Opinion
NO. COA12-832
01-15-2013
STATE OF NORTH CAROLINA v. RODNEY LAMONT FRALEY, SR.
Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Forsyth County
No. 07 CRS 61262
Appeal by Defendant from judgment entered 12 December 2011 by Judge V. Brad Long in Superior Court, Forsyth County. Heard in the Court of Appeals 11 December 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant.
McGEE, Judge.
Rodney Lamont Fraley, Sr. (Defendant) was convicted of first-degree murder on 12 December 2011. Defendant was sentenced to life imprisonment without parole. Defendant appeals.
I. Factual Background
The evidence produced at trial tended to show that Leon Conrad (Mr. Conrad) was fatally shot during the early morning hours 9 November 2007 in his home in Winston-Salem, North Carolina by Terrell Cornelius (Mr. Cornelius). Mr. Conrad's girlfriend, LaTangela Carr (Ms. Carr), testified that late in the evening of 8 November 2007 or early in the morning of 9 November 2007, she heard a "big boom" and Mr. Conrad, after grabbing a pistol, ran into the hallway. Ms. Carr heard gunshots, went into the hallway, and found Mr. Conrad lying fatally wounded on the floor. Ms. Carr called 911 and police responded. Police investigators discovered evidence suggesting Mr. Conrad was involved in the sale of drugs out of the home.
Defendant later told police officers that he visited Mr. Conrad's house earlier in the day and observed Mr. Conrad handling a large amount of cash. Mr. Conrad stated to Defendant that he intended to go to Greensboro that evening. Later that day, Defendant approached Mr. Cornelius and Daniel Cordray (Mr. Cordray) and told them of a plan he had developed to break into Mr. Conrad's supposedly unoccupied house while Mr. Conrad was in Greensboro. Defendant's plan was for Defendant, Mr. Cornelius, and Mr. Cordray (collectively, the three men) to steal money from Mr. Conrad.
However, Mr. Conrad decided not to go to Greensboro and remained at his house with Ms. Carr. The three men drove past Mr. Conrad's house, saw that Mr. Conrad was still home, and decided to return later in the evening. Later that evening, the three men drove to a location near Mr. Conrad's house (the house) and parked nearby. They walked toward the house, and Mr. Cornelius separated from Defendant and Mr. Cordray to scout for a place to enter the house.
The three men observed that Mr. Conrad was still at home. Defendant told Mr. Cornelius and Mr. Cordray that he could not be the person to actually enter the house, because Mr. Conrad might recognize him. Defendant elected to remain with the vehicle and be the get-away driver. Mr. Cordray testified that he and Defendant had a conversation about "not wanting to go through with it" and Defendant began to walk towards the getaway vehicle. Mr. Cordray went to get Mr. Cornelius but as he was looking for him, he heard Mr. Cornelius force open the door and heard gunshots.
During the break-in, Mr. Cornelius sustained two gunshot wounds. Mr. Cornelius and Mr. Cordray returned to the vehicle and decided that Mr. Cordray would drive rather than Defendant because Defendant did not have a driver's license. Charles Rousseau (Mr. Rousseau) testified that Defendant, Mr. Cornelius, Mr. Cordray, and another person arrived at Mr. Rousseau's house in Winston-Salem about 2:00 a.m. on 9 November 2007. Mr. Cornelius was bleeding from a stomach wound.
Mr. Cornelius was concerned about the blood in the vehicle, and he was having trouble breathing. Defendant later told police officers that he "wiped a little blood out of . . . [the] car[,]" and told Mr. Cornelius to "watch [his] sh-- . . . [and] [j]ust chill." Defendant and Mr. Cordray took Mr. Cornelius to the hospital, where Mr. Cornelius was interviewed by police officers. Mr. Cordray then drove Defendant home and Mr. Cordray returned to Mr. Rousseau's house. The next morning, Defendant returned to Mr. Rousseau's house and expressed regret over the events of the previous evening. That same morning, Mr. Cordray gave Mr. Rousseau a gun and asked him to "get rid of" it for him.
Mr. Cornelius was interviewed by police officers while in the hospital, and voluntarily submitted to questioning. Mr. Cordray turned himself in for questioning the next day. Both Mr. Cornelius and Mr. Cordray admitted being involved in the events leading up to Mr. Conrad's death.
