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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. LACY DOUGLAS HOCUTT, Defendant
Filed: 2 May 2006
1. Appeal and Error_incriminating statement_properly admitted_harmless, but not
A first-degree murder defendant's recorded jailhouse telephone statement that he was
getting back at the victim when he shot him would not have been harmless (although there was
no error) where defense counsel was arguing for second-degree murder based on a lack of
2. Arrest_defendant initially detained as intoxicated_unable to provide shelter for
himself_no Fourth Amendment violations
The initial seizure and incarceration of a first-degree murder defendant, which led to a
recorded inculpatory telephone conversation, did not violate defendant's Fourth Amendment
rights where defendant (who had consumed much alcohol during the day) was observed
staggering, barefoot, dirty and very scratched up on the shoulder of a highway in an isolated area
late at night. He was apparently in need of and unable to provide for himself clothing and
shelter, and N.C.G.S. § 122C-303 allows an officer to take an intoxicated person to jail under
3. Arrest_defendant initially detained as intoxicated_unable to provide shelter for
himself--no deprivation of counsel
Defendant's initial confinement for detoxification under N.C.G.S. § 122C-303, which led
to an incriminating recorded telephone statement, did not deprive him of his right to counsel.
Defendant was charged the next morning, advised of his rights, requested counsel, and counsel
was appointed at his first appearance (but after the incriminating conversation). Defendant does
not dispute that he received a timely first appearance or that counsel was then appointed.
4. Confessions and Incriminating Statements_statement after right to counsel
invoked_recorded jailhouse telephone call to girlfriend
The police did not impermissibly elicit statements from defendant after he invoked his
right to counsel where defendant made incriminating statements to his girlfriend in a recorded
jailhouse telephone call. Although a detective told the girlfriend some facts which she discussed
with defendant, she was not acting as an agent of the State.
5. Bail and Pretrial Release_first-degree murder_no bond_no abuse of discretion
There was no refusal to exercise discretion in the court's setting of no bond in a first-
degree murder case, as the court had the discretion to do.
6. Constitutional Law_right of confrontation_DNA report_testimony from agent who
did not perform tests
The trial court did not err by permitting an SBI agent to testify about the results of DNA
tests performed by another agent who did not testify. It has been held that such testimony is non-
testimonial under Crawford v. Washington, 541 U.S. 36, and thus does not violate the
7. Homicide_first-degree murder_evidence sufficient
There was sufficient evidence for a charge of first-degree murder where there was a
history of violence and hostility between the parties, there was an incident on the night of the
shooting, defendant twice said that he ought to shoot the victim, he told his girlfriend to stop the
car and got a beer and a gun from the trunk, a beer can with defendant's DNA and sunglasses
with his fingerprint were found near the victim, and defendant later said that he shot the victim
because of an earlier incident in which the victim shot him.
8. Criminal Law_discovery violation_mistrial denied_no abuse of discretion
The trial court did not abuse its discretion by denying defendant's motions to dismiss and
for a mistrial for discovery violations by the State, given the court's attention to the violation and
its willingness to allow defendant time to contact experts.
defendant from judgment entered 3 September 2004 by
Judge Jack W. Jenkins in the Superior Court in Johnston County.
Heard in the Court of Appeals 2 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Edwin W. Welch
, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
In May 2003, defendant was charged with first-degree murder.
The defendant's trial began on 16 August 2004 and on 3 September
2004, the jury convicted defendant of first-degree murder.
Following a sentencing hearing, the court sentenced defendant to
life imprisonment without parole. Defendant appeals. For the
reasons discussed below, we conclude that there was no error.
The evidence tends to show the following facts. In 1991 or
1992, Brent Turner and a friend went to defendant's home and began
harassing defendant's ex-wife's brother. When defendant went
outside to see what was happening, Turner ran over defendant with
his car and after defendant got up and chased the car, Turner's
companion shot defendant twice, causing serious injury. Although
defendant won a $120,000 civil judgment against Turner, he had
never been able to collect anything on it. Thereafter, defendant
felt that when he saw Turner, that Turner would always smile at
[defendant] and stuff, like, well, I got away with it or whatever.
