Appeal by defendant from judgments entered 29 August 2000 by
Judge Marvin K. Gray in Union County Superior Court. Heard in the
Court of Appeals 10 January 2002.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General W. Wallace Finlator, Jr., for the State.
Bobby Khan for defendant-appellant.
MARTIN, Judge.
Defendant was indicted for robbery with a dangerous weapon,
possession of a firearm by a convicted felon, and being an habitual
felon. He was convicted by a jury and appeals from the judgments
entered upon the verdicts.
Briefly summarized, the evidence at trial tended to show that
an Arby's restaurant was robbed on the evening of 28 November 1999
in Indian Trail, North Carolina. The manager of the restaurant,
Jesse Watts, testified that around 11:00 p.m. he went outside to
his car to retrieve cigarettes, when he saw two men walking nearby.
One man was tall, wore a gray sweatsuit, and had a mole on his
cheek. Although Watts admitted that he never saw the second man's
face, he did see that the second man had long dreadlocks, wore agreen army jacket, and a “Rastafarian” style hat. Watts testified
that the tall man told him to “come here,” and when Watts
approached, the man put him in a headlock and walked him back into
the restaurant. Watts stated that he saw a brief flash of silver
in the hand of the second man, whom he identified as defendant, and
that defendant put the barrel of a gun in his back. Once inside
the restaurant, both men went to the restaurant office, where
Kennitha Hammond was on the phone. Hammond described defendant as
being shorter than the other man, around 5'6" or 5'7", having dark
skin, a goatee, and dreadlocks. She testified that the lighting
inside the restaurant was bright and that she saw defendant from
one foot away. According to Hammond, defendant stuck the handgun
in Hammond's stomach and told her to get on the floor. Hammond
recalled that both men told Watts to open the safe. Money was
stolen from the safe. Watts observed the men leave the store with
an Arby's bag. Before leaving, however, one of them ripped the
phone off the wall.
On 30 November 1999, Hammond met with detectives and picked
defendant's picture out of a photographic line-up. Hammond stated
she was certain defendant was one of the perpetrators.
The State also offered evidence of defendant's alleged
involvement in a separate robbery occurring on 22 November 1999,
for the limited purpose of identifying defendant and for
demonstrating a plan, scheme, system, or design similar to the
crime charged in the instant case. Shirley Gaskins testified that
she had just finished working an evening shift at a Burger Kingrestaurant in Indian Trail, near the Arby's restaurant, when two
men who had been standing outside the restaurant approached her.
Gaskins stated one man was tall and slender, and the other man was
short and had shoulder length dreadlocks. The taller man asked if
she had jumper cables. Gaskins returned to the restaurant and
asked another employee if he had jumper cables. The taller man,
who had followed Gaskins to the door, then announced that they were
going to rob the restaurant. Once inside, he ordered Melissa
Harris, the Burger King assistant manager, to open the safe.
Harris testified that a masked man with a gun ordered her to open
the safe. Harris led him to the safe and handed him the money from
the safe's drawers. She noticed the second perpetrator, who wore
his hair in dreadlocks, pacing in front of the registers after the
gunman received the money. After demanding that the employees and
Jane Gaskins lie down on the floor, the perpetrators left the
restaurant.
Jane Gaskins, Shirley Gaskins' mother, testified that she was
in the Burger King parking lot on the evening of 22 November 1999,
waiting to pick up her daughter at the end of her work shift, and
noticed defendant and the taller man waiting outside the
restaurant. She observed the tall man pull a gun from his jacket
and announce that he was going to rob the restaurant. When Jane
Gaskins attempted to call the police from her cell phone, defendant
walked up to her and grabbed the phone from her hand. Defendant
then ordered Jane Gaskins inside the restaurant, whereupon the two
men completed the robbery. Approximately eight days after theBurger King robbery, Shirley Gaskins identified defendant from a
photographic line-up prepared by the detectives assigned to the
case. Gaskins testified that she saw defendant's face.
