An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1680

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 02 CRS 34228
RODRIQUES LOWELL CALHOUN

    Appeal by defendant from judgment entered 23 January 2004 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 August 2005.

    Attorney General Roy Cooper by Special Deputy Attorney General, Norma S. Harrell.

    Miles & Montgomery by Mark Montgomery, for defendant- appellant.

    ELMORE, Judge.

    Rodriques Calhoun (defendant) appeals his conviction for first-degree felony murder of Kamara Samuels (Samuels), nicknamed “Kala.” Defendant, nicknamed “Chico,” along with accomplice Deshune Bennett (Bennett), nicknamed “Worm,” shot Samuels in a house on 118 Maple Street during an apparent armed robbery. For the reasons contained herein, we remand defendant's case for a new trial.
    In the light most favorable to the State, defendant and Bennett were in Esther Williams's home on 118 Maple Street, which is part of a two unit duplex with 120 Maple, where Samuels regularly frequented to sell drugs. On the evening of 25 April 2002 Williams returned to her house to find one of her front porchchairs in front of 120 Maple. When she was moving it back she heard Samuels say something from inside 120 Maple. Williams knew that Samuels did not live next door but did sell drugs out of there. Over the time that Williams had known Samuels, he had always treated her with respect, and in turn she had let him use her phone, bathroom, and had made dinner for him occasionally.
    When Williams opened the door to enter her own home, she found defendant and Bennett sitting around drinking. She recognized defendant because he was the boyfriend of Latesha Gilchrist (Gilchrist), a neighborhood girl, and had been over to her house before. She did not recognize Bennett, and since neither defendant or Bennett were invited in, she asked them both to leave. Williams said she was going out on some errands and when she came back, they better not be there. She left, and on the way from the door to her car, Gilchrist, who was in the front yard, asked Williams for a ride. She agreed, and they both left.
    After some period of time driving, Williams realized she had forgotten her money at the house and headed back to get it. On her way back into the neighborhood several young girls came up to her car and said that someone had been shot at her house. She arrived at 120 Maple to find numerous people in the yard and quickly pushed her way into the house. The police had been called and Officer Lee Hartman (Hartman) of the Raleigh Police Department arrived first at the scene and came into the house on the heels of Williams.
    Hartman testified that he saw a black male on his side on the living room floor. Williams began talking to him and called himKala. Williams and Hartman determined that Samuels had been shot, and Williams asked Samuels who shot him. Hartman testified that, despite the raspy nature of his voice and low level at which he spoke, Samuels said, “Chico and Worm.” Williams attempted to confirm this statement with Samuels by asking him to squeeze her hand twice if “Chico” had shot him and once if he hadn't. Williams testified that Samuels squeezed her hand twice. She repeated the same procedure with “Worm” and got the same result. Shortly thereafter rescue personnel arrived and began treating Samuels.
    Hartman testified that Samuels was found in Williams's apartment wearing only a black T-shirt and boxers. He also testified that he found a pair of jeans and a wallet in the same room, several feet from the victim. The wallet had no identification or money in it.
    Albert Jones, Jr. (Jones) also testified regarding the events occurring on 25 April 2002. At that time he lived just one duplex down from Williams, at 114 Maple Street. He said that he was riding his bike back to his house when he saw Samuels walk over to 118 Maple from 120. Jones proceeded to tie up his bike and sit on the porch. He then heard a shot coming from Williams's place. He went around back to see if anything was going on and saw defendant come to the back door and gesture at him that he should return to the front. Jones did, but grabbed his own shotgun as he went through the house. After about five to fifteen minutes, defendant ran out of the house followed shortly thereafter by Bennett. When Jones saw Bennett leave the house, Jones fired the shotgun at him;the gun was loaded with birdshot. He testified that some of the pellets must have hit Bennett because he stumbled a bit as he was running.
    Following his shot at Bennett, Jones testified that he went over to Williams's home and saw Samuels on the floor without his pants on. He asked the gathering crowd to call the police and returned to his place to put away his shotgun. The police, and Williams, arrived just thereafter. Jones testified that he knew Samuels because he had assisted him in selling drugs. Upon being asked if Samuels was in the habit of carrying money on him during the time of the day that the shooting occurred, Jones answered affirmatively.
    Defendant took the stand in his own defense. He testified that he had gone to Maple street looking for marijuana. When he was at Williams's house, Bennett came in and the two began drinking some beer. He testified that after Williams left, Samuels came into the apartment and had words with Bennett. Bennett then began to pull out a .44 caliber pistol from his waistband and accidentally struck the coffee table as he was pulling it out. The gun went off and the shot struck Samuels in his lower abdomen, just above his groin. The State had previously shown that Samuels died from a hemorrhage caused by the bullet severing arteries in the area. Defendant then testified that he left the house, unaware that Bennett ever had a gun before he pulled it out. Defendant also presented evidence that Bennett was arrested the next day witha large amount of money on him and with .44 caliber bullets in his car.
    During the State's cross-examination of defendant, the State inquired about defendant's previous “election” not to make a statement to the investigating officer.
        Q: You didn't distribute [drugs] to lesser people so they could sell drugs?

