STATE OF NORTH CAROLINA
v. Cumberland County
No. 03 CRS 68677
TRECO WHITEHEAD
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
Geoffrey W. Hosford for defendant-appellant.
MARTIN, Chief Judge.
Treco Whitehead (“defendant”) was indicted on five counts of
robbery with a dangerous weapon
. A jury returned a verdict of
guilty of one count of robbery with a dangerous weapon, and
defendant was sentenced to 103 to 133 months imprisonment.
The evidence pertinent to this appeal tended to show:
On 5
August 2003, Lamont Braithwaite was working as a clerk for the
Quick Stop Food Mart. Braithwaite was working the second shift,
from 3 p.m. to 12 a.m., along with his co-worker, Peggy Munden. At
around 7:30 p.m., a man approached the counter to buy a pack of
gum. As Braithwaite opened the register to give the man his
change, the man pulled out a gun, pointed it at him, and asked forthe money in the register. Braithwaite gave the man approximately
$45.00. As the man left the store, he passed Munden and told her
to “[h]ave a nice day.” Braithwaite called Munden back into the
store and told her that they had just been robbed. Braithwaite
then called the police. Braithwaite described the robber as a
black man with a medium build, about five feet ten or eleven inches
tall, wearing a hat and a shirt with vertical blue and white solid
colors. He also noticed that the robber's teeth “were kind of on
the rotten side.”
Braithwaite picked defendant out of a photographic line-up.
At trial, Braithwaite identified defendant as the man who robbed
the Quick Stop Food Mart. Additionally, defendant was ordered to
stand before the jury and show his upper and lower teeth.
Braithwaite observed the defendant's teeth in the court room and
testified that he recognized defendant's teeth from the robbery.
Munden also identified defendant in court, testifying that she was
“100 percent sure” that defendant was the man that walked past her
after the robbery.
On 11 August 2003, DeeLynn Andrews was working at Pantry Store
3142. Andrews testified that at around 10:30 p.m., defendant
approached her register and asked for a pack of cigarettes. When
she opened the register to get defendant his change, he pointed a
gun at her and she handed him the money. Defendant then told her
to “[h]ave a nice day” and left the store. Andrews described the
robber as being approximately five feet ten or eleven inches tall,
weighing about 165 or 170 pounds, and wearing a black and whitestriped golf shirt, a black or dark blue hat with a white emblem on
it, and dark pants. Andrews identified a photograph of the
defendant about ten days after the robbery, and identified
defendant in court as the man who robbed her store.
On August 27, 2003, Leilani Willis was working as a cashier at
the Quick Stop Food Mart. Willis testified that, at around 1:15,
a man approached the register to buy a pack of gum. When Willis
opened the register to give the man his change, the man put a knife
to her belly and told her to “Give me all the money out of the
register.” Willis gave the man somewhere between $50 and $100.
Willis described the robber as a black male with a medium build,
“scruffy” like he needed a shave, about five feet eight inches tall
and weighing about 150 pounds. The man was wearing a dark blue
baseball cap, black shades, a shirt with “big blocks” of blue and
white stripes, and dark colored jeans. Willis was unable to
identify the robber, either in a lineup or at trial.
The State filed a motion seeking to join for trial robberies
allegedly committed by defendant on 5, 10, 11 and 27 August and 1
September 2003. Prior to trial, the State declined to proceed on
the charge relating to the 10 August 2003 robbery. At the close of
the State's case, the court dismissed the charge relating to the
alleged robbery on 1 September 2003. Defendant was convicted
solely of the robbery with a dangerous weapon of Lamont
Braithwaite.
Defendant was sentenced to a term of 103 to 133
months imprisonment.
Defendant appeals.
Defendant first argues that the trial court erred
by denyinghis requested jury instructions on the presumption of innocence and
his right not to testify. Prior to trial, defendant proffered the
following special preliminary jury instruction regarding the
presumption of innocence:
The Defendant has entered a plea of not
guilty and, by his plea, he has answered and
denied the allegations in this case. He has
done all the law requires of him. He has no
burden or duty or responsibility to prove
anything at all with regard to these
allegations.
Under our system of justice, a defendant
who pleads not guilty is not required to prove
his innocence; he is presumed to be innocent.
This presumption of innocence remains with him
throughout these proceedings unless and until
the jurors selected to serve in this case are
convinced from the facts and the law beyond a
reasonable doubt that the State has proven the
defendant's guilt.
