Opinion
No. COA12–468.
2013-02-5
STATE of North Carolina v. Stanton Mark MORETTI, Jr.
Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant.
Appeal by defendant from judgment entered 30 August 2011 by Judge James F. Ammons, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 27 September 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant.
ERVIN, Judge.
Defendant Stanton Mark Moretti, Jr., appeals from a judgment sentencing him to a term of 180 to 225 months imprisonment based upon his conviction for second degree murder. On appeal, Defendant contends that the trial court erred by allowing the admission of certain statements alleged to have been made by Defendant and by allowing the jury to consider the issue of Defendant's guilt of the lesser included offense of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
On the night of 22 February 2008, Defendant's wife, Anna Moretti, was talking on her phone outside a pizza establishment in Fayetteville when she was approached by Aaron McLeod. After coming in close proximity to Ms. Moretti, Mr. McLeod pulled out a knife and pointed it at her. As he did so, Ms. Moretti swatted at the knife, causing Mr. McLeod to drop the weapon and walk away. At that point, Ms. Moretti entered the restaurant and stated that someone had just tried to stab her.
The record contains conflicting evidence as to whether Ms. Moretti was injured as a result of Mr. McLeod's conduct.
Upon learning what had happened to his wife, Defendant was outraged and immediately exited the restaurant, displaying a handgun. As Mr. McLeod continued to walk away, Defendant fired several shots, at least one of which appeared to have been intended as a warning to Mr. McLeod. None of the shots that Defendant fired hit Mr. McLeod.
After firing the shots, Defendant returned to the pizza establishment, retrieved his keys, and entered his SUV. At that point, Defendant drove to the location where Mr. McLeod was walking and ran over Mr. McLeod with his vehicle at least four times, continuing to strike Mr. McLeod until he stayed down. After assaulting Mr. McLeod, Defendant expressed satisfaction about his conduct to the individuals who were in the vicinity, with Defendant's remarks including the use of a racially derogatory term and an expression of hope that Mr. McLeod was dead.
Later that night, Detectives Christine Hurley and Jennifer Geisinger of the Fayetteville Police Department spoke with Defendant, who waived his rights against compulsory self-incrimination. Although the interview room in which Defendant was questioned was equipped with audio and video recording equipment, none of those devices were ever activated by investigating officers. Instead, Detectives Geisinger and Hurley made handwritten notes of their discussions with Defendant. Defendant never saw, signed, or otherwise ratified or adopted these notes. Some of Detective Geisinger's notes reflected the substance of Defendant's statements while others noted Defendant's exact words. Detective Geisinger's notes were later incorporated into a supplemental report, which became part of the investigative file. Similarly, Detective Hurley never described her notes as containing a verbatim account of Defendant's statements or an exact recitation of what Defendant had stated during the interview. Instead, Detective Hurley's notes reflected her understanding of what Defendant had said during their conversation.
According to Detective Geisinger, Defendant decided to “floor[ ] it” when he saw Mr. McLeod open up his coat because he was not sure if Mr. McLeod had a gun. Defendant told Detective Geisinger that he ran over Mr. McLeod several times because Mr. McLeod kept getting up despite the fact that Defendant wanted him to stay down. At one point during this interview, Defendant stated, “I hope he dies; God forgive me.” Similarly, Detective Hurley indicated that Defendant heard his wife crying and yelling that she had been stabbed; that Defendant shot at Mr. McLeod; that Defendant's lack of faith in the police led him to try and stop Mr. McLeod; that, since he thought that Mr. McLeod had a gun and was going to shoot him, Defendant sped up and hit Mr. McLeod; and that Defendant ran over Mr. McLeod multiple times because Mr. McLeod kept getting up and because Defendant wanted to protect his family. In addition, Detective Hurley noted that Defendant claimed to have actually seen Mr. McLeod attempting to stab his wife and that Defendant expressed the hope that Mr. McLeod would die.
B. Procedural History
On 26 February 2008, a warrant for arrest charging Defendant with first degree murder was issued. On 17 November 2008, the Cumberland County grand jury returned a bill of indictment charging Defendant with first degree murder.
