Opinion
No. COA12–1448.
2013-08-6
STATE of North Carolina v. DEMARIS LAMAR GRICE.
Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F. Worley, for the State. James N. Freeman, Jr., for defendant-appellant.
Appeal by defendant from judgments entered 30 March 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 April 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F. Worley, for the State. James N. Freeman, Jr., for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Demaris Lamar Grice appeals from judgments entered after a jury found him guilty of: robbery with a firearm, assault with a deadly weapon inflicting serious injury, attempted larceny of a motor vehicle, first-degree kidnapping, impersonating a law enforcement officer, and possession of a firearm by a felon. Defendant contends that the trial court erred by (1) allowing the State to amend the victim's name on the indictment for attempted larceny, (2) charging the jury on flight when the evidence did not support the instruction, and (3) sustaining the State's objection to a question defendant posed to a police officer concerning what another witness told the officer. After careful review, we find no error.
Background
The evidence at trial tended to establish the following: On the morning of 20 June 2010, Leon Attaway was at his girlfriend's home on Honeywood Avenue in Charlotte, North Carolina. Jackie Holmes, the owner of a nearby residence, was on his property that morning making some repairs to the exterior of his property. Mr. Holmes observed a black male, who was holding a small briefcase in his hand and wearing a gun on his hip, knock on the front door of the residence where Mr. Attaway was staying.
When Mr. Attaway answered the door, he found defendant wearing a badge and a gun on his hip. Mr. Attaway assumed that defendant was a plain-clothed police detective who had come to discuss a recent break-in at his girlfriend's residence, and he allowed defendant into the residence.
Once inside, defendant showed Mr. Attaway a set of mug shots allegedly related to the earlier break-in. Mr. Attaway did not recognize any of the people in the photographs, suggested that defendant speak with Mr. Attaway's girlfriend, and left the room to retrieve his girlfriend's phone number. When Mr. Attaway returned, defendant grabbed Mr. Attaway's arm and ordered him to get onto his knees. Mr. Attaway complied, and defendant then struck Mr. Attaway in the head with his gun. Mr. Attaway attempted to take the gun from defendant, the two men struggled, and the gun discharged. During the altercation, defendant tried to choke Mr. Attaway and Mr. Attaway was able to bite defendant's finger. Defendant then used a piece of glass from a broken vase to cut off one of Mr. Attaway's eyelids, and to cut his cheek, gums, and scalp.
When Mr. Attaway was unable to continue his resistance, defendant retrieved zip ties from his brief case, bound Mr. Attaway's hands together, and placed him in the bathtub. Defendant closed the drain in the tub, turned on the water, and left Mr. Attaway in the tub. Mr. Attaway passed out, but he regained consciousness and managed to get out of the bath tub before collapsing in the living room.
Approximately ten minutes after Mr. Attaway let defendant into the house, Mr. Holmes heard a gunshot from inside the house and what sounded like a fight. Mr. Holmes saw someone peek through the window blinds and then saw defendant leave the house by the back door wearing different clothing and a towel over his head and struggling to carry two bags which appeared to be full.
A Cadillac used by Mr. Attaway was parked in the driveway; the car was owned by Latisha Ellis, who is the mother of Mr. Attaway's daughter. Defendant, carrying the two bags, walked briskly to the car, got in the car, and started the engine. The engine revved, but the car did not move; it had a faulty transmission. Defendant exited the car, left the engine running, and walked away from the house along the street. Mr. Holmes asked one of his employees who was working on his property to call 911.
As defendant walked away from the house, he came across Daniel Alcala in a nearby driveway with his truck. Bleeding from his head, defendant asked Mr. Alcala for a ride, and Mr. Alcala agreed to give him a ride. While in Mr. Alcala's truck, defendant borrowed Mr. Alcala's phone to call his sister but did not call the police or paramedics to assist Mr. Attaway. Mr. Alcala was not driving at a high rate of speed, and defendant asked him to drive faster. Mr. Alcala then passed Officer Reginald Boyce of the Charlotte–Mecklenburg Police Department who was in his patrol car. Having heard the police radio dispatcher describe Mr. Alcala's truck, Officer Boyce followed Mr. Alcala. When the officer activated his blue lights, defendant told Mr. Alcala, “Don't stop.” However, Mr. Alcala stopped the truck. Defendant then asked Mr. Alcala to put defendant's bags in the back of the truck, but he refused to do so.
Officer Boyce called for back-up officers and then removed Mr. Alcala and defendant from the truck. Defendant informed Officer Boyce that there was a gun underneath his passenger seat. During the stop, the police searched defendant's bags and found cash, marijuana, a security badge, a handgun holster, video games, cell phones, and jewelry. Some of the items matched the description of items Mr. Attaway testified defendant stole from his girlfriend's home. The police also found a small briefcase containing what appeared to be a bloody piece of decorative glass, a zip tie, and piece of paper with headshots on it, and some paper work with defendant's name on it. The police also responded to the residence where Mr. Attaway was staying and called for paramedics.
Defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, assault with a deadly weapon with the intent to kill inflicting serious injury, attempted larceny of a motor vehicle, first-degree kidnapping, impersonating a law enforcement officer, and possession of a firearm by a felon. The jury found defendant not guilty of attempted first-degree murder, but guilty of (1) robbery with a firearm, (2) assault with a deadly weapon inflicting serious injury, (3) attempted larceny of a motor vehicle, (4) first-degree kidnapping, (5) impersonating a law enforcement officer, and (6) possession of a firearm by a felon. The trial court sentenced defendant to a term of imprisonment of 83 to 109 months for first-degree kidnapping and assault with a deadly weapon inflicting serious injury; followed by consecutive sentences of 73 to 97 months imprisonment for robbery with a dangerous weapon; 14 to 17 months imprisonment for possession of a firearm by a felon; and 6 to 8 months imprisonment for attempted larceny of a motor vehicle and impersonating a law enforcement officer. Defendant appeals.
Discussion
Defendant first argues that the trial court erred in allowing the State to amend the indictment charging attempted larceny of a motor vehicle. We disagree.
The indictment for attempted larceny listed the name of the owner of the vehicle as “Latisha Ellis.” After the close of the State's evidence, but before defendant presented his case, the State moved to amend the indictment to change the name of the owner of the vehicle named in the indictment from “Latisha Ellis” to “Nathis Ellis.” In making the motion to amend the indictment, the prosecutor explained to the trial court: “The indictment currently reads that the Cadillac was the personal property of Latisha Ellis. I believe the witness testified that her name is Nathis Ellis. We would be amending the first name of the first letter [sic] of the alleged victim in this case.” Defendant's counsel objected but provided no argument in support of his objection, stating, “I object. I don't care to be heard.” The trial court allowed the State's motion to amend.
Pursuant to N.C. Gen.Stat. § 15A–923(e) (2011), “[a] bill of indictment may not be amended.” The Supreme Court of North Carolina has interpreted section 15A–923(e) to proscribe “ ‘any change in the indictment which would substantially alter the charge set forth in the indictment.’ “ State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (quoting State v. Carrington, 35 N.C.App. 53, 240 S.E.2d 475 (1978)). “A change in the name of the victim substantially alters the charge in the indictment.” State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994) (concluding the that trial court erred in allowing the indictment to be amended to change the victim's name from “Carlose Antoine Latter” to “Joice Hardin”).
We have subsequently held, however, that “[a] change in an indictment does not constitute an amendment where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges.” State v. Campbell, 133 N.C.App. 531, 535–36, 515 S.E.2d 732, 735,disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Indeed, the State cites multiple cases in which we have upheld amendments to the indictments to correct the victim's name. See State v. Marshall, 92 N.C.App. 398, 400–01, 374 S.E.2d 874, 875–76 (1988) (upholding amendment to change the victim's name from “Regina Lapish” to “Regina Lapish Foster”); State v. Bailey, 97 N.C.App. 472, 475–76, 389 S.E.2d 131, 133 (1990) (upholding amendment to change the victim's name from “Pettress Cebron” to “Cebron Pettress”); State v. McNair, 146 N.C.App. 674, 677, 554 S.E.2d 665, 668 (2001) (upholding amendment to change victim's name from “Donald Dale Cook” to “Ronald Dale Cook”); State v. Hewson, 182 N.C.App. 196, 211–12, 642 S.E.2d 459, 469–70 (2007) (upholding amendment to change victim's name from “Gail Hewson Tice” to “Gail Tice Hewson”).
Defendant relies on State v. Overman, 257 N.C. 464, 468, 125 S.E.2d 920, 924 (1962), in which our Supreme Court concluded that the variance between the name of the victim listed on the indictment, “Frank E. Nutley,” and the evidence at trial showing the victim's name to be “Frank E. Hatley,” was a fatal variance. Defendant also cites State v. Bell, 270 N.C. 25, 29, 153 S.E.2d 741, 744 (1967), in which our Supreme Court similarly concluded that a fatal variance existed where the indictment listed the victim's name as “Jean Rogers,” but the evidence at trial showed the victim's name was “Susan Rogers”.
The present case is distinguishable from Bell and Overman. Here, the record establishes that the name on the indictment properly listed the victim's name as “Latisha Ellis,” and, despite the prosecutor's contention to the contrary, the victim testified that her name was “Latisha Ellis.” Therefore, there was no variance between the original indictment as returned and the proof at trial.
Moreover, defendant does not argue that he was misled or surprised by the amendment to the indictment. The indictment as returned properly listed the victim's name. The victim's testimony established that her name was properly listed on the indictment. Defendant presented his case after Ms. Ellis testified, and he did not present any evidence regarding Ms. Ellis's name. Furthermore, despite the fact that the trial court allowed the State to amend the indictment, the trial court instructed the jury that to find defendant guilty of attempted larceny the State had to prove beyond a reasonable doubt that the Cadillac belonged to “Latisha Ellis.”
We discern no reason as to why the State sought, and the trial court granted, the amendment to the indictment. Nor, however, do we discern any prejudice suffered by defendant as a result of the amendment.
