Opinion
No. COA11–749.
2012-05-1
STATE of North Carolina v. Michael Anthony KERR.
Roy Cooper Attorney General, by Special Deputy Attorney General Daniel D. Addison, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III & Kirby H. Smith, III, for defendant-appellant.
Appeal by defendant from judgments entered 14 January 2011 by Judge Milton F. Fitch, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 29 November 2011. Roy Cooper Attorney General, by Special Deputy Attorney General Daniel D. Addison, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III & Kirby H. Smith, III, for defendant-appellant.
STEELMAN, Judge.
The trial court did not abuse its discretion in joining for trial the charge of possession of a firearm by a felon with the other charges arising out of the same conduct. The trial court did not err in allowing the State to examine a witness concerning his prior statement that he acknowledged making, but repudiated at trial. The State presented substantial evidence that the defendant was the perpetrator of all four charged felonies, and the trial court properly denied defendant's motions to dismiss. While the trial court erred in starting to take defendant's guilty plea to habitual felon status in front of the jury, this error was not prejudicial. The DCI printout of defendant's prior record presented by the State was sufficient evidence to support the trial court's finding that defendant was a prior felony record Level V.
I. Factual and Procedural Background
On the evening of 20 September 2008, Sharon James (James) was talking on the telephone in the living room of her apartment located in Garland, North Carolina, when she heard three “firecracker” sounds and glass fall from her kitchen window. She ran to the kitchen and saw glass in the sink. She then ran to her front porch and saw her next-door neighbor, Antonio Kerr (Antonio), who told her “Michael Kerr was shooting our house up.” Michael Anthony Kerr (defendant) is the father of Antonio. James observed defendant driving his blue pickup truck. Defendant drove into Antonio's driveway, and started shooting again. Defendant then shouted that it “wasn't over,” and drove off. James called police.
James' cousin had been tried and convicted of the murder of one of defendant's sons. James testified at the trial as a witness for her cousin.
In his initial statement to police, Antonio identified defendant as being present at the time of the shootings, in possession of a black gun. The statement also indicated that defendant drove away after the shootings in his blue pickup truck. At trial, Antonio testified that his statement to police was false and that the man involved in the shootings was not his father.
Defendant was indicted for three counts of discharging a firearm into property occupied by James, for possession of a firearm by a felon, and for being a habitual felon. On 14 January 2011, a jury found defendant guilty of the four substantive charges, and later that day, the same jury found him guilty of being a habitual felon. The trial court found defendant to be a Level V for the purpose of felony structured sentencing. The three convictions for discharging a firearm into occupied property were consolidated for judgment, and defendant was sentenced as a habitual felon to an active term of imprisonment of 151–191 months. A consecutive active sentence of 151–191 months was imposed for the charge of possession of a firearm by a felon as a habitual felon.
Defendant appeals.
II. Denial of Motion to Sever the Charge of Possession of a Firearm by a Felon for Trial
In his first argument, defendant contends that the trial court erred in denying his motion to sever for purposes of trial the charge of possession of a firearm by a felon from the three charges of discharging a firearm into occupied property. We disagree.
A. Standard of Review
We review the trial court's decision to join or sever criminal charges for trial for an abuse of discretion. State v. Cromartie, 177 N.C.App. 73, 78, 627 S.E.2d 677, 681 (2006).
B. Analysis
On 5 January 2011, the State filed an amended motion for joinder of all of defendant's charges for trial pursuant to N.C. Gen.Stat. § 15A–926. The trial court granted the State's motion for joinder and denied defendant's motion for severance.
Defendant argues that by joining the charge of possession of a firearm by a felon with the other charges, the trial court allowed the State to present evidence of defendant's prior criminal record, which was prejudicial to his trial on the three other offenses. Defendant acknowledges that all four offenses occurred at the same time and that the decisions of this court in Cromartie and State v. Hardy, 67 N.C.App. 122, 312 S.E.2d 699 (1984) rejected the identical prejudice argument that he raises in the instant appeal. Based upon Cromartie, 177 N.C.App. at 78, 627 S.E.2d at 681, and our holding in State v. Floyd, 148 N.C.App. 290, 558 S.E.2d 237 (2002), we hold that the joinder of defendant's four charges did not unjustly or prejudicially hinder defendant's ability to defend himself or to receive a fair hearing. The trial court did not abuse its discretion in granting the State's motion for joinder and denying defendant's motion for severance.
