State v. Mason
| Decision Date | 05 June 2001 |
| Docket Number | No. COA99-1629.,COA99-1629. |
| Citation | 550 S.E.2d 10,144 NC App. 20 |
| Parties | STATE of North Carolina v. Daryl Kent MASON. |
| Court | North Carolina Court of Appeals |
Attorney General Michael F. Easley, by Assistant Attorney General E. Clementine Peterson, for the State.
Mark J. Simeon, Durham, for the defendant-appellant.
Daryl Kent Mason (defendant) appeals from a judgment entered 18 December 1998, following his conviction of robbery with a dangerous weapon. We find error in the admission at trial of a videotape, but hold that the error was harmless on the facts of this case. Accordingly, we affirm the conviction and judgment below.
The defendant was tried for the armed robbery of an Eckerd drugstore located in Durham. The evidence presented at trial is summarized as follows: On the night of 7 January 1998, Camella Carter (Carter), Tonya Dickerson (Dickerson), and Vicki Perez (Perez) all were employed at Eckerd's store. The defendant was a former Eckerd's employee who had recently stopped working there. At approximately 11:30 or 11:45 P.M., shortly before the store closed at midnight, the defendant came into Eckerd's and spoke with Carter. He asked her who else was working that night, and asked for change to buy a candy bar. He was wearing a white nylon `windbreaker' jacket over a black sweatshirt. After speaking with the defendant, Carter resumed her duties, and the defendant walked to the front cash register, which was operated by Dickerson. A few minutes after the store closed, Carter heard Dickerson scream, followed by another person shouting "[s]hut up!" She looked up from her work, saw the defendant with a gun pointed at Perez, and heard him say "[t]his is a robbery." Although the robber was masked, Carter recognized the defendant by his clothes—a black sweatshirt and white pants that matched the windbreaker she had noticed him wearing a few minutes earlier. The defendant demanded money from Perez, and led her toward the front of the store. Camella ran to a storage room, where she hid during the rest of the incident. She saw nothing more; however, a few minutes later, she heard someone opening and shutting the back door to the store, then throwing what sounded like keys onto the floor. Carter testified that no one used the back door except employees, and also that she had not seen the defendant leave the store before closing. She was certain of her identification of defendant as the person who had robbed Eckerd's.
Dickerson testified that she had worked with the defendant at two different stores: at Eckerd's, and also at a nearby Food Lion grocery. On 7 January 1998, the defendant came into Eckerd's just before closing and asked Dickerson who else was working that evening. He mentioned buying a candy bar, but he never purchased anything. Dickerson noticed that he wore a white windbreaker; she could not see his pants from behind her cash register. She did not see him leave the store before it closed. After their conversation, Dickerson returned to work. A few minutes after the store closed, Dickerson felt a tap on the shoulder. When she turned around, she saw two masked men with guns and began screaming. She recognized the defendant's voice when one of the men yelled "[s]hut up Tonya!" The defendant left her with his accomplice, while he went toward the cash register operated by Perez. Dickerson could not see Perez's part of the store, but in a few minutes the defendant returned to the area near her cash register, holding a clear plastic trash bag filled with cash. Dickerson was certain that the defendant was one of the two who robbed the store: she recognized his voice, and also his white nylon pants matched the jacket he was wearing when he spoke with her shortly before the robbery. After taking money from several cash boxes in the store, the robbers demanded the keys to the employees' back door. They ordered Carter, Dickerson, and Perez into the ladies' room, and then fled from the store. Neither Carter nor Dickerson recognized the second gunman.
When the State sought to introduce a store surveillance videotape at trial, the defendant objected, and a voir dire was conducted on the tape's admissibility. The trial court allowed the admission of the videotape. On appeal to this Court, the defendant assigns error to its admission, arguing that the State failed to establish an adequate foundation for its admissibility.
