Appeal by defendant from judgments entered 12 March 2004 by
Judge James C. Spencer, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 7 June 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General A. Danielle Marquis, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
HUNTER, Judge.
Lewis Deon Partridge (“defendant”) appeals from judgments
entered consistent with jury verdicts finding him guilty of first
degree murder and robbery with a dangerous weapon. For the reasons
stated herein, we find no error.
The State's evidence tends to show that defendant, Tiffani
Martin (“Tiffani”), Sherri Martin (“Sherri”), and James Garrett
(“Garrett”) devised a plan in September of 2002 to rob a Sonic
restaurant on Atlantic Avenue in Raleigh, North Carolina, where
Tiffani and her sister Stephanie had previously worked. After two
aborted attempts to rob the store, a third attempt was made on 29
September 2002. The group decided to first steal a getaway car, as
Garrett's car was not reliable. Defendant, carrying a gun andwearing a black ski mask, and Garrett, wearing a plastic hockey
mask, approached Kevin Dixon (“Dixon”), who was washing his BMW at
a car wash on New Bern Avenue. Defendant and Garrett approached
Dixon. Defendant, holding his gun drawn, stated, “'Don't make this
an emergency, homeboy. We just want the car.'” Dixon backed away
from the car and defendant and Garrett drove away in the BMW.
Garrett's car, driven by Tiffani and Sherri, was parked at a
residential complex on Millbrook Road. Tiffani and Sherri joined
defendant and Garrett in the BMW and drove to the Sonic. After
parking the BMW on the street behind the restaurant, defendant,
wearing the black ski mask and carrying the gun, and Garrett,
wearing the plastic hockey mask, entered the Sonic. Tiffani waited
outside, also wearing a mask. Sherri remained in the car.
Defendant and Garrett entered the restaurant as it was
preparing to close and forced the employees remaining in the
restaurant to the rear of the store near the freezer at gunpoint.
Defendant demanded that one employee, Boise Smith (“Smith”), get
the manager, Douglas Toledo (“Toledo”), who had exited the
restaurant to use the exterior restroom. Smith yelled out the door
for Toledo. Another employee, Cherita Turnage (“Turnage”), was
pushed towards the freezer, and Kamel Kersey (“Kersey”), Turnage's
fiancée and another employee, turned towards the freezer.
Defendant then shot Kersey in the left side of the head and Turnage
began to scream. Smith and another employee then ran from the
store. Toledo exited the restroom and found Turnage running fromthe store. Toledo and Turnage crossed the street and contacted the
police.
A former State Highway Patrolman, Kenneth Alfred Reid (“Reid”)
noticed three people in dark clothing and masks walking from a
parked BMW as he drove past on his way to work. Reid contacted
authorities with his suspicions that a robbery was about to occur
when he arrived at work, but was informed that someone had already
been shot. Officer Z. A. Morse arrived at the Sonic in response to
a police dispatch call and found Kersey still alive. Kersey was
unable to answer questions, however, and later died from the
gunshot wound.
Defendant, Garrett, and Tiffani returned to the BMW. Sherri
testified that they appeared scared and surprised, and that
defendant claimed he slipped, causing the gun to go off and shoot
someone in the back of the head. Garrett assured defendant of the
group's silence. The group returned to Garrett's car, wiped down
the BMW, and dropped defendant off at the Skate Ranch.
Defendant met three long-time friends at the Skate Ranch,
Arthur Lee Moore (“Arthur”), Curtis Devonn Harris (“Harris”), and
Omar Moore (“Omar”). Omar testified that defendant did not appear
to be acting normally, and when Omar questioned him, defendant told
Omar he had just shot someone. Defendant also told Harris he had
just shot someone that night.
Arthur drove Harris, Omar, and defendant to a nightclub, where
the group stayed until 11:30 p.m. Defendant asked Arthur to take
him to get his “new car,” and claimed that he bought the car froma “crackhead” and that the tag wasn't right. Defendant asked
Arthur to follow him to Fuquay-Varina so that the tags were not
visible. Defendant allowed both Omar and Harris to drive the BMW
on the way to Fuquay-Varina. The car was taken to a wooded area
near a dirt road off of Spence Farm Road and hidden after
defendant, Harris, and Omar wiped away their fingerprints.
