Opinion
No. COA10-743
Filed 7 June 2011 This case not for publication
Upon writ of certiorari granted by this Court on 27 May 2009 from judgments entered 7 February 2006 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State. Ferikes Bleynat, PLLC, by Mary March Exum, for defendant-appellant.
Mecklenburg County Nos. 04 CRS 233667, 233669, 233670, 237424, 235113.
Where the victims of defendant's robberies identified defendant as the perpetrator of the robberies, there was no plain error in admitting defendant's confession. Where defendant pled guilty to two counts of robbery with a dangerous weapon, we do not review defendant's arguments as to the denial of his motions to dismiss those charges. Where the threatened force supporting the assault charge was inherent in the robbery, defendant's conviction for assault must be arrested. Where defendant's stipulation as to his prior felony conviction was introduced solely to establish an element of the charge possession of a firearm by a felon, the trial court did not err in refusing to sever for trial that charge from the remaining charges against defendant.
I. Factual and Procedural History
On 29 July 2004, Detective Chris Perez of the Charlotte-Mecklenburg Police Department ("Perez") received a voicemail from Elaine Mitchell ("Mitchell"), grandmother of Donte Massey ("defendant"). Perez had met Mitchell and defendant a year and a half prior to the voicemail. Mitchell's 29 July 2004 voicemail stated that defendant had been arrested, and requested that Perez get defendant out of jail and talk with him.
The following day Perez signed defendant out of jail, took him to the police station, and had a conversation with him in the presence of Detective J.D. Ware. After defendant executed a Juvenile Waiver of Rights, defendant confessed to Perez that he had robbed a man off of Maggie Lane on 23 July 2004. Defendant stated that the victim had approached him to buy cocaine, and he decided to rob him. Defendant pulled a gun on the victim; the victim attempted to take the gun; after a struggle defendant ran; the victim shot at defendant; and several men held defendant down until the police arrived. Defendant then confessed to being involved in a robbery that took place in the 8000 block of Waterford Lakes Drive on 17 July 2004. Defendant stated that he and his friend "Duke" were at a store when a Hispanic man approached them seeking to purchase cocaine. Defendant and Duke got in the victim's car under the pretense of going to purchase cocaine from a friend of Duke's. The three drove to Waterford Lake, where Duke exited the car, returned with a gun, and robbed the victim of $30. The $30 was used to purchase marijuana, which Duke and defendant smoked. Finally, defendant confessed to his involvement in a robbery that took place on 1 July 2004 in the 7700 block of Waterford Drive. On that evening defendant and Duke were walking through Waterford Lakes when a man pulled up to his mailbox. Duke went up to the man and robbed him at gunpoint of $600 and his cell phone while defendant watched. Defendant received $200 from the robbery. The victims of the 1 July and 17 July robberies identified defendant as the gunman, rather than Duke.
On 16 August 2004, defendant was indicted for possession of a handgun by a minor (04 CRS 233668), possession of a firearm by a felon (04 CRS 233670), assault with a deadly weapon with intent to kill (04 CRS 233669), and attempted robbery with a dangerous weapon (04 CRS 233667) all arising out of the 23 July 2004 incident. The charge against defendant for possession of a handgun by a minor was dismissed on 25 October 2005. The remaining charged offenses were joined for trial with two other charges against defendant for robbery with a dangerous weapon arising out of the incidents that took place on 1 July and 17 July 2004 (04 CRS 237424 and 04 CRS 235113) .
Defendant made a motion to suppress his confession but withdrew that motion prior to the trial court making a ruling. On 6 February 2006, the jury found defendant guilty of one count of attempted armed robbery, possession of a firearm by a felon, and assault with a deadly weapon all arising out of the 23 July incident. The jury was unable to reach a unanimous verdict on the remaining two charges of robbery with a dangerous weapon arising out of the 1 July and 17 July incidents. Subsequently, defendant entered into a plea arrangement with the State as to the two remaining charges of robbery with a dangerous weapon. Defendant pled guilty to those charges upon the State's agreement that the charges would be consolidated and the sentence imposed would run concurrently with the sentence he received on the three charges of which he was found guilty by the jury. Defendant was sentenced to 103 to 133 months imprisonment for one count of attempted robbery with a dangerous weapon and two counts of robbery with a dangerous weapon. The defendant was credited with the 582 days he spent in confinement prior to the entry of judgment. Defendant was sentenced to 75 days imprisonment for the offense of assault with a deadly weapon, and 16 to 20 months imprisonment for possession of a firearm by a felon. The three sentences were to run consecutively.