        A: No.

        Q: And when Detective Blalock asked you if you'd like to have an opportunity to give a statement to tell what had happened that night at 118 Maple Street, you elected not to make a statement to her; is that right?

        A: Yes.

        Q: You didn't explain all these things that you're telling the jury today for the first time? You didn't think that was important?

        A: Did I think it was important?

        Q: Uh-huh.

        A: No, because the first thing she told me is that anything that I say would be held against me.

        Q: Well, sir, you told the jury today you've done absolutely nothing wrong.

        A: That's right.

        Q: Then why didn't you tell that to Detective Blalock?

        A: I didn't want to tell her that.

        Q: Didn't you think it was important?

        A: (Shakes head.)

        Q: I'm sorry?

        A: I just didn't want to tell her.
        Q: That you basically were just a witness to this -- to this murder?

        A: It wasn't a murder at the time.

    Later, as a rebuttal witness against defendant's testimony, the State called Latesha Gilchrist, defendant's girlfriend. Gilchrist attempted to invoke the Fifth Amendment. The trial court allowed a voir dire, during which Gilchrist testified that she had lied in Bennett's trial, which was held prior to defendant's. Upon being questioned by the State, she intermittently answered questions and pled the Fifth. The State took a recess to seek immunity for Gilchrist. Then, in the presence of the jury, the State questioned her about her relationship with defendant, her association with drugs, and $11,000.00 that she had testified previously belonged to her, Samuels, Bennett, and defendant. Gilchrist answered all questions by invoking the Fifth Amendment. Since she refused to answer, and was unavailable, the State sought admission of her previous testimony in Bennett's trial. It was introduced, and so was her testimony on voir dire, which was offered by defendant.
    In his closing statement to the jury, the assistant district attorney argued in part:
        [speaking about Williams and Jones] They swore to take an oath, and they answered every question I asked, every question [defense counsel] asked. They answered every question that was asked of them. Even Mr. Jones -- I asked him some pretty personal questions about drug use and allowing drugs to be sold in his house. Yes, sir, I did. Never equivocated, never tried to explain it away, not like Latesha Gilchrist, when we tried to ask her questions, “I take the Fifth. I'm not goingto answer.” That's his girlfriend who refused to answer questions in front of you, the jury.

The assistant district attorney made further remarks contrasting the State's witnesses with that of Gilchrist. The assistant district attorney also made references to these witnesses going to the police station and giving detailed statements to Detective Blalock.
        Chico . . . gave us his account. Did he give it that next day? If you hear his account, he had done not a thing wrong. By gosh, he was just a witness. He saw a terrible and tragic thing. He didn't shoot anybody. He didn't fight anybody. He just wanted some weed.

        So here it is the next day. You've had time to cool down. My gosh, terrible. The next day: “This is terrible. I got to tell somebody what happened. I did absolutely nothing wrong. I demand -- I want to talk to somebody. I'm going to turn myself in.” “Great.” Detective Blalock: “Okay. Let's hear it. What happened?” “Nothing. I got nothing to say.” Is that the action of a person that actually did nothing wrong? Does that make sense? Does that conform with what you know from your everyday affairs.

