{ "id": 11917553, "name": "STATE OF NORTH CAROLINA v. MICHAEL DEAN McABEE", "name_abbreviation": "State v. McAbee", "decision_date": "1995-11-07", "docket_number": "No. 9429SC284", "first_page": "674", "last_page": "689", "citations": [ { "type": "official", "cite": "120 N.C. App. 674" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "7 ALR3d 181", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "48 ALR2d 1239", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "43 ALR4th 1203", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "98 ALR3d 306", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "531 F.2d 183", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1074326 ], "year": 1975, "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/f2d/531/0183-01" ] }, { "cite": "378 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "757", "parenthetical": "quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975" } ], "opinion_index": 0 }, { "cite": "324 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487826 ], "year": 1989, "pin_cites": [ { "page": "349", "parenthetical": "quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0343-01" ] }, { "cite": "102 L. Ed. 2d 548", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "488 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493537, 1495395, 1494695, 1494287, 1494199 ], "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/488/0975-03", "/us/488/0975-05", "/us/488/0975-04", "/us/488/0975-01", "/us/488/0975-02" ] }, { "cite": "366 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514399 ], "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0022-01" ] }, { "cite": "384 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "561", "parenthetical": "quoting State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988) (citations omitted" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520311 ], "year": 1989, "pin_cites": [ { "page": "82", "parenthetical": "quoting State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988) (citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0077-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "590", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "572", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "309 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768682 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0802-01" ] }, { "cite": "255 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551530 ], "year": 1979, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0680-01" ] }, { "cite": "208 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "383" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547948 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "96" }, { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0093-01" ] }, { "cite": "441 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "302" }, { "page": "302" } ], "opinion_index": 0 }, { "cite": "335 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526731 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0696-01" ] }, { "cite": "131 L. Ed. 2d 138", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "115 S. Ct. 1258", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1995, "opinion_index": 0 }, { "cite": "28 F.3d 1209", "category": "reporters:federal", "reporter": "F.3d", "year": 1994, "opinion_index": 0 }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "430 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0 }, { "cite": "333 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545420 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "697" }, { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0687-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "year": 1988, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "313 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "310 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402840 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0541-01" ] } ], "analysis": { "cardinality": 1226, "char_count": 31401, "ocr_confidence": 0.756, "pagerank": { "raw": 2.850719346387876e-07, "percentile": 0.8406300907890769 }, "sha256": "329f2f686512f8214ee7f499f8069b231f24d321073ca0d6101a46dbe1177bf6", "simhash": "1:cf29d2ae545e8cc0", "word_count": 5104 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL DEAN McABEE" ], "opinions": [ { "text": "McGEE, Judge.\nOn 25 October 1992, defendant Michael Dean McAbee and Nancy Henson rushed Henson\u2019s four-month-old daughter to the Park Ridge Hospital emergency room. Dr. Kenneth Michael Dennis conducted a thorough examination of the child and concluded she was suffering from central nervous system hemorrhaging. The child was transferred to another hospital where Dr. Dennis discovered several other bruises which were at various stages of healing, and ultimately she was sent to Memorial Mission Hospital for treatment.\nDrs. Harald Kowa and Catherine Gish further evaluated the child at Memorial Mission Hospital. Dr. Kowa noted that there were bruises on the child\u2019s chin, head and tongue. The following day, a CAT scan revealed the child\u2019s brain had begun to swell. Her heart rate began to increase, her breathing was irregular and her pupils were less responsive. Dr. Kowa concluded she suffered from gross cerebral edema, a swelling of the brain. Despite continued monitoring and treatment, the child\u2019s condition deteriorated and on 29 October, after consulting with three other physicians, Dr. Kowa pronounced the child brain dead.