An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-228

NORTH CAROLINA COURT OF APPEALS

Filed: 21 June 2005

STATE OF NORTH CAROLINA

v .                         Randolph County
                            No. 01 CRS 52098
TOBY LYNN GRIFFIN,
        Defendant.

    Appeal by defendant from judgment entered 25 August 2003 by Judge Andy Cromer in Randolph County Superior Court. Heard in the Court of Appeals 20 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.

    Geoffrey W. Hosford for defendant-appellant.


    GEER, Judge.

    Defendant Toby Lynn Griffin appeals from his conviction for first degree murder under the felony murder rule. Defendant argues primarily that the trial court should have dismissed the felony murder charge based on insufficient evidence that defendant committed the underlying felony of robbery with a dangerous weapon. Because we believe that the armed robbery and the homicide were part of a single continuous transaction, we hold that the trial court properly denied the motion to dismiss. As to defendant's remaining assignments of error, we conclude that they are without merit.


Facts

    The State's evidence tended to show the following. At approximately 4:30 a.m. on 4 May 2001, Clay Andrews was driving north of Asheboro on Highway 22. At the intersection of Highway 22 and Shady Brook Drive, he observed a white taxi cab nosed into a roadside ditch with a man crouching over the front of the taxi. As Andrews slowed down and approached the taxi, he saw the man climb into the taxi and speed away.
    Once Andrews stopped, he found a second person lying in the ditch where the cab had been. The person was later identified as Sidney Howard "J.R." Willetts, Jr. Willetts, whose face was covered in blood, was gasping and could not speak. Andrews used his cell phone to call for assistance, but by the time the paramedics and law enforcement arrived, the victim had died. The officers found a wallet in Willetts' back pocket containing over $3,000.00 in cash. The medical examiner ultimately determined that Willetts had been shot five times, four times in the face and once in the abdomen, and that he had sustained various other wounds on his neck and body that were consistent with knife cuts.
    At approximately 7:25 a.m. that same morning, law enforcement officers found Willetts' unoccupied taxi cab parked on the side of the road at another location. The taxi had displayed on its trunk the telephone number 633-0123. Upon searching the taxi, the officers found a notebook tucked into the pocket of the driver's door. The notebook had the address "3848 Shady Brook Lane" written on the front page. In the back seat area, officers found a knife; two ball caps with one bearing the logo "J.R.'s Taxi Service" and the other bearing the logo "East Coast Furniture;" and approximately $213.00 in cash. There was dried human blood on the driver's side hood and outside door; on the inside of the driver's side door, window, and door control panel; and on the rear side of the driver's head rest.
    Upon finding the notebook, the officers went to the Shady Brook address, which was a half-mile from the intersection where the victim had been found. The address was that of defendant's mother, who acknowledged that defendant lived there part time and that he had been there the night before. She said that defendant had not been home that day and reported that he worked for East Coast Furniture. While in the house, officers found a set of knives in the kitchen from which two knives were missing and, hidden under defendant's mattress, a knife that matched that set. These knives also matched the knife found in the taxi. In addition, the officers found a phone book with the telephone number of the taxi (633-0123) written on it in magic marker.
    Between 3:00 and 4:00 in the afternoon of the same day, 4 May 2001, defendant entered a car repair shop, looking red faced and "wore out," and asked for a drink of water. He returned a little bit later, said his name was "Tony," and used the bathroom for five minutes. At 5:30 p.m., an officer radioed Lt. Tim Hasty that he had seen a man running across a yard and behind a house. Hasty drove to the house and chased the man, who was defendant, on foot for about 150 yards. Defendant finally stopped and put his handsin the air. Defendant had a revolver in his pocket that had been owned by Willetts and that Willetts had ordinarily carried in his pocket.
    It was subsequently determined that defendant had spent the afternoon and evening of 3 May 2001 at the home of Colleen Tanzola and her husband. At some point, defendant gave Mr. Tanzola $25.00 to $27.00 in cash to buy a part necessary to repair defendant's father's car. Defendant left the Tanzolas' house around 10:00 p.m. and apparently went to his mother's house on Shady Brook. The State's evidence suggested that defendant called J.R. Willetts' taxi to pick him up. At approximately 2:00 a.m., defendant returned to the Tanzolas' residence and asked for the cash that he had given Mr. Tanzola for the car part. Defendant then got into a white or gray car _ the same color vehicle as the taxi _ that was waiting for him in the driveway. There was no further evidence as to defendant's whereabouts and activities until the taxi was discovered by Clay Andrews at 4:30 a.m.
    Defendant was charged with first degree murder and tried before a jury in Randolph County Superior Court with Judge Andy Cromer presiding. At the close of the State's evidence, defendant moved to dismiss for insufficient evidence. Following the trial court's denial of that motion, defendant offered the testimony of a clinical psychologist, Claudia Coleman, Ph.D., as to defendant's mental status at the time of the murder. Dr. Coleman testified that defendant had an IQ of 66 and possibly had suffered a brain injury as a child that led to a loss of impulse control. Shefurther testified that she learned from defendant that he had drunk beer and smoked marijuana during the day and had smoked crack cocaine during the evening prior to the murder. Dr. Coleman testified, based on her interviews and her review of defendant's records, that at the time Willetts was killed, defendant's mental status was so impaired, because of his mental retardation, his brain impairment, and acute intoxication, that he could not form the specific intent to kill or commit an intentional crime. At the close of all the evidence, defendant's renewed motion to dismiss was again denied. The jury found defendant guilty of first degree murder under the felony murder rule and the trial court sentenced him to life imprisonment without parole.
I
    Defendant makes two arguments regarding the composition of the jury. First, defendant contends that the trial court erred in denying his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), following the State's decision to exercise one of its peremptory challenges to excuse a potential African-American juror, Ferman Strickland. Second, defendant argues that the trial court erred in not allowing him, after the jury had been impaneled, to exercise a peremptory challenge to remove a juror. We find no error.
    With respect to defendant's Batson claim, although defendant and the victim were both white males, defendant has standing to assert an equal protection claim based on the use of peremptory challenges to strike potential African-American jurors. State v.Robinson, 330 N.C. 1, 15, 409 S.E.2d 288, 296 (1991). In considering defendant's Batson claim, the trial court was required to apply a three-part test:
        Under this test, the defendant must first make a prima facie showing that the State exercised a peremptory challenge on the basis of race. If such a showing is made, the prosecutor is required to offer a facially valid and race-neutral rationale for the peremptory challenge. At that point, the trial court must determine whether the defendant has carried his ultimate burden of proving purposeful discrimination.

