Appeal by defendant from judgments entered 25 May 2006 by
Judge James W. Morgan in Mecklenburg County Superior Court. Heard
in the Court of Appeals 21 August 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Margaret A. Force, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
HUNTER, Judge.
George Jarrell Johnson (“defendant”) appeals his conviction of
assault with a deadly weapon with intent to kill and inflicting
serious injury under N.C. Gen. Stat. § 14-32(a) (2005), and his
conviction of robbery with a dangerous weapon under N.C. Gen. Stat.
§ 14-87(a) (2005). After careful consideration, we find no
prejudicial error.
The State presented evidence that tended to show that on 6
February 2005, Robin B. Holt (“Holt” or “victim”) went to make a
bank deposit for her employer in Mecklenburg County. Holt
approached the bank building with two deposit bags containing
approximately $160.00 in cash and $1,500.00 in checks. A man thenjumped out of some bushes, ran toward her, and said “drop it.” The
assailant was wearing black denim jeans, a black denim long-sleeved
shirt, and boots. Holt looked at the man and then ran toward a
restaurant.
The assailant followed her around the end of the building and
caught up to her in the driveway area, where other people were
located. The assailant than grabbed Holt by the shoulder, shot
her, and yanked her to the ground. After taking the deposit bags
the assailant fired a shot into the air in the direction of Holt
and got into a green Honda.
At trial, Holt identified defendant as the assailant by
pointing him out in open court. She also had previously made a
positive identification of defendant in a photo lineup. Holt
described the vehicle which defendant drove as a green Honda Accord
and gave the tag number, NBV-4818, to the police.
Two witnesses who were nearby identified the tag number and
the vehicle used by the assailant to flee. They were able to give
a general description of the assailant but were unable to make a
positive identification.
Evidence was presented that a green Honda fitting the
description given by witnesses was reported stolen on 4 February
2005. That car, however, has never been recovered.
Officer Donald Boyd Pennex, Jr. (“Officer Pennex”), a
community coordinator with the Charlotte-Mecklenburg Police
Department (“CMPD”), testified that in early February he saw a
green Honda parked at 1017 Franklin Street in North Charlotte. CMPD Detective Curtis S. Driggers, Jr. (“Detective Driggers”), who
was assigned this case, testified during cross-examination that
Officer Pennex informed him that he had seen a green Honda on the
Saturday or Sunday morning before the robbery and shooting
occurred. Officer Pennex testified that he was familiar with
defendant and had seen a vehicle that defendant had been driving at
1017 Franklin Street before. He has also known relatives and
acquaintances of defendant to be at that location.
CMPD Officer Doug Callahan (“Officer Callahan”) testified that
he received information from a confidential informant about the
assailant. Officer Callahan forwarded this information to
Detective Driggers. Based on this information, Detective Driggers
contacted Officer Pennex to find out who in the community used the
nickname “Smoke.” Detective Driggers was then able to determine
that defendant went by the nickname “Smoke.”
Defendant was later taken into custody and advised of his
Miranda rights, which he waived by signing a waiver form.
Detective Driggers stated that defendant engaged in conversation
geared toward learning information about the evidence in the case
and was uncooperative during the interrogation. Detective Driggers
testified that he lied to defendant and told him that the police
had recovered the car and gun used in the commission of the crime.
According to Detective Driggers, defendant was “real cocky” and
said, “[y]ou don't have the car, and you don't have my gun.”
Defendant then invoked his right to remain silent. DetectiveDriggers testified that defendant did not at any time deny shooting
and robbing the victim.
Defendant presents the following issues for this Court's
review: (1) whether the trial court committed plain error by
admitting testimony regarding defendant's silence during police
questioning; (2) whether the trial court committed plain error by
admitting testimony regarding a confidential informant; (3) whether
the trial court committed plain error by admitting testimony that
defendant lived in a high-crime neighborhood where drugs were sold
or abused its discretion in denying defendant's motion to strike;
and (4) whether the trial court abused its discretion in responding
to a question from the jury.
