Opinion
No. COA10-597
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 18 November 2009 by Judge R.A. Baddour in Durham County Superior Court. Heard in the Court of Appeals 24 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State. Michael J. Reece for defendant-appellant.
Durham County No. 08 CRS 53041.
Defendant Antonio Marquis Reid appeals his conviction for robbery with a dangerous weapon. After careful review, we find no error.
Facts
The State's evidence tended to establish the following facts at trial: On the evening of 15 July 2008, Wayne Felton was working at a gas station on Chapel Hill Street in Durham. Around 10:00 p.m., Shaquan Cotton and a friend of hers came up to Mr. Felton at the gas station and discussed meeting up later that night for drinks. After he got off work, Mr. Felton went with a friend to pick up dinner, then dropped his friend off at his house and went home. Mr. Felton got home around 11:00 p.m. and ate his dinner. Ms. Cotton repeatedly called Mr. Felton and eventually he agreed to meet her at the "L House," which was three or four blocks away from Mr. Felton's apartment.
As Mr. Felton was leaving his apartment, someone behind him said: "[Y]o, don't move." Mr. Felton turned around and saw three men: one was a tall, "light skinned" African-American male, who was wearing a mask and holding a sawed-off double-barrel shotgun; the second was an African-American male, with a "medium to dark" complexion, who was holding a 9mm handgun and also wearing a mask; and the third man was a "short, medium to dark skinned black male," with dreadlocks. Mr. Felton recognized the third man, who was not wearing a mask, as one of Ms. Cotton's friends. The three men forced Mr. Felton over to the side of his house, where the masked man with the shotgun — later identified as defendant — "d[id] all the talking." Defendant and Mr. Felton had an "intense conversation," in which defendant demanded Mr. Felton's money and asked if there was money in his apartment and if anyone else was inside. Mr. Felton explained that he did not have any money in the house but that his son was inside. The men went through Mr. Felton's pockets, taking his cell phone, ID, car keys, and almost $200 in cash. The men also pulled down Mr. Felton's pants, so that he could not follow them, and then fled through some nearby woods.
When the men were gone, Mr. Felton ran back into his apartment and called a friend who drove him to the police station, where he filed a report describing the robbery. A few days after the robbery, defendant drove up to Mr. Felton while he was working at the gas station and asked to speak with him. Defendant "explained" that it was his brother — not him — who had robbed Mr. Felton. Mr. Felton, however, "knew within [him]self," based on defendant's voice, height, complexion, and a "mole" under his left eye, that he was one of the men who had robbed him on 15 July 2008. Defendant continued to come around the gas station for about a month after the robbery.
Mark Clancy, an investigator with the Durham Police Department, contacted Mr. Felton after the robbery. Based on Mr. Felton's account, Investigator Clancy wanted to interview Ms. Cotton to determine whether she was involved in the robbery. Investigator Clancy conducted a "knock and talk" at her last known address, where he found Ms. Cotton and Rayshawn Parson, whose appearance matched Mr. Felton's description of the third robber. Both Ms. Cotton and Mr. Parson agreed to come down to the police station with Investigator Clancy and discuss the robbery. After her interview, Ms. Cotton was charged in connection with the robbery of Mr. Felton. Investigator Clancy also interviewed Mr. Parson, and after a photographic line up, Mr. Parson was charged with armed robbery. Based on his interview with Mr. Parson, Investigator Clancy began looking for a man named Joshua Johnson and a man known as "T.O." After Mr. Felton told Investigator Clancy that defendant — Antonio Reid — had been coming around the gas station since the robbery, Investigator Clancy surmised that defendant was T.O. and had a warrant issued for defendant's arrest.
Defendant was arrested and charged with robbery with a dangerous weapon. Defendant pled not guilty and the case proceeded to trial, where both Ms. Cotton and Mr. Parson testified for the State. Defendant also testified at trial, denying any involvement in the armed robbery. The jury convicted defendant of robbery with a dangerous weapon and the trial court sentenced defendant to a presumptive-range term of 117 to 150 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in overruling his objections to the prosecutor's questions on cross-examination concerning his marijuana use. With respect to the State's cross-examination of a defendant, our Supreme Court has explained:
Generally, much latitude is given counsel on cross-examination to test matters related by a witness on direct examination. The scope of cross-examination is subject to two limitations: (1) the discretion of the trial court; and (2) the questions offered must be asked in good faith. Furthermore, the questions of the State on cross-examination are deemed proper unless the record discloses that the questions were asked in bad faith.
