Opinion
No. COA11–1299.
2012-05-1
STATE of North Carolina v. Olantomus Lavoris GOODE.
Attorney General Roy Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State. Richard Croutharmel, for defendant-appellant.
Appeal by defendant from judgment entered 15 June 2011 by Judge Linwood O. Foust in Gaston County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State. Richard Croutharmel, for defendant-appellant.
CALABRIA, Judge.
Olantomus Lavoris Goode (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of robbery with a dangerous weapon, possession of a firearm by a felon, and attaining the status of an habitual felon. We find no error.
On 16 June 2010, Colby Reid (“Reid”) was waiting for his mother outside her friend's home in Gastonia, North Carolina. Around 10:30 p.m., two black males wearing fitted caps and dark colored shirts approached him. One of the men was light skinned with dreadlocks that had the tips “bleached like a light brown.” The other man who was darker, taller, and slimmer, placed a small black handgun up to Reid's stomach, and said, “Give me all you got or I'll burn you.” Reid emptied the contents of his pockets, which included his wallet, his cell phone, and his mother's cell phone. The man with the dreadlocks reached down and picked up the items from the ground. Then the men told Reid to run, so he ran to his mother's house and called his father, who came to get him.
Between 10:30 and 10:45 p.m., Officer Travis Kistler (“Officer Kistler”) was patrolling the streets when he observed a vehicle traveling with its headlights turned off. He initiated a stop along with Officer Josh Biddix (“Officer Biddix”), who was patrolling nearby in another car. After stopping the vehicle, Officer Kistler noticed the driver was dressed all in black and that both the driver and passenger wore dark ballcaps. Officer Biddix approached the passenger side of the vehicle where he observed the passenger was a lighter-skinned black male with shoulder length dreadlocks with bleached tips who also wore dark clothing. The driver, subsequently identified as defendant, was a darker skinned black male. He told the officers that he did not have a valid driver's license. Both men acted nervous and were sweating profusely. The officers removed the men from the vehicle, searched the car, and found a wallet, several cell phones, a black .22 caliber pistol and ammunition. The wallet had several identification items with Reid's name on them. When the officers asked defendant about the wallet he stated that the wallet was a friend's who must have left it in the car. At that time, the officers had no reason to suspect that the wallet or anything else was stolen.
Later that night, after 1:00 a.m., Officers Kistler and Biddix responded to a call concerning an armed robbery. They met with Reid, who reported what had happened to him. Reid provided the officers with a description of the two men, the gun that was used, and the property that was taken from him. The officers recognized Reid's name from the wallet found in defendant's car, and showed Reid the gun they recovered from defendant. Reid identified the gun as the one that was used to rob him. Reid then accompanied the officers to the police station where the officers placed photographs of the two men they had stopped for driving with their headlights turned off in the photo line-up along with other photographs. Reid gave a statement and viewed photo line-ups to attempt to identify the two men who robbed him.
Defendant was subsequently arrested and indicted. The jury returned verdicts of guilty of robbery with a dangerous weapon, possession of a firearm by a felon, and attaining habitual felon status. The trial court consolidated the offenses into one judgment and sentenced defendant to an active term of a minimum of 110 months to a maximum of 141 months in the North Carolina Department of Correction. Defendant appeals.
Defendant argues testimony from Officers Kistler and Biddix regarding the photo line-up was inadmissible because it failed to corroborate the victim's testimony and instead contradicted the victim's in-court statements. We disagree.
Initially, we must determine the appropriate standard of review. In order to preserve an issue for appeal, a party must state “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(a)(1) (2011).
In the instant case, defendant objected at trial to Officer Kistler's testimony regarding the photo line-up, however the basis for his challenge was that the testimony was speculative, conjectural, and not appropriate for the jury to hear. Since defendant did not object to Officer Kistler's testimony on the same grounds that he now argues on appeal, the matter was not properly preserved. See State v. Petty, 132 N.C.App. 453, 459, 512 S.E.2d 428, 432,disc. review denied and appeal dismissed, 350 N .C. 598, 537 S.E.2d 490 (1999). In addition, defendant did not object in any manner to Officer Biddix's testimony regarding the photo line-up. He does, however, argue plain error in his brief, and we therefore review both challenged portions of the testimony for plain error. N.C.R.App. P. 10(a)(4).
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).
Corroborative statements of a witness “may be admitted to corroborate the witness's” testimony in court. State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991).
Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. Prior statements admitted for corroborate purposes are not to be received as substantive evidence. If the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible.
Id. at 681–82, 403 S.E.2d at 303–04 (internal quotation marks, modifications, and citations omitted). It is the jury's responsibility to determine if “the proffered testimony does, in fact, corroborate the testimony of another witness.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980).
In the instant case, Reid testified on direct examination that he described the two robbers to the police, and when he looked at a photo line-up prepared by the police, “I was able to identify them positively.” On cross-examination, Reid stated, “I could not positively identify” the robbers in the line-up, “but I stumbled across a couple of them” when viewing the photo line-ups. Subsequently, Officer Kistler testified that when Reid looked at a photo line-up that included defendant's picture, he indicated he could not be sure but “that looks like him.” Officer Biddix testified that when Reid first looked at the line-up with defendant's picture, he said, “I don't think it's him,” but later stated after looking through the photos again, “I think it's him, but I'm not sure.”
Defendant argues Officers Kistler and Biddix's testimony contradicted rather than corroborated the victim's testimony and as such, were inadmissible. The out-of-court statements made by Reid in the presence of the police officers were slightly different from his in-court testimony, where he first indicated he could identify the two men, and then clarified on cross-examination that he could not positively identify the men from the photo line-ups, but he “stumbled across” them when viewing the photographs. Even though the out-of-court statements vary from Reid's testimony in court, we find they do not directly contradict Reid. Instead, the testimony from Officers Kistler and Biddix tends to corroborate Reid's testimony that defendant might be one of the two perpetrators of the robbery.
Defendant cites State v. Frogge to support his argument that the officers' testimony was not corroborative. However, that case is inapplicable. In Frogge, a fellow inmate gave a statement to the police regarding information about the defendant's crimes that the defendant shared with him while they were incarcerated. However, when testifying in court, the inmate recounted a different version of the events. 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997). The trial court allowed evidence of the inmate's prior unsworn statement. Id. at 617, 481 S.E.2d at 279. The differences between the two statements were substantial. The written statement supported the State's theory of the case, provided motive and mens rea, and the testimony in court provided evidence that a lesser charge may be appropriate. The Frogge Court held the statement was not corroborative. Id. at 618, 481 S.E.2d at 280.
In contrast, in the instant case, the discrepancy in the testimonies does not change any major element of the case but does support the State's theory that defendant was the perpetrator. Reid said he “stumbled across the photographs” and the officers corroborated that while he could not positively identify defendant as the perpetrator, he did pause at those photographs and indicated that there was a possibility that defendant was one of the men that robbed him. Reid's testimony showed that although Reid was not one hundred percent positive, something about the photographs from the photo line-up gave him pause.
Assuming, arguendo, that the jury did not hear testimony concerning the photo line-ups, defendant has failed to show that absent this testimony, another result would have been reached. Reid testified that two men who robbed him around 10:30 p.m. took his wallet and cell phones. Shortly thereafter, Officers Kistler and Biddix stopped defendant and the other man and found Reid's wallet, a gun, and cell phones in the car. Reid positively identified the gun as the one that was used in the robbery and gave physical descriptions matching defendant and the other man. Even without the photo line-up identification, it is likely a jury would have reached the same result. Therefore, we conclude that the admission of the officers' testimony does not rise to the level of plain error.
No error. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).