Appeal by defendant from judgments dated 1 May 2002 by Judge Henry
W. Hight, Jr. in Superior Court, Durham County. Heard in the Court of
Appeals 22 May 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel F. McLawhorn, for the State.
Parish and Cooke, by James R. Parish, for defendant-appellant.
McGEE, Judge.
Antonio Durand Riley, a.k.a Antoine Deandre Riley, (defendant) was
convicted of first-degree murder, three counts of assault with a deadly
weapon with intent to kill, and possession of a firearm by a felon on 1
May 2002. The trial court determined defendant had a prior record level
III and sentenced him to: life imprisonment without parole for first-
degree murder; three consecutive terms of a minimum of 34 months to a
maximum of 50 months active imprisonment for the three convictions of
assault with a deadly weapon with intent to kill, to begin after the life
sentence; and a minimum term of 16 months to a maximum term of 20 months
active imprisonment for possession of a firearm by a felon, to begin at
the expiration of the last sentence imposed for conviction of assault
with a deadly weapon with intent to kill. Defendant appeals.
The evidence presented by the State at trial tended to show that
Anthony Peaks and his wife Kristi Peaks (now Brown) walked to the Caroco
Station on North Alston Avenue in Durham, North Carolina to visit Mr.
Peaks' relatives and friends at approximately 1:00 a.m. on 24 July 2000.
After going into the store, Ms. Brown came out and joined her husband who
was talking to his relatives, Joseph Pipkin (Pipkin), Charles Johnson
(Johnson), and Tyrone Merrill (Merrill). Ms. Brown was facing Leo's
Seafood, the restaurant next door, when she saw a black male, later
identified as defendant, run around the corner and stand on the loading
dock. Ms. Brown was standing approximately eighteen feet from defendant.
Pipkin also testified he saw the shooter and identified him as a black
male wearing a white tee shirt, jeans, and red shoes. Ms. Brown and
another witness described the shooter as wearing a blue baseball hat and
having an Afro hairstyle. Defendant pulled out a nine-millimeter gun
from his pants, pointed it in the direction of Ms. Brown and the group,shouted words to the effect of, "Blood time, I got you now," or "I got
you now, I got you now, Blood--Blood's time," and began firing the gun.
Defendant fired approximately ten shots from the gun.
Ms. Brown ran toward the store and was shot in the ankle. Mr. Peaks
also began to run and a bullet passed through his left arm into his
chest, piercing both lungs and his heart. Mr. Peaks collapsed near the
kerosene tanks and died from the gunshot wound. Merrill and Johnson were
also shot, each being grazed by a bullet. A store clerk at the service
station called the Durham Police Department. An officer found ten shell
casings on the loading dock at Leo's Seafood and on the ground nearby.
The shell casings were all fired from a nine-millimeter Winchester. An
officer also recovered a ball cap from the area of the kerosene tanks at
the Caroco Station.
Officer Anthony Smith (Officer Smith), former gang investigator for
the City of Durham, testified that the "8 Trey Crips" is active in Durham
and is associated with the "Folk Nation," a national gang also known as
the "Crips." The "Bloods" is another gang with members in Durham,
associated with the "People Nation." Officer Smith said that "Bloods"
typically wear the color red and "Crips" wear the color blue, although at
times, rival gang members will wear the other gang's colors to get closer
in order to commit violent acts.
Joseph Pipkin (Pipkin) testified that the "Crips" and the "Bloods"
were "at war," but that he did not know of many "Bloods" in Durham.
Pipkin told Durham Police that he was a friend of "Crips" and that
defendant was a "Blood" gang member.
At the time of the shooting, Mr. Peaks was talking with Johnson and
Merrill, both associated with the "8 Trey gangsters." Merrill testified
that neither Mr. Peaks nor his wife were associated with any gang.
Officer Florencio Rivera (Officer Rivera), a gang investigator forthe City of Durham, testified he arrested defendant in August 2000 for
outstanding warrants "[f]or this case, homicide, and several armed
robberies." He testified that defendant had burn scars on his chest and
right arm in the shape of a dog's paw print, which were used by the
"United Blood Nation" to identify its members. Officer Rivera took
photographs of defendant showing these burn scars. Officer A. H.
Holland, Jr. (Officer Holland) testified that defendant went by the
nickname "Dirty."
