Opinion
No. COA08-427
Filed 7 April 2009 This case not for publication
Appeal by defendant from judgment entered 5 October 2007 by Judge Gregory A. Weeks in Bladen County Superior Court. Heard in the Court of Appeals 13 January 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Douglas W. Corkhill, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for defendant-appellant.
Bladen County Nos. 07CRS50840 07CRS50849.
Randolph Eugene Miller ("defendant") appeals from judgment entered 5 October 2007 by Judge Gregory A. Weeks in Bladen County Superior Court in accordance with jury verdicts finding him guilty of: (1) robbery with a dangerous weapon, (2) assault with a deadly weapon inflicting serious injury, and (3) first degree burglary. The trial court consolidated the charges into one judgment and sentenced defendant to 117 to 150 months imprisonment. After careful review, we find no error at trial or at sentencing.
I. Background
The State's evidence tended to show that in the early morning of 4 April 2007, Bruce Caulk ("Mr. Caulk") was at home alone in Bladenboro, North Carolina, when he heard a knock at the door. Mr. Caulk asked who it was, and he heard a voice respond "Wesley." Upon opening the door, two men entered Mr. Caulk's apartment and hit him over the head with a gun, causing him to bleed. The men demanded pills; took Mr. Caulk's wallet, keys, knife, and a pill bottle; and left. Mr. Caulk identified one of the men as Wesley Carroll ("Carroll"), whom he had known from the time that Carroll was "little"; however, he could not identify the other man. Mr. Caulk telephoned 911 shortly before 2:00 a.m.
Due to his disabilities, which included an amputated foot, Mr. Caulk took Percocet.
At approximately 2:00 a.m., Benjamin Edwards ("Edwards") heard a knock at his door. Standing outside the door, were defendant and Carroll. Edwards stated that the men appeared exhausted, hot, and sweaty. Defendant asked Edwards if he could drive them to David Atkinson's ("Atkinson") house in Dublin and Edwards agreed.
At about 2:30 a.m., Atkinson heard a knock at his door and let defendant and Carroll enter. He observed the two men produce a wallet, a pocket knife, a pill box, and a gun. Defendant told Atkinson that they had robbed a man in Bladenboro and that Carroll had hit him over the head with the gun. After defendant and Carroll had fallen asleep, Atkinson called 911 to report the crime. At approximately 5:00 a.m., officers arrived at Atkinson's apartment and arrested defendant and Carroll. Officers found Mr. Caulk's wallet, pill box, and pocket knife inside the apartment and his I.D. outside in the woods. The wallet and pill box were found on defendant's person.
Later that morning, while being processed following his arrest, defendant gave Officer Kenneth Hester ("Officer Hester") a brief, exculpatory statement. Defendant claimed that he was asleep at Atkinson's apartment when, at around 1:00 a.m., an unidentified person knocked on the door wanting to sell a wallet. Defendant stated that he gave the man a crack rock for the wallet and went back to sleep. According to defendant, the next thing he knew the police were in Atkinson's apartment.
II. Analysis A. "Nodding" Juror
First, defendant argues that the trial court committed plain error by not investigating and/or declaring a mistrial, on its own motion, when it realized one of the jurors had been "nodding off" during trial. Specifically, defendant contends that the trial court violated his sixth amendment right to an impartial and competent jury under the United States Constitution. As the State correctly points out, defendant has not preserved this issue for our review.
The trial court actually stated that one of the jurors had been "nodding."
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon [its] request, objection or motion.
