Opinion
No. COA10-1289
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgments entered 12 May 2010 by Judge James W. Morgan in Cleveland County Superior Court. Heard in the Court of Appeals 22 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant.
Cleveland County Nos. 08 CRS 4270, 08 CRS 55457.
Adrian O'Bryan Sanders ("defendant") appeals from judgments entered on 12 May 2010 after a jury convicted him of robbery with a dangerous weapon and possession of a firearm by a felon. After careful review, we find no reversible error.
Background
The evidence at trial tended to establish the following facts: On 16 September 2008, Kevin Cathcart was a self-employed clothing vendor. His practice was to purchase clothes wholesale and then sell them for retail prices, sometimes out of his car. In response to a phone call from a potential customer, a man known as "T," Mr. Cathcart drove to a secluded location in Shelby, North Carolina in order to sell the man some jeans. When he arrived, he met two men, one of whom he later identified as defendant. While preparing the jeans for display with his back to defendant, he heard defendant say "just give me those." Mr. Carthcart turned around and saw defendant pointing a small, silver snub nose revolver at him.
Mr. Cathcart threw the tote containing the jeans on the ground. Defendant instructed him to get in the trunk, but Mr. Cathcart ran away. When he reached a nearby street, he dialed 911 on his cell phone. From a distance, he saw the two men remove the clothing that was stored in his trunk. At trial, Mr. Cathcart identified defendant as the perpetrator carrying the gun.
Officer Douglas Myers of the Belmont police department responded to the 911 call and took a statement from Mr. Cathcart. Mr. Cathcart appeared shaken and very upset. Officer Myers searched the woods surrounding the location where Mr. Cathcart encountered the men, but found nothing, although he did speak with a worker at Dockery's Funeral Home who reported seeing three young black men running through the woods, getting into a black jeep, and driving away. Officer Myers then asked for Mr. Cathcart to inventory the stolen items and he reported that 60 pairs of blue jeans, eight purses, and a wallet containing a North Carolina driver's license, two Social Security cards, and $45.00 were taken.
Later, Mr. Cathcart's cousin looked up the phone number that had been saved by Mr. Cathcart's phone during his conversations with "T." Mr. Cathcart's cousin dialed the number and the call was answered by Joydonna Phillips. During the phone call, Mr. Cathcart's cousin pretended to be a police officer inquiring about the use of the cell phone during an accident. He identified himself as Detective Jackson. Ms. Phillips, who knew a number of officers at the Shelby police department, became suspicious because she did not know a detective by the name of Jackson. Ms. Phillips drove to the police department while she was on the phone with Mr. Cathcart's cousin and asked to speak with Detective Jackson. She was told that no one by that name worked in that office.
Detective Rafus Camp subsequently contacted Ms. Phillips and determined that her phone had been used to call Mr. Cathcart prior to the robbery. After Detective Camp left her home, Ms. Phillips spoke with a young man who lived with her, Alonzo Marble (also known as "Twin"), because the robbery had taken place while the phone was in his possession. Ms. Phillips had already spoken with another person, O'Bryan Moore, and determined the identity of the people involved in the robbery. According to Ms. Phillips, Mr. Marble admitted that he had been in a car with three others when the robbery occurred, but stated that he was afraid the others would kill him if he did not participate and that "[defendant] told him that he was known for killing." Detective Camp later testified that Ms. Phillips repeated the same conversation to him, including the implied threat. Detective Camp also testified that he had been told by Ms. Phillips that Mr. Marble was reluctant to speak to the police because he had been threatened.
Mr. Marble testified at trial that he had been at a friend's house when defendant asked to borrow his cell phone. Mr. Marble gave him the phone and then agreed to accompany defendant to "get [his] clothes from [his] aunt's house." Mr. Marble testified that he and three other men left his friend's house in a black jeep driven by Patrick Tate. When they reached the funeral home, defendant and another man, Damon Cherry, exited the car. They returned a short while later carrying a blue basket of clothes. Mr. Marble testified that the basket contained purses, shoes, pants, and shirts, which they divided amongst themselves at Tate's house. Mr. Marble also testified that defendant had shown him a .38 or .22 caliber silver handgun, but that he was not specifically threatened.
Defendant was subsequently charged and convicted of robbery with a dangerous weapon and possession of a firearm by a felon. He was sentenced to a term of 103 to 133 months imprisonment for the robbery charge, and a term of 16 to 20 months imprisonment for the possession charge. Defendant gave notice of appeal in open court.
Discussion I.
