State v. Riley

• Decision Date: 05 August 2003
• Docket Number: No. COA02-1102.,COA02-1102.
• Citation: 159 NC App. 546,583 S.E.2d 379
• Parties: STATE of North Carolina v. Antonio Durand RILEY, aka Antoine Deandre Riley.
• Court: North Carolina Court of Appeals

583 S.E.2d 379

159 NC App. 546

STATE of North Carolina v. Antonio Durand RILEY, aka Antoine Deandre Riley.

No. COA02-1102.

Court of Appeals of North Carolina.

August 5, 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Daniel F. McLawhorn, for the State.

Parish and Cooke, by James R. Parish, Fayetteville, for defendant-appellant.

McGEE, Judge.

Antonio Durand Riley, a.k.a Antoine Deandre Riley, (defendant) was convicted of first-degree murder, three counts of assault with a deadly weapon with intent to kill, and possession of a firearm by a felon on 1 May 2002. The trial court determined defendant had a prior record level III and sentenced him to: life imprisonment without parole for first-degree murder; three consecutive terms of a minimum of 34 months to a maximum of 50 months active imprisonment for the three convictions of assault with a deadly weapon with intent to kill, to begin after the life sentence; and a minimum term of 16 months to a maximum term of 20 months active imprisonment for possession of a firearm by a felon, to begin at the expiration of the last sentence imposed for conviction of assault with a deadly weapon with intent to kill. Defendant appeals.

The evidence presented by the State at trial tended to show that Anthony Peaks and his wife Kristi Peaks (now Brown) walked to the Caroco Station on North Alston Avenue in Durham, North Carolina to visit Mr. Peaks' relatives and friends at approximately 1:00 a.m. on 24 July 2000. After going into the store, Ms. Brown came out and joined her husband who was talking to his relatives, Joseph Pipkin (Pipkin), Charles Johnson (Johnson), and Tyrone Merrill (Merrill). Ms. Brown was facing Leo's Seafood, the restaurant next door, when she saw a black male, later identified as defendant, run around the corner and stand on the loading dock. Ms. Brown was standing approximately eighteen feet from defendant. Pipkin also testified he saw the shooter and identified him as a black male wearing a white tee shirt, jeans, and red shoes. Ms. Brown and another witness described the shooter as wearing a blue baseball hat and having an Afro hairstyle. Defendant pulled out a nine-millimeter gun from his pants, pointed it in the direction of Ms. Brown and the group, shouted words to the effect of, "Blood time, I got you now," or "I got you now, I got you now, Blood—Blood's time," and began firing the gun. Defendant fired approximately ten shots from the gun.

Ms. Brown ran toward the store and was shot in the ankle. Mr. Peaks also began to run and a bullet passed through his left arm into his chest, piercing both lungs and his heart. Mr. Peaks collapsed near the kerosene tanks and died from the gunshot wound. Merrill and Johnson were also shot, each being grazed by a bullet.

A store clerk at the service station called the Durham Police Department. An officer found ten shell casings on the loading dock at Leo's Seafood and on the ground nearby. The shell casings were all fired from a nine-millimeter Winchester. An officer also recovered a ball cap from the area of the kerosene tanks at the Caroco Station.

Officer Anthony Smith (Officer Smith), former gang investigator for the City of Durham, testified that the "8 Trey Crips" is active in Durham and is associated with the "Folk Nation," a national gang also known as the "Crips." The "Bloods" is another gang with members in Durham, associated with the "People Nation." Officer Smith said that "Bloods" typically wear the color red and "Crips" wear the color blue, although at times, rival gang members will wear the other gang's colors to get closer in order to commit violent acts.

Joseph Pipkin (Pipkin) testified that the "Crips" and the "Bloods" were "at war," but that he did not know of many "Bloods" in Durham. Pipkin told Durham Police that he was a friend of "Crips" and that defendant was a "Blood" gang member.

At the time of the shooting, Mr. Peaks was talking with Johnson and Merrill, both associated with the "8 Trey gangsters." Merrill testified that neither Mr. Peaks nor his wife were associated with any gang.

