State v. Pittman ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-765
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
Halifax County
v.
Nos. 11 CRS 054905-06, 054968
DAQUAN SHERROD PITTMAN
Appeal by defendant from judgments entered 2 May 2012 by
Judge Cy A. Grant in Halifax County Superior Court. Heard in
the Court of Appeals 21 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
M. Elizabeth Guzman, for the State.
William D. Spence, for Defendant.
ERVIN, Judge.
Defendant Daquan Sherrod Pittman appeals from judgments
sentencing him to a term of 83 to 109 months imprisonment based
upon his conviction for assaulting Clarence Whitaker with a
deadly weapon with the intent to kill inflicting serious injury,
to a consecutive term of 29 to 44 months imprisonment based upon
his conviction for assaulting Antonio Holiday with a deadly
weapon inflicting serious injury, and to a consecutive term of
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14 to 17 months imprisonment based upon his conviction for
possession of a firearm by a convicted felon. On appeal,
Defendant contends that (1) the trial court erred by failing to
dismiss the charge that he feloniously assaulted Mr. Whitaker on
the grounds that the record did not contain sufficient evidence
to show that he intended to kill him and, in the alternative,
that his trial counsel provided him with constitutionally
deficient representation by failing to seek the dismissal of the
charge in question on that basis; (2) the trial court erred by
failing to dismiss the charge that he feloniously assaulted Mr.
Holiday on the grounds that the record did not contain
sufficient evidence that he inflicted a serious injury upon Mr.
Holiday, and, in the alternative, that his trial counsel
provided him with constitutionally deficient representation by
failing to seek the dismissal of the charge in question on that
basis; and (3) the trial court erred by excluding certain
individuals from the courtroom during the testimony of a
particular witness. After careful consideration of Defendant’s
challenges to the trial court’s judgments in light of the record
and the applicable law, we conclude that the trial court’s
judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
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Shawanda Themes went to school with Defendant, to whom she
is related. Ms. Themes would see Defendant every weekend at the
home of Edward Moody. Ms. Themes celebrated her birthday on 4
November 2011 by having a party, which started at 7:00 p.m., at
Mr. Moody’s residence. About forty individuals, most of whom
Ms. Themes knew, attended the party, with approximately twenty
of the attendees having been on the front porch when the events
that underlie this case occurred.
Mr. Holiday and Mr. Whitaker arrived at the party at
approximately 11:00 p.m. Mr. Whitaker’s sister, Keosha, who had
known Defendant for several years, was already at the party at
the time that her brother arrived. Although he did not come to
Mr. Moody’s residence with Mr. Holiday and Mr. Whitaker,
Defendant’s appearance at the party coincided with their
arrival.
After they reached Mr. Moody’s residence, Mr. Whitaker and
Mr. Holiday entered the interior of the structure and remained
there for a brief period of time. During that time, Ms. Themes
and Ms. Whitaker were talking in the front hallway. After
speaking with Ms. Themes, Ms. Whitaker went to the porch.
Shortly thereafter, Mr. Holiday and Mr. Whitaker exited the
home. As they did so, Defendant came outside, pulled a black
handgun from his pants, and fired several shots in their
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direction. Ms. Themes and Ms. Whitaker did not see anyone other
than Defendant with a firearm that night.
After the shots were fired, Ms. Whitaker ran inside the
house. Mr. Whitaker, however, jumped off the front porch and
fell down. Mr. Whitaker did not see who shot him because he had
been attacked from behind. According to Mr. Whitaker, neither
he nor Mr. Holiday had any sort of disagreement with Defendant
prior to the shooting. Although Defendant ran into the woods
after shooting Mr. Whitaker and Mr. Holiday, he returned a few
minutes later and inquired about what had occurred before
leaving the area.
