Opinion
No. 04-1231.
Filed 4 October 2005.
Union County Nos. 01 CRS 13665; 01 CRS 51901; 01 CRS 51923; 01 CRS 51926; 01 CRS 51927; 01 CRS 51928; 01 CRS 52390; 01 CRS 51898; 01 CRS 51902; 01 CRS 51905; 01 CRS 51906; 01 CRS 51907; 01 CRS 51900; 01 CRS 51916; 01 CRS 51919; 01 CRS 51920; 01 CRS 51921; 01 CRS 52328; 01 CRS 52391.
Appeal by defendants from judgments entered 12 December 2003 by Judge Kimberly Taylor in Union County Superior Court. Heard in the Court of Appeals 18 May 2005.
Attorney General Roy Cooper, by Assistant Attorneys General Phillip A. Lehman, Barbara Shaw, and K.D. Sturgis, for the State. Charns Charns, by D. Tucker Charns, for defendant-appellant Quincy Lee Peguse. Amos Granger Tyndall for defendant-appellant Daniel Dewayne Burch. Anne Bleyman for defendant-appellant Kevin Tyrone Hickmon.
Following a ten day trial, Quincy Lee Peguse, Daniel Dewayne Burch, and Kevin Tyrone Hickmon (defendants) were found guilty of various charges arising from the robbery of several people in a Union County home. The jury found defendant Peguse guilty of first-degree burglary, four counts of armed robbery, and possession of a firearm by a felon. Defendant Burch was found guilty of first-degree burglary and four counts of armed robbery. Defendant Hickmon was found guilty of first-degree burglary, four counts of armed robbery, possession of a firearm by a felon, and felony speeding to elude arrest. Defendants each gave notice of appeal and have brought forth numerous assignments of error. For the reasons stated herein, we find that defendants Peguse and Burch received a trial free of prejudicial error. As to defendant Hickmon, however, we find no prejudicial error at trial but reverse the trial court's denial of his motion to dismiss the charge of felonious speeding to elude arrest.
At trial, the State presented evidence tending to show that on the evening of 1 June 2001 at approximately 10:00 p.m., Israel Ortiz Velos (Mr. Velos) was asleep at his apartment in Monroe, North Carolina, while his fellow roommates and some friends were playing poker in the living room. Sometime around 10:30 p.m., Mr. Velos was awakened by armed men entering his room. He was instructed to go into his living room where he found his friends and roommates on the floor. A total of five intruders, all of whom wore scarfs or toboggans to cover their faces, then proceeded to take money and personal property belonging to the victims. At one point, one of the perpetrators took Mr. Velos to his bedroom where an armed man searched the room and robbed him of his money and other property. After thirty minutes to an hour, the five intruders departed, and the police were notified. Detective William Scott Williams (Detective Williams) of the Monroe Police Department arrived at the scene, but he did not have an opportunity to speak to the victims because he was dispatched to the area of a high-speed chase involving the highway patrol. None of the victims could give a good description of the perpetrators immediately after the incident. Fifteen days after these events, Detective Williams spoke with Mr. Velos and two other victims, but Mr. Velos still could not give a description of the perpetrators.
In the early morning hours of 2 June 2001, Joseph Franze of the North Carolina Highway Patrol (Trooper Franze) saw a red Ford Escort being driven erratically. The car contained five black males. The driver originally stopped, but sped away as Trooper Franze approached it. A high-speed chase ensued and lasted for five to seven miles, but came to an abrupt end when the Escort collided with Trooper Franze's patrol car. Five individuals fled the scene. A canine unit, along with Detective Williams, arrived shortly thereafter and eventually found James Funderburk (Mr. Funderburk) in a field roughly a half-mile from the wreck.
Mr. Funderburk was taken into custody by the Monroe Police Department where he issued several statements. Mr. Funderburk has denied having recollection of the burglary and robberies, but he did tell the police that on 1 June 2001 he was taken by his girlfriend, Tina Marie Gaddy (Ms. Gaddy), to join defendants, Nathaniel Burch, Ms. Tiffany McClain, who was defendant Hickmon's girlfriend, and defendant Hickmon's sister, Ms. Luwanda Shay Hickmon, at a trailer in South Carolina. After Mr. Funderburk signed a statement regarding the robbery of Mr. Velos's apartment in which he implicated himself, defendants, and Nathaniel Burch, who is the twin brother of defendant Burch, warrants were issued for the arrest of each person. After his arrest, Nathaniel Burch also gave a statement to the police implicating himself, Mr. Funderburk, and defendants. When called to testify at defendants' trial, however, Nathaniel Burch disavowed the statement he had made and called it a "lie."