Defendant first contends that the trial court committed plain error when it allowed Ms. Phillips' and Detective Camp's testimony regarding alleged death threats made by defendant to Mr. Marble on the ground that the statements constituted inadmissible double and triple hearsay. 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) (2009). Hearsay is not admissible, except as provided by statute. N.C. Gen. Stat § 8C-1, Rule 802 (2009). Double hearsay, which is "hearsay included within hearsay[,] is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. . . ." N.C. Gen. Stat. § 8C-1, Rule 805 (2009).
Defendant did not object at trial to the admission of Ms. Phillips' or Detective Camp's testimony; however he argues plain error on appeal.
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings. . . ."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
Defendant argues that the challenged testimony depicted him as a violent man, which likely affected the jurors' opinion of him and resulted in a guilty verdict. He further claims that the testimony contradicted Mr. Marble's testimony that he was not threatened. Assuming, arguendo, that the statements constituted inadmissible hearsay, we cannot agree that such error rose to the level of plain error given the overwhelming evidence of defendant's guilt. See State v. Ross, ___ N.C. App. ___, ___, 700 S.E.2d 412, 424 (2010) (holding that any error resulting from the admission of hearsay testimony did not amount to plain error due to the overwhelming evidence of defendant's guilt). Mr. Cathcart identified defendant in open court as the assailant who robbed him at gunpoint. Mr. Marble testified that he was present during the robbery and that defendant possessed a firearm. Moreover, the cell phone used to call Mr. Cathcart was traced back to defendant through the testimony of Ms. Phillips and Mr. Marble. Defendant's argument is without merit and we hold that any error did not amount to plain error such that a new trial is warranted.
II.
Defendant next contends the trial court committed plain error when it allowed testimony by Mr. Cathcart that being robbed was "just like getting raped" and like an "out of body experience" because the testimony constituted an inadmissible and irrelevant victim impact statement. Again, we disagree.
Victim impact evidence is defined as evidence of "physical, psychological, or emotional injury, [or] economic or property loss suffered by the victim." N.C. Gen. Stat. § 15A-833 (2009).
Victim impact evidence is generally relevant and admissible in sentencing, though its admissibility in sentencing is limited by the requirement that the evidence not be so prejudicial it renders the proceeding fundamentally unfair. However, the effect of a crime on [the victim] often has no tendency to prove whether a particular defendant committed a particular criminal act against a particular victim; therefore victim impact evidence is usually irrelevant during the guilt-innocence phase of a trial and must be excluded.
State v. Graham, 186 N.C. App. 182, 190, 650 S.E.2d 639, 645 (2007) (internal citation and quotation marks omitted). "However, victim impact evidence which tends to show the context or circumstances of the crime itself, even if it also shows the effect of the crime on the victim . . ., is an exception to the general rule, and such evidence is relevant and therefore admissible at the guilt-innocence phase. . . ." Id. at 191, 650 S.E.2d at 646.
Here, after identifying defendant as the person who robbed him at gunpoint, Mr. Cathcart testified as follows:
They was going through the path with the items that was on the ground. There was someone else out there that lived in one of the houses. They could call the police also because I was dialing 911 because I was all shook up because that's a bad feeling when someone pulled a gun and going to rob you.
It's just like someone getting raped. That's like someone that's taking something from you that don't belong to them. You're scared for your life because every day on TV you hear about it. So I'm just in my mind. I'm out of body experience.
We hold that Mr. Cathcart's statement that he was "shook up," "scared," and that the robbery was like an "out of body experience," tended to establish the context of the crime — why Mr. Cathcart ran from the scene and his state of mind when he related the events to the police. Arguably, Mr. Cathcart's statements benefited defendant in that an inference could be drawn that Mr. Cathcart was not in a calm state of mind when he saw defendant during the robbery, and, therefore, his later identification of defendant was not entirely reliable. While Mr. Cathcart's statement that being robbed is equivalent to being raped was irrelevant to the matter of defendant's guilt or innocence of the crimes charged, we hold the statement's admission did not constitute plain error given the overwhelming evidence of defendant's guilt.
Finally, defendant argues that admission of Mr. Cathcart's testimony was unduly prejudicial under Rule 403 of the North Carolina Rules of Evidence. Since defendant did not object on Rule 403 grounds, and since Rule 403 involves a discretionary decision on the part of the trial judge, this issue is not preserved for review. See State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) ("The balancing test of Rule 403 is reviewed by this [C]ourt for abuse of discretion, and we do not apply plain error to issues which fall within the realm of the trial court's discretion." (citation and internal quotation marks omitted)).
Conclusion
In sum, we hold that any error in the admission of hearsay at trial did not amount to plain error. We further hold that portions of Mr. Cathcart's testimony, which defendant contends amounted to an impermissible victim impact statement, were relevant and permissible. While Mr. Cathcart's statement that being robbed was like being raped was not relevant to the determination of defendant's guilt or innocence, admission of this statement did not amount to plain error.
No Prejudicial Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).