State v. Phelps

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-957
NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Washington County
No. 11 CRS 50589
WALTER THOMAS PHELPS

Appeal by defendant from judgment entered 24 April 2013 by

Judge Wayland J. Sermons, Jr. in Washington County Superior

Court. Heard in the Court of Appeals 21 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Kathleen N. Bolton, for the State.

Appellate Defendant Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant.

ELMORE, Judge.

On 23 April 2013, Walter T. Phelps (defendant) was indicted

by a Washington County grand jury. Defendant was tried before

Judge Wayland J. Sermons, Jr. in Washington County Superior

Court beginning on 22 April 2013. The jury returned a guilty

verdict as to the charge of robbery with a dangerous weapon on

23 April 2013. On 24 April 2013, defendant was sentenced to 60-

81 months imprisonment and ordered to pay restitution to Annie
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Hyman in the amount of $242.91. Defendant gave oral notice of

appeal. Defendant now appeals the trial court’s admittance of

Captain Willie Williams’ (Captain Williams) testimony and the

award of restitution. After careful review, we find no

prejudicial error in part, and remand in part.

I. Background

On 22 November 2011, Annie Ruth Hyman (Hyman) was working

at the Head Shop salon (Head Shop). Around 7:30 p.m., Hyman was

cutting a little boy’s hair as patron George Puckett (Puckett)

sat in the waiting area, and employee Francis Gilliam (Gilliam)

cleaned the restroom. Suddenly, three black men entered the

Head Shop wearing hoodies and bandannas that covered their

faces. These three men were later identified as defendant,

Hesus Basnight (Basnight), and Anthony Seeley (Seeley).

According to the State’s evidence, Seeley entered the Head

Shop first, followed by defendant and Basnight. Defendant and

Basnight, who was wielding a baseball bat, stood near the Head

Shop’s entrance door. Seeley, machete in hand, immediately

approached Hyman and demanded money. Hyman handed Seeley $60 in

cash from her station drawer. Seeley grew upset and demanded

more. Gilliam heard the commotion and returned from the

restroom. Suddenly, Seeley struck Hyman on the head with his
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machete, knocking her to the ground. Gilliam screamed. Puckett

tried to help Hyman, but Basnight raised his baseball bat and

instructed Puckett to sit down. Hyman handed Seeley her purse,

which contained credit cards, identification, car keys, and

approximately $60.00 to $100.00 in cash. With Hyman’s purse and

cash in their possession, all three men fled from the Head Shop

and into Ms. Rochelle Bowser’s (Bowser) car, which was parked at

the “basketball court around the corner.” Bowser drove Basnight

and Seeley to Seeley’s house. Basnight testified that he did

not know where Bowser took defendant.

Shortly after the robbery, Officer John Sawyer (Officer

Sawyer) received a call and started patrolling the area by the

Head Shop. Officer Sawyer was alerted that Bowser was possibly

involved in the incident. As such, Officer Sawyer took custody

of Bowser’s vehicle and brought her to the police department for

questioning. Bowser named Seeley and Basnight as suspects and

directed Officer Sawyer to the Seeley residence located at 102

Linden Street. Both men were taken into custody for

questioning. During questioning, Basnight admitted that he,

Seeley, and defendant were each involved in the Head Shop

robbery.

At trial, the State called Basnight, who again named
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defendant and himself as two of the three men who participated

in the Head Shop robbery. The State also called Gilliam and

Puckett, who partially described defendant as one of the men

involved in the Head Shop robbery. Specifically, Gilliam

described defendant as a “short, black male with a light

complexion.” Puckett described defendant as a “little short

fellow” who stood near the entrance. Finally, the State called

Captain Williams and elicited testimony to the effect that the

third robber, unavailable co-defendant Seeley, pled guilty to

robbery with a dangerous weapon, and “was sent to the []

Department of Corrections” for the Head Shop robbery. It is the

admission of this testimony that is the basis on which defendant

now appeals.

Defendant’s sole witness at trial was Deborah Walker, who

testified that on 22 November 2011, defendant arrived at her

home between 5:00 p.m. and 6:00 p.m., played a video game with

her son, and left between 9:00 p.m. to 9:30 p.m.