At trial, defendant and the State stipulated that defendant had been
convicted of a prior felony before 24 July 2000 and that the State did
not need to produce other evidence to prove the element of the prior
felony for possession of a firearm by a felon.
Defendant's sister, Carrie Riley (Riley), testified that she and her
daughter lived with defendant. She said that on the evening of 23 July
2000 she cooked dinner for the three of them and defendant fell asleep on
the couch. Riley testified that when she was awakened by a telephone
call around 2:30 or 3:00 a.m., her brother was asleep on the couch. The
call was from a friend telling her that there had been a shooting on
Alston Avenue near the Caroco Station.
Defendant has failed to present an argument in support of
assignments of error 3, 5, 6, 7, and 10, and these assignments are
therefore deemed abandoned, pursuant to N.C.R. App. P. 28(b)(6).
I.
[1] Defendant first argues two combined assignments of error. He
contends that the trial court erred in allowing Officer Rivera to testify
that he arrested defendant not only for the murder defendant was on trial
for, but also for several armed robberies, for which defendant was not on
trial. He argues the trial court erred in failing to strike such
testimony
ex mero motu. Defendant also argues that the trial court erredby allowing testimony by Officer Holland that defendant's nickname was
"Dirty," because the testimony was not relevant and any probative value
was outweighed by its prejudicial effect.
Defendant requests we review this issue for plain error because, as
he points out in his brief, defense counsel did not object at trial to
the admission of the challenged evidence. We note that normally, "if a
defendant fails to assert plain error in an assignment of error, an
appellate court will not conduct plain error review."
State v. Bartley,
156 N.C. App. 490, 497, 577 S.E.2d 319, 323 (2003) (citing
State v.
Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995);
State v.
Lovett, 119 N.C. App. 689, 693-94, 460 S.E.2d 177, 180-81 (1995)).
However, since defendant has specifically and distinctly stated in his
brief that the error committed is plain error and has requested a plain
error review, we will review this issue for plain error.
See N.C.R. App.
P. 10(c)(4).
First, defendant may not, as he attempts to do in his brief, combine
assignments of error concerning unrelated evidence in order to show plain
error. In
State v. Holbrook, 137 N.C. App. 766, 529 S.E.2d 510 (2000),
our Court stated:
As we have noted, the essence of the plain error
rule is that it be obvious and apparent that the
error affected defendant's substantial rights. If
we were to adopt defendant's proposition that the
plain error rule may apply cumulatively to several
unrelated portions of evidence where the trial judge
was not asked to, and did not, make any affirmative
ruling, we would be departing from the fundamental
requirements of the plain error rule of obviousness
and apparentness of error. A trial judge would be
required to review all evidence cumulatively for
errors of admissibility even though defendant had
made no objections to any evidence during trial. We
agree with the State that under such a holding, a
trial judge would be required to be omniscient. A
defendant could fail to make any objection to the
admission of evidence at trial, but could then
require this Court to cumulatively review the
evidence for possible errors amounting to plainerror. Such rule would be in contradiction of our
Rules of Civil Procedure and Rules of Appellate
Procedure, and the plain error doctrine as defined
by the North Carolina Supreme Court.
See State v.
Bagley, 321 N.C. 201, 362 S.E.2d 244 [(1987),
cert.
denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)];
State v. Odom, 307 N.C. 655, 300 S.E.2d 375
[(1983)];
State v. Cummings, 346 N.C. 291, 488
S.E.2d 550 [(1997),
cert. denied, 522 U.S. 1092, 139
L. Ed. 2d 873 (1998)];
State v. White, 331 N.C. 604,
419 S.E.2d 557 [(1992)].
Holbrook, 137 N.C. App. at 769, 529 S.E.2d at 511-12.
We will therefore review each of these assignments of error
individually for plain error. In order to show plain error, a defendant
must show "'that absent the error the jury probably would have reached a
different verdict.'"
State v. Hartman, 90 N.C. App. 379, 383, 368 S.E.2d
396, 399 (1988) (quoting
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80,
83 (1986)).
"[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional case
where, after reviewing the entire record, it can be
said the claimed error is a '
fundamental error,
something so basic, so prejudicial, so lacking in
its elements that justice cannot have been done,' or
'where [the error] is grave error which amounts to a
denial of a fundamental right of the accused,' or
the error has '"resulted in a miscarriage of justice
or in the denial to appellant of a fair trial"' or
where the error is such as to 'seriously affect the
fairness, integrity or public reputation of judicial
proceedings' or where it can be fairly said 'the
instructional mistake had a probable impact on the
jury's finding that the defendant was guilty.'"
