{ "id": 12175955, "name": "STATE OF NORTH CAROLINA v. JAMES E. FOSTER", "name_abbreviation": "State v. Foster", "decision_date": "2014-10-07", "docket_number": "No. COA14-187", "first_page": "607", "last_page": "615", "citations": [ { "type": "official", "cite": "236 N.C. App. 607" } ], "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": "440 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "104", "parenthetical": "citations and quotations omitted" }, { "page": "104" } ], "opinion_index": 0 }, { "cite": "335 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528296 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "367", "parenthetical": "citations and quotations omitted" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0353-01" ] }, { "cite": "531 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "814", "parenthetical": "citation omitted" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "352 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684937 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "307", "parenthetical": "citation omitted" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0287-01" ] }, { "cite": "422 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "698" }, { "page": "697" } ], "opinion_index": 0 }, { "cite": "332 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504164 ], "year": 1992, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0487-01" ] }, { "cite": "420 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "440" }, { "page": "440" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "332 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506283 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0244-01" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "745", "parenthetical": "\"It is well settled that constitutional matters that are not 'raised and passed upon' at trial will not be reviewed for the first time on appeal.\"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "year": 2004, "pin_cites": [ { "page": "410", "parenthetical": "\"It is well settled that constitutional matters that are not 'raised and passed upon' at trial will not be reviewed for the first time on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] } ], "analysis": { "cardinality": 779, "char_count": 16735, "ocr_confidence": 0.691, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24719491368029564 }, "sha256": "05a19dc2e1382ba4003ab0e350a2c0c467adb08befbd487eb1fb5711c6390d78", "simhash": "1:dfead06a7e1d08db", "word_count": 2691 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge McGEE and Judge STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES E. FOSTER" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere our review is not frustrated, defendant cannot establish that he was prejudiced by the trial court\u2019s failure to reconstruct arguments made during unrecorded bench conferences. Accordingly, we find no prejudicial error in defendant\u2019s trial.\nOn 23 May 2011, a Mecklenburg County grand jury indicted defendant on two counts of assault with a deadly weapon with intent to kill inflicting serious injury and two counts of assault with a deadly weapon with intent to kill. A trial commenced on 5 August 2013, in Mecklenburg County Superior Court, the Honorable Anna Mills Wagoner, Judge presiding.\nEvidence at trial tended to show that at 2:36 a.m. on 8 May 2011, Charlotte-Mecklenburg Police Department received a 9-1-1 call from 1616 Lynford Drive. Upon arrival, the reporting police officer observed medical personnel outside the residence treating a young male in severe pain. Inside the residence, an adult female was also being attended to by medical personnel. The woman\u2019s name was Robin Lewis and the young man was her son, Quinton. While paramedics worked, Lewis stated to the officer that she had been shot by James Foster, defendant. Later that morning, the Charlotte-Mecklenburg Police Department received a 9-1-1 call from 5305 Lyrica Lane informing them that defendant wanted to turn himself in.\nLewis later testified at trial that she had been in a dating relationship with defendant and that the two had lived together for ten months. Lewis had four children\u2014a son, Quinton, another son, and two daughters\u2014 who also lived with Lewis and defendant. On the evening of 7 May 2011, Lewis and defendant had an argument that escalated until defendant struck Lewis in the face. Defendant left the home. When he returned, Lewis testified that defendant was intoxicated to the point he vomited on the floor and passed out. Lewis\u2014a licensed practical nurse\u2014became concerned when defendant began sweating profusely. Defendant was a diabetic, and there was a risk defendant could slip into a diabetic coma. Lewis applied ice to cool defendant\u2019s body temperature. Defendant remained unconscious for two and a half hours. When defendant awoke, everyone in the residence was awake.