80 N.C. App. 465 | N.C. Ct. App. | 1986
Lead Opinion
I
In his sole assignment of error relating to the trial, defendant Samuel contends that his constitutional rights were violated when a law enforcement officer, Detective Franklin Lovette, was permitted to testify that Samuel declined to talk with him until he had conferred with an attorney. Detective Lovette testified that he had attempted to interview Samuel while Samuel was in the hospital in Dillon, S. C. The following colloquy occurred between the prosecutor and Detective Lovette:
Q. All right. Did you have any conversation with him there?
A. After getting approval of the attending physician in charge of intensive care, I went to interview Mr. Samuel for the purpose of trying to find out exactly what happened on the date of November the 14th, or the early morning hours of November 14th.
After being advised of his rights, verbally, to that fact that he had the right to remain silent and have an attorney present, Mr. Samuel stated that he had better wait until he talked to a lawyer.
Mr. REGAN: Objection. Move to strike.
THE Court-. Overruled.
The erroneous admission of this testimony does not, however, entitle defendant Samuel to a new trial.
Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, not requiring the automatic reversal of a conviction, where the appellate court can declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. [Citation omitted.]
State v. Taylor, 280 N.C. 273, 280, 185 S.E. 2d 677, 682 (1972). Upon the evidence presented in this case, we see no reasonable possibility that the testimony complained of might have contributed to defendant Samuel’s conviction. Samuel was seen in the company of Sowell earlier the same night by a Dillon, S. C. police officer. Both defendants were unequivocally identified by Elbert Owens and by the victim. Shortly after Mr. Sisk exchanged shots with his assailants, Samuel appeared at the home of an acquaintance seeking assistance in obtaining medical treatment for a gunshot wound. In the face of such overwhelming evidence of guilt, it is clear beyond any reasonable doubt that the erroneous admission of the evidence that Samuel had invoked his right to counsel was harmless error.
II
Defendant Sowell contends that the trial court impermissibly expressed an opinion as to the evidence by stating, in supplemental instructions to the jury, that Mr. Sisk had received two gunshot wounds. The record reveals that when the court summarized
The COURT: Ladies and Gentlemen, it was called to my attention that my recollection was not correct with respect to the testimony of the State’s witness, Charles Sisk.
The others recollection of the testimony is that he was shot twice; once in the face and once in the top of the head.
I mention to you that my reference to the evidence was for illustrative purposes and not to be considered by you in substitution to the evidence, but since the others recalled my recollection being different from theirs, I thought it necessary to call you back and remind you that in that particular and in all others if my recollection does not accord with yours, then, of course, you disregard mine entirely and rely exclusively—not on their recollection or mine, but on your own recollection of what the evidence is.
After the jury had again retired, counsel for defendant Sowell objected to the additional instruction “as a statement of opinion.”
G.S. 15A-1232 prohibits the judge from expressing, in the instructions to the jury, any opinion as to whether a fact has been proved. We find no violation of the statute in this case. The court merely advised the jurors that the recollection of others differed from his own recollection of the evidence and that, in any event, the jurors should rely entirely on their own recollections of the evidence. This assignment of error is overruled.
Ill
Both defendants assign error to the sentencing proceeding. They contend that the trial court improperly found and considered, as a factor in aggravation of punishment, that “the offense involved damage causing great monetary loss.” We disagree.
The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband. [Emphasis added.]
Defendants first contend that the clear legislative intent of the factor was that it apply only to cases involving loss or damage to property. This issue has been resolved against defendants by the opinion rendered by another panel of this Court in State v. Bryant, 80 N.C. App. 63, 341 S.E. 2d 358 (1986) (but see dissenting opinion by Eagles, J.). For the reasons stated in Bryant, we reject this contention.
Secondly, defendants contend that the evidence of “great monetary loss,” i.e., the victim’s medical bills, was used by the State to prove that the victim had sustained a serious injury, a necessary element of the crime. We reject this contention as well. The State did not offer evidence of the amount of Mr. Sisk’s medical expense until the sentencing hearing. Thus, the amount of monetary loss occasioned by the defendant’s criminal acts was clearly not used by the State to prove any element of the offenses. Moreover, the uncontradicted evidence of the injuries suffered by Mr. Sisk and the residual disability resulting therefrom was clearly sufficient, standing alone, to prove the element of serious injury. The additional evidence of medical expense was not necessary to prove that or any other element of the offenses for which defendants were convicted. See State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983); State v. Bryant, supra.
Finally, defendants contend that the factor was not proven by a preponderance of the evidence. Mr. Sisk testified, without objection, that he had personally seen medical bills totalling from $30,000.00 to $40,000.00 and that he had been informed that the total costs of his medical treatment would be between $75,000.00 and $100,000.00. We find his uncontradicted testimony sufficient to support the trial court’s finding of great monetary loss.
The defendants received a fair trial free from prejudicial error.
Concurrence in Part
concurring in part and dissenting in part.
For the reasons stated in Judge Eagles’ dissent in State v. Bryant, 80 N.C. App. 63, 341 S.E. 2d 358 (1986), and because I believe the defendants in this case should benefit immediately from any possible favorable ruling by our Supreme Court in the Bryant case, I dissent from that portion of the majority opinion relating to the sentencing proceeding.