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting
United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir.),
cert. denied, 459 U.S. 1018, 74
L. Ed. 2d 513 (1982) (footnotes omitted) (emphasis in original)).
[2] In the present case, Officer Rivera testified that defendant was
arrested for outstanding warrants "[f]or this case, homicide, and several
armed robberies." Defendant was not tried for any armed robberies in the
present case. Defense counsel did not object to Officer Rivera's
testimony and the trial court did not strike Officer Rivera's testimonyon its own motion. Two eyewitnesses identified defendant as the shooter.
The evidence also showed that the shooting was part of a gang war and
that defendant was a member of the "Bloods" gang while several people
standing around Mr. Peaks were members of the rival "Crips" gang. Given
the overwhelming evidence in the record that defendant committed the
crimes charged, defendant has not shown that the failure of the trial
court to strike the testimony of Officer Rivera concerning defendant's
arrest for several armed robberies "had a probable impact on the jury's
finding of guilt."
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citations
omitted).
Officer Holland testified that defendant went by the nickname
"Dirty." Defendant argues that this evidence was irrelevant and any
probative value it might have is substantially outweighed by its
prejudice to defendant. However, under plain error review defendant must
show that the alleged error "had a probable impact on the jury's finding
of guilt."
Id. (citations omitted).
As explained above, given the
overwhelming evidence in the record that defendant committed the crimes
charged, defendant has not met his burden to show the admission of this
testimony amounted to plain error. Defendant's first argument is
overruled.
II.
[3] Defendant next argues that the trial court erred in allowing
into evidence, over defendant's objection, several photographs of tattoos
or brands on defendant's body, allegedly depicting gang membership, since
the information disclosing the existence of these markings was obtained
in violation of
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694
(1966). During
voir dire,
the trial court granted defendant's motion to
suppress a statement taken from the defendant in violation of
Miranda,
384 U.S. 436, 16 L. Ed. 2d 694. However, during
voir dire, the trialcourt allowed the State to introduce, over defendant's objection,
photographs of defendant taken by Officer Rivera after defendant's
arrest, which showed brands or burn marks on defendant's body. When the
State later offered the contested photographs into evidence, defendant
did not object. Defendant's argument is therefore subject to the plain
error rule.
See N.C.R. App. P. 10(c)(4). Defendant did not assert in
his assignment of error, nor did he specifically and distinctly argue in
his brief that the trial court's admission of the photographs amounted to
plain error.
See Bartley, 156 N.C. App. at 497, 577 S.E.2d at 323. In
fact, defendant admits that the Fifth Amendment offers him no protection
against being compelled to be photographed.
See State v. Carson, 296
N.C. 31, 38, 249 S.E.2d 417, 422 (1978).
Defendant does argue that the trial court should have excluded
Officer Rivera's testimony as to the meaning of the brand because Officer
Rivera obtained the information "from interviewing the defendant and from
information on the gang questionnaire filled out by the defendant after
he had been advised of his
Miranda rights and indicated he did not want
to be questioned without an attorney." Officer Rivera testified that the
burn markings on defendant indicated that defendant was a member of the
"Bloods" street gang. Defendant did not object to nor assign error to
this testimony. When the error asserted on appeal is not grounded in the
objection before the trial court the alleged error is not preserved for
appellate review.
State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269,
271 (1995). When the objection and assignment of error do not correspond
to the argument in the brief, the assignment of error is deemed abandoned
under N.C.R. App. P. 28.
State v. Purdie, 93 N.C. App. 269, 278, 377
S.E.2d 789, 794 (1989). We also note there is other evidence in the
record, not objected to or assigned as error by defendant, as to the
meaning of defendant's burn mark or tattoo. Further, there is plenaryevidence that Officer Rivera knew the meaning of the burn mark or tattoo
from sources other than the survey completed by defendant. Defendant
therefore would not be able to show that the admission of this testimony
amounted to plain error. We dismiss defendant's argument.
III.
[4] Defendant next argues it was error for the trial court to fail
to instruct the jury on the misdemeanor of assault with a deadly weapon
as a possible lesser included offense of the charge of felonious assault
with a deadly weapon with the intent to kill. At trial, defendant did
not request that the trial court include the instruction for misdemeanor
assault with a deadly weapon in its charge to the jury. As acknowledged
in his brief, defendant must proceed under the plain error rule.
