Appeal by defendant from judgment entered 5 April 2004 by
Judge Robert H. Hobgood in Wake County Superior Court. Heard in
the Court of Appeals 6 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Anne Bleyman for defendant-appellant.
TIMMONS-GOODSON, Judge.
Albert Hilton Tuck, Jr. (“defendant”), appeals his conviction
for six counts of robbery with a dangerous weapon. For the reasons
discussed herein, we hold that defendant received a trial free of
prejudicial error.
The State's evidence presented at trial tends to show the
following: On 26 November 2003, June Matal (“Matal”) and Lois
Ellen Smarella (“Smarella”) were at Suzio's at Six Forks Station,
a women's boutique located in Raleigh, North Carolina. Defendant
entered the store, pointed a gun at Matal and Smarella, and ordered
Smarella to open the store's cash register. After Smarella was
unable to open the cash register, defendant ordered Matal and
Smarella to go to the back of the store. Defendant thereafter took
money from the cash register and left the store.
On 1 December 2003, Heather Hester (“Hester”) was working at
KooKaburra Kids, a children's clothing store located in Raleigh and
owned by Hester. As Hester was wrapping presents for a customer,
defendant entered the store and pointed a gun at her. Defendant
ordered Hester to open the store's cash register, and, after“fumbling through” it, he asked Hester if the cash inside the
register was all the money she had. Hester replied that it was,
and she and an employee of KooKaburra Kids went into a dressing
room “to get away.” Defendant thereafter took the money from the
cash register and left the store.
On 2 December 2003, Laura Maria Scott (“Scott”) was working at
the Gingerbread House, a florist located in Raleigh and owned by
Scott. As Scott was on the telephone, defendant approached Scott,
pointed a gun at her, and ordered her to give him her money. Scott
thereafter opened the store's cash register, and defendant took
between $130.00 and $150.00 from the register and left the store.
On 5 December 2003, Kathleen Elisa Henderson (“Henderson”) was
working at Triangle Nutrition, a health store located in Raleigh.
As Henderson was taking inventory at the front of the store,
defendant entered the store, pointed a gun at Henderson, and
ordered her to “give him all the money out of the drawer.”
Henderson opened the store's cash register and gave defendant
approximately $350.00. Defendant thereafter left the store.
On 9 December 2003, Karla Pyrtle (“Pyrtle”) was working at
Shop 20-12, a women's boutique located in Raleigh. After hearing
the front door bell of the store chime, Pyrtle exited an office and
saw defendant pointing a gun at her. Pyrtle immediately “started
screaming” and ran out of the store. When Pyrtle returned to the
store, approximately $200.00 had been taken from the store's cash
register.
On 16 December 2003, Jennifer Dawn Johnson (“Johnson”) wasworking at the Raleigh Cat Clinic, a veterinarian hospital located
in Raleigh. Defendant entered the hospital, pointed a gun at
Johnson, and asked her if anyone else was at the hospital. After
Johnson informed defendant that a doctor was at the hospital,
defendant ordered Johnson to show him the office. Once inside the
office, defendant ordered Johnson to open the doctor's purse, and,
after doing so, Johnson handed the doctor's wallet to defendant.
Defendant took approximately $100.00 in cash out of the wallet, and
he asked Johnson “what else” was in the office. Johnson gave
defendant the “petty cash” folder, and defendant took approximately
$200.00 from it. After ordering Johnson to lay down on the floor
of the x-ray room, defendant left the hospital.
On 29 December 2003, Oxford Police Department Sergeant Mark
Blair (“Sergeant Blair”) went to defendant's residence in Vance
County to question defendant about another matter. Two detectives
from the Vance County Sheriff's Office and a detective from the
Henderson Police Department accompanied Sergeant Blair to
defendant's residence, and Sergeant Blair was notified that
officers from the Raleigh Police Department were also on their way
to the residence. After the officers approached his front door,
defendant asked them to come inside his residence. After advising
defendant of his Miranda rights, the officers began questioning
defendant about a firearm. Defendant initially informed the
officers that he had “tossed” the firearm “into a pond” located
near his residence. However, defendant later informed the officers
that the firearm was located inside a vehicle parked in thedriveway. Sergeant Blair thereafter searched the vehicle and
discovered a loaded, .38 caliber revolver inside the glove box.
