Opinion
No. 07-110.
Filed January 15, 2008.
Wake County No. 04 CRS 115562.
Appeal by defendant from judgment entered 23 March 2006 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard L. Harrison, for the State. Glover Petersen, P.A., by Ann B. Petersen, for defendant.
On 23 March 2006, Jamal Kareem Stokes (defendant) was convicted by a jury of first degree murder and sentenced to life imprisonment without parole. Defendant was charged with first degree murder under the felony murder rule, with robbery or attempted robbery with a firearm as the underlying felony. Defendant now appeals.
Kyle James Parrish was shot and killed at his home on 12 December 2004. Parrish shared the home with his girlfriend, and a roommate, Chris Pennick. At the time of his murder, Parrish was selling drugs and addicted to heroin. Pennick testified that Parrish had left the house to buy cigarettes on 12 December 2004, and about five minutes after Parrish left, Pennick heard a knock at the door. The man at the door, later identified as Jbarre Hope, asked to use Pennick's phone, explaining that his car had broken down. Pennick agreed to let Hope use the phone, but as Pennick turned around, Hope struck Pennick with a pistol and Pennick fell to the ground. Pennick was then restrained with a vacuum cleaner cord. Hope asked Pennick where Parrish's room was. Pennick testified that there were two men in the house, one of whom was wearing an orange ski mask.
When Parrish returned to the house, the two men pulled him into the house and asked him for his money. Pennick heard the two men hitting Parrish and demanding money. Eventually, Pennick heard screaming, gunshots, and the sound of a window breaking. Pennick heard the two men leave, and then broke free from the vacuum cleaner cord to search for Parrish. Pennick found Parrish in the middle of the road. He was already dead. Police later found approximately $6, 000.00 on Parrish's person. An autopsy performed the next day confirmed that Parrish's death had been caused by two gunshot wounds. One of the bullets passed through Parrish's heart and lungs, and the other transected Parrish's entire liver. The testifying pathologist characterized both wounds as devastating such that no medical treatment could have revived Parrish. The pathologist also described imbedded glass and cuts consistent with Parrish's apparent fall through his bedroom window. Pursuant to a plea agreement, Chad Aikens testified that he and defendant conspired to break into Parrish's home and steal money, but that Aikens did not participate in the actual commission of the robbery. Aikens testified that he had been addicted to heroin and that he "bought heroin from Jamal Stokes every day" for two years. He testified that Parrish was also doing heroin, that he bought his heroin from someone other than defendant, but that the three men all knew each other and did heroin together. Aikens' testimony suggested that defendant had seen Parrish with a large brown paper bag full of money, and intended to break into Parrish's home to steal that money. Telephone records confirmed Aikens' testimony that he communicated with defendant shortly before the robbery.
Defendant first argues that the trial court erred by admitting testimony by Parrish's mother, which related Parrish's history of drug abuse. Mrs. Parrish, the State's final witness, testified that Parrish had "graduated in 2001 from Wake Christian Academy in Raleigh," and that she first noticed that Parrish had become involved with drugs in February of 2003, during Parrish's sophomore year at Barton College. She testified, "I got a call from his counselor. She said they don't normally involve parents in any problems with the students unless the parent is helping with the tuition. Kyle had gone from a 3.7 GPA down to failing all his classes starting that second semester."
When asked what efforts she and her family had made to help Parrish, she stated, "He lost his scholarships and came home that summer. Seemed to be trying to do better, working. And my other son got out of the Air Force, so in the spring semester 2004, when my son Justin started college, Kyle went back to college also." She said that she "[t]hought he was doing better and making an effort to, you know, be off drugs and get his life back on track." However, "[i]n the summer of 2004, Justin had reactivated back to the Air Force. He had gotten a call from one of Kyle's friends." Justin was down at Seymour Johnson and could not contact his brother. He called me and said one of his friends had called about Kyle was in pretty bad shape on drugs. I went to the house and his roommate Chris Pennick and I got him to go up to Holly Hill. We spent all night up there. They talked with him and all. I had hoped that they would keep him. They just went ahead and released him and referred him to some counseling.
The prosecutor then asked if Mrs. Parrish's efforts to help her son had been unsuccessful. Mrs. Parrish replied,
Correct. I had talked with him on numerous occasions after that, and he kept promising that he would go ahead and get some help. That he had, the first year or so he denied he had a problem. After that he admitted he had a problem, but he kept delaying getting help.
The State then admitted into evidence a photograph of Kyle Parrish that was taken during his senior year at Wake Christian Academy.
Prior to Mrs. Parrish's testimony, defense counsel entered an objection, arguing that her testimony was irrelevant and "strictly for the purpose [of] sympathy, which is something that the jury is not supposed to consider." The prosecutor submitted that Mrs. Parrish would "talk about when she noticed her son becoming involved in this [sic] drugs and what, if any, efforts were made by their family to help that, and one picture of her son." The trial court permitted the testimony with limitations, stating, "it may be probative as to the motive for the crime."
Rule 401 of our Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). Generally, all relevant evidence is admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Our Supreme Court has "said that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible." State v. Hill, 347 N.C. 275, 294, 493 S.E.2d 264, 274 (1997) (citation and quotations omitted). Our Supreme Court "has also said that it is not required that the evidence bear directly on the question in issue, and it is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions." Id., 493 S.E.2d at 274 (citations, quotations, and alterations omitted).
