Opinion
No. COA02-1421
Filed 5 August 2003 This case not for publication
Appeal by defendant from judgments entered 28 February 2002 by Judge Evelyn W. Hill in Superior Court, Franklin County. Heard in the Court of Appeals 12 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General Jennie Wilhelm Mau, for the State. Duncan B. McCormick for defendant-appellant.
Franklin County Nos. 01 CRS 50331-32, 01 CRS 1131.
Everette Denroy Fogg (defendant) was convicted of possession of a firearm by a felon, possession of a weapon of mass death and destruction, and robbery with a firearm on 27 February 2002. Defendant admitted to being an habitual felon. The trial court sentenced defendant to a minimum term of 100 months to a maximum term of 129 months imprisonment for the robbery with dangerous weapon; a minimum term of 100 months to a maximum term of 129 months imprisonment for the possession of a weapon of mass death and destruction, to run consecutively; and a minimum term of 16 months to a maximum term of 20 months imprisonment for the possession of a firearm by a felon, to run concurrently with the possession of a weapon of mass death and destruction sentence. Defendant appeals.
The State's evidence tended to show the following. Sergeant Jason Abbott (Sgt. Abbott) of the Louisburg Police Department testified that at approximately 11:00 p.m. on 3 February 2001, he was dispatched to unit 214 of the Greenhill Manor apartment complex in Louisburg, North Carolina. Sgt. Abbott, as well as Officers Ralston Harris and Gregory Alston, went to the apartment where they observed William Hedgepeth (Hedgepeth) lying on the floor, leaning against a couch. Hedgepeth was crying and said, "Thank God, you're here" when the officers entered the apartment. Hedgepeth was sixty-five-years old, partially paralyzed and could not walk. Also present in the apartment when the officers arrived were Mary Davis (Davis), Ozell Williams (Williams), and Hedgepeth's eighty-four-year-old mother, who was asleep.
Hedgepeth told Sgt. Abbott that a girl named Bernadette had come to see him and brought two men with her, one of whom was wearing a brown coat and the other was wearing an orange coat. Hedgepeth told the officer that the man in the orange coat (later identified as defendant) was a black man of medium build, who pulled a gun and held it to Hedgepeth's head, demanding money from Hedgepeth. Hedgepeth gave his wallet to the man in the orange coat, who pulled out two fifty dollar bills, dropped the wallet, and ran out of the apartment. Davis and Williams gave Sgt. Abbott the same account of the robbery.
Sgt. Abbott and the other two officers left the apartment and began looking for the people described by Hedgepeth, Davis, and Williams. Sgt. Abbott was familiar with a Bernadette Terry (Terry), having dealt with her on previous occasions. Around 1:00 a.m., Sgt. Abbott located Terry and two men matching the description the witnesses had given, approximately three-quarters of a mile from the apartment. Sgt. Abbott asked the three of them to accompany him back to the scene of the robbery.
Sgt. Abbott and the other two officers transported Terry and the two men back to Hedgepeth's apartment. Sgt. Abbott went to Hedgepeth's apartment and told Hedgepeth that three people fitting the description Hedgepeth had given had been taken into custody. Sgt. Abbott told Hedgepeth that he "wanted to bring the guy that [Hedgepeth had] identified in the orange coat who robbed [Hedgepeth]. I wanted to take [defendant] back up there and let [Hedgepeth] positively identify him." When Sgt. Abbott brought defendant to Hedgepeth's apartment, Hedgepeth identified defendant as the man who had held the gun to his head and demanded money. Davis, who was also present when defendant was brought to the apartment, nodded her head affirmatively when she saw defendant. Defendant was arrested, read his Miranda rights, and taken to the Louisburg Police Department, where he was again advised of his Miranda rights. Defendant signed a waiver of his Miranda rights. Sgt. Abbott began questioning defendant, who at first denied being at the apartment. However, when Sgt. Abbott suggested that he thought defendant's crack habit had something to do with the robbery, defendant started crying and confessed.
