State v Dudley, (02-1113) 09/16/2003

Appeal by defendant from judgment entered 17 April 2002 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 18 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Janet Moore, for defendant.

TYSON, Judge.

Christopher Lawrence Dudley (“defendant”) appeals from judgment entered upon a jury's verdict finding him guilty of common-law robbery. Defendant was sentenced to an active term of imprisonment of twenty to twenty-four months.

I. Background

    On 25 July 2001, eighty-year-old Louise Warren (“victim”) drove her car to a supermarket in Greensboro around 4:00 p.m. The victim parked her car in the first available handicap parking space before exiting her car and entering the store. She carried a tan purse, which contained her papers, driver's license, keys to her home and car, and one hundred dollars in cash. The victim spent between thirty and forty minutes grocery shopping. After exitingthe store, the victim entered the driver's side of her car and placed her purse between herself and the passenger seat.
    As the victim entered her key into the ignition switch, a bluish, older model car pulled next to her parked car. A man exited that car and approached the victim's passenger side window and attempted to talk to her. The victim rolled down the passenger side window. The man asked the victim for directions to the I-HOP restaurant. While the victim attempted to give the man directions, he reached into the victim's car and grabbed her purse. The victim screamed and injured her fingers as she tried to hold onto her purse. After stealing the victim's purse, the assailant jumped into his car and fled the scene.
    The victim gave a description of her assailant and the events that had transpired to Officer Robert Ferrell at the crime scene. She described the robber as a white male, about 180 pounds, five feet eight inches tall, with light brownish-blonde hair. The victim met with Detective Ronald Stewart (“Detective Stewart”) two weeks after the incident to discuss the case. Detective Stewart showed her a display of six photographs. The victim identified defendant in two to four minutes. At trial, the victim described the robber and identified defendant as the person who had stolen her purse.
    Lisa Pegram (“Pegram”) was shopping at the supermarket on the afternoon of the robbery. As Pegram exited the store, she heard a woman screaming for help and declaring, “he has my purse!” Pegram witnessed the robber run from the victim's car and enter a dark-blue Toyota. Pegram began walking toward the vehicle. The assailant paused as he entered the car and looked directly at Pegram. She described the assailant at the scene as a white male between five-eight and five-ten with sandy-blonde to light-brown hair. Pegram later identified defendant as the assailant at trial.     Pegram saw the license plate of the assailant's car and gave the license plate number to Officer Robert Ferrell at the scene. The tags were registered to Paul Mark Nelson (“Nelson”), a resident of Asheboro. Detective Stewart obtained a DMV photograph of Nelson and eliminated him as a suspect because the report described the robber as a white male with blonde hair. Nelson's photograph showed that he was bald and wore glasses. Nelson's DMV photograph matched the Paul Nelson who appeared in court.
    After Detective Stewart eliminated Nelson as a suspect, he called the Randolph County Communications Center and requested a telephone number for the address of 417 East Central Avenue, Asheboro, the registered address of the suspect's vehicle. A telecommunications officer informed Detective Stewart that on 14 July 2001, a 911 call had been placed from that address by an individual named Chris Dudley. Detective Stewart obtained a photograph of Dudley, showed it to the victim, who identified him as the man who had stolen her purse. Defendant was subsequently arrested and charged with common-law robbery.
    Curtis Metz (“Metz”) testified for defendant that at 4:00 p.m. on the day of the robbery he gave defendant his paycheck at Hancock Country Hams in Franklinville, North Carolina. Defendantsupervised a pressure washer crew at Hancock Country Hams and usually left the plant each evening around 6:00 p.m. Defendant's timecard for 25 July 2001 showed that he worked from 3:34 p.m. to 5:40 p.m. The jury found defendant guilty of common-law robbery.
    Defendant appealed. After filing his appeal, defendant also filed a Motion for Appropriate Relief with this Court.

