1. Evidence--bias of witness--evidence excluded
The trial court erred in an armed robbery prosecution by precluding defendant from
introducing evidence concerning the bias of a State's witness where the witness testified that
there was no deal to allow him to plead guilty to a reduced charge in exchange for his testimony
and the court would not allow defendant to present testimony by an inmate that the witness had
stated in jail that he had made a deal with the State. Since this was the only witness directly
tying defendant to the crime, this constituted reversible error.
2. Evidence--offer of proof--absence not fatal
The absence of an offer of proof to the exclusion of testimony concerning the bias of a
State's witness was not fatal to defendant's argument where the court had specifically informed
defense counsel that the record already included the basis of the anticipated testimony. It has
been held that failure to make offers of proof is not necessarily fatal if the essential content of
the excluded testimony and its significance are obvious from the record.
3. Evidence--offer of proof--absence fatal
An assignment of error to the exclusion of testimony concerning the bias of the
investigating offer was overruled where the record was not clear as to the anticipated testimony
and both the officer and defendant were extensively questioned concerning an alleged history of
ill-will.
4. Evidence--identification--photographic lineup--failure to object when identification
made before jury
There was no error in an armed robbery prosecution in allowing testimony concerning a
photographic identification of defendant where all of the photographs were of black men, facial
hair varied, and the witness was not told that a suspect was in any of the groups. Moreover,
assuming that the procedure was impermissibly suggestive, defendant waived the error by failing
to object when the witness later identified him before the jury.
5. Grand Juries--copy of proceedings--denied
The trial court did not err in an armed robbery prosecution by denying defendant's
motion for a copy of the grand jury proceedings in the case.
6. Sentencing--allocution--after sentence entered--denied
The trial court did not err when sentencing defendant for armed robbery by denying him
the opportunity to speak in his own behalf when defendant made his request after the court had
imposed sentence. The purpose of allocution is to afford defendant the chance to state any
further information which the court might consider when determining sentence; in this case the
request came too late to inform the court of mitigating factors relevant to sentencing or to plead
for leniency. The court had asked whether defense counsel had anything else to say prior to
sentencing and is not required to personally address defendant and ask if he wishes to make a
statement. N.C.G.S. § 15A-1334(b).
Appeal by defendant from judgment entered 5 November 1997 by
Judge Clifton W. Everett, Jr. in Chowan County Superior Court.
Heard in the Court of Appeals 17 March 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General David R. Minges, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Benjamin Sendor, for defendant-appellant.
HUNTER, Judge.
At trial, the State's evidence tended to show that at 2:30
p.m. on 14 March 1997, two men wearing ski masks entered the
Royalty Finance (“Royalty”) office in Edenton, North Carolina.
One of the men was carrying a revolver. They told the people in
the office to get on the floor and took approximately $1,400.00
from one of the front cash registers. No one in the office could
identify either of the two men.
Bishop Ali, who runs BJ's Coffee Shop two doors down from
Royalty, testified he observed two men pacing in front of his
shop between 2:00 and 2:30 p.m. on the day in question. Mr. Ali
identified one of the men as the defendant, Michael Rankins.
Melanie Young, defendant's probation officer on 14 March
1997, testified that defendant appeared in her office across the
street from Royalty on that date asking if he had an appointment.
When she responded that he did not, defendant appeared confused
and suggested maybe the appointment he had in mind was with his
attorney, W. Hackney High, Jr.
Cleaven White, defendant's accomplice, testified that, on 14
March 1997, defendant asked him if he wanted to make some moneyby robbing Royalty. They walked behind a building and cut holes
in their toboggans. After stalling for awhile, Mr. White felt
defendant stick a gun in his back and force him inside the
office. Once inside Royalty, the two men told everyone it was a
“stick-up,” robbed everyone and left the premises. Defendant
took the money but later gave Mr. White $250.00. Mr. White saw
Captain Bonner of the Edenton Police Department a few weeks after
the robbery and gave a statement, implicating defendant in the
crime. He further testified he was not promised a deal for his
testimony but admitted he hoped it would help him obtain a lesser
sentence on an unrelated breaking and entering charge. The
parties stipulated that Mr. White had prior convictions for
felony larceny, felony possession of stolen goods, misdemeanor
larceny, and one parole violation.
Captain Bonner was off-duty on 14 March 1997. He was called
in at approximately 2:50 p.m. to respond to a 911 call received
at 2:42 p.m. from Royalty. He talked with the victims and Mr.
Ali and then proceeded to Mr. High's office where he saw
defendant. Upon Mr. Ali's description of the two men, Captain
Bonner requested a group of photographs to be delivered to him
from the Chowan County Detention Center. From the photographs,
Mr. Ali formally identified defendant as one of the two men
previously standing in front of BJ's. On 8 April 1997, upon the
request of Mr. White, Captain Bonner went to the Detention Center
to discuss the robbery. After reading Mr. White his rights,
Captain Bonner took his statement which implicated defendant.
