Opinion
No. COA11–1047.
2012-06-5
STATE of North Carolina v. Danny Lamont THOMAS.
Attorney General Roy Cooper, by Assistant Attorney General, Derrick C. Mertz, for the State of North Carolina. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for Danny Lamont Thomas.
Appeal by Defendant from judgment entered 3 September 2009 by Judge Ripley Rand, in Durham County Superior Court. Heard in the Court of Appeals 21 March 2012. Attorney General Roy Cooper, by Assistant Attorney General, Derrick C. Mertz, for the State of North Carolina. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for Danny Lamont Thomas.
HUNTER, JR., ROBERT N., Judge.
I. Factual & Procedural Background
On 21 August 2006, Danny Lamont Thomas (“Defendant”) was indicted for murder, first degree kidnapping, and robbery with a dangerous weapon. The matter came before Judge Ripley Rand at the 1 September 2009 session of the Superior Court for Durham County. The State's evidence at trial tended to show the following.
In July 2005, Charles Farrior and Ralph Joseph shared a house on Farthing Street in Durham. On the night of 15 July 2005, Valehia Williams, who was in a relationship with Farrior, testified that she went to Farrior and Joseph's house to take a shower. She testified that after taking a shower, she left the house and stopped to try and help a car with a flat tire. The four men in the car included two that she knew: Charles “Rock” Hightower and Defendant, who Williams referred to as “Cuban.” Otis Crosby, Hightower's uncle, testified that Defendant and Hightower worked at a group home together and were friends.
Earlier that week, Hightower and Defendant had asked Williams about Farrior and stated that they had heard he had money and drugs. When Williams met the four men with the flat tire on 15 July 2005, they arranged to have her go back into Farrior and Joseph's house and leave the house quickly so they could get into the house before the door was locked in order to rob the house. According to Williams, she was not supposed to be in the house when the four men robbed the house.
Williams testified that she returned to the house to retrieve her earrings, which she had left there. While Williams was in the bathroom, she heard a commotion in the hallway, and when she came out of the bathroom, Hightower grabbed her and put her into a bedroom with Joseph, who was handcuffed behind his back and laying on his side. Hightower asked Joseph where the money was kept. Joseph stated that it was in a drawer, and Hightower retrieved the money from the drawer.
Hightower and Defendant beat Joseph while asking him where the money and drugs were. Both Hightower and Defendant shot Joseph multiple times, and Joseph died from the gunshot wounds. Williams testified she left the house and Defendant got into Williams' vehicle. Defendant had been wearing a mask, but removed his mask after getting in Williams' vehicle. Williams testified that Defendant directed her to drive down the street, at which point the other three men got into Williams' SUV and she drove them to their vehicle. Shortly thereafter, police stopped Williams' SUV and found a gun holster and a container of marijuana in the vehicle.
Around midnight on the night of the murder, Brandi Keith and Jason Sell visited the house which shared a driveway with Farrior and Joseph's house. While Sell went into the neighbor's house to pick up a friend's son, Keith stayed in the car. Keith observed a dark-colored SUV pull up in the driveway behind her car and then pull over behind Joseph's house. She saw a female get out of the driver's seat and heard car doors open a few more times before she saw the house door open. After about seven to ten minutes, Keith heard gunshots and then, about five minutes later, she saw the same female from earlier run out of the house with three men following her, one of whom was wearing a mask. All four jumped into the SUV and backed out of the driveway.
Keith got out of her car and went to ask Sell to go check on Joseph's house because she had heard gunshots. After Sell checked the house and discovered Joseph dead, 911 was called and the police arrived. Sell identified the SUV as belonging to Williams, who he knew to be Farrior's girlfriend.
A warrant was issued for Defendant's arrest on 25 July 2005. Willie Hayes, a coworker of Defendant, testified that on that day, a Monday morning, he met with Defendant at work and Defendant left to take grocery money to the group home where he worked. That same day, a SWAT team executed a search at the group home looking for Defendant but did not find him. Hayes did not see Defendant at work the rest of that day or again after that day.
Deputy Jason Hess of the El Paso County Sheriff's Office in Colorado testified that on 8 December 2005, at approximately 5:00 p.m., he was assisting United States Marshals in attempting to locate and apprehend Defendant. With the consent of the homeowner, who knew Defendant was in the residence, officers entered a residence in Colorado and announced their presence, requesting that Defendant show police his hands. Deputy Hess saw the barrel of a rifle pointing around a corner and, after moving back from that corner, saw the gun using a mirror. Defendant “began screaming at [the officers] to back up.” After Deputy Hess tried to negotiate with Defendant, Defendant made threats, stating that “he was loaded with full metal jackets” and that if they attempted to arrest him “there was going to be a blood bath.” After twenty or thirty minutes, the local police were brought in to handle the situation. Lieutenant James Patrick Rigdon of the Colorado Springs Police Department testified that he led the Colorado Springs Tactical Team into the residence at approximately 7:25 p.m. At approximately 9:45 p.m., Lieutenant Rigdon received a signed search warrant, and one of the officers deployed a tear gas canister. Lieutenant Rigdon heard two or three gunshots, and then Defendant agreed to come out, at which point he was arrested.
