Opinion
No. COA10-1526
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgment entered 2 September 2009 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 14 April 2011.
Roy Cooper, Attorney General, by Richard L. Harrison, Special Deputy Attorney General, for the State. Haral E. Carlin for the defendant.
Robeson County No. 06 CRS 56449.
Defendant Pattie Hunt appeals from a conviction of first-degree murder arising from the death of her boyfriend, Christopher Dial. The four principal issues on appeal are whether the trial court erred by: (1) denying Defendant's motion to dismiss; (2) failing to submit the lesser-included offense of second-degree murder to the jury; (3) admitting the testimony of Chief Medical Examiner Dr. John D. Butts and allowing him to illustrate his testimony with unauthenticated photographs; and (4) failing to inquire sua sponte whether Defendant wished to testify on her own behalf. Defendant also contends her counsel's failure to object to Dr. Butts' testimony and the autopsy report and photographs was ineffective assistance of counsel. Because her counsel's failure to object to the autopsy evidence did not affect the outcome of Defendant's trial, Defendant was not denied effective assistance of counsel. For all other issues, we find no error.
In 2005, Defendant was in a romantic relationship with Dial, who was incarcerated at that time. During the same time period, Defendant was also in a romantic relationship with Leonard Oxendine, whom she had dated for three and a half years. When Dial was released from prison in December 2005, Defendant initially continued her relationships with both men, but eventually stopped dating Leonard Oxendine, and Defendant and Dial began living together in a trailer on Ozeley Road.
By February or March 2006, Defendant's relationship with Dial was not going well, and the couple were fighting. Dial told his father and other relatives Defendant was cheating on him. Dial also told his father that although he could not leave Defendant right away because he needed her car for transportation, he and Defendant would separate once he got himself "on his feet." Defendant told her co-worker, Holly Brewer-Knight, that her relationship with Dial "was stressful" and that Dial had started "doing drugs and . . . dealing drugs with [Defendant's] sister[,]" something the couple argued about. Additionally, about a week before Dial's death, Defendant told Brewer-Knight, "if [Leonard Oxendine] would take her back, she would get rid of [Dial] once and for all." Defendant also told Brewer-Knight that she "was so upset with [Dial] . . . because he had stayed with an ex-girlfriend that she . . . would use a gun to blow his brains out."
In early March 2006, Defendant asked her friend, Jackie Lowery, where she could get a gun. Lowery took her to Chacy Biggs's house. Biggs testified he gave Defendant a .25 caliber pistol that did not have a clip. The next day, Defendant brought the gun back and told Biggs the gun wouldn't fire. Biggs then gave Defendant a fully loaded .22 caliber revolver that he had obtained from Shane Stewart. Defendant kept the .22 caliber revolver for one night. Defendant returned the .22 caliber revolver to Biggs with four empty shell casings at approximately 3:30 a.m. on 14 March 2006. Biggs stated he threw the empty shell casings behind his house in the woods and called Stewart to pick up the .22 caliber revolver. SBI agents collected the .25 caliber pistol from Biggs and the .22 caliber revolver from Stewart.
Clinton Oxendine, a friend of Dial's, testified that on the afternoon of 13 March 2006, he was at Defendant and Dial's trailer playing video games with Dial. When Defendant arrived, she fixed dinner and also played video games. Clinton Oxendine stated no one was arguing at that time. Later that evening around midnight, Clinton Oxendine returned to Defendant and Dial's trailer with his aunt, Donetta Kearns, and two cousins, Brian Kearns and Harley Kearns. No lights were on in the trailer. Defendant came out and told Clinton Oxendine and the Kearnses she and Dial had argued, and Dial called her a bitch because she found "powder" cocaine in his pants pocket. Defendant told them Dial left after the argument and went walking down Ozeley Road. Brian Kearns testified they didn't see anyone walking on Ozeley Road, a one mile long dirt road. When Clinton Oxendine and the Kearnses left the trailer, Defendant got in her car and followed them down Ozeley Road. Defendant started blinking her car lights, pulled up beside Harley Kearns's car, said something about "somebody is after Dial[,]" and asked for a light for her cigarette. Defendant then turned her car around and headed back toward the trailer.