After receiving a call about the shootings at around 1:32
a.m., Detective Obert Wiltsie of the Halifax County Sheriff’s
Office went to Halifax Community Hospital, where he spoke with
Mr. Whitaker and other witnesses. Following his departure from
the hospital, Detective Wiltsie went to Mr. Moody’s home, where
Mr. Moody informed him that no one would speak with
investigating officers given their fear of Defendant. Although
investigating officers were able to find shell casings that had
been fired from a handgun, they did not find any blood at or
around Mr. Moody’s residence.
As a result of the shooting, Mr. Whitaker was hospitalized
for two days. Although he sustained seven gunshot wounds,
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including wounds in his shoulder, hip, thigh, back, and groin,
Mr. Whitaker claimed that he did not feel anything as the
bullets struck him.1 As a result of his injuries, Mr. Whitaker
has struggled with sexual intimacy and owes a $30,000 hospital
bill. Similarly, Mr. Holiday sustained a gunshot wound to his
right thigh and received treatment for his injuries.
B. Procedural Facts
Warrants for arrest charging Defendant with assaulting Mr.
Whitaker and Mr. Holiday with a deadly weapon with the intent to
kill inflicting serious injury were issued on 5 November 2011.
A warrant for arrest charging Defendant with possession of a
firearm by a felon was issued on 10 November 2011. On 9 January
2012, the Halifax County grand jury returned bills of indictment
charging Defendant with assaulting Mr. Whitaker and Mr. Holiday
with a deadly weapon with the intent to kill inflicting serious
injury and possession of a firearm by a felon.
The charges against Defendant came on for trial before the
trial court and a jury at the 1 May 2012 criminal session of the
Halifax County Superior Court. On 2 May 2012, the jury returned
verdicts convicting Defendant of assaulting Mr. Whitaker with a
deadly weapon with the intent to kill inflicting serious injury,
1
Mr. Whitaker acknowledged that the only reason that he
agreed to testify for the State at Defendant’s trial was his
understanding that he would go to jail if he declined to do so.
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assaulting Mr. Holiday with a deadly weapon inflicting serious
injury, and possession of a firearm by a felon. At the
conclusion of the ensuing sentencing hearing, the trial court
entered judgments sentencing Defendant to a term of 83 to 109
months imprisonment based upon his conviction for assaulting Mr.
Whitaker with a deadly weapon with the intent to kill inflicting
serious injury, to a consecutive term of 29 to 44 months
imprisonment based upon his conviction for assaulting Mr.
Holiday with a deadly weapon inflicting serious bodily injury,
and to a consecutive term of 14 to 17 months imprisonment based
upon his conviction for possession of a firearm by a felon. On
17 January 2013, this Court granted Defendant’s petition for the
issuance of a writ of certiorari authorizing review of the trial
court’s judgment.
II. Legal Analysis
A. Assault Upon Mr. Whitaker
1. Sufficiency of the Evidence
In his initial challenge to the trial court’s judgments,
Defendant contends that the trial court erred by allowing the
jury to consider the issue of his guilt of assaulting Mr.
Whitaker with a deadly weapon inflicting serious injury on the
grounds that the record did not contain sufficient evidence to
permit a reasonable jury to determine that he intended to kill
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Mr. Whitaker. Defendant has not, however, properly preserved
this contention for purposes of appellate review. As a result,
we decline to reach the merits of this aspect of Defendant’s
challenge to the trial court’s judgments.
N.C.R. App. P. 10(a)(3) provides that, “[i]n a criminal
case, a defendant may not make insufficiency of the evidence to
prove the crime charged the basis of an issue presented on
appeal unless a motion to dismiss the action, or for judgment as
in case of nonsuit, is made at trial.” In his brief, Defendant
acknowledges that, although he made a motion to dismiss the
felonious assault charge at the end of the State’s evidence, he
simply failed to renew that motion “at the close of all the
evidence.” A close examination of the record clearly
establishes, however, that Defendant never made a motion to
dismiss the case in which he was charged with feloniously
assaulting Mr. Whitaker at all. Instead, Defendant specifically
limited the dismissal motion that he made at the conclusion of
the State’s evidence to the charge that he feloniously assaulted
Mr. Holiday. As a result, Defendant failed to preserve his
challenge to the sufficiency of the evidence to support his
conviction for feloniously assaulting Mr. Whitaker for purposes
of appellate review.
