Opinion
No. COA13–68.
2013-07-16
STATE of North Carolina v. Tony HARRIS.
Attorney General Roy Cooper, by Special Deputy Attorney General Heather H. Freeman, for the State. Ben G. Irons II, for Defendant.
Appeal by Defendant from judgment entered 2 August 2012 by Judge James F. Ammons, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 5 June 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Heather H. Freeman, for the State. Ben G. Irons II, for Defendant.
DILLON, Judge.
Tony Harris (Defendant) appeals from a judgment entered following a jury verdict convicting him of assault with a deadly weapon inflicting serious injury. On appeal, Defendant challenges the trial court's rulings on a requested jury instruction, objections to alleged hearsay statements, and restitution. After our review of the record, we conclude Defendant had a fair trial, free from prejudicial error. However, we further conclude the trial court erred in ordering Defendant to pay $24,000.00 in restitution.
The evidence of record tends to show the following: In early 2010, Justin Ransom (the victim) and Brandy Harris were in a relationship and living together with Ms. Harris' five children in Johnston County. Ms. Harris and Defendant were formerly married, and Defendant was the father of Ms. Harris' children.
On 26 March 2010, the victim, Ms. Harris and her children, two neighbors—Joseph Vaughn and Jeff Armstrong—and a few other people were at the victim's house. A houseguest answered a knock at the door, and two men were standing outside. The men stepped off the porch and began directing obscenities towards the victim. The victim, Mr. Vaughn and Mr. Armstrong followed the men into the street. At trial, the victim testified, “I followed, which I shouldn't have, but I followed into the street. As soon as we got into the street, that's when [Defendant] stepped out of the woods with a baseball bat.” The victim described the baseball bat as being “metal.” The victim testified that Defendant said that his wife and children were inside and that he “[was] going to get my wife and my children back.” The victim said that he “knew [Defendant][,] and I was looking straight at [Defendant] because I knew what his intentions were.” When asked, “so how positive are you that the defendant swung at you in this case?” the victim responded, “[v]ery positive, one hundred percent.”
A fight ensued between all of the men. During the fight, a man identified by several witnesses as Defendant hit the victim in the head with a baseball bat; and the victim suffered head and back injuries, including a subarachnoid hemorrhage, a concussion, and four scalp lacerations.
Defendant was charged with assault with a deadly weapon inflicting serious injury, and Defendant was tried during the 30 July 2012 session of Johnston County Superior Court, the Honorable James F. Ammons, Jr., presiding. On 2 August 2012, the jury found Defendant guilty of assault with a deadly weapon inflicting serious injury, and the trial court entered a judgment consistent with the jury's verdict, sentencing Defendant to 24 to 38 months incarceration and ordered that he pay $24,000.00 in restitution. From this judgment, Defendant appeals.
I: Hearsay Statements
In Defendant's first and third arguments on appeal, he contends that the trial court erred by allowing hearsay statements to come into evidence through the testimony of the victim and of Mr. Vaughn. We find Defendant's arguments to be without merit.
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.” N.C. Gen.Stat. § 8C–1, Rule 801(c) (2011). “Hearsay is inadmissible unless an evidentiary rule or statute otherwise provides [.]” State v. Phillips, 365 N.C. 103, 131, 711 S.E.2d 122, 143 (2011), cert. denied,––– U.S. ––––, 182 L.Ed.2d 176 (2012).
Defendant must interpose a timely objection to preserve a contested hearsay issue for appellate review under N.C.R.App. P. 10(b)(1). State v. Hazelwood, 187 N.C.App. 94, 100, 652 S.E.2d 63, 67 (2007), cert. denied,363 N.C. 133, 673 S.E.2d 867,cert. denied,558 U.S. 1013, 175 L.Ed.2d 385 (2009). If an objection is properly lodged, “[i]t is well established that the erroneous admission of hearsay, like the erroneous admission of other evidence, is not always so prejudicial as to require a new trial.” State v. Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986).
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 been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.
N.C. Gen.Stat. § 15A–1443(a) (2011).