Defendant's friend Lowery testified that on 14 March 2006, at approximately 4:00 a.m., Defendant called her and asked if she could bring some clothes to Lowery's house. Lowery agreed, but Defendant changed her mind and instead took her clothes and belongings to William Dial's house.
On 14 March 2006 at approximately 8:00 a.m., the Que Hill Fire Department was dispatched to a structural fire at a trailer on Ozeley Road. While fighting the fire, a firefighter discovered a body on the floor of one of the bedrooms. Dr. Butts, a forensic pathologist and Chief Medical Examiner in Chapel Hill, testified the body was positively identified as Dial from dental records. Dr. Butts reviewed Dial's file, including the autopsy report completed by Dr. Cynthia Gardner, photographs, and x-rays. Dial's body was severely burned and he had three gunshot wounds to the head and one to the middle of the back. Additionally, there was no evidence that Dial had been alive in the fire. Dr. Butts concluded Dial died as a consequence of the gunshot wounds to his head and back.
Eugene E. Bishop, a forensics firearms examiner and detective with the Cumberland County Sheriff's Office, examined the bullets Dr. Gardener recovered from Dial's body and the .22 revolver recovered from Stewart to determine whether the bullets were fired from the revolver. Detective Bishop determined the recovered bullets were .22 caliber bullets and had the same rifling characteristics and some similar microscopic markings as the revolver. Detective Bishop could not conclude, however, that the bullets were fired from the .22 revolver because the bullets were deformed.
On 16 March 2006, Lieutenant Reggie Strickland, Jr., collected a white tee shirt and shorts that Defendant admitted she was wearing on 14 March 2006. SBI Agent Kristin Hughes testified blood was found on the shorts, and DNA testing revealed that the blood belonged to Dial. When the SBI questioned Defendant about Dial's blood on her shorts, Defendant stated that Dial's nose bled a lot from snorting cocaine.
On 11 December 2006, Defendant was charged with first-degree murder and first-degree arson. At trial, Defendant moved to dismiss both charges for insufficiency of the evidence. Defendant renewed her motion at the close of all the evidence, and the trial court dismissed the charge of first-degree arson. On 2 September 2009, the jury found Defendant guilty of first-degree murder. Defendant again moved to dismiss the first-degree murder charge for insufficiency of the evidence. The trial court denied the motion. Defendant was sentenced to life imprisonment without parole. Defendant appeals.
On appeal, Defendant argues the trial court erred by (1) denying Defendant's motion to dismiss the charge of first-degree murder; (2) failing to submit the lesser-included offense of second-degree murder to the jury; (3) admitting the testimony of Chief Medical Examiner Dr. Butts and allowing him to illustrate his testimony with unauthenticated photographs, and alternatively, that her counsel's failure to object to the autopsy report and photographs was ineffective assistance of counsel; and (4) failing to inquire sua sponte whether Defendant wished to testify on her own behalf.
I. Motion to Dismiss
In her first argument on appeal, Defendant contends the trial court erred by denying her motion to dismiss the charge of first-degree murder because the evidence was insufficient to prove that Defendant was the perpetrator of the murder. We disagree.
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "When a defendant moves for dismissal, the trial judge must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the crime." State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991) (quotation marks and internal citations omitted). "In ruling on a motion to dismiss, the evidence must be considered by the court in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984) (citation omitted).
"Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988) (citation omitted). "The evidence need only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury for a determination of defendant's guilt beyond a reasonable doubt." Id. (citations omitted). However, "[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion [to dismiss] should be allowed." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). When the evidence establishing the defendant as the perpetrator of a crime is circumstantial, "courts often look to proof of motive, opportunity, capability and identity to determine whether a reasonable inference of defendant's guilt may be inferred or whether there is merely a suspicion that the defendant is the perpetrator." State v. Pastuer, ___ N.C. App. ___, ___, 697 S.E.2d 381, 385 (quotation marks and citation omitted), disc. review allowed, ___ N.C. ___, 705 S.E.2d 381 (2010).