\nA. It seems like everything just broke loose. When he first woke up he jumped up saying where\u2019s his wallet, where\u2019s his keys, somebody took his money, can\u2019t find this. . . . [H]e started blaming me. . . . And I was, like, here\u2019s your stuff right here.\nQ. Where was it?\nA. Right there on my bed.\nAnd he continued to -1 started continuing the conversation about you have to leave.\nQ. And how did that go?\nA. He said he\u2019d leave and he started grabbing his things, grabbing those steri-lite totes out of the closet, taking them down the steps one by one....\nQ. How was -- what was his response about moving out? Did he become agitated or angry?\nA. He became angry.\nWhile defendant moved his things out, Lewis and her children gathered on the landing at the top of the stairs leading from the first to second floor. Defendant was at the bottom of the stairs. Lewis testified that at some point she saw that defendant had a gun. While she was trying to push her children back, she heard a lot of shots, and she felt two sharp pains. Defendant then left the residence, and one of Lewis\u2019 daughters called 9-1-1. A handgun was later found on the floor near where defendant had been standing. Quinton suffered from two gunshot wounds: one to his intestines and another to his leg. Lewis also suffered two gunshot wounds to her pelvic region.\nAt the close of the evidence, the jury found defendant guilty of two counts of assault with a deadly weapon with the intent to kill inflicting serious injury and two counts of assault with a deadly weapon. The trial court entered a consolidated judgment in accordance with the jury verdicts and sentenced defendant to an active term of 69 to 92 months. Defendant appeals.\nOn appeal, defendant argues the trial court committed prejudicial error when it conducted multiple off-the-record bench conferences. Specifically, defendant contends that the failure to record bench conferences amounts to a constitutional violation warranting a new trial. We disagree.\n\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2013).\nHere, defendant has couched his contention that the trial court failed to record bench conferences as a constitutional due process violation; however, defendant fails to provide any support for this contention. Moreover, the record does not reflect that defendant raised his constitutional argument before the trial court. See State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) (\u201cIt is well settled that constitutional matters that are not \u2018raised and passed upon\u2019 at trial will not be reviewed for the first time on appeal.\u201d). Yet despite this initial contention, we note that in his argument defendant cites as his primary authority our Supreme Court\u2019s opinion in State v. Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992).\nIn Pittman, the defendant moved for a complete recordation of all proceedings including bench conferences. The trial court held unrecorded bench conferences. On appeal, the defendant charged that the failure to record the bench conferences amounted to a constitutional violation. Our Supreme Court analyzed the issue against General Statutes, section 15A-1241. Notably, in the instant case, defendant does not provide any argument that a constitutional violation occurred at' trial; therefore, we review only for possible statutory violation.\nPursuant to General Statutes, section 15A-1241,\n[t]he trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:\n(1) Selection of the jury in noncapital cases;\n(2) Opening statements and final arguments of counsel to the jury; and\n(3) Arguments of counsel on questions of law.\nN.C. Gen. Stat. \u00a7 15A-1241(a) (2013). In State v. Cummings, our Supreme Court stated that it \u201c [did] not believe the enactment of this statute by the legislature in 1977 was intended to change the time-honored practice of off-the-record bench conferences between trial judges and attorneys.\u201d 332 N.C. 487, 498, 422 S.E.2d 692, 698 (1992). The phrase in subsection (a), \u201c \u2018statements from the bench[,]\u2019 does not include private bench conferences between trial judges and attorneys.\u201d Id. at 497, 422 S.E.2d at 697. \u201cIf, however, a party requests that the subject matter of a private bench conference be put on the record for appellate review, section 15A-1241(c) requires the trial judge to reconstruct the matter discussed as accurately as possible.\u201d State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (citation omitted); see also N.C. Gen. Stat. \u00a7 15A-1241(c) (\u201cWhen a party makes an objection to unrecorded statements or other conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible, the matter to which objection was made.\u201d).