Appeal by defendants from judgments entered 12 November 2004
by Judge Julius A. Rousseau in Catawba County Superior Court.
Heard in the Court of Appeals 7 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State as to defendant-appellant
Dena Milline McDowell.
Attorney General Roy Cooper, by Assistant Attorney General
Spurgeon Fields, III, for the State as to defendant-appellant
Shon Marquet McDowell.
Haakon Thorsen for defendant-appellant Dena Milline McDowell.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall and
Douglas L. Hall, for defendant-appellant Shon Marquet
Defendant Dena Milline McDowell ("Ms. McDowell") appeals her
convictions for embezzlement, obtaining property by false
pretenses, and conspiracy to obtain property by false pretenses.
Ms. McDowell's husband, defendant Shon Marquet McDowell ("Mr.
McDowell"), appeals his conviction for conspiracy to obtain
property by false pretenses. Defendants argue primarily that the
trial court erred in (1) denying a motion for a mistrial followingalleged misconduct by a juror, (2) admitting testimony of the
investigating officer regarding out-of-court statements made by a
person interviewed, and (3) admitting lay opinion testimony
regarding alteration of a document. We reject these contentions
for the reasons set forth below.
At trial, the State's evidence tended to show the following
facts. The Catawba County Department of Social Services ("DSS")
administered a housing grant program called Temporary Assistance to
Needy Families ("TANF") that provided short-term help with rent or
utilities to eligible families. Families with incomes at or below
200% of the poverty level, with at least one minor child, and who
were experiencing a short-term financial crisis, could apply for a
TANF grant and, if approved, a check was issued to the applicant's
landlord or utility provider.
Three TANF grants from April 2002 are involved in this case:
a grant of $2,600.00 on behalf of William Harris to his landlord,
Richard Rizk; a grant of $2,400.00 on behalf of Antonio Smith to
his landlord, James Rogers; and a grant of $2,700.00 on behalf of
David Strathers to his landlord, Eric Robertson. DSS began an
investigation into these payments when the putative landlords
failed to return tax information required by DSS. DSS discovered
that the two checks issued to Mr. Rogers and Mr. Robertson were
sent to the same address: a mailbox at a Mailboxes, Etc. located in
Hickory, North Carolina. Upon further investigation, DSS learned
that the information on the three TANF applications was false. In April 2002, Ms. McDowell was employed with DSS as one of
two Service Intake Providers with the TANF program. Ms. McDowell's
duties included meeting with TANF applicants, filling out the
paperwork necessary to determine whether they were entitled to a
grant, and referring ineligible applicants to other programs that
could provide assistance. Ms. McDowell also had authority to
approve TANF grants. The 11 April 2002 portions of the intake log
identifying which Service Intake Provider saw Mr. Harris, Mr.
Smith, and Mr. Strathers appeared to have been "whited-out," and
Ms. McDowell's name was then written in the space for each.
Further, although the intake log from that day showed that the
Service Intake Providers generally alternated seeing applicants in
the order they arrived, Ms. McDowell saw both Mr. Harris and Mr.
Smith, even though the two signed in at the same time. Ms.
McDowell also authorized each of the three TANF grants.
Eric Robertson testified that he was a recovering heroin
addict who had previously purchased heroin from Mr. McDowell at his
home. According to Mr. Robertson, he had met Ms. McDowell there on
a number of occasions, and she knew him by name. On 11 April 2002,
Mr. McDowell drove Mr. Robertson to DSS after they had discussed a
means by which Mr. Robertson could obtain money to pay his rent.
Mr. McDowell told Mr. Robertson that he would need to sign in under
a false name, David Strathers, and speak to his wife, Ms. McDowell.
After Mr. McDowell used his cellular phone from the DSS parking lot
to call Ms. McDowell, he sent Mr. Robertson into DSS to sign in as
"David Strathers." Mr. Robertson then waited in the waiting roomuntil Ms. McDowell called him into her office under the name
"David," even though she knew his real name was Eric Robertson.