The charge against Defendant came on for trial before the trial court and a jury at the 22 August 2011 criminal session of the Cumberland County Superior Court. At trial, Detective Geisinger testified concerning the statements that Defendant had made in her presence. On redirect examination, Detective Geisinger identified her notes and the portion of her report relating to her conversation with Defendant, both of which were subsequently admitted into evidence and read to the jury without objection from Defendant. Similarly, the State had Detective Hurley read the notes that she had made during her conversation with Defendant and the supplemental report that she submitted based on those notes to the jury and obtained the admission of Detective Hurley's notes into evidence without any objection from Defendant.
The State did not seek to have the report that Detective Hurley prepared concerning the statements that Defendant made in her presence admitted into evidence.
On 30 August 2011, the jury returned a verdict convicting Defendant of second degree murder. On the same date, the trial court entered a judgment sentencing Defendant to a term of 180 to 225 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Admission of Defendant's Statement
In his first challenge to the trial court's judgment, Defendant argues that the trial court committed plain error by allowing Detectives Geisinger and Hurley to read the notes and reports that they had prepared concerning their conversation with Defendant and admitting the notes and Detective Geisinger's report into evidence. According to Defendant, the evidence in question was inadmissible because it did not reflect the questions that the investigating officers had posed to Defendant, did not constitute a verbatim transcript of their interview of Defendant, contained information that Defendant had never acknowledged to be accurate, and was not admissible for corroborative purposes. We do not believe that Defendant is entitled to relief on the basis of this argument.
As Defendant candidly concedes, he did not object to the admission of the challenged evidence at trial. In such circumstances, we review a convicted criminal defendant's arguments using a plain error standard of review. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
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) (quotation marks and citations omitted)(alterations in original). As a result, the ultimate issue raised by this aspect of Defendant's challenge to the trial court's judgment is whether the evidence in question was, in fact, admissible and, if so, whether its admission had “a probable impact on the jury's finding that the defendant was guilty.” Id.
In attempting to persuade us that the challenged evidence was unlawfully admitted, Defendant places principal reliance on State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1976). In Walker, the defendant and other individuals, all of whom had been implicated in a robbery, made statements absolving Defendant of any responsibility for the commission of that crime. Id. at 138, 152 S.E.2d at 136. Although the defendant was questioned again on the following day, there was no testimony at trial concerning what Defendant said on that occasion. Id. At trial, the other participants testified that Defendant did not know about the plan to commit a robbery. Id. The trial court, however, allowed an investigating officer to read to the jury a two-page typed, signed inculpatory statement which allegedly contained “exactly” what the defendant claimed to have happened despite the fact that the statement had not been created by the defendant and the fact that the defendant did not read the statement before signing it. Id. at 137–39, 152 S.E.2d at 135–37. The Supreme Court held that the admission of this confession constituted prejudicial error.
The Supreme Court did not distinguish between the reading of the statement into evidence and the admission of the written statement into evidence in analyzing the admissibility of the challenged evidence in Walker. 269 N.C. at 139, 152 S.E.2d at 137.
According to well-established North Carolina law, a “confession” is “an acknowledgement in express words by the accused in a criminal case of his guilt of the crime charged or of some essential part of it.” State v. Fox, 277 N.C. 1, 25, 175 S .E.2d 561, 576 (1970). “ ‘A confession which has been wholly or partially reduced to writing is ordinarily admissible against an accused where it was freely and voluntarily made by him, regardless of the fact that it was reduced to writing by another person, where it was read over to or by the accused, or was translated to him, and signed or otherwise admitted by him to be correct.” ’ Walker, 269 N.C. at 139, 152 S.E.2d at 137 (quoting 23 C.J.S. Criminal Law § 833(a)). As a result, in order for a written confession to be admissible, the defendant:
must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused.
