                                   NO. COA14-187

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 October 2014


STATE OF NORTH CAROLINA


    v.                                     Mecklenburg County
                                           Nos. 11 CRS 221675—78
JAMES E. FOSTER



    Appeal by defendant from judgment entered 12 August 2013 by

Judge Anna Mills Wagoner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 12 August 2014.


    Attorney General Roy Cooper, by Special                  Deputy   Attorney
    General Joseph E. Herrin, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.


    BRYANT, Judge.


    Where     our    review   is    not   frustrated,    defendant     cannot

establish that he was prejudiced by the trial court’s failure to

reconstruct arguments made during unrecorded bench conferences.

Accordingly, we find no prejudicial error in defendant’s trial.

    On 23 May 2011, a Mecklenburg County grand jury indicted

defendant on two counts of assault with a deadly weapon with

intent   to   kill   inflicting     serious   injury   and    two   counts   of

assault with a deadly weapon with intent to kill.                     A trial
                                            -2-
commenced      on    5   August     2013,     in    Mecklenburg      County     Superior

Court, the Honorable Anna Mills Wagoner, Judge presiding.

       Evidence at trial tended to show that at 2:36 a.m. on 8 May

2011, Charlotte-Mecklenburg Police Department received a 9-1-1

call    from    1616     Lynford    Drive.         Upon     arrival,    the    reporting

police officer observed medical personnel outside the residence

treating a young male in severe pain.                     Inside the residence, an

adult female was also being attended to by medical personnel.

The woman’s name was Robin Lewis and the young man was her son,

Quinton.1       While paramedics worked, Lewis stated to the officer

that she had been shot by James Foster, defendant.                            Later that

morning, the Charlotte-Mecklenburg Police Department received a

9-1-1 call from 5305 Lyrica Lane informing them that defendant

wanted to turn himself in.

       Lewis    later      testified    at    trial    that    she     had    been    in   a

dating relationship with defendant and that the two had lived

together       for   ten    months.         Lewis     had    four    children—a       son,

Quinton,    another        son,   and   two    daughters—who         also     lived   with

Lewis and defendant.              On the evening of 7 May 2011, Lewis and

defendant had an argument that escalated until defendant struck

Lewis in the face.           Defendant left the home.               When he returned,



1
    A pseudonym has been used to protect the identity of the minor.
                                      -3-
Lewis testified that defendant was intoxicated to the point he

vomited on the floor and passed out.           Lewis—a licensed practical

nurse—became concerned when defendant began sweating profusely.

Defendant was a diabetic, and there was a risk defendant could

slip   into    a   diabetic   coma.         Lewis   applied   ice   to   cool

defendant’s body temperature.           Defendant remained unconscious

for two and a half hours.      When defendant awoke, everyone in the

residence was awake.

          A.       It seems like everything just broke
                   loose. When he first woke up he jumped
                   up saying where's his wallet, where's
                   his keys, somebody took his money,
                   can't find this. . . . [H]e started
                   blaming me. . . . And I was, like,
                   here's your stuff right here.

          Q.       Where was it?

          A.       Right there on my bed.

                   . . .

                   And he continued to -- I started
                   continuing the conversation about you
                   have to leave.

          Q.       And how did that go?

          A.       He said he'd leave and he started
                   grabbing his things, grabbing those
                   steri-lite totes out of the closet,
                   taking them down the steps one by one.
                   . . .

          . . .
                                         -4-
               Q.   How was -- what was his response about
                    moving out? Did he become agitated or
                    angry?

               A.   He became angry.

While defendant moved his things out, Lewis and her children

gathered on the landing at the top of the stairs leading from

the first to second floor.             Defendant was at the bottom of the

stairs.        Lewis    testified      that    at    some    point     she    saw   that

defendant had a gun.         While she was trying to push her children

back, she heard a lot of shots, and she felt two sharp pains.

Defendant then left the residence, and one of Lewis’ daughters

called 9-1-1.       A handgun was later found on the floor near where

defendant had been standing.             Quinton suffered from two gunshot

wounds: one to his intestines and another to his leg.                               Lewis

also suffered two gunshot wounds to her pelvic region.

