State v. Brown

• Decision Date: 18 April 2006
• Docket Number: No. COA05-542.,COA05-542.
• Citation: 628 S.E.2d 787
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Henry Willis BROWN, Jr. and Albert Gadson.

628 S.E.2d 787

STATE of North Carolina v. Henry Willis BROWN, Jr. and Albert Gadson.

No. COA05-542.

Court of Appeals of North Carolina.

April 18, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by defendants from judgments dated 22 October 2004 by Judge W. Douglas Albright in Superior Court, Forsyth County. Heard in the Court of Appeals 23 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

White and Crumpler, by David B. Freedman, Winston-Salem, for defendant-appellant Henry Willis Brown, Jr.

Moser Schmidly & Roose, by Richard G. Roose, Asheboro, for defendant-appellant Albert Gadson.

McGEE, Judge.

Henry Willis Brown, Jr. (Brown) and Albert Gadson (Gadson) (collectively defendants) were convicted of common law robbery and assault inflicting serious bodily injury. Brown was sentenced to a minimum of 15 months and maximum of 18 months on the common law robbery conviction, and a minimum of 19 months and maximum of 23 months on the assault conviction. Gadson also pleaded guilty to the status of habitual felon and was sentenced to a minimum of 120 months and maximum of 153 months.

The State's evidence at trial tended to show that in November 2002, Steven Allen Hall (Hall) was introduced to defendants by a friend, Stanley Blair (Blair). Defendants introduced themselves as brothers. Hall and Blair agreed to do some roofing work on Brown's home. Before Hall and Blair began work on the roof, they met defendants at Home Depot to purchase lumber. Hall testified that Brown paid for the lumber and gave Hall and Blair a check to cover partial payment of the roofing work and to cover the cost of shingles that Hall was to purchase later. Gadson spent eight hours one day helping Hall and Blair with the roofing job. Hall and Blair paid Gadson forty dollars for his help and owed him another forty dollars.

On the afternoon of 21 November 2002, defendants went to the apartment Hall shared with his girlfriend and demanded the forty dollars owed to Gadson. Defendants told Hall they were going to find Blair and collect the forty dollars. Brown told Hall they were "going to get that money because they'd been known to f___ people up before." Defendants left Hall's apartment, and Hall called the police because he felt "threatened."

The next day, defendants returned to Hall's apartment and ordered Hall to go with them to find Blair. Hall attempted to call 911, but Brown yanked the phone cord out of the wall. Gadson hit Hall in the mouth, knocking out one of Hall's teeth. Defendants grabbed Hall in order to take him out to their vehicle, but Hall fell to the ground, and defendants stomped on his head. Defendants went back inside Hall's apartment, and Hall followed. Gadson again hit Hall in the mouth, and Brown threw a coffee table at Hall. Hall's neighbor, Joel Chapman (Chapman), testified that he saw defendants take two television sets from Hall's apartment and saw defendants load the televisions into the trunk of their vehicle.

Dr. Mark Hess (Dr. Hess) testified that Hall suffered multiple facial fractures around his eye and multiple lacerations. He also testified that Hall had lost a lower tooth. Hall's vision in his injured eye was 20/100 after the assault and his vision was still affected at the time of trial two years later.

On appeal, Brown argues eight assignments of error, and Gadson argues four assignments of error. Defendants' assignments of error not argued on appeal are deemed abandoned. N.C.R.App. P. 28(b)(6).

I.

Defendants argue the trial court erred in denying their motions to sequester the State's witnesses. Brown filed a pretrial motion to sequester, and Gadson made an oral motion at trial. The trial court denied the motions, stating:

Well, the last couple of times I've tried to sequester witnesses, frankly stated, it's been a miserable experience.... There's no central place where I can put witnesses. It inevitably becomes a time-consuming process. And when I weigh what, if any, gain might be had by keeping the witnesses out versus keeping them in, in the exercise of my discretion I'm going to deny that motion.

