STATE OF NORTH CAROLINA
v
.
RESHAUD AMONDO BROWN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General M. A. Kelly Chambers, for the State.
Mark E. Hayes for defendant-appellant.
HUNTER, Judge.
Reshaud Amondo Brown (“defendant”) appeals from a judgment
entered against him on the charge of robbery with a dangerous
weapon. On appeal, defendant argues that the trial court erred in
sustaining the State's objections to questions asked by defendant
during his cross-examination of one of the eyewitnesses to the
robbery. Defendant also argues that the trial court erred in
permitting an assistant district attorney to testify at trial. We
find no prejudicial error in defendant's trial.
The evidence at trial tended to show that on 29 September
1999, defendant was driving a car containing four other
individuals, including Ibn Hasan (“Hasan”) and Michael Jarrell
(“Jarrell”). Defendant followed a car with a “Pizza Hut” delivery
sign into an apartment complex. Jarrell left the car intending torob the Pizza Hut delivery employee, Everett Alston (“Alston”), but
stopped and returned to the car when he realized he knew Alston.
Defendant then proceeded to exit the car and rob Alston using a gun
and wearing a ski mask and gloves. All five individuals were
arrested and charged with robbery with a dangerous weapon. Jarrell
agreed to testify as to the events of the robbery in exchange for
not being tried as an adult, and the other three individuals who
had been in the car, including Hasan, each agreed to testify as to
the events of the robbery in exchange for having the charges
against them dropped. At defendant's trial, Jarrell, Hasan, and
the other two eyewitnesses each testified that defendant committed
the robbery. Alston testified as to the approximate size and
weight of the person who had robbed him. Also, Frank Chut
(“Chut”), an assistant district attorney, testified as to the
concessions that Jarrell and Hasan had received in exchange for
agreeing to testify about the robbery.
We first note that defendant contends on appeal that the two
evidentiary rulings by the trial court, to which defendant has
assigned error, violated various constitutional rights of
defendant. However, defendant's objections and arguments at trial
were not based upon constitutional grounds, and the trial court's
rulings on defendant's objections were, likewise, not made on
constitutional grounds. It is well-established that constitutional
issues not raised or passed upon at trial will not be considered
for the first time on appeal. See, e.g., State v. Anthony, ___
N.C. ___, ___, 555 S.E.2d 557, 571 (2001). Therefore, we declineto review the constitutional components of defendant's arguments,
and we limit our review to a consideration of the grounds upon
which the objections, and the trial court's rulings, were actually
based.
Defendant first argues that the trial court erred in
sustaining the State's objections to certain questions asked by
defendant during his cross-examination of Hasan. A review of the
record indicates that, on direct examination, Hasan testified that
defendant committed the robbery of Alston, and he further testified
that he has no reason to lie about who committed the robbery. On
cross-examination, defendant asked Hasan whether he had lied to a
particular detective about a separate robbery incident involving a
business called “the Sonic.” Before the State was able to object
to this question, Hasan stated, “[o]h, yeah. I remember lying to
him.” The State then objected on the grounds of relevancy.
The trial court removed the jury and conducted a hearing,
during which defendant specifically argued that he wished to
question Hasan regarding lies he told to a detective about “the
Sonic robbery” for the purpose of impeaching Hasan's credibility.
The trial court sustained the State's objection, stating:
The Sonic robbery is wholly collateral to
the present case and is not intermingled or
inextricably intertwined in this case.
The investigative details of the so-called
Sonic robbery being wholly collateral to the
case at bar are not relevant to the present
prosecution.
Even if there be some marginal relevance on
the issue of impeachment, the probative value
of such evidence is substantially outweighedby the very distinct and present danger of
confusion of the issues by the jury and by the
danger of misleading the jury and should be
thus excluded under Rule 403.
On appeal, defendant argues that he should have been permitted to
question Hasan about the details of the Sonic robbery itself
because such questioning would have revealed a reason for Hasan to
be biased against defendant. As with defendant's constitutional
arguments, defendant did not, in fact, argue the issue of bias to
the court at trial. Thus, we address only the issue of whether
defendant should have been permitted to question Hasan regarding
his lying to a detective about a separate robbery for purposes of
establishing Hasan's character for truthfulness.