Raleigh Police Department Detective G.R. Passley (“Detective
Passley”) arrived at defendant's residence after the other
officers. Detective Passely suspected defendant was involved in
the robberies, and he questioned defendant about clothing the
witnesses of the robberies had described the assailant wearing.
Defendant told Detective Passley that he had previously thrown away
several shirts and other articles of clothing used in the
robberies, but that some shirts were inside another vehicle parked
in his driveway. Detective Passley found a white t-shirt inside
the vehicle, and he noted that it was cut in the back. Defendant
informed Detective Passley that he had cut the shirt to enable him
to easily pull the shirt over his face during the commission of the
robberies.
Defendant was arrested and transported to the Vance County
Sheriff's Department. After again advising defendant of his
Miranda rights, Detective Passley asked defendant if he wanted to
make a statement regarding the robberies. Defendant replied that
he did, and he thereafter confessed to each of the six robberies.
On 9 February 2004, defendant was indicted for six counts of
robbery with a dangerous weapon. Prior to trial, defendant moved
to suppress his custodial confession, arguing that he was
intoxicated and under the influence of several drugs at the time he
was interviewed. The trial court denied defendant's motion, and
his case proceeded to trial the week of 29 March 2004. At trial,defendant testified on his behalf, and he attempted to offer
evidence that he was threatened into confession by another
individual, who defendant contended had actually committed the
crimes. The trial court excluded evidence of the individual's
threats to defendant, concluding that the testimony contained
hearsay statements used to prove the truth of the matters asserted
therein. On 5 April 2004, the jury returned a guilty verdict on
each of the charges. The trial court thereafter sentenced
defendant to 324 to 446 months incarceration. Defendant appeals.
We note initially that defendant's brief does not contain
arguments supporting each of the original nineteen assignments of
error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted
assignments of error are deemed abandoned. Therefore, we limit our
present review to those issues argued by defendant in his brief.
The issues on appeal are whether the trial court erred by:
(I) denying defendant's motion to dismiss the charge of robbery of
Pyrtle with a dangerous weapon; (II) failing to set aside the
verdict on the charge of robbery of Pyrtle with a dangerous weapon;
(III) allowing Pyrtle's in-court identification of defendant; (IV)
denying defendant's motion to suppress his confession; (V)
excluding evidence regarding any threats defendant may have
received that prompted the confession; and (VI) refusing to
sentence defendant in the mitigated range for each charge.
[1] Defendant first argues that the trial court erred by
denying his motion to dismiss the charge of robbery of Pyrtle witha dangerous weapon. Defendant asserts that the State presented
insufficient evidence to demonstrate that the taking occurred “from
the person or in the presence” of Pyrtle. We disagree.
In order to withstand a motion to dismiss a charge of robbery
with a dangerous weapon, the State must present substantial
evidence that the defendant: (1) unlawfully took or attempted to
take personal property from a person or in the presence of another;
(2) by the use or threatened use of a dangerous weapon, implement,
or means; and (3) thereby endangered or threatened the life of a
person.
State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889
(2002); N.C. Gen. Stat. § 14-87(a) (2003). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Franklin, 327 N.C.
162, 171, 393 S.E.2d 781, 787 (1990). “When ruling on a motion to
dismiss, all of the evidence should be considered in the light most
favorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence.”
State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
In the instant case, defendant contends that because Pyrtle
ran out of the store immediately upon seeing defendant with the
weapon, the subsequent taking did not occur from her person or in
her presence as contemplated by N.C. Gen. Stat. § 14-87. However,
this Court has previously stated that
The word “presence” [under N.C. Gen. Stat. §
14-87] must be interpreted broadly and with
due consideration to the main element of the
crime -- intimidation or force by the use or
threatened use of firearms. “Presence” here
means a possession or control by a person soimmediate that force or intimidation is
essential to the taking of the property. And
if the force or intimidation by the use of
firearms for the purpose of taking personal
property has been used and caused the victim
in possession or control to flee the premises
and this is followed by the taking of the
property in a continuous course of conduct,
the taking is from the “presence” of the
victim.
