Opinion
NO. COA12-361
12-18-2012
STATE OF NORTH CAROLINA v. PAUL STEPHEN GLOVER, II, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. M. Alexander Charns for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
Nos. 10 CRS 232289
10 CRS 232290
10 CRS 232291
Appeal by defendant from judgment entered 23 September 2011, corrected judgments entered, 3 October 2011 and 6 October 2011, by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 September 2012.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State.
M. Alexander Charns for defendant-appellant.
GEER, Judge.
Defendant Paul Stephen Glover, II appeals from his convictions of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and breaking and entering. Defendant primarily contends on appeal that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon because there was no evidence that he and his co-conspirator agreed in advance to commit armed robbery as opposed to simply breaking and entering. Because the evidence, when viewed in the light most favorable to the State, was sufficient to show a mutual, implied understanding to commit armed robbery, the trial court properly denied the motion to dismiss.
Facts
The State's evidence tended to show the following facts. On 17 June 2010, Jordan Franks left his apartment sometime before 11:00 a.m. to go to work. Franks, who sold drugs out of his apartment, sometimes kept a quarter pound of marijuana in a safe in his apartment closet. Franks' girlfriend Stephanie Clift was asleep in his bedroom when Franks left the apartment. Sometime around noon, a loud crash awakened Clift. Defendant and his co-conspirator, Thomas White, who lived in an apartment downstairs, had kicked in the door of the apartment.
White and defendant had decided to rob Franks' apartment, knowing that he kept money and drugs there. White assumed Clift would not be there because Franks and Clift had had an argument, but as the two men entered the apartment, White saw a woman's purse on the couch and realized Clift was in fact there. White told defendant that they could not let Clift see him because she would recognize him. Defendant did not say anything to White, but instead walked directly to the bedroom, pulled out a gun, and threatened Clift. After pulling a phone out of the wall, defendant took a shotgun that Franks stored in the bedroom.
Defendant subsequently closed the bedroom door, which opened the door to a bathroom, giving Clift a view of the living room in the bathroom mirror. Clift saw White in the mirror. Defendant returned to the bedroom, got Clift, and led her around the apartment asking her if she knew where any drugs or money were hidden. Defendant then told Clift to get in a closet and count to 100 before coming out.
After waiting a while after defendant and White left, Clift emerged from the closet and drove to Franks' workplace. They called the police as Franks' manager drove them back to the apartment. Clift identified White as the man she had seen in the living room through the bathroom mirror from a photographic lineup the day of the robbery. She identified defendant a few weeks later.
Defendant was indicted for robbery with a dangerous weapon, common law conspiracy to commit robbery with a dangerous weapon, and felony breaking and entering. At trial, White testified against defendant pursuant to a plea bargain. Defendant did not present any evidence. The jury convicted defendant of all the charges, and the trial court sentenced defendant to a presumptive-range term of 70 to 93 months imprisonment. Defendant timely appealed to this Court.
I
We first address defendant's contention that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit armed robbery. Defendant argues that White's testimony for the State established that there was only an agreement to commit breaking and entering and not armed robbery.
This Court's review of the denial of a motion to dismiss for insufficiency of the evidence is limited to "'whether there 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. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). "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 considering a trial court's denial of a motion to dismiss, we must review the evidence "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). "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).
At trial, evidence was presented that defendant and White agreed to rob Franks' apartment believing that no one was home. When the men entered the apartment, they realized that Clift was still in the apartment. Defendant then entered the bedroom and threatened Clift with his gun, eventually leading Clift around the apartment to help him find any money or drugs in the apartment.
Defendant points to White's testimony that he did not know defendant had a gun and that the men, assuming that the apartment was vacant, had planned only to break and enter. White said: "No one was supposed to be there in the morning, it was just supposed to be a regular B&E and it turned into an armed robbery."
In State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176 (2004), the defendant similarly argued, based on a co-defendant's testimony, that the evidence was insufficient to support a charge of conspiracy to commit armed robbery. This Court stressed, however, that "it was not essential for the parties to expressly agree to use a dangerous weapon prior to the robbery in order to submit a charge of conspiracy to commit robbery with a dangerous weapon to the jury." Id. at 17, 595 S.E.2d at 185. Instead, "it was only essential that there be evidence that the parties had a mutual, implied understanding to commit robbery with a dangerous weapon." Id., 595 S.E.2d at 186.
