Appeal by defendants from judgments entered 22 July 2002 by
Judge Larry G. Ford in Rowan County Superior Court. Heard in the
Court of Appeals 3 March 2004.
Roy A. Cooper, III, Attorney General, by Elizabeth N.
Strickland, Assistant Attorney General, and James M. Stanley,
Jr., Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Anne M. Gomez,
Assistant Appellate Defender, for defendant-appellant Johnson.
Bryan Gates, for defendant-appellant Whisonant.
MARTIN, Chief Judge.
Defendants appeal from judgments imposing active sentences
entered upon their convictions by a jury of robbery with a
dangerous weapon, attempted robbery with a dangerous weapon, and
conspiracy to commit robbery with a dangerous weapon. The evidence
presented at trial tended to show the following: at around noon on
19 March 2001, Roger Storey, Anne Corriher, and D.G. Wong were
standing beside Mr. Storey's automotive repair shop in Salisbury,
North Carolina. As the group was talking, a white Pontiac Grand Am
occupied by several individuals drove by slowly as if they were
looking at something. About five minutes later, the same vehicle
returned and pulled over in front of the group. A man sitting in
the passenger seat of the car asked for directions to the busstation. As Mr. Storey attempted to give the individuals
directions, the man in the passenger seat started cursing and
stated, “We don't want directions, give me your wallet.” Mr.
Storey began to back up, and the passenger said, “No, this is not
a joke, give me your wallet.” The passenger got out of the vehicle
and Mr. Storey gave him his wallet. At this point, Mr. Storey
noticed that a man in the back seat was pointing a sawed off
shotgun out the window towards him. The passenger then approached
Mr. Wong and Ms. Corriher. Mr. Wong gave him his pocketbook and
Ms. Corriher told the man that she did not have a wallet. The
passenger then returned to the vehicle and the individuals drove
away. As the car drove away, the group noticed a pink rag
partially obscuring the license plate, but were able to make out
the first two letters, “NT,” of the plate.
Mr. Storey testified that there were three black males in the
vehicle, but he could not clearly see any of them except for the
man in the front passenger seat, whom he later identified in a
photo lineup as Elliot Wilds. Ms. Corriher testified that the
person in the back seat was pointing a sawed off shotgun at the
group; however, she was not able to identify any of the
individuals. Mr. Wong testified that he did not see any guns
during the robbery and that he remembered seeing a black man who
asked for his wallet, and the driver of the car, but that he didn't
see anyone else. The following morning, Officer Todd Sides of
the Salisbury Police Department saw a white Pontiac Grand Am that
had a license plate beginning with the letters “NT.” He stopped
the automobile, which was occupied by defendant Jerry Whisonant andElliot Wilds. Both men were arrested and questioned. The police
recovered a loaded shotgun, a pink rag, and shotgun shells from the
vehicle. During questioning, Wilds gave a statement admitting his
involvement in the crimes.
At trial, Wilds testified that defendant Johnson was his first
cousin and that defendant Whisonant was a friend of Johnson's that
he had met approximately two or three months before the armed
robbery. Wilds stated that on the day of the crime, the group was
traveling in a white Pontiac Grand Am which belonged to defendant
Whisonant's girlfriend. Defendant Whisonant was driving, Wilds was
sitting in the passenger seat, and defendant Johnson was sitting in
the back seat.
After riding around for two or three hours looking for jobs,
the three men began talking about robbing someone. Wilds testified
that there was no discussion about the use of a weapon during the
robbery; rather, the plan was for Wilds to jump out of the car,
scare people, and then grab their wallets. When they saw Mr.
Story, Mr. Wong, and Ms. Corriher standing on a corner, they drove
by and then went to a nearby Salvation Army building where
defendant Whisonant got out of the car and covered the license
plate with a pink rag. The men then went back to the place where
they had seen the three people standing and Wilds asked the group
for directions to the bus station. As Mr. Storey walked up to the
car, Wilds jumped out of the car and demanded his wallet and the
wallets of the other two people. After collecting wallets from Mr.
Storey and Mr. Wong, Wilds jumped back in the car and the men drove
away. Wilds testified that he did not see a gun before the robbery
and did not know that a gun was present in the vehicle or during
the robbery until he got back into the car and saw the sawed-off
shotgun sitting beside defendant Johnson in the backseat. He
stated that the men split the money equally and that he threw the
wallets into the river.
Prior to trial, defendants' motions to sever were denied. The
motions to sever were renewed at the close of the State's evidence
and were again denied. In addition, defendants moved to dismiss
all charges; the trial court allowed the motions as to charges of
possession of a weapon of mass destruction, but denied the motions
as to the remaining charges.