Upon cross-examination, Captain Bonner responded that heremembered having arrested defendant on at least two other
occasions for armed robbery but did not recall having been
involved in any personal altercations with defendant. The State
rested.
Defendant testified that he was at his girlfriend's home on
the afternoon of 14 March 1997 and did not go to downtown Edenton
on that day before 3:00 p.m. Defendant stated that after he had
visited both his probation officer and his attorney, he walked to
the Stop and Shop where he talked to Captain Bonner at 3:30 p.m.
Captain Bonner told him about the robbery, patted him down and
asked him to go with him. Defendant testified that he refused
and returned to his attorney's office. On cross-examination,
defendant admitted he had been convicted for armed robbery once
but could not recall any other convictions.
Defendant was indicted on 12 May 1997 and was tried in
Chowan County Superior Court beginning on 3 November 1997. He
was convicted of one count of robbery with a firearm and
sentenced to 167 to 210 months imprisonment. Defendant appeals
that conviction.
[1]In his first assignment of error, defendant contends the
trial court erred in precluding defendant from introducing
evidence concerning bias of a prosecution witness, Cleaven White.
During the State's case, defense counsel asked Mr. White, during
cross-examination, whether he had discussed a deal with the State
which would allow him to plead guilty to a reduced charge in
exchange for his testimony against defendant. He responded that
there was no deal. Defendant argues that the court's failure toallow him to present testimony by Michael White, a jail inmate,
who wished to state that Cleaven White had told him in jail that
he had made a deal with the State (one year in prison for all his
pending charges -- this armed robbery, a breaking and entering
charge, and a parole violation), constituted reversible error.
Defendant asserts that had the jury been allowed to hear Michael
White's testimony, it might have doubted Cleaven White's
credibility and discounted his entire testimony. Since Cleaven
White was the only witness directly tying defendant to the crime,
the jury could have found defendant not guilty. We agree with
defendant's argument.
In a similar case, State v. Murray, 27 N.C. App. 130, 218
S.E.2d 189 (1975), the State's witness denied, on cross-
examination, that he had been offered any promises by the State
for his testimony against defendant. The trial court refused,
following voir dire, to allow defendant to present testimony of a
witness who claimed the State's witness told him on the morning
of the trial that “if he did not testify for the State that they
would see to it that he did pull the maximum for his sentence.”
This Court held that:
the question put to [State's witness] on
cross-examination was clearly as to a matter
tending to show his motive and interest in
testifying against the defendant. Therefore,
defendant was not bound by [State's
witness's] answer but was entitled to prove
the matter by other witnesses. The State's
entire case depended solely upon [State's
witness's] testimony. No other evidence
connected defendant in any way with the crime
charged. [State's witness's] credibility was
thus the paramount matter for the jury to
determine, and when the court excluded
[defendant's witness's] testimony from thejury's consideration . . ., defendant
suffered prejudicial error for which he is
entitled to a new trial. (Citations
omitted.)
Murray, 27 N.C. App. at 133, 218 S.E.2d at 191. We agree with
the holding in Murray.
[2]Furthermore, we do not deem it fatal to defendant's
argument that defense counsel failed to make specific offers of
proof at trial. First, since the trial court specifically
informed defense counsel that the record already included the
basis of Michael White's anticipated testimony, it would be
unfair to preclude defendant from raising the exclusion of the
proffered testimony on appeal. Secondly, our Supreme Court has
held that failure to make offers of proof is not necessarily
fatal if “the 'essential content' of the excluded testimony and
its significance are obvious” from the record. State v. Hester,
330 N.C. 547, 555, 411 S.E.2d 610, 615 (1992) (citing State v.
Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)). For the
foregoing reasons, we remand this case for a new trial.
[3]Even though we are remanding this case to the Chowan
County Superior Court for a new trial on the issue set forth
above, we have elected to address defendant's remaining
assignments of error since they could each readily occur in the
new trial.
Defendant contends the trial court erred in excluding the
testimony of defendant's sister, Connie Sawyer, concerning the
alleged bias of Captain Bonner against defendant. Here, unlike
the previous situation, the record is not clear as to the
anticipated testimony of Ms. Sawyer, arguably another biasedwitness. “Ordinarily, where the evidence is excluded, the record
must show the essential content or substance of the witness's
testimony before we can determine whether the exclusion
prejudiced defendant.” Hester, 330 N.C. at 555, 411 S.E.2d at
615 (citations omitted). Captain Bonner and defendant both were
questioned extensively concerning an alleged history of ill-will
between the two men. We elect not to speculate as to the basis
of Ms. Sawyer's testimony or whether its exclusion prejudiced
defendant. This assignment of error is overruled.