Arthur then drove defendant and the others to the home of
Charity Johnson (“Johnson”). Defendant gave Johnson the gun
wrapped in a shirt, and told her to “put it up for him,” and that
he would return for it the next day.
Defendant confronted Arthur in the days following the murder
in regards to the rumor that Arthur had told people defendant had
shot Kersey. Defendant threatened to kill Arthur, stating “[i]f I
find out, I already got one body up under my belt. You're going to
be the next.”
Defendant was arrested in October 2002 in Georgia, following
a high-speed vehicular chase in which defendant was a passenger in
a stolen vehicle driven by a third party.
Defendant was found guilty by a jury of first degree murder
and robbery with a dangerous weapon. Defendant was sentenced to
life imprisonment without parole for the first degree murder
conviction, and 100 to 129 months for the conviction of robbery
with a dangerous weapon. Defendant appeals.
I.
Defendant first contends that the trial court erred in
admitting a two-page police incident report prepared by a witness
who did not testify. We find this admission to be harmless error.
Defendant contends and the State concedes that the admission
of a police incident report from a Georgia officer, who did not
testify and had not previously been cross-examined by defendant,
was a violation of defendant's Sixth Amendment right to
confrontation under the United State Supreme Court's holding in
Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203
(2004) (holding that testimonial evidence made by a non-testifying
person is only admissible when the declarant was unavailable at
trial and the defendant had a prior opportunity for cross-
examination);
State v. Bell, 359 N.C. 1, 34-36, 603 S.E.2d 93, 116
(2004)
,
cert. denied,
Bell v. North Carolina, 544 U.S. 1052, 161 L.
Ed. 2d 1094 (2005).
“Because this error is one with constitutional implications,
the State bears the burden of proving that the error was harmless
beyond a reasonable doubt.”
Bell, 359 N.C. at 36, 603 S.E.2d at
116; N.C. Gen. Stat. § 15A-1443(b) (2005). The North Carolina
Supreme Court has held that “the presence of overwhelming evidence
of guilt may render error of constitutional dimension harmless
beyond a reasonable doubt.”
State v. Autry, 321 N.C. 392, 400, 364
S.E.2d 341, 346 (1988) (finding error harmless when evidence of the
defendant's guilt, even without regard to the inadmissible
evidence, was indeed overwhelming). Defendant contends this error was not harmless, as the police
report detailing defendant's arrest in Georgia the month following
Kersey's murder tended to establish flight. The trial court
instructed the jury that “[e]vidence of flight may be considered by
you together with all other facts and circumstances in this case in
determining whether the combined circumstances amount to an
admission or show a consciousness of guilt.” Defendant also
contends that the police report established defendant as a
“violator of the law” as it contained details that defendant fled
arrest and lied to the Georgia officers once apprehended.
A review of the evidence in this case shows that the
admission of the police report, although error, was harmless beyond
a reasonable doubt, as ample other evidence was offered to show
defendant's flight from the scene of the crime immediately
following its commission.
“[A] trial court may not instruct a jury on defendant's flight
unless 'there is some evidence in the record reasonably supporting
the theory that defendant fled after commission of the crime
charged.'”
State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429,
433-34 (1990) (citation omitted). “[E]vidence tending to show that
defendant, after shooting the victim, ran from the scene of the
crime, got in a car waiting nearby, and drove away . . . is
sufficient evidence of flight to warrant the instruction.”
State
v. Reeves, 343 N.C. 111, 113, 468 S.E.2d 53, 55 (1996). Evidence
that a defendant ordered an accomplice to wipe fingerprints off of
a murder weapon and throw it into a nearby river shortly after themurder also was found to support an instruction on flight.
Levan,
326 N.C. at 165, 388 S.E.2d at 434. Here, evidence was offered
that defendant ran from the Sonic following the shooting, got into
the waiting BMW parked on a side street, and drove away with
Tiffani, Sherri, and Garrett. Evidence was also offered that
defendant wiped down the BMW before changing to Garrett's car
following the attempted robbery and shooting, and again wiped down
the BMW shortly before abandoning it later that night.
