State v. Buckom

• Decision Date: 03 June 1997
• Docket Number: No. COA95-668,COA95-668
• Citation: 126 N.C.App. 368,485 S.E.2d 319
• Parties: STATE of North Carolina v. Gary Devon BUCKOM.
• Court: North Carolina Court of Appeals

Page 319

485 S.E.2d 319

126 N.C.App. 368

STATE of North Carolina v. Gary Devon BUCKOM.

No. COA95-668.

Court of Appeals of North Carolina.

June 3, 1997.

Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Benjamin Sendor, for defendant-appellant.

JOHN, Judge.

Defendant appeals convictions of two counts of robbery with a dangerous weapon and contests the trial court's findings on his motion for appropriate relief originally filed with this Court. We hold no prejudicial error affected defendant's trial and affirm the denial of his motion for appropriate relief.

The State's evidence at trial tended to show the following: On the night of 26 January 1989, Mylon Joseph Thornton, Jr. (Thornton) was the clerk on duty at Quick Mart number one located on the corner of Jefferson and Ash Streets in Goldsboro. Between 1:30 and 2:00 a.m., defendant entered the store. Thornton observed defendant for approximately five minutes. Defendant asked Thornton for a pack of cigarettes and inquired about employment at the store. Thornton responded that no positions were available, whereupon defendant reached across the counter, grabbed Thornton, pulled out a paring knife, held it behind Thornton's neck, and ordered him to open the cash register. After Thornton unsuccessfully attempted to comply, defendant placed the knife on the counter and tried to open the register himself, pulling it off the counter with his bare hands. As defendant was doing this, the cash drawer of the register fell to the floor, whereupon defendant grabbed it, exited the store and ran down the street. The register contained $20.00 cash, $10.00 in food stamps, and a credit card in the name of Roberson, a customer who had inadvertently left it behind earlier in the day.

Thornton telephoned police and turned down the store lights. Thornton testified he described the perpetrator to the responding officers as a black male, 29 to 33 years old, over six feet tall, and wearing a blue-green sweater, faded blue-green pants, white tennis shoes, and a baseball cap with the brim pulled down nearly to his eyebrows. On cross-examination Thornton acknowledged the description he gave to police was of a black male approximately 25 years of age, 6'1" to 6'3", wearing dark green work pants, a dark green pullover sweater, faded fatigues, and white tennis shoes.

After hearing a radio broadcast describing the perpetrator as a black male between 25 and 30 years of age wearing a gray sweater, green pants, and boots, Officer Jeffrey Stewart (Stewart) of the Goldsboro Police Department circled the convenience store area in his patrol car. Stewart encountered defendant walking on Madison Avenue, a few blocks from the Quick Mart, and suspected defendant had committed the robbery because he fit the general description of the perpetrator. Stewart stopped defendant, and in the course of their conversation the latter asked Stewart for a ride to his mother's home. Stewart replied he would need the approval of his supervisor, Corporal James Franklin Green, Jr. (Green), who was located at the Quick Mart, and defendant voluntarily rode in Stewart's patrol car to the store. However, Stewart also took defendant to the Quick Mart for a show-up, a procedure when witnesses view a crime suspect for the purpose of identification.

Stewart parked his patrol vehicle under a canopy covering fuel islands at the Quick Mart, an area he described in his testimony as well-lighted. Stewart exited his automobile and told Green defendant was a possible suspect in the armed robbery, but pointed out the difference between the broadcast description and defendant's attire. Stewart testified Thornton came out of the store, talked with Green, stood within 10 to 15 feet of Stewart's patrol car and looked into the window of the vehicle. However, Thornton testified he approached within a foot or two of the automobile and said "hi" to defendant who he observed only as a shadow due to lack of illumination and darkness of the night. Because Thornton did not positively identify defendant as the robber, Stewart took defendant home.

At 8:30 that morning, Thornton went to the police station and viewed approximately five hundred photographs, including that of defendant, consisting of individuals arrested for serious crimes by the Goldsboro Police Department who were of the same race as well as the approximate age and height of the person who robbed the Quick Mart. Although Thornton recognized some persons portrayed in the photographs, he failed to identify any as the robber. Similarly, on 30 January 1989, he was unable to select the robber from a six photograph array. However, on 10 February 1989, Thornton identified defendant as the perpetrator in a six photograph array.

None of the fingerprints retrieved from the cash register and knife containing sufficient ridge detail for identification purposes were attributable to defendant.

