State v Peterson, (04-573) 05/03/2005

Appeal by defendant from judgments entered 10 October 2003 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 21 February 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Jill B. Hickey, for the State.

Richard E. Jester for defendant-appellant.

GEER, Judge.

     Defendant Karl Justin Peterson appeals from judgments imposed on jury convictions of first degree burglary, five counts of robbery with a dangerous weapon, and felonious breaking and entering arising out of two incidents occurring five days apart. He argues on appeal primarily that the trial court erred in allowing the charges to be tried together. Because there was a transactional connection between the incidents and defendant has not demonstrated unfair prejudice from the consolidation, we hold that the trial court did not err. After reviewing defendant's remaining assignments of error, we hold that defendant received atrial free from prejudicial error.
    The State's evidence tended to show the following. During the evening of 31 August 2002, Patrick Bailey was at his home in Wilmington watching television with his roommate, Scott Howe, and a female friend, Toshi Pope, when they heard a knock at the door. Pope cracked open the door and two men burst into the residence. One of the men, later identified as defendant, was heavyset; he wore a hat, sunglasses, and a single weightlifter's glove; and he carried a gun that looked like an Uzi. Defendant announced, "This is a robbery," and ordered everyone to get down on the floor. He then ordered everyone to remove their clothes. He asked Bailey where he kept his money and the "dro," referring to a type of marijuana. As the other intruder stood guard over Howe and Pope, defendant walked Bailey around the residence looking for money. At one point, defendant punched Bailey in the head with his fist. Bailey ultimately handed defendant $350.00 to $450.00 from his wallet. Defendant ordered Bailey to get back on the floor with the others and directed them not to move for the next five to ten minutes. The two men then threatened to kill them if they called the police.
    Five days later, during the morning of 5 September 2002, David Logan was at the Wilmington residence of his mother, Edwardina Logan, with his mother, infant daughter, sister, and sister's female friend. After hearing a knock at the door, Edwardina Logan looked out the door and told her son that his friend was at the door. When Logan went to the door, a heavyset man burst into thehouse and ordered Logan to get on the floor. He directed the women to sit on the couch. The man was wearing sunglasses and a "do-rag" on his head and carried a gun that looked like an Uzi. He demanded $17,000.00 and said he knew it was there. The intruder ordered Logan and the female occupants to remove their clothing. Logan took off his clothes and the intruder took money out of Logan's pants pocket. The intruder then walked Logan around the house looking for money. When Logan told the intruder that he did not have any money, he was beaten. The intruder and Logan returned to the living room where Logan's mother gave the intruder $1,800.00, all of the money she had. Before leaving the residence, the intruder threatened to kill them if they called the police.
    David Logan believed that he had gone to high school with the intruder. After looking through a high school yearbook, he and his sister identified defendant as the intruder and called the police. After the police arrested defendant for the Logan robbery, the police showed a photo line-up to both the Logans and Bailey. All of the victims identified defendant as the person who had robbed them.
    With respect to the incident on 31 August 2002, defendant was indicted with two counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, and first degree burglary. As for the incident on 5 September 2002, defendant was indicted with four counts of robbery with a dangerous weapon and breaking and entering. After the close of the State's evidence, the trial court dismissed one count of robbery with adangerous weapon (arising on 31 August 2002). The jury found defendant not guilty of attempted robbery with a firearm of Scott Howe, but found defendant guilty of all other charges. The trial court sentenced defendant to a term of 64 to 86 months for the first degree burglary conviction. The Court also sentenced defendant to a term of 60 to 81 months for the 31 August 2002 robbery with a dangerous weapon and to a term of 60 to 81 months for the 5 September 2002 robberies and breaking and entering. The two 60 to 81 month sentences were to run concurrently with each other, but consecutively to the first degree burglary sentence.
    Defendant first contends that the court erred by joining all of the charges for trial. N.C. Gen. Stat. § 15A-926(a) (2003) provides: "Two or more offenses may be joined . . . for trial when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." When a motion for joinder is made, the trial judge must first determine whether a transactional connection exists between the incidents. State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). Once the trial court determines that the requisite transactional connection exists, then the court must determine whether the defendant "can receive a fair hearing on each charge if the charges are tried together." State v. Huff, 325 N.C. 1, 23, 381 S.E.2d 635, 647 (1989), vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777, 110 S. Ct. 3266 (1990). The court's decision will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Kornegay, 313N.C. 1, 23-24, 326 S.E.2d 881, 898 (1985).
    While a trial court may not permit joinder based only upon a commonality of crimes, the court may find the necessary transactional connection based on "a common modus operandi and the time lapse between offenses." State v. Williams, 355 N.C. 501, 530-31, 565 S.E.2d 609, 627 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808, 123 S. Ct. 894 (2003). In State v. Bracey, 303 N.C. 112, 118, 277 S.E.2d 390, 394 (1981), our Supreme Court reversed this Court's holding that no transactional connection existed to allow joinder of charges arising out of three separate robberies occurring during a ten-day period. The Supreme Court reasoned:
    The evidence in the three cases shows a similar modus operandi and similar circumstance in victims, location, time and motive. All the offenses occurred within ten days on the same street in Wilmington. All occurred in the late afternoon. In each case, two black males physically assaulted the attendant of a small business and took petty cash from the person of the victim or the cash box of the business. The assaults were of a similar nature. Each was without weapons, involved an element of surprise and involved choking, beating and kicking the victim. In each case, the robbers escaped on foot.

