State v Leary, (04-1560) 09/06/2005

Appeal by defendant from judgment entered 23 April 2004 by Judge William C. Griffin, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals 08 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., for the State.

M. Jason Williams, for defendant-appellant.

STEELMAN, Judge.

     Defendant was found guilty of robbery with a dangerous weapon and was sentenced to a minimum term of 64 months and a maximum term of 86 months.
    The State presented evidence tending to show that at approximately 12:30 a.m. on 9 August 2003, Ms. Mabel Lambert parked her vehicle in her driveway. As she prepared to exit her vehicle, a man stood at her door and pointed a gun in her face. The man demanded her money. Ms. Lambert gave the man a small change purse. A second man, whom she identified in court as defendant, appeared and grabbed her pocketbook. She called law enforcement and gave a description of the two men and the vehicle in which they were riding.    An officer with the Elizabeth City State University Police Department spotted a vehicle matching the description given by Ms. Lambert parked at an automated teller machine. Other officers arrived and initiated a stop of the vehicle, which was occupied by two males, identified as defendant and Derrick Leary, and two females. The officers also found on the floorboard of the vehicle a black change purse. An officer opened the change purse and found credit and identification cards in the name of Ms. Lambert. The officers searched the vehicle and found a pair of bolt cutters and a purse in the trunk. They also found a gun inside the spare tire wheel. Ms. Lambert identified the small change purse and the pocketbook as items taken from her by the perpetrators.
    By his first assignment of error, defendant contends the court erred by admitting into evidence a voluntary inculpatory statement allegedly made by defendant. We disagree.
    Officer Michael Lester of the Elizabeth City Police Department testified that he participated in the stop of the vehicle. While defendant sat in the back seat of Officer Lester's police vehicle, defendant asked him whether Marquita Foreman, one of the two women inside the stopped vehicle, would be going to jail. When Officer Lester responded affirmatively, defendant stated that Ms. Foreman “didn't have nothing to do with all this. She was sleeping the whole time.”
    Defendant argues the statement should have been excluded because the State failed to provide defendant with notice of this statement in violation of N.C. Gen. Stat. § 15A-903. This statuterequires a prosecutor, when ordered by the court upon a defendant's motion, to make available to the defendant, inter alia, statements made by a defendant which have been obtained during the investigation of an offense alleged to have been committed by the defendant. N.C. Gen. Stat. § 15A-903(a)(1)(2004). Defendant made a written request for discovery on 17 October 2003. In response to this request, the prosecutor provided defendant with Officer Lester's report in which he stated defendant's co-defendant, Derrick Leary, made the above statement. Defendant argues that because the report did not correctly attribute the statement to defendant, the prosecutor failed to comply with the statute.
    The imposition of sanctions for the State'e failure to provide statements to the defendant, including exclusion of the evidence, is within the discretion of the trial judge. State v. Braxton, 294 N.C. 446, 472, 242 S.E.2d 769, 784-85 (1978). “A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986). Furthermore, to obtain relief on appeal a defendant must show he was prejudiced by admission of a statement which was not disclosed. State v. Weeks, 322 N.C. 152, 172, 367 S.E.2d 895, 907 (1988).
    Here, the prosecutor did provide defendant with the statement although it was erroneously attributed to the co-defendant. Nothing in the record indicates that the prosecutor knew that thestatement was made by defendant instead of the co-defendant. Officer Lester was cross examined by defendant about incorrectly attributing the statement to his co-defendant. Defendant was positively identified by Ms. Lambert as one of the two men who robbed her and defendant was an occupant of a vehicle in which items identified as taken from Ms. Lambert were found. We find neither an abuse of discretion nor prejudice. This assignment of error is without merit.
    By his remaining assignment of error, defendant contends the court erred by denying his motion to dismiss at the close of all the evidence. We disagree.
    Upon a motion to dismiss, a court is required to determine whether there is substantial evidence of each essential element of the charged offense and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The court must consider all of the evidence actually admitted, whether competent or incompetent, in the light most favorable to the State. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    Defendant argues the evidence was insufficient to identify him as one of the perpetrators of the offense. We disagree. When a witness has “a reasonable possibility of observation sufficient to permit subsequent identification,” the credibility of theidentification testimony is for the jury to resolve and any doubt as to the identification does not justify the granting of a motion to dismiss unless the identification is inherently incredible given the physical conditions under which the observation is made. State v. Miller, 270 N.C. 726, 732, 154 S.E.2d 902, 906 (1967). Ms. Lambert positively identified defendant as one of the two men who robbed her. Ms. Lambert testified that she parked her vehicle in a brightly lighted area making it possible for her to “see everything” and that the perpetrators stood immediately beside her vehicle door. Further credibility to her identification testimony is provided by evidence of defendant's presence in a vehicle in which items belonging to Ms. Lambert were subsequently found shortly after they were taken. This assignment of error is without merit.
    NO ERROR.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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