Ms. McDowell then had Mr. Robertson provide her with his real
social security number and sign some documents. Ms. McDowell told
him that "she would take care of the rest." When Mr. Robertson
reviewed his application at trial, he testified that he did not
supply any of the information contained on that application, all of
which was false.
After Mr. Robertson finished meeting with Ms. McDowell, Mr.
McDowell was waiting in the parking lot to drive him home. Several
weeks after 11 April 2002, Mr. McDowell brought Mr. Robertson a
check from Catawba County in the amount of $2,700.00. Mr. McDowell
took Mr. Robertson to a check cashing store, where Mr. Robertson
cashed the check, gave Mr. McDowell $2,000.00, and used the
remaining $700.00 to buy heroin from Mr. McDowell.
The check made out to Eric Robertson as the purported landlord
for the fictitious David Strathers was sent to the Mailboxes, Etc.
mailbox. That mailbox had been rented by Mr. McDowell, and he had
listed on his service agreement that both Mr. Robertson and James
Rogers, the purported landlord for Antonio Smith, were authorized
users and could receive mail at that box.
With respect to the check issued to Richard Rizk as the
purported landlord of William Harris, Mr. Robertson testified that
he had been introduced to Mr. Rizk by Mr. McDowell, that Mr. Rizk
also purchased heroin from Mr. McDowell, and that Mr. Robertson had
purchased heroin from Mr. Rizk. In addition, Officer Lance Foss ofthe City of Hickory Police Department determined that Mr. Harris,
the supposed tenant of Mr. Rizk, did not reside at the address
listed on his application.
The check issued to James Rogers as landlord for Antonio Smith
was ultimately cashed by Jonathan McCluny, who testified that Mr.
Rogers owed him about $400.00, and that Mr. Rogers satisfied this
debt by endorsing a TANF check and turning it over to Mr. McCluny.
Mr. McCluny had his girlfriend cash the check, he took $400.00, and
he gave the balance to Mr. Rogers. Mr. Rogers had told him that he
was hungry and needed to pay his hotel bill. Mr. McCluny had seen
Mr. Rogers and Mr. McDowell together on several occasions. In
addition, Officer Foss determined that there was no residence at
the supposed address for which Mr. Rogers was the purported
On 12 April 2004, the McDowells were both indicted for
conspiracy to obtain property by false pretenses, and Ms. McDowell
was individually indicted for three counts of embezzlement by a
public employee and three counts of obtaining property by false
pretenses. The State successfully moved to join the cases against
both defendants. As to Ms. McDowell, the jury returned verdicts of
guilty on two counts of embezzlement, one count of obtaining
property by false pretenses, and one count of conspiracy to obtain
property by false pretenses. Mr. McDowell was found guilty of
conspiracy to obtain property by false pretenses. The trial court
sentenced Ms. McDowell within the presumptive range to 15 to 18
months imprisonment for the embezzlement conviction to be servedconcurrently with two consecutive terms of 6 to 8 months
imprisonment for the obtaining property by false pretenses and
conspiracy convictions. The trial court sentenced Mr. McDowell
within the presumptive range to a term of 4 to 6 months
imprisonment, which the court suspended, with Mr. McDowell being
placed on 36 months of supervised probation.
I. Arguments Made Jointly by Defendants
A. Denial of Defendants' Motion for a Mistrial
Defendants, both of whom are African-American, argue that the
trial court erred in denying their motion for a mistrial based on
alleged misconduct of a juror suggesting racial bias. The North
Carolina Constitution guarantees the right to trial by jury and
contemplates no less than a jury of twelve persons. See State v.
, 353 N.C. 440, 443, 545 S.E.2d 414, 416 (2001).
Consequently, any verdict reached by a jury containing a juror
disqualified by misconduct will be a nullity and automatically
entitles the defendant to a new trial. See id.
at 443-44, 545
S.E.2d at 416 (concluding that disqualifying juror misconduct
during the guilt phase of a capital trial rendered the guilty
"Both the existence of misconduct and the effect of misconduct
are determinations within the trial court's discretion." State v.
