{ "id": 8372039, "name": "STATE OF NORTH CAROLINA v. ANDERSON SHELDON HAZELWOOD", "name_abbreviation": "State v. Hazelwood", "decision_date": "2007-11-06", "docket_number": "No. COA06-1667", "first_page": "94", "last_page": "104", "citations": [ { "type": "official", "cite": "187 N.C. App. 94" } ], "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": "253 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623166 ], "year": 1960, "opinion_index": -1, "case_paths": [ "/nc/253/0176-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "distinguishing Diaz and finding no prejudicial error where trial court instructed jury on the various types of inappropriate sexual conduct that could constitute an \"indecent liberty\" for purposes of the offense of taking indecent liberties with a minor" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "pin_cites": [ { "parenthetical": "distinguishing Diaz and finding no prejudicial error where trial court instructed jury on the various types of inappropriate sexual conduct that could constitute an \"indecent liberty\" for purposes of the offense of taking indecent liberties with a minor" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "540 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "141 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440957 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/141/0302-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "pin_cites": [ { "page": "302-03" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "553" }, { "page": "494" }, { "page": "554" }, { "page": "494" } ], "opinion_index": 0 }, { "cite": "317 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "144 L. Ed. 2d 219", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11221024, 11221440, 11221250, 11221057, 11221476, 11221003, 11221356, 11220974, 11221212, 11221110, 11221176, 11221146, 11221307, 11221404, 11221085 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1161-03", "/us/526/1161-14", "/us/526/1161-10", "/us/526/1161-04", "/us/526/1161-15", "/us/526/1161-02", "/us/526/1161-12", "/us/526/1161-01", "/us/526/1161-09", "/us/526/1161-06", "/us/526/1161-08", "/us/526/1161-07", "/us/526/1161-11", "/us/526/1161-13", "/us/526/1161-05" ] }, { "cite": "506 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "349 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571614 ], "year": 1998, "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0001-01" ] }, { "cite": "451 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "597" }, { "page": "597" } ], "opinion_index": 0 }, { "cite": "338 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517613 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "565" }, { "page": "564-65" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0526-01" ] }, { "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", "parenthetical": "footnotes omitted" } ], "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) (footnotes omitted), 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) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "116 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "adopting Strickland test" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562-63", "parenthetical": "adopting Strickland test" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "82 L. Ed. 2d 864", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "467 U.S. 1267", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6364245 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/467/1267-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "611 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "816", "parenthetical": "out-of-court statement admissible \"to explain [the] defendant's subsequent conduct\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799490 ], "year": 2005, "pin_cites": [ { "page": "355", "parenthetical": "out-of-court statement admissible \"to explain [the] defendant's subsequent conduct\"" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0328-01" ] }, { "cite": "297 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "536", "parenthetical": "defining \"malice\" as used in homicide law" } ], "opinion_index": 0 }, { "cite": "307 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561231 ], "year": 1982, "pin_cites": [ { "page": "191", "parenthetical": "defining \"malice\" as used in homicide law" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0184-01" ] }, { "cite": "145 L. Ed. 2d 388", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "pin_cites": [ { "parenthetical": "reviewing de novo trial court's determination that out-of-court statement was admissible for limited purpose of explaining the reaction of the person to whom the statement was made" } ], "opinion_index": 0 }, { "cite": "528 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9591745, 9590821, 9590661, 9591239, 9591017, 9591422, 9591627, 9590924, 9591537, 9591858, 9590740, 9591319, 9591161, 9591095, 9591966 ], "year": 1999, "pin_cites": [ { "parenthetical": "reviewing de novo trial court's determination that out-of-court statement was admissible for limited purpose of explaining the reaction of the person to whom the statement was made" } ], "opinion_index": 0, "case_paths": [ "/us/528/1006-13", "/us/528/1006-03", "/us/528/1006-01", "/us/528/1006-08", "/us/528/1006-05", "/us/528/1006-10", "/us/528/1006-12", "/us/528/1006-04", "/us/528/1006-11", "/us/528/1006-14", "/us/528/1006-02", "/us/528/1006-09", "/us/528/1006-07", "/us/528/1006-06", "/us/528/1006-15" ] }, { "cite": "514 