Sgt. Abbott testified that defendant stated that defendant, Terry, and James Jeffries (Jeffries) had gone to the apartment because Hedgepeth would usually have sex with Terry for money, and that defendant, Terry, and Jeffries were going to use the money to buy crack cocaine. When Hedgepeth refused to have sex with Terry for money, defendant became angry, pulled a gun from Jeffries' pocket and held it to Hedgepeth's head and demanded money. After taking the money, defendant said he realized what he had done and ran from the apartment. Defendant admitted that he had thrown the gun into a ditch by the road that ran by the apartment complex, and he showed police where he threw the gun. The gun had already been found by police at this same location with information received from questioning Terry and Jeffries.
The gun defendant used was a twenty-two caliber, single-shot, sawed-off rifle. The barrel had been sawed off to a length of about four inches, and the stock had been sawed off as well, so that the gun measured a total of about twelve inches in length. The portion of the barrel where the serial number, make and model of the gun would be located had been sawed off. The gun was loaded with one twenty-two caliber rat shot when police recovered it.
Ruby Edgerton (Edgerton), Hedgepeth's daughter, testified that her father had died prior to the trial. Edgerton testified she was at home on 3 February 2001 at around 11:00 p.m. when she received a telephone call from her father who was crying and who told her that he had been robbed. Edgerton arrived at her father's apartment about fifteen minutes later. Edgerton was present at Hedgepeth's apartment when the police brought defendant to Hedgepeth's apartment and Hedgepeth identified defendant. Edgerton testified that Hedgepeth indicated he was certain that defendant was the man who robbed him because of defendant's gold tooth.
Joyce Woodard (Woodard), also Hedgepeth's daughter, testified that on 3 February 2001, Hedgepeth was sixty-five years old and had a bad leg. Woodard testified that she had helped Hedgepeth cash his check and pay his bills that day. She testified that she knew Hedgepeth had $102 in cash in his wallet that day because he had not yet paid his rent.
Defendant testified that he accompanied Terry and Jeffries to Hedgepeth's apartment on 3 February 2001. Defendant was introduced to Hedgepeth and Hedgepeth offered defendant a drink. Hedgepeth refused to give money to Terry to have sex, but Terry kept rubbing Hedgepeth's legs. Hedgepeth kept pushing her away saying that "he wasn't giving her nothing until he got what he wanted." Terry reached for Hedgepeth's crotch and Jeffries got upset. Jeffries kept playing with his coat and pulling a pocket knife in and out of his pocket. Hedgepeth pushed himself up out of his chair. Jeffries lunged toward him and pulled Hedgepeth's wallet from Hedgepeth's pocket. Jeffries then pulled out a gun from inside his coat and defendant ran out of the apartment. Defendant said he left the apartment and took his orange and green Miami Dolphins jacket with him.
Defendant further testified that as he was walking up South Main Street, Sgt. Abbott pulled up beside him, called him by name, and asked if defendant had seen Terry. Defendant told Sgt. Abbott that he had seen her, but not for a little while. Sgt. Abbott drove away but returned shortly and again asked if defendant had seen Terry. Defendant responded that he had not, but that he would let Sgt. Abbott know if he did see her. As defendant walked on, Terry and Jeffries came out of the woods. Sgt. Abbott turned his vehicle around and stopped defendant, Terry, and Jeffries. Sgt. Abbott asked defendant to empty his pockets and asked Terry and Jeffries to stand at the back of Sgt. Abbott's vehicle.
Defendant testified that when other police officers arrived, defendant was placed in a car with Officer Alston who drove to Hedgepeth's apartment. When they arrived, the officers knocked on the door to Hedgepeth's apartment. Davis came to the door, opening it just wide enough for defendant to see her standing to the right of the door. Davis looked at defendant and then at Officer Alston. Defendant was taken back to the police car and transported to the police station.
Defendant testified that at the police station he was placed under arrest and made a statement to Sgt. Abbott that he had been at Hedgepeth's apartment with Terry and Jeffries, but that he was not involved in the robbery. Defendant denied telling Sgt. Abbott where he threw the gun. Defendant said when he was told that a gun had been found, he asked Sgt. Abbott to check the gun for fingerprints. Defendant testified he did not write out or sign a statement.
