NO. COA13-429
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Chatham County
No. 10 CRS 51652
KENNETH EUGENE ALSTON,
Defendant.
Appeal by defendant from judgment entered 17 December 2012
by Judge Allen Baddour in Chatham County Superior Court. Heard
in the Court of Appeals 24 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General David P. Brenskelle, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Bruce T.
Cunningham, Jr., for defendant-appellant.
GEER, Judge.
Defendant Kenneth Eugene Alston appeals from his conviction
of robbery with a dangerous weapon. On appeal, defendant
primarily contends that he received ineffective assistance of
counsel ("IAC") when his trial counsel failed to object to the
joinder for trial of defendant's charges of robbery with a
dangerous weapon and possession of a firearm by a felon.
Defendant argues that the statute prohibiting possession of a
firearm by a felon is a "civil regulatory measure" and,
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therefore, a violation of that statute may not be joined for
trial with a criminal offense.
While our Supreme Court has held that the ban on felons
possessing firearms does not impose additional punishment for
prior convictions because the General Assembly adopted the
prohibition as a civil regulatory measure, that holding does not
in any way mean that a violation of that civil regulatory
measure cannot be a crime. As both the Supreme Court and this
Court have previously recognized, when a felon possesses a
firearm, he commits a crime. Consequently, we hold defendant
did not receive IAC when his trial counsel failed to object to
the joinder of the charges brought against defendant.
Facts
The State's evidence tended to show the following facts.
At some point between 22 July 2010 and 25 July 2010, Chad Taylor
called an acquaintance, Calvin Moore, and told Moore that he
wanted to sell some marijuana. Moore told defendant about the
offer, but did not tell defendant that Taylor, defendant's
distant cousin, was the seller. In the evening of 25 July 2010,
Taylor and Moore agreed by phone that Taylor would sell Moore
three pounds of marijuana.
Late in the night on 25 July or early in the morning on 26
July 2010, defendant drove Moore and three young women,
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including Tiffany Jarrell, to the house where the drug deal was
to take place. Defendant, Moore, and the women all agreed in
advance that they would rob the sellers rather than purchase the
marijuana. As defendant neared the house, he realized that the
house belonged to one of his family members. Defendant
nonetheless decided to go forward with the robbery. Defendant
parked at the house, and defendant and Moore got out and talked
to Taylor and Taylor's friend, Jesus Sifuentes.
Sifuentes left the house in his car and then returned in 10
or 15 minutes with the marijuana. Sifuentes handed Moore the
marijuana, and defendant and Moore then pulled out handguns and
aimed them at Taylor and Sifuentes. Jarrell and the other women
then searched Taylor's and Sifuentes' pockets and took wallets,
cell phones, and about $1,500.00 in cash, as well as the
marijuana. The robbers then left in defendant's car with
defendant driving.
After the robbers left, Taylor got a shotgun and Sifuentes
and Taylor chased the robbers in Sifuentes' car. Sifuentes and
Taylor caught up with the robbers on the highway, and Sifuentes
drove his car into the back of defendant's car, causing both
cars to wreck. After the crash, the robbers believed Taylor and
Sifuentes had fled, and defendant decided to stay with his car
and to tell the police that he was involved in a hit and run.
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Defendant convinced Jarrell to stay with the car as well. Moore
and the other two women called a friend and got a ride home.
Moore took the marijuana and the two guns used in the robbery
with him.
Defendant and Jarrell went to the hospital, and a nurse at
the hospital discovered the cash proceeds from the robbery in
Jarrell's underwear. Jarrell lied about where she got the
money. Jarrell then went to the police station, where she also
lied to the police about what had occurred.
