State v Ross

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-238 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Forsyth County No. 07 CRS 55743-44 REGINALD ROSS Appeal by Defendant from judgments entered 5 August 2010 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 14 September 2011. Attorney General Roy A. Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State. James N. Freeman, Jr., for Defendant. BEASLEY, Judge. Reginald Ross (Defendant) appeals Stat. § 7A-27(b) from a final judgment. issues on appeal: the trial court pursuant to N.C. Gen. Defendant raises three erred by (1) allowing testimony and expert opinions of an analyst who relied on the analysis of a non-testifying analyst; (2) denying Defendant s motion to dismiss; and (3) charging the jury on the kidnapping -2charge. For the following reasons, we find no prejudicial error. On 7 June 2007, Officer David Honeycutt (Officer Honeycutt) of the Winston-Salem Police Department was dispatched to the Treetop Apartments at about 8:30 p.m. in response to a 911 call placed by Ms. Tierra Shuler (Ms. Shuler). approached observed the apartment, Defendant and he Ms. looked into Shuler. As Officer Honeycutt the Officer open door Honeycutt and then entered the apartment and saw that Defendant had one arm around Ms. Shuler s waist and his other arm draped around her shoulder. Ms. Shuler appeared to be in distress and Officer Honeycutt asked Defendant Subsequently, to release Officer her. Honeycutt Defendant approached repeated his request to release Ms. Shuler. did not comply. Defendant and Ms. Shuler yelled, [h]e s got a gun, he s got a gun, he s got a gun. Officer Honeycutt drew his gun and alerted other officers that Defendant had a gun. Defendant, head. Defendant As Officer Honeycutt backed away from pointed the gun at Officer Honeycutt s As Officer Robert Starling (Officer Starling) entered the doorway of the apartment, he saw Defendant pointing the gun at Officer Honeycutt. Defendant fired at the officers at least twice, and shot Officer Starling. Officer Starling fled the apartment after being wounded, leaving Officer Honeycutt in the apartment with Defendant and Ms. Shuler. As Officer Honeycutt -3backed out of the apartment, he fired at Defendant and both Defendant and Ms. Shuler fell to the ground. After exiting the apartment, Officer Honeycutt repeatedly commanded Defendant to drop the gun and release Ms. Shuler. Defendant refused and stated several times that he was not going back to jail. several officers arrived on the scene, Defendant After eventually released Ms. Shuler and surrendered to law enforcement officers. On 28 April 2008, Defendant was indicted for first-degree kidnapping, attempted murder, assault inflicting serious injury on a law enforcement officer and assault with a firearm on a law enforcement officer. indicted, in two attempted murder, On 14 superseding serious injury on September 2009, indictments, first-degree kidnapping, for Defendant two assault a law enforcement officer, was counts of inflicting assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a firearm on a law enforcement officer. On 5 August 2010, a jury found defendant guilty of all of the charges except the charge of attempted murder of Officer Starling and Defendant noted an appeal on the same day. Defendant argues that the trial court erred by allowing an expert to testify about fired bullets and a revolver recovered at the scene. testimony Defendant contends that the admission of this violated his Sixth Amendment rights under the -4Confrontation Clause. We must first address whether this issue was properly preserved for appellate review. In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or ruling party the motion, stating desired the the specific court to make grounds were not apparent from the context. (a)(1). grounds for if specific the the N.C.R. App. P. 10 The State contends that Defendant did not preserve the constitutional argument because it was not expressly stated by defense counsel at trial. We disagree. Although counsel did not expressly state the constitutional grounds, the specific grounds were apparent from the context. After voir dire defense counsel stated the following: Your Honor, I will lodge an objection simply because he was not the original analyst. I know he s given testimony about an examination that he made; however, it is clear from his testimony that he did not examine the weapons. So [sic] would object to him giving any testimony about the weapons themselves and their trigger pull capacity or anything of that nature. He said -- he did say that he microscopically examined projectiles, but he did not -- and he didn t test fire -- and for that reason, also, we would object to him giving any testimony. I understand he did give testimony about making an examination of the projectiles. . . . . First, I want to object to him testifying at all because he didn t do the test firing. -5Secondly, we d specifically object to him giving any testimony about the trigger pull capacity or anything else