State v. Clemmons, 35 N.C. App. 192, 196, 241 S.E.2d 116, 118-19
(citations omitted),
disc. review denied, 294 N.C. 737, 244 S.E.2d
155 (1978);
see also State v. Dunn, 26 N.C. App. 475, 476, 216
S.E.2d 412, 414 (1975) (“The evidence that defendant and his
companions picked up the groceries, after they had threatened,
beaten and driven [the victim] away, also satisfies the element of
a taking.”);
State v. Reaves, 9 N.C. App. 315, 317, 176 S.E.2d 13,
15 (1970) (concluding that “the elements of violence and of taking
[were] so joined in time and circumstance as to be inseparable”
where “[t]he car and gun were not abandoned or left unattended when
they were taken by the defendant; [the] defendant had driven their
custodian away by a vicious and murderous assault.”).
In
Clemmons, after being threatened by the defendant with
force and shot by an unidentified robber, the victim fled to an
adjoining room while her husband gave money to the defendant. On
appeal, we held that the evidence supported the conviction for
armed robbery of the victim. 35 N.C. App. at 195-96, 241 S.E.2d at
118-19. Similarly, in
State v. Edwards and State v. Nance, 49 N.C.
App. 547, 559, 272 S.E.2d 384, 393 (1980), we rejected one
defendant's argument that the trial court had erred by denying his
motion to dismiss, noting that from the evidence presented attrial, “it was reasonable to infer that [the defendant] had
attempted to frighten [the victim] and that, as soon as she left
the house, he went back into the bedroom and took property which
did not belong to him.” Likewise, in
State v. Herring, 74 N.C.
App. 269, 271, 328 S.E.2d 23, 25 (1985),
aff'd per curiam, 316 N.C.
188, 340 S.E.2d 105 (1986), we held there was sufficient evidence
to warrant an instruction on armed robbery where the evidence
tended to show that one of the defendants “discharged a gun into
the [victim's] vehicle, that the occupant fled the scene, and that
several items of personal property were missing from the vehicle
when he returned.”
In the instant case, Pyrtle testified that she fled the store
after defendant approached her with a handgun. Defendant attempts
to distinguish the above-detailed case law from the facts of the
instant case by asserting that Pyrtle “was not aware of what crime
was being attempted” because defendant “never asked [Pyrtle] for
money or spoke to her.” However, we are not convinced that a
conviction under N.C. Gen. Stat. § 14-87 depends upon the
defendant's pronouncement of his intentions or his directions to
the alleged victim. Instead, we note that “[t]he use of a weapon
to frighten or intimidate a robbery victim is the main element of
armed robbery.”
State v. Haddick, 76 N.C. App. 524, 525, 333
S.E.2d 518, 520 (1985). Furthermore, we note that the evidence
presented at trial clearly establishes defendant's intentions upon
entering the store. Pyrtle testified that defendant approached her
store while she was in the rear office, and when she opened thedoor, defendant was wearing a mask and pointing a gun at her.
Pyrtle testified that the “mask” worn by defendant “cover[ed]
everything but his eyes.” Pyrtle remembered defendant's gun
“pointed at [her] the whole time when [she] ran out of the
store[,]” and she recalled defendant “try[ing] to resist [her] with
his hand.” Pyrtle testified that she was “hysterical” and “didn't
let” defendant speak “because [she] was just pretty much going
crazy.” When Pyrtle returned to the store, she discovered
approximately $200.00 was missing from the cash register. In light
of the foregoing, we conclude that the State produced sufficient
evidence from which the jury could find that defendant took
property from Pyrtle's person or in her presence, despite Pyrtle's
flight during the incident. Accordingly, we overrule defendant's
first argument.
Defendant next argues that the trial court erred by failing to
set aside the jury's verdict on the charge of robbery of Pyrtle
with a dangerous weapon. Defendant contends that the trial court
abused its discretion by not setting aside the verdict
ex mero
motu. Alternatively, defendant contends that his trial counsel
provided ineffective assistance by failing to move to dismiss the
verdict. In support of these contentions, defendant reasserts his
arguments regarding the insufficiency of the evidence demonstrating
that a taking occurred in Pyrtle's presence.
This Court has previously held that
Failure to set aside the verdict
ex mero motu
[is] reviewable only in the situation in which
the jury's verdict is manifestly unjust and
against the greater weight of the evidence. If there is sufficient evidence to support the
verdict, the trial judge has acted within his
or her discretion in denying the motion, or in
failing to act
sua sponte to set it aside.
