State v. Stewart

• Decision Date: 03 December 2013
• Docket Number: No. COA13–283.,COA13–283.
• Citation: 750 S.E.2d 875
• Parties: STATE of North Carolina v. Robert Kenneth STEWART.
• Court: North Carolina Court of Appeals

750 S.E.2d 875

STATE of North Carolina

v.Robert Kenneth STEWART.

No. COA13–283.

Court of Appeals of North Carolina.

Dec. 3, 2013.

Appeal by defendant from judgments entered 3 September 2011 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 28 August 2013.

Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.

Haral E. Carlin, Fayetteville, for defendant appellant.

McCULLOUGH, Judge.

Robert Kenneth Stewart (“defendant”) appeals from his convictions for second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, discharging a weapon into occupied property, assault with a deadly weapon with intent to kill, assault with a firearm on a law enforcement officer, and assault by pointing a gun. For the following reasons, we find no error.

I. Background

On the morning of 29 March 2009, approximately two weeks after defendant's wife left him, defendant went to Pine Lake Health and Rehabilitation in Carthage, North Carolina, armed with a 12–gauge shotgun and several other firearms. Defendant's estranged wife typically worked as a certified nurse's assistant on the 200 hallway of the nursing home; however, she was working in the locked Alzheimer's unit on 29 March 2009.

Shortly before 10:00 A.M., before entering the nursing home, defendant fired the long-barreled weapon at an occupied Ford truck in the parking lot three times, striking the occupant once in the left shoulder. Thereafter, defendant entered the nursing home brandishing the shotgun. Defendant walked through the nursing home firing the shotgun at residents and staff. Seven residents and one nurse were killed.

Officer Justin Garner of the Carthage Police Department was the first officer on the scene. Officer Garner encountered defendant near the intersection of the 300 and 400 hallways while defendant was reloading the shotgun. Officer Garner instructed the defendant to drop the weapon three times, but defendant did not comply. Defendant then turned towards Officer Garner and lowered the shotgun in Officer Garner's direction. At approximately the same time, defendant and Officer Garner each fired one shot at each other. Officer Garner testified that he felt something strike his left leg and quickly stepped into a nearby room for cover. Officer Garner then reentered the hallway and saw defendant lying face down on the floor with the shotgun nearby. Officer Garner approached and secured defendant. Defendant had been shot in his shoulder.

Besides the shotgun, a loaded .38 caliber revolver and a loaded .22 caliber handgun were recovered from holsters on defendant's belt. A .22 caliber rifle was later recovered from the top of a Jeep in the nursing home parking lot. Ammunition for the firearms was recovered from defendant's pockets and a green military style satchel from around defendant's neck.

Defendant was indicted by a Moore County Grand Jury on 13 April 2009 of eight counts of first-degree murder, two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a firearm into occupied property, one count of assault with a firearm on a law enforcement officer, and two counts of assault by pointing a gun. Shortly thereafter, the State filed notice that it would proceed capitally.

On 9 November 2010, the trial court ordered the venue of the proceedings be transferred to Stanly County for the limited purpose of jury selection. Defendant's case then came on for trial on 11 July 2011 in Stanly County Superior Court, the Honorable James M. Webb, Judge presiding. Following jury selection, the case was moved back to Moore County Superior Court where the jury began to hear evidence on 1 August 2011.

After weeks of evidence, closing arguments were heard on 1 September 2011. The case was then given to the jury on 2 September 2011. On 3 September 2011, the jury returned verdicts finding defendant guilty on eight counts of second-degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a weapon into occupied property, one count of assault with a deadly weapon with intent to kill, one count of assault with a firearm on a law enforcement officer, and two counts of assault by pointing a gun. The jury found defendant not guilty on the two counts of attempted first-degree murder. Separate judgments were entered for each of defendant's convictions and defendant was sentenced to fourteen consecutive terms totaling 1,699 months to 2,149 months imprisonment, plus 150 days. Defendant gave notice of appeal in open court.

II. Discussion

Testimony at Trial

In defendant's first four issues on appeal, defendant contends that the trial court plainly erred in allowing certain testimony into evidence. Specifically, defendant challenges the relevancy of testimony from various officers concerning firearms and ammunition found in defendant's residence, ammunition found in defendant's truck, instructions for claymore mines found on defendant's kitchen table, and unfruitful searches of both defendant's and defendant's estranged wife's residences for claymore mines. Defendant did not object to the testimony at trial, but now asserts the admission of the testimony into evidence was plain error. We address defendant's arguments together.

“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make....” N.C.R.App. P. 10(a)(1) (2013). However,

[i]n criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 129 S.Ct. 59, 172 L.Ed.2d 58 (2008).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).

In asserting error, defendant argues the testimony from officers concerning their search for weapons and their recovery of firearms, ammunition, and instructions for claymore mines from defendant's property following the shooting was irrelevant because “[t]he evidence presented at trial was undisputed that all of the victims were killed with the shotgun[ ]” recovered at the scene. Moreover, defendant argues the only purpose in introducing the testimony was to portray him “as an extremely dangerous person who possessed dangerous weapons.” As a result, defendant contends the testimony should have been excluded pursuant to N.C. Gen.Stat. § 8C–1, Rule 402.¹ Defendant cites State v. Patterson, 59 N.C.App. 650, 297 S.E.2d 628 (1982), and State v. Samuel, 203 N.C.App. 610, 693 S.E.2d 662 (2010), in support of his argument.

In Patterson the State introduced evidence of a sawed-off shotgun found in the defendant's car in addition to a pistol identified by the victim as the weapon used in the armed robbery for which the defendant was on trial. 59 N.C.App. at 652, 297 S.E.2d at 630. On appeal of the defendant's conviction, this Court granted the defendant a new trial holding “[t]he shotgun was not connected to the robbery and it was clearly not relevant to any issues in the case[ ]” and “there [was] a reasonable possibility that the erroneous admission of the shotgun evidence contributed to the defendant's conviction, particularly in light of the conflicting evidence regarding the identity of the defendant as the man who robbed [the victim].” Id. at 653–54, 297 S.E.2d at 630. Similarly, in Samuel the State introduced evidence of two guns found in the defendant's home in order to link the defendant to the armed robbery for which he was on trial. 203 N.C.App. at 619–20, 693 S.E.2d at 668–69. On appeal, this Court held “the evidence about the guns was wholly irrelevant and, thus, inadmissible[ ]” because “there was not a scintilla of evidence linking either of the guns to the crimes charged.” Id. at 621, 693 S.E.2d at 669. Additionally, “[g]iven the weakness in the State's evidence that [the d]efendant was the assailant and the substantial evidence tending to show that [the d]efendant was not the assailant,” this Court concluded “that the admission of the evidence of the guns, and the prosecutor's reliance upon the revolver to link [the d]efendant to the crimes charged, had a probable impact on the jury's finding that the defendant was guilty[ ]” and therefore amounted to plain error. Id. at 624, 693 S.E.2d at 671 (citation and quotation marks omitted).

Although we acknowledge the holdings in Patterson and Samuel, we find the present case distinguishable.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011). Pursuant to N.C. Gen.Stat. § 8C–1, Rule 402, “[a]ll relevant evidence is admissible.... Evidence which is not relevant is not admissible.” “Although the trial court's rulings on relevancy technically are not discretionary...