The Court then noted that the evidence tended to show that two co-defendants and defendant "expressly agreed to rob the three victims when they saw them standing on the corner; however, there was no discussion of using a weapon at this time. As the robbery began, defendant Johnson pointed a sawed-off shotgun out the window at the victims while [a co-defendant] took their wallets and [the second co-defendant] waited in the driver's seat. The men then drove away, split the money equally, and threw the wallets into the river." Id. Based on this evidence, the Court held: "These facts are sufficient to support a prima facie case that defendant conspired with others to commit robbery with a dangerous weapon at the moment he pointed the gun at the victims." Id. See also State v. Lamb, 342 N.C. 151, 155-56, 463 S.E.2d 189, 191 (1995) (holding that evidence "defendant met with two other men, one of whom was armed; that the three men drove to the home of the victim; and that the three men then left the vehicle and entered the victim's home, robbed the victim, and shot him is substantial evidence from which the jury could find the robbery was carried out pursuant to a common plan to rob the victim").
There is no meaningful distinction between this case and Johnson. As in Johnson, defendant and White expressly agreed to rob the apartment, defendant drew his gun in the course of the robbery, defendant took a gun from the bedroom, and then the two men left together. Johnson dictates that this evidence is sufficient to support "a prima facie case that defendant conspired with others to commit robbery with a dangerous weapon at the moment he pointed the gun at the victim[]." 164 N.C. App. at 17, 595 S.E.2d at 186. The trial court, therefore, properly denied defendant's motion to dismiss.
II
Defendant next contends that the trial court erroneously interfered with his attempt to cross-examine White as permitted by Rule 609 of the North Carolina Rules of Evidence and, therefore, violated his Sixth Amendment right to present a defense. Defendant further contends that, in the course of limiting the cross-examination, the trial court also erred when it instructed the jury that White's prior record level was a five instead of a six for sentencing purposes.
At trial, defendant attempted to impeach White under Rule 609(a) of the North Carolina Rules of Evidence, which provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.During his cross-examination of White, defendant's counsel questioned White regarding his prior record level and sought to establish that White had a prior record level six even though White asserted that he had been determined to be a prior record level five when he pled guilty.
Although, initially, the trial court allowed the questioning, the court ultimately sustained the State's objections to the cross-examination. During oral arguments outside the presence of the jury, defendant's counsel appears to have contended that even if White's prior record level worksheet indicated that he was a five, the proper calculation would have resulted in a prior record level of six because White "was on probation and should have been given one additional point for an additional misdemeanor conviction, and should have eighteen prior record level points."
Following oral argument, the trial court struck the prior questions and answers regarding the prior record level and instructed the jury over defendant's objection as follows: "What the Court takes judicial notice of is the following. That on May 26th of 2011 Thomas White pled guilty in front of Judge Constangy, and that Judge Constangy found Mr. White to be a level five for sentencing purposes, accepted Mr. White's plea, and then continued judgment until this week." The trial court then further instructed the jury that it could use that fact in its deliberations: "And the information that the Court has taken as judicial notice now in Mr. White's file, and was properly recorded in front of Judge Constangy on May 26th, 2011, can be used in your deliberations."
Defendant relies on Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), to support his claim that the trial court improperly limited his cross-examination. In Davis, the defendant sought to impeach a witness who claimed to see the defendant holding a crow-bar near the location of a safe that had been pried open. Id. at 309-10, 39 L. Ed. 2d at 349-50, 94 S. Ct. at 1107. The trial court barred the defendant from questioning the witness about being on probation, at the time of the crime, for having been adjudicated delinquent of burglary of two cabins. Id. at 310-11, 39 L. Ed. 2d at 350-51, 94 S. Ct. at 1107-08. The defendant argued that he was entitled to suggest that the witness, in identifying the defendant, acted out of concern that he might jeopardize his probation if he did not identify defendant. Id. at 311, 39 L. Ed. 2d at 351, 94 S. Ct. at 1108.
The Supreme Court held that preventing the defendant from questioning the witness regarding his juvenile record violated his Sixth Amendment rights, observing:
While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a "rehash" of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.Id. at 318, 39 L. Ed. 2d at 355, 94 S. Ct. at 1111 (2nd and 3rd sets of internal quotation marks omitted). Here, in contrast, defendant was not precluded from either impeaching White through his prior convictions pursuant to Rule 609 or in demonstrating why White might be biased as a result of his plea bargain.