N.C. R. App. P. 10(b)(1). "It is well settled that an error, even one of constitutional magnitude, that [a] defendant does not bring to the trial court's attention is waived and will not be considered on appeal." State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002) (citations omitted), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Though an assertion of plain error permits this Court to consider errors or defects that were not brought to the attention of the trial court, the Supreme Court of North Carolina has clearly stated that plain error analysis only applies to jury instructions and to evidentiary rulings. See, e.g., State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (citations omitted), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
Here, during the morning of the second day of trial, the court took a recess because one of the jurors had been "nodding for at least 15 to 20 minutes." The court indicated that it "couldn't tell whether [the juror] was contemplating or not, but one of the bailiffs . . . handed up a note indicating that she was nodding, and at that point, she clearly was." The court stated: "So I'm putting that on the record in case either counsel wants to be heard." The court further stated:
The purpose of giving the break is to give her an opportunity to try to, I don't know, she may have worked last night, but at some point, we may have to inquire into it, and if you wish that to be done now, let me know. Otherwise, I think we can wait and see what happens.
Before calling for the jury, the court then asked counsel if they had "any matters" to address; defense counsel responded: "Not from the defense." In sum, the trial court specifically provided defendant with an opportunity to object or explore the matter further, and defendant declined. Accordingly, we dismiss this assignment of error.
We note that the Supreme Court of North Carolina has held that "[w]here . . . the error violates [a] defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). However, defendant does not make this specific legal argument in his brief. To the extent that defendant's federal constitutional argument may implicate his state right to trial by a jury of twelve, this case is controlled by our decision in State v. Williams, 33 N.C. App. 397, 398, 235 S.E.2d 86, 87 (holding that where the trial court noticed that one of the jurors had fallen asleep, the court "did not err . . . in failing to order a mistrial without the request or consent of defendant" given that "[a]t trial, defendant did not contend that he was prejudiced and there is nothing in the record to indicate that he was."), disc. review denied, 293 N.C. 258, 237 S.E.2d 540 (1977).
B. Lay Witness Opinion Testimony
Next, defendant argues the trial court committed plain error by allowing Donald Bryan ("Mr. Bryan"), the EMS worker who treated Mr. Caulk on the night of the assault, to give lay opinion testimony regarding Mr. Caulk's injuries because this testimony was neither helpful to the jury in understanding Mr. Bryan's testimony nor in determining a fact in issue and consequently invaded the province of the jury, who had the duty to determine, as a matter of fact, whether Mr. Caulk's injuries were serious. We disagree.
At the outset, we note that in the instant case, the record is clear that Mr. Bryan was not tendered as an expert and testified as a lay witness. In addition, defendant did not object to his testimony at trial; accordingly, we review for plain error.
The plain error rule "allows review of fundamental errors or defects . . . affecting substantial rights, which were not brought to the attention of the trial court." In order to obtain relief under this doctrine, defendant must establish that the omission was error, and that, in light of the record as a whole, the error had a probable impact on the verdict.
State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002) (citation omitted).
"`Whether serious injury has been inflicted must be determined according to the particular facts of each case and is a question which the jury must decide under proper instructions.'" State v. Everhardt, 96 N.C. App. 1, 12, 384 S.E.2d 562, 569 (1989) (citation omitted), affirmed, 326 N.C. 777, 392 S.E.2d 391 (1990). "A jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious." State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991) (citation omitted). "[U]nder Rule 704 of our Rules of Evidence, a lay witness may testify in the form of an opinion, despite the fact that his opinion may embrace an ultimate issue to be decided by the jury." State v. Owen, 130 N.C. App. 505, 515, 503 S.E.2d 426, 432 (citation omitted), appeal dismissed and disc. review denied, 349 N.C. 372, 525 S.E.2d 188 (1998). However, the admissibility of a lay witness's opinion testimony is qualified by N.C. R. Evid. 701, which provides:
If [a] witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Under this rule, "[c]ommon inferences derived from the appearance, condition, or mental or physical state of persons . . . are proper subjects of opinion testimony by non-experts." State v. Hedgepeth, 350 N.C. 776, 791, 517 S.E.2d 605, 614 (1999) (citation omitted), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000).
[Our courts have] long held that a witness may state the "instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time." Such statements are usually referred to as shorthand statements of facts.
State. v. McVay, 174 N.C. App. 335, 339, 620 S.E.2d 883, 886 (2005) (citations omitted; alteration in original).
