2. Evidence--cross-examination of defendant--robbery--prior convictions--no plain
error
The trial court did not commit plain error in a robbery case when it permitted the State to
cross-examine defendant about his prior convictions for possession of cocaine because although
some of the forms of the questions were objectionable, the substance of the questions were
appropriate since the prosecutor limited his inquiry to the facts supporting the conviction without
eliciting extraneous prejudicial details.
3. Evidence--cross-examination of defendant--robbery--defendant's attitude towards
criminal laws in general--no plain error
The trial court did not commit plain error in a robbery case by permitting the State to
cross-examine defendant about his attitude concerning the esteem that he holds for criminal laws
in general because even if this evidence was inadmissible, defendant failed to show that a
different result would have been reached but for the error, or that the error was so fundamental
as to result in a miscarriage of justice.
4. Criminal Law--codefendant pled guilty--mistrial not required
The trial court did not err in a robbery case by failing to declare a mistrial after a
codefendant pled guilty outside of the presence of the jury because when the jury returned, the
trial court gave the pattern jury instruction that the codefendant's case was no longer before the
jury, its disposition was of no concern to them, and their deliberations as to defendant should not
be affected in any way.
5. Constitutional Law--self-incrimination--robbery--acting in concert--codefendant
not required to testify
The trial court did not err in a robbery case when it did not allow defendant to call his
codefendant to testify after the codefendant pled guilty outside the presence of the jury and
claimed he would invoke his Fifth Amendment privilege not to incriminate himself if called as a
witness because defendant did not proffer the evidence he sought to elicit from his codefendant
and merely wanted the jury to speculate. In addition, the fact that defendant was being tried on
the theory of acting in concert meant the codefendant's admission of his involvement would not
exonerate defendant.
6. Evidence--prior crime or act--codefendant--harmless error
Although the trial court erred in a robbery trial by admitting irrelevant evidence of a
codefendant's prior bad acts involving drug dealing after the codefendant pled guilty, it was
harmless error in light of the substantive evidence against defendant.
7. Robbery--motion to dismiss--acting in concert
The trial court did not err in a robbery case based on the theory of acting in concert by
failing to grant defendant's motion to dismiss because viewed in the light most favorable to the
State, the evidence was sufficient to show that defendant shared a common purpose with his
codefendant. While the codefendant used a gun to take the personal property of both victims,
defendant blocked one victim's attempt to exit from his car, defendant told the victim to keep his
hands where they could be seen, and defendant took that victim's jewelry. Appeal by defendant from judgment entered 7 May 1998 by
Judge William Z. Wood, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 10 June 1999.
Michael F. Easley, Attorney General, by Emmett B. Haywood,
Assistant Attorney General, for the State.
Tisdale & Menefee, P.A., by Donald K. Tisdale, for
defendant-appellant.
EDMUNDS, Judge.
On 13 July 1997, victims Tyrone Campbell (Campbell) and
Reggie McKinney (McKinney) drove to the home of LuWanda Corn in
Winston-Salem. Campbell and McKinney remained in the car while
Campbell, the driver, began talking to Ms. Corn. Co-defendant
Cory Beck (Beck), who was defendant's brother and was also known
as Cory Stanfield, was on the porch of the Corn home. After the
conversation between Corn and Campbell had continued for a few
minutes, Beck yelled to Campbell and McKinney, asking if they had
any “weed.” When McKinney answered in the negative, Beck
approached the driver's side of the car. Interrupting Campbell's
conversation with Corn, Beck pulled a gun on the two men in the
car and demanded their jewelry. Before McKinney and Campbell
were able to comply, defendant walked up to the passenger side
door, said “What's up? What's up?,” and told McKinney to keephis hands where they could be seen. He stood against the side of
the car so that McKinney could not open the door to run.
Campbell surrendered some rings he was wearing to Beck, who hit
Campbell with his pistol. McKinney told police after the robbery
and again at trial that he handed his watch and gold necklace to
Beck. However, Campbell initially told police that McKinney
handed his (McKinney's) jewelry to defendant Stanfield, but later
testified at trial that he did not know to whom McKinney handed
his watch and necklace, though he added that Beck reached into
the car. Beck told Campbell and McKinney not to look at him, to
leave, and not to return or call the police. The victims left
but called the police. McKinney later picked defendant out of a
photo lineup and identified him at trial.
[1]Defendant's first assignment of error pertains to
discrepancies between statements made by McKinney and Campbell.
