NO. COA03-1391
Appeal by defendant from judgments dated 30 April 2003 by
Judge Jerry R. Tillett in Pitt County Superior Court. Heard in the
Court of Appeals 12 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel D. Addison, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
BRYANT, Judge.
Chaumon Marte Webb (defendant) appeals judgments dated 30
April 2003, entered consistent with his conviction of robbery with
a dangerous weapon, attempted murder, and possession of a handgun
by a convicted felon.
At trial, the State's evidence tended to show that on the
night of 10 March 2002, Michael McCotter used a nine-millimeter
handgun to rob James Daniel Manning, the clerk at the SAK's
Convenient Mart (SAK's) on State Highway 102 in Ayden, North
Carolina. Wearing a ski mask or toboggan, McCotter entered SAK's,
held the gun to Manning's head, and demanded money. When Manning
ducked behind the counter, McCotter fired a single shot that missedManning's head by inches. McCotter exited SAK's with $959.00 from
the cash drawer and a .32-caliber pistol belonging to the store's
owner.
On 12 April 2002, defendant dictated the following statement
regarding the SAK's robbery to Major John W. Burrus of the Greene
County Sheriff's Department:
[Defendant] and Michael McCotter went to a
store outside of Ayden on a highway going
towards Washington. He ([defendant]) dropped
off McCotter at a house no one lived in just
down from the store, and McCotter went in with
a silver 9 MM handgun and ski mask to rob the
store. [Defendant] . . . waited at the
driveway of the house and McCotter returned
running a few minutes later with approximately
$350.00. McCotter gave him ([defendant])
$100.00.
Defendant also stated that McCotter “had an old black revolver[,]”
which he had given to Calvert Hart. However, McCotter did not tell
defendant about the shooting in the store. The statement was
signed by defendant, as witnessed by Major Burrus and a deputy
sheriff.
At trial, the State introduced evidence of a similar robbery
committed by McCotter at 9:00 p.m. on 13 March 2002 at a Kash &
Karry convenience store in Grifton, North Carolina, which is
approximately five miles from Ayden. Wearing a ski mask, McCotter
brandished a black or dark-colored revolver at the store clerk and
demanded “all the money.” When the clerk had difficulty opening
the cash register, McCotter fired the gun. McCotter took the money
from the register and fled, running outside toward the back of the
store. During his escape, McCotter shot out the driver's sidewindow of Pitt County Sheriff's Detective Johnny Craft's vehicle as
he was pulling into the store's rear driveway. McCotter shot
Detective Craft's vehicle a second time in the rear.
Detective Craft took a written statement from defendant on 1
April 2002, in which he gave the following account of the Kash &
Karry robbery:
Kash & Karry, I know [McCotter] got out of the
vehicle and said he'll be back. True I about
knew what he was gonna to do, so I told him,
and I quote, I don't know anything if you get
caught for something. So when I heard
shooting I left because I didn't want anything
to do with it. True, I drove, . . . . He
kept saying he was seeking or looking for
crack and I was like he get the money;
however, he did that's his business. He
called me later that night and I went and got
him. I didn't want to leave anybody out
regardless what they did.
Police recovered a .32-caliber bullet from the inside of the Kash
& Karry by the coffee machine, and a second .32-caliber bullet from
Craft's vehicle. Police later found a box of .32-caliber bullets
underneath the bed in defendant's apartment.
Further, the State introduced evidence of two additional armed
robberies of convenience stores which occurred in the area during
the same time period. The first robbery took place at 8:45 p.m. on
25 February 2002, at the 264 Country Mart in Walstonburg, North
Carolina. The second robbery occurred the following week at
approximately 9:00 p.m. at the Creek Side Convenient Mart (Creek
Side) in Pitt County. Defendant dictated statements to Major
Burrus regarding these two robberies, claiming that on each
occasion he drove McCotter to a location near the store and waitedwhile McCotter robbed the store using a black ski mask and a silver
nine-millimeter handgun. Defendant further stated that McCotter
gave him $150.00 after the 264 Country Mart robbery and $50.00
after the Creek Side robbery.
