STATE OF NORTH CAROLINA
v. Rowan County
No. 00 CRS 12000
JEFFERY DUANE McDANIEL
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Woodson, Sayers, Lawther, Short, Parrot & Walker, LLP, by Sean
C. Walker, for defendant-appellant.
McGEE, Judge.
A jury found defendant guilty of robbery with a dangerous
weapon, and the trial court sentenced him to 96 to 125 months'
imprisonment. Defendant appeals.
State's witness TaJuana Greenard (Greenard) testified that she
was working at a convenience store on Jake Alexander Boulevard in
Salisbury, North Carolina on the morning of 2 July 2000. At
approximately 4:00 a.m., she saw defendant exit his car and come
into the store. After asking for a pack of cigarettes, defendant
lifted his shirt and pulled out a black handgun wrapped in black
netting. As Greenard looked for the cigarettes, defendant said,
"Well, I see you're not good at this, just give me cash." Greenardgave defendant approximately $100.00 from the cash register.
Before leaving the store, defendant said that he would come back
for Greenard if she reported him to the police.
The State introduced a videotape from the store's security
camera of the incident to support Greenard's testimony. Salisbury
Police Detective Sheila Lingle read from a statement she took from
Greenard, corroborating Greenard's account of the robbery including
defendant's use of a gun with a "knit cover over it." Over
defendant's objection, both Greenard and Detective Lingle testified
that Greenard selected defendant's photograph from a line-up of six
photographs prepared by Lingle on 14 July 2000.
Lingle arrested defendant on 2 October 2000. After waiving
his Miranda rights, defendant gave the following written statement
admitting to the robbery:
[O]n 7/2/2000 at the Amoco on Jake Alexander
Boulevard around 3 a.m. or 2 a.m.[,] I went in
the store and asked the clerk for [a] pack of
cigarettes and then told her that I wanted all
the money and that no one would be hurt if she
cooperated. I never had a gun and never told
her I had a gun. I just said that no one
would get hurt if she cooperated. She gave me
the money and I left. . . .
Defendant's statement was admitted into evidence and published to
the jury.
Defendant raises several arguments on appeal. We begin our
review by addressing two of defendant's claims which are not
properly before this Court for review.
Defendant asserts that Greenard's in-court identification was
tainted by the suggestive photographic lineup shown to her byDetective Lingle on 14 July 2000. However, defendant failed to
raise this issue in the trial court and has therefore not preserved
it for appeal. See N.C.R. App. P. 10(b)(1). Defendant did not
object to Greenard's repeated identification of him as the robber
at trial. Moreover, in seeking to exclude the photographic lineup
from evidence, defense counsel argued that the lineup was
unnecessarily "cumulative[,]" because Greenard had already
identified him in court "just by looking" at him. Defendant has
not assigned or argued plain error and has waived any challenge to
Greenard's in-court identification. See N.C.R. App. P. 10(c)(4).
Defendant also argues that Officer Ross Hagler was allowed to
read from the police dispatcher's report to corroborate Greenard's
testimony that the robber had a gun. Defendant avers that the
report was hearsay and that he was denied his constitutional right
to confront the dispatcher, who did not testify at trial. However,
defendant waived his objection to the police dispatcher's report by
not objecting to the State's rebuttal witness, Detective Lingle,
reading the report to the jury. Defendant also did not object to
the report being admitted into evidence and published to the jury.
"The admission of evidence without objection . . . waives prior or
subsequent objection to the admission of evidence of a similar
character." State v. Jones, 137 N.C. App. 221, 232, 527 S.E.2d
700, 707 (2000) (citing State v. Campbell, 296 N.C. 394, 399, 250
S.E.2d 228, 231 (1979)). Absent an assignment of plain error,
defendant may not raise this issue on appeal. See N.C.R. App. P.
10(c)(4). Defendant also argues that the trial court erred in admitting
the results of the photographic lineup presented to Greenard on 14
July 2000. Defendant contends the lineup was unduly suggestive,
because defendant's photograph is "lighter" than the other
photographs which depict Hispanic or men with a dark-complexion.
He further asserts that the trial court failed to consider all the
factors set forth in State v. Pigott, 320 N.C. 96, 357 S.E.2d 631
(1987) in ruling the lineup identification admissible.
Having reviewed the case presented by the State at trial, we
conclude that defendant has not shown a possibility of prejudice
arising from the trial court's admission of the photographic
lineup. The State presented overwhelming evidence of defendant's
identity as the perpetrator of the robbery. Defendant also signed
a written statement admitting to the robbery and corroborating
Greenard's account thereof. Moreover, as discussed above, Greenard
identified defendant in open court as the robber. In light of the
evidence presented, there was no realistic possibility of a
different outcome at trial had the results of the photographic
lineup not been admitted. See N.C. Gen. Stat. § 15A-1443(a)
(1999); see also State v. Butler, 331 N.C. 227, 237, 415 S.E.2d
719, 724-25 (1992). We also note that defendant authorized his
counsel to concede his participation in the robbery and to contest
only the issue of the use of a gun.
