An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1331
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 13 CRS 000184; 13 CRS
200086; 13 CRS 200087
CALVIN RICHARDSON
Appeal by defendant from judgments and commitments entered
5 June 2013 by Judge Donald W. Stephens in Wake County Superior
Court. Heard in the Court of Appeals 22 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Matthew Tulchin, for the State.
Paul F. Herzog, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Calvin Richardson (“Defendant” or “Forty”) appeals from
judgments and commitments adjudging him guilty of five counts of
robbery with a dangerous weapon, one count of conspiracy to
commit robbery with a dangerous weapon, and one count of
possession of a firearm by a felon. Defendant contends that the
trial court committed plain error in allowing a prior felony
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judgment to be published to the jury. Defendant also contends
that the trial court erred in allowing cross-examination and
testimony concerning the prior convictions contained in that
judgment over Defendant’s objection. In the alternative,
Defendant contends that he received ineffective assistance of
counsel at trial. For the following reasons, we find no error.
I. Factual & Procedural History
From 3 June to 5 June 2013, Defendant was tried in Wake
County Superior Court on five counts of robbery with a dangerous
weapon, one count of conspiracy to commit robbery with a
dangerous weapon, and one count of possession of a firearm by a
convicted felon. The evidence presented at trial tended to show
the following.
On the evening of 31 December 2012, Mr. Roy Pulley (“Mr.
Pulley”) hosted a poker game at his apartment in Raleigh. The
card players began to arrive at around 7:00 p.m. In attendance
were Mr. Craig Washington (“Mr. Washington”), Mr. Charlie
Doughty (“Mr. Doughty”), Mr. Carl Perry (“Mr. Perry”), Mr.
Reggie Arrington (“Mr. Arrington”), Mr. Steve Hagans (“Mr.
Hagans”), and Mr. Maurice Hines (“Mr. Hines”), Mr. Pulley’s
roommate. These men were longtime friends who gathered
periodically to play cards. A man named “Manney” also attended
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the card game and brought another man with him, introducing him
to the group as “Forty.” None of the other card players had met
Forty prior to that night, but they did notice his tattoos—a
black “40” across his hand and a red star on his neck.
After a few hours of playing cards, Manney and Forty were
the first to leave.1 Both lost money in the game. Shortly after
Manney and Forty left, the remaining card players finished their
game and prepared to go out to celebrate the new year at a night
club. Two of the players, Mr. Washington and Mr. Doughty,
decided not to go to the club and left before the others. Mr.
Washington walked out of the door of the apartment and before he
exited the building, Forty appeared with an AK-47 rifle, pointed
it at Mr. Washington, ordered him to be quiet, and demanded
money. Another man with a handgun accompanied Forty and
participated in the robbery.2 The men also demanded that Mr.
Doughty give them money. Mr. Washington’s and Mr. Doughty’s
mobile phones were taken from them and Mr. Doughty had $290 in
cash taken. Mr. Doughty and Mr. Washington fled as Forty and
1
There are discrepancies in the testimony of the card players
regarding the timeline of the events that occurred that evening.
The estimates of the time of Manney and Forty’s departure from
the apartment range from 8:40 to 10:40 p.m. on 31 December 2014,
with the robberies occurring between 9:40 and 11:40 p.m.
2
The second gunman’s identity was never confirmed. Several of
the men described the second gunman as a young, small man with a
light complexion and long hair, possibly dreadlocks.
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the other gunman went into the apartment. Following the
incident, Mr. Washington and Mr. Doughty drove straight home and
did not immediately contact the police.
Upon entering the apartment, Forty demanded that everyone
put their phones and money on the table and get on the floor.
Forty kicked Mr. Pulley in the head and took the money and some
of the cell phones before leaving with the other gunman.
The remaining card players also did not contact the police
immediately. Instead, Mr. Pulley, Mr. Arrington, Mr. Hagans,
and Mr. Hines went to the night club as planned. Mr. Pulley
thought Manney had set them up and because he knew Manney, he
thought he could convince him to bring the money and phones
back. Others testified that they did not call the police
because they feared retaliation from the robbers.