This argument is without merit.
III. Admission of Antonio Kerr's Statement
In his second argument, defendant contends that the trial court erred in allowing the State to examine Antonio Kerr concerning his prior statement to police. We disagree.
A. Standard of Review
Defendant argues that since the admission of Antonio's prior statement was governed by Rule 607 of the North Carolina Rules of Evidence, that the trial court's ruling should be reviewed de novo . This argument is incorrect. “[O]ur standard of review for rulings made by the trial court pursuant to Rule 607 of the North Carolina Rules of Evidence is abuse of discretion.” State v. Banks, –––– N.C.App. ––––, ––––, 706 S.E.2d 807, 814 (2011) (citing State v. Covington, 315 N.C. 352, 356–57, 338 S.E.2d 310, 314 (1986)).
B. Analysis
At trial, the State called Antonio as a witness. When asked if he remembered the evening of 20 September 2008, he testified, “I remember bits and pieces of it because it's been a while.” Antonio testified that after he heard some noises, he saw a black male get into a blue pickup truck. When shown a photograph of defendant's pickup truck, he denied that it was the truck he saw on 20 September 2008. Following this testimony, the prosecutor presented Antonio with his statement of 20 September 2008 that was given to police. Relevant portions of this statement are as follows:
Antonio said when he opened the back door, he saw his father, Michael Anthony Kerr, run and get in his royal blue Ford truck that has tinted windows. Antonio stated his father then drove off in a hurried manner....
Antonio stated he went out the front door and saw his father—saw his father down the road—saw his father down the road in his truck.... Antonio stated his father drove back by the house and he heard another shot so he ran inside.... Antonio stated that when he originally looked out the back door, he saw his father with a black gun.
Defendant argues that the State knew that Antonio would repudiate his statement if called to testify, and that he was called as a witness as a subterfuge to place his statement of 20 September 2008 in front of the jury. Defendant contends that “the State was not acting in good faith” since it never asked if he could identify the black man as his father, but rather had Antonio read his statement (which clearly identified the black man as the defendant) to the jury.
We hold that this is a mischaracterization of what occurred at trial. The State did not immediately upon calling Antonio to the witness stand attempt to place his 20 September 2008 statement before the jury. Rather, Antonio was asked what happened on that date. It was only after Antonio stated that he only saw the black man from the back, could not identify photographs of his father's blue truck, and could not recall if bullet holes in the wall were there prior to the shooting that the State sought to impeach his testimony with his prior statement.
Prior to being examined about the statement, Antonio testified that he recalled speaking with Detective Barber, recalled signing a statement, agreed that looking at the statement would refresh his recollection, acknowledged his signature on the statement, and acknowledged that the statement appeared to be in the same condition.
This issue is controlled by our decision in Banks. In that case, as in the instant case, defendant relied upon the Supreme Court case of State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989) to argue that the impeachment of the witness, Harrin, was subterfuge to get evidence before the jury that was otherwise inadmissible, i.e. her prior statement. We noted that Hunt held that “once a witness denies having made a prior statement, the State may not impeach that denial by introducing evidence of the prior statement.' “ Banks, ––– N.C.App. at ––––, 706 S.E.2d at 815 (quoting State v. Wilson, 135 N.C.App. 504, 507, 521 S.E.2d 263, 264–65 (1999) (discussing the holding in Hunt )). Since Harrin testified at trial that she wrote and signed the statement, we held that Banks was distinguishable from Hunt, where the witness denied any knowledge of the statement. In the instant case, Antonio acknowledged making the prior statement.