Defendant Johnson presented two witnesses in his defense. His
girlfriend, Candace Collette Brown, testified that defendant was at
home with her at the time of the alleged armed robbery. Landrum
Hamm, Mr. Johnson's supervisor for two years at Stokes County Yarn,
also testified on his behalf. Defendant Whisonant presented no
evidence and neither of the defendants testified.
At the close of all the evidence, defendants' motions to
dismiss and to sever were renewed and denied. The jury returned
verdicts finding each defendant guilty of two counts of robbery
with a dangerous weapon, one count of attempted robbery with a
dangerous weapon, and one count of conspiracy to commit robbery
with a dangerous weapon. The trial court entered identical
judgments as to each defendant, consolidating the two counts of
robbery with a dangerous weapon and sentencing each defendant in
the presumptive range to a minimum term of 103 months and a maximumterm of 133 months imprisonment, and consolidating the convictions
of attempted robbery with a dangerous weapon and conspiracy to
commit robbery with a dangerous weapon and sentencing each
defendant to a consecutive sentence in the presumptive range for a
minimum term of 103 months and a maximum term of 133 months.
Defendants appeal.
___________________
Defendant Whisonant's Appeal
Defendant Whisonant sets forth eight assignments of error in
the record, four of which are argued in his brief. The remaining
assignments of error are deemed abandoned. N.C. R. App. P. 28(a).
Initially we consider the State's argument that defendant
Whisonant's appeal must be dismissed because he fails to set forth
in the record, in accordance with Rule 10(c)(1) of the North
Carolina Rules of Appellate Procedure, a legal basis to support his
assignments of error. N.C. R. App. P. 10(c)(1). Compliance with
the Rules of Appellate Procedure are mandatory and a failure to
comply with them subjects an appeal to dismissal.
Steingress v.
Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999).
Nevertheless, we conclude that the interests of justice require
that we exercise our discretion and address the merits of
defendant's appeal. N.C. R. App. P. 2.
[1] In his first argument, defendant Whisonant contends he was
deprived of a fair trial by the denial of his motions to sever his
trial from that of defendant Johnson. A trial court is required to
grant a motion to sever whenever severance is necessary to achieve
or promote “a fair determination of the guilt or innocence of oneor more defendants.” N.C. Gen. Stat. § 15A-927(c)(2)(a)(2003).
“The question of whether defendants should be tried jointly or
separately is within the sound discretion of the trial judge, and
the trial judge's ruling will not be disturbed on appeal absent a
showing that joinder has deprived a defendant of a fair trial.”
State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277 (1997),
cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998).
Defendant first contends he was denied a fair trial when
Wilds was not permitted to testify on cross-examination, based on
an objection by co-defendant Johnson, that it was Johnson's idea to
commit the robbery. However, Wilds was permitted to testify that
it was not defendant Whisonant's idea to commit the robbery. Thus,
defendant Whisonant was not unduly prejudiced because the
potentially exculpatory testimony was admitted into evidence.
Defendant Whisonant also contends he was denied a fair trial
when the detective who interviewed him was not permitted to
testify, due to an objection by co-defendant Johnson, that
defendant Whisonant was cooperative during the interview. However,
the detective was permitted to testify that defendant was upset and
crying during the interview and that he was neither combative nor
under the influence of alcohol. Although the specific evidence
that Whisonant was cooperative could possibly have been favorably
considered by the jury, the substance of the proffered evidence was
made clear by the testimony which was admitted. Therefore, after
considering all of the other evidence in the case, we do not find
its exclusion so prejudicial as to entitle defendant Whisonant to
a new trial. Defendant Whisonant next argues his defense was antagonistic
to that of co-defendant Johnson, and that the defenses were so
conflicting and irreconcilable as to result in an unfair trial.
Defendant Whisonant admitted he was driving the vehicle during the
robbery, but claimed he was unaware that a crime was going to
occur. Defendant Johnson's defense was that he was not present
during the robbery. “The test is whether the conflict in
defendants' respective positions at trial is of such a nature that,
considering all of the other evidence in the case, defendants were
denied a fair trial.”
State v. Lowery, 318 N.C. 54, 59, 347 S.E.2d
729, 734 (1986)(internal quotation omitted).
After considering all of the evidence, we do not believe the
defenses presented in this case were so antagonistic and
irreconcilable that defendant was denied a fair trial. Defendant's
defense, that he was driving the vehicle but was unaware that a
robbery was going to take place, never directly implicated co-
defendant Johnson as a perpetrator of the crime. Likewise,
Johnson's defense, that he was not present at the robbery, in no
way implicated defendant Whisonant as a willing participant during
the crime. Thus, we cannot say the “codefendants' defenses are so
irreconcilable that the jury will unjustifiably infer that this
conflict alone demonstrates that both are guilty.”
