Opinion
No. COA10-961
Filed 5 April 2011 This case not for publication
Appeal by defendant from judgments entered 28 August 2009 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 7 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan Babb, for the State.
Duncan B. McCormick for defendant appellant.
Guilford County, Nos. 07 CrS 109840, 109843.
Floyd Calvin Cody ("defendant") appeals from judgments based on his convictions for first-degree murder under the felony murder rule, robbery with a dangerous weapon, first-degree burglary, and first-degree kidnapping. For reasons discussed herein, we find no error and affirm the decision of the trial court.
I. Background
A. Overview of the Crime
On 10 March 2008, defendant was indicted for the following charges: first-degree murder of Jermaine Collins ("Collins") under N.C. Gen. Stat. § 14-17, robbery with a dangerous weapon under N.C. Gen. Stat. § 14-87, first-degree burglary under N.C. Gen. Stat. § 14-51, and first-degree kidnapping under N.C. Gen. Stat. § 14-39.
At trial, witnesses, Shannon Nicole Baxter, Bryant Jones, and Antoine Bennett, consistently testified that on 18 December 2007, at around 10:00 p.m., they were watching television with Collins, Collins' son, and Collins' sister, when three armed men broke into Collins' home. Collins attempted to flee out a window, but was pulled back in by one of the intruders. The three men told everyone to get down on the ground and that "they wanted everything [Collins] got." Collins was then taken into another room where two of the intruders proceeded to ask him where all the money and drugs were and began to beat him. Ms. Baxter could hear the intruders yelling at Collins in the other room. She heard one of the intruders say "he would take the car and he would leave and go back to New York" and she noticed that he spoke with an accent. The intruders then brought Collins back into the room with the others.
According to the witnesses' testimony, Collins pleaded with the intruders not to kill anyone, but one of the intruders proceeded to shoot him in the back of the head. Conflicting testimony exists among the other intruders, Christopher Little ("Little") and Reco Baskins ("Baskins"), as to how Collins was shot, but Baskins admitted accidentally shooting Collins. Emanuel Sellers, the driver for the robbery, claimed he did not realize that defendant and the other intruders were planning to rob Collins until they were almost to Collins' house.
Sellers testified that he was driving a white rental truck because of an accident involving his car. The State presented evidence from a neighbor's surveillance camera (date and time stamped), showing a white pickup truck pulling up to the victim's house, dropping three people off, and driving off about ten minutes later at 10:34 p.m. The video showed the same truck returning at approximately 11:06 p.m., people getting back into the vehicle, and again leaving at around 11:14 p.m.
Sellers gave defendant, Little, and Baskins a ride to Collins' house. They made a stop at a house on Worth Street on the way. Defendant got out and went into the house for a few minutes. When defendant returned to the car he passed two guns to Baskins and Little in the backseat. Then Sellers drove the three men to Collins' house where they got out. Sellers left Collins' house for a period of time, because he became frightened after a car pulled up. While he was gone, he ran a red light and received a traffic citation from Officers Keith Pruitt and Karen Hawks. Officer Hawks noticed Sellers had a New York accent. Sellers returned to Collins' house soon after receiving the citation. Defendant got in the passenger seat while Little and Baskins got in the back. Little and Baskins were arguing and Sellers managed to hear that Collins had been killed. Defendant claimed he did not have any involvement in the robbery or murder.
B. Motions for Mistrial
Defendant was arrested at the home of his girlfriend, Nakisha Cobb. During the search of Ms. Cobb's house, the police seized two guns. Prior to trial, defendant filed a motion in limine asking the trial court to prohibit the State from introducing any evidence regarding the two guns. The prosecutor agreed that the guns were not used in the murder, and the trial court prohibited the State from making any mention of the guns until the State could link the guns to the case. The jury was aware from testimony that the murder weapon had not been found. Should the guns become linked to the case, the State was to alert the court to the situation beforehand so the court could have a Rule 404(b) hearing outside the presence of the jury.
During Ms. Cobb's testimony, the State began asking her what the police found in her house and whether defendant was upstairs. Defense counsel objected, the trial court overruled, and Ms. Cobb said she indicated to the police that defendant was upstairs. The State proceeded to ask what the police found upstairs and defendant objected. The trial court again overruled and Ms. Cobb stated "they found two handguns." The defense objected to the statement and the trial court sustained, ordering the jury to disregard the comment. Subsequently, outside the presence of the jury, the defense asked the court to declare a mistrial, which the trial court denied.
