1. Evidence--witness testimony--defendant smoked crack cocaine in front of children--opened the
door to testimony
The trial court did not err in an aiding and abetting case involving robbery and murder by allowing
defendant's girlfriend to testify that defendant smoked crack cocaine in front of the parties' two children,
because defendant opened the door to questions regarding whether and why the girlfriend did not leave her
children at home with defendant when she went out.
2. Constitutional Law--right to remain silent--incriminating information elicited from another
Even though defendant invoked his Fifth Amendment privilege to remain silent, the trial court did not
commit plain error in an aiding and abetting case involving robbery and murder by allowing defendant's
girlfriend to testify that defendant never sought medical assistance or help for the victim and refused to allow his
girlfriend to do so, because: (1) the Fifth Amendment privilege is a personal privilege adhering to the person
and not to the information that may incriminate him; and (2) defendant's invocation of his Fifth Amendment
privilege is irrelevant when the evidence sought to incriminate defendant came from his girlfriend, who did not
invoke her Fifth Amendment privilege.
3. Evidence--card written by girlfriend to defendant--probative value outweighed by prejudicial
effect
The trial court did not abuse its discretion in an aiding and abetting case involving robbery and murder
by denying defendant's motion to introduce into evidence a card written to him by his girlfriend while the two
were in jail awaiting trial in an effort to attack the girlfriend's statement that she was afraid of defendant,
because: (1) the trial court gave both sides ample opportunity to argue their positions on the admissibility of the
card and concluded under N.C.G.S. § 8C-1, Rule 403 that the evidence's probative value was outweighed by the
prejudicial effect; (2) the trial court stated it would allow defendant to explore his relationship with his
girlfriend; and (3) the trial court allowed defense counsel to inquire of his girlfriend the nature of the writings
and the content, and in fact allowed all of the writings except the particular card at issue which contained
lipstick marks and vulgar sexual language.
4. Criminal Law--aiding and abetting--advising jury of maximum sentence
Although the trial court erred in an aiding and abetting case involving robbery and murder by
disallowing defense counsel to advise the jury of the maximum sentence defendant could receive if found guilty,
there was no prejudicial error because the evidence of defendant's guilt was overwhelming and this error was
insignificant by comparison.
Attorney General Michael F. Easley, by Assistant Attorney General
Leonard G. Green, for the State.
Charles A. Moore for defendant-appellant.
HUNTER, Judge.
Darrick Belfield (“defendant”) appeals the jury verdicts finding him
guilty of aiding and abetting his girlfriend, Betty L. Williams (“Ms.
Williams”), in the armed robbery and murder of Jerry A. Belfield (“the
victim”). We find no error.
The bulk of the State's evidence came from Ms. Williams, the principal
defendant in the charges at issue. Defendant and Ms. Williams lived together
just across a field from the victim. The State's evidence revealed that the
two often “borrowed” money from the victim to buy crack cocaine which they
both smoked. Ms. Williams was afraid of defendant “because he had physically
assaulted her on several occasions when they argued . . . .” At trial, Ms.
Williams testified that on 15 May 1998, she went over to the victim's house
and exchanged sexual favors to borrow money from him, as she had done many
times before. She further testified that later that same day, defendant
threatened her with bodily harm if she did not go back to the victim's house
and borrow more money from him. Then, after arguing with her, defendant got
a bat from his kitchen and followed Ms. Williams to the victim's house --
threatening her all the way. When the two arrived outside the victim's home,
defendant instructed Ms. Williams to hit the victim with the bat and get some
money from him. When she stood there hesitating, defendant handed Ms.
Williams the bat and pushed her towards the victim's back door.
When she arrived at the victim's door, Ms. Williams knocked and the
victim let her in. Upon stepping inside, she asked the victim if she could
have a cigarette, to which he said “yes” and proceeded to go to his bedroom
to get one. Ms. Williams then followed the victim to his bedroom and while
his back was turned toward her, she hit him in the back of the head once with
the bat. The victim dropped to the floor. Ms. Williams then took $150.00
out of his wallet, exited using the back door of the trailer through whichshe entered and gave the money to defendant who had been waiting
outside the
trailer for her the entire time. Neither defendant nor Ms. Williams called
9-1-1 to gain assistance for the victim -- who subsequently died from the
blow to the head. At the conclusion of his trial, the jury found defendant
guilty on both counts of aiding and abetting, and the trial court sentenced
defendant to 90 to 117 months imprisonment for the aiding and abetting
robbery with a dangerous weapon conviction, and 210 to 261 months
imprisonment for the aiding and abetting second degree murder conviction.
