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.
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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. 

. . .

. . .
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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.

__________________________________
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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 
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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 
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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 
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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.
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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.
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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 
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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.
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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.
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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 crossexamination 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 
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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.