At trial, Mr. Bryan stated that he possessed thirty years of experience working in the EMS business as well as state and national paramedic certifications. When he arrived at Mr. Caulk's home to administer medical care, he observed "a two inch laceration on the top of [Mr. Caulk's] head" and "scratches [on] his arms." In addition, he testified that Mr. Caulk was extremely agitated. When asked to describe the wounds and any concerns he had with them, Mr. Bryan responded:
The laceration to the top of the head and him saying that he had been hit with an object. It's our consensus that anytime you have a head injury of any description, it can be major.
It may not look that way, but when you've been hit with an object, we are taught to immobilize those patients and transport them to the hospital, because we, you know, naturally, we can't tell if there's a problem, but we always treat [it] like there is.
He further testified that it was difficult to obtain Mr. Caulk's consent to go to the hospital, but that because of "the head injury, [he] did everything [he] could to talk [Mr. Caulk] into going" to the hospital, and Mr. Caulk ultimately consented. Finally, when asked if he considered whether the "injuries might [have] be[en] life-threatening[,]" Mr. Bryan responded: "I considered they could be serious, yes." [T. 301]
Contrary to defendant's assertion, we do not believe that Mr. Bryan offered a mere conclusion that Mr. Caulk's injuries were "serious" in a legal sense. Rather, we believe that his testimony amounted to nothing more than shorthand statements of fact based on his knowledge and observations. As such, Mr. Bryan's statements that "anytime you have a head injury of any description, it can be major" and that he "considered [the injuries] could be serious," explain his perceptions and the impact of those perceptions on his actions, particularly given Mr. Caulk's attempts to refuse to consent to hospitalization. Further, given that hospitalization is a relevant and important factor for the jury to consider in determining whether an injury is serious, we believe this testimony, which underscores why Mr. Bryan remained steadfast in seeking Mr. Caulk's consent for hospitalization, was both helpful to the jury in terms of providing a clear understanding of Mr. Bryan's testimony and in determining a fact in issue. In sum, because we conclude that the admission of Mr. Bryan's testimony was not error, let alone plain error, we overrule this assignment of error.
C. Purported Testimony on Constitutional Right to Remain Silent
Next, defendant argues that the trial court erred by not striking and/or by not giving a limiting instruction to the jury after purportedly allowing Officer Hester to testify regarding defendant exercising his state and federal constitutional right to remain silent. Upon careful consideration of the record, we find this argument to be without merit.
"The law is clear that a defendant cannot be penalized for exercising her constitutional right to remain silent." State v. Jennings, 333 N.C. 579, 604, 430 S.E.2d 188, 199 (citations omitted), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993).
[U]nder article I, section 23 of the Constitution of North Carolina as well as the Fifth Amendment to the Constitution of the United States made applicable to the states by the Fourteenth Amendment[, a defendant has the right] to remain silent and "any comment upon the exercise of this right, nothing else appearing, [is] impermissible."
State v. Hoyle, 325 N.C. 232, 237, 382 S.E.2d 752, 754 (1989) citations omitted). Here, however, the State argues that the trial court correctly concluded that defendant opened the door on cross-examination and that the State could introduce Officer Hester's testimony on re-direct. As discussed infra, we agree. While "[t]he law is clear that a defendant cannot be penalized for exercising . . . [his] constitutional right to remain silent," it"is equally clear, however, that `a defendant is not prejudiced . . . by error resulting from his own conduct.'" Jennings, 333 N.C. at 604, 430 S.E.2d at 199-200 (citations omitted).
During defense counsel's cross-examination of Officer Hester the following exchange occurred:
[DEFENSE COUNSEL:] Since [defendant] . . . waived his right to an attorney and gave you a statement when you brought him down and he was arrested, did you go back and try to talk with him again to find out anything about his view of [his] whereabouts that night?
[OFFICER HESTER:] Could you rephrase that, ma'am; I'm sorry.
