NO. COA02-1459
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2003
STATE OF NORTH CAROLINA
v. Pitt County
Nos. 01 CRS 050406,
050409, 050412 &
LIONEL SHORTES WHITE 050420-25
Appeal by defendant from judgments dated 28 May 2002 by Judge
W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the
Court of Appeals 28 August 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill B. Hickey, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
BRYANT, Judge.
Lionel Shortes White (defendant) appeals from judgments dated
28 May 2002 entered consistent with a jury verdict finding him
guilty of two counts of robbery with a firearm, one count of
second-degree burglary, seven counts of second-degree kidnapping,
and seven counts of assault by pointing a gun.
At trial, the State's evidence indicated that on 4 January
2001, defendant and at least two other unknown perpetrators
committed burglary, robbery, and other crimes at the home ofJeffrey Wright in Greenville, North Carolina.
(See footnote 1)
Except for
defendant, all the perpetrators wore masks. Present during the
invasion were Jeffrey, his wife Tanya, his son Jeffrey, II, his
nephew, his sister Angela Cole, Cole's daughter Asya, Jeffrey's
business partner Frankie Atkinson, and another guest, Sharon
Raynor. The intrusion lasted for forty to forty-five minutes.
Before leaving, the perpetrators took the following items: from
the Wrights $4,000 in cash, jewelry, guns, a cellular phone, a
pager, a watch, and a box of trinkets; from Atkinson a shirt, a
wallet, a watch, and a checkbook; and from Raynor a cellular phone.
Evidence at trial also included eyewitness identification of
defendant as one of the perpetrators, testimony indicating
defendant used his sister's car for the robbery, and testimony
regarding the electronic tracking of the route of the two stolen
cellular phones from Greenville to Wilson, North Carolina, where
defendant's sister worked.
During his opening statement, defendant, through counsel,
asserted the State had no evidence of a confession from defendant.
Meanwhile the State learned that Michael King, who was in jail
facing unrelated charges, had information about the crimes anddefendant's involvement. On the second day of trial, the State
interviewed King, who said defendant had admitted the robbery to
him. That same day the State provided defendant with supplemental
discovery detailing the substance of King's proposed testimony and
disclosed that King was a “jailhouse snitch” but did not disclose
his name. On the third day of trial, the State provided to
defendant King's name and records of King's and defendant's
previous locations in the jail. Thereafter, defendant conducted a
voir dire examination of King outside the presence of the jury.
Defendant made motions for exclusion of testimony, a continuance,
and a mistrial, arguing King's testimony would violate defendant's
due process rights and N.C. Gen. Stat. § 15A-903. The trial court
denied the motions, finding no prejudice to defendant and no
statutory violation.
_________________________
The issues are whether the trial court erred in: (I) denying
defendant's motions for a continuance and a mistrial; (II)
questioning several State witnesses in the presence of the jury;
(III) its instructions on reasonable doubt and direct and
circumstantial evidence; (IV) finding as an aggravating factor that
defendant “joined with more than one person in committing the
offense[s]” of robbery and kidnapping; and (V) ordering restitution
to the Wrights.
I
Defendant first argues that the trial court's denial of his
motions for a continuance and a mistrial violated his
constitutional right to effective assistance of counsel.
(See footnote 2)
Defendant asserts that insufficient opportunity to investigate and
prepare for cross-examining King resulted in the denial of
effective assistance of counsel. In addition, defendant states he
lost credibility with the jury when counsel noted the lack of a
confession in opening statement. He claims that had either of the
motions been granted, he would have been able to restrategize and
remedy the error.
“[W]hen a confession is challenged on . . . grounds which are
not clearly brought to the attention of the trial judge, a specific
objection or explanation pointing out the reason for the objection
or motion to suppress is necessary.”
State v. Hunter, 305 N.C.
106, 112, 286 S.E.2d 535, 539 (1982);
see also N.C.R. App. P.
10(b)(1) (“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 partydesired the court to make if the specific grounds were not apparent
from the context”). Furthermore, “a constitutional question which
is not raised and passed upon in the trial court will not
ordinarily be considered on appeal.”
Hunter, 305 N.C. at 112, 286
S.E.2d at 539.
In the instant case, defendant's assignment of error based on
the constitutional questions of ineffective assistance of counsel
and violation of the Confrontation Clause is not reviewable on
appeal. Though defendant asserted in conclusory fashion at trial
the admission of King's testimony would violate his due process
rights, defendant made no specific argument regarding due process
and did not challenge the trial court's failure to rule on the
claims. Therefore, as the constitutional claims were not ruled
upon by the trial court, defendant is not permitted to raise them
on appeal.
See id.; N.C.R. App. P. 10(b)(1).
Assuming
arguendo defendant's constitutional claims were
properly preserved. They are nevertheless without merit.
To establish a constitutional violation, a
defendant must show that he did not have ample
time to confer with counsel and to
investigate, prepare and present his defense.