On the morning of 8 May 2003, defendant drank three or four
beers before leaving for work at 6:00 a.m. He took to work eight
or nine beers in
a cooler, which was empty when he returned home.
He also stopped and drank some white liquor with a friend on his
way home. Once home, he had another four or five beers. Around
6:00 p.m., defendant's live-in girlfriend, Barbara Langston, drove
defendant, defendant's brother, and her children to Popeye's Gasand Grill, a local gas station and convenience store. As they were
leaving Popeye's, Turner was pulling in on his red moped, and as he
passed Langston's car, he flipped [defendant] the bird and yelled
f--- you at him. Defendant yelled f--- you back at Turner.
Langston began driving to her father's house for a cookout and
defendant twice stated that he ought to shoot the motherf------.
Langston testified that after she turned onto Branch Chapel Church
Road, defendant demanded that she stop the car and let him out; he
threatened to beat [her] ass if she did not. Langston complied
and defendant got out, got his gun from the trunk, and Langston
handed him a Busch beer at his request. She left him standing on
the side of Branch Chapel Church Road with the gun in his hand.
Langston later told a detective that she thought defendant was
going to shoot Turner. The State presented evidence that the most
direct route from Popeye's to Turner's house was via Branch Chapel
Church Road and that defendant was aware of this.
At trial, a resident of Branch Chapel Church Road testified
that on 8 May 2003, around 6:15 or 6:30 p.m., she was in her yard
and just after she saw a man drive by on a moped, she heard two
gunshots. The moped was later found 25 to 50 feet from her
driveway. At about 6:30 p.m., a citizen saw a moped on the road
and Turner on the side of the road. Turner's face from his nose
down to his chin, was gone. The citizen called 911 and rescueworkers arrived shortly before 7:00 p.m. and transported Turner to
the hospital. Turner died several days later.
Detectives and a crime scene investigator from the Johnston
County Sheriff's office arrived at the crime scene beginning around
7:15 p.m. They found a Busch beer can, a pair of sunglasses, and
an empty 12-gauge shotgun shell casing in the woods near where
Turner was found. They also saw muddy footprints made by bare
feet. Forensic testing revealed defendant's fingerprint on the
sunglasses and his DNA on the beer can. About two weeks later, a
logger found a shotgun in the wooded area near the crime scene.
Forensic examination could not determine that the casing found by
the side of the road or the pellets removed from Turner came from
this gun, but did reveal that the gun had been fired.
When Detectives Scott Richardson and Bengie Gaddis of the
Johnston County Sheriff's office left the crime scene at around
11:30 p.m. to return to Selma, they saw the defendant walking down
the road barefooted
. He had scratches all over his body, was very
dirty, and was staggering. The officers recognized defendant and
observed that he was very intoxicated. They placed him in
handcuffs and took him to jail for detox purposes, to sober up.
The next morning defendant was charged with assault with a deadly
weapon with intent to kill inflicting serious injury, and attempted
murder. Defendant remained in custody and on 12 May 2003
afterTurner died, he was charged with first-degree murder. While at the
Johnston County Detention Center, defendant made incriminating
statements over the phone to Langston and to his brother which were
recorded, pursuant to jail policy. Inmates receive an
informational handbook regarding this policy, notices are posted in
the cell blocks notifying defendants that their telephone calls are
monitored, and before being connected, both the caller and the
person being called hear a recorded warning that all calls are
subject to monitoring and recording, except for attorney calls.
Defendant's recorded statements that he shot Turner were introduced
by the State at trial.
At trial, defendant did not testify and presented only
witness: Dr. Katayoun Tabrizi, a psychiatrist. She testified that
in her opinion, defendant suffered from alcohol dependence and
personality changes after a previous head trauma. She opined that
these conditions caused loss of impulse control and that on 8 May
2003 defendant would have been severely impaired in knowing what
he was doing, what he was doing would result in . . . . some
consequences. Tabrizi also testified that defendant told her that
he shot Turner and that I just wanted to shoot him just as they
shot me. He also told her that he did not intend to kill Turner.
