STATE OF NORTH CAROLINA
v. Craven County
No. 02 CRS 53978
CLAY JEROME FRAZIER, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jeffrey B. Parsons, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Terri W. Sharp, for defendant-appellant.
McGEE, Judge.
Clay Jerome Frazier, Jr. (defendant) was convicted of robbery
with a dangerous weapon. The State's evidence at trial tended to
show that Sean Cartwright (Cartwright) was driving home after work
in his Geo Tracker (the vehicle) at around 11:30 p.m. on 1 July
2002. As he drove down Adams Creek Road in Craven County,
Cartwright saw a truck stopped in his lane of traffic with its high
beams shining in his direction. As he went around the truck,
Cartwright saw "eight to ten people standing around" and he heard
gunfire. Immediately thereafter, Generic Turner (Turner) was
standing at the driver's door of Cartwright's vehicle with a gun
pointed at Cartwright's head, telling Cartwright "to pull over tothe side of the road." Turner ordered Cartwright out of the
vehicle. Turner and defendant demanded Cartwright's wallet, which
Cartwright threw on the seat for them to pick up. As Turner held
Cartwright at gunpoint, defendant attempted to remove the radio,
amplifier and speakers from the vehicle but was unsuccessful.
Turner took Cartwright's keys and ordered him into the front
passenger's seat of the vehicle. A man, whom Cartwright believed
to be defendant, climbed into the back seat and held a gun to
Cartwright's head. Fearing he would be shot, Cartwright did not
turn his head to see who was in the back seat. However, the person
was of the "same shape and size" as defendant, and Cartwright had
not seen anyone other than Turner and defendant approach his
vehicle. At the intersection of Frazier Town Road and Adam's Creek
Road, the person in the back seat exited the vehicle and handed
Turner the gun through the window. Turner drove the vehicle
recklessly as he taunted Cartwright. Eventually, Cartwright jumped
from the moving vehicle and ran to the house of an acquaintance to
call 911.
Deputy James Teel (Deputy Teel) of the Craven County Sheriff's
Department responded to the scene at approximately 12:15 a.m. on 2
July 2002. Cartwright stated that he recognized his assailants and
would contact the deputies once he had looked at his high school
yearbook to determine their names. Cartwright identified the man
in the driver's seat of his vehicle as Generic Frazier. Deputy
Teel asked Cartwright if he meant Generic Frazier or Generic Turner
and Cartwright replied that he would have to consult his yearbook. Later that morning, Deputy Teel located the vehicle in a ditch on
Thomas Bell Jay Road and called Cartwright.
Cartwright looked in his yearbook and found pictures of the
two men who had robbed him. When Cartwright saw defendant's
picture, he "automatically said that was the other guy." When
Cartwright went to retrieve his vehicle, he confirmed the driver's
name as Generic Turner. Cartwright's wallet was found in the
vehicle, but his money was gone.
Deputy John Whitfield (Deputy Whitfield) of the Craven County
Sheriff's Department contacted Cartwright on the afternoon of 2
July 2002. Cartwright identified defendant by name as the second
assailant. Based on this identification, Deputy Whitfield obtained
a warrant on 2 July 2002 for defendant's arrest, and defendant was
arrested the following day. On 8 July 2002, Deputy Whitfield
presented Cartwright with two photographic lineups, one of which
included defendant, in order "to corroborate his story."
Cartwright selected defendant's photograph from the first line-up
and Turner's photograph from the second.
Turner testified that he, defendant, and Jermaine Brown
(Brown) ran up to Cartwright's vehicle and told him to stop.
Turner ordered Cartwright out of the vehicle. According to Turner,
defendant "brought me the gun around the jeep and I put it on
[Cartwright]." Turner demanded and took Cartwright's wallet while
defendant was "trying to get the speakers and the box out of the
back of the trunk." After ordering Cartwright into the passenger's
seat, Turner sat in the driver's seat and "let [Brown] in the backseat" before driving down Frazier Town Road.
Defendant first argues the trial court erred in denying his
motion to suppress Cartwright's identification of defendant as one
of Cartwright's two assailants. In support of his claim, defendant
contends the photographic line-up presented to Cartwright by Deputy
Whitfield on 8 July 2002 was unduly suggestive. At the hearing on
the motion to suppress, Deputy Whitfield recounted Cartwright's
prior familiarity with defendant and Cartwright's naming of
defendant as one of the robbers after consulting his high school
yearbook. Deputy Whitfield described his telephone conversation
with Cartwright on 2 July 2002 as follows:
[Cartwright] named two in particular, Generic
Turner and Clay Frazier. He named your client
because he said he recognized him the night of
the robbery. He didn't remember his name but
he went home and looked in his [a]nnual,
because he rode the school bus with him, and
picked him out of his annual that way.
