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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JARVIS PULLEN, Defendant
Filed: 20 April 2004
Robbery_sufficiency of evidence_recanted confession of codefendant
There was sufficient evidence of defendant's guilt of robbery with a dangerous weapon
even though a codefendant's confession was recanted at trial. The jury decides whether to give
more weight to the original statement or to the testimony, and there was other evidence
Evidence_denial of motion in limine_no objection at trial
Defendant did not fully preserve the issue of the admissibility of a codefendant's
confession where defendant's motion in limine was denied and defendant did not object at trial.
The amendment to N.C.G.S. § 8C-1, Rule 103(a)(2) (objection need not be renewed after
definitive ruling on evidence) applies only to rulings made on or after 1 October 2003.
Confessions and Incriminating Statements_confession-- unavailable codefendant
The confession of an unavailable codefendant in a robbery trial was erroneously admitted
but did not constitute plain error in light of other evidence. The testimony was given during the
police interrogation of a witness who had given notice that he intended to invoke his Fifth
Amendment rights, there was no opportunity for cross-examination, and admission of the
statement violated the Confrontation Clause under Crawford v. Washington, 541 U.S. ___
Appeal by defendant from judgments entered 10 September 2002
by Judge Stafford G. Bullock in Wake County Superior Court. Heard
in the Court of Appeals 14 January 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Victoria L. Voight, for the State.
Thomas R. Sallenger, for defendant-appellant.
Defendant Jarvis Pullen appeals from his conviction on two
counts of robbery with a dangerous weapon. We hold that the trial
court properly denied defendant's motion to dismiss, but that the
court erred, under the Confrontation Clause, in admitting the out-
of-court confession of a non-joined co-defendant. Although
defendant moved to suppress the confession prior to trial, he
failed to repeat his objection when the confession was ultimately
offered into evidence and, therefore, failed to preserve his
objection for appellate review. Based on our review of the record,
we conclude that defendant has failed to meet the standard required
for reversal under the plain error doctrine.
Between 5:00 p.m. and 6:00 p.m. on 12 April 2002, three young
males _ two of them wielding guns _ robbed Darryl Lawrence, Jr. and
Jacqueline Jones as they sat on the porch of the Raleigh, North
Carolina house of Darryl's brother, Montrell Lawrence. Darryl
Lawrence, who had injured his leg, was wearing an orthopedic boot
and using crutches. Having just cashed his paycheck, he had
approximately $3,225.00 in his pockets. Jones' purse contained
Two of the robbers jumped onto the porch. The third remained
on the ground, holding a gun. One of the robbers on the porch
pointed a gun at Lawrence while the other pushed him down. The
robbers removed the cash from Lawrence's pocket and took jewelryfrom him valued at approximately $3,700.00. The armed robber on
the porch told Jones not to speak or he would shoot her, grabbed
her purse, and emptied it of the cash. He then hit Lawrence across
the face with his gun.
When Montrell Lawrence, who was across the street, heard that
his brother was being robbed, he ran towards his house and
witnessed the robberies in progress. The robbers ultimately fled
by running around the right side of the house. Darryl Lawrence
called the police on his cellular phone.
Although the victims testified that they did not see the
robbers' faces clearly because their attention was focused on the
guns, they and Montrell Lawrence described the general appearance
of each of the three robbers, all of whom were African-American and
were between the ages of 15 and 20. The robber on the porch
holding the gun had a medium complexion and was wearing a dark
baseball cap, a white basketball jersey with blue lettering on it,
and bleach-spotted, faded jeans. The second robber on the porch
was small and had a light complexion. The robber who remained on
the ground had a dark complexion, gold front teeth, and ear-length
dreadlocks. He was dressed all in black and was wearing a black
A short time after the robbery, at approximately 6:15 p.m. to
6:20 p.m., police briefly detained Terrence Little, Courtney
Barnes, and defendant, who were walking along Alston Street, a fewblocks from where the robbery had occurred on Cabarrus Street. A
police officer drove Darryl Lawrence to the detained suspects.
Lawrence was shown Little and defendant, but was unable to
positively identify either of them as the robbers.
After further investigation, the police located Barnes and
interviewed him at the police station in the presence of his
mother. Although first denying any involvement in the robbery,
Barnes later orally confessed and identified Little and defendant
as being the other two robbers.
The police located Little and brought him to the police
station. When taken into custody, Little was wearing a white
basketball jersey with blue lettering and faded, bleached jeans.