    Defendant appeals his conviction to this Court arguing, in part, that the trial court erred in: 1) allowing the cross- examination of why defendant did not make a statement to police and then arguing his silence was evidence of his guilt in closing; 2) denying defendant's motion to dismiss on the basis that the State failed to present sufficient evidence of a robbery; and 3) admitting Samuels's and Williams's remarks as dying declarations. We will address each in turn.
    Defendant argues that he is entitled to a new trial because the State used his silence as evidence of his guilt. Based on therecord before us, we agree with defendant. It is well settled that the state and federal constitutions provide defendant with a right to remain silent and be free of having the exercise of that silence used at trial to infer his guilt. See U.S. Const. amend. V; N.C. Const. Art. I, § 23; Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 98 (1976); State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001); State v. Hoyle, 325 N.C. 232, 236, 382 S.E.2d 752, 754 (1989); State v. Lane, 301 N.C. 382, 384, 271 S.E.2d 273, 275 (1980); State v. Shores, 155 N.C. App. 342, 348-49, 573 S.E.2d 237, 240-41 (2002), disc. review denied, 356 N.C. 690, 578 S.E.2d 592 (2003). Any statements that address defendant's silence are improper “if the jury would naturally and necessarily understand the statement to be a comment on the exercise of [defendant's] right to silence.” Ward, 354 N.C. at 266, 555 S.E.2d at 273 (internal quotations omitted). The State does not dispute these points but instead argues that defendant waived his right to review the issue by failing to object during the cross-examination or closing statement. Further, the State argues that if any error did occur it was harmless beyond a reasonable doubt.
    We agree with the State's waiver argument with regard to the cross-examination of defendant. There was no objection by defense counsel during the questions that allegedly infringe upon defendant's right to silence, and more importantly there is no specific assertion of plain error in defendant's brief. See State v. Wilson, 340 N.C. 720, 735, 459 S.E.2d 192, 201 (1995) (failure to object or allege plain error review regarding cross-examinationquestions waives appellate review of those issues); State v. Gardner, 315 N.C. 444, 446-47, 340 S.E.2d 701, 704-05 (1986) (discussing failure of defendant to object during cross-examination implicating right to silence); see also N.C.R. App. Pro. 10(b)(1) and 10(c)(4). However, our Supreme Court has previously addressed the State's waiver argument regarding closing statements, determining that review is not abandoned by a failure to object but instead the nature of the review is altered.
        Where, as in this case, the defendant failed to object to the prosecutor's comments during the closing argument, the question for this Court is 'whether the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu.' State v. Call, 353 N.C. 400, 416-17, 545 S.E.2d 190, 201 (2001).

Ward, 354 N.C. at 265, 555 S.E.2d at 273. In accord, we will review the prosecutor's remarks for gross impropriety.
    As we review the assistant district attorney's closing argument we do not look solely at the contested language, rather we “give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.” Ward, 354 N.C. at 265, 555 S.E.2d at 273 (internal quotations omitted). Further “only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” Id. (internal quotations omitted).    Evaluating the assistant district attorney's closing, it is apparent that witness credibility was at the forefront of the trial: the only evidence of a robbery motive came from the testimony of a drug user closely connected with the deceased, a drug dealer; and counsel explained that to try the devil, you had to go to hell to get your witnesses. The degree of the criminal homicide in this case hinged upon whether there was an underlying felony, and that was largely a credibility determination. The assistant district attorney, naturally, looked to capitalize on every point he could that would bolster the credibility of his witnesses over that of defendant's. Despite that being an appropriate use of a closing argument, we nonetheless determine that he went too far in commenting on one point: that being the defendant's silence.
    In a closing filled with bias toward witnesses that hide behind the Fifth Amendment and praise for those here who did answer questions and make statements, the State tarnished defendant's silence after he turned himself in and was Mirandized. The assistant district attorney went so far as to pose the question: “Is that the action of a person that actually did nothing wrong?” In the context of the State's argument and defendant's proposed defense that the shooting was an accident, this rhetorical question has only one purpose: to imply that defendant's silence means he's guilty. We hold this argument was so grossly improper that the trial court should have intervened ex mero motu. See Ward, 354 N.C. at 266, 555 S.E.2d at 273 (closing remarks included: “We knowhe could talk, but he decided just to sit quietly. He didn't want to say anything that would 'incriminate himself.'”); Hoyle, 325 N.C. at 236-37, 382 S.E.2d at 754 (closing remarks included: “. . . if somebody had struggled with you over a gun and had accidently shot themselves, don't you think . . . you would tell [the police when they asked]?”); Shores, 155 N.C. App. at 348, 351, 573 S.E.2d at 240, 242 (closing remarks included: “Ladies and gentlemen of the jury, ask yourself now [] why on earth would I wait until now to try to tell that story if I had that kind of story? Why would I do that?”).
    Further, we cannot determine beyond a reasonable doubt that the error was harmless, as the State suggests. At trial, defendant brought forth a defense that Bennett shot Samuels. He testified that he did not know Bennett even had a gun on him at the time Samuels came into the room. Defendant also introduced evidence that the day after the shooting police found Bennett with a large amount of money on him and .44 caliber bullets in his car. Defendant, on the other hand, turned himself in the day after the shooting. When weighing conflicting evidence, it goes without saying that credibility plays a large role in determining which way to tilt the scales. We cannot agree with the State that the error is harmless beyond a reasonable doubt, and must hold that the assistant district attorney's statements in cross-examination and closing were prejudicial, requiring a new trial.
    Since there are at least two additional assignments of error that may recur in defendant's new trial, we will address them now. First, defendant argues that Samuels's statement that defendant and Bennett shot him is not admissible as a dying declaration.   (See footnote 1)  See N.C. Gen. Stat. § 8C-1, Rule 804(b)(2) (2003). Defendant contends that the statements were inadmissable because 1) Samuels did not subjectively believe he was dying, or 2) because of the fact that he could have had said “Chico and Worm” as a form of retribution. There was testimony by Williams, several police officers, emergency responders, and a medical examiner that Samuels was bleeding out after a gunshot wound to the abdomen which left his intestines exposed. Further, although defendant's theory of retribution may be valid, it is ripe for cross-examination via Rule 806, it does not weaken the admissible nature of the declaration. See N.C. Gen. Stat. § 8C-1, Rule 806 (2003) (“When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.”). The trial court did not abuse its discretion in admitting this statement.
    Second, defendant argues that the trial court erred in denying his motion to dismiss because the State failed to provide sufficient evidence of a robbery. In the light most favorable to the State, the State's evidence showed that Samuels left 120 Mapleand came next door to Williams's home. When witnesses and police arrived, he was found wearing no pants. Samuels's pants were several feet from him near the kitchen door with his wallet laying beside them. The wallet, upon inspection, contained no money. Jones testified that defendant typically carried money with him.
        STATE: You told us a little while ago that you had a relationship with [Samuels] where you allowed him to sell drugs out of your sister's house. How often was he over there in the Maple Street area back in this time frame, back in April and March 2002?