Only after defendant's arrest did Deputy Whitfield present
Cartwright with the photographic line-up as another way "to
corroborate his story."
In denying the motion to suppress, the trial court found that
"the victim knew the Defendant by face, not necessarily by name[,]"
and that he "discovered the Defendant's name by looking through the
high school yearbook and notified the officers." The trial court
found that the photographic line-up "was not improperly suggestive,
nor really was it a causative factor in the arrest of the
Defendant, as the Defendant had already previously been identified
by the victim and had previously been arrested." As fordefendant's claim that it was Brown, not defendant, who rode in the
back seat of the vehicle with Turner and Cartwright, the trial
court stated, "I don't see that you've got any grounds to suppress.
You've got a whole lot of stuff to argue to a jury about."
Identification of a suspect by a witness will be excluded from
evidence if the procedures leading to the identification were "so
impermissibly suggestive that there is a very substantial
likelihood of irreparable misidentification." State v. Williams,
69 N.C. App. 126, 128, 316 S.E.2d 322, 324 (1984). In this case,
we find no possibility that the photographic line-up led
Cartwright to mistakenly identify defendant as one of his
assailants. Rather, it was Cartwright's independent identification
of defendant on 2 July 2002 that led Deputy Whitfield to prepare
the photographic line-up on 8 July 2002. As found by the trial
court, the evidence conclusively shows that Cartwright's
identification of defendant on 2 July 2002 was based on
Cartwright's observations at the crime scene and his prior
familiarity with defendant, and not on the 8 July 2002 photographic
line-up or on his knowledge of defendant's arrest. Cf. State v.
Butler, 331 N.C. 227, 237, 415 S.E.2d 719, 724-25 (1992) (holding
that the trial court's failure to conduct a voir dire regarding a
photographic line-up was harmless, in light of the "clear and
convincing evidence that the witness knew and was familiar with the
defendant, that the witness had ample and clear opportunity to
observe the defendant as he committed the crime, and that the
witness consistently identified the defendant as the perpetrator"). The trial court did not err in denying defendant's motion to
dismiss.
Defendant also challenges the admission into evidence of the
photographic line-up and defendant's high school yearbook
photograph, arguing they were unfairly prejudicial under N.C. Gen.
Stat. § 8C-1, Rule 403. Having examined the exhibits in question,
we find no error by the trial court. The photographs were
admissible, within the trial court's discretion, for the purpose of
illustrating the witnesses' testimony. They were not inflammatory
nor unduly prejudicial to defendant. See State v. Walters, 357
N.C. 68, 97, 588 S.E.2d 344, 361, cert. denied, ___ U.S.___, 157 L.
Ed. 2d 320 (2003).
Defendant next contends the trial court erred in allowing the
State to amend the indictment just prior to trial to change the
date of the alleged armed robbery from "on or about the 2nd day of
July, 2002" to "on or about July 1 through July 2" of 2002. The
State's evidence showed the robbery occurred between 11:30 p.m. on
1 July 2002 and 12:15 a.m. on 2 July 2002. Although the original
language of the indictment was sufficient to sustain defendant's
conviction, the alteration permitted by the trial court did not
affect any necessary or essential fact of the charge or hinder the
defense in any way. See State v. Cameron, 83 N.C. App. 69, 72, 349
S.E.2d 327, 329-30 (1986). Accordingly, this assignment of error
is overruled.
Defendant also challenges the amendment of a second portion of
the indictment charging him with larceny of a motor vehicle. However, the trial court dismissed this charge at the conclusion of
the evidence, precluding any possible prejudice to defendant.
Defendant next argues the trial court erred in instructing the
jury on the doctrine of concerted action. Citing Turner's
testimony that Brown rode in the back seat of the vehicle with
Turner and Cartwright, defendant asserts that Turner and Brown
committed the kidnapping and armed robbery. Defendant states his
own participation in the incident was limited to "attempting to
steal the stereo from Cartwright's vehicle, which was not
accomplished."
We have previously defined the doctrine of concerted action as
follows:
To act in concert means to act in
conjunction with another according to a common
plan or purpose. It is unnecessary to show
that defendant committed "any particular act
constituting at least part of a crime in order
to be convicted of that crime under the
concerted action principle so long as he is
present at the scene of the crime and the
evidence is sufficient to show he is acting
together with another who does the acts
necessary to constitute the crime pursuant to
a common plan or purpose to commit the crime."
