Appeal by defendant from judgments dated 20 December 2004 by
Judge W. Robert Bell in Mecklenburg County Superior Court. Heard
in the Court of Appeals 22 February 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Christine M. Ryan, for the State.
Gilda C. Rodriguez for defendant-appellant.
BRYANT, Judge.
Muhummad Jaaber (defendant) appeals judgments dated 20
December 2004 entered consistent with jury verdicts finding him
guilty of four counts of robbery with a dangerous weapon and one
count of felonious breaking and entering. For the reasons below,
we find no error.
Facts and Procedural History
Defendant was indicted on 3 February 2003 by a Mecklenburg
County Grand Jury for seven counts of robbery with a dangerous
weapon, one count of second degree kidnapping and one count of
felonious breaking and entering. Defendant and co-defendant JamalBullock were tried before a jury at the 13 December 2004 Criminal
Session of the Superior Court for Mecklenburg County, the Honorable
W. Robert Bell presiding. At the close of all the evidence, the
trial court dismissed the charge of second degree kidnapping and
one charge of robbery with a dangerous weapon.
On 17 December 2004, the jury returned guilty verdicts against
defendant as to the charge of felonious breaking and entering and
four of the charges of robbery with a dangerous weapon. The jury
found defendant not guilty of the two remaining charges of robbery
with a dangerous weapon. The trial court entered, consistent with
the jury's verdicts, Judgment and Commitment Orders dated 20
December 2004, sentencing defendant to two consecutive terms of
sixty-one to eighty-three months imprisonment.
On 14 December 2004, prior to the empaneling of the jury,
defendant requested in open court that the State provide him with
statements he believed should have been in the State's file.
Defendant requested any writings taken by Officers D.W. Hobson,
R.D. Boyce, and R.W. Searcy all of whom were involved in the police
investigation and possibly took statements from potential
witnesses. Defendant also requested any statements made by Silas
Mobley, one of the robbery victims, and Wandra Caldwell, a resident
of the home where the robbery occurred but who was not present at
the time of the robbery. Both Mobley and Caldwell were later
called as witnesses for the State and both testified they made
statements to investigating officers but had not seen the
statements since they were first taken. The trial court ordered Detective Arvin Fant, the
investigating officer in the case, to check his files and with the
other officers to determine if there were any missing statements.
Detective Fant sent e-mail messages to Officers Boyce and Hobson
and later contacted them directly, discovering they had no
additional notes or statements. There is no indication in the
record that Detective Fant ever contacted Officer Searcy.
Detective Fant also searched through “everything he knew to check”
including the file in the Records Office and could not find any
statements made by Mobley or Caldwell.
After further direction from the trial court, Detective Fant
questioned Mobley and obtained a description of the officer who
took Mobley's statement the day of the robbery. Detective Fant
questioned three other officers involved in the investigation who
matched the description given by Mobley and was unable to produce
Mobley's statement. The State admitted Mobley likely gave a
statement to an investigating officer, but the statement had been
lost. As to the statement Caldwell testified as having made, in
response to questioning by the trial court, Detective Fant stated
that a statement was probably not taken from Caldwell. In light of
the failure of the State to turn over any statements made by Mobley
or Caldwell defendant made two motions for a mistrial, which the
trial court denied. Defendant appeals.
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Defendant raises the issue of whether the trial court erred in
denying defendant's motion for a mistrial when the State was unableto provide defendant with two witness statements. Defendant argues
the State's failure to provide him with the two witness statements
is a violation of both Section 15A-501 and Section 15A-903 of the
North Carolina General Statues and the trial court's denials of his
motions for a mistrial were an abuse of the court's discretion.
Pursuant to Section 15A-501(6), a law enforcement officer
“[m]ust make available to the State on a timely basis all materials
and information acquired in the course of all felony
investigations. This responsibility is a continuing affirmative
duty.” N.C. Gen. Stat. § 15A-501(6) (2005). Under Section 15A-
903, “[u]pon motion of the defendant, the court must order the
State to: (1) Make available to the defendant the complete files
of all law enforcement and prosecutorial agencies involved in the
investigation of the crimes committed or the prosecution of the
defendant. The term 'file' includes . . . witness statements . . .