Both Mr. Funderburk and Nathaniel Burch pled guilty to the charges and were called as witnesses against defendants in their trial. The State also presented other evidence to support defendants' convictions, but since defendants' appeal challenges the admissibility of some of this evidence, we will discuss it as it is presented on appeal.
I.
First, we consider defendants' argument that the trial court erred in allowing Mr. Velos to make an in-court identification of defendants Hickmon and Peguse. On appeal, defendants argue that Mr. Velos's testimony should not have been admitted because it was not sufficiently reliable. Specifically, they assert that the witness's own testimony showed that he was awakened suddenly, was very upset by the events, and could not see the faces of the perpetrators because their faces were covered. Defendants also argue that the lack of a prior identification of the perpetrators by the witness and the length of time between the crime and trial so undermine the testimony of Mr. Velos's identification that it should have been declared inadmissible.
The State did not ask Mr. Velos whether he could identify defendant Burch.
In most instances, imperfections in a witness's ability to identify the perpetrator correctly go to the weight of the evidence, rather than its admissibility. See State v. Orr, 260 N.C. 177, 179, 132 S.E.2d 334, 336 (1963) ("The credibility of witnesses and the proper weight to be given their testimony must be decided by the jury — not by the court."). Nonetheless, our courts have recognized limited instances in which the witness's identification is so unreliable or otherwise tainted that it must be excluded. One such instance is where a pretrial identification has been made, but that identification was impermissibly suggestive. See, e.g., State v. Green, 296 N.C. 183, 187, 250 S.E.2d 197, 200 (1978); see also State v. Tutt, ___ N.C. App. ___,___, 615 S.E.2d 688, 693 (2005) ("Identification procedures so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violate a defendant's right to due process.") (citations omitted).
[W]here there has been a showing that a pretrial identification procedure, conducted by State officials, is in some manner impermissibly suggestive . . . there must be a determination, in accordance with the factors listed [in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, (1972)], whether the witness's identification of the defendant at trial will be reliable and of an origin independent of the suggestive pretrial procedure.
Green, 296 N.C. at 187, 250 S.E.2d at 200.
In the case sub judice, defendants argue that their in-court identifications did not comport with the factors established by Biggers. Because, however, there was no pretrial identification of defendants in this case, it does not give rise to an argument under Biggers. See Green, 296 N.C. at 188, 250 S.E.2d at 200 ("Defendant's claim that [the witness's] in-court identification is not supported by the evidence elicited on voir dire is not therefore a Biggers type claim, but rather is a claim that her testimony is inherently unreliable and incredible.").
Thus, the question here would be whether the witness possessed "a reasonable possibility of observation sufficient to permit subsequent identification." See State v. Miller, 270 N.C. 726, 732, 154 S.E.2d 902, 906 (1967). In the instant case, Mr. Velos testified, inter alia, that he was with his assailants for at least half an hour; the lights were turned on; his assailants spoke to him; and he was physically close to them during some of this time. He also testified that, although one assailant was wearing a toboggan, he had it "raised to his forehead . . . [enabling Mr. Velos to see] . . . him for a brief moment as he turned to the side." Mr. Velos identified this individual as defendant Peguse at trial. He also testified that he could identify defendant Peguse as one of his assailants because of his braids, as well as "[h]is height, his built, [and] the thickness of his body." Mr. Velos then identified defendant Hickmon as another of the assailants because of the "the shape of his face and forehead" as well as "[h]is motion, the cheeks, and his eyes, the look in eyes." Thus, Mr. Velos identified those aspects of the assailants that he recalled from that evening and used these as the criteria for identifying defendants. Given the amount of time that the witness spent with his perpetrators in a lighted environment, we conclude that he did possess a "reasonable possibility of observation" and it is not "inherently incredible" that he could later identify those individuals. As such, his testimony was not inadmissible. See Green, 296 N.C. at 188-89, 250 S.E.2d at 200-01; State v. Wilson, 293 N.C. 47, 52, 235 S.E.2d 219, 222 (1977) (holding that witness identification is admissible where "there is a reasonable possibility of observation sufficient to permit subsequent identification."); Miller, 270 N.C. at 731-32, 154 S.E.2d at 905-06. We overrule this assignment of error.
II.