, 349 N.C. 573, 600, 509 S.E.2d 752, 767-68 (1998), cert.
, 528 U.S. 838, 145 L. Ed. 2d 87, 120 S. Ct. 103 (1999).
Accordingly, this Court generally will not overturn a trial court'sdecision if the trial court made "an appropriate inquiry and took
corrective action to remedy [the] matter." State v. Womble
N.C. 667, 694, 473 S.E.2d 291, 307 (1996), cert. denied
, 519 U.S.
1095, 136 L. Ed. 2d 719, 117 S. Ct. 775 (1997).
On the morning of the last day of the trial, following closing
arguments but before jury instructions, the trial judge learned
that juror number 5 had told a bailiff that one of the other jurors
had spoken to her improperly about the case. The trial judge
engaged in the following inquiry with juror number 5:
THE COURT: . . . Reason I called you out
the bailiff told me this morning that you had
told him that one of the jurors had spoken to
you about this case.
JUROR: Made a couple [of] offhand
comments, Your Honor.
THE COURT: Do you recall what those
JUROR: Yes, Your Honor, I do.
THE COURT: What were they?
JUROR: I wrote them down if I can _
THE COURT: First, let me ask you: When
did you hear those comments?
JUROR: Upon leaving the building
Wednesday afternoon, out in front of the
THE COURT: What were the comments?
JUROR: "Anyone who steals over $100,000
knows how to hide it. I worked with blacks
for many years _ "
THE COURT: Wait a minute. Anyone who
steals a hundred thousand dollars knows what?
JUROR: Knows how to hide it.
THE COURT: What else?
JUROR: "I worked with blacks for many
years and they know how to hide things."
THE COURT: And did anyone else hear it?
JUROR: Yes, Your Honor, number twelve,
the young man.
THE COURT: Did he make any comment?
JUROR: Yes, Your Honor, he said _ he
reminded her _ he said, "You aren't supposed
to talk about the trial."
THE COURT: Now, having heard that, can
you disabuse your mind of those statements and
try the case on what you heard here in the
JUROR: Yes, sir, Your Honor. Makes no
difference to me. Not a bit.
The trial judge then returned juror number 5 to the other
jurors and had juror number 12 brought out. He inquired as follows
of that juror:
THE COURT: . . . [Juror number 5], we
called her out _ she's told the bailiff this
morning that someone talked to her about the
JUROR: Uh huh.
THE COURT: She said you also heard that
person say something.
JUROR: It's been overnight.
THE COURT: Did he actually say something
in your presence?
JUROR: Is it a he?
THE COURT: Sir? No, you're not going to
get in any trouble.
JUROR: I really don't remember . . . .
As with juror number 5, the trial judge asked juror number 12
whether he could be fair about the case and only "try it on what
[he] heard in the courtroom." When the juror answered that he
could, the trial judge returned him to the jury room.
Following defendants' motion for a mistrial, the trial judge
questioned juror number 10, who had been identified as making the
statements. Juror number 10 denied having made any of the comments
attributed to her and stated that she could be fair and impartial
and could decide the case based on the facts. The trial judge gave
counsel an opportunity to question juror number 10, but they chose
not to do so.
After oral argument on the motion for a mistrial, the judge
denied the motion. When the jurors re-entered the courtroom, he
instructed them as follows:
Now, members of the jury, it came to my
attention this morning that some of the jurors
might have heard something that didn't _
outside the courtroom that didn't pertain to
this trial and that's why I called several of
them out here in the courtroom individually.
However, they all said they could be fair and
impartial about it, render a fair and
impartial verdict, and I assume all of you can
do that. That's what you said Monday or
Tuesday when we started this case.
Anybody got any reason why they feel like
they can't be fair in this case and try the
case on the evidence that came from this
witness stand and not something somebody might
have said outside this courtroom? Can all of
you do that? If you can, raise your hand.
