Opinion
No. COA11–832.
2012-04-17
STATE of North Carolina v. William Daniel THOMAS.
Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Appeal by defendant from judgment entered 17 December 2010 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 December 2011. Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
CALABRIA, Judge.
William Daniel Thomas (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of second-degree murder. We find no error.
I. Background
On 4 July 2008, defendant and his girlfriend attended a party at the home of Bobby Fluitt (“Fluitt”) and Jackie Fluitt on Georgetown Drive in Charlotte, North Carolina. William Smith (“Junior”), defendant's son, and his fiancé, Tameka Fluitt (“Tameka”), also attended the party. During the celebration, Tameka argued with a neighbor, Latisha Nelson (“Nelson”). The initial argument ended, then started again and others became involved. Around 10:30 p.m., while taking a swing at someone else, Junior hit Nelson. As a result, law enforcement was contacted. However, the officers left shortly after they arrived, because they believed that Junior left the party.
Calvin Thompson (“Thompson”), the Fluitt's next door neighbor and Nelson's boyfriend, arrived home as the officers were leaving. When Nelson told Thompson that Junior had struck her, Thompson confronted Junior. Junior was standing by his car with the door ajar when Thompson approached him. Thompson pinned Junior in the “V” of his car door and started beating and choking him. Both Fluitt and defendant unsuccessfully attempted to separate Thompson and Junior. After two or three minutes, while Thompson continued hitting Junior, defendant shot a gun into the group four times. Three of the shots hit Thompson, and one hit Fluitt.
After the shooting, defendant left Georgetown Drive with his girlfriend and his girlfriend's brother. Subsequently, officers returned to Georgetown Drive, along with Emergency Medical Services. Thompson was transported to the hospital where he was pronounced dead.
The next morning, Detective Michael Burke (“Detective Burke”), a homicide detective with the Charlotte–Mecklenburg Police Department (“CMPD”), along with other officers went to defendant's home and brought him to CMPD for questioning. At that time, defendant was not under arrest and consented to answer their questions. After Detective Burke and his supervisor questioned defendant for “a pretty good amount of time[,]” Detective Burke informed defendant that he was no longer free to leave and placed him under arrest for the shooting. Eventually, defendant disclosed the area where they could locate the gun, and with defendant's help, Detective Burke recovered the gun.
Defendant was indicted for first-degree murder. The trial began 6 December 2010 in Mecklenburg County Superior Court. The trial court instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, and defense of others. The jury returned a verdict finding defendant guilty of second-degree murder. On 17 December 2010, the trial court sentenced defendant to a minimum of 176 and a maximum of 221 months in the North Carolina Department of Correction. Defendant appeals.
Initially we note that defendant alleged constitutional violations; however, he failed to argue any constitutional issues at trial. It has been “well-established that constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” State v. Moore, 185 N.C.App. 257, 265, 648 S.E.2d 288, 294 (2007) (internal quotations, brackets and citation omitted). Therefore, defendant failed to preserve constitutional arguments for appeal but since he properly objected to and argued the issues on other bases at trial, he has preserved them for appeal.
II. Cross–Examination
Defendant alleges the trial court violated his constitutional right to confront witnesses against him and his right to a fair trial by prohibiting him from cross-examining witnesses. As noted above, defendant has failed to preserve any constitutional arguments, but he also argues that the trial court erred by its failure to allow him to cross-examine a witness regarding a prior conviction, where this should have been permitted under N.C. Gen.Stat. § 8C–1, Rule 609(e) and to cross-examine a witness about a redacted portion of defendant's statement to law enforcement.
“To receive a new trial based upon a violation of the Rules of Evidence, a defendant must show that the trial court erred and that there is a ‘reasonable possibility’ that without the error ‘a different result would have been reached at the trial.’ “ State v. Ray, 364 N.C. 272, 278, 697 S.E.2d 319, 322 (2010) (quoting N.C. Gen.Stat. § 15A–1443(a) (2009)). To prevail on appeal, a defendant “must show that he was prejudiced by the [trial court's] error.” Id. (quoting State v. Mason, 317 N.C. 283, 291, 345 S.E.2d 195, 200 (1986)). A. Impeachment Regarding A Prior Conviction
Defendant contends that the trial court erred when it did not allow him to impeach the State's witness, Anthony Gause (“Gause”), regarding a prior conviction for robbery. We disagree.