In support of her argument, Defendant cites several cases in which the court held the State presented insufficient evidence that the defendant was the perpetrator of a murder. See State v. Furr, 292 N.C. 711, 719, 235 S.E.2d 193, 198-99 (1977) (holding that there was insufficient evidence for a jury to find the defendant guilty of his wife's murder because there was a lack of evidence connecting the defendant to the crime or to the crime scene), cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977); State v. Chapman, 293 N.C. 585, 587, 238 S.E.2d 784, 786 (1977) (holding that "while defendant's possession of the shotgun bearing the fresh odor of powder, combined with the finding of the spent shell fired from defendant's gun in the alleyway, is certainly strong evidence, it is not adequate to support the double inference that: (1) the victim was shot with defendant's gun; and (2) defendant fired the shot"); State v. Jones, 280 N.C. 60, 67, 184 S.E.2d 862, 866 (1971) (holding that there was insufficient evidence that the defendant shot his wife in the back because "[t]he evidence proves only that at the time his wife was killed defendant was degradedly drunk and intermittently violent"); State v. Cutler, 271 N.C. 379, 384, 156 S.E.2d 679, 682 (1967) (holding that the motion for nonsuit should have been allowed because "[t]he evidence of the State is not sufficient to show any blood from the body of the deceased upon the person, clothing, knife or vehicle of the defendant"); State v. Bell, 65 N.C. App. 234, 240-41, 309 S.E.2d 464, 468-69 (1983) ("We conclude the [S]tate did not meet its burden and that the motion to dismiss should have been allowed. The only substantial evidence linking defendant to the crime consisted of the victim's keys which were found in defendant's pockets."), aff'd, 311 N.C. 299, 316 S.E.2d 72 (1984).
We find the instant case distinguishable from the cases cited by Defendant and more similar to State v. Stone, 323 N.C. 447, 373 S.E.2d 430. In Stone, the State produced evidence that: (1) the bullets removed from the victim could have been fired from the .22 caliber pistol the defendant gave to her father after the police interviewed the defendant; (2) the tire tracks matching the tires of the car the defendant was driving on the night of the murder were found near the victim's body; (3) the defendant was the last person to see the victim alive; (4) the defendant made false statements to investigating officers in an attempt to cover up her connection with the weapon; and (5) the defendant had ample time to commit the murder. Id. at 453-54, 373 S.E.2d at 434-35. The Court held the trial court correctly denied the defendant's motion to dismiss because there was substantial evidence from which the jurors could reasonably infer that the defendant was the perpetrator of the murder. Specifically, the defendant "had access to a weapon and bullets which could have caused the death of the victim, had the time and opportunity to commit the murder, and drove a car which could have made the tire tracks found at the dump site." Id. at 452-53, 373 S.E.2d at 434.
As in Stone, the evidence offered by the State in the present case was sufficient to connect Defendant to Dial's murder. The State presented evidence that Defendant and Dial were not getting along and both believed the other was unfaithful. Defendant told Brewer-Knight that she was so upset about Dial staying with his ex-girlfriend that she would "use a gun to blow his brains out." Defendant obtained a .22 caliber loaded revolver from Biggs the day before Dial's murder and returned the revolver the following morning with four spent shells. Although the firearms expert could not conclude that the .22 caliber bullets retrieved from Dial's body were fired by the .22 caliber revolver recovered from Biggs, he testified that the bullets had the same rifling characteristics and some similar microscopic markings as the revolver. In addition, Dial's blood was found on Defendant's shorts that she admitted wearing on the night Dial was murdered. Furthermore, Defendant was seen at the trailer around midnight on the night of Dial's murder, and she removed her clothing and belongings from the trailer during the early morning of 14 March 2006.
Although the majority of the evidence in this case is circumstantial, when we consider all of the evidence, viewed in the light most favorable to the State, and giving the State the benefit of reasonable inferences, we conclude the State presented sufficient evidence from which the jurors could reasonably infer that Defendant was the perpetrator of Dial's murder. Accordingly, the trial court did not err by denying Defendant's motion to dismiss.
II. Jury Instruction on Second-Degree Murder
Defendant next argues the trial court committed plain error by failing to instruct the jury on the lesser-included offense of second-degree murder because the State did not present sufficient evidence of malice or premeditation or deliberation. This argument is without merit.
