Opinion
No. COA09-62-2
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgment entered 4 August 2008 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 10 June 2009. Reversed by the Supreme Court on 20 December 2010 and remanded to this Court for consideration of defendant's remaining assignments of error.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Norma S. Harrell, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Onslow County No. 07 CRS 52897.
Background
On 1 September 2009, this Court held in State v. Melvin, 199 N.C. App. 469, 476, 682 S.E.2d 238, 243 (2009) ( Melvin I), that the trial court committed plain error by failing to instruct the jury that it could find Jihad Rashid Melvin ("defendant") guilty of either first degree murder or accessory after the fact to first degree murder, but could not find defendant guilty of both mutually exclusive offenses. The Supreme Court in State v. Melvin, 364 N.C. 589, 594, 707 S.E.2d 629, 633 (2010) ( Melvin II), held that while the trial court erred in its instructions to the jury, the error did not amount to plain error due to the overwhelming evidence that defendant aided and abetted first degree murder. The Court reasoned:
The jury, given the opportunity to consider separately the offenses of murder and accessory after the fact, convicted defendant of both, indicating its intent to hold defendant accountable to the fullest extent of the law. Accordingly, we are satisfied that the jury would have convicted defendant of the more serious offense had it been required to choose between the two charges. In light of the overwhelming evidence of first-degree murder, we cannot conclude that a different result would have been probable if the trial court had given a proper instruction.
Id. at ___, 707 S.E.2d at 633. The Supreme Court then remanded this case for consideration of defendant's remaining assignments of error.
A detailed factual background is set out in Melvin I and Melvin II; therefore, we see no need to repeat the facts in this opinion. We will discuss any pertinent facts as they relate to defendant's remaining assignments of error.
Analysis
From the outset, we note that most of defendant's arguments require a plain error standard of review and it is well established that "the plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error." State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463, appeal dismissed and disc. review denied, 363 N.C. 376, 679 S.E.2d 139 (2009). Consequently, defendant must show that any one error amounted to plain error, which is a heavy burden in this case given the Supreme Court's determination that the evidence of defendant's guilt was so overwhelming that the instructional error did not amount to plain error.
I.
Defendant argues that the trial court erred in admitting evidence, through the testimony and letters of co-defendant Tony Cole, that Cole pled guilty and that defendant refused to accept a plea offer. Defendant further argues that the prosecutor improperly alluded to defendant's refusal to plead during his closing argument.
First, as to Cole's admission that he accepted a plea offer,
evidence of a co-defendant's guilty plea is not competent as evidence of the guilt of the defendant standing trial. Thus, if such evidence is introduced for that illegitimate purpose — solely as evidence of the guilt of the defendant on trial — it is not admissible. Our case law indicates, however, that if evidence of a testifying co-defendant's guilty plea is introduced for a legitimate purpose, it is proper to admit it.
State v. Rothwell, 308 N.C. 782, 786, 303 S.E.2d 798, 801 (1983). Defendant specifically contends that Cole's admission was entered "for the illegitimate purpose of proving defendant's guilt and bolstering Cole's credibility."
The prosecution first asked Cole on direct examination if he had previously entered a guilty plea and Cole responded that he pled guilty to being an accessory after the fact. Defendant did not object. The State claims that the prosecutor asked Cole about his plea as a "pre-emptive strike" because it was likely that defense counsel would ask Cole about his plea to establish that Cole had an incentive for testifying against defendant. On cross-examination, defense counsel did, in fact, spend a significant amount of time asking Cole about his plea. Defense counsel even offered into evidence a "blowup" of the third page of Cole's plea agreement.
While defendant has arguably waived review of this issue entirely, we will, however, review the admission of Cole's original statement on direct examination that he pled guilty for plain error.
Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.
