Opinion
No. COA10-1575
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgment entered 24 August 2010 by Judge James F. Ammons in Robeson County Superior Court. Heard in the Court of Appeals 26 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State. Michael J. Reece, for defendant-appellant.
Robeson County No. 09 CRS 51919.
The trial court did not commit prejudicial error in allowing the State's rebuttal evidence concerning the alleged victim's truthfulness and overruling defendant's objection to that evidence. The trial judge's pretrial statements regarding a potential plea agreement and potential sentencing in the event of a conviction do not demonstrate improper motive in sentencing.
I. Factual and Procedural Background
The evidence presented by the State tended to show the following: On 18 March 2009, Alfredo Mata Castro (Castro) was driving down a road in Robeson County when he was flagged down by a woman near a trailer. She told him that she had a headache and asked that he take her to the store to buy some pills. They began driving to the store when she asked if she could borrow some money. When Castro said no, she asked him to drive her to a friend's house to get some money. They went to a different trailer where Castro waited outside for about ten minutes.
When the woman returned to the car, Lee Richardson (defendant) also got into the car and stated that he wanted to go to the store. With all three persons in the front seat of the car, Castro drove towards the store. Defendant produced a knife and instructed Castro to drive back to the first trailer. The three got out of the car and walked towards the trailer. Castro and the woman entered the trailer. The woman blocked the doors and disrobed. Castro gave the woman $11.00, but did not have sex with her. Defendant then entered the trailer, held a knife to Castro's throat, and took his gold necklace, cell phone, and $410.00 in cash. The three then went back to the car with the woman driving and defendant holding the knife to Castro's throat. When the car came to a stop, defendant and Castro got out. Defendant swung the knife at Castro inflicting an eight-inch wound on the left side of Castro's face. Defendant and the woman drove off in Castro's car. Castro was taken to a hospital for medical treatment. Police apprehended defendant in Hoke County. Castro identified defendant from a lineup.
On 8 September 2009, defendant was indicted on charges of robbery with a dangerous weapon, assault with a dangerous weapon inflicting serious injury, misdemeanor fleeing to elude arrest, and conspiracy to commit robbery with a dangerous weapon.
A jury found defendant guilty of all charges on 24 August 2010. Defendant was sentenced to an active term of imprisonment of 146-185 months for the robbery charge; 59-80 months for the assault charge; and 59-80 months for the conspiracy and fleeing to elude arrest charges. The three sentences were to be served consecutively.
Defendant appeals.
II. Evidence of Castro's Truthfulness
In his first argument, defendant contends that the trial court erred in overruling his objections to the State's rebuttal evidence concerning Castro's truthfulness. We disagree.
A. Standard of Review
The admission of evidence over objection is reviewed for abuse of discretion. State v. Bodden, 190 N.C. App. 505, 512, 661 S.E.2d 23, 27 (2008) (citation omitted), disc. review denied and appeal dismissed, 363 N.C. 131, 675 S.E.2d 660, cert. denied, ___ U.S. ___, 175 L.Ed.2d 111 (2009).
To demonstrate prejudicial error, defendant must show (1) that error occurred and (2) that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2009).
B. Character Evidence
N.C. Gen. Stat. § 8C-1, Rule 608 (2009) provides:
(a) Opinion and reputation evidence of character. — The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
N.C. Gen. Stat. § 8C-1, Rule 405 states, in relevant part:
(a) Reputation or opinion. — In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.
C. Analysis
On rebuttal, the State called Castro's friend Wayne Britt (Britt) to testify as to Castro's character for truthfulness, and two of defendant's objections to the State's questions were overruled. Britt testified, "[Castro]'s a good person and all, that's all." And, "Well, he's just a nice person. If he can help you, he'll help you."
Calling on Britt to testify as to Castro's truthfulness was appropriate because defendant's attorney repeatedly attempted to impeach Castro during cross-examination by asking multiple times if he attempted to purchase sex from the woman. This constituted an attack on Castro's character. State v. Hall, 98 N.C. App. 1, 10, 390 S.E.2d 169, 174 (1990), rev'd on other grounds, 330 N.C. 808, 412 S.E.2d 883 (1992). Once Castro's character had been attacked it could be supported by Britt's opinion evidence as to Castro's reputation for truthfulness. Id. at 10, 390 S.E.2d at 174; N.C. Gen. Stat. § 8C-1, Rule 608(a). The cross-examination of Castro opened the door to rebuttal evidence concerning Castro's reputation for truthfulness.
