State v Foster
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NO. COA14-187 NORTH CAROLINA COURT OF APPEALS Filed: 7 October 2014 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 11 CRS 221675 78 JAMES E. FOSTER Appeal by defendant from judgment entered 12 August 2013 by Judge Anna Mills Wagoner in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 August 2014. Attorney General Roy Cooper, by Special General Joseph E. Herrin, for the State. Deputy Attorney Jarvis John Edgerton, IV, for defendant-appellant. BRYANT, Judge. Where our review is not frustrated, defendant cannot establish that he was prejudiced by the trial court s failure to reconstruct arguments made during unrecorded bench conferences. Accordingly, we find no prejudicial error in defendant s trial. On 23 May 2011, a Mecklenburg County grand jury indicted defendant on two counts of assault with a deadly weapon with intent to kill inflicting serious injury and two assault with a deadly weapon with intent to kill. counts of A trial -2commenced on 5 August 2013, in Mecklenburg County Superior Court, the Honorable Anna Mills Wagoner, Judge presiding. Evidence at trial tended to show that at 2:36 a.m. on 8 May 2011, Charlotte-Mecklenburg Police Department received a 9-1-1 call from 1616 Lynford Drive. Upon arrival, the reporting police officer observed medical personnel outside the residence treating a young male in severe pain. Inside the residence, an adult female was also being attended to by medical personnel. The woman s name was Robin Lewis and the young man was her son, Quinton.1 While paramedics worked, Lewis stated to the officer that she had been shot by James Foster, defendant. Later that morning, the Charlotte-Mecklenburg Police Department received a 9-1-1 call from 5305 Lyrica Lane informing them that defendant wanted to turn himself in. Lewis later testified at trial that she had been in a dating relationship with defendant and that the two had lived together for ten Quinton, another months. son, Lewis and defendant. and Lewis two had four daughters who children a son, also with lived On the evening of 7 May 2011, Lewis and defendant had an argument that escalated until defendant struck Lewis in the face. 1 Defendant left the home. When he returned, A pseudonym has been used to protect the identity of the minor. -3Lewis testified that defendant was intoxicated to the point he vomited on the floor and passed out. Lewis a licensed practical nurse became concerned when defendant began sweating profusely. Defendant was a diabetic, and there was a risk defendant could slip into a diabetic coma. defendant s body temperature. for two and a half hours. Lewis applied ice cool Defendant remained unconscious When defendant awoke, everyone in the residence was awake. A. It seems like everything just broke loose. When he first woke up he jumped up saying where's his wallet, where's his keys, somebody took his money, can't find this. . . . [H]e started blaming me. . . . And I was, like, here's your stuff right here. Q. Where was it? A. Right there on my bed. . . . And he continued to -- I started continuing the conversation about you have to leave. Q. And how did that go? A. He said he'd leave and he started grabbing his things, grabbing those steri-lite totes out of the closet, taking them down the steps one by one. . . . . . . to -4Q. How was -- what was his response about moving out? Did he become agitated or angry? A. He became angry. While defendant moved his things out, Lewis and her children gathered on the landing at the top of the stairs leading from the first to second floor. stairs. Lewis testified defendant had a gun. Defendant was at the bottom of the that at some point she saw that While she was trying to push her children back, she heard a lot of shots, and she felt two sharp pains. Defendant then left the residence, and one of Lewis daughters called 9-1-1. A handgun was later found on the floor near where defendant had been standing. Quinton suffered from two gunshot wounds: one to his intestines and another to his leg. Lewis also suffered two gunshot wounds to her pelvic region. At the close of the evidence, the jury found defendant guilty of two counts of assault with a deadly weapon with the intent assault to kill with inflicting a deadly serious weapon. injury The and trial two court counts of entered a consolidated judgment in accordance with the jury verdicts and sentenced defendant to an active term of 69 to Defendant appeals. __________________________________ 92 months. -5On appeal, prejudicial defendant error when bench conferences. argues it the conducted trial court multiple committed off-the-record Specifically, defendant contends that the failure to record bench conferences amounts to a constitutional violation warranting a new trial. We disagree. A violation Constitution of of the the United defendant's States is rights prejudicial under the 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. N.C. Gen. Stat. § 15A-1443(b) (2013). Here, defendant has couched his contention that the trial court failed to record bench conferences as a constitutional due process violation; however, support for this contention. defendant fails to provide any Moreover, the record does not reflect that defendant raised his constitutional argument before the trial court. See State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) ( It is well settled that constitutional matters that are not raised and passed upon at trial will not be reviewed for the first time on appeal. ). Yet despite this initial contention, we note that in his argument defendant cites -6as his primary authority our Supreme Court s opinion in State v. Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992). In Pittman, the defendant moved for a complete recordation of all proceedings including bench conferences. held unrecorded bench conferences. charged that amounted to the a failure to constitutional The trial court On appeal, the defendant record the violation. bench Our conferences Supreme Court analyzed the issue against General Statutes, section 15A-1241. Notably, in the instant case, defendant does not provide any argument that a constitutional violation occurred at trial; therefore, we review only for possible statutory violation. Pursuant to General Statutes, section 15A-1241, [t]he trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except: (1) Selection cases; of the jury in noncapital (2) Opening statements and final arguments of counsel to the jury; and (3) Arguments law. of counsel N.C. Gen. Stat. § 15A-1241(a) (2013). on questions of In State v. Cummings, our Supreme Court stated that it [did] not believe the enactment of this statute by the legislature in 1977 was intended to change -7the time-honored practice of off-the-record bench conferences between trial judges and attorneys. S.E.2d 692, 698 (1992). The 332 N.C. 487, 498, 422 phrase in subsection (a), statements from the bench[,] does not include private bench conferences between trial judges and attorneys. 422 S.E.2d at 697. subject matter of Id. at 497, If, however, a party requests that the a private bench conference be put on the record for appellate review, section 15A 1241(c) requires the trial judge to reconstruct the matter discussed as accurately as possible. State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (citation omitted); see also N.C. Gen. Stat. § 15A-1241(c) ( When a party makes an objection to unrecorded statements or other conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible, the matter to which objection was made. ). In Pittman, the defendant made a pre-trial motion for complete recordation of all proceedings, specifically including bench conferences. See Pittman, 332 N.C. at 250, 420 S.E.2d at 440. Court Our Supreme held that the trial court, having allowed defendant's motion for complete recordation, should have required recordation of all conferences and its failure to do so -8constituted error. We must now determine whether defendant was prejudiced by this error. After reviewing what Id. at 250, 420 S.E.2d at 440. occurred prior to and after the bench conferences, the Supreme Court determined that [b]ased on the record facts and defendant's failure to specifically allege how he was prejudiced by the lack of complete recordation, we hold that the trial court's failure to require complete recordation was harmless beyond a reasonable doubt. Id. at 252, 420 S.E.2d at 441. Here, defendant filed a pretrial motion to have the Court Reporter record all phases of the proceedings . . . including pre-trial hearings, voir dire, motions, opening statements, and closing arguments. The trial court granted the motion from the bench prior to the commencement of the jury selection. [Prosecutor]: Your Honor, I believe [defense counsel] also has a motion for complete recordation. Obviously we're not opposed to that. THE COURT: I'll allow the motion. That's for jury selection and everything; is that right? [Defense counsel]: Yes, Your Honor. . . . THE COURT: . . . [T]he Court will allow the motion for complete recordation without objection. -9On appeal, defendant lists seventeen instances in which the trial court conducted unrecorded bench conferences and states that each unrecorded conference was a violation of the trial court s order. However, defendant specifically challenges only two unrecorded bench conferences. the two whether bench conferences defendant suffered Therefore, we focus only on defendant prejudice discusses from the to determine trial court s failure to record or reconstruct them.2 In his first challenge, defendant contends he was prejudiced by the lack of any memorialization of the arguments made at a bench conference during the testimony of Detective Bryan Crum. Division, Detective homicide, Crum assigned of the to the Violent Charlotte-Mecklenburg Crimes Police Department met victim Robin Lewis at Carolinas Medical Center the morning she was shot. During the State s examination of Detective Crum, the following exchange occurred: Q. A. 2 Did you make contact with Robin Lewis at the hospital? I did. She was in one of the bays in the emergency department. After she was initially taken care of or settled down with the medical staff, I went to speak with her. Of the remaining fifteen instances, five occurred during jury selection and ten during trial. -10Q. And what did she tell you? A. She told me that basically that something had happened earlier in the night, that a person that she lived with -- and I took a statement from her, -- said that someone had come