McKinney's trial testimony also included some detail not in his
written statement, e.g., that, during the robbery, defendant
approached the car saying, “What's up? What's up?,” then told
McKinney to keep his hands where they could be seen. After the
investigating detective testified as to the written statement
taken from McKinney and after defense counsel elicited on cross-
examination the discrepancies between the victims' statements,
the prosecution asked the following series of questions onredirect examination:
Q. Okay. What has been your experience
with trauma victims, Officer Tollie?
A. It's been --
[overruled objection]
A. It's been my experience [and] training
both that with trauma victims often facts
about an event may occur -- may come back to
them several hours or even several days after
it's over and they calm down. As a matter of
fact, it's my procedure in dealing with
someone that is a victim of a violent crime
that I leave my card with my number on it
stating to them, [i]f you remember something
tomorrow or next week that you didn't tell me
tonight, feel free to call and I'll take it
and annotate it to my report.
Defendant characterizes this testimony by the detective as
expert testimony regarding the recollection process of trauma
victims and claims that the court erred in admitting this
testimony when the witness had not been qualified as an expert.
Defendant also asserts this testimony is a statement of the
detective's opinion as to the credibility of the witnesses. We
disagree. The law in North Carolina is settled that an expert
may not express an opinion as to the believability of another
witness. In State v. Aguallo, 318 N.C. 590, 599, 350 S.E.2d 76,
81 (1986), during a first-degree rape trial, a pediatrician
stated, “I think [the victim is] believable.” The Aguallo Court
applied State v. Heath, 316 N.C. 337, 340, 341 S.E.2d 565, 567-68(1986), in which our Supreme Court stated that the official
commentary of Rule 608 of the North Carolina Rules of Evidence
establishes that “'expert testimony on the credibility of a
witness is not admissible.'” In Heath, after being asked her
opinion as to whether a mental condition could have caused the
witness to fabricate a story, the witness' psychologist
responded, “There is nothing in the record or current behavior
that indicates that she has a record of lying.” Id. Our Supreme
Court held that this statement was improper expert testimony that
bolstered the credibility of the witness. See id.
In contrast, even assuming the detective was testifying as
an expert in this portion of his testimony (he had not been
formally qualified or tendered as an expert but testified that he
had investigated between 350 and 375 incidents involving trauma),
he was not stating an opinion, but was instead relating his
experience. His testimony was a recitation of the procedure hefollowed when working with trauma victims and the reason he
followed it. The officer did not suggest any reason such belated
recollection occurs, nor did he vouch for the accuracy of such
recollection. Unlike the cases cited above, this testimony
contained no opinion as to the credibility of the witness. This
assignment of error is overruled.
[2]Defendant next argues that the trial court committed
plain error when it permitted the State, when cross-examining
defendant about his prior convictions, to inquire into details
that went beyond the nature of the crime, time and place of
conviction, and punishment imposed. See State v. Bishop, 346
N.C. 365, 488 S.E.2d 769 (1997). Because defendant failed to
object to this line of questions, he carries the burden of
showing “(i) that a different result probably would have been
reached but for the error or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial.” Id. at 385, 488 S.E.2d at 779. The particular
portion of cross-examination to which defendant now objects is as
follows:
Q. And you've been convicted of possession
with intent to sell and deliver cocaine?
A. Well, I got convicted of simple
possession.
Q. I'm sorry. I thought you told [defensecounsel] you were convicted of possession
with intent to sell.
A. That's what I was charged with. It cost
me several thousand dollars. I got it down
to simple possession.
Q. So you plea bargained that case?
A. Yes, sir, I did.
Q. Is that the one in Danville, Virginia,
in 1996?
A. Yes, sir, it is.
Q. And you were put on probation?
A. Yes, sir, I was.
Q. For how long?
A. I can't even remember.
. . . .
Q. . . . And almost within a year you had
some more cocaine on you, didn't you?
A. Well, in fact, that charge that I was
charged for in '96 that was from, like, four
years ago. I had been living in Winston-
Salem. They had just -- They had just
recently caught up with me. And I took a
plea bargain.
. . . .
Q. . . . [I]n July of '97, three days
before this crime, you were convicted of
possession of cocaine again, were you not?
A. What do you mean three days before this
crime?
Q. Well, this crime occurred on July 13 of
'97.
A. From what I understood this wasn't a
crime. It was a simple assault. From what I
understand these guys are making up this
story.
Q. Okay. Well, from July the 13th of 1997
-- You were convicted on July 10th of '97 of
possession of cocaine, were you not, Mr.
Stanfield?
A. On July the 10th?
Q. Yes, sir.
A. Yes, I was.
Q. So, in other words, you ignored your
probation from the [Commonwealth] of
Virginia; is that correct?
A. Well it was transferred to the state of
North Carolina.