As most of these issues require us to apply the plain error
standard of review, it is appropriate to discuss that standard at
the outset. “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)). Where there is no error at all,
defendant will be unable to show plain error. State v. Torain, 316
N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93
L. Ed. 2d 77 (1986).
I.
During the direct examination of Detective Driggers, the State
asked if “[defendant] at any point den[ied] that he had shot and
robbed Miss Holt?” Detective Driggers replied “[n]o.” Later, the
State asked, “at any point during that discussion, did he deny
shooting and robbing Miss Holt?” Again, Detective Driggers
answered “[n]o.” Defendant did not object to the questions posed
by the State nor to the answers given by Detective Driggers. As
such, defendant argues that the trial court committed plain error
by not acting
sua sponte to exclude this testimony.
(See footnote 1)
We disagree.
As stated, we first must determine whether admission of the
evidence would constitute an error even if there had been a proper
objection below.
Id. Defendant argues that the testimony elicited
from Detective Driggers should have been excluded as hearsay.
“'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). Generally, hearsay is not
admissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2005). An exception
to that general rule makes admissible a statement that “is offered
against a party and . . . is . . . a statement of which he has
manifested his adoption or belief in its truth[.]” N.C. Gen. Stat.
§ 8C-1, Rule 801(d). The State contends that defendant's non-
denial falls within this provision. We disagree. There is no requirement that a suspect prove his innocence to
investigating officers.
State v. Moore, 262 N.C. 431, 437, 137
S.E.2d 812, 816 (1964).
Ordinarily, silence, or refusal or failure to
deny may be shown only when an accusation is
made in the presence of an accused -- not by
investigating officers who get their
information second-hand -- but only by someone
who has first-hand knowledge and makes a
charge based thereon which the occasion, the
nature of the charge, and the surrounding
circumstances would call for a denial if the
accusation were untrue.
Id. (citations omitted). In the instant case, there is no evidence
in the record that Detective Driggers had first-hand knowledge of
the crime. Thus, the admission of the testimony regarding
defendant's silence was error, and we must next determine whether
the trial court's failure to exclude this evidence
sua sponte was
“plain error.” We hold that it was not.
The evidence against defendant in this case was strong even
without Detective Driggers's testimony regarding defendant's non-
denial, and it cannot be said that the admission of that testimony
had a probable impact on the verdict. First, the victim identified
defendant as her assailant in open court and during a photo lineup.
She was confident about the identification. Second, a car similar
to the one used by the assailant was spotted outside a house linked
to defendant not long before the crime occurred. Finally,
defendant's statement that the police “don't have the car, and
. . . don't have my gun[]” indicate that he was aware that a gun
and a car were used in the commission of the crime. Defendant'sknowledge as to details of the crime indicate that he was involved
in the robbery and shooting of Holt.
There being overwhelming evidence against defendant, we cannot
say that the admission of this testimony had a probable impact on
the outcome of the trial. Accordingly, defendant's assignment of
error as to this issue is rejected.
II.
In his next assignment of error, defendant argues that the
statements from a confidential informant included in Detective
Driggers's testimony should have been excluded from evidence
because the statements were offered for the truth of the matter
asserted and were inadmissible hearsay.
See N.C. Gen. Stat. § 8C-
1, Rules 801, 802. He further argues that the statements were
testimonial and their admission violated his right to confront the
witnesses against him.
See N.C. Const. art. I, § 23; U.S. Const.
amend. VI;
Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d
177, 197 (2004);
State v. Bethea, 173 N.C. App. 43, 54, 617 S.E.2d
687, 694 (2005). We disagree. Because defendant did not object at
trial, our standard of review is plain error.
See Jones, 358 N.C.
at 346, 595 S.E.2d at 135
;
State v. Cao, 175 N.C. App. 434, 436-37,
626 S.E.2d 301, 302-03 (2006) (reviewing Confrontation Clause
argument for plain error).
As we have stated, hearsay “is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
N.C. Gen. Stat. § 8C-1, Rule 801(c). A statement is not hearsay,however, if it is offered to explain subsequent conduct of the
witness.
