Appeal by defendant from judgment dated 18 September 2002 by
Judge J.B. Allen, Jr. in Alamance County Superior Court. Heard in
the Court of Appeals 3 December 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Dorothy Powers, for the State.
Paul M. James and L. Jayne Stowers for defendant-appellant.
BRYANT, Judge.
Mitchell Danyell Banks (defendant) appeals a judgment dated 18
September 2002 entered consistent with a jury verdict finding him
guilty of first-degree burglary, second-degree kidnapping, and
assault on a female. The trial court entered prayers for judgment
on the convictions of second-degree kidnapping and assault on a
female.
Prior to trial, defendant made a “Request for Voluntary
Disclosure” by the State. Defendant subsequently filed a motion in
limine with the trial court pursuant to N.C. Gen. Stat. § 15A-
903(a)(2) seeking exclusion of “any mention before the jury of any
statement alleged to have been made by . . . defendant but not
disclosed to . . . defendant or his counsel by 12 o'clock noon on
Wednesday prior to the beginning of the week during which this casewas calendared for trial.” At the hearing on the motion, the State
explained it had provided defendant with the police report prepared
by the investigating officer and that all statements made by
defendant to witnesses, of which the State was aware, were
contained in the report. When the trial court denied the motion in
limine, defendant sought to make an offer of proof by submitting
the police report, which defendant contended did not include all
the statements to which the witnesses would testify. The trial
court did not grant defendant's request and brought the jury in for
opening statements. During the testimony of the State's witnesses,
defendant renewed his objection, based on the motion in limine, to
testimony regarding statements the witnesses had heard defendant
make during the commission of the charged offenses. Defendant made
no further attempt to proffer the police report.
The State's evidence tended to show that in the early morning
hours of 2 December 2001, while it was still dark, defendant,
wearing black gloves, twice entered without permission the unlocked
residence of Tameka Harvey (Harvey) to look for Tanique Norman
(Norman) and Latoshia Holt (Holt). Defendant had dated all three
women at one time or another, and defendant and Norman had just
broken up the previous day.
Harvey testified that she awoke to find defendant standing in
her bedroom. In response to defendant's question, she told him
Norman and Holt had gone out and she did not know their
whereabouts. Defendant left the house only to return a short time
later. This time defendant checked the room in which Norman andHolt were sleeping following their return from their evening out.
Harvey told defendant to leave, but he ignored her and instead
ordered Norman to get up and come with him. When Norman resisted
and “started saying no, hollering and screaming,” defendant grabbed
her and made her get her things. All the while, defendant
repeatedly placed his hands in his back pocket. Seeing Norman's
resistance, defendant pulled a small silver gun with a pearl handle
from his back pocket and began pushing Norman, who was now crying,
toward the bedroom door. Defendant asked the women “Why do y'all
think I wore these gloves?” and then stated “So I won't leave any
evidence.” Holt reached for her cellular telephone on the floor,
but defendant stepped on her hand and took the telephone away from
her, saying “You're not going to call anyone.” Defendant pushed
Norman toward the kitchen, “pushed her down on the floor and pushed
her on out the [front] door.” Harvey followed them outside and saw
defendant force Norman into a silver van. Just before the van
drove away, Harvey heard a gunshot. Thereafter, Harvey and Holt
went to the home of Harvey's mother to telephone the police.
Norman testified she was asleep in Holt's room at Harvey's
residence when she first heard defendant's voice in the kitchen.
Defendant was questioning Holt, who explained Norman was not there.
Because she was scared of what defendant might do, Norman stayed in
the bedroom. After defendant had left, she did, however, telephone
defendant's cellular phone and told him to “stop walking into
people's houses looking for [her].” Defendant responded she had “a
choice to come out or he [was] going to come in there and get[her].” Defendant returned to the house shortly thereafter and was
met by Harvey at the door. Defendant pushed Harvey out of the way
and headed toward Norman, saying “Let's go.” In response to her
refusal to go, defendant told Norman she had no choice. Norman
testified the only reason she went with defendant was because he
pulled a gun from his pocket and she “was afraid that he was going
to use it.” While still in the house, defendant also told Norman
she “was not going to make it back home to see [her] mother.”
After defendant pushed her in the van, he shut the door on Norman's
leg, went around to the driver's side, raised the gun, and shot
into the air. Norman tried to exit the van, but defendant came
back around and shut the passenger side door. This time, Norman
stayed in her seat because she was scared and there was “no telling
what [defendant] could have done to [her]” if she had moved again.
Defendant began searching for his cellular telephone as he started
driving away. Thinking he had dropped the telephone at Harvey's
residence, defendant placed the vehicle in reverse, but because he
was not paying attention while backing up, he hit a parked truck.
As he stepped outside to investigate the damage, Defendant handed
Norman the gun. Holding the gun, Norman got out of the van and
started running toward Harvey's house. She could hear defendant
calling her as she entered the house to look for Harvey and Holt.
Unable to find them, Norman hid the gun in a laundry basket,
covering it before running down the street to the home of Harvey's
mother.
