State v. Davis12/21/2000
ated Canon 3A(4) of the Code of Judicial Conduct, which in pertinent part provides: "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." Code of Judicial Conduct Canon 3A(4), 2000 Ann. R. N.C. 276. Having already determined that the trial court's actions were authorized by law, we find no merit in defendant's argument.
In his second argument, defendant contends that the trial court erroneously admitted evidence of defendant's bad character during the State's case-in-chief. Defendant argues that the admitted evidence was irrelevant and inadmissible and that it violated his constitutional right to a fundamentally fair capital sentencing proceeding.
The rules of evidence do not apply in sentencing proceedings, N.C.G.S. § 8C-1, Rule 1101(b)(3) (1999), although they may be used as a guideline to reliability and relevance, State v. Greene, 351 N.C. 562, 568, 528 S.E.2d 575, 579, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 2000 WL 1629376 (Dec. 4, 2000) (No. 00-6684). This Court has said that in a capital sentencing proceeding, "the prosecution must be permitted to present any competent, relevant evidence relating to the defendant's character or record which will substantially support the imposition of the death penalty so as to avoid an arbitrary or erratic imposition of the death penalty." State v. Brown, 315 N.C. 40, 61, 337 S.E.2d 808, 824 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).
We hold that the trial court did not err in allowing the admission of testimony regarding defendant's temperament, a fight defendant had with his girlfriend at work, an alleged statement by defendant that he smoked marijuana, and a high school homework assignment that showed defendant's knowledge of drugs, as the testimony was competent, relevant evidence of defendant's character and did not violate his right to a fundamentally fair capital sentencing proceeding.
In his third argument, defendant contends that the trial court erred by admitting a child's hearsay statement into evidence.
Officer Connie Searcy testified that Officer Michele Daugherty told her that Damion, a foster child in the victim's home, told Officer Daugherty that the person who shot the victims "pointed a gun at me, the man did. . . . Looked like a monster. He might kill somebody else." The State cross-examined three other witnesses regarding whether defendant pointed a gun at the foster child. Defendant contends that this evidence and questioning violated settled rules of evidence as well as the United States and North Carolina Constitutions and that the violation constituted plain error.
A defendant waives any possible objection to testimony by failing to object to this testimony when it is first admitted. See State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (reference to the defendant's home as "Fort Apache" was not error when no objection was made to an earlier identical reference).
In the present case, defendant failed to object when the State questioned Officer Searcy regarding the gun-pointing incident. By failing to object to this testimony when it was first admitted, defendant waived any possible objection to its admission. Moreover, defendant failed to make an objection at trial on constitutional grounds. This failure to preserve the issue resulted in waiver. N.C. R. App. P. 10(b)(1); State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d
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