Opinion
No. COA13–90.
2013-07-2
STATE of North Carolina v. Brandon Eugene THOMPSON.
Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State. John R. Mills, for Defendant.
Appeal by Defendant from judgments entered 2 August 2012 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 24 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State. John R. Mills, for Defendant.
STEPHENS, Judge.
Background
A jury found Brandon Eugene Thompson (“Defendant”) guilty of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”), upon evidence that he shot Demario Thompson (“Thompson”) in a dispute over money on the morning of 18 July 2010, leaving Thompson paralyzed below the mid-chest. The trial court sentenced Defendant to consecutive prison terms totaling 230 to 295 months. SeeN.C. Gen.Stat. 15A–1354(b) (2010). Defendant gave timely notice of appeal.
Because the offenses occurred prior to 1 December 2011, the amendments to N.C. Gen.Stat. §§ 15A–1340.17(c)–(e) and 15A–1354(b)(1) enacted in N.C. Sess. Laws 2011–192 do not apply.
Discussion
I. Victim–Impact Evidence
Defendant first challenges the court's admission of the following testimony by Thompson regarding his condition:
Q Demario, what's your life like today'
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A It's totally different from the first 33, 34 years. I don't really wish this on nobody, being paralyzed. It's extremely difficult.
Q Does your situation cause you pain?
[DEFENSE COUNSEL]: Objection to the leading.
THE COURT: Overruled.
A Yes. It causes me pain, everybody that's got to help take care of me pain [sic]. It's a whole lot of pain being passed on due to this.
Defendant argues that this testimony was inadmissible “victim-impact evidence” and was both irrelevant to the guilt-innocence phase of the trial and unfairly prejudicial because it evoked the sympathy of the jurors.
At trial, Defendant made two types of objections: an objection as leading to the prosecutor's question, “Does your situation cause you pain' “ and a general objection to the prosecutor's question, “[W]hat's your life like today” '
“A leading question [is] one which suggests the desired response and may frequently be answered ‘yes' or ‘no.’.... A question is not leading where it directs the witness toward a specific matter to be addressed without suggesting an answer.” State v. White, 349 N.C. 535, 557, 508 S.E.2d 253, 267 (1998) (citations and certain quotation marks omitted), cert. denied527 U.S. 1026, 144 L.Ed.2d 779 (1999). “Rulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason.” State v. Kimble, 140 N.C.App. 153, 166, 535 S.E.2d 882, 891 (2000) (citations, quotation marks, and brackets omitted), cert. denied360 N.C. 178, 626 S.E.2d 833 (2005).
Here, the prosecutor asked Defendant whether his situation caused him any pain, Defendant objected, and the trial court overruled that objection. Though the prosecutor's question can be answered “yes” or “no,” and was answered “yes” in this circumstance, the question did not suggest either answer. We therefore hold that the trial court did not abuse its discretion in overruling Defendant's objection to the question as leading.
A general objection is stated merely, “Objection.” General objections are technically ineffective to preserve the questions argued on appeal where the evidence is competent for some purpose. State v. Bagley, 39 N.C.App. 328, 332, 250 S.E.2d 87, 90 (1979). Because “[t]here is no error in the overruling of a general objection where the evidence is competent for any purpose,” id., we next ask whether Thompson's testimony was admissible for any purpose.
Generally, evidence is “relevant,” and thus admissible, 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.R. Evid. 401; see alsoN.C.R. Evid. 402. “This Court reviews questions of relevancy de novo, but accords deference to the trial court's ruling.” State v. Shareef, ––– N.C.App. ––––, ––––, 727 S.E.2d 387, 397 (2012); see also Dunn v. Custer, 162 N.C.App. 259, 266, 591 S.E.2d 11, 17 (2004) (“Although the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.”) (citation and quotation marks omitted). Relevant evidence may otherwise “be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C.R. Evid. 403 (emphasis added). The trial court's weighing of probative value against the danger of unfair prejudice is reviewed only for abuse of discretion. Shareef, ––– N.C.App. at ––––, 727 S.E.2d at 397–98.