Marty Ludas (Ludas), a fingerprint expert, testified for defendant. Ludas examined the gun and cartridge the officers found in the ditch near Hedgepeth's apartment. He testified he used magnetic fingerprint powder and a magnetic applicator to search for latent prints. Ludas placed a test print on the weapon to confirm that he could detect a print using this technique. Ludas testified that in his opinion the weapon had a good surface for processing latent prints because the major part of the weapon was the rifle stock. Ludas was unable to find any latent prints on the weapon other than the test print he placed on the weapon.
Charles Morgan (Morgan), a long-time friend of defendant, testified that on 3 February 2001, as he was walking home from the supermarket after 11:00 p.m., he saw Terry and Jeffries coming from behind the supermarket at the "old folks home." Morgan testified that the two were running and that he saw them throw something "long" into a ditch. Morgan also testified that defendant was not with them at the time.
On rebuttal, Sgt. Abbott testified that at about 1:00 a.m. on the morning of 4 February 2001, when he first saw defendant, defendant was walking side-by-side with Terry and Jeffries. Jeffries was wearing a brown coat and defendant was wearing an orange, green, and white coat. Sgt. Abbott also testified that when he brought defendant back to Hedgepeth's apartment, he took defendant into the apartment and Hedgepeth and Davis identified defendant. Sgt. Abbott also testified that, after defendant made an oral confession to Sgt. Abbott, defendant led Sgt. Abbott to the place where he said he threw the weapon into the ditch. Sgt. Abbott testified that he gave defendant the opportunity to write down his confession but defendant indicated he could not read or write.
Defendant testified in surrebuttal that he had completed eleven years of school, had a GED, and took courses at Durham Tech for one-and-a-half years. Defendant also testified that Sgt. Abbott did not give defendant an opportunity to write down a statement and that defendant did not give a confession to Sgt. Abbott.
Defendant has failed to present an argument in support of assignments of error 1, 2, 3, 4, 14, 15 and 18 and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
I.
Defendant first argues that the trial court committed plain error by admitting the out-of-court statements of Hedgepeth identifying defendant as the robber on the ground that the pretrial identification procedures were so suggestive as to pose a danger of irreparable misidentification. Defendant did not object to the identification at trial and thus requests a plain error review. Plain error is an error which is "`so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citations omitted). Our State's Courts have applied the plain error rule to the admission of evidence. State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983).
If a defendant can show that the pretrial identification procedures were so suggestive as to create a substantial likelihood of irreparable misidentification, the identification evidence must be suppressed. State v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293, 294-95 (1983). We use a totality of the circumstances test in making this determination. State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987). The factors to be considered in this inquiry are:
(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.
State v. Powell, 321 N.C. 364, 369, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L.Ed.2d 60 (1988).
In the present case, Hedgepeth had ample opportunity to observe defendant at the time of the robbery. Defendant, Jeffries, and Terry were in Hedgepeth's apartment for a substantial amount of time before the robbery was committed. In fact, according to defendant's own testimony, defendant was introduced to Hedgepeth and Hedgepeth offered defendant a drink. Defendant then sat around in Hedgepeth's apartment while Terry attempted to get Hedgepeth to give her money for sex. This was ample opportunity for Hedgepeth to observe defendant. As to Hedgepeth's degree of attention, we note that he gave a general description of the robber to the police of a black man of medium build, wearing an orange coat. However, he stated that he knew the robber was defendant because of defendant's gold tooth. Hedgepeth's descriptions of defendant, as well as Jeffries and Terry, were accurate when the three were picked up by Sgt. Abbott. When defendant was brought before Hedgepeth, Hedgepeth was certain defendant was the man who had held a gun on him during the robbery, and indicated that he was certain the robber was defendant because of defendant's gold tooth. Finally, the time between the robbery and the identification was relatively short, being less than two hours. See State v. Lee, 154 N.C. App. 410, 415, 572 S.E.2d 170, 174 (2002).