\nBoth the defendant and Nancy Henson were arrested and following an investigation, defendant was charged with the second degree murder of Henson\u2019s daughter. The State\u2019s evidence at trial included testimony from several medical experts that the injuries to the child were consistent with a battered child and shaken baby syndrome. Defendant\u2019s medical expert stated he would not have concluded the baby\u2019s death was caused by a shaking injury.\nHenson testified that in late 1991 she met defendant and they began a relationship. She was already pregnant before she met defendant. According to Henson, defendant assumed full responsibility for the baby\u2019s care after her birth and for the first few weeks, he treated the baby well. His conduct soon changed and Henson began observing abusive behavior, including defendant burning the child while bathing her, necessitating special medical treatment in Cincinnati, Ohio. He spanked the child and slapped her face when she was crying or not doing exactly what he wanted her to do. Henson began to notice bruises on her daughter\u2019s body and when she confronted defendant, he said the child was injured while crawling around on the floor or bumping into her bassinet. On one occasion, Henson noticed her daughter\u2019s eye was scratched and she was told by defendant that the child had scratched it herself.\nBoth Henson and Deputy Walter Harper of the Henderson County Sheriff\u2019s Department testified that defendant hated to hear the child cry and several times he picked up the child by the torso, placed his hands under her arms, and shook her to stop the crying. Henson said defendant would often take her daughter into another room of the trailer until the crying ceased or he would shake the child while going from one room of the trailer to another.\nOn the day the child was taken to the emergency room, Henson testified she woke up mid-day and found her daughter on the floor, motionless, with blood all over her mouth. Defendant attempted to get the child to respond by pulling her ears, pushing on her chest and shaking her. Defendant claimed that as he started to feed the child baby food, she choked on it. The couple then rushed the child to the hospital emergency room.\nOn cross-examination of Henson, defense counsel emphasized inconsistencies in her testimony. Henson admitted she may have told the doctors and police that she was feeding her daughter when she started choking on the day she was taken to the emergency room. Additionally, Henson acknowledged she told the Department of Social Services she had never seen defendant shake her daughter.\nDefendant gave a different account of the various incidents Henson described. He testified it was Henson who was bathing her daughter when she was burned. He stated he noticed bruises on the child and when he confronted Henson, she speculated the child must have crawled out of the bassinet. Defendant denied shaking the baby in any manner necessary to cause the injuries she sustained. Finally, defendant testified that although he was innocent, he decided to take the blame for the child\u2019s injuries because he felt that he was better able to handle incarceration than Henson.\nAs to the incident on the day the child was taken to the hospital, defendant stated that Henson fed the child that day and that when he woke up, he started down the hallway to go to the bathroom, but Henson would not allow him to enter the living room. He pushed her aside and found the child on the floor choking. He noticed some blood on the floor. Defendant attempted to assist the child by clearing her throat, breathing into her mouth, picking her up by the feet, hitting her on her back and by pushing on her chest. They then took the child to the emergency room.\nOn 3 August 1993, defendant was found guilty of second, degree murder and sentenced to life in prison. Defendant brings forward four issues on appeal. He claims the trial court erred (1) in allowing State\u2019s witness, Nancy Henson, to testify regarding prior bad acts of the defendant; (2) in allowing the State to impeach defendant with prior acts of misconduct which do not go to truthfulness; (3) in allowing the State to introduce testimony that the child\u2019s injuries were intentionally inflicted; and (4) in preventing defendant from inquiring into inconsistent statements made by Nancy Henson, the key prosecution witness. For the reasons below, we disagree with defendant\u2019s contentions.\nI.