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State v. Golphin8/25/2000
t, he has failed to preserve these assignments of error for appellate review. In addition, this Court will not review Tilmon's constitutional arguments because he did not provide the trial court with an opportunity to rule on any constitutional issue related to this cross-examination. See Nobles, 350 N.C. at 495, 515 S.E.2d at 893. Moreover, although Tilmon assigns plain error in the alternative, he did not "specifically and distinctly" argue plain error. See N.C. R. App. P. 10(c)(4). Therefore, these assignments of error are overruled.
In two assignments of error, Kevin argues the trial court erred by allowing the State to cross-examine one of Tilmon's expert witnesses with a report prepared by another expert witness and by allowing the report into evidence. Specifically, Kevin contends his constitutional right to confront the witnesses against him was violated by the introduction of this report, and the report contains incriminating hearsay statements that are highly prejudicial to his case. We disagree.
Dr. James Johnson, an expert on African-American males and the sociological impact of societal forces, testified on behalf of Tilmon and was cross-examined by the State. Kevin was given an opportunity to cross-examine Dr. Johnson but chose not to do so. Later, following Dr. Johnson's testimony, the trial court ruled that a preliminary draft of a report completed by Dr. Johnson was discoverable by the State. Kevin received a copy of the report after the trial court's ruling. Subsequently, the State then cross-examined Dr. Warren about the report and introduced it into evidence following Dr. Warren's testimony.
Kevin first argues the report itself was hearsay and was improperly introduced after Dr. Warren's testimony. Therefore, it should not have been allowed into evidence. The Rules of Evidence do not apply in sentencing hearings. See Daughtry, 340 N.C. at 517, 459 S.E.2d at 762. "Any evidence the court `deems relevant to sentence' may be introduced at [the sentencing proceeding]." Id. (quoting N.C.G.S. § 15A-2000(a)(3)). Hearsay evidence can be admitted if the trial court concludes it is relevant to the defendant's sentencing, and it does not violate a defendant's constitutional right to confront witnesses against him. See State v. McLaughlin, 341 N.C. 426, 458-59, 462 S.E.2d 1, 19 (1995), cert. denied, 516 U.S. 1133, 133 L. Ed. 2d 879 (1996).
Kevin contends he was denied his right to confront Dr. Johnson because he was not given an opportunity to cross-examine Dr. Johnson regarding the substance of the report. While it is true that Kevin did not obtain a copy of the report until after Dr. Johnson had been excused as a witness, Kevin was aware of the report's existence prior to the conclusion of Dr. Johnson's testimony. The State cross-examined Dr. Johnson regarding the existence of the report. Only one question was asked regarding its substance, but a plain and unambiguous reference was made which clearly revealed its existence. After cross-examination by the State and redirect examination by Tilmon's counsel, the court gave Kevin a second opportunity to question Dr. Johnson, following the line of questioning by the State which revealed the report's existence. Kevin responded to the court that he had no questions for Dr. Johnson. Kevin cannot now claim his decision not to cross-examine Dr. Johnson was influenced by a lack of time for adequate preparation because he could have requested a continuance. See State v. Branch, 306 N.C. 101, 104-05, 291 S.E.2d 653, 656 (1982) (holding a motion to continue which raises constitutional issues, including the right to confront witnesses, has no fixed time limits, and there is a case-by-case determination as to what constitutes a
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