Appeal by defendant from an order entered 9 October 2000 and
judgments entered 10 October 2000 by Judge Steve A. Balog in
Guilford County Superior Court. Heard in the Court of Appeals 11
March 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Robert C. Montgomery, for the State.
Center for Death Penalty Litigation, Inc., by Staff Attorney
Anne Bleyman for defendant-appellant.
HUNTER, Judge.
Robert George Reid (“defendant”) appeals from convictions of
first degree murder and conspiracy to commit robbery with a
dangerous weapon. For the reasons set forth herein, we find no
error.
The State's evidence pertinent to this appeal is summarized as
follows. In 1999, defendant met Zachary Grimes (“Grimes”) and
Jonathon Coffey (“Coffey”) while working with them at a
Fuddrucker's restaurant. On 15 August 1999, defendant went over to
the apartment shared by Grimes, Coffey, and Kara O'Connor
(“O'Connor”). Defendant, Grimes, and Coffey went upstairs andformulated a plan for robbing Ed Lebrun (“LeBrun”). The trio
decided to wear black clothes and to take gloves, masks, tools, and
towels with them. The men also discussed using a syringe full of
Windex on LeBrun to kill him if he got out of control during the
robbery. Defendant gave Grimes a double-edged knife to put into a
bag they planned to take to LeBrun's home.
When the trio returned downstairs, defendant showed O'Connor
and two of her friends, Angela Lee (“Lee”) and Erin Ward (“Ward”),
a knife and stated “if anybody were to act up or to get out of
control that he would cut them up.” Defendant also told O'Connor
and her friends that he had been in a gang in Chicago, had killed
about twelve people, and had never been caught.
The three men left the apartment around midnight or 1:00 a.m
in two vehicles. After stopping their cars on the street where
LeBrun lived, defendant went to LeBrun's door. The plan was that
defendant would attempt to gain entry to LeBrun's house by telling
LeBrun that his car had broken down and that he needed to use the
phone. LeBrun, however, refused to allow defendant inside his
home. Thereafter, the trio went to a convenience store where they
stayed for about forty or forty-five minutes before returning to
LeBrun's residence. After returning to LeBrun's house, Coffey went
to the door and rang the doorbell while defendant and Grimes went
to the side of the house. Defendant was wearing gloves, Grimes was
wearing gloves and a mask, and Coffey was wearing neither since he
was the one ringing the doorbell. After LeBrun opened the door, a
struggle ensued between Coffey and LeBrun. Defendant and Coffeyrestrained LeBrun with a long black cord. After LeBrun was
restrained, Coffey put on gloves and a mask.
Grimes and Coffey searched the house for valuables while
defendant led LeBrun upstairs. Grimes and Coffey gathered money,
drugs, and other items downstairs to take out of the house later.
While upstairs in LeBrun's bedroom, defendant asked LeBrun for the
PIN for his ATM card, and Lebrun gave it to him. Defendant told
LeBrun that they were about to leave and that LeBrun could either
take a sedative or die. LeBrun then took a sedative.
Subsequently, defendant injected LeBrun in the neck with Windex,
air, and rubbing alcohol that was obtained from LeBrun's bathroom.
Thereafter, defendant asked Coffey to go downstairs and fill the
syringe with some kind of chemical. Coffey returned upstairs with
the syringe full of a green cleaner which was also injected into
LeBrun's neck.
Grimes called defendant aside and told him not to kill LeBrun.
Defendant told Grimes that he had to kill LeBrun because LeBrun
would be able to identify him by the tattoos on his neck. Grimes
and Coffey then panicked and began returning the items collected to
where they belonged. Coffey told Grimes that they needed to leave
and they called upstairs for defendant to come down. Coffey went
back upstairs when defendant did not respond. Coffey looked into
a bedroom and saw defendant stab LeBrun with a knife. Coffey then
went back downstairs and told Grimes that defendant was “stabbing
Ed.” The three men left soon thereafter. After leaving the crime scene, defendant told Grimes that he
had stabbed LeBrun between thirteen and twenty times. The trio
disposed of several items used in the incident (such as gloves,
towels, masks, and a syringe) into a lake. The three men then
drove to various ATM machines to use LeBrun's ATM card. After
removing LeBrun's ATM card, defendant threw LeBrun's wallet into a
drainage ditch. The trio split up the money obtained from LeBrun's
home and LeBrun's ATM card. Grimes testified that he was afraid of
defendant because defendant said that if Grimes, Coffey, or
O'Connor went to the authorities their lives would be in jeopardy.