In the residence, crime scene technicians found an SKS rifle, a .45 caliber semi-automatic handgun, and a backpack containing ammunition. Several of the bullets used in Joseph's murder were .45 caliber; however, testing at the North Carolina State Bureau of Investigation showed that the gun found in Colorado had not been used to shoot Joseph. A duffel bag containing a multi-colored mask and some bandanas was also found. After his arrest, Defendant told Detective Richard Gysin of the Colorado Springs Police Department that he knew the police were looking for him and that there was a warrant for his arrest. Defendant moved to dismiss all charges at the end of the State's evidence, and his motion was denied.
Hayes, Defendant's coworker, testified that on 15 July 2005, the day of Joseph's murder, Hayes and a group of friends, including Defendant, went to Kanki restaurant to celebrate Hayes' birthday. Hayes testified that Defendant had arrived by the time the group sat down at 9:30 p.m. and that Defendant was there until they finished having drinks and talked in the parking lot until just after midnight.
Gregory McBride, another coworker of Defendant, testified that he attended the party and that he either arrived at 10:30 p.m. and saw Defendant about twenty minutes later or arrived at 9:30 p.m. and saw Defendant at 10:30 p.m. McBride testified that he left at 11:35 p.m. and that Defendant and Hayes were still talking in the parking lot at the time. Sherwin Lacewell also testified that he attended the party at Kanki, arriving at about 11:00 p.m. or 11:30 p.m. and seeing Defendant there. Lacewell testified that when he left after midnight, Defendant was still talking to Hayes in the parking lot.
There is a discrepancy between McBride's trial testimony and a previous statement he gave to police about what time he arrived at Kanki and when he saw Defendant.
Defendant renewed his motion to dismiss at the close of all of the evidence, and it was again denied. During jury instructions, the trial court instructed the jury using the pattern jury instruction entitled “Flight—First Degree Murder Cases.” N.C.P.I.Crim. 104.36 (2011). On 3 September 2009, the jury found Defendant guilty on all counts. Defendant was sentenced to life imprisonment without parole. Defendant gave timely notice of appeal.
II. Jurisdiction
As Defendant appeals from a final judgment in superior court, we have jurisdiction over his appeal pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
III. Analysis
Defendant first argues that the admission of testimony about his arrest in Colorado was irrelevant and prejudicial and should not have been admitted under Rule 404(b) of our Rules of Evidence.
The determination of whether evidence was properly admitted under Rule 404(b) involves a three-step test. First, is the evidence relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried' Second, is that purpose relevant to an issue material to the pending case' Third, is the probative value of the evidence substantially outweighed by the danger of unfair prejudice pursuant to Rule 403'
State v. Foust, ––– N.C.App. ––––, ––––, 724 S.E.2d 154, –––– (2012). The first two steps involve questions of relevance as defined by Rule 401. This Court reviews questions of relevancy de novo but accords deference to the trial court's ruling. State v.. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 222–23 (2011) (“A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.”). The third step of the Rule 404(b) test—the Rule 403 balancing test—is reviewed for abuse of discretion. State v. Summers, 177 N.C.App. 691, 697, 629 S.E.2d 902, 907,appeal dismissed and disc. rev. denied,360 N.C. 653, 637 S.E.2d 192 (2006).
Defendant asserts that the evidence introduced regarding his arrest in Colorado, including evidence of the .45 caliber gun that did not match the murder weapons, was irrelevant and was “overwhelmingly prejudicial.” Defendant does not address, however, the State's argument at trial that the main purpose of the evidence was to show the circumstances of his flight from the crime in preparation for a jury instruction on flight. The trial court found the evidence of flight, including the evidence of the .45 caliber gun, relevant “to tell the entire story involved in the matter,” and stated, “As long as it's made clear to the jury that the firearms seized there didn't have anything to do specifically with the events here in Durham ... I think it is relevant to his capture in Colorado as part of the whole story being told.”
“An accused's flight is universally conceded' to be admissible as evidence of consciousness of guilt and thus of guilt itself.” State v. Jones, 292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977) (citation omitted). Our Courts have long held that flight is competent on the question of guilt because “a guilty conscience influences conduct.” ' Id. (citation omitted).
Defendant in the present case knew there was a warrant for his arrest. On the day the SWAT team executed a search of the group home where Defendant worked, Defendant disappeared in the middle of the work day and was not seen again by his coworker after that. Defendant was tracked to Colorado on 8 December 2005. As a part of his arrest in Colorado, Defendant engaged in a several hour standoff with police, threatening officers, which resulted in the use of tear gas to extract Defendant. The fact that Defendant was not found for several months does not negate the evidence of his flight. See State v. Tucker, 329 N.C. 709, 722, 407 S.E.2d 805, 813 (1991) (where the defendant was found in another state more than three years after the crime). It similarly does not matter that Defendant had not been arrested prior to his flight. See State v. Mash, 305 N.C. 285, 288, 287 S.E.2d 824, 826 (1982) (“The cases in which evidence of flight has been declared competent when the flight occurred before arrest or before the accused was in custody are legion.”).