Id. The Court held: "The evidence was sufficient to justify joinder based on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Joinder was proper under G.S. 15A-926." Id.
    Like Bracey, the two incidents in this case, occurring only five days apart, presented a distinct modus operandi. In both, the perpetrator _ wearing a head covering and sunglasses and carryingan Uzi-like gun _ knocked on the door of a Wilmington residence and once an occupant began to open the door, burst in. He ordered all of the occupants to remove their clothes and at least some, in each incident, to lie on the floor. He then forced a male occupant to walk with him throughout each residence in a search for money. Upon leaving, the perpetrator in both incidents threatened to kill the victims if they called the police. Under Bracey, these substantial similarities, occurring in incidents separated by such a short period of time, are sufficient to justify the trial court's finding of a transactional connection under N.C. Gen. Stat. § 15A- 926. See also State v. Simpson, 159 N.C. App. 435, 437, 583 S.E.2d 714, 715 ("[W]e hold that the trial court properly allowed joinder of the subject offenses because a transactional connection was evidenced by a common modus operandi, the short time lapse between the criminal activity, and similar circumstances in victim, location, and motive."), aff'd per curiam, 357 N.C. 652, 588 S.E.2d 466 (2003).
    Even if, however, a transactional connection exists, the trial court must also determine whether the defendant can receive a fair hearing on each charge if the charges are tried together. Williams, 355 N.C. at 529, 565 S.E.2d at 626. The only prejudice from joinder identified by defendant is the possibility that the identification of defendant by each set of victims would bolster that of the other set. As the Supreme Court has pointed out, however, in finding no prejudice from an improper joinder, "[a]lthough, generally, evidence of crimes other than the onecharged is inadmissible to show the character of the accused or his disposition to commit an offense of the nature of the one charged, such evidence is admissible if it is relevant to show the identity of the perpetrator of the crime charged." State v. Corbett, 309 N.C. 382, 388, 307 S.E.2d 139, 144 (1983). Here, the evidence of each incident would be admissible under Rule 404(b) of the Rules of Evidence, specifically because it would be relevant to the question of the identity of the perpetrator. Id. at 389, 307 S.E.2d at 144 ("The crimes occurring on 16 August, 2 September, and 10 September were sufficiently similar to permit evidence of their occurrence to be admissible on the question of the identity of the assailant" and, therefore, consolidation of the charges was not prejudicial error.).
    In addition, defendant argues, citing State v. Dunston, 256 N.C. 203, 123 S.E.2d 480 (1962), that the trial court erred in allowing the motion for joinder after a jury was already impaneled. The trial court, in this case, heard arguments on the State's motion for joinder prior to jury selection, but deferred ruling until after the impaneling of the jury. In Dunston, by contrast, the State moved prior to trial for consolidation of charges of hit- and-run and resisting arrest, but no other charges. After the State began presenting testimony, the trial court announced that the jury would also hear the charge of reckless driving. Then, following submission of all the evidence, the trial court determined that the jury had not been properly impaneled for the hearing of a speeding charge, impaneled the same jury again for thepurpose of hearing that charge, and then presided over a trial on the speeding charge. Defendant had never been allowed to enter a plea as to the reckless driving and speeding charges. In holding that the piecemeal prosecution was unjustified, the Court explained as to the consolidation of the charges: "[T]he order of consolidation will be made in such cases when seasonably brought to the court's attention, and not at a time when the validity of the whole trial might seriously be threatened by the consolidation." Id. at 207, 123 S.E.2d at 483.
    Here, while the better practice is for the trial court to decide the motion to consolidate prior to jury selection, we do not believe that the timing resulted in any prejudice to defendant, in contrast to the situation in Dunston. Defendant, who did not object to this procedure at trial, has not on appeal pointed to any prejudice that he suffered as a result of the timing. He was aware of the possibility of consolidation during jury selection and, therefore, was in a position to select a jury with an eye toward all the charges. In addition, we have already determined that the trial court did not err in ultimately allowing consolidation. We, therefore, hold that the trial court did not commit prejudicial error in consolidating the charges for trial.
     Defendant next contends that the trial court erred by permitting the prosecutor to make improper statements during his closing argument. "During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of theevidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice." N.C. Gen. Stat. § 15A-1230(a) (2003). By his assignments of error defendant argues the prosecutor went outside the record when he: (1) stated that he had represented "crazy people" earlier in his professional career; (2) related an anecdote about lecturing his young daughter about taking responsibility for her actions; and (3) called defendant a "robber" and a "thug."
