Opinion
No. COA12–47.
2012-08-7
STATE of North Carolina v. Dwayne Devon PENNIX.
Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State. James H. Monroe, for defendant-appellant.
Appeal by defendant from judgment entered 5 August 2011 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 24 May 2012. Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State. James H. Monroe, for defendant-appellant.
CALABRIA, Judge.
Dwayne Devon Pennix (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of attempted robbery with a dangerous weapon, assault inflicting serious injury, and attaining the status of a violent habitual felon. We find no error.
I. Background
In the early morning hours of 15 January 2011, Marshall James (“James”), a maintenance man for the Heritage House Apartments in Greensboro, North Carolina (“Heritage House”) was cleaning an apartment in order to prepare it for new tenants. James was carrying bags of trash from the apartment to the dumpsters when he noticed a vehicle in the Heritage House parking lot with its engine running. Defendant was the only occupant of the vehicle. As James was returning to the apartment, defendant exited the vehicle and engaged in a conversation with James.
After a brief exchange, defendant and James shook hands. Defendant grabbed James and put a box cutter to his throat. He then forced James into the passenger seat of his vehicle. At this point, defendant began to drive in order to conceal the vehicle from view. Defendant continued holding James at knifepoint and drove his vehicle approximately twenty-five feet before parking.
Defendant demanded money from James, who then removed a hundred dollar bill from his pocket. James and defendant then engaged in a physical altercation over the bill. During the struggle, defendant gained possession of the bill. James continued to fight with defendant until he eventually gained possession of the box cutter. James then proceeded to attack defendant, slashing him with the box cutter several times.
When defendant attempted to flee, James grabbed him in order to keep him from escaping. However, defendant managed to slide out of his pants and shoes. James then struck defendant twice with the vehicle, gathered defendant's clothes, car keys, and cell phone, and went to his apartment to contact law enforcement.
Several officers from the Greensboro Police Department (“GPD”) responded to James's call. When they arrived at Heritage House, they found defendant lying on the ground outside. There were blood stains in the parking lot and on both the inside and outside of defendant's vehicle. Crime scene investigators also found multiple small pieces of paper, which were consistent with a hundred dollar bill, in the back seat of the vehicle. The remainder of the bill was never found.
Officers found James in his apartment, holding a bloody towel to his forearm. Defendant's bloody clothes were in James's bathroom. A bloodied box cutter and defendant's car keys were also retrieved from James's apartment. James had lacerations on his back, neck, and forearm, as well as bite marks on his chest and shoulder. James was able to give law enforcement a statement regarding the altercation before being transported to the hospital, where he received eighteen stitches for his various injuries.
GPD Officer M.R. McPhatter (“Officer McPhatter”) arrived at Heritage House around 6:00 a.m. He briefly interviewed defendant in the Heritage House parking lot. Defendant disclosed his name, but was unable to give Officer McPhatter his date of birth. Officer McPhatter felt defendant was “obviously in some pain” and “really out of it.” Defendant was then transported to the hospital for medical attention.
GPD Detective Holly Pate (“Detective Pate”) received a call regarding the incident at 6:30 a.m., and arrived at the hospital to interview James and defendant between 7:00 and 7:30 a.m. Detective Pate interviewed James while defendant was interviewed by GPD Detective Matt Brown (“Detective Brown”). Detective Brown was the only officer to interview defendant.
During the interview with Detective Brown, defendant gave a statement regarding his version of the events which occurred in the Heritage House parking lot. Defendant claimed that he had gone to Heritage House to buy marijuana at approximately 5:15 a.m. James entered defendant's vehicle and agreed to sell him approximately ten dollars worth of marijuana. James then brandished a knife and demanded the money. A struggle ensued in which defendant was cut several times. James struck defendant with the vehicle as he drove away.
Defendant sustained lacerations on his face and back, as well as abrasions to his shoulders, back, and knees which were described by Officer McPhatter as “road rash.” Defendant received stitches at the hospital for a laceration which extended from his ear to his mouth.
Defendant was subsequently indicted for assault with a deadly weapon inflicting serious injury, second degree kidnapping, robbery with a dangerous weapon, and attaining the status of a violent habitual felon. Beginning 1 August 2011, defendant was tried by a jury in Guilford County Superior Court. Defendant was present for jury selection and for the first day of trial. However, he did not appear for the remainder of the trial, despite intending to testify on his own behalf. When defendant failed to appear, defense counsel attempted to admit into evidence defendant's statement to Detective Brown. The trial court sustained the State's objection to defendant's statement because it constituted inadmissible hearsay.
