Opinion
No. COA15-994
04-19-2016
STATE OF NORTH CAROLINA v. CHARLES KEARSE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn H. Shields, for the State. Winifred H. Dillon 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Onslow County, Nos. 12 CRS 52711-12 Appeal by defendant from judgments entered 22 April 2015 by Judge Charles H. Henry, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Kathryn H. Shields, for the State. Winifred H. Dillon for defendant-appellant. GEER, Judge.
Defendant Charles Kearse appeals from his conviction of two counts of possession of a firearm by a convicted felon. On appeal, defendant argues that the trial court committed plain error by allowing into evidence testimony referring to defendant's statement to a confidential informant that he planned to rob his drug dealer. We disagree, and hold that even if it was error to allow the testimony, defendant cannot demonstrate prejudice rising to the level of plain error.
Facts
The State's evidence at trial tended to show the following facts. Demecho Simpler, a paid informant for a joint task force of the Federal Bureau of Alcohol, Tobacco, and Firearms ("ATF") and the Jacksonville Police Department, began working with ATF in 2009. ATF Agent Chris Speer and Detective Kevin Doyle of the Jacksonville Police Department supervised Mr. Simpler's work with the task force. Mr. Simpler met and "started hanging out" with defendant in 2010, when they lived in the same apartment complex. During their interactions, defendant showed Mr. Simpler a nine-millimeter handgun and offered to sell it to him for $300.00.
The agent's name appears in the trial transcript alternately as "Speer[,]" "Speers[,]" and "Spears."
Mr. Simpler purchased a nine-millimeter semiautomatic pistol from defendant for $300.00 on 8 December 2011 and a .22-caliber semiautomatic pistol and .22-caliber revolver for $150.00 on 13 January 2012. Both transactions took place at the Dudley Courts apartment complex, where Mr. Simpler resided at that time. On 8 December 2011, the transaction occurred in the "back room" of Mr. Simpler's apartment, while the 13 January 2012 transaction took place in his car. On the date of each purchase, the officers searched Mr. Simpler for weapons or contraband, outfitted him with hidden recording equipment, surveilled his movements to and from the transaction site, collected the handguns he obtained from defendant, searched Mr. Simpler again, and debriefed him at the police station. Agent Speer provided Mr. Simpler with the purchase money for the transactions.
Two to three days before the 8 December 2011 transaction, Mr. Simpler and Agent Speer recorded a telephone call with defendant during which he "said he would sell it to [Mr. Simpler]." On 8 December 2011, Mr. Simpler met Agent Speer and Detective Doyle at the police station and phoned defendant to arrange to purchase the gun. Detective Doyle drove Mr. Simpler from the police station to a Pizza Hut restaurant near JLD Drive, approximately 75 yards from the Dudley Courts apartments. Officers maintained visual contact with Mr. Simpler as he walked to the apartment complex but lost sight of him when he entered an apartment building. As previously arranged, Mr. Simpler met defendant at an apartment adjacent to Mr. Simpler's own residence. The two men then went into Mr. Simpler's apartment to complete the exchange. After making the purchase, Mr. Simpler "walked directly back to [Detective Doyle's] location at the Pizza Hut" where he surrendered a "nine-millimeter Bryco Arms . . . semiautomatic pistol."
In January 2012, defendant called Mr. Simpler and "said he had two .22 pistols for sale for $150." Mr. Simpler then contacted Detective Doyle and Agent Speer and arranged the second transaction. On 13 January 2012, Mr. Simpler drove his own car to the Pizza Hut to meet Detective Doyle, who transported him to the police station and equipped him with two cameras before returning him to the restaurant. After his car was searched, Mr. Simpler drove to the Dudley Courts apartments and met defendant in the parking lot. The two men spoke briefly before getting into Mr. Simpler's car. Defendant produced two .22-caliber handguns wrapped in a black and white bandana. After paying for the guns, Mr. Simpler exited the car with defendant and played with defendant's infant daughter. Mr. Simpler returned to the Pizza Hut and gave Detective Doyle the ".22-caliber, Phoenix Arms, semiautomatic pistol" and the .22-caliber ROM RG-10 revolver he obtained from defendant for $150.00.
Detective Doyle and Mr. Simpler testified at defendant's trial, giving detailed accounts of the two handgun purchases. Agent Speer did not testify, having been reassigned to Texas. According to Detective Doyle, the recording made by Mr. Simpler's camera on 8 December 2011 was of "poor quality" and "didn't capture anything[.]" Copies of the two recordings of the 13 January 2012 transactions were admitted into evidence and published to the jury. Detective Doyle narrated the recording taken by his department's camera, and Mr. Simpler narrated the recording from the camera supplied by the ATF.
At the time he purchased the guns, Mr. Simpler knew defendant only by the nickname "Bricks" or "Brick." Defendant later phoned Mr. Simpler from jail and asked him to deposit money into his jail account, under the name of "Charles Kearse." Mr. Simpler provided this name to Detective Doyle, who obtained a picture of defendant and confirmed his identity as "Brick." Mr. Simpler also identified defendant in court as the "Brick" who sold him the handguns on 8 December 2011 and 13 January 2012.
