STATE OF NORTH CAROLINA
v
.
Richmond County
Nos. 03 CRS 50814,
03 CRS 1571
JOHN PHILMORE CARPENTER
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
L. Jayne Stowers, for defendant-appellant.
CALABRIA, Judge.
John Philmore Carpenter appeals from judgment entered on a
jury verdict finding him guilty of felonious breaking or entering.
Defendant was sentenced as a prior record level IV habitual felon
to 133 to 169 months in the North Carolina Department of
Correction. We find no error.
The evidence at trial shows that, on or about 22 December
2002, Philip Hinson (“Hinson”) purchased a twenty-inch Husqvarna
chain saw for $60.00 from Dewayne Benoist (“Benoist”), Hinson's
sister's boyfriend. Approximately one month later, defendant and
Benoist went to Hinson's home to steal the chain saw for the
purpose of selling it to someone else to obtain money for cocaine.
The chain saw was located in a storage building used as a shop areanext to Hinson's home, and Benoist and defendant accomplished the
theft by cutting the lock securing the storage building with bolt
cutters. Benoist's testimony regarding what they did with the
chain saw after they left Hinson's home conflicted, and the chain
saw was never recovered.
Prior to trial and again at trial, defendant moved for
discovery of any information regarding whether any adverse
witnesses had pending criminal cases which might result in a motive
to “curry favor with the State by providing desired testimony.” At
trial, Benoist testified for the State regarding defendant's
involvement in the theft of the chain saw. Benoist testified, over
objection, as to previous crimes he and defendant committed
together, and the trial court admitted the testimony after a voir
dire hearing as evidence of a common scheme or plan and motive
under N.C. Gen. Stat. § 8C-1, Rule 404(b). Benoist admitted to
some, but not all, of his previous convictions during the State's
direct examination and further testified he had no promises of
leniency from the State with respect to pending charges against him
before the Superior Court. The jury returned a verdict finding
defendant guilty of felonious breaking or entering, and judgment
was entered thereon. Defendant appeals.
On appeal, defendant asserts a new trial is warranted because
(I) the State failed to reveal an understanding or agreement of
leniency between the State and Benoist, (II) the trial court
erroneously admitted evidence of four other crimes, and (III) the
trial court erroneously admitted hearsay testimony.I. Leniency
In his first assignment of error, defendant, citing inter alia
United States v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481 (1985),
asserts a witness' credibility is affected and due process requires
a new trial “where the prosecution's chief witnesses had deals
which were not disclosed to the defense and the witnesses lied
about having deals.” Defendant contends that it is “obvious” and
“apparent” from the record that Benoist had some understanding with
the State about leniency. The only support for defendant's
assertion is that the subsequent plea bargain for Benoist included
the dismissal of ten felony and four misdemeanor counts against
him. The State rejoins that this case is controlled by our Supreme
Court's holding in State v. Lowery, 318 N.C. 54, 347 S.E.2d 729
(1986), rejecting a similar claim by a defendant for two
independent reasons: (1) “the record clearly reveal[ed] a plea
bargain between the State and [a witness, but] there [was] no
evidence that the agreement [was] made at the time [the witness]
testified . . . at the defendant's trial” and (2) “defendant's
counsel was aware sufficiently in advance of trial that the witness
was going to testify for the State under a hope of leniency to have
brought out in cross-examination the circumstances under which the
testimony was being offered.” Id., 318 N.C. at 65, 347 S.E.2d 737.
We agree with the State.
Regarding the first reason, the only evidence defendant has
proffered is the subsequent plea bargain deal Benoist received
after his testimony. Based on this, defendant assumes there was apromise of leniency for Benoist's cooperation and asserts the
failure to reveal this alleged promise warrants a new trial.
However, Benoist expressly denied any promise of leniency or
understanding was made with respect to his pending cases during
discussions with the district attorney or investigating detectives.
Defendant's pure supposition, based upon the terms of the
subsequent plea bargain between Benoist and the State, simply is
not enough under Lowery without some evidence that Benoist
testified at defendant's trial pursuant to some agreement.
Parenthetically, we note defendant directs the attention of this
Court to Benoist's incorrect testimony that he had not met with
prosecutors or law enforcement regarding the case sub judice;
however, defendant concedes the State immediately corrected
Benoist's testimony, and the fact that such a meeting occurred,
standing alone, is not sufficient evidence that any agreement or
understanding was reached. This assignment of error is overruled.
II. Rule 404(b) Evidence
In his second assignment of error, defendant asserts the trial
court erred in permitting Benoist to testify as to break-ins by
defendant and himself other than the one for which defendant was
being tried. North Carolina General Statutes § 8C-1, Rule 404(b)
(2003) disallows using “[e]vidence of other crimes, wrongs, or acts
. . . to prove the character of a person in order to show that he
acted in conformity therewith.” See also State v. Al-Bayyinah, 356
N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (quoting State v. Coffey,
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis altered))(noting that Rule 404(b) requires exclusion of relevant evidence of
other crimes, wrongs or acts by a defendant “'if its only probative
value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged'”). However, such evidence may be used “as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” N.C.