[4]In his next assignment of error, defendant contends the
trial court erred in denying his motion to suppress the
photographic identification of defendant. The voir dire
testimony of Captain Bonner indicates that he showed Mr. Ali
three photographic lineups twenty to thirty minutes following the
robbery. Each lineup contained six photographs of black men.
Photographs of some men appeared in two of the three lineups;
defendant's photograph appeared in all three. Defendant's
photograph appeared in the same position in two of the three
lineups -- the top left corner.
Assuming arguendo that the procedure was impermissibly
suggestive, “defendant waived that error by failing to object
when the witness later identified him before the jury as the man
he had picked out of the lineup.” State v. Hunt, 324 N.C. 343,
355, 378 S.E.2d 754, 761 (1989). “Failure to object when
identification is made before the jury is a waiver of the right
to have the propriety of that identification considered by the
appellate court.” Id. However, pursuant to N.C. Gen. Stat. §15A-1446(b) (1997), this Court may review the alleged error
“affecting substantial rights in the interest of justice if it
determines it appropriate to do so.”
In State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982),
defendant was the only person whose photograph was in both groups
of photographs shown to the victim. The Supreme Court found that
this, standing alone, was insufficient to show that the pretrial
photographic identification was impermissibly suggestive and
indicated that the courts should look at the “totality of the
procedures employed.” Id. at 222, 287 S.E.2d at 838. Here, as
in Leggett, all the photographs in the groupings were of black
men. In one grouping, all the men had facial hair; in the other
two, it varied. Captain Bonner testified he did not tell Mr. Ali
that a suspect was in any of the groups. Based on the totality
of these procedures, we conclude that the trial court committed
no error in allowing testimony from Mr. Ali and Captain Bonner
concerning the photographic identification of defendant by Mr.
Ali.
[5]Next, defendant contends the trial court erred in
denying his motion to obtain a copy of the grand jury proceedings
in this case. N.C. Gen. Stat. § 15A-622 specifically states in
part, “The contents of the petition and the affidavit shall not
be disclosed.” N.C. Gen. Stat. § 15A-622(h) (1997). “An accused
in this jurisdiction has no right to obtain a transcript of the
grand jury proceedings against him.” State v. Porter, 303 N.C.
680, 689, 281 S.E.2d 377, 384 (1981). “Defendant is adequately
protected by his right to object to improper evidence and cross-examine the witnesses presented against him at trial.” Id. This
assignment of error is also without merit.
[6]Finally, defendant contends the trial court erred in
sentencing him without first affording him the opportunity to
speak on his own behalf. The transcript reveals that after the
jury had announced its verdict and the court had sentenced
defendant, defendant asked if he could address the court. The
court denied this request and defendant contends this refusal
violated his statutory and constitutional right to allocution.
N.C. Gen. Stat. § 15A-1334(b) (1997). We disagree.
The purpose of allocution is to afford defendant an
opportunity to state any further information which the trial
court might consider when determining the sentence to be imposed.
N.C. Gen. Stat. § 15A-1334(b) expressly gives a non-capital
defendant the right to “make a statement in his own behalf” at
his sentencing hearing. However, “[i]t is clear that G.S. 15A-
1334, while permitting a defendant to speak at the sentencing
hearing, does not require the trial court to personally address
the defendant and ask him if he wishes to make a statement in his
own behalf.” State v. McRae, 70 N.C. App. 779, 781, 320 S.E.2d
914, 915 (1984), disc. review denied, 313 N.C. 175, 326 S.E.2d 35
(1985) (citing State v. Poole, 305 N.C. 308, 289 S.E.2d 335
(1982)). See also State v. Griffin, 57 N.C. App. 684, 292 S.E.2d
156, cert. denied, 306 N.C. 560, 295 S.E.2d 477 (1982); State v.
Martin, 53 N.C. App. 297, 280 S.E.2d 775 (1981). Here, the
transcript reveals that, prior to sentencing defendant, the trial
court addressed defense counsel and inquired: “Anything else youwould like to say, Mr. High?” Mr. High responded, “No, Your
Honor.” Based on this response, the court pronounced sentence
accordingly.
After the sentence had been entered, defendant vocalized his
desire to address the court. Since the jury had already rendered
its verdict and the court had already imposed sentence, the
opportunity to “speak in his own behalf” had passed. At this
point, it was too late in the proceedings to inform the court of
mitigating factors relevant to sentencing or to plead for
leniency. This assignment of error is overruled.
New trial.
Judges MARTIN and TIMMONS-GOODSON concur.
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