State v. Blackstock, COA03-732.

CourtCourt of Appeal of North Carolina (US)
Citation598 S.E.2d 412,165 NC App. 50
Docket NumberNo. COA03-732.,COA03-732.
PartiesSTATE of North Carolina v. Billy Lee BLACKSTOCK.
Decision Date06 July 2004

Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

Glover & Petersen, P.A., by James R. Glover, Chapel Hill, for defendant appellant.

WYNN, Judge.

Defendant Billy Lee Blackstock appeals from judgments of the trial court entered upon jury verdicts finding him guilty of robbery with a dangerous weapon and first-degree murder on the basis of premeditation and deliberation and felony murder. Defendant argues such judgments must be reversed, in that the trial court erred by (I) denying his motion to suppress; (II) admitting hearsay statements; (III) overruling his objections to statements made by the prosecutor during closing argument; and (IV) allowing an expert witness to state that the bullet wound suffered by the victim was the proximate cause of death. We conclude the trial court erred in admitting the hearsay statements in violation of Defendant's right to confrontation. Because the hearsay statements pertained only to Defendant's conviction of first-degree murder under a theory of premeditation and deliberation, however, we find no error in Defendant's conviction of felony murder; and, following our case law, we vacate Defendant's conviction of robbery with a dangerous weapon. State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002).

At the trial, the State presented evidence tending to show that on the evening of 15 April 2000, Cecil Weeks was working at the convenience store he owned and operated in Reidsville, North Carolina. Weeks was alone in the store. Two African-American men wearing masks and carrying handguns entered the store at approximately 9:30 p.m. and demanded money. Weeks was shot in the upper right chest during the course of the robbery.

Weeks was treated for the gunshot wound at a hospital, where his condition improved over the next four days. On the fifth day, he developed an infection in his blood stream and died on 22 April 2000. Before his death, Weeks made several statements to law enforcement officers and his wife and daughter describing the robbery and the shooting. The trial court allowed Weeks' wife and daughter to testify to these statements at trial over Defendant's objections.

Investigating officers recovered a spent .40 caliber bullet and shell casing from the floor of the convenience store. Testing revealed that the bullet recovered from the scene of the robbery was fired from a Glock handgun belonging to Defendant and seized by officers during a 17 April 2000 investigative stop of an automobile in which Defendant was a passenger. During a subsequent search of Defendant's residence, officers discovered a pair of blood-stained jeans identified by Defendant as belonging to him. A forensic molecular geneticist performed a DNA analysis and concluded that the blood stain on the jeans matched Weeks' DNA profile. Finally, a witness for the State identified Defendant as one of two men she observed loitering behind the convenience store approximately thirty minutes before the robbery.

Before trial, counsel for Defendant moved to suppress evidence seized by law enforcement officers during the 17 April 2000 investigative stop. At the suppression hearing, Greensboro police officer J.D. Slone testified that, on 16 April 2000, he was working with fellow officer Jay Tunstall as part of a larger unit of officers known as the "Crime Abatement Team." The officers wore plain clothes and patrolled in an unmarked vehicle "the area between Summit Avenue and Bessemer and back to Cone Boulevard" in northeast Greensboro because "the statistical data indicated this area had a problem with robberies and break-in and enterings." At approximately 11:45 p.m., Officer Slone "observed two black males dressed in dark clothing ... walking along the front of the closed businesses of [a] strip mall." None of the businesses in the strip mall was open, the lighting was dim, and there were no vehicles in the parking lot. The two men "were walking very slowly, and they were looking into the business windows and looking back throughout the parking lot and back into the businesses as they were going up along the sidewalk." Officer Slone relayed his observations to his sergeant, who arrived at the scene in a vehicle with visible police antennas and a mounted blue light on the rear window. One of the two men turned and appeared to spot the police vehicle, whereupon both men "immediately turned around and stopped their direction of travel that they were going and immediately began to walk hurriedly back toward... the western end of the building." The men entered a vehicle parked at the end of the building, in an area generally concealed from public view. The officers followed the two men, who drove slowly through the parking lots of a gas station and a fast-food restaurant, but did not stop. The man sitting in the passenger's seat turned his head and "looked over his left shoulder, and he kept his head turned back for a few seconds as if he was trying to identify the vehicle." At that point, Officers Slone and Tunstall decided they would stop the vehicle. Officer Slone testified the decision to stop the vehicle was