 Defendant first argues that the trial court committed
constitutional error when it permitted his recorded telephoneconversations to be used against him. Defendant argues that his
initial seizure and incarceration violated his Fourth, Fourteenth,
and Sixth Amendment rights under the United States Constitution.
We disagree. We note at the outset that
[a] violation of the defendant's rights under
the Constitution of the United States is
prejudicial unless the appellate court
finds that it was harmless beyond a
reasonable doubt. The burden is upon the State
to demonstrate, beyond a reasonable doubt,
that the error was harmless.
N.C. Gen. Stat. § 15A-1443(b) (2005). The State asserts that any
error was harmless beyond a reasonable doubt, in light of the other
evidence against defendant and his own concession at trial, through
counsel, that he shot Mr. Turner. However, defendant was charged
with first-degree murder by premeditation, deliberation, and lying
in wait, and defense counsel was arguing for the lesser-included
offense of second-degree murder, based on lack of evidence of
specific intent to kill, premeditation or deliberation, and lying
in wait. Thus, we cannot conclude that the court's admitting
defendant's recorded statement, Why'd I do it? The mother f-----
shot me didn't he . . . I shot his God damn ass back, was harmless
beyond a reasonable doubt. We do conclude, though, that the trial
court did not err, as the statement was not obtained in violation
of defendant's constitutional rights.
 The Fourth Amendment to the United States Constitution andArticle 22 of the North Carolina Constitution grant persons the
right to be free from unreasonable search and seizure. Here,
defendant was initially seized pursuant to a public intoxication
statute and defendant argues that because the statutory
requirements were not met, that the seizure violated his
constitutional rights. N.C. Gen. Stat. § 122C-303 (2002) provides,
in pertinent part, that
an officer may assist an individual found
intoxicated in a public place by directing or
transporting that individual to a city or county
jail. That action may be taken only if the
intoxicated individual is apparently in need of and
apparently unable to provide for himself food,
clothing, or shelter but is not apparently in need
of immediate medical care and if no other facility
is readily available to receive him.
Id. Because the evidence shows that defendant was observed
staggering, barefoot, dirty, and very scratched up on the shoulder
of a highway in an isolated area late at night, we conclude that he
was apparently in need of and apparently unable to provide for
himself clothing and possibly shelter. Defendant has not argued
that there was no other facility available to receive him.
Defendant cites Davis v. Town of Southern Pines, 116 N.C. App.
663, 449 S.E.2d 240 (1994), disc. review denied, 339 N.C. 737, 454
S.E.2d 648 (1995), in support of his argument that the statutory
requirements were not met. In addition to being a civil rather
than a criminal case, we conclude that the facts of Davis make itreadily distinguishable. In Davis, the Court concluded that N.C.
Gen. Stat. § 122C-303 did not allow police to take a woman to jail
after police saw her stumble on the sidewalk, approached her, and
offered assistance which she refused. Id. at 672, 449 S.E.2d at
245-46. However, when approached by the police, Davis stated she
was going to call a cab to take her home and her sister, who was
with her, offered to call a cab and take care of her. Id.
Defendant suggests that Officer Gaddis was required to transport
defendant to his and Langston's home because he allegedly knew
where they lived. But the statute plainly states that an officer
may take an intoxicated person home, just as an officer may take an
intoxicated person to jail if the conditions described above are
met. N.C. Gen. Stat. § 122C-303. We overrule this assignment of
 Defendant also argues that his detention deprived him of
his liberty interest in seeking counsel, in violation of his
Fourteenth Amendment rights. Defendant cites no case law in
support of his contention that the Fourteenth Amendment confers
such a right and we conclude that this argument lacks merit.
Defendant correctly asserts that under the Sixth Amendment, a
person charged with a crime is entitled to counsel. See Powell v.
