Opinion
No. COA10-1107
Filed 5 July 2011 This case not for publication
Appeal by Defendant from judgment entered 12 March 2010 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 24 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for Defendant-appellant.
Wake County Nos. 08 CRS 74387-93.
Landis Trevon Durham (`Defendant') appeals his convictions for second degree kidnapping, robbery with a dangerous weapon, felonious possession of stolen property, and possession of a firearm by a convicted felon. Defendant argues the trial court erred in overruling two separate evidentiary objections made by Defendant at trial. In addition, Defendant contends the trial court erred in failing to grant his motion to dismiss the kidnapping charges for insufficient evidence. For the reasons set forth below, we find no reversible error in either of the trial court's evidentiary rulings. However, we do find error in the trial court's failure to grant Defendant's motion to dismiss, and therefore order the four kidnapping convictions reversed.
I. Factual and Procedural History
On an October evening in 2008, the employees of the Cameron Village Moe's Southwest Grill in Raleigh were closing up for the night. At around 9:20 p.m., Gerald Jones, Defendant, and Defendant's brother Leroy Durham (`Leroy') entered the restaurant with their faces covered. Jones approached the manager, Chris Carpenter, who was checking the cash registers, and produced a revolver. Jones held the gun up to Carpenter's head, threatened to shoot him, and demanded money. Carpenter indicated the money had been locked in a safe and was led at gunpoint to the rear of the restaurant where the safe was located.
The other three employees working that night, Clay Fussell, Terrance Heyboer, and Omar Castillo were assembled at gunpoint in the back area. The assailants threatened the employees and forced them to lay on the floor facedown with their hands behind their head. Defendant and Leroy then guarded Fussell, Heyboer, and Castillo, while Carpenter opened the safe and gave Jones the money, which Jones deposited into a transparent bag. Carpenter was then forced to join his coworkers on the floor while the assailants fled.
After the robbers exited, Carpenter called emergency services. Within hours of the police beginning their investigation, they identified and took Jones and Leroy into custody. Defendant was subsequently identified as a suspect and arrested.
At Defendant's trial, Jones testified Defendant was present during the robbery. Near the conclusion of his direct examination, the following exchange occurred between the prosecution and Jones:
Q: Are you telling the truth today about the defendant being involved in the robbery?
[DEFENSE COUNSEL]: Objection. Vouching and bolstering.
THE COURT: Overruled. You may answer the question.
[JONES]: Can you repeat that?
Q: Are you telling the truth today, sir —
A: Yes.
Q: — about the defendant's involvement?
[DEFENSE COUNSEL]: Objection. THE COURT: Overruled.
[JONES]: Yes.
In addition to Jones' testimony identifying Defendant as a participant in the robbery, the State called Detective Mike Dimilia of the Raleigh Police Department to testify about his role in the investigation. As part of that testimony, Detective Dimilia recounted the nature of an interview he conducted with Defendant's brother:
Q: So as a detective has testified, you knew that there were three suspects; correct?
A: Yes, ma'am.
Q: After talking to Leroy Durham had you developed anymore suspects?
A: We developed one additional by a nickname of Sneak.
[DEFENSE COUNSEL]: Objection. Move to strike. Ask to instruct the jury to disregard.
THE COURT: Overruled.
[DEFENSE COUNSEL]: I'd like to note my exception for the record.
THE COURT: All right. An exception is noted for the record.
Q: So now you have two suspects at this point?
A: Two at the station and then we developed a third with the nickname; correct.
Q: Yes. That's what I was asking. So you developed a third one after talking to Leroy Durham?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained as to that question. Disregard that answer.
Defendant was identified as `Sneak' at various points during trial.
On 12 March 2010, the jury returned a guilty verdict on all counts. Defendant was sentenced to consecutive prison terms of 23 to 37 months for two of the kidnapping convictions, 29 to 44 months for the other two kidnapping convictions, 15 to 18 months for the firearm and stolen property convictions, and 77 to 102 months for the robbery convictions. Defendant gave timely notice of appeal.
II. Jurisdiction
We have jurisdiction over Defendant's appeal of right. See N.C. Gen. Stat. § 15A-1444(a) (2009) (`A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.'); N.C. Gen. Stat. § 7A-27(b) (2009) (stating appeal shall be to this Court).