State v. Mack, 81 N.C. App. 578, 584, 345 S.E.2d 223, 226-27
(1986). In the instant case, as detailed above, the State offered
sufficient evidence to withstand defendant's motion to dismiss the
charge of robbery of Pyrtle with a dangerous weapon. Therefore, we
conclude that the trial court did not err by failing to set aside
the verdict on the charge
ex mero motu. Similarly, because we have
examined the evidence presented by the State and found it
sufficient, we are not persuaded that, but for his trial counsel's
refusal to move to set aside the verdict, “there is a reasonable
probability that . . . the result of the proceeding [against
defendant] would have been different.”
Strickland v. Washington,
466 U.S 668, 694, 80 L. Ed. 2d 674, 698 (1984). Accordingly, we
overrule defendant's second argument.
[2] Defendant next argues that the trial court committed plain
error by allowing Pyrtle to identify defendant at trial as the
individual who robbed her store. Defendant asserts that the
identification should have been excluded because it was unreliable.
We disagree.
“A prerequisite to our engaging in a 'plain error' analysis is
the determination that [the trial court's action] complained of
constitutes 'error' at all.”
State v. Torain, 316 N.C. 111, 116,
340 S.E.2d 465, 468,
cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77
(1986). We note that “[a] witness may not testify to a matter
unless evidence is introduced sufficient to support a finding thathe has personal knowledge of the matter.” N.C. Gen. Stat. § 8C-1,
Rule 602 (2003). “This rule is designed to prevent a witness from
testifying to a fact about which he has no direct, personal
knowledge.”
State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661,
669,
disc. review denied, 357 N.C. 661, 590 S.E.2d 857 (2003).
Furthermore, “[a] witness who testifies to a fact which can be
perceived by the senses must have had an opportunity to observe and
must have actually observed the facts. . . . '[P]ersonal knowledge
is not an absolute but may consist of what the witness thinks he
knows from personal perception.'” N.C. Gen. Stat. § 8C-1, Rule 602
(Commentary (quoting Advisory Committee's Notes)).
In the instant case, Pyrtle testified at trial that she has
“always been an observant person” and that she focused on the “eyes
and the kind of hair” of the individual who robbed her. She
testified that the individual's eyes were “very noticeable[,]” and
on cross-examination, she testified that she and the individual
were in the store together for “40, 45 seconds.” She further
testified that although the individual was wearing “something
covering his face[,]” she could “clearly see his face[,]” including
“[t]he bridge of his nose.” Pyrtle testified that the individual
had brown hair, weighed approximately 185 pounds, and was
approximately 5'10” tall. She stated that the picture of defendant
shown to her by the State was “the robber[,]” and that it was
consistent with “all the descriptions from what [she] did see of
him.”
In light of the foregoing evidence, we conclude that Pyrtlehad personal knowledge of defendant stemming from her perception of
him during the robbery. Defendant maintains that Pyrtle's
identification should have been excluded because she had only
forty-five seconds to observe her assailant, and because it was
“based in part on a composite shown on the news.” However, “[t]he
credibility of a witness's identification testimony is a matter for
the jury's determination, and only in rare instances will
credibility be a matter for the court's determination.”
State v.
Green, 296 N.C. 183, 188, 250 S.E.2d 197, 200-01 (1978) (citations
omitted). Where an in-court identification is objected to, the
identification should be suppressed “[o]nly if there is a finding
that the identification testimony 'is inherently incredible because
of the undisputed facts . . . as to the physical conditions under
which the alleged observation occurred[.]'”
Id. at 189, 250 S.E.2d
at 201 (quoting
State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902,
905 (1967)). In the instant case, we are not persuaded that
Pyrtle's in-court identification is inherently incredible.
Therefore, we conclude that the trial court did not err by allowing
Pyrtle's in-court identification of defendant. Accordingly, we
overrule defendant's third argument.
[3] Defendant next argues that the trial court erred by
denying his motion to suppress his confession. Defendant asserts
that the confession should have been suppressed because his
statements to officers were involuntary, in that he was under the
influence of the prescription drugs Percocet and OxyContin at the
time he made the statements. As an initial matter, we note thatalthough he filed a pre-trial motion to suppress his confession,
defendant failed to object to presentation of this evidence at
trial. Furthermore, although defendant alternatively assigned
plain error to this issue, defendant failed to offer any support in
his brief for the plain error assignment, and therefore he has
abandoned that method of review.
See State v. Nobles, 350 N.C.
483, 514-15, 515 S.E.2d 885, 904 (1999). Our courts have
previously held that questions regarding the admissibility of
evidence are not preserved merely by a pre-trial motion
in limine;
instead, the defendant is required to reassert his objection at
trial when the evidence is offered.