        JONES: Mostly three or four days out of a week.

        STATE: And back in that time frame when you knew [Samuels] and had this relationship with him, when he was in the Maple Street area, did he have drugs and money on him?

        JONES: Sometimes he wouldn't have no drugs, but he'd have money.

        STATE: Anytime that you know of when he was over there where he didn't either have a) drugs or b) money?

        JONES: Sometimes, yes?

        STATE: How often?

        JONES: Maybe once or twice a week he would come by.

        STATE: Do you know of your own personal knowledge whether or not the day that [Samuels] was over there -- whether he had any drugs or money on him?

        JONES: I'm not sure but the time that he was over there I'm quite sure --

        DEFENSE: Objection.

        JONES: -- he did.

        COURT: Sustained.
        DEFENSE: Objection

        COURT: Sustained.

        STATE: You were about to tell us about other times when he was over there.

        JONES: At that time of day that he was there, I'm quite sure he did.

        DEFENSE: Objection. Motion to strike.

        COURT: Sustained. Motion to strike allowed.

        STATE: You talked about the time of day. What's the significance about the time of day, Mr. Jones?

        JONES: Around that time of day he was coming over, he would be getting ready to break it down and sell it.

        STATE: Is that what his normal custom and habit was?

        JONES: Yes, it was.

        STATE: So, at that time -- and what time of day are we talking now?

        JONES: Around 3:30, four o'clock, five.

        STATE: Late afternoon?

        JONES: Yes.

        STATE: So in those times of day when Mr. -- when [Samuels] was there, he would have drugs and money on him?

        JONES: Yes.

