Criminal Practice – Attempted Murder – Constitutional – Confrontation Clause – Unavailable Witness – Probable Cause Hearing Testimony – Intent to Kill – Serious Injury – Sentencing – Aggravating Factors

Listen to this article

State v. Ross (Lawyers Weekly No. 11-07-1061, 26 pp.) (Martha A. Geer, J.) Appealed from Rowan County Superior Court. (Paul C. Ridgeway, J.) N.C. App. Click here for the full-text opinion.

Holding: At the probable cause hearing, defendant was represented by counsel (who was one of his trial counsel), he had the same motive to cross-examine victim Besies as at trial, and his counsel did in fact cross-examine Besies; therefore, defendant had an adequate opportunity to cross-examine Besies. Since Besies was unavailable to testify at trial, the trial court did not violate defendant’s right to confront the witnesses against him when the court admitted Besies’ testimony from the probable cause hearing into evidence.

No error in defendant’s convictions of two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, one count of attempted armed robbery, and one count of assault on a female. We reverse as to defendant’s sentence and remand for resentencing.

No N.C. appellate court has directly addressed the question of whether an opportunity to cross-examine a witness at a probable cause hearing is sufficient to meet the requirements of Crawford v. Washington, 541 U.S. 36 (2004). However, our Supreme Court explained in State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005),  judgment vacated on other grounds, 548 U.S. 924 (2006), that  “several types of preliminary hearings may afford an opportunity for witness testimony, such as the probable cause hearing provided for in N.C.G.S. § 15A-606 and 15A-61,… Statements by witnesses at … these hearings are likely to be testimonial under Crawford and, if so, are inadmissible at trial unless the defendant had an opportunity to cross-examine the witness and the witness is unavailable at the time of the trial.”

This language suggests that the opportunity to cross-examine a witness at a probable cause hearing will render the probable cause testimony admissible if the witness subsequently becomes unavailable.

The Confrontation Clause requires that the defendant have a meaningful opportunity to cross-examine the witness — defendant has cited no authority suggesting that he lacked a meaningful opportunity to cross-examine when only one of his two trial attorneys was at the prior hearing. Further, our courts have never held that discovery must be complete for a cross-examination opportunity to be adequate.

The trial court did not err in admitting Besies’ probable cause hearing testimony.

The trial court correctly denied defendant’s motion to dismiss the attempted murder charges.

Viewed in the light most favorable to the state, the evidence presented at trial showed that defendant went to the victims’ house because he had given victim Amaro $6,000 for cocaine and had not received either cocaine or his money back. Defendant started preparing the day before the shootings by coming up with a plan to gain entry to the house with his gun and by constructing a silencer so that the victims’ neighbors would not hear the gun when it went off.

The next day, when he carried out his plan, he shot Amaro in the back of his head and then walked into the bedroom and pointed a gun at victim Besies’ face. When the gun went off, it did not strike Besies in the face only because she pushed the gun aside.

This evidence is sufficient for the jury to find premeditation and deliberation. It showed defendant’s planning of the assault, including his prior intent to shoot, and his deliberate aiming of the gun at the victims’ heads, without provocation, suggesting an intent to kill.

The trial court also correctly denied defendant’s motion to dismiss the assault charges.

While defendant argues that Amaro did not sustain a serious injury because a doctor testified that Amaro did not suffer any pain and only received three stitches, we believe that a jury could reasonably find that having a bullet lodged in one’s brain represented a serious injury.

As for Besies, defendant argues only that her wound was not “potentially fatal.” However, defendant cites no authority suggesting that only potentially fatal injuries can be found serious, and we know of none.

At sentencing, the trial court submitted to the jury three aggravating factors that were not included in an indictment or “other charging instrument.” Instead, the state simply served defendant with notice of its intent to prove the existence of those factors. Under G.S. § 15A-1340.16(a4), the trial court could not submit the three aggravating factors to the jury. We must remand for re-sentencing.

Affirmed in part; reversed and remanded in part.