NO. COA14-187
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 11 CRS 221675—78
JAMES E. FOSTER
Appeal by defendant from judgment entered 12 August 2013 by
Judge Anna Mills Wagoner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 12 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph E. Herrin, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
BRYANT, Judge.
Where our review is not frustrated, defendant cannot
establish that he was prejudiced by the trial court’s failure to
reconstruct arguments made during unrecorded bench conferences.
Accordingly, we find no prejudicial error in defendant’s trial.
On 23 May 2011, a Mecklenburg County grand jury indicted
defendant on two counts of assault with a deadly weapon with
intent to kill inflicting serious injury and two counts of
assault with a deadly weapon with intent to kill. A trial
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commenced on 5 August 2013, in Mecklenburg County Superior
Court, the Honorable Anna Mills Wagoner, Judge presiding.
Evidence at trial tended to show that at 2:36 a.m. on 8 May
2011, Charlotte-Mecklenburg Police Department received a 9-1-1
call from 1616 Lynford Drive. Upon arrival, the reporting
police officer observed medical personnel outside the residence
treating a young male in severe pain. Inside the residence, an
adult female was also being attended to by medical personnel.
The woman’s name was Robin Lewis and the young man was her son,
Quinton.1 While paramedics worked, Lewis stated to the officer
that she had been shot by James Foster, defendant. Later that
morning, the Charlotte-Mecklenburg Police Department received a
9-1-1 call from 5305 Lyrica Lane informing them that defendant
wanted to turn himself in.
Lewis later testified at trial that she had been in a
dating relationship with defendant and that the two had lived
together for ten months. Lewis had four children—a son,
Quinton, another son, and two daughters—who also lived with
Lewis and defendant. On the evening of 7 May 2011, Lewis and
defendant had an argument that escalated until defendant struck
Lewis in the face. Defendant left the home. When he returned,
1
A pseudonym has been used to protect the identity of the minor.
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Lewis testified that defendant was intoxicated to the point he
vomited on the floor and passed out. Lewis—a licensed practical
nurse—became concerned when defendant began sweating profusely.
Defendant was a diabetic, and there was a risk defendant could
slip into a diabetic coma. Lewis applied ice to cool
defendant’s body temperature. Defendant remained unconscious
for two and a half hours. When defendant awoke, everyone in the
residence was awake.
A. It seems like everything just broke
loose. When he first woke up he jumped
up saying where's his wallet, where's
his keys, somebody took his money,
can't find this. . . . [H]e started
blaming me. . . . And I was, like,
here's your stuff right here.
Q. Where was it?
A. Right there on my bed.
. . .
And he continued to -- I started
continuing the conversation about you
have to leave.
Q. And how did that go?
A. He said he'd leave and he started
grabbing his things, grabbing those
steri-lite totes out of the closet,
taking them down the steps one by one.
. . .
. . .
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Q. How was -- what was his response about
moving out? Did he become agitated or
angry?
A. He became angry.
While defendant moved his things out, Lewis and her children
gathered on the landing at the top of the stairs leading from
the first to second floor. Defendant was at the bottom of the
stairs. Lewis testified that at some point she saw that
defendant had a gun. While she was trying to push her children
back, she heard a lot of shots, and she felt two sharp pains.
Defendant then left the residence, and one of Lewis’ daughters
called 9-1-1. A handgun was later found on the floor near where
defendant had been standing. Quinton suffered from two gunshot
wounds: one to his intestines and another to his leg. Lewis
also suffered two gunshot wounds to her pelvic region.
At the close of the evidence, the jury found defendant
guilty of two counts of assault with a deadly weapon with the
intent to kill inflicting serious injury and two counts of
assault with a deadly weapon. The trial court entered a
consolidated judgment in accordance with the jury verdicts and
sentenced defendant to an active term of 69 to 92 months.
Defendant appeals.
__________________________________
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On appeal, defendant argues the trial court committed
prejudicial error when it conducted multiple off-the-record
bench conferences. Specifically, defendant contends that the
failure to record bench conferences amounts to a constitutional
violation warranting a new trial. We disagree.
“A violation of the defendant's rights under the
Constitution of the United States is prejudicial unless the
appellate court finds that it was harmless beyond a reasonable
doubt. The burden is upon the State to demonstrate, beyond a
reasonable doubt, that the error was harmless.” N.C. Gen. Stat.
§ 15A-1443(b) (2013).
Here, defendant has couched his contention that the trial
court failed to record bench conferences as a constitutional due
process violation; however, defendant fails to provide any
support for this contention. Moreover, the record does not
reflect that defendant raised his constitutional argument before
the trial court. See State v. Garcia, 358 N.C. 382, 410, 597
S.E.2d 724, 745 (2004) (“It is well settled that constitutional
matters that are not ‘raised and passed upon’ at trial will not
be reviewed for the first time on appeal.”). Yet despite this
initial contention, we note that in his argument defendant cites
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as his primary authority our Supreme Court’s opinion in State v.
Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992).
In Pittman, the defendant moved for a complete recordation
of all proceedings including bench conferences. The trial court
held unrecorded bench conferences. On appeal, the defendant
charged that the failure to record the bench conferences
amounted to a constitutional violation. Our Supreme Court
analyzed the issue against General Statutes, section 15A-1241.
Notably, in the instant case, defendant does not provide any
argument that a constitutional violation occurred at trial;
therefore, we review only for possible statutory violation.
Pursuant to General Statutes, section 15A-1241,
[t]he trial judge must require that the
reporter make a true, complete, and accurate
record of all statements from the bench and
all other proceedings except:
(1) Selection of the jury in noncapital
cases;
(2) Opening statements and final arguments
of counsel to the jury; and
(3) Arguments of counsel on questions of
law.
N.C. Gen. Stat. § 15A-1241(a) (2013). In State v. Cummings, our
Supreme Court stated that it “[did] not believe the enactment of
this statute by the legislature in 1977 was intended to change
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the time-honored practice of off-the-record bench conferences
between trial judges and attorneys.” 332 N.C. 487, 498, 422
S.E.2d 692, 698 (1992). The phrase in subsection (a),
“‘statements from the bench[,]’ does not include private bench
conferences between trial judges and attorneys.” Id. at 497,
422 S.E.2d at 697. “If, however, a party requests that the
subject matter of a private bench conference be put on the
record for appellate review, section 15A–1241(c) requires the
trial judge to reconstruct the matter discussed as accurately as
possible.” State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d
799, 814 (2000) (citation omitted); see also N.C. Gen. Stat. §
15A-1241(c) (“When a party makes an objection to unrecorded
statements or other conduct in the presence of the jury, upon
motion of either party the judge must reconstruct for the
record, as accurately as possible, the matter to which objection
was made.”).
In Pittman, the defendant made a pre-trial motion for
complete recordation of all proceedings, specifically including
bench conferences. See Pittman, 332 N.C. at 250, 420 S.E.2d at
440. Our Supreme Court held that “the trial court, having
allowed defendant's motion for complete recordation, should have
required recordation of all conferences and its failure to do so
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constituted error. We must now determine whether defendant was
prejudiced by this error.” Id. at 250, 420 S.E.2d at 440.
After reviewing what occurred prior to and after the bench
conferences, the Supreme Court determined that “[b]ased on the
record facts and defendant's failure to specifically allege how
he was prejudiced by the lack of complete recordation, we hold
that the trial court's failure to require complete recordation
was harmless beyond a reasonable doubt.” Id. at 252, 420 S.E.2d
at 441.
Here, defendant filed a pretrial motion “to have the Court
Reporter record all phases of the proceedings . . . including
pre-trial hearings, voir dire, motions, opening statements, and
closing arguments.” The trial court granted the motion from the
bench prior to the commencement of the jury selection.
[Prosecutor]: Your Honor, I believe
[defense counsel] also has a motion for
complete recordation. Obviously we're not
opposed to that.
THE COURT: I'll allow the motion. That's
for jury selection and everything; is that
right?
[Defense counsel]: Yes, Your Honor. . . .
THE COURT: . . . [T]he Court will allow the
motion for complete recordation without
objection.
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On appeal, defendant lists seventeen instances in which the
trial court conducted unrecorded bench conferences and states
that each unrecorded conference was a violation of the trial
court’s order. However, defendant specifically challenges only
two unrecorded bench conferences. Therefore, we focus only on
the two bench conferences defendant discusses to determine
whether defendant suffered prejudice from the trial court’s
failure to record or reconstruct them.2
In his first challenge, defendant contends he was
prejudiced by the lack of any memorialization of the arguments
made at a bench conference during the testimony of Detective
Bryan Crum. Detective Crum—assigned to the Violent Crimes
Division, homicide, of the Charlotte-Mecklenburg Police
Department—met victim Robin Lewis at Carolinas Medical Center
the morning she was shot. During the State’s examination of
Detective Crum, the following exchange occurred:
Q. Did you make contact with Robin Lewis
at the hospital?
A. I did. She was in one of the bays in
the emergency department. After she was
initially taken care of or settled down
with the medical staff, I went to speak
with her.
2
Of the remaining fifteen instances, five occurred during jury
selection and ten during trial.
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Q. And what did she tell you?
A. She told me that basically that
something had happened earlier in the
night, that a person that she lived
with -- and I took a statement from
her, -- said that someone had come home
and --
[Defense counsel]: Objection, Your Honor,
asked to be heard.
THE COURT: Sustained.
[Prosecutor]: Your Honor, may we approach?