\nDefendant first argues the trial court erred in allowing Nancy Henson to testify regarding defendant\u2019s prior bad acts in violation of N.C.R. Evid. 404. In support of his contention, defendant cites four exchanges at trial which he claims violate the rule. The first such instance involves three questions related to defendant\u2019s employment status and the other three examples involve defendant\u2019s drinking habits. Defendant argues these questions were designed by the State to show evidence of bad character, that defendant was lazy and had an alcohol problem, and this evidence predisposed the jurors to believe defendant was capable of murder. The State argues defendant exaggerates the effect of the evidence that was admitted and more importantly, that defendant waived objection by failing to object or move to strike at critical times during the trial. Additionally, the State points out that similar evidence was admitted without objection at other times during the trial and therefore, the benefit of the earlier objection is lost under State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984), overruled in part on other grounds in State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988). We agree.\nAs to the employment testimony, the State asked Henson whether defendant was working and if he had worked during the four months after the child\u2019s birth. Henson responded \u201c[n]o, sir\u201d to those two questions with no objection being raised by defendant. The State then asked, \u201c[w]hat did he do?\u201d and it was at that point that defense counsel objected. The court overruled the objection and Henson answered, \u201c[t]here was one time that he went on a truck with Mr. Don Blue, but other than that he never worked at all. He was always at the house.\u201d\nLater in the trial, defendant\u2019s own attorney asked defendant a series of questions regarding his employment status. Defendant testified he stopped working just before he and Henson began their relationship. In response to the question of whether he lost his job because he was spending too much time with Henson, he stated, \u201cI started \u2014 -well, it was my fault \u2014 I got careless and started taking them where they wanted to go and I was the only one that had a vehicle and they depended on me, so I took them where they wanted to go, and I didn\u2019t go to work.\u201d The benefit of the earlier objection was lost when similar evidence was admitted without objection later during the trial. State v. Kyle, 333 N.C. 687, 697, 430 S.E.2d 412, 417 (1993).\nWe also note this evidence was not character evidence used for the purpose of proving that defendant acted in conformity therewith. Defendant\u2019s employment status was hardly related to his propensity to commit murder. Furthermore, this evidence is relevant to illustrate the financial status and living conditions of the parties involved and the testimony helped demonstrate access and opportunity for defendant to have committed the crime because he was frequently at home with the child. Relevant evidence in criminal cases is \u201cany evidence calculated to throw any light upon the crime charged\u201d and should be admitted by the trial court. State v. Huffstetler, 312 N.C. 92, 104-05, 322 S.E.2d 110, 118-19 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985), denial of habeas corpus affirmed sub nom. Huff v. Dixon, 28 F.3d 1209 (4th Cir. 1994), cert. denied sub nom. Huff v. French, 115 S. Ct. 1258, 131 L. Ed. 2d 138 (1995).\nThe next three exchanges defendant challenges involve testimony related to defendant\u2019s drinking habits. The first such instance was, as follows:\nQ. Well, did at [sic] time \u2014 did a time come when things took a turn either for the better than that or the worse than that? Did a time come when he started drinking, Ms. Henson?\nMr. Edney: Objection.\nThe Court: Sustained at this point.\nQ. Well, did things \u2014 did any event in his life \u2014 his conduct\u2014 change after about \u2014 the child \u2014 when the child was about two weeks old?\nA. Yes, he started drinking.\nQ. Had he been, during the relationship with you, had he had a problem with drinking prior to that?\nA. Yes.\nMr. Edney: Objection.\nThe Court: Overruled. I\u2019ll let her respond, if she knows.\nA. Yes.\nQ. And then about the second week of her life, what did he start drinking?\nMr. Edney: Objection.\nThe Court: I\u2019ll overrule it and let her respond, if she knows.\nA. Just anything he could get a hold of.\nMr. Edney: Motion to strike.\nThe Court: Sustained and strike at this point.\nThe second reference to alcohol consumption was when the State asked Henson if defendant\u2019s conduct toward the child changed when he was drinking. Defense counsel objected but the trial court overruled the objection and Henson responded, \u201c[h]e really didn\u2019t start doing anything with her. He\u2019d always start with me.\u201d The third reference to defendant\u2019s drinking habits occurred later during Henson\u2019s testimony when the State asked her if there was a time when defendant started drinking, and defense counsel objected. The court overruled the objection, but the State rephrased the question and asked what defendant was drinking after returning from Cincinnati (where the child had been taken for burn treatment earlier in the summer). Henson responded that defendant was drinking liquor and beer.