Opinion
No. COA11–1056.
2012-04-3
STATE of North Carolina v. Todd Howard MAKOWSKE, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
Appeal by defendant from judgment entered 7 April 2011 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 23 February 2012. Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
STEELMAN, Judge.
Officer Jones' testimony that he had strong suspicions that defendant was involved in the robberies at an early stage of his investigation did not constitute plain error. Jones' testimony that he swore out warrants for the arrest of defendant after he was identified in a photo lineup was not vouching for the credibility of the victims and did not constitute plain error. The trial court did not consider improper or irrelevant matters in the imposition of defendant's sentence.
I. Factual and Procedural Background
On 24 March 2010, Steven Coble planned a drug deal with his friends, Sofiane Bouloudene and Jake Stockard to sell marijuana to Lino Errichiello. Bouloudene drove Coble and Stockard to a vacant house where they planned to make the sale. Around thirty minutes after arriving at the house, Errichiello arrived, along with Calvin Howard. Shortly thereafter, two more men, later identified as “Brandon” and Todd Howard Makowske, Jr. (“defendant”) arrived. Brandon was carrying a rifle and defendant had a handgun and a stun gun. The four men proceeded to rob Bouloudene, Coble, and Stockard of their money and possessions. During the robbery, Bouloudene and Coble were shocked by the stun gun several times.
Coble and Bouloudene looked at pictures on Errichiello's Facebook page and recognized defendant in a photograph labeled “TJ.” When Detective Jones went to Errichiello's apartment, defendant answered the door. Defendant identified himself as Todd Makowske, and acknowledged that he went by TJ. Coble and Bouloudene later identified defendant in a photographic lineup.
Defendant was indicted for three counts of robbery with a dangerous weapon. On 23 March 2011, defendant was found guilty of all three charges. The trial court imposed active sentences of sixty-three to eighty-five months imprisonment for each charge, with two of the sentences to run consecutively.
Defendant appeals.
II. Testimony of Detective Jones
In his first argument, defendant contends that the trial court committed plain error by allowing Detective Jones to give an opinion as to the ultimate question of defendant's guilt and vouch for other witnesses' credibility. We disagree.
A. Standard of Review
Because defendant failed to object to the testimony now assigned as error, this Court will review under plain error. Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991)).
B. Analysis
Detective Jones went to Errichiello's apartment to arrest him. Defendant answered the door and identified himself as Todd Makowske. Detective Jones was asked without objection whether he arrested defendant at Errichiello's apartment after hearing that he went by the name “TJ.” Detective Jones answered, “No.” He was then asked, “What did you do?” Detective Jones answered that he “just gathered the information,” but that he “had strong suspicions this was, in fact, the gentlemen who would be a codefendant for Lino.”
Defense counsel made no objection or motion to strike the testimony given by Detective Jones. Lay witness testimony of an opinion is admissible when it is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen.Stat. § 8C–1, Rule 701 (2011). This testimony was not an opinion as to defendant's guilt; rather, it was a logical answer to the question posed and explained why Detective Jones did not arrest defendant at that time. It indicated that Jones wanted to confirm his suspicions before he arrested defendant. Moreover, in light of the other evidence presented at trial, it is not probable that the jury would have reached a different outcome but for this testimony. See Jordan, 333 N.C. at 440, 426 S.E.2d at 697 (stating standard for plain error).
Defendant next argues that Detective Jones improperly vouched for the victims' credibility when he testified that after the victims identified defendant from a photo lineup that he “swore out warrants on Mr. Makowske for the crimes committed.”
It is the function of the police to apprehend and arrest persons when the officers have probable cause to believe that a crime has been committed. Following the identification of defendant by Bouloudene and Coble, Detective Jones swore out warrants against defendant. This testimony did not vouch for the credibility of Bouloudene or Coble, but simply reflected that Detective Jones had properly done his job. The trial court did not commit error, much less plain error in the admission of this testimony.
This argument is without merit.
II. Sentencing Phase
In his second argument, defendant contends that the trial court erred in considering his decision to go to trial in imposing sentence. We disagree.
A. Standard of Review
“It is well established that the decision to impose consecutive or concurrent sentences is within the discretion of the trial judge and will not be overturned absent a showing of abuse of discretion.” State v. Espinoza–Val enzuela, 203 N.C.App. 485, 497, 692 S.E.2d 145, 154 (citing State v. Ysaguire, 309 N.C. 780, 785, 309 S.E.2d 436, 440 (1983)), disc. review denied,364 N.C. 328, 701 S.E.2d 238 (2010). However,
[w]here it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.
State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990).
B. Analysis
“A sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Where the record indicates “the court considered irrelevant and improper matter” during its sentencing phase, this presumption is overcome. Id. (citing State v. Swinney, 271 N.C. 130, 155 S .E.2d 545 (1967)).
During the sentencing phase of the proceedings, defendant's parents, friend, and employer testified regarding his good character. After hearing this testimony, the following exchange took place:
THE COURT: ... after all these witnesses have got up here and said the things they did, how did you get from there to here?
....
THE DEFENDANT: ... people do dumb things, but some dumber than others. As much as you want to take it back or as much as you regret it, you have to own it. And just like everybody said, I'm responsible, but I own it. It's mine.
....
THE COURT: In consideration of the witnesses here today, in consideration of the fact that you have finally, finally, although it is, one could argue too little, too late, you finally admitted responsibility for these actions, that third sentence will begin at the expiration of the first, to run concurrently with the second sentence.
Defendant argues on appeal that “it is entirely reasonable to infer that the trial court would have given Mr. Makowske even more relief if he had taken responsibility for his actions before going to trial.” After carefully reviewing the transcript of the sentencing hearing, we hold that no such inference can be reasonably drawn from the comments of the trial judge. What the trial court did was to consolidate two of the sentences in what can only be considered three cases of aggravated armed robbery based upon defendant's evidence of his prior good character and contrition at the sentencing hearing. There is no evidence or indication that the trial court punished defendant for exercising his constitutional right to a jury trial, or considered any improper matter in imposing sentence.
This argument is feckless and without merit.
III. Conclusion
Defendant received a fair trial before a capable trial judge, free from error.
NO ERROR. Judges ELMORE and STROUD concur.
Report per Rule 30(e).