Opinion
No. 07-950.
Filed February 5, 2008.
Cumberland County No. 04 CRS 069091.
Appeal by defendant from judgment entered on or about 25 April 2007 by Judge Gregory A. Weeks in Superior Court, Cumberland County. Heard in the Court of Appeals 14 January 2008.
Attorney General Roy A. Cooper III, by Assistant Attorney General Michael D. Youth, for the State. John T. Hall, for defendant-appellant.
Defendant appeals from a judgment entered upon his conviction for robbery with a dangerous weapon. For the reasons discussed below, we find no error.
On 11 November 2004, Richard Brown was in front of his residence when he was approached by defendant and Vander Bruton. Defendant placed a silver-colored handgun to Brown's head and demanded money. After turning around to see defendant and the gun, Brown reached into his pocket and gave them $15.00. At defendant's direction, Bruton reached into Brown's pocket and took his wallet. Bruton also took Brown's cellular phone. Brown's daughter was standing outside and ran to tell her mother, Inez Brown (Inez), what was happening. As defendant and Bruton "tried to drag . . . Brown into his back yard[,]" Brown's wife came to the front door and defendant and Bruton "took off running through the woods." As she moved from the front porch toward the wooded area, Brown's wife saw defendant. Brown's son, Clyde Jason Tuitt, who knew defendant from school and from the neighborhood, also came to the front door and saw defendant running into the woods. On the day of the robbery, Brown selected defendant's photograph from a lineup prepared by Kimberly Gagnon, of the Cumberland County Sheriff's Office ("Gagnon"). On 10 January 2005, Bruton gave a recorded statement to Gagnon, implicating defendant as the gunman in the robbery. At least three witnesses positively identified defendant at trial.
Defendant first claims that the trial court committed "structural error" undermining the impartiality of his trial by allowing Bruton to testify pursuant to an unlawful plea agreement with the State. While conceding that he did not object to Bruton's testimony or assign plain error to its admission, defendant insists that structural error is not subject to waiver and need not be shown to be prejudicial in order to require a new trial.
At the beginning of defendant's trial, the prosecutor informed the trial judge that Bruton had entered a guilty plea of armed robbery but had yet to be sentenced. If Bruton testified truthfully at defendant's trial, the State had promised to pray judgment on common law robbery. The judge advised the prosecutor that Bruton could not be sentenced in contravention of his guilty plea. In order to obtain the result contemplated by their plea arrangement, the judge suggested, the State would have to join Bruton in moving to strike his guilty plea, and then allow him to plead guilty to the lesser offense of common law robbery. The judge noted that any such arrangement would have to be disclosed to the jury. Defendant's counsel did not object during these discussions, but indicated his intention to "attack" Bruton's testimony based upon his agreement with the State. The court noted that defendant was "absolutely free to attack" Bruton's credibility and that the terms of the plea bargain were "fair game for cross-examination."
The parties prepared the following joint stipulation regarding Bruton's testimony, which the prosecutor read to the jury:
Vander Bruton, who was originally charged as a co-defendant with [defendant], will be called to testify for the [S]tate.
. . . .
Bruton entered into a plea agreement with the [S]tate where he pled guilty to armed robbery [, but] was not sentenced. He has agreed to testify for the [S]tate and after he has testified . . . if the [S]tate is satisfied he has fully cooperated pursuant to the terms of the agreement, his original plea of guilty to robbery with a dangerous weapon . . . will be stricken and the [S]tate will accept his plea[] of guilty to common law robbery . . . and dismiss the armed robbery charge in this case.
After defense counsel confirmed the accuracy of the stipulation, the judge instructed the jury that the stipulation was to be deemed "true for all purposes relating to this trial." The jury indicated its understanding of the stipulation. When Bruton was subsequently called as a witness, defense counsel raised no objection during his direct examination, but cross-examined him thoroughly on the terms of his plea agreement. Before it retired for deliberations, the jury was admonished by the court to "examine [Bruton's] testimony with great care and caution in deciding whether or not to believe him." Defendant was convicted of robbery with a dangerous weapon and now appeals.
Defendant now contends that the trial court erred in allowing Bruton to testify when the court was aware that the testimony was obtained through an illegal promise. Defendant argues this was structural error. Specifically defendant argues that the prosecutor lacked constitutional authority, as a member of the Executive Branch, to promise Bruton that he would be sentenced for common law robbery after pleading guilty to robbery with a dangerous weapon, or that he would be allowed to withdraw his guilty plea to robbery with a dangerous weapon in exchange for his testimony. Defendant avers that it is the province of the legislature to prescribe the sentence for a criminal offense. Likewise, the judiciary determines whether a defendant may withdraw a guilty plea.