Q. But, anyway, you were on probation to
stay away from drugs. And from a court order
from Virginia, North Carolina, wherever, Mr.
Stanfield, you ignored that court order, did
you not?
A. Yes, sir.
Q. And got convicted again of the same
drug; isn't that right?
A. Yes, sir.
Our review of this transcript satisfies us that the State's
questions did not exceed the permissible scope of inquiry
concerning defendant's prior convictions. Although some of thesequestions were objectionable as to form where the prosecutor
asked about the underlying facts rather than the conviction
itself (“[a]nd almost within a year you had some more cocaine on
you, didn't you?”), no objection was made. See N.C. Gen. Stat.
§ 8C-1, Rule 609 (1992). Moreover, the substance of the
questions was appropriate. The prosecutor limited his inquiry to
the facts supporting the conviction and did not elicit extraneous
prejudicial details. Compare State v. Rathbone, 78 N.C. App. 58,
336 S.E.2d 702 (1985), disc. review denied, 316 N.C. 200, 341
S.E.2d 582 (1986), with State v. Wilson, 98 N.C. App. 86, 389
S.E.2d 626 (1990). Where defendant's answers demonstrated
confusion or evasion, the prosecutor properly sought
clarification. This assignment of error is overruled.
[3]Defendant also asserts that the trial court committed
plain error by permitting the State to inquire about defendant's
attitude concerning the law in general, referring to the
following exchange:
Q. . . . So your attitude about the
criminal laws of North Carolina or any other
state, you don't hold them in any high
esteem, do you?
A. Well, selling drugs -- First of all,
selling drugs is against the law anywhere.
So for me to be convicted of selling drugs, I
had to have sold the drugs. That's against
the law. So same scenario.
Q. Yes, sir. So you don't have any respect
for the criminal laws, do you?
A. No, it's not that. It's just what I
chose to do at that time.
Defendant did not object to this line of questioning.
Although a party may cross-examine a witness with respect to
any evidence that tends to show feeling or bias of the witness
with respect to a party or cause, see State v. McCall, 31 N.C.
App. 543, 230 S.E.2d 195 (1976), “the criminal laws” are neither
party nor cause. Nevertheless, assuming arguendo that this
evidence was inadmissible, defendant has failed to meet his
burden of showing (1) that a different result probably would have
been reached but for the error or (2) that the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial. See Bishop, 346 N.C. 365, 488 S.E.2d 769. This
assignment of error is overruled.
[4]Defendant next asserts that the trial court improperly
denied his motion for mistrial after Beck pled guilty outside the
presence of the jury. We disagree. “The decision to grant a
mistrial is within the trial court's discretion.” State v.
Jaynes, 342 N.C. 249, 280, 464 S.E.2d 448, 467 (1995) (citations
omitted), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996).
A trial court should grant a mistrial “'only when there are
improprieties in the trial so serious that they substantially andirreparably prejudice the defendant's case and make it impossible
for the defendant to receive a fair and impartial verdict.'”
State v. Marlow, 334 N.C. 273, 287, 432 S.E.2d 275, 283 (1993)
(quoting State v. Laws, 325 N.C. 81, 105, 381 S.E.2d 609, 623,
sentenced vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d
603 (1990)). “[A] trial court's decision regarding a motion for
mistrial will not be disturbed on appeal absent a clear showing
that the trial court abused its discretion.” Id. Here, Beck
entered his guilty plea outside the presence of the jury. When
the jury returned, the trial judge gave the pattern instruction
that the co-defendant's case was no longer before the jury, that
its disposition was of no concern to them, and that their
deliberations as to defendant should not be affected in any way.
The procedure followed by the trial court has been approved by
this Court. See State v. Dewalt, 16 N.C. App. 546, 192 S.E.2d
665 (1972). This assignment of error is overruled.
[5]Defendant also argues that the trial court committed
reversible error by not allowing him to call Beck to testify on
his behalf. After Beck pled, the court ascertained in the
absence of the jury that, if called as a witness, he would invoke
his Fifth Amendment privilege not to incriminate himself. The
court then instructed defendant's attorney not to call Beck. Our
Supreme Court has admonished trial courts to exercise caution indeciding whether to allow a party to call a witness who will
plead the Fifth Amendment.
[T]here are two difficulties that may arise
when a witness is presented and then refuses
to testify by asserting his Fifth Amendment
privilege. The first is that it permits the
party calling the witness to build or support
his case out of improper speculation or
inferences that the jury may draw from the
witness' exercise of the privilege, which
cannot be adequately corrected by trial court
instruction. The second concern is that it
encroaches upon the constitutional right to
confrontation because the presentation of the
exercise of the privilege cannot be tested
for relevance or value through
cross-examination. As a result of these
difficulties, “the trial judge must weigh a
number of factors in striking a balance
between the competing interests.” Such a
balancing will be left to the discretion of
the trial court in determining whether the
probative value of the proffered evidence is
substantially outweighed by the danger of
unfair prejudice in accordance with Rule 403
of the Rules of Evidence.