State v. Gattis, 166 N.C. App. 1, 15, 601 S.E.2d 205, 214 (2004) (internal citations omitted), appeal dismissed, __ N.C. __, 610 S.E.2d 377 (2005). In reviewing the trial court's Batson determination, "[t]he issue of discrimination is a question of fact and the trial court's ruling will be upheld unless the appellate court is convinced that the trial court's decision is 'clearly erroneous.'" Id. (quoting State v. McCord, 140 N.C. App. 634, 652, 538 S.E.2d 633, 644 (2000), disc. review denied, 353 N.C. 392, 547 S.E.2d 34 (2001)).
    In this case, the trial court found that defendant had met his burden of making a prima facie showing of discrimination. The court then required the State to articulate the reasons for its exercise of the peremptory challenge. At that stage, the State was not required to prove the validity of its reason; instead, it had to "'articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.'" Robinson, 330 N.C. at 17, 409 S.E.2d at 297 (quotingState v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027, 109 S. Ct. 3165 (1989)). Defendant contends, however, that the State's "race- neutral explanation for the State's exercise of its peremptory challenge against Mr. Strickland was not facially valid."
    The State asserted that it excused Mr. Strickland because he had been convicted of a recent larceny of a motor vehicle and several DWIs. The prosecutor indicated that "it was just the accumulative effect of his record. That was the main reason for the discharge." The Supreme Court has already held that a comparable explanation was sufficient to meet the State's burden in a capital case. See State v. Golphin, 352 N.C. 364, 432, 533 S.E.2d 168, 214 (2000) ("[W]e perceive no inherent discriminatory intent in the State's explanation that [the juror] had been convicted of driving while impaired and that his father had a prior conviction for robbery for which he had served six years in the Department of Correction."), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1380 (2001). Based on Golphin, the explanation offered by the State in this case was sufficient to shift the burden to defendant to demonstrate that this reason was pretextual. Since defendant has limited his argument on appeal to the question whether the State's explanation was "facially valid," we need not address the pretext stage. Defendant's assignment of error is overruled.
    Defendant also contends that the trial court erred in denying his request to use a peremptory challenge to dismiss a juror afterthe jury was impaneled. A trial court's decision as to whether a party should be allowed to exercise a peremptory challenge after jury impaneling is subject to reversal only for an abuse of discretion. State v. Kirkman, 293 N.C. 447, 453_54, 238 S.E.2d 456, 460 (1977). An abuse of discretion occurs only when a court's actions "'are manifestly unsupported by reason.'" State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 832 (1985)).
    Defendant points to the fact that one of the jurors disclosed in the middle of trial that he had just realized he knew one of the witnesses, the auto repair shop owner, because he had his truck repaired at the shop two years earlier. After both the trial judge and counsel questioned the juror, the juror indicated that his knowledge of the witness would not affect his consideration of the evidence and that he was comfortable remaining on the jury.
    Defendant has conceded that the juror was not excusable for cause, but argues that he should have been allowed to exercise a peremptory challenge to excuse the juror. In State v. McLamb, 313 N.C. 572, 577, 330 S.E.2d 476, 479 (1985), the Supreme Court held that the trial court did not abuse its discretion when it refused to allow the defendant, after the jury was impaneled, to exercise a peremptory challenge to excuse a juror who knew a key witness because the juror was the receptionist at the office of the witness' dentist. Since the relationship in this case was less significant than that in McLamb, we hold that the trial court did not abuse its discretion.
II
    We next address defendant's objection that the State did not inform him of the felony upon which the State was basing its theory of felony murder. In support of this argument, defendant's brief states in its entirety: "The court should have required the State to provide notice of which felony upon which they intended to rely to prove that [defendant] committed first-degree felony murder under the felony murder rule." The two cases cited in support of this assertion _ introduced by the citation signal of "Cf" _ provide no support for defendant's contention.
    Regardless, as the State points out, prior to jury selection, the trial court asked the State to identify the underlying felony and the State responded: "I don't have a problem with it at this point. I think the underlying felony as clearly indicated by the evidence is armed robbery." Defendant makes no argument why this disclosure was inadequate or prejudicial. This assignment of error has no merit.
III
    Defendant contends that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence that defendant committed robbery with a dangerous weapon, the felony giving rise to the conviction for felony murder. Defendant argues that the evidence does not demonstrate that defendant took any property from Willetts while he was alive, but rather "taking this evidence in the light most favorable to the State, Toby Griffin took Willetts' property as an afterthought."     "When ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented substantial evidence of each essential element of the crime. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In making its decision, the trial court must view the evidence in the light most favorable to the State." State v. Bell, 359 N.C. 1, 25, 603 S.E.2d 93, 110 (2004) (internal citations and quotation marks omitted), cert. denied, __ U.S. __, __ L. Ed. 2d __, __ S. Ct. __, 2005 US LEXIS 4243 (May 23, 2005). The trial court correctly denies a motion to dismiss if "there is substantial evidence of every element of the offense charged, or any lesser offense, and of defendant being the perpetrator of the crime." State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994).
    The elements of armed robbery are (1) an unlawful taking or attempt to take personal property from a 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 that person is threatened or endangered, (4) with knowledge that the taker is not entitled to the property, and (5) with intent to deprive the owner of his property at the time of the taking. State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998); State v. Richardson, 308 N.C. 470, 474, 302 S.E.2d 799, 802 (1983). In arguing that the State failed to present substantial evidence of armed robbery, defendant relies exclusively on State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).     In Powell, the defendant raped his victim, killed her, and then _ after her death _ took her possessions, including her car, a knife, and a television set. The Supreme Court in Powell, in analyzing whether the State had offered substantial evidence of armed robbery, observed that "[t]he gist of the offense is not the taking but the taking by force or putting in fear." Id. at 102, 261 S.E.2d at 119. Based on this conclusion, the Court reasoned:
        It suffices to say that, while possession by defendant of the television and automobile belonging to [the victim] gave the inference that defendant took them, and therefore committed the crime of larceny, there is no substantial evidence giving rise to the reasonable inference that the defendant took the objects from the victim's presence by use of a dangerous weapon, an essential element of robbery with a dangerous weapon. The arrangement of the victim's body and the physical evidence indicate she was murdered during an act of rape. We believe that even construing the evidence in a light most favorable to the State, it indicates only that defendant took the objects as an afterthought once the victim had died. While it is true that "presence" of a victim must be construed broadly and while it is true that frequently armed robbery, rape and murder are committed in one continuous chain of events and constitute contiguous crimes, we do not believe the evidence here supports that view of the facts.

