Opinion
No. COA10-424
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgment entered 24 September 2009 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 12 October 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for Defendant.
Guilford County No. 08 CRS 78629.
Scottie A. Menser (Defendant) appeals from judgment entered on his conviction of first degree murder. For the reasons stated herein, we hold Defendant received a trial free from prejudicial error but remand for correction of the restitution award.
Defendant was indicted on 17 March 2008 for the first degree murder of Frank Gladney Jr. on 28 October 2007, in violation of N.C. Gen. Stat. § 14-17. Gladney was killed in the course of an attempted robbery. Prior to trial, Defendant filed a written motion in limine to exclude: (1) "any reference to Defendant or others belonging to a street gang"; (2) "evidence of Defendant's activity at his apartment on or about February 7, 2008 or items which may have been located in the apartment"; and (3) "unauthenticated letters and other writings which the State may attempt to introduce as evidence." The trial court allowed Defendant's motion as to the particular search referenced therein but denied the remaining requests, and the trial began immediately thereafter at the 21 September 2009 Criminal Session of Guilford County Superior Court. On 27 October 2007, Defendant, Vonisha Patrick, Malik Curry aka "Short," and Marquise Alexander aka "Seven" discussed a plan to rob Gladney. The participants, however, offered differing accounts of the events leading up to Gladney's death.
Patrick testified that she, Defendant, Short, and Seven were riding in her rental car together when the robbery scheme began to develop. After Defendant stated that he needed money, Seven asked Patrick about Gladney, to whom they referred as "the African shoe guy," and inquired as to his whereabouts. Patrick thought that "the African shoe guy" was out of town, and Defendant or Seven then asked her if she knew anyone with money. When Patrick believed that Gladney had money, she called Gladney back to invite him over. When Defendant began asking her questions about the kind of car Gladney drove and Gladney's size, she knew they were going to rob him. Later at her apartment, Patrick spoke to Gladney again around 10:00 p.m. Gladney told her that he was on his way back to Greensboro from High Point and called her several times thereafter to let her know his whereabouts and his arrival time. Patrick relayed this information to the others, testifying that she called Short each time she spoke to Gladney "[s]o that they'[d] know what time to be out to the apartment [and] be there when [Gladney] got there." Shortly after Gladney arrived, Patrick "heard rumbling," and "before [she] could open the door [she] heard two gunshots." She heard Gladney yelling that he had been shot and called 9-1-1.
While Short's testimony varied in some detail, he testified that he and Defendant were with Patrick at her apartment earlier that afternoon when they "had a conversation about robbing the shoe man." He also testified that he and Seven both had 9mm weapons and that Defendant had a .45-caliber gun with them that night. Upon arrival to Patrick's apartment, Short approached Gladney outside of Patrick's door and said, "you know what time it is," which meant, "[g]ive me the money." Gladney attempted to grab for Short's weapon and the two began to fight, causing the gun to go off. Gladney continued to punch Short and then began to run towards the back of the parking lot. Short heard a gunshot and saw Defendant standing there with a gun. Defendant grabbed Short's gun, they ran back to the car, and the three men left the scene.
Seven testified that he, Short, and Defendant were all at Patrick's apartment on 27 October 2007. Seven knew Defendant from the "Folk Gang" and explained that Short did not want any part in the robbery but participated only because Defendant "offered him rank in the Folk Gang." Seven indicated that he left Patrick's apartment between 7:00 and 8:00 p.m. while the others continued to plan and before the robbery took place. He testified that he saw a car pull into the parking lot and heard a gunshot as he was leaving.
Forensic pathologist Dr. Deborah Radisch testified that an autopsy was performed on Gladney on 29 October 2007 by Dr. Gaffney-Kraft. Dr. Radisch offered her opinion, without objection by Defendant, that "based on the autopsy and [her] review of all the materials involved," Gladney's cause of death was a gunshot wound he sustained to the right buttock and ending in the left lung.
Defendant declined to offer evidence, and the jury returned a verdict on 24 September 2009 convicting Defendant of first degree murder. The trial court sentenced Defendant to life imprisonment without parole, and Defendant gave notice of appeal in open court.