However, “a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an [argument] where the judicial action questioned is specifically and distinctly contended to amount to plain error.” State v. Walston, 193 N.C.App. 134, 140, 666 S.E.2d 872, 876 (2008) (citing N.C.R.App. P. 10(c)(4)). In such a case, a defendant must allege plain error in his arguments to this Court; otherwise, he waives appellate review of the issues. SeeN.C.R.App. P. 10(a)(4) (2013); State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995), cert. denied,517 U.S. 1123, 134 L.Ed.2d 526 (1996).
In the case sub judice, Defendant argues the trial court erred twice by allowing the admission of hearsay. First, Defendant argues the court erred by allowing Joseph Vaughn to testify that he knew Defendant because Ms. Harris told him that Defendant had a limp. Second, Defendant argues the trial court erred by allowing the victim to testify that Defendant had threatened him when the victim had no personal knowledge of the threat other than what Ms. Harris had told him. We address each argument in turn.
A: Description of Defendant
First, Defendant argues the court erred by allowing Joseph Vaughn to testify that he was able to identify Defendant by his limp. Specifically, Defendant contends Mr. Vaughn's assertion that Defendant had a limp was not based on his personal knowledge but rather was based on Ms. Harris telling him that Defendant had a limp. Defendant takes issue with the following testimony:
Q. And why were you able to identify [Defendant] at the probable cause hearing and yet you were not able to look at a photo lineup for Detective Lee?
A. The man that limped away from the crime scene after [the victim] was struck—I remember somebody limping up the road. He had been described by [Ms. Harris].
MR. JAMES: Objection.
THE COURT: Overruled as to that.
A. Because she told us that.
MR. JAMES: Objection.
THE COURT: Don't tell us anything else she told you.
Q. You knew
A. That Mr. Harris had
MR. JAMES: Objection.
A. —something's wrong with his leg.
THE COURT: Overruled.
A. I don't know when to stop.
Q. All right. So, Mr. Vaughn, let me make sure I understand this. You knew that [Ms. Harris'] husband had
MR. JAMES: Objection, leading.
Q. —something wrong with his leg?
THE COURT: Overruled.
A. Yes.
Q. And you saw the person who had assaulted [the victim] on March 26, 2010 leave the scene with a limp?
A. I seen a black male limping away from the crime scene.
....
Q.... Explain to this jury how you're here today telling them that this defendant assaulted [the victim]?
A. Okay. This is how it started. The guy that was hitting [the victim] with the bat ... started walking up the road. He was limping, a distinctive limp. [Ms. Harris] and I had had a conversation
MR. JAMES: Objection.
THE COURT: Don't tell us what the conversation was.
A. I had heard that
MR. JAMES: Objection.
Q. Wait a minute.
THE COURT: Don't tell us what you heard.
Q. Based on that conversation, what did you know about [Ms. Harris'] husband?
A. That he had some kind of
MR. JAMES: Objection.
THE COURT: Sustained.
Q. What, if anything, did you know about [Defendant], not from what you're telling this jury [Ms. Harris] said? What did you know about [Defendant]?
MR. JAMES: Objection to the form of the question.
THE COURT: Overruled.
A. That he had a distinctive limp.
Defendant argues on appeal that “the Court should have understood that Mr. Vaughn had no basis for his identification other than what [Ms. Harris] had told him[,]” and that all of Mr. Vaughn's testimony “relating to identity was inadmissible hearsay and should have been excluded.” This argument is misplaced. The trial court sustained defense counsel's numerous objections to hearsay testimony concerning what Ms. Harris told Mr. Vaughn about Defendant's limp. The overruled objection that Defendant challenges on appeal, however, concerned testimony by Mr. Vaughn regarding what he knew about Defendant outside of what Ms. Harris told him. Specifically, in response to a question regarding what Mr. Vaughn knew about Defendant, and explicitly not based on what Ms. Harris had told Mr. Vaughn about Defendant, Mr. Vaughn stated that he knew Defendant “had a distinctive limp.” Defendant's only objection to this testimony at trial was to the “form of the question.” Assuming arguendo Mr. Vaughn's answer was hearsay, because Defendant only objected to the form of the question at trial, and because Defendant does not argue plain error on appeal, appellate review of the issue is waived. SeeN.C.R.App. P. 10(a)(4); Frye, 341 N.C. at 496, 461 S.E.2d at 677;Hazelwood, 187 N.C.App. at 100, 652 S.E .2d at 67. Moreover, assuming arguendo Mr. Vaughn's answer was hearsay, we do not believe it prejudiced Defendant's trial, as numerous other witnesses identified Defendant as the perpetrator of the offense. See Ramey, 318 N.C. at 470, 349 S.E.2d at 574. We find this argument meritless.