On 27 May 2009, this Court granted defendant's petition for writ of certiorari to review these judgments entered against him.
II. Confession
In his first argument, defendant contends the trial court erred in admitting his confession into evidence because it was obtained in violation of his Fifth Amendment right under the United States Constitution to be free from compelled self-incrimination. We disagree.
A. Standard of Review
Defendant did not obtain a ruling on his motion to suppress his confession from the trial court, nor did he object to the admission of his confession at trial.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R. App. P. 10(a)(4) (2009). "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. Golphin, 352 N.C. 364, 449-50, 533 S.E.2d 168, 224 (2000) (quotation omitted).
B. Analysis
We hold that even assuming arguendo the trial court erred in admitting defendant's confession, the admission of the confession did not amount to plain error. Had the confession not been admitted the jury probably would not have reached a different result. The victims of the 1, 17, and 23 July 2004 robberies each identified defendant in court as the gunman in those robberies. This evidence likely would have been sufficient to convict defendant. The trial court's admission of defendant's confession did not rise to the level of plain error.
This argument is without merit.
III. Motions to Dismiss
In his second argument, defendant contends that the trial court erred in denying his motions to dismiss the robbery charges for the 1 and 17 July 2004 incidents and for not dismissing the assault with a deadly weapon with intent to kill charge relating to the 23 July 2004 incident. We agree in part and dismiss in part.
A. Robbery Charges
Pursuant to N.C. Gen. Stat. § 15A-1444 "a defendant who has entered a plea of guilty is not entitled to appellate review as a matter of right, unless the defendant is appealing sentencing issues or the denial of a motion to suppress, or the defendant has made an unsuccessful motion to withdraw the guilty plea." State v. Rinehart, 195 N.C. App. 774, 776, 673 S.E.2d 769, 770-71 (2009) (quotation omitted), appeal dismissed, disc. review denied, 363 N.C. 380, 680 S.E.2d 204 (2009) . A defendant who has entered a guilty plea is not entitled to appellate review of his motion to dismiss that charge under N.C. Gen. Stat. § 15A-1444. Id.; State v. Smith, 193 N.C. App. 739, 742, 668 S.E.2d 612, 614 (2008), writ denied, disc. review denied, 684 S.E.2d 37 (2009). This Court granted defendant's petition for writ of certiorari to review only those issues "entitled to be raised by [defendant] pursuant to N.C. Gen. Stat. § 15A-1444." Since defendant entered pleas of guilty to the charges of robbery with a dangerous weapon arising out of the incidents of 1 and 17 July, defendant's arguments as to the sufficiency of the evidence as to these charges are dismissed.
We further note that defendant did not include the bills of indictment for cases 04 CRS 237424 and 04 CRS 235113 in the record, and that neither of these cases were included in the order granting defendant's petition for writ of certiorari. Each of these constitute a separate and independent basis for the summary dismissal of any purported appeal of these two charges.
B. Assault with a Deadly Weapon
At the conclusion of all the evidence defendant moved for dismissal of the assault with a deadly weapon with intent to kill charge based upon the sufficiency of the evidence. Defendant was convicted of the lesser included offense of assault with a deadly weapon. Defendant did not commit an assault apart from the threatened force inherent in the robbery. State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998); State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). Defendant's conviction for assault with a deadly weapon must be arrested.
IV. Motion to Sever
In his third argument, defendant contends the trial court erred by denying defendant's motion to sever the trial on possession of a firearm by a felon from the trial on the remaining charges, because the charge informed the jury that he was a convicted felon. We disagree.
N.C. Gen. Stat. § 15A-928 requires that when the fact that a defendant has been previously convicted of an offense raises an offense to a higher grade, becoming an element of that offense, the State may not refer to the prior conviction before the jury until after the court has conducted an inquiry with the defendant pursuant to § 15A-928(c). If defendant admits the prior conviction, then the current charge is submitted to the jury without reference to the prior conviction. If defendant denies the prior conviction, then the State may prove the prior conviction before the jury.
