An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_945


Filed: 5 July 2005

                            Mecklenburg County
v .                         Nos.    00 CRS 40922
                                00 CRS 40923
ROBERT JOHNSON, JR.,                01 CRS 162278
        Defendant.                01 CRS 162279
                                01 CRS 162280

    Appeal by defendant from judgments entered 24 July 2003 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 March 2005.

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

    Daniel Shatz for defendant-appellant.

    GEER, Judge.

    Defendant Robert Johnson, Jr., appeals from his convictions on two counts of first degree murder, two counts of attempted robbery with a dangerous weapon, and one count of possession of a firearm by a felon. Defendant argues on appeal (1) that the trial court erred in overruling his challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); (2) that the State's theory of the case was barred by collateral estoppel based on the jury verdict in a prior trial of another participant in the murders; (3) that the State improperly relied upon false and misleading testimony; and (4) that he should have been charged with only one count of attempted robbery. We hold that the trial courtdid not err under Batson and that the evidence supported two counts of attempted robbery. As for the remaining arguments, we conclude that they were not properly preserved for appellate review and, therefore, do not address them.

    The State's evidence tended to show the following. Kendrick Nicholson received a phone call on the evening of 15 August 2000 from Steven Burke who suggested robbing Rhushaun Holley and Rishod Kelly of drugs or money. Burke's cousin, defendant Robert Johnson, knew Holley and Kelly. The plan was for Nicholson, Burke, and defendant to go to Holley's and Kelly's house under the pretense of purchasing drugs, but then to rob them. Kirsten Lemmert, Nicholson's girlfriend, was in charge of driving the men to and from the house in exchange for $2,000.00.
    Lemmert first drove Nicholson, Burke, and defendant to a house where defendant purchased cocaine that the three men then consumed. After defendant made two phone calls to Holley to see whether he was home and whether he was still awake, Lemmert drove the men to Holley's house. Burke had a sawed-off shotgun and defendant had a pistol. Lemmert saw Burke and defendant passing the pistol back and forth while they talked about who would hold which gun. Once they were outside Holley's house, at approximately 2:30 a.m., defendant gave Nicholson the shotgun and told him to stay outside for a few minutes and be a lookout. Burke and defendant walked around the back of the house.    Nicholson eventually followed with the shotgun, entered the house through the back door, and found Burke and defendant in the kitchen, along with Holley and Kelly. Nicholson handed the shotgun to defendant who showed it to one of the victims and discussed selling it. Defendant laid the gun down on the floor while the men talked further. Eventually, Holley explained that "his guy that was supposed to be bringing the drugs did not arrive yet" and said he had to go make a phone call. At that point, Burke pulled out a gun and said, "[Y]ou know what time it is." Kelly, who was seated nearby, leaped to grab the gun from Burke, and the men struggled. Meanwhile, defendant began "tussling" with Holley.
    When Kelly broke loose from Burke and began to run at Nicholson, Burke shot him. Nicholson picked up the shotgun and defendant, who was still struggling with Holley, told Nicholson to shoot Holley. As Holley began to run, Burke shot him and chased after him. Holley, who was still conscious, ran next door to a neighbor's house, while Burke, defendant, and Nicholson got back into the waiting car with Lemmert and drove away. The next door neighbor, who heard the shots and Holley's knocking, found Holley dead on his doorstep and saw a car speeding down the street. The police later found Kelly lying dead in Holley's and Kelly's kitchen.
    The police ultimately learned of defendant's involvement from Lemmert and Nicholson. They found him hiding in an apartment attic and arrested him on 21 September 2000. In an oral post-arrest statement, defendant admitted to overhearing Burke and Nicholsondiscussing robbing Holley and he admitted to calling Holley to make sure he was still awake. He further admitted that he entered Holley's house, that he saw Burke and Nicholson shoot Kelly, and that he saw Burke chase Holley and later heard two more shots.
    Defendant was indicted on two counts of first degree murder, two counts of attempted robbery with a dangerous weapon, and one count of possession of a firearm by a felon. Defendant was tried non-capitally, and on 22 July 2003, the jury convicted him on all the charges. With respect to the first degree murder charge, the jury found defendant guilty based both on premeditation and deliberation and on the felony murder rule. The trial court consolidated the first degree murder convictions into a single judgment and sentenced defendant to life imprisonment without parole. The court entered two additional consecutive sentences of 120 to 153 months each for the remaining crimes.
