Opinion
No. COA11–1491.
2012-08-7
STATE of North Carolina v. Sumner Re COLEMAN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State. Kimberly P. Hoppin, for Defendant–Appellant.
Appeal by defendant from judgment entered 27 July 2011 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 5 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State. Kimberly P. Hoppin, for Defendant–Appellant.
GEER, Judge.
Defendant Sumner Re Coleman appeals from the judgment entered upon the jury's verdict finding him guilty of assault with a deadly weapon inflicting serious injury. Defendant primarily argues that the trial court committed plain error in admitting certain lay opinion testimony. We hold that because the testimony amounted to a shorthand statement of facts, the testimony was properly admitted.
Facts
The State's evidence at trial tended to show the following facts. Defendant and Juan Lucas were friends who had smoked marijuana together and sold drugs to each other. Approximately two weeks before 26 September 2010, Lucas broke up a fight between defendant and a man known as “Sykes.” Defendant thought Lucas had taken Sykes' side in the fight, and defendant and Lucas did not speak for two weeks. On 26 September 2010, defendant telephoned Lucas a few times to talk to him about Sykes, as well as money that Lucas owed defendant. One time, he ended up speaking to Lucas' aunt, Jacqueline Vann. Defendant, apparently angry, told Vann that Lucas would need to see him about repaying the money.
That afternoon, defendant approached Lucas at the North Kerr Mini Mart, and Lucas suggested they go outside to talk. Once outside, defendant began yelling at Lucas and then hit him with his fist. When Lucas tried to hit back, defendant stabbed him in the stomach with a knife. Defendant's father, who had driven him to the store, grabbed defendant, and they drove off. Lucas suffered a stab wound to his abdominal wall that required emergency surgery. His surgeon described the wound as life-threatening and likely to cause pain.
Defendant was indicted for assault with a deadly weapon inflicting serious injury. At trial, defendant proceeded on a theory of self-defense. Defendant testified on his own behalf that Lucas' hateful facial expression and body language caused defendant to “go into survival mode” because he knew Lucas sometimes carried a gun. Defendant claimed that he pulled out his knife to protect himself from Lucas who “was rushing towards [him].” The jury, however, convicted him of assault with a deadly weapon inflicting serious injury, and the trial court sentenced him to a presumptive-range term of 25 to 39 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial court improperly refused to allow him to impeach Lucas by inquiring into a prior criminal conviction. “ ‘Not every erroneous ruling on the admissibility of evidence will result in a new trial.’ “ State v. Hames, 170 N.C.App. 312, 317, 612 S.E.2d 408, 412 (2005) (quoting State v. Knox, 78 N.C.App. 493, 496, 337 S.E.2d 154, 157 (1985)). Instead, a defendant bears the burden of showing that in the absence of a non-constitutional error, a reasonable possibility exists that the jury would have reached a different verdict. N.C. Gen.Stat. § 15A–1443(a) (2011).
Here, during cross-examination, defense counsel asked Lucas whether marijuana use had led to his being convicted of possession of marijuana several times since 2003. The State's objection was sustained, although the record does not contain any indication of the basis of that objection. Defense counsel then asked, without objection, whether Lucas had been convicted of possession of marijuana, and Lucas testified that he had. Defense counsel followed up with the following question: “You were convicted in August of '03; is that correct?” The State objected, the trial court conducted an unrecorded bench conference, and the court sustained the objection. Defense counsel did not, at any time, make an offer of proof regarding what evidence he was attempting to elicit. We cannot tell from the record the bases for the objections or the grounds on which the trial court sustained the objections.
Nevertheless, even assuming arguendo that defendant has preserved this issue for review despite the lack of an offer of proof and that the trial court erred by sustaining the State's objections, defendant has still failed to show that he was prejudiced given the facts brought forth during Lucas' direct and cross-examinations. Lucas admitted on direct examination that he “[had] a DUI, a driving while revoked charge, a marijuana possession charge, and a paraphernalia charge.” On cross-examination, Lucas again admitted that he had been convicted of possession of marijuana. Defendant has not demonstrated how further questioning of Lucas about an apparent conviction for marijuana possession in 2003 would have given him a reasonable possibility of a different verdict.
Defendant next contends the trial court committed plain error in allowing Jacqueline Vann and Kristian Paschall to testify about matters beyond their personal knowledge and to express opinions in violation of Rules 601 (limiting testimony to matters of personal knowledge) and 701 (limiting opinion testimony from lay witnesses) of the North Carolina Rules of Evidence. Because defendant's trial counsel did not object, he argues that admission of the testimony constituted plain error.