State v. Warren, 327 N.C. 364, 373, 395 S.E.2d 116, 121-22 (1990) (internal citations omitted). The trial judge "sees and hears the witnesses, knows the background of the case, and is in a favorable position to control the proper bounds of cross-examination." State v. Edwards, 305 N.C. 378, 381, 289 S.E.2d 360, 362-63 (1982). As the scope of "legitimate cross-examination is a matter largely within the trial judge's discretion, his [or her] rulings thereon will not be held to be prejudicial error in absence of a showing that the verdict was improperly influenced by the ruling." Id. at 381-82, 289 S.E.2d at 363.
Here, defendant claims that the trial court erred in permitting the prosecutor to ask defendant about: (1) "[h]ow long . . . [he] ha[d] been smoking marijuana"; (2) how to "blow a shotgun"; (3) the size of a typical "blunt" and the size of the blunts with which defendant was burned; and (4) how many times defendant and Mr. Johnson smoked marijuana together. Defendant argues that the trial court should have sustained his objections because "[n]one of these questions were relevant in any way to the question of Defendant's guilt or innocence to the charge of robbery with a dangerous weapon." We disagree.
"Relevant evidence" is defined as "evidence having 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. R. Evid. 401. Where, as here, the defendant denies involvement in the crime with which he or she is charged, "evidence tending to connect [the] accused with the crime" is relevant. State v. Whiteside, 325 N.C. 389, 397, 383 S.E.2d 911, 915 (1989); see, e.g., State v. Francis, 91 Ariz. 219, 222, 371 P.2d 97, 99 (1962) ("[W]here the identity of the defendant is the question in issue, any fact which tends to establish the identity has probative value and if offered for that purpose it is receivable."); State v. Schroeder, 279 Neb. 199, 214, 777 N.W.2d 793, 806 (2010) (holding evidence tending to establish "the identity of the defendant as the perpetrator of the crime is always relevant in a case such as this, where the defendant claims no involvement in the crime"); State v. Coe, 101 Wash.2d 772, 781-82, 684 P.2d 668, 674 (1984) ("Where identity of the perpetrator of a crime is at issue, any evidence tending to identify the accused as the guilty person is relevant.").
The evidence at trial tends to show that just before midnight on 15 July 2008, Mr. Felton was approached by three men as he was leaving his apartment. Two of the men wore masks and were armed, one with a double-barreled shotgun and the other with a handgun. The man later identified as defendant had the shotgun and "d[id] most of the talking." Several days later, when defendant talked to Mr. Felton at the gas station where Mr. Felton worked, he recognized defendant as one of the men who had robbed him based, in part, on a "mole" defendant had under his left eye.
At the time of trial, however, defendant did not have any mole under his left eye. When the prosecutor asked defendant about the missing "marking" under his eye, defendant explained:
A At that time I had a black mark on my face.
Q What kind of a black mark?
A It was a burn mark.
Q Where is it now?
A If you can see when the scar went away there's still a little spot there if you look close enough.
Q So you had a mark there on 7/17/08?
A Listen, I smoke a lot of weed. I'm not going to sit here and say I don't. Me and Josh we play a lot. And there was a few times that he actually burnt me with a cigar.
Q Did you have the mark on 7/17/08?
A Yes, I did.
Q And then you had it a year later when the third picture was taken?
A Yes, I did.
Q So —
A I've got burnt three times by the same eye.
Q So you've burned yourself in the face three times?
A Josh burnt me twice. I burnt myself the third time.
Q Oh, okay. So you burned yourself once and your friend Josh — how did he burn you with a —
A Because we were playing around and he was blowing me a gun.
[Defense Counsel]: Well, objection to the relevance of that, Your Honor.
THE COURT: Overruled.
Q Say that again.
A We were playing around and he was blowing — we was blowing — he was blowing me a shotgun. That's when another person stands in front of you close enough to hold a blunt in their mouth and blow the smoke out and back in.