State v. Sams, 148 N.C. App. 141, 145, 557 S.E.2d 638, 641 (2001),
disc. review denied, 355 N.C. 352, 562 S.E.2d 429 (2002) (citation
omitted) (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d
390, 395 (1979)). In the case before us, the State offered
evidence that defendant assisted Turner in stopping Cartwright's
vehicle and handed Turner a gun, which Turner used to take
Cartwright's wallet while defendant attempted to steal Cartwright's
stereo. This testimony supported an instruction on concertedaction, inasmuch as it tended to show defendant's actual presence
during the armed robbery and his action "together, in harmony or in
conjunction . . . with [Turner] pursuant to a common plan or
purpose." Joyner, 297 N.C. at 356, 255 S.E.2d at 395. To the
extent defendant challenges this instruction as it pertained to the
kidnapping charge, his acquittal rendered any error harmless.
In his final argument, defendant claims the trial court erred
in denying his motion to dismiss at the conclusion of the evidence
and his motions to set aside the verdict and for a new trial. He
argues the evidence was insufficient to show that he took
Cartwright's property using a dangerous weapon or that he joined
with Turner in doing so. Defendant repeats his assertion that
Turner and Brown were in the vehicle with Cartwright when the
wallet was stolen. While acknowledging the evidence that Turner
used defendant's gun to commit the robbery, defendant insists
"there is no evidence that once [the gun] was given to Generic
Turner that defendant Frazier had anything to do with the armed
robbery, kidnapping, or taking of the vehicle."
In reviewing the sufficiency of the evidence in a criminal
trial, this Court must examine the evidence in the light most
favorable to the State to determine if it would allow a reasonable
fact-finder to find defendant guilty of each essential element of
the offense beyond a reasonable doubt. See State v. McDowell, 329
N.C. 363, 389, 407 S.E.2d 200, 214-15 (1991); State v. Sumpter, 318
N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986).
The essential elements of robbery with a
dangerous weapon are: "(1) an unlawful takingor an attempt to take personal property from
the person or in the presence of another, (2)
by use or threatened use of a firearm or other
dangerous weapon, (3) whereby the life of a
person is endangered or threatened."
State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605, cert.
denied, ___ U.S. ___, 157 L. Ed. 2d 382 (2003) (quoting State v.
Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)).
As set forth above, we find substantial evidence that
defendant and Turner acted in concert to rob Cartwright of his
wallet with a handgun. "The action of both defendants created one
orchestrated sequence of events," which culminated in the robbery.
State v. Williams, 299 N.C. 652, 657, 263 S.E.2d 774, 778 (1980).
Defendant's contemporaneous efforts to steal the stereo components
from Cartwright's vehicle further showed defendant's and Turner's
attempted larceny.
Defendant's focus on the identity of the person who sat in the
back seat of the vehicle while Turner drove Cartwright up and down
Frazier Town Road is inapposite as to the robbery charge.
Cartwright testified that the theft of his wallet occurred at the
beginning of the incident, just after he stopped his vehicle and
before Turner transported him to Frazier Town Road:
[STATE]: At some point when those individuals
were standing around your Tracker, did they
take anything from you?
[CARTWRIGHT]: Yes, ma'am, they demanded my
wallet.
[DEFENSE COUNSEL]: OBJECTION, MOTION TO
STRIKE.
COURT: OVERRULED.
. . .
[CARTWRIGHT:] They demanded my wallet as we
first pulled over, so I gave [defendant] my
wallet and actually I kind of threw it on the
seat and they picked it up, and it had about
sixty dollars in there and a Texaco credit
card and driver's license.
Similarly, Turner's testimony confirmed that he and defendant took
Cartwright's wallet just after they stopped Cartwright. According
to Turner, he, defendant and Brown ran up to the vehicle and told
Cartwright to stop. While Turner ordered Cartwright out of the
vehicle, defendant opened the rear door and attempted to remove the
stereo speakers. Turner described the course of the robbery as
follows:
[STATE]: At that point did you see anybody
with a gun?
. . .
[TURNER]: [Defendant] brought me the gun
around the jeep and I put it on [Cartwright].
. . .
[TURNER]: I held the gun on [Cartwright] while
[defendant] was in the back looking for the
speakers and I told him to give me his wallet.
. . .
[STATE]: What happened after that?
[TURNER]: After that I got [Cartwright's]
wallet, we told him to put his car on the side
of the road. He moved, got out and got in the
passenger. I got in the driver. I let
Jermaine Brown in the back seat and we rode
down Frazier Town.
For purposes of our review, it is immaterial whether defendant or
Brown rode in the vehicle with Turner. Defendant expressly abandons his remaining assignment of
error.
No error.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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