Defendant was indicted for accessory after the fact to
robbery with a dangerous weapon on 10 October 2011 and for
possession of a firearm by a felon on 21 May 2012. Defendant
was also indicted for robbery with a dangerous weapon.1 The jury
found defendant guilty of robbery with a dangerous weapon and,
accordingly, did not render a verdict with respect to the
accessory after the fact charge. However, the jury found
defendant not guilty of possession of a firearm by a felon. In
an amended judgment, the court sentenced defendant to an
aggravated-range term of 152 to 192 months imprisonment.
Defendant timely appealed to this Court.
I
1
The record on appeal does not contain defendant's
indictment for robbery with a dangerous weapon. However, the
transcript indicates defendant was indicted for that offense.
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Defendant first contends that the trial court erroneously
joined for trial defendant's charges of robbery with a dangerous
weapon and possession of a firearm by a felon. Defendant argues
that the latter charge was for violation of a "civil regulatory
measure" that could not be properly tried alongside a criminal
offense.
Defendant did not make his joinder argument to the trial
court, but he argues on appeal that the trial court committed
plain error in the joinder. However, our Supreme Court has
expressly held that plain error review does not apply to the
issue whether joinder of charges was appropriate. State v.
Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000).
Consequently, due to defendant's failure to preserve this issue
for review, it is not properly before this Court.
Defendant alternatively argues that he received IAC due to
his counsel's failure to object to the joinder of the charges of
robbery with a dangerous weapon and possession of a firearm by a
felon. Defendant must satisfy a two-part test in order to
prevail on his IAC claim:
"First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
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showing that counsel's errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(emphasis omitted) (quoting Strickland v. Washington, 466 U.S.
668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)).
Defendant argues that his counsel's performance was
deficient because, in State v. Whitaker, 364 N.C. 404, 411, 700
S.E.2d 215, 220 (2010), our Supreme Court held that the statute
prohibiting possession of a firearm by a felon is a "civil
regulatory measure" rather than a criminal offense, and,
according to defendant, it is inherently improper to try a
criminal offense together with a civil regulatory matter.
Defendant asserts that his trial counsel should have been aware
of Whitaker, a "well-known" case decided roughly two years
before defendant's trial, since "Second Amendment litigation has
been the topic of much discussion in the last several years and
Whitaker was relevant to that discussion."
In Whitaker, our Supreme Court rejected the defendant's
argument that an amendment broadening the scope of the statute
making it unlawful for felons to possess firearms, N.C. Gen.
Stat. § 14-415.1 (2013), was an unconstitutional ex post facto
law. 364 N.C. at 411, 700 S.E.2d at 220. The Court first
noted, with respect to ex post facto principles, that the
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defendant had not been retroactively punished for an act that
was innocent when committed since the "defendant's conviction
[was] for an offense that he committed after his actions were
deemed criminal, namely the possession of any firearm by a
felon." Id. at 408, 700 S.E.2d at 218 (emphasis added). The
Court explained that "[t]he question then becomes whether the
2004 amendment to N.C.G.S. § 14–415.1 is an ex post facto law,
not because it imposes punishment for future acts, but because
it prohibits the possession of firearms by a convicted felon,
which defendant asserts operates as a form of enhanced
punishment for his prior felonies." Id. (emphasis added).
In other words, the issue before the Supreme Court was
whether denying a defendant the right to have firearms was
additional punishment for a prior conviction. As to that issue,
the Court concluded that the General Assembly had a "nonpunitive
intent" in enacting the amended statute "to protect the public."
Id. at 409, 700 S.E.2d at 218. Ultimately, the Court concluded
that "the General Assembly's purpose in enacting" the ban on
felons possessing firearms "was to establish a civil regulatory
measure, and because the amended statute's effect does not
render it punitive in nature, the amended N.C.G.S. § 14–415.1 is
not an unconstitutional ex post facto law." Id. at 411, 700
S.E.2d at 220.
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Although Whitaker holds that the statute depriving felons
of the right to possess firearms is a civil regulatory measure
not intended to further punish people previously convicted,
nothing in Whitaker suggests that a violation of that statutory
prohibition is not a crime. Defendant has cited no authority
that a legislature may not make it a crime to violate a statute
that was enacted for a "civil regulatory" purpose.