The burden of proof rests entirely upon
the State of North Carolina to prove that the
defendant is guilty beyond a reasonable doubt.
In effect, while this case is entitled the
State of North Carolina versus Treco
Whitehead, the defendant is not on trial here.
What is on trial is the State's case. The
State, and the State alone, has the burden of
proof.
As I have said, the State's burden is to
prove the guilt of the defendant beyond a
reasonable doubt, not beyond all doubt or any
shadow of a doubt, but proof beyond any doubt
based upon reason and common sense. A
reasonable doubt is a doubt based upon reason
and common sense, arising out of the evidence
presented in a particular case, or the luck of
insufficiency as the case may be. Proof beyond
a reasonable doubt is proof that fully
satisfies or entirely convinces the jury of a
defendant's guilt.
The mere fact that the defendant has been
charged is no evidence of guilt. A charge is
simply the mechanical means by which theprocess is begun.
If the State meets its burden of proof,
that is, if the State proves that the
defendant is guilty beyond a reasonable doubt,
it would be the duty of the jury to say by its
verdict that the defendant is guilty. On the
other hand, if the State fails to meet its
burden of proof, the presumption of innocence
would remain in effect and the defendant would
be entitled to a verdict of not guilty.
. . .
Finally, as I have previously instructed
you, the defendant in this case has entered a
plea of not guilty to the pending charges. He
has answered the allegations by that plea - he
has done all the law requires of him. The
State of North Carolina has the burden of
proving that the defendant is guilty beyond a
reasonable doubt. The state must prove each
and every element of the crime, or crimes,
charged beyond a reasonable doubt. I will, at
a later time, give you more detailed
instructions on the law that applies to this
case.
The trial court denied the request, stating that the instructions
were “similar to what I usually give.” The court then instead gave
the following preliminary instruction regarding the presumption of
innocence:
As I have indicated to you, the defendant
has entered pleas of not guilty. Under our
system of justice, a defendant who pleads not
guilty is not required to prove his innocence;
he is presumed to be innocent. This
presumption remains with a defendant
throughout the trial until the jury selected
to hear the case is convinced from the facts
and the law beyond a reasonable doubt of the
guilt of defendant.
The burden of proof is on the state to
prove to you that the defendant is guilty
beyond a reasonable doubt. A reasonable doubt
is not a vain or a fanciful doubt. It is a
doubt based on reason and common sense arisingout of some or all of the evidence that has
been presented or the lack or insufficiency of
the evidence as the case may be. Proof beyond
a reasonable doubt is proof that fully
satisfies or entirely convinces you of the
defendant's guilt.
There is no burden or duty of any kind on
the defendant. The mere fact that he has been
charged with a crime is no evidence of guilt.
A charge is merely the mechanical or
administrative way by which a person is
brought to a trial.
If the state proves guilt beyond a
reasonable doubt, then the function of this
jury by its verdict is to say “guilty.” If
the state fails to prove guilt or if you have
a reasonable doubt, it is then your duty to
say “not guilty.”
Defendant also proffered the following special jury
instruction prior to their deliberations regarding the presumption
of innocence and his decision not to testify:
The defendant in this case has not testified.
You will recall that I have instructed you
that the defendant is presumed to be innocent.
In other words, you must accept as being true
that the fact that the defendant is innocent
unless and until the state proves the
contrary.
Consistent with the presumption of innocence
is the fundamental principle the defendant has
no duty, no responsibility, no burden of
proving anything with regard to the
allegations in this case.
I further instruct you the defendant is
absolutely entitled to rely on this
presumption of innocence. The State of North
Carolina gives this privilege to anyone who is
accused. This same law also assures him that
his decision to rely upon this presumption of
innocence, that is, his decision not to
testify, creates no presumption against him.
Therefore, I instruct you that his silence,
his reliance upon the presumption of innocence
is not to influence your decision in any way.The trial court again denied the defendant's request and instead
instructed the jury that:
The defendant has entered pleas of not guilty
to each of the charges. The fact that he has
been charged is no evidence of guilt. Under
our system of justice, when a defendant pleads
not guilty, he is not required to prove his
innocence; he is presumed to be innocent. The
state must prove to you that the defendant is
guilty beyond a reasonable doubt.
. . .
. . . In this case, the defendant has not
testified. The law of North Carolina gives
him this privilege. The same law also assured
him that his decision not to testify creates
no presumption against him; therefore his
silence is not to influence your decision in
any way.
