216 N.C. App. 337
N.C. Ct. App.2011Background
- Ross was convicted of two counts of attempted first-degree murder, two counts of AWDWIKISI, one count of attempted robbery with a dangerous weapon, and one count of assault on a female; the State joined offenses and the jury also considered three aggravating factors not in an indictment; the conviction involved the 2007 shooting of Amaro and Besies and related Aldridge homicide evidence; Besies was unavailable at trial and testified at a prior probable cause hearing; police read Besies’ statements to corroborate that testimony; the court later remanded for resentencing due to aggravators not charged in the indictment.
- The shooting occurred at Amaro and Besies’ mobile home on February 2, 2007, after Ross arrived with a gun and a bag, shot Amaro and Besies, and Amaro subdued Ross while Besies alerted police; a silencer was involved and later evidence tied Ross to other crimes including drug activity and the Aldridge homicide.
- Evidence included a Ruger rifle with a homemade silencer, a Mossberg shotgun Ross had sold to Amaro, and items from Ross’s duffle bag; Amaro and Besies were treated for gunshot injuries; Besies testified at a probable cause hearing; Ross claimed the gun discharged accidentally during a drug-debt collection.
- Ross disputed joinder and severance of Aldridge charges from Amaro/Besies charges; joinder order remained valid and there was no substantial change in circumstances to warrant severance.
- Three aggravating factors were found by the court for the Amaro/Besies offenses, all not included in any indictment or charging instrument; the court sentenced Ross to aggravated-range terms, but the Supreme Court remanded for resentencing due to the unindicted aggravators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause—admission of probable cause testimony | Ross argues the Besies probable cause testimony was testimonial and inadmissible. | Ross contends lack of proper cross-examination at probable cause hearing due to pending joinder. | No Crawford violation; adequate opportunity to cross-examine; testimony admissible. |
| Confrontation Clause—statements to law enforcement for corroboration | Statements to officers were admitted to corroborate probable cause testimony. | Statements contained extra facts beyond prior testimony and could prejudice Ross. | Corroborative statements admissible; not admissible for truth, but admissible for corroboration. |
| Severance/joinder of Aldridge charges vs. Amaro/Besies charges | State sought joinder to consolidate offenses. | Ross sought severance to avoid prejudice from multiple victims. | Joinder upheld; no substantial change in circumstances to warrant severance. |
| Sufficiency of evidence for attempted first-degree murder and AWDWIKISI | State presented premeditation and intent to kill, supporting charges. | Ross contends no evidence of specific intent or premeditation. | Evidence sufficient to support premeditation/deliberation and intent to kill; no dismissal error. |
| Unindicted aggravating factors—statutory requirement | Aggravating factors supported by § 15A-1340.16(d)(20) should be valid. | Factors were not included in indictment and thus improper to submit. | Error to submit unindicted aggravators; remand for resentencing. |
Key Cases Cited
- State v. Locklear, 363 N.C. 438 (2009) (Confrontation Clause; cross-examination adequacy; unavailable witness)
- State v. Lewis, 360 N.C. 1 (2005) (Preliminary hearing testimony; opportunity to cross-examine; Crawford)
- State v. Williamson, 333 N.C. 128 (1992) (Prior consistent statements admissible if substantially similar to in-court testimony)
- State v. Ramey, 318 N.C. 457 (1986) (Prior statements admissible for corroboration; additional facts allowed)
- State v. Hedgepeth, 330 N.C. 38 (1991) (Definition of serious injury; jury decides seriousness)
- State v. Clark, 165 N.C.App. 279 (2004) (Adequacy of cross-examination; admissibility of testimony)