After being told that Barnes was in custody, Little gave both an
oral and written confession that also identified defendant as the
Little told police that he had gotten a room at a Red Roof Inn
for defendant because defendant lacked identification. The police
located defendant in the room and arrested him. A search of the
room produced a bag of marijuana, $97.00 in cash, jewelry belonging
to defendant's girlfriend, a black toboggan hat, and false teeth.
The police found none of the victims' money or jewelry in the room;
nor was there any evidence of a gun.
Barnes entered into an agreement with the State under which he
agreed to give testimony consistent with his confession atdefendant's trial in exchange for being adjudicated as a juvenile.
At defendant's trial, however, he recanted his confession,
testifying that he had lied both to the police and to the juvenile
court when he confessed to participating in the robbery.
Although Darryl Lawrence was unable at trial to identify
defendant as one of the robbers, he confirmed that Barnes was the
robber on the porch who pushed him. After being shown a photograph
taken of Little on the night of the robbery, Jones identified the
basketball jersey as the one being worn by the robber with the gun
on the porch. Jones also testified that defendant was not one of
the robbers based on his hair and his weight at the time of the
trial. Barnes and other witnesses, however, testified that
defendant's hair and weight had changed significantly by the time
Defendant presented only one witness, a friend of defendant's
girlfriend, who testified that she saw three males running down
Cabarrus Street at about the time of the robbery. She testified
that she briefly saw their faces, that she did not recognize them,
and that none of them was defendant. She reported that all three
were wearing black "hoodies."
 Defendant first argues that the trial court erred in
failing to dismiss the charges against him. Defendant contendsthat the State's evidence was insufficient to prove that he
committed the robberies. We disagree.
Upon a defendant's motion for dismissal, the question for the
court is whether substantial evidence exists (1) of each essential
element of the offense charged, and (2) that defendant was the
perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573
S.E.2d 866, 868 (2002)
. Substantial evidence is that amount of
"relevant evidence that a reasonable mind might accept as adequate
to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461
S.E.2d 655, 663 (1995).
The evidence must be viewed in the light
most favorable to the State, allowing the State every reasonable
inference to be drawn from the evidence. State v. Johnson, 310
N.C. 574, 577, 313 S.E.2d 560, 563 (1984).
may be sufficient to support a conviction even when "'the evidence
does not rule out every hypothesis of innocence.'" State v.
Haselden, 357 N.C. 1, 18, 577 S.E.2d 594, 605
(quoting State v.
Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)), cert.
denied, 540 U.S. 988, 157 L. Ed. 2d 382, 124 S. Ct. 475 (2003).
"If there is substantial evidence _ whether direct,
circumstantial, or both _ to support a finding that the offense
charged has been committed and that the defendant committed it, the
case is for the jury and the motion to dismiss should be denied.
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Contradictions or inconsistencies in the evidence do not warrantdismissal. State v. Williams, 355 N.C. 501, 579, 565 S.E.2d 609,
654 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808, 123 S.
Ct. 894 (2003).
Here, Barnes' confession, identifying defendant as the robber
who remained on the ground, was sufficient to defeat defendant's
motion to dismiss. Although he recanted that confession at trial,
it was the responsibility of the jury, and not the trial court, to
decide whether to give greater weight to Barnes' trial testimony
than his original confession. Id. Further, the State offered
evidence that defendant, Little, and Barnes were all found shortly
after the robbery only a few blocks away; that the three, at the
time they were stopped, matched the descriptions of the robbers,
including their clothes and physical appearance; and that Darryl
Lawrence identified Barnes as one of the robbers, while Jones
identified the clothes Little was wearing as being the same as a
second robber. Since Barnes testified at trial that he and Little
were with defendant during the time of the robbery, these
identifications also implicate defendant. This evidence, both
direct and circumstantial, was sufficient to defeat defendant's
motion to dismiss.
 Defendant next contends that the trial court violated the
Confrontation Clause of the United States Constitution by admitting
into evidence the oral and written confessions of non-joined co-defendant Terrence Little. Defendant properly sought to suppress
Little's statements based on the Confrontation Clause by filing a
motion in limine
, which was denied. He subsequently, however,
failed to object when those statements were actually admitted into
Our Supreme Court has held that a motion in limine
insufficient to preserve for appeal the question of the
admissibility of evidence if the defendant fails to further object
to that evidence at the time it is ultimately offered at trial.
State v. Hayes
, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999). The
General Assembly, however, recently amended Rule 103(a) of the
Rules of Evidence to provide: "Once the court makes a definitive
ruling on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of proof
to preserve a claim of error for appeal." N.C. Gen. Stat. § 8C-1,
Rule 103(a)(2) (2003). This amendment, however, applies only to
rulings made on or after 1 October 2003. 2003 N.C. Sess. Laws ch.