Several hours later, Mr. Pulley called the police. Raleigh
Police arrived at the apartment at 3:09 a.m. and several of the
card players returned to talk to the police. During his
interview with Officer C.A. Schmidt of the Raleigh Police
Department, Mr. Pulley described Forty as a black male, wearing
dark clothes, with a tattoo of the number “40” across his hand,
and a tattoo of a red star on the side of his neck.
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Agent Stacy Johnson of City-County Bureau of Identification
(“CCBI”) arrived at 4:13 a.m. and collected fingerprints on a
glass used by Forty during the card game. CCBI confirmed the
prints matched Defendant’s. Detective S.B. Snowden (“Detective
Snowden”) of the Raleigh Police Department conducted interviews
with those present at the apartment. Based on their
descriptions of Forty, Detective Snowden identified Forty as
Defendant and created a photographic line-up for the witnesses
to review. Mr. Pulley and Mr. Perry reviewed the line-up and
positively identified Defendant as the individual who had robbed
them. At trial, Defendant was called up to the witness stand to
show his hands and both sides of his face and neck to the jury.
Detective Snowden identified a red star on Defendant’s neck
underneath his ear and the number “40” on his left hand and
testified that these tattoos were consistent with the witnesses’
descriptions of the robber. After presenting the foregoing
evidence, the State rested its case and Defendant made a motion
to dismiss, which was denied.
Thereafter, Defendant offered an alibi defense.
Defendant’s evidence tended to show that after leaving Mr.
Pulley’s apartment with Manney, Defendant went to Ms. Tracey
Horton’s apartment, arriving between 10:00 and 10:35 p.m. From
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there, Defendant walked with his fiancée, Ms. Juanita Renee
Rand, to downtown Raleigh to watch the acorn drop.
After hearing the foregoing evidence, the jury convicted
Defendant on all counts and the trial court sentenced Defendant
to consecutive terms of 84 to 113 months, 84 to 113 months, and
33 to 52 months active imprisonment. Defendant gave timely
notice of appeal in open court.
II. Jurisdiction
Defendant’s appeal from the superior court’s final judgment
lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b), 15A-1444(a) (2013).
III. Analysis
Defendant’s appeal presents three questions for this
Court’s review: (1) whether the trial court committed plain
error in allowing a prior felony judgment against Defendant to
be published to the jury; (2) whether the trial court committed
prejudicial error in allowing cross-examination and testimony
regarding Defendant’s prior convictions over his objection; and
(3) whether Defendant received ineffective assistance of counsel
at trial when defense counsel neither offered to stipulate to
the prior felony conviction nor objected to the prior judgment
being published to the jury. We address each in turn.
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A. Defendant’s Plain Error Argument
Defendant’s first argument on appeal is that the trial
court committed plain error in allowing a prior felony judgment
to be published to the jury. The prior judgment, dated 6
September 2007, establishes that Defendant had been previously
convicted of four counts of robbery with a dangerous weapon—the
same crime for which Defendant was charged and convicted in this
action. The prior judgment was admitted into evidence as proof
of a prior felony conviction, an essential element of another
crime with which Defendant had been charged in this action,
possession of a firearm by a convicted felon. See N.C. Gen.
Stat. § 14-415.1 (2013). Because Defendant’s prior convictions
are also for the crime of robbery with a dangerous weapon, and
because the State’s burden under N.C. Gen. Stat. § 14-415.1 was
to establish the existence of a single prior felony conviction,
Defendant contends that the probative value of the judgment was
substantially outweighed by the danger of unfair prejudice. See
N.C. R. Evid. 403 (stating that such evidence “may be excluded”
by the trial court). Defense counsel initially objected to the
admission of the judgment into evidence, but did not object when
a copy of the judgment was published to the jury. Accordingly,
Defendant seeks plain error review of this issue on appeal.
