Opinion
No. COA09-1116
Filed 18 May 2010 This case not for publication
Appeal by Defendant from judgment entered 31 October 2008 by Judge Thomas Lock in Columbus County Superior Court. Heard in the Court of Appeals 10 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State. Kimberly P. Hoppin for Defendant.
Columbus County No. 07 CRS 1624-31.
Defendant Gwen Wayne Turner appeals from judgment entered on her convictions of eight counts of embezzlement. For the reasons stated below, we conclude there is no error.
By 2006, Defendant had been working as a store manager at Home Run Food Mart (the store) for at least eight years. Around October 2006, the company's Chief Financial Officer, Terry Faulk, began a comprehensive review of the store's revenue records. At trial, Faulk testified that he would compare cash register tapes with the store's handwritten weekly sales summary to identify any discrepancies. He explained that Defendant was solely responsible for preparing a weekly sales summary report — recording all of the store's sales for the week — and a corresponding bank deposit.
Faulk and Eddie Butler, the store's general manager, found that, over the previous two years, large sums had been taken in by the store as sales receipts and as payments on in-store charge accounts but were not reported or deposited by Defendant. Both testified that immediately following Defendant's termination and continuously thereafter, there were no further discrepancies on the weekly reports, the summaries exactly matched the cash register sales receipts, and no money was missing.
Special Agent Chris Cardwell with the financial crimes unit of the State Bureau of Investigation testified that all corporate records reviewed by him supported the company's belief that Defendant had taken the funds. Cardwell testified that Defendant told him that she had taken money from the store and used it to pay personal bills and expenses. Defendant further detailed the manner by which she had manipulated the weekly sales summaries.
The jury returned verdicts of guilty on all eight counts of embezzlement, and Defendant filed timely notice of appeal.
On appeal, Defendant contends that the trial court committed plain error by: (1) admitting into evidence the handwritten and transcribed notes of Agent Cardwell's interview with Defendant and (2) failing to properly instruct the jury on each element of embezzlement for each offense charged. Preliminarily, we note that Defendant failed to preserve either issue by objection noted at trial; accordingly, we review both for plain error. See N.C.R. App. P. 10(b)(1); N.C.R. App. P. 10(c)(4); see also State v. Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 805-07 (1983) (holding plain error applies to jury instructions and admission of evidence).
STANDARD OF REVIEW
Plain error review involves a two-step inquiry:
A prerequisite to our engaging in a "plain error" analysis is the determination that the instruction [or admission of evidence] complained of constitutes "error" at all. Then, "before deciding that an error by the trial court amounts to `plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict."
State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). To constitute plain error, an error must have "`tilted the scales' and caused the jury to reach its verdict convicting the defendant." Walker, 316 N.C. at 39, 340 S.E.2d at 83.
I.
Defendant assigns as plain error the trial court's admission into evidence of State's Exhibit #64 — Agent Cardwell's handwritten notes of his interview with Defendant — and Exhibit #65 — the transcription of those notes. Defendant also contends that the trial court committed plain error by allowing Cardwell to read from his notes during a portion of his testimony. Defendant asserts that she never reviewed the notes for correctness, and she was never afforded the opportunity to sign the notes to acknowledge their accuracy. Our Supreme Court has set out the rules on the admissibility of a statement reduced to writing:
A confession which has been wholly or partially reduced to writing is ordinarily admissible against an accused . . . regardless of the fact that it was reduced to writing by another person, where it was read over to or by accused, or was translated to him, and signed or otherwise admitted by him to be correct.
If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused.
State v. Walker 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967) (internal quotation marks and citations omitted). Thus, defendants must acquiesce to a written statement's correctness before the State may tender it as a confession. State v. Fisher, 171 N.C. App. 201, 210, 614 S.E.2d 428, 434 (2005).
Our courts, however, have carved out "a limited exception where an officer's notes are a verbatim record of the questions and answers between the officer and the defendant." State v. Wagner, 343 N.C. 250, 256, 470 S.E.2d 33, 36 (1996). Thus, even where a defendant has not verified its correctness, "the written instrument is admissible, without regard to the defendant's acquiescence, if it is a `verbatim record of the questions [asked] . . . and the answers' given." State v. Bartlett, 121 N.C. App. 521, 522, 466 S.E.2d 302, 303 (1996) (quoting State v. Byers, 105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992)).