The jurors each raised his or her hand.
Although the trial judge made no specific findings of fact in
support of his denial of the motion for a mistrial, "'[t]he denialof a motion for a mistrial based on alleged misconduct affecting
the jury is equivalent to a finding by the trial judge that
prejudicial misconduct has not been shown.'" State v. Degree
N.C. App. 385, 392, 442 S.E.2d 323, 327 (1994) (quoting State v.
, 50 N.C. App. 263, 268, 273 S.E.2d 327, 330, cert. denied
302 N.C. 400, 279 S.E.2d 354 (1981)). In arguing that the trial
court erred in denying the motion for a mistrial, defendants
contend that the trial judge did not conduct a sufficient inquiry.
According to Mr. McDowell, the trial judge should have questioned
the remaining jurors, while Ms. McDowell argues that the court's
investigation was "brief," did not have the necessary depth, and
confused the situation.
Because further questioning of the remaining jurors, who may
not have known of the alleged comments, had the potential to taint
the other jurors, we cannot view as an abuse of discretion the
trial court's decision to use an instruction to the entire panel
rather than individual questioning. Further, although the trial
judge exhibited some confusion over the identity of the juror
alleged to have engaged in the misconduct, we do not believe that
confusion _ ultimately corrected _ undermined the inquiry
substantially. In addition, the court conducted a careful
examination of juror number 12, who had made the allegations of
misconduct, and juror number 10, who had been accused. We note
that trial counsel chose not to question any of the jurors further.
Although the remarks attributed to juror number 10 are very
troubling, based upon our review of the record, we are compelled tohold that the trial court did not abuse its discretion in denying
the motion for a mistrial. See State v. Bethea
, 173 N.C. App. 43,
51, 617 S.E.2d 687, 693 (2005) (finding that, after several jurors
were told by courtroom spectators that the victims were liars, the
trial court did not abuse its discretion by declining to order a
mistrial when the judge investigated the matter by individually
questioning each juror and asking about his or her ability to be
fair and impartial).
(See footnote 1)
B. Officer Foss' Testimony Regarding Jenny Gaddis
Both defendants contend that the trial court erred in
admitting testimony of Officer Foss regarding his conversation with
Jenny Gaddis, who answered the door at the address attributed to
Mr. Harris on one of the disputed applications. Mr. McDowell
argues that the testimony constituted inadmissible hearsay, while
Ms. McDowell argues both a violation of the hearsay rule and the
At trial, Officer Foss was asked on direct examination about
his efforts, with respect to each application, to validate the name
of the client, the name of the landlord, and the other information
contained in the application. Regarding the application completed
by William Harris, Officer Foss testified about visiting the
address listed on the application: A. . . . William Harris listed an address of
3117 Second Avenue Southwest, Hickory. That
address is actually in Longview. I went to
that address, spoke with a woman by the name
of Jenny Gaddis. Miss Gaddis had lived at
that residence for _
MR. CLARK: Objection.
THE COURT: OVERRULED as to who lived
The prosecutor nonetheless rephrased the question:
Q. When you knocked on the door at that
address, who knocked on the _ who answered the
A. Miss Gaddis.
Q. How would you describe Miss Gaddis?
A. She's a while [sic] female, retired. I
would say she's mid-sixties.
Q. Did you see anyone at that place, besides
her, that's referred to on that application?
A. No, sir.
Q. Thank you. You may continue.
A. I advised Miss Gaddis of the name and she
was not familiar with the name.
MR. CLARK: Objection.
THE COURT: OVERRULED. Go ahead.
The only statements that arguably could constitute out-of-court
statements and that were the subject of an objection are (1) the
suggestion that Ms. Gaddis told Officer Foss that she lived at the
address, and (2) Ms. Gaddis' statement that she was not familiar
with Mr. Harris' name.