“North Carolina law allows victim[-]impact testimony by statute. SeeN.C. Gen.Stat. § 15A–833 [ (2011).] The admissibility of victim[-]impact testimony is limited by the requirement that the evidence not be so prejudicial it renders the proceeding fundamentally unfair.” State v. Raines, 362 N.C. 1, 15, 653 S.E .2d 126, 135 (2007) (certain citations omitted), cert. denied,557 U.S. 934, 174 L.Ed.2d 601 (2009). Although N.C. Gen.Stat. § 15A–833(a) limits evidence of victim impact to the sentencing hearing, an exception applies if the evidence “tends to show the context or circumstances of the crime itself[.]” State v. Graham, 186 N.C.App. 182, 191, 650 S.E.2d 639, 646 (2007), appeal dismissed and disc. review denied,362 N.C. 477, 666 S.E.2d 765 (2008). Moreover, when a particular type of harm to the victim is an element of the offense, evidence tending to show the existence of such harm is freely admissible and does not constitute inadmissible “victim[-]impact evidence.” State v. Lofton, 193 N.C.App. 364, 374, 667 S.E.2d 317, 324 (2008).
In Lofton, the defendant was charged with an assault crime, an element of which was the infliction of serious injury. Id. The victim testified that she experienced ongoing anxiety and nightmares as a result of the assault. In upholding the admission of her testimony, we reasoned:
“[S]erious injury, ... as used in N.C. [Gen.Stat.] § 14–32, includes serious mental injury caused by an assault with a deadly weapon.” Because “serious injury” may include serious mental injury, we deem [the victim's] testimony regarding her mental state to support an element of one of the crimes with which [the] defendant was charged, and it is therefore relevant.
Id. (quoting State v. Everhardt, 326 N.C. 777, 780, 392 S.E.2d 391, 393 (1990)).
In this case, because the infliction of serious injury is an essential element of AWDWIKISI under N.C. Gen.Stat. § 14–32(a) (2011), Thompson's account of the continuing effects of the shooting is relevant. The amount of pain and debilitation caused by an injury are “pertinent factors” bearing on its seriousness. State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991). Although Thompson also alluded to the impact of his paralysis on his caretakers, even this evidence tended to cast light on the severity of his injury through the extent of his dependency on others. Accordingly, we find no error in the trial court's admission of the challenged testimony on this ground.
Regarding Defendant's argument that the prosecutor improperly referred to the victim's pain and paralysis in his closing argument, we note that Defendant failed to object at trial and thus waived appellate review on that point. State v. Hickey, 317 N.C. 457, 472, 346 S.E.2d 646, 656 (1986). Further, we do not find any gross impropriety that would have required the trial court to intervene ex mero motu. See id. As discussed above, the evidence to which the prosecutor referred spoke directly to the “serious injury” element of AWDWIKISI, an issue of fact before the jury.
II. Double Jeopardy
Defendant next contends that his convictions for both attempted first degree murder and AWDWIKISI for the act of shooting Thompson violated the constitutional bar against double jeopardy. He acknowledges the North Carolina Supreme Court's contrary opinion in State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004) (“Because [the offenses of attempted murder and AWDWIKISI] contain[ ] at least one element not included in the other, [the] defendants have not been subjected to double jeopardy.”), cert. denied544 U.S. 909, 161 L.Ed.2d 285 (2005), but raises the issue to preserve it for federal habeas corpus review.
Assuming arguendo that Defendant presented this constitutional claim to the trial court, see State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010) (“To the extent [the] defendant relies on constitutional double jeopardy principles, we agree that his argument is not preserved because constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.”) (citations, quotation marks, and brackets omitted), we are bound by the precedent of Tirado, see State v. Shelman, 159 N.C.App. 300, 312, 584 S.E.2d 88, 96,disc. review denied,357 N.C. 581, 589 S.E.2d 363 (2003), as well as prior decisions of this Court to the same effect. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36–37 (1989); State v. Rogers, ––– N.C.App. ––––, ––––, 725 S.E.2d 342, 350,appeal dismissed and disc. review denied,366 N.C. 232, 731 S.E .2d 171 (2012). Accordingly, this argument is overruled.