I. Impeachment of Patrick and Short
Defendant contends the trial court erred by "prohibiting impeachment" of Patrick and Short where the court sustained objections to certain questions posed on cross-examination of these witnesses. We disagree.
"It is a well settled rule of law that the scope of cross-examination rests largely in the discretion of the trial court[, and] [a]bsent a showing of an abuse of discretion or that prejudicial error has resulted, the trial court's ruling will not be disturbed on review." State v. Maynard, 311 N.C. 1, 10, 316 S.E.2d 197, 202-03 (1984) (internal citations omitted); see also State v. Reid, ___ N.C. App. ___, ___, 693 S.E.2d 227, 231 (2010) ("[A]ny ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." (internal quotation marks omitted)).
While our Supreme Court "has held that a defendant is entitled to cross-examine an accomplice who has testified against him as to whether he has been promised immunity or leniency in return for his testimony, and that the denial of this right would constitute prejudicial error[,]" the trial court's discretion over the scope and duration thereof allows for the limitation of cross-examination "when it becomes merely repetitious." State v. Abernathy, 295 N.C. 147, 151-52, 244 S.E.2d 373, 377 (1978); see also State v. Bumper, 275 N.C. 670, 674, 170 S.E.2d 457, 460 (1969) (noting defendants are "entitled to a full and fair cross-examination upon the subject of the witness' examination-in-chief," but "when cross-examination is made for the purpose of impeaching the credibility of a witness, the method and duration of the cross-examination for these purposes rest largely in the discretion of the trial court, and the trial court may properly exclude such cross-examination when it becomes merely repetitious or argumentative"). Still, the discretionary power of the trial judge to confine cross-examination is subject to reasonable limits, as "`[i]t does not include the authority to exclude altogether questions, and the answers thereto, which directly challenge the disinterestedness . . . of the witness' testimony.'" State v. Carey, 285 N.C. 497, 508, 206 S.E.2d 213, 221 (1974) (emphasis added) (citation omitted). "Finally, [i]n order for this Court to rule on the trial court's exclusion of evidence, a specific offer of proof is required unless the significance of the excluded evidence is clear from the record." Reid, ___ N.C. App. at ___, 693 S.E.2d at 231 (internal quotation marks and citation omitted).
Defendant contends that he was prohibited from impeaching Patrick when the trial court sustained the State's objections to two questions regarding Patrick's guilty plea to conspiracy to commit robbery. First, Defendant was not allowed to ask Patrick if she knew she "would receive substantial time if . . . convicted of armed robbery." However, defense counsel succeeded in questioning Patrick about her understanding of the sentence she "would receive if . . . convicted of that which [she was] charged with originally, first degree murder," and Patrick answered that she knew she would be imprisoned for life. The trial court then sustained the State's objection to Defendant's question as to whether Patrick was, in fact, "avoiding that charge." The trial court, however, afforded Defendant the opportunity to fully explore the circumstances bearing upon Patrick's credibility as a witness.
Upon cross-examination of Patrick, defense counsel elicited testimony showing that she had initially lied to the police about her involvement in the scheme that culminated in Gladney's death; that she was romantically involved with Short; that she had agreed to plead guilty to conspiracy to commit robbery with a dangerous weapon in exchange for a suspended sentence of 31 months and supervised probation; and that she had previously lied to police about an unrelated automobile accident in which she was involved.
These answers, along with Patrick's response that she knew she was pleading to a charge that carried a lesser sentence than that with which she was initially charged, clearly placed before the jury Patrick's reasons for providing testimony at Defendant's trial. Thus, by sustaining the State's objections to the questions at issue, the trial court by no means "exclude[d] altogether questions, and the answers thereto, which directly challenge[d] the disinterstedness or credibility of [Patrick's] testimony." Carey, 285 N.C. at 508, 206 S.E.2d at 221 (emphasis added). Moreover, defense counsel laid no foundation indicating that Patrick would have been charged with armed robbery in addition to first degree murder, rendering Defendant's first excluded question objectionable for a lack of relevance. As to the second excluded question regarding whether Patrick was avoiding the first degree murder charge, the preceding testimony made the jury fully aware that her motivations for testifying were based, at least in part, on avoiding a life sentence such that the trial court was well within its discretion in limiting the repetitious cross-examination.