    In his first argument, defendant contends that the State was racially motivated in the exercise of its peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). 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, 359 N.C. 284, 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)). When, as here, the trial court rules that a defendant has failed to make the required prima facie showing of race discrimination, this Court does not consider any explanation offered by the State, but rather limits its review to whether the trial court erred in making that preliminary determination. State v. Barden, 356 N.C. 316, 343, 572 S.E.2d 108, 127 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003).
    In the present case, defendant points to the fact that the State used three of its first four peremptory challenges to strike African-American jurors and argues that this statistic, standing alone, is sufficient under Barden to establish a prima facie case of racial discrimination. In Barden, the Court held that a prima facie case had been established when the defendant showed, at the time of the Batson objection, that "the prosecutor had expended 14.3% of his peremptory challenges against a white prospective juror, 14.3% of his peremptory challenges against a Native American prospective juror, and 71.4% of his peremptory challenges against African-American prospective jurors." Id. at 344, 572 S.E.2d at127. The Court stressed that "a numerical analysis of the [statistics involving peremptory challenges in the case] is not necessarily dispositive. However, such an analysis can be useful in helping us and the trial court determine whether a prima facie case of discrimination has been established." Id.
    The State counters that, at the time of defendant's Batson objection, the State had excused only three of six black jurors, resulting in a 50% retention rate.   (See footnote 1)  "'[O]ne factor tending to refute a showing of discrimination is the State's acceptance of black jurors.'" State v. Fletcher, 348 N.C. 292, 318, 500 S.E.2d 668, 683 (1998) (quoting State v. Thomas, 329 N.C. 423, 431, 407 S.E.2d 141, 147 (1991)), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113, 119 S. Ct. 1118 (1999). Our Supreme Court has already held that a 50% retention rate of minority jurors is sufficient to defeat a defendant's attempt to make out a prima facie case of racial discrimination based solely on statistics. See, e.g., State v. Nicholson, 355 N.C. 1, 24, 558 S.E.2d 109, 127 ("This acceptance rate (50%) tends to refute a prima facie showing of discrimination."), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71, 123 S. Ct. 178 (2002); State v. Belton, 318 N.C. 141, 159_60, 347 S.E.2d 755, 766 (1986) (50% acceptance rate (six out of twelve tendered) failed to establish prima facie showing of discrimination).     Accordingly, we cannot conclude that the trial court was clearly erroneous in ruling that defendant failed to make out a prima facie case of discrimination. This assignment of error is, therefore, overruled.
    Defendant next argues that the State was collaterally estopped from arguing at his trial that Burke was the shooter when at Burke's prior trial, the jury _ in the course of the capital sentencing hearing _ found that Burke was not the shooter. Defendant acknowledges that he did not make this argument before the trial court, but he urges this Court to apply the plain error doctrine.
    N.C.R. App. P. 10(b)(1) provides that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." In criminal cases, however,
        a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C.R. App. P. 10(c)(4). Our Supreme Court has limited plain error review to "(1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence." State v. Gregory, 342 N.C. 580 , 584, 467 S.E.2d 28, 31 (1996).    In this case, defendant is attempting to assign plain error to the State's overall theory of the case and not to the admission of any particular piece of evidence or any specific jury instruction. Even more fundamentally, there is nothing in the record to suggest that any evidence pertaining to Burke's previous trial was presented to the trial court at any time. Indeed, defendant, rather than pointing to any part of the record, asks this Court to take judicial notice of the result of Burke's trial. Even if defendant's argument could be deemed to fall within the scope of the plain error doctrine, we cannot hold that the trial court erred in failing to act ex moro motu to limit the State's presentation when nothing in the testimony or argument at trial would have given any indication to the trial court that the doctrine of collateral estoppel was pertinent.   (See footnote 2)  The plain error doctrine cannot apply to reverse a trial judge when nothing in the record before the trial judge would suggest to the judge that he or she should take contrary action. We, therefore, do not address this assignment of error.
    Defendant next argues that his due process rights were violated under Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), when the State relied upon and failed to correct false and misleading testimony from Nicholson and from the State's expert witness in the field of gunshot residue. In Napue,the Supreme Court held that "it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected . . . ." Id. at 269, 3 L. Ed. 2d at 1221, 79 S. Ct. at 1177 (internal citations omitted).
    In support of this argument, defendant points to Nicholson's testimony on cross-examination regarding his plea bargain:
            Q.    And do you know what the least sentence is that you could receive on those charges?