The State introduced into evidence the three handguns Mr. Simpler purchased from defendant as well as the bandana used to conceal the guns on 13 January 2012. The State also adduced a certified court document showing defendant's prior conviction for felonious sale of marijuana in Onslow County Superior Court. Upon defendant's request, at the close of the State's evidence, the Court dismissed the charge of possession of a stolen firearm.
A jury found defendant guilty of two counts of possession of a firearm by a felon. The trial court sentenced him to an active prison term of 14 to 26 months for the first count and a suspended consecutive prison sentence of 12 to 14 months for the other, and ordered him to serve 36 months of supervised probation upon his release from incarceration. Defendant timely appealed to this Court.
Defendant has also filed a petition for writ of certiorari as an alternative basis for appellate review. Because we find defendant's notice of appeal jurisdictionally sufficient under State v. Ragland, 226 N.C. App. 547, 552, 739 S.E.2d 616, 620 (2013) (finding State did not raise lack of service issue in its brief and participated in appeal without objection, so lack of service waived), we dismiss the petition as moot. --------
Discussion
On appeal, defendant claims the trial court committed plain error by allowing Detective Doyle to refer to defendant's statement to Mr. Simpler that he planned to rob his drug dealer. Detective Doyle gave the following account of Mr. Simpler's debriefing on 13 January 2012:
During the course of the transaction, [defendant] explains to Mr. Simpler how to use the weapons. He talks about robbing somebody with the weapon, talks about robbing his drug dealer. They had a short conversation, and they get out of the car, talk with some other people for a minute, and then Mr. Simpler departs and comes back to our location.(Emphasis added). While narrating the recording of the 13 January 2012 transaction for the jury, Detective Doyle also testified as follows:
You can hear [defendant] giving him a -- more or less giving him a class on how to use the firearm. . . . If you hit somebody with it, the slide is going to fall out of it. More or less tells him to be careful on that. He goes on to explain how he's going to rob one of his drug dealers because he feels slighted by his drug dealer. I guess he's been putting money in on a studio, he's been doing various things for him and he doesn't feel like his drug dealer is being fair with him, I guess you would say.(Emphasis added). Detective Doyle affirmed that the events captured in the recording were consistent with Mr. Simpler's account during his debriefing.
Defendant argues that his stated intention to rob his drug dealer was irrelevant to the charges for which he was tried and was thus inadmissible under Rule 402 of the Rules of Evidence. Even if his statement to Mr. Simpler qualified as a "bad act" admissible under Rule 404(b) of the Rules of Evidence, defendant asserts that its probative value was "substantially outweighed by the danger" of unfair prejudice under Rule 403 of the Rules of Evidence. Having failed to object to Detective Doyle's testimony at trial, as required by Rule 10(a)(1) of the Rules of Appellate Procedure, defendant now contends that its admission into evidence amounts to plain error under Rule 10(a)(4).
" '[I]n order to preserve an issue for appellate review, a party 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.' " State v. Collins, 216 N.C. App. 249, 254, 716 S.E.2d 255, 259 (2011) (quoting N.C.R. App. P. 10(a)(1)). Having failed to object to the detective's testimony at trial, defendant must now establish that its admission rose to the level of plain error under Rule 10(a)(4):
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice -- that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
Even assuming, arguendo, that the challenged evidence lacked relevancy, we find no plain error here. Defendant limits his argument regarding the prejudicial impact of Detective Doyle's statements to a conclusory assertion that "[t]he trial court's allowance of testimony that [he] talked about robbing his drug dealer . . . likely had a significant impact on the jury's verdict." Such minimal analysis is insufficient to meet the appellant's heavy burden under Lawrence. See State v. Cummings, 352 N.C. 600, 636, 637, 536 S.E.2d 36, 61 (2000) (finding the defendant's allegation of plain error and his "bare assertion that the claimed error is so fundamental that justice could not have been done" insufficient to "meet the spirit or intent of the plain error rule"). Moreover, given the strength of the State's case against him, defendant cannot show that the trial court's failure to strike Detective Doyle's testimony ex mero motu had a probable effect on the jury's verdict. Cf. State v. Ross, 207 N.C. App. 379, 396, 700 S.E.2d 412, 424 (2010) ("Even assuming arguendo that it was error for the trial court to allow the introduction of the detective's testimony characterizing the neighborhood, we conclude that it did not rise to the level of plain error, as the record in the case sub judice contains overwhelming evidence of defendant's guilt.").
Moreover, the State presented substantial evidence of guilt in this case, which defendant has not disputed. Mr. Simpler provided an eyewitness account of his gun purchases from defendant, which was corroborated by Detective Doyle. Both witnesses provided substantial detail about the preparation and execution of these controlled purchases. We further note the jury was separately apprised of defendant's prior conviction of a felony drug offense. Finally, the jury heard no evidence that defendant actually committed the assault forecast in his conversation with Mr. Simpler. Given the overwhelming evidence of guilt in this case, defendant has failed to establish that but for the trial court's alleged error in admitting this evidence, the jury probably would not have found him guilty of possession of a firearm by a convicted felon. Consequently, we hold that defendant received a trial free of prejudicial error.
NO ERROR.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).