"A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court[.]" State v. Call, 349 N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998). A trial court's denial of a motion to sequester will not be disturbed "in the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision." Id. Citing State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated and remanded on other grounds, 494 U.S. 1022, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990), defendants argue that the trial court failed to consider the merits of the motion to sequester. However, we find the trial court's ruling shows adequate deliberation and weighing of the merits of the motion. Moreover, in State v. Anthony, 354 N.C. 372, 396, 555 S.E.2d 557, 575 (2001), cert. denied, 536 U.S. 930, 122 S.Ct. 2605, 153 L.Ed.2d 791 (2002), our Supreme Court held that where a defendant failed to point to any instance in the record where a witness conformed his or her testimony to that of another witness, the defendant failed to show an abuse of discretion in the trial court's denial of a motion to sequester witnesses. In the present case, neither defendant identified any instance of a witness conforming testimony to that of another witness. Accordingly, we find no error.

II.

Defendants argue the trial court erred in allowing Hall's father, Clarence Hall, to testify at trial when Clarence Hall's name did not appear on the witness list disclosed by the State prior to trial. For the reasons below, we find no error.

Gadson argues the State was required, under N.C. Gen.Stat. § 15A-903(a)(3), to provide a written list of the names of all witnesses the State reasonably expected to call at trial. N.C. Gen.Stat. § 15A-903 provides:

(a) Upon motion of the defendant, the court must order the State to:

. . . .

(3) Give the defendant, at the beginning of jury selection, a written list of the names of all other witnesses whom the State reasonably expects to call during the trial.... If there are witnesses that the State did not reasonably expect to call at the time of the provision of the witness list, and as a result are not listed, the court upon a good faith showing shall allow the witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.

(emphasis added). The record does not reveal that either defendant made a motion requesting the trial court to order the State to provide a list of witnesses. Therefore, the State was not required by N.C.G.S. § 15A-903(a)(3) to provide defendants with a list of the witnesses it intended to call during trial. Gadson's assignment of error is overruled.

Brown concedes the State was not required to provide defendants with a witness list under N.C.G.S. § 15A-903(a)(3). Instead, he argues that because the State volunteered to provide defendants with a witness list, the State's voluntary list should have complied with N.C. Gen.Stat. § 15A-903(b) and should have provided the names of all witnesses the State expected to call. N.C. Gen.Stat. § 15A-903(b) (2005) provides that "[i]f the State voluntarily provides disclosure under N.C.G.S. § 15A-902(a), the disclosure shall be to the same extent as required by subsection (a) of this section." N.C. Gen.Stat. § 15A-902 provides in pertinent part:

(a) A party seeking discovery under [Article 48] must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. A written request is not required if the parties agree in writing to voluntarily comply with the provisions of [this Article]....

(b) To the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.

N.C. Gen.Stat. § 15A-902(a)(b) (2005).

Brown cites State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977), in which our Supreme Court held that where the State provides a list of witnesses pursuant to a court order, and the State subsequently seeks to call a witness not on the list, the trial court must "look to see whether the district attorney acted in bad faith, and whether the defendant was prejudiced thereby." Id. at 523, 231 S.E.2d at 675 (internal citations omitted). Brown argues the standard set forth in Smith should be "equally applicable in the case of a voluntary disclosure as court ordered disclosure." In noting the distinction between court-ordered discovery and voluntary discovery, Brown presages our analysis. Unlike the facts of Smith, in the present case, there is no indication from the record that either defendant made a request for voluntary discovery by the State. Nor is there any evidence in the record of a written agreement between the State and either defendant to voluntarily comply with the provisions of Article 48. Reading the plain language of N.C.G.S. § 15A-902(b), it seems that absent a request or written agreement, the State's witness list is not deemed to have been made under an order of the trial court. See N.C.G.S. § 15A-902(b) ("To the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.") (emphasis added). If not deemed to have been made under a court order, such voluntary discovery would seem not to need to be "to the same extent as required by [N.C.G.S. § 15A-902(a)]." N.C.G.S. § 15A-903(b).

However, we note that North Carolina cases since Smith have used the Smith standard in cases where discovery was not court-ordered. In State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980), the defendant made...