In general, “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony ... shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.” N.C. Gen.Stat. § 8C–1, Rule 609(a) (2011). However,
[e]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
N.C. Gen.Stat. § 8C–1, Rule 609(b) (2011). Therefore, if the court finds that the probative value substantially outweighs the prejudicial effect, a conviction “that is more than ten years old may be admissible....” State v. Shelly, 176 N.C.App. 575, 578, 627 S.E.2d 287, 292 (2006). “The trial court's ultimate determination is reversible only for a manifest abuse of discretion.” Id.
In the instant case, Gause, a neighbor who was present at the party, testified about the events surrounding the shooting. On cross-examination, defendant attempted to impeach Gause with a 1992 robbery conviction. The State objected and made a motion to strike Gause's testimony regarding the conviction on the grounds that the conviction was more than 10 years old. The trial court granted the motion to strike and instructed the jury to not consider defendant's response “as it is not proper for your consideration.” Later, defendant also asked Gause whether his parole was revoked in 2001. The trial court sustained the State's objection to this question. After a discussion, the State conceded that the release date was a proper question to ask on cross-examination. However, the State maintained its objection to form, claiming that defendant incorrectly asked the question. Defendant requested a corrective instruction to the jury that counsel is allowed to question a witness regarding convictions if the witness was either convicted or released from custody in the last 10 years. Defendant also wanted the jury to know “that counsel's question was not improper, just so the jury doesn't hold that against my client.” The trial court refused to give the requested instruction.
Even assuming, arguendo, that the trial court's exclusion of Gause's prior conviction was error, defendant failed to show that the jury would have reached a different result. Gause testified that he was intoxicated and smoked marijuana on the night of the shooting. Gause also testified that he heard some arguing and sometime later heard about three or four gunshots, but said he could not really see anything because it was very dark. Due to a storm, the power was out on the block of Georgetown Drive when the shooting occurred. Most importantly, defendant confessed to shooting Thompson. While defendant is correct that the jury was deadlocked for some period of time, he failed to show the prejudicial effect of the trial court's exclusion of Gause's conviction or how impeaching Gause would have tipped the jury in his favor. This argument is overruled. B. Redacted Portions of Interview
Defendant alleges the trial court erred by redacting a portion of his interview with Detective Burke and his supervisor, and refusing to allow defendant to cross-examine Detective Burke about the redacted portion of the interview. We disagree.
The Rule of Completeness states that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” N.C. Gen.Stat. § 8C–1, Rule 106 (2011).
When the State offers into evidence a part of a confession the accused may require the whole confession to be admitted. Thus, when the State introduces part of a statement made by a defendant, the defendant is then entitled to have everything brought out that was said by him at the time the statement was made to enable him to take whatever advantage the statement introduced may afford him.
State v. Weeks, 322 N.C. 152, 167, 367 S.E.2d 895, 904 (1988)(internal citation omitted). “Rule 106 does not require introduction of additional portions of the statement or another statement that are neither explanatory of nor relevant to the passages that have been admitted.” State v. Thompson, 332 N.C. 204, 220, 420 S.E.2d 395, 404 (1992).
In the instant case, defendant's interview with Detective Burke and his supervisor was 78 pages in its entirety. Prior to Detective Burke's direct examination, the parties conducted a voir dire examination regarding the interview. As a result, the trial court redacted, over defendant's objection, several portions of Detective Burke's statements. Defendant contends that one of Detective Burke's redacted statements should not have been removed, because it violated the Rule of Completeness and provided evidence that the investigating officer thought defendant's actions were not intentional which would have been favorable to defendant's theory of the case. During voir dire, the State sought to exclude the following statement Detective Burke made during the interview:
[T]he prosecutor reads through this case, they're not going to say that [defendant] just walked up to the man just for the heck of it and shot him, they're not going to see that; that's not the story being told not by you and not by anybody else.
After voir dire, the trial court redacted the initial portion of Burke's last statement, “the prosecutor reads through this case, they're not going to say that [defendant] just walked up to the man just for the heck of it and shot him, they're not going to see that.”
Defendant contends that the next statement, “that's not the story ...” is out of context without the first part of Detective Burke's statement. However, this portion of Detective Burke's redacted statement was essentially the same as his previous statements, that he did not think anyone was saying that defendant “went over there and just shot the victim.” When read together, it appears that Detective Burke's repetitious statement, that defendant “walked up ... just for the heck of it and shot” the victim, before stating that was not “the story being told,” was properly redacted. Detective Burke essentially repeated his sentiments during another portion of the interview with defendant. Therefore, the trial court did not violate the Rule of Completeness by not including the repetition.
Another portion of defendant's statement that was redacted was Detective Burke's opinion of what the prosecutor might say upon receipt of the case. “Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980). When determining the admissibility of opinion evidence, the essential question is “whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies.” Id. (internal quotation and citation omitted).