[Defense counsel]: Your Honor, I would ask
to be heard on the record since we have
--
THE COURT: Just come up here now and
afterward we'll do that.
(WHEREUPON, the Court, [both prosecutors],
and [defense counsel] conferred off the
record. Afterward, the State’s examination
continued.)
Q. Did you have a chance to observe Robin
Lewis physically, what she looked like
once you spoke with her?
A. I did.
Q. And what if anything did you notice
with regards to any injury?
Here, the trial court’s failure to reconstruct the
substance of the bench conference for the record was a violation
of section 15A–1241(c). See N.C.G.S. ' 15A-1241(c) (“When a
party makes an objection to unrecorded statements or other
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conduct in the presence of the jury, upon motion of either party
the judge must reconstruct for the record, as accurately as
possible, the matter to which objection was made.”); see also
Blakeney, 352 N.C. at 307, 531 S.E.2d at 814.
However, on this record as otherwise recorded, we discern
no prejudice in the trial court’s failure to reconstruct the
substance of the bench conference for the record. The
transcript reflects that the trial court sustained defendant’s
objection to the prosecutor’s line of questioning. Following
the bench conference, the trial court did not amend its ruling
and defendant’s objection remained sustained. When the
prosecutor’s examination resumed, Detective Crum was questioned
regarding his personal observations of the victim Robin Lewis
rather than her statements to him. From this context, it
appears defendant’s objection was made on hearsay grounds, and
there is no indication that the parties at the bench conference
discussed any matter other than the hearsay nature of the
prosecutor’s examination. Therefore, defendant’s argument that
appellate review was frustrated by the lack of recordation or
reconstruction is without merit.
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Defendant also asserts that he was prejudiced by the lack
of recordation during a bench conference held during defendant’s
cross-examination of Robin Lewis.
Q. Well, your blood alcohol level was
high, wasn't it?
A. I don't know.
Q. Have you been allowed to see a copy of
your medical report?
A. No, ma'am.
Q. If I showed you a copy of your medical
report would it help refresh your
recollection about what your level of
intoxication was?
A. You can show it to me, but I know what
my level of intoxication is. I was not
intoxicated.
. . .
[Prosecutor]: Your Honor, I would ask to be
heard.
THE COURT: All right, come up here.
(WHEREUPON, the Court, [both
prosecutors, and defense counsel]
conferred off the record.)
THE COURT: I'll sustain your objection.
Rephrase your question.
Q. Ms. Lewis, I'm going to ask you in
terms of how much you had to drink that
night, you're aware that the hospital
took your blood; correct?
A. Yes, ma'am.
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Defendant contends that the substance of the bench
conference cannot be ascertained from the context of the
examination and as such, appellate review is frustrated to his
prejudice. Again, we disagree.
Defendant attempted to present Lewis with her medical
report from the hospital prepared on the night of her shooting.
Specifically, defendant asked, “If I showed you a copy of your
medical report would it help refresh your recollection about
what your level of intoxication was?” Lewis responded, “I
know what my level of intoxication [was].” The prosecutor then
asked to be heard, and during the bench conference, apparently,
lodged an objection. While the exact content of the conference
is unclear, it is quite apparent that the document defendant
wished the witness to examine was not needed to refresh her
recollection and, therefore, would not be proper cross-
examination material. See N.C. Gen. Stat. ' 8C-1, Rule 803(5)
(2013) (“Recorded Recollection”). A recorded recollection, as
defined by our Rules of Evidence, is “[a] memorandum or record
concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable [her] to testify
fully and accurately[.]” Id. ' 8C-1, Rule 803(5).
Under present recollection refreshed, the
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witness' memory is refreshed or jogged
through the employment of a writing,
diagram, smell or even touch, and [she]
testifies from [her] memory so refreshed.
The evidence presented at trial comes from
the witness' memory, not from the aid upon
which the witness relies[.]
State v. Ysut Mlo, 335 N.C. 353, 367, 440 S.E.2d 98, 104 (1994)
(citations and quotations omitted).
After the conference, the trial court sustained the
objection on the record and had defendant re-phrase the
question. Robin Lewis then testified unequivocally, “I know
what my level of intoxication [was]. I was not intoxicated.”
Lewis did not indicate that her memory was insufficient.
Therefore, presentation of the medical report was not
appropriate as either past recollection recorded or present
recollection refreshed. See N.C.G.S. ' 8C-1, Rule 803(5); Ysut
Mlo, 335 N.C. at 367, 440 S.E.2d at 104. Given the context, our
review of the trial court’s ruling is not frustrated. We see no
error in the trial court’s ruling that sustained the
prosecutor’s objection to an improper question. Accordingly,
defendant’s arguments are overruled.
No prejudicial error.
Chief Judge McGEE and Judge STROUD concur.