State v. Escoto

• Citation: 162 NC App. 419,590 S.E.2d 898
• Decision Date: 03 February 2004
• Docket Number: No. COA03-70.,COA03-70.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Ludy Fernando ESCOTO. and Jose Luis Ramos.

590 S.E.2d 898

162 NC App. 419

STATE of North Carolina v. Ludy Fernando ESCOTO. and Jose Luis Ramos.

No. COA03-70.

Court of Appeals of North Carolina.

February 3, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar and Assistant Attorney General Sharon Patrick-Wilson, for the State.

Daniel F. Read and Maria J. Mangano for defendant-appellant Ludy Fernando Escoto; Paul M. Green, Durham, for defendant-appellant Jose Luis Ramos.

McGEE, Judge.

Defendants Ludy F. Escoto (Escoto) and Jose Luis Ramos (Ramos) (collectively defendants) were tried jointly and each was found guilty on 24 May 2002 of one count of first degree burglary in violation of N.C. Gen.Stat. § 14-51, five counts of first degree kidnapping in violation of N.C. Gen.Stat. § 14-39, and two counts of robbery with a dangerous weapon in violation of N.C. Gen.Stat. § 14-87. The trial court found defendants to have a prior record level I, and sentenced defendants to a minimum term of sixty months and a maximum term of eighty-one months, active imprisonment, for the burglary conviction and the five kidnapping convictions, to run consecutively. Prayer for judgment was entered for each of the armed robbery convictions. Defendants appeal.

The evidence at trial tended to show that on 31 March 2001, at approximately 8:00 p.m., defendants and three other men went to the home of Maria Carrera (Carrera) and Antonio Munoz (Munoz) in Burlington, North Carolina. Martin Arrollo (Arrollo), Juan Manual Garduno (Garduno), Librada Pagan (Pagan), and Angela Espana (Espana) were also present in the house. The men entered the home and forced five victims onto the floor with guns and restrained them using tape, shoelaces, and telephone cord. The men also placed tape over the mouths of the victims, searched their pockets, and took $700.00 from Arrollo. In addition, Escoto directed the other men to unhook a stereo. After being disconnected, the stereo was moved a short distance but not removed from the home. Defendants and the other three men also searched the house for drugs and money. Arrollo testified that both he and Munoz were hit by someone during the robbery. Munoz testified that he was kicked by someone other than defendants.

The sixth victim present at the house, Carrera, had seen the approaching men on the home security system and was able to escape from the house undetected. Carrera stopped a woman in a passing car and asked her to call the police. When the police arrived, defendants were arrested but the other three men involved were not apprehended. Money was seized from Ramos and one semiautomatic rifle was recovered.

Defendants testified at trial that they were not aware of the true reason they were going to the house until they were on their way to Burlington. Escoto testified he was under the impression they were going to a construction job. He testified that one of the other men involved threatened to kill him, his girlfriend, and his child if he did not participate in the robbery. Ramos testified he thought they were going to a dance club in Burlington. He said "they put the gun on me and had me tie the people up." Ramos continued his testimony by explaining why he was afraid not to participate in the robbery.

I. Ludy Fernando Escoto

We first note defendant has failed to present an argument in support of assignments of error numbers three and six and they are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6). Defendant's first two assignments of error relate to the joinder of defendant's cases with those of co-defendant Ramos and the subsequent admission of testimony over defendant's objection. Defendant argues he was denied a fair trial by the trial court's overruling his objection to joinder of his case with Ramos. Defendant's objection is based on the fact that Michael Williamson (Williamson), an individual confined with Ramos in jail, was able to testify to what Ramos told him about the events in question. Defendant argues that had his case not been joined with Ramos' case, the testimony of Williamson would have been irrelevant and inadmissible in defendant's trial. However, the following testimony regarding what Ramos told Williamson, which defendant argues bore heavily on his own credibility, was admitted over defendant's objection:

So he got caught up in the room. He seen the blue lights bouncing off the wall. Said he wiped down the gun, the AK-47, threw it up under the bed, and tried to run out the house and get in the car. The police was already there. So he had told them a story that they had forced him, they had forced him to do that. And he said that was the way he could try to play it off to make it, I guess make his case look like that he didn't have nothing to do with it.

Defendant argues that by implication, it is probable that the jury found that he participated knowingly and willingly rather than being threatened as he had testified. Defendant argues this testimony prejudiced him such that he was denied a fair trial.