B: Threat from Defendant
In Defendant's second argument pertaining to hearsay, Defendant contends the trial court erred by allowing the victim to testify that Defendant had threatened him when the victim had no personal knowledge of the threat other than what Ms. Harris had told him. We find this argument without merit.
Defendant specifically challenges the following testimony from the victim on direct examination:
Q. Had you talked with the defendant earlier in the day or had any contact with him whatsoever?
A. Not that day. There had been threats before, but
MR. JAMES: Objection.
THE COURT: Overruled.
A. —nothing had been brought up on it.
Q. When was the last time he had threatened you prior to March 26, 2010?
MR. JAMES: Objection.
THE COURT: Overruled.
A. It was—maybe a little bit after I got out of the hospital. He called and threatened to kill me.
MR. JAMES: Objection.
THE COURT: Overruled. Was this a threat before this happened or after this happened?
THE WITNESS: After.
THE COURT: Okay. That's not what she asked.
Q. I asked before had he threaten you?
A. Oh, no, ma‘am.
Q. But you're describing for the jury that you were threatened by the defendant after the assault?
A. Yes, ma‘am.
THE COURT: Were you threatened by him before the assault?
THE WITNESS: No[.] ...
Q. And how was that threat made, Mr. Ransom, by telephone or in person?
A. By phone call.
On cross-examination, the following was revealed:
Q. And then you say a week or so after this you had a telephone conversation with someone?
A. I don't know exactly how many days after it was that it happened. But yes, [Ms. Harris] did receive a phone call and she told me that it was him threatening me.
MR. JAMES: Objection to anything [Ms. Harris] said.
THE COURT: Is she going to testify?
MS. SANDLING: No, Your Honor.
THE COURT: Sustained.
Q. So you didn't receive a phone call?
A. No, sir.
We agree with Defendant that any testimony from the victim regarding a threat made toward the victim by Defendant during a telephone conversation between Ms. Harris and Defendant was hearsay. However, there was no indication on the face of the State's questions during direct examination that anything but the personal knowledge of the victim regarding the threat was solicited. See State v. Brewington, 80 N.C.App. 42, 51, 341 S.E.2d 82, 88,disc. review denied, 317 N.C. 708, 347 S.E.2d 449 (1986) (stating that “there is nothing on the face of the prosecutor's question to indicate that anything other than a response based on [the witness'] personal knowledge was being sought[,]” and “[f]rom the record, it appears that the trial court interpreted defendant's general objection as being directed to the form of the question, and overruled the objection in the exercise of discretion”). Moreover, even though Defendant later established on cross-examination that the victim did not have personal knowledge of the threats made by Defendant, and that the earlier statements were inadmissible hearsay, Defendant failed to move to strike the testimony. “When the question does not indicate the inadmissibility of the answer, defendant should move to strike as soon as the inadmissibility becomes known. Failure to so move constitutes a waiver.” State v.. Adcock, 310 N.C. 1, 19, 310 S.E.2d 587, 598 (1983). We conclude Defendant waived any argument pertaining to the admissibility of the hearsay statements at issue here because he failed to move to strike the statements. We further note that Defendant neither argues the admission of the statements was plain error, seeN.C. R.App. P. 10(a)(4); Frye, 341 N.C. at 496, 461 S.E.2d at 677, nor does Defendant explain how the admission of the hearsay statements pertaining to an alleged threat from Defendant prejudiced his trial, Ramey, 318 N.C. at 470, 349 S.E.2d at 574.
