Opinion
No. COA10-801
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 25 September 2009 by Judge Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Phillip K. Woods and Special Counsel Jennifer L. Epperson, for the State. Irving Joyner, for defendant-appellant.
Wake County No. 08 CRS 70895.
Byron Sanders ("defendant") appeals from a judgment entered upon jury verdicts finding him guilty of robbery with a dangerous weapon and possession of a firearm by a felon. We find no prejudicial error at trial, but remand for resentencing.
I. Background
On 23 September 2008, Broderick Randall ("Randall") and Jeremy Jenkins ("Jenkins") drove to a Food Lion grocery store in Raleigh, North Carolina in Jenkins' Lincoln Continental ("the Lincoln"). Jenkins parked the Lincoln, exited, and began to walk toward the store, while Randall remained with the vehicle. As Jenkins walked into the store, he passed defendant, who attempted to speak to him. However, Jenkins was on the phone and ignored defendant.
While Randall was waiting for Jenkins, defendant approached him and commented on Randall's gold necklace. Defendant then placed a gun into Randall's side. In response, Randall attempted to wrestle the gun away from defendant. During the struggle, the gun discharged and Randall was shot in the hand. After being shot, Randall fell to the ground. Following the confrontation, Randall's gold chain and his cell phone were no longer in his possession.
When Jenkins heard the shot, he returned to the Lincoln to aid Randall. Defendant initially began to flee on foot, but then returned to the Lincoln. As Jenkins attempted to enter the Lincoln on the passenger side, defendant entered the driver side, pointed his gun at Jenkins, and ordered him to get out of the car. Jenkins complied and defendant drove the Lincoln away from the Food Lion. Randall sought help from a Food Lion employee.
Subsequently, Officer Brian Coble ("Officer Coble") of the Raleigh Police Department ("RPD") responded to the robbery. Jenkins provided Officer Coble with a description of the man who had taken his vehicle and shot Randall, and this description was relayed to other law enforcement officers. Emergency medical personnel also arrived at the Food Lion and transported Randall to Wake Medical Center ("Wake Med").
At Wake Med, Randall was interviewed by Detective Jonathan Layman ("Det. Layman") of the RPD. During this interview, Det. Layman was approached by two Wake Med Security officers, who informed the detective that an individual believed to be connected to the shooting was also seeking treatment at Wake Med. Det. Layman requested that this individual, later identified as defendant, be taken into custody. When questioned by Wake Med security personnel, defendant claimed that he had been injured while running away from some other individuals.
Eyewitnesses reported that defendant was dropped off at Wake Med by an individual driving a Dodge Intrepid ("the Dodge"). Consequently, several members of the RPD searched the vicinity for both the Dodge and the Lincoln. The Lincoln was discovered in a parking lot a few miles away from the Food Lion. Defendant's fingerprints were discovered on both the interior and the exterior of the Lincoln.
The RPD electronically tracked Randall's cell phone to a residence a few miles from the Food Lion. When law enforcement arrived, the Dodge was located in front of this residence. Sergeant Rick Armstrong ("Sgt. Armstrong") of the RPD spoke to the owner of the Dodge, Shana Montague ("Ms. Montague"). Ms. Montague informed Sgt. Armstrong that her boyfriend, Tashon Shands ("Shands"), had possession of the Dodge at the time of the robberies. Ms. Montague consented to a search of her bedroom. During the search, law enforcement uncovered Randall's cell phone and a handgun. Ms. Montague informed Sgt. Armstrong that she and defendant were cousins, and defendant and Shands were friends.
Defendant was indicted for two counts of robbery with a dangerous weapon, one count of possession of a firearm by a felon, one count of assault with a deadly weapon inflicting serious injury ("AWDWISI"), and attaining the status of an habitual felon. Beginning 21 September 2009, defendant was tried by a jury in Wake County Superior Court.
After all of the evidence had been presented, the trial court instructed the jury on the applicable law. The court included an instruction, over defendant's objection, on flight. While the jury was deliberating, it sent the trial court a handwritten note with the question: "Are we allowed to view evidence i.e. pictures?/transcripts[?]" After discussing the matter with counsel for defendant and the State, the trial court returned the jury to the courtroom and instructed them that while transcripts were not evidence and were thus unavailable, the jury would be permitted to view other items of evidence.
