STATE OF NORTH CAROLINA
v. Guilford County
No. 05 CRS 68745-47
ADRAINE RAGI AUSTIN 05 CRS 68913
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
J. Clark Fischer for defendant-appellant.
ELMORE, Judge.
Defendant Adraine Ragi Austin was charged with three counts of
robbery with a dangerous weapon and assault with a deadly weapon
inflicting serious injury. The State's evidence showed that on the
night of 20 December 2004, Serge WaBeya was the cashier at the
Kangaroo convenience store on Yanceyville Street. At approximately
9:00 p.m., Angela Bost was shopping in the store when defendant and
another man entered the store. Defendant was wearing a black coat,
jeans, and a toboggan on his head. Defendant walked towards the
cashier's counter and the other man walked to the back of the
store. Defendant brandished a shotgun at WaBeya and demanded money
from the cash register. WaBeya complied. Defendant walked aroundthe counter, grabbed packs of cigarettes and told WaBeya to get
down on the floor. Realizing that a robbery was taking place, Bost
rushed to the front of the door to try to escape. Defendant told
Bost that he would shoot her if she walked out and instructed her
to stand in front of the cashier. Defendant then demanded Bost
give him her purse. Bost relinquished her purse containing her
checkbook which listed a cell phone number. Defendant then hit
Bost on the head with the barrel of his shotgun, causing the
shotgun to go off. Bost fell to the floor. Defendant and his
accomplice fled the store with the money, cigarettes, and purse.
WaBeya took Bost, who was bleeding from a laceration on her head,
to the back of the store and called the police.
The next night, on 21 December 2004, Defendant entered the
Kangaroo convenience store on Pleasant Garden Road and asked the
cashier, Linda Kay Seger, for a box of Newport cigarettes.
Defendant was wearing a blue jacket, jeans, tennis shoes, and a
toboggan on his head. As Seger rang up the cigarettes on the
register, defendant pulled out a gun and demanded that Seger give
him money from the register. Seger voided the sale and opened the
register drawer. Defendant then leaned across the counter, took
the money out of the drawer and fled.
On 24 December 2004, four days after Bost was robbed, two
calls were made to the cell phone number listed on Bost's checks.
The cell phone revealed the callers' two phone numbers and one
voice mail message. The message was from a man who demanded that
Bost give him the money she owed him and threatened to come get themoney from her. Bost gave the callers' phone numbers to Detective
Falls of the Greensboro Police Department. Detective Falls
confirmed that one of the numbers belonged to defendant's
sister-in-law, Jahdine Littlejohn, and the other number was the
cell phone number of David Doggett, who had known defendant for
about five years.
At trial, Littlejohn testified that defendant used her phone
while he was at her residence on Christmas Eve. Littlejohn
testified that the voice she heard on the audiotape of the voice
mail message was defendant's voice. Doggett testified that
defendant phoned him on the afternoon of 24 December 2004 and asked
Doggett to drive him somewhere so that defendant could cash a
check. Doggett picked up defendant at his sister-in-law's house
and drove defendant to the store down the street. The store would
not cash the check, so Doggett drove defendant to a nearby bank.
Defendant was upset when he came out of the bank and said there
were insufficient funds for the bank to cash the check. Defendant
borrowed Doggett's cell phone to call the woman who allegedly wrote
the check. Doggett testified that the voice on the voice mail was
the message he heard defendant leaving the woman who allegedly owed
money to defendant.
Detective Falls prepared a photo line-up of six suspects,
including defendant. Both WaBeya and Seger identified the photo of
defendant as looking most like the man who robbed them. Detective
Falls testified that when defendant was arrested and brought into
custody, defendant was wearing a large black reversible coat “verysimilar to the ones that had been worn by the suspect in the
robbery” and that Detective Falls confiscated the coat from
defendant.
Defendant did not present any evidence. A jury found
defendant guilty of three counts of robbery with a dangerous
weapon, and assault with a deadly weapon inflicting serious injury.
The trial court sentenced defendant to sixty-four to eighty-six
months' imprisonment. Defendant appeals.
Before reaching the merits of defendant's appeal, we note that
counsel failed to include a copy of the assault with a deadly
weapon inflicting serious injury judgment in file number 05 CRS
68747. See N.C.R. App. P. 9(a)(3)(g). Counsel sent a copy of this
judgment, but did not include an appropriate motion to amend the
record on appeal. In our discretion, we allow the judgment to “be
included or designated in the record” to facilitate proper
appellate review. See State v. Dayberry, 131 N.C. App. 406, 408,
507 S.E.2d 587, 588 (1998); N.C.R. App. P. 2.
Defendant first contends that the trial court erred by
allowing Detective Falls to testify about the large coat seized
from defendant upon his arrest. During direct examination, the
prosecutor questioned Detective Falls about interviewing defendant
at the police department the day defendant was arrested. The
following occurred:
Q. And when he came down to the Police
Department did you have an occasion to see
him?
A. I did.
Q. Did he appear like he did today or is
there any difference.
A. There was quite a bit of difference.
Q. What's the difference?
A. The clothing he had on, he had on a large
jacket, black jacket, at the time. Very baggy
jeans, and I don't recall the shirt he had on
but the clothes he had on were much bigger and
baggier.