This Court construed N.C. Gen. Stat. § 15A-928 in State v. Jeffers, 48 N.C. App. 663, 269 S.E.2d 731 (1980), a case factually similar to the instant case. In Jeffers, the defendant argued that the trial court erred in allowing the State to introduce evidence of the defendant's stipulation to a previous conviction in relation to the charge against him of possession of a firearm by a felon. Id. at 665, 269 S.E.2d at 733. In Jeffers this Court held that:
G.S. 15A-928 [] is not applicable in this case. The statute applies solely to cases in which the fact that the accused had a prior conviction raises an offense of "lower grade" to one of "higher grade." G.S. 15A-928(a). Thus, the prior conviction serves to increase the punishment available for the offense above what it would ordinarily be. See State v. Moore, 27 N.C. App. 245, 218 S.E.2d 496 (1975) . The offense charged in the instant case, however, does not have this characteristic. A previous conviction for one of a group of enumerated felonies is an essential element of the offense of possession of a firearm by a felon, and thus in the absence of a prior conviction, there is no offense at all. G.S. 14-415.1; State v. Cobb, 284 N.C. 573, 201 S.E.2d 878 (1974). . . .
Nor do we see anything else improper with the trial court's treatment of the prior conviction. The State merely introduced defendant's stipulation into evidence so that there would be no doubt as to that particular element of the offense being satisfied. The State offered no other evidence in regard to defendant's prior conviction, and the court properly instructed the jury in its charge to consider the conviction only for the purpose of establishing an essential element of the offense and not as evidence of guilt or predisposition. We, therefore, see no error in the introduction of defendant's prior conviction in this case.
Id. at 666, 269 S.E.2d 733-34.
In the instant case the stipulation as to defendant's felony conviction was presented to the jury in the following manner:
THE COURT: Members of the jury, the Court, the State and the Defense have stipulated, that is, agreed that on August 26th of 2003, the Defendant, Donte Massey, was convicted of a felony here in Mecklenburg County, Superior Court.
. . . .
And ladies and gentlemen, a stipulation is a type of an agreement, and the significance of the stipulation is when facts are stipulated to, then the State doesn't have the burden of proving those facts, beyond a reasonable doubt; they are agreed to.
Just as in Jeffers the stipulation in the instant case was introduced "into evidence so that there would be no doubt as to that particular element of the offense being satisfied" and no other evidence relating to defendant's prior conviction was introduced into evidence. 48 N.C. App. 666, 269 S.E.2d 734. The trial court in Jeffers explicitly stated that the prior conviction was to be considered only for the purpose of establishing the elements of the offense of possession of a firearm by a felon, and not as evidence of defendant's guilt or predisposition. Id. While the trial court in the instant case did not explicitly state defendant's prior conviction was not to be considered as evidence of his guilt, the trial court did make clear that the significance of a stipulation is to remove the burden from the State of proving the fact stipulated to beyond a reasonable doubt. We hold that under the rationale of Jeffers the trial court did not err in failing to sever defendant's trial for possession of a firearm by a felon from his trial on the other charges, and the trial court did not err in submitting defendant's stipulation as to his prior felony conviction to the jury.
This argument is without merit.
V. Conclusion
We hold that there was no error as to defendant's convictions for attempted robbery with a dangerous weapon (04 CRS 233667) and possession of a firearm by a felon (04 CRS 233670). Any purported appeal as to the two convictions for robbery with a dangerous weapon (04 CRS 237424 and 04 CRS 235113) is dismissed. Defendant's conviction for assault with a deadly weapon (04 CRS 233669) is reversed and remanded to the Superior Court of Mecklenburg County for entry of an order arresting judgment in that case.
NO ERROR as to cases 04 CRS 233667 and 04 CRS 233670.
APPEAL DISMISSED as to cases 04 CRS 237424 and 04 CRS 235113.
REVERSED AND REMANDED as to case 04 CRS 233669.
Judges STEPHENS and HUNTER, Jr., ROBERT N. concur.
Report per Rule 30(e).