Appeal by defendant from judgment entered 28 May 2003 by Judge
Andy Cromer in Forsyth County Superior Court. Heard in the Court
of Appeals 19 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Amanda P. Little, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
Defendant Ward Lee Staton appeals from his conviction for
robbery with a dangerous weapon. On appeal, defendant primarily
argues that the trial court failed to comply with N.C. Gen. Stat.
§ 15A-1233 (2005) in responding to a request by the jury to see
certain exhibits, including a videotape. Defendant, however, at
trial, expressly agreed to the trial court's sending the exhibits
into the jury room and, indeed, facilitated that process by
assisting the bailiff with the VCR. Under these circumstances,
defendant is not entitled to a new trial for any violation of the
The State's evidence at trial tended to show the following
facts. In 2002, Robin McNeill was a branch manager at the Advance
America payday loan service located on Peter's Creek Parkway in
Winston-Salem, North Carolina. At approximately 3:00 p.m. on 3
July 2002, Ms. McNeill was alone in the store. When she went to
the store's back room to get a lightbulb, she was alerted to the
presence of a customer by the front door's electronic chimes. Ms.
McNeill returned to the customer service area where she saw a man,
whom she identified at trial as defendant, carrying a blue folder.
The man told her that he wished to open an account.
As Ms. McNeill began the application process, defendant pulled
out a gun and announced, "this is a robbery." Ms. McNeill gave the
man $537.00, including all the money in the cash drawer at her
teller station as well as the money from the store's safe. Before
leaving, the robber ordered Ms. McNeill to stay behind the counter
and count to 100. Immediately after Ms. McNeill heard the door's
electronic chimes, indicating the robber had left, she called
another Advance America location nearby, locked the door, and
triggered the alarm.
Police arrived a short time later. Ms. McNeill's initial
description of the robber noted that he had "a bump" or growth on
his left earlobe. She also told police that the robber had short
hair, was in need of a shave, and was wearing a "real colorful"
blue shirt. On the same day, officers obtained a videotape from
the company's surveillance camera showing the entire incident. Detective Stanley Nieves of the Winston-Salem Police
Department had Ms. McNeill review a series of photographs generated
by the police department's "mug shot computer system," which
selected photographs based upon Ms. McNeill's description.
Defendant was not, however, included in that photographic array
because his photograph was not contained in that system. Ms.
McNeill concluded that the robber was not among the computer's "mug
Detective Nieves later learned from another detective that
defendant might be a possible suspect in the Advance America
robbery. Detective Nieves obtained defendant's photograph from the
North Carolina Department of Correction and, on 7 August 2002,
showed Ms. McNeill another photographic lineup containing pictures
of six different individuals, including defendant. Ms. McNeill
immediately identified defendant's photograph as being that of the
robber. Ms. McNeill stated at trial that, based upon defendant's
general appearance and the "growth or cyst" on his left ear, she
had "[n]o doubt at all" that defendant had committed the robbery.
On 2 December 2002, defendant was indicted for robbery with a
dangerous weapon and second degree kidnapping. A superceding
indictment including the same charges was filed on 19 May 2003. At
trial, during the 28 May 2003 session of Forsyth County Superior
Court, the trial court dismissed the second degree kidnapping
charge. The jury subsequently found defendant guilty of robbery
with a dangerous weapon. The trial court sentenced defendantwithin the presumptive range to a term of 103 to 133 months
imprisonment. Defendant appealed to this Court.
Defendant has also filed a petition for writ of certiorari
because he may have lost the right to appeal "by failure to take
timely action." Defendant's petition indicates that, to the extent
his right to appeal was lost, it was not on account of defendant's
own errors, but, rather, was due to errors of the court reporter
and defendant's appellate counsel. The State specifically notes in
its brief that it does not oppose defendant's petition. We
therefore elect to exercise our discretion under N.C.R. App. P.
21(a)(1) and grant defendant's petition.