The State concedes that Cardwell's notes were not a verbatim transcript of the interview. The State also acknowledges that Cardwell did not ask Defendant to review his notes and sign any written statement. Thus, it is clear that Defendant's statements were not admissible as a confession under either the general rule or the exception. The State, however, proposes that Cardwell's notes were not ever offered as Defendant's confession. Rather, under the circumstances of the instant case, the notes were offered as a corroboration of Cardwell's testimony and to refresh his present recollection of Defendant's statements while he testified thereto. We agree.
Our Supreme Court addressed similar facts in State v. York, 347 N.C. 79, 87-90, 489 S.E.2d 380, 385-86 (1997), holding it was permissible for a sheriff captain, during his testimony, to read from a typed version of the "rough handwritten notes" he took of his interview with the defendant. The defendant contended that this reading "was prejudicial because it led the jury to believe the notes were defendant's confession." Id. at 87-88, 489 S.E.2d at 385. Although the captain had acknowledged that he did not ask the defendant to review his notes or record or make a verbatim transcript of his interview, the Court rejected the argument because "[t]he State did not offer the notes in question as a confession of the defendant." Id. at 88, 489 S.E.2d at 385.
Here, the parties dispute the State's intentions as to how the testimony of Cardwell should have been defined. The State suggests that "Cardwell never testified or gave any indication that his notes were [Defendant's] actual confession . . . adopted by her." Rather, as a part of routine investigative procedures, his notes were simply a memorialization of Defendant's conversation with him to aid his memory. Defendant argues, however, that the trial court clarified the State's intent at the charge conference by asking whether to instruct on admissions or confessions. Defendant points out that the State initially requested an instruction on admissions but subsequently requested the instruction on confessions. The trial court denied the State's request and instructed the jury on admissions. Based on the second request, Defendant argues that the State clearly considered Defendant's statements presented by Cardwell to be confessions and offered them for that purpose. However, Defendant cites no case for the notion that the subjective intent of the State controls how this evidence should be defined.
At no time in the presence of the jury did the State qualify Defendant's statements to Cardwell as a confession. In fact, as mentioned above, Cardwell testified that he summarized Defendant's answers in his own words and that he never showed Defendant his notes or had her adopt them as her own statements in any way. Accordingly, the State did not offer Cardwell's testimony as Defendant's confession nor characterize it as such. Rather, the testimony elicited from Cardwell demonstrates that his notes do not meet the criteria for consideration as a confession. Also, the instructions ultimately given to the jury made no mention of any confession by Defendant, and at no time were either the handwritten or typed interview notes ever described as or purported to be Defendant's confessions. Although the notes were improperly admitted into evidence as exhibits, as discussed infra, we conclude that York controls and that the State did not offer the notes in question as Defendant's confession. See id.; see also State v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (1997) (declining to require a verbatim transcript under Wagner where the record of defendant's interview was never characterized as defendant's written confession).
Thus, "[t]he question then becomes whether the trial court properly allowed [Cardwell's] use of the notes during his testimony in order to refresh his present recollection." York, 347 N.C. at 88, 489 S.E.2d at 385. York reasoned that because the witness had "first testified from memory, and in particular detail, about the events surrounding the interview," his use of the notes, including reading directly from them, was a proper refreshing of his present recollection. Id. at 89, 489 S.E.2d at 386.
Under present recollection refreshed the witness' memory is refreshed or jogged through the employment of a writing, diagram, smell or even touch, and he testifies from his memory so refreshed. Because of the independent origin of the testimony actually elicited, the stimulation of an actual present recollection is not strictly bounded by fixed rules but, rather, is approached on a case-by-case basis looking to the peculiar facts and circumstances present.