Gen. Stat. § 8C-1, Rule 404(b). Thus, Rule 404(b)'s “rule of
inclusion,” although “constrained by the requirements of similarity
and temporal proximity[,]” see Al-Bayyinah, 356 N.C. at 154, 567
S.E.2d at 123, does not generally operate to exclude “[e]vidence of
a prior bad act . . . if it constitutes 'substantial evidence
tending to support a reasonable finding by the jury that the
defendant committed the similar act.'” Id., 356 N.C. at 155, 567
S.E.2d at 123 (quoting State v. Stager, 329 N.C. 278, 303, 406
S.E.2d 876, 890 (1991) (quotation marks omitted)).
Comparing the four other incidents to the case at bar, all the
incidents happened within the relatively short time frame of 25
November 2002 to 14 February 2003. In each case, defendant and
Benoist stole the items either at night or in the late afternoon.
Items stolen in each theft could be easily disposed of for money
and were associated with construction sites, including saws,
carpenter tools, and a generator. Moreover, the places which were
broken into were construction sites or areas where things
associated with construction would be stored, including two
trailers on wheels, a storage building, and a house underconstruction. In all but one of the incidents, defendant and
Benoist used bolt cutters to cut the lock securing a latch on the
door to the area into which they were breaking. At the remaining
site, the house under construction, the evidence indicates
defendant and Benoist used a screwdriver on a door lock to gain
entry; thus, bolt cutters would be neither useful nor necessary.
In all but one case, defendant and Benoist stole the items in order
to get money for drugs. Even in the remaining incident, Benoist
testified they stole the property to sell it, but added that it
“didn't go down that way[.] [Defendant] took the generator, and he
used it to get a car.”
(See footnote 1)
The specificity and nature of the
similarities to which Benoist testified vitiates the contention
that these acts would be generic to any breaking or entering, and,
surveying the overwhelming similarities, we perceive no abuse of
discretion by the trial court. Defendant's reliance on differences
in how the stolen items were disposed of and slight variances
between each incident cannot obviate the basic and striking
commonalities between them. We likewise summarily dismiss
defendant's purported reliance on the distinction between the house
under construction as real property and the trailers and storage
building as personal property. This assignment of error is
overruled.
III. Hearsay In his final assignment of error, defendant asserts the trial
court erred in overruling his non-specific objection to Detective
Bender's inclusion, as part of one of his answers to a question
asked in cross-examination, that defendant was “identified in
[Detective Bender's] other three cases.” Hearsay is defined as “a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003).
“However, out of court statements offered for purposes other than
to prove the truth of the matter asserted are not considered
hearsay.” State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501
(1999). “[S]tatements of one person to another to explain
subsequent actions taken by the person to whom the statement was
made are admissible as nonhearsay evidence.” Id.
In the instant case, Detective Bender testified on direct
examination that he had investigated three break-ins in the
Pinehurst area where tools were stolen. Detective Bender
subsequently recovered some of the stolen tools and first spoke
with Benoist on 19 February. At that time, Benoist denied any
knowledge of the three Pinehurst break-ins. However, on 8 April
when Detective Bender served him with three arrest warrants for the
Pinehurst break-ins, Benoist gave a written statement implicating
himself and defendant. Detective Bender then testified concerning
the reported dates of the offenses and stated the warrants served
on 8 April were taken out on 7 April. On cross-examination, defendant asked Detective Bender if
Benoist took responsibility for the Pinehurst break-ins on 7 April
and interrupted Detective Bender's answer (concerning when he
procured Benoist's statement) to ask whether it was 8 April, the
day the warrant was served, or the previous day. When Detective
Bender affirmed that Benoist took responsibility for the crimes on
8 April, defendant questioned him regarding whether there were
multiple statements made and whether “everything [was] done on the
same day[.]” At that point, Detective Bender began, without
objection, to recapitulate his course of action from the beginning
with respect to Benoist as follows:
I think what happened is on February 17
[Benoist] committed a break-in in Pinehurst.
On the 19th of February I arrested Benoist.
He talked to me about that break-in on the
17th of February. I asked him about the other
break-ins that occurred in Pinehurst, and he
said he had no knowledge of it. Then when we
found the items recovered and the defendants
were identified in my other three cases --[.]
At that point, defendant objected, and the trial court overruled
the objection, noting that defendant “asked him to explain. He can
explain.” In continuing, Detective Bender noted the identification
from the other three cases “led [him] to the defendant and Dwayne
Benoist who was charged on [8 April] when the Warrants were
served.”
We agree with the trial court that, due to the evident
confusion regarding the dates and times of Detective Bender's
interaction with Benoist and defendant's questions with regards to
that series of events, Detective Bender was entitled to explain thecourse and reasoning of his actions. Detective Bender's testimony
was not offered for the truth of whether defendant was identified
in other cases for which he was not presently on trial but rather
for the purpose of explaining the course of events leading up to
and including the drawing of the warrants on 7 April, the serving
of the warrants and the arrest of Benoist on 8 April, and Benoist's
inconsistent statements with respect to his involvement in and
responsibility for the Pinehurst break-ins. As such, the testimony
was offered for a nonhearsay purpose, and defendant's assignment of
error is overruled.
No error.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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