An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 October 2005
STATE OF NORTH CAROLINA
QUINCY LEE PEGUSE No. 01 CRS 13665
01 CRS 51901
01 CRS 51923
01 CRS 51926
and 01 CRS 51927
01 CRS 51928
01 CRS 52390
STATE OF NORTH CAROLINA
DANIEL DEWAYNE BURCH No. 01 CRS 51898
01 CRS 51902
01 CRS 51905
and 01 CRS 51906
01 CRS 51907
STATE OF NORTH CAROLINA
KEVIN TYRONE HICKMON No. 01 CRS 51900
01 CRS 51916
01 CRS 51919
01 CRS 51920
01 CRS 51921
01 CRS 52328
01 CRS 52391
Appeal by defendants from judgments entered 12 December 2003
by Judge Kimberly Taylor in Union County Superior Court. Heard in
the Court of Appeals 18 May 2005.
Attorney General Roy Cooper, by Assistant Attorneys General
Phillip A. Lehman, Barbara Shaw, and K.D. Sturgis, for the
Charns & Charns, by D. Tucker Charns, for defendant-appellant
Quincy Lee Peguse.
Amos Granger Tyndall for defendant-appellant Daniel Dewayne
Anne Bleyman for defendant-appellant Kevin Tyrone Hickmon.
Following a ten day trial, Quincy Lee Peguse, Daniel Dewayne
Burch, and Kevin Tyrone Hickmon (defendants) were found guilty of
various charges arising from the robbery of several people in a
Union County home. The jury found defendant Peguse guilty of
first-degree burglary, four counts of armed robbery, and possession
of a firearm by a felon. Defendant Burch was found guilty of
first-degree burglary and four counts of armed robbery. Defendant
Hickmon was found guilty of first-degree burglary, four counts of
armed robbery, possession of a firearm by a felon, and felony
speeding to elude arrest. Defendants each gave notice of appeal
and have brought forth numerous assignments of error. For the
reasons stated herein, we find that defendants Peguse and Burch
received a trial free of prejudicial error. As to defendant
Hickmon, however, we find no prejudicial error at trial but reverse
the trial court's denial of his motion to dismiss the charge of
felonious speeding to elude arrest.
At trial, the State presented evidence tending to show that on
the evening of 1 June 2001 at approximately 10:00 p.m., Israel
Ortiz Velos (Mr. Velos) was asleep at his apartment in Monroe,
North Carolina, while his fellow roommates and some friends wereplaying poker in the living room. Sometime around 10:30 p.m., Mr.
Velos was awakened by armed men entering his room. He was
instructed to go into his living room where he found his friends
and roommates on the floor. A total of five intruders, all of whom
wore scarfs or toboggans to cover their faces, then proceeded to
take money and personal property belonging to the victims. At one
point, one of the perpetrators took Mr. Velos to his bedroom where
an armed man searched the room and robbed him of his money and
other property. After thirty minutes to an hour, the five
intruders departed, and the police were notified. Detective
William Scott Williams (Detective Williams) of the Monroe Police
Department arrived at the scene, but he did not have an opportunity
to speak to the victims because he was dispatched to the area of a
high-speed chase involving the highway patrol. None of the victims
could give a good description of the perpetrators immediately after
the incident. Fifteen days after these events, Detective Williams
spoke with Mr. Velos and two other victims, but Mr. Velos still
could not give a description of the perpetrators.
In the early morning hours of 2 June 2001, Joseph Franze of
the North Carolina Highway Patrol (Trooper Franze) saw a red Ford
Escort being driven erratically. The car contained five black
males. The driver originally stopped, but sped away as Trooper
Franze approached it. A high-speed chase ensued and lasted for
five to seven miles, but came to an abrupt end when the Escort
collided with Trooper Franze's patrol car. Five individuals fled
the scene. A canine unit, along with Detective Williams, arrivedshortly thereafter and eventually found James Funderburk (Mr.
Funderburk) in a field roughly a half-mile from the wreck.