about the weapons other than to -- if Your Honor allows him to give testimony about whether he believes that projectiles were fired from either of those two weapons. In response to the defense s objections, the State asserted, I believe the objection is based upon the recent case of Melendez-Diaz. I know Your Honor is aware of the cases, North Carolina cases interpreting Melendez-Diaz and the rulings that, if the substitute analyst, for lack of a better word, has performed independent investigation with regard to the matters, that he or she will be allowed to testify with respect to the scientific investigations made. After the presentation of arguments, the trial court stated, I think there ought to be -- in absence of the jury, this agent conducted an independent analysis. And I understand the Defendant s objection. It s overruled. Considering the context of Defendant s argument, including the State s, as well as the trial court s, understanding of Defendant s objection, we determine that Defendant s basis for objection was constitutional clear as grounds as Defendant addressed objected to Melendez-Diaz in pursuant v. Massachusetts, ___ U.S. ___, 174 L. Ed. 2d 314 (2009)(holding that the violated admission of petitioner's witnesses against him). certificates Sixth Amendment by laboratory right to analysts confront the Because Defendant s basis for objection -6was apparent, we hold that the constitutional issue was properly preserved for appellate review. We now address this issue on its merits. It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated. A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless. State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007) (internal quotation marks and citations omitted). Defendant contends that the trial court committed reversible error by allowing the testimony of ballistics expert, Special Agent Scott Jones (Agent Jones), as to the results of testing performed on the revolver and bullet fragments recovered at the scene because Agent Jones did not personally test the guns or the bullet fragments. The State argues that Agent Jones testimony was constitutionally permissible peer review, performing an independent analysis of the projectiles fired from each weapon and the bullet fragments, and reached his own conclusions. We hold that whether or not Agent Jones testimony was admitted, properly Defendant did error and this assignment is overruled. not suffer prejudicial -7 The Confrontation admission of unavailable Clause testimonial to testify of the evidence and Sixth Amendment bars the declarant accused the unless has had opportunity to cross-examine the declarant. a is prior State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)). In Melendez-Diaz, the United States Supreme Court held that Crawford applied to forensic analysts affidavits because the affidavits were testimonial evidence that were functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination. Melendez-Diaz, __ U.S. at __, 174 L. Ed. 2d at 321 (internal quotation marks and citations omitted). "A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt." N.C. Gen. Stat. § 15A-1443(b) (2009). The State must prove the trial court's error was harmless. Id. of render overwhelming evidence of guilt may "The presence error of constitutional dimension harmless beyond a reasonable doubt." State v. Morgan, 359 N.C. 131, 156, 604 S.E.2d 886, 901 (2004) (internal 1 quotation marks and citation omitted).1 We are aware that our appellate courts have addressed the admission of testimony by analysts who conducted peer review , technical review or some other similar review or analysis subsequent to initial testing of the evidence in question. See State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009), State v. Mobley, 200 N.C. App. 570, 684 -8Notwithstanding the trial court s admission of testing performed by Agent Jones, who did not initially test the guns or bullet fragments, committed there the is overwhelming offenses for which evidence he was that Defendant convicted. Both Officers Honeycutt and Starling and other officers were involved in a standoff with Defendant as he held Ms. Shuler hostage. Defendant shot at the officers at least twice, wounding Officer Starling. It was only after repeated demands that Defendant released Ms. Shuler. Because there is substantial evidence that Defendant committed the aforementioned offenses, Defendant did not suffer prejudicial error. Next, denying Defendant his motion argues to that dismiss the trial because the court State erred in failed to present sufficient evidence of premeditation, deliberation, and intent required for the charge of attempted first-degree murder. We disagree. The standard of review on appeal of the denial of a criminal defendant's motion to dismiss for insufficient evidence S.E.2d 508 (2009), State v. Brewington, __ N.C. App. __, 693 S.E.2d 182 (2010), State v. Craven, __ N.C. App. __, 696 S.E.2d 750 (2010), State v. Williams, __ N.C. App. __, 702 S.E.2d 233 (2010), State v. Garnett, __ N.C. App. __, 706 