On cross-examination of defendant by the State, the prosecutor attempted to ask a series of questions regarding defendant's association with gangs. After a few basic questions, the defense counsel requested a bench conference regarding the issue because the defense believed that the State did not have a good faith basis for the questioning. The court told defense counsel that it needed to object. Following the bench conference, the State asked whether defendant wrote a letter in which he identified himself as a Blood general. Defense counsel objected and the trial court sustained, ordering the jury to disregard the question. The State asked defendant whether defense witness, Jerry Moore ("Moore"), was a member of the Blood gang, to which defense counsel again objected. The trial court sustained and told the jury to disregard the question. At the end of the State's cross-examination of defendant, defense counsel renewed the motion for mistrial, outside the presence of the jury, based on the testimony regarding guns and gangs and the State's lack of a good faith basis in the line of questioning.
The State explained to the court that the jail gang unit had a file on defendant and that Moore had been validated as a gang member. The court sustained the objection to the gang-related testimony, ruling that gang membership alone is not admissible and at the same time denied the motion for mistrial. The court also noted that defense counsel raised the gang issue by asking Little and Baskins if they were gang members. The trial court reinstated its ruling that the gang-related testimony was not admissible, but that the State had a good faith basis in asking the questions.
After defendant's arrest in December 2007 he made a pre-trial statement. In a part of the statement, defendant referred to a prior marijuana charge that did not result in conviction. The State attempted to offer defendant's pretrial statement and testimony, to which defendant objected. The trial court overruled the objection, but excluded the portion of the statement relating to the prior dismissed drug charge. The State attempted to comply by fast-forwarding through that segment of the tape of defendant's statement. The State failed to stop the tape "in time where the defendant said on the video he had no other charges except the weed charges." Defense counsel made a motion for mistrial and the court denied it.
C. Closing Arguments
During closing arguments defense counsel told the jury that it "put on defense evidence because it was there and it was relevant and will help you decide this case." The State, during its closing argument, told the jury that "the one thing [defense counsel] didn't say to you is that [the evidence] was the truth. He never told you that what they put on was the truth. And the reason that he didn't use that word was because it's not the truth." The defense did not object to the comments, and the trial court did not intervene.
The State went on to argue that defendant "had over a year and a half to think of that story and that's the story that he came up with." Defendant argued that Sellers implicated defendant in the crime to get defendant back for stealing some cocaine. Defendant claimed Sellers wrote him an apology letter admitting to falsely implicating defendant for revenge. Defendant also had two of Sellers' former cell mates testify to the writing of the letter and the revenge story. The State told the jury that defendant wanted the jury to believe that he only knew Sellers from the story that he was "cooking crack cocaine for him. That's not what he told the officers." Finally, the State told the jury that the only way defendant was not guilty was if it believed defendant's story. Defense counsel did not object and the trial court did not intervene.
In connection to the State's argument that defendant had a year and a half to concoct a story, the State also argued that the year and a half time period gave defendant an opportunity to get somebody to corroborate his story. The State argued that Sellers did not write the letter because the signature was not his and defendant had a year and a half to get Sellers' former cell mates to validate his story. Defense counsel did not object and the trial court did not intervene.
Finally, during the State's closing arguments, the State argued that defendant was deceitful in some of his statements. In regard to defendant's whereabouts during the crime, defendant stated in his pretrial statement that he was in Virginia for one son's birthday party. He then corrected himself by clarifying that he went to Virginia on December 15 and returned to North Carolina on December 17, the day before the robbery. In another instance, the State attempted to point out some possible discrepancies in defendant's stating of his son's name. Defendant and Ms. Cobb testified that their son's name was Jashawn. Defendant then testified that he had two sons that lived in Virginia, and that their names were "Quanmain" and "Jaquaid" (phonetic spelling). The State argued that defendant and Ms. Cobb testified that their son's name was "Jaquay" and that in defendant's statement to the detective he also used the name "Jaquay." The State admitted that it could be wrong in its remembrance of defendant's testimony, but that it raised these discrepancies in its closing argument "to show how deceitful [defendant] was throughout." Defense counsel did not raise any formal objections or arguments with regard to the State's argument about defendant's deceitfulness.