III. Analysis
Defendant raises three issues on appeal, which we address in turn.
A. Improper Bolstering
Defendant first argues the trial court erred in overruling his objection to the exchange between the prosecution and Jones in which Jones was asked if he was `telling the truth.' Defendant asserts that this question and its answer constituted improper bolstering of Jones' credibility, and that the trial court erred in overruling his objection. We agree, but find this error to be harmless.
`[C]ontrol of examination of witnesses is a matter of discretion vested in the trial court. . . .' State v. McNeil, 47 N.C. App. 30, 36, 266 S.E.2d 824, 827-28 (1980). `Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion.' State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986).
Defendant is correct in noting that, as a general rule, it is impermissible to ask a witness a question designed to elicit an affirmation of their credibility. See State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d 778, 784 (2005) (`The question of whether a witness is telling the truth is a question of credibility and is a matter for the jury alone.') The exception to this general principle arises in situations in which a witness's credibility has been attacked on cross-examination by an opposing party. State v. Chapman, 359 N.C. 328, 364, 611 S.E.2d 794, 821 (2005). The State argues that this prohibition is limited only to cases in which a defendant has elicited the objectionable testimony. However, these limitations apply equally to both the State and a criminal defendant. Compare State v. Skipper, 337 N.C. 1, 39, 446 S.E.2d 252, 273 (1994) (prohibiting defense counsel from asking if a witness was telling the truth), superseded by statute on other grounds, N.C. Gen. Stat. § 15A-2002 (2009), with State v. Streater, 197 N.C. App. 632, 646, 678 S.E.2d 367, 376 (2009) (applying these same principles to the State's case in chief).
Here, Jones was asked if he was telling the truth during his direct examination, as part of the State's case. Defendant had not yet been afforded the opportunity to attack Jones' credibility on cross examination. The State's contention that they are entitled to bolster the witness' credibility under Chapman in advance of an anticipated attack on that witness is not supported by a fair reading of that case. Even if there is a situation in which preemptive bolstering is permissible, which we do not address here, this is not it. Accordingly, we conclude the trial court erred in admitting Jones' testimony that he was `telling the truth' in the absence of any prior attack on his credibility by Defendant during cross examination.
However, `[e]ven if [a] party can show that the trial court erred in [an evidentiary] ruling, relief ordinarily will not be granted absent a showing of prejudice.' State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988) (citing N.C. Gen. Stat. § 15A-1443(a) (1983)). A defendant bears the burden of demonstrating prejudice. Id.
We are not persuaded Defendant was prejudiced by this error. On one hand, it does not appear as though any formal agreement was in place between Jones and the State affording him sentencing consideration in exchange for his helpful testimony. However, Jones had not yet been sentenced at the time of Defendant's trial. Furthermore, Jones did indicate on cross examination that he might have some incentive to testify:
Q: Now, did the State promise that you would — or did they indicate to you that you would get a reduction in your sentence for testifying in this case?
A: No.
Q: You don't have any expectation of any reduction in your sentence for testifying in this case?
A: I mean it wasn't indicated but I was told that if I would testify it would help. (emphasis added)
The testimony in question here was also preceded by an exposition of Jones' prior criminal history, followed by a discussion of his plea arrangement with prosecutors.
Defendant was given ample opportunity on cross examination to call into question Jones' motives, and as illustrated above, he did so. Furthermore, it would seem unlikely that a jury would give much weight to an affirmation of truthfulness made by a convicted felon, especially when they know he has pleaded guilty in connection with the crimes at issue in the trial in which he is testifying. The insinuation that Jones could receive some benefit in the future, coupled with the absence of any other explanation for why he would testify, are more than sufficient counterweights to whatever harm his bare (and frankly redundant) assertion of truthfulness may have caused. Defendant has failed to carry his burden of demonstrating prejudice. As a result, we find any error here to be harmless.
B. Hearsay
Defendant next argues that the testimony of Detective Dimilia contained inadmissible hearsay, and thus the trial court erred by not granting his motion to strike the testimony and provide the jury with a curative instruction. We disagree.