Here, Mrs. Parrish's testimony related to her son's persistent involvement with drugs. This involvement bolstered the prosecution's theory that Parrish's murder was drug-related. As such, Mrs. Parrish's testimony was relevant to show motive, and therefore admissible. Defendant also argues that Mrs. Parrish's testimony was unduly prejudicial, and that the jury would not have convicted defendant "if it had not heard the State's plea for sympathy through the irrelevant testimony of Kyle Parrish's mother as the last order of business in the trial." We disagree.
"To establish prejudicial error, a defendant must show there was a reasonable possibility that a different result would have been reached had the evidence been excluded." State v. Morgan, 359 N.C. 131, 158, 604 S.E.2d 886, 903 (2004) (citing N.C. Gen. Stat. § 15A-1443(a)). "[W]here at least one of the [other] purposes for which the prior act evidence was admitted was [proper,] there is no prejudicial error." Id. (citations and quotations omitted, alterations in original). One such proper purpose is to show proof of motive. Id. Here, the State offered Mrs. Parrish's testimony to show proof of motive. Accordingly, the trial court did not err by admitting Mrs. Parrish's testimony.
Defendant next argues that the trial court erred by allowing trial exhibits to be taken to the jury room. After they had begun deliberations, the jury gave the judge a note that read:
Evidence Requests
1. Phone logs
2. Pictures — Jamal/Lateff [sic]
3. Call from jail — CD tape player (all audio)
4. Easel — to write things down (jury use)
The pictures referred to photographs of defendant and his brother, Lateef, who was wanted in connection with Parrish's murder, but was still at large at the time of trial. The judge brought all of the jurors into the courtroom to address their request. He responded, in relevant part:
Jury, I'll tell you that we have the phone logs for you, and there's no objection to your taking them back in the back with you. We have the picture of Jamal and Lateef that you may take back with you. The call from the jail is on a CD that has other things on it that are not proper for your consideration, so we will — I'll have that played for you while you're sitting in the courtroom, all right?
The easel, we have an easel for you right over in the corner. You may take it back with you when you go back to the jury room.
All right, you may play the CD.
(Audiotape plays.)
THE COURT: All right, you may go back to the jury room and resume your deliberations.
North Carolina General Statute § 15A-1233(b) states, in relevant part,
Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, he must, upon request, instruct the jury not to conduct any experiments with the exhibit.
N.C. Gen. Stat. § 15A-1233 (2005) (emphasis added).
Defendant argues that the trial court violated this statute by failing to obtain defendant's consent before permitting the jury to remove the requested exhibits to the jury room. This Court addressed this very question in State v. Rogers, 52 N.C. App. 676, 688, 279 S.E.2d 881, 889 (1981). In Rogers, the [d]efendant emphasize[d] that there [was] nothing in the record to indicate that the parties consented to this action. Leaving unanswered the intriguing question of whether the statute violates the constitutional concepts of separation of power, Article I, Section 6, North Carolina Constitution, we [found] that defendant impliedly consented to this action when he failed to object to the jury's request to take the exhibits into the jury room.
Rogers, 52 N.C. App. at 688, 279 S.E.2d at 889; see also State v. Locklear, 349 N.C. 118, 151, 505 S.E.2d 277, 296 (1998) (assuming arguendo, but not finding, error when defense counsel neither objected nor explicitly consented to the removal of an exhibit to the jury room). Here, the trial court stated that there was no objection to the jury removing the exhibits to the jury room. Therefore, in accord with our decision in Rogers, we hold that the trial court did not violate N.C. Gen. Stat. § 15A-1223(b) because defendant impliedly consented to the jury removing the exhibits when he failed to object to the jury's request.
Additionally, defendant has failed to show any prejudicial error. N.C. Gen. Stat. § 15A-1443(a) provides:
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States 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 out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.
N.C. Gen. Stat. § 15A-1443(a) (2005). Defendant has not persuaded us that the jury would have reached a different result if the trial court had disallowed the jury's request to remove the exhibits. The requested telephone records and photographs had all been admitted into evidence. As defendant acknowledges in his brief, the telephone records "were addressed at length during the prosecution's closing argument." We note that those telephone records were also addressed at length by the State's witness from Nextel, Natalie Erdossy. Erdossy testified that her job at Nextel is to "pull records that [Nextel] receive[s] court orders for, and when those records require testimony in court, . . . the company sends [her] to testify." Erdossy's testimony spans thirty-six pages of the transcript and included a power point presentation. Chad Aikens was also questioned by both attorneys about the telephone calls that he exchanged with defendant before Parrish's murder.
Defendant does not argue that allowing the jury to remove the photographs of defendant and his brother was prejudicial, or that the trial court erred by replaying the tape of defendant's telephone call from jail or by providing an easel to the jury.
"Under these circumstances, and in light of the totality of the evidence against defendant, we conclude that allowing the jury to take th[ese] exhibit[s] into the jury room could not have affected the outcome of the trial." Locklear, 349 N.C. at 151, 505 S.E.2d at 296. Accordingly, we hold that defendant received a trial free from error.
No error.
Judges McGEE and TYSON concur.
Report per Rule 30(e).