Mr. Funderburk was taken into custody by the Monroe Police
Department where he issued several statements. Mr. Funderburk has
denied having recollection of the burglary and robberies, but he
did tell the police that on 1 June 2001 he was taken by his
girlfriend, Tina Marie Gaddy (Ms. Gaddy), to join defendants,
Nathaniel Burch, Ms. Tiffany McClain, who was defendant Hickmon's
girlfriend, and defendant Hickmon's sister, Ms. Luwanda Shay
Hickmon, at a trailer in South Carolina. After Mr. Funderburk
signed a statement regarding the robbery of Mr. Velos's apartment
in which he implicated himself, defendants, and Nathaniel Burch,
who is the twin brother of defendant Burch, warrants were issued
for the arrest of each person. After his arrest, Nathaniel Burch
also gave a statement to the police implicating himself, Mr.
Funderburk, and defendants. When called to testify at defendants'
trial, however, Nathaniel Burch disavowed the statement he had made
and called it a lie.
Both Mr. Funderburk and Nathaniel Burch pled guilty to the
charges and were called as witnesses against defendants in their
trial. The State also presented other evidence to support
defendants' convictions, but since defendants' appeal challenges
the admissibility of some of this evidence, we will discuss it as
it is presented on appeal.
First, we consider defendants' argument that the trial court
erred in allowing Mr. Velos to make an in-court identification of
defendants Hickmon and Peguse.
(See footnote 1)
On appeal, defendants argue that
Mr. Velos's testimony should not have been admitted because it was
not sufficiently reliable. Specifically, they assert that the
witness's own testimony showed that he was awakened suddenly, was
very upset by the events, and could not see the faces of the
perpetrators because their faces were covered. Defendants also
argue that the lack of a prior identification of the perpetrators
by the witness and the length of time between the crime and trial
so undermine the testimony of Mr. Velos's identification that it
should have been declared inadmissible.
In most instances, imperfections in a witness's ability to
identify the perpetrator correctly go to the weight of the
evidence, rather than its admissibility. See State v. Orr
N.C. 177, 179, 132 S.E.2d 334, 336 (1963) (The credibility of
witnesses and the proper weight to be given their testimony must be
decided by the jury _ not by the court.). Nonetheless, our courts
have recognized limited instances in which the witness's
identification is so unreliable or otherwise tainted that it must
be excluded. One such instance is where a pretrial identification
has been made, but that identification was impermissibly
suggestive. See, e.g., State v. Green
, 296 N.C. 183, 187, 250
S.E.2d 197, 200 (1978); see also State v. Tutt
, ___ N.C. App. ___,___, 615 S.E.2d 688, 693 (2005) (Identification procedures so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification violate a defendant's
right to due process.) (citations omitted).
[W]here there has been a showing that a
pretrial identification procedure, conducted
by State officials, is in some manner
impermissibly suggestive . . . there must be a
determination, in accordance with the factors
listed [in Neil v. Biggers
, 409 U.S. 188, 34
L. Ed. 2d 401, (1972)], whether the witness's
identification of the defendant at trial will
be reliable and of an origin independent of
the suggestive pretrial procedure.
, 296 N.C. at 187, 250 S.E.2d at 200.
In the case sub judice
, defendants argue that their in-court
identifications did not comport with the factors established by
. Because, however, there was no pretrial identification of
defendants in this case, it does not give rise to an argument under
. See Green
, 296 N.C. at 188, 250 S.E.2d at 200
(Defendant's claim that [the witness's] in-court identification is
not supported by the evidence elicited on voir dire
therefore a Biggers
type claim, but rather is a claim that her
testimony is inherently
unreliable and incredible.).
Thus, the question here would be whether the witness possessed
a reasonable possibility of observation sufficient to permit
subsequent identification. See State v. Miller
, 270 N.C. 726,
732, 154 S.E.2d 902, 906 (1967). In the instant case, Mr. Velos
testified, inter alia
, that he was with his assailants for at least
half an hour; the lights were turned on; his assailants spoke to
him; and he was physically close to them during some of this time. He also testified that, although one assailant was wearing a
toboggan, he had it raised to his forehead . . . [enabling Mr.