Q Okay.
A And when he turned around — he was messing with me because he was standing over me, he burnt me next to my eye.
Q So that small mark that's in the photos there came from a lit end of a blunt?
A Yes, it did.
This line of questioning shows that the prosecutor was not attempting to "unfairly disparage and weaken Defendant's credibility," as defendant suggests, but, rather, the prosecutor was trying to uncover the reason for the difference in defendant's appearance around the time of the robbery and his appearance at the time of trial. As Mr. Felton's pre-trial identification of defendant was based, in part, on the "mole" under defendant's left eye, the evidence tending to explain why that marking was not there at the time of trial was relevant to the issue of defendant's being the perpetrator of the offense. The trial court, therefore, properly permitted the prosecutor to cross-examine defendant about his marijuana use as it related to how he received the mark under his eye.
To the extent that the prosecutor's questions about defendant's marijuana use do not relate to the issue of identity, our Supreme Court has explained,
the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one 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.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). Consequently, if a defendant's "direct testimony raises specific issues, it `opens the door' to cross-examination on those subjects." State v. Thompson, 110 N.C. App. 217, 223, 429 S.E.2d 590, 594 (1993).
During direct-examination, defendant testified that while Ms. Cotton, Mr. Parson, and Ms. Turner were discussing who to rob, defendant was sitting on the couch, listening to their conversation, and "rolling a blunt." He then explained that they "smoked a couple of blunts" before he left the apartment with his girlfriend and everyone else left to commit the robbery. This testimony raised the issue of defendant's marijuana use, thus "opening the door" to being cross-examined by the State. See State v. Baker, 109 N.C. App. 557, 564, 428 S.E.2d 216, 219 (1993) ("It is clear from the record that defendant `opened the door' to the inquiry concerning his drug use on direct examination. The trial court then properly allowed the State to follow up on his testimony during cross-examination."), rev'd in part on other grounds, 336 N.C. 58, 441 S.E.2d 551 (1994).
Defendant further contends that the evidence elicited by the prosecutor should have been excluded pursuant to Rule 403. The transcript from trial indicates, however, that defendant did not object to the prosecutor's questions on the basis of Rule 403. Defendant has, therefore, failed to preserve this issue for appellate review. See State v. Hueto, 195 N.C. App. 67, 71, 671 S.E.2d 62, 65 (2009) (holding defendant waived appellate review of contention that evidence should have been excluded as being "unduly prejudicial" where defendant did not assert Rule 403 as basis for exclusion). Nor is an unpreserved Rule 403 contention subject to plain error review. See State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) ("The balancing test of Rule 403 is reviewed by this [C]ourt for abuse of discretion, and we do not apply plain error to issues which fall within the realm of the trial court's discretion." (citation and internal quotation marks omitted)).
In any event, even if the trial court erred in permitting the prosecutor to question defendant about his marijuana use, defendant cannot demonstrate that the verdict was improperly influenced by the trial court's rulings. N.C. Gen. Stat. § 15A-1443(a) (2009). At trial, the State presented overwhelming evidence of defendant's guilt. As defendant acknowledges on appeal, the issue at trial was not whether an armed robbery had occurred, but whether defendant was one of the three perpetrators. Mr. Felton, however, positively identified defendant as one of the men that robbed him at gunpoint late at night on 15 July 2008. Ms. Cotton and Mr. Parson, moreover, testified that defendant was involved in the planning of the robbery and received a portion of the stolen money. Mr. Parson further testified in detail about how he, Mr. Johnson, and defendant drove to Mr. Felton's apartment, waited for him to come outside, and then robbed him at gunpoint. As the State presented overwhelming evidence of defendant's guilt, defendant has failed to demonstrate that there is a reasonable possibility that, had the alleged error not occurred, a different result would have been reached at trial. See State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656, 666 (2000) (finding no prejudice resulting from the trial court's allegedly erroneous ruling on cross-examination "[i]n light of the evidence presented at trial"), appeal dismissed and disc. review denied, 353 N.C. 394, 547 S.E.2d 37, cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 777 (2001).