Officer J.T. Long testified that in the early morning hours of2 December 2001 he was en route to Harvey's residence in response
to a 911 call when he observed a man standing in the street
“throwing his arms up in the air” and appearing to be “angry and
agitated and cursing.” Officer Long stopped the man, who was
wearing black gloves and identified himself as Mitchell Banks, and
detained him for further investigation. Officer Long proceeded
down the street, noting a collision between a parked truck and
another vehicle, and arrived at Harvey's empty house. Officer Long
radioed the police station to confirm the origin of the 911 call
and was directed to Harvey's mother's home. After questioning
Norman, Harvey, and Holt, Officer Long went back to Harvey's
residence where he found the weapon, a .25 caliber semi-automatic
handgun, in the laundry basket. The magazine was still in the gun,
but no rounds were in the chamber. Officer Long found one spent
.25 caliber shell casing on the street in front of Harvey's house.
_______________________
The issues are whether: (I) defendant can show prejudicial
error based on the trial court's denial of his motion
in limine and
pretrial offer of proof; (II) defendant received ineffective
assistance of counsel when his counsel moved for a mistrial as
opposed to a new trial or appropriate relief after the jury
returned its verdict; and (III) the record sheet used at the
sentencing hearing contained errors.
I
Defendant argues he was prejudiced by the trial court's
erroneous denial of (1) his motion to suppress testimony regardingstatements made by him on 2 December 2001 and (2) his offer of
proof of the police report to show the discrepancy between the
statements provided by the State prior to trial and the witnesses'
actual testimony. According to defendant, the prejudice derived
from the use of his statements to supply an element of the
kidnapping charge, which in turn represented an element of the
burglary charge. Because we conclude that defendant was not unduly
prejudiced by the testimony regarding his statements to the
witnesses, we do not determine whether the trial court's ruling
constituted error.
See N.C.G.S. § 15A-1443(a) (2001) (a defendant
carries the burden of showing he was prejudiced by an error
committed at trial in that a reasonable possibility exists that
absent the error a different result would have been reached).
In this case, defendant's actions, as opposed to his words,
were sufficient to establish the elements of the charged offenses.
First, the theory of kidnapping pursued by the State in this case
required a showing that defendant unlawfully removed Norman from
one place to another, without her consent, for the purpose of
terrorizing her.
See N.C.G.S. § 14-39(a)(3) (2001);
State v.
Davis, 340 N.C. 1, 24, 455 S.E.2d 627, 639 (1995) (terrorizing is
defined as “'putting [a] person in some high degree of fear, a
state of intense fright or apprehension'”) (citation omitted). The
evidence presented at trial revealed that defendant pushed and
dragged Norman out of Harvey's house at gunpoint. Thus, the first
two elements of the State's theory of kidnapping are satisfied. In
addition, the evidence showed Norman was in a heightened state offear, not knowing what defendant would do with the gun. She was
crying and screaming while being forced out of the house. She was
pushed into the van by defendant who closed the door on her leg,
and then he fired a demonstrative gunshot into the air. This
constitutes sufficient circumstantial evidence from which a jury
could reasonably find defendant's intent to terrorize Norman.
See
State v. Moore, 315 N.C. 738, 745-46, 340 S.E.2d 401, 406 (1986)
(intent to terrorize established where the evidence supported a
finding that the defendant intended by his actions to put the
victim in a state of intense fright or apprehension so that she
would agree to stay with him and that he removed her to a mobile
home and confined her there for that purpose);
State v. Williams,
127 N.C. App. 464, 468, 490 S.E.2d 583, 586 (1997) (where the
defendant pointed a gun at the victim and witnesses testified that
the victim was crying and hysterical throughout the ordeal, there
was sufficient evidence of the defendant's intent to terrorize);
see also State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815,
821 (2000) (“'the test is not whether subjectively the victim was
in fact terrorized, but whether the evidence supports a finding
that the defendant's purpose was to terrorize her'”) (citation
omitted).
Next, the elements of the offense of first-degree burglary of
which defendant was found guilty required a showing by the State
that defendant: (1) broke, (2) and entered, (3) at night, (4) into
the dwelling, (5) of another, (6) that was occupied, (7) with the
intent to kidnap Norman.
See N.C.G.S. § 14-51 (2001);
State v.Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721-22 (2001);
see also
State v. Sweezy, 291 N.C. 366, 383, 230 S.E.2d 524, 535 (1976)
(“the mere pushing or pulling open of an unlocked door constitutes
a breaking”). The evidence regarding defendant's actions on 2
December 2001 established that defendant entered Harvey's house at
nighttime without permission, while Norman, Holt, and Harvey were
inside, and with the intent to kidnap Norman. Defendant's oral
statements to the witnesses were therefore not vital to a guilty
verdict. Accordingly, this assignment of error is overruled.
II
Defendant further contends he received ineffective assistance
of counsel when his counsel moved for a mistrial as opposed to a
new trial or appropriate relief after the jury had already returned
its verdict.