As for Ms. McDowell's contention that admission of this
testimony violated the Confrontation Clause, that objection was notmade below. It is well established that "constitutional error will
not be considered for the first time on appeal." State v. Chapman
359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005). When a defendant
fails to raise constitutional issues at trial, "he has failed to
preserve them for appellate review and they are waived." Id.
therefore, do not address Ms. McDowell's argument under the
(See footnote 2)
With respect to the hearsay arguments, even if we assume,
, that the statements were inadmissible, defendants have
failed to demonstrate prejudice. Defendants argue that this
testimony was necessary to establish that one of the addresses in
the applications was false. With respect to Mr. McDowell, who was
convicted only of one count of conspiracy to obtain property by
false pretenses, there was overwhelming evidence to support his
conviction even in the absence of consideration of this false
address. As for Ms. McDowell, there was admissible evidence from
Officer Foss that Mr. Harris did not live at the address on the
application, that Mr. Rizk was not a landlord, and that Ms.
McDowell saw Mr. Harris at the same time as Mr. Smith, whose
application was also false. In light of this specific evidence, as
well as other circumstantial evidence, we do not believe that Ms.
McDowell has demonstrated that "there is a reasonable possibility
that, had the error in question not been committed, a differentresult would have been reached at the trial" with respect to the
charges relating to the Harris application. N.C. Gen. Stat. § 15A-
C. Lay Opinion Testimony
Both defendants next contend that Ms. McDowell's supervisor,
Terri Franco, was erroneously permitted to give inadmissible lay
opinion testimony. The prosecutor asked Ms. Franco to hold up the
intake log and state whether "a change has been made" where the log
indicated which DSS worker saw Mr. Harris, Mr. Smith, and Mr.
Strathers. Over defendants' objection, the trial court allowed Ms.
Franco to "describe what she sees." Ms. Franco then stated:
"There was white-out. Obviously there was something else there and
it was whited out." Ms. McDowell's name appeared on the altered
Rule 701 of the North Carolina Rules of Evidence governs the
admission of lay opinion testimony:
If the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which 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.
N.C. Gen. Stat. § 8C-1, Rule 701 (2005). Here, Ms. Franco's
testimony arose out of her personal examination of the document,
and the opinion directly related to her testimony regarding which
DSS worker had seen the clients involved with the disputed
applications. Moreover, Ms. McDowell subsequently testified on cross-
examination, without any objection to the questions, that the
intake log had been "whited out and changed":
Q. Do you see _ would you hold it up to the
light, ma'am, and tell if you see where it's
been whited out and changed? Can you tell?
Q. Describe to the jury what you see please.
A. Looks like white-out.
Q. And whose name is written over the white-
out? Whose initials are written over the
It is well established that "[w]hen evidence is admitted over
objection and the same evidence has been previously admitted or is
later admitted without objection, as here, the benefit of the
objection is lost." State v. Morgan
, 315 N.C. 626, 641, 340 S.E.2d
84, 94 (1986). We, therefore, overrule this assignment of error.
II. Ms. McDowell's Additional Arguments
Ms. McDowell makes only one additional argument individually:
she contends that there was insufficient evidence to convict her.
In reviewing the sufficiency of the evidence, the trial court must
determine whether there is substantial evidence: (1) of each
essential element of the offense charged and (2) of defendant's
being the perpetrator of the offense. State v. Scott
, 356 N.C.
591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that
amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion. Id.
at 597, 573 S.E.2d at 869. The courtmust view the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences. Id.
596, 573 S.E.2d at 869.
In support of this assignment of error, Ms. McDowell does not
argue that the State failed to present evidence of any element of
the charged offense. Instead, she states only that "[e]vidence
presented by the State suggested Dena McDowell was an innocent
participant in Shon McDowell's scheme to defraud the DSS" and
points to Officer Foss' typewritten notes of his interview with Mr.
McDowell. While the jury could have viewed these notes as
suggesting Ms. McDowell's innocence, the State also presented ample
other evidence supporting a finding that Ms. McDowell was an active
participant in the scheme, as the jury ultimately concluded. This
assignment of error is, therefore, overruled.