\nDefendant failed to object or move to strike a number of the references to alcohol consumption to which he now objects and some of the objections he did raise were sustained. Therefore, defendant has no grounds to except on those points. State v. Barton, 335 N.C. 696, 709, 441 S.E.2d 295, 302 (1994). Like the employment questions, we note that defendant gave detailed testimony as to his alcohol consumption after his own attorney asked him for a description of his drinking habits during the time he was involved with Henson. Defendant stated, \u201cI didn\u2019t really drink at the house. When I was drinking,... I was gone with friends or wherever, and there was [sic] occasions that me [sic] and her [sic] would sit around the house and drink together . ...\u201d Furthermore, defendant volunteered that he only drank Canadian Mist and that he would \u201csit around and sip when me [sic] and her [sic] were together, \u2018cause [sic] I knew what it would be if I got drunk.\u201d Since similar evidence of defendant\u2019s drinking habits was admitted without objection at other times during the trial, the benefit of the few objections he raised earlier at trial are now waived. Kyle, 333 N.C. at 697, 430 S.E.2d at 417.\nFurthermore, the evidence of defendant\u2019s drinking habits was relevant. The prosecutor was attempting to show there was a deterioration in defendant\u2019s relationship with the child. There had been some evidence that in the beginning, defendant had been responsible and caring toward the child but this began to change a few weeks after her birth. Therefore, the State was appropriately developing this evidence, notwithstanding the fact that much of this testimony was not especially probative. This assignment of error is overruled. '\nII.\nDefendant next argues the trial court erred in allowing the State to impeach the defendant with prior acts of misconduct which were not probative of truthfulness. While defendant has not properly matched his assignments of error to the question presented as required under North Carolina Rule of Appellate Procedure 28(b)(5) we will, in our discretion, consider the arguments presented in defendant\u2019s brief.\nIn support of his contentions, defendant points to the following: (1) an exchange between the State and defendant\u2019s brother about defendant\u2019s alcoholism, (2) the court\u2019s order during voir dire as to the State\u2019s use of Department of Social Services (hereinafter DSS) files by the State to cross-examine defendant, and (3) the prosecutor\u2019s cross-examination of defendant in which he asked about defendant\u2019s previous hospitalization for alcohol abuse.\nIn the first challenged testimony, the State asked defendant\u2019s brother, \u201c[defendant has] been hospitalized in the past for alcoholism, has he not?\u201d Defendant objected and the court sustained the objection. The State then asked the witness if he knew whether defendant had been hospitalized for alcoholism and the court overruled defendant\u2019s objection to that question. The witness then answered, \u201c[n]o, I don\u2019t.\u201d Even if this were error, we conclude that the testimony was harmless error. The witness\u2019 answer advanced nothing of evidentiary value and defendant suffered no prejudice. In order to obtain relief, a defendant must show that the error asserted is material and prejudicial. State v. Franklin, 23 N.C. App. 93, 96, 208 S.E.2d 381, 383 (1974).\nDefendant\u2019s next argument is that the trial court improperly allowed the State to use confidential DSS records, which contained some medical records, to cross-examine defendant. He maintains that this information was privileged and that he never waived this privilege before or during the trial. Although defendant did not adequately develop this argument, a review of the record reveals that the trial court conducted a voir dire hearing, and made the following findings of fact and conclusions as to the introduction of the DSS records during cross-examination:\n[The DSS] records are confidential in nature, . . . defendant\u2019s counsel subpoenaed them and was given access to them by virtue of Court order .... [T]he Court will find as the issue of the defendant\u2019s alcoholism or abuse of alcohol appears in earlier testimony, the Court will permit cross examination into that area only. The rest of the files are determined to be confidential. That issue [alcoholism] has been raised, Court will find it\u2019s in the interest of justice, . . . [to] proceed into that area, (emphasis added)\nAssuming, arguendo, this confidential file was privileged information and the privilege was not waived by defendant, this privilege is a statutory creation, and is qualified rather than absolute. The law allows the trial court discretion to require disclosure of privileged communications so long as the disclosure is \u201cnecessary to a proper administration of justice.\u201d In Re Farrow, 41 N.C. App. 680, 682, 255 S.E.2d 777, 779 (1979); See generally State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983). Since the trial court found it was in the interest of justice to allow a limited inquiry into the DSS records on defendant\u2019s alcoholism, we conclude the trial court did not abuse its discretion.\nDefendant\u2019s final argument is that the trial court erred in allowing the following exchange:\nQ. Mr. McAbee, do you remember being, in the past, being hospitalized for alcoholism?