Defendant did not turn himself in, and police officers were unable to contact him for an interview. Defendant was apprehended several months later in Statesville by a United States Marshals' task force trained to locate violent fugitives. Defendant was returned to Forsyth County, where he waived his Miranda rights and gave a statement to Detective Timothy Taylor (Det. Taylor) of the Winston-Salem Police Department.
In Defendant's statement, he indicated that once the home invasion of Mr. Conrad's home began, Defendant became aware that Mr. Conrad was home and that a dog inside the house was barking. Defendant decided to cease participating in the activity and began to walk away from Mr. Conrad's house. When Defendant heard the gunshots coming from Mr. Conrad's house, Defendant ran back to the vehicle and let Mr. Cordray drive him away to Mr. Rousseau's house. Prior to trial, Defendant stipulated to "perpetrating the act of conspiracy to commit second degree burglary[.]" Defendant did not testify at trial, but presented a defense based on the theory that he had planned to commit a breaking and entering, but that he withdrew from the crime when he learned Mr. Conrad was home and, therefore, Defendant was not responsible for Mr. Conrad's death.
II. Issues on Appeal
Defendant raises on appeal the issues of whether: (1) his first-degree murder conviction must be vacated because there was insufficient evidence that he acted in concert pursuant to a common plan to commit first-degree burglary; (2) the trial court erred by refusing to instruct the jury on withdrawal; (3) the trial court erred by allowing the State to "use[] [Defendant's] exercise of his constitutional rights to silence, plead not guilty, and present a defense against him at trial[;]" (4) the trial court erred by admitting "inadmissible 'other crimes' evidence[;]" (5) the trial court erred by admitting "the State's inadmissible 'other crimes' evidence [Defendant] was a drug dealer and criminal[;]" and (6) the prosecutors made two improper closing arguments.
III. Sufficiency of the Evidence
Defendant first argues that his "first-degree murder conviction must be vacated because there is insufficient evidence of first-degree murder under the only theory of criminal responsibility submitted to the jury." Defendant asserts that the record shows the indictment was a short form indictment that did not specify a theory of guilt. During jury selection, the State announced that at trial it would rely on a theory of acting in concert. Defendant argues that "there [was] insufficient evidence of 3 essential elements of first-degree murder under the acting in concert theory submitted to the jury, namely 1) presence, 2) concerted action, and 3) action pursuant to a common plan to commit first-degree burglary."
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "Upon [a] defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quotation marks and citation omitted). "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). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from theFritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation marks omitted).
circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Viewing the record in the light most favorable to the State, we note the following evidence: Defendant developed the plan to break into Mr. Conrad's house and steal money from Mr. Conrad. Defendant "recruited" Mr. Cornelius and Mr. Cordray to commit the crime with him. Defendant was supposed to be the get-away driver and wait with the vehicle while Mr. Cornelius and Mr. Cordray committed the break-in, because Defendant feared that Mr. Conrad would recognize him. After discovering that Mr. Conrad was at home, Defendant had a conversation with Mr. Cordray expressing a desire to "not go through with it[.]" However, Mr. Cornelius was not present for this conversation and Defendant did not express his intent to withdraw to Mr. Cornelius. Defendant did, in fact, wait by the vehicle while the crime, by then a robbery, unfolded. After Mr. Cornelius returned to the vehicle, bleeding from a gunshot wound, Mr. Cordray drove Mr. Cornelius and Defendant to Mr. Rousseau's house and then to the hospital to obtain treatment for Mr. Cornelius. Defendant later wiped up blood in the vehicle and told Mr. Cornelius to "chill." Further, at trial, Defendant
stipulated to the following fact:
THE COURT: And [Defense Counsel] continues to have your permission to admit before the jury that you are responsible for perpetrating the act of conspiracy to commit second degree burglary, is that correct?
DEFENDANT: Yes, sir.
In light of the above-cited evidence, and Defendant's own stipulation at trial, we conclude there was sufficient evidence that Defendant: (1) was present at the scene of the crime and (2) acted together with Mr. Cornelius and Mr. Cordray who committed the acts necessary to constitute murder. See State v. Wade, ____ N.C. App. ____, ____, 714 S.E.2d 451, 456 (N.C. Ct. App. 2011) ("'Acting in concert means that the defendant is present at the scene of the crime and acts together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.'" (citation omitted)). We therefore conclude there was sufficient evidence to survive Defendant's motion to dismiss regarding acting in concert.