In his testimony, defendant denied any involvement in the
SAK's robbery and further denied giving statements to police
regarding the incident, or the robberies at 264 Convenient Mart or
at Creek Side. He, however, acknowledged giving Craft the
statement concerning the Kash & Karry robbery. McCotter also
testified for the defense, repudiating as untruthful his own
statement to police in which he implicated defendant as the driver
in the SAK's robbery.
Defendant was found guilty of robbery with a dangerous weapon,
attempted murder, possession of a handgun as a convicted felon, and
assault with a deadly weapon. After arresting judgment on the
assault with a deadly weapon conviction, the trial court sentenced
defendant to three consecutive aggravated prison terms totaling 484
to 600 months. Defendant gave notice of appeal in open court.
_________________________
The issues on appeal are whether: (I) defendant's convictions
for attempted murder and robbery with a dangerous weapon must be
vacated; (II) defendant's trial counsel rendered ineffective
assistance in failing to make a motion to dismiss; and (III) the
trial court erred in allowing into evidence details of another
robbery.
I
Defendant first claims that his convictions for attempted
murder and robbery with a dangerous weapon must be vacated, absent
sufficient evidence to show that he aided and abetted or acted in
concert with McCotter in the SAK's robbery. Although defendant
moved to dismiss the charges at the conclusion of the State's case
in chief, however, he failed to renew his motion at the conclusion
of all the evidence. Accordingly, defendant has waived appellate
review of the sufficiency of the evidence.
See State v. Stocks,
319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987); N.C.R. App. P.
10(b)(3).
Acknowledging that he failed to preserve the issue by renewing
his motion to dismiss, defendant also seeks review for plain error
pursuant to N.C.R. App. P. 10(c)(4). Plain error, however, may not
be invoked to challenge the sufficiency of the evidence where a
defendant has not renewed his motion to dismiss at the conclusion
of all the evidence as required by N.C. R. App. P. 10(b)(3).
See
State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504
(1995).
II
Defendant next claims his trial counsel rendered ineffective
assistance in failing to make a motion to dismiss. Defendant did
not include ineffective assistance of counsel as an assignment of
error in the record on appeal. Therefore, this claim is not
properly before this Court for review.
State v. Lloyd, 89 N.C.
App. 630, 638, 366 S.E.2d 912, 917 (1988).
In the alternative, defendant asks this Court to consider hisineffective assistance of counsel claim as a motion for appropriate
relief. A claim brought forward in a motion for appropriate relief
will be procedurally barred if “[u]pon a previous appeal the
defendant was in a position to adequately raise the ground or issue
underlying the present motion but did not do so.” N.C.G.S. § 15A-
1419(a)(3) (2003). Ineffective assistance of counsel claims may be
reviewed on direct appeal “when the cold record reveals that no
further investigation is required,
i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.”
State v.
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (citations
omitted),
cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Inasmuch as defendant challenges only his counsel's failure to make
a motion to dismiss at trial, a review of his claim requires no
evidence or inquiry beyond the cold record. Accordingly,
defendant's failure to assign error on direct appeal to counsel's
alleged ineffectiveness bars him from now raising this claim in a
motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-
1419(a)(3).
Id. at 167, 557 S.E.2d at 525 (“[T]o avoid procedural
default under N.C.G.S. § 15A-1419(a)(3), defendants should
necessarily raise those [ineffective assistance of counsel] claims
on direct appeal that are apparent from the record.”).
To the extent defendant asks this Court to review the
sufficiency of the evidence “in the interests of justice” pursuant
to our authority under N.C.R. App. P. 2, we note that Manning's
account of the SAK's robbery and defendant's confession to his roleas McCotter's driver was sufficient to support his convictions.
“[O]ne may be convicted of aiding and abetting in the offense of
robbery . . . if he provides 'a means by which the actual
perpetrator may get away from the scene upon completion of the
offense.'”
