Opinion
No. COA03-854
Filed May 4, 2004 This case not for publication
Appeal by defendant from judgment entered 13 December 2002 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State. Osborn Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant appellant.
Forsyth County No. 02 CRS 021524.
Defendant was found guilty of common law robbery of James Craft and not guilty of common law robbery of Louis Cooper and attempted armed robbery of Webster Jackson. Upon the jury's finding that defendant was an habitual felon, the trial court sentenced him to 144 to 182 months in prison. Defendant gave notice of appeal in open court.
Defendant was charged with three robberies allegedly committed on the 3rd, 10th and 26th of May 2002 in the vicinity of Rupert Bell Park in Winston-Salem, North Carolina. Prior to trial, the State filed a motion to join the three offenses for trial pursuant to N.C. Gen. Stat. § 15A-926(a) (2003). In allowing joinder of thecharges, the trial court found sufficient similarities from the State's forecast of facts to show that the robberies were "part of a common scheme or plan based on proximity in time, place and common modus operandi." The court further found that evidence of each robbery would be admissible at a trial on either of the other two robberies "to show intent, modus operandi, common scheme or plan, and identity" pursuant to N.C.R. Evid. 404(b).
At trial, Cooper testified that he was sitting in Rupert Bell Park playing cards and drinking beer on 3 May 2002, when he saw defendant. Cooper recognized defendant from the park but knew him only by his nickname, "Scaldcat." Cooper started to walk with a friend to 12th Street. As he reached a nearby tree, defendant punched him in the jaw, removed $15 from his pocket, and ran off in the direction of Highland Home Apartments. Although Cooper briefly lost consciousness from the blow, he felt defendant going through his pockets and saw him running away from the scene. After several days of excruciating pain, Cooper went to the hospital where he remained for a week receiving treatment for his broken jaw. Cooper saw a police officer in the park on 28 May 2002, and reported the robbery. He was able to identify defendant as his assailant from a photograph lineup.
James Craft testified that defendant asked him to drive him from the parking lot of the Food Lion grocery store near Rupert Bell Park to defendant's daughter's house on 25th Street on 10 May 2002. When they arrived at their purported destination, defendant told Craft he had changed his mind and directed Craft to anabandoned house on a nearby side street. Defendant asked Craft if he had change for a $20 bill. When Craft produced the change, defendant took it from his hand, stepped out of the van, and told Craft to wait while he retrieved someone from the house. Craft looked for defendant in his driver's side mirror. Craft then turned around, and defendant struck Craft in the side of the face and "knocked [him] in[to] another world." When Craft regained consciousness, the money in his pocket was missing and defendant was gone. Craft reported the incident to police and selected defendant's photograph from a lineup the following day. Although he did not know defendant by name, Craft had previously transported defendant to and from job sites while working as a driver for a temporary staffing agency.
Webster McCrory Jackson testified that he was playing cards and drinking beer with his friends in Rupert Bell Park during the afternoon of 26 May 2002. When the group ran out of beer, Jackson walked to an ATM machine in the Food Lion parking lot and returned to the park. Defendant, whom Jackson knew as "Scaldcat," approached Jackson and asked him for some beer. After taking the beer, defendant sat down beside Jackson and asked him for $2. Jackson refused to give defendant money. A few minutes later, defendant struck Jackson on the forehead with a sharp silver object. With blood running down his face, Jackson pushed defendant away from him and wrapped a shirt around his head to stanch the blood. Defendant came at Jackson and tried to reach into his left pocket. Jackson kicked defendant in the mouth and threw him to theground. Defendant tried for Jackson's pocket a second time, but Jackson ran to his house while a friend called the police with a cellular phone. When the police arrived, they arranged for Jackson to be taken to the hospital for treatment of his wounds. Jackson identified defendant in a photographic lineup.
Defendant argues on appeal that the trial court erred in joining the three charges for trial. Under N.C. Gen. Stat. § 15A-926(a) (2003), multiple charges against a defendant may be joined for trial if they "are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." Although the decision to join offenses is left to the sound discretion of the trial court, the initial determination of whether a sufficient transactional connection exists to support joinder is a question of law fully reviewable on appeal. See State v. Holmes, 120 N.C. App. 54, 61, 460 S.E.2d 915, 920, disc. review denied, 342 N.C. 416, 465 S.E.2d 545 (1995). In order to establish that an erroneous joinder constitutes reversible error, however, a defendant must also show a "reasonable possibility that a different result would have been reached" had the offenses been tried separately. See State v. Perry, 142 N.C. App. 177, 182, 541 S.E.2d 746, 750 (2001).