home and -- [Defense counsel]: Objection, asked to be heard. Your Honor, THE COURT: Sustained. [Prosecutor]: Your Honor, may we approach? [Defense counsel]: Your Honor, I would ask to be heard on the record since we have -THE COURT: Just come up afterward we'll do that. (WHEREUPON, the Court, and [defense counsel] record. Afterward, the continued.) here now and [both prosecutors], conferred off the State s examination Q. Did you have a chance to observe Robin Lewis physically, what she looked like once you spoke with her? A. I did. Q. And what if anything did with regards to any injury? Here, the trial court s failure you notice to reconstruct the substance of the bench conference for the record was a violation of section 15A 1241(c). party makes an objection See N.C.G.S. ' 15A-1241(c) ( When a to unrecorded statements or other -11conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible, the matter to which objection was made. ); see also Blakeney, 352 N.C. at 307, 531 S.E.2d at 814. However, on this record as otherwise recorded, we discern no prejudice in the trial court s failure to reconstruct the substance of the bench conference for the record. The transcript reflects that the trial court sustained defendant s objection to the prosecutor s line of questioning. Following the bench conference, the trial court did not amend its ruling and defendant s objection remained sustained. When the prosecutor s examination resumed, Detective Crum was questioned regarding his personal observations of the victim Robin Lewis rather than her statements to him. From this context, it appears defendant s objection was made on hearsay grounds, and there is no indication that the parties at the bench conference discussed any matter other prosecutor s examination. than the hearsay nature of the Therefore, defendant s argument that appellate review was frustrated by the lack of recordation or reconstruction is without merit. -12Defendant also asserts that he was prejudiced by the lack of recordation during a bench conference held during defendant s cross-examination of Robin Lewis. Q. Well, your blood high, wasn't it? alcohol level was A. I don't know. Q. Have you been allowed to see a copy of your medical report? A. No, ma'am. Q. If I showed you a copy of your medical report would it help refresh your recollection about what your level of intoxication was? A. You can show it to me, but I know what my level of intoxication is. I was not intoxicated. . . . [Prosecutor]: heard. Your Honor, I would ask to be THE COURT: All right, come up here. (WHEREUPON, the Court, [both prosecutors, and defense counsel] conferred off the record.) THE COURT: I'll sustain your objection. Rephrase your question. Q. Ms. Lewis, I'm going to ask you in terms of how much you had to drink that night, you're aware that the hospital took your blood; correct? A. Yes, ma'am. -13Defendant conference contends cannot be that the ascertained substance from the of the context bench of the examination and as such, appellate review is frustrated to his prejudice. Again, we disagree. Defendant attempted to present Lewis with her medical report from the hospital prepared on the night of her shooting. Specifically, defendant asked, If I showed you a copy of your medical report would it help refresh your recollection about what your level of intoxication was? Lewis responded, I know what my level of intoxication [was]. The prosecutor then asked to be heard, and during the bench conference, apparently, lodged an objection. While the exact content of the conference is unclear, it is quite apparent that the document defendant wished the witness to examine was not needed to refresh her recollection and, therefore, examination material. would not be proper cross- See N.C. Gen. Stat. ' 8C-1, Rule 803(5) (2013) ( Recorded Recollection ). A recorded recollection, as defined by our Rules of Evidence, is [a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable [her] to testify fully and accurately[.] Under present Id. ' 8C-1, Rule 803(5). recollection refreshed, the -14witness' memory is refreshed or jogged through the employment of a writing, diagram, smell or even touch, and [she] testifies from [her] memory so refreshed. The evidence presented at trial comes from the witness' memory, not from the aid upon which the witness relies[.] State v. Ysut Mlo, 335 N.C. 353, 367, 440 S.E.2d 98, 104 (1994) (citations and quotations omitted). After objection question. the on conference, the record the and trial had court sustained the defendant re-phrase the Robin Lewis then testified unequivocally, I know what my level of intoxication [was]. I was not intoxicated. Lewis did not indicate Therefore, presentation appropriate as that either recollection refreshed. of past her the memory was medical recollection insufficient. report recorded or the trial present Given the context, our review of the trial court s ruling is not frustrated. in not See N.C.G.S. ' 8C-1, Rule 803(5); Ysut Mlo, 335 N.C. at 367, 440 S.E.2d at 104. error was court s ruling that prosecutor s objection to an improper question. defendant s arguments are overruled. No prejudicial error. Chief Judge McGEE and Judge STROUD concur. We see no sustained the Accordingly,
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