Defendant moved for mistrial on at least three occasions throughout the trial and the trial court denied them all. On 28 August 2009, the jury found defendant guilty of all charges. The trial court sentenced defendant to life imprisonment without parole for first-degree murder under the felony murder rule. The trial court then sentenced defendant to imprisonment for 100-129 months for first-degree kidnapping to run concurrent with the life sentence. The court entered an order arresting judgment with respect to the robbery with a firearm and first-degree burglary convictions. Defendant appeals.
II. Analysis
A. Denial of Motion for Mistrial
Defendant argues that the trial court erred by failing to grant defendant's motions for mistrial based on three objectionable references by the State. Defendant contends that it was substantially and irreparably prejudiced by certain testimony raised by the State. The testimony in question involves: (1) a witness mentioning that guns were found at the time of defendant's arrest, (2) defendant being asked on cross-examination gang-related questions, and (3) a portion of defendant's pretrial statement mentioning prior marijuana charges being played to the jury.
"A ruling on a motion for a mistrial is `addressed to the sound discretion of the trial judge, and his ruling on the motion will not be disturbed on appeal absent a gross abuse of that discretion.'" State v. Malone, 65 N.C. App. 782, 785, 310 S.E.2d 385, 387 (1984) (quoting State v. Allen, 50 N.C. App. 173, 176, 272 S.E.2d 785, 787 (1980), appeal dismissed, 302 N.C. 399, 279 S.E.2d 353 (1981)). The first line of questioning objected to by defendant occurred during the cross-examination of Ms. Cobb in which the prosecutor questioned her regarding the police search of her home. Ms. Cobb testified:
Q. And that's when you pointed and said that the defendant was upstairs, correct?
A. Yes, sir.
MR. GOODMAN: Object.
THE COURT: Overruled.
Q. And when they went upstairs what did they find when they went upstairs?
MR. GOODMAN: Object.
THE COURT: Overruled.
A. Excuse me. They said they found two handguns.
Q. They found two handguns that was —
MR. GOODMAN: Object.
THE COURT: Well, sustained. Members of the jury, disregard the last comment.
"`When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.'" State v. Leyva, 181 N.C. App. 491, 497, 640 S.E.2d 394, 397-98 (2007), (quoting State v. Rowsey, 343 N.C. 603, 627, 472 S.E.2d 903, 916 (1996), cert. denied, 519 U.S. 1151, 137 L. Ed. 2d 221, 117 S. Ct. 1087 (1997) (citation omitted)). "`Whether instructions can cure the prejudicial effect of such statements must depend in large measure upon the nature of the evidence and the particular circumstances of the individual case.'" Id. at 497, 640 S.E.2d at 398 (citation omitted). In this case, the jury already knew from a prior witness that the murder weapon was not found, and therefore the prejudicial effect of the mentioning of the guns was minimal.
The second line of questioning defendant argues warranted a mistrial occurred during defendant's cross-examination when the State asked gang-related questions. Defendant argues that evidence of gang membership, standing alone, is not relevant, and therefore any probative value is substantially outweighed by the danger of unfair prejudice. The first few times the State raised the issue defense counsel did not object. Defense counsel eventually asked to approach the bench and objected. The trial court sustained and again asked the jury to disregard each comment.
In regard to the admission of incompetent evidence:
A defendant must show that, but for the error, a different result would likely have been reached. State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985). Where there exists "overwhelming evidence of defendant's guilt[,]" defendant cannot make such a showing; this Court has so held in cases where the trial court improperly admitted evidence relating to defendant's membership in a gang. See, e.g., Freeman, 313 N.C. at 548, 330 S.E.2d at 473 (holding that evidence of the defendant's gang membership was properly admitted to explain his presence at the murder scene, but evidence that the gang was a "`motorcycle gang'" was erroneously admitted because it was "irrelevant to the issue of defendant's guilt"; however, because of the "overwhelming evidence of defendant's guilt[,]" this error could not have influenced the outcome of the trial)[.]
State v. Gayton, 185 N.C. App. 122, 125-26, 648 S.E.2d 275, 278 (2007) (quoting State v. Hightower, 168 N.C. App. 661, 667, 609 S.E.2d 235, 239 (2005)).