III. Mr. McDowell's Additional Arguments
A. References to Mr. McDowell as a "Drug Dealer"
Mr. McDowell argues that the trial court erred in allowing
Eric Robertson (1) to refer to him as his drug dealer, (2) to
testify that he saw Mr. McDowell almost daily, during the relevant
time frame, for the purpose of purchasing heroin from Mr. McDowell,
and (3) to identify other people who purchased drugs from Mr.
McDowell. He contends that this testimony was inadmissible under
Rules 403 and 404(b) of the Rules of Evidence.
During Mr. Robertson's testimony, the State asked him about
the nature of his relationship with Mr. McDowell, and he responded,
"He was my drug dealer." The trial court sustained defensecounsel's objection and instructed the jury to disregard "that
statement." The court, however, allowed Mr. Robertson subsequently
to testify that he purchased heroin from Mr. McDowell "[a]lmost
daily." Mr. Robertson was also allowed to testify that Richard
Rizk bought heroin from Mr. McDowell.
With respect to Mr. Robertson's initial characterization of
Mr. McDowell as his "drug dealer," the trial court sustained the
defense counsel's objection and instructed the jury to disregard
the testimony. Defendant has made no argument as to how the trial
court erred given that it sustained the objection and gave a
As for the testimony regarding heroin sales, Rule 404(b) of
the North Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Rule 404(b) is "a clear general rule of inclusion
evidence of other crimes, wrongs or acts by a defendant, subject to
but one exception
requiring its exclusion if its only
value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged." State v. Lloyd
, 354 N.C. 76, 88, 552 S.E.2d 596, 608
(2001) (internal quotation marks omitted).
In this case, the fact that Mr. Robertson went to Mr.
McDowell's home to purchase heroin from him showed how the two menknew each other and rebutted Ms. McDowell's contention that she did
not know Mr. Robertson. Further, the evidence that Mr. Robertson
and Mr. Rizk both purchased drugs from Mr. McDowell was relevant to
"opportunity": how Mr. McDowell had the means to enlist them in the
conspiracy to obtain TANF funds unlawfully. The relationship also
(1) explained Mr. Robertson's motive in participating since he used
his share of the funds to purchase heroin from Mr. McDowell, and
(2) tended to prove that Mr. Rizk was not a legitimate landlord,
although identified as such on the application. The evidence thus
was admitted for proper purposes and was not offered solely "to
prove the character of [defendant] in order to show that he acted
in conformity therewith." N.C. Gen. Stat. § 8C-1, Rule 404(b).
See State v. Ligon
, 332 N.C. 224, 235, 420 S.E.2d 136, 142 (1992)
(evidence that defendant dealt drugs was properly admitted to show
motive under Rule 404(b) where the State contended the victim was
shot because he attempted to steal cocaine from defendant); State
, ___ N.C. App. ___, ___, 625 S.E.2d 575, 584 (2006)
(holding that testimony that the witness knew the defendant because
they sold drugs together was properly admitted to establish how the
witness could identify the defendant).
While defendant has argued that unfair prejudice outweighed
any probative value, our review of the record indicates that the
evidence of the nature of the parties' relationship was
fundamental to establishing the nature of the scheme and,
therefore, was admissible under Rule 403. Accordingly, we cannot
say that the trial court abused its discretion in determining thatany danger of unfair prejudice was outweighed by the testimony's
probative value. See State v. Garcia
, 358 N.C. 382, 416-17, 597
S.E.2d 724, 749 (2004) (the decision whether to exclude evidence
under Rule 403 is reviewed for abuse of discretion), cert. denied
543 U.S. 1156, 161 L. Ed. 2d 122, 125 S. Ct. 1301 (2005).
Defendant has also failed to make any persuasive argument that in
the absence of this evidence the jury would have reached a contrary
verdict on the conspiracy charge given the overwhelming evidence
presented regarding Mr. McDowell's extensive involvement with
respect to the applications and the fictitious nature of those
B. Admission of Officer Foss' Notes
Mr. McDowell next argues that the trial court erred both by
permitting Officer Foss to read the notes of his interview with Mr.