II. Analysis

Defendant contends that the trial court erred in allowing

Captain Williams to testify as to co-defendant Seeley’s guilty

plea and active incarceration for the Head Shop robbery. We

agree.
 -5-
As defendant failed to object to the contested testimony at

trial, we must review this issue for plain error. “[P]lain

error review is available in criminal appeals[] for challenges

to jury instructions and evidentiary issues[.]” Dogwood Dev. &

Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191,

196, 657 S.E.2d 361, 364 (2008) (citations omitted). “Our

decisions have recognized plain error only in truly exceptional

cases when absent the error the jury probably would have reached

a different verdict.” Id. (quotation omitted).

For error to be tantamount to plain error, the defendant

must

demonstrate that a fundamental error
occurred at trial. To show that an error
was fundamental, a defendant must establish
prejudice that, after examination of the
entire record, the error had a probable
impact on the jury’s finding that the
defendant was guilty. Moreover, because
plain error is to be applied cautiously and
only in the exceptional case, the error will
often be one that seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotations omitted) (alteration in original).

A. Admitting the Challenged Testimony

Our Supreme Court has recognized the “clear rule” that

“neither a conviction, nor a guilty plea, nor a plea of nolo
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contendere by one defendant is competent as evidence of the

guilt of a codefendant on the same charges.” State v. Rothwell,

308 N.C. 782, 785, 303 S.E.2d 798, 800-01 (1983) (citation and

quotation omitted). This rule “appl[ies] equally to evidence

that [co-defendants] were charged and evidence that they were

tried.” State v. Gary, 78 N.C. App. 29, 37, 337 S.E.2d 70, 76

(1985).

In Rothwell, our Supreme Court elucidated:

The rationale underlying this “clear rule”
is twofold. [First,] a defendant’s guilt
must be determined solely on the basis of
the evidence presented against him.
[Second,] the introduction of such a plea by
a co-defendant, when he or she has not
testified at defendant’s trial, would also
deprive the defendant of his constitutional
right of confrontation and cross-
examination.

Rothwell, at 785-86, 303 S.E.2d at 801 (citations omitted).

However, “the Supreme Court in Rothwell realized that

neither of these bases for the rule would be violated if

evidence of a testifying co-defendant’s . . . [guilt] . . . is

introduced for a legitimate purpose.” State v. Brown, 67 N.C.

App. 223, 232, 313 S.E.2d 183, 190 (1984) (citation and

quotation omitted) (alteration in original). In contrast, “if

such evidence is introduced for [an] illegitimate purpose—solely

as evidence of the guilt of the defendant on trial—it is not
 -7-
admissible.” Rothwell, at 786, 303 S.E.2d at 801.

Here, co-defendant Seeley was unavailable for trial and was

not a testifying witness. Nonetheless, the State elicited

testimony from Captain Williams regarding co-defendant Seeley’s

guilty plea and active sentence for the same crime charged in

defendant’s case without offering a legitimate purpose. Captain

Williams testified that Seeley pled guilty to robbery with a

dangerous weapon——the same crime charged against defendant——and

that Seeley was “sent to [the] Department of Corrections.” As

Seeley did not testify to his own participation in the crime,

defendant was not afforded an opportunity to cross-examine him.

Because defendant’s guilt must be determined solely by the

evidence presented against him and because Seeley’s absence

during trial deprived defendant of his constitutional right of

confrontation and cross-examination, we conclude that the trial

court erred in admitting the challenged testimony. See, e.g.,

State v. Lyles, 172 N.C. App. 323, 330, 615 S.E.2d 890, 895

(2005) (finding error in the trial court’s admittance of

testimony that unavailable co-defendant was charged with similar

offenses as defendant); see also Gary at 37-38, 337 S.E.2d at 76

(holding that it was error to admit co-defendant’s charges

because “[n]o purpose was served by informing the jury that [co-
 -8-
defendant] had been tried, other than to suggest that he had

also been convicted, and by inference that defendant should

receive the same treatment”).

B. Prejudicial Error

Having found that the trial court erred, we now turn to the

question of whether such error was prejudicial to defendant such

that it had a probable impact on the jury’s finding of guilt.

See Lawrence, supra.

Here, defendant contends that the error was prejudicial

because the State failed to produce any competent evidence to

support his conviction, other than the admission of Captain

Williams’ testimony regarding the disposition of Seeley’s case.

Specifically, defendant avers that

[i]n all probability, the erroneously
admitted testimony ultimately pushed the
jury into convincting Mr. Phelps based on
the preexisting legal determination that his
co[-]defendant was guilty of the exact same
charge. Without the erroneously admitted
guilty plea of a non-testifying co[-
]defendant, it is probable the jury would
have been unable to convict as the only
evidence linking [defendant] to the robbery
was the story of a convicted felon with a
significant negotiated interest in the
outcome of the case.

