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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
STATE OF NORTH CAROLINA
No. 06 CRS 050036
ANDRE ALEXANDER FREEMAN
Appeal by defendant from judgment entered 7 September 2006 by
Judge B. Craig Ellis in Columbus County Superior Court. Heard in
the Court of Appeals 18 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Sofie W. Hosford, for defendant-appellant.
Andre Alexander Freeman (defendant) appeals from judgment
entered after a jury found him to be guilty of attempted robbery
with a dangerous weapon. We find no error.
A. State's Evidence
On 4 January 2006, Alisa Mitchell (Mitchell) was working as
a cashier at Sam's Pit Stop. Shannon Ward (Ward) entered the
store and told Mitchell that a man was standing outside. Mitchell
asked Ward to stand at the front door while she took the trash out
the back door to the dumpster. Mitchell saw a man sitting on a
newspaper box on the side of the store and asked him what he was
doing. Mitchell identified the man she spoke with as defendant incourt. Defendant informed Mitchell that he was waiting for his
father to come back from the beach. Mitchell testified defendant
had been in the store earlier that day to purchase chewing gum.
She had also seen defendant several times prior to that date.
The last customer of the night was defendant's mother,
Wilhemina Freeman (Mrs. Freeman). At 11:00 p.m., Mitchell closed
the store. Defendant knocked on the window and asked if he could
use the store's telephone. Mitchell informed defendant that no one
was allowed inside the store after closing hours.
As Mitchell was walking towards her car, she saw defendant
sitting on a red and silver bicycle. Mitchell testified she did
not see anyone else on the store's premises at that time.
Defendant put a bandana over his face, approached Mitchell with a
knife, and yelled, Give me all your money. I'll kill you.
Mitchell began to walk backwards toward the store to unlock the
door. Defendant was holding a knife against Mitchell's chest near
Mitchell advised defendant that all of the money was in the
store's safe, which she could not unlock. Mitchell subsequently
unlocked the store's door, struggled with defendant, pushed the
panic button, locked the store's door, and called 911 on her
cellular telephone. Defendant left after hearing the alarm.
Mitchell identified defendant as the perpetrator of the crime in a
lineup. The store's security videotape corroborated Mitchell's
account of events.
B. Defendant's Evidence
Mrs. Freeman testified that while she was on her way home from
work on 4 January 2006, she saw defendant standing in front of the
firehouse and he motioned for her to stop. Defendant asked Mrs.
Freeman to buy him a pack of cigarettes from Sam's Pit Stop. Mrs.
Freeman complied with his request. Mrs. Freeman testified she then
pulled out of the parking lot, stopped at the intersection, watched
defendant ride his bike toward his sister's house, and turn into
her yard. Mrs. Freeman testified she saw her grandson, Junior
Bracey (Bracey), at the store as she drove away. Mrs. Freeman
indicated she tried to tell the investigating officers this
information that evening, but the officers would not listen to her
Defendant was charged with attempted robbery with a dangerous
weapon and second-degree kidnapping. During the trial, defendant
denied committing the attempted robbery and testified his nephew,
Bracey, was responsible. On 6 September 2006, at the close of the
State's evidence, the trial court granted defendant's motion to
dismiss the second-degree kidnapping charge. On 7 September 2006,
a jury convicted defendant of attempted robbery with a dangerous
weapon. The trial court sentenced defendant to a minimum of 77
months and a maximum of 102 months imprisonment. Defendant
Defendant argues the trial court erred by: (1) overruling his
objection to the introduction of extrinsic evidence offered to
impeach Mrs. Freeman and (2) allowing Detective Nealey to testifyabout defendant's post-arrest statement without requiring the State
to establish the statement was knowingly and voluntarily made.
III. Prior Inconsistent Statement
Defendant argues the trial court improperly overruled his
objection to the introduction of extrinsic evidence offered to
impeach Mrs. Freeman. We disagree.
A. Standard of Review
The trial court's decision to exclude or admit evidence is
generally reviewed for an abuse of discretion. Brown v. City of
Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753
(citations omitted), cert. denied, 360 N.C. 575, 635 S.E.2d 429
(2006). A trial court may be reversed for an abuse of discretion
only upon a showing that its ruling was so arbitrary that it could
not have been the result of a reasoned decision. State v. Wilson,
313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
The credibility of a witness may be attacked by any party,
including the party calling him. N.C. Gen. Stat. § 8C-1, Rule 607
(2005). Our Supreme Court has stated:
A witness may be cross-examined by confronting
him with prior statements inconsistent with
any part of his testimony, but where such
questions concern matters collateral to the
issues, the witness's answers on
cross-examination are conclusive, and the
party who draws out such answers will not be
permitted to contradict them by other
State v. Green, 296 N.C. 183, 192, 250 S.E.2d 197, 203 (1978).
