State v. Melvin

• Decision Date: 21 June 2011
• Docket Number: NO. COA0 9-62-2,COA0 9-62-2
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA v. JIHAD RASHID MELVIN, Defendant.

STATE OF NORTH CAROLINA v. JIHAD RASHID MELVIN, Defendant.

NO. COA0 9-62-2

NORTH CAROLINA COURT OF APPEALS

Dated: June 21, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Onslow County No. 07 CRS 52897

Appeal by defendant from judgment entered 4 August 2008 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 10 June 2009. Reversed by the Supreme Court on 20 December 2010 and remanded to this Court for consideration of defendant's remaining assignments of error.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Norma S. Harrell, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.

HUNTER, Robert C., Judge.

Background

On 1 September 2009, this Court held in State v. Melvin, 199 N.C. App. 469, 476, 682 S.E.2d 238, 243 (2009) (Melvin I), that the trial court committed plain error by failing toinstruct the jury that it could find Jihad Rashid Melvin ("defendant") guilty of either first degree murder or accessory after the fact to first degree murder, but could not find defendant guilty of both mutually exclusive offenses. The Supreme Court in State v. Melvin, 364 N.C. 589, 594, 707 S.E.2d 629, 633 (2010) (Melvin II), held that while the trial court erred in its instructions to the jury, the error did not amount to plain error due to the overwhelming evidence that defendant aided and abetted first degree murder. The Court reasoned:

The jury, given the opportunity to consider separately the offenses of murder and accessory after the fact, convicted defendant of both, indicating its intent to hold defendant accountable to the fullest extent of the law. Accordingly, we are satisfied that the jury would have convicted defendant of the more serious offense had it been required to choose between the two charges. In light of the overwhelming evidence of first-degree murder, we cannot conclude that a different result would have been probable if the trial court had given a proper instruction.

Id. at __, 707 S.E.2d at 633. The Supreme Court then remanded this case for consideration of defendant's remaining assignments of error.

A detailed factual background is set out in Melvin I and Melvin II; therefore, we see no need to repeat the facts in thisopinion. We will discuss any pertinent facts as they relate to defendant's remaining assignments of error.

Analysis

From the outset, we note that most of defendant's arguments require a plain error standard of review and it is well established that "the plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error." State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463, appeal dismissed and disc, review denied, 363 N.C. 376, 679 S.E.2d 139 (2009). Consequently, defendant must show that any one error amounted to plain error, which is a heavy burden in this case given the Supreme Court's determination that the evidence of defendant's guilt was so overwhelming that the instructional error did not amount to plain error.

I.

Defendant argues that the trial court erred in admitting evidence, through the testimony and letters of co-defendant Tony Cole, that Cole pled guilty and that defendant refused to accept a plea offer. Defendant further argues that the prosecutor improperly alluded to defendant's refusal to plead during his closing argument.

First, as to Cole's admission that he accepted a plea offer,

evidence of a co-defendant's guilty plea is not competent as evidence of the guilt of the defendant standing trial. Thus, if such evidence is introduced for that illegitimate purpose — solely as evidence of the guilt of the defendant on trial — it is not admissible. Our case law indicates, however, that if evidence of a testifying co-defendant's guilty plea is introduced for a legitimate purpose, it is proper to admit it.

State v. Rothwell, 308 N.C. 782, 786, 303 S.E.2d 798, 801 (1983). Defendant specifically contends that Cole's admission was entered "for the illegitimate purpose of proving defendant's guilt and bolstering Cole's credibility."

The prosecution first asked Cole on direct examination if he had previously entered a guilty plea and Cole responded that he pled guilty to being an accessory after the fact. Defendant did not object. The State claims that the prosecutor asked Cole about his plea as a "pre-emptive strike" because it was likely that defense counsel would ask Cole about his plea to establish that Cole had an incentive for testifying against defendant. On cross-examination, defense counsel did, in fact, spend a significant amount of time asking Cole about his plea. Defense counsel even offered into evidence a "blowup" of the third page of Cole's plea agreement.

While defendant has arguably waived review of this issue entirely, we will, however, review the admission of Cole's original statement on direct examination that he pled guilty for plain error.

Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.

State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). Assuming, arguendo, that Cole's admission on direct examination that he had entered a guilty plea was admitted for an improper purpose, we hold that such admission does not rise to the level of plain error given the overwhelming evidence of defendant's guilt and the fact that defense counsel questioned Cole extensively about his plea. Moreover, our Supreme Court has held that no prejudicial error occurs when a co-defendant admits that he pled guilty and simultaneously "disclose[s] his own participation in the crimes for which defendant [is] being tried." Rothwell, 308 N.C. at 787-88, 303 S.E.2d at 802. Such is the case here.

Second, as to statements by Cole alluding to a plea bargain offered to defendant, it is well established that, "[t]he factthat the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings." N.C. Gen. Stat. § 15A-1025 (2009); see also N.C. Gen. Stat. § 8C-1, Rule 410 (2009) ("Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do[es] not result in a plea of guilty" is inadmissible at trial.). N.C. Gen. Stat. § 15A-1025 "was designed to facilitate plea discussions and agreements by protecting both defendants and prosecuting officials from being penalized for engaging in practices which are consistent with the objectives of the criminal justice system." State v. Wooten, 86 N.C. App. 481, 482, 358 S.E.2d 78, 78 (1987) (internal citation and quotation marks omitted). This Court has established a two-part test for determining whether the introduction of evidence regarding plea discussions is reversible error: (1) whether the communications actually constituted a "plea discussion," and (2) whether the challenged testimony resulted in prejudice to the defendant. State v. Walker, 167 N.C. App. 110, 120, 605 S.E.2d 647, 655 (2004), vacated on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006).

Here, Cole testified on behalf of the State and claimed that both he and defendant were present when the victim, Almario Millander, was fatally shot by Robert Ridges ("Robert") on 21 March 2007. As stated supra, on direct examination, the State asked Cole if he had entered a plea of guilty in this case and Cole responded that he pled guilty to being an accessory after the fact, but had not been sentenced. No inquiry was made regarding any plea offers or discussions defendant may have entered into with prosecutors.

On cross-examination, defense counsel questioned Cole regarding his plea offer, focusing on the fact that Cole would receive a mitigated sentence for entering a plea and agreeing to testify against defendant at trial. Defense counsel then asked Cole if he had written to defendant while he was in prison and Cole responded that he had. Defense counsel then read a portion of one of the letters Cole had written, stating: "I can get on the stand and play dumb and they can charge me up to 261 months?" Defense counsel read a portion from a second letter as follows: "Man, get straight to the point of it. Listen, I done told you before, man, I didn't write no statement on you. I ain't put you in nothing. They already are trying to put you in shit from the beginning. You feel me?"

On re-direct, the State sought to enter the two letters into evidence pursuant to Rule 106 of the North Carolina Rules of Evidence, which provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." N.C. Gen. Stat. § 8C-1, Rule 106 (2009). Defense counsel did not object. The letters were entered as defense exhibits 10 and 11 and State's exhibits 18 and 19 respectively. Cole was asked by the prosecutor to read the two letters to the jury in their entirety. In the first letter, Cole refers to the fact that he pled guilty and states: "If you feel like you're going to be able to beat that shit at trial, then try it. But I hope and pray you make the right decision on this." In the second letter, Cole asks defendant: "Why won't you get a plea and enter both charges at once? I heard they...