The following day, defendant had lunch with O'Connor at a Red
Lobster restaurant. Defendant told O'Connor that he had stabbed
someone. O'Connor did not go to the police about the stabbing that
defendant described to her because she was scared of defendant
after hearing defendant speak of other crimes and murders he had
committed without getting caught. O'Connor had also overheard
defendant telling Grimes and Coffey that if they went to the
police, he would kill them.
LeBrun's body was discovered by one of LeBrun's employees on
16 August 1999. LeBrun was found face down on the bedroom floor
with his hands bound. Dr. Thomas Clark, a forensic pathologist who
performed an autopsy on LeBrun, testified that he identified
twelve stab wounds, many of which would have been or could have
been fatal.
Evidence was also presented at trial that in October, 1999,
defendant, Grimes, and Coffey robbed an Olive Garden restaurant. Defendant, armed with a knife, and Coffey, armed with a pistol,
went into the restaurant and took money from the restaurant's safe.
The three men later split up the money.
Herschel Wagner (“Detective Wagner”), a detective with the
Guilford County Sheriff's Department, interviewed defendant on 27
October 1999 concerning an unrelated break-in at the Graves
residence. Defendant denied any involvement in the break-in but
implicated Grimes and Coffey. Defendant told Detective Wagner that
many of the items taken from the break-in were with his brother,
Tony Reid. Detective Wagner obtained a search warrant for
defendant's parents' home after interviewing Tony Reid. On 10
November 1999, Detective Wagner executed the search warrant.
Defendant's mother led Detective Wagner to a partial basement where
items belonging to defendant were stored. During his search,
Detective Wagner found a black dagger in a footlocker that belonged
to defendant. Detective Wagner also seized a pearl handled knife,
blowguns, a gun cleaning kit, a Samurai sword, a machete, an M-16
owner's manual, a rifle owner's manual, and blowgun darts which
were identified as items taken from the Graves' home.
Defendant did not present any evidence at trial. A jury found
defendant guilty of first degree murder, first degree burglary,
robbery with a dangerous weapon, first degree kidnapping, and
conspiracy to commit robbery with a dangerous weapon. The
presiding judge arrested judgment as to the burglary, armed
robbery, and kidnapping offenses because the first degree murder
conviction was based on the felony murder rule. Defendant wassentenced to life imprisonment without parole for first degree
murder and a consecutive term of thirty-four to fifty months
imprisonment for conspiracy.
I.
Defendant initially contends the trial court erred in
permitting witnesses to testify regarding statements he made
concerning his involvement in gang activity and other killings, his
martial arts abilities, and his participation in the robbery of an
Olive Garden restaurant.
Defendant argues the trial court erred in allowing O'Connor to
testify that she had heard defendant speak of other killings that
he had committed without being caught. This testimony was admitted
for the sole purpose of explaining why O'Connor did not go to the
police. Defendant asserts that this testimony was improperly
admitted under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001) and was
also inadmissible hearsay. We note, however, that defendant did
not preserve this issue for our review. “In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.”
N.C.R. App. P. 10(b)(1). Although defendant made a timely
objection to O'Connor's testimony, the benefit of this objection
was lost because evidence that defendant said he had committed
other murders and was involved in gang activity was admitted
without objection when Lee and Ward later testified.
See State v.Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). Even if a
defendant objects when evidence is admitted, the defendant loses
the benefit of the objection if the same evidence has previously
been admitted or is later admitted without objection.
Id.
Moreover, defendant waived plain error review by failing to allege
in his assignment of error that the trial court committed plain
error and failing to argue plain error in his brief.
See State v.
Parker, 350 N.C. 411, 444, 516 S.E.2d 106, 128 (1999);
State v.
Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999); N.C.R.
App. P. 10(c)(4). Therefore, this issue is not properly before us.
Nevertheless, had defendant preserved this issue for plain error
review, we would have concluded that defendant failed to meet his
burden of proving that the error was “so fundamental as to amount
to a miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached”
in light of the compelling evidence of defendant's guilt.
State v.
Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987).
Defendant additionally contends the trial court erred in
permitting Lee and Ward to testify that defendant claimed to have
been in a gang and killed before. As discussed earlier, defendant
did not object to this testimony when admitted at trial.
Therefore, defendant has failed to preserve this issue for appeal.