Velos to see] . . . him for a brief moment as he turned to the
side. Mr. Velos identified this individual as defendant Peguse at
trial. He also testified that he could identify defendant Peguse
as one of his assailants because of his braids, as well as [h]is
height, his built, [and] the thickness of his body. Mr. Velos
then identified defendant Hickmon as another of the assailants
because of the the shape of his face and forehead as well as
[h]is motion, the cheeks, and his eyes, the look in eyes. Thus,
Mr. Velos identified those aspects of the assailants that he
recalled from that evening and used these as the criteria for
identifying defendants. Given the amount of time that the witness
spent with his perpetrators in a lighted environment, we conclude
that he did possess a reasonable possibility of observation and
it is not inherently incredible that he could later identify
those individuals. As such, his testimony was not inadmissible.
, 296 N.C. at 188-89, 250 S.E.2d at 200-01; State v.
, 293 N.C. 47, 52, 235 S.E.2d 219, 222 (1977) (holding that
witness identification is admissible where there is a reasonable
possibility of observation sufficient to permit subsequent
, 270 N.C. at 731-32, 154 S.E.2d at 905-
06. We overrule this assignment of error.
Defendants also attempt to raise issues related to the use of
Ms. Petra Tussing as the translator during the trial.
(See footnote 2)
objection was raised below, and defendants now attempt to invoke
plain error review pursuant to N.C.R. App. P. 10(c)(4). However,
this issue is not one concerning an evidentiary ruling or jury
instructions and thus plain error review is not available to reach
the merits of defendants' claims. See State v. Diaz
, 155 N.C. App.
307, 318, 575 S.E.2d 523, 530-31 (2002) (citing State v. Atkins
349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied
U.S. 1147, 143 L. Ed. 2d 1036 (1999)).
In addition to Mr. Velos, the State called another of the
victims, Manuel Arparicio Duenas, as a witness. Defendants Hickmon
and Burch argue that since the indictment listed this victim's name
as Manuel Aparicio, it is therefore invalid. Although there are
instances in which an error in the name of a victim will result in
a conviction being vacated, see, e.g., State v. Call, 349 N.C. 382,
424, 508 S.E.2d 496, 522 (1998), we do not believe this is one of
them. This Court has previously held that a sufficient
similarity between the name of a victim and the name alleged in
the indictment will usually suffice to avoid a fatal variance,
provided that the proof at trial matched the allegations in the
indictment in all other respects . . . [and] the defendant was notsurprised or placed at any disadvantage in preparing his defense to
the crimes charged in the indictment. State v. Cameron, 73 N.C.
App. 89, 92, 325 S.E.2d 635, 637 (1985), disc. review denied, 315
N.C. 592, 341 S.E.2d 31 (1986). Defendants here do not indicate
how they were actually prejudiced by this variance, and it does not
appear that there was ever any uncertainty as to the identity of
the victim. Defendants similarly do not indicate how the evidence
at trial otherwise varied from the indictment. This assignment of
error is therefore overruled.
We next consider defendant's argument that the trial court
erroneously admitted the testimony of Ms. Gaddy. Ms. Gaddy was Mr.
Funderburks's girlfriend during June 2001, and she testified to
statements allegedly made by defendants on 2 June 2001. When
called to the stand, Ms. Gaddy testified that on the evening of 1
June 2001 she observed defendants, Mr. Funderburk, and Nathaniel
Burch all depart from the trailer of Ms. Luwanda Hickmon. She then
testified that defendants and Nathaniel Burch (absent Mr.
Funderburk) were at the same trailer the next day and participated
in a conversation with her, Ms. Luwanda Hickmon, and Ms. Tiffany
McClain. When Ms. Gaddy attempted to testify as to what defendants
said during the conversation, the trial court conducted a voir dire
to determine its admissibility. Following voir dire
, the trial
court ruled that Ms. Gaddy could testify as to the statements made
during this conversation. The substance of the conversation was
that defendants, Mr. Funderburk, and Nathaniel Burch left on 1 June2001, traveled to Monroe, committed a robbery, and had a wreck on
the way back. The conversation also included the comment that Mr.
Funderburk had been caught because he had not stayed with the rest
of them. On appeal, defendants allege that the introduction of
these statements allowed impermissible hearsay into evidence and
also violated their rights under Bruton v. United States
, 391 U.S.