[1]In the record, defendant preserved eighteen assignments of error.
However, he brings forward only four arguments before this Court. Therefore,
any assignment not argued is deemed abandoned. N.C.R. App. P. 28(b)(5).
Defendant first alleges the trial court committed error by allowing Ms.
Williams to testify that defendant smoked crack cocaine in front of the
parties' two children. It is defendant's contention that this testimony
tends to prove defendant is of bad character and therefore, is inadmissible
being both irrelevant and highly prejudicial. We are unconvinced.
Defendant is correct that, pursuant to N.C. Gen. Stat. § 8C-1, Rule
404(b) (1999):
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident. . . .
Id. However, we need not reach defendant's argument that the testimony was
inadmissible pursuant to this statute. Instead, we find the testimony was
admissible because defendant “opened the door” to the testimony. The record
reveals that in an effort to show that Ms. Williams trusted defendant, on
cross-examination defense counsel inquired of Ms. Williams:
Q. How many children do you and [defendant] have?
A. 2.
Q. How old are they?
A. 5 and 6.
. . .
Q. And those times you would be [away from home] on
some of those occasions, those children would be home
with [defendant] would they not?
A. No.
Q. You wouldn't leave those children home with him when
you'd go out there and stay all night and he would come
looking for you?
A. No.
. . .
A. I would leave them at my Mom's house. He would go
over there and get them from there. He would go get the
boys where I leave [sic] them at Mom's house and he would
go over there and get the boys hisself [sic] and take
them back with him, but I don't leave them there with
him.
Then, on re-direct, the State inquired of Ms. Williams as to whether the
reason she left her children with her mother was because defendant “smoked
crack cocaine while the children were in the house[.]” Ms. Williams
answered, “[y]es.”
The law has long been that, even where
th[e] type of testimony is not allowed[,] . . . when a
party first raises an issue, it opens the door to
questions in response to that issue and cannot later
object to testimony regarding the subject raised. See
State v. Norman, 331 N.C. 738, 742, 417 S.E.2d 233, 235
(1992).
Middleton v. Russell Group, Ltd., 126 N.C. App. 1, 23-24, 483 S.E.2d 727,
740, disc. review denied, 346 N.C. 548, 488 S.E.2d 805 (1997). Therefore,
because defense counsel opened the door to questions regarding whether and
why Ms. Williams did not leave her children at home with defendant when she
went out, we hold that defendant cannot now argue that the trial court'sallowance for response to such questions was error. Defendant's as
signment
is overruled.
[2]Defendant's second assignment of error is that the trial court
committed plain error by allowing Ms. Williams to testify that defendant
never sought medical assistance or help for the victim and refused to allow
her to do so. Defendant contends that because he invoked his Fifth Amendment
privilege, this portion of Ms. Williams' testimony -- elicited by the State
to prove defendant acted with malice in helping Ms. Williams commit the
crimes --violated his Constitutional right to remain silent. We disagree.
We note that all of the cases cited by defendant in his brief deal with
this issue arising when a prosecutor attempts to compel a defendant, who has
invoked his privilege, to incriminate himself. However, that is not the case
sub judice. Our Supreme Court has long held
that the Fifth Amendment privilege is a personal
privilege: it adheres basically to the person, not to
information that may incriminate him. As Mr. Justice
Holmes put it: “A party is privileged from producing the
evidence but not from its production.” Johnson v. United
States, 228 U.S. 457, 458, 57 L. Ed. 919, . . . (1913).
The Constitution explicitly prohibits compelling an
accused to bear witness “against himself”: it
necessarily does not proscribe incriminating statements
elicited from another. Compulsion upon the person
asserting it is an important element of the privilege,
and “prohibition of compelling a man . . . to be witness
against himself is a prohibition of the use of physical
or moral compulsion to extort communications from him,”
Holt v. United States, 218 U.S. 245, 252-253, . . . 54 L.