Even assuming arguendo that the trial court abused its discretion in allowing the State's evidence, there is no reasonable possibility that, if Britt's innocuous general comments had been disallowed, a different result would have been reached at trial. N.C. Gen. Stat. § 15A-1443(a). Britt described Castro as good, nice, and helpful; he did not describe Castro as truthful, having a reputation for being truthful, or instances of him being truthful. Britt's general responses are different from a teacher describing multiple specific incidences of a mentally retarded child abuse victim being truthful. See State v. Baymon, 336 N.C. 748, 756-757, 446 S.E.2d 1, 4-5 (1994). Because Britt's testimony did not address the truthfulness of Castro's account, it was of no consequence and any error in admitting it was not prejudicial. See State v. Penland, 343 N.C. 634, 655, 472 S.E.2d 734, 746 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997).
This argument is without merit.
III. Pretrial Comments Regarding Sentencing and Plea Agreement
In his second argument, defendant contends that "the trial court implied that Defendant should plead guilty and then punished him more severely for declining to do so." We disagree.
A. No Reasonable Inference
Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.
State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990); see also State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465 (1977). "`Explicit comments by trial judges that a defendant will receive a more severe sentence if he or she goes to trial and is convicted than he or she will receive if a proposed negotiated plea is accepted' will result in reversible error." State v. Pinkerton ___ N.C. App. ___, ___, 697 S.E.2d 1, 10 (2010) (Hunter J. dissenting), rev'd per curiam for the reasons stated in the dissenting opinion, 365 N.C. 6, 708 S.E.2d 72 (2011). However, "a trial judge does not err by simply engaging in a colloquy with a criminal defendant for the purpose of ensuring that the defendant understands and fully appreciates the nature and scope of the available options." Id. at ___, 697 S.E.2d at 10.
B. Analysis
Prior to trial, and before the jury was impaneled, the trial judge discussed the case and a potential plea agreement "for a minimum of 88 months, maximum of 115 months" with counsel for the State and defendant. The trial judge then asked, "He's understanding he's facing a maximum of 264 months minimum, a maximum minimum of 264 months if he's convicted of everything?" and that "He fully understands that if he's convicted it could be 264 months?"
This is similar to the colloquy in State v. Crawford, where before trial, the court told the defendant, "We go to trial and you're convicted, you're going to be looking at somewhere[] between 94 and 117 months. . . . So, you [are] guaranteed to be sentenced to at least two more years if you're convicted by a jury of first degree burglary versus whether you plead." 179 N.C. App. 613, 617, 634 S.E.2d 909, 913 (2006), disc. review denied, 361 N.C. 360, 644 S.E.2d 363 (2007). This Court held that "the trial court's remarks prior to trial served to clarify the terms of the offered plea bargain and eliminate questions regarding a subsequent sentence." Id. at 619, 634 S.E.2d at 914; see also State v. Poag, 159 N.C. App. 312, 324, 583 S.E.2d 661, 669-670, appeal dismissed and disc. review denied, 357 N.C. 661, 590 S.E.2d 857 (2003). In the instant case, the trial judge merely engaged in a colloquy concerning defendant's understanding of the potential sentence and nature of the available options.
The trial judge's pretrial remark that the plea "sounds generous to me," was made in reference to the presumptive range sentence required for a prior felony record level VI, and does not indicate that defendant's eventual sentence was imposed as a punishment. Pinkerton, ___ N.C. App. at ___, 697 S.E.2d at 10.
Defendant incorrectly equates the events here to cases where the judge made improper comments at the sentencing hearing. State v. Peterson, 154 N.C. App. 515, 518, 571 S.E.2d 883, 885 (2002); State v. Pavone, 104 N.C. App. 442, 446, 410 S.E.2d 1, 3 (1991). The trial judge in the instant case made no comments referencing a prior plea bargain during the sentencing hearing.
This argument is without merit.
NO ERROR.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).