\nA. No, sir.\nMr. Edney: Objection.\nThe Court: Sustained at this point.\nQ. Do you \u2014 have you been \u2014 were you hospitalized, Mr. McAbee, over at a place called Crossroads in Chattanooga, over in Tennessee, for alcoholism? Do you remember that?\nMr. Edney: Objection\nThe Court: I\u2019m going to overrule that and permit him to respond, if he knows.\nA. I was hospitalized, but it was not for alcohol.\nQ. What was it for?\nA. I was on cocaine at the time.\nQ. Let me \u2014 let me ask you this\u2014\nA. And I went on my own free will.\nQ. I understand that; I\u2019m not doubting that, Mr. McAbee, but I noticed on page 13 of your hospital interview you said, \u201cI am an alcoholic.\u201d\nMr. Edney: Objection.\nThe Court: I\u2019m going to overrule that and permit him to respond.\nQ. Page 13 of your hospital interview, do you remember saying, \u201cI am an alcoholic\u201d; do you remember that?\nA. I am.\nThe trial court sustained defendant\u2019s objection to the State\u2019s first question, but defendant did not move to strike the answer. By failing to move to strike this testimony, defendant waived the right to assert error on appeal under Barton, 335 N.C. at 709, 441 S.E.2d at 302.\nDefendant also objected to the State\u2019s second question about whether defendant remembered being hospitalized in Chattanooga for alcoholism. The court overruled defendant\u2019s objection and defendant answered he was hospitalized, but not for alcohol. While we detect no error, any possible error was certainly not so material as to have amounted to prejudicial error. See Franklin, 23 N.C. App. at 96, 208 S.E.2d at 383.\nThe State then asked the follow-up question of why defendant had been hospitalized. Defendant answered he was on cocaine at the time. Defense counsel never objected to the question, never moved to strike the offensive testimony, and never asked for a cautionary instruction. \u201c[F]ailure to object to errors at trial constitutes a waiver of the right to assert the errors on appeal.\u201d Murray, 310 N.C. at 545, 313 S.E.2d at 527. This testimony did not rise to the level of plain error in that it was not so \u2018\u2018fundamental [an] error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nDefendant\u2019s final objection occurred after the State asked defendant whether he had said, \u201cI am an alcoholic\u201d during his hospital interview. The court overruled the objection and defendant responded, \u201cI am.\u201d Even if this evidence would not otherwise have been admissible, the law permits the introduction of such evidence to explain or rebut evidence offered by the defendant himself. State v. Brown, 310 N.C. 563, 572, 313 S.E.2d 585, 590 (1984) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). Prior to this exchange, defendant had voluntarily testified about his drinking habits during direct examination by defense counsel. Since the door had already been opened by defendant, the State was entitled to cross-examine defendant about his alcohol consumption.\nNone of the three arguments constituted prejudicial error; therefore, we overrule this assignment of error.\nIII.\nDefendant\u2019s third argument is that the trial court erred in allowing the State to introduce testimony from two medical experts that the child\u2019s injuries were intentionally inflicted. He argues this testimony was improper because it permitted the experts to testify about a precise legal standard and conclusion. We disagree..\nRule 702 of the North Carolina Rules of Evidence allows an expert witness to offer an opinion if \u201cscientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702 (1992). This rule has been construed to allow expert testimony that aids the factfinder \u201cin drawing certain inferences from facts, and the expert is better qualified than the [factfinder] to draw such inferences.\u201d In re Hayden, 96 N.C. App. 77, 82, 384 S.E.2d 558, 561 (1989) (quoting State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988) (citations omitted). \u201cA trial court is afforded wide latitude in applying Rule 702 and will be reversed only for an abuse of discretion.\u201d Id. We find no such abuse of discretion is present under these facts.\nDefendant first objected to testimony elicited from Dr. Thomas Clark, a forensic pathologist in the state Medical Examiner\u2019s office. The State asked him if he had an opinion \u201cas to whether the shaking injury that [he] diagnosed as this child\u2019s cause of death is consistent with intentionally inflicted injuries?\u201d Dr. Clark responded, \u201c[y]es. It had to be an intentionally inflicted injury.\u201d During that same exchange, the State asked Dr. Clark if he had an opinion \u201cas to whether the fracture of the right arm is consistent with being an intentionally inflicted injury.\u201d Defendant objected and the State clarified the question by adding, \u201cas opposed to accidentally sustained?\u201d After defendant\u2019s objections were overruled, Dr. Clark responded:\nIt is inconceivable to me that a four-month-old child could do anything to injure this arm without assistance. The child can\u2019t walk; the child can barely roll over, if the child can roll over. And for those reasons, I conclude that this injury would have to have been inflicted upon this child in some way.