STATE OF NORTH CAROLINA
v. Wake County
Nos. 00 CRS 1981-84
EARL CHARLES DURHAM
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant
appellant.
TIMMONS-GOODSON, Judge.
On 3 May 2000, a jury found Earl Charles Durham ("defendant")
guilty of one count of robbery with a dangerous weapon and three
counts of attempted robbery with a dangerous weapon. At trial, the
State presented evidence tending to show that shortly after
midnight on 9 January 2000, teenagers Christopher Robinson, Joshua
Miller, Gina Esposito and Jason Wiggs walked out of the Carmike
Cinema in Raleigh to their parked vehicle. As they entered the
vehicle, a black, 1980's model Nissan automobile with a green and
white bumper sticker on the left bumper appeared, blocking the
teenagers' vehicle. Three of the Nissan's four occupants exited
the automobile. One man, armed with a gun, walked to the driver's
side of the teenagers' vehicle, while a second man, also holding agun, walked to the passenger side. The third man remained behind
the teenagers' vehicle. The three men wore toboggans with eye and
mouth holes and/or bandannas over their faces. The two men armed
with guns ordered the teenagers to empty their pockets and hand
over their valuables. The teenagers complied. The perpetrator on
the passenger side seized two cases of compact discs from the
vehicle. The three men returned to their vehicle and departed.
The victims called the police by cellular telephone.
Shortly thereafter, approximately five miles from the Carmike
Cinema, police officers stopped a vehicle similar to the
description given by the victims. Four persons, later identified
as Solomon Saitch, Denny Allebo, Beau Ballard, and Earl Charles
Durham, occupied the stopped vehicle. The victims identified the
occupants of the vehicle as the robbers. The victims also
identified compact discs and cases, a watch, pager, and currency
found in the vehicle as items taken from them. In addition, the
police discovered several ski masks, bandannas and a pistol
concealed behind a seat in the vehicle.
Beau Ballard ("Ballard") testified for the State that he,
defendant, Solomon Saitch ("Saitch") and D.D. Allebo ("Allebo")
were seated in a vehicle parked outside the theater when the four
victims exited the theater and walked to a car. Defendant asked
the others if they “wanted to get them[,]” meaning rob the
teenagers. Earlier that evening, defendant had stated that he
needed money to repair his automobile. Ballard handed defendant a
gun, and he, defendant, and Saitch pulled toboggans over theirheads and approached the victims' vehicle. Allebo remained in the
automobile. Defendant walked to the passenger side of the vehicle,
while Saitch approached the driver's side. Ballard remained behind
the teenagers' vehicle and served as a lookout while defendant and
Saitch robbed the victims. The three men then returned to their
automobile. Defendant distributed among them the compact discs he
took from the victims' vehicle.
Defendant's wife testified for defendant that she and her
husband were gainfully employed and that defendant had no reason to
rob anyone to obtain money to repair his vehicle. Upon receiving
the jury's guilty verdict, the trial court sentenced defendant to
imprisonment for a minimum term of 146 months and a maximum term of
185 months. Defendant now appeals to this Court.
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Defendant submits two assignments of error, contending (1)
that the trial court erred in its instructions to the jury, and (2)
that the trial court committed plain error in allowing certain
testimony. For the reasons set forth herein, we conclude the trial
court committed no reversible error.
Defendant assigns error to the court's refusal to submit two
requested jury instructions. First, he contends the court erred by
refusing to submit the following North Carolina Pattern Jury
Instruction number 104.90:
I instruct you that the State has the burden
of proving the identity of the defendant as
the perpetrator of the crime charged beyond a
reasonable doubt. This means that you, the
jury, must be satisfied beyond a reasonable
doubt that the defendant was the perpetratorof the crime charged before you may return a
verdict of guilty.
N.C.P.I.-- Crim. 104.90 (1989). Defendant argues the court should
have given the above-stated instruction because “a substantial
factual dispute regarding the identification of the perpetrator
arises from the presentation of the evidence.” We disagree.
The trial court has the duty to instruct the jury on all
substantial features of a case raised by the evidence. See State
v. Ferrell, 300 N.C. 157, 163, 265 S.E.2d 210, 214 (1980). When
the identification of the perpetrator is at issue, the court should
give an instruction on identification. See State v. Shaw, 322 N.C.
797, 803, 370 S.E.2d 546, 549 (1988). The failure to submit the
instruction will not constitute prejudicial error, however, if the
court repeatedly informs the jury during its charge that the jury
must find beyond a reasonable doubt that the defendant perpetrated
the charged offense, or if the evidence of the defendant's guilt is
strong and essentially uncontradicted. See id. at 804-05, 370
S.E.2d at 550-51.
Assuming, arguendo, that the court erred by refusing to submit
the instruction in the case at bar, we conclude that the error was
not prejudicial. The trial judge repeatedly instructed the jury
that in order for the jury to find defendant guilty of each
offense, it had to find beyond a reasonable doubt that “the
defendant, Earl Durham, or someone he was acting in concert with”
committed the various elements of the offenses. Moreover, the
State presented uncontradicted eyewitness testimony that defendant
was one of the three men who approached the victims' vehicle. There is no evidence that defendant remained seated in the robbers'
vehicle during the course of the robberies or was otherwise merely
present at the scene.
Second, defendant contends that the trial court erred by
refusing to instruct the jury that the absence of motive is equally
a circumstance to be considered on the side of innocence.
Defendant acknowledges that our Supreme Court has held that the
failure to give the foregoing instruction is not prejudicial error
when the court has instructed that the absence of motive is a
factor to be considered in determining guilt or innocence, as the
trial court did in the present case. See State v. Hales, 344 N.C.
419, 423, 474 S.E.2d 328, 330 (1996). Defendant nevertheless
argues that the Supreme Court incorrectly decided this issue. We
do not address defendant's argument because we are bound by the
Supreme Court's decision. See State v. Parker, 140 N.C. App. 169,
172, 539 S.E.2d 656, 659 (2000), disc. review denied, 353 N.C. 394,
547 S.E.2d 37, cert. denied, U.S. , 149 L. Ed. 2d 777
(2001). We therefore overrule defendant's first assignment of
error.
Defendant's remaining contention is that the court committed
plain error by allowing an officer to testify that the bandannas
worn by the robbers were identified to him as “crypts” bandannas.
Defendant argues that there is no evidence that the victims
identified the bandannas as “crypts” bandannas, and further, that
such evidence was prejudicial because it associated defendant with
the Crips gang. Plain error in the admission of evidence may be found only in
the exceptional case where the evidence had a probable impact on
the jury's verdict. See State v. Black, 308 N.C. 736, 740-41, 303
S.E.2d 804, 806-07 (1983). Given the strong evidence against
defendant, we are unable to conclude that this testimony caused the
jury to find defendant guilty. We therefore overrule defendant's
second assignment of error.
In conclusion, we hold defendant received a fair trial, free
of prejudicial error.
No error.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).
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