123, 20 L. Ed. 2d 476 (1968). After carefully considering these
arguments, we disagree.
During the voir dire
of Ms. Gaddy, as defendants indicate, she
repeatedly stated that she was incapable of remembering any
specific statement made by the individuals present during that
conversation. Yet, before the jury the very next day, Ms. Gaddy
testified that she could
recall defendants' specific statements,
which were that they had gone to Monroe, robbed some Mexicans, had
a wreck from which they all ran, and that Mr. Funderburk had been
(See footnote 3)
The State contends that these statements were admissible
as an admission of a party opponent under N.C. Gen. Stat. § 8C-1,
Rule 801(d)(A) (party's own statement) and, as necessary, under
N.C. Gen. Stat. § 8C-1, Rule 801(d)(B) (party admission by
The gravamen of defendants' argument seems to be that Ms.
Gaddy was only relating a generalized conversation and not
testifying as to specific statements that could be individually
identified as the exact words of a particular speaker. Yet, priordecisions of our Supreme Court have held that testimony which is
similar, in terms of generality, to that of Ms. Gaddy's is
admissible. In determining whether a statement in State v.
Stanfield was an admission by a party opponent, the Court stated
there is no rule that requires the witness to remember the exact
words spoken. 292 N.C. 357, 366, 233 S.E.2d 574, 81 (1977).
Thus, the Court found no error in allowing a witness to testify as
to the effect of a conversation with two defendants where the
witness testified that he could remember the subject of the
conversation although he could not remember the exact words. Id.
at 366, 233 S.E.2d at 580. Similarly, in State v. Moses, the Court
held that a witness could testify to the substance of a
conversation he had with a defendant although he did not remember
the exact words defendant used. 350 N.C. 741, 767, 517 S.E.2d
853, 869 (1999). Therefore, even if Ms. Gaddy may have recalled
only the general nature of the statements of defendants, this would
not prevent them from qualifying as party admissions under N.C.
Gen. Stat. § 8C-1, Rule 801(d).
Also, our Supreme Court has made clear that no Bruton
violation occurs when a witness testifies to a statement that is
necessarily either a defendant's own statement or an admission
impliedly adopted by the defendant. State v. Willis, 332 N.C. 151,
167, 420 S.E.2d 158, 165 (1992) ([I]f testimony is admitted under
the hearsay rule, or as an exception to it, there is no right of
confrontation and Bruton does not prohibit the use of such
testimony.); State v. Hardy, 293 N.C. 105, 118-19, 235 S.E.2d 828,836 (1977) (holding that Bruton is inapplicable to implied
admissions). As such, we find no error in the admission of this
testimony and overrule this assignment of error.
Defendants also argue that it was error for the trial court to
admit a confession implicating defendants that was written by
Nathaniel Burch. During its case-in-chief, the State called
Nathaniel Burch to testify against defendants. Quickly into his
testimony, he began denying that he knew defendants. The State
immediately began impeachment by asking him to read a statement
that he had given to police__even though he called it a lie and
something that he was tricked into signing by the police.
Defendants contend, among other things, that calling Nathaniel
Burch as a witness and having him read his statement was a
subterfuge to get the substance of his confession into evidence
under the guise of impeachment.
Rule 607 of the North Carolina Rules of Evidence, like its
counterpart in the federal rules, permits a party to impeach its
own witness. When interpreting this rule our Supreme Court has
looked to the federal courts, stating that [i]t is the rare case
in which a federal court has found that the introduction of hearsay
statements by the state to impeach its own witness was not
motivated primarily (or solely) by a desire to put the substance of
that statement before the jury. State v. Hunt, 324 N.C. 343, 350,
378 S.E.2d 754, 758 (1989). As was noted by Judge Posner and
quoted in Hunt: it would be an abuse of the rule, in a
criminal case, for the prosecution to call a
witness that it knew would not give it useful
evidence, just so it could introduce hearsay
evidence against the defendant in the hope
that the jury would miss the subtle
distinction between impeachment and
substantive evidence__or, if it didn't miss
it, would ignore it.
