STATE OF NORTH CAROLINA
v. Lincoln County
No. 96 CRS 3813
REBECCA BARNETTE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
Jerry M. Trammell, for defendant-appellant.
HUDSON, Judge.
Defendant was found guilty of robbery with a dangerous weapon
and was sentenced on 16 March 1998 to imprisonment for a minimum
term of 48 months and a maximum term of 67 months. Her petition
for a writ of certiorari was allowed by this Court on 17 November
2000.
The State presented evidence tending to show that at
approximately 3:30 a.m. on 7 October 1995, two men wearing masks
and camouflage clothing, and armed with a pistol and shotgun
entered the Gasland USA Number Two convenience store located near
a drugstore and ordered the attendant to give them all of the money
in the cash register. The attendant removed all of the money from
the register, placed it in a bag, and handed the bag to one of themen. The men then exited the store.
Defendant subsequently gave a statement on 11 July 1996 to
Investigator Jerry Hallman of the Lincolnton Police Department in
which she indicated that on 7 October 1995 she accompanied her
future husband, Claude Barnette, Jr. (Claude), and Tracy Keeler
(Keeler) to a Gasland convenience store in Lincolnton and waited
outside in their vehicle while Keeler and Claude, wearing masks and
camouflage clothing, and armed with a shotgun and pistol, went into
the store and robbed it. The men ran out of the convenience store
and got into the car, which was parked outside the drugstore next
to the convenience store. She drove them home to Cherryville.
Claude gave her $40 in cash, gave some money to Keeler and Keeler's
girlfriend, and placed the remainder in their safe.
During her testimony, defendant denied driving a vehicle to
the convenience store so that Keeler and Claude could commit a
robbery. She testified that she gave the inculpatory statement to
retaliate against her husband, who had made her angry.
We first reach defendant's assignment of error by which she
contends the trial court erred in denying her motion to dismiss the
charge at the close of the State's evidence. She argues the
evidence fails to show that she perpetrated the robberies or aided
and abetted the actual perpetrators.
By presenting evidence, defendant waived her motion to dismiss
made at the close of the State's evidence and, thus, she is
prohibited from challenging the denial of that motion on appeal.
See State v. Stocks, 319 N.C. 437, 438, 355 S.E.2d 492, 493 (1987). She has not presented an assignment of error regarding the denial
of her motion to dismiss made at the conclusion of the evidence.
Therefore, the issue of the sufficiency of the evidence is not
properly presented for review.
Notwithstanding defendant's failure to preserve this
assignment, pursuant to Rule 2 of the North Carolina Rules of
Appellate Procedure (1999), we waive the strict requirements of the
rules and consider the issue. In deciding a motion to dismiss, the
court must examine the evidence in the light most favorable to the
State and give the State the benefit of every reasonable inference
that may be drawn from the evidence. See State v. Benson, 331 N.C.
537, 544, 417 S.E.2d 756, 761 (1992). The court must disregard
contradictions and discrepancies in the evidence, leaving them for
jury resolution. See id. The test is the same whether the
evidence is direct, circumstantial, or both. See State v.
Earnhardt, 307 N.C. 62, 68, 296 S.E.2d 649, 653 (1982). If the
evidence supports a reasonable inference of guilt, then the court
must deny the motion and allow the jurors to determine whether the
evidence satisfies them beyond a reasonable doubt of the
defendant's guilt. See State v. Jones, 303 N.C. 500, 504, 279
S.E.2d 835, 838 (1981).
A person is guilty of a crime by aiding and abetting if: “(1)
[] the crime was committed by another; (2) [] the defendant
knowingly advised, instigated, encouraged, procured, or aided the
other person; and (3) [] the defendant's actions or statements
caused or contributed to the commission of the crime by the otherperson.” State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175
(1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997).
The defendant “must aid or actively encourage the person committing
the crime” or communicate to the perpetrator his intent to assist.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999). The
defendant's intent to aid “may be inferred from [the defendant's]
actions and from his relation to the actual perpetrators.” Id.
The evidence in this case shows that defendant accompanied her
husband and their housemate, Keeler, to the convenience store,
knowing that they planned to rob the store; that she waited in the
vehicle while the two men robbed the store; that she transported
the robbers away from the scene; and that she shared in the
proceeds of the robbery. Based upon the foregoing evidence, a jury
could reasonably find defendant guilty of the crime as an aider and
abettor. The court therefore properly denied the motion to
dismiss.
