State v. Hairston
| Decision Date | 16 October 2018 |
| Docket Number | No. COA17-1357,COA17-1357 |
| Citation | 820 S.E.2d 590,262 N.C.App. 106 |
| Parties | STATE of North Carolina v. Craig Deonte HAIRSTON, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.
Marilyn G. Ozer, Chapel Hill, for Defendant.
Defendant Craig Deonte Hairston ("Defendant") appeals from two judgments following a jury verdict finding him guilty of conspiring to commit robbery with a firearm and first-degree murder under the felony murder rule. He argues that he is entitled to a new trial because the trial court erred in admitting testimony about Defendant’s use of a firearm in a prior incident and because the trial court erred in permitting a ballistics expert to give an unqualified opinion linking spent shell casings to a single firearm allegedly possessed by Defendant. Because Defendant failed to timely object to the testimony regarding the prior incident and invited the expert opinion testimony he asserts was introduced in error, we hold that Defendant has failed to preserve review of these arguments and dismiss his appeal.
The evidence at trial tended to show the following:
On 28 August 2014, Defendant travelled from Virginia to Greensboro, North Carolina to visit a friend, Montray Price ("Price"), at his apartment. Defendant and Price were drinking beer and smoking on the apartment’s balcony when, apropos of nothing, they resolved to head into a nearby patch of woods and shoot guns. Defendant, carrying a .45 caliber pistol, and Price, carrying a .32 caliber firearm, walked from the apartment to the complex’s parking lot, where they decided to simply fire their guns into the air rather than walk all the way to the woods. Defendant and Price fired their guns and left the parking lot without picking up the spent shell casings. A tenant in the complex found the shell casings later that day and called the Greensboro Police Department. The responding officer collected the .45 and .32 casings and logged them into evidence.
A few days later, on 1 September 2014, Defendant again drove down from Virginia to Price’s apartment. There, Defendant met with Price and a third man, Colby Watkins ("Watkins"), and spent the afternoon smoking marijuana and drinking. Their conversation eventually turned to the topic of making money, and the three decided to use Defendant’s and Price’s guns to rob a drug dealer. They ultimately abandoned that plan and returned to drinking and smoking well into the evening. Later that night, Price received a text message from a prostitute, Jessica London ("London"). He asked if she had any drugs, and she replied that she did; Defendant, Price, and Watson thereafter left the apartment to meet with London at a nearby Holiday Inn.
The three men arrived at the Holiday Inn after midnight on 2 September 2014, and London joined them in their car to smoke marijuana. The group drove to a gas station, where Price and Watson went inside while Defendant and London stayed in the car. Inside the gas station, Watson told Price that he wanted to rob London, to which Price said no, reasoning that London likely did not keep any money on her person. Watson and Price returned to Defendant and London in the car, and the four drove back to the Holiday Inn.
Back at the hotel, Price and London went inside to have sex after she called and informed her pimp. Price rejoined Watson and Defendant in the car some time later, and the three drove away from the Holiday Inn. As they were leaving; however, Watson saw London’s pimp drive by, and the group agreed to rob him.
Watson, Price, and Defendant drove to Price’s apartment, retrieved their guns, and parked their car at a Waffle House near the Holiday Inn to plan the robbery. Defendant and Price then walked to the hotel and donned masks while Watson stayed in the car. The pair approached an occupied silver car in the Holiday Inn parking lot and demanded money from the driver, Kevin Millner ("Millner")—a man who was not, in fact, London’s pimp or related to her in any way whatsoever. Millner screamed, and a shot rang out. Price and Defendant fled the scene on foot.
After sun-up on 2 September 2014, a maintenance man at the Holiday Inn found a spent .45 caliber shell casing in the hotel parking lot near Millner’s car, pocketing it to dispose of later. Sometime thereafter, the maintenance man noticed Millner in his vehicle with the windows closed, believing he was asleep. The assistant general manager of the hotel, at the maintenance man’s suggestion, decided to check on Millner due to the unseasonably hot weather. When the assistant general manager approached the vehicle, he realized that Millner was dead and called the police. Law enforcement officers arrived on the scene a short time later; the maintenance worker gave them the shell he had found earlier in the day.
