State v. Privette, COA11–139.
Decision Date | 07 February 2012 |
Docket Number | No. COA11–139.,COA11–139. |
Citation | 721 S.E.2d 299 |
Parties | STATE of North Carolina v. Antwon T. PRIVETTE and Deangelo Darne Smith. |
Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendants from judgments entered 13 May 2010 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 31 August 2011.
Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong for the State in response to Defendant Antwon T. Privette.
Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State in response to Defendant DeAngelo D. Smith.
Michele Goldman, Raleigh, for defendant-appellant Antwon T. Privette.Duncan B. McCormick, Lillington, for defendant-appellant DeAngelo D. Smith.ERVIN, Judge.
Defendants Antwon T. Privette and DeAngelo D. Smith appeal from judgments imposed by the trial court sentencing Defendant Smith to 90 to 117 months imprisonment based upon his convictions for felonious possession of stolen goods and having attained habitual felon status and sentencing Defendant Privette to 133 to 169 months imprisonment based upon his convictions for extortion, conspiracy to commit extortion, felonious possession of stolen goods, and having attained habitual felon status. After careful consideration of Defendants' challenges to the trial court's judgments in light of the record and the applicable law, we find no error in the trial court's judgments with respect to Defendant Smith, reverse Defendant Privette's conviction for possession of stolen goods, and award Defendant Privette a new trial in his extortion-related cases.
On 14 May 2009, Gary Lynn and Frank Marsh robbed Perry Brothers Jewelers. At that time, Mr. Marsh and Mr. Lynn, who were armed, took approximately twenty-two rings. After exiting the store, Mr. Lynn and Mr. Marsh entered a Nissan Murano driven by a third person. Subsequently, investigating officers determined that Deidre Archie, one of Privette's girlfriends, had rented the Murano on 11 May 2009.
On 15 May 2009, Smith telephoned A–Town Jewelz and asked Erica Wilkins, the clerk, if the store purchased scrap gold. Later that day, Defendants came to A–Town Jewelz. Smith gave four gold rings to Ms. Wilkins for use in making a custom mouthpiece known as a “grill,” signed a receipt evidencing this transaction, and wrote a telephone number belonging to Privette on that document. Later that day, Privette telephoned Ms. Wilkins for the purpose of asking her out. During that conversation, Privette mentioned that he had “more scrap gold.” The rings that Smith gave to Ms. Wilkins had been taken in the Perry Brothers robbery. Two of the recovered rings were valued at approximately $3,235.00.
On 15 May 2009, an officer of the Raleigh Police Department spotted Smith driving the Murano used in the Perry Brothers robbery, followed him into an apartment complex, and unsuccessfully attempted to speak with him. A subsequent search of the Murano resulted in the seizure of the A–Town Jewelz receipt signed by Smith and a vehicle rental receipt signed by Ms. Archie. The fingerprints of Privette, Mr. Lynn, Mr. Marsh, Smith's girlfriend, Doneisha Sanders, and Privette's wife, Shuntraya Cabbagestalk–Privette, were detected on the inside and outside of the vehicle.
After his arrest, Privette told investigating officers that he and a friend had gone to Perry Brothers during the week of the robbery in order to find a gift for Ms. Cabbagestalk–Privette. Privette stated that he could not have been involved in the Perry Brothers robbery because he was at home and subject to electronic monitoring at the time the robbery occurred.1 Privette admitted that he had been with Ms. Archie when she rented the Murano and with Smith during his visit to A–Town Jewelz.
Smith admitted to investigating officers that he was a gang member and that he had borrowed the Murano from Ms. Archie on the date of the Perry Brothers robbery. On that date, Smith had been “driving around” in the Murano with two fellow gang members known as “G” and “Chop,” a pair of individuals later identified as Mr. Lynn and Mr. Marsh. According to Smith, “G” and “Chop” dropped him off at the home of another girlfriend, Katrina Smith, and drove off in the Murano.2 Approximately one hour later, “G” and “Chop” picked Smith up and gave him four or five rings for allowing them to use the Murano. Smith admitted that he thought that the rings might be the proceeds of a “lick,” which is another word for a robbery. Smith took the rings to A–Town Jewelz the following day.