See State v. Canady, 355 N.C. 242, 248, 559 S.E.2d 762,
765 (2002) (“[a] statement which explains a person's subsequent
conduct is an example of . . . admissible nonhearsay”).
Similarly, the purpose for which the challenged evidence was
offered is central to defendant's argument that there was a
Confrontation Clause violation. The Confrontation Clause does not
bar the use of a testimonial statement “for purposes other than
establishing the truth of the matter asserted.”
Crawford, 541 U.S.
at 59 n.9, 158 L. Ed. 2d at 197 n.9. Thus, if this Court
determines that the testimony was used to explain the officer's
conduct, then any hearsay would not be in violation of the
Confrontation Clause.
The following exchange took place on Detective Driggers's
direct examination:
Q And did Officer Callahan tell you
that he had received some information from a
confidential informant?
A Yes, he did.
Q And as a result of your decision
[
sic] with Officer Callahan regarding that
information from the confidential informant
what, if anything, did you do?
A I went out to the address at 1015 or
1017 Franklin Street, made some observations
of that area looking for the suspect vehicle
in this case, which was a green Honda Accord.
. . .
[Q] You said that during your
investigation of this case, that you had a
discussion with Officer Callahan at some
point?
A Yes, sir.
. . .
Q And based on that information you
received from Officer Callahan, what did you
do with regard to developing your suspect?
A I knew that the area of town where
the suspect was supposed to be known to hang
out was also the area where Officer Pennex is
a Community Coordinator.
I made contact with Officer Pennex, and
asked him if he knew who went by the nickname
that I had.
Q And what was that nickname?
A The nickname was Smoke.
Q And at some point, were you two able
to determine Smoke's real name?
. . .
A George Jarrell Johnson [defendant].
The issue before this Court is whether this exchange went beyond
describing the investigation. As to where the officer was looking
for defendant, those statements were admissible, not for the truth
of the matter asserted, but for purposes of explaining why
Detective Driggers observed the area at 1015 or 1017 Franklin
Street.
See State v. Leyva, ___ N.C. App. ___, ___, 640 S.E.2d
394, 398-400 (2007) (testimony as to what confidential informant
told an officer which was then relayed to a detective/witness was
admissible because that testimony explained why detectives were in
a certain location). Moreover, Detective Driggers did not relate
any statement made by the informant in terms of where defendant
could be found; rather, he merely testified about what he did next. We thus find no error, much less plain error, in the admission of
the testimony relating to defendant's whereabouts.
As to the testimony regarding defendant's purported nickname,
“Smoke,” even assuming error we do not find it to constitute plain
error. Simply, we are unable to see how the jury's knowledge of
defendant's purported nickname could affect the outcome of the
case. Discovery of the nickname was important in terms of the
investigation, as it led police to the eventual discovery of
defendant, but the fact that defendant may have had the nickname
“Smoke” did not in anyway establish the elements of charged
offenses or help prove the State's case. Defendant's assignment of
error as to this issue is rejected.
III.
Defendant next argues that the trial court committed plain
error by not excluding evidence about the neighborhood associated
with defendant. We disagree.
Defense counsel asked Detective Driggers why Officer Pennex
noticed a green Honda near 1017 Franklin Street. Detective
Driggers stated that the alley where Officer Pennex saw the car was
a place “where drugs are sold, and things of that done [
sic] in
that area.” He also stated, “[t]hat's a high crime area.”
Defendant argues that these statements were inadmissible hearsay
and were irrelevant.
Generally, evidence of the reputation of a place or
neighborhood in a criminal prosecution constitutes inadmissible
hearsay.
State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705(1985). It is settled, however, that “the law wisely permits
evidence not otherwise admissible to be offered to explain or rebut
evidence elicited by the defendant himself.”
State v. Albert, 303
N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
Once a “party introduces evidence as to a particular fact or
transaction, the other party is entitled to introduce evidence in
explanation or rebuttal thereof, even though such latter evidence
would be incompetent or irrelevant had it been offered initially.”