S.E.2d 280 (2011). We note that, as of the drafting of this opinion, the Supreme Court of North Carolina had granted temporary stays with respect to Brewington, Craven, and Williams. We also note that the Supreme Court of North Carolina recently allowed the State s petition in State v. Brennan, __ N.C. __, 708 S.E.2d 396 (2011) and State v. Brewington, __ N.C. App. __, 693 S.E.2d 182 (2010). It appears that complications in this area of the law will be addressed by the Supreme Court of North Carolina. -9is whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged. State v. Jackson, 189 N.C. App. 747, 753, 659 S.E.2d 73, 77 (2008). that a reasonable conclusion. mind Substantial evidence is evidence might find adequate to support a State v. Hargrave, 198 N.C. App. 579, 588, 680 S.E.2d 254, 261 (2009). In conducting our analysis, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The elements of attempted first-degree murder are (1) a specific intent to kill another person unlawfully; (2) an overt act calculated preparation; to (3) carry the out that existence of intent, going beyond malice, premeditation, mere and deliberation accompanying the act; and (4) a failure to complete the intended killing. State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000); N.C. Gen. Stat. § 14 17 (2009). In the context of attempted first-degree murder, an intent to kill and the existence of malice, premeditation and deliberation may be inferred from the conduct and statements of the defendant before and after the incident, ill-will or previous difficulty between the parties, and evidence regarding the manner of the attempted killing. Id. at 118, 539 S.E.2d at 28. -10Defendant was convicted murder of Officer Honeycutt. of the attempted first-degree The State s evidence showed that Officer Honeycutt backed away from Defendant once he was aware that Defendant was armed. As Officer Honeycutt backed away, Defendant pointed the gun at Officer Honeycutt s head and fired at least twice. Furthermore, Defendant repeatedly stated that he was not going back to jail. light most favorable to the Viewing the evidence in the State, the State presented sufficient evidence of intent, premeditation, and malice. Finally, Defendant contends that the trial court erred in charging the jury that the release of a victim in an area where officers had Defendant outnumbered with their guns drawn was not a safe place. We disagree. N.C. Gen. Stat. § 14-39(b) (2009) states that: [t]here shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony. Defendant correctly asserts that the legislature has not defined safe place and the determination of whether a victim was released to a safe place has been decided on a case-by-case -11basis. See State v. Corbett, 168 N.C. App. 117, 121, 607 S.E.2d 281, 283 (2005). In this case, the trial court gave a jury instruction, in regards to safe place , which quoted language from State v. Heatwole, 333 N.C. 156, 423 S.E.2d. 735 (2005) (See also Corbett, 168 N.C. App. at 121, 607 S.E.2d. at 283). Defendant argues that the facts of this case are distinguishable from Heatwole and Corbett, and the instruction as given represents an impermissible shift of the burden of proof. In Heatwole, our Supreme Court concluded that, releasing a kidnap victim when the kidnapper is aware he is cornered and outnumbered by law enforcement officials is not voluntary and that sending her out into the focal point of their weapons is not a safe place. Heatwole, 333 N.C. at 161, 423 S.E.2d at 738. The Supreme Court determined that the defendant did not voluntarily release the victim. The defendant kidnapped his girlfriend and released her after killing two people and while ten officers with weapons drawn were surrounding the home. In Corbett, our Court rejected the defendant s argument that the jury instruction that included the language innocence. from Heatwole denied him the presumption of Our Court determined that the Heatwole instruction was proper though the defendant released the victim into the line of fire of just one officer. 123, 607 S.E.2d at 284. Corbett, 168 N.C. App. at -12Here, Defendant released Ms. Shuler after firing at officers multiple times with several armed officers outside the door. Defendant knew he was outnumbered and had shot at and wounded a police officer before releasing Ms. Shuler. Accordingly, we find no relevant distinction from Heatwole and Corbett. Moreover, [t]he court's instruction did not conclude [that the victim] was released in an unsafe place. Rather, it provided that should the jury find the circumstances of the instruction as to the release of [the victim] to be in such place, such a release was not in a safe place. At all times it was still upon the jury to find the facts of the circumstances surrounding the release beyond a reasonable doubt. Corbett, 168 N.C. App. at 123, 607 S.E.2d at 284. Therefore, Defendant s final argument is without merit. No prejudicial error. Judges STEPHENS and ERVIN concur. Report per Rule 30(e).

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