747 S.E.2d 117 (N.C.App. 2013), COA12-1219, State v. Oliphant

Docket Nº:COA12-1219
Citation:747 S.E.2d 117
Opinion Judge:BRYANT, Judge.
Party Name:STATE OF NORTH CAROLINA v. JOSHUA K. OLIPHANT and DERRICK L. HAMILTON, Defendants
Attorney:Attorney General Roy Cooper, by Assistant Attorney General Stuart M. (Jeb) Saunders, for the State versus Joshua Kareem Oliphant. Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State versus Derrick Lorenzo Hamilton. Appellate Defender Staples S. Hughes, by Ass...
Judge Panel:BRYANT, Judge. Judges ELMORE and ERVIN concur. ELMORE and ERVIN, Judges concur.
Case Date:August 06, 2013
Court:Court of Appeals of North Carolina
 
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Page 117

747 S.E.2d 117 (N.C.App. 2013)

STATE OF NORTH CAROLINA

v.

JOSHUA K. OLIPHANT and DERRICK L. HAMILTON, Defendants

No. COA12-1219

Court of Appeals of North Carolina

August 6, 2013

Heard in the Court of Appeals 27 February 2013.

Appeal by defendants from judgments entered 23 April 2012 by Judge W. Robert Bell in Mecklenburg County Superior Court Nos. 11 CRS 229706-09.

Page 118

Attorney General Roy Cooper, by Assistant Attorney General Stuart M. (Jeb) Saunders, for the State versus Joshua Kareem Oliphant.

Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State versus Derrick Lorenzo Hamilton.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellant Oliphant.

James N. Freeman, Jr., for defendant-appellant Hamilton.

BRYANT, Judge. Judges ELMORE and ERVIN concur.

OPINION

Page 119

BRYANT, Judge.

Even assuming the trial court committed instructional error, upon review of the entire record, we cannot conclude that the alleged instructional error had a probable impact on the jury's decision to convict both defendants and, therefore, find no plain error. Where there was sufficient evidence to support the submission of the charge of conspiracy to commit robbery with a dangerous weapon to the jury as to each defendant, the trial court did not err in denying defendants' individual motions to dismiss. And, where the trial court refused to allow the examination of the victim regarding a probation violation report she had not seen, we find no error.

On 27 June 2011 just after 1:00 a.m., Tiawauna Threatt -- the victim -- had just left a friend's house and was walking along Hildebrand Street near its intersection with Beatty's Ford Road in Mecklenburg County. As she talked on her cell phone, the victim was approached from behind by two males. One of the men -- " the light-skinned [one] with wide frame glasses" -- pulled out a black revolver, pointed it at her, and demanded her pocketbook, which she handed over. The second man -- " dark-skinned" and wearing a " doo rag" -- reached for her cell phone, which she gave to him. The victim then ran towards Beatty's Ford Road where she waived down a Charlotte-Mecklenburg police officer who was on patrol. She gave a statement and a physical description of each of the men. Within twenty minutes and five blocks of the location of the robbery, law enforcement officers detained defendants Joshua Oliphant and Derrick Hamilton who matched the descriptions given by the victim. The officers presented defendants to the victim as part of a " show-up" identification; the victim identified both defendants as the men who had just robbed her.

Also, soon after the victim's descriptions of the two men were broadcast to other law enforcement officers in the vicinity, a vehicle

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was found abandoned at the end of Hildebrand Street, less than a quarter of a mile from the place of the robbery. The vehicle was parked in the traffic lane; its lights were on; its engine was running; and its driver side door was open. The vehicle was registered to defendant Oliphant, and defendant Oliphant's wallet along with mail addressed to him was found on the vehicle's front seat.

Arrest warrants were issued and served immediately on defendants Oliphant and Hamilton charging each with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendants were each indicted shortly thereafter on charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon.

A jury trial was commenced during the 16 April 2012 Criminal Session of Mecklenburg County Superior Court, the Honorable W. Robert Bell, Judge presiding. Following the presentation of evidence, the jury returned verdicts of guilty as to each defendant on the charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. As to defendant Oliphant, who had attained a prior felony record level of five, the trial court entered a consolidated judgment in accordance with the jury verdicts and imposed an active term of 111 to 146 months. As to defendant Hamilton, who had attained a prior felony record level of four, the trial court imposed an active term of 97 to 129 months. Defendants appeal.

On appeal, defendants Oliphant and Hamilton raise the following issues: (I) whether the trial court's instructions to the jury encouraged a determination of defendants' guilt collectively rather than individually; and (II) whether the trial court erred in failing to dismiss the conspiracy charges. Defendant Hamilton separately raises an issue (III) as to whether the trial court erred in not allowing him to question a witness regarding a probation violation.

I

Neither defendant Oliphant nor defendant Hamilton objected to the trial court's instructions to the jury. At the completion of the charge to the jury the trial court asked the following question:

THE COURT: Outside the presence of the jury, are there any requests for additions, changes corrections given by the State?

[The State]: None from the State, Your Honor. THE COURT: Defendant, [defense counsel for Oliphant]? [Defense counsel for Oliphant]: Not for [defendant Oliphant], Your Honor. THE COURT: For [defendant Hamilton]? [Defense counsel for Hamilton]: Nothing for [defendant Hamilton], Judge.

Now, on appeal, defendants Oliphant and Hamilton assert that the trial court committed plain error in its instructions to the jury because its instructions permitted the jury to think that it should determine defendants' guilt collectively rather than individually. We disagree.

Plain Error Review The plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (citation, quotations, and brackets omitted).

The adoption of the 'plain error' rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant's failure to object at trial. To hold so would negate [N.C. R. App. P. 10(a)(2) 1, 2]

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which is not the intent or purpose of the 'plain error' rule.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citing United States v. Ostendorff, 371 F.2d 729 (4th Cir. 1967)). " The purpose of Rule [10(a)(2)] is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial." State v. Collins, 334 N.C. 54, 66, 431 S.E.2d 188, 195 (1993) (citation omitted).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citing Odom, 307 N.C. at 660, 300 S.E.2d at 378). " 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." Id. (citations and quotation marks omitted); compare State v. Ballard, 193 N.C.App. 551, 668 S.E.2d 78...

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