State v.
Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979)(internal
quotation omitted),
cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282
(1980).
Defendant Whisonant also argues that he was denied a fair
trial because the joinder likely confused the jury about evidencepresented against each defendant. Prejudice can result where
evidence applicable to only one defendant is admitted but no
limiting instruction is given to instruct the jury not to consider
that evidence against a co-defendant.
See State v. Wilson, 108
N.C. App. 575, 583, 424 S.E.2d 454, 458,
disc. review denied, 333
N.C. 541, 429 S.E.2d 562 (1993). Specifically, defendant Whisonant
argues that he may have been convicted based on evidence applicable
only to Johnson. Defendant Whisonant cites no instance in the
record where evidence applicable only to Johnson was admitted;
rather, he cites only jury instructions given by the trial court
which he contends were confusing. However, defendant failed to
assign error to these instructions. We, therefore, find no merit
in defendant's argument.
Defendant next contends he was denied a fair trial when Wilds
was not permitted to testify about a potentially exculpatory
statement made by him. Specifically, Wilds was not permitted to
testify on cross-examination that Whisonant said immediately after
the robbery, “Why did he pull out the gun?” Wilds was permitted to
testify, however, that Whisonant was “very angry” after the robbery
and that there was hostility between Johnson and Whisonant. The
testimony as to Whisonant's statement was excluded based on an
objection by the State that the testimony was self-serving hearsay.
Co-defendant Johnson objected only after the trial court had
sustained the State's objection. Since the exclusion of the
testimony was due to the State's objection, any prejudice
occasioned to defendant Whisonant thereby was not caused by hisbeing tried jointly with Johnson and we reject his argument to the
contrary.
[2] In a related assignment of error, defendant Whisonant
argues the trial court's exclusion of the statement was error.
Defendant argued at trial, and in his brief to this Court, that the
statement, “Why did he pull out the gun?”, qualified as an excited
utterance and therefore, should have been admitted as an exception
to the hearsay rule.
A trial court “has broad discretion over the scope of cross-
examination” and its “rulings regarding the scope of cross
examination will not be held in error in the absence of a showing
that the verdict was improperly influenced by the limited scope of
the cross-examination.”
State v. Yearwood, 147 N.C. App. 662, 665,
556 S.E. 672, 675 (2001)(internal quotation omitted). Thus, even
if we were to hold that the trial court erroneously omitted the
testimony, to afford defendant relief, we would also have to
determine that such error improperly influenced the jury's verdict.
After careful review, we conclude that the omitted statement
in this case is not so exculpatory that it is likely that its
omission improperly influenced the jury's verdict. The statement
goes to defendant's knowledge that a gun was going to be used
during the robbery, not to his knowledge that a robbery was going
to take place. Under the theory of acting in concert, upon which
the jury was instructed, if two or more persons join in a purpose
to commit a crime, each person is responsible for all unlawful acts
committed by the other persons as long as those acts are committed
in furtherance of the crime's common purpose.
State v. Erlewine,328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991). Whether or not
defendant was aware that a gun was going to be used during the
robbery is immaterial to whether he intended to participate in the
robbery and thus, the exclusion of the statement did not
unreasonably prejudice defendant's case. Additionally, while Wilds
was not permitted to testify as to the statement itself, he was
permitted to testify that defendant Whisonant was “very angry”
after the robbery and that there was hostility between Whisonant
and Johnson. Accordingly, we conclude the trial court's limitation
of the cross-examination of Wilds did not improperly influence the
jury's verdict.
[3] In his next assignment of error, defendant argues the
trial court erred when it declined to instruct the jury in
accordance with his request concerning the theory of acting on
concert. Defendant requested that the trial court instruct the
jury:
2. ACTING IN CONCERT.
For a person to be guilty of a crime, it
is not necessary that he himself do all of the
acts necessary to constitute the crime. If
two or more persons join in a purpose to
commit Robbery with a Dangerous Weapon, each
of them, if actually or constructively
present, is guilty of that crime if the other
commits the crime, if they shared a common
plan to commit that offense.
The trial court, instead, gave the following instruction:
Now, for a person to be guilty of a crime, it
is not necessary that he himself do all of the
acts necessary to constitute the crime. If
two or more persons join in a purpose to
commit robbery, each of them, if actually or
constructively present, is not only guilty of
that crime if the other commits the crime, but
he is also guilty of any other crime committed
by the other in pursuance of the commonpurpose to commit armed robbery, or as a
natural or probable consequence thereof.