Defendant first argues that the trial court erred by
admitting, over objection, the testimony of one of the responding
officers regarding Ms. McNeill's description of the robber on the
day of the robbery. Defendant contends that the testimony was non-
(See footnote 1)
It is well-established in North Carolina
that, regardless whether the statement might otherwise be hearsay,
"[a] prior consistent statement of a witness is admissible to
corroborate the testimony of the witness." State v. Jones
, 329N.C. 254, 257, 404 S.E.2d 835, 836 (1991). On the other hand,
"[p]rior statements by a witness which contradict trial testimony
. . . may not be introduced under the auspices of corroborative
evidence." State v. McGraw
, 137 N.C. App. 726, 730, 529 S.E.2d
493, 497, disc. review denied
, 352 N.C. 360, 544 S.E.2d 554 (2000).
"'In order to be admissible as corroborative evidence, a
witness' prior consistent statements merely must tend to add weight
or credibility to the witness' testimony.'" State v. Walters
N.C. 68, 89, 588 S.E.2d 344, 356 (quoting State v. Farmer
, 333 N.C.
172, 192, 424 S.E.2d 120, 131 (1993)), cert. denied
, 540 U.S. 971,
157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). Such corroborative
evidence may, therefore, contain new or additional facts so long as
it tends to add strength and credibility to the testimony it
If the previous statements are generally
consistent with the trial testimony, slight variations affect only
credibility and not admissibility. Id.
Here, defendant disputes the following testimony by Officer
T.J. Trentini of the Winston-Salem Police Department, admitted over
Q. And what was the description [of the
robber] that [Ms. McNeill] gave . . . [?]
. . . .
A. She told me that he was a black male in
his 40's about 6 foot, 185, medium build. She
told me that he was wearing a bright blue
shirt, possibly a short sleeve, button down
shirt. . . . [S]he said that he had a knot or
some type of cyst on the lower left ear lobe
that stood out and she kept pointing to her
ear lobe and she said that it appeared to besome type of extra skin growth, or a cyst or a
Ms. McNeill subsequently testified regarding the description of the
robber she provided to police as follows:
Q. What did you tell [police] when you gave
the description of the robber?
A. Okay. That he had short hair. That he
needed to shave. And that he had a bump on
his left earlobe, a big bump. And he had on a
real colorful blue shirt, it was long tailed
and it had people on it.
. . . .
Q. Do you recall if you gave them an
estimation as to his height and weight?
. . . .
A. I probably did give them an estimation.
Q. Do you remember today what you told them
that day? . . . .
The witnesses were sequestered, so Ms. McNeill had not heard
Officer Trentini's testimony regarding her prior description.
According to defendant, Officer Trentini's testimony that Ms.
McNeill said the robber was a "black male in his 40's about 6 foot,
185, medium build" was contradictory to her in-court testimony,
and, therefore, was inadmissible as non-corroborative hearsay. We
disagree. Ms. McNeill testified that she thought she had told the
police the robber's height and weight, but could not recall
specifically what she had said. Officer Trentini supplied the
details that she had forgotten by the time of trial. Thus, Ms.
McNeill's prior statement merely contained additional facts notcontained in her in-court testimony. Compare State v. Baity
N.C. 65, 69-70, 455 S.E.2d 621, 624 (1995) (prior statement that
victim was carrying gun was not contradictory to in-court testimony
that did not mention whether victim had gun) with State v. Burton
322 N.C. 447, 451, 368 S.E.2d 630, 632 (1988) (prior statement that
victim was sitting atop defendant's friend beating him was
"directly contradicted" by in-court testimony that victim was
underneath defendant's friend being beaten).
Moreover, Ms. McNeill's prior statement added weight and
credibility to her in-court testimony since the prior description
was substantially similar to the description given in court. See
, 357 N.C. at 89, 588 S.E.2d at 356. The key aspect of Ms.
McNeill's descriptions was the growth on defendant's ear, although
the prior statement also included the corroborative detail of
defendant's shirt. The details regarding his height and weight
simply made Ms. McNeill's identification of defendant more
credible. The trial court did not, therefore, err by admitting
Officer Trentini's testimony. See also State v. Rogers
, 299 N.C.
597, 601, 264 S.E.2d 89, 92 (1980) (trial court did not err by
admitting prior statement that witness saw defendant throw victim
off bridge, despite witness' in-court testimony that it was too
dark to actually see defendant throw victim, because both versions
were "substantially the same account of the activities which
Defendant next argues that the trial court committed plain
error by not striking and instructing the jury to disregard the
following exchange between the State's attorney and Detective
Q. Through the course of your investigation
were you able to get some information
concerning the involvement of this defendant?