Id. Thus, if defendant opened the door as to the issue of whether
the neighborhood in which defendant lived was a “high crime area”
or was “known for drugs,” then even if the testimony was irrelevant
and hearsay, it would not be error for it to have been admitted.
Our review of the transcript reveals that the testimony in
question was provided in response to cross-examination by
defendant. The questions were intended to cast doubt about the
truthfulness of Officer Pennex noticing a green Honda parked in the
area. Detective Driggers testified to the following:
Q Didn't know the car was stolen, but
just happened to recall after this event
happened that he saw that car the weekend
before this happened, sometime during that
same weekend? . . . Is that right?
A Yes, sir. As far as I understand
from [Officer Pennex's] testimony, from what
he told me, yes.
Q You have any idea why [Officer
Pennex] made note of that fact, since he
didn't even know the car was stolen, and this
event hadn't even taken place yet?
A Well, first of all, he's a
Coordinator for that neighborhood.
And during his patrol, he would make note
of a car being backed between the alley where
drugs are sold, and things of that done [
sic]
in that area.
That's a high crime area.
It is obvious to this Court that the response was given in an
effort to explain why Officer Pennex would take notice of a car at
that address and to rebut the implication that it was unbelievable
that he would remember seeing a green Honda. Accordingly, under
these particular circumstances, we hold that the trial court did
not err, much less commit plain error, by allowing the testimony,
as it was offered to rebut a particular fact brought out by
defendant.
Defendant further argues that the trial court committed plain
error by not excluding evidence that the vehicle involved in the
shooting and robbery was a stolen car. Defendant argues that the
evidence was introduced for the purpose of showing defendant's
involvement in other crimes in order to show that he acted in
conformity therewith.
See N.C. Gen. Stat. § 8C-1, Rule 404(b)
(2005) (commission of other crimes or bad acts not admissible to
show that defendant acted in conformity therewith).
Under Rule 404, however, the prosecution may introduce
evidence of other crimes or wrongs committed by defendant for
purposes including “proof of motive, opportunity, intent,
preparation, plan, knowledge, [or] identity[.]”
Id. “To be
admissible under this rule, evidence of other acts must contain
similarities that 'support the
reasonable inference that the same
person committed both the earlier and the later [acts].'”
State v.English, 95 N.C. App. 611, 614, 383 S.E.2d 436, 438 (1989) (quoting
State v. Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593 (1988)). In
order to establish that reasonable inference, the State must show
a “demonstrable nexus” between the prior crime and the defendant.
Id.
In the instant case, the State asked Detective Driggers about
the owner of the car that the assailant drove. Detective Driggers
replied, “I have a larceny of auto report, if that's what you're
referring to.” Before turning to the issue of whether this
evidence is inadmissible character evidence, we must first address
defendant's contention that this testimony was irrelevant. This
presents the issue of whether the evidence 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). The evidence that the car was stolen tends to make a fact
of consequence, that the assailant drove off in a green Honda, more
probable than it would be without the evidence because it helps
explain how defendant would have access to a vehicle that he did
not own. Additionally, it makes a fact in consequence, that a
green Honda was seen in a neighborhood associated with defendant,
more probable as it provides a possible explanation as to why it
was located there. We thus hold that the evidence was relevant.
Having determined that the evidence was relevant, we now must
determine whether the evidence should have been excluded under Rule
404(b). Under Rule 404(b), “[e]vidence of other crimes, wrongs, oracts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith.” In the instant
case, there is no testimony that defendant actually stole the
vehicle. There is only evidence that a vehicle had been stolen
that was similar to the one driven by the assailant. There being
no testimony or evidence presented that defendant was the one who
stole the vehicle in question, we cannot say that there was any
evidence presented of other crimes or wrongs that he had committed.
Accordingly, we find no error in the admission of this evidence.
Even were we to find the admission of this evidence to be error, it
did not amount to plain error for the reasons discussed in Section
I of this opinion.
Defendant's final argument in this third section is that the
trial court erred in not granting his motion to strike portions of
Officer Callahan's testimony. We disagree.
Officer Callahan testified that there was an outstanding
warrant for defendant. The trial court sustained defendant's
objection to this testimony but did not grant his motion to strike.
