Opinion
No. COA08-1273.
Filed May 5, 2009.
Craven County No. 05 CRS 4976
Appeal by defendant from judgment entered 30 April 2008 by Judge W. Allen Cobb in Craven County Superior Court. Heard in the Court of Appeals 27 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General J. Joy Strickland, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
Kareem Ramel Elliott ("defendant") appeals his conviction of possession of a firearm by a felon. For the following reasons, we hold no error.
On the night of 11 August 2005, Brian Jones ("Jones"), a delivery person for Dominos's Pizza, received a pizza order for an apartment on Bell Town Road. Jones pulled into the driveway and noticed that the apartment was dark. Jones exited his car, approached the door, and knocked twice. No one answered. As he turned to go back to his car, two African-American males ran up to him from different directions telling him to "give it up." Jones knew the men meant they were robbing him so he took money from his pocket and threw it on the ground. Jones drove back to Domino's Pizza and told the manager he had been robbed. The two men left the area with the money and Jones's cell phone.
Havelock Police Lieutenant Brian Woods ("Lieutenant Woods"), who was assigned to the robbery case, went to the Bell Town Road apartment to canvass the area. He also called the telephone number on the Domino's Pizza slip for the Bell Town Road apartment order and spoke to Cindy Fountain ("Fountain"), the female who answered the phone. Fountain informed him that Nakia Suggs ("Suggs") had used her cell phone. During an interview by Lieutenant Woods, Suggs admitted he and defendant robbed the pizza driver. Thereafter, Lieutenant Woods interviewed defendant who denied involvement with the robbery. Lieutenant Woods also interviewed Ava Johnson ("Johnson") who gave him a statement regarding the night of the robbery and the following day. Defendant subsequently was arrested and charged with robbery with a dangerous weapon and possession of a firearm by a convicted felon.
At trial, Suggs testified that a few days before the robbery, he saw defendant obtain either an automatic black nine-millimeter or a .45 handgun with no clip. Suggs further testified that when the pizza driver went to the door of the apartment, he and the defendant ran toward the driver — with Suggs to the driver's left and defendant to his right; that defendant pointed a gun at the driver; that they both yelled at the driver to "give it up;" that the driver gave them the money and his cell phone. Suggs also testified that after the robbery, he and defendant left the area and drove to Pamlico County with sisters Chelle and Ava Johnson. Johnson testified that at the time of the robbery, she was dating Suggs, and her sister Chelle was dating defendant. She testified that on the night of the robbery, she, her sister, Suggs, and defendant were sitting in her sister's car outside of Fountain's apartment. At one point, Suggs and defendant got out of the car briefly and then they all drove into New Bern and stayed in a hotel room. Johnson testified that she did not know about the robbery until after she was interviewed by Lieutenant Woods. She stated that the day after the robbery she went with defendant and Suggs to Pamlico County where they traded a gun for drugs. Johnson testified that she could not say whether the gun belonged to defendant or Suggs, but that defendant had the gun when they arrived in Pamlico County. After Johnson's testimony, Lieutenant Woods took the stand and testified about the statement Johnson gave to him during his investigation of the robbery.
A jury found defendant guilty of possession of a firearm by a felon, but not guilty of robbery with a dangerous weapon. The trial court sentenced defendant to fourteen to sixteen months imprisonment. Defendant appeals.
Defendant argues that the trial court erred in allowing Lieutenant Woods to testify that in a prior statement, Johnson stated that defendant "had a black in color handgun with no clip and one bullet in the gun." Defendant contends that Johnson's prior statement was contradictory to her in-court testimony, and, therefore, was inadmissible as non-corroborative hearsay. We disagree. In order to preserve an issue for appeal, a defendant "must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. N.C. R. App. P. 10(b)(1) (2007). The record shows that defendant objected generally to the introduction of Johnson's prior statement, asking for, and receiving, a corroborating instruction. However, defendant did not object to the statement as not corroborative of Johnson's trial testimony. Therefore, defendant cannot now raise this issue for the first time on appeal.
Pursuant to Rule 10 of the North Carolina Rules of Appellate Procedure, when a criminal defendant has not preserved an issue for our review, he may make a question "the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C. R. App. P. 10(c)(4) (2007). Defendant has so contended.
Plain error arises when the error is "`so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). In order to prevail, defendant "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C.431, 440, 426 S.E.2d 692, 697 (1993) (citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991)).
It is well-established in North Carolina that, regardless of whether the statement might otherwise be hearsay, "[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness[.]" State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991) (citing State v. Perry, 298 N.C. 502, 259 S.E.2d 496 (1979)). On the other hand, "[p]rior statements by a witness which contradict trial testimony . . . may not be introduced under the auspices of corroborative evidence." State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497, disc. rev. denied, 352 N.C. 360, 544 S.E.2d 554 (2000). "In order to be admissible as corroborative evidence, a witness's prior consistent statements merely must tend to add weight or credibility to the witness's testimony." State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993) (citing State v. Harrison, 328 N.C. 678, 682-83, 403 S.E.2d 301, 304 (1991)). Such corroborative evidence may, therefore, contain new or additional facts so long as it tends to add strength and credibility to the testimony it corroborates. State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003) (citation omitted). If the previous statements are generally consistent with the trial testimony, slight variations affect only credibility and not admissibility. Id. at 89, 588 S.E.2d at 356-57 (citing State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983)).