II
Defendant's only other argument on appeal is that the prosecutor improperly elicited details from defendant on cross-examination regarding defendant's prior convictions for possession of burglary tools and shoplifting. Defendant contends that the prosecutor's questions exceeded the permissible scope of inquiry regarding a witness's prior convictions under Rule 609(a) and thus the trial court erred in overruling his objections.
Defendant elected to testify at trial, and on direct-examination, defense counsel asked defendant "what [he] ha[d] . . . been convicted of in the last ten years . . . that would carry the punishment of more than 60 days?" Defendant testified that he had been convicted of possession of a stolen motor vehicle, possession of stolen goods, and possession of drug paraphernalia. When asked, defendant could not remember if he "ha[d] any larceny charges[.]" On cross-examination, the prosecutor asked defendant if he "recall[ed] being convicted on March 12, 2007, of the felony of possession of burglary tools?" Defendant responded:
A Yes. But they — that was — the whole thing was crazy.
Q Okay.
A I had some tools in the book bag. I was working on a friend of mine's dirt bike. I wasn't trying to break in nobody's house or break in no building or nothing like that. But that's what they charged me with because I was walking.
Q Okay. Well, tell us about that. Where were you walking and how did you get stopped?
[Defense Counsel]: Objection, Your Honor.
THE COURT: Overruled.
Q Go ahead.
A I was actually out there off of Club Boulevard when that happened.
Q What time of day was it?
A It wasn't day it was night. I was on my way walking to catch the bus. Because I had caught the bus over there and I was catching the bus back.
Q You had a back pack?
A Yes, I did.
Q What was in the back pack?
A The tools to work on his dirt bike.
Q And how did you come to be stopped?
A A sheriff's officer by the name of Officer Norwood stopped me. The only reason I knew Norwood was because he had worked at the jail.
Q Okay. What happened after he stopped you?
A He proceeded to search me.
At this point, defense counsel "[o]bject[ed] to this line of questioning about an old conviction," and the trial court sustained the objection.
Later, when the prosecutor asked defendant about a 2005 shoplifting charge, the following colloquy occurred:
A That was an incident where my nephew was trying to steal something out of the grocery store and I didn't have enough money to pay for it, so I took that charge.
Q So this is one that you didn't do but you manned up?
A No, I took it because I didn't want my sister to get mad with my nephew because I had my nephew with me.
Q And so you took the charge?
A Yes, I did.
Q Well, you plead [sic] not guilty. Was there a trial?
A No, but I was still found guilty in the case.
Q Well, but was there —
[Defense Counsel]: Objection. He's admitted the conviction, Your Honor.
THE COURT: Overruled.
Q But you plead [sic] not guilty, you were found guilty. Was there a trial?
A I plead [sic] not guilty to the fact that I didn't steal it. I plead [sic] guilty to the fact that I took the charge for my nephew.
Q Well, which is it, did you plead not guilty or guilty?
A I plead [sic] not guilty in the actual courtroom.
[Defense Counsel]: Objection. He's answered the question, Your Honor.
[Defendant]: The judge found me guilty.
Q Okay, the judge found you guilty. And was that after a trial?
A No, it was not. We never had a trial where it was people in a box.
Q No, was there a judge on the bench?
A Yes, there was.
Q And so you're telling the jury that is you accepting responsibility for your nephew to plead not guilty and make the State prove the case?
A Yes, it was.
[Defense Counsel]: Objection. He's admitted the conviction, Your Honor.
THE COURT: Overruled.
Q Is that manning up on that charge —
[Defense Counsel]: Objection.
Q — the shoplifting charge?
[Defense Counsel]: Objection, Your Honor.
THE COURT: Overruled.
Q Is that what that is?
A What?
Q Manning up on it, pleading not guilty and requiring a trial? Is that manning up on that charge?
[Defense Counsel]: Objection to relevance of that, Your Honor.
THE COURT: Overruled.
[Defendant]: Yes.