McDowell to the jury and by later admitting into evidence the
original longhand notes and a subsequently prepared typewritten
version. We agree.
In State v. Walker
, 269 N.C. 135, 139, 152 S.E.2d 133, 137
(1967), our Supreme Court held that a statement purporting to be a
confession by a defendant that was reduced to writing by another
person, is admissible by the State only if the defendant has "in
some manner . . . indicated his acquiescence in the correctness of
the writing itself." The Court also held that "the reading
verbatim of the typed statement to the jury [has] the same
prejudicial force and impact as if such statement [is] identified
and received in evidence as an exhibit." Id.
Subsequently, our courts recognized that "the written
instrument is admissible, without regard to the defendant's
acquiescence, if it is a 'verbatim record of the questions [asked]
. . . and the answers' given by him." State v. Bartlett
, 121 N.C.
App. 521, 522, 466 S.E.2d 302, 303 (1996) (quoting State v. Byers
105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992)). Under this
analysis, the Supreme Court's decision in Walker
"does not preclude
admission of an unsigned statement taken in longhand" if it
contains a record "of a defendant's actual responses to the
recorded questions." State v. Wagner
, 343 N.C. 250, 256-57, 470
S.E.2d 33, 36 (1996).
, the officer testified that he had written down
the defendant's answers during the course of an interview, but
acknowledged that he did not write down the questions asked of the
defendant. The record contained no other evidence suggesting that
the officer's "handwritten notes were an exact reflection of the
answers given by the defendant," and there was "no evidence that
the defendant acquiesced in the correctness of the writing . . . ."
, 121 N.C. App. at 522, 466 S.E.2d at 303. Under those
circumstances, this Court held: "It was . . . error to admit the
document into evidence and allow the officer to read it to the
This case is indistinguishable from Bartlett
. Mr. McDowell
did not sign either the handwritten or typewritten version, and the
record contains no evidence that he otherwise indicated an
acquiescence in the accuracy of those documents. Further, OfficerFoss merely testified that he took notes while talking with Mr.
McDowell and that those notes "accurately reflect[ed] [his]
recollection . . . of what this defendant told [him] at the police
department[.]" He did not include the questions that he asked
defendant and never testified that the notes reflected a verbatim
rendition of Mr. McDowell's answers. To the contrary, he
acknowledged that some of the words were his "terminology" rather
than that of Mr. McDowell. Given Officer Foss' testimony, Bartlett
compels the conclusion that the trial court erred in allowing
Officer Foss to read aloud the statement and in admitting the
handwritten and typewritten versions.
further holds that "in the absence of some other
evidence 'just as weighty,' [an] improperly admitted confession is
prejudicial error and requires a new trial." Id.
at 523, 466
S.E.2d at 303 (quoting State v. Edgerton
, 86 N.C. App. 329, 335,
357 S.E.2d 399, 404 (1987), rev'd on other grounds
, 328 N.C. 319,
401 S.E.2d 351 (1991)). Based upon our review of the record in
this case, however, we believe defendant has failed to demonstrate
prejudicial error under N.C. Gen. Stat. § 15A-1443(a).
The purported statement reported that Mr. McDowell knew Mr.
Rogers, Mr. Robertson, and Mr. Rizk all needed rent money; that Mr.
McDowell discussed with them going to DSS and told them what to
tell his wife to qualify for assistance; that he learned about the
application process by going through his wife's briefcase and she
knew nothing about the plan; that he intended to make money from
the DSS plan; and that Mr. Robertson and Mr. Rizk had keys to themailbox, but only Mr. Rogers and Mr. Robertson were authorized to
retrieve mail. The State, however, also offered substantial
evidence from other sources on each of the material points of the
statement, with the exception of the portion exculpatory of Ms.
McDowell. Based on this other evidence, we hold that admission of
the statement did not constitute prejudicial error under N.C. Gen.
