State v. Lawson
| Decision Date | 20 September 2005 |
| Docket Number | No. COA04-564.,COA04-564. |
| Citation | 619 S.E.2d 410 |
| Parties | STATE of North Carolina v. George Wesley LAWSON. |
| Court | North Carolina Supreme Court |
Lynne Rupp, Durham, for defendant-appellant.
On 5 November 2003, George Wesley Lawson ("defendant") was tried on an indictment charging him with first degree burglary and the assault of Kevin Taborn ("Taborn") with a deadly weapon inflicting serious bodily injury. At the close of the State's evidence, the court granted defendant's motion to dismiss the first degree burglary charge. On 7 November 2003, a jury convicted defendant of assault with a deadly weapon inflicting serious injury. The court sentenced defendant as a level three offender to forty two (42) to sixty (60) months in the North Carolina Department of Correction. The court found as aggravating factors that defendant committed the crime while the victim was asleep, and by breaking and entering into the residence of Sherell Stanley, his former girlfriend, at 3:00 a.m. with the intent to assault both her and the victim. The court found no mitigating factors.
On 18 May 2001, Taborn visited Sherell Stanley and her children at her residence. They watched movies and then went to bed. At approximately 3:38 a.m., Officer Patricia Smith ("Officer Smith") responded to a domestic disturbance call made by Sherell Stanley. After Officer Smith arrived at the Stanley residence, she noticed that Sherell Stanley's forehead was swollen and that she (Stanley) was upset. After Officer Smith questioned Sherell Stanley about the incident to learn who had assaulted her (Stanley) and the victim, Sherell Stanley directed Officer Smith to defendant's residence.
Emergency services personnel responded shortly after police officers arrived at Sherell Stanley's home. The emergency services personnel subsequently transported Taborn to the hospital where he sought medical treatment for a broken jaw. He was directed by the hospital staff to seek additional treatment at the University of North Carolina's hospital. Taborn's injuries required reconstructive surgery of his bone structure, which necessitated placing a titanium plate with screws and a mesh screen on the top of it in order to simulate his bone structure. Taborn's injuries also caused him to miss approximately two months of work.
On 19 May 2001, defendant, an informant who gathered drug information for the city of Kinston, North Carolina, contacted Officer Cary Barnes ("Officer Barnes") and the two of them met in person. Defendant informed Officer Barnes that "he had got in some trouble" and that he had gone to his girlfriend's house and found a man there. Defendant then told Officer Barnes "he beat the gentleman down," he was "furious," and he "lost it." Subsequently, the police arrested defendant.
At trial, Taborn testified that his face hurt when he woke up. Taborn further stated that he knew who hit him in the face prior to arriving at the hospital. After the State asked Taborn how he knew who hit him, Taborn responded that Sherell Stanley and Tyechia Stanley, her daughter, told him. The court overruled defendant's objection and the motion to strike Taborn's response as inadmissible hearsay.
Taborn then testified that Sherell Stanley and Tyechia Stanley told him that George Lawson hit him and that he had never seen Lawson before. Defendant's attorney failed to renew his objection or make a motion to strike this testimony as inadmissible hearsay, as he had done after Taborn's previous testimony. Taborn further testified that he continues to have pain from the injuries he sustained, including tingling and numbness in his face and black dots in his left eye. Tyechia Stanley, who was present during the incident, testified at trial that she knew defendant, that she observed defendant fighting with Taborn, and that she and her mother tried to stop defendant from hitting Taborn.
Sherell Stanley did not appear in court for defendant's trial. During Officer Smith's testimony, the Court held a voir dire of Officer Smith on the issue of her failure to appear in court to testify. Prior to trial, the victim-witness coordinator contacted Sherell Stanley by phone and Ms. Stanley responded that she did not want law enforcement to come to her work or home. She further stated that she would come to the District Attorney's office to accept service of the subpoena but ultimately failed to do so. The Kinston Police Department attempted to serve the subpoena on Sherell Stanley but were unable to find her. Officer Smith visited Sherell Stanley's home and informed her of the court date; however, Sherell Stanley could not be located on the morning of the trial. After the voir dire proceedings, the trial court issued an Order for Sherell Stanley's arrest.
Defendant first contends the trial court erred when it allowed inadmissible hearsay by Taborn, thus, violating defendant's state and federal rights under the Confrontation Clause, his right to a fair trial, and right to due process of the law. Specifically, Taborn testified as follows:
State: [D]id you have an idea after talking with Ms. Sherell who might possibly have done this to you?
Counsel: I'm going to object, your honor. He's already said he didn't see it and doesn't know. He's just trying to get her testimony in.
Court: Overruled. Go ahead on.
State: Did you after speaking with Ms. Sherell Stanley have an idea who did this to you?
Witness: I knew that about 3:30 or 4:00 before I got to the hospital.
State: And how did you know that?
Witness: Sherell told me and her daughter.
Counsel: Objection. Motion to Strike.
Court: Overruled.
State: And what-who did you believe did this to you at that point?
Witness: She said a guy named George Lawson. I had never seen him before in my life.
(Emphasis added).
The North Carolina Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. R. Evid. 801(c) (2003). In the instant case, Taborn testified as to Sherell Stanley's statement and the statement was offered to prove the truth of the matter asserted-that defendant injured Taborn.
The North Carolina Rules of Appellate Procedure state, however, that "to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R.App. P. 10(b)(1) (2004).
In the instant case, defendant effectively objected to the State's line of questioning. We believe that defendant's pattern of objections to the hearsay testimony constituted a continuing objection to the line of questioning and therefore all of the hearsay testimony may be considered on appeal, although only part of the testimony was objected to at trial. State v. Brooks, 72 N.C.App. 254, 324 S.E.2d 854 (1985). However, having found that defendant properly preserved this issue, we also hold that the State has proven the admission of Taborn's testimony is harmless beyond a reasonable doubt. State v. Morgan, 359 N.C. 131, 157, 604 S.E.2d 886, 902 (2004); N.C. Gen.Stat. § 15A-1443(b) (2003). Absent the inadmissible hearsay, the record tends to show: (1) Tyechia Stanley, who was present during the incident, identified defendant as the person who injured Taborn and described the events that took place during the incident; (2) defendant contacted Officer Barnes, for whom he served as an informant, regarding this incident and admitted to injuring Taborn on 19 May 2001; and (3) Officer Smith responded to the emergency 911 phone call made on 19 May 2001, and during voir dire proceedings, explained Sherell Stanley's unavailable status. Absent the inadmissible hearsay, we still find ample evidence in the record to support the jury's guilty verdict against defendant. Therefore, this assignment of error is overruled.
Defendant next contends his Sixth Amendment right to confrontation was violated relying upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). His reliance is misplaced as he misinterprets the United States Supreme Court's ruling in Crawford. Defendant asserts the statements made by Sherell Stanley to Taborn were testimonial in nature and, thus, fall within Crawford's definition of "testimonial." Id. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. In Crawford, the Court stated:
where nontestimonial [sic] hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law . . . .[,] [and] [w]e leave for another day any effort to spell out a comprehensive definition of "testimonial." . . .[;] [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
Id. In the instant case, Taborn testified about statements made by Stanley; these statements were non-testimonial and made while Taborn was being transported to a hospital for injuries caused by defendant. The statements were not made during any police investigation, rather they were made during a private conversation between Stanley and Taborn and outside the presence of any police officer. Further, these statements were made merely to inform Taborn of the attacker's identity since Stanley already knew the attacker's identity and he did not. In Crawford, the Court recognized that testimonial statements include those "pretrial statements that declarants would reasonably expect to be used prosecutorially" at a...
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