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "501", "parenthetical": "reviewing de novo trial court's determination that out-of-court statement was admissible for limited purpose of explaining the reaction of the person to whom the statement was made" }, { "page": "501", "parenthetical": "out-of-court statement admissible \"for the limited purpose of explaining why [witness] reacted... as he did and his subsequent conduct\"" } ], "opinion_index": 0 }, { "cite": "350 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132207 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "339", "parenthetical": "reviewing de novo trial court's determination that out-of-court statement was admissible for limited purpose of explaining the reaction of the person to whom the statement was made" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0315-01" ] }, { "cite": "151 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9117696, 9117539, 9117635, 9117510, 9117672, 9117610, 9117586, 9117779, 9117492, 9117653, 9117716, 9117559, 9117528, 9117750 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0838-11", "/us/534/0838-04", "/us/534/0838-08", "/us/534/0838-02", "/us/534/0838-10", "/us/534/0838-07", "/us/534/0838-06", "/us/534/0838-14", "/us/534/0838-01", "/us/534/0838-09", "/us/534/0838-12", "/us/534/0838-05", "/us/534/0838-03", "/us/534/0838-13" ] }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "253 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623166 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0176-01" ] } ], "analysis": { "cardinality": 972, "char_count": 25893, "ocr_confidence": 0.745, "pagerank": { "raw": 2.7567101929620665e-07, "percentile": 0.833222709123196 }, "sha256": "82449a392b2d07318b5202e0a3124cc83acf854d134800bc5304de69313f7487", "simhash": "1:1669066a775e3df1", "word_count": 4190 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANDERSON SHELDON HAZELWOOD" ], "opinions": [ { "text": "McGEE, Judge.\nAnderson Sheldon Hazelwood (Defendant) was convicted on 2 March 2006 of two counts of second-degree murder and one count of felony operation of a motor vehicle to elude arrest. The trial court sentenced Defendant to consecutive terms of 225-279 months in prison on each charge of second-degree murder, and to a consecutive term of eleven to fourteen months on the charge of felony operation of a motor vehicle to elude arrest. Defendant appeals.\nThe evidence presented at trial tended to show the following: Around 10:00 p.m. on 23 October 2004, Trooper Brian W. Jones (Trooper Jones) with the North Carolina State Highway Patrol initiated a traffic stop of Defendant\u2019s car after observing Defendant driving erratically and above the posted speed limit. Defendant initially stopped his car, but as Trooper Jones approached Defendant\u2019s car, Defendant drove off at a high rate of speed. Trooper Jones returned to his vehicle and followed Defendant as he fled the traffic stop. During an ensuing high-speed chase, Defendant lost control of his vehicle and collided with a tree. Defendant\u2019s two passengers, girlfriend Shavonda Renee Commissiong (Ms. Commissiong), and her five-year-old son Jalien Anthony Commissiong, both died in the collision. Defendant was also injured in the crash and was taken by ambulance to Wake Medical Center.\nTwo days later, Trooper Jones visited Defendant in the hospital. After Trooper Jones advised Defendant of his Miranda rights, Defendant gave a statement to Trooper Jones. Trooper Jones testified that in the statement, Defendant said that prior to the collision, Ms. Commissiong \u201ctold [Defendant] to stop, but [Defendant] told her [he] wasn\u2019t going to go to jail tonight.\u201d\nAt trial, Defendant stipulated that he was guilty of two counts of involuntary manslaughter. The trial court instructed the jury on second-degree murder and involuntary manslaughter, as well as felony and misdemeanor operation of a motor vehicle to elude arrest. The jury found Defendant guilty of the greater offenses.\nDefendant argues that the trial court erred by allowing the State to introduce inadmissible hearsay, and by disallowing certain expert witness testimony regarding the speed of his vehicle. Defendant also argues that he was denied effective assistance of counsel at trial; that the trial court improperly instructed the jury regarding evidence admitted under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b); and that the jury instructions did not require a unanimous verdict for conviction. We find no error.\nI.\nDefendant first assigns as error the trial court\u2019s overruling of his hearsay objection to certain evidence introduced by the State. At trial, Trooper Jones began to testify regarding his visits to Defendant in the hospital. Defendant objected to the introduction of Defendant\u2019s statement to Trooper Jones on the grounds that the statement contained inadmissible hearsay. The trial court excused the jury, heard the parties\u2019 arguments, and overruled Defendant\u2019s objection. The jury returned and Trooper Jones resumed his testimony. Shortly thereafter, Trooper Jones recited Defendant\u2019s statement to the jury. Defendant did not renew his hearsay objection at that time.\nDefendant recognizes that under the North Carolina Rules of Appellate Procedure, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion].]