In essence, the jurors were instructed that they need not find that
defendant had intent to use a dangerous weapon in order to be
convicted of robbery with a dangerous weapon. Instead, they need
only find that defendant acted in concert to commit robbery and
that his co-defendant used the dangerous weapon in pursuance of
that common purpose to commit robbery. As explained by our Supreme
Court in
State v. Barnes, 345 N.C. 184, 230-233, 481 S.E.2d 44,
69-71 (1997),
cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473
(1998), this is a correct statement of law and therefore,
defendant's assignment of error is overruled.
[4] Defendant also argues the trial court erred by not
properly instructing the jury to consider each defendant separately
when determining their guilt or innocence as to the crimes charged.
See State v. Waddell, 11 N.C. App. 577, 579, 181 S.E.2d 737, 738
(1971)(“[E]ach defendant [is] entitled to have his individual guilt
or innocence considered and determined by the jury separate and
apart from how the jury should find as to the other defendant.”).
However, this argument is not set out as an assignment of error in
the record, and thus, defendant fails to preserve it for our
review. N.C. R. App. P. 10(a). Assuming,
arguendo, that the issue
had been properly preserved by an assignment of error, we find,
after careful review, no prejudicial error in the trial court's
instructions.
[5] In his final argument, defendant contends the trial court
committed plain error when it submitted to the jury the issue of
defendant's guilt of robbery with a firearm or other dangerousweapon, instead of the lesser included offense of common law
robbery, as to D.G. Wong. The Court will reverse for plain error
“only in exceptional cases where, after reviewing the entire
record, it can be said the claimed error is a fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done."
State v. Davis, 349 N.C. 1, 29,
506 S.E.2d 455, 470 (1998)(internal quotations omitted),
cert.
denied, 526 U.S. 1161,
144 L. Ed. 2d 219 (1999).
The elements of robbery with a firearm or other dangerous
weapon are set forth in N.C. Gen. Stat. § 14-87 (2003). Our
Supreme Court stated in
State v. Joyner, 295 N.C. 55, 243 S.E.2d
367 (1978):
[T]he essentials of the offense set forth in
G.S. 14-87 are (1) the unlawful taking or
attempted taking of personal property from
another; (2) the possession, use or threatened
use of 'firearms or other dangerous weapon,
implement or means'; and (3) danger or threat
to the life of the victim.
Id. at 63, 243 S.E.2d at 373.
Defendant contends there was insufficient evidence to prove
danger or threat to the life of D.G. Wong by the possession, use,
or threatened use of a dangerous weapon because Mr. Wong did not
see or know about a gun during the robbery. However, “[t]he
question in a [robbery with a firearm or other dangerous weapon]
case is whether a person's life was in fact endangered or
threatened by defendant's possession, use or threatened use of a
dangerous weapon, not whether the victim was scared or in fear of
his life.”
Id. Evidence was presented at trial showing that a gun
was pointed toward Mr. Wong during the robbery, thus, putting hislife in danger. Accordingly, there was substantial evidence to
support the trial court's instruction on robbery with a firearm or
other dangerous weapon as to D.G. Wong. Defendant's final
assignment of error is overruled.
Defendant Johnson's Appeal.
Defendant Johnson sets forth thirty-eight assignments of error
in the record, eight of which are argued in his brief. The
remaining assignments of error are deemed abandoned. N.C. R. App.
P. 28(a).
[6] As an initial matter, the State argues that defendant
Johnson's appeal should be dismissed due to his violation of Rule
10(c)(1) of the North Carolina Rules of Appellate Procedure in
failing to confine, so far as practicable, the legal basis for his
assignments of error in the record to a single issue of law. N.C.
R. App. P. 10(c)(1).
Defendant sets forth the following purported legal basis for
each of his thirty-eight assignments of error:
. . . on the ground that the Court's action
violated the Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments to the U.S.
Constitution, Article I, §§ 18, 19, 20, 23,
24, 27 and 35 of the North Carolina
Constitution, and the North Carolina common
and statutory law. Defendant asserts
constitutional error, trial error, structural
error, or in the alternative, plain error.
Our Supreme Court has stated that an assignment of error
“purporting to raise a number of different legal issues[] is
insufficient under our Rules of Appellate Procedure to raise any of
them.”
State v. McCoy, 303 N.C. 1, 19, 277 S.E.2d 515, 529 (1981). While defendant's assignments of error plainly violate the
requirements of Rule 10(c)(1), we conclude, as we did with respect
to defendant Whisonant, that the interests of justice require us to
exercise our discretion and address the merits of defendant's
appeal. N.C. R. App. P. 2.