State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). Assuming, arguendo, that Cole's admission on direct examination that he had entered a guilty plea was admitted for an improper purpose, we hold that such admission does not rise to the level of plain error given the overwhelming evidence of defendant's guilt and the fact that defense counsel questioned Cole extensively about his plea. Moreover, our Supreme Court has held that no prejudicial error occurs when a co-defendant admits that he pled guilty and simultaneously "disclose[s] his own participation in the crimes for which defendant [is] being tried." Rothwell, 308 N.C. at 787-88, 303 S.E.2d at 802. Such is the case here.
Second, as to statements by Cole alluding to a plea bargain offered to defendant, it is well established that, "[t]he fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings." N.C. Gen. Stat. § 15A-1025 (2009); see also N.C. Gen. Stat. § 8C-1, Rule 410 (2009) ("Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do[es] not result in a plea of guilty" is inadmissible at trial.). N.C. Gen. Stat. § 15A-1025 "was designed to facilitate plea discussions and agreements by protecting both defendants and prosecuting officials from being penalized for engaging in practices which are consistent with the objectives of the criminal justice system." State v. Wooten, 86 N.C. App. 481, 482, 358 S.E.2d 78, 78 (1987) (internal citation and quotation marks omitted). This Court has established a two-part test for determining whether the introduction of evidence regarding plea discussions is reversible error: (1) whether the communications actually constituted a "plea discussion," and (2) whether the challenged testimony resulted in prejudice to the defendant. State v. Walker, 167 N.C. App. 110, 120, 605 S.E.2d 647, 655 (2004), vacated on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006).
Here, Cole testified on behalf of the State and claimed that both he and defendant were present when the victim, Almario Millander, was fatally shot by Robert Ridges ("Robert") on 21 March 2007. As stated supra, on direct examination, the State asked Cole if he had entered a plea of guilty in this case and Cole responded that he pled guilty to being an accessory after the fact, but had not been sentenced. No inquiry was made regarding any plea offers or discussions defendant may have entered into with prosecutors.
On cross-examination, defense counsel questioned Cole regarding his plea offer, focusing on the fact that Cole would receive a mitigated sentence for entering a plea and agreeing to testify against defendant at trial. Defense counsel then asked Cole if he had written to defendant while he was in prison and Cole responded that he had. Defense counsel then read a portion of one of the letters Cole had written, stating: "I can get on the stand and play dumb and they can charge me up to 261 months?" Defense counsel read a portion from a second letter as follows: "Man, get straight to the point of it. Listen, I done told you before, man, I didn't write no statement on you. I ain't put you in nothing. They already are trying to put you in shit from the beginning. You feel me?"
On re-direct, the State sought to enter the two letters into evidence pursuant to Rule 106 of the North Carolina Rules of Evidence, which provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." N.C. Gen. Stat. § 8C-1, Rule 106 (2009). Defense counsel did not object. The letters were entered as defense exhibits 10 and 11 and State's exhibits 18 and 19 respectively. Cole was asked by the prosecutor to read the two letters to the jury in their entirety. In the first letter, Cole refers to the fact that he pled guilty and states: "If you feel like you're going to be able to beat that shit at trial, then try it. But I hope and pray you make the right decision on this." In the second letter, Cole asks defendant: "Why won't you get a plea and enter both charges at once? I heard they offered you ten." Cole further stated: "Sometimes people just got to take responsibility for their actions." The prosecutor did not ask Cole any specific questions pertaining to defendant's plea negotiations. The prosecutor asked Cole what he meant by taking responsibility and Cole responded that he heard that the State had "c[o]me in with a plea" and he "was saying go ahead and take your responsibilities for your actions like I did."
Arguably, defendant has also waived appellate review of this issue since defendant initially introduced the letters to impeach Cole and the State was, therefore, entitled to submit the letters in their entirety pursuant to Rule 106. Upon submission, defendant did not request that the letters be redacted to exclude any references to plea offers made to defendant. See State v. Flowers, 347 N.C. 1, 24, 489 S.E.2d 391, 404-05 (1997) (holding that defendant waived appellate review where a transcript from a previous proceeding was entered into evidence and contained a reference to defendant's plea negotiations, but defense counsel failed to object or request that the transcript be redacted), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998). Nevertheless, we hold that admission of Cole's letters was not erroneous. The bare assertion by Cole that he was under the impression that defendant had been given a plea offer, without more, does not violate N.C. Gen. Stat. § 15A-1025 or Rule 410. See id. at 26, 489 S.E.2d at 405 (holding that letter written by defendant "mention[ing] . . . the possibility of a plea bargain" was not erroneously admitted). In other words, Cole's statements in the two letters did not constitute evidence of "plea discussions" as contemplated by N.C. Gen. Stat. § 15A-1025 and Rule 410.