With respect to Rule 609, defendant offered into evidence White's prior record level worksheet and questioned White regarding each of his prior convictions, including one conviction of breaking and entering, one conviction of misdemeanor larceny, nine convictions of felony breaking and entering, nine convictions of breaking and entering a motor vehicle, one conviction of larceny of a firearm, one conviction of possession with intent to sell and deliver cocaine, two convictions of felony larceny, one conviction of robbery with a dangerous weapon, an indeterminate number of bank robberies, and aiding and abetting bank robbery. In sum, defendant was allowed to challenge White's credibility as a witness by questioning him in the presence of the jury regarding no fewer than 27 separate prior convictions.
In addition, defendant fully explored the benefits White was receiving by virtue of testifying against defendant. Defendant, through cross-examination, established for the jury the maximum sentence White could have received for each charge in the absence of a plea agreement: 201 months for robbery with a dangerous weapon, 85 months for conspiracy to commit robbery with a dangerous weapon, and 30 months for breaking and entering, for a total of 316 months if the sentences ran consecutively. Defendant then elicited for the jury the length of White's plea-bargained sentence: a potential maximum sentence of 89 to 116 months and a potential mitigated-range sentence of 67 to 90 months. In addition, the trial court instructed the jury regarding White's plea bargain: "Upon the promise of the defendant's truthful testimony against co-defendant at the trial, and if called as a witness providing such testimony, the Court will sentence the defendant at the low end of the mitigated range of 67 to 90 months."
Defendant has failed to show how, in light of this extensive exploration of White's criminal record and the significant benefits of his plea arrangement, he was prejudiced -- barred from presenting his defense -- simply because he could not suggest to the jury that White was a prior record level six rather than a prior record level five. There is no dispute that defendant was being sentenced as a prior record level five -- defendant was able to show the actual effect of the plea bargain in diminishing White's sentence. Moreover, defendant cites no authority that would permit him to attack Judge Constangy's determination, in a separate proceeding, that White was a prior record level five. Indeed, he has not shown why his theory regarding a potential prior record level six is relevant given that it would not be the actual basis for White's sentence.
In sum, the only thing defendant was prevented from doing was to argue that White's prior record level was a "six" and not a "five" -- an argument that was essentially meaningless given defendant's thorough exploration of the charges that formed the basis of the determination of White's prior record level. We hold, therefore, that the trial court did not err in barring defendant from questioning White about being a prior record level six.
Turning to the trial court's instruction to the jury that White's prior record level was a five, defendant argues that the instruction amounted to the improper expression of a judicial opinion. It is, of course, "improper for a trial judge to express in the presence of the jury his opinion upon any issue to be decided by the jury or to indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury." State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985).
However, the determination of a prior record level is not an issue that is open to jury determination. See N.C. Gen. Stat. § 15A-1340.13(b) (2011) ("Before imposing a sentence, the court shall determine the prior record level for the offender pursuant to G.S. 15A-1340.14." (emphasis added)). Further, given Judge Constangy's prior judicial determination that White was a prior record level five, the court's instruction amounted to a statement of fact that could not be disputed and was not the expression of an opinion. The trial court, therefore, did not err in its instructions. See State v. Holmes, 120 N.C. App. 54, 69, 460 S.E.2d 915, 924 (1995) (holding that trial court's taking judicial notice of sentence imposed on witness did not amount to improper expression of opinion).
III
Defendant next contends on appeal that the trial court erred in its responses to questions from the jury. At trial, the trial court instructed the jury regarding conspiracy as follows:
The defendant has been charged with feloniously conspiring to commit robbery with a firearm. For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt.
First, that the defendant and Thomas White entered into an agreement.
Second, that the agreement was to commit robbery with a firearm. Robbery with a firearm . . . is that the defendant took property from the person of another or in her presence, that the defendant carried away the property, that the defendant (sic) did not voluntarily consent to the taking and carrying away of the property, that the
defendant knew he was not entitled to take the property, that at the time of the taking the defendant intended to deprive that person of its use permanently, that the defendant had a firearm in his possession at the time he obtained the property, and that the defendant obtained the property by endangering or threatening the life of the person with a firearm.