[7] Defendant first contends the trial court erred when it
admitted State's Exhibit #8 into evidence. State's Exhibit #8 is
a supplemental report prepared by Detective R. K. Harris of the
Salisbury Police Department regarding his interrogation of Wilds.
The report was redacted in parts to omit any statements allegedly
made by co-defendant Whisonant and states, in pertinent part:
After about forty-five minutes of interviewing
[Wilds], I left him in the polygraph/interview
room while I went to talk to Det. Colvin about
what [Wilds] had told me.
[REDACTED]. I then
went back into the polygraph/interview room
with [Wilds] to discuss what I had found out.
[Wilds] continued to deny any involvement with
the robbery. I advised him to set [sic] in
the room and think about what he had told me.
A short time later, I went back in and asked
[Wilds] to get his heart right and tell me
about the robbery. [Wilds] then looked at me
and stated that he had robbed the people. . .
. I then advised Det. Colvin what had
transpired.
[REDACTED]. I went back into the
room and asked [Wilds] who “Bomber-Clock” was.
[Wilds] stated that it was Onzoro Johnson. He
also stated that he was the third suspect with
them at the time of the robbery.
Later at trial, evidence was presented to show that at the same
time Wilds was being interviewed by Detective Harris, Detective
Colvin was interviewing defendant Whisonant. Defendant Johnson
argues his confrontation rights were violated when State's Exhibit
#8 was admitted into evidence because it implies that defendantWhisonant told Detective Colvin that a person named “Bomber Clock”
was present during the robbery.
It is a violation of a criminal defendant's confrontation
rights to introduce into evidence the statement of a non-testifying
co-defendant implicating the defendant.
Bruton v. United States,
391 U.S. 123, 126, 20 L. Ed. 2d 476, 479 (1968). In this case,
State's Exhibit #8 was redacted to eliminate any reference to
statements made by Defendant Whisonant. Thus, defendant's reliance
on
Bruton is without merit.
Nonetheless, defendant Johnson argues that while there are no
direct statements by defendant Whisonant contained in State's
Exhibit #8, there is a “clear implication” from the exhibit and
other evidence presented at trial that Defendant Whisonant told
Detective Colvin that a person named “Bomber Clock” participated in
the robbery. We find this argument to be speculative at best, and
not sufficient to constitute the introduction of a non-testifying
co-defendant's statement within the confines of
Bruton.
Defendant's assignment of error is overruled.
In the next two assignments of error argued in his brief,
defendant Johnson contends the State presented insufficient
evidence that he committed a robbery with a dangerous weapon of Mr.
Wong, or alternatively, the trial court erred by failing to
instruct the jury on the lesser included offense of common law
robbery as to Mr. Wong. We find no error in either respect.
We have addressed the sufficiency of the evidence in our
consideration of defendant Whisonant's appeal and there is no
reason to repeat our discussion. For the reasons set forththerein, we overrule defendant Johnson's similar assignment of
error.
[8] In his alternative argument, defendant Johnson contends
that he was entitled to a jury instruction regarding the lesser
included offense of common law robbery of Mr. Wong. “As a general
rule, when there is evidence of a defendant's guilt of a crime
which is a lesser included offense of the crime stated in the bill
of indictment, the defendant is entitled to have the trial judge
submit an instruction on the lesser included offense to the jury.”
State v. Tarrant, 70 N.C. App. 449, 451, 320 S.E.2d 291, 293
(1984). It has been held that when the defendant is charged with
robbery with a dangerous weapon and “the uncontradicted evidence
indicates that the robbery, if perpetrated, was accomplished by the
use of what appeared to be a dangerous weapon,” the trial judge is
not required to submit an instruction on the lesser included
offense of common law robbery.
Id. at 451-52, 320 S.E.2d at 294.
In this case, the testimony of two witnesses that a gun was used to
perpetrate the robbery was uncontradicted. Therefore, the trial
court was not required to submit an instruction for the lesser
included offense of common law robbery as to Mr. Wong.
[9] Defendant next argues the State presented insufficient
evidence that he committed conspiracy to commit robbery with a
dangerous weapon, or alternatively, the trial court erred by
failing to instruct the jury on conspiracy to commit common law
robbery. We disagree.
Defendant first argues there was insufficient evidence to
support a conviction of conspiracy to commit robbery with adangerous weapon because there is no evidence that the parties
discussed using a weapon prior to the robbery. Indeed, the State's
own witness, Wilds, testified that he was not aware there was a
weapon in the vehicle prior to the robbery and there was no mention
of a weapon during the parties' discussions prior to the robbery.