II. Issues

Defendant contends that the trial court erred in (1) entering judgment where the verdict was against the greater weight of the evidence; (2) granting the State's motions to strike material exculpatory evidence; and (3) allowing opinion testimony on ultimate issues for the jury and the trial court's instructions.

    The State contends defendant failed to preserve the issue of sufficiency of the evidence for appellate review. N.C. Gen. Stat. § 15A-1446 provides that in order to preserve an issue for review, error must have been “brought to the attention of the trial court by appropriate and timely objection or motion.” However, subsection (d) of the Statute stated:
        [e]rrors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division . . .

            (5) the evidence was insufficient as a matter of law.

N.C. Gen. Stat. § 15A-1446(d)(5)(2001). In State v. Spaugh, our Supreme Court states:
        Although N.C. Gen. Stat. § 15A-1446(d)(5) provides that questions of insufficiency of the evidence may be the subject of appellate review, even when no objection or motion has been made at trial, North Carolina Rules of Appellate Procedure 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at trial. We have specifically held in this regard that: “To the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with the N.C.R. App. P. 10(b)(3), the statute must fail.” State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987).

321 N.C. 550, 552-553, 364 S.E.2d 368, 370 (1988).
    Defendant failed to move to dismiss at the close of all the evidence after he had introduced evidence as required by Rule 10 (b)(3) of the North Carolina Rules of Appellate Procedure. He failed to preserve the issue of sufficiency of the evidence for review on appeal. This assignment of error is overruled.
    Defendant contends, should we decide this assignment of error was waived at trial, that failure to renew the motion to dismiss constitutes ineffective assistance of counsel entitling him to a new trial. This argument is without merit. A defendant, alleging ineffective assistance of counsel, must satisfy a two-prong test.
        First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.2d 674, 693 (1984). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 80 L. Ed.2d at 698.
    Despite defendant's failure to preserve the issue of sufficiency of the evidence, it should be noted that:
        [r]eview of a motion to dismiss requires that all of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom. Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged.

State v. Griffin, 136 N.C. App. 531, 544, 525 S.E.2d 793, 803, disc. rev. denied, 351 N.C. 644, 543 S.E.2d 877. “In order to withstand a motion to dismiss, the evidence must be sufficient to draw a 'reasonable inference of guilt.'” Id. Once a determination is made, “it is up to the jury to decide whether the facts taken singly or in combination satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.” Id.
    Here, there is no reasonable probability that the trial judge would have granted defendant's motion to dismiss had defense counsel renewed the motion to dismiss at the close of all the evidence. The State presented eyewitness testimony of the victim and Pegram to connect defendant to the crime. Both witnesses identified defendant in court as the perpetrator. This evidence issufficient for a jury to find beyond a reasonable doubt that defendant committed the crime in question. Since the State presented sufficient evidence to deny defendant's motion, defense counsel's failure to renew his motion to dismiss did not prejudice defendant. This assignment of error is overruled.

    Defendant next contends the trial court erred in sustaining the State's objections to material exculpatory evidence. Defense counsel sought to cross-examine Nelson on his previous larceny convictions:
        Q.    Mr. Nelson, what, if anything, have you been convicted of in the past ten years that would carry punishment of possibly more than sixty days?

        A.    More than sixty days?

        Q.    That's right.

        A.    Larceny.

        Q.    Was it more than one count of larceny?

        A.    Yes.

        Q.    And was that - was that conviction a misdemeanor or felony?

        A.    Misdemeanor.
        Q.    Isn't it true that the misdemeanor was reduced down from a larceny from the person?

        A.    Yes.

        Q.    And isn't it true that the allegations were that you had taken somebody's purse?

        A.    Wallet.

            MR CHUT:        Objection, Your Honor.

            THE COURT:    I'm sorry. What did you say?

            THE WITNESS:    Wallet.

            MR. CHUT:        I repeat my objection, Your Honor.