    At the close of the evidence, the jury found defendant

guilty of two counts of assault with a deadly weapon with the

intent    to    kill    inflicting     serious      injury       and   two    counts    of

assault   with      a    deadly    weapon.          The    trial   court      entered   a

consolidated judgment in accordance with the jury verdicts and

sentenced      defendant    to    an   active       term    of   69    to    92   months.

Defendant appeals.

                        __________________________________
                                      -5-
    On    appeal,   defendant       argues    the   trial   court    committed

prejudicial    error   when    it    conducted      multiple     off-the-record

bench conferences.        Specifically, defendant contends that the

failure to record bench conferences amounts to a constitutional

violation warranting a new trial. We disagree.

    “A    violation       of   the    defendant's       rights      under    the

Constitution   of   the    United    States   is    prejudicial     unless   the

appellate court finds that it was harmless beyond a reasonable

doubt. The burden is upon the State to demonstrate, beyond a

reasonable doubt, that the error was harmless.”                N.C. Gen. Stat.

§ 15A-1443(b) (2013).

    Here, defendant has couched his contention that the trial

court failed to record bench conferences as a constitutional due

process   violation;      however,    defendant     fails   to    provide    any

support for this contention.            Moreover, the record does not

reflect that defendant raised his constitutional argument before

the trial court.       See State v. Garcia, 358 N.C. 382, 410, 597

S.E.2d 724, 745 (2004) (“It is well settled that constitutional

matters that are not ‘raised and passed upon’ at trial will not

be reviewed for the first time on appeal.”).                Yet despite this

initial contention, we note that in his argument defendant cites
                                         -6-
as his primary authority our Supreme Court’s opinion in State v.

Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992).

    In Pittman, the defendant moved for a complete recordation

of all proceedings including bench conferences.                       The trial court

held unrecorded bench conferences.                    On appeal, the defendant

charged    that       the    failure    to    record     the    bench     conferences

amounted   to     a    constitutional        violation.         Our    Supreme      Court

analyzed the issue against General Statutes, section 15A-1241.

Notably, in the instant case, defendant does not provide any

argument   that       a     constitutional     violation       occurred       at   trial;

therefore, we review only for possible statutory violation.

    Pursuant to General Statutes, section 15A-1241,

           [t]he trial judge must require that the
           reporter make a true, complete, and accurate
           record of all statements from the bench and
           all other proceedings except:

           (1) Selection           of   the    jury     in     noncapital
           cases;

           (2) Opening statements and final arguments
           of counsel to the jury; and

           (3) Arguments           of   counsel   on     questions       of
           law.

N.C. Gen. Stat. § 15A-1241(a) (2013).                  In State v. Cummings, our

Supreme Court stated that it “[did] not believe the enactment of

this statute by the legislature in 1977 was intended to change
                                            -7-
the time-honored practice of off-the-record bench conferences

between trial judges and attorneys.”                        332 N.C. 487, 498, 422

S.E.2d      692,    698     (1992).         The    phrase         in   subsection           (a),

“‘statements from the bench[,]’ does not include private bench

conferences between trial judges and attorneys.”                               Id. at 497,

422 S.E.2d at 697.               “If, however, a party requests that the

subject      matter   of    a    private     bench    conference          be    put    on   the

record for appellate review, section 15A–1241(c) requires the

trial judge to reconstruct the matter discussed as accurately as

possible.”         State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d

799, 814 (2000) (citation omitted); see also N.C. Gen. Stat. §

15A-1241(c)        (“When   a    party     makes     an    objection       to    unrecorded

statements or other conduct in the presence of the jury, upon

motion      of    either    party    the    judge     must       reconstruct          for   the

record, as accurately as possible, the matter to which objection

was made.”).

       In    Pittman,      the   defendant        made     a     pre-trial      motion       for

complete recordation of all proceedings, specifically including

bench conferences.          See Pittman, 332 N.C. at 250, 420 S.E.2d at

440.        Our   Supreme    Court    held    that        “the    trial    court,      having

allowed defendant's motion for complete recordation, should have

required recordation of all conferences and its failure to do so
                                  -8-
constituted error.     We must now determine whether defendant was

prejudiced by this error.”        Id. at 250, 420 S.E.2d at 440.