Detective Burke's opinion about what the prosecutor might say was the only substantive statement that was redacted. Defendant contends that Detective Burke's redacted statement is relevant to the defense theory that defendant did not “intentionally” shoot the victim. However, the trial court determined that Detective Burke's opinion of what the prosecutor might say upon receipt of the case was proper to remove from the admitted portion of the statement. The trial court also refused to allow defendant to cross-examine Detective Burke about what he thought the prosecutor might say because the detective's opinion was inadmissible. Detective Burke was never qualified as an expert on criminal law, and therefore he was not in a better position than the jury to determine what the prosecutor might do with the case once he received it. Id. The trial court's removal of this portion of the statement, as well as his refusal to allow cross-examination of Detective Burke, was not error.
III. Relevant Evidence
Defendant alleges that the trial court erred by prohibiting defendant from presenting relevant evidence as a part of his defense. We disagree.
“The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (2000) (internal quotations and citations omitted). In general, all relevant evidence is admissible. N.C. Gen.Stat. § 8C–1, Rule 402 (2011). This Court reviews questions of relevancy de novo, but accords great deference to the trial court's ruling. State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011) ( “A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.”).
Under Rule 403, “the court can exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value.” State v. Cotton, 329 N.C. 764, 768, 407 S.E.2d 514, 517 (1991). “We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). “In order to preserve the exclusion of evidence for appellate review, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.” State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310 (1994) (internal quotations and citation omitted).
When relevant evidence that does not involve a right arising under the Constitution is erroneously excluded, a defendant has the burden of showing that the error was prejudicial. This burden may be met by showing that there is a reasonable possibility a different result would have been reached had the error not been committed. N.C. Gen.Stat. § 15A–1443(a) (2011); Weeks, 322 N.C. at 163, 367 S.E.2d at 902.
Defendant contends the trial court improperly excluded two separate portions of defendant's testimony. In the first instance, defendant stated that Nelson took something from Thompson and put it in her back pocket before calling 911. The State objected and the trial court sustained the objection. Defendant continued with questioning and made no offer of proof as to the relevance of the excluded testimony. While the implication is that Nelson removed some sort of weapon from Thompson's possession, without an offer of proof the significance of the item is unclear, and therefore we cannot determine whether the evidence of the excluded statement was relevant or not. See State v. Johnson, 340 N.C. 32, 50, 455 S.E.2d 644, 653 (1995).
Defendant also contends it was error for the trial court to exclude evidence of defendant's prior experiences with violent situations. While the trial court did not allow defendant to testify about these situations, this evidence was presented to the jury during trial. Dr. Jerry Wayne Noble (“Dr.Noble”), a forensic psychologist, testified about the occurrences of these events and the effect they had on defendant and his actions on the night of the shooting. Furthermore, defense counsel addressed defendant's background and these specific incidents in closing arguments. On appeal, defendant failed to provide reasoning why this information should have been admitted during defendant's testimony and how defendant was prejudiced by having the evidence presented during Dr. Noble's testimony instead. Defendant failed to show prejudice and we find no error.
IV. Prosecutorial Misconduct During Jury Selection
Defendant contends that the trial court erred by allowing the State to make selective summaries of the evidence during jury selection which tainted the jury and deprived defendant of a fair and impartial jury. We disagree.
During jury selection, “counsel may diligently inquire into a juror's fitness to serve[.]” State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). However, it is well-established that the “regulation of the manner and the extent” of inquiry into jury fitness during jury selection is within the discretion of the trial court. State v. Avery, 315 N.C. 1, 20, 337 S.E.2d 786, 796–97 (1985). To show reversible error on appeal, a defendant must show harmful prejudice and clear abuse of discretion. Id. at 20, 337 S.E.2d at 797.
Prior to jury selection, “the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge ... the defendant's plea to the charge, and any affirmative defense of which defendant has given pretrial notice....” N.C. Gen.Stat. § 15A1213 (2011). While counsel may question prospective jurors “concerning their fitness and competency to serve as jurors[,]” N.C. Gen.Stat. § 15A–1214(c) (2011), they are prohibited from asking “questions that tend to stake out a juror as to what his decision would be under a given set of facts.” Parks, 324 N.C. at 423, 378 S.E.2d at 787. However, “[i]n a criminal case a defendant is allowed to ask prospective jurors about their ability to follow the law.” State v. Campbell, 359 N.C. 644, 665, 617 S.E.2d 1, 15 (2005). “Appellate review of voir dire questioning requires the appellate court to focus not just on isolated questions, but on the entire record of the voir dire.” State v. Johnson, –––N.C.App. ––––, ––––, 706 S.E.2d 790, 793 (2011) (internal quotations and citation omitted).
