Opinion
No. COA11–1014.
2012-04-3
STATE of North Carolina v. Marcus Piere JOHNSON, and Darrell Jerome Lavine, Defendants.
Amos Granger Tyndall P.A., by Amos Granger Tyndall, for defendant-appellant Johnson. Franklin E. Wells, Jr., for defendant-appellant Lavine.
Appeal by defendants from judgments entered on or about 4 August 2010 by Judge W. Osmond Smith, III in Superior Court, Wake County. Heard in the Court of Appeals 9 February 2012. Amos Granger Tyndall P.A., by Amos Granger Tyndall, for defendant-appellant Johnson. Franklin E. Wells, Jr., for defendant-appellant Lavine.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney Generals Buren R. Shields, III (Johnson) and Gary R. Govert (Lavine), for the State.
STROUD, Judge.
Defendants Johnson and Lavine appeal their convictions for first degree murder and robbery with a dangerous weapon on various grounds. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that in July 2008, defendants Johnson and Lavine and three other individuals put on masks and broke into Mr. Bobby Gagnon's home. The men hit, kicked, and stabbed Mr. Gagnon; eventually Mr. Gagnon was shot. The men left, taking at least one gun from Mr. Gagnon's home. Defendant Lavine confessed to the other men that he had shot Mr. Gagnon and defendant Johnson stated that “he finished the victim.” The men attempted to destroy evidence of their crimes by cleaning up some blood, hiding their weapons, and burning their clothes. Later, Antonio Strickland, Mr. Gagnon's roommate, returned home to find his home broken into, a gun stolen, and his roommate, Mr. Gagnon, in a pool of blood. Mr. Gagnon died from a gunshot wound to the head.
On or about 18 August 2008, defendants Johnson and Lavine were indicted for murder and armed robbery. After a joint trial by jury, both defendants were found guilty of both charges. Each defendant was sentenced to life imprisonment without parole for the first degree murder conviction and to 64 to 86 months imprisonment for the robbery with a dangerous weapon conviction. Defendants Johnson and Lavine appeal.
II. Defendant Lavine
Defendant Lavine raises three issues on appeal.
A. Right to Confront and Cross Examine Witnesses
Defendant Lavine first argues that
[t]he trial court committed “Bruton” error and violated Mr. Lavine's right to confront and cross examine witnesses against him by admitting hearsay statements attributed to the Defendant-appellant Lavine as well as by admitting evidence at a joint trial that Mr. Lavine's co-defendant had confessed to the murder, where the state was proceeding on a theory of acting in concert.
1. Testimony Regarding Purpose of Robbery
Defendant directs this Court's attention to a witness' statement “[t]hat [defendant Lavine] wanted to go do this lick so he can get his status” and “[defendant Lavine] wanted to go do the lick so he can get seem [sic] more status and one of the guns and wanted the guns and stuff. But his main reason for wanting to go, he wanted that status. That's why he was so anxious to go.” However, this same witness stated the following without objection:
Q. And with regard to completing a mission with regard to a gang, what's the point in doing that?
A. Either to be initiated or to get status.
Q. In this case what happened at the victim's house?
Was there someone—was this a mission?
A. Yes, ma‘am.
....
Q. Who was achieving status?
A. [Defendant Lavine].
Our Supreme Court “frequently has held that when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989).
2. Co–Defendant's Incriminating Statements
Defendant Lavine next directs this Court's attention to testimony which stated that his co-defendant, defendant Johnson, “said after Darrell got his mask pulled down and Darrell shotguns, he said they had to finish the dude just to make sure he was done.” However, there was also testimony that defendant Lavine “said when the dude pulled down his mask he had no other choice but to shoot.” This evidence was admitted without an objection, and thus the benefit of any other objection has been lost. See id. Defendant Lavine also argues that it was error to allow testimony that “Marcus Johnson said I finished-he finished the victim[;]” and defendant Johnson said “[h]e[, defendant Johnson,] shot him.” “However, a codefendant's statement which does not mention or refer to the defendant does not implicate the Confrontation Clause or Bruton.” State v. Boozer, ––– N.C.App. ––––, ––––, 707 S.E .2d 756, 766 (2011), disc. review denied,––– N.C. ––––, 720 S.E.2d 667 (2012). Accordingly, these arguments are overruled.
