State v. Tate

• Citation: 653 S.E.2d 892
• Decision Date: 18 December 2007
• Docket Number: No. COA07-314.,COA07-314.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Javonnie James TATE.

653 S.E.2d 892

STATE of North Carolina v. Javonnie James TATE.

No. COA07-314.

Court of Appeals of North Carolina.

December 18, 2007.

Appeal by defendant from judgments entered 28 July 2007 by Judge A. Baddour in Durham County Superior Court. Heard in the Court of Appeals 18 September 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Donald W. Laton, for the State.

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

JACKSON, Judge.

Javonnie James Tate ("defendant") appeals from a judgment entered upon convictions for robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. For the reasons stated herein, we hold no error.

The evidence tended to show that at approximately 4:00 a.m. on 8 September 2005, Steven Lamont Thomas ("Thomas") and Adam Bagby ("Bagby") were standing outside a liquor house in Thomas' neighborhood. Defendant, whom Thomas and Bagby recognized and knew by the nickname "Fats," approached Thomas and demanded that he relinquish the necklace that he was wearing. Defendant brandished a gun, and Thomas removed the necklace. After taking the necklace from Thomas, defendant shot Thomas. Thomas and Bagby then "took off and started running up the street," and defendant continued shooting at them. Bagby and Thomas hid between houses, and Bagby observed that Thomas "just had a whole bunch of blood coming out of him."

When Durham police officers arrived, Bagby directed them to Thomas' location. Officer N.J. Hamilton ("Officer Hamilton") found Thomas "sitting on the side of [a] house bleeding from his abdomen." Both Bagby and Thomas informed Officer Hamilton that Fats had shot Thomas. When Officer A.C. Rogers ("Officer Rogers") arrived, he found Thomas lying on the ground, bleeding from his stomach, in a significant amount of pain, and "in a chaotic state." Officer Rogers then spoke with several witnesses, including Monica Pettiford, who explained that "some individuals had pulled up in a black sedan, stepped out of the car, interacted with the — the victim. And the shooter, in particular, had stepped out of the vehicle, interacted with the victim, shot him. Then got back into the vehicle and the vehicle fled."

Investigator Michele Soucie ("Investigator Soucie") arrived at the scene of the shooting and spoke first with Officer Hamilton, who informed her that Thomas "had stated that Fats was the one who had shot him." During her investigation, Investigator Soucie saw to the recovery of Thomas' bloody clothes, other items of Thomas' personal property, four shell casings, and a spent round, which was located several feet from Thomas' hat and which appeared to have blood on it. Consistent with the physical evidence, Thomas testified at trial that he was shot four times: "Got two hole coming out my back. Shot four times. And another one right here that came out my leg and took one of my [testicles]."

After collecting physical evidence from the scene, Investigator Soucie spoke with Lieutenant H.D. Alexander, Jr. ("Lieutenant Alexander"), requesting identification of "Fats." Lieutenant Alexander consulted Corporal Pearsall of the Durham City Police Department gang unit. Corporal Pearsall, who did not testify at trial, advised Lieutenant Alexander that defendant had the nickname of "Fats." After locating photographs of defendant, Investigator Vernon Harris ("Investigator Harris") prepared a photographic lineup at Investigator Soucie's request. At the hospital, Investigator Harris showed the lineup to Thomas, and Thomas identified defendant's photograph as that of the assailant. On 22 September 2005, Investigator Harris showed Bagby the photographic lineup at the police station, and Bagby also identified defendant's photograph as that of the assailant.

On 12 December 2005, defendant was indicted for robbery with a dangerous weapon assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. On 28 July 2006, a jury found defendant guilty of all charges. The trial court consolidated the assault and robbery charges and sentenced defendant to 100 to 129 months imprisonment, to be followed by a sentence of twelve to fifteen months for the possession of a firearm conviction. Defendant gave timely notice of appeal.

