Opinion
No. 06-1557.
Filed October 16, 2007.
Mecklenburg County No. 05-CRS-208288-89.
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.
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 then jumped 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. Detective Driggers 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 a State v. Torain ll, defendant will be unable to show plain error. 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 to exclude this testimony. sua sponte We disagree.
Defendant has not argued that the challenged testimony violated his right to remain silent and did not object on that basis during trial. Thus, he has waived any argument on that basis pursuant to N.C.R. App. P. 28(b)(6).
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's knowledge 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 inf ective Driggers's ormant included in Det 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 [] with sic 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] i Id. dentity[.]" "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].'" 95 N.C. App. 611 State v. English, 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 State v. Hennis been the result of a reasoned decision." 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).