Defendant does not explicitly argue that the trial court erred in its discretionary decision to admit the letters pursuant to Rule 106.
Third, defendant argues that the prosecutor improperly commented upon defendant's failure to plead during closing arguments when he referenced Cole's letters and stated: "The difference between Tony Cole and [defendant] is Tony Cole took responsibility for his actions. . . ." "[R]eference by the State to a defendant's failure to plead guilty is violative of his Sixth Amendment right to a jury trial." State v. Thompson, 118 N.C. App. 33, 41, 454 S.E.2d 271, 276, disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995).
Defendant did not object to the prosecutor's statements; consequently, we must ascertain whether the comments were so grossly improper as to require the trial court to intervene ex mero motu. "Under this standard, `only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.'" State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996)). "To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).
The prosecutor's statement in this case can only be interpreted to mean that defendant, unlike Cole who pled guilty, failed to take responsibility for his actions. While we acknowledge that the remark was improper, we hold that, given the overwhelming evidence of defendant's guilt, it did not render the conviction fundamentally unfair such that a new trial is warranted. See State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 536 (2004) (assuming, arguendo, that the prosecutor's closing argument was erroneous, error was not reversible where substantial evidence supported the guilty verdict); State v. Davis, 353 N.C. 1, 29, 539 S.E.2d 243, 262 (2000) (holding, "[e]ven if error, we do not conclude that the prosecutor's arguments were so improper as to require intervention by the trial court ex mero motu").
II.
Next, defendant argues that the trial court committed plain error by allowing Cole to state that his testimony was "the truth" and that the trial court erred by failing to intervene ex mero motu during the prosecutor's closing argument when he stated that Cole told the truth on the stand. We disagree.
First, defendant contends that the trial court committed plain error by admitting evidence that Cole's testimony was "the truth." During cross-examination, defense counsel challenged Cole's credibility by eliciting that he had initially lied to police investigators. Near the conclusion of the State's redirect examination, the following exchange took place, absent an objection, between the prosecutor and Cole:
Q: Is that letter the truth?
A: I mean from what I — from what I thought at first, I was thinking like well, I can get no more than five. They call me up to testify, then I ain't going to — ain't going to do right. But then after finding out that I can get 261 months if I didn't cooperate like I'm supposed to, then I got to thinking. 20 years? For what?
Q: I mean did you testify to the truth today?
A: Yes.
"The question of whether a witness is telling the truth is a question of credibility and is a matter for the jury alone." State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d 778, 784, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438 (1995). "[U]nder our prior case law it is improper for defense counsel to ask a witness (who has already sworn an oath to tell the truth) whether he has in fact spoken the truth during his testimony." State v. Chapman, 359 N.C. 328, 364, 611 S.E.2d 794, 821 (2005). In Chapman, the Court held that error occurred when the witness was asked to affirm that he was telling the truth, but the Court reasoned that
the error cited by defendant involves the prosecutor's questions to the State's witness after that witness's credibility had been attacked. . . . [D]efendant did not object to the prosecutor's questions concerning [the witness's] truthfulness at trial; thus, defendant must show plain error to prevail on appeal. . . . After thorough review of the record, we cannot say that [the witness's] responses probably altered the outcome of the trial.
Id. We reach the same conclusion here under similar facts and hold that the admission of Cole's statement that he was telling the truth did not amount to plain error.