“Where the witness admits having made the prior statement, impeachment by that statement has been held to be permissible.” State v. Riccard, 142 N.C.App. 298, 303, 542 S.E.2d 320, 323 (2001). Since Antonio acknowledged the prior statement, the State was permitted to impeach him, under the broad scope of Rule 607 of the North Carolina Rules of Evidence.
The trial court did not abuse its discretion in overruling defendant's objection to this testimony. This argument is without merit.
IV. Denial of Defendant's Motion to Dismiss
In his third argument, defendant contends that the trial court erred in denying his motion to dismiss, made at the close of all of the evidence. We disagree.
A. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455,cert. denied, 531 U.S. 890, 148 L.E.2d 150 (2000). “In ruling on a motion to dismiss the trial court is to consider the evidence in the light most favorable to the State.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652–53 (1982) (citing State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581–82 (1975)). “The defendant's evidence, unless favorable to the State, is not to be taken into consideration.” Id. at 67,296 S.E.2d at 653 (citing State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971)).
B. Analysis
Defendant's argument is limited as to whether the State introduced sufficient evidence that he was the perpetrator of the four felony offenses. He argues that only James identified defendant as the perpetrator and that this testimony was contradicted by Antonio's trial testimony as well as defendant's own testimony. Defendant then renews his attack upon the admission of Antonio's statement, previously discussed in Section III of this opinion.
This argument merely asks us to reweigh the evidence and rule in favor of defendant. This is not the correct standard of review. “[C]ontradictions and discrepancies do not warrant dismissal of the case—they are for the jury to resolve.” Earnhardt, 307 N.C. at 67, 296 S.E.2d at 653. The State presented substantial evidence that defendant was the perpetrator of the crimes. This argument is without merit.
V. Habitual Felon Phase of Trial
In his fourth argument, defendant contends that the trial court committed plain error in allowing defendant to plead guilty to habitual felon status, and then withdraw that plea, in the presence of the same jury that subsequently found him guilty of being an habitual felon. We agree that the trial court erred, but hold that any error did not rise to the level of plain error.
A. Standard of Review
Plain error review of unpreserved issues in a criminal trial is limited to jury instructions and rulings on the admissibility of evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). In this case defendant argues that the trial court failed to give a curative instruction to the jury. To that extent, plain error review is proper in this case. “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
Defendant contends that if the trial court erred, the State has the burden of demonstrating that the error is harmless beyond a reasonable doubt. That is incorrect. The plain error prejudice standard applies—not the standard contained in N.C. Gen.Stat. § 15A–1443(b)—even when a defendant asserts constitutional error as a basis for a new trial. See State v. Lawrence, No. 100PA11, slip op. 11–12 (N.C. April 12, 2012) (stating that the burden shifts to the State when the appellate court is engaged in harmless error review because the issue was preserved at trial); State v. Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000) (stating, in this context, that the defendant must meet the usual plain error prejudice standard).
B. Analysis
The jury returned verdicts of guilty against defendant on three counts of discharging a firearm into occupied property and one count of possession of a firearm by a felon. Following a poll of the jurors, the trial court accepted the four verdicts. With the jury still in the courtroom, the prosecutor arraigned defendant on the charge of being a habitual felon. Defendant entered a plea of guilty. Upon learning that the plea transcript had not yet been filled out, the trial court instructed defense counsel, “[T]ake the answers as I proceed through the transcript.” After going through part of the plea with the court, defendant stated “I want to withdraw that guilty plea.” All of these proceedings took place in the presence of the jury. The State then presented evidence to this jury concerning defendant's three prior felony convictions. Defendant offered no evidence. The charge of habitual felon was submitted to the jury, with argument by defendant, and none from the State. The jury found defendant guilty of being a habitual felon.