Defendant first contends that the trial court erred in ordering him to pay restitution in the amount of $40,588.60 on the grounds that the court failed to consider defendant's resources as required by North Carolina General Statutes, section 15A-1340.36(a). We disagree.

Pursuant to section 15A-1340.36(a),

[i]n determining the amount of restitution to be made, the court shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution, but the court is not required to make findings of fact or conclusions of law on these matters. The amount of restitution must be limited to that supported by the record, and the court may order partial restitution when it appears that the damage or loss caused by the offense is greater than that which the defendant is able to pay....

N.C. Gen.Stat. § 15A-1340.36(a) (2005). Although section 15A-1340.36(a) does not delineate the burdens of proof with respect to an award of restitution, we agree with the analogous federal provision:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant's dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.

18 U.S.C. § 3664(e); accord State v. Riley, 167 N.C.App. 346, 349, 605 S.E.2d 212, 215 (2004) ("Because [the defendant] failed to present evidence showing that she would not be able to make the required restitution payments, we find no error.").

In reviewing restitution awards, "the amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing. However, when ... there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal." State v. Cousart, ___ N.C.App. ___, ___, 641 S.E.2d 372, 375 (2007) (internal quotation marks, citations, and alterations omitted). Additionally, we find a decision by the United States Court of Appeals for the Second Circuit instructive:

The decision to order restitution is "a delicate balancing of diverse, sometimes incomparable factors, some of which not only lack certainty but may indeed be based on mere probabilities, expectations, guesswork, even a `hunch.'" Because of the nuanced nature of the decision to impose restitution it makes little sense for an appellate court, significantly more removed from the case than the [trial] court, to scrutinize the decision closely. A [trial] court must be given latitude in the formation of restitution orders in order to protect the victim's interests.

United States v. Porter, 90 F.3d 64, 68 (2d Cir.1996) (emphasis added) (quoting United States v. Atkinson, 788 F.2d 900, 902 (2d Cir.1986)); see also United States v. Fuentes, 107 F.3d 1515, 1534 (11th Cir.1997) ("This court takes the speculative nature of a sentencing court's prediction of an indigent defendant's future earnings into account by reviewing such determinations with a deferential standard." (citing Porter, 90 F.3d at 68)).¹

In the case sub judice, defendant filed an Affidavit of Indigency, which provided that although he was unemployed, he also had no expenses or liabilities. The trial court also heard from defendant's counsel that

[defendant] is 20 years old. He has lived in Durham at this point for approximately nine, ten years. He does have one child. Prior to him being arrested, [defendant] was working. He was working part-time at Duke University, if I'm not mistaken. He does have support in the community. His mother is present. His child's mother is present, as well.

....

I would also request the Court to consider recommending work release, considering the large amount of restitution that's going to be required for this particular case....

The trial court asked defendant twice if he wished to add anything, and defendant shook his head both times. The trial court then sentenced defendant, specifically noting that "a condition of work release is that [defendant] pay restitution." Although the trial court did not make specific findings of fact concerning defendant's ability to pay restitution, such findings are not required, see N.C. Gen.Stat. § 15A-1340.36(a) (2005), and it is clear from the record that the trial court considered defendant's financial ability to pay restitution.

The cases relied upon by defendant are readily distinguishable from the instant case. First, defendant cites to State v. Smith, in which this Court noted that "[t]he trial court did not consider any evidence of defendant's financial condition. The trial judge stated that he did not know whether defendant had a job." Smith, 90 N.C.App. 161, 168, 368 S.E.2d 33, 38 (1988) (emphasis added), aff'd, 323 N.C. 703, 374 S.E.2d 866 (1989) (per curiam). Conversely, the trial court in the case sub judice was aware of defendant's age, employment situation, and living arrangements. See Riley, 167 N.C.App. at 349, 605 S.E.2d at 215 (distinguishing Smith and noting that in Smith, "the judge did not even know whether ...