Second, defendant argues that the trial court erred by failing to intervene ex mero motu when the prosecutor stated repeatedly during closing argument that Cole was telling "the truth." Specifically, defendant contends that these remarks violated N.C. Gen. Stat. § 15A-1230 (2009), which states:
During a closing argument to the jury an attorney may not . . . express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
In his closing argument, the prosecutor stated:
Tony Cole got on that witness stand in this trial . . . had his testimony subjected to cross-examination. You got to hear anything and everything they could think of to ask him. And when it was all said and done, I submit to you that his testimony was believable. I mean you — you know, these letters speak volumes. You know, it's truth coming out of these letters.
Tony Cole told you that the defendant was present for the confrontation between Ridges and Almario Millander. Why should you believe that? Because Leslie Steele told you the same thing. Where is his ax to grind? Areisa Hopkins told you the same thing. Where is her ax to grind?
. . . .
There are too many facts and circumstances in this case that prove that Tony Cole is telling you the truth. Too many things, like the note in Almario's coat. Too many things, like the wig, the hat. There's too many things. It doesn't add up that he's not telling you the truth.
Upon review of the prosecutor's statements in context,
[w]e believe that these comments "were more in the nature of giving reason why the jury should believe the State's evidence than that the prosecuting attorney was vouching for the credibility of the State's witnesses." None of the statements complained of by defendant were so grossly improper that the trial court should have intervened ex mero motu.
State v. Burrus, 344 N.C. 79, 94, 472 S.E.2d 867, 877 (1996) (quoting State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994)); see State v. Wiley, 355 N.C. 592, 621, 565 S.E.2d 22, 43 (2002) (holding prosecutorial statements on closing argument that a witness "came forward and began to tell the truth and has told pretty much the truth[]" permissible after the witness's credibility had previously been attacked by the defense counsel), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). In sum, we hold that Cole's statement that he was telling the truth and the prosecutor's closing argument do not amount to reversible error.
III.
Defendant contends that the trial court committed plain error in allowing the State to impeach its own witness, Elijah Ridges ("Elijah"), with evidence of his prior inconsistent statement to police. We disagree.
Rule 607 of the North Carolina Rules of Evidence provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him." As a result:
[W]here there is testimony that a witness fails to remember having made certain parts of a prior statement, denies having made certain parts of a prior statement, or contends that certain parts of the prior statement are false, . . . the witness [may] be impeached with the prior inconsistent statement.
State v. Riccard, 142 N.C. App. 298, 303, 542 S.E.2d 320, 323, cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001). "However, it is well settled that in such situations the prior inconsistent statements may only be used to impeach the witness' credibility; they may not be admitted as substantive evidence." State v. Miller, 330 N.C. 56, 63, 408 S.E.2d 846, 850 (1991).
Here, Elijah testified on direct examination that he drove his brother Robert, and another man whom he could not identify, to Fayetteville on 23 March 2007. The prosecutor asked Elijah if he had talked to the investigating officer, Captain Sutherland, about that trip to Fayetteville, and Elijah testified that he had "talked to him a couple times." The State then proceeded to ask Elijah about prior oral statements he made to Captain Sutherland in which he stated that defendant was, in fact, the third person in the car. Elijah admitted that he agreed with Captain Sutherland when he suggested that defendant was the third person in the car; however, he did not know at the time whether or not it actually was defendant. On cross-examination, Elijah stated that the third person in the car had the same body type and shape as defendant, but he did not know who that person was.
Defendant relies on State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989), to argue that the State called Elijah, knowing that he would not testify consistently with his prior statements to police, in order to impeach him with those prior statements. In Hunt, our Supreme Court prohibited the introduction of the substance of a witness's prior statement to impeach that witness when she denied making the prior statement. Id. at 348-49, 378 S.E.2d at 757. In so holding, the Hunt Court recognized several indicia of good faith and the absence of subterfuge: "[T]hat the witness's testimony was extensive and vital to the government's case; that the party calling the witness was genuinely surprised by his reversal; or that the trial court followed the introduction of the statement with an effective limiting instruction." Id. at 350, 378 S.E.2d at 758 (internal citations omitted).