See State v. Hayes, 350 N.C.
79, 80, 511 S.E.2d 302, 303 (1999) (per curiam). Although our
legislature has recently enacted legislation providing that “[o]nce
the court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal[,]” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2003), this
Court has recently held that “to the extent that N.C. Gen. Stat. §
8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1),
it must fail.”
State v. Tutt, 171 N.C. App. 518, 524, 615 S.E.2d
688, ___ (2005);
but see State v. Rose, 170 N.C. App. 284, 288, 612
S.E.2d 336, 339 (Filed 17 May 2005) (No. COA04-353) (“Since the
trial in this case occurred two months following the effective date
of the amendment [of Rule 103], once the trial court denied
defendant's motion to suppress, he was not required to object again
at trial in order to preserve his argument for appeal.”),
disc.review denied, 359 N.C. 641, ___ S.E.2d ___ (Filed 30 June 2005)
(No. 296P05). In the instant case, to the extent defendant has
failed to properly preserve this issue for appeal, we have
nevertheless chosen to review defendant's argument in our
discretion pursuant to N.C.R. App. P. 2. As detailed below, we
conclude that the trial court did not err.
[4] The record reflects that prior to trial, defendant moved
to suppress his confession on the grounds that it was involuntarily
given, in that defendant was under the influence of Percocet and
OxyContin when he was interviewed. After receiving evidence and
hearing argument from both parties during
voir dire, the trial
court disagreed, concluding that defendant “fully understood his
Miranda rights, . . . knowingly waived his Miranda
rights,
and . . . voluntarily made statements to the law enforcement
officers.” In support of its conclusion, the trial made the
following pertinent findings of fact:
5. Defendant has testified at this hearing
that he voluntarily took Percocet and
OxyContin on December 29th, 2003. Court has
also heard evidence from the law enforcement
officers present in his home and outside his
home that the defendant appeared alert and
responded to all questions. There is further
testimony that the defendant did not appear
impaired to the law enforcement officers.
6. Court finds that the defendant was not
impaired to the extent that it affected his
ability to voluntarily, knowingly and
understandingly waive his Miranda rights.
. . . .
8. The defendant was arrested in his home and
taken to the Vance County Sheriff's office
where he was again advised of his Mirandarights at 1920 hours on December 29, 2003.
9. The defendant did voluntarily, knowingly
and understandingly waive his Miranda
rights . . . .
“Whether a confession was voluntarily given is to be
determined from the totality of the circumstances surrounding the
confession.”
State v. Greene, 332 N.C. 565, 579, 422 S.E.2d 730,
738 (1992). “[W]hile they are factors to be considered,
intoxication and subnormal mentality do not of themselves
necessarily cause a confession to be inadmissible because of
involuntariness or the ineffectiveness of a waiver.”
State v.
Barnes, 345 N.C. 184, 245, 481 S.E.2d 44, 78 (1997),
cert. denied,
523 U.S. 1024, 140 L. Ed. 2d 473 (1998). Instead, the confession
“is admissible unless the defendant is so intoxicated that he is
unconscious of the meaning of his words.”
State v. Oxendine, 303
N.C. 235, 243, 278 S.E.2d 200, 205 (1981). “The trial court is to
determine whether the State has borne its burden of showing, by a
preponderance of the evidence, that [the] defendant's confession
was voluntary. The factual findings by the trial court are binding
on appeal if supported by competent evidence; however, conclusions
of law are fully reviewable.”
State v. Perdue, 320 N.C. 51, 59,
357 S.E.2d 345, 350 (1987) (citations omitted).
In the instant case, we conclude that the trial court's
findings of fact were supported by competent evidence. During
voir
dire, Sergeant Blair testified that defendant was attentive when
read his
Miranda rights, and that defendant did not act unusual or
otherwise suggest he was impaired. Sergeant Blair testified thatdefendant answered the questions asked of him, did not make any
unusual physical movements, and “didn't appear to be under the
influence of anything.” Although Henderson Police Department
Sergeant Sandra Lawhorn (“Sergeant Lawhorn”) remembered defendant
taking medication given to him by his wife for his “back
problems[,]” she testified that she did not notice anything unusual
about defendant's appearance or interaction with officers. Vance
County Sheriff's Department Sergeant Steve Lyles (“Sergeant Lyles”)
testified that defendant “definitely didn't appear to be impaired”
when questioned, and that defendant's demeanor did not change
during questioning. Sergeant Lyles further testified that
defendant appeared to be listening when read his
Miranda rights,
and that he was “[v]ery coherent” and “very understanding.”
