Appeal by defendant from a judgment entered 14 June 2005 by
Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard
in the Court of Appeals 7 June 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General H. Dean Bowman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant.
BRYANT, Judge.
Cameron Jerod Blair (defendant) appeals from a judgment
entered 14 June 2005 consistent with a jury verdict convicting him
of first-degree murder, possession of a firearm by a felon and
possession of a stolen vehicle. The charges were consolidated and
defendant was sentenced to life imprisonment without parole.
The State's evidence showed: at approximately 3:30 p.m. on 9
October 2003, the body of sixteen-year old Joseph Mendoza was found
dead lying in the middle of a path in Campbell Creek Park in
Charlotte. Mendoza's pockets were emptied and a .380 caliber shell
casing was found approximately four feet from his body. The
autopsy revealed Mendoza died as a result of a gunshot wound to the
back of the head fired from two or more feet away. At approximately 7:00 p.m. on the night of 9 October, the
police went to Brenda Hollis' home to look for her fourteen-year-
old niece and defendant's girlfriend, Kyjai Ferguson, who had been
reported missing by her mother. A white Nissan was parked in the
driveway. The police entered the Hollis home looking for Kyjai and
defendant. Defendant hid in a closet and the officers who searched
the house did not find him. After the police left with Kyjai and
Yolanda, her cousin, defendant hid in the attic. At the law
enforcement center, officers interviewed Kyjai and Yolanda.
According to Kyjai, while in the car headed to the park,
defendant asked Mendoza if he wanted to die. When they got to the
parking lot, Kyjai stayed in the car and defendant and Mendoza
walked towards the park. A couple of minutes later, defendant came
running back nervous and shaking and with a silver .380 caliber gun
in his pocket. When Kyjai asked about Mendoza, defendant said they
were chased by a dog and were separated. Kyjai and defendant left
the park without Mendoza and went to the hotel room of Sean, a
fellow gang member. Defendant and Sean talked outside the presence
of Kyjai and both returned to the room acting nervous and Sean was
angry. After they left Sean's hotel room, Kyjai asked defendant
“why did [you] do that to [Mendoza]”, defendant replied that they
were not getting along that much.
According to Kyjai's cousin, Yolanda, defendant said he and
the “Blood” (Mendoza) were in the park. Defendant kept putting the
gun to Mendoza's head and when he cocked the gun, Mendoza startedrunning, and defendant shot Mendoza in the back of the head. After
Mendoza died, defendant took $120 from his pocket.
At approximately 10:30 p.m. on 9 October 2003, officers
returned to the Hollis home because of a report that the white
Nissan parked in the driveway had been recently stolen. A blue
bandana associated with the gang referred to as the “Crips” was on
the Nissan's hood when the officers arrived. The car was removed
from the premises and searched. Police found clothing, assorted
papers, a cartridge casing and a box containing twenty-nine live
rounds of .380 caliber ammunition in the car. They also found a
black handled silver colored knife and a .380 caliber automatic
pistol in the car. Defendant's fingerprints were found on the
rearview mirror and on the Nissan's hood. At approximately 2:30
a.m. on 10 October 2003, officers returned to the Hollis home for
a third time because they were told defendant was in the attic.
Officers found defendant, handcuffed him, and found a key to the
Nissan in his pocket.
At the law enforcement center defendant was read his rights.
He was informed that his girlfriend and her cousin had indicated he
was involved in a homicide. Defendant signed a waiver of rights
form after he asked whether he would have to “sit here and wait
[for a lawyer]”, and was told that he would be appointed counsel
“at some point.” Defendant initially denied having anything to do
with the homicide. Later he told officers that he, a friend named
Sean, and Mendoza all went to the park; that Sean and Mendoza
walked off together. When Sean and Mendoza did not return,defendant drove to a nearby apartment complex and slept in the car
for a couple of hours. Defendant returned to the park and
retrieved a .380 caliber handgun from the location in which they
previously had left drugs. He picked up Kyjai and drove her to the
Hollis home. Defendant, a professed member of the “Crips” gang,
admitted telling Yolanda that he murdered a “Blood” because he
wanted people to make him out to be a bigger man. Defendant said
he picked the Nissan up from Sean and had paid $180 to use it and
would bring it back the next day.