Id. (quoting 23 C.J.S., Criminal Law § 833(b)). “In other words, the defendant must in some manner indicate his ‘acquiescence in the correctness' of a written instrument tendered as his confession.” State v. Bartlett, 121 N.C.App. 521, 522, 466 S.E .2d 302, 303 (1996) (quoting Walker, 269 N.C. at 141, 152 S.E.2d at 137). As a result of the fact that “it appear[ed] affirmatively from the State's evidence that the typed statement was not read by or to defendant;” that “it appear[ed] positively from the State's evidence that defendant did not have such knowledge;” and the fact that “[t]he typed statement does not purport to be a verbatim record of statements made by” the defendant, “the verbatim reading to the jury of the typed statements was not competent substantive evidence of the matters set forth therein” and “was not competent as corroborative evidence” given that “page one did not corroborate” one of the investigating officers and that “[p]age two did not corroborate” the other. Walker, 269 N.C. at 139–40, 152 S.E.2d 137–38. However, “it would be permissible for [the investigating officers] to refer to a memorandum prepared by [them] for the purpose of refreshing [their] recollection as to statements made by defendant,” with “their personal sworn testimony [being] the only competent substantive evidence.” Walker, 269 N.C. at 140, 133 S.E.2d at 137–38; see also State v. Greenlee, 22 N.C.App. 489, 491, 206 S.E.2d 753, 754 (stating that “[i]t was permissible for each officer to refer to a memorandum prepared by him for the purpose of refreshing his recollection as to statements made by the defendant”), appeal dismissed, 285 N.C. 761, 209 S.E.2d 285,cert. denied, 286 N.C. 339, 210 S.E.2d 59 (1974), cert. denied,421 U.S. 969, 95 S.Ct. 1963, 44 L.Ed.2d 458 (1975). As a result, the ultimate holding in Walker is that “a written statement which was an interpretative narration of defendant's confession and was signed by defendant without being read by or to him, was inadmissible,” there being “a sharp difference between reading from a transcript which, according to sworn testimony, records the exact words used by an accused, and reading a memorandum that purports to be an interpretative narration of what the officer understood to be the purport of statements made by the accused.” State v. Cole, 293 N.C. 328, 334, 237 S.E.2d 814, 818 (1977) (quoting Walker, 269 N .C. at 141, 152 S.E.2d at 138;see also State v. Boykin, 298 N.C. 687, 692–93, 259 S.E.2d 883, 887 (1979) (holding that the trial court did not err by admitting a written statement which was prepared by an officer, who “handed the statement to the defendant,” “who read it,” “circled one [minor] part which he indicated was incorrect,” and “initialed it,” thereby “adopt[ing] the statement as his own”), cert. denied,446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed.2d 264 (1980); State v. Spencer, 192 N.C.App. 143, 153, 664 S.E.2d 601, 608 (2008) (holding that the trial court erred by “allowing defendant's purported confession to be read to the jury on the grounds that “the only evidence of defendant's answers during his police interview was [the officer's] rough hand-written notes, which were not verbatim,” and that the officer “did not follow up with defendant to have defendant look over and confirm his notes as an accurate representation of defendant's answers”), disc. review denied,363 N.C. 380, 680 S .E.2d 208 (2009); Bartlett, 121 N.C.App. at 522, 466 S.E.2d at 303 (holding that the trial court erred by admitting the “defendant's statement, [which had been] reduced to writing by another person,” and “allow[ing] the officer to read it to the jury” when the officer “did not write down the questions asked of defendant,” when the officer “never testified that his handwritten notes were an exact reflection of the answers given by the defendant,” and when “there is no evidence that the defendant acquiesced in the correctness of the writing”); State v. Melvin, 99 N.C.App. 16, 22, 392 S.E.2d 740, 743–44 (1990) (stating that the trial court “properly could have admitted defendant's statement into evidence” given that “defendant acknowledged the correctness of part of the writing by having [the officer] include at the bottom of the confession the statement that some of the facts were true and some were not due to the slant [with which] it was written”).
The extent to which a document used to refresh an officer's recollection concerning a defendant's statements pursuant to N.C. Gen.Stat. § 8C–1, Rule 612, or which is read into evidence as a recollection recorded, N.C. Gen.Stat. § 8C–1, Rule 803(5), depends upon the extent to which the document is independently admissible and whether the document is offered by the party proffering the testimony of the supported witness or the adverse party. N.C. Gen.Stat. § 8C–1, Rule 612(c) (providing that “[a] party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness”); N.C. Gen.Stat. § 8C1, Rule 803(5) (providing that a “memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly” “may not itself be received as an exhibit unless offered by an adverse party”).