Detective Passley also testified that defendant did not do anything
unusual during questioning, and that his demeanor did not change at
any point during the interview. Although we note that defendant
offered testimony contradicting the officers' testimony, we also
note that discrepancies and contradictions involving the
voluntariness of a confession are for the trial court to resolve in
its findings of fact.
Whether the defendant did or did not make the
statement attributed to him is a question of
fact to be determined by the jury from the
evidence admitted in its presence. Whether
the statement, assuming it to have been made,
was made voluntarily and understandingly, so
as to permit evidence thereof to be given in
the presence of the jury, is a question of
fact to be determined by the trial judge in
the absence of the jury upon the evidence
presented to him in the jury's absence. . . .
The trial judge should make findings of factwith reference to this question and
incorporate those findings of fact in the
record. . . . No reviewing court may properly
set aside or modify those findings if so
supported by competent evidence in the record.
State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1, 8 (1966) (citations
omitted).
As detailed above, the trial court's findings of fact in the
instant case are supported by competent evidence, and they support
its conclusion of law. There is no indication in the record that
defendant's alleged impairment amounted to “mania -- that is, [a
condition leaving him] unconscious of the meaning of his words[.]”
State v. Logner, 266 N.C. 238, 243, 145 S.E.2d 867, 871 (1966).
Therefore, we conclude that the trial court did not err by
admitting defendant's custodial confession. Accordingly, we
overrule defendant's fourth argument.
[5] Defendant next argues that the trial court erred by
excluding evidence tending to show that he was threatened into
confession by another individual. Defendant asserts that the
evidence was admissible because it was offered to explain his
rationale for confessing, and that therefore the trial court
committed reversible error by excluding it. We disagree.
At trial, defendant testified on his own behalf and attempted
to offer evidence tending to show that he was threatened into
confession by Charles Vick (“Vick”), whom defendant's wife, Marcy
Clark-Tuck (“Marcy”), had implicated in the robberies. During her
testimony, Marcy described “inadvertently” helping Vick “rob these
places” by “dropp[ing] him off in the vicinity about the same timethat [the robberies] happened.” On direct examination, defendant
was asked why he confessed to the robberies. In response,
defendant stated that he was “threatened” by “an individual known
by the name Charles Vick [who] had approached [defendant] earlier,
probably a week before the cops arrived at [his] house.” The State
objected to defendant's attempt to testify as to what Vick said to
him, and during
voir dire, defendant provided the following
pertinent testimony as an offer of proof:
Q. Mr. Tuck, what did Mr. Vick tell you?
A. He said -- he said there is some stuff
probably might come up. He said you
could say yes or no. He said it would
probably be more beneficial if you said
yes for what they accuse you of. He said
you ain't got a bad record. You will
probably get a slap on the wrist.
Q. What . . . exactly did Mr. Vick tell you
had happened in Raleigh?
A. He told me stories about places he had
robbed, stuff he had done. He told me
several stores. Named quite a few.
. . . .
Q. He named all six places?
A. Yep. And a few more at that, too.
Q. Now, why did you confess to the
robberies?
A. He said he'd hurt my family if I didn't.
. . . .
Q. What reason did you have to believe that?
A. He is a bad person.
Q. Okay. What do you mean he is a bad
person?
A. He had been in and out of prison since he
was 16. He has been known to actually go
to the person's front door, and when they
come to the door he'd grab them and rob
them right there. Last time I was in the
prison he attacked a woman in her own
house with a pump action and his partner
in crime was shot in the stomach at the
same time in the same robbery. I have
known him to break into several
businesses. I have known him to rob old
ladies of jewelry, lots of stuff.
Following argument from both parties, the trial court concluded
that the testimony was “being offered to prove the truth of the
matter asserted therein and it is hearsay.” After noting that Vick
was not present for cross-examination, the trial court sustained
the State's objection to the testimony.
On appeal, defendant contends that the trial court erred by
ruling that the testimony was inadmissible hearsay. Assuming
arguendo that the trial court erred, we note that a trial court's
refusal “to admit or exclude evidence will not result in the
granting of a new trial absent a showing by the defendant that a
reasonable possibility exists that a different result would have
been reached absent the error.”