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“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). “Plain error is an
error that is ‘so fundamental as to result in a miscarriage of
justice or denial of a fair trial.’” State v. Cunningham, 188
N.C. App. 832, 835, 656 S.E.2d 697, 699 (2008) (quoting State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). “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).
However, our Supreme Court “has elected to review
unpreserved issues for plain error when they involve either (1)
errors in the judge’s instructions to the jury, or (2) rulings
on the admissibility of evidence.” State v. Gregory, 342 N.C.
580, 584, 467 S.E.2d 28, 31 (1996). Moreover, our Supreme Court
“has specifically refused to apply the plain error standard of
review ‘to issues which fall within the realm of the trial
court’s discretion[.]’” Cunningham, 188 N.C. App. at 837, 656
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S.E.2d at 700 (quoting State v. Steen, 352 N.C. 227, 256, 536
S.E.2d 1, 18 (2000)).
Here, Defendant’s Rule 403 argument, that the probative
value of his prior felony judgment was substantially outweighed
by the danger of unfair prejudice, concerns a matter within the
trial court’s discretion. See State v. Jones, 176 N.C. App.
678, 687, 627 S.E.2d 265, 271 (2006) (“Whether or not to exclude
evidence under Rule 403 of the Rules of Evidence is a matter
within the sound discretion of the trial court and its decision
will not be disturbed on appeal absent a showing of an abuse of
discretion.” (quotation marks and citation omitted)).
Accordingly, because evidentiary decisions under Rule 403
are reviewed for abuse of discretion, plain error review is not
available. Cunningham, 188 N.C. App. at 837, 656 S.E.2d at 700
(“The balancing test of Rule 403 is reviewed by this court for
abuse of discretion, and we do not apply plain error to issues
which fall within the realm of the trial court’s discretion.”
(quotation marks and citation omitted)). We therefore decline
to consider Defendant’s first argument.
B. Defendant’s Evidentiary Arguments
Next, Defendant argues that the trial court committed
prejudicial error during the cross-examination and testimony of
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Defendant’s alibi witnesses, Ms. Tracey Horton and Ms. Juanita
Rand. Specifically, Defendant contests the trial court’s
decision to allow the following exchange between the State’s
attorney and Ms. Horton:
[STATE’S ATTORNEY:] Were you aware that the
defendant had been convicted of four armed
robberies in 2006 and had just gotten out of
prison?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[MS. HORTON]: Yeah.
[STATE’S ATTORNEY:] And you still didn’t
mind having him in your home?
[MS. HORTON:] No. I mean, no.
Defendant also contests the following exchange between the
State’s attorney and Ms. Rand:
[STATE’S ATTORNEY:] You said that you’ve
known this defendant for about two years?
[MS. RAND:] Yes, ma’am.
[STATE’S ATTORNEY:] Did you meet him when
he was locked up?
[MS. RAND:] No, ma’am, I didn’t. Didn’t
know him back in 2006.
[STATE’S ATTORNEY:] And you got to know him
in 2010?
[MS. RAND:] Uh-hmm.
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[STATE’S ATTORNEY:] How long had he been out
of jail then?
[MS. RAND:] I think --
[DEFENSE COUNSEL]: Object.
THE COURT: Overruled.
[MS. RAND]: Maybe about five months or four
months or so.
[STATE’S ATTORNEY:] And you knew what he
was locked up for?
[MS. RAND:] Um-hmm.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Defendant’s brief challenges the trial court’s decision to
allow the above testimony under Rules of Evidence 401 and 402
(relevancy), Rule 403 (balancing of probative value and the
danger of unfair prejudice), and Rule 404(b) (character
evidence). However, notwithstanding Defendant’s evidentiary
objections, we hold that even if the foregoing evidence was
admitted in error, Defendant has not demonstrated prejudice.
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when 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.
The burden of showing such prejudice . . .
is upon the defendant.