Alabama, 287 U.S. 45, 66, 77 L. Ed. 158, 169 (1932). Defendant
also correctly notes that this right to counsel attaches before thecommencement of trial, as the accused requires the guiding hand of
counsel at every step in the proceedings against him. Id. at 69,
77 L.Ed. at 170. Defendant contends that his Sixth Amendment right
to counsel was violated by the delay in the appointment of counsel
and because he made incriminating statements over the jail phone
before he was afforded the guiding hand of counsel. We disagree.
Police initially detained defendant for detoxification in the
late evening of 8 May 2003. The next morning, on 9 May 2003,
defendant was charged with assault with a deadly weapon with intent
to kill inflicting serious injury and attempted murder, and he
requested counsel after police advised of his Miranda rights. At
his first appearance on those charges, on 12 May 2003, the court
appointed Indigent Defense Services (IDS) as counsel. Later in
the day on 12 May 2003, defendant was charged with first-degree
murder. Defendant made his first appearance on the murder charge
on 13 May 2003, at which time the court again noted that counsel
was to be appointed. Defendant met with appointed counsel on 14
May 2003. On 10 May 2003, defendant made incriminating statements
on the jail phone, which were recorded and introduced by the State
at trial. Defendant asserts that the State deliberately denied him
the guiding hand of counsel during this time so that it could
exploit a situation likely to induce [defendant] to makeincriminating statements without the assistance of counsel. United
States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115 (1980)
Defendant cites Powell v. Alabama in support of his argument
that he was entitled to appointed counsel at an earlier time. 287
U.S. 45, 77 L. Ed. 158.
However, Powell involved a defendant who
did not have counsel at trial as the court at the arraignment had
merely charged all the members of the bar to represent defendant.
Id. at 69, 77 L. Ed. at 160-61. Defendant does not dispute that he
received a timely first appearance or that at that appearance the
court appointed IDS to represent him. The IDS attorney met with
defendant two days after his first appearance on the initial
charges and one day after he was charged with murder. These facts
bear no meaningful resemblance to Powell and as defendant cites no
other authority, we overrule this assignment of error.
 Defendant also argues that the police impermissibly
elicited statements from him after he invoked his right to counsel.
The government may not deliberately elicit incriminating statements
from a defendant after he has invoked his Sixth Amendment right to
counsel. Maine v. Moulton, 474 U.S. 159, 88 L. Ed. 2d 481 (1985)
United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115
. In United
States v. Henry, a defendant awaiting trial made incriminating
statements to a fellow inmate, who was acting as a paid government
informant and who testified against the defendant at trial. Id.
The Court held that the informant's statements were inadmissible
because the Government violated Henry's Sixth Amendment right to
counsel [b]y intentionally creating a situation likely to induce
Henry to make incriminating statements without the assistance of
counsel. Id. at 274, 65 L. Ed. 2d
at 125. Similarly, in Maine v.
Moulton, the defendant made incriminating post-indictment
statements to a co-defendant who, unbeknownst to defendant, had
made a deal with the State to testify against the defendant and was
wearing a recorder during a meeting with defendant. 474 U.S. 159,
88 L. Ed. 2d 481
. The Court held that the government violated the
defendant's Sixth Amendment rights by violating its affirmative
obligation not to act in a manner that circumvents and thereby
dilutes the protection afforded by counsel. Id. at 171, 88 L. Ed.
493. The primary concern of this line of decisions is secret
interrogation by investigatory techniques that are the equivalent
of direct police interrogation. Kuhlmann v. Wilson, 477 U.S.
436, 459, 91 L. Ed. 2d 364, 384 (1986). Thus,
the Sixth Amendment is not violated whenever -
- by luck or happenstance -- the State obtains
incriminating statements from the accused
after the right to counsel has attached . . .
. [T] he defendant must demonstrate that the
police and their informant took some action,
beyond merely listening, that was designed
deliberately to elicit incriminating remarks.
(internal quotation marks and citation omitted).
