Opinion
No. COA09-722.
Filed March 2, 2010.
Durham County Nos. 07 CRS 54333, 07 CRS 54334.
Appeal by defendant from judgments entered 19 February 2009 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 8 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State.
J. Clark Fischer for defendant-appellant.
Defendant Nelson Hernandez appeals from judgments entered after a jury found him guilty of possession of a stolen motor vehicle, attempted robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and injury to personal property. Defendant argues that the trial court erred in admitting irrelevant testimony about his gang affiliation. We agree that the testimony was irrelevant, but we conclude that no prejudicial error occurred because evidence of defendant's guilt was overwhelming.
Facts
The State's evidence tended to show the following. On the night of 5 November 2007, defendant and his three friends decided "they were going to take a car." They approached Dennis Medley, who had just parked his rented Jeep and was walking toward his apartment building. One of the men pointed a silver gun at Medley and another took the keys to the Jeep and patted Medley down while defendant watched. In addition to the keys, they took Medley's wallet and cell phone. The men then got in the Jeep, and defendant drove them to Durham.
Shortly thereafter, Diana Black was standing at an intersection in Durham while assisting the Durham Police Department with an unrelated undercover investigation. Black was wired with a microphone and had a camera in her jacket pocket. While she was taking a break, the Jeep pulled up, and defendant and his friends got out. One of the men pointed a silver handgun at Black, told her to empty her pockets, and took her cigarettes. Defendant, meanwhile, was "standing there."
Officer Melissa Kennedy, who was working with Black on the undercover investigation, heard Black say "put the gun down" over the microphone. Officer Kennedy and another officer immediately responded and pursued the Jeep at a high rate of speed. Officer Kennedy reported the vehicle's license tag, and other marked patrol units eventually joined in pursuit of the Jeep.
When the Jeep finally came to a stop, the men other than defendant got out and ran. Defendant stayed in the vehicle, crouched down in the rear floorboard. Officer Robert Secrest found him, and defendant was handcuffed and placed in a police vehicle. While he was alone in the car, he kicked out the back window, dove out while still handcuffed, and escaped.
The police later identified defendant and obtained a search warrant for a residence in Raleigh where they believed he was staying. After finding defendant hiding in a pile of clothes in a closet, they took him into custody. Defendant was advised of his rights, but agreed to talk with Detective Mike Peterson, to whom he disclosed his involvement in the crimes.
Defendant was indicted for possession of a stolen motor vehicle, attempted robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and injury to personal property. At trial, defendant testified on his own behalf. He explained that he just watched as the other men robbed Medley and stole his car. He also denied knowing that his friend intended to rob Black, claiming he only stood by during the robbery to make sure nothing happened to her. Defendant testified he had been using a "good amount" of marijuana, cocaine, and ecstasy on the day that he spoke with Detective Peterson and that he lied to Detective Peterson because he was on drugs and because Detective Peterson "physically was beating on [him]."
The jury found defendant guilty of all four charges. The trial court sentenced him to concurrent presumptive-range terms of 77 to 102 months imprisonment for attempted robbery with a dangerous weapon and 29 to 44 months imprisonment for conspiracy to commit robbery with a dangerous weapon. The court also sentenced defendant to presumptive-range terms of eight to 10 months imprisonment for possession of a stolen motor vehicle and 45 days imprisonment for injury to personal property, with these sentences to run concurrently with each other, but consecutive to the conspiracy sentence. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court committed prejudicial error by allowing the State to present testimony of defendant's purported gang activities when there was no evidence that the crimes at issue were gang-related. The challenged portion of the State's evidence occurred during the testimony of Detective Peterson:
Q Were you able to discuss with him about the nickname Luchiano?
A Yes, I did.
Q Was he able to tell you who Luchiano was?
A Well, he told me that was his nickname.
Q Did he tell you what Luchiano meant?
A He said — he didn't tell me what it meant. He told me why he got it.
Q Why did he get that name?
A Because he's [sic] brings a lot —
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: Because he brings in a lot of money for his gang.
Defendant contends this evidence was legally irrelevant and highly prejudicial. According to defendant, its effect was "unavoidably to inflame the emotions of the jury against Defendant and to divert attention from the facts truly at issue. [The] testimony could well have allowed the jury to conclude that the robberies of Medley and Black represented further efforts by Defendant to bring in money for his gang, a conclusion that would have had absolutely no support from the evidence."
Evidence is relevant if it has "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.R. Evid. 401. Generally, all relevant evidence is admissible. N.C.R. Evid. 402. On the other hand, evidence that has "not been connected to the crime charged and which [has] no logical tendency to prove any fact in issue [is] irrelevant and inadmissible." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228-29 (1991), appeal dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241, 113 S. Ct. 321 (1992). See, e.g., State v. Patterson, 59 N.C. App. 650, 653, 297 S.E.2d 628, 630 (1982) (concluding introduction of testimony about sawed-off shotgun found in defendant's car was erroneous when there was no evidence that connected weapon with crime charged). In this case, there is no evidence and the State does not contend that the alleged crimes stemmed from any gang-related activity. We conclude this evidence was irrelevant and therefore inadmissible.
Defendant, however, has the burden to show not only that it was error to admit this evidence, but also that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached. . . ." N.C. Gen. Stat. § 15A-1443(a) (2009). "Where there exists overwhelming evidence of defendant's guilt[,] defendant cannot make such a showing; this Court has so held in cases where the trial court improperly admitted evidence relating to defendant's membership in a gang." State v. Gayton, 185 N.C. App. 122, 125, 648 S.E.2d 275, 278 (2007) (internal quotation marks omitted) (holding that admission of evidence of gang activity was harmless error). See also State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985) (holding that although evidence of defendant's gang membership was properly admitted to explain his presence at murder scene, evidence that gang was a "`motorcycle gang'" was erroneously admitted because it was "irrelevant to the issue of defendant's guilt," but concluding that because of "overwhelming evidence of defendant's guilt[,]" error could not have influenced outcome of trial).
Here, in light of the overwhelming evidence of defendant's guilt — including the eyewitness testimony of Medley and Black, defendant's hiding in a pile of clothes, Detective Peterson's testimony about defendant's detailed confession, defendant's own testimony, and the physical evidence — we cannot conclude that a reasonable possibility exists that the jury would have reached a different verdict had the evidence of gang membership been excluded. Accordingly, this argument is overruled, and we find no prejudicial error in defendant's trial.
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).