Because we find no possibility that defendant was prejudiced by the joinder of the charges at issue here, we need not determine if there existed a transactional relationship between the three robberies as contemplated by N.C. Gen. Stat. § 15A-926. The jury found defendant guilty only of the robbery of Craft, acquitting himof the Cooper and Jackson robberies despite both men's sworn testimony identifying him as their assailant. Defendant suffered no prejudice as to the two charges on which he was found not guilty. Moreover, inasmuch as the jury was unpersuaded by the State's evidence in the Cooper and Jackson cases, we see no possibility that it found defendant guilty in the Craft case based thereon. Cf. State v. Ford, 314 N.C. 498, 504, 334 S.E.2d 765, 769 (1985) (finding that the "defendant cannot show that he was prejudiced by this evidence when he was acquitted of the two charges to which [the challenged] testimony related."); State v. Woolard, 260 N.C. 133, 138, 132 S.E.2d 364, 368 (1963); State v. Johnson, 124 N.C. App. 462, 469, 478 S.E.2d 16, 21 (1996), cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997) ("[A]s defendant was acquitted of the offense of possession with the intent to sell or deliver cocaine, he has failed to show prejudice in the admission of the challenged evidence.").
We further find that evidence of all three of the joined offenses would have been admissible pursuant to N.C.R. Evid. 404(b) at a trial on any one of the charges. The State's evidence depicted three robberies occurring in a span of twenty-three days. The alleged victims, all men, were approached by defendant in and around Rupert Bell Park and frequented the area. Each of the victims knew defendant casually by the nickname "Scaldcat." Defendant struck each man in the head before reaching into his pocket, taking, or attempting to take money. In each instance, defendant fled the scene on foot. Thus, "[t]he evidence discloseda similar modus operandi, similar circumstances with respect to the victims, similar location and similar motive" allowing its admission at trial under Rule 404(b) to show defendant's motive, intent, identity or modus operandi. State v. Effler, 309 N.C. 742, 752, 309 S.E.2d 203, 209 (1983). Although not conclusive on the issue, the fact that the jury would have heard evidence of all three crimes even absent their joinder for trial further supports our determination that defendant was not prejudiced by the trial court's ruling. See State v. Bowen, 139 N.C. App. 18, 29, 533 S.E.2d 248, 255 (2000). Accordingly, we overrule defendant's assignment of error.
In his next assignment of error, defendant faults the trial court for receiving Winston-Salem Police Officer Lisa Thomas as an expert witness without allowing him to challenge her qualifications and the basis of her opinions in a voir dire hearing. Thomas testified during the habitual felon stage of defendant's trial regarding the arrest records maintained in her department's detention center. She described her experience in this field, which included five years of on-the-job training, classes in fingerprint comparison and crime scene processing, and a Fingerprint Classification Certificate obtained through a class in fingerprint comparison offered by the Federal Bureau of Investigation. Thomas estimated she had lifted latent fingerprints on more than 500 occasions and had matched latent fingerprints with known print samples hundreds of times. Based on this showing, the State tendered Thomas as an expert in fingerprint identification. Over defendant's objection, the court certified Thomas as an expert and denied defendant's request for a voir dire hearing. Thomas then testified that defendant's fingerprints and palmprints perfectly matched those found on police records reflecting his arrest on three prior felony charges.
In view of Thomas's extensive training and experience in fingerprint comparison and analysis, we find no abuse of discretion by the trial court in receiving her as an expert in this field under N.C.R. Evid. 702. See State v. Bowers, 135 N.C. App. 682, 685, 522 S.E.2d 332, 334-35 (1999). To the extent defendant asserts a right under N.C.R. Evid. 705 to ascertain the facts and data forming the basis of Thomas's opinions on voir dire before she offered her opinion to the jury, we find no merit to his assignment of error. Rule 705 provides that an expert may offer opinion testimony "without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion." When such advance disclosure is not requested by the opposing party, "[t]he expert may in any event be required to disclose the underlying facts or data on cross-examination." N.C.R. Evid. 705. Here, although defendant objected and requested a voir dire hearing when the court received Thomas as an expert witness, defendant made no request for advance disclosure of the facts and data underlying her opinion pursuant to Rule 705. Moreover, the data and procedures upon which Thomas relied werefully disclosed during the course of her direct and cross-examination. During cross-examination, defendant had the opportunity to challenge Thomas's qualifications and the accuracy of her opinion. Therefore, any delay in obtaining the underlying facts and data under Rule 705 had no prejudicial impact and provides no basis for relief on appeal. See State v. Pretty, 134 N.C. App. 379, 388, 517 S.E.2d 677, 684, disc. review denied and appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).
No error.
Judge HUNTER concurs.
Judge WYNN concurs in result only.
Report per Rule 30(e).