Appeal by defendant from judgment entered 10 August 2005 by
Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the
Court of Appeals 7 December 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.
J. Clark Fischer for defendant-appellant.
Defendant Louis Everette McLean appeals from his conviction
for first degree murder. The assumption underlying defendant's
primary arguments on appeal is that circumstantial evidence is of
a lesser quality and is entitled to less weight than direct
evidence. As our Supreme Court has observed, "'the law does not
distinguish between the weight given to direct and circumstantial
evidence . . . .'" State v. Berry, 356 N.C. 490, 500, 573 S.E.2d
132, 140 (2002) (quoting State v. Parker, 354 N.C. 268, 279, 553
S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d
162, 122 S. Ct. 2332 (2002)). Indeed, "[a]s a great trial lawyer
once said, 'We better know there is a fire whence we see much smoke
rising than we could know it by one or two witnesses swearing toit. The witnesses may commit perjury, but the smoke cannot.'
Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider,
October 26, 1864, reprinted in The Quotable Lawyer 323 (1986)
(Schrager and Frost eds.)." Hopkins v. Andaya, 958 F.2d 881, 888
(9th Cir. 1992) (per curiam), amended by 1992 U.S. App. LEXIS 5024
(Mar. 24, 1992) (per curiam). Finding each of defendant's
arguments unpersuasive, we hold that defendant received a trial
free of prejudicial error.
The State's evidence at trial tended to show the following
facts. Defendant was employed as a crew member with the City of
Raleigh's public utilities department. Defendant did not get along
with some of his co-workers, particularly Johnny Moore and Robert
Saiz. In the words of one crew member, there was "bad blood
between Robert and [defendant] and Johnny." Shortly after
defendant began working for the utilities department in July 2002,
defendant complained to a supervisor that he could not work with
Johnny. The supervisor investigated defendant's complaints, but
determined them to be baseless.
On 25 October 2002, the supervisor received a written letter
from defendant in which he complained about Johnny and Robert
together. As a result, the supervisor met with defendant, told him
that his earlier complaints had been investigated and found
baseless, and told defendant that he was the source of the problem
and not his co-workers. The supervisor also told defendant that he
was going to be terminated and, therefore, would not complete hisinitial six-month term of probationary employment. Defendant was
"hostile" and "loud" and "sounded angry" during this meeting. On
a separate occasion, one of the utilities workers had overheard
defendant remark: "If anybody make me lose [my job], and it's
December, I'm going to get the money."
On 1 November 2002, defendant was on duty at the public
utilities facility. That Friday was a scheduled payday for the
crew members, and it was customary that some employees would
immediately cash their checks and thus have a substantial amount of
cash at the end of their shift. At approximately 11:30 p.m. that
night, as the employees were nearing the end of their shift, two
youths burst into the facility firing shots and demanding money.
The robber with the gun was wearing a yellow shirt and was
unmasked; the other youth was wearing a gray hooded shirt that
obscured his face.
George Young and Robert Saiz made an effort to escape through
the back door, with the gunman firing shots in their direction.
Other crew members, however, including defendant and three co-
workers, complied with the robbers' orders by lying down and
handing over their wallets. After collecting the wallets, the
robbers left through the front door. The gunman returned inside
the building briefly, looked outside the back door, and then fled.
Once the robbers were gone, one of the crew members went out
through the door where Saiz attempted his escape and found Saiz on
the ground "spitting up blood." Saiz ultimately died from a
gunshot wound to his back. The police were called and arrived at the scene within a few
minutes. One of the officers used his K-9 dog to track possible
scents or evidence left by the robbers. In a grassy area some
distance from the facility, the K-9 dog discovered both a yellow
shirt and a gray shirt. The gray shirt emitted a strong odor of
gun powder. After finding these items, the dog continued to track
and led the officer to nearby Timberlake Apartments.