Evidence presented at trial during the voir dire showed the following: Neither Carter nor Perez testified on voir dire. Dickerson testified on voir dire that Eckerd's was using a store security camera system on 7 January 1998. As far as she knew, it was operating properly that night. However, she had no information about maintenance, testing, or operation of the machine, had never tested it, and did not know the brand or model of the recording device. She had not played any part in making the recording that evening, as that was the responsibility of Perez, who was evening manager. The night that the store was robbed, Dickerson saw Perez handing a videotape to a police officer, but did not know his name. At some point after the robbery, Dickerson viewed a tape in which she was shown speaking with the defendant in Eckerd's. It also appeared to show the defendant robbing Perez at gunpoint. However, from her location in the store, Dickerson had been unable to see Perez during the robbery, so she had not seen the defendant rob Perez or demand money from her. Thus, she could not attest to the accuracy of the videotaped robbery scenes, although she could state that the segments of tape in which she was present appeared to be accurately videotaped.
Dan Merit, Eckerd's general manager, testified that Eckerd's security system had eight cameras that could be programmed to videotape various locations in the store. The system also included a VCR, and a separate machine that controlled which cameras would record at any given time. He described the employees' procedure for operating the system as "basically what you do is you put the tape in, you hit the record button, you see whether the record light comes on." He was not in the store during the robbery, or when the tape was given the police. Merit had no reason to believe that the system was malfunctioning on 8 January 1998. However, he did not keep any records on the maintenance or testing of the system, and he had not checked the tapes made during the days immediately before and after the robbery to assess whether the system was properly functioning. Further, Merit testified that the store system "is a preprogrammed time-lapse VCR recorder and I am not technically minded enough to tell you how the doggone thing works," and that "I truthfully don't know how the thing works." At some point in the six months following the robbery, the VCR had broken and was replaced.
Officer Pitt of the Durham City Police testified that he had retrieved a videotape from the police evidence locker several days after the robbery. He recalled that the tape's label indicated that it came from the store; however, he had not been at Eckerd's the night of the robbery, and was not the officer who had obtained custody of the tape. Officer Marsh, another Durham police officer, testified that he had been at Eckerd's on the night of the robbery. He had summoned an identification technician to retrieve the tape and other physical evidence, but he had not touched the tape himself, or taken custody of it. The tape was shown on voir dire, and Dickerson testified to the accuracy of the portion of the tape that showed her conversation with the defendant before the robbery. Following the voir dire hearing, the trial court denied the defendant's suppression motion, and ruled that the tape was admissible as substantive evidence. The videotape was then shown to the jury over defendant's objection. Dickerson attested to the accuracy of the segments of tape in which she was present. Due to the nature of the Eckerd's photo surveillance system, the events depicted on the tape would appear at an unnaturally fast speed when the tape was shown on a conventional VCR. To avoid this `fast-action' playback, the court directed the prosecutor to play the tape on the VCR's `slow motion' setting. However, after a few minutes on slow motion, the tape would automatically revert to high speed until Officer Pitt could stop the tape and restart it in slow motion. This resulted in intermittent "gaps" of approximately 30 seconds.
After the tape was played, the jury heard testimony by Officers March and Pitt of the Durham police force, concerning their investigation of the case. Marsh was at Eckerd's the night of the robbery to interview witnesses and secure the scene; and Pitt conducted the subsequent investigation. The identification technician who had retrieved the tape the night of the robbery did not testify at trial; nor did Perez, the cashier who was shown being robbed on the videotape.
The general rule is that the admissibility of a videotape is governed by the same rules that apply to still photographs. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970) (). Upon a proper foundation, videotapes, like photographs, are admissible at trial for either illustrative or substantive purposes:
Any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustrating the testimony of a witness.
N.C.G.S. § 8-97 (1999). In the present case, the store surveillance tape was admitted for substantive purposes. This Court has noted that when "a videotape depicts conduct of a defendant in a criminal case, its potential impact requires the trial judge...
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