After the State had rested its case, the trial court permitted
the State to reopen the evidence to recall Janet Flanner, an
assistant clerk of court, to provide evidence regarding defendant's
prior felony convictions in order to establish defendant's status
as an habitual felon.
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I.
In his first assignment of error, defendant contends the trial
court erred by overruling defendant's objection to the admission of
a prior conviction of assault with a deadly weapon inflicting
serious injury as the underlying felony on the current charge of
possession of a firearm by a felon. Defendant alleges the trial
court's admission of such evidence was unfairly prejudicial. This
argument is without merit.
N.C. Gen. Stat. § 14-415.1, which prohibits the possession of
a firearm by a convicted felon, provides:
When a person is charged under this section,
records of prior convictions
of any offense,
whether in the courts of this State, or in the
courts of any other state or of the United
States, shall be admissible in evidence for
the purpose of proving a violation of this
section. The term “conviction” is defined as a
final judgment in any case in which felony
punishment, or imprisonment for a term
exceeding one year, as the case may be, is
permissible, without regard to the plea
entered or to the sentence imposed. A judgment
of a conviction of the defendant or a plea of
guilty by the defendant to such an offensecertified to a superior court of this State
from the custodian of records of any state or
federal court shall be prima facie evidence of
the facts so certified. (emphasis added).
Thus, evidence of prior convictions of any offense is admissible in
establishing the elements for conviction under G.S. § 14-415.1.
Defendant cites
Old Chief v. United States, 519 U.S. 172, 136
L.Ed.2d 574 (1997) for support of his argument that introduction of
this evidence was unfairly prejudicial. In
Old Chief, the United
States Supreme Court held that although evidence of a prior
conviction for felonious assault with a deadly weapon was relevant
to prove defendant's status as a felon in a prosecution for
possession of a firearm by a felon and assault with a deadly
weapon, under the facts of that case the probative value of such
evidence was substantially outweighed by the danger of unfair
prejudice under Fed. R. Evid. 403.
Id. However, a non-
constitutional decision of the United States Supreme Court does not
control the interpretation of North Carolina's evidence laws by the
courts of this State.
State v. Jackson, 139 N.C. App. 721, 535
S.E.2d 48 (2000) (citations omitted),
rev'd in part on other
grounds, 353 N.C. 495, 546 S.E.2d 570 (2001). Moreover, the facts
in
Old Chief are distinguishable from the facts in the present
case. The defendant in
Old Chief offered to stipulate to his
status as a felon; the trial court declined the stipulation and
permitted the prosecution to offer evidence with respect to
defendant's conviction for felonious assault. Defendant in the
present case made no such offer to stipulate. The trial court didnot abuse its discretion, nor commit error, in overruling
defendant's objection to the admission of this evidence.
II.
Defendant next argues the trial court erred by making remarks
to the jury venire before defendant's case was called for trial
from which, defendant contends, the jurors could infer that the
court had an opinion that defendant was guilty. We reject his
argument.
Defendant did not object to the trial court's remarks, though
his counsel was in the courtroom when they were made. In general,
“failure to object to alleged errors precludes raising those errors
on appeal.”
State v. Faison, 128 N.C. App. 745, 746, 497 S.E.2d
111, 112 (1998) (citation omitted). To preserve a question for
appellate review, “a party must have presented to the trial court
a timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context.” N.C.R. App. P.
10(b)(1). A criminal defendant can nevertheless assign error to a
question not properly preserved for review if the judicial action
amounts to plain error. N.C.R. App. P. 10(c)(4). In order to do
so, however, the defendant must “specifically and distinctly”
contend the error amounted to plain error.
Id. Though defendant
has argued plain error in his brief, he did not assert such in his
assignments of error related to the issue. N.C.R. App. P. 10(a).
Nevertheless, we will consider his argument in our discretion.
N.C.R. App. P. 2.