We review a trial court's ruling on the admissibility of hearsay de novo. See, e.g., State v. Wilson, 197 N.C. App. 154, 159, 676 S.E.2d 512, 515 (2009); State v. Hazelwood, 187 N.C. App. 94, 98-99, 652 S.E.2d 63, 66 (2007). Under de novo review, this Court considers the matter anew and freely substitutes its own judgment for that of the trial court. State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008).
The North Carolina Rules of Evidence prohibit the introduction of hearsay absent the presence of an applicable exception. N.C. R. Evid. 802. Hearsay is defined as `a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' N.C. R. Evid. 801(c).
Defendant does not argue the question posed to Detective Dimilia (`After talking to Leroy Durham had you developed any more suspects?') was unobjectionable. Rather, Defendant takes exception with the substance of Detective Dimilia's response. Defendant argues Detective Dimilia's answer (`We developed one additional suspect by a nickname of Sneak') implicitly includes the substance of a statement made by Leroy during his interrogation. In essence, Defendant takes the position that Detective Dimilia's response, in context, is the functional equivalent of him explicitly stating, `Leroy said that Sneak was involved.' Such a statement could be considered hearsay, as it would seem to contain a statement (`Sneak was involved'), made by a declarant (Leroy), outside of Defendant's trial (during the police investigation), arguably offered to prove the truth of the matter asserted (that Sneak was, in fact, involved).
However, drawing that conclusion requires some degree of inference. The reading of Detective Dimilia's statement put forth by Defendant ignores several possible interpretations of his testimony that do not necessarily entail the presence of a latent hearsay statement from Leroy. For example, Defendant's position does not entertain the possibility that the police may have determined `Sneak was involved' after talking with Leroy for reasons other than an explicit statement from Leroy to that effect. The `statement' under this interpretation would simply be Detective Dimilia's testimony that an individual nicknamed `Sneak' was developed as a suspect after questioning Leroy. This reading would not give rise to an out of court statement, and would thus contain no hearsay.
Furthermore, even assuming arguendo that a `statement' from Leroy was implicit in Detective Dimilia's testimony, it is not clear that this statement was being used exclusively to prove the truth of the matter asserted (i.e., Sneak was, in fact, involved). As our Supreme Court has noted, `[i]f a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.' Chapman, 359 N.C. at 354, 611 S.E.2d at 815 (citation omitted) (internal quotation marks omitted). In particular, our Supreme Court has held that `statements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence.' State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501 (1999) (citing State v. Morston, 336 N.C. 381, 399, 445 S.E.2d 1, 11 (1994)); State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) ("`[S]tatements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.'" (quoting State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979))).
It is unclear from the record the purpose for which the disputed testimony was being offered. That being said, Detective Dimilia's testimony does have value in explaining why police subsequently investigated Defendant in connection with the robbery. The `matter asserted' in that case is merely that police investigated Defendant after interrogating his brother.
Defendant contends the record shows the State was deliberately offering the testimony for illegitimate purposes. He points to the testimony that follows Detective Dimilia's disputed response as evidence of the State's intentions. Defendant argues that by reiterating police had developed `Sneak' as a suspect `after talking to Leroy Durham,' the State was attempting to draw attention to the existence of Leroy's `statement' that `Sneak was involved.' This is an exercise in speculation.
In any event, even if the State did try to reiterate the question for the purposes of drawing attention to a `hidden' statement from Leroy, their attempt was met with a sustained objection, and the answer to the reiterated question was stricken from the record. Thus, Defendant's argument that this line of questioning let some proverbial `cat out of the bag' is ill-founded.
We note the trial court would have likely been in the best position to ascertain the purposes for which any of the disputed testimony would have been offered. The significance of the trial court's decision to sustain the second objection — but not the first — is not lost on this Court.
Evaluating the court's ruling de novo, we reject the notion that Detective Dimilia's statements contained any portion of an inadmissible hearsay statement from Leroy. We find no error.
We do not address Defendant's claim that his constitutional right to confront adverse witnesses was violated by the introduction of the challenged testimony. Defendant did not object at trial on constitutional grounds, and does not urge this Court to undertake a plain error analysis. Therefore, this argument is not properly before us. See State v. Harris, 189 N.C. App. 49, 54, 657 S.E.2d 701, 705-06 (2008) (concluding defendant had not preserved constitutional issue by virtue of an evidentiary objection alone; and refusing to undertake a plain error analysis in the absence of defendant's explicit request).
