State v. Glasco

• Decision Date: 02 September 2003
• Docket Number: No. COA02-602.,COA02-602.
• Citation: 585 S.E.2d 257,160 NC App. 150
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. William Thomas GLASCO.

585 S.E.2d 257

160 NC App. 150

STATE of North Carolina, v. William Thomas GLASCO.

No. COA02-602.

Court of Appeals of North Carolina.

September 2, 2003.

Attorney General Roy Cooper, by Fred Lamar, Assistant Attorney General, for the State.

James N. Freeman, Jr., Elkin, for defendant/appellant.

HUDSON, Judge.

The grand jury indicted defendant William Thomas Glasco on charges of discharging a firearm into occupied property, possession of a firearm by a convicted felon, and for being an habitual felon. On 7 September 2001, a jury found him not guilty of discharging a firearm into occupied property, and guilty of possession of a firearm while a felon. Defendant then entered a plea of guilty to the status of habitual felon, and the court sentenced him to a prison term of 121 to 155 months. Defendant now appeals.

He appeals, contending that the trial court erred (1) by allowing various exhibits to be introduced at trial; (2) by denying his motion to dismiss; (3) by not declaring a mistrial based on the prosecutor's improper comments during closing arguments; (4) by failing to grant defendant's motion to set aside the verdict or grant a new trial. Defendant also contends that the trial court should have dismissed the habitual felon indictment because it violated defendant's right to be free from double jeopardy. For the reasons set forth below, we find no prejudicial error.

BACKGROUND

The State's evidence at trial tended to show the following:

On 29 April 2000, around 9:00 or 9:30 p.m., Kathleen Barnes returned to her home in Henderson, North Carolina. She took a shower and, just as she was finishing, heard shooting that sounded like it was coming into her house. Barnes stayed on the floor for a few minutes until the shooting stopped, and then she and her brother heard a commotion and went outside. Barnes testified that she recognized defendant, who was in a police patrol car by that time. Defendant is the first cousin of Barnes' husband.

On cross-examination, Barnes admitted that, before this shooting incident she had sought police assistance because of domestic abuse problems with her husband. After the incident, Barnes reconciled with her husband, but later left him again after he committed domestic violence against her. She also testified that on the day of the shooting, she saw her husband driving by her house with a "very dark person in the truck with him" pointing toward the house.

Barnes' neighbor Barbara Marshall, testified that on the evening of 29 April 2000, she heard a lot of gunshots. She opened her back door and saw a man wearing a black or brown jacket holding a paper sack or trash bag and jumping over the fence behind the utility shed belonging to her neighbor, Ronald Camp. Marshall testified that she later saw defendant in the police car, and that he appeared to be wearing clothes like the person she had seen near the fence. She then identified defendant positively as the man she had seen jumping over the fence.

Deputy Sheriff Lloyd Watkins testified that he was called to the scene at approximately 10:00 or 11:00 p.m. When he arrived, people sitting outside told him that the house was "shot up." After asking the people outside to describe the shooter, police canvassed the area and found defendant standing near the street four or five houses up from Barnes's home. Watkins and Officer Root-Ferguson patted defendant down and found a bundled trash bag under his jacket. Root-Ferguson said that defendant claimed that the bag was a "sweat bag" and that he had been running.

Ronald Camp, who lived two doors down from Marshall near Barnes, testified that he and his family were out when the shooting occurred. When they returned, they noticed the commotion. Camp then searched for and found an AK-47 rifle hidden in a pile of tires beside his backyard shed, and directed the police to the gun.

Officer Root-Ferguson testified that he talked to a number of witnesses at the scene and that none but Marshall could positively identify defendant as the individual they saw involved in the shooting. Root-Ferguson confirmed that his incident report indicated that one of the witnesses told him that defendant was not the man she had seen. Root-Ferguson did not take the name or address of this witness or any of the others who could not positively identify defendant.

Caroline Bachelor, who worked with Kathleen Barnes, testified that an AK-47 identical to the one admitted into evidence at trial was stolen from her house about the same time as the shooting. She said that someone stole the gun from a closet in her home during a house-warming party, and that she reported the theft either the day of the shooting or the day after.

Ricky Navarro, a latent evidence expert for the State Bureau of Investigation, testified that the latent fingerprint remnants found on the AK-47 were not of sufficient quality to form the basis for an identification.