Here, defendant has made no showing that the State
deliberately elicited incriminating statements from him. Our
careful review of the record indicates that although Detective
Gaddis told Barbara Langston some facts about the crime which she
later discussed with defendant over the jail phone, Langston was
not acting as an agent of, or informant for, the State. Indeed,
defendant does not allege that Langston acted at the request of the
State, and Detective Gaddis denied that he gave Langston
information about the case in order to deliberately elicit
incriminating statements from defendant. We overrule this
assignment of error.
 Defendant also argues that the court violated his
constitutional and statutory rights to have a reasonable bail set.
Amend VIII, XIV
; N.C. Const., Art. I., 27; N.C. Gen.
Stat. §§ 15A-511, 533 (2002). We disagree. Defendant concedes
that the determination of what a reasonable bond is rests within
the trial court's discretion. However, he argues that when the
court set the bond as no bond and zero, it failed to exercise
its discretion. As defendant was charged with first-degree murder,
a capital offense, the trial court had the discretion not to set
bail. N.C. Gen. Stat. § 15A-533(c); State v. Sparks
, 297 N.C. 314,
320, 255 S.E.2d 373, 378 (1979). Accordingly, we conclude that
this assignment of error lacks merit. Defendant next argues that the trial court committed
constitutional error when it denied his motion to suppress evidence
seized from his person. Defendant contends that his clothing and
gunshot residue hand-wipings were seized incident to his unlawful
and unconstitutional seizure and incarceration and thus should have
been suppressed. Because we have concluded that defendant's
initial seizure and incarceration were not unconstitutional, we
overrule this assignment of error.
 Defendant also contends that the court erred when it
permitted an SBI agent to testify about the results of DNA tests
performed by a different agent who did not testify. Defendant
argues that this violated his constitutional rights under the
Confrontation Clause of the Sixth Amendment, as interpreted by the
United States Supreme Court in Crawford v. Washington
. 541 U.S.
36, 158 L. Ed. 2d 177 (2004). In Crawford
, the Court held that for
testimonial evidence to be admitted against a defendant, the
Confrontation Clause requires witness unavailability and a prior
opportunity for cross-examination by the defendant. Id.
at 68, 158
L. Ed. 2d at 203.
left it to the States to
determine how to address non-testimonial hearsay.
has previously held that one SBI agent's testimony about the
results of analysis conducted by another agent is non-testimonial
, and thus does not violate the Confrontation Clause. State v. Walker,
170 N.C. App. 632, 635, 613 S.E.2d 330, 333, disc.
359 N.C. 856, 620 S.E.2d 196 (2005); State v.
, 171 N.C. App. 141, 144, 613 S.E.2d 699, 701 (2005); State
, 172 N.C. App. 58 , 67-68 , 616 S.E.2d 290, 297
Accordingly, we overrule this assignment of error.
 In his next argument, defendant asserts that the trial
court erred in failing to dismiss the charge of first-degree murder
for insufficiency of the evidence. The State relied on two
theories of first-degree murder: murder with specific intent formed
after premeditation and deliberation, and murder by lying in wait.
Defendant contends that there was insufficient evidence to support
a conviction under either theory. We disagree.
In reviewing the trial court's ruling on a defendant's motion
to dismiss, this Court evaluates the evidence presented at trial in
the light most favorable to the State. State v. Davis
, 130 N.C.
App. 675, 679, 505 S.E.2d 138, 141 (1998). We consider whether the
State presented substantial evidence in support of each element
of the charged offense and of defendant's identity as the
perpetrator of the offense. State v. Lynch
, 327 N.C. 210, 215, 393
S.E.2d 811, 814 (1990). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. State v. Franklin
, 327 N.C. 162, 171, 393 S.E.2d
781, 787 (1990). Ultimately, we must decide whether a reasonableinference of defendant's guilt may be drawn from the
circumstances. State v. Lee
, 348 N.C. 474, 488, 501 S.E.2d 334,
In order to prove first-degree murder by premeditation, the
State was required to show the unlawful killing of another with
malice and a specific intent to kill, committed after premeditation
and deliberation. See
N.C. Gen. Stat. § 14-17 (2003)
; State v.
