An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-752


NORTH CAROLINA COURT OF APPEALS

Filed: 1 February 2005

STATE OF NORTH CAROLINA

         v.                                Lenoir Count y
                                        No. 03CRS54555< br> STAFFOND NOLAN BROWN
    

    Appeal by defendant from judgment entered 26 February 2004 by Judge Russell J. Lanier, Jr. in Lenoir County Superior Court. Heard in the Court of Appeals 17 January 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Michael D. Youth, for the State.

    McAfee Law Firm, P.A., by Robert J. McAfee, for defendant- appellant.

    HUNTER, Judge.

    Staffond Nolan Brown (“defendant”) was charged with first degree kidnapping and attempted robbery with a dangerous weapon (attempted armed robbery). The State's evidence tended to show that sometime after 6:00 p.m. on 9 September 2003, a masked man, wearing camouflage pants, and white shoes attempted to rob the Hardee's restaurant on Vernon Avenue in Kinston, North Carolina. While brandishing a firearm, the suspect tried to get the shift supervisor, Betty Franklin (“Franklin”), to open the restaurant safe and cash registers. Franklin, however, told the gunman that she did not have the keys to open the safe and cash registers. When he was unable to obtain any cash, the suspect fled the restaurant.
    Chris Jones (“Jones”) saw the gunman remove his mask as he fled. Jones just happened to be using the pay phone adjacent to the restaurant and had been alerted to the robbery when he saw other Hardee's employees escaping from the restaurant. Jones gave chase, and got a good look at the assailant, when Jones yelled, “'freeze,'” and the suspect turned around to face Jones. Jones followed the gunman until the gunman entered the Hotel Kinston, which was located just 7/10 of a mile from the Hardee's restaurant. Jones subsequently identified defendant as the man who he chased from the Hardee's restaurant on 9 September 2003.
    Law enforcement responded to the restaurant, and subsequently traveled to the Hotel Kinston, where they arrested defendant. Officers discovered defendant's shirt and mask in the hotel's ballroom, and found the camouflage pants and white shoes in the unit of Leroy Fields (“Fields”). Fields told the officers that neither the pants nor shoes belonged to him. In fact, Fields told officers that defendant had arrived just minutes before them, out of breath and wearing the camouflage pants.
    At the close of the State's evidence, the trial court dismissed the two kidnapping charges. Defendant then presented the testimony of his mother and her sister (defendant's aunt), which tended to show that the clothes found by police at the Hotel Kinston were too large to be defendant's. Though defendant's mother acknowledged that she did not know what clothing defendantmay have kept at her father's house, where defendant stayed at some point prior to April 2003, she insisted that defendant did not have camouflage pants or blue and white sneakers. Defendant's aunt stated that she ran into Fields at a gas station at the end of September 2003, and that he spoke about “what he had done to Staffond Brown[.]”
    Defendant's friend, Anthony Kendall, testified as to an alibi for defendant. Kendall testified that he and defendant were washing cars around noon on 9 September 2003, and that defendant borrowed Kendall's clippers to trim his hair. Kendall stated that he has never known defendant to wear camouflage pants, or cheap sneakers like the ones introduced into evidence as the clothing defendant wore during the 9 September 2003 attempted robbery. Kendall admitted to having prior felony convictions.
    Defense counsel attempted to introduce the testimony of Calvin Koontz, over the State's objection, regarding a conversation he had with a man by the name of Adrian Croom. The court excused the jury and defendant made an offer of proof, during which Koontz testified that Croom told him he “went to make me a little lick” at the Hardee's restaurant. After hearing defendant's offer of proof, the court sustained the State's objection.
    The jury subsequently found defendant guilty of attempted armed robbery. The trial court sentenced defendant to a presumptive term of 100-129 months imprisonment. Defendant appeals.    On appeal, defendant first argues that the trial court erred in refusing to allow into evidence the testimony of Calvin Koontz that someone other than he confessed to committing the subject attempted armed robbery. We disagree.
    Generally, hearsay is inadmissible. However, there are numerous exceptions to the general prohibition against the admission of hearsay. Particularly, in this case, defendant argues that the evidence was admissible under N.C.R. Evid. 804(b)(3), which provides for the admission of declarations against penal interest. Rule 804(b)(3) reads as follows:
        The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

            . . .

