Opinion
No. COA09-560.
Filed March 2, 2010.
Hertford County Nos. 07 CRS 3939, 08 CRS 129.
Appeal by defendant from judgment entered 30 October 2008 by Judge Thomas D. Haigwood in Hertford County Superior Court. Heard in the Court of Appeals 8 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Tracy Curtner, for the State.
Paul Y. K. Castle for defendant-appellant.
Defendant Stacey McCoy Brooks appeals from his conviction of felonious operation of a motor vehicle to elude arrest and being a habitual felon. Defendant primarily contends the trial court committed plain error in admitting into evidence a statement made by an anonymous caller to a police officer that defendant, whose license had been revoked, was driving a particular vehicle out of a subdivision. Defendant, however, waived appellate review of this issue by failing to object to the admission of this testimony at trial and by failing to specifically and distinctly allege plain error in his assignment of error. Even if properly preserved, we hold that the statement was not hearsay because the statement was not admitted to prove the truth of the matter asserted, but rather to explain why the officer drove to the exit from the subdivision and waited there for defendant.
Facts
At trial, the State's evidence tended to show the following. On 6 December 2007, Lieutenant Joseph Burgess of the Murfreesboro Police Department received an anonymous telephone call claiming that defendant was about to leave the Westwood subdivision and would be driving a white Lincoln Continental with a weapon in the car. Lieutenant Burgess knew defendant and was aware that defendant's driver's license had been revoked. Lieutenant Burgess and Detective Brian Pierce drove to a nearby intersection and parked where they could observe any vehicles exiting the subdivision.
Approximately three minutes after their arrival, the officers observed a white Lincoln Continental pull out of the subdivision. Both officers identified defendant as the driver of the vehicle and did not see anyone else in the car. Lieutenant Burgess pulled behind the vehicle and attempted to stop it. When, however, Lieutenant Burgess activated his blue lights, defendant fled. Lieutenant Burgess pursued defendant, and after an intense chase, defendant slowed down, opened the driver's-side door, jumped out of the still-moving car, and fled on foot. Lieutenant Burgess and Detective Pierce continued their pursuit on foot and ultimately caught and arrested defendant. A search of defendant's car did not turn up any weapons. Defendant was subsequently indicted for felonious speeding to elude arrest and being a habitual felon.
At trial, Antonne Sessoms testified on defendant's behalf, stating that he was with defendant just prior to defendant's leaving the subdivision that evening. According to Mr. Sessoms, defendant was not the driver of the Lincoln Continental, but rather was riding in the passenger seat. Mr. Sessoms testified that he did not know the man who was driving the car.
Defendant testified on his own behalf that the driver of the Lincoln Continental was a man named Charles Montague. Defendant told the jury that he asked Mr. Montague to let him out of the car during the chase, but Mr. Montague refused to do so. Defendant said that when the car came to a stop, he ran (in the opposite direction of Mr. Montague) because he had an outstanding warrant for failure to pay child support and did not want to go to jail.
The jury convicted defendant of felonious speeding to elude arrest, and he pled guilty to being a habitual felon. The trial court sentenced defendant to a presumptive-range term of 135 to 171 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court committed plain error when it allowed the State to introduce into evidence the statement made by the anonymous caller to Lieutenant Burgess. "To receive plain error review, a defendant must `specifically and distinctly' allege plain error in his assignments of error . . . and a failure to do so results in waiver of plain error review."
State v. McClary, 157 N.C. App. 70, 74, 577 S.E.2d 690, 693 (quoting N.C.R. App. P. 10(c)(4)), appeal dismissed and disc. review denied, 357 N.C. 466, 586 S.E.2d 466 (2003). Defendant did not object at the time Lieutenant Burgess testified regarding the tip from the anonymous caller. Although he argues plain error in his brief to this Court, defendant failed to specifically and distinctly allege plain error in his assignment of error and has, therefore, waived appellate review on this issue.
Even if this issue had been properly preserved, defendant's argument that Lieutenant Burgess' testimony was hearsay would fail. "Hearsay is defined as an out-of-court declaration offered for the purpose of proving the truth of the information contained in the declaration." State v. Jones, 347 N.C. 193, 216, 491 S.E.2d 641, 655 (1997). When, however, "a declaration is offered for a purpose other than to prove the truth of the matter asserted, the evidence is not hearsay." Id. Our courts have held that "[w]hen offered to explain the subsequent conduct of the person to whom the declaration was made, an out-of-court declaration is not considered hearsay." Id.
At trial, the State asked Lieutenant Burgess, "How was it that you ended up coming into contact with [defendant] on December 6, 2007?" Lieutenant Burgess responded that he had received a phone call telling him that defendant would be leaving the Westwood subdivision in a white Lincoln Continental with a weapon in the car. He testified that as a result of that phone call, he drove out to the subdivision to "see if the information that [he] had gathered on the phone call would pan out." This testimony was offered not for the truth of the matter asserted, but rather to explain why Lieutenant Burgess drove to the location where defendant was later seen driving the Lincoln Continental. The testimony was, therefore, properly admitted.
Although defendant stresses that the trial court did not give any limiting instruction explaining to the jury the limited purpose of the testimony, a trial court is not required to give a limiting instruction unless one is requested by the defendant. See State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991). Since in this case, defendant did not request such an instruction, its absence cannot be a basis for finding error in the admission of the testimony.
II
Defendant also contends that in calculating his prior record level, the trial court improperly used prior convictions that had been consolidated for judgment or arose from the same events and transactions as the three felonies that were used to establish defendant's status as a habitual felon. Defendant concedes this issue is at least in part controlled by a prior decision of this Court, but asks this Court to reconsider its opinion. See State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996) (holding "we find nothing in [N.C. Gen. Stat. §§ 14-7.6 and 15A-1340.14] to prohibit the court from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level"). We believe that this Court's opinion in Truesdale is controlling in all respects, and we are bound by that opinion. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court"). Accordingly, we overrule this assignment of error. Defendant's remaining assignments of error set forth in the record on appeal, but not argued in his brief to this Court, are deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).