. . .
Q. Okay. And you said he had a coat with him.
Did you get a look at that coat?
A. I did.
Q. And what did you notice about that coat?
A. The coat was very very similar to the ones
that had been worn by the suspect in the
robbery.
Q. Did you take it from him?
A. I did.
Q. And what else did you notice about that
coat?
A. I also noticed that after collecting the
coat that it was a reversible type coat.
Q. What was on the outside of the coat? Or
the one side he was wearing.
A. One side was a black coat. Was black in
color and had a stripe along the bottom of the
coat. On the reverse side it was a lighter
blue coat that had several patches on the
coat.
The prosecutor then asked Detective Falls about an evidence box as
follows:
Q. What did you put in that box?
A. The jacket that was taken from Mr. Austinthe night he was arrested.
Q. Okay. Could you open it up and see if that
jacket is in there?
(Witness complied with request)
Q. That's the jacket you took from him.
A. Yes, it is.
Q. Can you show the jury the two sides of it?
A. Okay. This is the side that's got the
darker - the black color with the strips along
the bottom. The stripe. The blue stripe. And
then when it's reversed, it has the blue and
it has the patches on the back.
Q. Okay. I'll put it back in here.
MR. WOOD: Your Honor, I'd move to introduce
State's Exhibit No. 18.
MR. LLOYD: No objection, Your Honor.
THE COURT: It will be admitted.
(STATE'S EXHIBIT NO. 18 RECEIVED INTO
EVIDENCE)
Q. And why is it you collected that jacket?
A. That jacket appeared to be the same jacket
that was ---
MR. LLOYD: Objection, Your Honor. That's a
matter for the jury to decide.
THE COURT: Well, he can explain why he
collected it. Obviously it will be for the
jury to decide whether the evidence - what
important it has, if any. Go ahead. You can
answer.
A. The jacket appeared to be the same - same
jacket that was used in both robberies. Just
reversed it on one and then on the other.
Defendant asserts that the trial court erred in overruling his
objection. Defendant argues that this testimony was irrelevant andimproper opinion testimony because Detective Falls “had no personal
knowledge at all regarding the particulars of either robbery.”
However, “[i]t is well established that the admission of evidence
without objection waives prior or subsequent objection to the
admission of evidence of a similar character.” State v. Campbell,
296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979); see also State v.
McBryde, 55 N.C. App. 473, 475, 285 S.E.2d 866, 867 (1982) (“By
failing to object to the first question and answer eliciting this
evidence, defendant waived his objection and right to assert its
admission as grounds for a new trial.”). Earlier in his direct
testimony, the prosecutor asked Detective Falls what he noticed
about defendant's coat and Detective Falls responded, “[t]he coat
was very very similar to the ones that had been worn by the suspect
in the robbery.” This prior testimony from Detective Falls
describing defendant's coat in terms of the coat worn in the
robberies was admitted without objection. Accordingly, defendant's
subsequent objection was waived. See State v. Valentine, 357 N.C.
512, 525, 591 S.E.2d 846, 857 (2003).
In addition, we note that at trial defendant objected to this
evidence on the ground that it was “a matter for the jury to
decide” while on appeal he argues that Detective Fall's testimony
violated N.C. Gen. Stat. § 8C-1, Rules 401, 402, 403, and 701.
“[W]here a theory argued on appeal was not raised before the trial
court, 'the law does not permit parties to swap horses between
courts in order to get a better mount in the Supreme Court.'”
State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quotingWeil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
Therefore, defendant's claim is also waived for this reason.
Defendant also contends that the trial court erred by denying
his request to instruct the jury on testimony by interested
parties. Defendant argues that both the investigating officers and
the robbery victims “had a desire to see Defendant convicted, [and
therefore], the interested witness instruction was appropriately
raised from the evidence[.]” At trial, however, defendant argued
that only the police officers “care[d] about the outcome[.]” Thus,
defendant did not raise the issue of the robbery victims at trial
and did not preserve this issue for appeal. “A party to a criminal
case is not entitled to an instruction on witness credibility which
focuses on law enforcement officers as a class.” State v. Hunt,
345 N.C. 720, 726, 483 S.E.2d 417, 421 (1997). Furthermore, the
trial court instructed the jury as follows:
Now, you are the sole judges of the
credibility of each witness. You must decide
for yourselves whether to believe the
testimony of any witness. You may believe
all, part, or none of what a witness has said
on the witness stand. In deciding whether to
believe a witness, you should apply the same
tests of truthfulness that you apply in your
everyday affairs. These tests may include the
opportunity of the witness to see, hear, know
or remember the facts or occurrences about
which he or she testified; the manner and
appearance of the witness; any interest, bias
or prejudice the witness may have; the
apparent understanding and fairness of the
witness; whether the testimony is reasonable
and whether it is consistent with other
believable evidence in the case.
(emphasis added). We conclude that the trial court's instruction
regarding the witnesses' interest, bias or prejudice was sufficient and the trial court properly denied defendant's request to give an
instruction on the testimony of an interested witness.
Accordingly, this assignment of error is overruled.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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