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In order to rectify the difficulties created by his failure
to properly preserve this issue for appellate review, Defendant
initially contends that this Court should review his challenge
to the sufficiency of the evidence to support his conviction for
feloniously assaulting Mr. Whitaker for plain error. According
to well-established North Carolina law, plain error review is
only available with respect to issues arising from “instructions
to the jury and evidentiary matters.” State v. Greene, 351 N.C.
562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 121
S. Ct. 635, 148 L. Ed. 2d 543 (2000). As a result of the fact
that Defendant’s challenge to the sufficiency of the evidence to
support his conviction for feloniously assaulting Mr. Whitaker
does not fall into either of these categories, plain error
review is not available in this instance.
Secondly, Defendant contends that we should reach the
merits of his challenge to the sufficiency of the evidence to
support his conviction for feloniously assaulting Mr. Whitaker
on the basis of our authority to waive the requirements of the
North Carolina Rules of Appellate Procedure pursuant to N.C.R.
App. P. 2, which “permits the appellate courts to excuse a
party’s default in both civil and criminal appeals when
necessary to ‘prevent manifest injustice to a party’ or to
‘expedite decision in the public interest.’” Dogwood Dev. and
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Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657
S.E.2d 361, 364 (2008) (quoting N.C.R. App. P. 2). “While it is
certainly true that [N.C.R. App. P.] 2 has been and may be so
applied in the discretion of the Court, we reaffirm that [N.C.R.
App. P.] 2 relates to the residual power of our appellate courts
to consider, in exceptional circumstances, significant issues of
importance in the public interest or to prevent injustice which
appears manifest to the Court and only in such instances.”
Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-
300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340
S.E.2d 358, 362 (1986)). For reasons which will be set forth in
more detail in the course of our discussion of his related
ineffective assistance of counsel claim, Defendant has failed to
demonstrate that there is anything exceptional about this case
or that a failure to address his challenge to the sufficiency of
the evidence to support his conviction for feloniously
assaulting Mr. Whitaker would work a manifest injustice,
rendering this case very different from the cases in which we
have invoked our authority under N.C.R. App. P. 2 to review
otherwise defaulted issues on the merits in criminal cases. See
State v. Gayton-Barbosa, 197 N.C. App. 129, 135, 676 S.E.2d 586,
590 (2009) (stating that “it is difficult to contemplate a more
‘manifest injustice’ to a convicted defendant than that which
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would result from sustaining a conviction that lacked adequate
evidentiary support”); State v. Batchelor, 190 N.C. App. 369,
378-79, 660 S.E.2d 158, 164 (2008) (holding that, “[i]f we [did]
not review the issue of the sufficiency of the evidence in the
present case, [the defendant] would [have] remain[ed] imprisoned
for a crime that the State did not prove beyond a reasonable
doubt”). As a result, we decline, in the exercise of our
discretion, to review Defendant’s challenge to the sufficiency
of the evidence to support his conviction for feloniously
assaulting Mr. Whitaker on the merits based on the authority
available to us pursuant to N.C.R. App. P. 2.
2. Ineffective Assistance of Counsel
In the alternative, Defendant contends that he is entitled
to a new trial on ineffective assistance of counsel grounds
based upon his trial counsel’s failure to make a motion to
dismiss the charge that he had assaulted Mr. Whitaker with a
deadly weapon with the intent to kill inflicting serious injury
for insufficiency of the evidence. More specifically, Defendant
contends that his trial counsel’s failure to move to dismiss the
case in which he was charged with feloniously assaulting Mr.
Whitaker could not have been motivated by any conceivable
strategic or tactical consideration and that, had his trial
counsel made such a dismissal motion, the trial court would have
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probably granted it. We do not find Defendant’s argument
persuasive.