The trial transcript reflects that prior to the beginning of
jury selection, and before defendant had been brought to the
courtroom, the trial court made remarks to the entire venire
summarizing the history of North Carolina's court system and
briefly explained this State's Structured Sentencing Act. The
trial court noted that under the Act the court is prohibited from
imposing sentences outside statutory guidelines and, as an example,
explained that a defendant with no prior convictions would serve no
jail time for a Class I felony conviction under the sentencing
laws.
Citizens who don't know about this, which
is most of you, complain, can't understand why
the Court doesn't put this particular
individual under the jail, so to speak. Well,
I've just given you the answer. It doesn't
rest with the Court. There's nothing we can
do about it. Call the Legislature. Those are
the people you need to talk to.
The remarks were general in nature and not directed to the
defendant. We fail to see how the trial court's statements could
be interpreted as an expression of opinion with respect to any
aspect of defendant's case or how they could be prejudicial to a
fair determination of his guilt or innocence of the charges.
Defendant has not carried his burden of showing that the trial
court erred, or that such an error had a probable effect on the
jury's verdict.
See State v. Najewicz, 112 N.C. App. 280, 294, 436
S.E.2d 132, 141 (1993),
disc. review denied, 335 N.C. 563, 441
S.E.2d 130 (1994) (defendant has burden of showing (1) error, and
(2) without the error, jury would probably have reached a different
result). Defendant's assignments of error are overruled.
III.
Defendant next alleges the trial court erred by permitting the
introduction of other crimes allegedly committed by defendant.
Evidence of other crimes or acts is inadmissible for the purpose of
showing the character of the accused or for showing his propensity
to act in conformity with a prior act. N.C. Gen. Stat. § 8C-1,
Rule 404(b). Such evidence, however, may be admissible for other
purposes, such as “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment, or accident.”
Id. The use of evidence under Rule
404(b) is guided by two constraints: “similarity and temporal
proximity.”
State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481
(1989),
vacated on other grounds, 494 U.S. 1023, 108 L.Ed.2d 604
(1990).
When the features of the earlier act are
dissimilar from those of the offense with
which the defendant is currently charged, such
evidence lacks probative value. When
otherwise similar offenses are distanced by
significant stretches of time, commonalities
become less striking, and the probative value
of the analogy attaches less to the acts than
to the character of the actor.
Id. The similarities between the crime charged and the prior act
need not “'rise to the level of the unique and bizarre'” in order
to be admissible.
State v. Stager, 329 N.C. 278, 304, 406 S.E.2d
876, 891 (1991) (citation omitted). Finally, the North Carolina
Supreme Court has held that Rule 404(b) is a rule of inclusion.
State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000) (citation
omitted). In the present case, the State offered the testimony ofseveral witnesses to a second restaurant robbery which occurred six
days earlier at a Burger King located adjacent to the Arby's
restaurant in Indian Trail. The trial court permitted this
evidence to show the identity of defendant and to demonstrate a
plan, scheme, system, or design similar to the crime charged.
Shirley Gaskins, an employee at Burger King, testified that she saw
defendant and described his appearance. Like Kennitha Hammond, she
was able to identify defendant from a photographic lineup. The
robberies occurred six days apart at adjacent fast food restaurants
in the town of Indian Trail; the crimes took place at the end of
the day when the restaurants were closed, and both were robbed by
what witnesses described as a tall man and a man with dreadlocks.
The perpetrator with dreadlocks brandished a handgun in both
robberies, and in both robberies the employees were ordered to lie
down on the floor. Finally, on both occasions the men demanded
that an employee open the restaurant safe, whereupon they stole
money. The evidence was properly admitted under Rule 404(b) for
the limited purposes for which it was offered.
IV.
Defendant next contends the trial court erred in denying his
motion to suppress the photographic line-up. Identification
evidence “must be suppressed on due process grounds where the facts
show that the pretrial identification procedure was so suggestive
as to create a very substantial likelihood of irreparable
misidentification.”