Defendant contends that the trial court's instructions were
inadequate.
After careful review of the record, briefs and contentions of
the parties, we find no error.
Our Supreme Court has stated that:
A trial court is not required to give a
requested instruction in the exact language
prayed for. If a requested instruction is
correct in law and supported by the evidence,
the court, “while not required to parrot the
instructions 'or to become a mere judicial
phonograph for recording the exact and
identical words of counsel,' must charge the
jury in substantial conformity to the prayer.”
Whether the trial court instructs using the
exact language requested by counsel is a
matter within its discretion and will not be
overturned absent a showing of abuse of
discretion.
State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369
(1988)(citations omitted). In the instant case, as in Herring,
“the record discloses that the trial court instructed the jury insubstantial conformity with the defense counsel's request.” Id.
Moreover, the trial court's instructions were in accordance with
the law. The court accurately charged the jury regarding the
presumption of innocence, the burden of proof, and the defendant's
right not to testify. We hold there was no abuse of discretion.
Defendant next argues that the trial court erred by allowing
the State's motion for joinder.
Defendant asserts that the
robberies here did not have a transactional connection and the
State's evidence did not show they were part of a single scheme or
plan. We are not persuaded.
This Court has stated that:
Two or more offenses may properly be joined
for trial if the offenses are “based on the
same act or transaction or on a series of acts
or transactions connected together or
constituting parts of a single scheme or
plan.” This Court has held that in ruling
upon a motion for joinder, a trial judge must
utilize a two-step analysis: (1) a
determination of whether the offenses have a
transactional connection and (2) if there is a
connection, a consideration of whether the
accused can receive a fair hearing on the
consolidated offenses at trial. The motion to
join is within the sound discretion of the
trial judge, and the trial judge's ruling will
not be disturbed absent an abuse of
discretion. However, if there is “no
transactional connection, then the
consolidation is improper as a matter of law.”
. . . . In determining whether offenses are
part of the same series of transactions, the
following factors must guide the court: “(1)
the nature of the offenses charged; (2) any
commonality of facts between the offenses; (3)
the lapse of time between the offenses; and
(4) the unique circumstances of each case.”
State v. Simmons, 167 N.C. App. 512, 516, 606 S.E.2d 133, 136-37(2004)(emphasis in the original)(citations omitted), disc. review
denied, 359 N.C. 325, 611 S.E.2d 844 (2005). In the case sub
judice, we find there was a sufficient forecast of evidence for the
trial court to determine that the offenses were part of a common
scheme or plan. The allegations all pertained to armed robberies
of convenience stores in Cumberland County between 5 August and 1
September 2003. The witnesses all gave similar physical
descriptions of the suspect. In each robbery, the robber feigned
making a purchase and then robbed the clerk while the cash register
drawer was open. It even appears that the robber wore identical
shirts in the 5 August and 27 August 2003 robberies.
Having determined that there was a sufficient transactional
connection to justify joinder, the next issue for the Court to
consider is whether defendant was deprived of a fair hearing by
joinder of the charges. In determining this issue, this Court has
stated the following:
we are mindful that “the question posed is
whether the offenses are so separate in time
and place and so distinct in circumstances as
to render a consolidation unjust and
prejudicial to an accused.” In the context of
joinder of charges, this Court has explained
that “while the admissibility of [the]
evidence pursuant to Rule 404(b) is not
conclusive evidence of the absence of
prejudice, it is a factor that we may
consider.”
Simmons, 167 N.C. App. at 517, 606 S.E.2d at 137 (citing State v.
Bowen, 139 N.C. App. 18, 28, 538 S.E.2d 248, 254 (2000))(emphasis
in original). Here, if the offenses had not been joined, evidence
of the separate robberies would have been admissible pursuant toRule 404(b) for the purpose of showing a common scheme.
Furthermore, we note that the jury was instructed to consider the
charges separately, and there were separate verdict sheets for each
charge. “We have long held that a jury is presumed to follow the
instructions given to it by the trial court.” State v. Wiley, 355
N.C. 592, 637, 565 S.E.2d 22, 52 (2002)(citations omitted), cert.
denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Thus, we conclude
that defendant was not deprived of a fair hearing, and the trial
court did not abuse its discretion by allowing joinder of the
charges. Accordingly, we hold that defendant had a fair trial,
free from prejudicial error.
No error
.
Judges BRYANT and GEER
concur.
Report per Rule 30(e).
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