[b]ased upon the statistical data we reviewed and the indication of robberies in that area, given the time of night it was, the dark clothing they were wearing, the position of their car out of sight, the way they moved along the front of the businesses, moving around. They were trying to be aware of their surroundings when they began to walk around the parking lot and when they observed the police vehicle, they turned and changed their pace. They got into their vehicle and left.
They pulled directly into the [gas station parking] lot as if they were casing the business, what appeared to be — it was a slow pace. Never did stop. Pulled back onto the street; upon approaching the [fast food restaurant], immediately we were behind them because they failed to give a turn signal in an orderly fashion. The front seat passenger immediately looked over as if they were trying to identify the people within the vehicle.
....
And the fact that they drove through the [fast food restaurant parking] lot and upon getting on Sullivan Street, we were behind them. Again, they started looking, again, as if they were trying to identify who it was.

The officers stopped the vehicle near the campus of A & T University. The driver identified himself as Tory Gerald Tucker, but told Officer Slone he did not have his driver's license with him. Officer Slone identified Defendant as the passenger. Officer Slone requested that Tucker step out of the vehicle. Tucker informed Officer Slone they were traveling to A & T University "to talk with a football player by the name of Marvin Blackstock." Officers with A & T University informed Officer Slone that no such person was listed in the university roster. Tucker further explained that the two men had been at the strip mall earlier to use a pay phone; however, Officer Slone stated there were no pay phones in the immediate area of the shopping center. Tucker gave Officer Slone permission to search his vehicle. Officers found a plastic bag containing two ounces of marijuana and a "loaded Glock 23 .40 caliber handgun" beneath the front passenger seat. Both Tucker and Defendant denied ownership of the weapon. The officers also found two black toboggans and "a female-styled hair wig" in the vehicle.

Defendant presented the testimony of Doris Hunter, the registrar at A & T University, who verified that a student named Marvin Blackstock was enrolled and attended the university during April of 2000. Hunter further testified that Blackstock was a football player for the university.

The trial court denied Defendant's motion to suppress, and the case came to trial on 7 January 2002. Upon conclusion of the evidence, the jury found Defendant guilty of armed robbery and first-degree murder under the felony murder rule and on the basis of premeditation and deliberation. Upon the jury's recommendation that Defendant be spared the death penalty, the trial court sentenced Defendant to life imprisonment without parole for the first-degree murder conviction and a term of sixty-four to eighty-six months' imprisonment for the armed robbery conviction. Defendant appealed.

Defendant presents four assignments of error on appeal, arguing the trial court erred by (I) denying his motion to suppress evidence seized by law enforcement officers during the 17 April 2000 investigative stop; (II) admitting statements made by Weeks to his wife and daughter; (III) overruling his objections to statements made by the prosecutor during closing argument; and (IV) allowing an expert witness to state that the bullet wound suffered by Weeks was the proximate cause of death. For the reasons stated herein, we conclude the trial court erred in admitting the hearsay statements made by Weeks to his wife and daughter.

I. Motion to Suppress

By his first assignment of error, Defendant contends the trial court erred in denying his motion to suppress evidence seized during the 17 April 2000 stop of the automobile in which Defendant was a passenger. Defendant contends that some of the findings by the trial court are not supported by the evidence, and that, in turn, the trial court's conclusion that the investigative detention was lawful is erroneous.

We review a trial court's ruling on a motion to suppress to determine whether the findings of fact are supported by competent evidence, and whether the findings support the conclusions of law. State v. Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996) (noting that a trial court's resolution of a conflict in the evidence will not be disturbed on appeal). The trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Id...

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