We note in the present case that defendant himself testified that he went with Terry and Jeffries to Hedgepeth's apartment on 3 February 2001. He was introduced to Hedgepeth, who offered him a drink, and he sat down in Hedgepeth's apartment. Defendant also testified he was present during the robbery of Hedgepeth. Defendant testified that he was wearing a jacket with orange on it while he was in Hedgepeth's apartment.
We recognize that Sgt. Abbott told Hedgepeth that he had three people in custody who fit the descriptions Hedgepeth had given him and Sgt. Abbott wanted to bring them to Hedgepeth's apartment for Hedgepeth to identify. Whether a pretrial identification is so suggestive as to give rise to a very substantial likelihood of irreparable misidentification must be determined by consideration of all the circumstances. While show-up identifications are disfavored, they are not per se violative of a defendant's due process rights. State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). In examining the totality of the circumstances in this case, including defendant's testimony admitting his presence in Hedgepeth's apartment at the time of the robbery and his association with Terry and Jeffries, the show-up was not impermissibly suggestive. Admission of Hedgepeth's identification of defendant during the show-up performed by Sgt. Abbott does not rise to the level of plain error. This argument is overruled.
II.
Defendant next argues that the trial court erred by overruling defendant's motions to suppress the out-of-court statements of Hedgepeth identifying defendant as inadmissible hearsay. As stated above, Hedgepeth died prior to defendant's trial. Defendant filed pretrial motions to suppress the testimony of Sgt. Abbott and others whom Hedgepeth had told that defendant was the robber. Following a hearing, the trial court denied these motions, ruling that the statements by Hedgepeth were admissible under N.C. Gen. Stat. § 8C-1, Rule 803(1), the present sense impression exception; N.C. Gen. Stat. § 8C-1, Rule 803(2), the excited utterance exception; and N.C. Gen. Stat. § 8C-1, Rules 803(24) and 804(b)(5), the catch-all exceptions to the hearsay rule. Defendant argues that these exceptions do not apply to the challenged statements.
The excited utterance exception to the hearsay rule, N.C.G.S. § 8C-1, Rule 803(2), permits the admission of out-of-court statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." N.C.G.S. § 8C-1, Rule 803(2) (2001). An excited utterance requires both "a sufficiently startling experience suspending reflective thought," and "a spontaneous reaction, not one resulting from reflection or fabrication." State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985); State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988). In the present case, the robbery, involving an elderly and disabled man, would qualify as a "sufficiently startling event." We must thus determine whether the statement was made by Hedgepeth while he was "under the stress or excitement caused by the event. . . ." N.C.G.S. § 8C-1, Rule 803(2).
Our Courts have often focused on whether the delay between the event and the making of the statement provided the declarant an opportunity to fabricate the statement. State v. Safrit, 145 N.C. App. 541, 547, 551 S.E.2d 516, 520-21 (2001) (holding that while the element of time is relevant, it is not always material). We also consider whether the declarant had a motive for fabrication, in determining whether a delay between the event and the statement should result in exclusion of the statement. See State v. Deck, 285 N.C. 209, 214, 203 S.E.2d 830, 834 (1974); Safrit, 145 N.C. App. at 548, 551 S.E.2d at 521. There is no indication of any motive on the part of Hedgepeth to fabricate the statement he made to Sgt. Abbott.
