Converted WP file 050777-1

Appeal by defendant from judgments entered 15 July 2004 by Judge W. Russell Duke, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 7 February 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General James P. Longest, Jr., for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant.

    LEVINSON, Judge.

    Defendant appeals his convictions and judgments for first degree murder and attempted robbery with a dangerous weapon. We find no error in the convictions, but remand for a new sentencing hearing on the attempted robbery charge.
    The evidence presented at trial may be summarized as follows:
The body of Frank Faires was found in a wooded area off Shaw Highway in the Pender County/Onslow County area in the early morning hours of 23 January 2003 by Deputy Robert Ides of the Onslow County Sheriff's Department. David Madden, Brandon Maynes, and defendant were taken into custody as suspects in the murder of Faires.     Madden testified that he, Maynes, and defendant were serving together in the U.S. Marine Corps stationed at Camp Lejeune. On the evening of 17 January 2003, the three men went out to drink at local bars. Maynes and defendant left Madden at Stroker's bar and did not see him again until the following morning. On the morning of 18 January 2003, Madden noticed defendant “had blood splattered on [the front of] his jeans.” Madden asked defendant what defendant and Maynes had done the previous night. Defendant and Maynes both told him, “we killed somebody.”
    Maynes testified that he, Madden, and defendant went out to drink the evening of 17 January 2003. While they were drinking at the Orleans House, Maynes and defendant were approached by Faires, who was in an intoxicated condition. Defendant told Maynes he “was planning on beating [Faires] up and robbing him.” Maynes, defendant, and Faires left the bar together in Maynes' truck, and drove about eight to ten miles on Highway 53 before pulling off the main road onto Cinnebar Lane. Maynes and defendant directed Faires to get out of the truck. Maynes next heard a “ping” that “sounded like a baseball bat hitting another pole or another baseball bat.” Maynes walked to the side of the truck and saw Faires lying on his back with blood coming from his face and forehead. Defendant was standing over Faires, holding his aluminum baseball bat. Maynes then observed defendant swing the bat and strike Faires in the head. Maynes got back in the truck and heard “repetitive thumping of the baseball bat.” Maynes and defendant put Faires' body in the back of the pickup truck, drove down highway 53, and turned onto agravel road, where they left the body in a wooded area. Maynes and defendant then drove to a car wash, where they washed the baseball bat and the back of the truck. At the car wash, defendant threw Faires' clothing and some of Maynes' and defendant's clothing into a dumpster. They returned to Camp Lejune. Later that morning, Maynes told Madden that defendant killed somebody. During his testimony, Maynes narrated the events illustrated on a surveillance tape obtained from the car wash.
    Several experts in blood and DNA analysis testified that blood samples matching Faires' blood was discovered on various items retrieved from the car wash dumpster. Faires' blood was found on two white tee-shirts. Samples of Faires' blood was also found on the rocker side panel of Maynes' vehicle. Dr. John Almeida, who performed an autopsy on Faires, determined Faires died of “blunt head trauma[.]”
    The jury convicted defendant of first degree murder, on the theories of premeditation and deliberation and the felony murder rule, and attempted robbery with a dangerous weapon. Defendant was sentenced to life imprisonment for murder, and to 80-105 months' imprisonment for attempted robbery with a dangerous weapon. From these convictions and judgments, defendant appeals.
    Defendant argues first that the trial court erred by denying his challenge for cause of prospective juror Huffman, on the grounds that her close ties with law enforcement personnel demonstrated she could not consider the case in a fair and impartial manner. We disagree.    N.C. Gen. Stat. § 15A-1212(9) (2005), setting forth the statutory grounds upon to challenge a juror for cause, provides in pertinent part that “[a] challenge for cause to an individual juror may be made by any party on the ground that the juror: . . . (9) For any other cause is unable to render a fair and impartial verdict.”
        Whether to grant a challenge for cause under N.C.G.S. § 15A-1212(9) is a matter left to the sound discretion of the trial court. The trial court has the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial. . . . When the trial court is able to reasonably conclude the prospective juror can disregard prior knowledge and impressions, follow the trial court's instructions on the law, and render an impartial, independent decision based on the evidence, excusal is not mandatory.

State v. Jaynes, 353 N.C. 534, 546, 549 S.E.2d 179, 190 (2001) (citations and internal quotations omitted).
    In State v. Lee, 292 N.C. 617, 625, 234 S.E.2d 574, 579 (1977), our Supreme Court held the trial court abused its discretion by failing to allow defense counsel to strike a prospective juror, the wife of a police officer, for cause. The Lee Court reasoned:
        [T]he position of juror Frances Norvell was such that she was subject to strong influences which ran counter to defendant's right to a trial by an impartial jury. . . . We further note that the juror Norvell initially stated that she would have a tendency to lend more credibility to the testimony of the police officers than to a stranger. . . . Finally, Officer Johnny Moore, with whom the juror was acquainted, was an important State's witness[;] . . . it was by his corroborativetestimony that the State sought to buttress the credibility of its only eye-witness.