Indeed, the Whitaker Court referred to the defendant
felon's act of possessing a firearm as an "offense" that was
deemed "criminal" by the relevant statutory amendment. Id. at
408, 700 S.E.2d at 218. Further, contrary to defendant's
argument, N.C. Gen. Stat. § 14-415.1(a) provides that "[e]very
person violating the provisions of this section shall be
punished as a Class G felon." (Emphasis added.) See also
Johnston v. State, ___ N.C. App. ___, ___, 735 S.E.2d 859, 876
(2012) (explaining that in N.C. Gen. Stat. § 14-415.1, "[o]ur
legislature mandated that any felon found in possession of a
firearm is subject to criminal liability" (emphasis added)),
aff'd per curiam, ___ N.C. ___, 749 S.E.2d 278 (2013); State v.
Johnson, 169 N.C. App. 301, 306, 610 S.E.2d 739, 743 (2005)
(holding, in rejecting ex post facto argument, that "the crime
for which defendant is being punished is his violation of N.C.
Gen. Stat. 14–415.1" (emphasis added)).
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In sum, given the statutory language designating possession
of a firearm by a felon as a crime, our Supreme Court's
reference to a violation of N.C. Gen. Stat. § 14-415.1 as a
"criminal" "offense" in Whitaker, and this Court's similar
language in Johnson and Johnston, we conclude that possession of
a firearm by a felon is a criminal offense that was properly
joined for trial with another criminal offense, robbery with a
dangerous weapon. Since there was no error in the joinder
decision, defense counsel's failure to object to the joinder did
not constitute deficient performance, and defendant has failed
to show he received IAC.
II
Defendant also contends that he received IAC when his trial
counsel failed to prevent the jury from hearing the prejudicial
information that defendant had a prior felony conviction by
using the procedure set out in N.C. Gen. Stat. § 15A-928 (2013).
According to defendant, under N.C. Gen. Stat. § 15A-928, he
could have stipulated to the prior conviction and thereby
precluded the State from introducing evidence regarding that
conviction. We disagree.
Defendant's argument fails to recognize that N.C. Gen.
Stat. § 15A-928(a) limits the statute's applicability as
follows: "When the fact that the defendant has been previously
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convicted of an offense raises an offense of lower grade to one
of higher grade and thereby becomes an element of the latter, an
indictment or information for the higher offense may not allege
the previous conviction." When those circumstances apply, then
N.C. Gen. Stat. § 15A-928(c)(1) provides that "[i]f the
defendant admits the previous conviction, that element of the
offense charged in the indictment or information is established,
no evidence in support thereof may be adduced by the State, and
the judge must submit the case to the jury without reference
thereto and as if the fact of such previous conviction were not
an element of the offense. The court may not submit to the jury
any lesser included offense which is distinguished from the
offense charged solely by the fact that a previous conviction is
not an element thereof."
This Court has previously held that N.C. Gen. Stat. § 15A-
928 does not apply to the offense of possession of a firearm by
a felon. State v. Jeffers, 48 N.C. App. 663, 665-66, 269 S.E.2d
731, 733-34 (1980). The Court in Jeffers reasoned:
Since the trial judge allowed the
stipulation as to the previous conviction to
be introduced and since he made reference to
the stipulation in his charge to the jury,
defendant claims that G.S. 15A-928(c)(1) was
violated, and that defendant was deprived of
his right to a fair trial as a result. G.S.
15A-928, however, is not applicable in this
case. The statute applies solely to cases
in which the fact that the accused had a
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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). Also, the statute contains nothing
as to certain convictions being more
intolerable than others, G.S. 14-415.1(a)
and (b), and thus no "lower grade"--"higher
grade" dichotomy can be ascertained.
Id.
Jeffers controls in this case. We, therefore, conclude
that defendant has failed to show IAC for failure to raise N.C.