State v. Powell, 321 N.C. 364, 368-69, 346
S.E.2d 332, 335,
cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60(1988) (citation omitted). Two inquiries must be made when
determining whether to suppress identification testimony: (1)
“whether an impermissibly suggestive procedure was used in
obtaining the out-of-court identification,” and if so, (2)
“whether, under all the circumstances, the suggestive procedures
employed gave rise to a substantial likelihood of irreparable
misidentification.”
State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d
148, 151 (1984) (citation omitted). The Supreme Court noted
several factors to be considered in making this determination:
(1) the opportunity of the witness to view the
criminal at the time of the crime, (2) the
witness' degree of attention, (3) the accuracy
of the witness' prior description of the
criminal, (4) the level of certainty
demonstrated at the confrontation (5) the time
between the crime and confrontation.
State v. Powell, 321 N.C. at 369, 346 S.E.2d at 335
(citations
omitted).
In the present case
, Kennitha Hammond testified that the
perpetrator, whom she later identified as defendant, was five feet
six or five feet seven inches tall, wore a green army jacket, a
Rastafarian-style hat, and gloves. She also stated that he had a
goatee, dark skin, and wore his hair in dreadlocks. She also said
that the lighting in the restaurant was bright and that she
observed the person from one foot away. She testified that the
person pointed a gun at her stomach and ordered her to get on the
floor. On 30 November 1999, two days after the robbery, Hammond
picked out defendant's photograph from a photographic lineup
prepared by detectives assigned to the investigation. Thephotographic lineup contained photographs of six African-American
men. On cross examination, Hammond admitted that four of the men
in the photographic line-up wore dreadlocks, and that two of the
men wore plats or braids. Nevertheless, Hammond stated that she
recognized defendant as soon as she looked at the photographic
line-up, and that she was very certain defendant was one of the men
who robbed the restaurant. Under these facts, the photographic
lineup was not so suggestive as to give rise to the likelihood of
a misidentification.
Powell, 321 N.C. 364, 346 S.E.2d 332.
Defendant's assignments of error are overruled.
V.
Defendant next argues the trial court committed prejudicial
error in permitting a detective involved in the case to testify
that he obtained pictures for the photographic line-up from “jail
files.” An error “is not prejudicial unless a different result
would have been reached at the trial if the error in question had
not been committed.”
State v. Smith, 87 N.C. App. 217, 222, 360
S.E.2d 495, 498 (1987) (citing N.C. Gen. Stat. § 15A-1443),
disc.
review denied, 321 N.C. 478, 364 S.E.2d 667 (1988). Defendant
objects to Detective Tony Rushing's answer to the State's question
regarding the photographic line-up:
Q. Do you know why there are no people in
that lineup that have characteristics such as
gross obesity, elderly, advanced age, facial
scarring, or tattoos, or prominent jewelry
such as gold teeth or earrings?
A. That would not have been consistent with
the information that I had received from the
witnesses. As far as jewelry or anything,
most of these photos we get in our file,there's _ none of those photos have jewelry,
would have any jewelry on.
They come from our
jail files. (emphasis added).
Defendant argues he was prejudiced by this statement because it
made the jury aware that defendant had an existing criminal record.
However, defendant had been indicted not only for robbery with a
dangerous weapon, but also for the possession of a firearm by a
convicted felon. The jury in this case, therefore, was already
aware that defendant was being charged with a crime the elements of
which included a prior felony conviction. Moreover, in view of the
testimony of Kennitha Hammond, who identified defendant as the man
who pointed a gun at her, there is no reasonable possibility that
a different verdict would have been reached even had Detective
Rushing not mentioned that the photographs had come from “jail
files.”
VI.
Defendant next assigns error to the denial of his objection to
joinder and his motion to sever the robbery with a dangerous weapon
offense from the possession of a firearm by a felon charge. We
find no abuse of discretion.
Criminal charges may be joined for trial when the offenses are
based on “the same act or transaction or on a series of acts or
transactions connected together or constituting parts of a single
scheme or plan.” N.C. Gen. Stat. § 15A-926(a). The decision to
join offenses is within the discretion of the trial court.