Officer Florencio Rivera (Officer Rivera), a gang investigator for the City of Durham, testified he arrested defendant in August 2000 for outstanding warrants "[f]or this case, homicide, and several armed robberies." He testified that defendant had burn scars on his chest and right arm in the shape of a dog's paw print, which were used by the "United Blood Nation" to identify its members. Officer Rivera took photographs of defendant showing these burn scars. Officer A.H. Holland, Jr. (Officer Holland) testified that defendant went by the nickname "Dirty."

At trial, defendant and the State stipulated that defendant had been convicted of a prior felony before 24 July 2000 and that the State did not need to produce other evidence to prove the element of the prior felony for possession of a firearm by a felon.

Defendant's sister, Carrie Riley (Riley), testified that she and her daughter lived with defendant. She said that on the evening of 23 July 2000 she cooked dinner for the three of them and defendant fell asleep on the couch. Riley testified that when she was awakened by a telephone call around 2:30 or 3:00 a.m., her brother was asleep on the couch. The call was from a friend telling her that there had been a shooting on Alston Avenue near the Caroco Station.

Defendant has failed to present an argument in support of assignments of error 3, 5, 6, 7, and 10, and these assignments are therefore deemed abandoned, pursuant to N.C.R.App. P. 28(b)(6).

I.

Defendant first argues two combined assignments of error. He contends that the trial court erred in allowing Officer Rivera to testify that he arrested defendant not only for the murder defendant was on trial for, but also for several armed robberies, for which defendant was not on trial. He argues the trial court erred in failing to strike such testimony ex mero motu. Defendant also argues that the trial court erred by allowing testimony by Officer Holland that defendant's nickname was "Dirty," because the testimony was not relevant and any probative value was outweighed by its prejudicial effect.

Defendant requests we review this issue for plain error because, as he points out in his brief, defense counsel did not object at trial to the admission of the challenged evidence. We note that normally, "if a defendant fails to assert plain error in an assignment of error, an appellate court will not conduct plain error review." State v. Bartley, — N.C.App. —, —, 577 S.E.2d 319, 323 (2003) (citing State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995); State v. Lovett, 119 N.C.App. 689, 693-94, 460 S.E.2d 177, 180-81 (1995)). However, since defendant has specifically and distinctly stated in his brief that the error committed is plain error and has requested a plain error review, we will review this issue for plain error. See N.C.R.App. P. 10(c)(4).

First, defendant may not, as he attempts to do in his brief, combine assignments of error concerning unrelated evidence in order to show plain error. In State v. Holbrook, 137 N.C.App. 766, 529 S.E.2d 510 (2000), our Court stated:

As we have noted, the essence of the plain error rule is that it be obvious and apparent that the error affected defendant's substantial rights. If we were to adopt defendant's proposition that the plain error rule may apply cumulatively to several unrelated portions of evidence where the trial judge was not asked to, and did not, make any affirmative ruling, we would be departing from the fundamental requirements of the plain error rule of obviousness and apparentness of error. A trial judge would be required to review all evidence cumulatively for errors of admissibility even though defendant had made no objections to any evidence during trial. We agree with the State that under such a holding, a trial judge would be required to be omniscient. A defendant could fail to make any objection to the admission of evidence at trial, but could then require this Court to cumulatively review the evidence for possible errors amounting to plain error. Such rule would be in contradiction of our Rules of Civil Procedure and Rules of Appellate Procedure, and the plain error doctrine as defined by the North Carolina Supreme Court. See State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 [(1987),

cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988) ]; State v. Odom, 307 N.C. 655, 300 S.E.2d 375 [(1983) ]; State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 [ (1997),

cert. denied, 522 U.S. 1092, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998) ]; State v. White, 331 N.C. 604, 419 S.E.2d 557 [ (1992) ].

Holbrook, 137 N.C.App. at 769, 529 S.E.2d at 511-12.

We will therefore review each of these assignments of error individually for plain error. In order to show plain error, a defendant must show "`that absent the error the jury probably would have reached a different verdict.'" State v. Hartman, 90 N.C.App. 379, 383, 368 S.E.2d 396, 399 (1988) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).

"[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has `"resulted in a miscarriage of justice or in the denial to appellant of a fair trial"` or where the error is such as to `seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said `the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"

Odom, 307 N.C. at 660,300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.),...