State Of North Carolina v. Vereen
| Decision Date | 19 April 2011 |
| Docket Number | No. 06 CRS 005180,No. 05 CRS 006388,NO. COA10-940,No. 08 CRS 052778,COA10-940,05 CRS 006388,06 CRS 005180,08 CRS 052778 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. ANTHONY LEE VEREEN, Defendant. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Columbus County
Appeal by defendant from judgments entered 25 February 2010 by Judge D. Jack Hooks, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 10 January 2011.
Roy Cooper, Attorney General, by Tawanda N. Foster-Williams, Assistant Attorney General, for the State.
Guy J. Loranger, for defendant-appellant.
Defendant Anthony Lee Vereen appeals from judgments entered upon jury verdicts finding him guilty of three counts of driving while license revoked in violation of N.C.G.S. § 20-28(a) and one count of giving fictitious information to an officer in violation of N.C.G.S. § 20-29. We find no prejudicial error.
The evidence presented at trial tended to show that at about 10:00 a.m. on 3 November 2005, Trooper Scott Floyd of the North Carolina Highway Patrol was conducting a drivers' license check point with another trooper at an intersection near Whiteville, North Carolina, when defendant drove up to the check point intersection. Trooper Floyd asked defendant for his driver's license and defendant said "he didn't have any." When asked for his name, defendant told Trooper Floyd his name was "Mr. Bellamy." After the other trooper recognized defendant, defendant told Trooper Floyd his real name was Anthony Lee Vereen. Over defendant's objection, Trooper Floyd testified that he verified that defendant's license was "[s]uspended." Trooper Floyd then cited defendant for driving while license revoked and for giving a false name to an officer.
At about 2:45 a.m. on 23 September 2006, Chadbourn Police Officer Bryan Wayne Campbell was conducting a drivers' license check point with another officer at an intersection in Chadbourn, North Carolina. When defendant drove up to the check point intersection, Officer Campbell recognized him and defendant told the officer that he "didn't have his driver license with him." When Officer Campbell "[r]an a check" on defendant, "it came back suspended license." Officer Campbell then cited defendant for driving while license revoked.
At approximately 11:00 p.m. on 6 August 2008, Whiteville Police Officer Donald Colby Pridgen conducted a routine traffic stop near the city limits of Whiteville, North Carolina, after observing a vehicle driving 38 miles per hour in a 25-mile-per-hour zone. When Officer Pridgen approached the vehicle, he asked defendant, who was driving the vehicle, for his driver's license. Defendant told Officer Pridgen that "he didn't have any." When the officer asked defendant whether defendant had left his license at home, "[h]e told [Officer Pridgen] his license were [sic] suspended." After the officer confirmed through the Division of Criminal Information ("DCI") system that defendant's license had been revoked, Officer Pridgen brought defendant before a magistrate and charged him with driving while license revoked.
The charges were consolidated for trial and heard by a jury in Columbus County Superior Court, where the State's witnesses included Trooper Floyd, Officer Campbell, and Officer Pridgen. During Trooper Floyd's testimony, the trooper testified that, after he issued the citation to defendant, he requested a copy of defendant's official driving record from the North Carolina Division of Motor Vehicles ("DMV") and requested copies of the certified suspension or revocation orders ("suspension letters") sent to defendant prior to 3 November 2005. Trooper Floydtestified, without objection, that defendant was issued ten suspension letters from the DMV prior to 2005, and testified that he later requested copies of other suspension letters sent to defendant by the DMV after the date of the first charged offense in the present case and prior to the dates of the other charged offenses in this case. The State offered into evidence a redacted copy of defendant's certified driving record from the DMV and at least ten unredacted copies of suspension letters sent to defendant by the DMV between 2004 and 2008. The unredacted suspension letters admitted into evidence identified the underlying convictions that led to the suspensions or revocations detailed therein. Defendant did not present any evidence at trial, and moved to dismiss the charges at the close of the State's evidence and at the close of all of the evidence, which motions were denied. Defendant was found guilty of all four charges and, on 25 February 2 010, was sentenced to two consecutive terms of 120 days of imprisonment. Defendant appeals.
Defendant first contends the trial court erred by admitting both the unredacted suspension letters and Trooper Floyd's testimony identifying the convictions that led to defendant'slicense revocations. At trial, defendant objected to the introduction into evidence of the suspension letters, which the trial court overruled. However, before the State sought to admit the suspension letters, Trooper Floyd read almost the entire contents of each of the suspension letters to the jury without objection. The trooper gave testimony which included the date each suspension letter was sent to defendant by the DMV, the effective date of the suspension detailed therein, whether the suspension was indefinite or set to expire after a fixed period of time, the description of the underlying conviction giving rise to the suspension, and the violation date of the underlying conviction. Although defendant objected to Trooper Floyd's testimony regarding two of the suspension letters, defendant failed to object to Trooper Floyd's testimony about the contents of the other suspension letters, which included testimony that defendant's license had been suspended for prior convictions of driving while license suspended, failing to pay fines, and multiple counts of failing to appear.
" This Court frequently has held that when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989). Becauseevidence of defendant's prior convictions, including one of defendant's prior convictions for driving while license suspended or revoked, was admitted without objection from defendant through Trooper Floyd's testimony, we conclude defendant's later objection to the admission of the unredacted copies of his suspension letters was insufficient to preserve his objection to the admission of this evidence.
Where a criminal defendant fails to object to the admission of certain evidence, the applicable standard of review is plain error. See State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000). 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. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(alteration in original) (internal quotation marks omitted). Tosatisfy his " burden of showing that [an] error constituted plain error," a defendant must prove " (i) that a different result probably would have been reached but for the error[,] or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Thus, "[b]efore deciding that an error by the trial court amounts to 'plain error, ' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
The elements of driving while license revoked in violation of N.C.G.S. § 20-28(a) are "(1)the defendant's operation of a motor vehicle (2) on a public highway (3) while his operator's license is revoked.'" State v. Cruz, 173 N.C. App. 689, 697, 620 S.E.2d 251, 256 (2005) (quoting State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989))." The State must also prove the defendant had actual or constructive knowledge of the... revocation in order for there to be a conviction under this statute." Id. (internal quotation marks omitted). "Admission of a letter of suspension is appropriate as evidence of notice in a charge of driving while license revoked...." State v. Scott, 167 N.C. App. 783, 785, 607 S.E.2d 10, 12 (2005)(citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)).
Defendant contends the underlying convictions that were included in the unredacted suspension letters "did not carry any probative value and only served to prejudice the jury by portraying [defendant] as someone who frequently drove with his license suspended or who failed to appear in court and pay his fines." Defendant directs our attention to State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5, rev'd per curiam for the reasons stated in dissent, 356 N.C. 418, 571 S.E.2d 583 (2002), and State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10 (2005), for support of this contention.
In Wilkerson, this...
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