The evidence of the standoff in Colorado is relevant to show Defendant's consciousness of guilt, and the nature of the flight is important to the jury. Jones, 292 N.C. at 527, 234 S.E.2d at 562–63 (“For example, it is likely that a jury would attach a different significance where a defendant fled a short distance to a friend's house ... than where, as here, the defendant attempted to flee the state and in doing so assaulted a law enforcement officer.”). “Flight is relative' proof which must be viewed in its entire context to be of aid to the jury in the resolution of the case.” Id. The circumstances of Defendant's arrest in Colorado, including the weapons recovered at the residence, therefore, were relevant to Defendant's consciousness of guilt. The evidence was admissible, even if it disclosed the commission of separate crimes by Defendant. Id. at 526, 234 S.E.2d at 562.
Having found the evidence of Defendant's flight relevant, we turn to the Rule 403 balancing test to determine whether the danger of unfair prejudice outweighed the probative value of the evidence. Under the applicable abuse of discretion standard, we find no abuse of discretion by the trial court. “[T]he term ‘unfair prejudice’ contemplates evidence having an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.” ' State v. McDougald, 336 N.C. 451, 457, 444 S .E.2d 211, 214 (1994) (citation omitted). “In light of our prior holdings regarding evidence of flight, the evidence of the defendant's [flight] could only be viewed as having a due tendency to suggest a decision on a proper basis.' “ Id. (citation omitted). We therefore find no abuse of discretion under Rule 403 and find no error in the trial court's admission of evidence regarding Defendant's arrest in Colorado.
Defendant also argues that the trial court erred by failing to dismiss the kidnapping charge against him because there was not substantial evidence of removal or restraint beyond that which was necessary to commit the armed robbery.
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
“The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.”
State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
Our Courts have held that restraint or removal which is an inherent, inevitable part of the commission of another felony cannot be used as the basis for a separate kidnapping charge. State v. Irwin, 304 N.C. 93, 102–03, 282 S.E.2d 439, 446 (1981) (holding movement of the victim at gunpoint without further restraint to be a “mere technical asportation and insufficient to support conviction for a separate kidnapping offense”).
Whether a defendant's restraint or removal of a person during the commission of an armed robbery will support a separate conviction for kidnapping is guided by two factors: (1) whether the person was forcibly removed for any reason other than the commission of the robbery or (2) whether the restraint or removal exposed the person to a greater danger than was inherent in the other offense.
State v. Morgan, 183 N.C.App. 160, 166, 645 S.E.2d 93, 99 (2007) (holding that where victims were bound with duct tape and left in a hotel room, they “were placed in greater danger than the restraint and removal that was inherent in the armed robbery”).
“[T]here is consistency in the Courts' opinions where the evidence tended to show that a victim was bound and physically harmed by the robbers during the robbery. Clearly that type of restraint creates the kind of danger and abuse the kidnapping statute was designed to prevent.” State v. Payton, 198 N.C.App. 320, 327, 679 S.E.2d 502, 506 (2009) (quotation marks and citations omitted) (concluding that where the victims were not bound or physically harmed, there could not be a separate charge of kidnapping). In State v. Beatty, our Supreme Court found that where a defendant bound a victim's wrists and kicked him, “he increased the victim's helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob [the victim.]” 347 N.C. 555, 559, 495 S.E.2d 367, 370 (1998). The other victim in Beatty, however, was held at gunpoint but not injured or otherwise restrained, so the evidence of his restraint was considered to be an “inherent, inevitable feature of the robbery” with a dangerous weapon and could not support a conviction for kidnapping. Id. at 560, 495 S.E.2d at 370.
In State v. Pigott, the defendant threatened the victim with a gun. 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992). Our Supreme Court held that this was “all the restraint necessary and inherent to the armed robbery.” Id. Therefore, since the defendant went on to bind the victim's hands and feet, he “increase[ed] the victim's helplessness and vulnerability beyond the threat that first enabled defendant to search the premises for money, constitut[ing] such additional restraint as to satisfy that element of the kidnapping crime.” Id.
In the present case, the victim was bound by handcuffs and was beaten before being shot. Holding the victim at gunpoint without further restraint or injury would have been sufficient to accomplish the robbery. Instead, the restraint used was greater than that inherent in the offense and increased the victim's helplessness and vulnerability beyond that which was necessary for the robbery. Therefore, the trial court did not err in denying Defendant's motion to dismiss the charge of kidnapping.
IV. Conclusion
For the foregoing reasons, we find No error. Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).