Defendant testified at trial he did not kill Mendoza, did not
steal money from him by using a deadly weapon, and did not know
that the Nissan he had been driving was stolen. He admitted that
he was a convicted felon and that he had possessed a gun on at
least one occasion. Defendant appeals.
_________________________
Defendant raises three issues on appeal: whether the trial
court erred in (I) instructing the jury as to defendant's prior
conviction; (II) admitting the testimony of Kyjai that defendant
“killed [Mendoza]”; and (III) admitting defendant's statements made
to law enforcement after he invoked his right to counsel.
I
Defendant first argues the trial court committed plain error
in instructing the jury as to defendant's prior conviction for
possession of a stolen vehicle. Defendant alleges the trial court
gave a contradicting and erroneous instruction such that defendant
was prejudiced. However, defendant did not object to the trialcourt's jury instructions; therefore we review the instructions for
plain error.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983).
“In order to rise to the level of plain error, the error in
the trial court's instructions must be so fundamental that (i)
absent the error, the jury probably would have reached a different
verdict; or (ii) the error would constitute a miscarriage of
justice if not corrected.”
State v. Holden, 346 N.C. 404, 435, 488
S.E.2d 514, 531 (1997),
cert. denied, 522 U.S. 1126, 140 L. Ed. 2d
132 (1998). “[T]he charge of the court must be read as a whole .
. ., in the same connected way that the judge is supposed to have
intended it and the jury to have considered it[.]”
State v.
Wilson, 176 N.C. 751, 754-55, 97 S.E. 496, 497 (1918). “It will be
construed contextually, and isolated portions will not be held
prejudicial when the charge as [a] whole is correct. If the charge
presents the law fairly and clearly to the jury, the fact that some
expressions, standing alone, might be considered erroneous will
afford no ground for reversal.”
State v. Nicholson, 355 N.C. 1,
59, 558 S.E.2d 109, 147 (2002). Further, an instructional error
will not be deemed prejudicial when other evidence against
defendant is overwhelming.
State v. Williams, 355 N.C. 501, 586,
565 S.E.2d 609, 658 (2002),
cert. denied, 537 U.S. 1125, 154 L. Ed.
2d 808 (2003).
At various times during the trial, the trial court instructed
the jury that evidence of or evidence underlying defendant's prior
conviction could be used in one of three ways _ evidence of intent;impeachment; and as an element of the offense of possession of a
firearm by a convicted felon. The State first introduced evidence
of defendant's previous offense of possession of a stolen vehicle
through the testimony of Detective Spaulding, who testified about
the facts underlying defendant's prior conviction, and not that
defendant had been convicted. Defendant, found with the keys to
the Nissan in his pocket, told Detective Spaulding defendant
thought the vehicle was stolen but he drove it anyway. Before
Detective Spaulding went into detail about his interaction with
defendant on that occasion, the trial court gave the jury a
limiting instruction as to the evidence stating:
Members of the jury, this evidence is being
received for the limited purpose of
establishing that the defendant had the intent
to possess a vehicle which had been stolen and
also his knowledge that the vehicle was stolen
concerning the case which you are now trying.
This is evidence of a prior case.
It is received for that very limited purpose
of the State attempting to establish that the
defendant had the intent to possess the
vehicle and the knowledge that the vehicle was
taken.
This evidence should be considered by you for
no other purpose than what I have just
instructed you.
At the conclusion of Detective Spaulding's testimony, the trial
court again reminded the jurors that the evidence was admitted for
the specific purpose of establishing defendant's intent. This
testimony was properly admitted pursuant to N.C. Rules of Evidence,
Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005).