Our Supreme Court recently addressed the plain error rule:
We now reaffirm our holding in Odom and clarify how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
Defendant first argues that the trial court committed plain error when Vann testified that she wondered why defendant kept coming by the house to see Lucas and the court then allowed her to say, “It's like he was determined to keep coming, as if he was looking for trouble.” Defendant argues that the reference to defendant's looking for trouble was inadmissible because Vann did not have personal knowledge of why defendant was visiting her home. We believe that this testimony constituted admissible opinion testimony traditionally called “shorthand statements of facts.”
As our Supreme Court explained in State v. Eason, 336 N.C. 730, 747, 445 S.E.2d 917, 927 (1994):
Generally, a witness is not allowed to testify as to what another person is thinking because this is speculative and amounts to impermissible opinion evidence. However, Rule 701 allows a lay witness to testify in the form of an opinion if the opinion is “(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.” N.C.G.S. § 8C–1, Rule 701 (1992); see State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987). This exception includes what are frequently called “shorthand statements of facts.” Id.
Our Supreme Court has further held regarding such opinion testimony:
“The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons ... derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence.
A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, ‘matter of fact,’ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation—a series of things—go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person's hair, or any other physical fact of like nature.”
State v. Shoemaker, 334 N.C. 252, 260, 432 S.E.2d 314, 317 (1993) (quoting State v. Stager, 329 N.C. 278, 321, 406 S.E.2d 876, 901 (1991)).
Vann's testimony was based on her personal observations of defendant's demeanor and tone during his numerous visits to her home and his tone of voice during his telephone call to her on the day of the altercation. Her testimony regarding “looking for trouble” was a permissible shorthand statement of fact describing her mental picture of defendant's actions. This testimony was, therefore, admissible. See Eason, 336 N.C. at 747, 445 S.E.2d at 927 (holding comment that “ ‘he was enjoying what he was doing’ represent[ed] an instantaneous conclusion of the witness based on his perception of defendant's appearance, facial expressions, mannerisms, etc.” and was thus admissible as a shorthand statement of fact); State v. Loren, 302 N.C. 607, 609, 276 S.E.2d 365, 367 (1981) (holding that witness' opinion that defendant “ ‘was acting like he was trying to hide something’ “ was admissible as shorthand statement of fact).
Defendant similarly challenges portions of Paschall's testimony. Paschall, the manager of the Mini Mart where the fight occurred, stated that while she was sitting in her car waiting for her shift to start, she saw a black BMW drive past the store and then turn around and come back. The evidence had indicated that defendant arrived at the Mini Mart in a black BMW driven by his father. Paschall testified further:
[The car] was going by, and then I think when it saw the victim—I came to the impression that when it saw the victim's car there, that's why they swooped in. Because they were going kind of slow, and it's like they saw something there they wanted and they came in.
Although Paschall was essentially expressing an opinion regarding defendant's intent, that opinion was also a way of describing for the jury what she actually saw. The testimony was, therefore, admissible as a shorthand statement of the facts. See State v. Johnston, 344 N.C. 596, 609, 476 S.E.2d 289, 296 (1996) (holding that testimony that defendant was “ ‘going to do something’ and that they did not have time to leave before defendant approached” was admissible as a short hand statement of facts).
Defendant next points to Paschall's testimony characterizing defendant as being more aggressive and as being the aggressor, while Lucas was “like probably defending hisself [sic], throwing more punches.” Paschall saw the fight and was entitled to describe what she perceived as happening—who was more aggressive and who initiated the fight—without crossing the line into impermissible opinion testimony. See State v. Roache, 358 N.C. 243, 288, 595 S.E.2d 381, 410 (2004) (holding witness could testify that defendant was “aggressor” because it was a “shorthand restatement of [the witness'] perception at the time of the attack”).
We, therefore, hold that the trial court did not commit plain error in admitting the testimony of Vann and Paschall. We do not address defendant's argument that cumulative errors deprived him of a right to a fair trial. We note, however, that our courts will not “apply the plain error doctrine on a cumulative basis when defendant is assigning error to unrelated admissions of evidence to which he did not object.” State v. Holbrook, 137 N.C.App. 766, 769, 529 S.E.2d 510, 512 (2000).
No error. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).