Detective Jim Cordell of the Vance County Sheriff's Department testified for defendant. Cordell said that he had interviewed Barnes on 2 May 2000 and 9 May 2000 regarding the shootings. Barnes told Cordell that on 9 May 2000, ten days after the shooting, she had spoken with Bachelor at work. Bachelor had asked Barnes whether her husband was trying to kill her and told Barnes that it was her gun that was used in the shooting. Cordell also indicated that his interview summaries were in the investigation file in the case, but that after he completed the interview, Root-Ferguson took over primary investigation of the case.

ANALYSIS

I.

Defendant first argues that the State failed to lay a proper foundation by which to authenticate State's Exhibits 5-9 and that such failure was prejudicial and requires a new trial. We do not agree.

In North Carolina, evidence that is identified and introduced in court as the object that was actually involved in the subject incident is referred to as "real evidence." State v. Harbison, 293 N.C. 474, 483, 238 S.E.2d 449, 454 (1977). When real evidence is properly identified, it is freely admissible. State v. Williamson, 146 N.C.App. 325, 335, 553 S.E.2d 54, 61 (2001), disc. review denied, 355 N.C. 222, 560 S.E.2d 366 (2002) (citation and quotation marks omitted). It must "simply `be identified as the same object involved in the incident in order to be admissible' and as not having undergone any material change." Id. (citation omitted). Authentication of real evidence "`can be done only by calling a witness, presenting the exhibit to him and asking him if he recognizes it and, if so, what it is.'" State v. Bryant, 50 N.C.App. 139, 141, 272 S.E.2d 916, 918 (1980) (quoting 1 Stansbury's North Carolina Evidence § 26 (Brandis rev.1973)). Moreover, "[a]s there are no specific rules for determining whether an object has been sufficiently identified, the trial judge possesses, and must exercise, sound discretion." Williamson, 146 N.C.App. at 336, 553 S.E.2d at 61 (citation and quotation marks omitted).

First, defendant challenges the admission of State's Exhibit 6 (the AK-47 magazine). Defendant neither objected to the admission of State's Exhibit 6 at trial nor used it as the basis for an assignment of error in the record on appeal. Accordingly, we conclude that he waived this issue. N.C.R.App. P. 10(b)(1).

The remaining exhibits defendant challenges are the AK-47 rifle (Exhibit 5); a brown bag that contained a plastic garbage bag (Exhibit 7); the plastic garbage bag (Exhibit 8); and a plastic bag with casings and bullets (Exhibit 9). Officer Root-Ferguson identified each exhibit at trial as being in substantially the same condition and appearance as when he first saw them, with the exception of marks on the garbage bag made by technicians. Root-Ferguson clearly identified the rifle as being the same as that shown to him by Mr. Camp, who had found the rifle near his shed where defendant was seen jumping a fence. Likewise, regarding the garbage bag, Root-Ferguson testified that he found the item on defendant's person, bundled under his jacket. That same night he placed the garbage bag inside a paper bag, sealed it, and marked it as evidence.

Detective John Almond, the officer in charge of the evidence room, then took and retained custody of the garbage bag and the casings and bullets. Almond testified that he was responsible for retaining custody over evidence submitted by the officers, for transferring evidence to the State Bureau of Investigation ("SBI"), and for making the evidence available to the officers for court. He testified that he had custody of State's Exhibits 5, 6, 7, 8, and 9 and was familiar with them. He said that he had delivered the exhibits to the SBI and that they were mailed back to him.

Forensic firearm and tool mark examiner Thomas Trochum tested the garbage bag and the casings and bullets after their receipt by the SBI. Ricky Navarro, the SBI latent evidence expert, tested the rifle and then returned it to Trochum. After concluding his examinations, Trochum returned the exhibits to Roosevelt Ryals, an SBI evidence technician, who then sent them to Almond via United Parcel Service.

This evidence reveals that the State's witnesses properly identified each exhibit at trial and that there was no material change in the condition of the exhibits from the seizure to the analysis and to the identification during the trial. Contrary to defendant's assertion in his brief, the testing marks on the garbage bag do not constitute material alterations. Moreover, even though defendant argues that the rifle and magazine could have been altered or changed because they were discarded in a pile of tires, there was no evidence that they were altered. Officer Root-Ferguson testified simply that the exhibits at trial were the same as those found in the tire pile. We conclude that the exhibits were properly admitted. E.g., State v. King, 311 N.C. 603, 618, 320 S.E.2d 1, 10-11 (1984)

(weapons, projectile, and casings properly admitted where the...