    Defendant also argues in his brief that the prosecutor improperly implied that defendant was a drug dealer. This argument is not supported by an assignment of error and will not be considered. State v. Diehl, 353 N.C. 433, 438, 545 S.E.2d 185, 188 (2001).
    With respect to the three statements to which he has assigned error, defendant objected at trial only to the first. When an objection is interposed to allegedly improper closing arguments, our standard of review is to determine whether the trial court abused its discretion by failing to sustain the objection. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). In applying this standard, we examine whether the remarks are improper and if so, whether "the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court." Id.
    Defendant objected to the prosecutor's argument that he had represented "crazy people" who had purported to communicate withothers by "send[ing] messages out into the world." We do not believe that the prosecutor's remark is of such magnitude as to unfairly prejudice defendant. "[P]rosecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred." State v. Pinch, 306 N.C. 1, 24, 292 S.E.2d 203, 221 (1982), cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622, 103 S. Ct. 474 (1982), and overruled in part on other grounds by State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60, 116 S. Ct. 107 (1995), and by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650, 115 S. Ct. 750 (1995), and by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988). Here, the prosecutor was responding to and questioning the credibility of defendant's closing argument that the Logans had influenced Bailey's description of defendant and the 31 August incident _ he was suggesting that a jury could find such influence based on the evidence only if it believed that people can "send messages out into the world."
    When a defendant fails to object at trial, the standard of review is "whether the argument complained of was so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). "[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused hisdiscretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it." State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979). The anecdote regarding the prosecutor's daughter, as used in this case, was permissible rhetoric. Based on the evidence, the references to "robber" and "thug" were not so grossly improper as to require intervention by the trial court.
     Defendant next contends that the court erred by failing to make an adequate inquiry into the relationship of a juror and a family member of one of the victims. The record shows that during the course of the trial, a juror reported that he had just realized that a relative of one of the victims had formerly worked at the same company as the juror. The court questioned the juror about the nature of his relationship with the relative and whether the fact he knew the relative would make any difference in the way he handled the case. The juror responded that it would make no difference as he and the relative had worked in different departments of the company, and he knew the relative only by face and not by name. Satisfied with the juror's response, the court allowed the juror to remain on the jury.
    Defendant neither objected to the court's questioning of the juror nor requested that the juror be removed. Because defendant did not raise this issue in the court below, it will not be considered for the first time on appeal. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Moreover, the decision as toa juror's continued competency to serve is within the discretion of the trial judge. State v. Harris, 283 N.C. 46, 48, 194 S.E.2d 796, 797, cert. denied, 414 U.S. 850, 38 L. Ed. 2d 99, 94 S. Ct. 143 (1973). Defendant has failed to demonstrate why, in light of the juror's responses, the trial court's failure to make any further inquiry was an abuse of discretion.
    Defendant finally contends that he was denied effective assistance of counsel because counsel failed to request additional voir dire of the above juror to question the juror further about his relationship to the victim's relative. In order to establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that counsel's deficient performance was prejudicial to his defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). The court's questioning of the juror in this case constituted an adequate investigation into whether the juror would be able to base his verdict solely upon the evidence and not be influenced by his acquaintanceship with a victim's relative. Nothing in the present record suggests that further inquiry by counsel would have revealed anything to the contrary. See State v. Adams, 156 N.C. App. 318, 325, 576 S.E.2d 377, 382 (defendant failed to demonstrate that counsel's questioning was ineffective in jury selection in light of juror's responses), disc. review denied, 357 N.C. 166, 580 S.E.2d 698 (2003). This assignment of error is overruled.
    We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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