Defendant asks this Court to review for plain error because she did not request an instruction from the trial court on the lesser included offense of second-degree murder. See State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983). "In deciding whether a defect in the jury instruction constitutes `plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Id. at 661, 300 S.E.2d at 378-79.
"An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." State v. Taylor, 362 N.C. 514, 530, 669 S.E.2d 239, 256 (2008), cert. denied, 130 S.Ct. 129, 175 L.Ed.2d 84 (2009). The standard for determining whether the trial court must instruct on second-degree murder as a lesser-included offense of first-degree murder is as follows:
If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
Id. at 530-31, 669 S.E.2d at 256 (citation omitted) (emphasis in original). When, however, "there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense even where there is no specific request for such instruction." State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980) (citations omitted). "The elements of first-degree murder are: (1) the unlawful killing, (2) of another human being, (3) with malice, and (4) with premeditation and deliberation." State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citations omitted); N.C. Gen. Stat. § 14-17 (2009).
Defendant first argues the jury should have been instructed on the lesser-included offense of second-degree murder because the State presented insufficient evidence of malice. North Carolina courts have recognized three kinds of malice in our law of homicide. State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (citation omitted). The first kind is "express hatred, ill-will or spite, sometimes called actual, express, or particular malice." Id. (citation omitted). The second kind of malice "arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief." Id. (citation omitted). The third kind of malice is "that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification." Id. (quotation marks and citation omitted).
We note that malice is an element of both first-and second-degree murder. State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d 778, 785 (1995) ("Murder in the first degree . . . is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.") (citations omitted), cert. denied, 516 U.S. 996, 116 S.Ct. 533, 133 L.Ed.2d 438 (1995). The absence of malice would reduce the offense to manslaughter, see State v. Rogers, 323 N.C. 658, 667, 374 S.E.2d 852, 858 (1989) (citation omitted) (stating that "[t]he difference between second degree murder and manslaughter is that malice is present in the former and not in the latter"), but Defendant does not contend the jury should have been instructed on the lesser-included offense of manslaughter.
In the instant case, the State presented sufficient evidence of Defendant's express malice toward Dial. Multiple witnesses testified that Defendant and Dial's relationship had been deteriorating and that there had been cross-allegations of infidelity. Additionally, about a week before Dial's death, Defendant told Brewer-Knight "if [Leonard Oxendine] would take her back, she would get rid of [Dial] once and for all." Defendant also told Brewer-Knight that she "was so upset with [Dial] . . . because he had stayed with an ex-girlfriend that she . . . would use a gun to blow his brains out." Accordingly, the evidence is sufficient to satisfy the State's burden of proving malice.
Defendant next contends the jury could have concluded she lacked the requisite elements of premeditation and deliberation based on the evidence that Defendant and Dial were arguing, and Dial called Defendant a bitch. We disagree.
"`Premeditation' means that the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing." State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991) (citation omitted). "`Deliberation' means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation." Id. (citation omitted). "Since premeditation and deliberation are processes of the mind, they are not susceptible to direct proof and must almost always be proved by circumstantial evidence." State v. Corn, 303 N.C. 293, 297, 278 S.E.2d 221, 223 (1981). Our Supreme Court has explained the evidence required to negate the element of deliberation:
The fact that the defendant was angry or emotional at the time of the killing will not negate the element of deliberation unless such anger or emotion was strong enough to disturb the defendant's ability to reason. Thus, evidence that the defendant and the victim argued, without more, is insufficient to show that the defendant's anger was strong enough to disturb his ability to reason. Without evidence showing that the defendant was incapable of deliberating his actions, the evidence could not support the lesser included offense of second-degree murder.
Solomon, 340 N.C. at 222, 456 S.E.2d at 785 (citations omitted).
Here, although there was some evidence Defendant and Dial argued on the night of Dial's murder, and Dial called Defendant a bitch, there was no evidence that Defendant was incapable of deliberating her actions or unable to reason due to anger or emotion. Clinton Oxendine and the Kearnses testified that when they visited Defendant's trailer around midnight, she told them she and Dial had argued, and he called her a bitch. There was no testimony, however, that Defendant appeared angry or emotional. Rather, Defendant told Clinton Oxendine and the Kearnses Dial had gotten mad, left the trailer, and was walking down Ozeley Road. Clinton Oxendine and the Kearnses also testified that Defendant followed them away from the trailer in her vehicle and later turned to head back to the trailer, but there was no testimony that Defendant drove erratically or seemed impaired due to emotion during that time.