There is no indication in the present case that the State knew that Elijah would testify contrary to his statements to Captain Sutherland. Captain Sutherland testified that he reviewed the oral statement with Elijah the Monday before he was scheduled to testify, and Elijah agreed that the statements were accurate. Although Elijah was "reluctant" and "fearful" on the day he was supposed to testify, he did not state that he would deny that defendant was the third person in the car.
In sum, the facts indicate "good faith and an absence of subterfuge" by the State. Id. It does not appear that the State knew in advance that Elijah would claim he did not remember who was in the car or that he merely agreed with Captain Sutherland when previously questioned that defendant was in the car. Even assuming, arguendo, the trial court erred in allowing the State to impeach Elijah using the prior statements he made to Captain Sutherland, defendant has failed to demonstrate 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). Likewise, as to defendant's related argument that the trial court committed plain error in allowing Captain Sutherland to testify concerning the content of Elijah's prior statements, we hold that assuming, arguendo, that the admission was erroneous, it did not amount to plain error. Again, the Supreme Court determined that the evidence of defendant's guilt was overwhelming.
IV.
Next, defendant contends that the trial court committed plain error by: (1) allowing Cole to testify that defendant and Robert did, in fact, go to Fayetteville after the murder of Millander in violation of Rule 602; (2) allowing Cole to testify that defendant and Robert told him that they were going to Fayetteville in violation of Rule 801(d); and (3) allowing officers to testify that Cole told them that defendant and Robert went to Fayetteville in violation of Rule 801(d). Assuming, arguendo, that any of these statements were erroneously admitted, we hold that any such error does not amount to plain error.
V.
Defendant contends that the trial court committed plain error in allowing Investigator George Hardy ("Investigator Hardy"), Captain Sutherland, Cole, and Deputy Sheriff Robert Ides ("Deputy Ides") to testify that defendant was wanted and on the run from law enforcement, that he made his living "selling drugs" and "slinging dope," and that defendant was previously arrested for possession of crack cocaine with intent to sell on the ground that such testimony was inadmissible character evidence under Rule 404(b). Assuming, arguendo, that any of these statements were erroneously admitted, we hold that any such error does not amount to plain error.
VI.
Next, defendant asserts that the trial court erred in failing to dismiss the first degree murder charge as there was insufficient evidence to support that he either acted in concert or aided and abetted in the murder of Millander. We disagree.
Upon a motion to dismiss, the trial court "must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of the crime." State v. Ford, 194 N.C. App. 468, 472-73, 669 S.E.2d 832, 836 (2008). On appeal, this Court "must view the evidence in the light most favorable to the State, resolving all conflicts in the evidence in favor of the State and giving it the benefit of all reasonable inferences." State v. Tirado, 358 N.C. 551, 582, 599 S.E.2d 515, 536 (2004), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005); see State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988) ("If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied."). Evidence presented by the defendant, "unless favorable to the State, is not to be taken into consideration." State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). Substantial evidence means "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
In the instant case, the State submitted the charge of first degree murder to the jury under the theories of acting in concert and aiding and abetting. Our Supreme Court has established that "the distinction between aiding and abetting and acting in concert . . . is of little significance." State v. Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980) (internal citation omitted). Nevertheless, we will address each theory separately.
A. Acting in Concert
The doctrine of acting in concert provides that
if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (internal citations and quotation marks omitted), cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134.
Here, the State produced sufficient evidence from which a reasonable jury could conclude that defendant acted in concert with Robert to shoot Millander. The evidence at trial tended to establish that defendant and Cole were with Robert when he had a drug related altercation with Millander. Defendant knew that Robert was armed and intended to shoot Millander when he went to the trailer with Cole and Robert. Defendant remained outside of the trailer when the murder took place, then drove Cole and Robert from the scene. Defendant then fled to Fayetteville with Robert. Based on these facts, viewed in the light most favorable to the State, we hold that the trial court did not err in denying defendant's motion to dismiss.