As the State presented overwhelming evidence of defendant's
flight from the scene of the crime, as well as defendant's
commission of the crime itself, admission of the report was
harmless.
See Bell, 359 N.C. at 36, 603 S.E.2d at 116.
Defendant's assignment of error is therefore overruled.
II.
Defendant next contends that the trial court erred in allowing
a State's witness to explain the lack of significance in the
absence of fingerprint evidence. We disagree.
Our Supreme Court has previously addressed this issue. In
State v. Holden, 321 N.C. 125, 147, 362 S.E.2d 513, 527-28 (1987),
our Supreme Court found no error when an SBI fingerprint examiner
was questioned as to whether latent fingerprints that could be
examined and compared were always left when an individual touched
an object.
Id. The examiner responded that it depended on several
factors, including the environment, the object, and the bodily
secretions of the person handling the object.
Id. at 147, 362
S.E.2d at 528.
Holden found that such testimony was not anassumption, but rather was an explanation of the mechanics of the
field of expertise, and the admission of the testimony was not
error.
Id.
Similarly in
State v. Armstrong, 345 N.C. 161, 165-66, 478
S.E.2d 194, 197 (1996), our Supreme Court found that testimony by
a detective that it was common not to find identifiable
fingerprints at a crime scene was not error, as it was an
admissible statement of fact based on the detective's employment
and experience.
Id.
However, in
State v. Robinson, 330 N.C. 1, 409 S.E.2d 288
(1991), our Supreme Court found that testimony by a fingerprint
expert that “he had discovered identifiable fingerprints in only
three percent of the criminal cases in which he had been involved”
was irrelevant, but determined such evidence was not prejudicial.
Id. at 23, 409 S.E.2d at 300.
Robinson concluded that “[t]he fact
that other defendants did not leave identifiable prints at other
crimes [sic] scenes can be explained by a myriad of reasons[,]” and
reiterated its prior holding in
Holden that explanations of the
mechanics of fingerprinting were permissible.
Id. at 23, 409
S.E.2d at 301.
Here, the State questioned Agent Johnny Leonard (“Agent
Leonard”), of the City/County Bureau of Investigation, regarding
what the absence of fingerprints showed about the person to whom
the prints belonged. Agent Leonard responded that:
It only tells me that at the point of
processing that particular item that there was
not enough residue or ridge detail or whateverleft on that item that you could process and
record that particular individual's
fingerprint. That's what it tells me at that
time. However, it does not mean that -- that
an item was not -- necessarily handled or not
handled. You can't determine that from the
absence of fingerprints.
I -- I have -- I am holding this right
now in my hand, but actually I am not exerting
much pressure on it. I can reach over with my
right hand and snatch it out. So once you
handle an item with enough pressure, now I
can't pull it out. That is a better chance of
actually leaving a fingerprint because you're
leaving enough pressure, and it may not even
leave it then, because if you don't have
moisture or foreign objects, such as oils or
grease on your hands, you may not leave it
even then.
So it -- it doesn't mean anything to me
that that person -- I cannot determine that a
person either handled or did not handle an
object simply because there were no
fingerprints left on an item. In my career
I've processed many, many cases where I've
known that -- not only the agent that was
involved but also that the evidence was
passed, such as in hand-to-hand drug buys, and
I -- sometimes I make prints, and sometimes I
don't, but in that case I knew that the item
was passed, but neither the agent nor the
individual left prints. So in my case it
doesn't mean that I can prove that it was not
touched.
The expert testimony in the instant case, unlike the testimony
in
Robinson, was an explanation of the mechanics of fingerprinting,
similar to the explanation offered in
Holden, focusing on the
factors necessary to provide a print sufficient for identification,
such as pressure, moisture, and bodily secretions. Agent Leonard's
example of hand-to-hand drug buys which had not resulted in usable
fingerprints served only to further illustrate his explanation ofthe mechanics. The trial court's admission of the relevant
testimony was therefore not error.
