State v. Berryman
| Decision Date | 17 May 2005 |
| Docket Number | No. COA04-560.,COA04-560. |
| Citation | 612 S.E.2d 672 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Steve Lawrence BERRYMAN, Defendant. |
The Kelly Law Firm, by George E. Kelly, III, Raleigh, for the defendant.
About 10:30 on the night of 30 October 1997 the defendant, Steve Lawrence Berryman, entered a convenience store. Store clerk Salah Yousif (Yousif) became suspicious of defendant and began to monitor his movements in the store. Yousif observed defendant take a bottle of beer and a fifth of wine from the cooler and hide them in his clothing. As defendant started to leave the store, Yousif pressed an alarm to warn Louie Claami (Claami), who was working in the back of the store, that he needed assistance. When Claami appeared, Yousif, speaking in Arabic, told him defendant was stealing some beer and instructed him to stop defendant from leaving the store. As Claami moved to block his exit, defendant rushed through the door. Yousif then leaped over the counter and helped Claami grab the defendant and force him back into the store. Once they had pushed the defendant back into the store, Yousif told him they were calling the police and instructed Claami to restrain the defendant. The defendant then reached into his pocket and pulled out a screwdriver and came at Yousif. At that point, Yousif testified, the issue changed from being about the beer and wine to being about his personal safety, and Yousif punched defendant. The defendant fell but recovered and rushed at Yousif again. Yousif managed to restrain the defendant, and Claami grabbed a baseball bat from behind the counter and came to Yousif's assistance until the police arrived. Once the police had handcuffed defendant, Yousif told them that he had a screwdriver in his pocket. The officers found the screwdriver on the floor of the store, within five feet of where the defendant had been lying. When the officers searched defendant, they found him in possession of two rocks of crack cocaine and a pipe used for smoking crack cocaine.
Defendant testified that on the night of the crime he was at the home of a friend named Edward Sanders when they decided defendant would buy some beer. Defendant put on Sanders' jacket and went to the convenience store. Defendant had two dollars, which was only enough money to purchase one beer. Defendant admitted that when he got to Yousif's store he shoplifted the bottle of beer and the fifth of wine. Defendant testified that, when he realized that Yousif had seen him shoplifting the alcohol, "I think my intentions then was to probably put the beer back." At that moment, he saw Claami coming toward him and Yousif behind the counter with a baseball bat. When he attempted to flee the store Yousif rushed at him and hit him from behind with the baseball bat. Defendant claimed that he threw his hands up and surrendered but that Yousif and Claami started hitting him with their fists. Defendant fell to the floor. He then jumped up and tried to run from the store but was prevented from doing so by Yousif. According to defendant, the screwdriver in his pocket "came from work that day," he never pulled the screwdriver out of his pocket and the screwdriver was still in his pocket when the police found it.
Defendant claimed that the cocaine and crack pipe were not his, and that he had no idea they were in the coat. Defendant was indicted on charges of robbery with a dangerous weapon in violation of N.C. Gen.Stat. § 14-87(a) and felony possession of cocaine in violation of N.C. Gen.Stat. § 90-95. The jury found defendant guilty of common law robbery and felony possession of cocaine. Following the return of those verdicts, the jury found defendant guilty of being an habitual felon. All charges were consolidated into one judgment and defendant received an active sentence of 133 to 169 months. Defendant appeals.
In defendant's second assignment of error he argues that the trial court erred in allowing into evidence the crack pipe, two rocks of crack cocaine, and a State Bureau of Investigation report because the State failed to establish proper chain of custody. We disagree.
Before real evidence may be received into evidence, the party offering the evidence must first satisfy a two-pronged test. "The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change." Determining the standard of certainty required to show that the item offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court's sound discretion. "A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered." Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility.
State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736 (1999)(internal citations omitted). In the instant case, the arresting officer testified that the crack pipe introduced as evidence at trial was the same pipe he recovered from defendant and that it was in substantially the same condition. He further testified that the rocks of crack cocaine were the same ones that he removed from the defendant at the scene, and that they were in substantially the same condition excepting a small portion of one of the rocks which appeared to have been removed. Thus proper foundations were laid for the admission of these two items of evidence.
The arresting officer testified that he followed standard procedure for identifying and submitting these two items of evidence to the State Bureau of Investigation laboratory. Special Agent Wagner of the SBI testified at trial and was tendered as an expert in the fields of chemistry, analysis and identification of narcotics, and forensic chemistry, without objection. Special Agent Wagner testified that from his review of the report, he could determine that the crack cocaine had been tested following all the proper procedures, that the proper procedures for documenting chain of custody at the laboratory had been followed, and that the report clearly showed that the substance tested was crack cocaine. "If the evidence is sufficient to reasonably support the conclusion that the substance analyzed is the same as that obtained from defendant, then both the substance and the results of the analysis are admissible." State v. Callahan, 77 N.C.App. 164, 168, 334 S.E.2d 424, 427 (1985). As any "weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility[,]" Fleming, 350 N.C. at 131, 512 S.E.2d at 736, the report was properly admitted and any weakness in the chain of custody was for the jury to weigh. This assignment of error is without merit.
In defendant's third assignment of error, he argues that the trial court erred in denying his motion to dismiss the robbery with a dangerous weapon charge for insufficiency of the evidence. We disagree.
"In reviewing the denial of a defendant's motion to dismiss, this Court determines only whether the evidence adduced at trial, when taken in the light most favorable to the State, was sufficient to allow a rational juror to find defendant guilty beyond a reasonable doubt on each essential element of the crime charged." State v. Cooper, 138 N.C.App. 495, 497, 530 S.E.2d 73, 75, aff'd per curiam, 353 N.C. 260, 538 S.E.2d 912 (2000) (citation omitted). "The State is entitled to all inferences that may be fairly derived from the evidence." Id. Contradictions and discrepancies must be resolved in favor of the State. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). "In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) (citation omitted).
Defendant was not found guilty of robbery with a dangerous weapon. Defendant was found guilty of common law robbery, and thus we only address the sufficiency of the evidence to support that charge. "Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270 (1982). The evidence at trial, taken in the light most favorable to the State, shows that the defendant took a bottle of beer and a fifth of wine from the convenience store, hid the items in his clothing, and attempted to walk away without paying for them. In the process of attempting to elude capture by Yousif and Claami, defendant pulled a screwdriver and came at Yousif in a threatening manner. Yousif testified that he feared for his safety as a result of defendant's actions. We hold that the evidence was sufficient to go to the jury on the charge of common law robbery. This assignment of error is without merit.
In defendant's fourth assignment of error he argues that the trial court erred in denying his motion to dismiss the habitual felon charge because possession of cocaine is a misdemeanor. We disagree.
Defendant relies on State v. Jones, 161 N.C.App. 60, 588 S.E.2d 5 (2003). The relevant holding in that opinion was reversed by State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004). This assignment of error is without merit.
In defendant's first assignment of error, he argues that "The State's failure to provide a transcript of the proceedings in a timely fashion has deprived [him] of his constitutional and...
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