Upon acceptance of the jury's guilty verdicts on the four felony charges, the trial court should have excused the jury from the courtroom. Then, the trial court should have inquired as to how defendant would plead to the charge of habitual felon. If guilty, then the plea should have been taken outside the presence of the jury. If not guilty, then the jury should have been returned to the courtroom for trial of the habitual felon charge. Under no circumstances should the guilty plea colloquy have been conducted in front of the jury. Until the entire colloquy required by N.C. Gen.Stat. § 15A–1022 is completed, and the plea has been accepted by the trial court, there is no guilty plea, and there exists the possibility that defendant will decide not to consummate the plea.
Defendant argues that he was prejudiced by the jury hearing his plea of guilty that was subsequently withdrawn. He further contends the trial court compounded this by not giving a curative instruction.
We note that the trial court did not give a specific instruction to the jury as to how it was to consider the defendant's guilty plea and its subsequent withdrawal. However, the trial court did instruct the jury as follows:
The defendant, to this second phase, has entered a plea of not guilty. The fact [that] he has been charged with this status is no evidence of guilt. Under our system of justice, when a defendant pleads not guilty, he's not required to prove his innocence; he's presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt.
This instruction made it clear that defendant pled not guilty, was presumed innocent, and that the State bore the burden of proving his guilt.
The evidence of defendant's three prior felony convictions was uncontroverted. On appeal, defendant does not challenge any of the three convictions. Nowhere in his brief does defendant articulate how, in light of the uncontroverted evidence of his being a habitual felon, that he has met the high burden of showing that but for the alleged error, the jury would have reached a different verdict.
This argument is without merit.
VI. Defendant's Prior Record Level
In his fifth and final argument, defendant contends that the trial court erred, or committed plain error, in sentencing defendant as a prior felony record Level V upon insufficient evidence. We disagree.
A. Analysis
Following the return of the jury's verdict finding defendant guilty of being a habitual felon, the trial court conducted a sentencing hearing. The State submitted a prior record level worksheet (AOC form CR600) and also a DCI criminal history of defendant. These were marked as State's Exhibits 51 and 52 respectively; they were handed to the trial court. Defendant did not stipulate to the worksheet or his record, and he did not object to State's Exhibits 51 or 52. The prosecutor did not formally offer these exhibits into evidence, nor did the trial court state that they were received.
N.C. Gen.Stat. § 15A–1340.14(f) provides four methods of proving a prior conviction of a defendant: (1) stipulation of the parties; (2) an original or copy of the court record of the prior conviction; (3) a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or the Administrative Office of the Court; or (4) any other reliable method. N.C. Gen.Stat. § 15A–1340.14(f) (2011). A prior record level worksheet, standing alone, is insufficient to establish a defendant's prior record level. State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d. 914, 917 (2005). A prosecutor's unsworn statement is not competent to prove a defendant's prior record level. State v. Silas, 168 N.C.App. 627, 636, 609 S.E.2d. 400, 406 (2005).
However, N.C. Gen.Stat. § 15A–1340.14(f) provides that a copy of criminal records maintained by DCI is sufficient. Such a record was presented to the court in the instant case. Defendant does not argue that any of the convictions found by the trial court were not his convictions, that the DCI record was incorrect, or that any of the prior convictions were improperly counted towards his seventeen prior felony record level points. Rather, he argues that the DCI printout was not formally offered and received into evidence at the sentencing hearing. We reject this argument.
North Carolina Rules of Evidence 1101 provides that with the exception of the rules pertaining to privileges, the rules of evidence do not apply to sentencing proceedings. N.C. Gen.Stat. § 8C–1, Rule 1101 (2011). Section 15A–1340.14(f) provides that a copy of the DCI record may be presented to the court and is prima facie evidence that the facts shown therein are true. The statute states that the prosecutor shall “present to the court the offender's full record.” N.C. Gen.Stat. § 15A–1340.14 (f). This was done in this case, without objection by defendant. Defendant cites no authority stating that the prosecutor was required to formally offer the DCI printout into evidence.
Further, without challenging any of the prior convictions on appeal, defendant cannot meet the requirements of showing plain error.
This argument is without merit.
VII. Conclusion
Defendant received a fair trial, free from prejudicial error.
NO PREJUDICIAL ERROR. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).