101. Since the pre-existing rule applies to this case, we must
hold that defendant failed to fully preserve the issue of the
admissibility of the Little confession for appellate review.
Defendant has assigned plain error to the admission of
Little's confession. In deciding whether an error by the trial
court constituted plain error, "the appellate court must examine
the entire record and determine if the . . . error had a probableimpact on the jury's finding of guilt." State v. Odom
, 307 N.C.
655, 661, 300 S.E.2d 375, 379 (1983). Phrased alternatively, we
must determine whether any error "might have . . . tilted the
scales and caused the jury to reach its verdict convicting the
defendant." State v. Tucker
, 317 N.C. 532, 540, 346 S.E.2d 417,
422 (1986) (internal quotation marks omitted).
 The first question before this Court is whether the trial
court erred in admitting Little's confession. Applying the United
States Supreme Court's recent decision in Crawford v. Washington
541 U.S. __, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), we hold
that the Confrontation Clause barred admission of Little's
When construing the Confrontation Clause in Ohio v. Roberts
448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539
(1980), the Supreme Court originally conditioned the admissibility
of hearsay evidence on whether it falls under a "firmly rooted
hearsay exception" or bears "particularized guarantees of
trustworthiness." In Crawford
, the Supreme Court rejected this
rule as applied to "testimonial statements" because of the rule's
"demonstrated capacity to admit core testimonial statements that
the Confrontation Clause plainly meant to exclude." 541 U.S. at
__, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371.
, "[w]here testimonial evidence is at issue,
however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541
U.S. at __, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court
did not set out a comprehensive definition of "testimonial
evidence," but did expressly hold that "[s]tatements taken by
police officers in the course of interrogations" are testimonial.
541 U.S. at __, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364.
Because Little's statements were made to police officers in
the course of an interrogation, those statements constitute
testimonial evidence under Crawford
. They would only be admissible
if Little was unavailable at trial and if defendant had a prior
opportunity for cross-examination. The parties do not dispute that
Little was "unavailable" given that his attorney notified both
parties that Little would invoke his Fifth Amendment rights
called to testify. Since, however, defendant had no prior
opportunity to cross-examine Little as to his statements, Little's
confession could not be admitted at defendant's trial without
violating the Confrontation Clause.
While the trial court did err in admitting the confession, we
do not believe that this error amounts to plain error. While we
might reach a different result if we were applying the
constitutional "harmless beyond a reasonable doubt" standard, our
review of the record does not lead to the conclusion that the error
"might have . . . tilted the scales and caused the jury to reachits verdict convicting the defendant." Tucker
, 317 N.C. at 540,
346 S.E.2d at 422 (internal quotation marks omitted).
Barnes' confession was admitted without objection and is not
challenged on appeal. In that confession, Barnes confirmed that
defendant, Little, and he were the robbers. While Barnes purported
to recant that confession on the stand, he still maintained at
trial that he, Little, and defendant were together and were in the
vicinity of the robbery at the precise time of the robbery. In
fact, defendant, Little, and Barnes were stopped by police only a
few blocks from the robbery shortly after the robbery occurred.
Darryl Lawrence positively identified Barnes as one of the
robbers, while Jones, after seeing a photograph of Little,
positively identified the basketball jersey as being the one worn
by the armed robber on the porch. When taken into custody, Little
was dressed as described by the victims and Montrell Lawrence. The
witnesses testified that the third robber was dressed all in black,
had gold front teeth, wore a black knit hat, and had short
dreadlocks. On the day of the robbery, defendant was wearing all
black, had a black knit hat, and had short dreadlocks; defendant
also has gold front teeth. While Jones denied at trial that
defendant was the third robber, she explained that she was relying
upon the fact that his hair and weight were different. Other
witnesses, including Barnes, all confirmed that defendant's hairhad changed significantly by the time of trial and that he had lost
In short, the evidence at trial established that defendant,
Little, and Barnes were together at the time of the robbery and
almost precisely at the location where the robbery occurred.
Defendant has pointed to no contrary evidence. Since Barnes was
positively identified as a robber and both Little and defendant
matched the victims' descriptions of the other two robbers
precisely, we conclude that it would be unlikely that the jury
would have reached a different verdict even in the absence of the
Little confession. This is especially true given the Barnes
confession. We therefore hold that the admission of the Little
confession did not constitute plain error.
Judges MCGEE and HUNTER concur.
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