2. Evidence-_testimony about contents of lost videotape_-identity--failure to show
prejudicial error
The trial court did not abuse its discretion in a robbery with a firearm case by allowing an
officer to testify at trial regarding the contents of a lost videotape allegedly in violation of N.C.G.S.
§ 8C-1, Rules 403 and 701, because: (1) the testimony of the officer that he observed defendant's
gait in the past, observed the robber's gait on the videotape several times, and perceived the two gaits
to be similar bore on the jury's determination of the identity of the perpetrator; (2) the jurors'
inability to view the lost videotape does not, per se, result in a violation of Rule 403 since defendant
does not assert the State destroyed or lost the videotape in bad faith, and thus secondary evidence
such as the officer's testimony is expressly permitted under N.C.G.S. § 8C-1, Rule 1004 if otherwise
admissible under the Rules of Evidence; and (3) although prejudicial, defendant has made no
showing that the prejudice was unfair or had the undue tendency to suggest a decision on an
improper basis.
3. Constitutional Law--effective assistance of counsel--failure to object or move to strike
Defendant did not receive ineffective assistance of counsel in a robbery with a firearm case
by his counsel's failure to object to or move to strike the prior out-of-court statements of two
witnesses admitted for corroborative purposes because even without the out-of-court statements,
defendant has failed to show that there is a reasonable probability that absent the alleged error the
trial result would have been different.
Appeal by defendant from judgment entered 21 November 2003 by
Judge Benjamin G. Alford in Onslow County Superior Court. Heard in
the Court of Appeals 16 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Joyce S. Rutledge for the State.
Paul F. Herzog for defendant-appellant.
CALABRIA, Judge.
Wesley Shane Thorne (“defendant”) appeals a judgment entered
on a jury verdict of guilty of robbery with a firearm. We find no
error.
The State presented evidence that sometime around 4:00 p.m. on
3 November 1998, defendant and his girlfriend, Maxine Little
(“Maxine”), drove defendant's car to the end of a dead end street
near the woods behind the Marine Federal Credit Union (the “Credit
Union”) in Jacksonville, North Carolina to smoke marijuana.
Defendant exited the car, opened the trunk, and left for
approximately seven minutes. During this time, defendant entered
the back entrance of the Credit Union wearing a black top, black
pants, a black ski mask, and sunglasses. Defendant was armed with
a sawed-off shotgun and was carrying a black pillowcase. He
ordered the tellers to fill the pillowcase with money and
threatened to harm the tellers and customers if anyone moved or did
anything wrong. Defendant took the money and exited the bank
through the same door he entered.
Defendant returned to the car, and Maxine observed he was out
of breath and was wearing a black, hooded sweatshirt that was
different from the shirt he had been wearing when he exited the
car. When defendant later opened the trunk of the car, Maxine
noticed a small rifle or shotgun and a black pillowcase with moneyhanging out of it. Two days after the robbery, defendant paid cash
for the balance of the restitution he owed on his probation
sentence. The following month, defendant paid $740.94 in cash for
new furniture and $600.00 in cash towards the rent on a new
apartment.
Members of the Jacksonville Police Department and the State
Bureau of Investigation arrived at the Credit Union shortly after
the robbery. An audit revealed the total amount stolen during the
robbery was $10,884.00. Captain Tim Malfitano (“Captain
Malfitano”) of the Jacksonville Police Department viewed the Credit
Union's surveillance tape of the robbery several times and informed
the police detectives that the “characteristic of the [robber's]
walk” was similar to that of defendant. During the investigation,
Thomas Rafferty of the Onslow County Sheriff's Department also
recovered a pair of sunglasses that were on the ground behind the
Credit Union, and they were later identified as being similar to
sunglasses normally worn by defendant. That night, police obtained
defendant's consent to search his bedroom, where they found and
seized a black pillowcase. Defendant was not taken into custody
and the robbery case was classified inactive. Subsequently, the
Jacksonville Police Department lost the surveillance videotape of
the robbery.