Assuming, without deciding, that the notes taken and reports prepared by Detectives Geisinger and Hurley were admitted in error, we are not persuaded that any “error [stemming from the admission of those documents] had a probable impact on the jury's finding that the defendant was guilty.” Lawrence, –––N.C. at ––––, 723 S.E.2d at 334 (quotation marks omitted). In seeking to persuade us to reach a contrary conclusion, Defendant has focused on the weight typically given to a defendant's erroneously admitted confession and argues that, “while other evidence of [Defendant's] guilt was admitted, it cannot be said that it was ‘just as weighty’ as the improperly admitted notes and reports containing his purported confession.” Although Defendant cites certain decisions for the proposition that, in “the absence of some other evidence ‘just as weighty,’ the improperly admitted confession is prejudicial error and requires a new trial,” Bartlett, 121 N.C.App. at 523, 466 S.E.2d at 303 (quoting State v. Edgerton, 86 N.C.App. 329, 335, 357 S.E.2d 399, 404 (1987) (stating that, “[e]ven when there is other evidence to support a confession, it cannot be said beyond a reasonable doubt that the erroneous admission of a defendant's confession is harmless error, unless some evidence just as weighty, was properly admitted into evidence, such as another confession substantially similar to the confession erroneously admitted”) (citations omitted), rev'd on other grounds, 328 N.C. 319, 401 S .E.2d 351 (1991)), the decisions upon which Defendant relies were not decided under a plain error standard of review. As a result, the mere fact that the erroneously admitted evidence could be construed as a confession does not, without more, justify a finding of plain error.
A careful examination of the record reveals the presence of ample evidence tending to show Defendant's guilt apart from the challenged notes and report. A number of witnesses testified to the apparently undisputed fact that, after Mr. McLeod assaulted his wife, Defendant shot at the victim as he walked away from the scene of the assault, chased the victim down in his SUV, and ran the victim over multiple times. In addition, other witnesses testified that Defendant showed little or no remorse about having attacked Mr. McLeod and that Defendant referred to Mr. McLeod in derogatory terms. For example, Detective Geisinger, in a portion of her testimony delivered prior to the admission of her notes and the portion of the report relating to her conversation with Defendant, testified that Defendant told her that “I hope he dies; God forgive me.” Although Defendant attempted to persuade the jury that his actions were justified on the grounds that he acted in self-defense after having lawfully attempted to detain Mr. McLeod, the record contains ample basis for the jury's determination that Defendant was guilty of second degree murder in connection with the killing of Mr. McLeod. Thus, any error that may have occurred as a result of the admission of the challenged notes and reports did not rise to the level of plain error and does not provide any basis for an award of appellate relief from Defendant's conviction.
B. Second Degree Murder Jury Instruction
Secondly, Defendant contends that the trial court erroneously instructed the jury to consider the issue of his guilt of the lesser included offense of second degree murder. More specifically, Defendant contends that the trial court should not have allowed the jury to consider whether he was guilty of second degree murder because the record only supported convictions for either first degree murder or voluntary manslaughter. Defendant's request for relief from the trial court's judgment based upon this contention is without merit.
According to well-established North Carolina law, first degree murder is defined as “the unlawful killing of another human being with malice and with premeditation and deliberation,” while second degree murder is “the unlawful killing of another human being with malice but without premeditation and deliberation.” State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994) (citing N.C. Gen.Stat. § 14–17; State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991); and State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983)), cert. denied,514 U.S. 1071, 115 S.Ct. 1708, 131 L.Ed.2d 569 (1995), overruled in part by State v. Richardson, 341 N.C. 585, 597, 461 S.E.2d 724, 731 (1995).
Premeditation and deliberation generally must be established by circumstantial evidence, because they ordinarily “ ‘are not susceptible to proof by direct evidence.” ’ “Premeditation” means that the defendant formed the specific intent to kill the victim some period of time, however, short, before the actual killing. “Deliberation” means that the intent to kill was formed while the defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation.