\nIn Pittman, the defendant made a pre-trial motion for complete recordation of all proceedings, specifically including bench conferences. See Pittman, 332 N. C. at 250, 420 S.E.2d at 440. Our Supreme Court held that \u201cthe trial court, having allowed defendant\u2019s motion for complete recordation, should have required recordation of all conferences and its failure to do so constituted error. We must now determine whether defendant was prejudiced by this error.\u201d Id. at 250, 420 S.E.2d at 440. After reviewing what occurred prior to and after the bench conferences, the Supreme Court determined that \u201c[b]ased on the record facts and defendant\u2019s failure to specifically allege how he was prejudiced by the lack of complete recordation, we hold that the trial court\u2019s failure to require complete recordation was harmless beyond a reasonable doubt.\u201d Id. at 252, 420 S.E.2d at 441.\nHere, defendant filed a pretrial motion \u201cto have the Court Reporter record all phases of the proceedings... including pre-trial hearings, voir dire, motions, opening statements, and closing arguments.\u201d The trial court granted the motion from the bench prior to the commencement of the jury selection.\n[Prosecutor]: Your Honor, I believe [defense counsel] also has a motion for complete recordation. Obviously we\u2019re not opposed to that.\nTHE COURT: I\u2019ll allow the motion. That\u2019s for jury selection and everything; is that right?\n[Defense counsel]: Yes, Your Honor....\nTHE COURT: . . . [T]he Court will allow the motion for complete recordation without objection.\nOn appeal, defendant lists seventeen instances in which the trial court conducted unrecorded bench conferences and states that each unrecorded conference was a violation of the trial court\u2019s order. However, defendant specifically challenges only two unrecorded bench conferences. Therefore, we focus only on the two bench conferences defendant discusses to determine whether defendant suffered prejudice from the trial court\u2019s failure to record or reconstruct them.\nIn his first challenge, defendant contends he was prejudiced by the lack of any memoriaiization of the arguments made at a bench conference during the testimony of Detective Bryan Crum. Detective Crum\u2014assigned to the Violent Crimes Division, homicide, of the Charlotte-Mecklenburg Police Department\u2014met victim Robin Lewis at Carolinas Medical Center the morning she was shot. Dining the State\u2019s examination of Detective Crum, the following exchange occurred:\nQ. Did you make contact with Robin Lewis at the hospital?\nA. I did. She was in one of the bays in the emergency department. After she was initially taken care of or settled down with the medical staff, I went to speak with her.\nQ. And what did she tell you?\nA. She told me that basically that something had happened earlier in the night, that a person that she lived with - and I took a statement from her, - said that someone had come home and -\n[Defense counsel]: Objection, Your Honor, asked to be heard.\nTHE COURT: Sustained.\n[Prosecutor]: Your Honor, may we approach?\n[Defense counsel]: Your Honor, I would ask to be heard on the record since we have -\nTHE COURT: Just come up here now and afterward we\u2019ll do that.\n(WHEREUPON, the Court, [both prosecutors], and [defense counsel] conferred off the record. Afterward, the State\u2019s examination continued.)\nQ. Did you have a chance to observe Robin Lewis physically, what she looked like once you spoke with her?\nA. I did.\nQ. And what if anything did you notice \"with regards to any injury?\nHere, the trial court\u2019s failure to reconstruct the substance of the bench conference for the record was a violation of section 15A-1241(c). See N.C.G.S. \u00a7 15A-1241(c) (\u201cWhen a party makes an objection to unrecorded statements or other conduct in the presence of the jury, upon motion of either party the judge must reconstruct for the record, as accurately as possible, the matter to which objection was made.\u201d); see also Blakeney, 352 N.C. at 307, 531 S.E.2d at 814.\nHowever, on this record as otherwise recorded, we discern no prejudice in the trial court\u2019s failure to reconstruct the substance of the bench conference for the record. The transcript reflects that the trial court sustained defendant\u2019s objection to the prosecutor\u2019s line of questioning. Following the bench conference, the trial court did not amend its ruling and defendant\u2019s objection remained sustained. When the prosecutor\u2019s examination resumed, Detective Crum was questioned regarding his personal observations of the victim Robin Lewis rather than her statements to him. From this context, it appears defendant\u2019s objection was made on hearsay grounds, and there is no indication that the parties at the bench conference discussed any matter other than the hearsay nature of the prosecutor\u2019s examination. Therefore, defendant\u2019s argument that appellate review was frustrated by the lack of recordation or reconstruction is without merit.