See N.C.R. App. P. 10(b)(1). We acknowledge that defendant made
motions
in limine requesting the trial court to exclude the
testimony of Lee and Ward concerning defendant's statements that he
had been involved in a gang and had killed before. However, “[a]motion
in limine is insufficient to preserve for appeal the
question of the admissibility of evidence . . . .”
State v.
Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995),
cert.
denied, 355 N.C. 752, 565 S.E.2d 673 (2002). “[I]n order to
preserve for appeal the question of the admissibility of evidence
offered by a witness, defendant must make an objection to such
evidence
at the time it is actually introduced at trial.”
State v.
Thibodeaux, 352 N.C. 570, 581, 532 S.E.2d 797, 806 (2000),
cert.
denied, 531 U.S. 1155, 148 L. Ed. 2d 976 (2001). Furthermore,
defendant failed to allege in his assignment of error and his brief
that the trial court committed plain error, thus waiving plain
error review.
See Parker, 350 N.C. at 444, 516 S.E.2d at 128;
Nobles, 350 N.C. at 514-15, 515 S.E.2d at 904; N.C.R. App. P.
10(c)(4). As stated earlier, however, if defendant had properly
preserved this issue for plain error review, we would not have
concluded that defendant met his burden of establishing plain
error.
Defendant next claims the trial court erred in permitting
Grimes to testify that defendant had stated that he had killed
others, to testify concerning defendant's martial arts training,
and to testify concerning defendant's involvement in the robbery of
an Olive Garden restaurant. We will address each in turn.
The record shows that defendant did not object to Grimes'
testimony regarding defendant's statements in which defendant
discussed being involved in a gang and killing several people
without getting caught. However, even if defendant had objected,he still would not have preserved this issue for appeal since this
evidence had previously been admitted without objection through the
testimony of Lee and Ward.
See Whitley, 311 N.C. at 661, 319
S.E.2d at 588. Further, no plain error was alleged; therefore,
plain error review was waived.
See Parker, 350 N.C. at 444, 516
S.E.2d at 128;
Nobles, 350 N.C. at 514-15, 515 S.E.2d at 904;
N.C.R. App. P. 10(c)(4). Had plain error review not been waived,
as stated above, we would not have found plain error.
Grimes also testified that defendant “was very[,] very trained
in the martial arts” and that defendant had threatened to kill the
others if they went to the authorities. We conclude the trial
court did not err in admitting this testimony since it was relevant
to show why Grimes did not report the crime to the police.
Finally, the trial court permitted Grimes to testify that he,
defendant, and Coffey robbed an Olive Garden restaurant
approximately a month and a half after LeBrun's murder. While
defendant objected to this testimony, the benefit of this objection
was lost since Coffey later testified concerning the same robbery
without objection by defendant.
See Whitley, 311 N.C. at 661, 319
S.E.2d at 588. Therefore, defendant has not properly preserved
this issue for appeal. Further, defendant has not alleged plain
error. However, if this issue were properly preserved for our
review or defendant had alleged plain error, we would not find
error, much less plain error because this evidence was admissible
pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b).
II.
Defendant next claims the trial court improperly denied his
motion to suppress the double-edged knife seized from his parent's
home. We disagree.
Our review of the trial court's denial of defendant's motion
to suppress “is strictly limited to determining whether the trial
judge's underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on appeal,
and whether those factual findings in turn support the judge's
ultimate conclusions of law.”
State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982). Where as here, the defendant does not
assign error to any of the court's findings, “our review is limited
to determining whether the court's findings of fact support its
conclusions of law.”
State v. Sumpter, 150 N.C. App. 431, 433, 563
S.E.2d 60, 61 (2002).
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no warrants shall
issue but upon probable cause, supported by
oath or affirmation and particularly
describing the place to be searched and the
persons or things to be seized.
U.S. Const. amend. IV. Our United States Supreme Court has stated:
“The requirement that warrants shall particularly describe the
things to be seized makes general searches under them impossible
and prevents the seizure of one thing under a warrant describing
another.”
Marron v. United States, 275 U.S. 192, 196, 72 L. Ed.
231, 237 (1927). Defendant primarily contends the trial court should have
granted his motion to suppress since the double-edged knife seized
was not specifically described in the search warrant. Assuming
arguendo that defendant had standing to challenge the execution of
the search warrant, we conclude the trial court properly denied
defendant's motion to suppress the double-edged knife seized from
his parents' home.
