State v. Lawson, COA10-1132
| Decision Date | 05 July 2011 |
| Docket Number | NO. COA10-1132,COA10-1132 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. JEREMY LAWSON |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Rockingham County No. 07 CRS 51873
Appeal by defendant from judgment entered 5 November 2008 by Judge Anderson D. Cromer in Rockingham County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews and Reita P. Pendry, for defendant-appellant.
Where defendant failed to file a motion to suppress the statement he gave to police pursuant to Article 53 of Chapter 15A and failed to make a constitutional objection at trial, defendant has waived his right to contest admission of this evidence on appeal. Where each of defendant's objections to Hairston's testimony pertaining to gang activity were sustainedby the trial court and where defendant failed to allege plain error on appeal, this issue is not preserved for appellate review. Where the State introduced evidence that defendant aided and abetted Hairston and Settle in the commission of attempted robbery with a dangerous weapon, the trial court properly submitted this charge to the jury. Where defendant was constructively present at the scene of the crime and acted with Hairston and Settle pursuant to a common purpose, there was sufficient evidence to submit the charge of assault with a dangerous weapon inflicting serious injury to the jury on a theory of acting in concert.
On June 11, 2007, two men, wearing ball caps and scarves over their faces, approached Gordon Scearce (Scearce), an elderly man, sitting on a rocking chair on his front porch. While pointing a shotgun at him, the men demanded he surrender his money. Scearce rose, and the men began patting his legs looking for a wallet. Scearce pushed the gun away and one of the men hit him in the head with it. When Scearce began bleeding and calling for help, the men fled.
A logger, who was driving by the Scearce home, observed two men running across a field with a shotgun. The logger observed the men climb over each other to get into a car.Thinking that their behavior was suspicious, the logger stopped at the Scearce home, and called 911. He gave a description of the car, a partial license plate number, and indicated the direction that the men had driven. Scearce was taken to the hospital in an ambulance and received treatment for his injuries.
An animal control officer in the area located the car, parked in a driveway, unoccupied, with the engine running. After a five-hour manhunt, sheriff's deputies found Willie Settle (Settle) and Brent Hairston (Hairston) near the site of the incident. Deputies questioned Jeremy Lawson (defendant), whose home was near the Scearce home. Defendant indicated he had seen two men running through his backyard.
The next day, after hearing that a deputy wanted to speak with him, defendant went to the sheriff's office. Defendant gave a statement, admitting that he drove the car in which the two men fled, but denied that he had knowledge of either the intentions of his associates or the events that occurred at the Scearce residence. Defendant did acknowledge stopping at the Scearce home and waiting in the car, while Settle and Hairston got out with a shotgun. After waiting for some time, he heard screaming and saw Settle and Hairston running towards the car. When they got into the car, they told defendant to drive. Whiledriving, defendant saw the animal control officer and Settle told him to stop. Defendant parked the car at his aunt's house and the three men exited the car, leaving the engine running. Defendant grabbed the shotgun from the car and hid it in some bushes.
Defendant was charged with attempted robbery with a deadly weapon, N.C. Gen. Stat. 14-87, and assault with a deadly weapon inflicting serious injury, N.C. Gen. Stat. 14-32(b). A jury found defendant guilty of both charges. Following the return of the jury verdicts, defendant pled guilty to the aggravating factor that the victim was very old; as to only the attempted robbery charge. Defendant was sentenced to an active term of imprisonment at 7 0 to 93 months for attempted robbery and a consecutive sentence of 25 to 39 months for assault with a deadly weapon inflicting serious injury. The sentence for the assault charge was from the presumptive range, while the sentence for the robbery charge was from the aggravated range.
Defendant appeals.
In his first argument, defendant contends that the trial court erred in admitting the statement he made to police in violation of his Fifth Amendment rights. We disagree.
Defendant failed to file a motion to suppress his statement, did not object to its introduction at trial, nor did he make a constitutional objection at trial.
N.C. Gen. Stat. § 15A-975 requires that:
N.C. Gen. Stat. § 15A-975 (2009) (emphasis added).
When defendants fail to comply with the statutory requirements set forth above, they "waive their rights to contest on appeal the admission of evidence on constitutional or statutory grounds." State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261, 264 (1984) (citation omitted).
"[I]t is well settled that a constitutional issue not raised in the lower court will not be considered for the first time on appeal." In re S.C.R., 198 N.C. App. 525, 530, 679 S.E.2d 905, 908 (citation omitted), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
By failing to file a motion to suppress pursuant to N.C. Gen. Stat. § 15A-975, or to object to the evidence at trial, defendant has waived this argument. This argument is dismissed.
In his second argument, defendant contends that the trial court erred in permitting evidence, over objection, that he was in a gang at the time of the incident. We disagree.
Defendant has directed our attention to a portion of the State's direct examination of Hairston and a portion of the State's cross-examination of defendant. We have reviewed this testimony. The only objections by defendant were to portions of Hairston's testimony, and each of these was sustained by the trial court. By representing in his brief that the trial court"overruled defense objections to the evidence, allowing Brent Hairston to give conclusory testimony . . . and allowing the prosecutor to cross-examine Lawson about alleged gang affiliation" defendant misrepresented this issue to the Court.
The portion of Mr. Hairston's testimony of which defendant complains is as follows:
Defendant also complains of certain specific portions of the State's cross-examination of defendant. We have reviewed the cited portions of the trial transcript and find them devoid of objections by defendant.
In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling . . . desired . . . It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion.
N.C. R. App. P. 10(a)(1). The narrow exception to this general rule is the plain error standard which allows for appellate review in criminal cases without objection, motion, or request at trial. N.C. R. App. P. 10(a) (4). Plain error review is limited to errors in jury instructions or admissability ofevidence determinations. State v. Gregory, 342 N.C. 58 0, 584, 467 S.E.2d 28, 31 (1996) (citation omitted), cert, denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998).
In the present case, the trial court sustained every objection made by defendant's counsel in the testimony of which defendant complains on appeal. This issue is not preserved for appellate review. State v. Flippen, 349 N.C. 264, 275-76, 506 S.E.2d 702, 709-10 (1998) (citation...
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