The police learned that a resident of Timberlake Apartments
was approached around midnight by two young men who asked to use
his cell phone in order to call a cab. The resident refused to
allow them to use his phone, but told them where they could find a
pay phone. Also at around midnight, a cab driver responded to a
call at Timberlake Apartments, picked up two young male passengers,
and drove them to Garner, North Carolina, where they asked to be
dropped off at a B.P. gas station. Another Timberlake resident
discovered three wallets and a holster on the premises. The
wallets were later identified as the property of defendant's co-
workers. Defendant's wallet was never found.
Shortly after the incident at the facility, the police began
their investigation by interviewing the workers who were present
during the robbery. While being questioned at the police station
within hours of the crime, defendant gave an initial statement in
which he said that he had "never seen the [robbers] before" and
offered that "[i]t definitely sounds inside to me." Defendant
claimed that, among other things, the wallet that he turned over to
the robbers contained $550.00 in cash and his driver's license. In the time leading up to the robbery, defendant's co-workers
observed him talking on his cell phone, although they acknowledged
that he commonly talked on the phone at work. During the initial
investigation, the police requested that all the employees turn
over their cell phones for inspection. Defendant, in response,
took his cell phone and began deleting phone numbers from it. Cell
phone records, however, were later obtained from defendant's
service provider. These records revealed a series of nine phone
calls between defendant's cell phone and public payphones in a
shopping center that was only a 10 to 15 minute walk from the
public utilities facility. The initial calls, which were dialed
from defendant's phone, started at 10:17 p.m. The last phone call,
from a payphone by a Kimbrell's store in the same shopping center,
took place at 11:17 p.m. The workers' 911 call to the police came
at 11:33 p.m.
During the investigation, two crew workers identified one of
defendant's nephews, Dwight McLean, from a police-generated
photographic lineup as the gunman on the night of the holdup. The
resident of Timberlake Apartments and the cab driver who drove the
youths to Garner also positively identified Dwight. DNA samples
were collected from the discarded shirts found by the K-9 dog.
Based on subsequent DNA analysis, it was determined that the
predominant DNA profile on the yellow shirt matched Dwight McLean
and that the predominant DNA profile on the gray shirt matched
defendant's other nephew, Willie McLean. Cherrie McLean, who is defendant's niece and a cousin of
Dwight and Willie McLean, testified at defendant's trial for the
State pursuant to a plea agreement. Around 4 November 2002, a few
days after the incident, Cherrie went to the apartment of Dwight's
mother, Linda McLean Alomari, who lived in Garner up the street
from a B.P. gas station. When she arrived at the apartment,
detectives were there talking to Linda and other family members.
After the detectives left, Willie McLean emerged from the back of
the house. At the request of family members, Cherrie drove Willie
to his cousin Travis' house because "that's where [defendant]
wanted [him] at, wanted to meet [him] at." Cherrie and Travis then
drove that same day to a grandmother's house in Four Oaks to pick
up Dwight McLean. Once at the grandmother's house, Travis ordered
Dwight to gather up all of his clothes so they could burn them to
destroy any evidence. Upon returning to Travis' house, the group
found defendant there waiting for them. At one point, defendant
asked to use Cherrie's phone because defendant "was trying to call
people to see where he could take Dwight and Willie." Defendant,
Dwight, and Willie then left the house together in the same car.
Cherrie and other family members went back to Garner.
On 7 November 2002, the police, armed with information that
Dwight was the gunman, re-interviewed defendant and confronted him
with Dwight's photograph. Defendant initially conceded that the
shooter "did look like my nephew," but claimed that he was on bad
terms with Dwight, did not "deal with [his] nephew," and had not
seen Dwight in three months. Shortly thereafter, defendant askedto speak with two more detectives and, once they arrived, fully
admitted that he recognized Dwight as the shooter: "He was the one
wearing the yellow shirt." Defendant then went on to admit that,
despite not having his wallet, he rented a car the day after the
robbery using a duplicate driver's license and paying cash.
The officers informed defendant that he was going to be
charged in connection with the events at the public utilities
facility. After learning this, and while alone in the interview
room, defendant stood on a table, began removing ceiling tiles, and
appeared to be trying to get up inside the ceiling. Several
officers responded, entering the room and handcuffing defendant.