On 3 August 2011, the jury returned verdicts finding defendant guilty of assault inflicting serious injury and attempted robbery with a dangerous weapon. The jury also found defendant not guilty of second degree kidnapping. Defendant was then tried and convicted by the same jury for attaining the status of a violent habitual felon. The trial court sentenced defendant to life imprisonment in the North Carolina Department of Correction without the possibility of parole. Defendant appeals.
II. Defendant's Statement to Law Enforcement
Defendant argues that the trial court erred by refusing to allow him to introduce his statement to Detective Brown into evidence. Specifically, defendant contends that his statement to Detective Brown should have been admitted under the present sense impression and excited utterance exceptions to the hearsay rule. We disagree.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen.Stat. § 8C–1, Rule 801(c) (2011). “Hearsay is not admissible except as provided by statute” or by the North Carolina Rules of Evidence. N.C. Gen.Stat. § 8C–1, Rule 802 (2011). Rule 803 of the North Carolina Rules of Evidence provides several exceptions to the hearsay rule. SeeN.C. Gen.Stat. § 8C–1, Rule 803 (2011). The trial court's determination of whether an out-of-court statement is admissible pursuant to Rule 803 is reviewed de novo. State v. Wilson, 197 N.C.App. 154, 159, 676 S.E.2d 512, 515 (2009). A. Present Sense Impression
Defendant first contends that his statement constituted a present sense impression under Rule 803(1). Rule 803(1) defines a present sense impression as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” N.C. Gen.Stat. § 8C–1, Rule 803(1) (2011). “The basis of the present sense impression exception is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997).
In the instant case, defendant was initially briefly questioned when he was found at Heritage House. During his exchange with Officer McPhatter, defendant disclosed only his name. Defendant did not provide law enforcement with a statement about the altercation itself until after he was transported to the hospital and received treatment for his injuries.
Detective Pate arrived at the hospital between 7:00 and 7:30 a.m., and proceeded to look in on both defendant and James before the interviews were conducted. While there is no precise timestamp on defendant's statement, his interview with Detective Brown commenced some time shortly after Detective Pate arrived at the hospital. The altercation between defendant and James occurred around 5:15 a.m. Thus, defendant's official statement was provided to law enforcement approximately two hours after the altercation occurred.
Defendant contends that this passage of time does not preclude his statement from qualifying as a present sense impression. In support of this argument, he cites State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990) and State v. Clark, 128 N.C.App. 722, 496 S.E.2d 604 (1998). In Cummings, the victim made a statement to her mother that the defendant had kicked her out of his house. 326 N.C. at 314, 389 S.E.2d at 75. The Court held that since the statement was made after the victim drove from Willow Springs to her mother's home in Raleigh, it was in “close proximity to the event,” and thus admissible as a present sense impression. Id. The Court in Clark found that the time it took defendant's mother to walk to the house next door was “sufficiently close in time to her perception of [defendant's] statements to be considered ‘immediately thereafter[.]’ “ 128 N.C.App. at 725, 496 S.E.2d at 606 (1998).
In the instant case, defendant is attempting to admit his own hearsay statement made approximately two hours after the event. This passage of time between the altercation and his official statement to Detective Brown provided a sufficient opportunity for defendant to fabricate a story about the events leading up to and including the altercation. Defendant had reason to fabricate a version of events, as he had just been involved in a violent altercation which required medical attention for both participants, and defendant had a prior violent criminal record. While there is no indication of precisely how much time passed between the altercation and defendant's statement to Detective Brown, the timing of the statement was neither “while perceiving the event or condition” nor “immediately thereafter” within the context of Rule 803(1). Thus, the trial court properly concluded that defendant's statement did not fall within the present sense impression exception to the hearsay rule. This argument is overruled. B. Excited Utterance
Defendant argues in the alternative that his statement to Detective Brown also qualifies as an exception to the hearsay rule as an excited utterance under Rule 803(2). Rule 803(2) defines an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen.Stat. § 8C–1, Rule 803(2) (2011).
For an out-of-court statement to qualify as an excited utterance, “there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). “If ‘the facts indicate a lapse of time sufficient to manufacture a statement and that the statement lacked spontaneity,’ the statement is inadmissible under this exception.” State v. Riley, 154 N.C.App. 692, 695, 572 S.E.2d 857, 859 (2002) (quoting State v. Sidberry, 337 N.C. 779, 783, 448 S.E.2d 798, 801 (1994)).