In the instant case, prior to voir dire, the trial court informed the jury that defendant asserted the defense of self-defense. In attempting to discover if the jury was aware of the case, the prosecutor provided a brief summary of the events: that the shooting occurred on 4 July 2008, the name of the victim, that he was shot three times, once in the buttocks, once in the lower back and once in the leg, and that defendant was charged with first-degree murder. Defense counsel did not object to any of these statements. Shortly thereafter, the prosecutor stated that at the time of Thompson's death he was 35 years old and “approximately 5'8, 160 ––––.” Presumably, the prosecutor intended to say “pounds,” however, defense counsel objected and the trial court sustained the objection.
While questioning a potential juror, the prosecutor asked him if he had already formed an opinion as to the guilt or innocence of defendant. The potential juror stated, in the presence of all potential jurors, “[w]hat I heard yesterday was this was self-defense ... [a]nd, you know, my impression was that you've got a defendant who looks like a big man....” At this point, defendant requested that the inquiry continue without the presence of the other potential jurors, which the trial court allowed. The potential juror indicated that because he heard that the victim was smaller than defendant and was shot in the back, he did not think that self-defense sounded like a logical defense.
Defense counsel moved to have the entire jury panel dismissed based on the potential juror's comments, indicating the entire jury pool had been tainted by the prosecutor's statements. The trial court denied defendant's motion. In conducting voir dire, defense counsel addressed this issue. He indicated that the potential juror stated prior to dismissal that he had a preformed opinion about the case and asked each potential juror, individually, whether they still were open-minded about the case. Each juror indicated they still had an open mind. Thus, defendant failed to show the prosecutor's comments tainted the jury pool.
Defendant contends there was error because the prosecutor was allowed to provide information about the case, but neglected to tell the potential jurors that there was a potential defense namely, the defense of others and that defendant's son was being attacked at the time of the shooting. However, in examining the entire transcript, it is clear that defense counsel spoke about these topics during voir dire. Specifically, defendant asked each juror if they had a child, the age of their child, and some variation of whether they could follow the law “about defending a family member.” Therefore, defendant's claim that the prosecutor's statements tainted the impartiality of the jurors is without merit.
Defendant alleges he was not allowed to question whether the potential jurors could follow the law about voluntary manslaughter, while the prosecutor was allowed to question the jury about premeditation and deliberation and felony murder. However defendant did not pose the question of whether a potential juror would be able to follow the law about voluntary manslaughter, but merely stated “I also want to talk about the issue of lesser-included offenses.” After a bench conference, the trial court sustained the State's objection. Reviewing the entire record, it appears that defendant spoke to the jury about self-defense and defense of others. Furthermore, the trial court reminded the jurors that the only law they were to follow was the law given to them by the court at the conclusion of the presentation of the evidence. Defendant has failed to show how he was prejudiced by not being able to discuss lesser-included offenses during voir dire. Therefore, this argument is without merit.
V. Mistrial
Defendant alleges that the trial court erred by failing to declare a mistrial after jurors improperly discussed whether defendant should have taken a plea agreement. Specifically, defendant contends that when several jurors discussed the case outside the presence of other jurors and before deliberations began, structural error occurred. We disagree.
It is in the trial court's discretion to grant a motion for a mistrial. State v. Ward, 338 N.C. 64, 121, 449 S.E.2d 709, 741 (1994) (citation omitted). “A mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant's case and make it impossible for the defendant to receive a fair and impartial verdict.” Id. (citation omitted). To preserve a question for appellate review, a defendant “must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired....” N.C.R.App. P. 10(a)(1) (2011).
In the instant case, one of the jurors reported to the bailiff that juror number five indicated to the other jurors that he wanted to be the foreperson and that the defendant should have taken a plea bargain. Defendant requested that the trial court examine each juror to determine that there were still “twelve people who haven't made up their mind on this case....” The trial court then inquired of each juror as to the events that took place and also allowed counsel to question the jurors. Defense counsel stated “I just want to put on the record we're perfectly fine with the way the [c]ourt's going to conduct the inquiry in this case.”