Defendants also attempt to raise issues related to the use of Ms. Petra Tussing as the translator during the trial. No objection was raised below, and defendants now attempt to invoke plain error review pursuant to N.C.R. App. P. 10(c)(4). However, this issue is not one concerning an evidentiary ruling or jury instructions and thus plain error review is not available to reach the merits of defendants' claims. See State v. Diaz, 155 N.C. App. 307, 318, 575 S.E.2d 523, 530-31 (2002) (citing State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)).
Defendants attempt to raise arguments concerning the transcript's indication of her oath; the manner in which she translated (e.g., changes of person); and the fact that she was the translator for the police at the crime scene on the night in question.
III.
In addition to Mr. Velos, the State called another of the victims, Manuel Arparicio Duenas, as a witness. Defendants Hickmon and Burch argue that since the indictment listed this victim's name as "Manuel Aparicio," it is therefore invalid. Although there are instances in which an error in the name of a victim will result in a conviction being vacated, see, e.g., State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998), we do not believe this is one of them. This Court has previously held that a "sufficient similarity" between the name of a victim and the name alleged in the indictment will usually suffice to avoid a fatal variance, provided "that the proof at trial matched the allegations in the indictment in all other respects . . . [and] the defendant was not surprised or placed at any disadvantage in preparing his defense to the crimes charged in the indictment." State v. Cameron, 73 N.C. App. 89, 92, 325 S.E.2d 635, 637 (1985), disc. review denied, 315 N.C. 592, 341 S.E.2d 31 (1986). Defendants here do not indicate how they were actually prejudiced by this variance, and it does not appear that there was ever any uncertainty as to the identity of the victim. Defendants similarly do not indicate how the evidence at trial otherwise varied from the indictment. This assignment of error is therefore overruled.
IV.
We next consider defendant's argument that the trial court erroneously admitted the testimony of Ms. Gaddy. Ms. Gaddy was Mr. Funderburks's girlfriend during June 2001, and she testified to statements allegedly made by defendants on 2 June 2001. When called to the stand, Ms. Gaddy testified that on the evening of 1 June 2001 she observed defendants, Mr. Funderburk, and Nathaniel Burch all depart from the trailer of Ms. Luwanda Hickmon. She then testified that defendants and Nathaniel Burch (absent Mr. Funderburk) were at the same trailer the next day and participated in a conversation with her, Ms. Luwanda Hickmon, and Ms. Tiffany McClain. When Ms. Gaddy attempted to testify as to what defendants said during the conversation, the trial court conducted a voir dire to determine its admissibility. Following voir dire, the trial court ruled that Ms. Gaddy could testify as to the statements made during this conversation. The substance of the conversation was that defendants, Mr. Funderburk, and Nathaniel Burch left on 1 June 2001, traveled to Monroe, committed a robbery, and had a wreck on the way back. The conversation also included the comment that Mr. Funderburk had been caught because he had not stayed with the rest of them. On appeal, defendants allege that the introduction of these statements allowed impermissible hearsay into evidence and also violated their rights under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968). After carefully considering these arguments, we disagree.
During the voir dire of Ms. Gaddy, as defendants indicate, she repeatedly stated that she was incapable of remembering any specific statement made by the individuals present during that conversation. Yet, before the jury the very next day, Ms. Gaddy testified that she could recall defendants' specific statements, which were that they had gone to Monroe, robbed some Mexicans, had a wreck from which they all ran, and that Mr. Funderburk had been caught. The State contends that these statements were admissible as an admission of a party opponent under N.C. Gen. Stat. § 8C-1, Rule 801(d)(A) (party's own statement) and, as necessary, under N.C. Gen. Stat. § 8C-1, Rule 801(d)(B) (party admission by adoption).
On cross-examination, Ms. Gaddy made the statement that "all three of the defendants were talking about the same thing and they were all agreeing to the same thing."
The gravamen of defendants' argument seems to be that Ms. Gaddy was only relating a generalized conversation and not testifying as to specific statements that could be individually identified as the exact words of a particular speaker. Yet, prior decisions of our Supreme Court have held that testimony which is similar, in terms of generality, to that of Ms. Gaddy's is admissible. In determining whether a statement in State v. Stanfield was an admission by a party opponent, the Court stated there is "no rule that requires the witness to remember the exact words spoken." 292 N.C. 357, 366, 233 S.E.2d 574, 81 (1977). Thus, the Court found no error in allowing a witness to testify as to the "effect" of a conversation with two defendants where the witness "testified that he could remember the subject of the conversation although he could not remember the exact words." Id. at 366, 233 S.E.2d at 580. Similarly, in State v. Moses, the Court held that a witness could testify to the substance of a conversation he had with a defendant "although he did not remember the exact words defendant used." 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999). Therefore, even if Ms. Gaddy may have recalled only the general nature of the statements of defendants, this would not prevent them from qualifying as party admissions under N.C. Gen. Stat. § 8C-1, Rule 801(d).