After the jury verdict had been rendered, the jury released
from duty, and the sentencing hearing had begun, Keith French,
juror number six, came forward with allegations of juror
intimidation and harassment he had encountered through defendant's
younger brother and three other men. During the trial court's
questioning of French, the juror indicated the men had confronted
him because they had seen him talk to Officer Long during a court
recess. French and Officer Long had been talking for a “brief
moment trying to figure out where [they] ha[d] crossed paths before
because [French] had seen him many times.” Defense counsel moved
for a mistrial on the basis that French knew Officer Long but did
not disclose this fact during jury selection and that French spokewith Officer Long during the trial. The trial court denied the
motion and proceeded with the sentencing hearing.
“A defendant claiming ineffective assistance of counsel must
demonstrate that his counsel's performance was defective and that
this defective performance prejudiced the defense.”
State v.
Jones, 146 N.C. App. 394, 400, 553 S.E.2d 79, 83 (2001). In
reviewing such a claim, the court need not determine whether
counsel made errors if the record does not show a reasonable
probability that a different verdict would have been reached in the
absence of counsel's deficient performance.
State v. Braswell, 312
N.C. 553, 563, 324 S.E.2d 241, 248-49 (1985).
In his brief to this Court, defendant acknowledges that the
trial court has no authority to grant a motion for a mistrial after
the verdict has already been returned,
see State v. Smith, 138 N.C.
App. 605, 609, 532 S.E.2d 235, 238 (2000), and argues that counsel
should have moved for a new trial or appropriate relief due to the
prejudicial impact of the juror misconduct. Defendant contends
French lied during jury selection about not knowing Officer Long
and violated court rules by talking to the officer, thereby
creating the appearance of bias.
“Due process requires that a defendant have 'a panel of
impartial, “indifferent” jurors.'”
State v. Rutherford, 70 N.C.
App. 674, 677, 320 S.E.2d 916, 919 (1984) (quoting
Irvin v. Dowd,
366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961)). “It is the duty
and responsibility of the trial judge to insure that the jurors
remain impartial and uninfluenced by outside forces.”
Id. Misconduct must be determined by the facts and circumstances of
each case, and “'[t]he circumstances must be such as not merely to
put suspicion on the verdict, because there was an opportunity and
a chance for misconduct, but that there was in fact misconduct.'”
State v. Johnson, 295 N.C. 227, 234, 244 S.E.2d 391, 396 (1978)
(quoting
Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279
(1915)). Having reviewed French's statements to the trial court,
we find no such misconduct.
During
voir dire, the trial court asked the jury if it knew
any of the State's witnesses, including Officer Long. None of the
jurors spoke up at that time. In response to defense counsel's
examination of the jury, French did indicate that he was familiar
with several people in law enforcement. The fact that French
admitted after the trial that at some point during the trial he
realized he had “crossed paths before” with Officer Long only
indicates that he had seen the officer on prior occasions, not that
he knew him personally. Moreover, French explained that they only
talked for a moment to try and figure out where they had seen each
other before. There was no discussion of the trial at that time.
Based on these circumstances, there was no possibility that a
personal connection to the case, through a vague familiarity with
Officer Long, could have compromised French's ability to be fair
and just.
See Rutherford, 70 N.C. App. at 676-77, 320 S.E.2d at
918-19 (no abuse of discretion in denying the defendant's motion
for a mistrial based on juror conversation with witness that lasted
only a few minutes and did not concern the defendant's case or thejuror's jury service because it had no effect on the verdict and
therefore did not prejudice the defendant). As defendant did not
show any prejudice from his counsel's failure to make the proper
motion, his ineffective assistance of counsel claim fails.
III
Finally, defendant asserts the record sheet used at the
sentencing hearing contained errors.
At the sentencing hearing, the State submitted defendant's
prior record sheet. Upon defendant's questioning of the
correctness of the record sheet, the trial court asked the State to
procure copies of the case files from the clerk's office. The
trial court then interrupted the sentencing proceeding to hear
French's testimony on the harassment he had experienced. When
sentencing resumed, the State had not yet obtained the requested
case files. The trial court asked defendant: “What is it that you
disagree [with] on this record sheet?” Defendant replied, “Your
Honor, we don't have any problem with the record sheet,” and at the
conclusion of the sentencing phase agreed “Your Honor sentenced
properly.”
When evidence is admitted without objection, the benefit of a
prior objection to the same or similar evidence is lost, and the
defendant is deemed to have waived his right to assign as error the
admission of the evidence.
State v. Jolly, 332 N.C. 351, 361, 420
S.E.2d 661, 667 (1992). As defendant in this case therefore lost
the benefit of his initial objection through his subsequent
stipulation to the accuracy of the record sheet, he did notpreserve this issue for appeal.
See N.C.R. App. P. 10(b)(1) (“[i]n
order to preserve a question for appellate review, a party must
have presented to the trial court a timely . . . objection”).
Consequently, we do not address this assignment of error.
With respect to defendant's remaining arguments addressed in
his brief to this Court, we note that defendant failed to make the
necessary requests or objections at trial,
see N.C.R. App. P.
10(b)(1), and did not “specifically and distinctly” contend plain
error in his respective assignments of error,
see N.C.R. App. P.
10(c)(4). Thus, they were not preserved for appeal.
No error.
Judges CALABRIA and ELMORE concur.
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