An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-470


Filed: 21 February 2006


v .                         Wake County
                            No. 03 CRS 64722

    Appeal by defendant from judgment entered 26 August 2004 by Judge Howard F. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 9 January 2006.

    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).
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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