IV. Withdrawal
Defendant next argues that the trial court erred by denying his request for a jury instruction on withdrawal. "A trial court must give a requested instruction that is a correct statement of the law and is supported by the evidence." State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626, 629 (1997). Where a defendant's requested instruction is "not supported by the evidence, the trial court [may] properly refuse[] to give it." State v. Rose, 323 N.C. 455, 459, 373 S.E.2d 426, 429 (1988).
In the present case, Defendant submitted a written request for the following instruction:
The Defendant has set forth the affirmative defense of withdrawal. This means he ceased his involvement in the crime prior to the crime actually taking place.
In order for a person to withdraw from a crime he must perform three (3) things:
1. He must renounce the common purpose;
2. He must make it plain to the others that he had renounced the common purpose and that he did not intend to participate further in the crime; and
3. He must have ceased all participation in the crime.
Once there is evidence presented it becomes the State's burden to prove beyond a reasonable doubt that Mr. Fraley did not withdraw from the crimes for which he is charged.
If you find that the State has not proven beyond a reasonable doubt that the Defendant, Mr. Fraley, did not withdraw from the crime then you must find him not guilty of all charges.
However, if you find that the State has proven beyond a reasonable doubt that the Defendant, Mr. Fraley, did not withdraw from the crimes for which he is charged, then you
must determine his guilt or innocence of each charge as instructed.
This Court has summarized the defense of withdrawal as follows:
Once an individual has joined in a purpose to commit a crime, it is possible for him to withdraw under certain circumstances:State v. Wright, ____ N.C. App. ____, ____, 709 S.E.2d 471, 473-74 (2011) (internal citations omitted). Thus, Defendant's requested instruction is not an incorrect statement of the law and, therefore, we review the record to determine if the evidence supported giving the instruction.
Where the perpetration of a felony has been entered on, one who had aided or encouraged its commission cannot escape criminal responsibility by quietly withdrawing from the scene. The influence and effect of his aiding or encouraging continues until he renounces the common purpose and makes it plain to the others that he has done so and that he does not intend to participate further.Any withdrawal by a defendant may not be done silently in his own mind without any outward manifestation or communication to the other perpetrators.
In Wright, the trial court denied the defendant's written request for a withdrawal instruction and, on appeal, the defendant argued that he "'renounced the common purpose and made it clear to [the other perpetrators] that he did not plan to participate any further.'" Id. at _____, 709 S.E.2d at 474. This Court further stated in Wright:
[The] [d]efendant's argument is misplaced.Id. This Court then observed that: "By his own statement, defendant completed his role in the home invasion as previously agreed upon with [the other perpetrators]." Id.
In his statement to the police, defendant stated:
"It was previously decided that I would open the door. I went to the house (1422 Wyldewood, Apt. C1) and opened the glass storm door. I stepped to the side and said that I did not want to do this but [one perpetrator] said, Come on man, ain't nobody coming. You ain't got to do nothing, just kick the door. So I kicked the door two times but it didn't open. It just cracked. I panicked and ran back to the car. I was running. I turned around and I saw the door open. I heard a kicking sound before I turned around."[The] [d]efendant was waiting in the vehicle when he heard gunshots coming from inside of the residence. [The other perpetrators] returned to the vehicle and stated, "[W]e got him."
In the present case, Defendant argues that there was ample evidence that supported a withdrawal instruction in his case. Defendant cites evidence that he contends shows that "1) [D]efendant renounced the common plan to break into [Mr.] Conrad's house and 2) made it plain to [Mr.] Cordray and [Mr.] Cornelius he had renounced and did not intend to participate further." We note Defendant does not argue that any of this evidence shows that he actually ceased participating. As discussed above, a defendant must not only renounce the plan and make it plain that he did not intend to participate, he must also actually cease all participation in the act constituting the crime.
In the present case, we find there was no evidence that Defendant actually ceased participating in the planned robbery. Defendant contends he made it clear that he wanted to cease his involvement, and that he walked away from the house before Mr. Cornelius broke into the house. However, we find that the uncontroverted evidence shows that Defendant ran back to the get-away vehicle once he heard gunshots. Although Defendant did not drive the get-away vehicle as planned, because he did not have a driver's license, he remained in the vehicle with Mr. Cornelius and Mr. Cordray and went with them to Mr. Rousseau's house.