B. Aiding and Abetting
One aids and abets another in the commission of an offense if:
(i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission or the crime by that other person.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted). To be guilty of aiding and abetting, defendant must "aid or actively encourage the person committing the crime or in some way communicate to th[e principal] his intention to assist in its commission." Id. "[W]hen the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement." Id.; see State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975) (holding that defendant's intention to aid the perpetrator does not have to be communicated through his express words), cert. denied, 423 U.S. 1091, 47 L. Ed. 2d 102 (1976). Again, based on the facts of this case, we hold that there was sufficient evidence that defendant aided and abetted the murder of Millander; consequently, we hold that the trial court did not err in denying defendant's motion to dismiss.
VII.
Defendant contends that the trial court committed plain error by failing to instruct the jury that it must find whether defendant's conviction of first degree murder was based solely on Cole's uncorroborated testimony pursuant to N.C. Gen. Stat. § 14-5.2 (2009) and State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995). N.C. Gen. Stat. § 14-5.2 states:
All distinctions between accessories before the fact and principals to the commission of a felony are abolished. Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony. However, if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B felony.
We have reviewed defendant's argument and find it to be without merit since the evidence can only support an inference that defendant was actually or constructively present at the scene, and, therefore, he could not have been guilty of merely being an accessory before the fact. See State v. Brown, 350 N.C. 193, 212, 513 S.E.2d 57, 69 (1999) (stating that a "defendant must not have been present when the murder was committed" to be convicted of accessory before the fact).
VIII.
Finally, defendant claims that the trial court erred in recommending that defendant pay $6,000.00 in restitution to Tameka Millander ("Tameka") for the purpose of reimbursing her for her brother-in-law's funeral costs and related expenses. Defendant claims that the restitution ordered was invalid as a matter of law under N.C. Gen. Stat. § 15A-1446(d)(18) (2009). Defendant did not object to the restitution ordered; nevertheless, this matter is fully reviewable on appeal. State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010).
The trial court's order or recommendation of restitution must be supported by competent evidence presented either at trial or sentencing. State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). The prosecutor's bare assertion that restitution should be ordered in a certain amount is not considered competent evidence. See State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (emphasizing that unsworn statements by the prosecutor are not evidence); State v. Calvino, 179 N.C. App. 219, 223, 632 S.E.2d 839, 843 (2006) (vacating restitution award because prosecutorial statements alone, absent a stipulation by the defendant, did not support restitution awarded). Furthermore, a restitution worksheet alone, "is insufficient to support an order of restitution." State v. Blount, ___ N.C. App. ___, ___, 703 S.E.2d 921, 926-27 (2011) (stating that a restitution worksheet must be supported by testimony, documentation, or stipulation); State v. Mauer, ___ N.C. App. ___, ___, 688 S.E.2d 744, 778 (2010) (vacating restitution award where "[t]he victim did not testify, . . . the worksheet was not supported by any documentation" and not stipulated to by the defendant).
Here, at sentencing, the prosecutor submitted to the trial court a restitution worksheet requesting $6,000.00 in restitution for Tameka. Defendant did not stipulate to the worksheet and the State did not produce any evidence or supporting documentation at trial or sentencing of any monetary loss or expenses suffered by Tameka as a result of the victim's death. Consequently, we must reverse the trial court's recommendation and remand for further proceedings not inconsistent with this opinion. See Blount, ___ N.C. App. at ___, 703 S.E.2d at 927 (concluding that because "no evidence was presented in support of the restitution worksheet, and defendant did not stipulate to the amount specified, the trial court erred in ordering defendant to pay $6,225.00 in restitution").
Conclusion
While defendant's trial was not free from error, we see no plain error or ex mero motu error that would require a new trial. Again, errors are not viewed cumulatively to establish plain error, Dean, 196 N.C. App. at 194, 674 S.E.2d at 463, and defendant has not met the burden of showing that any one error amounted to plain error. However, we reverse and remand on the issue of restitution.
No prejudicial error in part, reversed and remanded in part.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).