To demonstrate that the time allowed was
inadequate, the defendant must show “how his
case would have been better prepared had the
continuance been granted or that he was
materially prejudiced by the denial of his
motion.”
State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993)
(citation omitted). In the instant case, defendant makes general
allegations regarding “numerous areas of interest” he could have
explored had he been allowed time for preparation. However,
defendant is unable to show material prejudice, especially where
the record indicates defendant conducted extensive and skillful
cross-examination of King. This, along with significant evidence
of guilt, mandates a conclusion of no material prejudice and no
constitutional violation.
II
Defendant also claims the trial court expressed impermissible
opinions to the jury during its questioning of four witnesses.
Specifically, defendant claims the trial court attempted to
strengthen the testimony of two witnesses concerning defendant's
identification and attempted to rehabilitate the testimony of two
other witnesses. We disagree.
“[A] trial judge must not express any opinion as to the weight
to be given to or credibility of any competent evidence presented
before the jury.”
State v. Harris, 308 N.C. 159, 167, 301 S.E.2d
91, 97 (1981). However, a trial judge may question a witness to
clarify or to promote a better understanding of the witness's
testimony.
State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d
403, 409 (1986). In the present case, the trial court's questionsto the four witnesses are as follow:
Tanya
After the redirect examination of Tanya and upon defense
counsel's declination to conduct re-cross-examination, the trial
court asked the witness:
Court: [Y]ou testified that the light was
on in the dining room?
Witness: Yes, sir.
Court: Did that light in any way illuminate
any part of the living room?
Witness: No sir. The living room was dark
but when the light is on in the
dining room, it lights the whole
dining room and somewhat part of the
back foyer area.
Defendant argues the identification of the perpetrators is a
crucial part of the case and the trial court's questions are a
“clear effort to strengthen” Tanya's identification of defendant.
Jeffrey
After the cross-examination of Jeffrey, the trial court asked
him several questions. Again, defendant argues the trial court's
questions to Jeffrey were intended to buttress his identification
of defendant.
Court: And I believe [defense counsel]
asked you if you had an opportunity
to look at anybody's face and your
answer was no. Did you ever _ did
you get a clear look at thedefendant?
Witness: I got a clear look at . . .
defendant but the other guy I
couldn't see because the other guy
rushed in with the gun and
immediately ordered me to get down,
but [defendant] was just standing in
the foyer right where he was when
all this was happening.
Court: When did you see him?
Witness: When I walked out of the bedroom and
when that guy came rushing in, I
turned and looked. [Defendant] was
still there, and this guy busted in
the door behind him. That's how the
hinges got broke on my screen door.
They yanked the door open and he was
still standing and the other guy
rushed in behind him.
Moore
Wally Moore, a crime scene investigator, testified that after
analyzing all the physical evidence gathered from the crime scene
and finding nothing inculpatory, he destroyed the evidence.
Following cross-examination, the trial court asked Moore: “[A]s to
each item that you examined and that is not now available, please
explain to the jury the reason for its destruction or
unavailability or the reason that you didn't make any further
examination of that particular item?” Defendant argues the trial
court attempted to rehabilitate Moore's testimony through this
question.
King
Defendant claims during cross-examination of King, defense
counsel raised doubt on the possibility of interaction between
King, a juvenile offender, and defendant in the jail. After the
cross-examination, the trial court asked King several questions.
Defendant argues the trial court attempted to rehabilitate King's
testimony through these questions.
Court: So the jury will be clear, tell us
[,] are the adults allowed to
intermingle with the juveniles?
Witness: Yes, sir. We can.
Court: But are you in the same area at that
time?
Witness: Yes, sir.
Court: Is there anything separating you
from the adults?
Witness: The only thing separating us is a
door _ the door that _ there's
different cells in the dorms and the
only [sic] separating us is the
door, but there's an opening in the
door, a trap, and sometimes we'll
play checkers on the trap or play
cards.
Court: But you couldn't sit on the bed of
an adult, could you?
Witness: No, sir.
Court: So you're not allowed to be able to
actually be in the same area like we
are here? There's a separation?
Witness: There's a door between us but we can
still touch each other if we want to
through a trap.
In reviewing the trial court's questions of the four witnesses
and the context of those questions, we hold the trial court's
actions were entirely proper. The trial court did not interfere
with the examinations of the witnesses and questioned the witnesses
only after the State and defendant completed their respective
examinations. The fact that the trial court's questions sought to
clarify testimony regarding circumstances surrounding
identification of defendant and destruction of evidence does not
necessarily suggest an attempt to buttress or rehabilitate witness
testimony. On the contrary, the trial court's questions to the
witnesses were clearly intended to clarify confusing testimony for
the benefit of the jury.
See State v. Freeman, 280 N.C. 622, 627,
187 S.E.2d 59, 63 (1973) (as judges “preside over the courts as
. . . essential and active factors or agencies in the due and
orderly administration of justice[, i]t is entirely proper, and
sometimes necessary, that they ask questions of a witness so that
the 'truth, the whole truth, and nothing but the truth' be laid
before the jury”) (citations omitted).
