State v. Rhodes
| Decision Date | 03 April 2012 |
| Docket Number | No. COA11–1355.,COA11–1355. |
| Citation | 724 S.E.2d 148 |
| Parties | STATE of North Carolina v. Brian W. RHODES, Jr., Defendant. |
| Court | North Carolina Court of Appeals |
Appeal by State from order entered 29 July 2011 by Judge Richard Stone in Rockingham County Superior Court. Heard in the Court of Appeals 7 March 2012.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-appellee.
The State appeals from the trial court's order setting aside Defendant's convictions and awarding Defendant a new trial based upon newly discovered evidence. After careful review, we affirm.
On 5 March 2010, a Rockingham County jury convicted Brian Wendell Rhodes, Jr. (“Defendant”) on charges of possession with intent to manufacture, sell, or deliver cocaine and possessing drug paraphernalia. The State's evidence at trial, as summarized in this Court's prior unpublished decision, State v. Rhodes, No. COA10–784, ––– N.C.App. ––––, 707 S.E.2d 264, 2011 WL 39053 (N.C.App. January 4, 2011), appeal dismissed, disc. rev. denied,365 N.C. 196, 709 S.E.2d 921 (2011), tended to show the following:
On 6 February 2008, Lieutenant David Frizzell of the Reidsville Police Department (“Lieutenant Frizzell”) went to 1001 Fawn Circle in Reidsville, North Carolina, to execute a search warrant. The subjects of the search warrant were the defendant and his father, Brian Rhodes, Sr. (“Rhodes”). Officers knocked on the door and announced their presence and then used a battering ram to open the locked door. Defendant, who Lieutenant Frizzell described as argumentative, was ordered to the floor and restrained with handcuffs. Officers then began searching the residence for narcotics.
Sergeant Jimmy Hutchens of the Reidsville Police Department (“Sergeant Hutchens”) assisted with the execution of the search warrant. Sergeant Hutchens testified that during the search, while defendant was restrained, he noticed that defendant was having difficulty breathing. Defendant asked Sergeant Hutchens for his medication, and Sergeant Hutchens asked defendant where he kept the medication. Defendant told Sergeant Hutchens that “it was in his bedroom, which was to the left at the top of the stairs.” Sergeant Hutchens relayed the information to Lieutenant Frizzell, who retrieved defendant's medication from on top of a dresser in the bedroom and threw it downstairs to Sergeant Hutchens. Sergeant Hutchens then gave the medication to defendant.
After retrieving defendant's medication, Coumadin, Lieutenant Frizzell searched the room in which he found defendant's medication. Officer Woody Hutchens (“Officer Hutchens”) of the Reidsville Police Department assisted him with the search. Officer Hutchens located “a shoebox in the top of the closet with a white, powdery substance in it, as well as a green vegetable, leafy substance.” Officer Hutchens also found a black bag inside the shoebox that had a large bag of white powder, a strainer, scales, and cash. Officer Hutchens next searched the dresser from where Lieutenant Frizzell had retrieved defendant's medication. Officer Hutchens found defendant's identification on the dresser. Defendant's identification had been issued three months earlier, and it listed defendant's address as 1001 Fawn Circle in Reidsville, North Carolina. Finally, inside the dresser, Officer Hutchens found “a black box with a small bag that appeared to be crack rocks in it.”
Defendant's evidence at trial tended to show that Defendant was not living with his parents and sister at their residence in Reidsville on the evening of 6 February 2008, when the police searched and discovered drugs and drug paraphernalia at that residence. Defendant's mother (“Mrs. Rhodes”) testified that Defendant had lived in Greensboro since 2006, that Defendant was visiting on the night in question, and that Defendant had been in the house for “[p]robably about five or ten minutes” when the police arrived to execute the search warrant. Mrs. Rhodes further testified that the cocaine and marijuana recovered by the police during their search of the residence did not belong to her or Defendant. Defendant's father (“Mr. Rhodes”) also took the stand and testified that the drugs recovered by the police did not belong to Mrs. Rhodes or Defendant. Mr. Rhodes admitted that he had been convicted of various drug-related offenses over the course of the past ten years and, when asked whether the drugs found by the police were his, Mr. Rhodes replied: “I plead the Fifth.”