Gen. Stat. § 15A–928 at trial because that statute did not apply
to his trial for possession of a firearm by a felon. See also
State v. Jackson, 306 N.C. 642, 652, 295 S.E.2d 383, 389 (1982)
(holding that N.C. Gen. Stat. § 15A–928 did not apply to offense
at issue because "[t]he statute applies solely to cases in which
the fact that the accused 'has been previously convicted of an
offense raises an offense of lower grade to one of higher grade
and thereby becomes an element of the latter'" (quoting N.C.
Gen. Stat. § 15A–928(a))).
III
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Defendant next argues that the trial court violated his
Sixth Amendment right to cross-examination when it did not
permit him to cross-examine two of the State's witnesses, Moore
and Jarrell, about criminal charges pending against them in
counties in different prosecutorial districts than the district
in which defendant was tried. We disagree.
During voir dire, Jarrell stated that she had a pending
charge in Randolph County for assault with a deadly weapon with
intent to kill. Jarrell testified on cross-examination that she
did not believe that by cooperating with the State in this case
she could "gain anything in any other proceedings" in other
counties. Since Jarrell stated she did not believe that
testifying in this case would help her with matters in other
counties, the trial court did not permit defendant to further
cross-examine Jarrell about pending charges in other counties.
Moore testified on voir dire that he had "a few" felony
breaking and entering charges and one felony larceny charge
pending in Guilford County, three felony breaking and entering
charges and one felony larceny charge pending in Moore County,
and a probation violation report pending in Randolph County.
Moore also testified on voir dire that he did not believe
testifying for the State in this case would benefit him with
respect to the matters in other counties. Given this voir dire
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testimony, the court ruled that defendant could only ask Moore
on cross-examination whether he believed he would receive any
benefit in other counties for his cooperation in this case. The
court further ruled, however, that defendant could cross-examine
Moore about unrelated pending charges in Chatham County and
about the pending probation violation report in Randolph County
since that probation matter was included as part of Moore's
original plea agreement with the State.
The Sixth Amendment right to confrontation generally
protects the right of a criminal defendant to cross-examine a
State's witness about the existence of pending charges in the
same prosecutorial district as the trial in order to show bias
in favor of the State, since the jury may understand that
pending charges may be used by the State as a "weapon to control
the witness." State v. Prevatte, 346 N.C. 162, 164, 484 S.E.2d
377, 378 (1997). However, "'trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of
the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant.'" State v. McNeil, 350
N.C. 657, 677, 518 S.E.2d 486, 499 (1999) (quoting Delaware v.
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Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 683, 106 S.
Ct. 1431, 1435 (1986)).
Given this wide latitude afforded trial courts, we review a
trial court's limitation of cross-examination for an abuse of
discretion. Id. "'A trial court abuses its discretion if its
determination is manifestly unsupported by reason and is so
arbitrary that it could not have been the result of a reasoned
decision.'" State v. Garcell, 363 N.C. 10, 27, 678 S.E.2d 618,
630 (2009) (quoting State v. Cummings, 361 N.C. 438, 447, 648
S.E.2d 788, 794 (2007)).
In State v. Murrell, 362 N.C. 375, 403, 665 S.E.2d 61, 80
(2008), a case out of Forsyth County, the defendant filed a
motion for appropriate relief arguing that "the prosecution
allowed State's witness . . . to perjure himself concerning his
prior convictions, current charges, and discussions with the
Durham County District Attorney's office." Regarding the
defendant's argument that the witness falsely testified he had
no pending charges in Durham County, the Supreme Court held the
witness' testimony was in fact true since the record showed that
the witness' Durham County charges had been dismissed, although
they were subject to reinstatement, at the time of the
challenged testimony. Id. at 404, 665 S.E.2d at 80.
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The Court further held that, even assuming arguendo that
the testimony was false and that the defendant was able to prove
the prosecution knew it was false, "[the witness'] testimony on
this peripheral issue concerning charges dismissed in another
district attorney's jurisdiction was simply not material." Id.