Id. (emphasis added; internal citations omitted).
    In this case, defendant argues that the fact Willetts was found with $3,100.00 in cash and all of his jewelry establishes that the murder did not take place while defendant was perpetrating an armed robbery. Although defendant acknowledges that he took the victim's gun and taxi, he contends the property was removed only as an afterthought, as in Powell. When, however, the evidence isviewed in the light most favorable to the State, a reasonable jury could find that defendant used his knife to attack Willetts and take his gun. The jury could further find that defendant was able to drive away in Willetts' taxi because he then shot Willetts with the gun he had taken from Willetts. In contrast to Powell, the evidence was undisputed that Willetts was alive when defendant took Willetts' property using a knife and a gun. Thus, this case does not present the circumstances of Powell in which the evidence "indicate[d] only that defendant took the objects as an afterthought once the victim had died." Id.
    The disposition of defendant's motion to dismiss was controlled by State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992), in which our Supreme Court stated:
        The evidence is sufficient to support a charge of felony murder based on the underlying offense of armed robbery where the jury may reasonably infer that the killing and the taking of the victim's property were part of one continuous chain of events. Neither the commission of armed robbery . . . nor the commission of felony murder based on armed robbery depends upon whether the intention to commit the taking of the victim's property was formed before or after the killing. Under N.C.G.S. § 14-17, a killing is committed in the perpetration of armed robbery when there is no break in the chain of events between the taking of the victim's property and the force causing the victim's death, so that the taking and the homicide are part of the same series of events, forming one continuous transaction.