To establish ineffective assistance of
counsel, defendant must satisfy a two-prong
test . . . . Under this two-prong test, the
defendant must first show that counsel’s
performance fell below an objective standard
of reasonableness as defined by professional
norms. This means that defendant must show
that his attorney made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, once defendant
satisfies the first prong, he must show that
the error committed was so serious that a
reasonable probability exists that the trial
result would have been different absent the
error.
State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998)
(citing Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct.
2052, 2068, 80 L. Ed. 2d 674, 698 (1984)) (quoting State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985))
(citations and quotation marks omitted). An ineffective
assistance of counsel “claim[] brought on direct review will be
decided on the merits when the cold record reveals that no
further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.” State
v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert.
denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162(2002). A defendant is not entitled to appellate relief on
-12-
ineffective assistance of counsel grounds stemming from the
failure of his or her trial counsel to make a dismissal motion
in the event that the record contains sufficient evidence to
support the jury’s verdict. See State v. Fraley, 202 N.C. App.
457, 467, 688 S.E.2d 778, 786, (holding that, “if the evidence
is sufficient to support a conviction, the defendant is not
prejudiced by his counsel’s failure to make a motion to dismiss
at the close of all the evidence”), disc. review denied, 364
N.C. 243, 698 S.E.2d 660 (2010). As a result of our conclusion
that any dismissal motion that Defendant might have made would
and should have been denied, we believe that we are in a
position to adequately address and resolve Defendant’s
ineffective assistance of counsel claim on direct appeal.
“When a defendant moves to dismiss based on insufficiency
of the evidence, the trial court must determine whether there is
substantial evidence (1) of each element of the crime charged
and (2) that the defendant is the perpetrator.” State v.
Liggons, 194 N.C. App. 734, 738, 670 S.E.2d 333, 337 (2009).
Substantial evidence is relevant evidence
that a reasonable person might accept as
adequate, or would consider necessary to
support a particular conclusion. In this
determination, all evidence is considered in
the light most favorable to the State, and
the State receives the benefit of every
reasonable inference supported by that
evidence. The defendant’s evidence, unless
favorable to the State, is not to be taken
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into consideration, except when it is
consistent with the State’s evidence, the
defendant’s evidence may be used to explain
or clarify that offered by the State.
Additionally, a substantial evidence inquiry
examines the sufficiency of the evidence
presented but not its weight, which is a
matter for the jury. Thus, if there is
substantial evidence--whether direct,
circumstantial, or both--to support a
finding that the offense charged has been
committed and that the defendant committed
it, the case is for the jury and the motion
to dismiss should be denied.
State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009)
(citations and quotation marks omitted). We will now utilize
this standard of review to evaluate the validity of Defendant’s
ineffective assistance of counsel claim.
According to N.C. Gen. Stat. § 14-32(a), “[a]ny person who
assaults another person with a deadly weapon with intent to kill
and inflicts serious injury shall be punished as a Class C
felon.” “Proof of an assault with a deadly weapon inflicting
serious injury not resulting in death does not, as a matter of
law, establish a presumption of intent to kill.” State v.
Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972),
disapproved on other grounds in North Carolina v. Butler, 441
U.S. 369, 372-73, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 291-92
(1979). Instead, the necessary intent to kill must be
established by the State’s evidence, which will usually be
circumstantial in nature. Liggons, 194 N.C. App. at 739, 670
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S.E.2d at 337. “[T]he nature of the assault, the manner in
which it was made, the weapon, if any, used, and the surrounding
circumstances are all matters from which an intent to kill may
be inferred.” State v. White, 307 N.C. 42, 49, 296 S.E.2d 267,
271 (1982).
In support of his contention that the record was
insufficient to support his conviction for feloniously
assaulting Mr. Whitaker, Defendant points to evidence tending to
show that there had not been any prior ill will or difficulties
between Mr. Whitaker and himself and that he had not argued with
Mr. Whitaker prior to the assault. Defendant’s argument is,
however, too narrowly focused given our responsibility to
consider all of “the surrounding circumstances,” which indicate
that Defendant aimed a deadly weapon at Mr. Whitaker and fired
seven shots in his direction at a reasonably close range. Id.As a result of our belief that Defendant’s conduct sufficed to
support an inference that he intended to kill Mr. Whitaker, any
dismissal motion that his trial counsel might have made would
and should have been denied. Thus, Defendant is not entitled to
relief from his conviction for feloniously assaulting Mr.