"When a defendant chooses to testify, evidence of prior convictions is admissible for the purpose of impeaching his credibility under Rule 609(a)." State v. Lynch, 334 N.C. 402, 408-09, 432 S.E.2d 349, 352 (1993). As a general rule, however, "[t]he permissible scope of inquiry into prior convictions for impeachment purposes is restricted . . . to the name of the crime, the time and place of the conviction, and the punishment imposed." Id. at 409, 432 S.E.2d at 352. Nevertheless, "evidence which would otherwise be inadmissible [under Rule 609(a)] may be permissible on cross-examination `to correct inaccuracies or misleading omissions in the defendant's testimony or to dispel favorable inferences arising therefrom.'" State v. Braxton, 352 N.C. 158, 193, 531 S.E.2d 428, 448 (2000) (quoting Lynch, 334 N.C. at 412, 432 S.E.2d at 354), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Thus, when "a defendant `opens the door' by misstating his [or her] criminal record or the facts of crimes or actions, or where a defendant uses his [or her] criminal record to create inferences in his [or her] favor, the State is allowed to cross-examine the defendant about the details of those prior crimes or actions." State v. Singletary, 163 N.C. App. 449, 453, 594 S.E.2d 64, 68 (citing Lynch, 334 N.C. at 412, 432 S.E.2d at 354), cert. denied, 359 N.C. 196, 608 S.E.2d 65 (2004).
Here, the prosecutor initially asked defendant about the 2007 conviction for possession of burglary tools and the 2005 shoplifting charge as defendant had failed to disclose the convictions during direct-examination. When asked about each of the charges, defendant attempted to exculpate himself by explaining that, although he had been convicted, he had not actually committed either of the offenses. As defendant "opened the door" by misstating the extent of his criminal record and repeatedly attempting to exculpate himself, the trial court properly permitted the prosecutor to ask defendant, over defense counsel's objections, about the details of his prior convictions in order to dispel any favorable inferences raised by defendant's testimony. See Braxton, 352 N.C. at 193, 531 S.E.2d at 449 ("Considering defendant's testimony on direct examination which tended to minimize the seriousness of his criminal involvement, we conclude the prosecutor did not exceed the scope of proper examination."); State v. Bishop, 346 N.C. 365, 390, 488 S.E.2d 769, 782 (1997) ("Defendant volunteered information concerning the nature and circumstances of her convictions on direct examination. She suggested that her insurance fraud convictions resulted from a mere failure to report two premiums. This testimony was misleading and `opened the door' to the prosecutor's questions."); State v. Blair, 181 N.C. App. 236, 244, 638 S.E.2d 914, 920 ("During direct examination, defendant minimized the seriousness of his criminal involvement when he claimed that he was not a violent person and had never robbed anyone. This testimony opened the door to the State's questioning as to defendant's past criminal history."), appeal dismissed and disc. review denied, 361 N.C. 570, 650 S.E.2d 815 (2007).
Defendant also contends that the prosecutor's asking him about whether he believed his pleading not guilty to the 2005 shoplifting charge was "manning up" was "argumentative and derogatory." Although "[a] [prosecutor] may ask a defendant . . . questions tending to discredit [his or her] testimony, no matter how disparaging the question may be[,]" the prosecutor "may not needlessly badger or humiliate [the defendant] by asking insulting and impertinent questions which [the prosecutor] knows will not elicit competent or relevant evidence." State v. Daye, 281 N.C. 592, 596, 189 S.E.2d 481, 483 (1972). Here, the prosecutor's questions as to whether defendant had "manned up" to the shoplifting charge were "simply a vigorous cross-examination properly designed to discredit defendant's" misleading statements about his criminal record. State v. Rush, 340 N.C. 174, 186, 456 S.E.2d 819, 826 (1995).
As this Court has explained, "[e]ven if this line of questioning is impermissible, defendant must still prove that he was prejudiced as a result." State v. Little, 163 N.C. App. 235, 243, 593 S.E.2d 113, 118, appeal dismissed and disc. review denied, 358 N.C. 736, 602 S.E.2d 366 (2004). Defendant testified regarding numerous prior convictions and, as discussed above, the State presented overwhelming evidence of defendant's guilt. We conclude, therefore, that defendant has failed to demonstrate prejudice resulting from his allegedly erroneous cross-examination regarding his prior convictions. See id. (holding, even if trial court erred in permitting prosecutor to question defendant regarding underlying facts of a prior conviction, error was harmless as "[d]efendant testified to numerous convictions" and State presented evidence tending to establish defendant's guilt).
No Error.
Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).