Evidence relevant to the excited utterance exception shows that Sgt. Abbott received a call at approximately 11:15 p.m. on 3 February 2001 to go to Hedgepeth's apartment. Sgt. Abbott testified that it took approximately three or four minutes to get to Hedgepeth's apartment after the call and that when Sgt. Abbott initially arrived at the apartment, Hedgepeth was crying and said,"Thank God you are here. I'm glad you're here." As Sgt. Abbott questioned Hedgepeth, Hedgepeth continued crying and stated, "Somebody just robbed me. Somebody just robbed me." Sgt. Abbott testified that Hedgepeth continued to cry and seemed very upset. After Sgt. Abbott left, Hedgepeth, crying and upset, called Edgerton, and told her that someone had robbed him. Edgerton testified that when she arrived at Hedgepeth's apartment, Hedgepeth was shaking, nervous, scared and crying. Approximately thirty minutes elapsed between the time Edgerton arrived at Hedgepeth's apartment, and when Sgt. Abbott returned with defendant for Hedgepeth to identify. Edgerton testified that when Sgt. Abbott brought defendant to Hedgepeth's apartment, Hedgepeth "was shaking and carrying on, I [could] tell he was scared" and that "he was crying and he was real nervous." Edgerton testified that Hedgepeth pointed at defendant and said, "That's the man, right there, that robbed me." Sgt. Abbott testified that when he brought defendant to Hedgepeth's apartment, Hedgepeth pointed at defendant and stated, "That's him. That's the one."
The evidence in the record shows, even though more than an hour had passed since the robbery, Hedgepeth was still under the excitement of the robbery at the time he made the statements challenged by defendant. Therefore, the trial court did not err in denying defendant's motions to suppress the challenged statements which were admissible under N.C.G.S. § 8C-1, Rule 803(2), the excited utterance exception to the hearsay rule.
III.
Defendant argues that the trial court improperly expressed an opinion about defendant's credibility by erroneously sustaining its own objection to defendant's testimony and by admonishing defendant in the presence of the jury.
The relevant testimony of defendant is as follows:
Q. What was Mr. Hedgepeth's response when [Terry] was rubbing his legs?
STATE: Objection.
THE COURT: Overruled.
A. He pushed her hand back due to the fact she kept asking him for money and she hadn't did what she was supposed to do.
STATE: Objection, to what Mr. Hedgepeth said, Your Honor.
THE COURT: Sustained.
STATE: Motion to strike, Your Honor.
THE COURT: Ladies and gentlemen of the jury, you will disregard the last statement of this witness regarding Mr. Hedgepeth's statements.
Q. Did any other event occur in the home that night?
A. Yes, the other events that occurred, where as she kept reaching at his leg, she then made a reach for his crotch. That upset [Jeffries] . . . and he got a whatchamacallit, a attitude about it, so he then told her to keep her hands — —
THE COURT: Objection. Sustained. You may not testify as to what somebody said unless they are here in court.
A. All right.
THE COURT: So, as to what Mr. Jeffries said, you can't testify, that's hearsay.
A. All right.
THE COURT: You did say Mr. Jeffries, right.
A. Um hum [yes].
THE COURT: I got confused.
Q. What did Mr. Jeffries do once he got upset?
A. Kept playing with his coat, playing with his pockets, stuck his hand in his pocket twice and pulled out a little makeshift pocketknife, but each time he pulled it out, he put it back.
Q. What happened after that?
A. She asked, which was [Terry], she asked.
THE COURT: Sustained, you cannot testify —
A. It was said — —
THE COURT: Sir, I'm talking.
A. Oh, my fault, I apologize.
THE COURT: It is your fault. I'm talking. Cool. You can't testify as to what somebody else said because they're not here and therefore its hearsay. You can talk all you want about what they did. Their actions are okay. Okay? Thanks.
Q. What did Mr. Jeffries do next?
A. Suggested that [Terry] leave.
Q. Did [Terry] leave?
A. No.
Q. What other event occurred that night in Mr. Hedgepeth's home?
A. He continued to reach for his pocket and a statement was made?
THE COURT: Nope.
A. I was the one who spit the statement out.
THE COURT: Then you don't say a statement was made, you say, "I said." You just said a statement was made, right sir?
A. Yeah, a statement was made.
THE COURT: And you whispered kind of under your breath that you are the person when I objected, you know, when I said you couldn't say it. That you were the one that made the statement.
A. I said I didn't make the statement.
THE COURT: If you weren't the one who made the statement, you remember me telling you a few moments ago that you can't tell what statements were made by other people? It's still true. Okay? So, unless you said it, you can't repeat it from the stand. Okay?
A. Okay.
. . .
Q. What if anything did you say to Mr. Jeffries?
A. I told Mr. Jeffries that the officer was not looking for him [due] to the fact that he had inquired about it. I let him know — —
STATE: Objection.