\u201d N.C.R. App. P. 10(b)(1). Defendant admits that because he did not renew his objection when Trooper Jones actually read Defendant\u2019s statement at trial, he waived his right to appeal the trial court\u2019s hearsay ruling and, therefore, Defendant requests plain error review. Plain error review is not necessary, however, because we find that Defendant did not waive his right to appeal the trial court\u2019s hearsay ruling under N.C.R. App. P. 10(b)(1). Our courts previously have held that \u201ca motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.\u201d State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). However, unlike with a pretrial motion in limine, Defendant here raised his hearsay objection while Trooper Jones was testifying, moments before Defendant expected Trooper Jones to deliver an allegedly inadmissible statement to the jury. The trial court excused the jury and engaged in a lengthy discussion with the parties. The trial court overruled Defendant\u2019s objection, the jury returned, and. the trial resumed. Trooper Jones read Defendant\u2019s statement to the jury within minutes of Defendant\u2019s objection and the trial court\u2019s ruling. Under these circumstances, N.C.R. App. P. 10(b)(1) did not require Defendant to renew his objection when Trooper Jones, resumed his testimony. Defendant\u2019s prior objection was sufficiently contemporaneous with the challenged testimony to be considered \u201ctimely\u201d for purposes of the appellate rules. The State does not suggest otherwise.\nWith Defendant\u2019s right to appeal the trial court\u2019s hearsay ruling properly preserved, we consider the merits of Defendant\u2019s claim. Under N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2005), hearsay is defined as \u201ca 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.\u201d Defendant concedes that the portion of the statement containing Defendant\u2019s own words: \u201c[Defendant] told [Ms. Commissiong] [he] wasn\u2019t going to go to jail tonight,\u201d was admissible as a statement of a party-opponent under N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d)(A) (2005). However, Defendant argues the trial court erred by admitting, over his objection, the portion of Defendant\u2019s statement describing how Ms. Commissiong \u201ctold [Defendant] to stop\u201d the car, due to its double-hearsay nature. See N.C. Gen. Stat. \u00a7 8C-1, Rule 805 (2005) (\u201cHearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule[.]\u201d). The trial court concluded that this portion of Defendant\u2019s statement was not hearsay under Rule 801(c) because it was not offered for its truth. We review the trial court\u2019s determination de novo. See State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999) (reviewing de novo trial court\u2019s determination that out-of-court statement was admissible for limited purpose of explaining the reaction of the person to whom the statement was made).\nThe State contends that Defendant\u2019s statement was offered not for its truth \u2014 that Ms. Commissiong wanted Defendant to stop the car \u2014 but rather, to prove that Defendant acted with malice, a requisite element of second-degree murder. Defendant\u2019s continued high-speed flight in response to Ms. Commissiong\u2019s request, the State contends, demonstrates that Defendant acted \u201cso recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.\u201d State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (defining \u201cmalice\u201d as used in homicide law). Defendant rejects this contention and asserts that Ms. Commissiong\u2019s words as contained in Defendant\u2019s statement to Trooper Jones were introduced for their truth. However, Defendant offers no explanation for why the State would introduce his statement for such a purpose, as opposed to the purpose of demonstrating malice. Ms. Commissiong\u2019s own wishes regarding Defendant\u2019s conduct were irrelevant to the State\u2019s case; rather, it was Defendant\u2019s reaction to Ms. Commissiong\u2019s request that presented an issue at trial. We conclude that Defendant\u2019s statement was proper non-hearsay evidence introduced for the limited purpose of demonstrating malice, and we affirm the trial court\u2019s overruling of Defendant\u2019s hearsay objection. See State v. Chapman, 359 N.C. 328, 355, 611 S.E.2d 794, 816 (2005) (out-of-court statement admissible \u201cto explain [the] defendant\u2019s subsequent conduct\u201d); Thomas, 350 N.C. at 339, 514 S.E.2d at 501 (out-of-court statement admissible \u201cfor the limited purpose of explaining why [witness] reacted... as he did and his subsequent conduct\u201d).\nII.\nDefendant next asserts that he was denied effective assistance of counsel at trial, in violation of his federal and state constitutional rights. Defendant bases this claim on his attorney\u2019s failure to make a timely objection to Trooper Jones\u2019 testimony as discussed above. To establish a claim for ineffective assistance of counsel under either the United States Constitution or the North Carolina Constitution, Defendant must first demonstrate that \u201ccounsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the [Djefendant by the Sixth Amendment.