Likewise, the trial court properly limited the scope of Defendant's cross-examination of Short while affording him a full and fair opportunity to challenge the witness's disinterest in providing testimony. Short testified on direct and cross-examination that he pled guilty "to a bunch of other things" that were consolidated into his agreement, one of which was a charge for possession of marijuana with intent to sell or deliver. Defendant's argument focuses on only two questions to which objections were sustained during Short's cross-examination, and these questions concerned the date of that offense and whether Short sold marijuana or cocaine with Seven following the date of Gladney's murder. While Defendant acknowledges that the scope of impeachment questioning when attacking the credibility of a witness is restricted — citing State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993), for the rule that inquiry into prior convictions is limited "to the name of the crime, the time and place of the conviction, and the punishment imposed" — he argues that "the questioning here was not designed to show that Short lacked credibility because he had a prior conviction[,] . . . [but] would have shown that after the shooting of Gladney, Short and Seven continued to have a close relationship with each other in which they sold marijuana and cocaine together." However, the significance Defendant attaches to this evidence in his brief was not conveyed to the trial court during Defendant's offer of proof. Where the question could be excluded under Rule 609(a), the impeachment relevance of when and with whom Short sold the drugs is not at all clear from the record. Moreover, the transcript is replete with evidence of the close relationship between Short and Seven, such that Defendant was not prohibited altogether from revealing potential biases of Short and Seven towards each other and the effect their "brother-like" relationship may have had on their respective testimony. Accordingly, the trial court did not abuse its discretion in sustaining the State's objections.
II. References to Gang-Related Activity
Defendant makes two different arguments challenging the trial court's admission of evidence referencing gang activity. First, Defendant assigns plain error to the trial court's allowing Patrick and Short to testify that, in their plea agreements, they stipulated to an aggravating factor that their respective crimes were gang-related. Second, Defendant argues that the trial court erred in finding gang references in a letter from Defendant to Patrick admissible under Evidence Rule 403 and in denying Defendant's pretrial motion in limine to redact such references.
Evidence of gang membership is generally inadmissible if it is irrelevant to the issue of defendant's guilt. State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985). Where all relevant evidence is generally admissible, N.C. Gen. Stat. § 8C-1, Rule 402 (2009), evidence will be deemed relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). On the other hand, evidence that has "not been connected to the crime charged and which [has] no logical tendency to prove any fact in issue [is] irrelevant and inadmissible." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228-29 (1991). The trial court is also constrained by Rule 403, which "calls for a balancing of the proffered evidence's probative value against its prejudicial effect," such that "relevant evidence is properly admissible under Rule 402 unless the judge determines that it must be excluded, for instance, because of the risk of ` unfair prejudice.'" State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986); see also N.C. Gen. Stat. § 8C-1, Rule 403 (Commentary) (2009) ("`Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one."). However, evidence which is probative to the State's case will necessarily have a prejudicial effect on the defendant, and "the question, then, is one of degree." Mercer, 317 N.C. at 94, 343 S.E.2d at 885. While the question of "[w]hether or not to exclude evidence under Rule 403 . . . is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion[,]" State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995), "[a] trial court's rulings on relevancy are not discretionary and not reviewed under an abuse of discretion standard," but "are given great deference on appeal." State v. Bodden, 190 N.C. App. 505, 510, 661 S.E.2d 23, 26 (2008).
A. Gang-Related Aggravating Factors
Patrick and Short each testified to the details of their pleas, which included: reference to their respective record levels for sentencing; a promise to "provide truthful testimony concerning any events" related to this case"; a requirement they stipulate to an aggravating factor that "the offense was committed at the direction of any criminal street gang to promote or assist any criminal conduct by gang members"; and a recitation of the sentence each would receive. Defendant contends that the details of Short's plea arrangement were not relevant because they were elicited during direct examination — prior to any cross-examination concerning the plea — before his credibility had been attacked, and the information regarding the gang-related factor elicited from Patrick on redirect was improper because rehabilitation evidence must be logically related to the impeaching fact; thus the admission of both constituted plain error. We disagree.