On 22 May 2000, Detective David Kaderbek (“Detective
Kaderbek”), the detective assigned to the case, obtained statements
from four separate people who linked defendant to the robbery. The
first statement was by Sharon Gardner (“Gardner”), Maxine's mother.She stated that Kristin Elkert (“Elkert”) informed her that Maxine
was involved in the robbery. The second statement by Elkert
revealed that Maxine told her that she and defendant had robbed the
Credit Union. Hilton Scott (“Scott”) also gave a statement that
defendant told him that he obtained his money by robbing a bank.
The last statement, given by Maxine, identified defendant as the
robber of the Credit Union on 3 November 1998. On 4 August 2000,
a warrant was issued for defendant's arrest, and he was indicted
for robbery with a dangerous weapon on 11 February 2003.
Prior to trial, defendant made a motion in limine to prohibit
any witnesses who had viewed the surveillance tape of the robbery
from testifying about the contents of the videotape at trial. The
trial court denied the motion in limine and Captain Malfitano
subsequently testified at trial, over defendant's objection, that
the gait of defendant was similar to that of the person seen
robbing the bank on the surveillance tape. At trial, Elkert and
Scott also read into evidence the statements they had previously
made. Maxine, pursuant to plea bargain, also testified.
On 21 November 2003, the jury returned a verdict of guilty of
robbery with a firearm. The trial court determined defendant's
prior record level was a level four and sentenced defendant to a
term of 117 to 150 months in the North Carolina Department of
Correction. Defendant appeals.
[1] Defendant first assigns error to the trial court's denial
of his motion in limine, in which he requested an order prohibiting
witnesses from testifying about the contents of the lostsurveillance videotape of the bank robbery. Defendant's only
specific contention properly before this Court is that the denial
of the motion in limine violated his constitutional right to
confront the witnesses against him under the Sixth Amendment to the
United States Constitution and Article I, Section 23 of the North
Carolina Constitution.
(See footnote 1)
Defendant claims that by allowing Captain
Malfitano to testify about the contents of the videotape, the trial
court interfered with his right of effective cross-examination
because he had no way to test the credibility of the witness.
Specifically, defendant argues “[h]e could not show the tape to the
jury during cross-examination, and ask the witness specific
questions about the basis of the opinion, with the jurors watching
both the tape and the witness.”
It is well-settled that de novo review is ordinarily
appropriate in cases where constitutional rights are implicated.
Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554
S.E.2d 331, 332 (2001). Under the Confrontation Clause of the
Sixth Amendment, a defendant is guaranteed the right to effectively
cross-examine a witness, which includes the opportunity to showthat a witness is biased or that the testimony is exaggerated or
unbelievable. United States v. Abel, 469 U.S. 45, 50, 83 L.Ed. 2d
450, 456 (1984). The right to effectively cross-examine a witness,
however, does not guarantee a defendant a “cross-examination that
is effective in whatever way, and to whatever extent, the defense
might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 88 L.Ed. 2d
15, 19 (1985) (per curiam). Indeed, the right to confront one's
accusers is generally satisfied if defense counsel receives wide
latitude at trial to question witnesses. Fensterer, 474 U.S. at
22, 88 L.Ed. 2d at 21.
In Fensterer, the defendant was convicted, in part, on the
testimony of the State's expert witness, who could not recall which
scientific test he used to form his opinion. Id., 474 U.S. at 17,
88 L.Ed. 2d at 18. Despite his inability to recall limited defense
counsel's efforts to discredit the testimony, the Supreme Court
held that there was no Sixth Amendment violation. The Court held
that because the scope of defendant's cross-examination was not
restricted by the trial court or by law, the defendant had a full
“opportunity for effective cross-examination.” Id., 474 U.S. at
19-20, 88 L.Ed. 2d at 19.
In State v. Zinsli, 156 Or. App. 245, 966 P.2d 1200 (1998),
the Oregon Court of Appeals, considered a Confrontation Clause
challenge on facts similar to the case at bar. In Zinsli, the
defendant was driving under the influence of intoxicants and the
administered field sobriety tests were videotaped. Id., 156 Or.