After   reviewing   what   occurred   prior   to    and   after   the   bench

conferences, the Supreme Court determined that “[b]ased on the

record facts and defendant's failure to specifically allege how

he was prejudiced by the lack of complete recordation, we hold

that the trial court's failure to require complete recordation

was harmless beyond a reasonable doubt.”           Id. at 252, 420 S.E.2d

at 441.

    Here, defendant filed a pretrial motion “to have the Court

Reporter record all phases of the proceedings . . . including

pre-trial hearings, voir dire, motions, opening statements, and

closing arguments.”    The trial court granted the motion from the

bench prior to the commencement of the jury selection.

           [Prosecutor]: Your    Honor,   I   believe
           [defense counsel] also has a motion for
           complete recordation. Obviously we're not
           opposed to that.

           THE COURT:    I'll allow the motion. That's
           for jury selection and everything; is that
           right?

           [Defense counsel]:    Yes, Your Honor. . . .

           THE COURT: . . . [T]he Court will allow the
           motion for complete recordation without
           objection.
                                       -9-
      On appeal, defendant lists seventeen instances in which the

trial court conducted unrecorded bench conferences and states

that each unrecorded conference was a violation of the trial

court’s order.        However, defendant specifically challenges only

two unrecorded bench conferences.             Therefore, we focus only on

the   two    bench    conferences     defendant    discusses      to   determine

whether     defendant    suffered     prejudice    from    the   trial     court’s

failure to record or reconstruct them.2

      In    his      first   challenge,      defendant     contends        he   was

prejudiced by the lack of any memorialization of the arguments

made at a bench conference during the testimony of Detective

Bryan   Crum.        Detective     Crum—assigned   to     the    Violent    Crimes

Division,       homicide,     of     the     Charlotte-Mecklenburg          Police

Department—met victim Robin Lewis at Carolinas Medical Center

the morning she was shot.             During the State’s examination of

Detective Crum, the following exchange occurred:

             Q.      Did you make contact with Robin Lewis
                     at the hospital?

             A.      I did. She was in one of the bays in
                     the emergency department. After she was
                     initially taken care of or settled down
                     with the medical staff, I went to speak
                     with her.



2
  Of the remaining fifteen instances, five occurred during jury
selection and ten during trial.
                                         -10-
            Q.     And what did she tell you?

            A.     She   told  me   that   basically  that
                   something had happened earlier in the
                   night, that a person that she lived
                   with -- and I took a statement from
                   her, -- said that someone had come home
                   and --

            [Defense counsel]: Objection,                 Your     Honor,
                 asked to be heard.

            THE COURT:         Sustained.

            [Prosecutor]:      Your Honor, may we approach?

            [Defense counsel]: Your Honor, I would ask
                 to be heard on the record since we have
                 --

            THE COURT:     Just come up               here       now   and
                 afterward we'll do that.

            (WHEREUPON, the Court,              [both prosecutors],
            and [defense counsel]               conferred off the
            record. Afterward, the              State’s examination
            continued.)

            Q.     Did you have a chance to observe Robin
                   Lewis physically, what she looked like
                   once you spoke with her?

            A.     I did.

            Q.     And what if anything did                you    notice
                   with regards to any injury?

    Here,        the   trial   court’s          failure    to     reconstruct       the

substance of the bench conference for the record was a violation

of section 15A–1241(c).            See N.C.G.S. ' 15A-1241(c) (“When a

party   makes     an   objection    to    unrecorded       statements        or   other
                                      -11-
conduct in the presence of the jury, upon motion of either party

the judge must reconstruct for the record, as accurately as

possible, the matter to which objection was made.”); see also

Blakeney, 352 N.C. at 307, 531 S.E.2d at 814.