Generally speaking, material facts involve those matters which arepertinent and material to the pending inquiry, while collateral
matters are those which are irrelevant or immaterial to the issues
before the court. State v. Riccard, 142 N.C. App. 298, 303, 542
S.E.2d 320, 323 (citing State v. Whitley, 311 N.C. 656, 663, 319
S.E.2d 584, 589 (1984)), cert. denied, 353 N.C. 530, 549 S.E.2d 864
At trial, Mrs. Freeman admitted speaking with Detective Nealey
on the night the crime occurred. Mrs. Freeman testified as
I tried to tell [Detective Nealey] that my son
couldn't have done it from the time I seen
[sic] him turn into the thing, but he didn't
want to listen to nothing [sic] I said, he
turned his back on me. And I said well you've
pretty much made up your mind [about] what you
want to do. And he said so much so. So much
so and then _
Mrs. Freeman also testified she told Detective Nealey: (1) he had
permission to interview defendant; (2) she did not want to be
present in the interviewing room; and (3) asked the detective to
call her at home when he completed the interview with defendant.
On rebuttal, Detective Nealey testified Mrs. Freeman provided
defendant with an alibi by stating he was at home when the robbery
occurred. Mrs. Freeman stated she left defendant at home to get
him a pack of cigarettes at the time the crime was committed. Mrs.
Freeman denied telling Detective Nealey this information.
Mrs. Freeman's trial testimony corroborated defendant's
testimony. Mrs. Freeman was impeached by her prior inconsistent
statement relating to defendant's location and activities on the
night the crime was committed. Detective Nealey's testimonyimpeaching Mrs. Freeman related to a material issue: whether
defendant could have committed the crime charged or asserted an
alibi. See State v. Wellmon, 222 N.C. 215, 217, 22 S.E.2d 437, 439
(1942) (The testimony of the impeaching witness. . . respected
the whereabouts of the defendant at the time the offense is alleged
to have been committed. . .[S]ince the defendant's defense was that
of an alibi, [it] could, in no view of the case, be construed to be
only collateral.) Mrs. Freeman's statements to Detective Nealey
were not collateral to the issues and were properly impeached by
extrinsic evidence. Green, 296 N.C. at 192, 250 S.E.2d at 203.
Further, Mrs. Freeman admitted making several statements to
Detective Nealey that night, but denied trying to provide an alibi
for defendant. This Court has stated:
[W]here there is testimony that a witness
fails to remember having made certain parts of
a prior statement, denies having made certain
parts of a prior statement, or contends that
certain parts of the prior statement are
false, our courts have allowed the witness to
be impeached with the prior inconsistent
Riccard, 142 N.C. App. at 303, 542 S.E.2d at 323 (emphasis
supplied). The weight and credibility of Mrs. Freeman's and
defendant's testimony were properly considered by the jury. The
trial court did not abuse its discretion by allowing Mrs. Freeman's
testimony at trial to be impeached by her prior statements. This
assignment of error is overruled.
IV. Post-Arrest Statement
Defendant argues the trial court committed plain error when it
permitted Detective Nealy to testify about his post-arreststatement without the State first establishing that it was made
knowingly and voluntarily. We disagree.
A. Standard of Review
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(citations and quotations omitted).
A defendant must be given his Miranda warnings prior to
custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 479, 16
L. Ed. 2d 694, 726 (1966). A custodial interrogation is defined as
questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way. Id. at 444, 16 L. Ed. 2d at 706.
A defendant may waive his Miranda rights, but the State bears the
burden of proving that a defendant made a knowing and intelligent
waiver. State v. Reid, 335 N.C. 647, 663, 440 S.E.2d 776, 785
(1994) (citations omitted). After Mitchell identified defendant as the perpetrator of the
crime, he was transported to the law enforcement center to be
interviewed by Detective Nealey. Before the interview, defendant
was read his juvenile rights pursuant to N.C. Gen. Stat. § 7B-2101
and subsequently gave Detective Nealey a statement of his version
of the events that occurred that night. Defendant corrected the
mistakes Detective Nealey had made and signed the statement.
Magistrate Brent Lanier went to defendant's holding cell after
his interview with Detective Nealey and advised defendant he was
being charged with robbery with a dangerous weapon and second-
degree kidnapping. Defendant responded she wasn't kidnapped, she
walked on her own. Defendant argues the State failed to meet its
burden of establishing this statement was knowingly and voluntarily
made before the trial court could admit the statement into
evidence. We disagree.
At the time defendant made the challenged statement he: (1)
had been read his juvenile rights which include his right to remain
silent and to have counsel present; (2) had voluntarily given
Detective Nealey a statement; and (3) had made corrections to and
signed the statement. Defendant was no longer being questioned by
a law enforcement officer when the magistrate read the charges
against him. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706. The
trial court properly admitted defendant's statement at trial.
Presuming arguendo, the trial court erred by admitting
defendant's statement, such error would be harmless beyond a
reasonable doubt and did not have a probable impact on the jury'sfinding that the defendant was guilty. Odom, 307 N.C. at 660, 300
S.E.2d at 378. The State presented other overwhelming evidence of
defendant's guilt, including two eye-witness identifications. The
admission of defendant's statement was not plain error to warrant
a new trial. This assignment of error is overruled.
The trial court properly allowed Mrs. Freeman, defendant's
alibi witness, to be impeached with extrinsic evidence of her prior
inconsistent statements. Defendant was advised of his right to
remain silent and to have counsel present prior to providing,
correcting, and signing his statement. Defendant was not being
interrogated when the magistrate read the charges against him. The
trial court properly admitted defendant's post-arrest statement at
trial. Defendant received a fair trial, free from the prejudicial
errors he preserved, assigned, and argued. Defendant's assignment
of plain error does not warrant a new trial and is overruled.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
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