A. Yes through my investigation I learned
from another detective that the defendant was
a possible suspect of my case.
Q. And then were you able to obtain a
photograph and present that in a photographic
line up for Ms. McNeill to view?
A. Yes. What happened was once he provided
me the information I corroborated the
information through him and through his
department, also through the department of
correction, the North Carolina Department of
, I had to turn _ you know, I
found a picture of him.
[Defense Counsel]: OBJECTION.
THE COURT: SUSTAIN.
(Emphasis added.) According to defendant, this testimony showed he
"had been convicted of other crimes in the past" and was,
therefore, highly prejudicial.
(See footnote 2)
As a general rule, "a defendant is not prejudiced when his
objection to an improper question is sustained . . . ." State v.
, 349 N.C. 428, 446, 509 S.E.2d 178, 190 (1998), cert. denied
528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). See also
State v. Quick
, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991)
("[W]here the trial court sustains defendant's objection, he has no
grounds to except."). Indeed, our Supreme Court has previously
held that a defendant was not prejudiced when the trial court
sustained his objection to the prosecutor's question regarding
whether a witness knew that the defendant was a "convicted felon."
State v. Whisenant
, 308 N.C. 791, 794, 303 S.E.2d 784, 786 (1983).
We see no basis upon which to distinguish Whisenant
Defendant nevertheless argues that merely sustaining defense
counsel's objection was inadequate and that the trial court
committed plain error by not striking Detective Nieves' testimony
or instructing the jury to completely disregard it. A prerequisite
to plain error analysis is the determination that the trial court's
action constituted error. State v. Fisher
, 171 N.C. App. 201, 212-
13, 614 S.E.2d 428, 436 (2005), cert. denied
, 361 N.C. 223, 642
S.E.2d 711 (2007). Our Supreme Court has held that "it is not
for the trial court to fail to give a curative jury
instruction after sustaining an objection, when defendant does not
request such an instruction." State v. Williams
, 350 N.C. 1, 24,
510 S.E.2d 626, 642 (emphasis added), cert. denied
, 528 U.S. 880,
145 L. Ed. 2d 162, 120 S. Ct. 193 (1999). See also State v.
, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992) ("A trialcourt does not err by failing to give a curative jury instruction
when, as here, it is not requested by the defense."); Quick
N.C. at 29, 405 S.E.2d at 196 (noting that because "defendant
failed to move to strike the testimony he considered
objectionable," he "waiv[ed] his right to assert error on appeal").
Accordingly, we overrule this assignment of error.
Defendant next argues that, after the jury retired for
deliberations, the trial court erred by failing to conduct the jury
back into courtroom following its request to review certain
evidence. We agree that the trial court erred in this respect.
N.C. Gen. Stat. § 15A-1233(a) provides: "If the jury after
retiring for deliberation requests a review of certain testimony or
other evidence, the jurors must be conducted to the courtroom. The
judge in his discretion, after notice to the prosecutor and
defendant, may direct that requested parts of the testimony be read
to the jury and may permit the jury to reexamine in open court the
requested materials admitted into evidence." This Court has
previously stated that this statute "requires that the jury be
present in the courtroom when the judge receives its request, and
when the judge responds to it." State v. Helms
, 93 N.C. App. 394,
401, 378 S.E.2d 237, 241 (1989). Notably, "[a] lack of objection
at trial does not bar a defendant's right to assign error to a
judge's failure to comply with the mandates of Section
Here, after retiring for its deliberations, the jury sent a
note containing the following request: "We would like to see the .
