State Of North Carolina v. Williamson
| Citation | 698 S.E.2d 727 |
| Decision Date | 07 September 2010 |
| Docket Number | No. COA09-1475.,COA09-1475. |
| Parties | STATE of North Carolinav.Nathan Darnell WILLIAMSON. |
| Court | Court of Appeal of North Carolina (US) |
Appeal by defendant from judgment entered 6 May 2009 and order entered 17 June 2009 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 April 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.
Christy E. Wilhelm, Concord, for defendant-appellant.
Nathan Darnell Williamson (“defendant”) appeals from (1) a judgment entered upon a jury verdict finding him guilty of two counts of robbery with a dangerous weapon and (2) the trial court's denial of defendant's post-trial motion for appropriate relief (“MAR”). We find no error at trial and affirm the trial court's denial of defendant's MAR.
On 13 June 2009, defendant and Dorsey Lemon (“Lemon”) entered T & B Amusements (“T & B”) in Winston-Salem, North Carolina. Upon entering, Lemon struck employee Cecil Sanderlin (“Sanderlin”) in the head with a black semiautomatic pistol. Lemon then cocked the gun in Sanderlin's face and announced, “this is a robbery.” During the course of the robbery, defendant and Lemon took between five and seven hundred dollars and a radio belonging to T & B employee Ann Cheek. Once the robbery was completed, Lemon returned the gun to its owner, Jabriel Bailey, who was acting as a lookout during the robbery. The gun was never recovered by police.
Detective Phillip Cox (“Det. Cox”) of the Winston-Salem Police Department was assigned to investigate the robbery. Witnesses interviewed by Det. Cox identified defendant as a participant in the robbery. Based upon this identification, Det. Cox located defendant, who voluntarily agreed to provide a statement to him. In his statement, defendant admitted his involvement in the robbery. Defendant additionally told Det. Cox that Lemon carried the gun during the robbery and that Jabriel Bailey and Donte Crews were the lookouts.
Defendant was subsequently arrested and indicted for two counts of robbery with a dangerous weapon and one count of conspiracy to commit robbery with a dangerous weapon. Defendant's jury trial in Forsyth County Superior Court began on 5 May 2009, in the afternoon. At the close of the State's evidence, defendant made a motion to dismiss all charges. The trial court allowed the motion to dismiss for the one count of conspiracy to commit robbery with a dangerous weapon but denied the motion for the two counts of robbery with a dangerous weapon. Defendant did not present any evidence.
At the charge conference, defendant's counsel requested a jury instruction on common law robbery, contending that the State failed to prove that the gun used was actually an operational weapon. The trial court refused defendant's request.
On 6 May 2009, the jury returned a verdict finding defendant guilty of two counts of robbery with a dangerous weapon. These convictions were consolidated and defendant was sentenced to a minimum of 45 months to a maximum of 63 months in the North Carolina Department of Correction.
Following his conviction, defendant filed an MAR on 18 May 2009, based upon allegedly new evidence. In the MAR, defendant asserted that on 4 May 2009, the State obtained a statement from Lemon that the handgun he used in the robbery was inoperable and unloaded, and that defendant's counsel, Michael Archenbronn, was not made aware of that statement until after defendant had been convicted and sentenced.
On 17 June 2009, the trial court conducted a hearing on defendant's MAR. At the hearing, it was established that after obtaining Lemon's statement that the gun used in the robbery was inoperable, the State placed a one-page report documenting Lemon's statement in defendant's counsel's mailbox located in the courthouse. Defendant's counsel did not check his mailbox either in the late afternoon on 4 May or at any time on 5 May. As a result, defendant's counsel did not obtain the State's report until after defendant had been convicted on 6 May 2009. However, defendant's counsel conceded that he had independently interviewed Lemon during the evening of the first day of trial, 5 May 2009.
Lemon testified at the hearing that the gun he used during the robbery was unloaded and missing a firing pin, making it inoperable. Lemon stated that he had not previously mentioned that the gun was inoperable Defendant's counsel told the trial court that when he interviewed Lemon on 5 May, Lemon never mentioned that the gun was inoperable. Defendant's counsel also told the trial court that if he had been aware of the information sooner, he would have called Lemon to testify at defendant's trial. The trial court denied defendant's MAR in open court. Defendant appeals.
Defendant appeals, in part, from alleged errors during his trial. Specifically, defendant argues that the trial court erred by failing to instruct the jury on the lesser included offense of common law robbery and by denying defendant's motion to dismiss the robbery with a dangerous weapon charges. However, both arguments are essentially premised upon the evidence obtained after the trial tending to show that the gun was inoperable.
In State v. Joyner, our Supreme Court held that “where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim's life was endangered or threatened is mandatory.” 312 N.C. 779, 782, 324 S.E.2d 841, 844 (1985). Defendant acknowledges that the jury was presented with no evidence at his trial that the gun was inoperable or unloaded. Since defendant presented no evidence at trial to rebut the presumption that the firearm used in the robbery was functioning properly, he was not entitled to either an instruction on common law robbery or dismissal of the two counts of robbery with a dangerous weapon. Defendant's arguments regarding errors during his trial are overruled.
Defendant argues that the trial court erred by denying his MAR. We disagree.
Upon review of the denial of a defendant's MAR, “this Court is bound by the trial court's findings of fact if they are supported by any competent evidence, and ‘the trial court's ruling on the facts may be disturbed only when there has been a manifest abuse of discretion, or when it is based on an error of law.’ ” State v. Doisey, 138 N.C.App. 620, 627, 532 S.E.2d 240, 245 (2000)(quoting State v. Harding, 110 N.C.App. 155, 165, 429 S.E.2d 416, 423 (1993)).1 To prevail on an MAR on the basis of newly discovered evidence, a defendant must establish the following factors:
In the instant case, the trial court determined that defendant did not provide sufficient evidence to establish three factors: (1) the second factor-that the evidence is probably true; (2) the fourth factor-that due diligence was used to procure the testimony at the trial; and (3) the seventh factor-that the evidence was of such a nature that a different result would probably have been reached on another trial.
Defendant was required to show that the newly discovered evidence was probably true. Britt, 320 N.C. at 713, 360 S.E.2d at 664. As the dissent acknowledges, it is for the trial court to assess the credibility of a witness. State v. Garner, 136 N.C.App. 1, 14, 523 S.E.2d 689, 698 (1999). However, the dissent argues that it was error to find that the evidence was probably not true when the evidence was uncontradicted at the hearing.2
In the instant case, Lemon made a statement to Det. Cox that the gun was inoperable and not loaded on 4 May 2009. This was apparently the first time that he made that assertion, even though he had previously been charged with and pled guilty to robbery with a dangerous weapon for his conduct during the robbery. Lemon reiterated his assertion at the MAR hearing.
The evidence presented at the MAR hearing was far from being uncontradicted. Lemon had made an earlier statement to police and was interviewed by defendant's counsel during defendant's trial and made no mention of the gun being inoperable. Some of Lemon's testimony at the MAR hearing was as follows:
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