B. Irrelevant and Character Evidence
Defendant Lavine next argues that
[t]he trial court committed reversible error by allowing a “gang expert” to testify in general terms about street gangs, thereby introducing irrelevant, general character evidence against the defendant, in violation of Rule 402, and by admitting against the defendant a paper found in the pocket of a jacket at the home of another person, which contained writings supposedly associated with street gangs.
1. Testimony Regarding Gangs
During defendants' trial, defendant Lavine objected to Officer Lisa Mendez's testimony as a “gang expert” because knowledge of gangs is “an improper area for expert testimony.” On appeal, defendant argues that Officer Mendez's testimony was “irrelevant” and “general character evidence[.]” Whether gangs are a proper area of expert testimony is an entirely different question than whether Officer Mendez's testimony as to gangs was irrelevant and/or inadmissible character evidence. Opinion and expert testimony is governed by Rules 701–706 while relevancy and more specifically, character evidence, are governed by Rules 401–413. See N.C. Gen.Stat. § 8C–1, Rules 401–413, 701–706 (2007). “It is well-established that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.” State v. Tellez, 200 N.C.App. 517, 521, 684 S.E.2d 733, 736 (2009) (citations and quotation marks omitted).
2. Papers in Jacket
Defendant also contends that it was error for the trial court to allow into evidence “a writing found in the pocket of a jacket at the Johnson home” referred to as the “book of knowledge” because “[n]either the jacket nor the papers were ever connected to Mr. Lavine[;]” “[t]he pages of paper had no relevance to the crimes for which Mr. Lavine was on trial[;]” and “[t]he evidence of gang affiliation was very prejudicial to the defendant.” Defendant has not raised any arguments regarding any particular statements within the “book of knowledge” but only general objections that it was “evidence of gang affiliation[.]” But defendant Lavine's own testimony was that he was involved with gangs, including on the night in question where he “was a getaway driver” for a gang “mission[.]” Again, “when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” Hunt, 325 N.C. at 196, 381 S.E.2d at 459. Accordingly, these arguments are overruled.
C. Mistrial
During defendant's trial someone yelled to a juror, “don't send them to jail, you here [sic;]” the juror informed the other jurors about the incident. The trial court questioned all of the jurors about whether the incident would in any way affect their decision in the case, and all of the jurors stated that it would not affect their decision. The trial court then asked if defendant Lavine had “any further suggestions or requests[;]” both defendants responded, “No, your Honor.” Defendant Lavine did not make a motion for mistrial. Defendant Lavine argues that “[t]he trial court committed reversible plain error by failing to declare a mistrial when a juror had outside contact with a passerby who sought to intimidate the juror, and that act of intimidation was communicated to other jurors.” Defendant Lavine's argument of plain error as to mistrial is unavailing, as “[p]lain error analysis applies to evidentiary matters and jury instructions.” State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634,cert. denied,––– U.S. ––––, 175 L.Ed.2d 362 (2009). Accordingly, this argument is overruled.
III. Defendant Johnson
Defendant Johnson's only argument on appeal is that
[t]he trial court committed reversible error by allowing the State to introduce general information about gangs and Mr. Johnson's character that were not relevant to the events surrounding this case, were offered only to paint Mr. Johnson as a person of bad character, and used to influence the jury to conclude that he must have acted in conformity with his character, even though the physical evidence and some testimony disputed that conclusion.
(Original in all caps.)
A. Testimony Regarding Gangs
Defendant Johnson argues that the trial court erred in allowing “police officer Lisa Mendez to testify as an expert in the field of criminal street gangs ... [as] her testimony was wholly irrelevant to the facts of this case.” (Quotation marks omitted). However, just like defendant Lavine, defendant Johnson's objection to the trial court was that Officer Mendez's testimony is “an improper area for expert testimony.” Again, “where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.” Tellez, 200 N.C.App. at 521, 684 S.E.2d at 736.
B. Papers in Jacket
Also like defendant Lavine, defendant Johnson contends that
[d]uring a search of Mr. Johnson's residence, Detective K.A. Copeland of the Raleigh Police Department discovered some handwritten notes in a jacket. Detective Copeland concluded that the documents included language and symbols associated with gangs....
....
.... Officer Mendez testified that the documents included the type of information contained in “a book of knowledge.” ... In general, a book of knowledge for a street gang would include information about the gang's history, code of conduct, prayers, and independent language....