Without evidence showing Defendant was incapable of deliberating her actions, the evidence could not support the lesser-included offense of second-degree murder. See id. We therefore conclude the trial court did not err when it did not instruct the jury on the lesser-included offense of second-degree murder.
III. Testimony of Medical Examiner and Autopsy Photographs
In her next argument on appeal, Defendant contends the trial court committed plain error by admitting the testimony of Chief Medical Examiner Dr. Butts and allowing him to illustrate his testimony with unauthenticated photographs. Defendant bases her argument on the fact that Dr. Butts did not personally participate in Dial's autopsy examination, but based his testimony on the autopsy report and photographs taken by Dr. Cynthia Gardner, who did not testify at Defendant's trial. Defendant argues her Sixth Amendment right to confront was violated because the State did not show that Dr. Gardner was unavailable and that Defendant had been given a prior opportunity to cross-examine. Alternatively, Defendant argues her attorney's failure to object to the autopsy report and photographs was ineffective assistance of counsel.
Although Defendant argues the admission of Dr. Butts' testimony violated her Sixth Amendment right to confront and should be reviewed for plain error, she did not object to Dr. Butts' testimony nor raise this constitutional issue at trial. Generally, "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002) (citations omitted), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L.Ed.2d 808 (2003). However, because the constitutional right at issue involves the admissibility of evidence, we will review for plain error. See State v. Mobley, 200 N.C. App. 570, 572, 684 S.E.2d 508, 510 (2009) (stating that "the North Carolina Rules of Appellate Procedure allow review for `plain error' in criminal cases even where the error is not preserved") (citation omitted), disc. review denied, 363 N.C. 809, 692 S.E.2d 393 (2010); N.C. R. App. P. 10(a)(4) (2009); see also State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 ("Plain error analysis applies to evidentiary matters and jury instructions.") (citation omitted), cert. denied, 130 S.Ct. 510, 175 L.Ed.2d 362 (2009). Under plain error review, a defendant "has the burden of showing that the error constituted plain error, that is, (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations omitted).
Assuming arguendo that the admission of Dr. Butts' testimony violated Defendant's Sixth Amendment right to confront and was therefore erroneous, see State v. Locklear, 363 N.C. 438, 451-52, 681 S.E.2d 293, 304-05 (2009) (holding that Dr. Butts' testimony regarding the results of an autopsy and forensic dental analysis performed by other experts who did not testify violated the Confrontation Clause, but the constitutional violation was harmless beyond a reasonable doubt), we conclude Defendant has failed to show plain error.
When a defendant raises a constitutional objection at trial, "constitutional error will not merit a new trial where the State shows that the error was harmless beyond a reasonable doubt." Bishop, 346 N.C. at 385, 488 S.E.2d at 779 (citing N.C. Gen. Stat. § 15A-1443). When, however, a defendant fails to object at trial, "the defendant has the burden of showing [the appellate court] that the error constituted plain error[.]" Bishop, 346 N.C. at 385, 488 S.E.2d at 779 (citations omitted).
Defendant argues Dr. Butts' testimony was "critical" to prove "premeditation and deliberation by three shots to the back of the head." Dr. Butts' testimony that Dial died as a result of gunshot wounds was not critical, however, to the State's case against Defendant for the murder of Dial. The State presented evidence that Defendant said she would "use a gun to blow [Dial's] brains out"; obtained a .22 caliber loaded revolver the day before Dial's murder and returned the revolver the following morning with four spent shells; was seen at the trailer around midnight on the night of Dial's murder; and removed her clothing and belongings from the trailer during the early morning of 14 March 2006. Additionally, Officer David Mears testified Dr. Gardner gave him four lead bullets that were collected from Dial's body during the autopsy. These bullets were admitted into evidence. Furthermore, Detective Bishop testified the recovered bullets were .22 caliber bullets which had the same rifling characteristics and some similar microscopic markings as the revolver that Defendant borrowed from Biggs. Under these circumstances, we cannot conclude that a different result probably would have been reached absent Dr. Butts' testimony regarding the cause of Dial's death or that the admission of Dr. Butts' testimony deprived Defendant of a fair trial.