At trial, Johnson testified as follows: Q. Do you remember before the night that all this happened, August 11, 2005, do you remember seeing the defendant with a gun ever?
A. Yes, I do remember seeing him.
Q. When?
A. It was probably — I don't think it was the — I'm not quite sure. I don't want to contradict myself. I don't remember. But I know he had — he had quite a few really.
. . .
Q. Now you say he had a lot of guns?
A. Yes.
. . .
Q. Did you see Kia with a gun on the day of the robbery?
A. No, ma'am. I didn't see nobody with a gun.
Q. Do you remember when you talked to Detective Woods . . .
A. Hold on.
Q. Sorry?
A. I did just contradict myself. They did have a gun, but I don't know whose gun it was.
Q. Okay, who . . .
A. I know after the robbery we went to Pamlico and we switched the gun off for drugs. But I don't want to put it on nobody, because I don't remember.
Q. All right. When you say the day of the robbery they had a gun, who had a gun?
A. Either Kareem or Kia.
Q. Do you remember . . .
A. I can't remember for sure; that's why I don't want to say.
Q. What were the circumstances, if you remember, that you saw the gun?
A. Because they were arguing about somebody taking it. They said it had been stolen, or somebody had stole the gun. I don't remember exactly how it went.
It's been a long time. That's what I kept trying to tell them.
Q. Was that before or after the robbery?
A. Before the robbery they were talking about somebody stole the gun. And after the robbery I know we switched the gun.
Q. Tell the jury about that. When you say you switched the gun after the robbery, what do you mean?
A. We went to Pamlico the next day, after the robbery, and we traded the gun in for drugs.
. . .
Q. Who had the gun?
A. Well who had it, Kareem had it.
. . .
Q. When was the first time that you saw [the gun] after the robbery?
A. When we was going on our way to Pamlico to trade it.
Q. Who had it then?
A. Kareem had it.
Q. What kind of gun was it; do you know?
A. That's where I'm confused at. Because the gun that I remember had a little white handle on it, and wasn't but like this big — (indicating with hands).
During Lieutenant Woods' examination, the prosecutor asked about Johnson's statement. The following colloquy occurred:
Q. And you've heard Ava Johnson, you heard her testify today didn't you?
A. Uh-huh.
Q. What did she — did she tell you anything about anybody having a gun?
A. She did.
[Defense Counsel]: Objection; corroborating instruction please.
The Court: Ladies and gentlemen — that is what it's being offered for; is that correct?
[Prosecutor]: Yes, Your Honor.
The Court: I gave you an instruction earlier about testimony being for the purpose of corroborating some other testimony that you've already heard. That is what this testimony will be for. The same instruction applies here.
[Prosecutor]: Thank you, Your Honor.
Q. Yes, sir?
A. She did. She said that [defendant] had a black in color handgun with no clip and one bullet in the gun.
Q. Let me just ask you this; I know you've still got the statement there. Are you testifying from your memory, and does that help . .
A. Uh-huh.
. . .
Q. Did she ever go back and correct herself, and say it wasn't [defendant], it wasn't the defendant with that black automatic, no, it was Kia, like she said today?
A. No.
According to defendant, Johnson's statement that defendant possessed "a black in color handgun with no clip and one bullet in the gun," was contradictory to her in-court testimony. Johnson did not testify at trial that defendant did not have a gun on the night of the robbery. She testified, "They did have a gun, but I don't know whose gun it was." In her prior statement, Johnson did not say that defendant did or did not own a gun. "She said that [defendant] had a black in color handgun with no clip and one bullet in the gun."
Assuming, arguendo, that the trial court erred in admitting certain portions of Lieutenant Woods' testimony, defendant cannot show "that absent the error, the jury probably would have reached a different result." See Jordan, 333 N.C. at 440, 426 S.E.2d at 697 (citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991)). Even excluding the contested portions of Johnson's out-of-court statement, the State introduced sufficient evidence to support a finding of defendant's guilt on the charge of possession of a firearm by a felon.
Suggs testified that defendant had a gun the night of the robbery. He also testified that he was to the left of the pizza delivery driver while defendant was to the driver's right. The driver testified that the person to his right had a gun. Johnson testified at trial that the day after the robbery, defendant had a handgun with a white handle and that the gun was traded for drugs. Accordingly, we find no merit to defendant's argument.
No error.
Judges Robert C. HUNTER and STEELMAN concur.
Report per Rule 30(e).