Accordingly, defendant cannot complain that he did not have notice of the essential elements of the crime charged and a reasonable opportunity to make his defense. State v. Leonard, 213 N.C.App. 526, ––––, 711 S.E.2d 867, 872,disc. review denied,365 N.C. 353, 717 S.E.2d 746 (2011) (stating the purpose of an indictment); N.C. Gen.Stat. § 15–153 (providing that a criminal indictment “is sufficient in form for all intents and purposes if it express [sic] the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment”). Defendant's argument is overruled.
B. Jury Instruction on Flight
Defendant next argues that the trial court erred in instructing the jury that it could consider evidence that defendant fled the scene of the alleged crimes as evidence of defendant's guilt. Defendant contends the instruction on flight was not supported by the evidence. We disagree.
A jury instruction on flight is appropriate where “there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime[.]” State v. Ethridge, 168 N.C.App. 359, 362, 607 S.E.2d 325, 327 (2005) (citation and quotation marks omitted), aff'd, 360 N.C. 359, 625 S.E.2d 777 (2006). However, evidence that a defendant merely left the scene is not enough; there must be some evidence that the defendant was trying to avoid apprehension. State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). If this Court finds “some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given.” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). “The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper.” Id.
The record establishes that after attacking Mr. Attaway, defendant did not render any assistance to his victim, but bound his hands with zip ties. Defendant then changed clothes and left the house by the back door. After leaving the house, defendant asked Mr. Alcala to give him a ride in Mr. Alcala's truck. During the ride, defendant borrowed Mr. Alcala's cellphone but did not call the police or emergency medical personnel to seek help for Mr. Attaway. When a police officer signaled for Mr. Alcala to stop his vehicle, defendant instructed Mr. Alcala not to stop. When Mr. Alcala ignored defendant's command and stopped his truck, defendant asked Mr. Alcala to place defendant's bags, which contained items stolen from Mr. Attaway, in the back of the truck. Furthermore, defendant did not voluntarily turn himself into the police, but merely cooperated with their investigation once stopped. This evidence was sufficient to support the instruction concerning flight from the scene of the crimes. See State v. Eubanks, 151 N.C.App. 499, 503, 565 S.E.2d 738, 741 (2002) (concluding instruction on flight was supported by the evidence that the defendant did not render aid to his victim, left the scene of the crime, disposed of his weapon, and did not voluntarily surrender to police but merely cooperated with their investigation). Defendant's argument is overruled.
C. Defendant's Prior Consistent Statements
Lastly, defendant argues that the trial court erred in sustaining the State's objection to defense counsel's question during Officer Boyce's cross-examination regarding an exculpatory statement defendant made to Mr. Alcala. Defendant contends that the answer to the question was admissible for the purpose of corroborating the testimony of both Mr. Alcala and defendant. We disagree.
During defendant's cross-examination of Officer Boyce, defendant asked the officer to testify as to what Mr. Alcala told Officer Boyce that defendant had said when defendant explained to Mr. Alcala where he had come from when asking for a ride. During voir dire, Officer Boyce testified that: “[Mr. Alcala] stated that [defendant] told him he had just gotten into a fight or something over some drugs.” The State objected to the introduction of this testimony arguing Officer Boyce's statement would not corroborate any testimony by Mr. Alcala. The trial court sustained the State's objection.
“Prior consistent statements of a witness are admissible as corroborative evidence even when the witness has not been impeached. However, the prior statement must in fact corroborate the witness' [s] testimony.” State v. Ramey, 318 N.C. 457, 468, 349 S.E.2d 566, 573 (1986) (citation and quotation marks omitted). Furthermore, “[i]n order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.” Id. at 469, 349 S.E.2d at 573. We review the trial court's ruling concerning the admissibility of prior consistent statements for abuse of discretion. See State v. Ross, ––– N.C.App. ––––, ––––, 720 S.E.2d 403, 410 (2011), disc. review denied,366 N.C. 400, 735 S.E.2d 174 (2012).
On appeal, defendant makes the conclusory assertion that Officer Boyce's voir dire testimony would have corroborated Mr. Alcala's and defendant's testimony. Defendant did testify that he told Mr. Alcala: “A guy just tried to rob me. He hit me over the head with the gun.” However, defendant did not take the stand to testify until after the trial court had ruled on Officer Boyce's voir dire testimony during the State's case in chief. Although the State recalled Officer Boyce to the stand after defendant testified, and defendant cross-examined the officer, defendant did not ask Officer Boyce about Mr. Alcala's statement. Therefore, Officer Boyce's voir dire testimony could not have corroborated defendant's testimony at the time the trial court ruled on its admissibility. As to Mr. Alcala's testimony, he did not testify as to any statement by defendant regarding the source of defendant's injuries. We conclude there is nothing in Mr. Alcala's testimony that would have been corroborated by Officer Boyce's voir dire testimony. Therefore, the trial court did not abuse its discretion in excluding the evidence, and defendant's argument is overruled.
Conclusion
For the reasons stated above, we find no error.
NO ERROR. Judges STROUD and ERVIN concur.
Report per Rule 30(e).