\nDefendant also asserts that he was prejudiced by the lack of recordation during a bench conference held during defendant\u2019s cross-examination of Robin Lewis.\nQ. Well, your blood alcohol level was high, wasn\u2019t it?\nA. I don\u2019t know.\nQ. Have you been allowed to see a copy of your medical report?\nA. No, ma\u2019am.\nQ. If I showed you a copy of your medical report would it help refresh your recollection about what your level of intoxication was?\nA. You can show it to me, but I know what my level of intoxication is. I was not intoxicated.\n[Prosecutor]: Your Honor, I would ask to be heard.\nTHE COURT: Ail right, come up here.\n(WHEREUPON, the Court, [both prosecutors, and defense counsel] conferred off the record.)\nTHE COURT: I\u2019ll sustain your objection. Rephrase your question.\nQ. Ms. Lewis, I\u2019m going to ask you in terms of how much you had to drink that night, you\u2019re aware that the hospital took your blood; correct?\nA. Yes, ma\u2019am.\nDefendant contends that the substance of the bench conference cannot be ascertained from the context of the examination and as such, appellate review is frustrated to his prejudice. Again, we disagree.\nDefendant attempted to present Lewis with her medical report from the hospital prepared on the night of her shooting. Specifically, defendant asked, \u201cIf I showed you a copy of your medical report would it help refresh your recollection about what your level of intoxication was?\u201d Lewis responded, \u201cI know what my level of intoxication [was].\u201d The prosecutor then asked to be heard, and during the bench conference, apparently, lodged an objection. While the exact content of the conference is unclear, it is quite apparent that the document defendant wished the witness to examine was not needed to refresh her recollection and, therefore, would not be proper cross-examination material. See N.C. Gen. Stat. \u00a7 8C-1, Rule 803(5) (2013) (\u201cRecorded Recollection\u201d). A recorded recollection, as defined by our Rules of Evidence, is \u201c[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable [her] to testify fully and accurately[.]\u201d Id. \u00a7 8C-1, Rule 803(5).\nUnder present recollection refreshed, the witness\u2019 memory is refreshed or jogged through the employment of a writing, diagram, smell or even touch, and [she] testifies from [her] memory so refreshed. The evidence presented at trial comes from the witness\u2019 memory, not from the aid upon which the witness relies[.]\nState v. Ysut Mlo, 335 N.C. 353, 367, 440 S.E.2d 98, 104 (1994) (citations and quotations omitted).\nAfter the conference, the trial court sustained the objection on the record and had defendant re-phrase the question. Robin Lewis then testified unequivocally, \u201cI know what my level of intoxication [was]. I was not intoxicated.\u201d Lewis did not indicate that her memory was insufficient. Therefore, presentation of the medical report was not appropriate as either past recollection recorded or present recollection refreshed. See N.C.G.S. \u00a7 8C-1, Rule 803(5); Ysut Mlo, 335 N.C. at 367, 440 S.E.2d at 104. Given the context, our review of the trial court\u2019s ruling is not frustrated. We see no error in the trial court\u2019s ruling that sustained the prosecutor\u2019s objection to an improper question. Accordingly, defendant\u2019s arguments are overruled.\nNo prejudicial error.\nChief Judge McGEE and Judge STROUD concur.\n. A pseudonym has been used to protect the identity of the minor.\n. Of the remaining fifteen instances, five occurred during jury selection and ten during trial.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State.", "Jarvis John Edgerton, TV, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES E. FOSTER\nNo. COA14-187\nFiled 7 October 2014\nAppeal and Error\u2014preservation of issues\u2014failure to argue constitutional issue at trial\u2014unrecorded bench conferences\u2014 appellate review not frustrated\nThe trial court did not commit prejudicial error in an assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon case when it conducted multiple off-the-record bench conferences. The record did not reflect that defendant raised his constitutional argument before the trial court. Further, defendant\u2019s argument that appellate review was frustrated by the lack of recordation or reconstruction was without merit.\nAppeal by defendant from judgment entered 12 August 2013 by Judge Anna Mills Wagoner in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 August 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for the State.\nJarvis John Edgerton, TV, for defendant-appellant." }, "file_name": "0607-01", "first_page_order": 615, "last_page_order": 623 }