THE COURT: Okay, Sir.
A. Oh, I'm sorry.
THE COURT: No, you're not sorry. Ladies and gentlemen of the jury, please feel free to step into the jury room at this moment. I need to take a matter up out of your presence. . . . You [defendant] go down and sit by your lawyer.
After the jury left the courtroom, the trial court noted on the record that defendant, on several occasions and despite several cautionary warnings by the trial court, continued to attempt to give hearsay testimony, each time apologizing to the trial court "as if that makes everything fine." The trial court expressed its frustration with defendant in his continual attempts to get such testimony into evidence, despite several explicit warnings. Defendant stated that he understood the trial court's concerns. The jury returned to the courtroom and defendant's testimony continued.
We note that the admonishment of defendant by the trial court when the jury was not present in the courtroom was clearly not prejudicial to him, since it was not observed by the jury. See State v. Goodson, 18 N.C. App. 330, 331, 196 S.E.2d 531, 532 (1973). In reviewing defendant's challenges to comments that were made by the trial court in the presence of the jury, we employ a totality of the circumstances test to determine if such comments are impermissible opinion. Defendant has the burden of showing he was deprived of a fair trial. State v. Gell, 351 N.C. 192, 207, 524 S.E.2d 332, 342, cert. denied, 531 U.S. 867, 148 L.Ed.2d 110 (2000) (citing State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)); State v. Barnard, 346 N.C. 95, 105-06, 484 S.E.2d 382, 388 (1997)).
In State v. Harris, 271 N.C. 732, 157 S.E.2d 548 (1967), our Supreme Court acknowledged that the trial court may properly admonish a defendant who is disrespectful in his attitude toward the court. Id. at 734, 157 S.E.2d at 549. The trial court, however, must not admonish a defendant in such a way that it would prejudice a defendant and deprive a defendant of a fair trial. See Gell, 351 N.C. at 207, 524 S.E.2d at 342. In the present case, the trial court was justified in admonishing defendant for his continual refusal to follow the trial court's instructions. The trial court's admonishment was brief and related solely to defendant's refusal to follow the court's instructions; it did not express an opinion as to the case or its merits or defendant's credibility as a witness.
Defendant also argues that the trial court erred when it sustained its own objections to defendant's attempts to testify to out-of-court statements. However, in State v. Evans, our Court determined the trial court did not err when it "sustained its own objections to three answers given by the defendant all of which were relating what someone else thought or said. The judge properly instructed the witness to refrain from testifying to the substance of another's remarks." Evans, 36 N.C. App. 166, 171-72, 243 S.E.2d 812, 815, disc. review denied, 295 N.C. 469, 246 S.E.2d 217 (1978). In the present case, the trial court sustained its own objections to the same type of testimony as in Evans, and also properly instructed defendant not to testify about hearsay remarks.
We also note that the trial court, in its instructions to the jury, stated that the jury was not to draw any inference that the trial court had an opinion as to whether evidence should be believed or disbelieved, on the basis of any ruling or voice inflection by the trial court. This type of instruction was cited with approval in State v. Larrimore, as persuasive in the Supreme Court's determination that the trial court's comments during the trial did not constitute reversible error. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). In Larrimore, where our Supreme Court found the trial court's comments "less than exemplary," but not reversible error, the Supreme Court noted that the comments reflected "`efforts on the part of the trial judge to maintain progress and proper decorum in what was evidently a prolonged and tedious trial.'" Id. at 155, 456 S.E.2d at 808 (quoting State v. Agnew, 294 N.C. 382, 395, 241 S.E.2d 684, 692, cert. denied, 439 U.S. 830, 58 L.Ed.2d 124 (1978)). We note that the comments by the trial court in the present case tend to show an attempt to maintain progress and proper decorum in the trial. Defendant has failed to show prejudice as a result of these comments. This argument is overruled.
No error.
Judge BRYANT concurs.
Judge GEER concurs with a separate opinion.
Report per Rule 30(e).