State
v. Perry, 142 N.C. App. 177, 541 S.E.2d 746 (2001) (citation
omitted). If the offenses have a transactional connection, thetrial court must decide “'whether the accused can receive a fair
hearing on more than one charge at the same trial.'”
Id. at 180-
81, 541 S.E.2d at 748-49 (2001) (citations omitted).
In the present case, the trial court permitted the State to
consolidate two charges against defendant in a single trial:
robbery with a dangerous weapon and possession of a firearm by a
felon. The State presented evidence that defendant pled guilty to
assault with a deadly weapon inflicting serious injury on 15 May
1996 as part of its case against defendant regarding the charge of
possession of a firearm by a convicted felon. Defendant alleges
that this evidence was unfairly prejudicial, and that there existed
a reasonable possibility that a different result would have been
reached regarding the robbery charge had the trial court severed
the two charges and permitted separate trials. This argument has
no merit. First, the underlying felony which served to establish
an element of the possession of a firearm by a felon charge was an
assault with a tire tool, not a firearm, which was the weapon
employed by defendant in the Arby's armed robbery. Second,
substantial evidence was presented establishing defendant's guilt
of the robbery with a dangerous weapon charge, including Ms.
Hammond's testimony that she was able to see defendant from one
foot away in a brightly lit restaurant, and that she was “certain”
defendant was the individual who pointed a gun at her stomach and
ordered her to get on the floor. On this record we cannot say that
the joinder of the two offenses, both arising out of the sametransaction and involving the same evidence, prejudiced defendant's
ability to receive a fair trial as to either of them.
VII.
Defendant next assigns error to the admission of alleged
hearsay statements. Defendant objects to the admission of certain
out-of-court statements attributed to a non-testifying co-
conspirator, in spite of Rule 801(d)(E), which explicitly permits
the introduction into evidence of statements made by a co-
conspirator “during the course and in furtherance of the
conspiracy.” N.C. Gen. Stat. § 8C-1, Rule
801(d)(E). Moreover,
most of the allegedly inadmissible statements were made during the
voir dire testimony of Kennitha Hammond and were not presented to
the jury. The only hearsay statement to which defendant assigns
error, which was offered in evidence before the jury, involved the
eye-witness testimony of Jane Gaskins, who observed two men rob the
Burger King on the evening of 22 November 1999. Ms. Gaskins
testified:
Q. All right. What happened next?
A. And they asked her if she had any jumper
cables.
MR. KHAN: Objection to “they.”
THE COURT: The objection is sustained as to
“they.”
After the trial court sustained defendant's objection, the State
clarified its question, asking the witness which of the two men
requested jumper cables outside the restaurant; the witness
answered: “[t]he man without the dreadlocks . . . .” This
statement was admissible as an exception to the general prohibitionagainst hearsay evidence.
N.C. Gen. Stat. § 8C-1, Rule
801(d)(E).
VIII.
Defendant also contends the trial court abused its discretion
by denying his motion to dismiss the habitual felon charge and
allowing the State to reopen its case so as to introduce the
requisite third felony conviction. It is well established that
“[t]he trial court has discretionary power to permit the
introduction of additional evidence after a party has rested.”
State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982)
(citing
State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980);
State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978);
State v.
Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961)). Indeed, the trial
judge “in his discretion may permit any party to introduce
additional evidence at any time prior to verdict.” N.C. Gen. Stat.
§ 15A-1226(b). No abuse of discretion appears from the record in
the present case and defendant's assignment of error to the
contrary is overruled.
IX.
We have carefully reviewed defendant's assignments of error
regarding allegedly improper testimony by various State's witnesses
and find no merit in any of those assignments. They are overruled.
Defendant has offered no argument in support of the remaining
assignments of error contained in the record and they are deemed
abandoned. N.C.R. App. P. 28(b)(5). Even so, none of the errors
asserted afford defendant any grounds for relief from the verdictsor the judgments entered. Defendant received a fair trial, free
from prejudicial error.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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