\u201d Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh\u2019g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). See State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (adopting Strickland test). As discussed above in Part I, we find that Defendant\u2019s attorney did interpose a timely objection adequate to preserve the contested hearsay issue for appellate review under N.C.R. App. P. 10(b)(1). Therefore, with no error made by Defendant\u2019s counsel, Defendant\u2019s claim must fail.\nIII.\nDefendant next assigns error to the trial court\u2019s sustaining of the State\u2019s objection to certain testimony offered by one of Defendant\u2019s expert witnesses. Defendant\u2019s witness, John Flanagan (Mr. Flanagan), was tendered as an expert in speed analysis and accident reconstruction. During direct examination, defense counsel asked Mr. Flanagan for his determination of the speed of Defendant\u2019s vehicle when it struck the tree. The State objected to this question based on the rule set out in Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351 (1960):\n[O]ne who does not see a vehicle in motion is not permitted to give an opinion as to its speed. A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require.\nId. at 180, 116 S.E.2d at 355. The trial court sustained the State\u2019s objection.\nDefendant argues that application of the Shaw rule in the present case is manifestly unfair, in that the speed of Defendant\u2019s vehicle was a central issue on the question of malice, and Defendant was prohibited from introducing beneficial evidence on this question. Defendant asks that this Court reconsider the rule set out in Shaw. It is clear, however, that this Court may not overrule a decision of the North Carolina Supreme Court. Defendant\u2019s assignment of error is overruled.\nIV.\nDefendant next assigns as error the trial court\u2019s instructions to the jury regarding \u201cother crimes\u201d evidence received pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b). At trial, the State introduced evidence of Defendant\u2019s 2003 conviction for felony speeding to elude arrest. Under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2005), such evidence \u201cis not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u201d The trial court instructed the jury, stating:\nEvidence has been received in this case tending to show that the defendant committed the felony of speeding to elude arrest on November 19, 2002. This evidence was received solely for the purpose of showing that the defendant acted with malice when he operated a motor vehicle [in the current case]. If you believe this evidence, you may consider it but only for the limited purpose for which it was received. This evidence may not be considered by you to prove the character of the defendant but to show that the defendant acted in conformity therewith, (emphasis added).\nThe State concedes that the trial court misstated the law in this jury instruction.\nDefendant did not object to this instruction at trial, and therefore he did not properly preserve this issue for appellate review under N.C.R. App. P. 10(b)(2). Defendant therefore asks our Court to review the jury instruction for plain error. Plain error exists if,\n\u201cafter reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019... or where it can be fairly said \u2018the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u2019 \u201d\nState 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) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nConsidered in the context of the entire jury instruction, it is clear that the trial court\u2019s misstatement of the law was an unintentional slip of the tongue. The trial court apparently intended to mirror the language of Rule 404(b), but used the incorrect phrase \u201cbut to show,\u201d rather than the correct phrase \u201cin order to show.\u201d The North Carolina Supreme Court has held that \u201ca lapsus linguae not called to the attention of the trial court when made will not constitute prejudicial error when it is apparent from a contextual reading of the charge that the jury could not have been misled by the instruction.\u201d State v. Baker, 338 N.C. 526, 565, 451 S.E.2d 574, 597 (1994). Here, the trial court correctly instructed the jury that the Rule 404(b) evidence \u201cwas received solely for the purpose of showing that the defendant acted with malice\u201d (emphasis added). Therefore, in light of the trial court\u2019s previous instruction regarding the only proper use of the evidence, the trial court\u2019s subsequent misstatement concerning the purposes for which the jury may have considered the evidence was immaterial. When taken as a whole, the jury could not have been misled by the trial court\u2019s charge. See State v. Davis, 349 N.C. 1, 34-35, 506 S.E.2d 455, 473 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999) (finding no plain error where the trial court correctly instructed the jury on the required mens rea for first-degree murder, but also used the improper phrase \u201clack of diminished capacity\u201d as opposed to the proper phrase \u201clack of mental capacity\u201d when instructing the jury regarding the defendant\u2019s defense); Baker, 338 N.C. at 564-65, 451 S.E.2d at 597 (finding no prejudicial error where, \u201c[a]fter correctly instructing on the State\u2019s burden of proving each element of [first-degree kidnapping] beyond a reasonable doubt, the trial court concluded as follows: \u2018However, if you do not so find, or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of guilty.