See
Odom, 307 N.C. at 660, 300 S.E.2d at 378 ("every failure to give a proper
instruction [does not] mandate[] reversal regardless of the defendant's
failure to object at trial"). Under the plain error rule "'[i]t is the
rare case in which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in the trial court.'"
Id. at 660-61, 300 S.E.2d at 378 (quoting
Henderson v. Kibbe, 431 U.S.
145, 154, 52 L. Ed. 2d 203, 212 (1977)). Although defendant did not
allege plain error in his assignment of error, he did specifically and
distinctly assert that the failure of the trial court to submit the
instruction amounted to plain error.
See Bartley, ___ N.C. App. at ___,
577 S.E.2d at 323.
The only difference in what the State must prove for the offense of
misdemeanor assault with a deadly weapon and felony assault with a deadly
weapon with intent to kill is the element of intent to kill.
See State
v. Hunter, 315 N.C. 371, 373, 338 S.E.2d 99, 101-02 (1986);
State v.
Maynard, 311 N.C. 1, 38 n.1, 316 S.E.2d 197, 217 n.1,
cert. denied, 469
U.S. 963, 83 L. Ed. 2d 299 (1984). Where all the evidence tends to showa shooting with a deadly weapon with the intent to kill, the trial court
does not err in refusing to submit the lesser included offense of assault
with a deadly weapon.
See State v. Oliver, 334 N.C. 513, 523, 434 S.E.2d
202, 207 (1993).
"The defendant's intent to kill may be inferred from the nature of
the assault, the manner in which it was made, the conduct of the parties,
and other relevant circumstances."
State v. James, 321 N.C. 676, 688,
365 S.E.2d 579, 586 (1988) (citation omitted). In the present case, the
evidence shows that defendant, a member of the "Bloods" gang,
deliberately shot a nine-millimeter handgun ten times into a crowd which
included members of a rival gang, from approximately eighteen feet away,
after shouting something to the effect of, "I got you now, I got you now,
Blood--Bloods time." The evidence also showed that defendant was wearing
colors of the "Crips," a technique often used by rival gang members to
get close enough to their rivals to inflict injury. The evidence showed
that defendant actually killed one of the shooting victims, and that the
three counts of assault with a deadly weapon with intent to kill each
involved a victim shot by defendant during the same incident. All of the
evidence tends to show that defendant shot at the crowd with the intent
to kill, and therefore it was not plain error for the trial court to
refuse to submit the charge of misdemeanor assault with a deadly weapon
to the jury. This argument is overruled.
IV.
[5] Defendant also argues that the trial court erred by denying
defendant's request to submit to the jury an instruction on the lesser
included offense of second-degree murder. Defendant claims that there is
not sufficient evidence of a plan or premeditation to kill and a second-
degree murder instruction was required. Defendant argues that "[t]he
evidence tends to show the defendant happened upon these individuals atthe store and began firing."
Second-degree murder is a lesser included offense of first-degree
murder.
State v. Goodson, 101 N.C. App. 665, 668, 401 S.E.2d 118, 120
(1991) (citation omitted). "With the exception of the element of
premeditation and deliberation, the elements of the two [offenses] are
the same."
Id. "[A] trial court does not have to submit a verdict of
second-degree murder to the jury unless it is supported by the evidence."
State v. Annadale, 329 N.C. 557, 567, 406 S.E.2d 837, 843 (1991)
(citations omitted). In
State v. Sparks, our Supreme Court noted that
[t]he want of provocation, the absence of any excuse
or justification for the shooting, the number of
shots fired or attempted to be fired, the fact that
defendant ran immediately after the shooting,
coupled with the other evidence, permitted a
legitimate inference of premeditation and
deliberation, and was sufficient to be submitted to
the jury on the issue of murder in the first degree.
Sparks, 285 N.C. 631, 643, 207 S.E.2d 712, 719 (1974) (citations
omitted),
death sentence vacated, 428 U.S. 905, 49 L. Ed. 2d 1212 (1976).
In the present case, the evidence showed that defendant came around
the corner onto the loading dock approximately eighteen feet from the
murder victim and a group of individuals that included members of the
"Crips" gang, rivals of defendant's gang, the "Bloods." Defendant was
wearing a blue hat and jeans, the colors worn by the "Crips" - a tactic
often employed by gang members to enable them to get close to members of
a rival gang. Defendant shouted out something to the effect of, "I got
you now, I got you now, Blood--Bloods time," and began shooting into the
crowd where the murder victim and the other victims were standing.