The trial court's denial of a motion to strike will not be
disturbed on appeal absent an abuse of discretion.
State v. Smith,
291 N.C. 505, 518, 231 S.E.2d 663, 672 (1977). An abuse of
discretion will be found when a trial court's ruling “'is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision.'”
State v.
Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (citation omitted),
cert. denied, ___ U.S. ___, 166 L. Ed. 2d 378 (2006). Here, we find no abuse of discretion. Officer Callahan
testified that he received information from a confidential
informant about this case and contacted Detective Driggers to
forward the information to him. He then testified that: “Based on
that . . . Detective Driggers contacted me about a week later, and
advised me that the victim in this case had actually pointed out
one of the subjects in a lineup,
and there was an outstanding
warrant for the Defendant.” (Emphasis added.) Our review of this
testimony reveals that Officer Callahan was likely talking about
the warrant that had issued after the victim identified defendant
in a photo lineup and not a warrant from an “other crime[], wrong[]
or act[]” as would be barred under N.C. Gen. Stat. § 8C-1, Rule
404(b). Moreover, even were this testimony related to a different
crime, we still find no abuse of discretion because the trial court
instructed the jury after sustaining defendant's objection to this
testimony that “this last testimony was allowed in to explain what
this witness did, not that any information he was given was
actually true, but it is explaining what this witness did after he
got the information.” Accordingly, we hold that the trial court
did not abuse its discretion in denying defendant's motion to
strike.
IV.
Defendant's final argument is that the trial court abused its
discretion in not repeating the burdens of proof to the jury. We
disagree. Once the jury begins deliberations, “the judge may give
appropriate additional instructions to . . . [r]espond to an
inquiry of the jury made in open court[.]” N.C. Gen. Stat. § 15A-
1234(a)(1) (2005). It is within the trial court's discretion to
repeat instructions to the jury.
See State v. Bromfield, 332 N.C.
24, 45, 418 S.E.2d 491, 502 (1992) (“[a] judge is not required to
repeat instructions if he chooses not to do so”). An “[a]buse of
discretion results where the court's ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.”
State v. Hennis, 323 N.C.
279, 285, 372 S.E.2d 523, 527 (1998).
Here, after the jury began deliberations, the jury sent out
the question, “[c]an we get the burdens of proof for the two
charges in writing to examine?” The judge was of the opinion that
the jury meant to request the elements of the charges in writing.
He proposed to the prosecutor and defense counsel that he would
bring in the jury and explain that his written copy of the elements
has notes on it that would not be appropriate to send back, but he
would re-read the elements and ask the jury to work on that and to
let him know if they had further problems.
The judge then re-read the two charges and the elements of
those charges to the jury and explained that each element must be
proved “beyond a reasonable doubt.” He concluded by telling the
jury, “I hope that answers your question. You will resume your
deliberation. If you have any other questions please write them
down and let us know.” When the jury left, the judge asked whether there were any
additions or corrections. Defense counsel asked the court if it
had a separate charge for the burden of proof. The judge indicated
that he could bring the jury back to say that the State has the
burden of proof beyond a reasonable doubt. The prosecutor,
however, objected and pointed out that when the jurors were asked
if their question had been answered, “they were nodding
affirmatively[.]” The judge observed that both instructions he
read in response to the jury question did say that the State bears
the burden of proof and determined that was sufficient.
Under these circumstances we find no abuse of discretion. The
judge discussed his response with the State and defendant before
and after it was provided to the jury and considered the
defendant's point. The fact that he decided no more discussion
regarding the burden of proof was needed was well within his
discretion. Indeed, the transcript reflects that the jury was
satisfied by the judge's answer. Accordingly, we find no abuse of
discretion on this issue and reject defendant's assignment of
error.
V.
In summary, we find that any errors committed by the trial
court did not amount to plain error. We also find the trial court
did not abuse its discretion in denying defendant's motion to
strike certain testimony nor in answering the jury's question on
the burden of proof. Defendant's trial was free of prejudicial
error. No prejudicial error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
Footnote: 1