
pursuant to Rule 403 are binding on appeal, unless the dissatisfied
party shows that the trial court abused its discretion. State v.
Garcia, 358 N.C. 382, 417, 597 S.E.2d 724, 749 (2004), cert.denied, ___ U.S. ___, 161 L. Ed. 2d 122 (2005). A trial court
abuses its discretion when the ruling was 'manifestly unsupported
by reason or [was] so arbitrary that it could not have been the
result of a reasoned decision.' State v. Hyde, 352 N.C. 37, 55,
530 S.E.2d 281, 293 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed.
2d 775 (2001) (quoting State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988)) (alteration in original).
In the instant case, the trial court, after conducting a voir
dire of Defendant's expert, listening to counsel's arguments, and
reviewing the exhibit, ruled on the admissibility of the evidence,
The Court makes the following ruling under
Rule 403. First of all, the exhibit may be
relevant; it may be probative; however, the
exhibit is two-dimensional. The testimony of
Dr. Radisch was three-dimensional. Therefore,
the Court does not find that even if relevant
and probative, Defendant's Exhibit 18, its
probative value is substantially outweighed by
the danger of misleading the jury in that it
is a two-dimensional exhibit and does not show
what Dr. Radisch testified to in three-
dimensional form. So the [State's] objection
is sustained on that ground.
In light of this explanation, we find no abuse of discretion
by the trial court in excluding Exhibit 18. Accordingly,
Defendant's assignment of error is without merit.
 In his final argument on appeal, Defendant contends that
the trial court erred in finding an aggravating factor andsentencing him within the aggravated range in violation of his
Sixth Amendment right to a jury trial. See Blakely, 542 U.S. 296,
159 L. Ed. 2d 403. We agree.
In State v. Allen, our Supreme Court recognized that under the
Blakely holding, [o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
presumptive range must be submitted to a jury and proved beyond a
reasonable doubt. State v. Allen, 359 N.C. 425, 437, 615 S.E.2d
256, 265 (2005); see also State v. Speight, 359 N.C. 602, 606, 614
S.E.2d 262, 264 (2005). The Court therefore held that those
portions of N.C.G.S. § 15A-1340.16 (a), (b), and (c) which require
trial judges to consider evidence of aggravating factors not found
by a jury or admitted by the defendant and which permit imposition
of an aggravated sentence upon judicial findings of such
aggravating factors by a preponderance of the evidence violate the
Sixth Amendment to the United States Constitution. Allen, 359
N.C. at 438-39, 615 S.E.2d at 265. Accordingly, our Supreme Court
concluded that Blakely errors arising under North Carolina's
Structured Sentencing Act are structural and, therefore, reversible
per se. Id. at 444, 615 S.E.2d at 269.
In this case, the trial court found the following aggravating
factor in Defendant's convictions: The defendant knowingly
created a great risk of death to more than one person by means ofa weapon or device which would normally be hazardous to the lives
of more than one person. The facts for this aggravating factor
were neither presented to a jury nor proved beyond a reasonable
doubt. Nor did Defendant stipulate to this aggravating factor.
Allen, 359 N.C. at 439, 615 S.E.2d at 265. Under Allen and
Speight, we must remand this matter for resentencing.
No error in part, remanded for resentencing.
Judges HUNTER and JACKSON concur.
See State v. Huffstetler
, 312 N.C. 92, 108, 322 S.E.2d
110, 120 (1984).
Crawford v. Washington
, 541 U.S. 36, 158 L. Ed. 2d 177
Blakely v. Washington
, 542 U.S. 296, 159 L. Ed. 2d 403
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