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
Therefore, the State must overcome the presumption that impeachment
of its own witness by otherwise inadmissible hearsay is improper by
showing, for example, that it was genuinely surprised by the
witness's testimony or that an effective limiting instruction was
given. Hunt, 324 N.C. at 350, 324 S.E.2d at 758. When these or
other indicia of the State's good faith are not present, then the
impeachment of the witness is not likely an appropriate use of Rule
607. Id. at 349-50, 378 S.E.2d at 758; State v. Riccard, 142 N.C.
App. 298, 304, 542 S.E.2d 320, 324 (2001); State v. Price, 118 N.C.
App. 212, 216, 454 S.E.2d 820, 822-23, disc. review denied, 341
N.C. 423, 461 S.E.2d 766 (1995).
In the case sub judice, the State does not assert any of the
usual good faith defenses, but it does articulate a number of
grounds in an attempt to support the admissibility of this
statement. We, however, need only address one of these: assuming
arguendo that the State called Nathaniel Burch as a device for
putting inadmissible hearsay before the jury, any error was cured
when the defense called Nathaniel Burch to give testimony on the
same issues and events addressed by his purported confession. Any
error in admitting such [prior inconsistent] statements prematurelymay be cured if the person who made the statements later testifies
in such a way as to render the statements admissible. State v.
Miller, 137 N.C. App. 450, 456, 528 S.E.2d 626, 630 (2000) (citing
1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence, §
159, at 511 (6th ed. 2004)). Nathaniel Burch's testimony on
defendants' behalf was inconsistent with his statement to police,
and therefore his statement would have been admissible for the
limited purpose of impeaching the testimony that he later gave for
the defense. Thus, this assignment of error is also overruled.
On a related issue, defendants assign error to the fact that
Detective Williams testified concerning Mr. Burch's statements to
him. The substance of his testimony was simply that Mr. Burch had
given the statement previously read. The State argues, and we
agree, that this issue is similar to State v. Westall, 116 N.C.
App. 534, 546, 449 S.E.2d 24, 31, disc. review denied, 338 N.C.
671, 453 S.E.2d 185 (1994). In that case, we allowed a police
officer to testify concerning the substance of a witness's
statement even though the witness contended that his statement was
not true. Thus, the evidence from Detective Williams was
admissible for the purposes of impeaching Nathaniel Burch. See
N.C. Gen. Stat. § 8C-1, Rule 613 (2003). This assignment of error
is also overruled.
We now consider whether the trial court erred in admitting, as
substantive evidence, the out-of-court statements that Mr.
Funderburk made to the police following his apprehension. TheState contends that the statements of Mr. Funderburk are not
hearsay because they qualify under the exception for a past
recollection recorded. N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003).
When Mr. Funderburk was called to the stand, he testified that
he was getting messed up at the trailer with defendants on 1 June
2001. He stated that he could not recall anything else that
happened until he was apprehended by the police near the scene of
the car accident. He recalled giving several statements to law
enforcement, but he never testified that he once had actual
knowledge of the events of 1 June 2001. Because of his lack of
memory at trial, the State contends that his prior written
statements were then admissible as a past recollection recorded
under Rule 803(5).
N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003) allows prior
written statements to be used as evidence, notwithstanding the fact
that it would otherwise be inadmissible hearsay, when the witness
once had knowledge but now has insufficient recollection to enable
him to testify fully and accurately . . . . It is clear that Mr.
Funderburk testified he did not recall the key events of that
evening; but this alone is not sufficient under Rule 803(5). The
statement must also be shown to have been made or adopted by the
witness when the matter was fresh in his memory and to reflect that
knowledge correctly. N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003).
Without some kind of circumstantial acknowledgment by the witness
as to the veracity of the past recollection recorded, such astatement fails to comply with Rule 803(5) and thus may not be
admitted into evidence. In State v. Spinks, we held that a
witness's statement was not properly admitted as a past
recollection recorded where the witness's own testimony makes it
clear that not only does she not recall the matters in the
statement, she disagrees with some of the statements found
therein[,] . . . [it appears] that she did not write the statement
herself, and that she did not read it before signing it. 136 N.C.