The Murrell Court reasoned that unlike Prevatte, 346 N.C. at
163–64, 484 S.E.2d at 378, "in which the State's witness faced
pending charges within the same jurisdiction in which he
testified, any charges pending against [the witness] were being
handled in a different jurisdiction, and defendant provides no
supporting documentation of any discussion between the two
district attorneys' offices to demonstrate that [the witness']
testimony was biased in this respect." 362 N.C. at 404, 665
S.E.2d at 80.
Here, at the outset, we take judicial notice that Guilford,
Randolph, and Moore Counties are each located in different
prosecutorial districts than Chatham County, where this case was
tried. As in Murrell, defendant has failed to provide any
evidence of discussions between the district attorney's office
in Chatham County and district attorneys' offices in the other
counties where Jarrell and Moore had pending charges. In
addition, Jarrell testified on cross-examination and Moore
testified on voir dire that each did not believe testifying in
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this case could help them in any way with proceedings in other
counties. Under these circumstances, we follow the reasoning of
Murrell and conclude that, in this case, testimony regarding the
witnesses' pending charges in other counties was, at best,
marginally relevant to defendant's trial.
Moreover, both Jarrell and Moore were thoroughly impeached
on a number of other bases separate from their pending charges
in other counties. Jarrell acknowledged that she was testifying
pursuant to a plea agreement in which her pending charges for
robbery with a dangerous weapon and accessory after the fact to
robbery with a dangerous weapon in Chatham County would be
dismissed and she would plead guilty to obstruction of justice.
Pursuant to the agreement, the State agreed to recommend that
Jarrell be placed on probation rather than serve active time.
At the time of her testimony, Jarrell was currently in prison
for misdemeanor assault with a deadly weapon and driving while
impaired. Jarrell also testified to her prior convictions for
"possessing or manufacturing a fraudulent ID," driving after
consuming alcohol, and resisting a public officer.
Jarrell further testified that she made false statements
about the events surrounding the robbery to an investigating
officer on the night of the robbery in order to avoid being
charged with a crime. She admitted lying at the hospital about
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the source of the money in her underwear that was, in fact, the
cash proceeds from the robbery. Jarrell also testified that, on
the night of the robbery, she was drunk and she had taken Xanax
without a prescription and smoked marijuana. Jarrell, 20 years
old at the time of trial, additionally stated that she had
regularly smoked marijuana since she was 14 years old and, as a
result, sometimes her memory was "off."
At the time he testified, Moore was on probation for
convictions on "a number of felonies" in Randolph County and, if
he violated his probation, he faced 69 to 84 months
imprisonment. Moore testified that he had previously pled
guilty, pursuant to a plea agreement, to robbery with a
dangerous weapon and possession of a firearm by a felon stemming
from the robbery in this case. He was awaiting his sentence on
those charges, which could have been up to 201 months
imprisonment. Moore stated that, pursuant to that same
agreement, he pled guilty to unrelated charges for obtaining
property by false pretenses and for two counts of identity
theft, all felonies. Pursuant to that agreement, the State
would recommend Moore be sentenced at the bottom of the
mitigated range, and his sentence on those felonies would run
concurrently with a suspended prison sentence from Randolph
County for which Moore had been on probation. Also pursuant to
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that plea agreement, the State dismissed charges against Moore
for larceny, financial card fraud, possession of stolen goods,
driving while license revoked, resisting a public officer,
obtaining property by false pretenses, and two counts of
breaking and entering. Moore testified that his written plea
agreement with the State was his only agreement with the State.