      However, on this record as otherwise recorded, we discern

no prejudice in the trial court’s failure to reconstruct the

substance   of    the    bench      conference     for   the   record.        The

transcript reflects that the trial court sustained defendant’s

objection to the prosecutor’s line of questioning.                  Following

the bench conference, the trial court did not amend its ruling

and   defendant’s       objection     remained     sustained.       When      the

prosecutor’s examination resumed, Detective Crum was questioned

regarding his personal observations of the victim Robin Lewis

rather   than    her   statements     to   him.     From   this   context,     it

appears defendant’s objection was made on hearsay grounds, and

there is no indication that the parties at the bench conference

discussed   any    matter   other     than   the    hearsay    nature    of   the

prosecutor’s examination.           Therefore, defendant’s argument that

appellate review was frustrated by the lack of recordation or

reconstruction is without merit.
                                -12-
    Defendant also asserts that he was prejudiced by the lack

of recordation during a bench conference held during defendant’s

cross-examination of Robin Lewis.

         Q.   Well, your blood         alcohol   level   was
              high, wasn't it?

         A.   I don't know.

         Q.   Have you been allowed to see a copy of
              your medical report?

         A.   No, ma'am.

         Q.   If I showed you a copy of your medical
              report would it help refresh your
              recollection about what your level of
              intoxication was?

         A.   You can show it to me, but I know what
              my level of intoxication is. I was not
              intoxicated.

         . . .

         [Prosecutor]:     Your Honor, I would ask to be
              heard.

         THE COURT:     All right, come up here.
              (WHEREUPON,     the     Court,     [both
              prosecutors,   and    defense   counsel]
              conferred off the record.)

         THE COURT:     I'll sustain your objection.
              Rephrase your question.

         Q.   Ms. Lewis, I'm going to ask you in
              terms of how much you had to drink that
              night, you're aware that the hospital
              took your blood; correct?

         A.   Yes, ma'am.
                                       -13-


    Defendant        contends    that     the     substance       of    the        bench

conference     cannot    be    ascertained      from   the       context      of    the

examination and as such, appellate review is frustrated to his

prejudice.     Again, we disagree.

    Defendant        attempted    to    present    Lewis     with      her    medical

report from the hospital prepared on the night of her shooting.

Specifically, defendant asked, “If I showed you a copy of your

medical report would it help refresh your recollection about

what your level of intoxication was?”                      Lewis responded, “I

know what my level of intoxication [was].”                 The prosecutor then

asked to be heard, and during the bench conference, apparently,

lodged an objection.          While the exact content of the conference

is unclear, it is quite apparent that the document defendant

wished the witness to examine was not needed to refresh her

recollection     and,    therefore,       would     not     be    proper       cross-

examination material.          See N.C. Gen. Stat. ' 8C-1, Rule 803(5)

(2013) (“Recorded Recollection”).               A recorded recollection, as

defined by our Rules of Evidence, is “[a] memorandum or record

concerning a matter about which a witness once had knowledge but

now has insufficient recollection to enable [her] to testify

fully and accurately[.]”         Id. ' 8C-1, Rule 803(5).

             Under   present     recollection      refreshed,       the
                                         -14-
             witness' memory is refreshed or jogged
             through   the   employment  of a   writing,
             diagram, smell or even touch, and [she]
             testifies from [her] memory so refreshed.
             The evidence presented at trial comes from
             the witness' memory, not from the aid upon
             which the witness relies[.]

State v. Ysut Mlo, 335 N.C. 353, 367, 440 S.E.2d 98, 104 (1994)

(citations and quotations omitted).

    After      the     conference,       the      trial   court      sustained     the

objection     on     the   record     and      had    defendant      re-phrase     the

question.      Robin Lewis then testified unequivocally, “I know

what my level of intoxication [was]. I was not intoxicated.”

Lewis   did    not    indicate      that     her     memory    was    insufficient.

Therefore,     presentation         of      the      medical   report        was   not

appropriate    as     either   past      recollection      recorded     or    present

recollection refreshed.          See N.C.G.S. ' 8C-1, Rule 803(5); Ysut

Mlo, 335 N.C. at 367, 440 S.E.2d at 104.                  Given the context, our

review of the trial court’s ruling is not frustrated.                     We see no

error   in     the     trial     court’s        ruling    that       sustained     the

prosecutor’s objection to an improper question.                        Accordingly,

defendant’s arguments are overruled.

    No prejudicial error.

    Chief Judge McGEE and Judge STROUD concur.