C. Denial of Motion to Dismiss
Defendant next argues the trial court erred in denying his motion to dismiss the four second-degree kidnapping charges for reason of insufficient evidence. We agree.
A trial court's denial of a motion to dismiss will be reviewed by this Court de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). A motion to dismiss for insufficient evidence should only be denied if `[t]here is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.' State v. Scott, 356 N.C. 591, 595, 53 S.E.2d 866, 868 (2002). 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). Furthermore, `[t]he trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.' State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Additionally, when ruling on a motion to dismiss, the evidence must be viewed in the light most favor able to the State. State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002).
Defendant was convicted of second degree kidnapping under section 14-39, which provides in relevant part:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of. . . . . .
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.
N.C. Gen. Stat. § 14-39 (2009).
Our Supreme Court recognized at least as early as 1978 that the `restraint or removal' element of a kidnapping offense may potentially raise issues of double jeopardy. See State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338, 351-52 (1978). Acknowledging that some felonies inherently necessitate restraint of a victim, the Court held that `a restraint separate and apart from that which is inherent in the commission of [that felony]' is required to support an additional charge of kidnapping. Id. at 523, 243 S.E.2d at 351. `To hold otherwise would violate the constitutional prohibition against double jeopardy.' Id. Thus, when a situation such as this arises, the critical inquiry becomes determining what level of restraint was inherent in the underlying crime in question.
As our Supreme Court noted in State v. Ripley:
[A] trial court, in determining whether a defendant's asportation of a victim during the commission of a separate felony offense constitutes kidnapping, must consider whether the asportation was an inherent part of the separate felony offense, that is, whether the movement was a mere technical asportation. If the asportation is a separate act independent of the originally committed criminal act, a trial court must consider additional factors such as whether the asportation facilitated the defendant's ability to commit a felony offense, or whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense.
360 N.C. 333, 340, 626 S.E.2d 289, 293-94 (2006) (internal quotation marks omitted).
Specifically dealing with armed robbery, our Supreme Court has reiterated that `[t]he key question . . . is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed [the victim] to greater danger than that inherent in the armed robbery itself.' State v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (citation omitted) (internal quotation marks omitted). The presence of `additional restraint of the victim or increase[d] . . . helplessness and vulnerability [of the victim]' may also be considered. State v. Simpson, 187 N.C. App. 424, 432, 653 S.E.2d 249, 254 (2007) (citation omitted).
Here, the testimony of Jones, Carpenter, and Fussell were the only firsthand accounts given at Defendant's trial of the robbery. All three of those accounts essentially recite the same factual circumstances. Jones entered first and led Carpenter from the register area to the back of the restaurant in order to retrieve the money. At the same time, Fussell and Castillo were in the back of the restaurant, near the dishwashing area. They were forced to lie face down in that area with their hands on their head. Heyboer was removed from the line area where he was cleaning and made to join his co-workers on the floor, a short distance away. Carpenter was then forced to lie down in that same area and position as the robbers fled.
The State argues that these movements and restraints — coupled with threats made by the assailants, including admonitions that they were `Blood' gang members, `not joking around,' and that they would shoot if they weren't given the money — exceeded the degree of restraint necessary to commit the armed robbery, and were therefore sufficient to support the additional kidnapping charges. We disagree.
In State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998), our Supreme Court was faced with similar factual circumstances. The Court provided examples of those restraints and confinements that are inherent in armed robbery, and those that are not. The defendants in Beatty, like the assailants here, approached one employee and led him to an area where money was kept. Id. at 557, 495 S.E.2d at 368. The defendants in Beatty also encountered that individual's co-workers. One employee `was on his knees washing the floor at the front,' while the second `stood three to four feet from the safe cleaning the floor in the back.' Id. at 557, 495 S.E.2d at 368-69. The employee washing the floor had a gun pointed at him for the duration of the robbery, while the other employee was bound at the wrists, and kicked in the back several times. Id. at 557, 495 S.E.2d at 369. The Court upheld the kidnapping conviction with respect to the employee who was bound and kicked. Id. at 559, 495 S.E.2d at 370 (`When defendant bound this victim's wrists and kicked him in the back, he increased the victim's helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob the restaurant.'). Id. The Court did not, however, affirm the conviction based on the restraint of the other employee, noting that `threatening [the] victim . . . with a gun was an inherent, inevitable feature of the robbery and is insufficient to support a conviction for kidnapping.' Id. at 560, 495 S.E.2d at 370.