Stat. § 15A-1443(a). Mr. McDowell has made no showing otherwise,
but rather has relied solely on a bare assertion that admission of
the evidence was "prejudicial." This assignment of error is,
C. Time Limitations on Opening Arguments
Mr. McDowell argues that the trial court erred in "sua sponte
limit[ing] each side to three minutes for their opening
statements." As an initial matter, we note that he mistakenly
asserts that the two defendants were required to divide the three
minutes. The record indicates, however, that the trial court
granted each of the attorneys three minutes.
(See footnote 3)
Parties are entitled to "the opportunity to make a brief
opening statement." N.C. Gen. Stat. § 15A-1221(a)(4) (2005).
"Control over opening statements[, however,] rests within the sound
discretion of the trial court." State v. Call
, 349 N.C. 382, 396,
508 S.E.2d 496, 505 (1998). The North Carolina Supreme Court has
found no error in situations similar to the instant case. See id.
(finding no abuse of discretion where trial court limited counselto five-minute opening statements in the guilt-innocence phase and
opening statements in the sentencing phase of a capital
proceeding); State v. Paige
, 316 N.C. 630, 647, 343 S.E.2d 848, 859
(1986) (finding no abuse of discretion where the trial judge
limited counsel to five-minute opening statements and told counsel
they could not comment on the other party's evidence, could not
characterize any witness, could not comment on what the other
lawyer may argue, and could not argue the law, but could only state
what they contended their evidence would show); see also
R. Prac. 9 ("Opening statements shall be subject to such time and
scope limitations as may be imposed by the court.").
We note that the opening statements were not transcribed.
Further, Mr. McDowell has made no specific argument as to how he
was prejudiced, such as identifying what he would have included in
his opening statement had he been granted additional time.
Although we recognize that the trial court's time limitation
resulted in extraordinarily "brief" opening statements, Mr.
McDowell has failed to demonstrate that the decision in this case
was an abuse of discretion.
D. Prosecutorial Misconduct
Finally, Mr. McDowell argues he is entitled to have his
conviction vacated because of the State's violation of the
discovery statute by failing to disclose the existence of any
agreements with Mr. Robertson in connection with his testimony.
Mr. McDowell points to the prosecutor's denial at a pre-trial
hearing that there were "any conversations, agreement, [or]innuendos that have been passed on to Mr. Robertson in exchange for
his testimony." Mr. McDowell then argues that Mr. Robertson's and
Officer Foss' testimony at trial contradicted the prosecutor's
Mr. McDowell contends that the State was, as a result, subject
to sanctions under N.C. Gen. Stat. § 15A-910 (2005). He did not,
however, seek sanctions at trial. Rule 10(b)(1) of the Rules of
Appellate Procedure specifically provides that "[i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context." Since defendant did not seek discovery sanctions, he has
not preserved this issue for appeal.
Recognizing this omission, defendant argues that he "could not
have known at the time of trial that the State had failed to
disclose the existence of discussions or arrangements with
Robertson. This information came to light only with the
undersigned examining Robertson's criminal case file at the Catawba
County Courthouse." Although Mr. McDowell included in the record
on appeal a copy of the dismissal of Mr. Robertson's charges, this
document is not properly a part of the record on appeal in this
case since it was never presented to the trial court. See
App. P. 9(a)(3)(i) (providing that the record on appeal should
include "copies of all other papers filed and statements of all
other proceedings had in the trial courts
which are necessary foran understanding of all errors assigned" (emphasis added)).
Because this argument relies upon information outside the record in
this case, it cannot be argued on direct appeal, but might be the
subject of a motion for appropriate relief under N.C. Gen. Stat. §
15A-1415 (2005). See State v. Fair
, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001) (holding that ineffective assistance of counsel
claims should not be reviewed on direct appeal if they require
consideration of information outside of the record on appeal and
the verbatim transcript), cert. denied
, 535 U.S. 1114, 153 L. Ed.
2d 162, 122 S. Ct. 2332 (2002).
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).