    In the instant case, the husband of the prospective juror was employed as a sergeant at the Onslow County jail at the time of trial and was a former courtroom bailiff. The Onslow County Sheriff was the uncle of the prospective juror's husband. Huffman knew the bailiff in the courtroom as well as one of the prosecuting attorneys. She also knew many other members of the sheriff's department, including one who subsequently testified as a witness for the State.
    Huffman's relevant statements on voir dire follow:
        [TRIAL COURT]: [Y]ou're saying to the State and to the defendant that you can sit on this case, listen to the evidence that you hear from the witness stand under oath, apply the law which I give you to that evidence and render a fair and impartial verdict. Is that what you're saying?
        [Mrs. Huffman indicated her assent by raising her hand.]
        . . . .
        [Defense Counsel]: Ms. Huffman, When Judge Duke asked you if you thought you could be fair and impartial, initially you hesitated.
        [Mrs. Huffman]: Unh huh.
        [Defense Counsel]: Why is that?
        [Mrs. Huffman]: Really, I don't know, because I reckon my husband is in jail with a lot of the prisoners and you know, I hear, well, I get him to talk to me when he comes home to release pressure on him, so -- but I mean, he wouldn't speak to me during the trial or anything because he knows what he's supposed to do.         [Defense Counsel]: Wouldn't it be a more fair answer then to Judge Duke's question whether you can be fair and impartial --
        [Mrs. Huffman]: Probably not.
        . . . .
        [Defense Counsel]: Do you honestly feel that you can sit there, even knowing the way you smiled at [the prosecutor] like you recognize him, you dealt with him for lunch or whatever you guys did, do you really feel with all those things in your background or mind you can be absolutely fair to the defendant in this case?
        [Mrs. Huffman]: Yes.
        [Defense Counsel]: Why is that?
        [Mrs. Huffman]: It's my duty to be fair.
        . . . .
        [Defense Counsel]: And the things you say your husband will tell you, you are not concerned that any of those things will come into your mind and have an affect [sic] on how you're going to decide this case?
        [Mrs. Huffman]: No.
        [Defense Counsel]: Why is that?
        . . . .
        [Mrs. Huffman]: Because I know what I'm supposed to do and because I've sat on a jury before and it's -- I wouldn't speak about it or anything.
        . . . .
        [Mrs. Huffman]: I mean, I'll try to be as fair as I could.
        [Defense Counsel]: And that's all we're talking about. Is your ability to be fair somehow affected?        [Mrs. Huffman]: Yes. Oh -- by my husband, no, no.
    On this record, we cannot conclude the trial court abused its discretion in failing to allow trial counsel's challenge for cause. Huffman was questioned extensively, and repeatedly stated she could be fair and impartial. Huffman testified that neither her acquaintance with one of the prosecuting attorneys, nor her acquaintance with Deputy Ides, a witness for the State, would affect her ability to be fair. Huffman explained that her husband would not speak to her about the case during the trial, and asserted that her husband's contacts with the jail would not affect her ability to be fair.
    The facts of the instant case reveal significant differences from those set forth in Lee. While Huffman was well acquainted with Onslow County law enforcement officers, she did not assert she would give their testimony more weight than that of other witnesses; instead, she steadfastly maintained she could be fair and impartial. “[A] juror's close relationship with a police officer, standing alone, is not grounds for a challenge for cause.” Id. at 625, 234 S.E.2d at 579. Furthermore, “the trial judge is vested with broad discretionary powers in determining the competency of jurors and that discretion will not ordinarily be disturbed on appeal.” Id. at 621, 234 S.E.2d at 577 (citations omitted). We conclude the trial court did not abuse its discretion in failing to grant defendant's challenge for cause. This assignment of error is overruled.     Defendant next contends the trial court erred by overruling his objection to the testimony of the State's forensic serology expert, Jennifer Elwell, that a blood splatter pattern she observed on a tee-shirt was consistent with blood splattering “coming across the shoulder.” Defendant argues the opinion offered by Elwell was outside her area of expertise and that defendant was prejudiced by its admission. We disagree.
    In the instant case, Elwell was qualified as an expert in the field of forensic serology, the testing of items for the presence of blood. Over defendant's objection, Elwell was allowed to give her opinion regarding the presence of blood on a tee-shirt found at the car wash dumpster. Elwell stated, “With reference to this item, I did find chemical indications for the presence of blood, and I also noted that I found a blood splatter pattern consistent with a splattering coming across the shoulder[.]”
    Defendant contends he was prejudiced by Elwell's testimony regarding a blood splatter on the tee-shirt because Elwell's testimony indicated that he, not Maynes, struck the victim with the baseball bat. Even assuming arguendo it was error for the trial court to allow Elwell to testify regarding the blood splatter pattern on the tee-shirt, we cannot conclude that her testimony prejudiced the outcome of the trial. See N.C. Gen. Stat. § 15A- 1443 (2005) (“A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have beenreached at the trial[.]”). In his closing argument, defense counsel admitted defendant was the one who wielded the baseball bat and struck the victim four times in the head. Defense counsel stated:
        Something happened out there to make Mr. Lasiter pick up that bat and hit this guy four times. . . . He picked up that bat like that and hit him four times. . . . All we know is he was hit four times in the back of the head and something caused him to do that, but it was not after premeditation. . . . He didn't even think about it. He grabbed the bat and he hit him.

    This assignment of error is overruled.
    Finally, defendant contends the trial court erred by sentencing defendant on the attempted robbery conviction by making a finding in aggravation that had not been stipulated to by defendant or found beyond a reasonable doubt by the jury. Based on the principles set forth in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), we agree, and remand for a new sentencing hearing on this offense.
    No error in part, reversed and remanded for a new sentencing hearing in 04 CRS 2282.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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