II: Jury Instruction
In Defendant's second argument on appeal, he contends the trial court erred by denying his request for an instruction that the State must prove beyond a reasonable doubt that he was the perpetrator of the offense. We disagree.
“[W]here a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.” State v. Jones, 337 N.C. 198, 206, 446 S.E.2d 32, 36 (1994) (citation and quotation marks omitted). N.C. Gen.Stat. § 15A–1231(a) (2011), which provides for conferences on jury instructions, states that “any party may tender written instructions[.]” Id. “Requested special instructions, however, should be submitted in writing to the trial judge at or before the jury instruction conference.” State v. Starr, 209 N.C.App. 106, 113, 703 S.E.2d 876, 881,modified on other grounds,365 N.C. 314, 718 S.E.2d 362 (2011). “Where a requested instruction is not submitted in writing ... it is within the discretion of the [trial] court to give or refuse such instruction.” State v. Mewborn, 178 N.C.App. 281, 292, 631 S.E.2d 224, 231,appeal dismissed and disc. review denied,360 N .C. 652, 637 S.E.2d 187 (2006).
In this case, Defendant made an oral request for an identity of the perpetrator instruction, which the trial court denied. Defendant again requested “the instruction on the identity of the perpetrator beyond a reasonable doubt” and noted his exception to the trial court's ruling. The trial court stated, “I note for the record that there were no written requests given. The oral motion was not accompanied by the instruction.” The trial court again denied Defendant's request.
We believe this case is analogous to State v. Penland, 343 N.C. 634, 656, 472 S.E.2d 734, 746 (1996), cert. denied,519 U.S. 1098, 136 L.Ed.2d 725 (1997), in which our Supreme Court reasoned that “because defendant's identity as the perpetrator was not seriously in question,” and because “the trial court instructed that the State ‘must prove ... that the defendant is guilty beyond a reasonable doubt’ ... [a] ny error in the failure to give the requested instruction thus was harmless[.]” Id. at 656,472 S.E.2d at 746–47. In the case sub judice, there was plenary evidence at trial identifying Defendant as the perpetrator of the offense. The victim testified that he was “[v]ery positive, one hundred percent,” that it was Defendant who hit him with a baseball bat. The victim further testified that on the night he was attacked, Defendant approached the house where Ms. Harris and the children were located, stating that he “[was] going to get my wife and my children back.” Renee Lee, who was present in the house that night, stated that “[she] heard one of them say that's my wife and my children in the house and I have every right to be here.” Ms. Lee also stated that “[Defendant] c[a]me out and started chopping like a hatchet at [the victim's] head with a baseball bat.” Mr. Armstrong also testified that it was Defendant who hit the victim with a baseball bat. Moreover, the trial court gave the jury the following instruction: “For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt: First, that the defendant assaulted the victim by intentionally striking him with a baseball bat....” We find this case indistinguishable from Penland and therefore conclude that any error in the failure to give the requested instruction was harmless.
III: Restitution
In Defendant's final argument on appeal, he contends the trial court erred in ordering Defendant to pay $24,000.00 in restitution because the State failed to present any evidence to support the restitution order. The State concedes this argument.
At the sentencing hearing, Defendant failed to object to the order of restitution. However, it is well established that a restitution order may be reviewed on appeal despite no objection to its entry. State v. Shelton, 167 N.C.App. 225, 233, 605 S.E.2d 228, 233 (2004); see alsoN.C. Gen.Stat. § 15A–1446(d)(18) (2011). “The amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (citation and quotation marks omitted). The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered. State v. Buchanan, 108 N.C.App. 338, 423 S.E.2d 819 (1992). In the instant case, the record does not include evidence supporting the prosecutor's statement during sentencing as to the amount of restitution. Consequently, the trial court erred in awarding $24,000.00 in restitution. This portion of the judgment is vacated and remanded.
Based on the foregoing, we believe Defendant had a fair trial, free from prejudicial error. However, we vacate the trial court's restitution order and remand to the trial court for a new hearing on restitution in accordance with this opinion.
NO ERROR, in part; VACATED and REMANDED, in part. Judge BRYANT and Judge STEPHENS concur.
Report per Rule 30(e).