Ed. 1021 (1910) (emphasis added). It is extortion of
information from the accused himself that offends our
sense of justice.
The divulgence of potentially incriminating evidence
against [defendant] is naturally unwelcome. But . . .
[t]he basis complaint of [defendant] stems from the fact
of divulgence of the . . . incriminating information, not
from the manner in which or the person from whom it was
extracted. Yet such divulgence, where it did not coerce
the accused h[im]self, is a necessary part of the processof law enforcement . . . .
Lowder v. Mills, Inc., 301 N.C. 561, 585-86, 273 S.E.2d 247, 261 (1981)
(emphasis added) (quoting Couch v. United States, 409 U.S. 322, 328-29, 34 L.
Ed. 2d 548, 554-55 (1973)). Thus, because in the case sub judice, the
evidence sought to incriminate defendant came from Ms. Williams --who did not
invoke her Fifth Amendment privilege -- and not from defendant, defendant's
invocation of his own privilege is irrelevant, being personal to him and not
reaching Ms. Williams. Id. Therefore, it was proper and necessary for the
State to seek to gain the incriminating evidence against defendant from Ms.
Williams.
[3]Defendant's third assignment of error is that the trial court erred
by denying defendant's motion to introduce into evidence a card written to
him by Ms. Williams while the two were in jail awaiting trial. It is
defendant's contention that the card was relevant as to Ms. Williams'
credibility, because although Ms. Williams testified she was afraid of
defendant, the card she sent stated she would always be his friend and
indicated she wanted to have sexual relations with him. We are unpersuaded
by defendant's argument.
The record reflects that the trial court allowed defense counsel and the
State to argue their positions on allowing or disallowing admission of the
evidence. It was defendant's contention that because the card stated Ms.
Williams still loved him, it then went to prove that she must have been lying
and could not also be afraid of him. However, the trial court determined
that the evidence was inadmissible, concluding that “any probative value this
would have is clearly outweighed by the prejudicial, by the prejudicial
effect, so I'm not going to allow it.” The trial court did state that the
defense would be allowed to explore defendant's relationship with Ms.
Williams. Under Rule 403 of the North Carolina Rules of Evidence:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
N.C. Gen. Stat. § 8C-1, Rule 403 (1999). Further, the decision regarding
“[w]hether or not to exclude evidence under Rule 403 is within the discretion
of the trial court and will not be overturned absent an abuse of discretion.”
State v. Underwood, 134 N.C. App. 533, 538, 518 S.E.2d 231, 237 (1999), writ
improvidently allowed, 352 N.C. 669, 535 S.E.2d 33 (2000).
In the case at bar, the record clearly reflects the trial court gave
both the State and defense counsel ample opportunity to argue their positions
on the admissibility of the card. Additionally, defense counsel argued to
introduce the many other cards and letters written by Ms. Williams to
defendant while the two were in jail. Consequently, the trial court allowed
the defense to inquire of Ms. Williams the nature of the writings and the
content, and in fact, the trial court allowed all of the writings to be
admitted into evidence except for the particular card at issue, which
contained lipstick marks and vulgar sexual language. From the record, we do
not believe that excluding the one writing from Ms. Williams to defendant
prejudiced the defendant's opportunity to prove or disprove that Ms. Williams
was afraid of him. Instead, we agree with the State that the card's
“probative value [wa]s lost in [its] lurid nature . . . .” Thus, we find no
abuse of discretion in the trial court's refusal to admit the card into
evidence.
[4]Defendant's final assignment of error is that the trial court erred
in disallowing defense counsel to advise the jury of the maximum sentence
defendant could receive if found guilty. In support of his argument,
defendant cites State v. Walters, 294 N.C. 311, 240 S.E.2d 628 (1978), inwhich our Supreme Court held:
G.S. 84-14 provides, in part: “In jury trials the
whole case as well of law as of fact may be argued to the
jury.” This statute secures to counsel the right to
inform the jury of the punishment prescribed for the
offense for which defendant is being tried. State v.
McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v.
Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). Accord,
State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977).
Counsel may exercise this right by reading the punishment
provisions of the statute to the jury, though he “may not
argue the question of punishment in the sense of
attacking the validity, constitutionality, or propriety
of the [prescribed punishment].” State v. Britt, supra,
[285 N.C.] at 273, 204 S.E.2d at 829. “Nor may counsel
argue to the jury that the law ought to be otherwise,
that the punishment provided thereby is too severe and,
therefore, the jury should find the defendant not guilty
of the offense charged but should find him guilty of a
lesser offense or acquit him entirely.” Id.
Thus the trial court erred in denying defense
counsel the right to inform the jury of the punishment
prescribed by law for second degree murder, voluntary
manslaughter and involuntary manslaughter. . . .
Id. at 313-14, 240 S.E.2d at 630 (emphasis added).
Contrarily, the State argues that Walters , supra, is distinguishable
because in that case, “there was evidence to support a conviction for either
second degree murder, voluntary or involuntary manslaughter.” Thus, it is
the State's contention that because the present defendant was charged with
only two offenses, neither of which contain any lesser included offenses,
defendant “was either guilty of aiding and abetting second degree murder, or
no murder at all. Likewise, he was either guilty of aiding and abetting
robbery with a dangerous weapon, or no robbery at all.”
In our view, it is clear that defendant had a statutory “right to inform
the jury of the punishment prescribed for the offense for which defendant
[wa]s being tried[,]” regardless of what the offenses were or how many of
them there were. Id. at 313, 240 S.E.2d at 630 (emphasis in original). In
this regard, we do not see the difference between Walters and the presentcase. Thus, we hold that the trial court erroneously denie
d defendant the
right to read to the jury the punishment prescribed under the Structured
Sentencing Act for the charged offenses. Nevertheless, we must now decide
whether the error was prejudicial to defendant.
Mere technical error does not entitle defendant to
a new trial. State v. Alexander, 279 N.C. 527, 184
S.E.2d 274 (1971). The burden is on the appellant to
show prejudicial error amounting to the denial of some
substantial right. Kennedy v. James, 252 N.C. 434, 113
S.E.2d 889 (1960). . . .
Id. at 314, 240 S.E.2d at 630 (emphasis added).
In cases where evidence of a defendant's guilt is
overwhelming and the error complained of is insignificant
by comparison, we have held, and rightly so, that such
insignificant error could not have contributed to the
conviction and was therefore harmless. . . .
Id. at 315, 240 S.E.2d at 631.
In the case at bar, the transcript of counsels' arguments to the jury
(and any objections attached thereto) is not included in the record before
this Court. However, the record does reflect Ms. Williams' testimony in
which she plainly asserted that defendant had instructed and encouraged her
to hit the victim over the head and take his money -- for the purpose of
being able to purchase more crack cocaine. Ms. Williams' testimony further
reflected that defendant threatened her with bodily harm if she failed to do
as she was told. Months later, when defendant was arrested on a completely
unrelated charge, defendant told Deputy Sheriff Griffin that he went to the
victim's house with Ms. Williams and that after she went inside “he heard a
loud thumping noise, accompanied by a sound like someone moaning.” This
evidence was substantial in not only placing defendant at the scene of the
crime, but also in corroborating Ms. Williams' testimony that defendant was
aware of and involved in the crime. We, therefore, hold that this “evidence
of [] defendant's guilt [wa]s overwhelming and the error complained of isinsignificant by comparison . . . .” Id. Thus, the
insignificant error,
being harmless, could not have contributed to defendant's conviction. Id.
Quoting our United States Supreme Court, our North Carolina Supreme Court
said it best, “Defendant[] cannot expect the impossible -- a perfect trial.
Lutwak v. United States, 344 U.S. 604, 97 L. Ed. 593, . . . [(1953)]. What
[he is] entitled to expect is a trial that is fair and free from prejudicial
error. This [he] received . . . .” State v. Grant, 19 N.C. App. 401, 414,
199 S.E.2d 14, 23 (1973).
No error.
Judges WALKER and TYSON concur.
*** Converted from WordPerfect ***