In his brief, Defendant asserts he did not participate in cleaning up any blood and did not hide the gun Mr. Cornelius had used. Defendant also asserts that, while at Mr. Rousseau's house, he expressed remorse that "that happened[.]" However, Defendant's evidence also tends to show that he accompanied Mr. Cornelius and Mr. Cordray to the hospital and waited outside by the get-away vehicle while Mr. Cordray took Mr. Cornelius inside the hospital.
Reviewing this evidence in its entirety, we hold it is insufficient to support an instruction on withdrawal. Defendant may have, at different times, expressed remorse about the events, stepped away from the events, or even announced his intent to withdraw. However, the whole picture of the events that occurred show Defendant's nearly constant presence alongside Mr. Cornelius and Mr. Cordray. Defendant allegedly planned the break-in and intended to wait outside while the robbery took place. Even if Defendant did walk away at that point, he immediately rejoined Mr. Cornelius and Mr. Cordray when he heard gunfire, and he accompanied them for the rest of the evening.
Further, in his own statement to the police, Defendant stated that he told Mr. Cornelius that he needed to "watch [his] sh-- . . . [and] [j]ust chill." As the State pointed out during the charge conference, Defendant was giving advice to Mr. Cornelius and Mr. Cordray after the murder. In light of the foregoing, we hold Defendant's requested jury instruction on withdrawal was not supported by the evidence at trial and, therefore, the trial court did not err by refusing to give the instruction.
V. Silence
Defendant next argues the trial court erred by allowing the State to "unconstitutionally use[] his exercise of his constitutional rights to silence, plead not guilty, and present a defense against him at trial." However, Defendant did not object to the instances of alleged misconduct on the part of the State. Therefore, Defendant is limited to plain error review of this argument.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.N.C.R. App. P. 10(a)(4). Our Supreme Court "has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence." State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). 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) (citation omitted). "Under the plain error rule, 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).
Defendant first argues that statements made during the State's direct examination of Det. Taylor amounted to substantive use of Defendant's "pre-arrest silence" against him. Defendant challenges the following testimony:
Q. Were you able to interview the defendant, Rodney Fraley, near the time of the crime near November 9th or November 10th?
A. No. I was not.
Q. Were you -- well, let me ask you this, Detective. In your experience and your function as lead detective, do you attempt to interview everyone involved?
A. We try our best to. Yes, ma'am.
Q. And is that why there was a detective sent out to interview Terrell Cornelius?
A. Yes, ma'am.
Q. And contact was made to interview Daniel Cordray?
A. That's correct.
Q. And did you make any attempts to locate and interview Rodney Fraley?
A. Myself and several other detectives made numerous attempts to locate Mr. Fraley without success.
We note Defendant's brief quotes this material loosely, omitting portions of questions and answers, and omitting whole questions and responses, at times, without indicating alterations, and without including the context of the statement. For example, preceding the questions quoted above was a lengthy exchange in which Det. Taylor answered several questions concerning his arrival at the hospital and the fact that Mr. Cornelius was interviewed at the hospital. Det. Taylor also explained that Mr. Cordray was interviewed when he reported to the Public Safety Center voluntarily during the evening of 9 November 2007. Following the exchange quoted above, Det. Taylor explained that police officers were unable to contact Defendant despite searching for him in known residences, with family and friends, and so forth. Det. Taylor then explained that Defendant was arrested on 7 April 2008, five months after the killing of Mr. Conrad, when Defendant was returned to Forsyth County from Statesville by "a violent fugitive task force through the United States Marshals Office[.]" Det. Taylor explained that this was the first time he spoke with Defendant, and the State and Det. Taylor engaged in the following exchange:
A. Detective Morgan had contacted my supervisor at the time and told him that they had located Mr. Fraley. My supervisor contacted me and told me that they had Mr. Fraley in custody. And I informed my supervisor to inform Detective Morgan to
bring him to the Public Safety Center for an interview.