Id. at 529, 419 S.E.2d at 552 (emphasis added; internal citations omitted).
    Here, the State's evidence was sufficient to describe a single continuous transaction, including defendant cutting Willetts'throat and face with a knife, his taking Willetts' gun, Willetts' being shot by defendant with that gun, and defendant then immediately escaping in Willetts' taxi. There was no break in the chain of events. Accordingly, a jury could reasonably find that the killing occurred during the perpetration of an armed robbery. See State v. Patterson, 146 N.C. App. 113, 132, 552 S.E.2d 246, 260 (upholding felony murder conviction based on armed robbery when the evidence showed that after stabbing the victim, the defendant immediately grabbed a towel and tried to remove fingerprints at the scene and then left the house with the victim's marijuana and smoking pipe), disc. review denied, 354 N.C. 578, 559 S.E.2d 549 (2001). The trial court, therefore, properly denied defendant's motion to dismiss.
IV
    Defendant also contends that the trial court erred by admitting into evidence seven photographs of the victim taken at the crime scene and 12 autopsy photographs. It is, however, well- established that "[p]hotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury." State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). It is within the trial court's discretion to determine if the number of photographs offered into evidence is excessive, in light of such factors as "what the photographs depict, the level of detail, the manner of presentation, and thescope of accompanying testimony." State v. Haselden, 357 N.C. 1, 16, 577 S.E.2d 594, 604, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382, 124 S. Ct. 475 (2003).
    In this case, the photographs illustrated the witnesses' testimony by showing, among other things, where Andrews found Willetts' body, the location and direction of the knife wounds that resulted from the defendant's initial assault, and the bullet wounds that directly caused the victim's death. Each photograph is in some fashion distinctive with respect to the subject matter and level of detail that it depicts. After examining the photographs, we do not believe that they are particularly gruesome, inflammatory, excessive, or repetitive. It does not appear that they were "aimed solely at arousing the passions of the jury," Hennis, 323 N.C. at 284, 372 S.E.2d at 526, but rather served several legitimate functions. We, therefore, see no indication that the trial court abused its discretion by overruling defendant's objections to the photographs. See, e.g., State v. Hyde, 352 N.C. 37, 54_55, 530 S.E.2d 281, 293 (2000) (no error in the admission of 51 photographs), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775, 121 S. Ct. 862 (2001); State v. Pierce, 346 N.C. 471, 487_88, 488 S.E.2d 576, 585_86 (1997) (no error in the admission of 26 photographs).
V
    Next, defendant contends that he was denied a trial by an impartial jury and that the trial court committed plain error by failing to declare a mistrial when a juror made expressions ofagreement during the State's closing argument. Defendant points to the following portion of the transcript:
            MR. GREGSON: . . . . So what purpose do you get in a cab at 4:30 in the morning with this [knife] in your possession, and then importantly, made light of by the defense, but six dollars and some change in your pocket. Now, how were you going to pay for a cab fair [sic] with six dollars and some change in your pocket. You're sure not going to do it with your library card. He got into the cab with no intent of paying for the cab ride.