Conceding that the State would not contend that Gladney's murder was a gang-related offense, the district attorney argued that the connection of Defendant, Short, and Patrick with the gang revealed "how they associated" with one another. In opposition to Defendant's motion in limine, the State indicated "[i]t's all about the association involved, how they knew each other and why they knew each other and the motivation of [Short] to participate with [Defendant]." Indeed, the evidence showed that Short's motivation for participating was an elevation in status in the gang itself, as the State claimed it would. Morever, where Defendant himself emphasizes the inconsistencies in the prosecution witnesses' testimony and Short's story was that he performed the attempted robbery at Defendant's direction, evidence of the gang-related aggravating factor was relevant to bolster Short's credibility for his motivation to comply with Defendant's order to carry out the planned crime. Cf. State v. Hightower, 168 N.C. App. 661, 667, 609 S.E.2d 235, 239 (2005) (holding accomplice's testimony regarding the defendant's membership in a gang "provide[d] evidence of defendant's motive, as well as the reason for [the accomplice's] involvement in the crime" (emphasis added)). Defendant does not make any argument under Rule 403 regarding this evidence, and we conclude that the trial court did not abuse its discretion in denying this prong of the motion in limine.
Notwithstanding the relevance of this plea bargain detail, to prove plain error, Defendant must show that the failure to strike the portions of Patrick and Short's testimony referring to gang activity was error and that it "had a probable impact on the jury's finding that [Defendant] was guilty." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks and citation omitted). Defendant has failed to sustain this burden. Thus, even assuming arguendo that the trial court erred in allowing the fleeting references to gangs, there is nothing in the record that indicates the State highlighted these references to gang activity in its recital of the pleas in their entirety or that the jury's attention was in any way drawn to that specific portion of the agreements. Thus, there is no reason to conclude that without the admission of these two sentences, contained within plea agreements which had already been the subject of cross-examination for impeachment purposes and read without emphasis thereon, the jury probably would have found Defendant not guilty. See, e.g., State v. Gayton, 185 N.C. App. 122, 125, 648 S.E.2d 275, 278 (2007) (holding "improperly admitted evidence relating to defendant's membership in a gang" could not have influenced the outcome of trial). Defendant argues that "the fact that a juror asked to be removed mid-trial because she could not be fair and impartial in a case involving gangs" shows that the introduction of these two sentences probably impacted the verdict. However, this juror made clear to the trial court that she "had some personal experiences that cause[d] [her] to be unable to be fair and impartial," and, where the circumstance was unique to one juror, an assumption that the remaining jurors shared her view or resolved any doubts in the State's favor thereby is entirely speculative and unsupported by the record.
B. Gang References in Defendant's Letter to Patrick
Defendant also argues that the trial court erred in failing to redact gang references from a letter Patrick claimed she received from Defendant, after Defendant sought exclusion thereof through his motion in limine and objection at trial. He first contends that references to the Bloods and Crips and to someone becoming his "next souljah" were irrelevant, but also argues in the alternative that "even if this evidence had some tenuous relevance, it should have been excluded under Rule 403." We disagree.
Mindful that evidence of gang membership is inadmissible if irrelevant to any issue in the case, we have determined that the gang evidence was indeed relevant to the relationship between the participants and the reason for their involvement in the crime. While the record reveals that Defendant may have been "the self-claimed leader of the local Folk Nation [gang]" in Greensboro, and the challenged references were to different gangs to which Defendant did not belong, evidence of gang participation in general was relevant to explain the accomplices' — especially Short's — conduct, which reflected on Defendant's role in the crime, a central issue in the case. See State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973) ("Evidence is relevant if it has any logical tendency to prove a fact at issue in a case, and in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact."). Thus, the trial court did not err in finding the evidence relevant in its capacity to "throw any light upon" Defendant's relationship to those with whom he planned the crime and who allegedly obliged his directives.
Moreover, the letter containing these gang-related references, which consisted of seven obscenity-filled pages accusing Short and Seven of being "snitches," suggesting how to place the blame on them, and making several other incriminatory statements, was read to the jury in its entirety without any emphasis on the single references to Bloods, Crips, and Souljah. We conclude that the trial court was well within its discretion in determining that the few words therefrom to which Defendant took exception were not so unfairly prejudicial so as to outweigh their relevance. Accordingly, the trial court did not abuse its discretion in refusing to redact the two gang references from the letter.