In addition to being held at gunpoint, the employees in this case were also forced to lie down on the ground, and in the case of Heyboer and Carpenter, made to move a short distance from where they were found. After careful review, we conclude existing precedent counsels in favor of finding these actions to be `mere technical asportations' of the sort contemplated in Ripley and its progeny.
In Ripley, our Supreme Court held that the asportation of victims a short distance from the entryway of a motel into the lobby during a robbery was insufficient to justify a separate conviction of kidnapping. Ripley, 360 N.C. at 340, 626 S.E.2d at 294. In addition, this Court held in State v. Taylor that `under Ripley . . . the act of requiring the victims to lie down is a mere technical asportation insufficient to sustain a charge of kidnapping separate from the robbery.' 191 N.C. App. 561, 566, 664 S.E.2d 375, 378 (2008).
Here, Heyboer was moved only a short distance from where he was found, in an effort on the part of the assailants to keep watch over all the employees simultaneously. Neither Castillo nor Fussell was moved at all from where they were found. Carpenter was moved only insofar as was necessary to retrieve the money from the safe, at which point he was made to join his co-workers on the floor as the perpetrators fled. None of these restraints and removals rises to a level that can be considered over and above what was necessary to effectively execute the armed robbery. Nor did the actions of Defendant and his cohorts expose the employees to any greater danger than was already inherent in the armed robbery. In fact, keeping the several victims in a centralized locale arguably decreases the level of danger that could otherwise be present.
The State also points to an alternative justification for upholding Defendant's conviction, namely the section of our kidnapping statute discussing restraint for the purpose of `terrorizing.' See N.C. Gen. Stat. § 14-39(a)(3). The State argues the kidnapping charges should stand on this basis, regardless of whether the actions of Defendant were inherent in the underlying robbery. We disagree.
In determining whether sufficient evidence was introduced to support the jury's determination that a defendant acted with the purpose of terrorizing, `the test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize. . . .' State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986). As previously noted, the record indicates the assailants threatened to shoot the employees if they did not cooperate. They also made clear that they were serious, and indicated they were the sort of individuals who were capable of carrying through on those threats. No doubt Castillo, Fussell, Heyboer, and Carpenter felt fear, and probably even abject terror, that night. However, the question is one of Defendant's intent. More specifically, the inquiry is whether the evidence presented at trial was sufficient such that `a reasonable mind might accept as adequate to support [the] conclusion' that Defendant intended to `terrorize' the victims. Smith, 300 N.C. at 78, 265 S.E.2d at 169.
Defendant here did not assault the victims (other than holding them at gunpoint, an action inherent in armed robbery), restrain them through any other additional means, or move them any significant distance. Defendant left the restaurant immediately after securing the money. It cannot be said that the evidence at trial was sufficient to lead a reasonable mind to determine the subjective intent of Defendant was to terrorize or intimidate the victims that night in excess of what was required to effectuate their acquiescence to the robbery.
The actions taken by the Defendant and his cohorts, although reprehensible in their own right, were inherently facilitative in the execution of the armed robbery. Viewing the evidence presented at trial in the light most favorable to the State, we conclude the State failed to produce substantial evidence that Defendant imposed restraint upon the victims in excess of what was necessary to commit the armed robbery. Accordingly, the trial court erred in denying Defendant's motion to dismiss and we reverse Defendant's convictions for second-degree kidnapping.
IV. Conclusion
We find harmless error with respect to the trial court's ruling on the propriety of Jones' testimony that he was telling the truth. We find no error in the trial court's determination of admissibility regarding the challenged testimony of Officer Dimilia. The denial of Defendant's motion to dismiss, as it pertains to the kidnapping charges, is reversed, and the sentences imposed for kidnapping are vacated.
No error in part; reversed in part.
Judges STROUD and THIGPEN concur.
Report per Rule 30(e).