We also note that the record reveals that defendant questioned
Agent Leonard extensively as to the same evidence and conclusions
during cross-examination. As is well established, “[w]here
evidence is admitted over objection and the same evidence has been
previously admitted or is later admitted without objection, the
benefit of the objection is lost.”
State v. Alford, 339 N.C. 562,
570, 453 S.E.2d 512, 516 (1995);
see also State v. Whitley, 311
N.C. 656, 661, 319 S.E.2d 584, 588 (1984);
State v. Maccia, 311
N.C. 222, 229, 316 S.E.2d 241, 245 (1984). Defendant therefore
waived his right to raise these objections on appeal. This
assignment of error is overruled.
III.
Defendant finally contends that the trial court erred in
submitting to the jury the theory of kidnapping in support of the
charge of felony-murder, as there was insufficient evidence of
removal to support a charge of kidnapping. We disagree.
N.C. Gen. Stat. § 14-39(a)(2) (2005) states that:
(a) Any person who shall unlawfully
confine, restrain, or remove from one place to
another, any other person 16 years of age or
over without the consent of such person . . .
shall be guilty of kidnapping if such
confinement, restraint or removal is for the
purpose of:
. . .
(2) Facilitating the commission of any
felony or facilitating flight of anyperson following the commission of a
felony[.]
Id. The unlawful restraint which constitutes the kidnapping must,
however, be “a separate, complete act, independent of and apart
from” another felony arising from the same occurrence.
State v.
Fulcher, 294 N.C. 503, 524, 243 S.E.2d 338, 352 (1978). Our
Supreme Court has recently reaffirmed that: “[I]n determining
whether a defendant's asportation of a victim during the commission
of a separate felony offense constitutes kidnapping, [a trial
court] must consider whether the asportation was an inherent part
of the separate felony offense, that is, whether the movement was
'a mere technical asportation.'”
State v. Ripley, 360 N.C. 333,
340, 626 S.E.2d 289, 293-94 (2006). Defendant contends that
movement of the employees by defendant from the front of the store
to the rear towards the freezer was an inherent part of the
commission of the attempted armed robbery, a separate felony
offense, and therefore insufficient evidence was offered to support
a theory of kidnapping.
Our Supreme Court considered under what circumstances the
movement of victims in a robbery or attempted robbery is a mere
technical asportation in the case of
State v. Irwin, 304 N.C. 93,
103, 282 S.E.2d 439, 446 (1981). In
Irwin, the evidence showed
that the victim was walked at knife point from the front to the
rear of the store, where the prescription drugs, the object of the
robbery, were stored.
Id. Such movement did not expose the victim
“to greater danger than that inherent in the armed robbery itself,nor [was she] subjected to the kind of danger and abuse the
kidnapping statute was designed to prevent.”
Id.
Irwin concluded
that the removal to the rear of the store “was an inherent and
integral part of the attempted armed robbery.”
Id.
However, in
State v. Davidson, 77 N.C. App. 540, 542-43, 335
S.E.2d 518, 520 (1985), this Court considered whether there was
sufficient evidence of kidnapping when victims of a robbery were
forced to walk from the front of the store to dressing rooms in the
rear, before the store and the victims were robbed.
Id. The Court
noted that as none of the property that was the object of the
robbery was kept in the dressing room, removal of the victims was
not an inherent and integral part of the robbery, but rather was
done to remove victims from view.
Id. at 543, 335 S.E.2d at 520.
Here, defendant's movement of the Sonic employees at gunpoint
from the front of the restaurant, where the restaurant safe was
located, to the freezer in the rear of the restaurant was not
necessary to commit the robbery, as none of the property which
defendant sought to steal was located in the rear of the store.
Similar to
Davidson, removal of the victims to the freezer in the
rear of the story was not an inherent and integral part of the
robbery, and was therefore sufficient evidence of asportation to
sustain the theory of kidnapping for the offense of felony-murder.
Although the trial court erred in admission of a police
incident report as testimonial evidence where the declarant did not
testify and was not previously available for cross-examination, we
find such error to be harmless. We further find no error in thetrial court's admission of testimony by an expert witness regarding
the lack of significance in fingerprint evidence, and the
submission of the charge of felony-murder on the theory of
kidnapping to the jury.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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