Q. So you wanted to conduct the interview you were trying to conduct back when the murder happened?
A. Yes. I wanted to talk to everybody involved.
Q. Now, when he came in -- or when the interview started, the defendant was in custody?
A. He was.
Q. And did you read him his Miranda rights?
A. I did.
Q. Did he waive those rights?
A. Yes. He did.
Reviewing the transcript of Det. Taylor's testimony in its full context, unedited by Defendant, we find that Det. Taylor was explaining his procedure in conducting his investigation, which included conducting interviews with Mr. Cornelius and Mr. Cordray. Det. Taylor also discussed his inability to interview Defendant because Defendant had gone into hiding and had fled Forsyth County, and, upon Defendant's return to Forsyth County, Defendant spoke immediately with Det. Taylor and waived his Miranda rights. We are not persuaded by Defendant's arguments, nor by his editing of the testimony, that Det. Taylor was impermissibly commenting on Defendant's exercise of his right to remain silent, nor that the State impermissibly used such against Defendant. Rather, it appears that, if anything, Det. Taylor was commenting on Defendant's having fled Winston-Salem to elude police, which we are not persuaded amounts to an "exercise of [Defendant's] constitutional right to remain silent."
Defendant next asserts that the State improperly drew a contrast between Mr. Cordray's having pleaded guilty and Defendant's having pleaded not guilty. Defendant called Mr. Cordray as a witness, however, and it was during Mr. Cordray's direct examination that he testified to having pleaded guilty. During the State's cross-examination, the following exchange occurred:
Q. Isn't it fair to say, Mr. Cordray, that but for you getting involved with this [D]efendant . . ., you wouldn't be in this mess?
A. No. Ain't for me to decide.
Q. And you assumed responsibility for what you did, isn't that true?
A. Yeah.
Q. You pled guilty?
A. Yeah.
Q. You took your time?
A. Yeah.
[The State]: May I have a moment, Your Honor?
THE COURT: Yes, ma'am.
(Pause in the proceedings at 4:53 p.m.)
[The State]: That's all the questions that I have on cross-exam.
Defendant characterized the above exchange as the State's "immediately follow[ing]-up by asking [Mr.] Cordray about how [D]efendant acted differently from him after November 9[.]" However, reviewing the exchange quoted above, we find no comment whatsoever about how Defendant acted, nor any invitation on the part of the State for Mr. Cordray to explain "how [D]efendant acted differently from him[.]" Rather, these questions appear to have been directed at placing responsibility for the events on Mr. Cordray's having "gotten involved" with Defendant.
Finally, Defendant addresses the following statement made during the State's closing argument: "'[Mr. Cordray] pled guilty to second-degree murder . . . . And this [D]efendant is on the run for five months after this happened. No need to do that if you withdrew from the crime." [Emphasis added by Defendant]. The full context of the statement Defendant challenges is as follows:
In evaluating this claim that they had this conversation outside the house about withdrawing, where did this conversation supposedly take place beside inside the
house? [Ms. Carr] didn't hear anything. No evidence that Leon Conrad heard anything. And if Daniel Cordray is having the same second thoughts that he testified to now, if he was having those same second thoughts then just like the defendant was doing, well, we know he didn't withdraw. He continued in this the next day. He's wiping blood off that gun and getting rid of it. And he pled guilty to second degree murder. So if their second thoughts are the same, he didn't withdraw. And this defendant is on the run for five months after this happened. No need to do that if you withdrew from the crime.
Defendant later quotes this same excerpt as follows: " no need [for silence] if [defendant] withdrew from the crime[.]" (emphasis and italicized alterations by Defendant). Defendant follows this quote with "the prosecutor explicitly used [D]efendant's silence to impeach the withdrawal defense [D]efendant presented at trial." However, contrary to Defendant's assertion, we do not find that the State "explicitly" referred to Defendant's remaining silent - nor do we find that the State referred "implicitly" to any silence, either. In this instance, Defendant has replaced "to do that" with "for silence." However, our reading of the original passage indicates that "to do that" referred not to Defendant's remaining silent but to Defendant's being "on the run for five months after this happened." We are not persuaded that an officer's testimony that a defendant fled police investigation for months is remotely comparable to testimony concerning a defendant's exercise of his right to remain silent. Defendant's editing aside, we find the State did not refer to Defendant's remaining silent at all in this portion of its closing argument. Therefore, Defendant's arguments concerning the State's commentary on his silence are unfounded.
VI. Other Crimes
Defendant argues that the trial court erred by allowing the State to present the testimony of LiThomas Graham (Mr. Graham) concerning "other crimes" to which Defendant was allegedly connected. Defendant argues that the crime to which Mr. Graham would testify was not sufficiently similar. Defendant next argues that the "five issues the evidence was admitted to prove were irrelevant and inconsequential as these cases were litigated." Defendant asserts that the trial court in the present case "made the same mistake . . . that was made in" State v. Towe, ____ N.C. App. ____, 707 S.E.2d 770 (2011), aff'd as modified ____ N.C. ____, 732 S.E.2d 564 (2012). Defendant contends that the trial court "failed to determine whether the purposes for which the evidence was offered were at issue."