. . video and mug shots again." Upon receiving this note, "[t]he
attorneys and the judge . . . agreed that [the jury could] see
these," and counsel met "with the bailiff [to] show him how to
operate the VCR and remote and allow him to demonstrate that to the
jury." It is undisputed that the jury was not conducted into the
courtroom during this time, and, accordingly, the trial court erred
under N.C. Gen. Stat. § 15A-1233(a). Helms
, 93 N.C. App. at 401,
378 S.E.2d at 241.
This error does not automatically entitle defendant to a new
trial. He must still "demonstrate that there is a reasonable
possibility that a different result would have been reached had the
trial court's error not occurred." State v. Nobles
350 N.C. 483,
506, 515 S.E.2d 885, 899 (1999). In Nobles
, the Supreme Court held
that the defendant had failed to meet this burden when "there was
unanimous agreement among the State, the defendant, and the trial
judge concerning the items requested by the jury; and the
prosecution and defendant consented to permitting the jury to have
those items." Id. See also State v. Pointer
, __ N.C. App. __, __,
638 S.E.2d 909, 913 (2007) (holding that "when a defendant's lawyer
consents to the trial court's communication with the jury in a
manner other than bringing the jury back into the courtroom, the
defendant waives his right to assert a ground for appeal based on
failure to bring the jury back into the courtroom"). In this case, defense counsel not only did not object to the
trial court's communication with the jury without returning the
jurors to the courtroom, he facilitated it by showing the bailiff
how to operate the VCR to show the video in the jury room. In
addition, although defendant on appeal suggests that there might
have been some confusion regarding what items were being requested
by the jury, defense counsel, the prosecution, and the trial judge
were unanimous in their agreement regarding which items should be
sent back to the jury room. Finally, both the prosecution and
defendant consented to providing the items to the jury. In light
, we hold defendant failed to meet his burden of showing
(See footnote 3)
Defendant is not, therefore, entitled to a new trial
on this ground.
Finally, defendant argues that the trial court also violated
N.C. Gen. Stat. § 15A-1233(b), which provides:
Upon request by the jury and with consent of
all parties, the judge may in his discretion
permit the jury to take to the jury room
exhibits and writings which have been received
in evidence. If the judge permits the jury to
take to the jury room requested exhibits and
writings, he may have the jury take additional
material or first review other evidence
relating to the same issue so as not to give
undue prominence to the exhibits or writings
taken to the jury room. If the judge permits
an exhibit to be taken to the jury room, hemust, upon request, instruct the jury not to
conduct any experiments with the exhibit.
According to defendant, the statute requires not only a request by
the jury to see certain evidence, but also a request to take that
evidence into the jury room.
We do not believe defendant's construction of § 15A-1233(b) to
be a plausible reading, nor is it consistent with prior decisions.
See State v. Hines, 54 N.C. App. 529, 536-37, 284 S.E.2d 164, 169
(1981) (holding that trial court did not err in allowing evidence
to be sent to jury room under N.C. Gen. Stat. § 15A-1233(b) when
jury foreman asked "to examine the written stuff that was
submitted"). Defendant cites only State v. Platt, 85 N.C. App.
220, 354 S.E.2d 332, disc. review denied, 320 N.C. 516, 358 S.E.2d
529 (1987), in support of his construction of the statute. In
Platt, however, this Court simply held that the trial court erred
in sending into the jury room an exhibit requested by the jury when
defense counsel objected. See id. at 228, 354 S.E.2d at 337
("Defendant here objected to the jury's taking this statement into
the jury room, and the court thus violated G.S. § 15A-1233(b) in
allowing the exhibits to go into the jury room.").
Even if this construction were correct, defense counsel
specifically agreed to having those exhibits sent into the jury
room. Unlike N.C. Gen. Stat. § 15A-1233(a), a failure to object to
a trial court's decision under N.C. Gen. Stat. § 15A-1233(b) waives
the right to appellate review. See State v. Byrd, 50 N.C. App.
736, 743, 275 S.E.2d 522, 527 (holding that "defendant waived his
right to object" and presented "no question for our review" whendefendant failed "to enter an objection or otherwise indicate his
lack of consent" to trial court's decision to permit review of
evidence in jury room under N.C. Gen. Stat. § 15A-1233(b)), disc.
review denied, 303 N.C. 316, 281 S.E.2d 654 (1981). Consequently,
defendant's agreement to the trial court's sending the exhibits
into the jury room precludes our review of this issue. See also
Helms, 93 N.C. App. at 401, 378 S.E.2d at 241 (holding that
defendant waived right to challenge trial court's violation of §
15A-1233(a) when defense counsel, "beyond simply failing to enter
an objection, consented to the communication procedure").
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).