State v. Macon, 346 N.C. 109, 117,
484 S.E.2d 538, 543 (1997). In the instant case, defendant has
failed to make such a showing. As detailed above, the State
presented evidence from owners and employees of each of the
businesses allegedly robbed by defendant. Henderson, Pyrtle, and
Johnson each identified defendant as the individual who robbed
their store. Matal testified that she “picked out a picture in the
book that was him and -- and [she] picked it out from the eyes and
the eyes were like [defendant's].” Scott testified that defendant“look[ed] very much like the person that [she] believed” robbed
her. Each witness described the weapon used in the robberies as
similar to the one obtained by law enforcement officers at
defendant's residence. The State also presented testimony from
Andy Parker (“Agent Parker”), a latent print examiner for the City
County Bureau of Identification of Wake County. Agent Parker
testified that defendant's fingerprints were found on the front
door handle of the Gingerbread House, the petty cash envelope of
the Raleigh Cat Clinic, the front door handle of the Raleigh Cat
Clinic, and the front door handle of the x-ray room of the Raleigh
Cat Clinic. In his confession, defendant provided a detailed
description of each of the robberies, including where they
occurred, what dates they occurred on, how many individuals were
inside each store, what took place once he was inside the stores,
how much money he took from each store, and where he parked his car
prior to entering the stores. On direct examination, the trial
court allowed defendant to testify that he confessed to the crimes
because he “thought it would protect [his] family” and “thought
that [his] family's life was in danger and [he] had to do whatever
it took.” In light of the foregoing evidence, we conclude that, to
the extent the trial court erred by sustaining the State's
objection, defendant has failed to demonstrate that a different
result would have been reached absent this error. The State
offered overwhelming evidence of defendant's guilt, and much of the
evidence presented by defendant during
voir dire was actually
admitted during defendant's direct examination. Accordingly, weoverrule defendant's fifth argument.
[6] Defendant's final argument is that the trial court erred
by sentencing him in the presumptive range for two convictions, but
in the mitigated range for the other four convictions. Defendant
asserts that the trial court considered improper and irrelevant
factors in sentencing him in the presumptive range. We disagree.
The record in the instant case reflects that with respect to
the armed robbery of Hester and the armed robbery of Henderson, the
trial court sentenced defendant in the presumptive range. Prior to
sentencing defendant for the armed robbery of Hester, the trial
court noted that “there was a small child who was with a customer
in the store” when the robbery was committed. Prior to sentencing
defendant for the armed robbery of Henderson, the trial court noted
that “since the robbery occurred [Henderson] has been seeing a
counselor.” Citing the trial court's statements, defendant
contends that the trial court “improperly aggravated” his sentence
“even though there were no written find[ing]s of aggravation.”
In
State v. Pope, our Supreme Court concluded that
In our opinion it would not be in the interest
of justice to put a trial judge in a
straitjacket of restrictive procedure in
sentencing. . . . There is a presumption that
the judgment of a court is valid and just.
The burden is upon [the] appellant to show
error amounting to a denial of some
substantial right. A judgment will not be
disturbed because of sentencing procedures
unless there is a showing of abuse of
discretion, procedural conduct prejudicial to
[the] defendant, circumstances which manifest
inherent unfairness and injustice, or conduct
which offends the public sense of fair play.
257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962) (citation omitted).
After reviewing the record in the instant case, we conclude
that defendant has failed to demonstrate a “denial of somesubstantial right.”
Id. Although it is clear that the trial court
considered a witness's age and a victim's resulting injuries while
sentencing defendant for two particular convictions, the trial
court nevertheless chose to sentence defendant within the
presumptive range mandated by our legislature and approved by our
courts. We are not persuaded that defendant was entitled to a
sentence in the mitigated range for each conviction solely because
his sentences in other convictions were in the mitigated range.
Furthermore, because defendant was sentenced in the mitigated and
presumptive ranges and the trial court did not find any aggravating
factors, defendant's assertions regarding the impact of
Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) to his case are
without merit.
See State v. Allen, 359 N.C. 425, 615 S.E.2d 256
(Filed 1 July 2005) (No. 485PA04). Accordingly, we overrule
defendant's final argument.
In light of the foregoing conclusions, we hold that defendant
received a trial free of prejudicial error.
No error.
Chief Judge MARTIN and Judge WYNN concur.
*** Converted from WordPerfect ***