            THE COURT:    Objection sustained.

    “Evidence that someone other than defendant committed the crime for which defendant is charged generally is relevant and admissible as long as it does more than create an inference or conjecture in this regard.” State v. Hamilton, 351 N.C. 14, 20, 519 S.E.2d 514, 518 (1999). Evidence of other crimes on the issue of identity can be offered when the modus operandi of the other crime and the crime which is the subject of the current trial are “similar enough to make it likely that the same person committedboth crimes.” State v. Hoffman, 349 N.C. 167, 183, 505 S.E.2d 80, 90 (1998). There must be “some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes.” Id., quoting State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983).
    The State contends defendant failed to preserve this issue on appeal. Defendant failed to make an offer of proof showing the relevance and importance in the questioning of Nelson's prior convictions.
        [I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance is obvious from the record.

State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). Since defendant failed to preserve this issue for appeal, we overrule this assignment of error.
    Defendant asserts that trial counsel's failure to make an offer of proof constitutes ineffective assistance of counsel. As previously stated, a defendant alleging ineffective assistance of counsel must show that counsel's performance was deficient and the deficiency must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.2d 674, 693 (1984); see also State v. Grooms, 353 N.C. 50, 64, 540 S.E.2d 713, 722 (2000). A defendant must demonstrate a reasonable probability that the trial result would have been different absent counsel's error. Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693. Defendantcontends he is unable, on the present record, to litigate any claim for ineffective assistance of counsel. In his appeal, Defendant requests this Court to order an appointment of postconviction counsel to investigate and develop the extra-record facts necessary to pursue such claims through a motion for appropriate relief.

    As a result of additional evidence, Defendant filed with this Court a Motion for Appropriate Relief on 6 March 2003. Defendant's motion requests a new trial based on the discovery of available material exculpatory evidence. Our Supreme Court grants a new trial when excluded exculpatory evidence “cast doubt upon the State's evidence that defendant was the perpetrator of this crime and because it implicated another person as that perpetrator beyond conjecture or mere implication.” State v. Israel, 353 N.C. 211, 219, 539 S.E.2d 633, 638 (2000).
    Defendant's motion includes affidavits and evidence indicating Nelson's prior convictions of larceny. In his affidavit, defendant's trial counsel admitted he did not know or attempt to discover the circumstances regarding Nelson's convictions. If defendant's trial counsel had been allowed to question Nelson further, evidence might have indicated Nelson had committed crimes with a very similar modus operandi to the crime to which defendant was charged.
    We grant defendant's motion in part and remand this issue for a hearing on whether defendant should be granted a new trial.

Defendant assigns as error the arresting officer's testimony regarding probable cause for defendant's arrest. Defendant asserts as error the admission of the officer's testimony that the victim's identification of defendant from a photograph lineup constituted probable cause for his arrest and “there was nothing in the investigation that showed Mr. Nelson was involved in this particular crime.” Defendant contends that testimony about the existence of probable cause was an ultimate issue for the jury's resolution and the trial court's instruction. The State argues that defendant did not preserve this issue for appeal. Defendant's trial counsel did not move to strike or request a curative instruction. Failure to strike a portion of an answer, even though the answer is objected to, results in waiver of the objection. State v. Barton, 335 N.C. 696, 709, 441 S.E.2d 295, 302 (1994), quoting State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). Since defendant did not move to strike the portions of testimony he now asserts as his basis for appeal, this assignment of error is overruled.
Defendant also asserts that his trial counsel's failure to strike testimony constitutes ineffective assistance of counsel. Failure to strike the portions of testimony now objected to did not have a substantial effect on the outcome of trial. In light of all the evidence presented at trial, statements made by the arresting officer explaining his own actions shows that trial counsel's failure to strike testimony did not prejudice defendant or the outcome of the trial. Counsel's failure to move to strike thistestimony does not constitute ineffective assistance of counsel. This argument is overruled.