Following defendant's arrest, a search warrant was executed at
his residence. The officers conducting the search discovered in
defendant's bedroom a student identification card belonging to
Dwight McLean and a red long-sleeved shirt of the same size and
style as the yellow one that was found near the crime scene. A pay
stub and notice of deposit were also recovered, which showed that
defendant's paycheck was deposited directly on the day of the
robbery. The police also searched a rental car defendant had
rented at 11:52 a.m. on Saturday, 2 November 2002, the day after
the robbery, by paying cash and using a duplicate driver's license.
The duplicate license was recovered during the search of the rental
While defendant was in jail prior to his trial, he asked
Cassandra Palmer, his girlfriend, to commit perjury by providing a
false alibi for Dwight. When called as a witness in the criminaltrial of Dwight McLean in October 2004, she falsely testified _
under specific instructions from defendant _ that she had seen
Dwight on the night of the robbery at a party in Four Oaks. In
defendant's trial, she admitted that she had lied in Dwight's trial
in order to "help out" defendant and his nephew.
On 9 December 2002, defendant was indicted on one count of
conspiracy to commit robbery with a dangerous weapon, three counts
of robbery with a dangerous weapon, one count of attempted robbery
with a dangerous weapon, and one count of murder. A superseding
indictment was entered on 10 February 2003, reiterating the
previous charges, but changing the murder indictment to first
degree murder with aggravating circumstances. Following trial, the
jury convicted defendant of one count of conspiracy to commit
robbery with a firearm, three counts of robbery with a firearm, one
count of attempted robbery with a firearm, and first degree murder
in the perpetration of a felony. The superior court sentenced
defendant to life imprisonment without parole for the murder
conviction and continued judgment on the remaining counts.
Defendant timely appealed to this Court.
Defendant's first contention on appeal is that the trial court
erred in denying his motion to dismiss. In addressing a criminal
defendant's motion to dismiss for insufficiency of the evidence,
the trial court must determine whether there is substantial
evidence: (1) of each essential element of the offense charged and
(2) of defendant's being the perpetrator of the offense. State v.Scott
, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial
evidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion. Id.
at 597, 573 S.E.2d at
869. The court must view the evidence in the light most favorable
to the State, giving the State the benefit of all reasonable
at 596, 573 S.E.2d at 869.
Here, defendant's argument pertains only to whether the State
presented sufficient evidence to implicate him as a perpetrator in
the robbery scheme that resulted in Saiz' death. He contends that
the State never presented any direct evidence of his participation
in the scheme and at best "only proved that [defendant] might have
planned with his nephews to commit the robbery that led to the
tragic death of Robert Saiz." Defendant ignores, however, the fact
that circumstantial evidence may be sufficient to carry a case to
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. The evidence need
only permit a reasonable inference of the
defendant's guilt of the crime charged in
order for that charge to be properly submitted
to the jury. Once the court determines that a
reasonable inference of the defendant's guilt
may be drawn from the circumstances, it is for
the jury to decide whether the facts, taken
singly or in combination, satisfy them beyond
a reasonable doubt that the defendant is
actually guilty. Courts making such
determinations may resort to circumstantial
evidence of motive, opportunity and capability
to identify the accused as the perpetrator of
State v. Taylor
, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994)
(internal quotation marks and citations omitted). The State's evidence showed that defendant had a motive to rob
his co-workers: there was conflict between defendant and certain
co-workers; defendant's supervisor sided with the co-workers and
concluded defendant was the real problem; defendant was facing
imminent termination as a result of his complaints; and defendant
had stated an intent to "get" his money if he was fired. Given
defendant's threat, the decision by defendant's nephews to rob the
facility on a regular payday during the closing minutes of their
uncle's shift gives rise to a reasonable inference that defendant's
nephews had prior knowledge from defendant of the pay schedule and
other information necessary to carry out the crime. Defendant
himself told police that this was probably an "inside" job. Such
an inference is also supported by Dwight's decision to carry out
the robbery of his uncle's shift while unmasked. A jury could
reasonably conclude that an individual would not rob his uncle's
place of employment, without a disguise, unless that individual had
some prior assurance that the uncle would not report him to the
The evidence also showed that defendant made repeated calls to
_ and received calls from _ various public payphones located in a
nearby shopping center, in the hour prior to the robbery. Later,
when asked to turn over his phone to police, he was observed trying
to delete the call records from the phone. Further, although
defendant claimed his wallet, containing cash and his driver's
license, was stolen, defendant was able to rent a car the next day
_ a Saturday, when the Division of Motor Vehicles was closed _using a driver's license and cash. Indeed, defendant's wallet was
the only wallet taken by the robbers that was not found.