, 131 N.C. App. 199, 202, 505 S.E.2d 906, 909 (1998), disc.
, 350 N.C. 311, 534 S.E.2d 600 (1999). Premeditation
means that the act was thought out beforehand for some length of
time, however short, but no particular amount of time is necessary
for the mental process of premeditation. State v. Conner
N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). Deliberation means
an intent to kill, carried out in a cool state of blood, in
furtherance of a fixed design for revenge or to accomplish an
unlawful purpose and not under the influence of a violent passion,
suddenly aroused by lawful or just cause or legal provocation.
. at 635, 440 S.E.2d at 836. Since a specific intent to kill is
a necessary constituent of the elements of premeditation and
deliberation, proof of premeditation and deliberation is also proof
of intent to kill. State v. Lowery
, 309 N.C. 763, 768, 309 S.E.2d
232, 237 (1983). First-degree murder by lying in wait refers to
a killing where the assassin has stationed himself or is lying inambush for a private attack upon his victim. State v. Leroux
N.C. 368, 375, 390 S.E.2d 314, 320 (1990) (internal quotation marks
Defendant argues that the evidence only supports second-degree
murder, that it shows no more than a shooting of opportunity, and
that only mere speculation supports theories of premeditation or
lying in wait. However, the evidence tends to show that there was
a history of violence and hostility between the parties. The
evidence also shows that on the night of the shooting, the victim,
Turner, saw defendant as he was leaving a convenience store. As
Turner left, he flipped [defendant] the bird and shouted f---
you, at him. Defendant then yelled f--- you at Turner. After
defendant and his girlfriend, Langston, left the store, defendant
twice told Langston that he ought to shoot the motherf-----. He
then told her to stop the car and let him out, whereupon he got a
beer and a big gun from the trunk. She left him on the side of
the Branch Chapel Church Road with the gun in his hands at shortly
after 6:00 p.m. She told Detective Gaddis that at that time she
thought defendant was going to shoot Turner. Turner was shot on
Branch Chapel Church
Road at around 6:15 or 6:30 p.m. A shotgun
shell casing, a beer can with defendant's DNA on it, and a pair of
sunglasses with defendant's fingerprint on them were found in a
bush nearby. Also, as discussed, defendant stated that he shotTurner because Turner had shot him. The State's medical examiner
testified that Turner died as a result of shotgun wounds that were
fired from a distance of more than two, but less than four or five
feet distance. We conclude that, viewed in the light most
favorable to the State, there was sufficient evidence of
premeditation and deliberation, or lying in wait, and the trial
court properly denied the defendant's motion to dismiss.
 Defendant next argues that the trial court committed
constitutional error when it denied his motions to dismiss and for
a mistrial for discovery violations by the State. We disagree.
Although N.C. Gen. Stat. § 15A-910 (2003) allows
trial court to
impose sanctions for discovery violations, it is well-established
that the determination of whether to impose sanctions rests solely
within the discretion of the trial court. State v. Jones
N.C. App. 317, 325, 566 S.E.2d 112, 117 (2002), disc. review
356 N.C. 687, 578 S.E.2d 320 (2003). Therefore, the
trial court's decision will only be reversed for an abuse of
discretion . . . upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision.
. (internal quotation marks and citation omitted).
Here, on 4 May 2004, the court ordered the State to produce test
results and other testing information, but the State did not do so
until 20 August 2004, after trial had begun. [I]t's apparent thatthe defendant may need some additional time to consider the
information and the evidence that has been delivered to defendant
. . . The Court is going to allow the defendant some additional
time to review that evidence and to determine if experts are needed
and, if so, to make contact with those experts. The court then
suggested to defendant's trial counsel
that he use the afternoon to
determine the availability of experts. Counsel and the trial court
then discussed the anticipated dates of the State's expert
witnesses. Given the trial court's attention to the State's
discovery violation, and its willingness to allow the defendant
time to contact experts, we cannot conclude that the trial court
abused its discretion. We overrule this assignment of error.
Judges BRYANT and CALABRIA concur.
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