Though this Court has not used the term de novo to describe its own review of 404(b) evidence, we have consistently engaged in a fact-based inquiry under Rule 404(b) while applying an abuse of discretion standard to the subsequent balancing of probative valueState v. Beckelheimer, _____ N.C. ____, ____, 726 S.E.2d 156, 158-59 (2012).
and unfair prejudice under Rule 403. For the purpose of clarity, we now explicitly hold that when analyzing rulings applying Rules 404(b) and 403, we conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.
Rule 404(b) is a "rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in the original). "To effectuate these important evidentiary safeguards, the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity." State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
Defendant filed a pre-trial motion "to prohibit introduction of 'other acts'" related to the anticipated testimony of Mr. Graham. Mr. Graham was expected to testify at Defendant's trial concerning Defendant's involvement in a series of actions culminating in the shooting death of Cyrenius Fulks on 24 October 2006. Defendant argued that Mr. Graham's testimony was inadmissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), and that it would be more prejudicial than probative. The trial court denied Defendant's motion in open court.
At trial, Mr. Graham testified that he was in prison for the 24 October 2006 murder of Cyrenius Fulks (Mr. Fulks). Mr. Graham testified that Defendant had approached him with a plan to commit a robbery of Mr. Fulks, a drug dealer. Defendant later drove to Mr. Graham's residence, picked up Mr. Graham, and then drove Mr. Graham to Mr. Fulks' residence. Mr. Graham was wearing black clothing and had "[his] T-shirt wrapped around [his] face [and] around [his] hair in like a ninja fashion." Mr. Graham also testified that Defendant gave him a gun to use during the robbery.
Mr. Graham testified that Defendant waited in the vehicle because Defendant thought people inside Mr. Fulks' residence might recognize Defendant's voice. Mr. Graham approached Mr. Fulks' residence and knocked on the door. When someone inside the residence opened the door, Mr. Graham entered and robbed the residence. When Mr. Graham returned to the vehicle where Defendant waited, Mr. Graham fired a shot over his shoulder, back towards Mr. Fulks' residence, and fatally shot Mr. Fulks. Defendant then drove them away from the scene of the crime. Mr. Graham and Defendant split the proceeds of the robbery. Later, after Mr. Graham learned that he had killed Mr. Fulks, Defendant "just gave [him] another gun and . . . told [him] to lay low."
During Mr. Graham's testimony, the trial court provided the following limiting instruction:
Now, members of the Jury, in this case evidence has been received from Mr. LiThomas Graham in connection with the robbery of Cyrenius Fulks on October 24th, 2006. This evidence is being received in this case for a limited -- for limited purposes. This evidence is being received solely for the purpose of showing that . . . [D]efendant in this case had a motive for the commission of the crime charged in this case; that . . . [D]efendant in this case participated in the preparation of the crime charged in this case; that . . . [D]efendant in this case had the intent, which is a necessary element of the crime charged in this case; that there existed in the mind of . . . [D]efendant in this case a plan involving the crime charged in this case; and that . . . [D]efendant in this case had the opportunity to commit the crime.The trial court asked Defendant's counsel if he had any objection to the instruction; Defendant's counsel did not.
Members of the Jury, I charge you that if you believe this evidence, you may consider it but only for the limited purpose for which it was received, which we just enumerated in the record.
The State argues that in both crimes, the evidence tended to show that Defendant devised a plan to steal money from a drug dealer; both crimes were committed in Winston-Salem at night; Defendant conscripted younger acquaintances to commit the crimes with him; in both crimes, Defendant refused to enter the drug dealers' residences because he claimed he would be recognized; both crimes began as planned attempts to steal money and ended with a shooting death; after both crimes, Defendant advised a partner to "chill" or "lay low" after a shooting death; and, in both crimes, Defendant planned to be the get-away driver. We conclude the trial court did not err in ruling that the prior act was sufficiently similar to the events surrounding Mr. Conrad's death. Defendant does not argue that the thirteen-month period between the two events is too temporally remote, and, therefore, we do not address that portion of the 404(b) analysis.