At around 11:30 on 27 January 1989, Karen Benjamin (Benjamin) was working as a cashier at Quick Mart number three on the corner of Arrington Bridge Road and 117 South in Goldsboro. Defendant and another man entered and purchased gasoline and a cup of ice using a credit card in the name of Roberson. A few seconds later, defendant reentered and obtained Newport and Virginia Slims cigarettes with the same credit card. Approximately 30 minutes later, defendant again returned and purchased brake fluid with the credit card. When Benjamin opened the cash register to deposit the receipt, defendant grabbed her shirt, held a pocket knife to her throat, snatched money from the register drawer, forced her to give him $20.00 from the store safe, and fled. Approximately thirty minutes later, Benjamin described her assailant to Wayne County Sheriff's Deputy Jay Sasser (Sasser) as a black male in his early thirties over six feet tall, and wearing a navy blue shirt, ball cap and blue jeans.

On 8 February 1989 Sasser interviewed defendant and noted his resemblance to Benjamin's description of the robber. Sasser saw defendant write his signature that day and detected similarities to that on credit card receipts signed by the robber. On 9 February 1989 Sasser observed defendant was smoking a Virginia Slims cigarette and that he had in his possession an empty pack of Newport cigarettes. On that same date Sasser and Sheriff's Department Sergeant Justin Heath (Heath) showed Benjamin a six-photograph line up. Benjamin selected defendant's photograph as the robber. On 10 February 1989 Benjamin went with Sasser, Heath, and Sergeant Jackson to the Mt. Olive District Court for a show-up. Benjamin identified defendant as the perpetrator from a group of more than thirty-three people; fifteen were black males, five of whom had defendant's "general characteristics" according to Heath. At trial, Benjamin identified defendant as the individual who had robbed her the night in question.

Defendant's motion to dismiss the charges "for insufficiency of the evidence", proffered at the close of the State's evidence and renewed at the close of all evidence, was denied. During closing argument, the assistant district attorney asserted:

Now you'll just have to decide if it was the same man or not. Well, I'm going to tell you it is the same man and it is that man right there.

By jury verdict returned 15 June 1994, defendant was found guilty of two counts of robbery with a dangerous weapon.

On 8 December 1995 defendant filed a motion for appropriate relief with this Court, alleging deprivation of his right to an impartial jury and to the intelligent exercise of peremptory challenges. Defendant asserted the foreperson of his jury at trial, Mr. Gene Thomas (Thomas), was guilty of material misrepresentation during jury selection. According to defendant, Thomas had been asked whether he knew a potential witness, a police officer, on any law enforcement matters. Thomas responded in the negative when in actuality he had known the witness through participation with the Goldsboro-Wayne Crimestoppers organization (Crimestoppers). By order of this Court, defendant's motion was remanded to the trial court "pursuant to N.C.G.S. 15A-1418(b) for the taking of evidence." The trial court was further directed to "enter an order in which it shall make findings of fact and conclusions of law and [to] grant or deny the relief sought by defendant." Following a hearing, the trial court entered an order 6 March 1997 finding the state's witness at issue, Officer Ted McDonough (McDonough) of the Goldsboro Police Department, whom Thomas knew, "was called solely as a chain of custody witness for certain physical evidence" to which defendant had stipulated and argued it was exculpatory. The court also found the primary evidence against defendant "was the identification of the defendant by two civilian victim eyewitnesses." Further, the trial court determined that while Thomas failed to provide complete and relevant information in response to proper questions during jury selection, he possessed no relevant bias against defendant during his trial. Defendant appeals.

Initially we note defendant has failed to bring forward argument or authority in support of his assignments of error 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15 and 16. These assignments are therefore deemed abandoned pursuant to N.C.R.App. P. 28(b)(5).

We next consider defendant's contention the trial court erred by denying his motion to dismiss the charges. Defendant claims the evidence was insufficient to support his conviction of two counts of armed robbery. We disagree.

The test for sufficiency of the evidence in a criminal case is whether there is substantial evidence of all elements of the offense charged that would allow any rational trier of fact to find beyond a reasonable doubt that the defendant committed the offense. State v. Richardson, 342 N.C. 772, 785, 467 S.E.2d 685, 692, cert. denied, --- U.S. ----, 117 S.Ct. 229, 136 L.Ed.2d 160 (1996). Substantial...