State v. Musselwhite, 36 N.C. App. 430, 436, 245 S.E.2d
171, 175 (1978) (citation omitted). As the driver of the getaway
vehicle and recipient of a portion of the robbery's proceeds,
defendant was liable both for the armed robbery and the attempted
murder committed by McCotter in the course thereof.
See State v.
Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971),
death
penalty vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972).
III
Defendant next argues the trial court erred in conducting a
“mini-trial” regarding the Kash & Karry robbery and in allowing
into evidence extraneous and prejudicial details of this incident
in violation of N.C. Gen. Stat. § 8C-1, Rules 403 and 404(b). He
cites as inflammatory and “excessive” certain testimony of Kash &
Karry employee Waleid Maseitef, Detective Craft, bystander Jonathan
Brooks, and Pitt County Sheriff's Detective Scott Pollard, which he
avers was extraneous to any showing of his own knowledge of
McCotter's actions or of any common scheme or modus operandi under
Rule 404(b). Specifically, defendant points to testimony that
McCotter fired shots at Detective Craft's vehicle as he fled the
Kash & Karry store. Defendant insists that this evidence
improperly inflamed the jury and induced the trial court to
aggravate his sentences despite his minor role in the SAK'srobbery.
Again, defendant did not assign error in the record on appeal
to the admission of testimony by Maseitef, Detective Craft,
Brooks's, or Detective Pollard. Defendant's assignments of error
instead challenge only the admission of out-of-court statements by
defendant and McCotter regarding the Kash & Karry robbery, as well
as defendant's testimony on cross-examination that he had presented
a false driver's license to police following the Kash & Karry
robbery, as follows:
5. The Trial Court's admission into evidence
of two alleged prior statements by
defendant Webb; . . . .
6. The Trial Court's admission into evidence
of two alleged prior statements by co-
defendant McCotter; . . . .
. . . .
9. The Trial Court's failure to exclude
prior bad act evidence in the form of
testimony regarding the fact defendant
gave a false name.
Having failed to assign error to the testimony addressed in his
appellant's brief, defendant has failed to preserve his argument
for appellate review.
State v. Hamilton, 351 N.C. 14, 22, 519
S.E.2d 514, 519 (1999) (“Our scope of appellate review is limited
to those issues set out in the record on appeal.”).
To the extent defendant challenges the admissibility of his
and McCotter's statements regarding the Kash & Karry robbery under
Rule 404(b), we find no merit to his position. Evidence of a
similar armed robbery of a convenience store performed in a similar
fashion at the same time of night by the same two principals threedays after the SAK's robbery and approximately five miles from the
SAK's store was admissible to show defendant's knowledge and intent
in dropping McCotter off near SAK's, as well as their plan and
modus operandi.
See State v. Wilson, 345 N.C. 119, 126-27, 478
S.E.2d 507, 512 (1996);
State v. Diehl, 147 N.C. App. 646, 652, 557
S.E.2d 152, 157 (2001),
disc. review denied, 356 N.C. 170, 568
S.E.2d 624 (2002). Although defendant makes no argument that his
and McCotter's written statements to law enforcement were unfairly
prejudicial under Rule 403, we further find no abuse of the trial
court's discretion in admitting this evidence. We note the trial
court carefully instructed the jury that this evidence could not be
considered as evidence of defendant's character or actions in
conformity therewith, but only for the limited purpose of showing
modus operandi, plan or common scheme, knowledge, opportunity or
absence of mistake in the SAK's robbery. Further, the trial court
took the additional step of inquiring into the jury's understanding
and ability to follow its limiting instruction: The jurors
unanimously indicated they could follow the instruction.
We reject as speculative defendant's suggestion that the trial
court aggravated his sentences based upon McCotter's conduct at the
Kash & Karry. Both the trial transcript and the court's written
findings reflect that it aggravated defendant's sentences because
he committed the instant offenses while on pre-trial release for an
unrelated offense.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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