Appeal by Defendant from judgments entered 2 March 2006 by
Judge Henry W. Hight, Jr. in Superior Court, Wake County. Heard in
the Court of Appeals 29 August 2007.
Attorney General Roy Cooper by Special Counsel Isaac T. Avery,
III, for the State.
Sue Genrich Berry for Defendant.
Anderson Sheldon Hazelwood (Defendant) was convicted on 2
March 2006 of two counts of second-degree murder and one count of
felony operation of a motor vehicle to elude arrest. The trial
court sentenced Defendant to consecutive terms of 225-279 months in
prison on each charge of second-degree murder, and to a consecutive
term of eleven to fourteen months on the charge of felony operation
of a motor vehicle to elude arrest. Defendant appeals.
The evidence presented at trial tended to show the following:
Around 10:00 p.m. on 23 October 2004, Trooper Brian W. Jones
(Trooper Jones) with the North Carolina State Highway Patrol
initiated a traffic stop of Defendant's car after observing
Defendant driving erratically and above the posted speed limit.Defendant initially stopped his car, but as Trooper Jones
approached Defendant's car, Defendant drove off at a high rate of
speed. Trooper Jones returned to his vehicle and followed
Defendant as he fled the traffic stop. During an ensuing high-
speed chase, Defendant lost control of his vehicle and collided
with a tree. Defendant's two passengers, girlfriend Shavonda Renee
Commissiong (Ms. Commissiong), and her five-year-old son Jalien
Anthony Commissiong, both died in the collision. Defendant was
also injured in the crash and was taken by ambulance to Wake
Two days later, Trooper Jones visited Defendant in the
hospital. After Trooper Jones advised Defendant of his Miranda
rights, Defendant gave a statement to Trooper Jones. Trooper Jones
testified that in the statement, Defendant said that prior to the
collision, Ms. Commissiong "told [Defendant] to stop, but
[Defendant] told her [he] wasn't going to go to jail tonight."
At trial, Defendant stipulated that he was guilty of two
counts of involuntary manslaughter. The trial court instructed the
jury on second-degree murder and involuntary manslaughter, as well
as felony and misdemeanor operation of a motor vehicle to elude
arrest. The jury found Defendant guilty of the greater offenses.
Defendant argues that the trial court erred by allowing the
State to introduce inadmissible hearsay, and by disallowing certain
expert witness testimony regarding the speed of his vehicle.
Defendant also argues that he was denied effective assistance of
counsel at trial; that the trial court improperly instructed thejury regarding evidence admitted under N.C. Gen. Stat. § 8C-1, Rule
404(b); and that the jury instructions did not require a unanimous
verdict for conviction. We find no error.
Defendant first assigns as error the trial court's overruling
of his hearsay objection to certain evidence introduced by the
State. At trial, Trooper Jones began to testify regarding his
visits to Defendant in the hospital. Defendant objected to the
introduction of Defendant's statement to Trooper Jones on the
grounds that the statement contained inadmissible hearsay. The
trial court excused the jury, heard the parties' arguments, and
overruled Defendant's objection. The jury returned and Trooper
Jones resumed his testimony. Shortly thereafter, Trooper Jones
recited Defendant's statement to the jury. Defendant did not renew
his hearsay objection at that time.
Defendant recognizes that under the North Carolina Rules of
Appellate Procedure, "[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[.]" N.C.R. App. P. 10(b)(1).
Defendant admits that because he did not renew his objection when
Trooper Jones actually read Defendant's statement at trial, he
waived his right to appeal the trial court's hearsay ruling and,
therefore, Defendant requests plain error review. Plain error
review is not necessary, however, because we find that Defendant
did not waive his right to appeal the trial court's hearsay ruling
under N.C.R. App. P. 10(b)(1). Our courts previously have heldthat "a motion in limine
is not sufficient to preserve for appeal
the question of admissibility of evidence if the defendant does not
object to that evidence at the time it is offered at trial." State
, 353 N.C. 50, 65, 540 S.E.2d 713, 723 (2000), cert.
, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). However, unlike
with a pretrial motion in limine
, Defendant here raised his hearsay
objection while Trooper Jones was testifying, moments before
Defendant expected Trooper Jones to deliver an allegedly
inadmissible statement to the jury. The trial court excused the
jury and engaged in a lengthy discussion with the parties. The
trial court overruled Defendant's objection, the jury returned, and
the trial resumed. Trooper Jones read Defendant's statement to the
jury within minutes of Defendant's objection and the trial court's
ruling. Under these circumstances, N.C.R. App. P. 10(b)(1) did not
require Defendant to renew his objection when Trooper Jones resumed
his testimony. Defendant's prior objection was sufficiently
contemporaneous with the challenged testimony to be considered
"timely" for purposes of the appellate rules. The State does not
With Defendant's right to appeal the trial court's hearsay
ruling properly preserved, we consider the merits of Defendant's
claim. Under N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005), hearsay
is defined as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Defendant concedes that
the portion of the statement containing Defendant's own words:"[Defendant] told [Ms. Commissiong] [he] wasn't going to go to jail
tonight," was admissible as a statement of a party-opponent under
N.C. Gen. Stat § 8C-1, Rule 801(d)(A) (2005). However, Defendant
argues the trial court erred by admitting, over his objection, the
portion of Defendant's statement describing how Ms. Commissiong
"told [Defendant] to stop" the car, due to its double-hearsay
N.C. Gen. Stat. § 8C-1, Rule 805 (2005) ("Hearsay
included within hearsay is not excluded under the hearsay rule if
each part of the combined statements conforms with an exception to
the hearsay rule[.]"). The trial court concluded that this portion
of Defendant's statement was not hearsay under Rule 801(c) because
it was not offered for its truth. We review the trial court's
determination de novo
. See State v. Thomas
, 350 N.C. 315, 339, 514
S.E.2d 486, 501, cert. denied
, 528 U.S. 1006, 145 L. Ed. 2d 388
(1999) (reviewing de novo
trial court's determination that out-of-
court statement was admissible for limited purpose of explaining
the reaction of the person to whom the statement was made).
The State contends that Defendant's statement was offered not
for its truth - that Ms. Commissiong wanted Defendant to stop the
car - but rather, to prove that Defendant acted with malice, a
requisite element of second-degree murder. Defendant's continued
high-speed flight in response to Ms. Commissiong's request, the
State contends, demonstrates that Defendant acted "so recklessly
and wantonly as to manifest a mind utterly without regard for human
life and social duty and deliberately bent on mischief." State v.
, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (defining"malice" as used in homicide law). Defendant rejects this
contention and asserts that Ms. Commissiong's words as contained in
Defendant's statement to Trooper Jones were introduced for their
truth. However, Defendant offers no explanation for why the State
would introduce his statement for such a purpose, as opposed to the
purpose of demonstrating malice. Ms. Commissiong's own wishes
regarding Defendant's conduct were irrelevant to the State's case;
rather, it was Defendant's reaction to Ms. Commissiong's request
that presented an issue at trial. We conclude that Defendant's
statement was proper non-hearsay evidence introduced for the
limited purpose of demonstrating malice, and we affirm the trial
court's overruling of Defendant's hearsay objection. See State v.
, 359 N.C. 328, 355, 611 S.E.2d 794, 816 (2005) (out-of-
court statement admissible "to explain [the] defendant's subsequent
, 350 N.C. at 339, 514 S.E.2d at 501 (out-of-court
statement admissible "for the limited purpose of explaining why
[witness] reacted . . . as he did and his subsequent conduct").
Defendant next asserts that he was denied effective assistance
of counsel at trial, in violation of his federal and state
constitutional rights. Defendant bases this claim on his
attorney's failure to make a timely objection to Trooper Jones'
testimony as discussed above. To establish a claim for ineffective
assistance of counsel under either the United States Constitution
or the North Carolina Constitution, Defendant must first
demonstrate that "counsel made errors so serious that counsel wasnot functioning as the 'counsel' guaranteed the [D]efendant by the
Sixth Amendment." Strickland v. Washington
, 466 U.S. 668, 687, 80
L. Ed. 2d 674, 693, reh'g denied
, 467 U.S. 1267, 82 L. Ed. 2d 864
(1984). See State v. Braswell
, 312 N.C. 553, 562-63, 324 S.E.2d
241, 248 (1985) (adopting Strickland
test). As discussed above in
we find that Defendant's attorney did interpose a timely
objection adequate to preserve the contested hearsay issue for
appellate review under N.C.R. App. P. 10(b)(1). Therefore, with no
error made by Defendant's counsel, Defendant's claim must fail.