And third, that the defendant and Thomas White intended that the agreement be carried out at the time it was made.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant agreed with Thomas White to commit robbery with a firearm in that the defendant took property from the person of another or in her presence, that the defendant carried away the property, that the person did not voluntarily consent to the taking and carrying away of that property, or the property, that the defendant knew he was not entitled to take the property, that at the time of the taking the defendant intended to deprive that person of its permanent use, that the defendant had a firearm in his possession at the time he obtained the property, and that the defendant obtained the property by endangering or threatening the life of that person with the firearm, and that the defendant and Thomas White intended at the time the agreement was made that it would be carried out, it would be your duty to return a verdict of guilty.
If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
After deliberating for a period of time, the jury returned to the courtroom and asked the following questions: "Can there be a nonverbal agreement of conspiracy which is implied by the continuing of actions? That was question one. And what is the actual definition of conspiracy? Question two." The trial court consulted with both the State and with defendant who agreed that the court should reread the jury instructions regarding conspiracy in response to the questions.
The trial court then announced: "I'll explain to them that that is what we have as an instruction as to the law, and they are to interpret that as best they can. I'll use that language, but that's from my experience over and over. I am willing to pass out the written jury instructions so they can read along with me." Neither the State nor defendant objected to the trial court's proposed action.
After the jury returned to the courtroom, the trial court instructed the jury in relevant part: "Ladies and Gentlemen of the Jury, the law is always in an imperfect state of not having enough information or information that you want. All that I can do for you as far as those two questions is to reread the instructions to you, so if you'll please go to page six." The trial court then proceeded to repeat its instructions to the jury. The court concluded: "And that is the law relating to felonious conspiracy. It is your duty to reach an agreement as to the definitions of that charge and to act accordingly. I cannot provide you any further information than that at this point in time." Defendant made no objection to the instruction given.
On appeal, defendant argues that the trial court should have answered the jury's question by instructing the jury further, in line with this Court's decision in State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004) (quoting State v. Richardson, 100 N.C. App. 240, 247, 395 S.E.2d 143, 148 (1990)), that "'[c]onspiracy . . . is the agreement of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The reaching of an agreement is an essential element of conspiracy.'"
As defendant made no objection to the trial court's instruction, he asks that this Court review the trial court's failure to give further or other instructions as to the jury's questions for plain error. The State argues, however, that the standard of review is abuse of discretion, and our Supreme Court has held that discretionary decisions by the trial court are not subject to plain error review. State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000) ("[T]his Court has not applied the plain error rule to issues which fall within the realm of the trial court's discretion, and we decline to do so now.").
Even assuming without deciding that the question is properly before the Court, defendant has failed to show plain error by the trial court. We do not believe that the trial court's instruction explaining conspiracy materially differed from the one defendant now argues should have been given.
Defendant also contends that the trial court abused its discretion when the court told the jury that "reread[ing] the instructions" was "[a]ll that [it could] do" and that it could not "provide [the jury] any further information than that at this point in time." Defendant argues that these statements indicate that the trial court was refusing to exercise its discretion in the erroneous belief that it had no discretion. See State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 376 (1997) ("'In addition, there is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented. Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter.'" (quoting State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980))).
Defendant points to our Supreme Court's decision in State v. Barrow, 350 N.C. 640, 647-48, 517 S.E.2d 374, 378-79 (1999), in which the Court held that the trial court abused its discretion when it stated that it was unable to provide the jury with a transcript of witnesses' testimony. The Court noted that "the trial court stated that it did not have the ability to present the transcript to the jury, indicating a failure to exercise discretion." Id. at 648, 517 S.E.2d at 379.
While in Barrow, the trial court acted under the mistaken belief that it was not in fact able to provide a transcript, we do not read the trial court's statements in this case in the same light. Reading the statements in context, we do not believe that the trial court meant that it was actually unable to give further instructions. Instead, the trial court was simply stating that the instructions had properly stated the law and that it could not provide further guidance without stepping beyond the court's duty to instruct the jury regarding the law of the case -- thus reflecting a proper understanding of the court's role and an adequate exercise of discretion. See State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) ("A trial judge is required by N.C.G.S. § 15A-1231 and N.C.G.S. § 15A-1232 to instruct the jury on the law arising on the evidence."). The trial court, therefore, did not err.
No error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).