\nThe other medical expert who provided testimony about intentionally inflicted injuries was defense witness, Dr. Joseph Scheller, a pediatric neurologist at the University of Maryland. The testimony in question was the following:\nQ. Does the word \u201cabused\u201d imply intentional abuse \u2014 the scenario that I\u2019ve given you: corneal abrasion, severe immersion burn, untreated fracture to the right arm, tongue laceration, lethargy, possible seizures, serious injury to the central nervous system, cut tongue and bruises of various ages \u2014 you\u2014do you not \u2014 you as a medical professional not agree that the number one differential diagnosis would not simply be abuse, but intentional, physical abuse?\nMr. Edney: Objection, Your Honor.\nQ. That\u2019s my question.\nThe Court: Just a minute. I\u2019m going to overrule and let him respond, if he can.\nA. I would be very suspicious that this child had been intentionally abused. I need to qualify that by saying \u2014 am I allowed to?\nThe Court: Yes, sir, you may.\nQ. [sic] \u2014 that the corneal abrasion is not high on the list as far as the suspicious injuries, based on the description that was offered by the parents. The bum was described \u2014 the caretaker did have an excuse or a \u2014 how would I put it? \u2014 a reason.\nThe other injuries are more suspicious: the cut tongue, the broken arm, and the blood in the spinal fluid.\nThe record indicates that both Dr. Clark and Dr. Scheller are duly licensed, board certified medical physicians. In his capacity as a forensic pathologist, Dr. Clark\u2019s areas of expertise include the performance of autopsies and the determination of the cause and manner of death of children as well as adults. Dr. Scheller is an assistant professor at the University of Maryland and specializes in the area of pediatric neurology. Both physicians testified they have had experience with the medical conditions known as Battered-Child Syndrome and Shaken-Baby Syndrome; both gave detailed explanations of the general nature of these conditions and how they are medically evaluated. In discussing the specific injuries sustained by Henson\u2019s daughter, each physician offered his opinion as to whether the injuries were consistent with intentionally, as opposed to accidentally, inflicted injuries. The trial court did not abuse its discretion in allowing the testimony since it was within each physician\u2019s area of expertise, was helpful to the factfinder and did not embrace a legal term of art or conclusion of law. We therefore overrule this assignment of error.\nIV.\nDefendant\u2019s final argument is that the trial court erred in preventing him from eliciting further testimony from defense witness, Linda Burrell, regarding allegedly inconsistent statements made by Henson. The testimony in question was the following:\nQ. What, if anything else, did Nancy ever say during your conversations in January and February?\nA. She said once that her body was so good that she had a man that was going to pay for her crime.\nMr. Leonard: Objection. Motion to strike. Irrelevant.\nThe Court: Sustained and strike.\nDefendant argues the exchange in question constituted a valid impeachment of Henson by a prior inconsistent statement and that the trial court should have admitted this testimony for impeachment purposes. However, defendant has not cited, and we are unable to find, any statements in Henson\u2019s testimony which support the conclusion that the statement now at issue amounts to a prior inconsistent statement. While prior inconsistent statements are admissible for impeachment purposes, impeachment in this manner is not permitted when \u201cemployed as a mere subterfuge to get before the jury evidence not otherwise admissible.\u201d State v. Hunt, 324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989) (quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975).\nMoreover, the testimony in question is vague and requires speculation to give it any value. Because it could have confused the jury, the trial court properly excluded the testimony and we therefore overrule this assignment of error. See N.C.R. Evid. 403.\nWe hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Associate Attorney General William B. Crumpler, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Charles L. Alston, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL DEAN McABEE\nNo. 9429SC284\n(Filed 7 November 1995)\n1. Evidence and Witnesses \u00a7 176 (NCI4th)\u2014 murder prosecution \u2014 evidence of defendant\u2019s employment status \u2014 no error\nIn a prosecution of defendant for the murder of his girlfriend\u2019s four-month-old daughter, the trial court did not err in allowing the girlfriend to testify concerning defendant\u2019s employment status since defendant did not object to the questions at the time they were asked; later in the trial defendant\u2019s own attorney asked him a series of questions regarding his employment status; the evidence was not evidence of bad character; the evidence was relevant to illustrate the financial status and living conditions of the parties involved; and the testimony helped demonstrate access and opportunity for defendant to have committed the crime because he was frequently at home with the child.