Also, our Supreme Court has made clear that no Bruton violation occurs when a witness testifies to a statement that is necessarily either a defendant's own statement or an admission impliedly adopted by the defendant. State v. Willis, 332 N.C. 151, 167, 420 S.E.2d 158, 165 (1992) ("[I]f testimony is admitted under the hearsay rule, or as an exception to it, there is no right of confrontation and Bruton does not prohibit the use of such testimony."); State v. Hardy, 293 N.C. 105, 118-19, 235 S.E.2d 828, 836 (1977) (holding that Bruton is inapplicable to implied admissions). As such, we find no error in the admission of this testimony and overrule this assignment of error.
V.
Defendants also argue that it was error for the trial court to admit a confession implicating defendants that was written by Nathaniel Burch. During its case-in-chief, the State called Nathaniel Burch to testify against defendants. Quickly into his testimony, he began denying that he knew defendants. The State immediately began impeachment by asking him to read a statement that he had given to police — even though he called it a "lie" and something that he was "tricked" into signing by the police. Defendants contend, among other things, that calling Nathaniel Burch as a witness and having him read his statement was a subterfuge to get the substance of his confession into evidence under the guise of impeachment.
Rule 607 of the North Carolina Rules of Evidence, like its counterpart in the federal rules, permits a party to impeach its own witness. When interpreting this rule our Supreme Court has looked to the federal courts, stating that "[i]t is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury." State v. Hunt, 324 N.C. 343, 350, 378 S.E.2d 754, 758 (1989). As was noted by Judge Posner and quoted in Hunt: it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn't miss it, would ignore it.
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984). Therefore, the State must overcome the presumption that impeachment of its own witness by otherwise inadmissible hearsay is improper by showing, for example, that it was genuinely surprised by the witness's testimony or that an effective limiting instruction was given. Hunt, 324 N.C. at 350, 324 S.E.2d at 758. When these or other indicia of the State's good faith are not present, then the impeachment of the witness is not likely an appropriate use of Rule 607. Id. at 349-50, 378 S.E.2d at 758; State v. Riccard, 142 N.C. App. 298, 304, 542 S.E.2d 320, 324 (2001); State v. Price, 118 N.C. App. 212, 216, 454 S.E.2d 820, 822-23, disc. review denied, 341 N.C. 423, 461 S.E.2d 766 (1995).
In the case sub judice, the State does not assert any of the usual good faith defenses, but it does articulate a number of grounds in an attempt to support the admissibility of this statement. We, however, need only address one of these: assuming arguendo that the State called Nathaniel Burch as a device for putting inadmissible hearsay before the jury, any error was cured when the defense called Nathaniel Burch to give testimony on the same issues and events addressed by his purported confession. "Any error in admitting such [prior inconsistent] statements prematurely may be cured if the person who made the statements later testifies in such a way as to render the statements admissible." State v. Miller, 137 N.C. App. 450, 456, 528 S.E.2d 626, 630 (2000) (citing 1 Kenneth S. Broun, Brandis Broun on North Carolina Evidence, § 159, at 511 (6th ed. 2004)). Nathaniel Burch's testimony on defendants' behalf was inconsistent with his statement to police, and therefore his statement would have been admissible for the limited purpose of impeaching the testimony that he later gave for the defense. Thus, this assignment of error is also overruled.
On a related issue, defendants assign error to the fact that Detective Williams testified concerning Mr. Burch's statements to him. The substance of his testimony was simply that Mr. Burch had given the statement previously read. The State argues, and we agree, that this issue is similar to State v. Westall, 116 N.C. App. 534, 546, 449 S.E.2d 24, 31, disc. review denied, 338 N.C. 671, 453 S.E.2d 185 (1994). In that case, we allowed a police officer to testify concerning the substance of a witness's statement even though the witness contended that his statement was not true. Thus, the evidence from Detective Williams was admissible for the purposes of impeaching Nathaniel Burch. See N.C. Gen. Stat. § 8C-1, Rule 613 (2003). This assignment of error is also overruled.
