State v. Hatcher
No. COA99-782
(Filed 1 February 2000)
1.Witnesses--cross-examination--credibility
The trial court did not abuse its discretion in a prosecution for armed robbery by not allowing
defendant to cross-examine the victims regarding their immigration status and an accomplice
regarding his history of firearm use and his plea agreement. The immigration status of the
victims was at best of tenuous relevance to their credibility, and, given other testimony of similar
import concerning the accomplice, the court did not abuse its discretion by refusing further
repetitious and cumulative cross-examination.
2.Appeal and Error--brief--supporting authority or citation of authority
An assignment of error concerning the sufficiency of the evidence in a robbery prosecution was
considered abandoned where defendant did not make any supporting argument or citation of
authority.
3.Sentencing--structured--prior record level points--pjc
The trial court did not err in its assessment of prior record points when sentencing defendant for
armed robbery by assessing prior record level points for an offense to which he pled no contest
and for which prayer for judgment was continued. Defendant was convicted of the prior offense
when he entered the plea of no contest even though no final judgment had been entered.
4.Sentencing--aggravating factor-- ethnic group of victim
The trial court did not err when sentencing defendant for armed robbery by finding in
aggravation that the offenses were committed against the victims because of their race, color,
religion, or country of origin where defendant's accomplice testified that they selected two
Hispanic men as their victims because they thought that Hispanics carried large sums of cash and
were less likely to report crimes committed against them. There is no language in N.C.G.S. §
15A-1340.16 (d)(17) to suggest a limiting requirement that the defendant harbor animosity
toward a race or ethnic group.
STATE OF NORTH CAROLINA
v.
MICHAEL L. HATCHER,
Defendant-Appellant
Attorney General Michael F. Easley, by Special Deputy Attorney
General Charles J. Murray, for the State.
Donald K. Tisdale, Sr., for defendant-appellant.
SMITH, Judge.
Defendant was found guilty as charged of two counts of robbery
with a dangerous weapon. He was sentenced in the aggravated range
to a minimum term of 108 months and the corresponding maximum of
139 months for each offense, to run consecutively.
The State presented evidence tending to show that on 5 January
1998 defendant and Anthony Eaton took at gunpoint a 1989 Toyota
Tercel automobile and a wallet containing cash from Angel Prudente
and jewelry from Delfino Laredo.
Defendant's assignments of error are grouped into four
questions for review. For the following reasons, we affirm
defendant's convictions.
[1]First, defendant contends the court erred in restrictinghis cross examination of witnesses in violation of his
constitutional right to confront the witnesses against him. He
assigns as error the court's refusal to allow defendant to question
(1) Prudente and Laredo regarding their immigration status, (2)
Eaton regarding his history of carrying and discharging firearms,
(3) Eaton regarding his sentencing to a lower category than
appropriate, and (4) Eaton's attorney regarding what would happen
to Eaton if he did not testify. He argues these questions were
designed to show bias.
The right to cross examine a witness to expose the witness'
bias is not unlimited. State v. Sams, 317 N.C. 230, 345 S.E.2d 179
(1986). “[W]hile it is axiomatic that the cross-examiner should be
allowed wide latitude, the trial judge has discretion to ban unduly
repetitious and argumentative questions, as well as inquiry into
matters of tenuous relevance.” 1 Kenneth S. Broun, Brandis & Broun
on North Carolina Evidence § 170 (5th ed. 1998). Moreover, the
trial judge retains the discretion to prohibit cross examination
that is intended to harass, annoy or humiliate a witness. State v.
Mason, 315 N.C. 724, 340 S.E.2d 430 (1986). The trial judge's
rulings in controlling cross examination will not be disturbed
unless it is shown that the verdict was improperly influenced.
State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982).
Applying these principles to the case at bar, we note that the
immigration status of the two victims was of very tenuous, if any,
relevance to their credibility. Although Eaton testified that his
plea was not contingent upon testifying against defendant, heacknowledged on cross examination that the written plea agreement
called for him to testify. Eaton acknowledged on direct
examination and again on cross examination that he had two prior
convictions of carrying a concealed weapon. He further admitted on
cross examination that he received a sentence less severe than he
should have for his prior record level. Given this testimony of
similar import, the court did not abuse its discretion in refusing
to allow further repetitious and cumulative cross examination into
these matters. Moreover, the court's rulings could not have
affected the verdict in view of the overwhelming evidence of
defendant's guilt.
[2] Defendant next assigns as error the court's denial of his
motion to dismiss for insufficient evidence. He makes no argument
except to acknowledge “the heavy burden” placed on him to show the
evidence was not sufficient and to request this Court to review the
evidence “to determine if it is insufficient as a matter of law.”
Because of defendant's failure to make any supporting argument or
citation of authority, this assignment of error is considered
abandoned. N.C.R. App. P. 28(b)(5).
[3] Defendant next contends the court erred in computing his
prior record level points by assessing points for an offense to
which he pled no contest and for which prayer for judgment was
continued. “A person has a prior conviction when, on the date a
criminal judgment is entered, the person being sentenced has been
previously convicted of a crime . . . .” N.C. Gen. Stat. § 15A-
1340.11 (7) (1997). “For the purpose of imposing sentence, aperson has been convicted when he has been adjudged guilty or has
entered a plea of guilty or no contest.” N.C. Gen. Stat. § 15A-
1331(b) (1997). We have interpreted N.C. Gen. Stat. § 15A-1331(b)
to mean that formal entry of judgment is not required in order to
have a conviction. State v. Fuller, 48 N.C. App. 418, 268 S.E.2d
879, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980).
Consequently, we conclude that defendant was convicted of the prior
offense when he entered the plea of no contest even though no final
judgment had been entered. This assignment of error is overruled.
[4] Finally, defendant contends the court erred by finding as
a factor in aggravation of the sentences that the offenses were
committed against the victims because of their race, color,
religion, nationality or country of origin. He argues that this
finding pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(17) (1997)
applies only when the defendant has some animus against the victim
due to the victim's race or nationality. We disagree.
N.C. Gen. Stat. § 15A-1340.16 (d) (17) reads as follows: “The
offense for which the defendant stands convicted was committed
against a victim because of the victim's race, color, religion,
nationality, or country of origin.” There is no language in the
statute to suggest a limiting requirement that the defendant harbor
animosity toward a race or ethnic group. The statute merely
provides that the offense be committed against a victim “because of
the victim's race, color, religion, nationality or country of
origin.” Accordingly, a finding of this factor may be made any
time the defendant targets a person for victimization because ofhis race or national origin. Here, Eaton testified that he and
defendant selected Prudente and Laredo, two Hispanic men, as their
victims because they thought Hispanics carry large sums of cash and
are less likely to report crimes committed against them. This
assignment of error is therefore overruled.
In defendant's trial and sentence we find no error.
No error.
Judges LEWIS and TIMMONS-GOODSON concur.
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