State v. Gibson, 333 N.C. 29, 50, 424 S.E.2d 95, 107 (1992) (internal quotation marks and citations omitted), overruled on other grounds by State v. Lynch, 334 N.C. 402, 409-10, 432 S.E.2d 349, 352-53 (1993). On the other hand, present recollection refreshed may not be employed where testimony that purports to be the product of a witness's refreshed memory "is clearly a mere recitation of the refreshing memorandum." State v. Smith, 291 N.C. 505, 518, 231 S.E.2d 663, 671 (1977). However, "[t]he fact that a witness appears to read from a refreshing memorandum is not a per se violation under Gibson." York, 347 N.C. at 89, 489 S.E.2d at 386. The test for determining if a recorded memorandum is properly used to refresh recollection is whether the witness independently recalls the event, using the memorandum merely to refresh details, or leans on the memorandum as a testimonial crutch for something beyond recall. Id.
In the instant case, Cardwell testified from memory about the events leading up to the interview and about Defendant's admissions to taking money from the store to pay her bills, giving money to her ex-husband, and manipulating the weekly summaries so that the sales totals matched the deposit reports. He then referred to his notes to summarize the specific contents of their conversation before reading his notes to the jury. As in York, it appears "from the full circumstances that this witness used his notes . . . in order to specifically recall for the jury what occurred during his interview with [D]efendant," and we likewise "hold that the use of these notes in this instance was for the purpose of refreshing recollection to facilitate accurate testimony and as such did not violate the present recollection refreshed rule." Id.; see also Moody, 345 N.C. at 579, 481 S.E.2d at 637 (holding that the SBI's interview notes did not constitute defendant's written confession and it was therefore proper for the agent to read from them to refresh his recollection at trial).
We emphasize that, even if we had concluded that the court erred, Defendant has failed to show prejudice under the plain error standard. Defendant does not contest Cardwell's testimony to the inculpatory statements she made during their interview, made without his notes and clearly admissible under the hearsay exception for admissions by a party-opponent. See N.C. Gen. Stat. § 8C-1, Rule 801(d)(A) (2007). This evidence, in combination with the State's other compelling evidence, indicates that the jury would have reached the same verdict even without the reading of the notes. Therefore, we hold the trial court did not commit error, to include plain error, in allowing Cardwell to read from his interview notes during his testimony.
Defendant also argues that the trial court improperly admitted the handwritten and transcribed notes into evidence. We agree that the trial court erred but hold that it was not plain error.
"In present recollection refreshed the evidence is the testimony of the witness at trial. . . ." Gibson, 333 N.C. at 50, 424 S.E.2d at 107. Accordingly, the rule is limited to oral testimony and cannot be extended to authorize the receipt as an exhibit of the record or memorandum used for refreshing purposes. We conclude, however, that it is not probable that, without those exhibits, a different verdict would have been returned. The oral testimony of Cardwell before he consulted his notes and other evidence of Defendant's guilt indicates that this error did not tilt the scales and cause the jury to convict Defendant.
II.
Defendant assigns as plain error the trial court's instruction on the elements of embezzlement only once and argues that the trial court effectively dismissed the indictments thereby. Defendant contends that the trial court's one-time instruction was improper because there were multiple counts of the offense and the judge should have reiterated the charge for each one. We disagree. The trial court instructed the jury that Defendant had been charged with eight counts of embezzlement — each relating to a specific period of time or particular account — and that a separate verdict sheet set forth each count. The trial court continued:
You are to consider each count separately and you are to return a separate verdict as to each count. You may find the defendant guilty of all of the counts, not guilty of all of the counts, or guilty of some of the counts and not guilty of the others.
It is for you, as the finders of the facts, to decide whether the State has proven any of the crimes charged beyond a reasonable doubt.
The trial court then laid out the definition of embezzlement and the three elements the State was required to prove beyond a reasonable doubt. The trial court then gave the jury eight separate verdict forms, each specifying a separate count of embezzlement.
Defendant distinguishes the instant case from State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868 (2006), and State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564 (2004) to support her proposition that these instructions were inadequate. In both cases, this Court held that the trial court's single instruction on multiple charges was not plain error. See Bullock, 178 N.C. App. at 465, 631 S.E.2d at 872 ("It [was] clear from the trial court's charge that the initial instruction on the elements of first-degree rape applied to all 11 counts."); Evans, 162 N.C. App. at 544, 591 S.E.2d at 567 (holding "there [was] no reasonable possibility that, had the trial court specifically instructed the jury on the same offense for each date alleged, a different result would have ensued"). Defendant argues Evans and Bullock are distinguishable because the juries received a written copy of the instructions.
