Opinion
No. COA15–215.
01-05-2016
STATE of North Carolina, v. Daquain Rashad RICHARDSON, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State. Leslie Rawls, for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State.
Leslie Rawls, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 6 March 2014 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 25 August 2015.
GEER, Judge.
Defendant Daquain Rashad Richardson appeals his conviction of first degree murder under the felony murder rule. He argues primarily that the trial court committed plain error by allowing the State to present evidence of his co-defendants' guilty pleas. However, the authority upon which defendant relies applies only when a co-defendant's guilty plea is admitted standing alone, without the co-defendant testifying. That authority is inapplicable when, as here, the co-defendants testified in detail about the crimes they participated in, as well as defendant's involvement. Because we find defendant's other argument also unpersuasive, we hold that defendant received a trial free of prejudicial error.
Facts
The State's evidence tended to show the following facts. In the early morning hours of 24 April 2012, Anthony “Mook” Deans, Pedro “Dro” Bullock, and defendant acquired several guns and a car in Rocky Mount, North Carolina, for the purpose of robbing the residence of Danny Norris at 4401 Waterbury Road in Raleigh, North Carolina. As a former roommate of Norris, Deans was familiar with the residence and convinced defendant and Bullock that robbing a supposed large amount of cash inside would be an “easy lick.” Deans was already suspected of stealing a safe from the residence on a previous occasion. Once they all agreed to commit the robbery, Deans also convinced Tyson Davis to drive them from Rocky Mount to Raleigh.
While traveling to 4401 Waterbury Road, defendant, Deans, and Bullock each took one of the guns. When they arrived, they instructed Davis to wait in the car for them, and they approached the house where Norris, Brittany Batts, Ashley Hinshaw, and Nickshon Wiggins were sleeping inside. Deans carried an AK–47 assault rifle, Bullock carried a handgun, and defendant carried an SKS rifle. After entering the residence through an unlocked door, the three men moved upstairs to search the bedrooms for money. Bullock entered a vacant bedroom at first, but then continued his search downstairs. Deans entered his former room where Wiggins and Hinshaw slept. Both awoke to see Deans standing in the doorway, prompting Hinshaw to hide in between the bed and the wall. Deans then ordered Wiggins to stay on the bed while he searched the dresser for money.
At the same time, defendant entered the bedroom where Norris and Batts were sleeping. Batts testified that she awoke to see “guns pointed at the door” and then heard someone ask Norris where his brother kept the money. Norris responded that he did not know where the money was and said something to the effect of “you guys took the safe.” To Batts, it sounded as if Norris knew the assailants. Once defendant, Deans, and Bullock were all in the room where Norris and Batts were sleeping, Deans emptied Batts' purse in the hallway and then moved to the other bedroom to continue searching for money. Defendant, however, continued to search the bedroom where Norris and Batts had been sleeping. Shortly thereafter, Batts heard a gunshot and Norris fall to the floor beside her. Norris later died from a gunshot wound to the left side of his face.
While waiting in the getaway car, Davis heard the shot, as did Deans and Bullock who were still inside the house. Davis subsequently observed Bullock run out of the house, followed by defendant. Before exiting the house, Deans entered Norris' bedroom, where he saw a bloody Norris sliding off the bed onto the floor. He approached the closet where Batts was hiding, and Batts screamed that she had not seen anyone's face. She then heard the sound of a gun jamming. At that point, Deans left the house and returned to the car. According to Davis' testimony, once in the car, Deans said he should have killed one of the women inside. Defendant agreed with Deans by saying, “I mean, she could have seen your face.” Defendant then acknowledged that he had shot Norris because Norris identified Deans as “Mook” and because Norris was “about to go at him.” An argument then broke out in the vehicle and Deans confronted defendant about the shooting, expressing his fear of being implicated in the murder because he was already suspected in the robbery of the safe. Defendant promised Deans that he would not let Deans “go down for something [he] did.”
Once the four men returned to Rocky Mount, they hid the guns at Lakisha Spearman's house. They were apprehended by the Rocky Mount police that afternoon. Defendant denied any involvement in the murder and was released. However, Davis eventually confessed to his involvement, and the Rocky Mount Police obtained arrest warrants for defendant, Deans, and Bullock. The authorities later discovered the AK–47 and SKS rifle in a trashcan outside Spearman's house and determined that the AK–47, the gun used by Deans during the robbery, was jammed with a live round of ammunition in the firing mechanism. Neil Morin, a forensic scientist with the State Crime Lab, determined that the SKS rifle, the weapon in defendant's possession as he entered the house, matched a spent shell casing and projectile found at the murder scene.
Davis, Deans, and Bullock agreed to plead guilty to lesser offenses in exchange for truthful testimony at defendant's trial. As part of the State's evidence on direct examination, all three men testified to the events that occurred on the night of the robbery, including the murder of Norris. They also, without any objection, each testified regarding the nature of their plea arrangements, and, on cross-examination, defendant again asked each co-defendant about their plea arrangements.