Detective Spaulding's testimony was more than sufficient to supportan inference of defendant's knowledge and intent in the present
case.
See State v. Renfro, ___ N.C. App. ___,___, 621 S.E.2d 221,
225 (2005) (evidence pertaining to the underlying facts and
circumstances of defendant's prior convictions were properly
admitted solely for the limited purpose of showing defendant had
the intent and knowledge necessary for the charge). Evidence as to
defendant's prior conviction _ the actual Judgment and Commitment -
was introduced later in the trial to establish an element of the
offense of possession of a firearm by a felon.
During the final charge to the jury, the trial court
instructed the jury it could consider the evidence of defendant's
prior conviction for impeachment purposes:
When evidence has been received that at an
earlier time the defendant was convicted of a
criminal charge you may consider this evidence
for one purpose only. If considering the
nature of the crime you believe that this
bears on truthfulness then you may consider it
together with all other facts and
circumstances bearing upon the defendant's
truthfulness in deciding whether you will
believe or disbelieve his testimony at trial.
It is not evidence of the defendant's guilt in
this case.
Also during its final charge the trial court instructed the
jury that defendant's prior conviction could also be used to
establish an element of the offense of possession of a firearm by
a felon.
The defendant has been charged with possessing
a handgun after having been convicted of a
felony. For you to find the defendant guilty
of this offense the State must prove two
things beyond a reasonable doubt: First, that
the defendant was convicted of a felony in
Mecklenburg County. Second, that thereafterthe defendant possessed a handgun.
If you find from the evidence beyond a
reasonable doubt that the defendant was
convicted of a felony in Mecklenburg County
and that the defendant possessed a handgun it
would be your duty to return a verdict of
guilty. If you do not so find or have a
reasonable doubt as to one or more of these
things it would be your duty to return a
verdict of not guilty.
Defendant acknowledges the trial court's instructions were correct
as given, but argues that if the jurors considered his prior
conviction only for the purpose of determining his credibility,
insufficient evidence remained to prove that he was a convicted
felon. However, in addition to the State's introduction of
defendant's prior conviction, defendant testified on direct and
admitted that he was a convicted felon and that he possessed a
firearm on at least one occasion.
Moreover, the evidence against defendant for possession of a
stolen vehicle was overwhelming. Defendant had told Yolanda the
Nissan was his mother's car; however defendant paid Sean to use the
car daily. Yolanda testified she and defendant had installed a
stereo in the Nissan. Kyjai testified she and defendant stayed in
the car overnight on some occasions. They both kept personal
belongings and clothes in the car. When defendant was arrested,
the key to the Nissan was found in his pocket. Defendant's
fingerprints were found inside the car and the murder weapon was
found inside the driver's door pocket. Given this evidence, there
is no reasonable possibility the outcome of the trial would have
been different. This assignment of error is overruled.
II
Defendant next argues the trial court erred in admitting the
testimony of Kyjai that defendant “killed [Mendoza]” because it was
inadmissible hearsay and a violation of
Crawford v. Washington, 541
U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004). Defendant contends the
testimony was not based on Kyjai's personal knowledge, but rather
hearsay statements based on what Sean told her about defendant. We
disagree.
Kyjai's complete statement to the police, including statements
made by Sean to her, was initially presented to the trial court in
pre-trial hearings. Defense counsel stated that he may have
objections to certain hearsay statements, but that he would address
those objections as they arose during trial. When Kyjai's
statement was introduced at trial, a redacted version was admitted,
which omitted Sean's statement to Kyjai that defendant had killed
Mendoza. Kyjai did not testify on direct about the conversation
she had with Sean at the hotel. However, she did testify about her
relationship with defendant:
Q. Why were you acting like you didn't
care about the relationship?
A. Because [sic.] what he had done.
Q. When you say what he had done what
do you mean by that?