The trial court's extensive findings set out in its order
denying defendant's motion to suppress included the following
facts: Detective Wagner seized several items including a double-
edged dagger with a sheath. The property was seized in connection
with an investigation of a burglary at the residence of Harry
Graves. The application for the search warrant described, among
other items, a “survival knife.” Detective Wagner found the
double-edged dagger with a sheath in the bottom of a footlocker
belonging to defendant. The dagger was found in the same area
where items specifically listed as taken from the Graves residence
were seized. The court also found that the dagger “fit the general
description of the type of item stolen from the Grave's residence,
including a 'survival knife.'” Based on these findings, the trial
court concluded,
inter alia, that “[t]he double-edged dagger with
a sheath fit the description of the property listed as stolen from
the Graves residence” and that “[a]ll the items seized by Detective
Wagner, including the double-edged dagger with a sheath, were items
authorized to be seized by the search warrant.” Defendant relies on a hypertechnical distinction between a
survival knife and a dagger. The dagger was found in the general
area where other items listed on the search warrant were found, and
the dagger met the general description of a “survival knife.”
Thus, we conclude the trial court correctly concluded that the
dagger was properly seized. Accordingly, this argument lacks
merit.
Defendant additionally claims the trial court erred by ruling
there was probable cause for issuance of the search warrant.
However, defendant provides no argument in his brief as to why
there was no probable cause. Therefore, this assignment of error
is deemed abandoned.
See N.C.R. App. P. 28(a), 28(b)(6).
III.
Defendant next contends the trial court erred in overruling
his objection to the State's reference to defendant's “future
dangerousness” during closing arguments to the jury. The portion
of the State's closing argument at issue is as follows:
And then he tells Mr. Baker and [sic] I know
where Pharaoh Wright is and when I get out of
here, I'm going to kill him. Isn't that just
his mentality. Remember his last words.
“Some of the things that I must do when I get
out of here aren't really nice or just, but
ends must be tied. I'm not looking forward to
it, but some things must be done.” He's going
to kill Kara. He's going to kill Mr. Coffey,
if he can---
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: He's going to kill Mr.
McAllister. He's going to kill Zach. Andhe's going to kill Pharaoh now because Pharaoh
has divulged this.
“Trial counsel is allowed wide latitude in argument to the
jury and may argue all of the evidence which has been presented as
well as reasonable inferences which arise therefrom.”
State v.
Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998). The
closing arguments of counsel are left in the control and discretion
of the trial court and we will not disturb the court's exercise of
discretion “absent any gross impropriety in the argument that would
likely influence the jury's verdict.”
State v. Cummings, 353 N.C.
281, 297, 543 S.E.2d 849, 859,
cert. denied, 534 U.S. 965, 151 L.
Ed. 2d 286 (2001).
Our Supreme Court has “held that specific deterrence arguments
suggesting that the defendant should be convicted so that he cannot
kill again are not improper.”
State v. Campbell, 340 N.C. 612,
631, 460 S.E.2d 144, 154 (1995). Accordingly, in this case, the
State's specific deterrence argument was not improper. It could
reasonably be inferred that defendant would kill O'Connor, Grimes,
Coffey, Curtis McAllister, and Pharaoh Wright (an inmate), if he
got the chance from evidence presented that he had threatened to
kill anyone who went to the authorities and that he told another
inmate that he was going to kill Pharaoh Wright. Therefore, this
assignment of error is overruled.
IV.
Defendant also assigns error to the trial court's denial of
his motion to dismiss the charges and his motion for judgment
notwithstanding the verdict (more properly denominated a motion forappropriate relief). After reviewing the record, we conclude there
was ample evidence supporting the charges and verdict reached.
Therefore, defendant's contention lacks merit.
V.
Defendant finally contends that the short-form indictment used
in this case was insufficient to charge him with first degree
murder. Defendant acknowledges that our Supreme Court and this
Court have rejected this argument.
See State v. Williams, 355 N.C.
501, 565 S.E.2d 609 (2002),
cert. denied, ___ U.S. ___, 154 L. Ed.
2d 808 (2003);
State v. Phillips, 151 N.C. App. 185, 565 S.E.2d 697
(2002). Accordingly, we overrule this assignment of error.
Defendant offers no argument in support of his remaining
assignments of error; therefore, they are deemed abandoned. N.C.R.
App. P. 28(a), 28(b)(6).
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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