While in police custody, Defendants made numerous telephone calls,3 many of which related to efforts by Privette and Ms. Cabbagestalk–Privette to have Mr. Lynn and Mr. Marsh confess to the Perry Brothers robbery. For example, Ms. Cabbagestalk–Privette informed Privette in a 27 May 2009 conversation that she had told Mr. Lynn that Privette was “locked up for [a robbery] he [ain't] even done” and that, “if [Mr. Lynn] did the [robbery,] [he] need [ed] to man up and own up to [his] charge.” Subsequently, Privette told Ms. Cabbagestalk–Privette to “call [Mr. Lynn] and tell him I said if he don't come down here and tell these people that I ain't ... know nothing about it, and I ain't have nothing to do with that ... he fitting to get rolled.” 4 In addition, Privette told Ms. Cabbagestalk–Privette to:
[t]ell ... [Mr. Marsh], or whatever, robbed the jewelry store with mace and a gun. I don't care what ... they robbed it with, but the thing is [they] need to clear me. [They] need to clear me you. I am down here, they already know I ain't do nothing, I ain't have nothing to do with nothing, you know what I am saying? ... If [they] turn themselves in [they] don't get nothing but like 10 to 12 months.Similarly, Privette told Ms. Cabbagestalk–Privette to tell Mr. Lynn that he had “[three] days to get down here ... or he rolled.” During a 1 June 2009 conversation, Ms. Cabbagestalk–Privette told Privette that Mr. Lynn had asked her whether he was “on a plate;” 5 in response, Privette noted that he had previously told Mr. Lynn that “he [was] food,” which meant that he was in violation of gang code and susceptible to attack. On 17 June 2009, Smith told Mr. Lynn to listen to the Defendants and that he had a deadline by which he needed to turn himself in. Mr. Lynn and Mr. Marsh subsequently turned themselves in to authorities, confessed to the Perry Brothers robbery, and pled guilty to robbery-related charges arising from the robbery. Mr. Lynn was not a suspect in the Perry Brothers robbery at that time.
On 8 February 2010 and 9 February 2010, the Wake County grand jury returned bills of indictment charging Smith with felonious possession of stolen goods and having attained habitual felon status. On 18 November 2008, 8 February 2010, and 9 March 2010, the Wake County grand jury returned bills of indictment charging Privette with having attained habitual felon status; felonious possession of stolen goods; extortion; and conspiracy to commit extortion.6
The cases against Defendants came on for trial before the trial court and a jury at the 3 May 2010 criminal session of the Wake County Superior Court. Prior to trial, the trial court granted the State's motion to join the cases against Defendants for trial.7 At the conclusion of the evidence, the trial court dismissed a number of the charges that had been lodged against Defendants. On 12 May 2010, the jury returned verdicts convicting Smith of possessing stolen property and convicting Privette of possessing stolen property, extortion, and conspiracy to commit extortion.8
After the return of the jury's verdict, both Defendants pled guilty to having attained habitual felon status. As a result, the trial court sentenced Smith to 90 to 117 months imprisonment and sentenced Privette to a consolidated term of 133 to 169 months imprisonment. Defendants noted appeals to this Court from the trial court's judgments.
In his first challenge to the trial court's judgment, Smith contends that the trial court erred by allowing the State's joinder motion. In seeking to persuade us of the validity of this contention, Smith points to the admission of evidence concerning Privette's threats against Mr. Lynn and to the admission of a letter from Privette to Smith's mother insinuating that Smith “participated in the robbery as the driver,” arguing that the admission of this evidence “made it impossible for Smith to receive a fair determination with respect to his guilt or innocence.” Defendant's argument lacks merit.
North Carolina “has a ‘strong policy favoring consolidated trials of defendants accused of collective criminal behavior.’ ” State v. Roope, 130 N.C.App. 356, 364, 503 S.E.2d 118, 124, disc. review denied, 349 N.C. 374, 525 S.E.2d 189 (1998). “A trial court's ruling on ... questions of joinder or severance ... is discretionary and will not be disturbed absent a showing of abuse of discretion.” State v. Carson, 320 N.C. 328, 335, 357 S.E.2d 662, 666–67 (1987). “ ‘The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial.’ ” State v. Lowery, 318 N.C. 54, 59, 347 S.E.2d 729, 734 (1986) (quoting State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied sub nom. Jolly v. North Carolina, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980)).
After carefully reviewing the record, we are unable to conclude that the trial court's joinder decision deprived Smith of a fair trial. As the record clearly reflects, the only issues that the trial court submitted for the jury's consideration with...
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