Defendant next assigns error to the trial court's sustaining
of the State's objection to certain testimony offered by one of
Defendant's expert witnesses. Defendant's witness, John Flanagan
(Mr. Flanagan), was tendered as an expert in speed analysis and
accident reconstruction. During direct examination, defense
counsel asked Mr. Flanagan for his determination of the speed of
Defendant's vehicle when it struck the tree. The State objected to
this question based on the rule set out in Shaw v. Sylvester
N.C. 176, 116 S.E.2d 351 (1960):
[O]ne who does not see a vehicle in motion is
not permitted to give an opinion as to its
speed. A witness who investigates but does not
see a wreck may describe to the jury the
signs, marks, and conditions he found at the
scene, including damage to the vehicle
involved. From these, however, he cannot give
an opinion as to its speed. The jury is just
as well qualified as the witness to determine
what inferences the facts will permit orrequire.
(See footnote 1)
at 180, 116 S.E.2d at 355. The trial court sustained the
Defendant argues that application of the Shaw
rule in the
present case is manifestly unfair, in that the speed of Defendant's
vehicle was a central issue on the question of malice, and
Defendant was prohibited from introducing beneficial evidence on
this question. Defendant asks that this Court reconsider the rule
set out in Shaw
. It is clear, however, that this Court may not
overrule a decision of the North Carolina Supreme Court.
Defendant's assignment of error is overruled.
Defendant next assigns as error the trial court's instructions
to the jury regarding "other crimes" evidence received pursuant to
N.C. Gen. Stat. § 8C-1, Rule 404(b). At trial, the State
introduced evidence of Defendant's 2003 conviction for felony
speeding to elude arrest. Under N.C. Gen. Stat. § 8C-1, Rule
404(b) (2005), such evidence "is not admissible to prove the
character of a person in order to show that he acted in conformity
The trial court instructed the jury, stating: Evidence has been received in this case
tending to show that the defendant committed
the felony of speeding to elude arrest on
November 19, 2002. This evidence was received
solely for the purpose of showing that the
defendant acted with malice when he operated a
motor vehicle [in the current case
]. If you
believe this evidence, you may consider it but
only for the limited purpose for which it was
received. This evidence may not be considered
by you to prove the character of the defendant
but to show that the defendant acted in
. (emphasis added).
The State concedes that the trial court misstated the law in this
Defendant did not object to this instruction at trial, and
therefore he did not properly preserve this issue for appellate
review under N.C.R. App. P. 10(b)(2). Defendant therefore asks our
Court to review the jury instruction for plain error. Plain error
"after reviewing the entire record, it can be
said the claimed error is a 'fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done,' . . . or where it can be
fairly said 'the instructional mistake had a
probable impact on the jury's finding that the
defendant was guilty.'"
State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill
, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted), cert. denied
, 459 U.S. 1018, 74 L. Ed.
2d 513 (1982)).
Considered in the context of the entire jury instruction, it
is clear that the trial court's misstatement of the law was an
unintentional slip of the tongue. The trial court apparently
intended to mirror the language of Rule 404(b), but used theincorrect phrase "but to show," rather than the correct phrase "in
order to show." The North Carolina Supreme Court has held that "a
lapsus linguae not called to the attention of the trial court when
made will not constitute prejudicial error when it is apparent from
a contextual reading of the charge that the jury could not have
been misled by the instruction." State v. Baker
, 338 N.C. 526,
565, 451 S.E.2d 574, 597 (1994). Here, the trial court correctly
instructed the jury that the Rule 404(b) evidence "was received
for the purpose of showing that the defendant acted with
malice" (emphasis added). Therefore, in light of the trial court's
previous instruction regarding the only
proper use of the evidence,
the trial court's subsequent misstatement concerning the purposes
for which the jury may
have considered the evidence was immaterial.
When taken as a whole, the jury could not have been misled by the
trial court's charge. See State v. Davis
, 349 N.C. 1, 34-35, 506
S.E.2d 455, 473 (1998), cert. denied
, 526 U.S. 1161, 144 L. Ed. 2d
219 (1999) (finding no plain error where the trial court correctly
instructed the jury on the required mens rea
murder, but also used the improper phrase "lack of diminished
capacity" as opposed to the proper phrase "lack of mental capacity"
when instructing the jury regarding the defendant's defense);
, 338 N.C. at 564-65, 451 S.E.2d at 597 (finding no
prejudicial error where, "[a]fter correctly instructing on the
State's burden of proving each element of [first-degree kidnapping]
beyond a reasonable doubt, the trial court concluded as follows:
'However, if you do not so find, or have a reasonable doubt as toone or more of these things, it would be your duty to return a
verdict of guilty.'"). We find that the trial court's lapsus
did not amount to plain error.