State v. Pickens, 346 N.C. 628, 639, 488 S.E.2d 162, 167-68
(1997) (internal citations omitted). In Pickens, the defendant
sought to call his former co-defendant (Arrington) to the witness
stand. Outside of the jury's presence, Arrington had exercised
his Fifth Amendment privilege against self-incrimination, and the
defendant alleged it was error to prevent him from calling
Arrington to the stand to exercise the privilege before the jury.
The defendant wanted to show that Arrington fired the weapon thatcaused the victim's death; however, our Supreme Court held that
the defendant was tried under a theory of acting in concert,
making Arrington's assertion of his constitutional privilege
“immaterial.” Thus, the Court held that the trial court did not
abuse its discretion in denying the defendant's request.
Defendant here argues that the trial court abused its
discretion by denying defendant's request to call Beck. We
disagree. Defendant never made a proffer as to what evidence he
sought to elicit from Beck; instead, defendant maintains that he
had “the right of having the jury make whatever inferences it
might from the assertion by [Beck] of [his] Fifth Amendment
rights.” In other words, he wanted the jury to speculate in the
hope that the speculation might be to his benefit. The trial
court weighed a privilege expressly protected by the U.S.
Constitution against this nebulous hope and decided correctly.
Moreover, defendant, like the defendant in Pickens, was being
tried under the theory of acting in concert. Because Beck's
admission of his own involvement would not exonerate defendant,
Beck's claiming his Fifth Amendment privilege was immaterial to
defendant's defense. The trial court did not abuse its
discretion. This assignment of error is overruled.
[6]Defendant next argues that the trial court erred by
admitting testimony about the bad acts of his co-defendant Beckafter Beck pled guilty. This evidence was elicited during cross-
examination of defense witnesses and related to Beck's drug
dealing. Because defendant did not object to this testimony at
trial, we review admission of the testimony for plain error. See
Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Here, the evidence
in question was consistent with testimony taken prior to Beck's
plea. Nevertheless, once Beck was out of the trial, evidence of
his bad acts unrelated to the instant offense had no probative
value and could only serve to prejudice defendant. However, we
hold that the error in admitting the evidence was harmless.
There was substantial other evidence of defendant's guilt, and we
see no possibility that a different result could have been
reached if this testimony pertaining to the co-defendant had been
excluded. This assignment of error is overruled.
[7]Finally, defendant contends that the court erred by
failing to grant his motion to dismiss at the conclusion of all
the evidence. “'In passing upon a defendant's motion to dismiss,
the court must consider the evidence in the light most favorable
to the State, giving the State the benefit of every reasonable
inference.'” State v. Tucker, 347 N.C. 235, 243, 490 S.E.2d 559,
563 (quoting State v. Aikens, 342 N.C. 567, 573, 467 S.E.2d 99,
103 (1996)), cert. denied, 523 U.S. 1061, 140 L. Ed. 2d 649
(1998). The State's case against defendant was based on a theoryof acting in concert.
Where the state seeks to convict a
defendant using the principle of concerted
action, that this defendant did some act
forming a part of the crime charged would be
strong evidence that he was acting together
with another who did other acts leading
toward the crimes' commission. That which is
essentially evidence of the existence of
concerted action should not, however, be
elevated to the status of an essential
element of the principle. Evidence of the
existence of concerted action may come from
other facts. It is not, therefore, necessary
for a defendant to do any particular act
constituting at least part of a crime in
order to be convicted of that crime under the
concerted action principle so long as he is
present at the scene of the crime and the
evidence is sufficient to show he is acting
together with another who does the acts
necessary to constitute the crime pursuant to
a common plan or purpose to commit the crime.
State v. Joyner, 297 N.C. 349, 356-57, 255 S.E.2d 390, 395
(1979).
Viewed in the light most favorable to the State, the
evidence showed that Beck used a gun while taking the personal
property of Campbell and McKinney. McKinney testified that
defendant blocked his exit from the car, told him to keep his
hands where they could be seen, and took his jewelry. This is
sufficient evidence to establish beyond a reasonable doubt that
defendant shared a common purpose with Beck. Accordingly, the
trial court properly denied defendant's motion. This assignmentof error is overruled.
No error.
Judges WALKER and MCGEE concur.
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