Defendant's remaining contention is that the court erred by
permitting the State to impeach its own witness through examining
the witness by the use of leading questions regarding prior
statements made by the witness to the prosecutor. During direct
examination of the witness, the following colloquy occurred:
Q. Did you have an occasion to talk to
Rebecca Barnette about the robbery at the
Gasland Number Two, on October the 7th, 1995?
A. No, not really.
Q. Did she ever tell you anything about the
robbery at Gasland on October the 7th, 1995?
A. Not really.
Q. When you say, “not really”, what do you mean?
A. She never come right out and told me, no. Q. Did you discuss the robbery at the Gasland
on October the 7th, 1995, with her?
A. I asked her about it one time.
Q. Where was you when you asked her about it?
A. I can't remember.
Q. Why did you have an occasion to ask her
about it?
A. I was told about it.
Q. By who?
A. Tracy Keeler.
. . .
Q. Well, what did you ask Ms. Barnette about
the robbery, if anything?
A. I can't remember exact words.
Q. Well, as best you can recall, what did you
ask her or tell her?
A. If they did it.
Q. And when you say -- you asked if they did
it --
...
Q. -- what were you referring to?
A. The robbery.
Q. And what was her response?
...
A. I can't remember.
Q. Ma'am, do you recall meeting with me last
week?
A. (Witness nodding head up and down.)
Q. Did you have any difficulty remembering
what was said in that meeting? Now, I'll ask
you again, Ms. Pruitt, what was her response
when you asked her about the robbery at
Gasland Number Two on October the 7th, 1995?
MR. PHILLIPS: OBJECTION. Asked and answered.
THE COURT: OVERRULED.
A. She just -- she didn't come right out and
say that they did it.
Q. Tell me what she said.
A. I can't remember.
...
Q. Do you recall telling me that when you
were talking about the robbery with Ms.
Barnette, she indicated that she didn't want
to do it? Do you remember saying that? You
need to say yes or no.
A. Yes.
Q. Did she tell you she was afraid of her
husband if she did not go along with the
robbery?
MR. PHILLIPS: OBJECTION.
THE WITNESS: Yes.
... THE COURT: OVERRULED.
Q. Do you remember telling me that the men
got out of the car?
MR. PHILLIPS: OBJECTION
THE COURT: Wait a minute. Do you remember her
telling you that she told her that?
MR. SHAFFER: Yes, sir.
THE COURT: OVERRULED.
THE WITNESS: Yes.
Q. Do you remember telling me that she told
you her husband had a shotgun?
MR. PHILLIPS: OBJECTION
THE COURT: OVERRULED.
THE WITNESS: Uh-huh. (Affirmative)
Q. Do you remember telling me that she said
she thought about leaving?
MR. PHILLIPS: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: Yes.
Q. And do you remember telling me -- that she
told you the men returned to the car and she
drove off?
MR. PHILLIPS: OBJECTION.
THE COURT: OVERRULED.
THE WITNESS: Yes.
Defendant argues the prosecutor was bound by the witness' testimony
that she could not remember the contents of her conversation with
defendant.
As defendant acknowledges in her brief, a party may impeach
its own witness under our Rules of Evidence. See N.C. Gen. Stat.
§ 8C-1, Rule 607 (1999). Even before the adoption of the rules,
counsel could “refresh the recollection” of a hesitant, evasive, or
unwilling witness by calling the witness' attention to prior
inconsistent statements of the witness. See 1 Brandis & Broun on
North Carolina Evidence, § 152 (5th ed. 1998). A prosecutor could
impeach his own witness when he is “surprised by a witness whose
testimony in court was contrary to what he had a right to expect.”
State v. Anderson, 283 N.C. 218, 225, 195 S.E.2d 561, 566 (1973). In this situation the examiner could ask leading questions to
refresh the memory of the witness. See State v. Greene, 285 N.C.
482, 492, 206 S.E.2d 229, 236 (1974). It is settled that the
decision to allow leading questions is within the discretion of the
trial judge. See State v. Marlow, 334 N.C. 273, 286-87, 432 S.E.2d
275, 282-83 (1993). We find no abuse of discretion in the case at
bar. This assignment of error is overruled.
No error.
Judges GREENE and TYSON concur.
Report per Rule 30(e).
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