Defendant's counsel asked Davis: “And the reason you're here testifying today is hopefully to get some help in those charges you're facing?” He similarly asked Bullock: “And you're hoping that being here giving this testimony against [defendant] will do something for you?” Finally, defendant's counsel noted when questioning Deans that the robbery charge brought against him for stealing the safe “got dismissed as part of this plea arrangement, right?”
The jury found defendant guilty of first degree murder under the felony murder rule, and defendant was sentenced to life imprisonment without parole. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court committed plain error by allowing the State to present evidence of the three co-defendants' guilty pleas on direct examination. He argues that the only legitimate purpose for the State to offer this evidence was to show defendant's guilt, thus prejudicing him at trial because, according to defendant, there was no other definitive evidence linking him to the murder of Norris.
Since defendant did not object to the testimony at trial, we review for plain error.
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).
Our Supreme Court has established a “clear rule” that “neither a conviction, nor a guilty plea, nor a plea of nolo contendere by one defendant is competent as evidence of the guilt of a codefendant on the same charges.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 230 (1979). “The rationale underlying this ‘clear rule’ is twofold.” State v. Rothwell, 308 N.C. 782, 785, 303 S.E.2d 798, 801 (1983). The first is that “the introduction of [a guilty] plea by a co-defendant, when he or she has not testified at defendant's trial, would ... deprive the defendant of his constitutional right of confrontation and cross-examination.” Id. at 785–86, 303 S.E.2d at 801.
When a co-defendant does testify at trial, the other rationale for this “clear rule” directs that “a defendant's guilt must be determined solely on the basis of the evidence presented against him.” Id. at 785, 303 S.E.2d at 801. Thus,
[w]e must determine ... whether the two co-defendants' testimony that they pleaded guilty to offenses growing out of the same events for which defendant was being tried was introduced for a legitimate purpose or whether it was erroneously admitted because its introduction violates the rationale that a defendant's guilt must be determined solely on the basis of the evidence presented against him. If such testimony was erroneously admitted, we must then examine the events at trial to decide whether this error was prejudicial to defendant.
Id. at 786–87, 303 S.E.2d at 801 (first emphasis added).
In Rothwell, our Supreme Court also held that if a legitimate purpose exists for introducing evidence of a co-defendants' guilt, then there is no error in admitting evidence of the co-defendants' guilty plea. Id. at 786, 303 S.E.2d at 801. For example, in State v. Potter, 295 N.C. 126, 136, 244 S.E.2d 397, 404 (1978), the Court held that a legitimate purpose existed for the State to ask a co-defendant about his guilty plea on re-direct examination when it was relevant to bolster the co-defendant's credibility after an attack on cross-examination. However, even if evidence of a co-defendant's guilt is admitted erroneously “because a legitimate purpose ha[s] not yet been established for its introduction at trial[,]” the evidence is not prejudicial to the defendant if the codefendant also testifies “to facts which clearly disclose[ ] his own participation in the crimes for which defendant [is] being tried .” Rothwell, 308 N.C. at 787, 787–88, 303 S.E.2d at 802. The co-defendant's guilt is then obvious to the jury regardless of the evidence of the guilty plea. Id. at 788, 303 S.E.2d at 802.
Notwithstanding Rothwell, defendant argues this Court is bound to a hard and fast reading of the rule that a co-defendant's guilty plea “is not competent evidence against the defendant on trial, and ... the record of [a] codefendant's prior conviction or plea is not admissible ....“ State v. Jackson, 270 N.C. 773, 775, 155 S.E.2d 236, 237 (1967). In support of this contention, defendant also cites to State v. Kerley, 246 N.C. 157, 162, 97 S.E.2d 876, 880 (1957), in which our Supreme Court ordered a new trial when the trial court denied the defendant's request for a limiting instruction that the co-defendant's plea was not to be considered as evidence of the defendant's guilt. However, in contrast to this case, in both Jackson and Kerley, the co-defendants did not testify at the defendants' trials. Both cases are therefore inapplicable here. As noted in Rothwell, “[t]his is not a situation, as was the case in State v. Kerley ... where the prosecutor used as evidence the non-testifying co-defendant's guilty plea to support his argument to the jury that the defendant on trial was also guilty.” Rothwell, 308 N.C. at 788, 303 S.E.2d at 802.
Rothwell is controlling in this case. In addition to testifying about their guilty pleas and plea arrangements, Deans, Davis, and Bullock all testified regarding their own participation in the crime and presented a wealth of evidence against defendant. They testified at length about defendant's involvement in the robbery, the weapon defendant carried into the house with him to commit the robbery, and defendant's admission after the robbery that he had shot Norris and would not let Deans “go down for something [he] did.” The testimony of Hinshaw, Batts, and Spearman further corroborated the testimony of each co-defendant.
Consequently, there was ample evidence—other than that of the codefendants' guilty pleas—presented against defendant at trial. Much like the testimony elicited from the co-defendants in Rothwell, there was no prejudicial error in admitting the co-defendants' testimony regarding their guilty pleas because the codefendants' guilt was obvious from their testimony about the robbery. Furthermore, there was much more evidence presented regarding defendant's guilt than the sole admission of the co-defendants' pleas.