III. Admission of Defendant's Letter to Patrick
Also regarding the letter Patrick allegedly received from Defendant while he was in jail awaiting trial, Defendant claims the trial court erred by allowing Patrick to testify that the letter contained "information that only [Defendant] would know." Specifically, Defendant contends that Evidence Rules 602 and 701 prohibit the admission of this testimony and that Patrick's statement "was the only link between Defendant and the letter." See N.C. Gen. Stat. § 8C-1, Rule 602 (2009) ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.); N.C. Gen. Stat. § 8C-1, Rule 701 (2009) ("[Lay witness] 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."). Defendant alleges that the trial court impermissibly allowed Patrick to speculate about his state of mind where she "had no personal knowledge of what kind of `information only [he] would know' about the night of October 27, 2007." However, the challenged testimony was elicited for authentication purposes just prior to the State's request that the letter be received into evidence and not to reveal anything about Defendant's state of mind. Thus, the question is whether the letter was properly admitted, which we review for an abuse of discretion. See State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009) ("We review the trial court's decision to admit evidence for abuse of discretion.").
On voir dire examination, Patrick indicated that she had "seen the signature and the handwriting before by [Defendant] so [she] recognize[d] it very well." Counsel for Defendant objected to the letter on the grounds of inadequate authentication, and the trial court overruled the objection because of Patrick's testimony regarding "the basis for being able to recognize the handwriting" in that "she [was] familiar with the handwriting and recognize[d] it as being the handwriting of a specific person." As the State proceeded before the jury, Patrick testified that the letter contained information that only Defendant would know regarding the events surrounding Gladney's murder, and Defendant objected "as to what he would know," which was overruled. The State then requested that the letter be admitted into evidence, and no further mention was made regarding what only Defendant knew. Thus, authentication of the letter was clearly premised on Patrick's familiarity with Defendant's handwriting, as already recognized by the trial court following voir dire, and the assertion about Defendant's unique knowledge of its contents had no impact on the letter's admissibility. Where the trial court's determination that Patrick sufficiently authenticated the letter was proper, leaving the weight and credibility thereof for the jury, the challenged testimony, even if speculative, was in no way prejudicial to Defendant. See State v. Wiggins, 334 N.C. 18, 34, 431 S.E.2d 755, 764 (1993) (stating Evidence Rule 901(b)(2) specifically allows a non-expert to opine "as to the genuineness of handwriting if that witness has acquired familiarity with the handwriting at issue prior to the court action" and "[t]he credibility, probative force, and weight is a matter for the jury").
IV. Lesser-Included Offense
Defendant argues that the trial court erred by denying his request to instruct on and submit the charge of second degree murder to the jury. We disagree.
Our Supreme Court has clarified the standard for determining whether the trial court is required to instruct on second degree murder as a lesser-included offense in the context of felony murder:
(i) If the evidence of the underlying felony supporting felony murder is in conflict and the evidence would support a lesser-included offense of first-degree murder, the trial court must instruct on all lesser-included offenses supported by the evidence whether the State tries the case on both premeditation and deliberation and felony murder or only on felony murder. (ii) If the State tries the case on both premeditation and deliberation and felony murder and the evidence supports not only first-degree premeditated and deliberate murder but also second-degree murder, or another lesser offense included within premeditated and deliberate murder, the trial court must submit the lesser-included offenses within premeditated and deliberate murder irrespective of whether all the evidence would support felony murder. (iii) If the evidence as to the underlying felony supporting felony murder is not in conflict and all the evidence supports felony murder, the trial court is not required to instruct on the lesser offenses included within premeditated and deliberate murder if the case is submitted on felony murder only.
State v. Millsaps, 356 N.C. 556, 565, 572 S.E.2d 767, 773-74 (2002) (internal citations omitted).