App. 153, 159, 523 S.E.2d 129, 133 (1999).
The statement in Spinks is very similar to the statements of
Mr. Funderburk in the case sub judice. Although the evidence
indicates that Mr. Funderburk wrote the statements in his own hand,
he does not ever testify at trial that he had recorded what he
actually recalled and that it constituted a correct reflection of
his knowledge at the time. Indeed, the two statements contradict
one another as to some aspects of that evening's events, which
suggests that they could not both reflect a fresh memory and
correct knowledge as required by the rule. The record is devoid of
any evidence that Mr. Funderburk made his statements at a time when
the facts were truly fresh in his memory; that he actually recalled
the events when he wrote the statements; or even that he had then
intended to give an accurate account of the evening's events.
Accordingly, we agree with defendants that the statements of Mr.
Funderburk were inadmissible.
In concluding that it was error for the trial court to allow
the State to have Mr. Funderburk read his prior statements, wefurther conclude that it was error for the trial court to allow the
actual documents to be admitted into evidence as exhibits upon the
State's own motion and over defendants' objections. The plain
language of Rule 803(5) contains the following provision: If
admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an
adverse party. N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003). Here,
only defendants could have requested that these statements of Mr.
Funderburk be admitted as exhibits. Additionally, considering that
we agree with defendants that is was error for the trial court to
admit the statements made by Mr. Funderburk, we also agree that it
was error to allow Detective Williams to testify in corroboration
as to what Mr. Funderburk said. It is axiomatic that inadmissible
evidence cannot be legitimately corroborated.
As a result of the admission of Mr. Funderburk's statements,
we must determine the prejudicial effect on defendants' trial. We
cannot conclude that defendants suffered any prejudice. In this
case, the testimony of Mr. Velos established that he was robbed
when five black males broke into his home. He then positively
identified two defendants as the men who robbed him. The testimony
of Ms. Gaddy established that defendants, Mr. Funderburk, and
Nathaniel Burch left on the evening of 1 June 2001 and did not
return to South Carolina until the next day. When they did, they
admitted to having robbed some Mexicans in Monroe. They also
admitted having a wreck while being pursued by the police. The
police apprehended Mr. Funderburk near the scene of the wreck fromwhich five black males had fled. The red Ford Escort, which
belonged to Ms. Hickmon, contained items that Mr. Velos was able to
identify as items stolen by the assailants. Thus, even absent Mr.
Funderburk's statements, there was substantial evidence the jury
could have relied on in finding all defendants guilty.
We do, however, believe that with the Funderburk statement
excluded it was error for the trial court to deny defendant
Hickmon's motion to dismiss the charge of felonious operation of a
motor vehicle to elude arrest in violation of N.C. Gen. Stat. § 20-
141.5(a) and (b) (2005). In reviewing a criminal defendant's
motion to dismiss, we examine whether there is substantial evidence
of the crime and of defendant's identity as the perpetrator. State
, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Evidence
is substantial if it is relevant and adequate to convince a
reasonable mind to accept a conclusion. State v. Robinson
N.C. 320, 336, 561 S.E.2d 245, 255 (2002) (quoting State v. Parker
354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)). In evaluating the
motion, the Court must consider the evidence in the light most
favorable to the State, give the State every reasonable inference,
and resolve any evidentiary contradictions in the State's favor.
, 355 N.C. at 336, 561 S.E.2d at 256 (internal quotations
In the instant case, we have ruled Mr. Funderburk's testimony
inadmissible and also restricted the use of Nathaniel Burch's
testimony to non-substantive uses. There was no direct evidenceintroduced that defendant Hickmon was operating the vehicle at the
time it was being pursued by Trooper Franze, and the trooper did
not identify defendant Hickmon as the driver. As noted by
defendant, Ms. Gaddy only testified that defendant Hickmon was the
driver when the five men left the trailer, but she did not testify
to any statements from the conversation held the next day that he
had been driving when the police were pursuing them. Given the gap
of several hours and an apparent robbery between the time she saw
defendants leave and when they allegedly fled from law enforcement,
it cannot be said that there was substantial evidence defendant
Hickmon was operating the vehicle at the time this offense
occurred. Accordingly, we reverse the trial court's ruling with
respect to this conviction.