On 25 September 2009, the jury returned verdicts finding defendant guilty of possession of a firearm by a felon and robbery with a dangerous weapon of Jenkins. The jury returned verdicts of not guilty to the remaining charges. Defendant pled guilty to attaining the status of an habitual felon. The State tendered to the trial court a prior record level worksheet ("the worksheet") which indicated that defendant was a level IV offender for felony sentencing purposes. However, the worksheet included a felony conviction which also formed the basis of defendant's habitual felon indictment. The trial court consolidated the offenses for judgment and sentenced defendant to a minimum of 94 months to a maximum of 122 months in the North Carolina Department of Correction. Defendant appeals.
II. Flight
Defendant argues that the trial court erred by instructing the jury on flight. Defendant contends that this instruction was not supported by the evidence presented at trial. We disagree.
"A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged." State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625 (2001) (internal quotations and citation omitted). "Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). "The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper." State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). An argument "challenging the trial court's decisions regarding jury instructions [is] reviewed de novo by this Court." State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
In the instant case, defendant was charged with separate robberies of Randall and Jenkins. The initial struggle with Randall, which led to Randall being shot, formed the basis for the first charge. After the shooting, defendant's actions provided the basis for the second charge. Specifically, rather than seeking aid for Randall after the gun discharged and Randall was shot in the hand, defendant commandeered the Lincoln from Jenkins and left the scene. Prior to seeking treatment at Wake Med, defendant abandoned the Lincoln and the gun used in the robberies. At Wake Med, defendant provided false information to security officers about the cause of his own injuries and did not mention his encounters with either Randall or Jenkins. This evidence was sufficient to support an instruction on flight. See State v. Eubanks, 151 N.C. App. 499, 503, 565 S.E.2d 738, 741 (2002) (holding flight instruction was proper when the defendant, after shooting the victim, left the scene without rendering aid or assistance to the victim, disposed of the weapon, and did not voluntarily inform law enforcement of the shooting). This assignment of error is overruled.
III. Jury Request for Transcripts
Defendant argues that the trial court erred by instructing the jury that it could not view transcripts. We agree, but find that the error was not prejudicial.
N.C. Gen. Stat. § 15A-1233(a) provides:
If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
N.C. Gen. Stat. § 15A-1233(a) (2009). "Our Supreme Court has held that it is error for the trial court to refuse to exercise its discretion pursuant to this statute `upon the ground that the trial court has no power to grant the motion in its discretion.'" State v. Johnson, 164 N.C. App. 1, 18-19, 595 S.E.2d 176, 186 (2004) (quoting State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999)).
Our Courts have previously held on several occasions that when the jury requests the transcript, and the trial court responds only that it is not possible to provide a transcript, the trial court has failed to exercise his discretion and committed reversible error. See, e.g., State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980) (holding it was error to instruct the jury that "the transcript is not available to the jury."); State v. Ashe, 314 N.C. 28, 35, 331 S.E.2d 652, 656-57 (1985) (error to instruct the jury that "[t]here is no transcript at this point. You and the other jurors will have to take your recollection of the evidence. . . ."); Johnson, 164 N.C. App. at 19, 595 S.E.2d at 187 (error to instruct the jury that "[t]here is no transcript to bring back there."); State v. Long, 196 N.C. App. 22, 26, 674 S.E.2d 696, 699 (2009) (error to instruct the jury that "we don't have the technology to give you transcripts from the trial. We are not prepared to do that.").
In the instant case, the jury sent the trial court a note which said: "Are we allowed to view evidence? i.e. pictures/transcripts[?]" After discussing the matter with counsel for defendant and the State, the trial court returned the jury to the courtroom and instructed them as follows:
Ladies and gentlemen of the jury, welcome back. I do have a note that has been passed from you to me, and it reads as follows: Quote, are we allowed to view evidence, slash transcripts, i.e. pictures, closed quote. There is the potential for you to view items of evidence. It depends on what you may want to see. I'm not trying to sound cryptic, but there does need to be more specificity as to what you may want to view that are evidence items.
I will say since expressly the term transcripts was used, transcripts are not evidence, and transcripts are not available. As a result, transcripts would not be a segment of evidence that are potentially to be viewed by you, but what has been accepted in evidence has the potential. But you need to be more specific if there is indeed a question, and that would have to be entertained by an item-by-item basis. Hopefully that answers your question, and I'll have you to go back to resume your deliberations. Thank you.