Defendant fired a total of ten shots into the crowd and continued firing
shots even as the victims fled for cover. Defendant then ran from the
scene of the shooting. There was no evidence of any provocation or
excuse for the shooting. We hold that given the evidence in the record,it was not error for the trial court to refuse to instruct the jury on
second-degree murder. Defendant's argument is overruled.
V.
[6] Defendant next argues the trial court erred in sentencing
defendant as a prior record level III as the State did not prove, nor did
defendant stipulate to, such a record level pursuant to the North
Carolina sentencing statutes. N.C. Gen. Stat. § 15A-1340.14 (2001)
requires that each of a felony offender's prior convictions be proven to
determine the offender's prior record level. N.C.G.S. § 15A-1340.14 also
provides that the State bears the burden of proving any prior convictions
by a preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.14(f)
(2001) lists several methods the State may use to prove prior
convictions:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the Division of
Criminal Information, the Division of Motor
Vehicles, or of the Administrative Office of
the Courts.
(4) Any other method found by the court to be
reliable.
In the present case, the following conversation occurred between the
prosecutor and the trial court:
[Prosecutor]: The first thing I would like to do is
hand up a prior record worksheet (handing). This
obviously is pertaining to the four charges that
don't have a mandatory sentence, that being three
counts of assault with a deadly weapon with intent
to kill, and possession of a firearm by a felon.
I'm showing the worksheet which shows some
prior felonies, three prior -- actually, four prior
felonies, some though -- two of them on the same
day, basically possession of schedule I and
possession with intent to sell and deliver schedule
II. Those were the subject of the prior felony.
These were from 1999, and were the subject of thefirearm by felon case that we have.
Also, in September of last year the defendant
was convicted of assault with a deadly weapon
inflicting serious injury; also possession of a
firearm by a felon. So by the time you add the
points, plus the extra point for having the same
offense, the firearm by a felon, I'm showing seven
points. That would make him a Level III offender
for sentencing on those cases.
THE COURT: So he's a Level III on three of the
cases, and he's a Level what on the other?
[Prosecutor]: Well, actually he's a Level III for
everything but the first-degree murder. First-
degree murder, he would technically be a Level III
as well, but since there's a mandatory statutory
sentence, it really doesn't matter what the record
level is.
In addition to this discussion about defendant's prior record level,
the State also contended that because the crimes were committed for the
benefit of, or in the context of, gang activity, this should be
considered as an aggravating circumstance. The State asked for
aggravated range for the four sentences besides the first-degree murder
sentence. Defendant asked for mercy with regard to any sentence imposed
and did not object to the information on the worksheet or the statements
made by the prosecutor in reference to defendant's prior record level.
The trial court sentenced defendant to life without parole for the
first-degree murder charge, and for the remaining convictions, sentenced
defendant to consecutive terms of imprisonment within the presumptive
range for a prior record level III.
The State presented no evidence in the form of a stipulation by the
parties, a copy of the court record of defendant's prior convictions, nor
a copy of any record maintained by the Division of Criminal Information,
the Division of Motor Vehicles, or the Administrative Office of the
Courts. The State simply handed the trial court a worksheet filled out
by the prosecutor and made the unsupported statements identified above asto defendant's prior record level.
We do not find evidence in the record that would indicate that the
State carried its burden of proving each prior conviction by a
preponderance of the evidence. As stated above, the State submitted no
records of conviction, no records from the agencies listed in N.C.G.S. §
15A-1340.14(f)(3), nor is there any evidence of a stipulation by the
parties as to prior record level. A statement by the State that an
offender has seven points, and thus is a record level III, if only
supported by a prior record level worksheet, is not sufficient to meet
the catchall provision found in N.C.G.S. § 15A-1340.14(f)(4), even if
uncontested by defendant.
State v. Mack, 87 N.C. App. 24, 34, 359 S.E.2d
485, 491 (1987),
disc. review denied, 321 N.C. 477, 364 S.E.2d 663
(1988);
see State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383
(2000). We must therefore remand this case for a resentencing hearing.
No error in trial; remanded for resentencing.
Judges McCULLOUGH and CALABRIA concur.
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