Defendant was indicted on 29 September 2014 on one count of first-degree murder and one count of conspiracy to commit robbery with a dangerous weapon. On the morning of the third day of trial, the State planned to call Price as a witness. However, before the jury was called back in and trial resumed, Defendant’s counsel raised an objection to Price’s testimony, stating:
The trial court then heard from the State on Defendant’s objection and allowed the State to proffer Price’s testimony during voir dire , complete with direct and cross-examination by both parties. At the conclusion of Price’s voir dire testimony, the trial judge recessed court for 30 minutes, retired to his chambers, and considered the matter. Once court resumed, the trial judge asked a question of Price and subsequently overruled Defendant’s objection. Defendant requested a limiting instruction, which was allowed. The jury returned to the courtroom and the trial resumed. Price testified before the jury concerning the events of 28 August and 2 September 2014. Defendant’s trial counsel did not object at that time.
The State also called as a witness Karen Weimorts ("Weimorts"), a firearms and tool mark examiner with the Greensboro Police Department, who provided expert testimony concerning the .45 caliber shells found on 28 August 2014 in the parking lot outside Price’s apartment and on 2 September 2014 in the Holiday Inn parking lot. On direct examination, Weimorts testified that "the .45 casing from the homicide was fired in the same firearm as the .45 casings from the scene [outside Price’s apartment] on August 28th." On cross-examination, Defendant’s counsel eliminated any uncertainty in Weimorts’s testimony by engaging in the following exchange:
At no point did Defendant’s counsel object to Weimorts’s testimony.
Following the presentation of evidence and arguments of counsel, the jury found Defendant guilty of feloniously conspiring to commit robbery with a firearm and first-degree murder under the felony murder rule. Defendant was sentenced to a minimum of 33 months and maximum of 52 months imprisonment for conspiracy and life imprisonment without parole for murder. He gave notice of appeal in open court.
Defendant presents two arguments on appeal, asserting that the trial court: (1) committed prejudicial error in admitting Price’s testimony concerning the events of 28 August 2014; and (2) committed plain error in admitting Weimorts’s unqualified testimony linking the two sets of .45 shell casings to a single firearm. Our review of the record, transcript, and case law, however, discloses that Defendant has failed to preserve either issue for review. As a result, we dismiss Defendant’s appeal.
Rule 10 of the North Carolina Rules of Appellate Procedure establishes that "[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion ...." N.C. R. App. P. 10(a)(1) (2018). In construing this language, our Supreme Court has held that "[t]o be timely, an objection to the admission of evidence must be made ‘at the time it is actually introduced at trial.’ " State v. Ray , 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (quoting State v. Thibodeaux , 352 N.C. 570, 581, 532 S.E.2d 797, 806 (2000) (emphasis omitted) ). "It is insufficient to object only to the presenting party’s forecast of the evidence." Ray , 364 N.C. at 277, 697 S.E.2d at 322 (citing Thibodeaux , 352 N.C. at 581, 532 S.E.2d at 806 ). Thus, "[a]n objection made ‘only during a hearing out of the jury’s presence prior to the actual introduction of the testimony’ is insufficient." State v. Snead , 368 N.C. 811, 816, 783 S.E.2d 733, 737 (2016) (quoting Ray , 364 N.C. at 277, 697 S.E.2d at 322 ) (citations omitted).
Our Supreme Court’s decision in Snead controls our review of Defendant’s argument regarding testimony about the prior shooting incident. In Snead , the defendant objected to the introduction of lay witness opinion testimony while the jury was outside the courtroom. 368 N.C. at 813, 783 S.E.2d at 735. The trial court allowed a voir dire examination of the witness outside the presence of the jury following the objection, and ruled that the witness could provide the opinion testimony at issue. Id. at 813, 783 S.E.2d at 736. The jury was called back...
To continue reading
Request your trial