We further note that defense counsel, who had not objected to the testimony on direct examination, also ultimately elicited testimony regarding the guilty pleas on cross-examination of each co-defendant. Presumably, defense counsel's purpose was to challenge each co-defendant's credibility, as evidenced by defense counsel posing questions to each to the effect of: “And the reason you're here testifying today is hopefully to get some help in those charges you're facing?” There can be no plain error in the admission of each co-defendant's guilty plea when defendant himself strategically used the guilty pleas at trial for the purpose of impeachment. Accordingly, we hold that no plain error occurred in admitting the co-defendants' testimony regarding their respective guilty pleas.
II
Defendant next argues that the trial court committed plain error by instructing the jury that it could find defendant guilty of felony murder upon finding defendant guilty of the underlying felony of either robbery or attempted robbery, even though, defendant argues, there was no evidence to support instructing the jury on the completed offense because nothing was taken from Norris' home on the night of his murder. The jury instructions read, “for you to find the defendant guilty of first degree murder under the first degree felony murder rule, the State must prove ... [f]irst, that the defendant, acting either by himself or together with [co-defendants], committed or attempted to commit robbery with a firearm.” (Emphasis added.) The court continued:
So I charge, that if you find from the evidence ... that ... the defendant, acting either by himself or together with [co-defendants], intended to rob Daniel Norris. And that in furtherance of this intent, ... that this was an act designed to bring about the robbery, which in the ordinary course of things would have resulted in robbery had it not been stopped or thwarted, the defendant, ... shot Daniel Norris ... and that the ... defendant's act was a proximate cause of Daniel Norris's death, it would be your duty to return a verdict of guilty of first degree murder under the felony murder rule.
We acknowledge the well-established rule that it is error for a trial judge to “ ‘give instructions to the jury which are not supported by the evidence produced at the trial.’ “ State v. Smith, 206 N.C.App. 404, 416, 696 S.E.2d 904, 912 (2010) (quoting State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973)). Here, the crime and jury instruction at issue is felony murder predicated on the felony of robbery.
First degree felony murder is defined as being “committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon ....“ N.C. Gen.Stat. § 14–17(a) (2013). However, “[c]ompletion of the robbery or other felony is not required to sustain a conviction under the felony murder rule.” State v. Hopper, 292 N.C. 580, 590, 234 S.E.2d 580, 586 (1977).
Furthermore, it is well understood in North Carolina that the crime of robbery with a dangerous weapon is complete upon an attempt to take property “with the use or threatened use of any firearms,” even before any actual taking or removal of property of another occurs. N.C. Gen.Stat. § 14–87(a) (2013); State v. Black, 286 N.C. 191, 194, 209 S.E.2d 458, 460 (1974) (“[U]nder G.S. 14–87 the offense is complete if there is an attempt to take property by use of firearms or other dangerous weapon.”); State v. Curry, 203 N . C.App. 375, 394, 692 S.E.2d 129, 143 (2010) (“[T]he crime of robbery with a dangerous weapon was complete even before any actual removal of the pocketbook.”). Consequently, the trial court properly instructed the jury on robbery as a predicate felony.
Defendant, however, points to the principle that the Court must grant a new trial when the trial court instructs on alternative theories, one of which is not supported by the evidence. See State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (mandating new trial when trial court submitted felony murder charge to jury on two alternative theories—breaking and entering and robbery—and breaking and entering was not supported by evidence; holding that jury could have found defendant guilty on improperly submitted breaking and entering predicate felony). However, it is well established that “[w]hen a jury finds the facts necessary to constitute one offense, it also inescapably finds the facts necessary to constitute all lesser-included offenses of that offense .” State v. Squires, 357 N.C. 529, 536, 591 S.E.2d 837, 842 (2003). Thus, even where a situation arises in which some jurors may have found a completed offense while others found an attempted offense, “this discrepancy [will] not change the result.” Id.
In this case, therefore, even if the predicate felony of robbery was not supported by the evidence, because attempted armed robbery is a lesser-included offense of a completed armed robbery, it is inconsequential which crime was the basis of the jury's verdict. See id. (“Attempted sale of cocaine is a lesser-included offense of the sale of cocaine. Therefore, any member of the jury who found the elements constituting a sale of cocaine must necessarily have found the elements of attempted sale of cocaine. Since the evidence at trial was sufficient to prove attempted sale of cocaine and since all jurors necessarily found an attempted sale, a determination of whether the evidence supported a completed sale of cocaine is not necessary to resolve this issue. We hold that the trial court's submission to the jury of ‘sale of cocaine’ as a predicate felony to support defendant's felony murder conviction for [victim's] death was not error.”). As a result, we find that the trial court's jury instructions did not prejudice defendant, and no plain error occurred.
NO ERROR.
Judges BRYANT and TYSON concur.
Report per Rule 30(e).