State v. Bumpers
| Decision Date | 07 June 2016 |
| Docket Number | No. COA 16–1.,COA 16–1. |
| Citation | 788 S.E.2d 683 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Chad Braxton BUMPERS. |
Attorney General Roy Cooper, by Assistant Attorney General Allison Angell, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-appellant.
TYSON
, Judge.
Chad Braxton Bumpers (“Defendant”) appeals from judgment entered after a jury convicted him of possession of a firearm by a felon. We reverse.
I. Factual Background
On 28 November 2014, Franklin County Sheriff's Deputy Stephanie Anders (“Officer Anders”) responded to a 911 dispatch call reporting two men communicating threats at the home of Chandle Cook (“Ms.Cook”). Prior to her arrival at the home, she was notified the two men had fled from the scene in a black Nissan Altima. She was provided the vehicle's license plate number. Officer Anders observed a vehicle matching this description driving down Highway 39 and 401 toward Henderson, North Carolina. She followed and initiated a traffic stop of the vehicle.
Officer Anders approached the driver's side of the vehicle and immediately recognized the passenger as Defendant, based upon a “previous interaction” with him. Officer Anders did not recognize the driver of the vehicle, later identified as Raquan Davis (“Davis”). She observed a shotgun located in the console area between the two occupants.
Officer Anders instructed Defendant not to move until she had secured the shotgun, carried it to her patrol vehicle, and unloaded it. Officer Anders arrested Defendant because she knew he was a convicted felon, was not allowed to possess any firearms, and the firearm “was in his vicinity[.]”
Officer Anders testified her search of Defendant did not reveal shell casings or any other contraband or circumstances to connect Defendant with the shotgun. No tests of the firearm for fingerprints were conducted. Neither Defendant nor Davis claimed ownership of the firearm and ownership of the gun was not determined.
A grand jury indicted Defendant on 15 January 2015 on one count of possession of a firearm by a felon. The case was called for trial on 12 August 2015.
During the first morning of trial, the State called Ms. Cook to testify. Though the State had subpoenaed and served her the previous week, Ms. Cook failed to appear. Upon the State's request, the trial court issued a bench warrant, ordering Ms. Cook to be arrested and appear before the court.
Ms. Cook was arrested and taken into custody at 11:27 a.m., after the trial court had recessed for lunch. The trial judge inquired whether Ms. Cook had received the subpoena. She confirmed being served. The trial judge released Ms. Cook after receiving her statement under oath that she would return to court at 2:00 p.m. to testify.
At 1:57 p.m., the trial court was notified Ms. Cook had been involved in a vehicle accident outside of the courthouse and was going to the emergency room. The trial court heard from Ms. Cook's mother and daughter regarding the accident, and instructed them to remind Ms. Cook to return to court the next morning to testify.
The following morning, the trial court was informed Ms. Cook was not present to testify. The State also apprised the trial court that Ms. Cook had been charged with assault the previous day, because she allegedly “assaulted the person that she hit ... in her car.” The State requested the trial court issue another bench warrant. The trial court issued a second bench warrant for Ms. Cook. She appeared before the court to testify later that day.
Ms. Cook took the stand and answered the State's preliminary questions. When asked whether she had seen Defendant retrieve a firearm from the Nissan Altima, she refused to answer and asserted her Fifth Amendment right against self-incrimination. The trial court excused the jury and took note of the pending criminal charges against Ms. Cook. The State asserted Ms. Cook's pending criminal charges were entirely unrelated to Defendant's case, and also argued her testimony as a witness in Defendant's case would not incriminate her. The trial court ultimately compelled Ms. Cook to answer questions related to activities and events occurring on 28 and 29 November 2014.
Ms. Cook testified Defendant and Davis were present at her house on the night of 28 November 2014, and that her daughter and Defendant had argued. Ms. Cook testified she provided a statement to Detective Garrett Stanley (“Detective Stanley”), who had responded to the 911 call at her home.
The State asked Ms. Cook whether she had told Detective Stanley the following events: Defendant came to her house and made threats to her daughter while Ms. Cook stood on her front porch. Davis took a firearm from Defendant and put it on his shoulder, while Ms. Cook's daughter got into her vehicle and said she would be back. Defendant and Davis walked back to their vehicle and stated they would wait for Ms. Cook's daughter to return.
Instead of responding yes or no to the State's question, Ms. Cook directed the State to “ask your officer that took my statement.” Ms. Cook testified she did not know whether Defendant or Davis had carried the firearm on the night in question and stated: “I can't tell you which one of them had that gun, because I honestly don't know.” Ms. Cook also denied she had called 911 that night and did not know who had placed the call.
Detective Stanley testified he responded to a communicating threats 911 call at Ms. Cook's residence on 28 November 2014. He recalled asking both Ms. Cook and her daughter to provide statements regarding the events which had occurred that evening. The State showed Detective Stanley a document marked as State's Exhibit 2. Detective Stanley testified he recognized it as Ms. Cook's statement. Detective Stanley could not recall having seen Ms. Cook write and sign her statement. He also testified he could not identify the handwriting or signature as that of Ms. Cook.
Detective Stanley testified he “[v]aguely” remembered going to Ms. Cook's residence and having a conversation with her about the incident. He also could not remember whether Ms. Cook had mentioned a firearm was involved in the incident. Detective Stanley did not see a firearm when he arrived at Ms. Cook's residence.
The State asked Detective Stanley to read State's Exhibit 2 to the jury. Defendant did not object. Detective Stanley read Ms. Cook's written statement to the jury in its entirety, including the following excerpt:
Officer Anders, who arrested Defendant, testified after she observed Defendant seated in the passenger seat, she noticed a firearm After the State asked Officer Anders two more questions, counsel for Defendant stated: “Judge, we object to her testimony of, ‘In his possession.’ “ The trial judge responded
At the close of the State's evidence, Defendant moved to dismiss the charge based upon insufficient evidence. The trial court denied Defendant's motion. Defendant did not present any evidence and renewed his motion to dismiss. The trial court denied this motion.
The jury returned a verdict finding Defendant guilty of one count of possession of a firearm by a felon. The trial court sentenced Defendant to an active term of 13 to 25 months imprisonment. Defendant gave notice of appeal in open court.
II. Issues
Defendant argues the trial court erred by: (1) denying his motion to dismiss based upon insufficient evidence; (2) compelling Ms. Cook to testify after she had invoked her Fifth Amendment right against self-incrimination; (3) allowing Detective Stanley to read State's Exhibit 2 to the jury, because it was neither properly authenticated, nor properly used for impeachment or corroboration purposes; and, (4) overruling Defendant's objection to Officer Anders' testimony stating the shotgun was “in his possession.” Defendant also contends these cumulative errors deprived him of a fair trial.
III. Motion to Dismiss
A. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007)
. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)
. “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any...
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