State v. Ellis, No. COA03-1204 (NC 8/3/2004)
| Decision Date | 03 August 2004 |
| Docket Number | No. COA03-1204,COA03-1204 |
| Parties | STATE OF NORTH CAROLINA, Plaintiff, v. JIMMY HAROLD ELLIS, Defendant. |
| Court | North Carolina Supreme Court |
Robert J. McAfee, for the defendant.
Jimmy Harold Ellis ("defendant") appeals his conviction of assault with a deadly weapon inflicting serious injury. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
The State's evidence presented at trial tends to show the following: On 1 October 2002, Charles Jason Briggs ("Briggs") was living at the Carolina Inn in Halifax County, North Carolina. Defendant was also living at the Carolina Inn and knew Briggs as an acquaintance. At 11:30 p.m. defendant and Ricky Rook ("Rook") knocked on Briggs's door and Briggs, who had been asleep, awoke and allowed them to enter. Briggs recognized that defendant and Rook had been drinking alcohol. Defendant and Rook entered the room. Rook, who is deaf in one ear and was not wearing his hearing aid at the time, sat on a chair and watched television. Defendant told Briggs he was there to kill him, and defendant advanced towards Briggs with a butcher knife. Briggs fell to the floor on the opposite side of the bed and defendant walked around the foot of the bed. Defendant stabbed Briggs in the stomach and the two men struggled over the knife. During the struggle, defendant produced a second knife, a pocketknife, and cut Briggs several times before Rook broke up the fight. Briggs then ran out of the hotel room and collapsed in front of the hotel office.
Kenny Gibson ("Gibson"), an employee of the hotel, found Briggs and called the police and paramedics. While waiting for help to arrive, Briggs saw defendant and Rook leave the premises in a white Chevrolet Cavalier. Briggs reported to the responding officer, Roanoke Rapids Police Department Lieutenant David Brown ("Lieutenant Brown"), that defendant had left the premises and was most likely at Rook's residence. Briggs was taken to Halifax Regional Hospital and then flown to Pitt Memorial Hospital ("the hospital") in Greenville, North Carolina, where he was hospitalized for approximately one week.
At the hospital, doctors inserted a tube into Briggs's lungs and used seventy to eighty staples to repair his stab wounds. Briggs testified at trial that during the operation, the doctors had to "open me up and actually pull my intestines and my stomach out to see if any damage had been done internally." Briggstestified that he was still in physical pain and received medical treatment twice a month for several months after the injury.
Rook testified that he, defendant, and defendant's girlfriend, Kim Fitzhugh ("Fitzhugh"), were drinking at Rook's residence before defendant and Rook left in defendant's car to buy more alcohol. They stopped first at the Carolina Inn and went to Briggs's room. Rook testified that he watched television for a few minutes and when he turned around, defendant and Briggs were struggling. Rook broke up the fight. Rook and defendant then left in defendant's vehicle and returned to Rook's residence. On cross examination, Rook testified that he had not seen a knife in defendant's possession on that day.
Lieutenant Brown testified that he and Officer Jeffrey Baggett went to Rook's residence after a search of Briggs's hotel room and the area outside the room revealed no weapons. The officers arrested defendant and Rook at Rook's residence. The officers also questioned Fitzhugh about the knife. Fitzhugh surrendered a pocketknife, noting "Here is Jimmy's knife." At trial, Lieutenant Brown identified a knife admitted into evidence as the knife he took from Fitzhugh and testified that there appeared to be blood on the blade. The police officers found no other knives at Rook's residence.
Briggs's sister, Anne Ottinger ("Ottinger"), testified that she visited her brother at Pitt Memorial Hospital where he told her his version of the incident in the hotel room. Ottinger recounted her conversation with Briggs at trial. Defendant's evidence tended to show that Briggs was edgy and agitated when defendant and Rook entered the room. Defendant asked Briggs if he had taken a pocketbook belonging to Fitzhugh, to which Briggs angrily responded that he had not. When defendant insisted that Briggs return the pocketbook, Briggs stated again that he did not have the pocketbook. Defendant cursed at Briggs, and Briggs lunged and swung at defendant with a knife. A physical fight ensued. Defendant testified that as the two men wrestled in the room, they "hit the television" and Briggs gave a loud groan. Rook then broke up the fight. Defendant further testified that he did not take his pocketknife from his pants pocket while in Briggs's hotel room.
At the close of all the evidence, defendant requested that the trial court instruct the jury on the affirmative defenses of self-defense and accident. The trial court denied defendant's request for both jury instructions. The jury found defendant guilty of the lesser-included offense of assault with a deadly weapon inflicting serious injury.
During the sentencing phase of the trial, defendant requested that the trial court consider his use of alcohol that evening and his resulting impairment as a mitigating factor. Defendant argued that his alcohol use and impairment caused him to suffer a mental or physical condition that significantly reduced his culpability for the offense. The trial court denied defendant's request. The trial court then sentenced defendant to an active term of imprisonment of forty to fifty-seven months. Defendant appeals.
As an initial matter, we note that defendant's brief contains arguments supporting only seven of the original nine assignments of error on appeal. The two omitted assignments of error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2004). We therefore limit our review to those assignments of error properly preserved by defendant for appeal.
The remaining issues on appeal are whether (I) the trial court committed plain error by allowing Briggs to testify about his surgery; (II) the trial court committed plain error by allowing a police officer to testify about blood on the knife; (III) the trial court committed plain error by allowing Briggs's sister to testify about her brother's recollection of the stabbing; (IV) the trial court erred by refusing to instruct the jury on self-defense; (V) the trial court erred by refusing to instruct the jury on the defense of accident; (VI) the trial court erred by failing to find defendant's inebriation to be a mitigating factor; and (VII) defendant received ineffective assistance of counsel. We have addressed defendant's arguments in an order that facilitates a more cogent analysis.
We first address whether the trial court committed plain error by allowing Briggs to testify about his surgery. Defendant contends that the testimony is inadmissible as lay testimony, inadmissible as expert testimony, and complete hearsay. We conclude that there is no plain error. "In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2004). "To prevail on plain error review, defendant must show that (i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000), cert. denied, 531 U.S. 1130 (2001).
During the State's case-in-chief, the prosecutor and Briggs engaged in the following exchange on direct examination:
Q. Now, Jason, the cut that is shown that is all the way down your stomach in State's Exhibit No. 12, in that picture, is that — were you cut by Jimmy —
A. The whole cut wasn't done by him; no, it wasn't. I was stabbed in the stomach. They had to open me up and actually pull my intestines and my stomach out to see if any damage had been done internally.
Assuming arguendo that Briggs's testimony about his medical procedures was inadmissible, we conclude that it is not likely that the jury would have reached a different result without the testimony. Because the State presented substantial evidence, through photographs and testimonial evidence, that Briggs suffered "serious injury," the admission of the testimony does not constitute plain error. Defendant next argues that the trial court committed plain error by allowing Lieutenant Brown to testify regarding blood on the pocketknife surrendered by Fitzhugh. We disagree.
This Court cannot find plain error where there was no error at trial. See State v. Spruill, 338 N.C. 612, 659, 452 S.E.2d 279, 305 (1994) cert. denied, 516 U.S. 834 (1995). "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003). However, "nonexperts can testify as to the fact of bloodstains and then it is for the jury to determine the weight to be given the testimony." State v. Stimpson, 15 N.C. App. 606, 607, 190 S.E.2d 378, 379 (1972) (citing State v. Willis, 4 N.C. App. 641, 167 S.E.2d 518 (1969)). Thus, it is acceptable for a lay person who observes a dark red...
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