III. Clerical Errors
Defendant further claims that the trial court erroneously assigned a prior record level (“PRL”) II when sentencing him for AWDWIKISI, despite the prosecutor's concession that Defendant had no prior record points and, thus, would be a PRL I. The State responds that the mistaken finding of a PRL II on the judgment is a scrivener's error. We agree.
The prosecutor repeatedly acknowledged at sentencing that no aggravating factors applied in this case, and that Defendant would be a PRL I. The State requested consecutive sentences at the top of the applicable presumptive range—73 to 97 months for AWDWIKISI and 157 to 198 months for attempted murder. SeeN.C. Gen.Stat. § 15A–1340.17(c), (e). The court sentenced Defendant in line with the State's request and signed a PRL worksheet reflecting Defendant's zero record points and corresponding PRL I. Although the judgment for attempted murder accurately records a PRL I, the judgment for AWDWIKISI assigns Defendant two record points and a PRL II. Having reviewed the record and the sentencing transcript, we conclude that these findings are mere clerical errors. State v. McIlwaine, 169 N.C.App. 397, 402, 610 S.E.2d 399, 402 (2005). Accordingly, we remand the judgment to the trial court for correction. Id.
Regarding Defendant's argument that he was prejudiced by the prosecutor's assertion at sentencing that Defendant “was out on bond” at the time of the shooting, we find that Defendant failed to preserve the issue by objection. N.C.R.App. P. 10(a)(1). The court made no finding that Defendant was on pretrial release at the time of his crimes and did not depart from the presumptive range during sentencing. SeeN.C. Gen.Stat. § 15A–1340.16(d)(12) (2011). Absent countervailing evidence in the record, we presume the court disregarded any improper argument at sentencing. Cf. In re J.B., 172 N.C.App. 1, 16, 616 S.E.2d 264, 273 (2005) (“[T]he trial court in a bench trial ‘is presumed to have disregarded any incompetent evidence.’ ”) (quoting In re Huff, 140 N.C.App. 288, 298, 536 S.E.2d 838, 845 (2000)).
As noted by Defendant, the trial court failed to mark the boxes on the judgment form indicating that the court “ma[de] no written findings” of aggravating and mitigating factors “because the prison term imposed is ... within the presumptive range[.]” Defendant suggests that it is therefore unclear whether he was sentenced at the top of the presumptive range or the bottom of the aggravated range. As previously discussed, however, the sentencing transcript reflects the court's intention to enter presumptive sentences without finding any aggravating factors. The fact that the court made no written findings is further indication of this intention. SeeN.C. Gen.Stat. § 15A–1340.16(c) (“The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range[.]”); see also State v. Ramirez, 156 N.C.App. 249, 259, 576 S.E.2d 714, 721 (“The fact that the trial court could have found aggravating factors and sentenced [the] defendant to the same term does not create an error in [the] defendant's sentence.”), disc. review denied,357 N.C. 255, 583 S.E.2d 286 (2003). The trial court's failure to check the appropriate boxes is a harmless clerical error, which should be remedied on remand. See State v. Sellers, 155 N.C.App. 51, 59, 574 S.E.2d 101, 106–07 (2002).
In its brief, the State also observes that the judgments misidentify the prosecuting attorney as Dale Andrew Morrill, rather than as Assistant District Attorney J. Luke Bumm, as he is identified in the transcript. Additionally, while the judgment for AWDWIKISI orders the sentence to begin at the expiration of Defendant's sentence for attempted murder, it erroneously designates attempted murder as offense number “51” in 10 CRS 56975, though it is listed as offense number “52” on the judgment and commitment. On remand, the trial court must amend the judgment to correctly identify the attorney for the State and to reflect that Defendant's sentence for AWDWIKISI begins at the expiration of his sentence for offense numbered “52” in 10 CRS 56975.
Accordingly, we hold that Defendant received a fair trial free from prejudicial error and remand for correction of the clerical errors in the judgments.
NO ERROR; REMANDED for clerical corrections. Judges McGEE and ELMORE concur.
Report per Rule 30(e).