VI.
We now consider whether the trial court erred in admitting, as substantive evidence, the out-of-court statements that Mr. Funderburk made to the police following his apprehension. The state contends that the statements of Mr. Funderburk are not hearsay because they qualify under the exception for a past recollection recorded. N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003). We disagree.
When Mr. Funderburk was called to the stand, he testified that he was getting "messed up" at the trailer with defendants on 1 June 2001. He stated that he could not recall anything else that happened until he was apprehended by the police near the scene of the car accident. He recalled giving several statements to law enforcement, but he never testified that he once had actual knowledge of the events of 1 June 2001. Because of his lack of memory at trial, the State contends that his prior written statements were then admissible as a past recollection recorded under Rule 803(5).
N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003) allows prior written statements to be used as evidence, notwithstanding the fact that it would otherwise be inadmissible hearsay, when the "witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately. . . ." It is clear that Mr. Funderburk testified he did not recall the key events of that evening; but this alone is not sufficient under Rule 803(5). The statement must also be "shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly." N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003). Without some kind of circumstantial acknowledgment by the witness as to the veracity of the past recollection recorded, such a statement fails to comply with Rule 803(5) and thus may not be admitted into evidence. In State v. Spinks, we held that a witness's statement was not properly admitted as a past recollection recorded where the witness's own testimony "makes it clear that not only does she not recall the matters in the statement, she disagrees with some of the statements found therein[,] . . . [it appears] that she did not write the statement herself, and that she did not read it before signing it." 136 N.C. App. 153, 159, 523 S.E.2d 129, 133 (1999).
The statement in Spinks is very similar to the statements of Mr. Funderburk in the case sub judice. Although the evidence indicates that Mr. Funderburk wrote the statements in his own hand, he does not ever testify at trial that he had recorded what he actually recalled and that it constituted a correct reflection of his knowledge at the time. Indeed, the two statements contradict one another as to some aspects of that evening's events, which suggests that they could not both reflect a fresh memory and correct knowledge as required by the rule. The record is devoid of any evidence that Mr. Funderburk made his statements at a time when the facts were truly fresh in his memory; that he actually recalled the events when he wrote the statements; or even that he had then intended to give an accurate account of the evening's events. Accordingly, we agree with defendants that the statements of Mr. Funderburk were inadmissible.
In concluding that it was error for the trial court to allow the State to have Mr. Funderburk read his prior statements, we further conclude that it was error for the trial court to allow the actual documents to be admitted into evidence as exhibits upon the State's own motion and over defendants' objections. The plain language of Rule 803(5) contains the following provision: "If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." N.C. Gen. Stat. § 8C-1, Rule 803(5) (2003). Here, only defendants could have requested that these statements of Mr. Funderburk be admitted as exhibits. Additionally, considering that we agree with defendants that is was error for the trial court to admit the statements made by Mr. Funderburk, we also agree that it was error to allow Detective Williams to testify in corroboration as to what Mr. Funderburk said. It is axiomatic that inadmissible evidence cannot be legitimately corroborated.
As a result of the admission of Mr. Funderburk's statements, we must determine the prejudicial effect on defendants' trial. We cannot conclude that defendants suffered any prejudice. In this case, the testimony of Mr. Velos established that he was robbed when five black males broke into his home. He then positively identified two defendants as the men who robbed him. The testimony of Ms. Gaddy established that defendants, Mr. Funderburk, and Nathaniel Burch left on the evening of 1 June 2001 and did not return to South Carolina until the next day. When they did, they admitted to having robbed "some Mexicans" in Monroe. They also admitted having a wreck while being pursued by the police. The police apprehended Mr. Funderburk near the scene of the wreck from which five black males had fled. The red Ford Escort, which belonged to Ms. Hickmon, contained items that Mr. Velos was able to identify as items stolen by the assailants. Thus, even absent Mr. Funderburk's statements, there was substantial evidence the jury could have relied on in finding all defendants guilty.
VII.
We do, however, believe that with the Funderburk statement excluded it was error for the trial court to deny defendant Hickmon's motion to dismiss the charge of felonious operation of a motor vehicle to elude arrest in violation of N.C. Gen. Stat. § 20-141.5(a) and (b) (2005). In reviewing a criminal defendant's motion to dismiss, we examine whether there is substantial evidence of the crime and of defendant's identity as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion." State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002) (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)). In evaluating the motion, the Court must consider the evidence in the light most favorable to the State, give the State every reasonable inference, and resolve any evidentiary contradictions in the State's favor. Robinson, 355 N.C. at 336, 561 S.E.2d at 256 (internal quotations omitted).