Lastly, Defendant assigns as error the trial court's
instructions to the jury on the charge of felony operation of a
motor vehicle to elude arrest. Defendant contends that the trial
court's instruction did not require a unanimous verdict for
conviction, in violation of N.C. Const. art. I, § 24 ("No person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court."). Defendant did not raise an objection to the
jury instructions at trial, but asks this Court to review the jury
charge for plain error.
North Carolina law prohibits "operat[ion of] a motor vehicle
on a street, highway, or public vehicular area while fleeing or
attempting to elude a law enforcement officer who is in the lawful
performance of his duties." N.C. Gen. Stat. § 20-141.5(a) (2005).
Violation of this section is a Class 1 misdemeanor. Id.
if a jury finds two or more aggravating factors present, violation
of the section is considered a Class H felony. N.C. Gen. Stat. §
20-141.5(b) (2005). The statute lists eight possible aggravating
factors, including: "[s]peeding in excess of 15 miles per hour over
the legal speed limit," "[r]eckless driving,"
leading to an accident causing . . . [p]ersonal injury," and
"[d]riving when the person's drivers license is revoked." N.C.G.S.
§ 20-141.5(b)(1), (3)-(5). The trial court charged the jury asfollows:
[I]f you find from the evidence beyond a
reasonable doubt that . . . the defendant
operated a motor vehicle, on a highway, while
attempting to elude . . . a highway patrolman,
who was in the lawful performance of his
duties, and the defendant knew or had
reasonable grounds to know that [Trooper
Jones] was a highway patrolman, and that two
or more of the following factors were present
(1) Speeding in excess of 15 miles per hour
over the legal speed limit, (2) Reckless
driving, (3) Negligent driving leading to an
accident causing death, (4) Driving while his
driver's license is revoked, it would be your
duty to return a verdict of guilty of felony
operation of a motor vehicle to elude arrest.
Defendant asserts that this instruction did not require the jury to
reach a unanimous agreement regarding which aggravating factors
were present. Each juror found at least two aggravating factors,
but it is not certain whether the jurors were unanimous as to at
least two of the same factors.
In State v. Diaz
, 317 N.C. 545, 346 S.E.2d 488 (1986), the
trial court instructed the jury to return a guilty verdict if it
found that the defendant "knowingly possessed or knowingly
transported marijuana." Id.
at 553, 346 S.E.2d at 494. Noting
that "[s]ubmission of an issue to the jury in the disjunctive is
reversible error if it renders the issue ambiguous and thereby
prevents the jury from reaching a unanimous verdict," id.
Supreme Court held that the jury instruction was fatally defective
because it allowed the jury to convict the defendant of either of
two separate crimes, possessing marijuana or transporting
marijuana, without reaching a unanimous decision as to which crimethe defendant actually committed. Id.
at 554, 346 S.E.2d at 494.
However, our Courts draw an important distinction between Diaz
and cases in which the trial court's disjunctive instruction does
not implicate two separate offenses:
[A] disjunctive instruction, which allows the
jury to find a defendant guilty if he commits
either of two underlying acts, either of which
is in itself a separate offense
, is fatally
ambiguous because it is impossible to
determine whether the jury unanimously found
that the defendant committed one particular
offense. . . . [However,] if the trial court
merely instructs the jury disjunctively as to
various alternative acts which will establish
an element of the offense
, the requirement of
unanimity is satisfied.
State v. Lyons
, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991).
The question of whether the trial court's instruction in the case
falls into either the former or latter category has
already been conclusively answered by this Court. In State v.
, 141 N.C. App. 302, 540 S.E.2d 435 (2000), the defendant
raised an identical argument with regard to N.C.G.S. § 20-141.5.
Finding no error with the trial court's disjunctive jury
instruction, we held that while "many of the enumerated aggravating
factors are in fact separate crimes under various provisions of our
General Statutes, they are not separate offenses as in Diaz
are merely alternate ways of enhancing the punishment for speeding
to elude arrest from a misdemeanor to a Class H felony." Id.
309, 540 S.E.2d at 439.
We are bound by our prior holding in
, see In the Matter of Appeal from Civil Penalty
, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989), and we find no error with the
trial court's instruction to the jury. See also State v. Hartness
,326 N.C. 561, 391 S.E.2d 177 (1990) (distinguishing Diaz
finding no prejudicial error where trial court instructed jury on
the various types of inappropriate sexual conduct that could
constitute an "indecent liberty" for purposes of the offense of
taking indecent liberties with a minor).
Judges STEPHENS and SMITH concur.