            (3)    Statement Against Interest. -- A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.
N.C.R. Evid. 804(b)(3). It is well settled that there must be a showing of the declarant's unavailability before testimony under Rule 804(b)(3) may be admitted. State v. McCail, 150 N.C. App. 643, 649, 565 S.E.2d 96, 100 (2002) (“showing of at '“least a good-faith, genuine, and bona fide effort to procure the declarant's attendance[]”'” is required to prove declarant's unavailability) (citations omitted). The courts also require a further inquiry into whether (1) the statement was against the declarant's penal interest; and (2) the court is satisfied that corroborating circumstances indicate the trustworthiness of the statement. State v. Wardrett, 145 N.C. App. 409, 414, 551 S.E.2d 214, 218 (2001).
    Our appellate courts have further explained, “in order for a statement to be admissible [under Rule 804(b)(3)], it must actually subject the declarant to criminal liability[,]” State v. Singleton, 85 N.C. App. 123, 129, 354 S.E.2d 259, 263, appeal dismissed and disc. review denied, 320 N.C. 516, 358 S.E.2d 530 (1987), and “[t]he statement also must be such that the declarant would understand its damaging potential.” State v. Tucker, 331 N.C. 12, 25, 414 S.E.2d 548, 555 (1992). “The determination of whether the trustworthiness of the statement is indicated by corroborating circumstances is a preliminary matter to be decided by the trial judge.” In making this determination, the trial court is afforded wide discretion. Wardrett, 145 N.C. App. at 415, 551 S.E.2d at 218.
    In the case sub judice, during defendant's offer of proof, Koontz was questioned outside of the presence of the jury. Koontz testified that sometime in October 2003, he and another guy were standing around drinking, when Adrian Croom came up and stated that “he went to make him a little lick but the B-I-T-C-H wouldn't give up the money, so he started to shoot her[.]” Koontz explained thatthe term “lick” is usually used to connote a stickup or a robbery. He also explained that no one “paid [Croom] no attention.” Finally, Koontz noted that Croom frequently wore camouflage pants, which were the type of pants worn by the suspect in the 9 September 2003 Hardee's attempted robbery.
    We note that defendant failed to submit any evidence, to establish Croom's unavailability -- the initial question when Rule 804(b)(3) evidence is propounded for admission into evidence. Moreover, even assuming that defendant had made the proper showing of Croom's unavailability, we conclude that Koontz's testimony was still not admissible under Rule 804(b)(3). Here, the statement made by Croom to two drinking buddies/acquaintances -- neither of which were law enforcement officers, standing around outside of someone's home, does not qualify as a statement against penal interest. Contrary to the declarants in Singleton and Tucker, Croom could not have possibly thought that the statement would have subjected him to criminal prosecution under the circumstances as they existed at the time he made his claim. See Singleton, 85 N.C. App. at 129, 354 S.E.2d at 263. In fact, Koontz admitted that those present ignored Croom, at which point Croom joined them in drinking and dropped the subject. Finally, the required indicia of reliability is absent here, where Koontz acknowledged that Croom was very general in describing the details of the attempted robbery, and the corroborating circumstances relied upon by defendant was that Croom often wore camouflage pants. Accordingly,the trial court did not err in refusing to admit this evidence as an exception to the hearsay rule under Rule 804(b)(3).
    Defendant next argues that the trial court erred in allowing two witnesses to testify as to the contents of a surveillance videotape depicting the 9 September 2003 attempted robbery of Hardee's, as the videotape had not been offered nor admitted into evidence. Since defendant did not object to the admission of this testimony at trial, he concedes that this issue is reviewable only under plain error analysis.
    In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) our Supreme Court explained that plain error is that
        “'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial.”'”
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (emphasis omitted) (citations omitted). In examining the record in this case, we conclude that there is no plain error in the trial court's admission of the testimony of Detective Barry Price and Janice Schmitt, without the jury first viewing the videotape.
    At the outset, we note that defendant's argument is somewhat misleading, since the State presented eight still photographs generated from the surveillance videotape in question during the testimony of the State's first witness, victim Betty Franklin. Franklin testified that the pictures fairly and accurately illustrated her testimony about the 9 September 2003 attemptedrobbery. Particularly, Franklin testified that the man wearing camouflage pants in the pictures was the suspect whom she described during her testimony. After the photos were admitted into evidence without objection, Franklin went on to detail what was occurring during the attempted robbery. Immediately after this testimony, those eight still photos were published to the jury. Franklin thereafter testified that several articles of clothing were either the same articles worn by the man who attempted to rob Hardee's on 9 September 2003 or were similar thereto, as depicted in the photos.
    State Crime Lab Detective Barry Price (“Detective Price”) testified about having spoken with Franklin after the attempted robbery on 9 September 2003. Detective Price stated that he and Franklin reviewed the tape together, with Franklin detailing what could be seen on the tape. On cross-examination, Detective Price stated that the still photos, previously admitted into evidence and published to the jury, came from the video.
    Finally, Janice Schmitt (“Schmitt”), the general manager of the Hardee's restaurant, testified that she had watched the 9 September 2003 surveillance videotape after the attempted robbery; that the State's still photo exhibits, previously admitted into evidence and published to the jury, accurately represented images recorded by the videotape she observed; and that State's Exhibit 34 was the same tape which she removed from the video recorder and handed over to law enforcement on the night of the attempted robbery. Schmitt did not make any statements regarding whether thearticles of clothing admitted into evidence were depicted in the videotape or the still photos taken from that tape. Immediately after Schmitt's testimony, the State offered the videotape into evidence. After an unrecorded bench conference, the trial court admitted the tape into evidence.
    Testimony of prior witnesses, the admission into evidence of still photos taken from that videotape in question, and the publishing of those photos to the jury occurred prior to the testimony of Detective Price and Schmitt. Therefore, defendant cannot show plain error in the admission of the statements of Detective Price and Schmitt regarding the contents of the videotape and/or clothing that the robber was wearing in that video. Significantly, defendant's argument to the contrary ignores the overwhelming evidence that tended to show that defendant was the perpetrator of the attempted robbery. Hence, this argument fails.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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