App. at 247, 966 P.2d at 1201. The videotape was later destroyedinadvertently. Id. The trial court granted the defendant's motion
to dismiss, finding that the loss of the videotape violated
defendant's right to confrontation. Id. On appeal, the Oregon
Court of Appeals found the Supreme Court's decision in Fensterer to
be controlling and found no Confrontation Clause violation since
the arresting officer would be available to testify at trial and
his cross-examination would not be restricted by the trial court.
Id., 156 Or. App. at 251, 966 P.2d at 1203.
Similarly, in this case, defendant's cross-examination was
neither restricted by the law nor did the trial court limit the
scope of such examination. Instead, defendant's only limitation in
cross-examining Captain Malfitano was his inability to play the
lost videotape to the jury. Nonetheless, defendant had ample
opportunity to cross-examine Captain Malfitano regarding the
quality of the videotape, his viewing of the videotape, and his
personal knowledge of defendant's gait. In fact, defendant
concedes in his brief that “defense counsel [had] the opportunity
to question Captain Malfitano about what he saw on the
videotape[.]” Accordingly, defendant's confrontation rights under
the Sixth Amendment were vindicated, and we find no error.
Article I, Section 23 of the North Carolina Constitution also
provides a defendant the right to cross-examine adverse witnesses
through the constitutional guarantee of the right of confrontation.
N.C. Const. Art. I, . 23. State v. Watson, 281 N.C. 221, 229, 188
S.E. 2d 289, 294, cert. denied, 409 U.S. 1043, 34 L.Ed. 2d 493
(1972). However, our Supreme Court, in interpreting Article I,Section 23 has followed the United States Supreme Court in holding
that, “[North Carolina's] Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the
defense might wish.” State v. McNeil, 350 N.C. 657, 676, 518
S.E.2d, 486, 498 (1999) (citing Delaware v. Fensterer, 474 U.S. 15,
20, 88 L.Ed. 2d 15, 19 (1985) (per curiam)). Although our courts
have not examined the meaning of “effective” cross-examination when
evidence has been lost and is unavailable to the defendant, we find
the reasoning set forth in Fensterer to be persuasive and
applicable. Under these facts, we hold that defendant's right to
confrontation under Article I, Section 23 of the North Carolina
Constitution has not been violated, and accordingly, we find no
error.
[2] In defendant's second assignment of error he asserts the
trial court committed reversible error in allowing Captain
Malfitano to testify at trial regarding the contents of the lost
videotape in violation of N.C. Gen. Stat. . 8C-1, Rules 403 and 701
(2003). Specifically, defendant argues that the absence of the
videotape failed to allow “the jurors . . . to effectively evaluate
the worth, value and credibility of the opinion testimony of the
witness[] who made the identification from the surveillance
[videotape].” Defendant ostensibly contends that the
unavailability of the videotape affects the decision to admit lay
opinion testimony concerning its contents and argues that this is
“a new sort of hybrid for North Carolina.” We disagree. Lay witness “testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. . 8C-1, Rule 701 (2003). “[W]hether a lay
witness may testify as to an opinion is reviewed for abuse of
discretion.” State v. Washington, 141 N.C. App. 354, 362, 540
S.E.2d 388, 395 (2000). Captain Malfitano testified that as part
of his training as an undercover narcotics officer, he studied
different mannerisms and characteristics of people and was “trained
to notice differences in the actual ways people walk.”
Furthermore, Malfitano was experienced in watching people both in
person and on film and had attended several schools for electronic
and technical surveillance. Malfitano testified that he had
observed defendant's gait in the past, observed the robber's gait
on the videotape several times, and perceived the two gaits to be
similar. Such testimony bore on the jury's determination of the
identity of the perpetrator. Accordingly, this evidence was not
barred by Rule 701, and the trial court did not abuse its
discretion in admitting Captain Malfitano's testimony.
Defendant next asserts the trial court erred in balancing the
prejudicial effect of the testimony against its probative value.