(See footnote 4)
Defendant Hickmon also argues that the trial court erred in
failing to dismiss the charge of possession of a firearm by a felon
in violation of N.C. Gen. Stat. § 14-415.1 (Supp. 2004). Under the
standard described above, however, there was substantial evidence
for the issue to go to the jury because Mr. Velos identified
defendant Hickmon as one of the intruders and stated that he was in
possession of a firearm. Thus, the trial court properly allowed
this issue to go to the jury.
Finally, we consider defendants' remaining assignments of
error, which relate to the close of trial. All three defendants
allege that the jury instructions were fatally flawed. Although
there was no objection to the instructions below, defendants have
invoked plain error review of the jury instructions pursuant to
North Carolina Rule of Appellate Procedure 10(c)(4). On appeal,
defendants contend that the jury instructions could have been
understood by the jury to require conviction of all the defendants
on a certain charge if the jury decided to convict at least one of
the defendants. Similarly, defendants contend that the
instructions could have been interpreted to require the jury to
convict each defendant of all four armed robbery charges should it
choose to convict on at least one of these charges. The fact that
the instructions lacked the phrase present in the case of State v.
Barnes, 91 N.C. App. 484, 491, 372 S.E.2d 352 (1988) (holding that
the jury was not misled because the instructions included a
requirement that the defendants be judged completely separately
and absolutely independently of each other), aff'd as modified on
other grounds, 324 N.C. 539, 380 S.E.2d 118 (1989), does not mean
that the instructions in the instant case were thereby flawed.
Jury instructions must be considered as a whole and not in
isolated fragments. State v. Anderson, 350 N.C. 152, 179, 513
S.E.2d 296, 312, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326
(1999). A review of the jury instructions used in the instant case
does not lead us to conclude that they could reasonably have been
interpreted in the manner suggested by defendants. Specifically,the trial court's instructions stated that the State has the
burden of proving the identity of each defendant as the perpetrator
beyond a reasonable doubt and that the jurors must be satisfied
beyond a reasonable doubt that each defendant was the perpetrator
of the crime charged. The instructions also stated that the jury
must find beyond a reasonable doubt each element of the crime
charged. Moreover, as noted by the State, there was a separate
verdict sheet for each defendant and for each offense.
Accordingly, we find no error in the trial court's jury
Finally, defendant Peguse argues that it was error for the
trial court to sentence him as a Level II offender. The trial
transcript clearly indicates that defendant, through counsel,
stipulated to having a prior record level of two. As the State
correctly notes, a stipulation to prior convictions through defense
counsel will suffice to establish a defendant's offender level.
See State v. Alexander, ___ N.C. ___, ___, 616 S.E.2d 914, 918
(2005) (Where defense counsel's statement to the trial court
constituted a stipulation of defendant's prior record level
pursuant to N.C.G.S. § 15A-1340.14(f)(1) . . . defendant's sentence
was imposed based upon a proper finding of defendant's prior record
level.); State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738,
743 (2002) (statements made by the attorney representing defendant
in the present case may reasonably be construed as a stipulation bydefendant that he had been convicted of the charges listed on the
worksheet); see also N.C. Gen. Stat. § 15A-1340.14(f) (2005).
In conclusion, although it was error for the trial court to
admit the prior statements of Mr. James Funderburk as substantive
evidence and Detective Williams's testimony concerning those
statements, we do not find this error to have been prejudicial. We
do, however, vacate defendant Hickmon's conviction for felonious
operation of a vehicle to evade arrest.
No error in part; reversed in part.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
The State did not ask Mr. Velos whether he could identify
Defendants attempt to raise arguments concerning the
transcript's indication of her oath; the manner in which she
translated (e.g., changes of person); and the fact that she was
the translator for the police at the crime scene on the night in
On cross-examination, Ms. Gaddy made the statement that
all three of the defendants were talking about the same thing
and they were all agreeing to the same thing.
This conviction, however, was consolidated for
sentencing__along with his convictions for first-degree burglary
and possession of a firearm by a felon__with one of defendant
Hickmon's armed robbery convictions.
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