Defendant also argues that this Court is bound to grant him a new trial by the holding of Towe, and the State's "effective concession of error" in not addressing Towe. Instead, it is the appellant's burden to show error occurring at the trial court. We note that Defendant cites no authority in support of this argument. Further, even in cases where the State concedes error, this Court is not bound by such concession and we review the record to determine whether the parties are correct in assigning error to the trial court's actions.
With respect to the holding of Towe, we note that this Court granted the defendant in Towe a new trial on the basis of the improper admission of expert opinion concerning whether a sexual assault occurred. Then, in dicta, this Court observed that a trial court must consider relevance in conjunction with a Rule 404(b) analysis:
Should the State seek to reintroduce the uncharged conduct evidence on remand, we trust the trial court will determine the materiality of each purpose for which the evidence is offered in addition to conducting the other steps in the uncharged conduct analysis. See, e.g., T.M. Ringer, A Six Step Analysis of "Other Purposes" Evidence Pursuant to Rule 404(b) of the North Carolina Rules of Evidence, 21 N.C. Cent. L.J. 1 (1995). The trial court should also be careful to articulate whether the evidence is admissible to establish common plan or scheme, as it appears, based on our review of the record and the parties' briefs, there was confusion on this matter below.Towe, ____ N.C. App. at ____, 707 S.E.2d at 776.
In the present case, Defendant argues the trial court admitted Mr. Graham's testimony for purposes that were rendered irrelevant because of Defendant's pre-trial stipulation and his theory of the case. However, without addressing the merits of Defendant's argument, we observe that Defendant, at trial, did not object to Mr. Graham's testimony on the basis of relevance. Defendant's pre-trial motion clearly articulated only Rule 404(b) and Rule 403 as grounds for excluding Mr. Graham's testimony. Defendant renewed his objection at trial as follows:
[Defendant's Counsel]: Your Honor, at this time, for the record, I'd like it to be noted that I object to any testimony of this witness based on 404(b) evidence that has been previously dealt with prior to the jury selection in this matter.
THE COURT: . . . thank you so much for your help. The objection is overruled. The Court will stand on the ruling previously entered in the record in this matter.
A defendant may not raise an argument for the first time on appeal. In Morris v. Bailey, 86 N.C. App. 378, 358 S.E.2d 120 (1987), we noted that the defendant "objected only to the testimony of one of those [challenged] witnesses, . . . and the record reveals defendant's objections to [the] testimony were based not on relevance but on hearsay." Id. at 383, 358 S.E.2d at 123. This Court held that "[s]ince there was no objection at trial on the ground of relevance, defendant cannot raise the issue on appeal." Id. at 383-84, 358 S.E.2d at 123. Therefore, Defendant, in the present case, may not raise his relevance arguments for the first time on appeal.
Defendant also argues that the trial court erred by admitting "the State's inadmissible 'other crimes' evidence [that Defendant] was a drug dealer and criminal." Defendant did not object to this evidence and, therefore, is limited to plain error review. Defendant first challenges the following testimony, elicited from Det. Taylor during his direct examination by the State:
A. Myself and several other detectives made numerous attempts to locate Mr. Fraley without success.
Q. And when you say "numerous attempts," what did you do?
A. Family -- contacting family members - anytime someone is arrested in Winston-Salem, Forsyth County -- the sheriff's office and the police department are all linked to PISTOL. PISTOL is a software that keeps up with all crimes, subjects, what they've been charged with, addresses, phone numbers, Social Security numbers and that kind of thing. I looked in PISTOL and found his last date -- street address, family information and friends, cohorts.
Q. So were you checking all of these addresses?
A. We did, yes.
Defendant contends that Det. Taylor's reference to having found Defendant's address in the PISTOL system was inadmissible character evidence tending to show that Defendant was "a criminal." Next, Defendant challenges a statement made by Mr. Graham during Mr. Graham's testimony:
Q. Now, with all those convictions for selling drugs and the assaults and otherDefendant contends this statement tends to show that Defendant was a drug dealer and is also inadmissible character evidence.
things on your record back in 2006, I believe you testified in cross-examination that even with all those convictions and everything, it was this defendant [who] was one of the people that you were hanging out with in the same neighborhood doing the same kinds of things, is that right?