\nAm Jur 2d, Evidence \u00a7\u00a7 64-70.\n2. Evidence and Witnesses \u00a7 386 (NCI4th)\u2014 murder prosecution \u2014 defendant\u2019s drinking habits \u2014 evidence admissible\nIn a prosecution of defendant for the murder of his girlfriend\u2019s four-month-old daughter, the trial court did not err in admitting testimony related to defendant\u2019s drinking habits where defendant failed to object to a number of references to alcohol consumption; defendant gave detailed testimony as to his alcohol consumption after his own attorney asked him for a description of his drinking habits; and the evidence of his drinking habits was relevant to show that there was a deterioration in defendant\u2019s relationship with the child.\nAm Jur 2d, Evidence \u00a7\u00a7 320, 321.\n3. Evidence and Witnesses \u00a7 720 (NCI4th)\u2014 negative answer by witness \u2014 absence of prejudice\nDefendant was not prejudiced where a witness answered negatively when asked if he knew whether defendant had been hospitalized for alcoholism since the answer advanced nothing of evidentiary value.\nAm Jur 2d, Appellate Review \u00a7\u00a7 714, 752, 753, 759.\n4. Evidence and Witnesses \u00a7 2679 (NCI4th)\u2014 DSS records\u2014 partial use for cross-examination\nAssuming that confidential DSS records were privileged, the trial court did not abuse its discretion by finding that it was in the interest of justice to allow the State to use the records to cross-examine defendant only about his alcoholism where the issue of defendant\u2019s alcoholism appeared in earlier testimony.\nAm Jur 2d, Witnesses \u00a7 296.\n5. Appeal and Error \u00a7 155 (NCI4th)\u2014 absence of objection or motion \u2014 waiver of appellate review\nDefendant\u2019s failure to object to the prosecutor\u2019s question as to why he had been hospitalized, to move to strike defendant\u2019s answer that he was on cocaine, and to ask for a cautionary instruction waived his right to assert error on appeal.\nAm Jur 2d, Appellate Review \u00a7\u00a7 135-263.\n6. Evidence and Witnesses \u00a7 2750.1 (NCI4th)\u2014 direct testimony by defendant \u2014 opening door to cross-examination\nDefendant\u2019s testimony about his drinking habits during direct examination opened the door to the prosecutor\u2019s cross-examination of defendant as to whether he had said he was an alcoholic during a hospital interview.\nAm Jur 2d, Witnesses \u00a7 417.\n7. Evidence and Witnesses \u00a7 2266 (NCI4th)\u2014 murder of four month old \u2014 expert medical evidence that injuries intentionally inflicted \u2014 evidence properly admitted\nIn a prosecution of defendant for murder of his girlfriend\u2019s four-month-old daughter, the trial court did not err in allowing the State to introduce testimony from two medical experts that the child\u2019s injuries were intentionally inflicted, since the testimony was within each physician\u2019s area of expertise, was helpful to the factfinder, and did not embrace a legal term of art or conclusion of law.\nAm Jur 2d, Evidence \u00a7\u00a7 1457, 1467, 1477.\nAdmissibility of expert medical testimony on battered child syndrome. 98 ALR3d 306.\nAdmissibility at criminal prosecution of expert testimony on battering parent syndrome. 43 ALR4th 1203.\n8. Evidence and Witnesses \u00a7 3070 (NCI4th)\u2014 allegedly inconsistent statements \u2014 evidence properly excluded\nIn a prosecution of defendant for murder of his girlfriend\u2019s four-month-old daughter, the trial court did not err in preventing defendant from eliciting further testimony from a defense witness regarding allegedly inconsistent statements made by the girlfriend, since there was no evidence that the statement in question was in fact a prior inconsistent statement; impeachment in this manner is not permitted when employed as a mere subterfuge to get before the jury evidence not otherwise admissible; and the testimony in question was vague, required speculation to give it any value, and thus could have confused the jury.\nAm Jur 2d, Witnesses \u00a7\u00a7 596 et seq.\nRight of counsel representing party at trial, but employed by his liability insurer, to cross-examine or impeach him for asserted contradictory statements. 48 ALR2d 1239.\nRight of defendant in criminal case to inspection of statement of prosecution\u2019s witness for purposes of cross-examination or impeachment. 7 ALR3d 181.\nAppeal by defendant, Michael Dean McAbee, from judgment entered 4 August 1993 by Judge Loto Greenlee Caviness in Henderson County Superior Court. Heard in the Court of Appeals 11 January 1995.\nDefendant was convicted of second degree murder and sentenced to life in prison for the death of his girlfriend\u2019s four-month-old daughter. From this judgment and commitment, defendant appeals.\nAttorney General Michael F Easley, by Associate Attorney General William B. Crumpler, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Charles L. Alston, Jr., for defendant appellant." }, "file_name": "0674-01", "first_page_order": 708, "last_page_order": 723 }