A. Killed [Mendoza].
Kyjai's statement that defendant “Killed [Mendoza]” explained why
her relationship with defendant had deteriorated, and was not, as
defendant asserts, a hearsay statement attributable to Kyjai'sconversation with Sean. See N.C. Gen. Stat. § 8C-1, Rule 801(c)
(2005). We note Crawford v. Washington, 541 U.S. 36, 59, 158 L.
Ed. 2d 177, 197 (2004) does not apply where Kyjai was available for
cross-examination at trial and Sean's statement had been redacted.
Moreover, Rule 602 of the North Carolina Rules of Evidence
provides “a witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that [she] has personal
knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602 (2005).
“Personal knowledge is not an absolute but may consist of what the
witness thinks [she] knows from personal perception.” N.C. Gen.
Stat. § 8C-1, Rule 602 (Commentary) (2005); State v. Poag, 159 N.C.
App. 312, 323, 583 S.E.2d 661, 669 (2003).
Notwithstanding Kyjai's conversation with Sean at the hotel
room, she had ample opportunity in which to form her own personal
perception of the events of 9 October 2003. Kyjai testified
without objection that defendant asked Mendoza “how did he want to
die” while they were in the car together on the way to the park.
Defendant returned to the car shaking and nervous, with a gun in
his pocket. When Kyjai asked defendant if he killed Mendoza over
a bandana, defendant replied, “it's not a bandana, it's a flag.”
Kyjai further testified, without objection, that defendant had
talked to Yolanda about the murder. The morning after the murder
defendant told Kyjai that “he didn't care what he had done” the
night before. The State introduced, without objection, five
letters written by defendant to Kyjai after he had been arrested.
Defendant attempted to persuade Kyjai to testify at trial thatMendoza had tried to “set him up” on the night of the murder.
Defendant wrote that “the story is only for you to know.”
Therefore, this is plenary evidence of Kyjai's personal interaction
with defendant which led her to the conclusion defendant had killed
Mendoza. The trial court did not err in admitting Kyjai's
testimony. See State v. Watkins, 169 N.C. App. 518, 527, 610
S.E.2d 746, 753 (2005) (witness testimony properly admitted where
he had sufficient personal knowledge to identify defendant's voice
during the shooting and that his opinion was rationally based on
such perception). This assignment of error is overruled.
III
Defendant argues the trial court erred in admitting
defendant's statements made to law enforcement after he invoked his
right to counsel. Because defendant did not properly preserve this
issue for appellate review, we deem this issue abandoned. N.C. R.
App. P. 28(b)(6).
The assignment of error cited by defendant concerns a
statement made by defendant to Detective Jeffrey Spaulding on 3
January 2003 about another case wherein defendant was arrested for
possession of a stolen vehicle. However, in his
brief, defendant
argues the statement he made to Detective Furr on 10 October 2003
should not have been admitted into evidence. Defendant makes no
argument in his brief that defendant's right to counsel was
violated during the 3 January 2003 statement to Detective
Spaulding. The statement made by defendant on 3 January 2003 was
relevant to this trial only to the extent it was admitted pursuantto Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005).
Defendant's objections during Detective Spaulding's testimony
related to that statement's admission under Rule 404(b) rather than
a violation of defendant's right to counsel.
At the present trial, defendant did not object to the
admission of Detective Furr's testimony regarding defendant's 10
October 2003 statement. The North Carolina Rules of Appellate
Procedure provide that in order to preserve a question for
appellate review, a party must have presented the trial court with
a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context. N.C. R. App.
P. 10(b)(1). Constitutional claims not raised and passed upon at
trial will not be considered on appeal.
State v. Benson, 323 N.C.
318, 322, 372 S.E.2d 517, 519 (1988). Appellate review is limited
to those assignments of error that are properly set out in the
record on appeal in conformity with Rule 10(a).
See N.C. R. App.
P. 10(a) (“the scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal”). Since defendant failed to preserve the issue
regarding the denial of his constitutional right to counsel on 10
October 2003, this issue is deemed abandoned. N.C. R. App. P.
28(b)(6).
No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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