(Emphasis added). This instruction cannot be distinguished from those in the previously cited cases which were held to be erroneous. Furthermore, although the jury did not specifically request any portion of the transcript, the trial court's instruction essentially foreclosed any possibility of the jury making such a request. As this Court held in Johnson:
While the statute refers solely to requests made by the jury for review of certain testimony or evidence, we nonetheless find that the purpose and intent of the statute are violated in this case since the trial court's pretrial comments could have foreclosed the jury from making a request for such testimony or evidence. Thus, we find error even without a request by the jury.
164 N.C. App. at 20, 595 S.E.2d at 187. Thus, the trial court in the instant case erroneously failed to use its discretion in answering the jury's question regarding transcripts.
Contrary to the trial court's instruction, review of trial testimony is explicitly permitted by N.C. Gen. Stat. § 15A-1233(a). The proper procedure for addressing a jury's request for a transcript was explained by the Ashe Court:
The existence of a transcript is, of course, not a prerequisite to permitting review of testimony. The usual method of reviewing testimony before a transcript has been prepared is to let the court reporter read to the jury his or her notes under the supervision of the trial court and in the presence of all parties.
314 N.C. at 35, n. 6, 331 S.E.2d at 657, n. 6.
Although the trial court erred, defendant is only entitled to relief if the error in the instruction was prejudicial to defendant. Defendant bears the burden of proving that a trial error, not arising from rights vested under the Constitution of the United States, is prejudicial. N.C. Gen. Stat. § 15A-1443(a) (2009). Prejudice is demonstrated "when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. . . ." Id.
"It is only prejudicial error to deny the jury an opportunity to ask to review certain testimony or evidence where the defendant can show that (1) such testimony or evidence involved issues of some confusion and contradiction, and (2) it is likely that a jury would want to review such testimony." Johnson, 164 N.C. App. at 20, 595 S.E.2d at 187 (internal quotations and citation omitted). In the instant case, defendant was convicted of robbery with a deadly weapon of Jenkins and possession of a firearm by a felon. Defendant does not point to any contradictions or confusion in the evidence regarding these two offenses. Jenkins specifically testified that defendant pointed a gun at him, ordered him out of the Lincoln, and drove away. This testimony was not contradicted by any other witness or evidence at trial. Defendant has failed to demonstrate a reasonable possibility that, had the trial court not erred, a different result would have been reached at the trial. This assignment of error is overruled.
IV. Sentencing
Defendant argues, and the State concedes, that the trial court erroneously sentenced defendant as a level IV offender. Specifically, defendant contends that one of the felonies used to calculate defendant's prior record level was also used in his habitual felon indictment. We agree.
Initially, we note that defendant's habitual felon indictment was proper, because it included "the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place" for defendant's three previous felony convictions, as required by N.C. Gen. Stat. §§ 14-7.1 14-7.3 (2009). However, "[p]rior convictions used to establish a defendant's habitual felon status may not also be used to determine a defendant's prior record level." State v. Miller, 168 N.C. App. 572, 575 608 S.E.2d 565, 567 (2005). Thus, the State is precluded from using the felony convictions included in a defendant's habitual felon indictment to increase defendant's prior record level points. See State v. Lee, 150 N.C. App. 701, 704, 564 S.E.2d 597, 598 (2002).
In the instant case, defendant's habitual felon indictment included as one of defendant's prior felonies a conviction for felony larceny on 11 August 2002. This conviction was also listed on defendant's prior record level worksheet and resulted in two points being added to defendant's prior record level. With the addition of these two points, defendant was classified as a prior record level IV offender. Without the 11 August 2002 felony larceny conviction, defendant would have been classified as a prior record level III offender. Consequently, we must vacate the trial court's judgment against defendant and remand for resentencing. See Lee, 150 N.C. App. at 704, 564 S.E.2d at 599. This disposition makes it unnecessary to address defendant's remaining sentencing argument.
V. Conclusion
The evidence presented at trial supported the trial court's instruction to the jury on flight. While the trial court erred by instructing the jury that the transcript of trial testimony was not available during their deliberations, this error was not prejudicial. Defendant was erroneously determined to be a level IV offender, since one of the convictions used to reach that determination also provided one of the felonies in defendant's habitual felon indictment. As a result, although we find defendant had a fair trial, free from prejudicial error, we must remand this case for resentencing.
No prejudicial error at trial; remanded for resentencing.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).