In the instant case, we have ruled Mr. Funderburk's testimony inadmissible and also restricted the use of Nathaniel Burch's testimony to non-substantive uses. There was no direct evidence introduced that defendant Hickmon was operating the vehicle at the time it was being pursued by Trooper Franze, and the trooper did not identify defendant Hickmon as the driver. As noted by defendant, Ms. Gaddy only testified that defendant Hickmon was the driver when the five men left the trailer, but she did not testify to any statements from the conversation held the next day that he had been driving when the police were pursuing them. Given the gap of several hours and an apparent robbery between the time she saw defendants leave and when they allegedly fled from law enforcement, it cannot be said that there was substantial evidence defendant Hickmon was operating the vehicle at the time this offense occurred. Accordingly, we reverse the trial court's ruling with respect to this conviction.
This conviction, however, was consolidated for sentencing — along with his convictions for first-degree burglary and possession of a firearm by a felon — with one of defendant Hickmon's armed robbery convictions.
Defendant Hickmon also argues that the trial court erred in failing to dismiss the charge of possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1 (Supp. 2004). Under the standard described above, however, there was substantial evidence for the issue to go to the jury because Mr. Velos identified defendant Hickmon as one of the intruders and stated that he was in possession of a firearm. Thus, the trial court properly allowed this issue to go to the jury.
VIII.
Finally, we consider defendants' remaining assignments of error, which relate to the close of trial. All three defendants allege that the jury instructions were fatally flawed. Although there was no objection to the instructions below, defendants have invoked plain error review of the jury instructions pursuant to North Carolina Rule of Appellate Procedure 10(c)(4). On appeal, defendants contend that the jury instructions could have been understood by the jury to require conviction of all the defendants on a certain charge if the jury decided to convict at least one of the defendants. Similarly, defendants contend that the instructions could have been interpreted to require the jury to convict each defendant of all four armed robbery charges should it choose to convict on at least one of these charges. The fact that the instructions lacked the phrase present in the case of State v. Barnes, 91 N.C. App. 484, 491, 372 S.E.2d 352 (1988) (holding that the jury was not misled because the instructions included a requirement that the defendants be judged "completely separately and absolutely independently" of each other), aff'd as modified on other grounds, 324 N.C. 539, 380 S.E.2d 118 (1989), does not mean that the instructions in the instant case were thereby flawed.
Jury instructions must be considered as a whole and not in isolated fragments. State v. Anderson, 350 N.C. 152, 179, 513 S.E.2d 296, 312, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999). A review of the jury instructions used in the instant case does not lead us to conclude that they could reasonably have been interpreted in the manner suggested by defendants. Specifically, the trial court's instructions stated that "the State has the burden of proving the identity of each defendant as the perpetrator beyond a reasonable doubt" and that the jurors "must be satisfied beyond a reasonable doubt that each defendant was the perpetrator of the crime charged." The instructions also stated that the jury must find beyond a reasonable doubt each element of the crime charged. Moreover, as noted by the State, there was a separate verdict sheet for each defendant and for each offense. Accordingly, we find no error in the trial court's jury instructions.
IX.
Finally, defendant Peguse argues that it was error for the trial court to sentence him as a Level II offender. The trial transcript clearly indicates that defendant, through counsel, stipulated to having a prior record level of two. As the State correctly notes, a stipulation to prior convictions through defense counsel will suffice to establish a defendant's offender level. See State v. Alexander, ___ N.C. ___, ___, 616 S.E.2d 914, 918 (2005) (Where "defense counsel's statement to the trial court constituted a stipulation of defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14(f)(1) . . . defendant's sentence was imposed based upon a proper finding of defendant's prior record level."); State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) ("statements made by the attorney representing defendant in the present case may reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet"); see also N.C. Gen. Stat. § 15A-1340.14(f) (2005).
X.
In conclusion, although it was error for the trial court to admit the prior statements of Mr. James Funderburk as substantive evidence and Detective Williams's testimony concerning those statements, we do not find this error to have been prejudicial. We do, however, vacate defendant Hickmon's conviction for felonious operation of a vehicle to evade arrest.
No error in part; reversed in part.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).