[DEFENSE COUNSEL:] Did you come back later to talk to [defendant] about earlier events of the evening before he was at David Atkinson's house?
[OFFICER HESTER:] No, ma'am.
Both prior to and following this inquiry, defense counsel asked questions which implied that Officer Hester was deficient in terms of how he handled the investigation.
On re-direct, the following exchange occurred:
[THE STATE:] Sir, when you were talking to [defendant] down at the magistrate's office in the early morning hours of April the 4th and you asked him some questions, that's what I want to draw your attention to.
Who did you, I know you indicated previously that he told you some information. Once he finished telling you this information, did you ask any more questions of him?
[OFFICER HESTER:] I was going to, but that's all he wanted to tell me.
[THE STATE:] What did he say to you?
[OFFICER HESTER:] He told me that's all he had to say.
[THE STATE:] Now, when someone tells you that's all they want to say to you, what is it that you do?
[OFFICER HESTER:] I stopped asking him any questions at that time —
[DEFENSE COUNSEL]: I think I should be objecting, but —
THE COURT: Yes ma'am. [Members of the jury], bear with me for just a moment. If you folks, first of all will recall my instruction that you're not to worry or speculate about what takes place in the courtroom in your absence. If you'll step to the jury room. . . . (Jurors exit the courtroom.)
In the absence of the jury, the trial court conducted an examination into whether or not the State had impermissibly commented on defendant's invocation of his constitutional right to remain silent. The State argued that defense counsel opened the door on cross-examination by stating that defendant had given Officer Hester a statement subsequent to waiving his right to an attorney and by asking Officer Hester if he had gone back to ask defendant additional questions in light of defendant's statement. The Court stated to defense counsel:
Well, you did ask him whether he went back and asked your client any additional questions, and having asked that question, his answer being, no, I did not, the State's position is, Judge, we're entitled to explain that, because otherwise, the defendant has the argument that [Officer] Hester didn't do his job.
Mr. Hester came in possession of information that logically and reasonably should have caused him to go back to [defendant], in fairness, and ask him additional questions, and the reason he didn't do it was because your client had said, I don't have anything else to say. So the State is hamstrung, because their position is, if we can't get any explanation as to why he didn't go back, then it's unfair to give the defendant the argument that he did not go back.
Ultimately, in response to the court's question as to whether she opened the door by asking Officer Hester whether he went back to ask her client additional questions, defense counsel responded: "I guess I did, and I don't know that I have a problem with that."
Shortly thereafter, the court broke for an end-of-the-day recess. The next morning, again outside the presence of the jury, the trial court found that the aforementioned questions that defense counsel had posed to Officer Hester on cross-examination, "opened the door to an explanation by the State as to why [Officer Hester] did not go back or the implication of rights[,]" and overruled defendant's objection. Before bringing the jury back into the courtroom, the court informed the State that it would sustain any objection to testimony going beyond, "I didn't go back because he said he didn't want to talk to me." Before the jury, the State asked:
Q. Officer Hester, why didn't you go back and ask the defendant anymore [sic] questions?
[OFFICER HESTER:] Because he had told me that he did not have anything else to say to me about this incident.
In sum, upon a thorough review of the record, we conclude that the trial court did not err by concluding that defendant opened the door to Officer Hester's testimony on cross-examination and by allowing the jury to consider his aforementioned testimony for the purpose of allowing Officer Hester to explain why he did not ask defendant any further questions during his investigation of the case. While defendant argues that the court should have given a limiting instruction, we note that even if a defendant makes a general objection to the admissibility of evidence, "[t]he admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions." State v. Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988). Here, defendant did not request a limiting instruction from the trial court. Accordingly, we overrule this assignment of error.
D. Sentencing
Finally, defendant argues that the trial court violated his state and federal constitutional rights to trial by jury because the sentence the court chose to impose was designed to punish him for rejecting a plea bargain and electing to proceed to trial. Accordingly, he contends that he is entitled to a new sentencing hearing. As discussed infra, we disagree.
A sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive. If the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of defendant's rights.
State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1997) (citation omitted). Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.
State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990). "A criminal defendant may not be punished at sentencing for exercising . . . [his] constitutional right to trial by jury." Id. (citation omitted).
Here, prior to trial, defendant indicated that he wanted to enter a guilty plea based on an agreement he had with the State to consolidate his charges for sentencing. In addition, defendant had a separate agreement with the trial court to give truthful testimony against his co-defendant, Carroll, in exchange for being sentenced in the mitigated range. Before the court could record defendant's plea, he informed the court that he regretted entering the guilty plea. Consequently, the court ordered the plea stricken, and trial immediately ensued. Defendant also did not testify against Carroll.
On appeal, defendant contends that he reconsidered his plea because he disagreed with the factual basis provided by the State, particularly that the State exaggerated the extent of Mr. Caulk's injuries.
At the sentencing hearing, defense counsel asked the trial court to sentence defendant at the lower end of the presumptive range. The State asked the trial court to give defendant three consecutive sentences and asserted that he should be sentenced at the higher end of the presumptive range. In support, the State argued that defendant and Carroll targeted Mr. Caulk because he was suffering from a medical condition that required medication and that rendered him very vulnerable, including the fact that he only had one foot. Shortly thereafter, defense counsel asked for permission to address the court and stated: "I would ask, Your Honor, that you would consider consolidating the sentences and not punish the defendant for choosing to go to trial." The Court responded: "I don't punish folks for exercising their constitutional right, ma'am" and proceeded to sentence defendant.
The Court declined to impose consecutive sentences and elected to consolidate the sentences for purposes of judgment. The court decided that it was "appropriate to impose the highest possible sentence . . . upon . . . consolidation" and sentenced defendant to 117 to 150 months imprisonment, which was within the presumptive range. The Court further stated:
the bottom line, Mr. Miller, is that another human being was viciously injured, albeit by someone else, that other person was someone with whom you were acting in concert, in total indifference to the rights and the safety of Mr. Caulk. And anyone who treats another human being that way ought to expect the kind of sentence that I've imposed in your case.
Afterwards, in the presence of the jury, the court stated:
Let me also inform you [the jury] of one point. I believe it was Tuesday morning when you folks were asked to come in and you were kept out for an inordinate period of time. A plea offer had been made to the defendant in this case.
Where the defendant would have been looking at, by virtue of a plea offer and a pre-trial conference with the Court, about half the sentence he's now got. He elected to go to trial, which is his right, and I don't punish folks for exercising their constitutional right, but as I told [defendant] at the time in question, if you want to listen to the music, you've got to put money in the juke box. You heard the music, now you've got to pay the price. Do you understand me, sir?
When viewed in context, we do not believe the court's remarks in this case indicate an improper motivation. Here, the trial court consolidated the sentences per defendant's request. The Court also sentenced him in the presumptive range. Because defendant did not testify against Carroll, the court was not bound by the agreement to sentence defendant in the mitigated range. Furthermore, the court's aforementioned remarks regarding defendant's rejection of the plea offer, his sentence, and the "juke box" comment occurred following the court's pronouncement of defendant's sentence and were made in the context of explaining to the jury members why they had spent so much time outside of the jury box prior to trial despite having been called for service. However, we do recognize that the court directed part of this comment to defendant and that the language of said comment arguably gives rise to an appearance that improper factors were considered at sentencing here. While we do not believe that the court based its sentencing decision on the improper factors of defendant's rejection of the plea offers and his election to proceed to trial, we caution trial judges to "take care to avoid using language that could give rise to an appearance that improper factors have played a role in the judge's decision-making process even when they have not." State v. Tice, ___ N.C. App. ___, ___, 664 S.E.2d 368, 375 (2008).
III. Conclusion
In sum, after careful review of defendant's arguments, we find no error at trial or at sentencing.
No error.
Judges WYNN and ERVIN concur.
Report per Rule 30(e).