Initially, we note that defendant offered no objection, and thus no constitutional objection, to Bruton's testimony, see N.C.R. App. P. 10(b)(1), nor has defendant assigned plain error to the admission of Bruton's testimony. See N.C.R. App. P. 10(c)(4). Accordingly, he has failed to preserve for appeal any issue surrounding the admissibility of this evidence. See State v. Dennison, 359 N.C. 312, 312-13, 608 S.E.2d 756, 757 (per curiam), disc. rev. denied, 360 N.C. 69, 622 S.E.2d 113 (2005). "[C]onstitutional error will not be considered for the first time on appeal." State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) "Structural error, no less than other constitutional error, should be preserved at trial." State v. Garcia, 358 N.C. 382, 410, 597 S.E. 2d 724, 745 (2004) (noting six types of structural error, none of which defendant claims), cert. denied, 543 U.S. 1156, 161 L.Ed.2d 122 (2005). Defendant has failed to properly preserve this issue for appeal. See Chapman at 366, 611 S.E.2d at 822; Dennison at 312-13, 608 S.E.2d 756; Garcia at 410, 597 S.E.2d at 745.
Defendant next claims that the trial court abused its discretion in refusing to accept his offer of a guilty plea at the conclusion of Bruton's testimony. The transcript reflects that the court met with the parties during a recess to discuss the possibility of a plea bargain. Defendant had previously rejected an offer to plead guilty to common law robbery and conspiracy; the State advised the court that it would not extend the offer again. Defense counsel told the court that defendant "was looking for something in the mitigated range" in exchange for a guilty plea. Based on defendant's prior record level III, the court informed counsel that it would impose a sentence of 78 to 103 months. Counsel conferred with defendant regarding the proposed sentence and informed the court that defendant wished to plead guilty.
The court placed defendant under oath and began the colloquy required by N.C. Gen. Stat. § 15A-1022(a) (2003). After stating that he read at a third-grade level, defendant had the following exchange with the court:
THE COURT: Are you now under the influence of alcohol, drugs, narcotics, medicines, pills or any other intoxicants?
THE DEFENDANT: What kind of pills? I took some pills yesterday, some headache pills.
THE COURT: That's not the question. . . . I'm asking you about the first part of the question. The first part of the question is, whatever it is you took, are you under the influence? Has your ability to think clearly or understand what's going on been affected by whatever you took?
THE DEFENDANT: I don't know.
THE COURT: Sir?
THE DEFENDANT: I don't know, man.
THE COURT: All right. Call for the jury, folks.
THE DEFENDANT: I ain't drunk.
THE COURT: Call for the jury. . . . We can't take the plea. The defendant is indicating he's under the influence or he's not sure whether he's under the influence of drugs.
THE DEFENDANT: I'm not under the influence.
THE COURT: Have a seat and be quiet. Call for the jury. . . .
The prosecution continued with its case. At the conclusion of the State's evidence, defendant presented an alibi witness and moved to dismiss the charges for insufficient evidence. The trial court dismissed a conspiracy charge, but denied defendant's motion as to the charge of robbery with a dangerous weapon. At the charge conference, the court addressed defendant directly regarding his wish for a jury instruction on his decision not to testify. At no time did defendant revisit the issue of his guilty plea with the court.
Defendant now asserts that the trial court had no basis to suspect that he was under the influence of medication or was otherwise unable to understand his decision to plead guilty. Rather, the court improperly "shut down the guilty plea proceedings" when defendant sought clarification of the term "pills."
"[T]here is no absolute right to have a guilty plea accepted." State v. Collins, 300 N.C. 142, 148, 265 S.E.2d 172, 176 (1980). The trial court "may not accept a plea of guilty or no contest from a defendant without first determining that the plea is a product of informed choice." N.C. Gen. Stat. § 15A-1022(b); see also N.C. Gen. Stat. § 15A-1023(b)-(c) (2003) (Where a plea arrangement makes no provision as to sentencing, the judge "must accept the plea if he determines that the plea is the product of the informed choice of the defendant and that there is a factual basis for the plea"). Accordingly, "this Court has held that it must affirmatively appear on the record that a plea of guilty was understandingly and voluntarily made." State v. Ellis, 13 N.C. App. 163, 165, 185 S.E.2d 40, 42 (1971) (citing Boykin v. Alabama, 395 U.S. 238, 23 L.Ed. 2d 274 (1969)). Moreover, "it is within the discretion of the trial court to determine whether or not to accept a defendant's plea, and it is the duty of the trial court, in accepting a plea, to determine if it is knowingly, understandingly and voluntarily made." State v. Brown, 101 N.C. App. 71, 79, 398 S.E.2d 905, 910 (1990) (citing State v. McClure, 280 N.C. 288, 293-94, 185 S.E.2d 693, 696-97 (1972)).
We find no abuse of discretion here. The trial court declined to accept defendant's guilty plea only after he twice expressed uncertainty, under oath, as to whether the medication he had taken was impeding his ability to think clearly and understand his decision. We cannot say, based on the cold transcript of their exchange, that the court's decision was an abuse of discretion. Cf. State v. Whitley, 288 N.C. 106, 111, 215 S.E.2d 568, 571-72 (1975) (upholding the court's refusal to accept a guilty plea after the defendant equivocated during his plea colloquy, inasmuch as "[f]urther urging or prodding by court or counsel might well have deprived pleas subsequently accepted of their requisite voluntariness and encouraged a later post-conviction proceeding to set them aside"); State v. Foster, 105 N.C. App. 581, 585, 414 S.E.2d 91, 93 (1992) ("[W]here the record affirmatively demonstrates that defendant is not satisfied with his counsel's representation, we hold the trial judge did not err in refusing to accept defendant's plea of guilty").
No error.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e).