In addition, the State offered evidence of defendant's refusal
to identify his nephews as the robbers, his false denial of recent
contact with his nephews, his orchestration of his family's efforts
to hide his nephews, and his solicitation of perjury in Dwight's
trial. The inference may be drawn that these acts were undertaken
to minimize his own chances of being convicted of this crime.
Finally, when he was ultimately arrested, defendant made an
apparent attempt to escape from the police station via the space
above the ceiling, a course of action that could be construed by
the jury as a sign of guilt. See State v. McDougald
, 336 N.C. 451,
459, 444 S.E.2d 211, 215 (1994) (explaining that "evidence of the
defendant's escape was highly probative in that it tended to show
the defendant's consciousness of his guilt").
While acknowledging much of the incriminating evidence that
accumulated throughout the trial, defendant argues on appeal that
there could be a variety innocent explanations for this evidence.
For example, with respect to the cover-up efforts, defendant says
that an "equally reasonable" explanation "was the understandable
desire of a loving uncle to protect his kin." The law, however,
imposes no requirement that the evidence rule out every hypothesis
of innocence when a defendant moves for dismissal. Taylor
N.C. at 604, 447 S.E.2d at 365. Rather, the evidence need only
permit a reasonable inference of defendant's guilt. Viewing the
evidence in the record as a whole, and in the light most favorableto the State, we conclude there was substantial evidence that
defendant perpetrated the robbery scheme in concert with his
nephews. Defendant's motion to dismiss was, therefore, properly
Defendant next argues that the trial court improperly admitted
hearsay statements attributed to Willie McLean under the excited
utterance exception to the hearsay rule. See
N.C. Gen. Stat. § 8C-
1, Rule 803(2) (2005). On direct examination, Cherrie McLean,
defendant's niece, testified as follows:
Q. Ms. McLean, before the break you described
that when you went over to your cousin Tony's
house, Dwight and Willie McLean, they
immediately came out of the house.
Q. All right. You described that they were
Q. Would you fully describe how that
manifested, how they explained to you that
they were upset, how could you tell they were
A. Willie was doing a lot of arguing and
Dwight was crying.
Q. Okay. Did Willie appear to be angry?
Q. And was he, as you say, talking junk, as
Q. All right. Immediately upon getting in
your presence and before you asked him any
questions, did Willie say something?
Q. What did Willie say?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. You may say what
you said Willie said.
THE WITNESS: He said that he wished he
never did it because he felt like his uncle
betrayed him and Dwight.
[PROSECUTOR]: And did he refer to a particular
Q. Did he continue ranting or venting that
Q. All right. Did he say anything else about
Louis during this period of time while he was
still angry and before you asked him anything?
A. No, he just kept repeating it.
Q. Do you recall whether or not that he said
they should have never listened to Louis?
[DEFENSE COUNSEL]: Objection.
THE COURT: I'm going to allow that
question. You may answer the question.
THE WITNESS: Yes.