Moore additionally testified that at the time of trial he
understood that if he withdrew his guilty pleas, the State could
reinstate all the dismissed charges and could also recommend to
the sentencing court that the sentences on the charges to which
he had pled guilty run consecutively. Further, Moore recognized
that if he withdrew his plea, there was a possibility that he
would be sentenced in the aggravated rather than the mitigated
range. Moore also testified that he understood he had voided
his plea agreement with the State by twice absconding from North
Carolina. With respect to the latter issue, Moore had been
charged with two counts of felony failure to appear. Also at
the time of trial, Moore had two misdemeanor charges pending in
Chatham County for resisting a public officer and communicating
threats.
In addition, Moore, who was 23 years old at the time of
trial, testified that he had three prior convictions of
possession of cocaine, three prior convictions of possession
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with intent to sell and deliver cocaine, two prior convictions
of felony larceny, two prior convictions of unauthorized use of
a motor vehicle, two prior convictions of breaking and entering,
three prior convictions of misdemeanor larceny, and prior
convictions of possession of a firearm by a felon, possession of
stolen goods, hit and run with property damage, and fleeing to
elude arrest.
In sum, the trial court allowed defendant extensive cross-
examination of both Jarrell and Moore, revealing their bias to
testify favorably for the State in order to curry favor
regarding their pending charges and sentences, respectively, for
the robbery in this case and, for Moore, numerous other pending
charges. Defendant was also permitted to cross-examine the
witnesses on a host of other matters relating to their
credibility. Based on this thorough cross-examination and the
marginal relevance, if any, of cross-examination regarding
Jarrell and Moore's pending charges in other counties, we hold
that the trial court was not unreasonable in barring defendant
from further cross-examining the witnesses regarding their
pending charges in other counties.
IV
Defendant's final argument is that the prosecutor's remarks
during the sentencing hearing that defendant was trying to
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derail the prosecution violated defendant's Sixth Amendment
right to confrontation and his Fourteenth Amendment right to due
process. The prosecutor's remarks referred, in part, to an
incident of alleged juror misconduct during trial.
During trial and outside the presence of the jury, a trial
spectator, Michael Stanley, presented himself to the court and
stated that the previous evening he had been in the parking lot
outside the courthouse attempting to jump start his car and,
while doing so, spoke with a woman he recognized as a juror. In
the course of the conversation, the juror told Mr. Stanley that
she and a friend "felt like [defendant] was guilty." Mr.
Stanley was never placed under oath.
The jury then entered the courtroom, and the trial court
instructed the jurors to raise their hand if they had spoken to
Mr. Stanley about the case. In response, juror number six
stated that Mr. Stanley's truck hood was up, and he asked her
"something about jumper cables." She told him that she did not
have any, but there was a nearby fire department where he might
find help. She reported to the court that she "didn't say
anything to him about the case." Juror number six was not sworn
prior to making these statements. No other juror indicated they
had spoken with Mr. Stanley.
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During a subsequent break in the trial, the trial court
brought up the issue of the juror's alleged comment to Mr.
Stanley and stated it was satisfied by juror number six's
response. Defense counsel stated that if the juror denied any
misconduct, he had nothing else to offer. The court then
determined that the matter was settled.
Later the same day, after the jury had been given its final
charge and was deliberating, the trial court announced that it
had learned that a deputy had observed Mr. Stanley the previous
day and that it was "appropriate to put on the record what the
deputy saw." Deputy Raymond Barrios was then sworn and
testified that the previous evening, the deputy went outside to
the court parking lot at about 5:20 p.m. and saw Mr. Stanley on
his cell phone standing by the lot. As Deputy Barrios got near,
Mr. Stanley walked away, still on his phone, towards a court
"overflow" parking lot across the street.
Deputy Barrios further testified that as Mr. Stanley walked
across the street, the deputy noticed a car parked at the
farthest end of the parking lot "flashing [its] lights like a
signal." The deputy then reentered the courthouse, and when he
later left the courthouse to walk to his car, he saw Mr. Stanley
"talking to the defendant in the parking lot further up the
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road" for about five minutes. Defendant declined the
opportunity to question Deputy Barrios.