Here, the State proceeded on felony murder alone, relying on attempted robbery with a dangerous weapon as the underlying felony, and presented no evidence on premeditation and deliberation. As explained above, "when the state proceeds on a theory of felony murder only, the trial court should not instruct on lesser-included offenses `[i]f the evidence as to the underlying felony supporting felony murder is not in conflict and all the evidence supports felony murder.'" State v. Gwynn, 362 N.C. 334, 336, 661 S.E.2d 706, 707 (2008) (quoting Millsaps, 356 N.C. at 565, 572 S.E.2d at 774). Thus, "[D]efendant's argument turns on whether the evidence of [attempted] robbery with a dangerous weapon was in conflict." Id. at 337, 661 S.E.2d at 707. Defendant, however, does not argue that there was any conflict in the evidence as to the elements of armed robbery as the underlying felony. Rather, he offers two inapposite grounds in support of his contention that an instruction on second degree murder was warranted: (1) variances in the testimonies of the State's witnesses would have made the jury suspicious about Defendant's involvement in the crime, and (2) the jury could have "found that the killing did not occur while Defendant or Short was attempting to perpetrate robbery." As to the argument regarding inconsistencies in the witnesses' stories, such goes to the weight of the evidence only, as credibility is a matter for determination by the jury. Moreover, and notwithstanding his second point, Defendant conceded during the charge conference that there was no conflicting evidence with respect to the underlying felony. Where the State proceeded solely on a felony murder theory, the trial judge also made clear during his instructions to the jury that any determination that Defendant did not participate in the underlying felony required a verdict of not guilty. We conclude that the trial court was correct in declining to include an instruction on second degree murder as a lesser-included offense of felony murder where there was no conflicting evidence as to the underlying felony in this case.
V. Autopsy Evidence
Defendant argues that it was plain error for the trial court to allow expert pathologist Dr. Radisch to testify to results of an autopsy performed by non-testifying declarant Dr. Gaffney-Kraft. He contends that results of forensic analyses, including autopsy results, constitute testimonial evidence pursuant to Melendez-Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314 (2009), and our courts' application thereof, such that the admission of Dr. Radisch's testimony regarding the autopsy's major findings violated his cross-examination rights guaranteed by the Confrontation Clause of the Sixth Amendment. Defendant also challenges the trial court's admission of the projectile recovered from Gladney's body as plain error, where Dr. Radisch did not authenticate the exhibit and the foundation therefor was accordingly deficient.
Defendant concedes, however, that he did not object to either Radisch's testimonial statements regarding the autopsy results or the introduction of the projectile. Where "constitutional error will not be considered for the first time on appeal," State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005), we dismiss Defendant's Confrontation Clause argument for failure to preserve the issue for appellate review. As such, the admission of the autopsy findings, which included reference to "a gunshot entrance wound of the right buttock" and recovery of "a large caliber projectile or bullet" from the lung, are left undisturbed. Consequently, Defendant cannot show that plain error resulted from the admission of the bullet already mentioned to the jury, and we overrule his authentication argument as well.
VI. Cumulative Error
Defendant argues that, even if no single error was sufficiently prejudicial to warrant a new trial, the cumulative effect of the alleged errors caused the jury to find Defendant guilty of first degree murder rather than second degree murder or return a verdict of not guilty, which would have been the case without the accumulated impact of the "numerous errors."
"Cumulative errors lead to reversal when `taken as a whole' they `deprived [the] defendant of his due process right to a fair trial free from prejudicial error.'" State v. Wilkerson, 363 N.C. 382, 426, 683 S.E.2d 174, 201 (2009) (quoting State v. Canady, 355 N.C. 242, 254, 559 S.E.2d 762, 768 (2002)). Defendant's argument, however, is without merit because we have concluded that the trial court committed no error during the guilt-innocence phase of Defendant's trial in admitting the evidence challenged on appeal. Accordingly, Defendant is not entitled to a new trial.
VII. Sufficiency of the Indictment
Defendant argues the trial court lacked jurisdiction to enter judgment on his conviction because the short-form murder indictment failed to allege all the elements of first degree murder.
While, as noted above, "[c]onstitutional questions not raised and passed upon in the trial will not ordinarily be considered on appeal[,] . . . where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time." State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000) (internal quotation marks and citations omitted). However, our Supreme Court "has consistently and unequivocally upheld short-form murder indictments as valid under both the United States and the North Carolina Constitutions." State v. Hunt, 357 N.C. 257, 274, 528 S.E.2d 593, 604 (2003) (citing Braxton, 352 N.C. at 173-75, 531 S.E.2d at 437; State v. Wallace, 351 N.C. 481, 503-08, 528 S.E.2d 326, 341-43 (2000); State v. Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624, 628 (1996); State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792 (1985)). Where the indictment in this case complied with the short-form indictment authorized by N.C. Gen. Stat. § 15-144 and, as Defendant concedes, his contention has been rejected by our Supreme Court, we overrule this argument.
