Appeal by defendant from judgment entered 2 September 2005 by
Judge Ronald E. Spivey in Guilford County Superior Court. Heard in
the Court of Appeals 1 November 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Joyce S. Rutledge, for the State.
Amos Granger Tyndall, P.A., by Amos Granger Tyndall, for
defendant-appellant.
HUNTER, Judge.
Billy Michael Sutton (“defendant”) appeals from a judgment
entered 2 September 2005 consistent with a jury verdict finding him
guilty of robbery with a dangerous weapon. For the reasons stated
herein, we find no error.
The State's evidence tended to show that on 10 November 2004,
Nick Gorham (“Gorham”) placed a phone call at approximately 9:45
p.m. for a carry-out pizza from a Papa John's pizza restaurant
(“Papa John's”). When ordering, Gorham gave his name as “Johnson.”
Gorham placed the call while defendant was riding in the car with
him. Gorham testified that defendant suggested they rob the Papa
John's, but that Gorham refused. Gorham and defendant arrived at Papa John's at approximately
10:45 p.m., after the restaurant had closed. Gorham left defendant
waiting in the car, entered through the unlocked employee entrance,
and asked for the pizza. The shift leader, Jared Pike (“Pike”),
attempted unsuccessfully to run the debit card that Gorham offered
as payment.
A man entered the store wearing a stocking mask and gloves
and carrying a black semi-automatic handgun. Pike identified
defendant at trial as resembling the masked gunman in terms of
ethnicity, build, and facial hair, but could not positively
identify him because of the mask. Gorham positively identified
defendant as the masked man. The masked man demanded that everyone
get down on the floor and asked who had the key to the safe. Pike
retrieved the night's deposit from the rear of the store and handed
it to the masked man. Gorham testified that he left the Papa
John's without defendant and began to drive off, but defendant ran
in front of his car, forcing Gorham to stop and let defendant into
the vehicle. Gorham testified that defendant was carrying a clear
bag containing checks and cash and was still wearing gloves.
Gorham dropped defendant off at his home.
Pike identified Gorham from a photographic lineup and a
warrant was issued for Gorham's arrest for armed robbery. Gorham
pled guilty to a charge of accessory after the fact, and the armed
robbery charge was dismissed pursuant to the plea bargain
agreement. Additional corroborating testimony was offered by Jason
Norris (“Norris”), a friend of both defendant and Gorham. Norristestified that both men had confided details of the robbery to him
on separate occasions. Norris also testified that defendant was
keeping Norris's gun, a black, semi-automatic Glock 10mm, for him
at the time of the robbery.
The jury convicted defendant of robbery with a dangerous
weapon and the trial court sentenced defendant to seventy-two to
ninety-six months in prison. Defendant appeals from this judgment.
I.
Defendant first contends that the trial court erred in
admitting statements defendant made during a police interview
asserting his right to silence. We disagree.
“Where 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);
State v. Whitley,
311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).
Here, defendant objected to testimony by the investigating
officer, Detective Matt Allred (“Detective Allred”), regarding a
statement made by defendant that once he spoke with his attorney,
he would tell Detective Allred what had happened. Defendant
testified in his own defense. On cross-examination, defendant
testified without objection that he told the officer he would get
back with him later, but never “got around to it” and only spoke to
his attorney regarding the matter. As the same evidence previously
objected to in Detective Allred's testimony was admitted without
objection in defendant's testimony, defendant has failed toproperly preserve this issue for appellate review.
See N.C.R. App.
P. 10(b). Although defendant alleges in his fourth assignment of
error that the “trial court committed clear, plain, and reversible
error” by admitting Detective Allred's statement, defendant does
not provide “explanation, analysis or specific contention in his
brief supporting the bare assertion that the claimed error is so
fundamental that justice could not have been done.”
State v.
Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000). As stated
by our Supreme Court in
Cummings, a party must “provide argument
supporting the contention that the trial court's instruction
amounted to plain error, as required by subsections (a) and (b)(5)
of Rule 28[,]” even when plain error has been alleged in the
assignment of error, and the failure to do so waives appellate
review.
Id. As defendant failed to properly preserve the issue,
the assignment of error is dismissed.
II.
Defendant next contends the trial court erred in excluding
evidence related to the credibility of defendant's co-conspirator,
Gorham. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 611(b) (2005), governing the
scope of cross-examination, states “[a] witness may be
cross-examined on any matter relevant to any issue in the case,
including credibility.”
Id. “[S]pecific instances of a witness's
conduct may be inquired into on cross-examination if probative of
the witness's 'character for truthfulness or untruthfulness,' and
admission of the evidence is subject to the discretion of the trialcourt.”
State v. Taylor, 154 N.C. App. 366, 374, 572 S.E.2d 237,
243 (2002) (citing N.C. Gen. Stat. § 8C-1, Rule 608(b)). “'“Among
the types of conduct most widely accepted as falling into this
category are 'use of false identity, making false statements on
affidavits, applications or government forms (including tax forms),
giving false testimony, attempting to corrupt or cheat others, and
attempting to deceive or defraud others.'”'”
State v. Bishop, 346
N.C. 365, 390, 488 S.E.2d 769, 782 (1997) (citations omitted).
“[T]he scope of cross-examination is subject to appropriate control
in the sound discretion of the court.”
State v. Coffey, 326 N.C.
268, 290, 389 S.E.2d 48, 61 (1990); N.C. Gen. Stat. § 8C-1, Rule
611(a). “'[W]hile it is axiomatic that the cross-examiner should
be allowed wide latitude, the trial judge has discretion to ban
unduly repetitious and argumentative questions, as well as inquiry
into matters of tenuous relevance.'”
State v. Hatcher, 136 N.C.
App. 524, 526, 524 S.E.2d 815, 816 (2000) (citation omitted). “The
trial judge's rulings in controlling cross examination will not be
disturbed unless it is shown that the verdict was improperly
influenced.”
Id.
Here, defendant cross-examined Gorham as to his probation
violations and established that Gorham had violated his probation
for a prior drug conviction. Objections to additional questions
regarding the specifics of Gorham's violations were sustained by
the trial court, and a
voir dire was conducted. The trial court
determined that additional evidence related to the probation
violations, specifically the failure to report to his probationofficer, complete his drug treatment, pay money as ordered by the
trial court, and testing positive for drug use while on probation,
were not appropriate grounds for impeachment of Gorham's
credibility. We find no abuse of discretion as to the trial
court's exclusion of this testimony. The assignment of error is
overruled.
As defendant failed to preserve for review the issue of the
admissibility of statements made to police, and as the trial court
did not abuse its discretion in denying further cross-examination
of a witness's credibility, we find no error in the judgment and
conviction.
No error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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