We are not persuaded. The fact that the jury learned that

Seeley pled guilty and was serving an active sentence is not
 -9-
determinative of the outcome in defendant’s case. The State

presented sufficient additional evidence to warrant defendant’s

conviction. At trial, the State proceeded under the theory of

acting in concert. Plenary evidence showed that a robbery with

a dangerous weapon occurred at the Head Shop. The State’s three

eye witnesses testified that three men entered the barber shop,

one wielding a machete, and demanded money from Ms. Hyman before

fleeing together. Additionally, co-defendant Basnight testified

that defendant participated in the Head Shop robbery. This

testimony corroborated his earlier statements to Captain

Williams. Further, Gilliam and Puckett partially described

defendant as a “short, black male with a light complexion” and

as “little short fellow,” respectively.

Defendant has failed to convince us that the challenged

testimony had a probable impact on the jury’s guilty verdict.

Disclosing Seeley’s guilty plea and conviction resulted in no

substantial prejudice to defendant. We note that the State

never otherwise alleged that Seeley’s guilty plea and conviction

was competent evidence of defendant’s guilt——the contested

testimony was referenced once during Captain Williams’ direct

examination.

Because we apply plain error cautiously and only in the
 -10-
exceptional case, we conclude that defendant failed to meet the

high burden of proving that the contested testimony had a

probable impact on the jury’s guilty verdict. Lawrence, supra.

Accordingly, while the admission of the guilty plea of Seeley

was error, it does not rise to the level of plain error on these

facts.

III. Restitution Order

Defendant argues, and the State concedes, that the trial

court erred in ordering defendant to pay $242.91 in restitution

to Hyman, because the restitution amount is not supported by

sufficient evidence. We agree.

“[N]o objection is required to preserve for appellate

review issues concerning the imposition of restitution.” State

v. Smith, 210 N.C. App. 439, 443, 707 S.E.2d 779, 782 (2011).

“Under a de novo review, the court considers the matter anew and

freely substitutes its own judgment for that of the lower

tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d

290, 294 (2008) (citation omitted).

Our restitution statute requires that the “amount of

restitution must be limited to that supported by the record.”

N.C. Gen. Stat. § 15A-1340.36 (2013). “A restitution worksheet,

unsupported by testimony, documentation, or stipulation, is
 -11-
insufficient to support an order of restitution.” State v.

Blout, 209 N.C. App. 340, 348, 703 S.E.2d 921, 927 (2011)

(quotation omitted). Where some evidence supports an award of

restitution, but the evidence is not specific enough to support

the exact amount ordered, our Supreme Court has held that the

proper course is to remand to the trial court to determine the

correct amount of restitution. See State v. Moore, 365 N.C.

283, 286, 715 S.E.2d 847, 850-51 (2011) (remanding to the trial

court for a new hearing to recalculate the restitution award

where there was “some evidence” to support an order of

restitution, but the evidence was unable to support the exact

amount ordered).

Here, Ms. Hyman testified that defendant stole $60 cash

from her station drawer and took her purse, which contained $60-

$100 in cash, credit cards, identification cards, and car keys.

No evidence was introduced regarding the cost of replacing her

stolen goods. Nevertheless, the trial court ordered that

“[defendant] shall pay restitution to Annie Hyman in the amount

of $242.91,” without any further explanation. Because defendant

did not stipulate to the restitution amount, and because no

evidence was presented at trial or during sentencing to support

the exact amount of restitution ordered, the trial court erred
 -12-
in ordering defendant to pay $242.91. While an award of

restitution is supported by the record, the evidence presented

did not adequately support the particular amount awarded. Thus,

we remand for the trial court to calculate the correct amount of

restitution.

IV. Conclusion

In sum, we conclude that the trial court erred in admitting

Captain Williams’ testimony regarding co-defendant Seeley’s

sentence and plea; however, such error did not constitute plain

error under Rule 10(b)(2). Accordingly, we find no prejudicial

error in defendant’s conviction. We conclude that there is

insufficient evidence in the record to support the trial court’s

specific award of restitution. Therefore, we remand to the

trial court for a new hearing to determine the appropriate

amount of restitution.

No prejudicial error in part; remanded in part.

Judges McGEE and HUNTER, Robert C., concur.

Report per Rule 30(e).