Our Supreme Court stated in
State v. Bindyke, 288 N.C. 608,
220 S.E.2d 521 (1975):
A criminal conspiracy is an agreement between
two or more persons to do an unlawful act or
to do a lawful act in an unlawful way or by
unlawful means. To constitute a conspiracy it
is not necessary that the parties should have
come together and agreed in
express terms to
unite for a common object: A mutual, implied
understanding is sufficient, so far as the
combination or conspiracy is concerned, to
constitute the offense.
Id. at 615-16, 220 S.E.2d at 526 (internal quotations and citations
omitted). Thus, it was not essential for the parties to expressly
agree to use a dangerous weapon prior to the robbery in order to
submit a charge of conspiracy to commit robbery with a dangerous
weapon to the jury.
See State v. Goldberg, 261 N.C. 181, 202, 134
S.E.2d 334, 348 (1964)(“It is not essential that each conspirator
have knowledge of the details of the conspiracy or of the exact
part to be performed by the other conspirators in execution
thereof; nor is it necessary that the details be completely worked
out in advance to bring a given act within the scope of the general
plan.”),
overruled on other grounds by,
News & Observer Pub. Co. v.
State, 312 N.C. 276, 283, 322 S.E.2d 133, 138 (1984). Rather, it
was only essential that there be evidence that the parties had a
mutual, implied understanding to commit robbery with a dangerous
weapon. In this case, the evidence presented at trial tended to show
that Wilds, Whisonant, and defendant expressly agreed to rob the
three victims when they saw them standing on the corner; however,
there was no discussion of using a weapon at this time. As the
robbery began, defendant Johnson pointed a sawed-off shotgun out
the window at the victims while Wilds took their wallets and
Whisonant waited in the driver's seat. The men then drove away,
split the money equally, and threw the wallets into the river.
These facts are sufficient to support a
prima facie case that
defendant conspired with others to commit robbery with a dangerous
weapon at the moment he pointed the gun at the victims. To be
sure, our Supreme Court stated in
State v. Carey, 285 N.C. 497, 206
S.E.2d 213 (1974):
A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude toward an existing conspiracy. One
who commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and
goes along with the other conspirators,
actually standing by while the others put the
conspiracy into effect, is guilty though he
intends to take no active part in the crime.
Id. at 502-03, 206 S.E.2d at 218 (internal quotation omitted). We,
accordingly, overrule defendant's assignment of error.
[10] Defendant argues in the alternative that he was entitled
to have the trial judge submit an instruction to the jury on
conspiracy to commit common law robbery. As previously discussed,
the trial court is not obligated to submit a charge on a lesser
included offense unless there is evidence “from which the jury
could find that the included crime of lesser degree was committed.”
State v. Tarrant, 70 N.C. App. 449, 452, 320 S.E.2d 291, 294
(1984). In this case, the State's conspiracy charge against
defendant was based on an inference that defendant formed a mutual,
implied understanding with his co-conspirators to commit robbery
with a dangerous weapon at the moment he pointed the gun at the
victims. Since it is uncontradicted that the defendant, if
present, pointed a gun at the victims, there is no evidence from
which a jury could find that the defendant's actions during the
robbery created an inference that defendant conspired to commit
common law robbery. Accordingly, the trial court did not err when
it failed to submit an instruction to the jury on conspiracy to
commit common law robbery.
[11] Defendant next argues the trial court committed
prejudicial error by failing to affirmatively exercise its
discretion under G.S. § 15A-1233(a). N.C. Gen. Stat. § 15A-1233(a)
(2003) states:
(a) If the jury after retiring for
deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge in
his discretion, after notice to the prosecutor
and defendant, may direct that requested parts
of the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence. In
his discretion the judge may also have the
jury review other evidence relating to the
same factual issue so as not to give undue
prominence to the evidence requested.
Our Supreme Court has held that it is error for the trial court to
refuse to exercise its discretion pursuant to this statute “upon
the ground that the trial court has no power to grant the motion in
its discretion.”
State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d374, 378 (1999)(internal quotation omitted). Where error is
prejudicial, the defendant is entitled to a new trial.
Id.
In this case, the trial court made the following comments to
the jury after it was empaneled, but prior to opening arguments:
I'm going to impose upon you in just a moment
one of the most important things you are going
to find when I charge you as to the law in
this case. I'm going to tell you that it is
your duty to remember the evidence.
There is
no transcript to bring back there. She might
get one typed in a month. You see what I
mean, we don't have the fancy equipment that
you might see on TV. I don't even think its
out there, but if it was, I can assure you the
State of North Carolina won't spend the money
for it. I don't mind putting that in the
record because higher Judges agree with me on
that.
So, we don't have anything that can
bring it back there to you. So, listen
carefully, pay close attention. You are the
triers of fact and it is up to you
collectively, the twelve of you to go back
there to remember the evidence and that is why
we have twelve. Surely one of you can
remember the evidence on everything that come
in.