            A.    Yes, sir.

            Q.    And what is it?

            A.    I think it's 131 months.

            Q.    Now, is that on all three charges, total?

            A.    Yes, sir.

            Q.    Now, do you know what consolidating means in sentencing?

            A.    No, sir.

            Q.    You know what running concurrent means in sentencing?

            A.    No, sir.

            Q.    And no one's ever talked to you about whether or not the sentences could all run at the same time?

            A.    No, sir.

Defendant has attached to his brief Nicholson's judgments indicating that his sentences ran concurrently and one sentence wassuspended, with the result that his overall minimum sentence was substantially shorter than his testimony indicated. It does not appear that these judgments were part of the record below. They are, therefore, not properly considered by this Court.
    With respect to the State's gunshot residue expert, defendant points to the expert's testimony that:
            A.    . . . [T]he results [of the test] were the examination of the adhesive lifts failed to identify particles unique to, or characteristics of gunshot residue. These results are inconclusive as to whether or not the subject could have fired a weapon.

            Q.    Would the results you have found be consistent with Kendrick Nicholson having fired a weapon?

            A.    No, sir, they're not.

Defendant also contends that the State violated his due process rights by relying upon this testimony in closing argument and stating, "The GSR on Kendrick Nicholson's hands, he didn't fire a weapon that night, ladies and gentlemen. We corroborated what he told you."    
    Defendant has not, with respect to either instance of testimony, pointed to anywhere in the record indicating that he made his constitutional argument under Napue before the trial court. Our Supreme Court has long held that "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). By not raising his Napue due process argument below, he has waived that contention.    With respect to the expert testimony, defendant has alternatively asserted that the admission of the testimony constituted plain error under Rule 702. Defendant argues that because the expert stated the test was inconclusive, he had no scientifically reliable basis upon which to express the opinion that the results were not consistent with Nicholson's having fired a weapon. Defendant does not challenge the expertise of the witness or the scientific reliability of his testing for gunshot residue. He simply argues that the expert's testimony was inconsistent. Even assuming that the expert's testimony was inconsistent _ which is not necessarily so _ it is well-established that inconsistencies in a witness' statements affect the weight and not the admissibility of that testimony. State v. Thompson, 110 N.C. App. 217, 224, 429 S.E.2d 590, 594 (1993). Therefore, we hold that the trial court did not commit plain error in admitting the gun shot residue expert's testimony.
    Finally, defendant argues that the evidence supported only a single charge of attempted armed robbery and not two separate counts. Defendant points to State v. Becton, 163 N.C. App. 592, 596, 594 S.E.2d 143, 145, appeal dismissed, 358 N.C. 733, 601 S.E.2d 862 (2004), in which this Court held that a defendant was incorrectly convicted of two counts of armed robbery of a bank based on the taking of bank money from two different bank employees.     The Becton Court reasoned that since the defendant only took property belonging to the bank, only one armed robbery took place. Id. at 595, 594 S.E.2d at 145. The Court wrote, "The fact that the employer's money was obtained from two tellers does not allow the State to indict Defendant for two separate armed robberies." Id. The Becton Court, however, specifically stated that its reasoning was applicable only in a setting where the property taken from the two individuals belonged to only one entity. The Court wrote: "[I]f Defendant had robbed either of the tellers of their personal property, Defendant could have been charged with a separate count of armed robbery. Similarly, if Defendant had robbed [a] non-employee during the course of the armed robbery of the credit union, Defendant could have been charged with a separate count of armed robbery." Id. (internal citations omitted).
    In contrast, this case involved evidence of an attempt to rob two individuals in their own home of their separate property. As this Court stated in State v. Johnson, 23 N.C. App. 52, 56, 208 S.E.2d 206, 209, cert. denied, 286 N.C. 339, 210 S.E.2d 59 (1974), in considering two counts of robbery based on the robbery of a married couple in their home, "the persons threatened were not employees of one employer victimized by the taking of the employer's property. Each person threatened was a victim, each being robbed of his personal property." Accordingly, the evidence presented by the State was sufficient to support two separate charges of attempted robbery with a dangerous weapon. Defendant's final assignment of error is, therefore, overruled.     No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
    Ultimately, the State retained four of seven black jurors and the jury was composed of four black jurors and eight white jurors.
Footnote: 2
    We express no opinion as to whether defendant's collateral estoppel argument would have had any merit had it been properly preserved for appellate review.

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