.” N.C. Gen. Stat. § 15A-903(a) (2005). If the trial court
determines the State has failed to comply with the discovery
requirements of Section 15A-903, the trial court may:
(1) Order the party to permit the discovery
or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing
evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without
prejudice, or
(4) Enter other appropriate orders.
N.C. Gen. Stat. § 15A-910(a) (2005). The trial court is not required to impose any sanctions.
However, prior to imposing any of the above sanctions, the trial
court must “consider both the materiality of the subject matter and
the totality of the circumstances surrounding an alleged failure to
comply” with the discovery requirements. N.C. Gen. Stat. §
15A-910(b) (2005). We note and acknowledge the recent additions to
the statutes governing police duties and criminal discovery
described herein (N.C.G.S. §§ 15A-501(6), 903 and 910(b)). We
further note that other than Section 15A-910(b), which requires
additional consideration by the trial court prior to imposing
sanctions, no mandatory procedures for violation of these statutes
were prescribed. “Because the trial court is not
required to
impose any sanctions for abuse of discovery orders, what sanctions
to impose, if any, are within the trial court's discretion.”
State
v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35 (1995) (emphasis
added) (citing
State v. Alston, 307 N.C. 321, 298 S.E.2d 631
(1983)). Further, “[a] mistrial is appropriate only when there are
such serious improprieties as would make it impossible to attain a
fair and impartial verdict under the law.”
State v. Blackstock,
314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985). “Whether to
grant a motion for mistrial is within the sound discretion of the
trial court, and its ruling will not be disturbed on appeal unless
it is so clearly erroneous as to amount to a manifest abuse of
discretion.”
McCarver, 341 N.C. at 383, 462 S.E.2d at 36 (citing
State v. Ward, 338 N.C. 64, 92-93, 449 S.E.2d 709, 724 (1994)). In the instant case, both Mobley and Caldwell testified that
they had given statements to investigating officers the night of
the robbery. Defendant was never given copies of these statements
and claims he was prejudiced thereby because he was unable to fully
cross-examine Mobley or Caldwell without them. Defendant argues
the first three sanctions allowed under Section 15A-910 were not
available remedies because the statements were never produced, and
therefore a mistrial or dismissal was warranted.
From the record before this Court it is apparent that the
State took appreciable action to locate the statements requested by
defendant. While it is of great concern that the State has
apparently lost at least one, if not two, of the statements from
witnesses regarding the crimes with which defendant is charged, in
light of the totality of the circumstances and the materiality of
the missing witness statements, we cannot conclude the trial court
abused its discretion by refusing to grant a mistrial in this case.
At trial, defendant had an opportunity to cross-examine both
Mobley and Caldwell about any statement they may have given to the
investigating officers. While Mobley was one of the robbery
victims, Caldwell was not even present during the robbery.
Caldwell testified she had never before seen defendant, and Mobley
did not identify defendant as a participant in the robbery in
either a pre-trial photographic lineup or in court.
The State, however, presented substantial evidence from other
witnesses of defendant's guilt. Brian Gregory, Michael Wallace,
and Victor Fybrace, three other victims of the robbery, eachidentified defendant in court as one of the two men involved in the
robbery. All three victims gave detailed testimony regarding
specific actions taken by defendant during the robbery. In
addition, Gregory identified defendant as one of the participants
in the robbery from a photographic lineup presented to him by
Detective Fant the night after the robbery. In light of the
evidence produced by the State and the materiality of the missing
witness statements, we cannot say the trial court's denial of
defendant's motion for a mistrial was an abuse of discretion. This
assignment of error is overruled.
No error.
Judges HUNTER and HUDSON concur.
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