Defendant now challenges the prosecutor's sentencing
argument regarding the interaction between Mr. Stanley and the
juror. The prosecutor argued the following at sentencing:
In addition, we had this unusual
situation where we had one of [defendant's]
old -- apparently -- cell mates who was also
convicted of armed robbery come and watch
the trial this week and make a statement to
the Court implying the jury had already
reached a decision -- or at least a jury
member had already reached a decision in the
case. We feel that that was, again,
orchestrated by [defendant] based on the
sworn testimony of deputy Barrios [sic] who
said that he observed the defendant and this
person, Mr. Stanley, interacting outside of
the court signaling to -- the defendant
signaling to Mr. Stanley after court. And
it appears to me that that was a blatant
attempt to derail or obstruct justice in
this case by creating an atmosphere where we
might have to grant a mistrial if his
statement was to be believed. Of course the
Court addressed that, talked to the jury.
It was clear that none of them had had any
conversation of that type with Mr. Stanley.
And that's just the continuing kind of
thing that we have seen over the last couple
of years. [Defendant] never does anything
overtly threatening, and we don't have any
evidence that money has changed hands, but
certainly we have evidence and information
through what's been happening in court and
out of court that he has persistently tried
to work to derail this prosecution.
. . . .
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. . . I have never experienced such a
situation as -- as this where we have so
many external factors attempting to derail
justice in this case. And I think all of
those were driven by [defendant].
The State then asked the court to sentence defendant "to the top
of the aggravated range for a Class D felony," which amounted to
160 to 201 months imprisonment.
Following the parties' sentencing arguments, the trial
court briefly found the existence of two aggravating factors
admitted by defendant, found the existence of one mitigating
factor, and determined that the aggravating factors outweighed
the mitigating factor. The court then, without any discussion
of defendant's "derail[ing]" justice, sentenced defendant to an
aggravated-range term of 152 to 191 months imprisonment.2 After
sentencing, the trial court stated to defendant: "I do think
this is probably an event that could have been avoided at many
points along the way; and, [defendant], I think that you bear
some responsibility for that. I'm not saying you are the only
one who does, but you do."
Defendant now argues that his right to confrontation under
the Sixth Amendment was violated because he was not given the
opportunity to question Mr. Stanley and juror number six.
2
The trial court later entered an amended judgment to
correct a clerical error, and in the amended judgment the court
sentenced defendant to an aggravated-range term of 152 to 192
months imprisonment.
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Defendant did not, however, object to the process during which
Mr. Stanley and juror number six gave unsworn statements, did
not request that those individuals be sworn, and did not request
the opportunity to question them. Consequently, defendant has
not preserved his confrontation argument for appeal. See N.C.R.
App. P. 10(a)(1); State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d
463, 473 (2002) (holding defendant waived constitutional
confrontation argument by failing to object on confrontation
grounds below since, generally, "[c]onstitutional issues not
raised and passed upon at trial will not be considered for the
first time on appeal").
Defendant further contends that the challenged arguments by
the prosecutor regarding defendant's attempts to derail justice
in this case by having Mr. Stanley tamper with juror number six
were "unsubstantiated" and "speculative" and thereby violated
his right to due process under the Fourteenth Amendment. We
disagree.
At trial, Jarrell testified that, prior to trial, defendant
told her not to say anything to investigators because defendant
had talked to the victims Sifuentes and Taylor and the victims,
being drug dealers, were unlikely to testify against defendant
and Jarrell. Defendant also told Jarrell that he and Jarrell
should try to pay the victims to keep them from testifying.
-25-
Finally, Jarrell testified that, prior to trial, defendant had
attempted to facilitate getting Jarrell's mother out of jail,
leading to the inference that defendant was trying to curry
favor with Jarrell to keep her from testifying against him.