After the trial court concluded its inquiry and heard statements from counsel, defendant moved for a mistrial. The trial court found that there had been discussions amongst the jurors and that juror number five made the statements attributed to him. Based on this finding, the trial court dismissed juror number five. The trial court inquired of the remaining jurors whether they could set aside the discussions and view the case solely on the evidence presented. All jurors confirmed they could do so. The trial court instructed the jury that plea negotiations were not for their consideration and that there was no evidence that suggested that plea agreements were involved in defendant's case. The trial court found that “defendant would not be prejudiced by the statement made by the juror in this case ... particularly given the evidence in this case, being that [defendant] by his own testimony admitted that he shot the victim and that he died as a result.” Because the trial court found no prejudice, much less substantial prejudice, would occur, the court denied defendant's motion for mistrial.
Defendant contends the trial court erred when it denied his motion for mistrial because a structural error occurred. However, defendant never argued at trial that his constitutional rights were violated by improper jury deliberations. When defendant made a motion for mistrial he stated that he “just [had] concerns about the entire panel” because several jurors indicated they heard something about plea bargains but tried “to minimize” what happened. Defendant never addressed the structural error he raises on appeal. As defendant failed to make this constitutional argument at trial, it cannot now be raised on appeal. State v. Smith, 352 N.C. 531, 557–58, 532 S.E.2d 773, 790 (2000). To the extent defendant asserts the denial of his motion for a mistrial violated his constitutional rights, defendant did not assert constitutional error before the trial court and accordingly, defendant “waived his right to appellate review of this issue....” Id. at 557, 532 S.E.2d at 790.
VI. Deadlocked Jury
Defendant alleges the trial court erred when it failed to declare a mistrial after jurors indicated they were deadlocked on multiple occasions. We disagree.
Initially, we note that defendant failed to object when the trial court refused to declare a mistrial. Defendant suggested a mistrial because the jury was hopelessly deadlocked, but left the decision “in the [c]ourt's discretion.” Defendant cites State v. Ashe for the proposition that when the trial court acts contrary to a statutory mandate and defendant is prejudiced, the error is preserved for appeal. 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
When the jury is deadlocked, “the judge may require the jury to continue its deliberations and may give or repeat the instructions” but “may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.” N.C. Gen.Stat. § 15A–1235(c) (2011). The trial court's decision “to declare or to refuse to declare a mistrial” on the ground that there is no reasonable possibility of agreement “is reviewable only for abuse of discretion.” State v. Hall, 73 N.C.App. 101, 107, 325 S.E.2d 639, 642 (1985).
In the instant case, the jury was excused to deliberate at 9:06 a .m. At 4:20 p.m., 5:03 p.m. and 5:55 p.m. the jury informed the court they could not reach a decision on the verdict in the case. After the first two instances, the trial court sent the jury back for further deliberations. At 5:03 p.m., the trial court repeated the instructions in N.C. Gen.Stat. § 15A–1235(a) and (b). At 5:55 p.m., the jury informed the court that the vote had been 11–1 for three-and-a-half hours, that they were hopelessly deadlocked and it was unlikely they would reach a verdict with further deliberations.
The trial court sent the jury to the jury room while he conferred with the parties. The State requested the jury be brought back on Monday morning to continue deliberations. Defendant stated that he felt the jury was “hopelessly deadlocked” and that “they've really made a lot of effort this afternoon. But at this point we'd just leave it in the [c]ourt's discretion if the [c]ourt wants to declare a mistrial now or to give them extra time to come back on Monday on that case.” The trial court brought the jury back to the courtroom, at which time they requested fifteen more minutes to deliberate. The trial court granted their request and the jury returned to the courtroom at 6:10 p.m. with a unanimous verdict.
Thus, the trial court was not informed until 5:55 p.m. that the jury considered itself hopelessly deadlocked. At that time, the trial court heard from the parties as to their requests. Before the trial court had an opportunity regarding whether or not to declare a mistrial or to request that the jury return another day, the jury requested fifteen more minutes to deliberate. At this point, defendant had already stated that he had no objection to giving the jury “extra time to come back on Monday.” After this short time, the jury returned a unanimous verdict. There is no evidence that the trial court coerced their verdict in any way. This argument has no merit.
VII. Conclusion
Defendant failed to show he was prejudiced when the trial court excluded evidence of Gause's prior conviction and portions of defendant's interview with Detective Burke. Furthermore, while some of defendant's testimony was excluded, defendant failed to preserve one of the issues for appeal and failed to show that he was prejudiced. In addition, the trial court did not err or abuse its discretion during voir dire. Also, there is no evidence that the jury was coerced in any way in reaching its verdict. Any constitutional issues not raised and ruled upon at trial cannot be raised on appeal, and therefore we did not address the merits of those arguments on appeal.
No error. Judges BRYANT and STROUD concur.
Report per Rule 30(e).