STATE OF NORTH CAROLINA
v
.
Rockingham County
Nos. 99CRS003782-003787
DARRELL ANTHONY HERBIN, JR.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Rudy E. Renfer, for the State.
Dow M. Spaulding and Christopher T. Watkins, for defendant-
appellant.
HUNTER, Judge.
Darrell Anthony Herbin, Jr. (“defendant”) appeals convictions
for first degree burglary and five counts of robbery with a
dangerous weapon. Defendant argues on appeal that the trial court
erred in admitting the out-of-court statement of an unavailable
witness, and that he received ineffective assistance of counsel.
We find no error.
The State's evidence tended to show that in the early hours of
28 September 1998, four of the victims were playing video games ata residence in Eden, North Carolina. At approximately 1:00 a.m.,
four masked men armed with several firearms forced their way into
the residence and robbed the victims at gunpoint. During the
robbery, a fifth victim, Wayne Clark, arrived at the residence in
a van. Three of the gunmen came out of the residence, ordered
Clark to lie on the ground, searched his pockets, and stole the
keys to his vehicle.
In January 1999, defendant was interviewed by detectives
regarding the robbery, and after waiving his constitutional rights,
he confessed to being one of the gunmen. Defendant was indicted on
5 April 1999 for first degree burglary and five counts of robbery
with a dangerous weapon. On 24 August 1999, the State filed a
Written Notice of Intent to Offer Hearsay Evidence in which the
State gave notice to defendant that it would be offering the out-
of-court statement of Wayne Clark in the event that the court would
declare Clark an unavailable witness under N.C. Gen. Stat. § 8C-1,
Rules 803 and 804 (2001). The State provided defendant with the
substance of Clark's statement which it intended to use.
Defendant's trial commenced on 25 August 1999, and on 26 August
1999 the jury returned guilty verdicts on all counts. The trial
court entered judgment thereon, sentencing defendant to a minimum
of 80 months and maximum of 105 months in prison for each count.
Defendant appeals. Defendant brings forth two arguments on appeal. First, he
argues that the trial court erred in allowing the State to
introduce Clark's out-of-court statement under N.C. Gen. Stat. §
8C-1, Rule 804. In the statement, Clark described being robbed and
confirmed that the gunmen stole his car keys. Under Rule 804, a
State may introduce hearsay statements of an unavailable declarant.
A declarant may be deemed unavailable for various reasons,
including that he “[i]s absent from the hearing and the proponent
of his statement has been unable to procure his attendance.” N.C.
Gen. Stat. § 8C-1, Rule 804(a)(5). The out-of court statement of
an unavailable declarant may be admissible though hearsay where
various criteria are met, including that the statement has
circumstantial guarantees of trustworthiness. State v. Isenberg,
148 N.C. App. 29, 35, 557 S.E.2d 568, 572-73 (2001), appeal
dismissed and disc. review denied, 355 N.C. 288, 561 S.E.2d 268
(2002). The proponent of the statement must provide written notice
stating its intention to offer the statement and must do so at a
sufficiently early time “to provide the adverse party with a fair
opportunity to prepare to meet the statement.” N.C. Gen. Stat. §
8C-1, Rule 804(b)(5).
Defendant argues that the trial court erred in admitting
Clark's statement because the State failed to give defendant
sufficient notice of its intent to use the statement and becausethe trial court failed to make sufficient findings as to Clark's
unavailability and the trustworthiness of the statement. Defendant
fails to recognize that he stipulated at trial that the State
provided adequate notice. Defense counsel responded affirmatively
when asked whether defendant acknowledged that he received
appropriate and timely notice. Additionally, as to Clark's status
as unavailable, defense counsel stated that he “d[id] not doubt
that [Clark] [wa]s unavailable” and that he “would accept” Clark's
status as unavailable. As we have previously noted, “[o]n appeal,
[a] defendant cannot argue a matter he conceded at trial.” State
v. Johnston, 123 N.C. App. 292, 300, 473 S.E.2d 25, 31, appeal
dismissed and disc. review denied, 344 N.C. 737, 478 S.E.2d 10
(1996); see also State v. Garner, 330 N.C. 273, 283, 410 S.E.2d
861, 866 (1991) (defendant cannot object on appeal to timeliness of
State's notice of intent to use hearsay statement where defense
counsel conceded at trial that notice was sufficient).