            JUROR NUMBER ONE . . .: That's right. (Court Reporter's Note: This was said loud enough for this court reporter to hear.)

            MR. GREGSON: . . . . The first thing you need to understand, and we do from the evidence is J.R. Willetts is not the type to give up his money nor his life without a fight.

            JUROR NUMBER ONE . . .: That's right.

Juror Number One's comments, although they were noted by the court reporter, were not the subject of any objection and defendant did not at trial seek any relief from the court regarding these remarks.
    In State v. Gregory, 342 N.C. 580 , 585_86, 467 S.E.2d 28, 32 (1996), our Supreme Court considered the appropriateness of plain error review of a defendant's argument that a juror's responses to questions during voir dire denied him his constitutional right to trial by an impartial jury _ essentially the same argument as defendant in this case. After stating that plain error review is limited to "(1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence," the Gregory Court observed that the error at issue "involve[d] neither juryinstructions nor a ruling on the admissibility of evidence." Id. at 584, 467 S.E.2d at 31. Likewise, defendant's argument in this case does not relate to either of the bases for plain error review. Gregory, therefore, suggests that this issue is not properly before us.   (See footnote 1) 
    We acknowledge, however, that this Court in State v. Hinton, 155 N.C. App. 561, 563-64, 573 S.E.2d 609, 611-12 (2002) applied plain error review to the trial court's failure to grant a mistrial because of a conversation between a witness and two jurors. But see State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004) (holding that plain error review is not available to review a trial court's failure to declare a mistrial sua sponte after it learned that individuals in the courtroom had been signaling to the victim during her testimony). Because of Hinton, we will address defendant's plain error argument.
    "Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial." Gregory, 342 N.C. at 586, 467 S.E.2d at 32. Our review of the record does not indicate that the juror's spontaneous utterances constituted plain error.     The juror's expression of agreement followed the State's assertions (1) that defendant could not have intended to pay the cab fare and (2) that the victim would not have given up his money without a fight. Neither of these contentions was, however, material to the jury's verdict. We note that the jury expressly found that defendant did not commit the murder with premeditation and deliberation, suggesting that it did not believe that defendant planned to kill Willetts from the moment he was picked up by the taxi. Nor, as explained above, did the jury have to infer that defendant did not intend to pay the cab fare in order to conclude that defendant committed robbery with a deadly weapon. As for the second statement, the evidence was overwhelming that there was a struggle and that Willetts did not give up his money. It does not, therefore, appear that the trial court committed plain error in failing to grant a mistrial ex mero motu.
VI
    Defendant's final assignment of error challenges the trial court's failure to specifically instruct the jury that defendant denied fleeing from the police. Defendant argues that the trial court's omission of the language "and the defendant denies" from the instruction on flight "permitted the jury to believe that [defendant] admitted he fled from police."
    While it is questionable whether this issue was properly preserved for review since counsel for defendant advised the trial court "I don't have a serious contention and will not argue in the closing that he did not run," defendant has failed to establish areasonable possibility that the jury would have reached a different result had the trial court specifically instructed the jury that defendant denied fleeing. The evidence, as defense counsel acknowledged, was overwhelming that defendant fled the scene, first in the taxi and then on foot.

    No error.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).


Footnote: 1
    Because Gregory was a capital case, the Court applied Rule 2 of the North Carolina Rules of Appellate Procedure and "the precedent of [the Supreme] Court electing to review unpreserved assignments of error in capital cases" and, therefore, reached the merits of the issue. Id. at 586, 467 S.E.2d at 32.

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