(Emphasis added).
In
Barrow, the trial court made similar comments in response
to a request by the jury for transcripts of testimony:
Ladies and gentlemen of the jury, although the
Court Reporter obviously was taking down and
continues to take down everything that's in
fact been said during the trial, what she's
taking down has not yet been transcribed. And
the Court doesn't have the ability to now
present to you the transcription of what was
said during the course of the trial.
Id. at 646-647, 517 S.E.2d at 378 (emphasis added). The
Barrow
Court held that “the trial court's statement that it 'doesn't have
the ability to now present to you the transcription of what was
said during the course of the trial' suggests a failure to exercisediscretion.”
Id. at 647, 517 S.E.2d at 378. Likewise, we find a
failure to exercise discretion in this case where the trial court
stated, “we don't have anything that can bring it back there to
you.”
The State argues this case is distinguishable from
Barrow in
that there was no request by the jury to review any testimony or
transcripts. While the statute refers solely to requests made by
the jury for review of certain testimony or evidence, we
nonetheless find that the purpose and intent of the statute are
violated in this case since the trial court's pretrial comments
could have foreclosed the jury from making a request for such
testimony or evidence. Thus, we find error even without a request
by the jury.
The State also argues that defendant waived any alleged error
by failing to object to the trial court's comments. However,
pursuant to
State v. Ashe, 314 N.C. 28, 40, 331 S.E.2d 652, 659
(1985), defendant's error was automatically preserved for review
notwithstanding his failure to object at trial.
Having found error, we must next determine whether such error
was prejudicial. The burden is on the defendant to prove that a
trial error not arising from rights vested under the Constitution
of the United States is prejudicial. N.C. Gen. Stat. § 15A-1443(a)
(2003). Prejudice is shown “when there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial . . . .”
Id.
In this case, a primary factor linking defendant to the crimes
was Wilds' testimony. Defendant argues that where a convictionhinges in large part on the credibility of an alleged accomplice
who testifies at trial, it is prejudicial error to deny the jury an
opportunity to ask to review that testimony. We disagree.
It is only prejudicial error to deny the jury an opportunity
to ask to review certain testimony or evidence where the defendant
can show that (1) such testimony or evidence “involved issues of
some confusion and contradiction,” and (2) it is likely that a jury
would want to review such testimony.
See State v. Johnson, 346
N.C. 119, 126, 484 S.E.2d 372, 377 (1997)(finding prejudicial error
where the trial court refused to exercise its discretion to
determine whether the jury may be permitted to review certain
testimony that involved issues of some confusion and
contradiction).
Defendant argues no circumstances indicating there was any
testimony or evidence in this case involving issues of some
confusion and contradiction that would make it likely that the jury
would have wanted to review it. Thus, we find no prejudicial error
resulting from the trial court's pretrial comments in this case.
[12] In his next assignment of error, defendant argues the
trial court erred when it permitted the State to ask potential
jurors during
voir dire, “is there anyone who . . . will
automatically disregard any and all testimony of Elliot Wil[ds]
even in light of the other believable evidence if you find out that
he actually received a plea bargain?” We discern no abuse of the
trial court's discretion in permitting this question to be asked.
“The nature and extent of the inquiry made of prospective
jurors on
voir dire ordinarily rests within the sound discretion ofthe trial court.”
State v. Bond, 345 N.C. 1, 17, 478 S.E.2d 163,
171 (1996),
cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022
(1997). It is generally considered an abuse of discretion to
permit counsel “to 'stake out' a prospective juror in advance
regarding what his decision might be under certain specific factual
scenarios . . . .”
State v. Jaynes, 353 N.C. 534, 549, 549 S.E.2d
179, 192 (2001),
cert. denied, 535 U.S. 934, 152 L. Ed. 2d 220
(2002).
The question presented to the potential jurors in this case
was not directed at discerning whether the potential jurors would
believe Wilds in spite of his having agreed to a plea bargain, but
whether the jurors
would be able to consider his testimony
notwithstanding his having agreed to a plea bargain. This question
is proper as it is directed at the potential juror's ability to be
fair and impartial.
See State v. Conner, 335 N.C. 618, 644, 440
S.E.2d 826, 841 (1994)(holding that questions by defense counsel as
to whether prospective jurors would be able to consider a life
sentence in a particular case or would automatically vote for death
upon conviction were proper to discern impartiality and fairness).
