State v Philpott, (02-852) 05/06/2003

Appeal by defendant from judgment dated 11 January 2002 by Judge Dwight L. Cranford in Edgecombe County Superior Court. Heard in the Court of Appeals 16 April 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State.

Michael J. Reece for defendant appellant.

BRYANT, Judge.

    Jayson Collins Philpott (defendant) appeals a judgment dated 11 January 2002 entered consistent with a jury verdict finding him guilty of robbery with a dangerous weapon.
    On 21 February 2001, a juvenile delinquency petition was filed charging defendant with robbery with a dangerous weapon. The case was thereafter transferred to superior court, and a bill of indictment was issued on the same charge. At trial, the State's evidence tended to show that, at approximately 11:00 p.m. on 16 November 2000, an individual wearing a thermal mask over part of his face robbed Robert Phillips (Phillips) at gunpoint in Sycamore Street Park, Rocky Mount, North Carolina. The assailant was astocky African-American of average height. He was also described as wearing dark clothes and black gloves and having dreadlocks with a seashell entwined in them. The assailant took Phillips' coat and all of his jewelry but did not take anything from Travis Taylor (Taylor), who was with Phillips at the time.
    Taylor, a friend of Phillips, had asked Phillips earlier to check at the Rocky Mount Police Station if there were any outstanding warrants against Taylor. The two young men had agreed to meet in the Sycamore Street Park after Phillips obtained the information. It was soon after Phillips reached the park that the robber approached him and Taylor. From the tenor of the exchange between the robber and Taylor, Phillips suspected the robbery was not by chance. Earlier in the day, Taylor's girlfriend had told Phillips that Taylor and a couple of other individuals had been talking about robbing someone that evening. Taylor's girlfriend further informed Phillips that they had a black .22 caliber pistol. Sometime after the robbery, Phillips received a letter at his 500 Block Sycamore Street residence addressed to defendant, wherein Taylor detailed his and defendant's involvement in the robbery. In juvenile court and again during the trial in this matter, Phillips identified defendant as the person who had robbed him.
    When the police interviewed Taylor about the robbery, he gave them a signed statement confirming he had witnessed the robbery of Phillips and that defendant was the perpetrator. He described defendant as “short and stocky, light skinned, with dreads” and noted that his nickname was “Pot.” Taylor then told the policethat defendant lived on Sycamore or Eastern Avenue. At trial, Taylor read his statement and testified on direct examination in conformity with that statement. Taylor, however, contradicted his earlier direct testimony and police statement on cross-examination, stating he had not recognized the robber. Taylor also testified, without objection, regarding a letter he had written and sent from prison to defendant. Taylor testified he had sent the letter to defendant at 500 Block Sycamore Street because he thought this was defendant's address.
    Based on Taylor's statement, police officers located defendant at his residence at 707 Eastern Avenue, Rocky Mount, North Carolina. They read defendant his juvenile Miranda rights and told him they were there regarding the 16 November 2000 robbery of Phillips. When one of the officers told defendant there was a witness who had recognized him as the robber, defendant replied: “Well, Travis Taylor must have told you I did it because he's the only one that knew I did.” The officers asked defendant to get dressed so they could escort him to the police station to take his statement. The officers arranged to have his mother telephoned at work to apprise her of the situation. At the police station, defendant was again advised of his rights. After signing a written waiver, defendant made a statement confessing to the armed robbery of Phillips. This statement was read into evidence at trial without objection.
    Defendant testified on his own behalf, stating his confession was not true and explaining he had made his statement to the policeonly after he had received threatening telephone calls. It was during those threatening calls that defendant was told what to tell the police. According to defendant, Taylor sent the letter to Phillips' address on purpose. Defendant also presented evidence to show he had been at a church sleep-over at the time of the robbery. Defendant's mother had dropped him off at the church between 6:15 p.m. and 6:30 p.m. Although defendant testified he had remained at the church all night and his pastor testified to seeing defendant's name on the sign-in sheet, the pastor admitted that he had not been personally present at the sleep-over and had no way of verifying defendant's name on the sign-in sheet. The pastor conceded that cousins of the defendant were at the sleep-over and that they could have signed defendant in and answered for him at roll call. Defendant's pastor testified he had spoken with Taylor on the day before the trial, and Taylor had admitted to him that he and defendant had committed the robbery. Finally, on cross-examination, defendant admitted to having owned a .25 caliber pistol in the past.

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    The sole issue on appeal is whether the trial court committed plain error by admitting into evidence Taylor's letter and certain written and oral statements made by him.
    We note at the outset that defendant, having failed at trial to object to the admission of the testimony he is now challenging, attempts to avail himself of plain error review. See N.C.R. App. P. 10(c)(4). “The test for plain error places the burden on adefendant to show that error occurred and that the error was a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.'” State v. McEachin, 142 N.C. App. 60, 68, 541 S.E.2d 792, 798 (2001) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)) (internal quotations omitted). This requires a showing that the error “had a probable impact on the jury's finding of guilt.” Odom, 307 N.C. at 661, 300 S.E.2d at 379. Appellate Rule 10(c)(4), however, requires that plain error be “specifically and distinctly” asserted in the defendant's assignment of error in order to entitle him to review under the plain error doctrine. N.C.R. App. P. 10(c)(4); see State v. Moore, 132 N.C. App. 197, 201, 511 S.E.2d 22, 25 (1999) (“[w]here a defendant fails to assert plain error in his assignments of error . . . he has waived even plain error review”). In this case, defendant failed to assert plain error in any of his assignments of error on appeal. Therefore, he has waived plain error review.
    Even assuming arguendo the issue was properly before this Court, defendant cannot show plain error in the admission of the subject evidence. Not only did the victim identify defendant as the person who robbed him on 16 November 2000, but defendant himself confessed to committing the crime, an admission that was admitted into evidence without objection and has not been challenged on appeal. In addition, when confronted with the information that a witness had recognized him, defendant blurted out, “Well, Travis Taylor must have told you I did it because he'sthe only one that knew I did.” Finally, defendant's alibi witnesses could not state with certainty that defendant was present at the church sleep-over at the time of the robbery. Accordingly, defendant cannot show that the trial court committed plain error in allowing the State to introduce into evidence the letter written by Taylor to defendant or Taylor's written and oral statements. See State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (under plain error review, the defendant must show that absent the alleged error the jury probably would have reached a different verdict).
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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