Whitaker on ineffective assistance of counsel grounds.
B. Assault Upon Mr. Holiday
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Secondly, Defendant contends that the trial court erred by
denying his motion to dismiss the charge that he had assaulted
Mr. Holiday with a deadly weapon and inflicted serious injury on
the grounds that the record did not contain sufficient evidence
to establish that Mr. Holiday had sustained a serious injury.2
In the alternative, Defendant contends that he received
constitutionally deficient representation given the decision by
his trial counsel to limit the scope of the dismissal motion
advanced on Defendant’s behalf at trial to a single element of
the crime charged. We do not find either of Defendant’s
arguments persuasive.
According to well-established North Carolina law, “[a]
party may not present arguments on appeal that were not
presented before the trial court.” Dalenko v. Peden Gen.
Contractors., Inc., 197 N.C. App. 115, 124, 676 S.E.2d 625, 632
(2009), appeal dismissed, 363 N.C. 801, 690 S.E.2d 534, and
cert. denied, 363 N.C. 854, 694 S.E.2d 202 (2010). Although
2
In his brief, Defendant candidly acknowledges the limited
nature of the dismissal motion that he made in the trial court
in connection with the case in which he was charged with
feloniously assaulting Mr. Holiday and seeks to have us review
the sufficiency of the evidence to support a determination that
Mr. Holiday sustained a serious injury on plain error grounds.
As a result of the fact that plain error review is only
available for the purpose of addressing alleged evidentiary or
instructional errors, Greene, 351 N.C. at 566, 528 S.E.2d at
578, we are not authorized to review Defendant’s sufficiency of
the evidence challenge to his conviction for feloniously
assaulting Mr. Holiday using a plain error standard of review.
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Defendant did seek to obtain the dismissal of the felonious
assault charge that had been lodged against him in connection
with the shooting of Mr. Holiday, he did not argue in support of
that motion that the State had failed to adduce sufficient
evidence to support a determination that Mr. Holiday had
sustained a serious injury and simply argued, instead, that the
record did not contain sufficient evidence to show that
Defendant intended to kill Mr. Holiday. As a result, Defendant
did not preserve his right to challenge the sufficiency of the
evidence to support a finding that Mr. Holiday sustained a
serious injury as a result of the assault that was inflicted on
him by Defendant. See State v. Sharpe, 344 N.C. 190, 194, 473
S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175
S.E. 836, 838 (1934)) (holding that, “where a theory argued on
appeal was not raised before the trial court, ‘the law does not
permit parties to swap horses between courts in order to get a
better mount’” on appeal).
In addition to challenging the trial court’s refusal to
dismiss the charge that he feloniously assaulted Mr. Holiday on
its own motion, Defendant also argues that his trial counsel’s
failure to challenge the sufficiency of the evidence to
establish that he inflicted a serious injury upon Mr. Holiday in
the course of making his dismissal motion constituted
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constitutionally deficient representation entitling him to
relief on ineffective assistance of counsel grounds. In order
to appropriately address this contention, we must, for the
reasons set forth above, consider the merits of Defendant’s
challenge to the sufficiency of the evidence to support the
jury’s finding that he seriously injured Mr. Holiday.
An injury sufficient to support a conviction for felonious
assault in violation of N.C. Gen. Stat. § 14-32(a) “must be
serious but it must fall short of causing death.” State v.
Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). “Whether such
serious injury has been inflicted must be determined according
to the particular facts of each case.” Id. “Factors our courts
consider in determining if an injury is serious include pain,
loss of blood, hospitalization and time lost from work.” State
v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).