III
Defendant next contends the jury instructions on reasonable
doubt and direct and circumstantial evidence read togetherconstituted error and violated defendant's constitutional right to
a fair trial. Particularly, defendant asserts the instructions did
not define the clause “beyond a reasonable doubt” and did not
contain the requirement that the jury had to acquit defendant if it
was not convinced of his guilt beyond a reasonable doubt.
Defendant cites no authority, as required by N.C.R. App. P.
28(b)(6), to support his proposition that the jury instructions
read together constituted error and violated defendant's
constitutional right to a fair trial. Moreover, defendant did not
object to the instructions before the jury retired to consider the
verdict and failed to allege specifically and distinctly plain
error in his assignment of error.
See State v. Hunt, 339 N.C. 622,
650, 457 S.E.2d 276, 292 (1994) (absent an objection, the
assignment of error is considered under the plain error standard of
review); N.C.R. App. P. 10(c)(4) (assignment of error not preserved
where the judicial action questioned is not specifically and
distinctly contended to amount to plain error). Accordingly, this
assignment of error was not preserved for appellate review and is
overruled.
IV
Defendant further claims the trial court erred in finding as
an aggravating factor that defendant “joined with more than one
other person in committing the offense and was not charged withcommitting a conspiracy,”
see N.C.G.S. § 15A-1340.16(d)(2) (2001),
for the robbery with a firearm of Jeffrey and Atkinson and the
second-degree kidnapping of Jeffrey, Jeffrey, II, Atkinson, Cole,
and Asya. According to a defendant, joining with more than one
other person in committing the offense is an element of both
robbery and kidnapping and thus cannot be used as an aggravating
factor. We disagree.
“Evidence necessary to prove an element of the offense shall
not be used to prove any factor in aggravation . . . .” N.C.G.S.
§ 15A-1340.16(d) (2001). The elements of robbery with a dangerous
weapon are: (1) taking or attempting to take the property from the
person of another or in that person's presence; (2) by threat; (3)
through the use of a dangerous weapon.
In re Stowe, 118 N.C. App.
662, 664, 456 S.E.2d 336, 337 (1995); N.C.G.S. § 14-87(a) (2001).
The elements for second-degree kidnapping are: (1) unlawfully
confining; (2) another; (3) without consent; (4) for the purpose of
facilitating the commission of a felony; and (5) the person
kidnapped is released in a safe place and is not seriously injured
or sexually assaulted.
State v. Allred, 131 N.C. App. 11, 19-20,
505 S.E.2d 153, 158-59 (1998); N.C.G.S. § 14-39(a)-(b) (2001).
That defendant joined with more than one person in committing the
offense is not an element of either of these crimes.
Here, defendant joined with at least two others in committingthe charged offenses. Even though this fact was used to prove
defendant's culpability under the theory of acting in concert, our
Supreme Court has stated that the statutory aggravating factors
“contemplate a duplication in proof without violating the
proscription that 'evidence necessary to prove an element of the
offense may not be used to prove any factor in aggravation.'”
State v. Bruton, 344 N.C. 381, 394, 474 S.E.2d 336, 345 (1996)
(citing
State v. Thompson, 309 N.C. 421, 422 n.1, 307 S.E.2d 156,
158 n.1 (1983)). Accordingly, this assignment is overruled.
Defendant also assigns error to the trial court's finding of
the aggravating factor of committing a crime in furtherance of a
criminal street gang (factor 2a) for the second-degree kidnapping
of Raynor. The trial transcript indicates that for this offense,
the trial court found only the aggravating factor of joining with
more than one other person in committing the offense (factor 2).
It appears, therefore, that checking the “factor 2a” box on
defendant's criminal record was a clerical error. We remand as to
the offense of second-degree kidnapping of Raynor for correction of
this clerical error.
V
Finally, defendant alleges the trial court's restitution order
for the Wrights' loss of jewelry, cellular phone, and pager is not
supported by the evidence. To preserve a question for appellatereview, a party must timely object to the trial court's ruling by
stating the specific grounds for the desired ruling. N.C.R. App.
P. 10(b)(1). In this case, when the State requested restitution in
open court, defendant through counsel stated that he did not want
to be heard on the restitution issue. When the trial court
announced the restitution payments and asked whether anyone had any
questions about the judgment, defendant objected to the finding of
aggravating factors only. Under these circumstances, defendant
failed to preserve the restitution issue for appellate review.
See
State v. Applewhite, 127 N.C. App. 677, 684-85, 493 S.E.2d 297, 301
(1997) (holding that the defendant failed to preserve the
restitution issue for appeal by not objecting to the trial court's
restitution order issued under similar circumstances). As a
result, we do not address this issue.
No error at trial.
Remanded for correction of clerical error.
Judges McGEE and GEER concur.
Report per Rule 30(e).
Footnote: 1