VIII. Restitution
Defendant argues that the trial court's award of restitution, requiring him to pay $1,822.32, was erroneous because it was based on an unsworn victim impact statement. We disagree.
Initially, we note that notwithstanding Defendant's failure to specifically object to the trial court's restitution order, this issue is deemed preserved for appellate review. See N.C.R. App. P. 10(a)(1) (permitting any issue "which by rule or law was deemed preserved . . . [to be] made the basis of an issue presented on appeal"); N.C. Gen. Stat. § 15A-1446(d) (2009) (allowing sentencing errors to "be the subject of appellate review even though no objection, exception or motion has been made in the trial division"); State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) ("While defendant did not specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18)."); see also State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917 (2010) (rejecting the State's argument that N.C. Gen. Stat. § 15A-1446(d)(18), in allowing appellate review of a judgment ordering restitution without objection at trial, is unconstitutional). Accordingly, we conduct a de novo review to determine whether "the amount of restitution recommended [or ordered] by the trial court [was] supported by evidence adduced at trial or at sentencing." State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995); see also N.C. Gen. Stat. § 15A-1340.36(a) (2009) ("The amount of restitution must be limited to that supported by the record. . . ."); State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560 (1986) ("Regardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence."). However, if "there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal." State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986).
Where the "trial court . . . base[s] the amount of restitution only upon the unsworn statements of the prosecutor, [such] does not constitute evidence and cannot support the amount of restitution recommended." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). Moreover, "the mere presentation of [a restitution] worksheet by the prosecutor [is] not sufficient to support [an] award of restitution." Mumford, 364 N.C. at 404, 699 S.E.2d at 917. On the other hand, this Court has concluded that a witness's unsworn victim impact statement is competent evidence for purposes of a restitution award. See State v. Hendricks, 138 N.C. App. 668, 671, 531 S.E.2d 896, 899 (2000) (reasoning that where "[t]he requirement that a witness be sworn in is contained within our rules of evidence" and the rules of evidence generally do not apply at sentencing, "the trial court committed no error by allowing [the] unsworn . . . impact statement").
Contrary to Defendant's assertion, the restitution award was not based solely upon the unsworn statements of the prosecutor or a restitution worksheet. Rather, the victim's brother, Ronnie Gladney, filed a victim impact statement on 24 September 2009, seeking restitution for burial expenses that were left unpaid by insurance. Although unsworn, Mr. Gladney's victim impact statement was properly considered by the trial court and constituted sufficient competent evidence to support an award of restitution. We are troubled, however, by the fact that the trial court ordered restitution in the amount of $1,822.32, where the victim impact statement requests $1,500.00, reflecting the difference in the funeral bill, listed in the victim impact statement at $6,500.00, and the amount covered by the Crime Victims Compensation Fund, listed at $5,000.00. The restitution worksheet, however, requests $1,822.32, and while the trial court also granted $1,822.32, the record lacks any competent evidence that would support this figure. Rather, the only competent record evidence related to restitution appears in the victim impact statement, and thus, only an amount of $1,500.00 is supported. Therefore, we remand the restitution award for the trial court to amend the order accordingly.
Defendant also points out that the trial court failed to complete Part IV of the Restitution Worksheet, Notice and Order by checking the appropriate box and argues that the award must be vacated. Where the trial judge signed both the order and the judgment, which specifically recommended that "a civil judgment be entered [in the amount of] $1822.32 for the benefit of Ronnie Gladney," and stated at sentencing that the court was awarding "restitution related to the decedent's funeral expenses in the sum of $1,822.32," the trial court's intent was clear and the omission on the order was simply a clerical error. Thus, we remand also for the trial court's correction of the error by completing Part IV of the restitution order.
In light of the foregoing, we hold Defendant received a trial free from prejudicial error but remand for amendment of the restitution amount awarded and for correction of a clerical error.
No error in part; Remanded in part.
Judges McGEE and HUNTER, JR. concur.
Report per Rule 30(e).