Ultimately, however, a determination of the extent to which an
injury is “serious” for purposes of N.C. Gen. Stat. § 14-32(a)
hinges upon a consideration of the totality of the relevant
facts, with the Supreme Court having specifically stated that
the adoption of a definition of “serious injury” more detailed
than a “physical or bodily injury resulting from an assault with
a deadly weapon with intent to kill” that “must be serious but .
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. . fall short of causing death” “seems neither wise nor
desirable.” Jones, 258 N.C. at 91, 128 S.E.2d at 3.
The only evidence in the present record concerning the
extent of Mr. Holiday’s injuries was contained in the testimony
of Mr. Holiday and the testimony of the physician who treated
him after his arrival at the hospital. On the one hand, Mr.
Holiday testified that he was shot in the leg, that he felt a
little sting at the time of the shooting, and that he stayed in
the hospital for one day after having been injured. Although
Mr. Holiday received pain medication during his time in the
hospital, he did not receive any stitches or have his wound
bandaged. In spite of the fact that Mr. Holiday denied having
had any ongoing medical problems stemming from the shooting, he
did plan to have the bullet removed in the future. Aside from
the presence of the bullet in his leg, the only residual injury
that Mr. Holiday claimed to have had as a result of the shooting
was a scar.
On the other hand, Dr. Dawd Siraj testified that he had
treated Mr. Holiday following his arrival at Halifax Community
Hospital, where he presented himself with a “very painful right
thigh.” At that time, Dr. Siraj noticed that Mr. Holiday’s
right thigh was very swollen and that no exit wound could be
detected. Although blood was present in the wound itself, Dr.
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Siraj did not observe any active bleeding. After reviewing an
x-ray of Mr. Holiday’s leg, Dr. Siraj determined that the bullet
was lodged close to Mr. Holiday’s bone and that there was no
observable fracture. At the time that Mr. Holiday left the
hospital for transportation to Pitt County Memorial for the
purpose of receiving treatment that was not available at Halifax
Community Hospital, Dr. Siraj gave Mr. Holiday an injection of
Demerol, which is a high-level painkiller, to dull the in-
transit pain.3
In attempting to persuade us that the record did not
suffice to support a determination that Mr. Holiday sustained a
serious injury as that term is used in N.C. Gen. Stat. § 14-
32(a) as a result of the shooting, Defendant notes that the
record did not contain any evidence of blood loss, that Mr.
Holiday’s hospital stay was relatively brief, that Mr. Holiday
did not receive extensive treatment for his gunshot wound, and
that Mr. Holiday denied having been in pain. Although the
3
In addition, Dr. Siraj testified that Mr. Holiday rated his
pain at ten on a scale from one to ten. However, in describing
the manner in which a patient should provide pain scale
information, Dr. Siraj stated he would tell an individual who
had not suffered a gunshot wound that “ten would be a gunshot
wound and zero would be none.” Although the record does not
clearly indicate that Dr. Siraj used this description in the
course of explaining the pain scale to Mr. Holiday, this
statement does limit the usefulness of the pain scale results
for evaluating the extent of the injury that Mr. Holiday
sustained.
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evidence upon which Defendant relies does appear in the record,
the record also contains substantial additional testimony
tending to support a contrary determination. As an initial
matter, Mr. Holiday’s claim that he was not in pain to the
contrary notwithstanding, the record contains evidence tending
to show that he presented himself for treatment by Dr. Siraj
with a painful leg wound, that Mr. Holiday described the pain
that he was experiencing as at the top of a one to ten pain
scale, and that Dr. Siraj believed that he should prescribe a
powerful medication to alleviate Mr. Holiday’s pain. In
addition, the record contains evidence tending to show that Mr.