Moore testified that prior to trial he felt threatened or
coerced not to testify, although "not directly from
[defendant]." Moore stated that prior to trial he was released
from prison and was on house arrest for 120 days. During this
time, he took a plea deal with the State requiring him to
testify against defendant. Just before Moore was set to be
released from house arrest, however, he fled to Florida because
he was concerned for his safety after receiving information from
people in the community. Moore was subsequently arrested and
brought back to North Carolina, where he was released on bond.
However, based on a phone call shortly after he was released,
Moore again fled, this time to South Carolina. From this
evidence, the prosecutor was entitled to argue the inference
that defendant was indirectly threatening Moore to keep Moore
from testifying.
Sifuentes testified that he saw defendant come to
Sifuentes' father's place of business and interact with
Sifuentes' father. Later, defendant went to Sifuentes' father's
house while Sifuentes was there, and defendant spoke to
-26-
Sifuentes' father outside the house before leaving. Seeing
defendant at his father's house made Sifuentes nervous.
The record additionally contains unsworn statements by Mr.
Stanley and juror number six about whether a juror improperly
discussed the case with Mr. Stanley and, apart from the truth or
falsity of either person's statement, the important, uncontested
fact is that the trial court was addressed by a spectator, Mr.
Stanley, about a juror improperly discussing the merits of the
case. This fact, coupled with Deputy Barrios' sworn testimony
that he witnessed Mr. Stanley communicate with someone in a car
in the parking lot on the same day that Mr. Stanley reported
juror misconduct and, later the same evening, saw defendant
talking with Mr. Stanley in the parking lot for about five
minutes, raises the inference that defendant was involved in Mr.
Stanley's report of juror misconduct to the trial court.
The record, therefore, supports the great majority of the
prosecutor's sentencing argument about defendant's attempts to
derail justice in this case. We have found no record support,
however, for the prosecutor's assertion that Mr. Stanley was
defendant's old cell mate who had also been convicted of armed
robbery.
Even assuming, without deciding, that defendant has shown
that the sole unsubstantiated statement by the prosecutor at
-27-
sentencing amounted to a denial of due process, any
constitutional error is harmless beyond a reasonable doubt. See
N.C. Gen. Stat. § 15A-1443(b) (2013). The vast majority of the
prosecutor's sentencing argument that defendant was attempting
to derail justice in this case is supported by the record.
Moreover, the prosecutor properly argued to the court the two
admitted aggravating factors, defendant's three prior robbery
with a dangerous weapon and one attempted robbery with a
dangerous weapon convictions, defendant's four prior felony
drug-related convictions, and defendant's refusal to call off
the robbery even when he realized the scene of the robbery was
his relative's house. The trial court's comments to defendant
after sentencing suggest that the court placed emphasis on
defendant's failure to call off the robbery despite having the
opportunity to do so.
The trial court gave no indication that, when sentencing
defendant, it considered the isolated unsupported statement
about Mr. Stanley being defendant's former cell mate with a
prior conviction of armed robbery. Rather, the court simply
stated that it found the existence of the two aggravating
factors admitted by defendant and that those factors outweighed
the single mitigating factor. The only other circumstance
-28-
specifically referred to by the court was defendant's failure to
call off the robbery when he had the opportunity to do so.
Under these circumstances, and given the weight of the
State's proper sentencing arguments, we hold that any error in
the court's consideration of the single unsupported statement
was harmless beyond a reasonable doubt. See State v. Jackson,
91 N.C. App. 124, 126, 370 S.E.2d 687, 688 (1988) (holding that
any error in trial court's consideration of murder victim's two
sisters' impact statements describing sisters' thoughts about
sentencing, including that defendant acted in cold blood and
deserved maximum sentence available, was harmless since "the
court certainly knew before then, as every reasonably
knowledgeable person knows, that almost invariably relatives and
friends of murder victims are shocked and saddened by their
killing and are of the opinion that murderers should be severely
punished"). Consequently, we conclude defendant received a
trial free from prejudicial error.
No error.
Judges STEPHENS and ERVIN concur.