\u2019 \u201d). We find that the trial court\u2019s lapsus linguae did not amount to plain error.\nV.\nLastly, Defendant assigns as error the trial court\u2019s instructions to the jury on the charge of felony operation of a motor vehicle to elude arrest. Defendant contends that the trial court\u2019s instruction did not require a unanimous verdict for conviction, in violation of N.C. Const, art. I, \u00a7 24 (\u201cNo person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d). Defendant did not raise an objection to the jury instructions at trial, but asks this Court to review the jury charge for plain error.\nNorth Carolina law prohibits \u201coperation of] a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties.\u201d N.C. Gen. Stat. \u00a7 20-141.5(a) (2005). Violation of this section is a Class 1 misdemeanor. Id. However, if a jury finds two or more aggravating factors present, violation of the section is considered a Class H felony. N.C. Gen. Stat. \u00a7 20-141.5(b) (2005). The statute lists eight possible aggravating factors, including: \u201c[s]peeding in excess of 15 miles per hour over the legal speed limit,\u201d \u201c[r]eckless driving,\u201d \u201c[negligent driving leading to an accident causing . . . [p]ersonal injury,\u201d and \u201c[d]riving when the person\u2019s drivers license is revoked.\u201d N.C.G.S. \u00a7 20-141.5(b)(1), (3)-(5). The trial court charged the jury as follows:\n[I]f you find from the evidence beyond a reasonable doubt that . . . the defendant operated a motor vehicle, on a highway, while attempting to elude ... a highway patrolman, who was in the lawful performance of his duties, and the defendant knew or had reasonable grounds to know that [Trooper Jones] was a highway patrolman, and that two or more of the following factors were present: (1) Speeding in excess of 15 miles per hour over the legal speed limit, (2) Reckless driving, (3) Negligent driving leading to an accident causing death, (4) Driving while his driver\u2019s license is revoked, it would be your duty to return a verdict of guilty of felony operation of a motor vehicle to elude arrest, (emphasis added).\nDefendant asserts that this instruction did not require the jury to reach a unanimous agreement regarding which aggravating factors were present. Each juror found at least two aggravating factors, but it is not certain whether the jurors were unanimous as to at least two of the same factors.\nIn State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986), the trial court instructed the jury to return a guilty verdict if it found that the defendant \u201cknowingly possessed or knowingly transported marijuana.\u201d Id. at 553, 346 S.E.2d at 494. Noting that \u201c[s]ubmission of an issue to the jury in the disjunctive is reversible error if it renders the issue ambiguous and thereby prevents the jury from reaching a unanimous verdict,\u201d id., our Supreme Court held that the jury instruction was fatally defective because it allowed the jury to convict the defendant of either of two separate crimes, possessing marijuana or transporting marijuana, without reaching a unanimous decision as to which crime the defendant actually committed. Id. at 554, 346 S.E.2d at 494.\nHowever, our Courts draw an important distinction between Diaz and cases in which the trial court\u2019s disjunctive instruction does not implicate two separate offenses:\n[A] disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. . . . [However,] if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\nState v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991). The question of whether the trial court\u2019s instruction in the case before us falls into either the former or latter category has already been conclusively answered by this Court. In State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000), the defendant raised an identical argument with regard to N.C.G.S. \u00a7 20-141.5. Finding no error with the trial court\u2019s disjunctive jury instruction, we held that while \u201cmany of the enumerated aggravating factors are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses as in Diaz, but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a Class H felony.\u201d Id. at 309, 540 S.E.2d at 439. We are bound by our prior holding in Funchess, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and we find no error with the trial court\u2019s instruction to the jury. See also State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990) (distinguishing Diaz and finding no prejudicial error where trial court instructed jury on the various types of inappropriate sexual conduct that could constitute an \u201cindecent liberty\u201d for purposes of the offense of taking indecent liberties with a minor).\nNo error.\nJudges STEPHENS and SMITH concur.\n. The General Assembly recently enacted N.C. Gen. Stat. \u00a7 8C-1, Rule 702(i) (Int. Supp. 2006), which overrules Shaw and allows \u201c[a] witness qualified as an expert in accident reconstruction . . . [to] give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving.\u201d Id. This new evidentiary rule only applies to offenses committed on or after Decem", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper by Special Counsel Isaac T. Avery, III, for the State.", "Sue Genrich Berry for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANDERSON SHELDON HAZELWOOD\nNo. COA06-1667\n(Filed 6 November 2007)\n1. Appeal and Error\u2014 preservation of issues \u2014 plain error analysis unnecessary\nThe trial court did not err in a double second-degree murder and felony operation of a motor vehicle to elude arrest case by concluding plain error review was not necessary for evidence introduced by the State about an officer\u2019s testimony regarding his visits to defendant at the hospital, because: (1) defendant did not waive his right to appeal the ruling under N.C. R. App. P. 10(b)(1) when, unlike with a pretrial motion in limine, defendant raised his hearsay objection while the officer was testifying moments before defendant expected the officer to deliver an allegedly inadmissible statement to the jury; (2) the officer read defendant\u2019s statement to the jury within minutes of defendant\u2019s objection and the trial court\u2019s ruling; and (3) defendant\u2019s prior objection was sufficiently contemporaneous with the challenged testimony to be considered timely for purposes of the appellate rules.\n2. Evidence\u2014 hearsay \u2014 not offered for truth of matter asserted \u2014 demonstration of malice\nThe trial court did not err in a double second-degree murder and felony operation of a motor vehicle to elude arrest case by overruling defendant\u2019s hearsay objection to evidence introduced by the State regarding an officer\u2019s testimony about defendant\u2019s statement describing how his passenger told him to stop the car during a high-speed chase after defendant fled a traffic stop, because: (1) although defendant contends the statement was offered for the truth of the matter asserted, he offered no explanation for why the State would introduce his statement for such a purpose; and (2) defendant\u2019s statement was proper nonhearsay evidence introduced for the limited purpose of demonstrating malice.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 allegation of failure to make objection\nDefendant was not. denied effective assistance of counsel in a double second-degree murder and felony operation of a motor vehicle to elude arrest case based on his attorney\u2019s alleged failure to make a timely objection to an officer\u2019s testimony that defendant contended was double hearsay, because: (1) defendant\u2019s attorney did interpose a timely objection adequate to preserve the contested hearsay issue for appellate review under N.C. R. App. P. 10(b)(1); and (2) there was no error made by defense counsel.\n4. Evidence\u2014 expert testimony \u2014 exclusion\u2014speed of vehicle\nThe trial court did not err in a double second-degree murder and felony operation of a motor vehicle to elude arrest case by sustaining the State\u2019s objection to certain testimony offered by one of defendant\u2019s expert witnesses concerning the speed of defendant\u2019s vehicle when it struck a tree, because: (1) defendant was prohibited from introducing opinion testimony by a witness who did not see defendant\u2019s car in motion based on the holding in Shaw v. Sylvester, 253 N.C. 176 (1960); and (2) although defendant asks the Court of Appeals to reconsider the rule set out in Shaw, the Court cannot overrule a decision of our Supreme Court.\n5. Evidence\u2014 prior crimes or bad acts \u2014 erroneous instruction \u2014 lapsus linguae\nThe trial court did not commit plain error in a double second-degree murder and felony operation of a motor vehicle to elude arrest case by its instructions to the jury that evidence of other crimes received under N.C.G.S. \u00a7 8C-1, Rule 404(b), including defendant\u2019s 2003 conviction for felony speeding to elude arrest, may not be considered to prove the character of the defendant \u201cbut to show that defendant acted is conformity therewith\u201d because: (1) considered in the context of the entire jury instruction, the trial court\u2019s misstatement of the law was an unintentional slip of the tongue; (2) a lapsus linguae not called to the attention of the trial court when made will not constitute prejudicial error when it is apparent from a contextual reading of the charge that the jury could not have been misled by the instruction; and (3) in light of the trial court\u2019s previous instruction regarding the only proper use of the evidence, the trial court\u2019s subsequent misstatement concerning the purposes for which the jury may have considered the evidence was immaterial.\n6. Sentencing\u2014 aggravating factors \u2014 felony operation of a motor vehicle to elude arrest \u2014 unanimous verdict\nThe trial court did not commit plain error by its instruction to the jury on the charge of felony operation of a motor vehicle to elude arrest even though defendant contends it did not require a unanimous verdict regarding which aggravating factors were present because, while many of the enumerated aggravating factors are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses, but merely alternative ways of enhancing the punishment for the crime from a misdemeanor to a Class H felony.\nAppeal by Defendant from judgments entered 2 March 2006 by Judge Henry W. Hight, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 29 August 2007.\nAttorney General Roy Cooper by Special Counsel Isaac T. Avery, III, for the State.\nSue Genrich Berry for Defendant." }, "file_name": "0094-01", "first_page_order": 124, "last_page_order": 134 }