We need not decide whether Willie's statement, as recited by
Cherrie, fits within the excited utterance exception since, even
assuming that this was inadmissible hearsay, we hold that any error
was harmless. Defendant asserts no constitutional error, and,
therefore, he bears the burden of proving that, absent the
purported error, "a different result would have been reached at the
trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2005). See also State v. Smith
, 351 N.C. 251, 264, 524
S.E.2d 28, 38 (explaining that "'[t]he erroneous admission of
hearsay . . . is not always so prejudicial as to require a new
trial'" (quoting State v. Ramey
, 318 N.C. 457, 470, 349 S.E.2d 566,
574 (1986))), cert. denied
, 531 U.S. 862, 148 L. Ed. 2d 100, 121 S.
Ct. 151 (2000).
Defendant's only argument with respect to prejudice is that,
"[g]iven the lack of any non-circumstantial evidence linking [him]
to the murder," the admission of Willie's statement was necessarily
prejudicial. As we have discussed above, however, in connection
with the motion to dismiss, the State presented a compelling and
extensive body of circumstantial evidence implicating defendant in
this crime. The absence of direct evidence of defendant's guilt
does not make a trial error inherently prejudicial.
In short, we are not persuaded that there is a reasonable
possibility that the exclusion of Willie's hearsay statement would
have produced a different result at trial. The State presented
ample evidence tying defendant to the robbery scheme, rendering
harmless any error with respect to Willie's hearsay statement.
Therefore, this assignment of error is overruled.
In his final assignment of error, defendant argues that his
convictions must be reversed because the prosecutor, during the
closing arguments, made disparaging comments about defense counsel.
Defendant asserts the prosecutor overstepped his bounds when he
stated: [Defense counsel] made an opening
statement to you that I can only term as
generic. He told you absolutely nothing,
because [defense counsel] is depending on his
ingenuity to take the evidence that's before
you now and fashion it in a way for you to
allow this Defendant to escape justice. On
the one hand he has this man standing up in
the line of fire. Why would your nephew do
that to you? At the same time he has him
laying on the ground with his head in the
sand, so that he doesn't know who it is. It
can't be both ways, folks. There's one of
three possibilities in this case. [Defense
counsel] will be happy for you to grab either
of the first two.
Defense counsel raised no objection to the prosecutor's remarks at
trial, but now, on appeal, defendant contends that the prosecutor's
remarks resemble those in State v. Rivera
, 350 N.C. 285, 290-91,
514 S.E.2d 720, 723 (1999), in which the Supreme Court disapproved
of a prosecutor's statement that defense counsel "'displayed one of
the best poker faces . . . in the history of this courthouse.'"
It is a basic tenet of legal advocacy that lawyers should
avoid commentary "tending to disparage the personality or
performance of another" lawyer. Id.
at 291, 514 S.E.2d at 723.
Nonetheless, "[w]hen a defendant fails to object to the
prosecutor's comments during closing arguments, 'only an extreme
impropriety on the part of the prosecutor will compel this Court to
hold that the trial judge abused his discretion in not recognizing
and correcting ex mero motu
an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken.'" State v. Davis
, 353 N.C. 1, 31, 539 S.E.2d 243, 263
(2000) (quoting State v. Richardson
, 342 N.C. 772, 786, 467 S.E.2d
685, 693, cert. denied
, 519 U.S. 890, 136 L. Ed. 2d 160, 117 S. Ct.229 (1996)), cert. denied
, 534 U.S. 839, 151 L. Ed. 2d 55, 122 S.
Ct. 95 (2001).
Although the prosecutor's statements made reference to defense
counsel, they were also a commentary on the evidence and on how
this evidence could logically support only a finding of guilt. The
quoted portion of the prosecutor's closing argument indicates that
his purpose was to highlight the inconsistency of the defense's
theories, suggesting, as a result, that neither was worthy of
credit. Given this context, we cannot conclude that the
prosecutor's remarks amounted to an "extreme impropriety." See
State v. Gaines
, 345 N.C. 647, 674-75, 483 S.E.2d 396, 412-13
(holding prosecutor's closing remarks were not grossly improper
even though prosecutor suggested that defense counsel was trying to
distort the evidence and was "making stuff up"), cert. denied
U.S. 900, 139 L. Ed. 2d 177, 118 S. Ct. 248 (1997). This
assignment of error is, therefore, overruled.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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