Defendant next contends the trial court committed plain error by allowing Dr. Butts to illustrate his testimony with unauthenticated photographs. Defendant did not object to the admission of the autopsy photographs at trial. Accordingly, we review the admission of the photographs for plain error.
Assuming arguendo that the trial court erred in admitting the autopsy photographs on the grounds that they were not properly authenticated, we conclude Defendant has failed to show plain error. The photographs Defendant challenges were taken at the time of Dial's autopsy examination to illustrate "the front part of his body, chest and head," "the one identifiable wound of entrance in the left back of the head," and the gunshot wound in the central part of his back. These photographs illustrating the locations of Dial's gunshot wounds were not critical to the State's case against Defendant for Dial's murder. As previously discussed, the State presented sufficient other evidence that Defendant killed Dial with premeditation and deliberation. Under these circumstances, we cannot conclude that a different result probably would have been reached absent the autopsy photographs or that the admission of the autopsy photographs deprived Defendant of a fair trial.
In the alternative, Defendant argues her attorney's failure to object to Dr. Butts' testimony and the autopsy report and photographs was ineffective assistance of counsel. We disagree.
Our Supreme Court has adopted a two part test which a defendant must satisfy to establish ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted) (emphasis in original). "[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient." Id. at 563, 324 S.E.2d at 249.
After examining the record, we conclude there is no reasonable probability that the alleged error of Defendant's counsel affected the outcome of her trial. Defendant argues the autopsy evidence was used to convince the jury of premeditation and deliberation; however, the autopsy report, Dr. Butts' testimony, and the autopsy photographs were primarily used to explain the cause of Dial's death. Furthermore, there was substantial evidence of premeditation and deliberation. The evidence shows that about a week before Dial's death, Defendant told Brewer-Knight she would "use a gun to blow [Dial's] brains out." Defendant asked her friend Lowery where she could find a gun, and she obtained a .22 caliber revolver from Biggs the day before Dial's murder. Defendant returned the revolver to Biggs the following morning at approximately 3:30 a.m. with four spent shells. The firearms expert testified that the .22 caliber bullets removed from Dial's body had the same rifling characteristics and some similar microscopic markings as the .22 caliber revolver. Dial's blood was found on Defendant's shorts that she admitted wearing on the night Dial was murdered. Finally, Defendant was seen at the trailer around midnight on the night of Dial's murder, and she removed her clothing and belongings from the trailer during the early morning of 14 March 2006.
In sum, we conclude Defendant's counsel's failure to object to Dr. Butts' testimony and the autopsy report and photographs did not affect the outcome of her trial. Accordingly, Defendant was not denied effective assistance of counsel.
IV. Inquiry Regarding Defendant's Desire to Testify
In her final argument on appeal, Defendant contends the trial court committed plain error by failing to inquire sua sponte whether Defendant wished to testify on her own behalf. Defendant argues the trial court's failure to inquire violated her constitutional rights. This argument has no merit.
Defendant argues the trial court should have addressed Defendant on the record to make sure that she, and not her attorney, made the decision not to testify. However, our Supreme Court "has never required trial courts to inform a defendant of his right to testify or to make an inquiry on the record regarding his waiver of the right to testify." State v. Smith, 357 N.C. 604, 618, 588 S.E.2d 453, 463 (2003) (citation omitted). "In the absence of an indication to the trial court that he wished to take the stand, it cannot be said that the court denied the defendant his right to testify." State v. Hayes, 314 N.C. 460, 474-75, 334 S.E.2d 741, 750 (1985).
Here, a review of the transcript shows that neither Defendant nor her counsel indicated Defendant wished to testify. In the absence of such an indication, we cannot conclude the trial court erred by failing to inquire whether Defendant wished to testify. See id. Thus, this argument is overruled.
NO ERROR.
Judges CALABRIA and ERVIN concur.
Report per Rule 30(e).