Rule 608(b) of the North Carolina Rules of Evidence provides:
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however, in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on
cross-examination of the witness (1)
concerning his character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.
N.C. Gen. Stat. § 8C-1, Rule 608(b) (1999). In order to be
admissible under this Rule, evidence of specific instances of
conduct offered for impeachment purposes must satisfy four basic
prerequisites: (1) the purpose of producing the evidence must be
to impeach or enhance the witness' credibility by proving that the
witness' conduct indicates his character for truthfulness oruntruthfulness; (2) the conduct in question must be both probative
of truthfulness or untruthfulness, and not too remote in time; (3)
the conduct in question must be conduct that did not result in a
conviction; and (4) the inquiry into the conduct must take place
during cross-examination. State v. Morgan, 315 N.C. 626, 634, 340
S.E.2d 84, 89-90 (1986).
If the proffered evidence meets these four
enumerated prerequisites, before admitting the
evidence the trial judge must determine, in
his discretion, pursuant to Rule 403, that the
probative value of the evidence is not
outweighed by the risk of unfair prejudice,
confusion of issues, or misleading the jury,
and that the questioning will not harass or
unduly embarrass the witness.
Id. at 634, 340 S.E.2d at 90. Rule 403 states: “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).
Here, defendant sought to inquire as to whether an eyewitness
to the robbery had, on a prior occasion, lied to police officers
about his involvement in a separate robbery. Evidence of such
conduct would, of course, tend to establish a witness' character
for untruthfulness. The trial court nevertheless excluded the
evidence under Rule 403. It is not clear how testimony by Hasan as
to whether he lied to police officers about a separate robberycould have resulted in confusion of the issues or misleading the
jury.
However, even assuming arguendo that the trial court erred in
excluding the testimony, we conclude that defendant has not met his
burden of showing that there is a reasonable possibility that, had
the error not been committed, a different result would have been
reached at trial. See N.C. Gen. Stat. § 15A-1443(a) (1999). Even
if defendant had been permitted to question Hasan regarding his
lying to the police about the Sonic robbery, and even if defendant
had been successful in establishing Hasan's character for
untruthfulness, the State's evidence against defendant, including
eyewitness testimony by three other individuals that defendant
committed the robbery of Alston, was overwhelming. Thus, defendant
has failed to show that any error in excluding the testimony in
question prejudiced defendant.
Defendant's second and final assignment of error involves the
testimony of Chut, an assistant district attorney, who was
permitted to testify for the State over defendant's objection.
During a hearing to address defendant's objection, the State argued
that it sought Chut's testimony in order to clarify the details of
the inducements that were offered to two of the eyewitnesses, Hasan
and Jarrell, in order to secure their testimony regarding the
robbery. Defendant argues that Chut should not have been permitted
to testify because his testimony would violate Rule 3.7 of the
North Carolina Revised Rules of Professional Conduct, and because
his testimony would prejudice the jury against defendant byunfairly bolstering the credibility of the testimony of the
eyewitnesses in the eyes of the jury.
A trial court's decision to permit a witness to testify is not
reviewable on appeal in the absence of an abuse of discretion, see
State v. Britt, 291 N.C. 528, 534, 231 S.E.2d 644, 649 (1977), and
we are not persuaded that the trial court abused its discretion in
admitting Chut's testimony. However, even assuming arguendo that
the trial court's determination to allow Chut to testify
constituted error, defendant has not met his burden of showing that
there is a reasonable possibility that, had such error not been
committed, a different result would have been reached at trial.
N.C. Gen. Stat. § 15A-1443(a). Chut testified as to the details
of the concessions provided to Jarrell and Hasan by the district
attorney's office in return for their agreeing to testify
truthfully about the robbery of Alston. Following the State's
direct examination, defendant cross-examined Chut and elicited from
Chut an express acknowledgement that he was not present at the time
of the robbery and that he does not have any first-hand knowledge
as to what actually occurred at the time of the robbery. Thus, any
possibility that Chut's testimony might serve to bolster the
testimony of the eyewitnesses was successfully thwarted by
defendant. Considering also the overwhelming evidence against
defendant, we are not persuaded that Chut's testimony prejudiced
defendant.
For the foregoing reasons, we find no prejudicial error in
defendant's trial. No error.
Judges McGEE and BRYANT concur.
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