A. Yes, sir.
Q. 2006 you were selling drugs?
A. Yes, sir.
As stated above, "[u]nder the plain error rule, 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." Jordan, 333 N.C. at 440, 426 S.E.2d at 697. Assuming arguendo it was error for the trial court to allow the State to elicit the above-quoted statements, we are not persuaded that the jury probably would have reached a different result had the statements not been admitted. In light of the other evidence in this case, the indirect evidence that Defendant's name could be found in a criminal records database or that Defendant was "hanging out in the same neighborhood and doing the same kinds of things" with a drug dealer did not have such an impact on the jury that the jury would probably have reached a different verdict had the evidence not been admitted. Therefore, we find no plain error with respect to this argument.
VII. Closing Arguments
Defendant next argues he is entitled to a new trial because of two remarks made by the prosecutor during closing argument. First, the prosecutor stated that when the judge provided jury instructions, he would "instruct you that this [D]efendant . . . is guilty[.]" Defendant did not object to this statement. Next, the prosecutor stated that the "[o]nly way [Defendant] escapes a conviction . . . is if you [the jurors] choose not to follow the law." Defendant did object to this statement.
"The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). "In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision." Id. (citations and quotation marks omitted)
Further, our Supreme Court has stated:
Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which ariseState v. Cummings, 353 N.C. 281, 297, 543 S.E.2d 849, 859 (2001)(internal citations and quotation marks omitted).
therefrom. This Court will not disturb the trial court's exercise of discretion over the latitude of counsel's argument absent any gross impropriety in the argument that would likely influence the jury's verdict. We further emphasize that 'statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.
As to the portion of the State's closing argument to which Defendant objected, we note that Defendant does not argue that the trial court abused its discretion in failing to sustain his objection. After Defendant raised his objection, the trial court made the following proposal to the parties:
THE COURT: I propose it that we address it by informing the jury, members of the Jury, you heard counsel recount to you at various times in closing arguments the law. I'm about to give you the law in this case. You are to follow the law as I give it to you. To the extent that the law that I give to you disagrees with anything counsel says, you are to disregard counsel's statements and follow the law as I give it to you.
Would that remedy you all's concerns?
Defendant's counsel replied, "yes and no . . . . I think it has to be a little more pointed to what was said during closing." The trial court then asked: "Tell me again how you want it phrased." The trial court heard further arguments on the matter from the State and from Defendant, and then provided a curative instruction to the jury. Reviewing the record, and considering the fact that Defendant does not argue abuse of discretion on appeal, we are not persuaded that the trial court's handling of the issue "could not have been the result of a reasoned decision." Jones, 355 N.C. at 131, 558 S.E.2d at 106 (citations and quotation marks omitted).
We next address the portion of the State's closing argument to which Defendant did not object. The statement in its full context was:
So in this case, members of the Jury, I'll urge you to follow the law as instructed to you by [the trial court]. He will instruct you with regards to acting in concert. He will instruct you that this defendant, Rodney Fraley, is guilty of first degree murder because he acted together with Terrell Cornelius. Because he acted(Emphasis added). Defendant contends that this statement was " ex mero motu error." "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." Jones, 355 N.C. at 133, 558 S.E.2d at 107.
together with Daniel Cordray in the pursuance of the common purpose to steal from Leon Conrad.
Now, this [D]efendant was fueled with a notion for easy money, and he was motivated by greed. And that greed is punishable with life in prison. That act is punishable by law with life in prison. He is guilty of first degree murder. I'd ask you to find him guilty of first degree murder, find him guilty of first degree burglary.
In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.Id. "'A trial court is not required to intervene ex mero motu where a prosecutor makes comments during closing argument which are substantially correct shorthand summaries of the law, even if slightly slanted toward the State's perspective.'" State v. Taylor, 362 N.C. 514, 546, 669 S.E.2d 239, 265 (2008) (citation omitted). "Moreover, a prosecutor's misstatement of the law may be cured by the trial court's subsequent correct instructions." Id.
In the present case, the prosecutor stated that the trial judge would instruct the jury that Defendant was guilty. However, these remarks occurred in the midst of a closing argument, replete with references to the judge's role in instructing the jury on the law and requests that the jury find Defendant guilty. Further, the trial court gave the instruction discussed above, in which it stated clearly that the jury was to follow the law as the trial court instructed it and not by whatever statements were made during the closing argument. On these facts, and in this context, we are not persuaded that there were statements that were "so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu." Jones, 355 N.C. at 133, 558 S.E.2d at 107. We therefore find Defendant's arguments concerning the State's closing argument without merit.
No error.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).