Holiday remained hospitalized for a day, that his injuries were
sufficient to necessitate his transfer to another facility, that
the bullet fired by Defendant remained in Mr. Holiday’s leg at a
point close to the bone, that Mr. Holiday wished to have the
bullet surgically removed, and that there was residual scarring
at the wound site. We believe that this evidence, when
considered in the light most favorable to the State, sufficed to
support a determination that Defendant inflicted a serious
injury upon Mr. Holiday for purposes of N.C. Gen. Stat. § 14-
32(a). As a result, since any challenge that Defendant’s trial
counsel might have made to the sufficiency of the evidence to
support a determination that Mr. Holiday sustained a serious
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injury would have been unavailing, Defendant is not entitled to
relief from his conviction for feloniously assaulting Mr.
Holiday on ineffective assistance of counsel grounds.
C. Exclusion of Individuals from the Courtroom
Finally, Defendant contends that the trial court erred by
ordering that certain members of the public be excluded from the
courtroom during the testimony of a particular witness. More
specifically, Defendant contends that the trial court’s decision
to exclude these three individuals from the courtroom during the
testimony of Ms. Whitaker violated his right to a public trial
as guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 18 of the
North Carolina Constitution and contravened the provisions of
N.C. Gen. Stat. § 15A-1034(a), which allow the imposition of
“reasonable limitations on access to the courtroom when
necessary to ensure the orderliness of courtroom proceedings or
the safety of persons present.” We are not persuaded that
Defendant is entitled to relief from the trial court’s judgments
based upon these contentions.
1. Relevant Facts
Prior to the delivery of the parties’ opening statements,
the State sought the entry of an order precluding three
individuals from being present during the testimony of certain
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witnesses. During the trial court’s consideration of this
motion, Ms. Themes testified that the only reason that the
presence of the individuals in question made her nervous stemmed
from the fact that she did not like speaking in front of a large
group of people. According to her voir dire testimony, however,
Ms. Whitaker felt uncomfortable testifying at Defendant’s trial
given Defendant’s history of assaultive conduct and the fact
that certain individuals in the courtroom were associated with
Defendant, although she denied being afraid that these
individuals would shoot anyone. In addition, Ms. Whitaker
testified that Defendant and the other individuals in the
courtroom were members of a gang that was known for its violent
tendencies.
In the course of her voir dire testimony, Ms. Whitaker
described the activities of two individuals named Tony and June.
Prior to trial, Tony and June had inquired of Ms. Whitaker about
the content of the testimony that she expected to give on behalf
of the State. However, Ms. Whitaker declined to tell the two
men anything about the information that she planned to
communicate to the jury at the time that she took the stand. On
each subsequent occasion when she encountered the two men, Tony
and June reiterated their request that Mr. Whitaker tell them
about the likely content of her trial testimony. On the day
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prior to trial, Tony and June asked Ms. Whitaker to help
Defendant on the grounds that he had changed, that he would not
engage in similar conduct in the future, and that the two of
them wanted Defendant to get out of prison. In fact, Tony and
June went so far as to inform Ms. Whitaker about the length of
the sentence that could be imposed upon Defendant in the event
that he was convicted and assured Ms. Whitaker that Defendant
would not bother her children in the event that he was
acquitted. On the other hand, Tony informed Ms. Whitaker that
Defendant could “do something” to her in the event that he was
convicted even if he was in prison. Although no explicit
threats were ever made to Ms. Whitaker, she feared that her
children would be harmed in the event that she had to testify in
front of Tony and June, stated that she did not feel comfortable
testifying in their presence, and indicated that she would not
testify in their presence even if she was held in contempt.
Based upon this evidence, the trial court ordered that Tony,
June, and an unnamed third person be excluded from the courtroom
during Ms. Whitaker’s testimony.
2. Relevant Legal Analysis
In his brief, Defendant has challenged the trial court’s
decision to exclude the three individuals from the courtroom on
both constitutional and statutory grounds. “It is well settled
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that constitutional matters that are not ‘raised and passed
upon’ at trial will not be reviewed for the first time on
appeal.” State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724,
745 (2004) (quoting State v. Watts, 357 N.C. 366, 372, 584
S.E.2d 740, 745 (2003), cert. denied, 541 U.S. 944, 124 S. Ct.