... [T]he information ... and [Officer Mendez's] conclusions were irrelevant to the issues[.]
Due to the testimony from several witnesses regarding defendant Johnson's involvement with gangs, without objection from defendant Johnson, defendant Johnson may not raise this argument on appeal. Hunt, 325 N.C. at 196, 381 S.E.2d at 459.
B. Irrelevant and Prejudicial Evidence
Defendant Johnson contends that the trial court erred in allowing irrelevant and prejudicial evidence. “ ‘Relevant evidence’ means 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 (2007). “All relevant evidence is admissible .... Evidence which is not relevant is not admissible.” N.C. Gen.Stat. § 8C–1, Rule 402 (2007). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C. Gen.Stat. § 8C–1, Rule 403 (2007).
The decision of a trial judge to admit evidence in the face of a Rule 403 objection is given much deference; exclusion on 403 grounds is left to the sound discretion of the trial judge and will be reversed only when the decision is arbitrary or unsupported by reason.
While all evidence offered against a party involves some prejudicial effect, the fact that evidence is prejudicial does not mean that it is necessarily unfairly prejudicial. The meaning of unfair prejudice in the context of Rule 403 is an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.
State v. Rainey, 198 N.C.App. 427, 432–33, 680 S.E.2d 760, 766,disc. review denied,363 N.C. 661, 686 S.E.2d 903 (2009) (citations and quotation marks omitted).
1. Prior Traffic Stop
Defendant Johnson argues that
the state presented evidence that Mr. Johnson was a passenger in a car driven by a co-defendant that was stopped by a police officer.... Officer R. Wagner discovered a gun in the car during a search. The gun was seized and remained in evidence at the time of Mr. Gagnon's death....
The state argued that the evidence tended to show a plan, motive, or intent. Yet, it never identified how that evidence tended to show a plan, motive or intent to commit the instant offense....
....
... Using irrelevant evidence of his past gun possession to tie him to the charged crime was prejudicial to his defense.
The State contends that
[t]his incident showed that, shortly before defendant began attempting to buy Strickland's High Point 9mm rifle, he was stopped with another Vice Lord in connection with a drive-by shooting. At that time, law enforcement confiscated a High Point 9 mm rifle thought to be his. The State explained this evidence was relevant to show defendant had a motive and an intent to plan and participate in the robbery of Strickland's High Point 9 mm rifle to replace this confiscated weapon.... Thus, it was relevant to an issue in dispute.
Indeed, during defendants' trial, Mr. Strickland testified that defendant Johnson had attempted, on more than one occasion, to buy his .9 millimeter rifle. Mr. Strickland also testified that at the time he found Mr. Gagnon, also noticed a gun was missing. Accordingly, evidence that defendant had previously been in a vehicle where a .9 millimeter rifle was seized is relevant because it does indicate that defendant Johnson “had a motive and an intent to plan and participate in the robbery of Strickland's” gun. Furthermore, we do not conclude that the “probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice,” N.C. Gen.Stat. § 8C–1, Rule 403, as evidence that a gun was previously confiscated from defendant Johnson does not create an “undue tendency to suggest decision on an improper basis [ .]” Rainey, 198 N.C.App. at 433, 680 S.E.2d at 766.
2. Drive–By Shooting
Defendant also contends that
Louis Johnson III testified that he committed a drive-by shooting at Mr. Johnson's direction in order to join the gang.... Evidence of this shooting was irrelevant to the crime charged.... There were no similarities between the crimes Mr. Johnson committed and those resulting in Mr. Gagnon's death.
Evidence that defendant Johnson directed Mr. Johnson III to commit a crime on behalf of his gang has a “tendency to make the existence of [a] fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” as it is further evidence of defendant's involvement with gangs and his reason for committing the crimes against Mr. Gagnon. N.C. Gen.Stat. § 8C–1, Rule 401. Furthermore, the evidence regarding the drive-by shooting does not unfairly prejudice defendant as it merely further corroborates the other evidence regarding defendant's gang involvement and motive for the crimes committed against Mr. Gagnon. See Rainey, 198 N.C.App. at 433, 680 S.E.2d at 766. Accordingly, these arguments are overruled.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judges STEPHENS and BEASLEY, concur.
Report per Rule 30(e).