Objections to joinder and severance in criminal cases are governed by N.C. Gen. Stat. § 15A-927(c) (2003). Subsection (c)(1) pertains to a situation where a co-defendant makes an out-of-court statement which references the defendant but is not admissible against the defendant. In such a case, the State must do one of the following: (1) conduct a joint trial where the statement is not admitted; (2) conduct a joint trial where the statement is admitted after all references to the defendant have been omitted; or (3) conduct a separate trial of the objecting defendant. However, in the case before us, subsection (c)(1) is not applicable.

G.S. 15A-927(c)(1) codifies substantially the decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which held that the receipt in evidence of the confession of one codefendant posed a substantial threat to the other codefendant's Sixth Amendment right of confrontation and cross-examination because the privilege against self-incrimination prevents those who are implicated from calling the defendant who made the statement to the stand.

State v. Johnston, 39 N.C.App. 179, 182, 249 S.E.2d 879, 881 (1978), disc. review denied, 296 N.C. 738, 254 S.E.2d 179 (1979). In the case before us, both Williamson and Ramos testified and were subject to cross-examination by defendant. Thus, the Bruton rule and subsection (c)(1) do not apply. Johnston, 39 N.C.App. at 183, 249 S.E.2d at 881. See also State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968)

; State v. Rasor, 319 N.C. 577, 582, 356 S.E.2d 328, 332 (1987).

Defendant secondarily relies on N.C. Gen.Stat. § 15A-927(c)(2) which pertains to situations other than those governed by subsection (c)(1) and "requires the court to grant severance whenever it is necessary to promote or achieve a fair determination of guilt or innocence." Rasor, 319 N.C. at 581, 356 S.E.2d at 331. "A trial court's ruling on such questions of joinder or severance, however, is discretionary and will not be disturbed absent a showing of abuse of discretion." State v. Carson, 320 N.C. 328, 335, 357 S.E.2d 662, 666-67 (1987). "The trial court `may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.'" Carson, 320 N.C. at 335, 357 S.E.2d at 667 (quoting State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985)).

In the case before us, the trial court did not abuse its discretion in denying the motion to sever. "Our state has a `strong policy favoring the consolidated trials of defendants accused of collective criminal behavior.'" State v. Roope, 130 N.C.App. 356, 364, 503 S.E.2d 118, 124, disc. review denied, 349 N.C. 374, 525 S.E.2d 189 (1998) (quoting State v. Barnes, 345 N.C. 184, 222, 481 S.E.2d 44, 64-65, cert. denied, Chambers v. North Carolina, 522 U.S. 876, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997), cert. denied, Barnes v. North Carolina, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998)). The cases relied upon by defendant are all distinguishable. State v. Gonzalez, 311 N.C. 80, 94, 316 S.E.2d 229, 237 (1984) is not relevant because error was found based on N.C. Gen.Stat. § 15A-927(c)(1), the subsection which is not applicable to this case. State v. Pickens, 335 N.C. 717, 725, 440 S.E.2d 552, 556-57 (1994) is distinguishable because it involved co-defendants who had irreconcilable defenses such that the jury could infer guilt based on this conflict alone. However, in the case before us, defendants do not present conflicting defenses. Lastly, State v. Hucks, 323 N.C. 574, 581, 374 S.E.2d 240, 245 (1988) is also distinguishable because in Hucks, one of the co-defendants entered a guilty plea but the trial court refused to sever the cases. Again, those facts are not similar to the case before us. In light of the wide discretion accorded the trial court in determining severance, we find assignment of error number one to be without merit.

Even assuming it was error to deny the motion to sever, such error was not prejudicial.

The differences in evidence from one codefendant to another ordinarily must result in a conflict in the defendants' respective positions at trial of such a nature that, in viewing the totality of the evidence in the case, the defendants were denied a fair trial. However, substantial evidence of the defendants' guilt may override any harm resulting from the contradictory evidence offered by them individually.

Barnes, 345 N.C. at 220, 481 S.E.2d at 63-64 (citations omitted). For example, in State v. Littlejohn, 340 N.C. 750, 756, 459 S.E.2d 629, 632-33 (1995), the Supreme Court held that assuming that admission of a co-defendant's confession was error, it was harmless beyond a reasonable doubt in light of the other evidence against the defendant.

Similarly, in the case before us, there is significant evidence supporting defendant's guilt. Defendant admits going to the...