1673, 158 L. Ed. 2d 370, (2004)), cert. denied, 543 U.S. 1156,
125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005). In contending that
the trial court violated his state and federal constitutional
rights to a public trial by failing to make adequate findings of
fact as required by the decision of the United States Supreme
Court in Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210,
2216, 81 L. Ed. 2d 31, 39 (1984) (stating that any “party
seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced, the closure must be no broader
than necessary to protect that interest, the trial court must
consider reasonable alternatives to closing the proceeding, and
it must make findings adequate to support the closure”),
Defendant suggests, in apparent recognition of his failure to
make any sort of explicit constitutional argument in the court
below, that we should consider this issue on the merits on the
grounds that the general nature of his objection was apparent
from the context in which it was made. E.g., State v. Rollins,
__ N.C. App. __, __, 729 S.E.2d 73, 76 (2012) (alteration in
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original) (holding that the nature of the defendant’s objection
was sufficiently apparent from the context given his argument
that a “[c]ourt should be open”). Although Defendant’s trial
counsel did object to the exclusion of these individuals from
the courtroom in the trial court, the only basis cited in
support of that objection was the assertion that the excluded
individuals were members of Defendant’s family.4 We are unable
to interpret this objection, unlike the objection deemed
sufficient in Rollins, to be tantamount to the assertion of a
constitutional right given the absence of any reference to any
of the considerations that underlie a defendant’s state and
federal constitutional right to a public trial. As a result,
Defendant did not properly preserve his federal constitutional
challenge to the exclusion of these individuals from the
courtroom for purposes of appellate review.5 See State v.
4
Interestingly, Defendant later told the trial court that he
did not know June, Tony, or the unnamed third individual whom
the State wished to have excluded from the courtroom.
5
In addition to the argument advanced in the text, Defendant
has requested that we review his constitutional claim on the
merits for plain error or pursuant to N.C.R. App. P. 2.
However, we decline to accede to Defendant’s request given that
plain error review is only available in connection with
challenges to trial court evidentiary rulings and instructional
decisions, Greene, 351 N.C. at 566, 528 S.E.2d at 578, and given
that the trial court appears to have had an adequate basis for
excluding Tony, June, and the other unnamed individual from the
courtroom and could have made appropriate findings had
Defendant’s contention been brought to its attention in a timely
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Register, 206 N.C. App. 629, 634, 698 S.E.2d 464, 469 (2010)
(citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607
(2001)) (holding that, “[t]o the extent that defendant is
arguing that he had a constitutional right to have his family
present, that argument was not made at trial, and we will not,
therefore, consider it for the first time on appeal”).
In addition, we believe that the record developed in the
trial court adequately supported the exclusion of Tony, June,
and the unnamed individual from the courtroom as authorized by
N.C. Gen. Stat. § 15A-1034(a) on the grounds that these
individuals posed a threat to the safety of Ms. Whitaker and her
family. See State v. Dean, 196 N.C. App. 180, 188, 674 S.E.2d
453, 459, (holding that the trial court did not abuse its
discretion in ordering the spectators removed pursuant to N.C.
Gen. Stat. § 1033), disc. review denied, 363 N.C. 376, 679
S.E.2d 139 (2009).6 As we have already noted, Ms. Whitaker
testified that Tony and June had repeatedly attempted to
dissuade her from testifying against Defendant and made implicit
threats that she and her children would be harmed if she did not
accede to their requests. In light of this evidence, the trial
manner.
6
Although Defendant has not cited N.C. Gen. Stat. § 15A-1033
in his brief, we believe that decisions construing that
statutory provision are helpful in understanding the manner in
which a trial court should apply N.C. Gen. Stat. § 15A-1034(a).
-27-
court had ample justification for exercising its authority under
N.C. Gen. Stat. § 15A-1034(a) to order that Tony, June, and the
unnamed individual be excluded from the courtroom during Ms.
Whitaker’s testimony. As a result, Defendant is not entitled to
relief from his convictions on the basis of his challenge to the
exclusion of these individuals from the courtroom during a
portion of his trial.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).