With respect to the trustworthiness of Clark's statement,
defendant correctly notes that such a statement should not be
deemed trustworthy solely on the basis of corroborating evidence
offered at trial. See State v. Tyler, 346 N.C. 187, 200, 485
S.E.2d 599, 606, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411
(1997). Rather, a trial court assessing whether such a hearsay
statement is trustworthy should look to the following factors: “'(1) assurance of personal knowledge of the declarant of the
underlying event; (2) the declarant's motivation to speak the truth
or otherwise; (3) whether the declarant ever recanted the
testimony; and (4) the practical availability of the declarant at
trial for meaningful cross-examination.'” State v. Castor, __ N.
C. App. __, __, 562 S.E.2d 574, 580 (2002) (citation omitted).
Statements may be admitted where supported “by particularized
guarantees of trustworthiness based on the totality of the
circumstances surrounding the making of the statement.” Tyler, 346
N.C. at 200, 485 S.E.2d at 606.
In this case, although the trial court considered the presence
of corroborating evidence in its analysis, the totality of the
circumstances under which the statement was made support the trial
court's determination of trustworthiness. The evidence established
that Clark made the statement at the scene of the robbery shortly
after it occurred, and that he was still “[s]haking,” “[s]cared”,
and “upset” at the time he gave his statement. In his statement,
Clark described only the events that he observed and which happened
to him. There is no evidence that Clark ever recanted his
statement. The trial court did not err in admitting Clark's
statement under Rule 804.
Moreover, even if the trial court erred by failing to make
specific findings to support its conclusion on the trustworthinessof Clark's statement, any error is harmless in light of the
evidence supporting the trial court's conclusion and the existence
of overwhelming evidence of defendant's guilt, including
defendant's confession to being one of the robbers; the testimony
of other victims that they observed Clark being held on the ground
at gunpoint; and the testimony of an investigating officer who
testified without objection that Clark expressed that his car keys
had been stolen at gunpoint. See State v. Daughtry, 340 N.C. 488,
514, 459 S.E.2d 747, 760 (1995) (trial court's failure to make
specific findings as to trustworthiness harmless beyond a
reasonable doubt where record supports court's conclusion and where
record contains overwhelming evidence of defendant's guilt), cert.
denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996).
In his final argument, defendant maintains that he received
ineffective assistance of counsel because his attorney stipulated
that defendant received sufficient notice that the State intended
to offer Clark's statement, and that Clark was unavailable within
the meaning of N.C. Gen. Stat. § 8C-1, Rule 804. In order to
establish a claim for ineffective assistance of counsel, a
defendant must show that (1) counsel's performance fell below an
objective standard of reasonableness; and (2) the deficiency in
performance was so serious that a reasonable probability exists
that the result of the trial would have been different. State v.Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002). “There is a
presumption that trial counsel acted in the exercise of reasonable
professional judgment.” Id.
We hold that defendant has failed to show that his attorney's
conduct was so lacking in reasonableness that it likely changed the
result of his trial. Given that the State gave defendant notice of
its intent to use Clark's statement prior to the commencement of
trial, it was not wholly unreasonable for defense counsel to
stipulate that it received sufficient notice. Moreover, it was
also not wholly unreasonable for counsel to concede that Clark was
unavailable, as the facts established that the State had repeatedly
attempted to contact Clark prior to trial without success; that
investigation revealed that Clark no longer lived at the address
which the State had for him; that the other robbery victims
indicated they had not seen Clark in several months and did not
know his whereabouts; that Clark's mother indicated she had not
seen him in weeks and did not know his whereabouts; and that Clark
had failed to appear on a pending charge in the district court of
Surry County. In light of this evidence, we believe the trial
court could reasonably have found that the State gave sufficient
notice and that Clark was unavailable regardless of whether defense
counsel conceded these issues. Accordingly, even if counsel's
performance fell below an objective standard of reasonableness, defendant cannot establish the requisite prejudice. This
assignment of error is overruled.
No error.
Judges GREENE and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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