[13] Next, defendant argues the trial court erred by excusing
juror Melanie Jordan for cause. Juror Jordan raised her hand in
response to the above quoted inquiry of the jurors. Upon further
questioning, Juror Jordan stated, “I don't feel like I could
believe him a hundred percent.” Despite an effort by defendant to
rehabilitate, the trial court allowed the State's motion to dismiss
Juror Jordan for cause. Defendant concedes that he did not object at trial to the
excusal of Juror Jordan for cause. Thus, defendant has failed to
preserve this error for appellate review.
State v. Haselden, 357
N.C. 1, 10, 577 S.E.2d 594, 600 (“This Court will not consider
arguments based upon matters not presented to or adjudicated by the
trial court.”),
cert. denied, 157 L. Ed. 2d 382, 124 S. Ct. 475
(2003). In addition, defendant is not entitled to plain error
review.
Id. (“This Court has not applied the plain error rule to
issues which fall within the realm of the trial court's discretion,
and we decline to do so now.”)(internal quotation omitted).
Therefore, defendant's argument is procedurally barred and we
decline to address it.
[14] Finally, defendant contends he is entitled to a new
sentencing hearing because the State failed to meet its burden of
proving, by a preponderance of the evidence, his prior record
level. At sentencing, the State presented a worksheet to the trial
court alleging that defendant was a level three prior offender in
that he had eight prior record points based on three felony
convictions in New York, a conviction for DWI in North Carolina,
and for being on probation at the time of his commission of the
offenses charged in this case. Upon receiving the worksheet, the
trial court directed the following questions to defendant's
counsel:
THE COURT: Mr. Gray, would you stand with
your client and let's talk about this
worksheet. Do you have any questions about
the worksheet or any other concerns about it,
sir?
[DEFENDANT'S COUNSEL]: Your Honor, we have
seen the worksheet and the record. Weunderstand the State has treated it as a Class
I felony, and realized that under the rules,
they have not established that the offense, or
identical offenses, is [sic] offenses in the
State of North Carolina; however, we would
like to bring that to the Court and show that
for the record.
THE COURT: That is on the --
[DEFENDANT'S COUNSEL]: On all the three
charges for the State of New York, Your Honor.
THE COURT: Each one of them a Class I?
[DEFENDANT'S COUNSEL]: They are treating them
as a Class I felony.
THE COURT: Well, that, of course, is the
lowest level, we understand.
[DEFENDANT'S COUNSEL]: Yes, sir.
THE COURT: I guess that's why we're going the
lowest level because if they're felonies, they
have to be at least that much.
[DEFENDANT'S COUNSEL]: I understand.
THE COURT: And do you agree that he's on
pretrial release?
[DEFENDANT'S COUNSEL]: I'm not sure whether he
was on pretrial release or not, Your Honor.
It doesn't matter, Your Honor, for the one
point, won't make any difference.
THE COURT: One point would still keep it in
the level three.
[DEFENDANT'S COUNSEL]: Yes, sir.
THE COURT: So, even if you disagree with that,
certainly, it would be seven _ seven points,
which would still make him a level three. You
would have to get down below five points to
make it a level two.
[DEFENDANT'S COUNSEL]: Yes, Your Honor.
THE COURT: All right, you may have a seat.
Sometime after this exchange, the trial court sentenced defendant
as a level three prior offender in the presumptive range.
“The State bears the burden of proving, by a preponderance of
the evidence, that a prior conviction exists and that the offender
before the court is the same person as the offender named in the
prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f) (2003). A
prior conviction may be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
Id. It has been repeatedly held that the submission of a worksheet
by the State is insufficient to satisfy the State's burden under
this statute; therefore, we must determine whether the trial
court's exchange with the defendant's counsel regarding the
worksheet submitted by the State in this case constituted a
stipulation by the defendant to the prior convictions listed on the
worksheet. See State v. Eubanks, 151 N.C. App. 499, 505, 565
S.E.2d 738, 742 (2002).
In Eubanks, this Court found that the defendant had stipulated
to the prior convictions listed on a worksheet submitted by the
State where the defendant stated that he had no objections to the
worksheet. Id. at 505-06, S.E.2d at 742-43. Similarly, in this
case, defendant Johnson's counsel did not object to the convictions
on the worksheet upon the trial court's inquiry regarding whetherhe had any questions or concerns about it. In fact, defendant
Johnson's counsel answered in the affirmative when the trial court
stated that the defendant, at the very least, had seven prior
record level points which would constitute him a level three
offender. We interpret this exchange between the trial court and
defendant Johnson's counsel to be a stipulation by the defendant of
the prior convictions listed on the worksheet submitted by the
State. Accordingly, we overrule defendant Johnson's final
assignment of error.
Defendant Whisonant's appeal: No Error.
Defendant Johnson's appeal: No Error.
Judges HUDSON and GEER concur.
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