An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-349


Filed: 17 June 2003


v .                                 Guilford County
                                    Nos. 99CRS066747
ROBERT GEORGE REID                            00CRS023707-08

    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.


    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).
    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).

    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.

    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.

    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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