In this case, the State presented gang-related information to attack Mr. Moore's credibility and propose the idea that the defendant could have planned the robbery with Mr. Baskins. "Where the trial court has instructed the jury not to consider improper testimony, and where as in the instant case there is ample competent evidence from which the jury could find defendant guilty, a mistrial is not warranted." State v. Carnes, 18 N.C. App. 19, 22, 195 S.E.2d 588, 591 (1973). At trial the State presented overwhelming and undisputed evidence of defendant's guilt, and therefore the minor mention of gang association did not substantially prejudice defendant to warrant a mistrial.
Finally, defendant alleges the trial court erred by not granting a mistrial after the State accidentally played a segment of defendant's pretrial statement regarding a prior marijuana charge. The trial court instructed the State not to play the portion of defendant's pretrial statement relating to prior marijuana charges. The State attempted to comply, but had an error in the operation of the tape player and the statement was played for the jury. The statement did not indicate what type of marijuana charge it was or whether defendant had been convicted. Following the playing of the statement, defense counsel asked to approach the bench and made a motion for mistrial. The trial court denied defendant's motion for mistrial. Defense counsel admits that the error was minor in comparison to defendant's other drug convictions and activities.
In State v. Hogan, 321 N.C. 719, 722, 365 S.E.2d 289, 290 (1988), a police officer briefly testified about a defendant's prior charges to which the defense objected. The trial court in Hogan sustained the objection and ordered the jury to disregard the incompetent evidence. Id. As in the case at hand, the nature of the charge and whether there was a conviction were not indicated. Id. The North Carolina Supreme Court in Hogan determined that the officer's statements were improper under N.C. Gen. Stat. § 8C-1, Rule 404(b), but that the statements could not have resulted in "`substantial and irreparable prejudice to the defendant's case.'" Hogan, 321 N.C. at 723, 365 S.E.2d at 291 (quoting N.C. Gen. Stat. § 15A-1061 (1983)). Following Hogan's reasoning in the case at hand, the State's playing of defendant's pretrial statement without mentioning the extent of the prior charges or whether defendant was convicted did not amount to substantial and irreparable prejudice, and therefore we find no abuse of discretion in the trial court's denial of defendant's motion for mistrial.
B. Intervention Ex Mero Motu During Closing Arguments
Defendant also alleges that the trial court committed reversible error by failing to intervene ex mero motu during the State's closing argument where the State argued: (1) defense counsel did not say that defendant's evidence was the truth, because it was not the truth; (2) defendant came up with his story over the period of a year and a half, (3) defendant had a year and a half to get somebody to come in and tell the story; and (4) defendant was deceitful throughout.
"`The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.'" State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338 (citations omitted), cert. denied, 549 U.S. 960, 127 S.Ct. 396, 166 L.Ed.2d 281 (2006). "Under this standard, `[o]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.'" Anthony, 354 N.C. at 427, 555 S.E.2d at 592 (citation omitted). "To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998) (citation omitted), cert. denied, 526 U.S. 1161, 119 S.Ct. 2053, 144 L.Ed.2d 219 (1999).
State v. Waring, ___ N.C. ___, ___, 701 S.E.2d 615, 650 (2010).
In its closing argument, the State argued that certain aspects of defendant's testimony were untruthful and deceitful as a way to attack defendant's credibility. "[A] prosecutor may properly argue to the jury that it should not believe a witness." State v. Scott, 343 N.C. 313, 344, 471 S.E.2d 605, 623 (1996). When read in context, the State was merely arguing that the jury should consider defendant's credibility because there may have been conflicting testimony and defendant had a period of time to manufacture a story. These were reasonable inferences for the jury to make and "`[c]ounsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom.'" Waring, ___ N.C. at ___, 701 S.E.2d at 651 (quoting State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986)).
While the prosecutor's argument that defense counsel did not say defendant's evidence was the truth, because it was not the truth, is a closer question, this argument also appears to be an attempt to convince the jury to not believe defendant. Even though the argument implies that defendant's counsel knew defendant's evidence was false, we do not believe this argument rises to the level of reversible error. Therefore, the State's closing arguments were not so grossly improper for the trial court to intervene ex mero motu.
III. Conclusion
We affirm the trial court's decision to deny defendant's motions for mistrial and not intervene ex mero motu and find that there was no error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).