Based upon this testimony and the fact that Samuels's wallet was found without money, the State contended at trial that Samuels's death occurred during the perpetration or attempted perpetration of a robbery.    Despite the limited evidence suggesting a robbery, there is precedent supporting submission of felony murder to the jury based on Jones's testimony and the circumstances in which Samuels was found. The cases of State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001); State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993); and State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991), deal with similar circumstances supporting first-degree felony murder. In Quick a seventy-eight-year-old disabled victim of a vicious stabbing was found in his home on the floor with his billfold laying nearby. Id. at 8, 405 S.E.2d at 184. There was testimony at trial by several witnesses that the victim received government checks near the first of the month, typically cashed them, and usually carried around a large amount of money made up of mostly one hundred dollar bills. Id. at 8-9, 405 S.E.2d at 184. There was also testimony that prior to the day of the stabbing, defendant borrowed money in small amounts for cigarettes and beer. Then on the day after the stabbing, defendant was seen with a large amount of money, including a one hundred dollar bill. Id. at 20, 405 S.E.2d at 191. The Court concluded that this evidence was sufficient to support that a robbery had taken place.   (See footnote 2) 
    In Palmer the victim was found stabbed and shot to death in her home. Defendant, the victim's son, confessed to being in the house and stabbing his mother after he wrestled a knife away fromher when she lunged at him. Palmer, 334 N.C. at 107, 431 S.E.2d at 173. He also confessed to shooting her after she crawled towards him stating that she would get him. Id. There was also evidence that defendant “needed money to help him avoid prison on an embezzlement charge and was angry with his mother for not helping him.” Id. The victim's sister testified that “she was familiar with the decedent's habit of keeping money and she always kept on her person from twenty to forty dollars.” Id. at 112, 431 S.E.2d at 176. In finding the testimony admissible as Rule 406 habit evidence, the Court said:
        We believe the custom of always having money on her person constituted a habit. If the definition in the commentary [to Rule 406] is to be used, we believe keeping at all times a sum of money is a response to the situation of whether or not a person keeps money on his or her person at all times.

Id. The Court went on to affirm a felony murder conviction on the basis that the victim was in the habit of carrying money and when found, her “purse had been emptied and there was no money in it[,] [and] [a] search of the apartment revealed no money . . . .”   (See footnote 3)  Id.
    In Fowler, the victim was found in the lobby of a Howard Johnson's Motel with his wallet next to him; the wallet contained no money. Fowler, 353 N.C. at 603-04, 548 S.E.2d at 689-90. The hotel clerk was shot but not killed when he could not providedefendants with access to the safe. Id. He testified that defendants robbed the hotel cash drawer of its money. Id. at 605, 548 S.E.2d at 690. Defendant moved to dismiss the count of robbery against the victim, a hotel patron, claiming there was insufficient evidence that he was robbed. The Court affirmed the trial court's denial of the motion, stating that
        [t]he state's evidence showed that [the victim] habitually carried cash in his wallet. Evidence of a habit can be used to prove an element of a criminal offense. . . . The state's evidence also showed that [the victim's] wallet, business cards, and birth certificate were lying by his side at the scene of the crime. The wallet contained no money.

Id. at 621-22, 548 S.E.2d at 700. The Court relied on Quick and Palmer in finding there was sufficient evidence to support the robbery charge and thus first-degree murder.
    Here, the State showed that Samuels was found in his neighbor's house with his pants several feet from him. Although there was no testimony that Samuels was wearing pants when he entered Williams's home, it is a reasonable inference. Thus, at some point in time, Samuels's pants were removed and his wallet was taken out of the pocket. Jones also testified that based on Samuels's habits, he should have had money on him at the time he was shot.   (See footnote 4)  Thus, reading our Supreme Court's decisions in Quick,Palmer, and Fowler, this evidence would be sufficient to present the crimes of either attempted robbery or robbery to the jury as an underlying felony for first-degree felony murder. Defendant's assignment of error is overruled.
    We have reviewed defendant's additional assignments of error and because they are meritless and not likely to occur again at trial, we do not address them. As the State overstepped its bounds in arguing that defendant's post-Miranda silence supported his guilt, we order a new trial.
    New Trial.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Judge TIMMONS-GOODSON concurred in this opinion prior to 31 October 2005.
    Report per Rule 30(e).


Footnote: 1
     According to defendant's brief, he only argues about the actual verbal statement by defendant, rather than Samuels squeezing Williams's hand in response to a question. Thus, we make no assertions as to the validity of that intentional assertion as a dying declaration.
Footnote: 2
     In Quick, there was also detailed testimony regarding the knife used, that one similar was sharpened for defendant earlier, and that defendant said in jail he had killed an old man for his money.
Footnote: 3
     In Palmer, the State also contended that not only had money been taken, but the knife and gun used in the attack belonged to the deceased and were also taken. Defendant essentially confessed to taking the gun, claiming he wrapped the gun and knife in a towel and took them with him after the attack. Thus, there was additional evidence suggesting robbery.
Footnote: 4
     Defendant makes no argument that Jones's testimony was insufficient for the trial court to make a determination of whether habit had been established under the Rule. See N.C. Gen. Stat. § 8C-1, Rule 406 (2003); Crawford v. Fayez, 112 N.C. App. 328, 435 S.E.2d 545 (1993) (discussing habit evidence under Rule 406). Without any argument on this point, and the Statecontending it met any burden placed on it, we will assume Jones's testimony is habit evidence under Rule 406.

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