STATE OF NORTH CAROLINA
v
.
Wake County
No. 03 CRS 64722
BRANDIE BULLOCK,
Defendant.
Attorney General Roy Cooper, by Special Attorney General Norma
S. Harrell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellee.
STEELMAN, Judge.
Defendant was convicted of first-degree murder and conspiracy
to commit first-degree murder for the shooting death of Christopher
Moore. We hold that defendant received a fair trial free from
prejudicial error.
The following facts are not in dispute. On 30 July 2003,
defendant arranged to meet Christopher Moore at a McDonald's.
Defendant, and her friend Christina Holder, met Moore at the
McDonald's, and rode with Moore in his vehicle to the apartment
parking lot of his friend Tyson Lunsford. Before Moore put the
vehicle in park, defendant removed a handgun from her purse and
shot Moore in the back of his head, resulting in his death. Evidence for both the State and the defendant indicate that
defendant was acting at the prompting of her boyfriend, Devin
Glynn, who was known as Malik. Malik believed Moore had paid for
drugs with counterfeit money, and sought revenge. Defendant knew
Moore, and Malik convinced defendant to agree to arrange the
meeting, and provided defendant with the handgun used to murder
Moore. Malik followed Moore's vehicle to the apartment parking
lot, and provided transportation to defendant and Holder after the
shooting.
Police investigators located Moore's cell phone at the crime
scene, and contacted defendant because she was the last person to
call Moore's cell phone before he was murdered. Defendant
initially admitted to being present when Moore was killed, but
claimed a man riding with Moore was the shooter. Defendant
subsequently gave different versions of the events surrounding the
killing and her involvement. Holder gave a statement to police in
which she identified defendant as the shooter.
Defendant was arrested and charged with first-degree murder.
At trial, defendant admitted killing Moore and conceded her guilt
to second-degree murder. The contested issue at trial was whether
the killing was first-degree murder, based upon premeditation and
deliberation. Defendant presented evidence of a history of mental
problems and drug and alcohol abuse. Dr. Wilkie Wilson, a
professor of psychopharmacology from Duke, testified concerning the
effects of the medications prescribed for defendant's mental health
issues, and how these might have affected defendant's decision-making abilities. He further testified that defendant informed him
that she was under the influence of multiple illegal drugs and
alcohol at the time she shot Moore. In Dr. Wilson's opinion, if
defendant was laboring under the effects of all these drugs, she
would not have been able to form the specific intent to kill. The
State called Dr. James Groce as an expert in forensic psychiatry.
Defendant had been admitted for fifteen days to Dorthea Dix
Hospital, and was evaluated by Dr. Groce. Defendant told Dr. Groce
that she was under the influence of multiple drugs and alcohol when
she shot Moore, but in Dr. Groce's opinion she would have been able
to form the specific intent to kill Moore even if she were under
the influence of the drugs and alcohol.
Holder testified that defendant had smoked marijuana that day
before killing Moore, but had not consumed alcohol or used any
other illegal drugs. She testified that defendant and Malik had
discussed killing Moore before the shooting, and that Malik had
asked defendant to kill Moore. Raleigh Homicide Sergeant J.C.
Perry testified that Holder had given a statement to him concerning
the events of 30 July 2003 prior to trial, and Sergeant Perry was
allowed to testify to Holder's statement for corroborative
purposes.
Defendant was tried for non-capital first-degree murder and
conspiracy to commit first-degree murder at the 23 August 2004
criminal session of Superior Court for Wake County. The jury found
the defendant guilty as charged on 26 August 2004. The trial court
consolidated the charges for judgment and sentenced defendant tolife in prison without parole. From this judgment, defendant
appeals.
In defendant's first argument, she contends that the trial
court erred by allowing Detective Perry to testify to Holder's
prior statement to police for purposes of corroboration, when
portions of the statement were non-corroborative. We disagree.
After Holder had testified, the State called Sergeant Perry as
a witness. Sergeant Perry testified that Holder had given him a
statement on 6 August 2003 concerning the events surrounding the
murder. At the point that Sergeant Perry was about to testify to
the content of Holder's statement, defendant's attorney objected as
follows: “Objection, your Honor, to hearsay.” The State replied
that it was not offering the statement for proof of the matter
asserted, but only for purposes of corroboration. The trial court
allowed the testimony for corroborative purposes. Sergeant Perry
testified to Holder's statement, and defendant made no further
objections. Defendant now argues on appeal that portions of the
statement did not corroborate Holder's trial testimony, and should
have been excluded.
“The law is well-settled that a witness's
prior consistent statement may be admitted
into evidence where the statements corroborate
the witness's in-court testimony.” However,
“'in a noncapital case, where portions of a
statement corroborate and other portions are
incompetent because they do not corroborate,
the defendant must specifically object to the
incompetent portions.'” “Where a defendant in
a noncapital trial makes only a broadside
objection to the allegedly incompetent
corroborative testimony, the assignment of
error is waived.”
State v. Holliman, 155 N.C. App. 120, 128, 573 S.E.2d 682, 688
(2002) (citations omitted). Because defendant did not bring to the
attention of the trial court by a specific objection any portion of
Holder's prior statement that she contends should have been
excluded as non-corroborating, she has failed to preserve this
issue for appellate review. Id. This argument is without merit.
In defendant's second argument, she contends that the trial
court erred by requiring one of defendant's expert witnesses to
present his opinion in the form of an answer to a hypothetical
question. We disagree.