In the instant case, defendant did not divulge any information regarding the events of the altercation when law enforcement first arrived at Heritage House. He only gave his statement alleging he was the victim of a robbery after he was transported to the hospital and questioned by Detective Brown, approximately two hours after the altercation occurred. Based on these facts, “defendant's statement lacked the spontaneity necessary to show that it was made free of reflection or fabrication.” Id.; see also State v. Fullwood, 323 N.C. 371, 387, 373 S.E.2d 518, 528 (1988), sentence vacated on other grounds,494 U.S. 1022, 108 L.Ed.2d 602 (1990)(no excited utterance when statement was made to a law enforcement officer in the emergency room over an hour after the crime had been discovered); State v. Safrit, 145 N.C.App. 541, 547–48, 551 S.E .2d 516, 521 (2001) (lapse of twenty-five minutes sufficient to show that the defendant's statement to his sister was not spontaneous). Accordingly, the trial court properly concluded that defendant's statement did not fall within the excited utterance exception to the hearsay rule. This argument is overruled.
III. Jury Instructions
Defendant argues that the trial court erred by instructing the jury on the lesser included offenses of attempted robbery with a dangerous weapon and attempted common law robbery to the jury. We disagree.
Initially, we note that the parties disagree on whether this issue was properly preserved at trial. During the charge conference, the State requested that the trial court instruct the jury on these lesser included offenses. Defense counsel did not explicitly object to the State's request, but instead stated that he did not want the jury instructed on those offenses. However, it is unnecessary to determine if this issue was properly preserved because even assuming, arguendo, that the issue was preserved, defendant's argument is without merit.
A jury instruction is proper if it is based upon some reasonable view of the evidence. State v. Garner, 330 N.C. 273, 295, 410 S .E.2d 861, 874 (1991). The trial court must submit instruction on a lesser included offense to the jury “when, and only when, there is evidence from which the jury can find that a defendant committed the lesser-included offense.” State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 427 (1981). However, “when all the evidence tends to show that defendant committed the crime charged ... and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense.” Id. A trial court's decisions regarding jury instructions are subject to de novo review. State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).
“An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.” State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987). Similarly, attempted common law robbery occurs when an individual, with the specific intent to commit common law robbery, does “a direct but ineffectual act” toward the robbery's commission. State v. Whitaker, 307 N.C. 115, 118, 296 S.E.2d 273, 274 (1982). In the instant case, defendant contends that the evidence indicated that he successfully deprived James of the hundred dollar bill, such that his offense was a completed, rather than an attempted, robbery.
However, this Court has previously held that the taking element of a robbery is not yet completed when there is a continuing struggle over the property:
To constitute robbery, the element of taking is not complete until the thief succeeds in removing the stolen property from the possession of the victim. Property is in the legal possession of a person if it is under the protection of that person. Thus, just because a thief has physically taken an item does not mean that its rightful owner no longer has possession of it.
State v. Porter, 198 N.C.App. 183, 186–87, 679 S.E.2d 167, 170 (2009)(internal quotations and citations omitted). The evidence presented at trial suggests that the hundred dollar bill changed hands between James and defendant during the altercation. Nonetheless, the only evidence of the bill itself that remained after the altercation was the scraps of paper discovered in the back seat of defendant's vehicle. Since the whereabouts of the remainder of the bill were unknown, the evidence at trial did not definitively demonstrate that defendant removed it from James's possession and completed the robbery. See Porter, 198 N.C.App. at 186–87, 679 S.E.2d at 170. Consequently, the trial court properly instructed the jury on the lesser included offenses of attempted robbery with a dangerous weapon and attempted common law robbery. This argument is overruled.
IV. Conclusion
The timing of defendant's statement to Detective Brown was too long after his altercation with James to constitute either a present sense impression under Rule 803(1) or an excited utterance under Rule 803(2). As a result, the trial court properly excluded defendant's statement at trial. The evidence supported the instructions on the lesser included offenses of attempted armed robbery and attempted common law robbery. Thus, the trial court did not err in instructing the jury on those lesser charges. Defendant received a fair trial, free from error.
No error. Judges STROUD and McCULLOUGH concur.
Report per Rule 30(e).