State v. Staton, No. COA06-1009 (N.C. App. 7/17/2007)
| Decision Date | 17 July 2007 |
| Docket Number | No. COA06-1009,COA06-1009 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. WARD LEE STATON, Defendant. |
Defendant Ward Lee Staton appeals from his conviction for robbery with a dangerous weapon. On appeal, defendant primarily argues that the trial court failed to comply with N.C. Gen. Stat. § 15A-1233 (2005) in responding to a request by the jury to see certain exhibits, including a videotape. Defendant, however, at trial, expressly agreed to the trial court's sending the exhibits into the jury room and, indeed, facilitated that process by assisting the bailiff with the VCR. Under these circumstances, defendant is not entitled to a new trial for any violation of the statute.
The State's evidence at trial tended to show the following facts. In 2002, Robin McNeill was a branch manager at the Advance America payday loan service located on Peter's Creek Parkway in Winston-Salem, North Carolina. At approximately 3:00 p.m. on 3 July 2002, Ms. McNeill was alone in the store. When she went to the store's back room to get a light bulb, she was alerted to the presence of a customer by the front door's electronic chimes. Ms. McNeill returned to the customer service area where she saw a man, whom she identified at trial as defendant, carrying a blue folder. The man told her that he wished to open an account.
As Ms. McNeill began the application process, defendant pulled out a gun and announced, "this is a robbery." Ms. McNeill gave the man $537.00, including all the money in the cash drawer at her teller station as well as the money from the store's safe. Before leaving, the robber ordered Ms. McNeill to stay behind the counter and count to 100. Immediately after Ms. McNeill heard the door's electronic chimes, indicating the robber had left, she called another Advance America location nearby, locked the door, and triggered the alarm.
Police arrived a short time later. Ms. McNeill's initial description of the robber noted that he had "a bump" or growth on his left earlobe. She also told police that the robber had short hair, was in need of a shave, and was wearing a "real colorful" blue shirt. On the same day, officers obtained a videotape from the company's surveillance camera showing the entire incident. Detective Stanley Nieves of the Winston-Salem Police Department had Ms. McNeill review a series of photographs generated by the police department's "mug shot computer system," which selected photographs based upon Ms. McNeill's description. Defendant was not, however, included in that photographic array because his photograph was not contained in that system. Ms. McNeill concluded that the robber was not among the computer's "mug shots."
Detective Nieves later learned from another detective that defendant might be a possible suspect in the Advance America robbery. Detective Nieves obtained defendant's photograph from the North Carolina Department of Correction and, on 7 August 2002, showed Ms. McNeill another photographic lineup containing pictures of six different individuals, including defendant. Ms. McNeill immediately identified defendant's photograph as being that of the robber. Ms. McNeill stated at trial that, based upon defendant's general appearance and the "growth or cyst" on his left ear, she had "[n]o doubt at all" that defendant had committed the robbery.
On 2 December 2002, defendant was indicted for robbery with a dangerous weapon and second degree kidnapping. A superceding indictment including the same charges was filed on 19 May 2003. At trial, during the 28 May 2003 session of Forsyth County Superior Court, the trial court dismissed the second degree kidnapping charge. The jury subsequently found defendant guilty of robbery with a dangerous weapon. The trial court sentenced defendantwithin the presumptive range to a term of 103 to 133 months imprisonment. Defendant appealed to this Court.
Defendant has also filed a petition for writ of certiorari because he may have lost the right to appeal "by failure to take timely action." Defendant's petition indicates that, to the extent his right to appeal was lost, it was not on account of defendant's own errors, but, rather, was due to errors of the court reporter and defendant's appellate counsel. The State specifically notes in its brief that it does not oppose defendant's petition. We therefore elect to exercise our discretion under N.C.R. App. P. 21(a)(1) and grant defendant's petition.
Defendant first argues that the trial court erred by admitting, over objection, the testimony of one of the responding officers regarding Ms. McNeill's description of the robber on the day of the robbery. Defendant contends that the testimony was non-corroborative hearsay.1 It is well-established in North Carolina that, regardless whether the statement might otherwise be hearsay, "[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness." State v. Jones, 329N.C. 254, 257, 404 S.E.2d 835, 836 (1991). On the other hand, "[p]rior statements by a witness which contradict trial testimony . . . may not be introduced under the auspices of corroborative evidence." State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497, disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).
"`In order to be admissible as corroborative evidence, a witness' prior consistent statements merely must tend to add weight or credibility to the witness' testimony.'" State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356 (quoting State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). Such corroborative evidence may, therefore, contain new or additional facts so long as it tends to add strength and credibility to the testimony it corroborates. Id. If the previous statements are generally consistent with the trial testimony, slight variations affect only credibility and not admissibility. Id.
Here, defendant disputes the following testimony by Officer T.J. Trentini of the Winston-Salem Police Department, admitted over defendant's objection:
Q. And what was the description [of the robber] that [Ms. McNeill] gave . . . [?]
. . . .
A. She told me that he was a black male in his 40's about 6 foot, 185, medium build. She told me that he was wearing a bright blue shirt, possibly a short sleeve, button down shirt. . . . [S]he said that he had a knot or some type of cyst on the lower left ear lobe that stood out and she kept pointing to her ear lobe and she said that it appeared to be some type of extra skin growth, or a cyst or a knot.
Ms. McNeill subsequently testified regarding the description of the robber she provided to police as follows:
Q. What did you tell [police] when you gave the description of the robber?
A. Okay. That he had short hair. That he needed to shave. And that he had a bump on his left earlobe, a big bump. And he had on a real colorful blue shirt, it was long tailed and it had people on it.
. . . .
Q. Do you recall if you gave them an estimation as to his height and weight?
. . . .
A. I probably did give them an estimation.
Q. Do you remember today what you told them that day? . . . .
A. No.
The witnesses were sequestered, so Ms. McNeill had not heard Officer Trentini's testimony regarding her prior description.
According to defendant, Officer Trentini's testimony that Ms. McNeill said the robber was a "black male in his 40's about 6 foot, 185, medium build" was contradictory to her in-court testimony, and, therefore, was inadmissible as non-corroborative hearsay. We disagree. Ms. McNeill testified that she thought she had told the police the robber's height and weight, but could not recall specifically what she had said. Officer Trentini supplied the details that she had forgotten by the time of trial. Thus, Ms. McNeill's prior statement merely contained additional facts notcontained in her in-court testimony. Compare State v. Baity, 340 N.C. 65, 69-70, 455 S.E.2d 621, 624 (1995) () with State v. Burton, 322 N.C. 447, 451, 368 S.E.2d 630, 632 (1988) ().
Moreover, Ms. McNeill's prior statement added weight and credibility to her in-court testimony since the prior description was substantially similar to the description given in court. See Walters, 357 N.C. at 89, 588 S.E.2d at 356. The key aspect of Ms. McNeill's descriptions was the growth on defendant's ear, although the prior statement also included the corroborative detail of defendant's shirt. The details regarding his height and weight simply made Ms. McNeill's identification of defendant more credible. The trial court did not, therefore, err by admitting Officer Trentini's testimony. See also State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980) ().
Defendant next argues that the trial court committed plain error by not striking and instructing the jury to disregard the following exchange...
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