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N.C. Gen. Stat. § 15A-1443(a) (2013). When a defendant does not
address the effect of the error on his conviction with argument
on appeal, it follows that the defendant has failed to show that
he was prejudiced by the admission of the evidence. See State
v. Keys, 87 N.C. App. 349, 356, 361 S.E.2d 286, 290 (1987) (“In
the present case defendant argues only that the evidence was
irrelevant and never addresses the effect of the error on her
conviction. Therefore, we find defendant has failed to show she
was prejudiced by the admission of the evidence and overrule
this assignment of error.”).
Here, Defendant has not met his burden to show how he was
prejudiced. In his brief, Defendant cites to several cases to
show that the trial court erred in its evidentiary decisions,
but has not shown how the outcome in this case would have been
different had the alleged errors not been committed.
Accordingly, Defendant’s second argument on appeal is overruled.
C. Defendant’s Ineffective Assistance of Counsel Argument
Finally, Defendant contends that we should find on direct
review that Defendant received ineffective assistance of counsel
at trial. Specifically, Defendant contends that his trial
counsel erred by failing to offer to stipulate that Defendant
had been convicted of a felony and by failing to object to the
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publication of Defendant’s prior judgment to the jury. Because
of these alleged deficiencies in defense counsel’s performance,
Defendant contends he was “irreparably prejudiced.”
To prevail on an ineffective assistance of counsel claim,
a defendant must first show that his
counsel’s performance was deficient and then
that counsel’s deficient performance
prejudiced his defense. Deficient
performance may be established by showing
that counsel’s representation fell below an
objective standard of reasonableness.
Generally, to establish prejudice, a
defendant must show that there is a
reasonable probability that, but for
counsel’s unprofessional errors, the result
of the proceeding would have been different.
A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867 (2006).
Furthermore, “a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.” Strickland v. Washington, 466 U.S. 668, 697
(1984). Indeed, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Id.
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Here, Defendant was convicted of possession of a firearm by
a convicted felon under N.C. Gen. Stat. § 14-415.1. Pursuant to
that statute, “records of prior convictions . . . shall be
admissible in evidence for the purpose of proving a violation of
this section.” Id. Under the statute, the State was required
to prove that Defendant was previously convicted of a felony.
While the record in this case is clear that defense counsel did
not stipulate that Defendant had been convicted of a felony, the
record does not reveal whether Defendant was consulted about
whether he should stipulate to the same, or whether he wanted
the State to be held to its burden to prove the essential
element of a prior felony conviction. We also do not know
whether Defendant’s trial counsel and the State discussed a
stipulation before trial or off the record. However, we do not
need to know these facts to rule on Defendant’s ineffective
assistance of counsel claim. Even assuming, arguendo, that
defense counsel should have suggested that the parties stipulate
to Defendant’s prior felony conviction, and, consistent with
Defendant’s second argument, that defense counsel should have
objected to the prior judgment being published to the jury,
doing so would not have prejudiced Defendant.
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The record indicates that there was overwhelming evidence
to support the jury’s verdict. Two eyewitnesses identified
Defendant in a photographic lineup as the robber. At trial, all
five eyewitnesses identified Defendant as the man who robbed
them. They testified to his distinguishing tattoos, which were
later pointed out on Defendant’s hand and neck in front of the
jury. Defendant’s fingerprints were also found on a drinking
glass at the scene of the crime. Thus, Defendant’s alibi
defense was, at best, somewhat imperfect. Furthermore,
Defendant received a limiting instruction from the trial court
to the effect that the jury should only consider Defendant’s
prior convictions for the purpose of deciding the charge of
possession of a firearm by a convicted felon.
Thus, in light of the overwhelming evidence against him,
and measures taken by the trial court to mitigate any possible
prejudice, Defendant has failed to show a reasonable probability
that, but for his trial counsel’s alleged unprofessional errors,
the result of the proceeding would have been different.
Accordingly, we overrule Defendant’s ineffective assistance
claim.
IV. Conclusion
For the foregoing reasons, we find no error.
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NO ERROR.
Judges ERVIN and DAVIS concur.
Report per rule 30(e).
State v. Richardson
Combined Opinion