Specifically, defendant argues that the jurors' inability to view
the contents of the tape unfairly prejudiced him at trial. We note
at the outset that the jurors inability to view the lost videotape
does not, per se, result in a violation of Rule 403. Indeed, ourRules of Evidence allow for the admissibility of secondary evidence
where the original is lost or destroyed. N.C. Gen. Stat. . 8C-1,
Rule 1004 (2003). Relevant to the instant case, defendant does not
assert the State destroyed or lost the videotape in bad faith;
therefore, secondary evidence, such as Captain Malfitano's
testimony, is expressly permitted under Rule 1004 if otherwise
admissible under the Rules of Evidence.
“[R]elevant [] evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice. . .
.” N.C. Gen. Stat. . 8C-1, Rule 403 (2003). “Evidence which is
probative of the State's case necessarily will have a prejudicial
effect upon the defendant; the question is one of degree.” State
v. Hoffman, 349 N.C. 167, 184, 505 S.E.2d 80, 91 (1998) (internal
quotation and citation omitted). However, “'[u]nfair prejudice,'
. . . means an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, as an emotional one.”
State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)
(internal quotation mark and citation omitted). Whether to exclude
relevant evidence pursuant to Rule 403 is a decision within the
trial court's discretion and will remain undisturbed on appeal
absent a showing that an abuse of discretion occurred. State v.
Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992).
In the instant case, the trial court did not abuse its
discretion in balancing the probative value of the detective's
testimony against its prejudicial effect. The testimony provided
evidence of the identity of the perpetrator, who was disguised withsunglasses and wore a dark covering over his face. Although
prejudicial, defendant has made no showing that the prejudice was
unfair or had the undue tendency to suggest a decision on an
improper basis. As noted supra, the unavailability of the
videotape does not make the testimony unfairly prejudicial, as the
admission of such testimony is expressly contemplated under the
Rules of Evidence. This assignment of error is overruled.
[3] In defendant's last assignment of error, he argues that
his defense counsel provided ineffective assistance when he failed
to object to or move to strike the prior out-of-court statements of
Scott and Elkert. The trial court admitted the statements as
corroborative of their trial testimony; however, defendant argues
on appeal that the statements contained additional or “new”
information and discrepancies.
“To successfully assert an ineffective assistance of counsel
claim, defendant . . . must show that [(1)] [his] counsel's
performance fell below an objective standard of reasonableness
[and] . . . [(2)] the error committed was so serious that a
reasonable probability exists that the trial result would have been
different absent the error.” State v. Blakeney, 352 N.C. 287,
307-08, 531 S.E.2d 799, 814-15 (2000) (citations omitted). Even
without the out-of-court statements by Scott and Elkert, the
evidence presented at trial included the following: (1) testimony
by Maxine, defendant's accomplice, that defendant robbed the bank;
(2) testimony from witnesses describing the weapon and container
used in the robbery corroborating Maxine's testimony that she sawa black pillowcase filled with money and a shotgun in the trunk of
defendant's car; (3) Elkert's trial testimony that Maxine told her
she and defendant had robbed a bank and hid in the woods; (4)
Scott's testimony that when he asked defendant where he had gotten
his extra money, defendant responded that the money, “c[a]me from
a bank”; (5) testimony from a witness that a dark-colored car was
parked at the end of Commerce Road near the woods behind the bank
around the time of the robbery that matched Maxine's testimony that
she and defendant drove defendant's dark blue car to the end of
Commerce Road before the robbery to smoke marijuana; (6) testimony
that defendant paid off a number of debts shortly after the robbery
and appeared to have access to more money after the robbery; (7)
Maxine's testimony that defendant told her, prior to the robbery,
how easy it would be to rob the Credit Union; and (8) testimony by
several witnesses, including Maxine, that the sunglasses found
behind the Credit Union after the robbery matched those normally
worn by defendant.
Therefore, even without the out-of-court statements, defendant
has failed to show that there is a reasonable probability that
absent the alleged error the trial result would have been
different. Accordingly, this assignment of error is overruled.
Affirmed.
Judges HUNTER and JACKSON concur.
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