The jury convicted Defendant on all charges, and the trial court sentenced Defendant to six to eight months' imprisonment. Judge Stone suspended Defendant's sentence and placed Defendant on supervised probation for a period of thirty months. Defendant appealed his convictions to this Court, and we found no error in Defendant's trial. Id. The North Carolina Supreme Court subsequently denied Defendant's petition for discretionary review. See State v. Rhodes, 365 N.C. 196, 196, 709 S.E.2d 921, 921–22 (2011).
On 28 May 2010, Defendant filed a motion for appropriate relief in Rockingham County Superior Court and moved for a new trial based upon newly discovered evidence. In his motion, Defendant alleged that following his convictions on the drug charges, Mr. Rhodes confessed to a probation officer that the drugs and drug paraphernalia that had served as the basis for Defendant's convictions actually belonged to him.
Defendant's motion for appropriate relief came before Judge Stone at a hearing held on 25 July 2011. Defendant testified that when he went to report at the probation office following his convictions on the drug charges, Mr. Rhodes accompanied him and informed one of the probation officers at the office that the drugs in question were his. Virginia Bullins, the probation officer to whom Mr. Rhodes allegedly confessed, also testified at the hearing and corroborated Defendant's testimony.
By order entered 29 July 2011, the trial court concluded that Mr. Rhodes' confession to Officer Bullins “is newly discovered evidence, clearly pointing to the guilt of another.” The trial court set aside Defendant's convictions and awarded Defendant a new trial. The State filed its notice of appeal with this Court on 1 August 2011.
This appeal is properly before us, as the State appeals from the superior court's order granting a new trial based upon newly discovered evidence as a matter of right. SeeN.C. Gen.Stat. § 15A–1445(a)(2) (2011); see also State v. Monroe, 330 N.C. 433, 436, 410 S.E.2d 913, 915 (1991) ().
The State contends the trial court erred when it granted Defendant's motion for appropriate relief and awarded Defendant a new trial based upon newly discovered evidence. For the reasons that follow, we disagree with the State's contentions, and we hold the trial court did not abuse its discretion in awarding Defendant a new trial based on the new evidence.
To prevail on a motion for appropriate relief based on newly discovered evidence, a criminal defendant must establish the following:
(1) [A] witness or witnesses will give newly discovered evidence; (2) the newly discovered evidence is probably true; (3) the evidence is material, competent and relevant; (4) due diligence was used and proper means were employed to procure the testimony at trial; (5) the newly discovered evidence is not merely cumulative or corroborative; (6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and (7) the evidence is of such a nature that a different result will probably be reached at a new trial.
State v. Beaver, 291 N.C. 137, 143, 229 S.E.2d 179, 183 (1976). The defendant has “the burden at the hearing on his motion for appropriate relief ‘of establishing the facts essential to his claim by a preponderance of the evidence.’ ” State v. Hardison, 143 N.C.App. 114, 120, 545 S.E.2d 233, 237 (2001) (citation omitted); N.C. Gen.Stat. § 15A–1420 (c)(5) (2011).
State v. Stukes, 153 N.C.App. 770, 773, 571 S.E.2d 241, 244 (2002) (quoting State v. Wiggins, 334 N.C. 18, 38, 431 S.E.2d 755, 767 (1993)). The question of whether there is sufficient evidence to support a factual finding entered by the trial court is a question of law, and thus fully reviewable on appeal. See State v. Wilkins, 131 N.C.App. 220, 223, 506 S.E.2d 274, 276 (1998). Accordingly, we undertake a de novo review of the questions of law presented by the State's appeal in the instant case, while affording great deference to the trial court's conclusions on these questions as required under our abuse of discretion standard.
Before applying our standard of review in the case sub judice, however, we note that in its order the trial court labeled two determinations as both findings of fact and conclusions of law. The trial court found as fact, inter alia, the following:
The confession to the probation officer is newly discovered evidence[.]
....
The newly discovered evidence is probably true.
These “findings of fact,” which are also labeled by the trial court as “conclusions of law,” reflect two of the seven requirements that must be established by a criminal defendant in moving for appropriate relief based upon newly discovered evidence. See Beaver, 291 N.C. at 143, 229...
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State v. Rhodes
...TEXT STARTS HERE On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 724 S.E.2d 148 (2012), affirming an order entered on 29 July 2011 by Judge Richard W. Stone in Superior Court, Rockingham County. Heard in the Supreme Co......