Appeal by defendant from a judgment dated 28 June 2006 by
Judge Jerry Braswell in Wayne County Superior Court. Heard in the
Court of Appeals 24 May 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant.
Roderick Demetrius Blount (defendant) appeals from a judgment
dated 28 June 2006 and entered consistent with a jury verdict
finding him guilty of possession of a firearm by a convicted felon.
For the reasons stated herein, we find defendant received a fair
trial free from error.
During the afternoon of 19 August 2005, Officer Chad Calloway
of the Goldsboro Police Department was driving an unmarked police
car outside the Goldsboro city limits. Officer Calloway stopped at
an intersection and was third in a group of cars stopped at a stop
sign. The first car was red, and the second was white. While atthe stop sign, Officer Calloway observed defendant get out of the
red car and walk back to the white car where some kind of argument
appeared to take place. Defendant then walked back to the car he
had been in and got back into the front passenger seat.
The red car then turned left at the intersection, the white
car followed, and Officer Calloway followed the two cars. Officer
Calloway observed the white car tailgating the red car, and Officer
Calloway testified that he saw defendant's entire torso come out
of the red car. His entire torso is hanging out the passenger side
window, and he's got a gun in his hand and he's pointing it at the
car that's behind him. Both the white car and Officer Calloway's
car fell back, and Officer Calloway radioed for backup. When
Officer Calloway knew he was within the jurisdiction where he could
make a stop he activated his lights and siren, and both cars pulled
over to the side of the road.
Officer Calloway ordered the driver of the red car to turn off
the ignition and ordered the occupants of the car to show their
hands. In addition to defendant, there were two females in the red
car. Officer Calloway ordered defendant out of the car, and placed
defendant under arrest; the two females were instructed to stand at
the front of the car. Officer Calloway made a cursory search of
the car, but did not find any weapon. He asked the two females
where the weapon was and they said they did not know.
Meanwhile, additional officers arrived for backup. Officer
Karl Michael Rabun searched the car and found a gun underneath the
driver's seat of the car which was consistent with what OfficerCalloway had seen in Mr. Blount's hand. After Officer Rabun seized
the gun, defendant was transferred to the patrol car and taken to
the magistrate's office where he was charged with being a felon in
possession of a firearm. Officer Rabun testified that, during the
booking process, defendant made a statement asking, What kind of
girl did he have that wouldn't take a charge for him[?]
Testifying in his own defense, defendant denied making any
statements to Officer Calloway other than that he did not have a
weapon. Defendant further testified that he was holding a cell
phone in his hand when he was leaning out of the car and was trying
to get the occupants of the white car to give him a call.
The driver of the red car, Ms. Jackie Barnes, testified on
behalf of defendant and stated she did not see defendant with a
handgun, but he did have a cell phone because he was calling them
trying to tell them to stop following them. Ms. Barnes was driving
her sister's car, and she did not check to see if any weapons were
in the car when she got it from her sister and did not know to whom
the gun belonged.
Defendant was indicted at the 5 December 2005 Session of the
Wayne County Superior Court Division for the offense of possession
of a firearm by a convicted felon. Defendant was subsequently
tried on this charge at the 26 June 2006 Criminal Session of the
Superior Court of Wayne County, the Honorable Jerry Braswell, judge
presiding. On 28 June 2006, the jury returned a verdict finding
defendant guilty of possession of a firearm by a convicted felon. The trial court entered a judgment, dated 28 June 2006, consistent
with the jury verdict sentencing defendant to a term of
imprisonment with the North Carolina Department of Correction for
fifteen to eighteen months. Defendant appeals.
Defendant presents the issues of whether the court erred in:
(I) admitting defendant's self-incriminating statements into
evidence; (II) admitting Officer Calloway's opinion testimony
concerning defendant's knowledge of whether or not he was allowed
to possess a gun; and (III) permitting the State to elicit
testimony about, and perform demonstrations with, the handgun and
to publish the handgun to the jury when it had not been formally
admitted into evidence.
Defendant first argues the trial court erred in allowing
defendant's self-incriminating statements into evidence because the
statements were obtained from him while in custody, but without him
having been warned of his constitutional rights. We disagree.
As a general rule, a defendant's statements made in response
to custodial interrogation may not be admitted against him at trial
unless the defendant had first been informed of his constitutional
rights. Miranda v. Arizona
, 384 U.S. 436, 16 L. Ed. 2d 694 (1966);
State v. Hyatt
, 355 N.C. 642, 653-54, 566 S.E.2d 61, 69 (2002),
, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). However,
the United States Supreme Court has recognized certain exceptions
warnings. New York v. Quarles
, 467 U.S. 649, 81 L. Ed.2d 550 (1984). One of those exceptions is the public safety
exception, which provides that questions asked by law enforcement
officers to secure their own safety or the safety of the public and
limited to information necessary for that purpose are excepted from
rule. State v. Brooks
, 337 N.C. 132, 144, 446 S.E.2d
579, 587 (1994).
Here, the trial court allowed Officer Calloway to testify that
defendant stated he did not have a gun and that one of the females
had thrown it off a bridge. These statements were made in response
to Officer Calloway's question, Where is the gun?, asked as
Officer Calloway was taking defendant into custody and prior to
defendant having been advised of his Miranda
rights. The question
as to the location of the handgun was asked by Officer Calloway to
secure his safety in a potentially volatile situation. While
defendant appeared to be unarmed, Officer Calloway had seen
defendant with a gun just a few moments beforehand and had not seen
anything thrown from the car. The two females were standing at the
front of the car and thus the presence of an unsecured handgun
still posed a danger to Officer Calloway as he secured the scene
prior to the arrival of backup. Therefore, the public safety
exception applies given the facts of this case. But see State v.