Dr. Wilson testified for defendant as an expert in the field
of psychopharmacology. He testified that defendant had informed
him that she was under the influence of marijuana, powdered
cocaine, ecstacy, two forty ounce cans of malt liquor, and a shot
of hard liquor at the time she shot Moore. Dr. Wilson further
testified that prescription drugs prescribed for her mental
problems would have had an affect on her ability to make decisions.
Defense counsel asked Dr. Wilson if he had an opinion as to
defendant's ability to formulate the specific intent to kill in
light of this extensive drug use, and the State objected, arguing
that Dr. Wilson's expertise did not qualify him to give an opinion
concerning defendant's ability to formulate specific intent.
During a voir dire hearing, the State withdrew its objection.
The trial court allowed Dr. Wilson to give an opinion as to the
effect the consumption of all the enumerated drugs might have had
on defendant's ability to form the specific intent to kill, butrequired defense counsel to ask the question in the form of a
hypothetical.
Defendant did not object at trial to the requirement that she
solicit Dr. Wilson's opinion by means of a hypothetical question.
Because defendant failed to preserve this issue for appeal by
lodging appropriate objections at trial, there is no right to
appeal this issue.
State v. Joyner, 606 S.E.2d 196, 198, 606 S.E.2d
196, 198 (2004)
. We further note that though defendant asserted
plain error in her assignments of error, she does not argue plain
error in her brief. She has therefore abandoned her right to plain
error analysis of this issue.
State v. Hatcher, 136 N.C. App. 524,
526-27, 524 S.E.2d 815, 817 (2000)
.
Assuming arguendo that defendant had preserved this argument,
and that the requirement of the trial court that Dr. Wilson be
presented the question in the form of a hypothetical was in error,
defendant's argument still fails. Defendant must show that she was
prejudiced by this ruling, and specifically that there was “a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a)
(2005).
In the instant case, all discussion concerning the phrasing of
the relevant question occurred during a hearing outside the
presence of the jury. There was nothing to indicate to the jury
that the manner in which the question was asked was not of
defendant's choosing. Further, the trial court's ruling requiringthat the question be asked in the form of a hypothetical was
logical based upon the peculiar facts of this case. Dr. Wilson had
no independent knowledge of what drugs defendant may or may not
have ingested on the night in question.
Dr. Wilson was allowed to give his opinion that if defendant
consumed all the drugs she claimed, she would not have been able to
form the requisite intent to kill. Defendant was thus able to
present this opinion evidence to the jury. Whether defendant
actually consumed the drugs in question was a matter for the jury
to decide, as was the determination of the credibility of the two
expert witnesses, and the weight to be given to their testimony,
concerning the effect of those drugs on defendant's ability to form
the intent to kill. The fact that defendant shot Moore, resulting
in his death, was not in dispute. We hold there was no probability
that a different verdict would have been reached had the question
posed to Dr. Wilson not been in the form of a hypothetical. State
v. Burgess, 345 N.C. 372, 389, 480 S.E.2d 638, 647 (1997). This
argument is without merit.
In defendant's third argument, she contends that the trial
court erred by failing to hold a hearing in response to a written
request for replacement of appointed counsel. We disagree.
Three days prior to the start of her trial, defendant filed a
letter requesting the removal of her appointed counsel. This
request indicated that defendant was generally dissatisfied with
her appointed counsel, and specifically that her appointed counsel
had not responded quickly enough to requests by defendant to seediscovery materials. Defendant further stated that it was
inappropriate for her attorney to visit her at the jail with “a
professor from Duke University” (later identified as Dr. Wilson),
because she “didn't think that anyone else should have been with
[her attorney] to discuss [her] case that was not another
attorney.” Defendant's letter stated that her family was going to
hire an attorney for her if the court refused to appoint
replacement counsel.
While it is a fundamental principle that an
indigent defendant in a serious criminal
prosecution must have counsel appointed to
represent [her], an indigent defendant does
not have the right to have counsel of [her]
choice appointed to represent [her]. This
does not mean, however, that a defendant is
never entitled to have new or substitute
counsel appointed. A trial court is
constitutionally required to appoint
substitute counsel whenever representation by
counsel originally appointed would amount to
denial of defendant's right to effective
assistance of counsel, that is, when the
initial appointment has not afforded defendant
[her] constitutional right to counsel. Thus,
when it appears to the trial court that the
original counsel is reasonably competent to
present defendant's case and the nature of the
conflict between defendant and counsel is not
such as would render counsel incompetent or
ineffective to represent that defendant,
denial of defendant's request to appoint
substitute counsel is entirely proper.
State v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980)
(citations omitted).
In the instant case, defendant did not bring her
dissatisfaction with her appointed counsel to the attention of the
court at trial, and nothing in the record indicates that the trial
court was ever aware of defendant's letter. Defendant did not makeany further attempt to obtain replacement counsel. It was the
defendant's burden to bring such objections or requests to the
attention of the trial court, and insure that the trial court ruled
on her objections or requests. N.C. R. App. P. Rule 10(b)(1);
State
v. Joyner, 606 S.E.2d 196, 198, 606 S.E.2d 196, 198 (2004)
.
Further, defendant makes no showing that she was prejudiced in
any manner as a result of the representation she received at trial.
See State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976).
Defendant makes no showing that her counsel was deficient, or that
substitute counsel would have been better prepared at trial.
Defendant's concern over the meeting at the jail between herself,
her counsel, and Dr. Wilson was unwarranted. Dr. Wilson was called
at trial as an expert witness for her defense. The decision of
defendant's counsel to bring Dr. Wilson to this interview was
unquestionably in defendant's interests. We hold that defendant's
constitutional right to the assistance of counsel was not violated
on these facts. This argument is without merit.
Because defendant has not argued her other assignments of
error in her brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2005).
NO ERROR
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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