State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991)(citing State v. Meisenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981), quoting State v. Love, 296 N.C. 194, 203, 250 S.E.2d 220, 226–27 (1978), and State v. Faust, 254 N.C. 101, 108, 118 S.E.2d 769, 773,cert. denied,308 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961)). Among the circumstances from which premeditation and deliberation may be inferred are:
(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulty between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (b) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
Vause, 328 N.C. at 238, 400 S.E.2d at 62 (citing State v. Gladden, 315 N.C. 398, 430–31, 340 S.E.2d 673, 693,cert. denied,479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986)).
A trial court should instruct the jury on the issue of the defendant's guilt of a lesser included offense only if “there is evidence from which the jury could find that such included crime of lesser degree was committed.” ' State v. Ward, 286 N.C. 304, 311, 210 S.E.2d 407, 413 (1974) (quoting State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 545 (1954)), vacated in part on other grounds,428 U.S. 903, 96 S.Ct. 3206, 49 L.Ed.2d 1207 (1976). A trial judge should not allow the jury to consider the issue of the defendant's guilt of a lesser included offense “merely because the jury could possibly believe some of the State's evidence but not all of it.” State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991). In determining whether the issue of the defendant's guilt of second degree murder should be submitted to the jury in a case in which the State has charged the defendant with first degree murder:
[t]he determinative factor is what the State's evidence tends to prove. 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.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). As a result, the ultimate issue raised by this aspect of Defendant's challenge to the trial court's judgment is whether the record contains evidence tending to show that Defendant killed Mr. McLeod with malice, but without premeditation and deliberation.
A careful reading of the record indicates that, after initially questioning whether the trial court should allow the jury to consider the issue of his guilt of second degree murder, Defendant subsequently indicated on at least three separate occasions that a second degree murder instruction should be delivered. As a result, Defendant may have failed to clearly object to the submission of the issue of his guilt of second degree murder “before the jury retire[d] to consider its verdict” by specifying both “that to which objection is made and the grounds of the objection.” N.C.R.App. P. 10(a)(2). Admittedly, “an issue that was not preserved by objection noted at trial ... nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R.App. P. 10(a)(4) (emphasis added). In the event that a defendant who has failed to adequately comply with N.C.R.App. P. 10(2)(2) does not “specifically and distinctly” contend that plain error has occurred at trial, he or she has lost the right to seek relief on plain error grounds. State v. Parker, 350 N.C. 411, 444, 516 S.E.2d 106, 128 (1999) (stating that, since “defendant failed to specifically and distinctly contend. plain error,” “defendant has waived his right to appellate review of this issue”).
Although the State contends that Defendant failed to “specifically and distinctly” argue that the trial court's decision to allow the jury to consider the issue of his guilt of second degree murder constituted plain error, we need not reach that issue given our belief that the record supported the submission of the lesser included offense in question. The facts that one of the shots that Defendant fired at Mr. McLeod was not aimed at him, that Defendant indicated that he was attempting to detain Mr. McLeod following Mr. McLeod's assault upon Ms. Moretti, and that Defendant stated that he had continued to run over Mr. McLeod until he stayed down provide support of a contention that Defendant lacked the specific intent to kill required for first degree murder. The facts that the incident which led to Defendant's conviction began when Mr. McLeod attacked Ms. Moretti, that Defendant's anger stemmed from that attack rather than some sort of preexisting difficulties between himself and Mr. McLeod, and that Defendant was in a highly charged state from the time at which Ms. Moretti was attacked until Defendant stopped running over Mr. McLeod provide the basis for a contention that Defendant's conduct did not result from a specific intent to kill formed after premeditation and deliberation. As a result, given that the record before the trial court contained ample support for a finding that Defendant was guilty of second degree murder, the trial court did not err by submitting the issue of Defendant's guilt of that lesser included offense to the jury, obviating the necessity for us to definitively determine whether Defendant adequately preserved this issue for appellate review or properly asserted that any error committed by the trial court constituted plain error.
III. Conclusion
Thus, for the reasons set forth above, neither of Defendant's challenges to the trial court's judgment have merit. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Judges ROBERT N. HUNTER, JR., and MCCULLOUGH concur.
Report per Rule 30(e).