, 157 N.C. App. 657, 661, 580 S.E.2d 21, 25 (2003) (holding
the public safety exception did not apply where the defendant was
asked several questions after he was handcuffed and surrounded by
multiple officers and no one else was present at the scene of the
arrest). These assignments of error are overruled.
Defendant next contends the trial court erred in admitting
Officer Calloway's opinion testimony concerning defendant's
knowledge of whether or not he was allowed to possess a gun. At
the conclusion of the State's re-direct examination of Officer
Calloway, the following occurred:
Q. And the defendant's statement that, Donja,
tell him this is your gun because you ain't
got no felonies, does that imply to you that
the defendant knew he was not allowed to have
A. Yes, ma'am.
Defendant argues Officer Calloway's opinion as to whether defendant
knew he was not allowed to have a gun was irrelevant and
prejudicial to defendant. We disagree.
Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
Generally, [a]ll relevant evidence is admissible[.] N.C. Gen.
Stat. § 8C-1, Rule 402 (2005). Our Supreme Court has further held
[e]vidence is relevant if it has any logical
tendency to prove a fact at issue in a case,
and in a criminal case every circumstance
calculated to throw any light upon the
supposed crime is admissible and permissible.
It is not required that evidence bear directly
on the question in issue[.]
State v. Arnold
, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973)
(internal citations omitted). Additionally, Rule 401 sets a standard to which trial judges
must adhere in determining whether proffered
evidence is relevant; at the same time, this
standard gives the judge great freedom to
admit evidence because the rule makes evidence
relevant if it has any
logical tendency to
prove any fact that is of consequence. Thus,
even though a trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the abuse
of discretion standard applicable to Rule 403,
such rulings are given great deference on
State v. Wallace
, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991) (internal citations omitted), disc. rev. denied
, 331 N.C.
290, 416 S.E.2d 398, cert. denied
, 506 U.S. 915, 121 L. Ed. 2d 241
(1992). At trial, defendant denied pointing a gun at the white
car when hanging out the car window and claimed that he was, in
fact, gesturing with his cell phone. Defendant repeatedly denied
having possessed a gun, and denied knowing the gun was in the car.
However, just after his arrest, and while defendant was being
transferred to a different patrol vehicle, defendant asked one of
the females to tell the officers the gun was hers because you
ain't got no felonies. This statement may be interpreted as
essentially an admission by defendant that he possessed the gun and
was asking one of the females to tell the officers the gun was
hers, not because the gun was actually hers, but in order to
protect himself from criminal liability for possessing the gun.
Officer Calloway's opinion regarding this statement was permissible
to provide the jury with a clear understanding of relevance and
importance of the statement and defendant's actions at the time of
his arrest. See
N.C. Gen. Stat. § 8C-1, Rule 701 (2005)([T]estimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding
of his testimony or the determination of a fact in issue.). This
assignment of error is overruled.
Defendant lastly argues the trial court committed plain error
when it permitted the State to elicit testimony about, and perform
demonstrations with, the handgun before the jury and to publish the
handgun to the jury when it had not been formally admitted into
evidence. At trial, Officers Calloway and Rabun testified that
State's Exhibit Number Two was the gun found in the car in which
defendant was a passenger. The handgun was published to the jury;
however it was never formally admitted into evidence, although the
magazine accompanying the gun was formally admitted into evidence.
Defendant did not object to the use of the gun during the testimony
of Officers Calloway and Rabun, nor to the publication of the gun
to the jury, thus we will review this argument under the standard
of plain error.
Under the plain error standard of review, defendant has the
burden of showing: '(i) that a different result probably would have
been reached but for the error or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial.' State v. Jones
, 358 N.C. 330, 346, 595 S.E.2d 124,
135 (2004) (quoting State v. Bishop
, 346 N.C. 365, 385, 488 S.E.2d
769, 779 (1997)). Defendant correctly states the plain errorstandard of review applicable to his argument; however, defendant
deviates from this standard of review and argues that [b]ecause
the jury's consideration of extraneous information represents
constitutional error, prejudice is presumed unless the State
demonstrates beyond a reasonable doubt that the error could not
have contributed to the verdict. By failing to present any
objections based on constitutional rights to the trial court,
defendant has waived his right to review except under the plain
error standard. State v. Anderson
, 355 N.C. 136, 142, 558 S.E.2d
87, 92 (2002) ([A] purported error, even one of constitutional
magnitude, that is not raised and ruled upon in the trial court is
waived and will not be considered on appeal.); see also Bishop
346 N.C. at 385, 488 S.E.2d at 779 (holding the defendant has the
burden of showing that the error constituted plain error where no
objection was made at trial and the error implicated the
defendant's constitutional rights). Thus, prejudice to defendant
will not be presumed and defendant has the burden of showing that,
because of the error, he was prejudiced to the extent that there
was a miscarriage of justice or that a different result probably
would have been reached at trial.
In the instant case, the question of whether a gun was found
in the car was never an issue at trial, only whether defendant
actually possessed a gun. Further, during the cross examination of
Officer Rabun, defendant's trial counsel elicited the following:
Q. And if you would, indicate for the jury
what items it is that you are stating on that
evidence control sheet that you took from thevehicle search that you conducted on August
A. As bag 1, item 1, collected on August 19th,
I indicated gun box -- which is what I put the
evidence into -- containing a nine-millimeter
semiautomatic pistol, a Ruger P89DC, serial
number 30789901, found under the front
driver's seat of the suspect vehicle. . . .
This description matches that of State's Exhibit Number Two. While
the State never formally moved to admit the handgun into evidence,
it is apparent from the record before this Court that everyone at
the trial considered the handgun to have been admitted into
evidence. Given the conduct of all parties at trial, defendant has
failed to meet his burden under our plain error standard of review.
This assignment of error is overruled.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).
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