In a related argument, defendant contends that the State
violated the discovery statute, N.C. Gen. Stat. § 15A-903(d), by
failing to provide him with a copy of the photographic lineup priorto trial. As a result, defendant insists he "is entitled to an
outright dismissal of the charge against him, or in the least the
right to a trial de novo" as a sanction under N.C. Gen. Stat. §
15A-910. However, defendant did not request a continuance or
recess from the trial court to review the lineup, nor did he move
for a dismissal or mistrial under N.C. Gen. Stat. § 15A-910(2),
(3a), and (3b). Although it appears from the record that defendant
was not shown the composition of the lineup until trial, he was
able to raise a timely objection to its admissibility on voir dire,
arguing that the other men depicted in the lineup were either
Hispanic or had dark complexions. Because he did not ask for
additional time to review the evidence before proceeding with the
voir dire, defendant cannot fault the trial court for failing to
provide it. Cf. State v. Ginn, 59 N.C. App. 363, 374-75, 296
S.E.2d 825, 832-33 (1982).
Defendant also was not prejudiced by the State's oversight in
light of the other evidence establishing defendant's identity as
the robber. Defendant argues that he adopted a trial strategy
"focused on issues other than identification" without knowing the
suggestive nature of the lineup showed to Greenard on 14 July 2000.
This claim is factually untenable. Defendant signed a written
confession at the time of his arrest, a decision unaffected by the
discovery process. Moreover, defense counsel acknowledged to the
trial court that he was notified of the lineup's existence during
discovery but had not pursued the matter:
I think the notes that I received from
Detective Lingle had mentioned she showed thelineup [to Greenard,] but I had not seen
anything. I figured since [the lineup] was
not given to me that it probably was not going
to be released into evidence but I hadn't
given it much thought . . . .
At the conclusion of the voir dire hearing, defendant's counsel
reiterated, "Your Honor, obviously, I'm not implying that [the
State] withheld [the lineup] from me at all. I know that I was
aware there was this lineup . . . ." Thus, defendant knew of the
lineup's existence when forming his trial strategy but deemed its
contents immaterial. Contrary to his assertion on appeal,
defendant objected only to the lineup's introduction into evidence,
not to any taint it might have cast on Greenard's in-court
identification. Even after he obtained a copy of the lineup,
defendant did not challenge Greenard's in-court identification
testimony. Instead, he argued that Greenard's in-court
identification made the evidence of the lineup unnecessarily
"cumulative."
Defendant's final argument challenges the trial court's
admission of alleged hearsay testimony, including Greenard's
testimony relaying an out-of-court statement made by a friend who
had visited her at the store just prior to the robbery. Greenard
described her friend's statement as follows: "He's like what are
you doing here working third shift by yourself. This is dangerous
and why aren't you afraid and all that." Defendant argues the
trial court erred in overruling his objection to this evidence as
hearsay.
Hearsay is defined as "a statement, other than one made by thedeclarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.C. Gen.
Stat. § 8C-1, Rule 801(c)(1999). Assuming, arguendo, that the
statement was hearsay, defendant was not prejudiced by its
admission because it did not add to the State's case. The fact
that Greenard's solitary, late-night job may have been dangerous as
an abstract proposition did not implicate defendant in the robbery.
Defendant also argues that a statement read by Officer Hagler
to the jury was inadmissible hearsay. The statement was from a
police department dispatch report, which stated the suspect "showed
the clerk what she [thought was] a handgun wrapped in a sock." The
trial court admitted the statement, allowing it to be considered by
the jury as corroborative or impeachment evidence in judging the
credibility of Greenard.
Defendant contends the statement was offered for the purpose
of proving the truth of the matter asserted in the statement, being
that defendant had a gun. Defendant argues that the "source or
writer" of the statement did not testify. Defendant therefore did
not have the opportunity to confront and cross-examine the person
who actually prepared the report, which unduly prejudiced him.
However, the statement in the report was not hearsay in that it was
admitted to show that Greenard had stated in her call to the police
department that the suspect used a gun; it was not admitted to
prove that defendant had a gun wrapped in a sock. The trial court
appropriately gave a limiting instruction allowing the jury to
consider the statement in determination of Greenard's credibility. Greenard testified several times that she believed defendant used
a gun to rob her. The trial court did not err in admitting the
statement from the dispatch report. This assignment of error is
without merit.
The record on appeal contains an additional assignment of
error not addressed by defendant in his brief to this Court.
Pursuant to N.C.R. App. P. 28(b)(5), we deem it abandoned.
Defendant received a fair trial free from prejudicial error.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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