State v. Robinson, No. COA08-865 (N.C. App. 4/21/2009)
| Decision Date | 21 April 2009 |
| Docket Number | No. COA08-865,COA08-865 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. THOMAS NEAL ROBINSON |
Page 1
v.
THOMAS NEAL ROBINSON
Carteret County Nos. 07 CRS 5491; 54447
Appeal by defendant from judgment entered 8 April 2008 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 11 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.
John T. Hall, for defendant-appellant.
CALABRIA, Judge.
Thomas Neal Robinson ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of felonious larceny and felonious possession of stolen property worth more than $1,000.00. Defendant also appeals his guilty plea admitting to attaining the status of an habitual felon. We find no error occurred at trial or during sentencing, but remand for correction of a clerical error.
Defendant was hired by James Gillikin ("Gillikin") to work on his commercial fishing boats in 2007. Defendant worked for Gillikin for approximately two weeks. Shortly after his employment with Gillikin ended on 22 August 2007, Gillikin found defendant lying in the back of his shop on some garbage bags. Defendant told him he had nowhere to stay that night. Gillikin told him, "this is no place for this. I'm not going to have you around here." Defendant said he needed to get to Chincoteague, Virginia, and that he could make some big money there. Gillikin walked away and defendant left the shop.
Gillikin owned a 1994 GMC truck ("the truck"), which he allowed his employees to use for errands. That evening, the keys to the truck were secured in Gillikin's office. The truck was parked outside of Gillikin's office. The next morning, the back door to Gillikin's office was "jimmied open" and both the keys and the truck were missing. Gillikin reported the theft to law enforcement. The Carteret County Sheriff's Department entered the truck's tag numbers into a national crime database. On 29 August 2007, Deputy Ray Miller of the Harris County Mississippi Sheriff's Department ("Deputy Miller"), found the truck at a gas station in Gulfport, Mississippi. Defendant was sitting in the driver's seat of the truck and a person he said he picked up hitchhiking was sitting in the passenger's seat.
Defendant was charged with felonious larceny, possession of stolen property and attaining the status of an habitual felon. The jury found defendant guilty of felonious larceny and possession of stolen property worth more than $1,000.00. Defendant pled guilty to attaining the status of an habitual felon. The trial court determined defendant's prior record level was a level five with 16 points. Defendant was sentenced as an habitual felon to a minimum term of 121 months and a maximum term of 155 months in the North Carolina Department of Correction for felonious larceny. After sentencing defendant for possession of stolen property, the trial court arrested the judgment. Defendant appeals.
Defendant argues the trial court erred in excluding an out-of-court statement made by defendant to Deputy Miller. We disagree.
When Deputy Miller arrested the defendant, he noted in his report that defendant "advised [he] borrowed the truck from the owner." During cross-examination of Deputy Miller, defendant moved to admit the report into evidence and the trial court sustained the State's objection on the basis that the statement was a self-serving declaration, stating "[i]t's not time for the defendant to offer evidence." Defendant later made an offer of proof regarding the report but decided not to testify or present any other evidence.
"The standard of review for this Court assessing evidentiary rulings is abuse of discretion." State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004) (citingState v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990)).
"The phrase `self-serving' does not describe an independent grounds for exclusion but rather is merely a convenient term to characterize a particular form of otherwise inadmissible hearsay." State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987). Self-serving statements by the defendant are not admissible unless they corroborate defendant's testimony or where the State opens the door to such testimony by introducing statements made by the defendant. See State v. Davis, 246 N.C. 73, 75, 97 S.E.2d 444,445-46 (1957) (holding that excluding statements made by defendant on November 8th on the ground that they were self-serving was not error where State had not introduced any part of the defendant's conversation on that day); State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987) (holding no error in excluding statements made by defendant where defendant had not yet testified, statements offered for substantive not corroborative purpose).
This Court has held that by simply introducing into evidence a statement made by a defendant, the State does not open the door for the introduction of another statement made later that day by the defendant. A party is only entitled to introduce evidence that would have been inadmissible if offered initially where the other party introduces evidence that raises specific issues or raises evidence as to a particular fact that is covered by the subsequent statement. State v. Vick, 341 N.C. 569, 579, 461 S.E.2d 655, 661 (1995) (internal citations omitted). In State v. Price, 301 N.C. 437, 450, 272 S.E.2d 103, 112 (1980), the Supreme Court held a self-serving "statement to the officers at the time of defendant's arrest that the shooting had been in self-defense was properly excluded" because of its hearsay character. However, even if self-serving, an out-of-court statement that fits one of the hearsay exceptions is admissible. State v. Harper, 51 N.C. App. 493, 497, 277 S.E.2d 72, 75 (1981).
In the instant case, after Deputy Miller testified that defendant told him the passenger was a hitchhiker he picked up, defendant sought to admit his statement to Deputy Miller that he borrowed the truck from the owner. The State's witness did not open the door to the defendant's statement about borrowing the truck because the introduction of defendant's statement regarding the hitchhiker did not raise evidence as to that particular fact. Vick, 341 N.C. at 579, 461 S.E.2d at 661. The trial court did not abuse its discretion in excluding the statement because the State did not open the door to the statement and it was not offered to corroborate the defendant's testimony since the defendant did not testify.
Defendant argues the statement was admissible under the state of mind exception to the hearsay rule. Because defendant raises this argument for the first time on appeal, we do not address this contention. Our review is limited to those assignments of error which are properly preserved. N.C.R. App. P. 10(b)(1) (2009). Defendant also argues in his brief that exclusion of the statement was a violation of his right to confront the witnesses before him and the right to due process. Defendant did not make this argument at trial, nor did he specifically allege plain error, therefore,...
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