The trial court in this case did not provide a written copy of the instructions. The trial court, however, did ask counsel for both parties if they objected to his "send[ing] a copy of these instructions to the jury in the envelope containing the verdict sheets," to which defense counsel objected. See N.C. Gen. Stat. § 15A-1443(c) (2007) ("A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct."). Moreover, nothing in our caselaw addressing this issue indicates that providing the jury with a copy of the instructions given is determinative. Defendant's arguments also fail in light of State v. Schultz, 294 N.C. 281, 240 S.E.2d 451 (1978) and State v. Parker, 119 N.C. App. 328, 459 S.E.2d 9 (1995).
Our courts have consistently held, that "[w]hen reviewing a trial court's charge to the jury, the instructions must be considered in their entirety." Parker, 119 N.C. App. at 339, 459 S.E.2d at 15; see also Schultz, 294 N.C. at 284, 240 S.E.2d at 454 ("[P]ortions of a charge to the jury must be read contextually.").
The trial court in Parker did not address each count of the indictments separately in its instructions but did inform the jury that it would be submitting twelve separate verdict sheets. The trial court also advised the jury that it could vote either guilty or not guilty on each verdict sheet, which represented each charge in the indictments. Parker, 119 N.C. App. at 339, 459 S.E.2d at 15. This Court held that the instructions, viewed in their entirety, made clear that the jury must consider each charge separately during deliberations. Id.; see also State v. Whitehead, 42 N.C. App. 506, 513, 257 S.E.2d 131, 135 (1979) (upholding the trial court's consolidation of the law related to multiple charges because the charge as a whole clarified the distinct nature of the crimes).
In Shultz, the trial court submitted three counts of larceny to the jury but gave only a single larceny instruction. The defendant argued that the instruction permitted the jury to convict him of all three counts if it found him guilty of one, but our Supreme Court considered the jury charge in its entirety and disagreed. Shultz, 294 N.C. at 283-85, 240 S.E.2d at 453-54. The trial court had specifically instructed the jury to consider each larceny count as "separate and distinct cases"; that its decision as to one count must not influence its finding as to any other; that the State had to prove the elements of felonious larceny beyond a reasonable doubt "in each case"; and that its "finding as to each charge must be stated in a separate verdict." Id. at 284, 240 S.E.2d at 454. Accordingly, the single larceny instruction was not erroneous because the jury charge, considered contextually, clearly instructed the jury to consider each count separately. Id. at 285, 240 S.E.2d at 454.
Here, as in Parker, the instructions viewed in their entirety made clear that the jury was to consider each charge separately, each count related to a specific period of time or a particular account to which each verdict sheet referred, and the same law applied to each charge. As in Shultz, the trial court here gave a single pattern instruction for more than one count of embezzlement while making clear that the jury was to afford each count separate consideration. The factors supporting our conclusion track those in Shultz, where here the trial court instructed the jurors that: each verdict sheet represented one of eight counts that they must consider separately; each count related to a specific period of time or account as reflected on the sheets; they must decide if the State had proven any of the crimes charged beyond a reasonable doubt; they could convict Defendant of some counts but not others; and they must return a separate verdict for each count.
It is also worth noting that Parker has been interpreted to stand for the proposition that "[t]he trial court . . . does not have to instruct on each count separately." State v. Massey, 174 N.C. App. 216, 222, 621 S.E.2d 633, 638 (2005), rev'd in part on other grounds, 361 N.C. 406, 646 S.E.2d 362 (2007). This Court stated in Massey that a trial court does not commit plain error by declining "to specifically instruct the jury as to the elements of each offense on each date." Id. (internal quotation marks and citation omitted). Pursuant to these conclusions of law and the precedents set forth above, we hold the trial court did not commit plain error in deciding not to specifically reiterate the instructions for each count of embezzlement. Moreover, Defendant cannot show that the jury probably would have reached a different verdict had the trial court separately instructed on each count.
No Error.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).