State v. Thompson

• Court: North Carolina Court of Appeals
• Writing for the Court: MURPHY, Judge.
• Citation: State v. Thompson, 801 S.E.2d 689, 254 N.C. App. 220 (N.C. App. 2017)
• Decision Date: 20 June 2017
• Docket Number: No. COA16-1211,COA16-1211
• Parties: STATE of North Carolina, v. Roshawn THOMPSON, Defendant.

254 N.C.App. 220

801 S.E.2d 689

STATE of North Carolina,

v.Roshawn THOMPSON, Defendant.

No. COA16-1211

Court of Appeals of North Carolina.

Filed: June 20, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Harriet F. Worley, for the State.

The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-appellant.

MURPHY, Judge.

Roshawn Thompson ("Defendant") appeals from his conviction for robbery with a dangerous weapon. On appeal, he contends that the trial court erred by (1) sustaining the State’s objection to Defendant’s use of an unauthenticated screenshot during cross-examination of the victim; (2) permitting the State to introduce a picture of Defendant making "the middle finger" gesture for illustrative purposes; (3) causing cumulative prejudice from evidentiary rulings; (4) finding that the offense involved criminal street gang activity pursuant to N.C.G.S. § 14-50.25 (2015) ; and (5) violating his rights under the Fifth and Sixth Amendments to the United States Constitution by making the criminal street gang activity finding without a finding by the jury. After careful review, we hold that the trial court did not abuse its discretion in sustaining the State’s objection to Defendant’s use of an unauthenticated screenshot during cross-examination of the victim, or in permitting the State to introduce a picture of Defendant making "the middle finger" gesture for illustrative purposes. Since the trial court did not err in its evidentiary rulings, issues (1) and (2) did not create cumulative prejudice. While we decline to reach the constitutionality of N.C.G.S. § 14-50.25, we agree with Defendant that the trial court erred in finding that the offense involved criminal street gang activity and we remand for resentencing on the underlying felony without the criminal street gang activity finding.

Background

On 7 November 2014, Mr. Kendall Rascoe, Jr. ("Rascoe") traveled to Greenville to go to a shopping mall and to see his cousin, LaToya. As he left the mall, he saw his other cousin, Defendant, at a stop sign. Rascoe spoke with Defendant, who agreed to drive him to his brother’s house. After Rascoe got in the car, Defendant received a phone call, after which Defendant told Rascoe he needed to pick up Andre Grey ("Grey"). Rascoe rode with Defendant to pick up Grey. Defendant then drove to a dead end, and Grey pulled a gun on Rascoe, directing him to "give everything up." Defendant instructed Rascoe "to give everything up or he was going to [be shot.]" Defendant reached into Rascoe’s pockets and removed Rascoe’s money, identification, cell phone, and global cash card with Grey’s gun still pressed against Rascoe’s neck. Defendant and Grey got out of the car and opened Rascoe’s passenger door. Rascoe got out and Grey pulled Rascoe’s coat hood over his head and put the gun to his forehead. Defendant punched Rascoe in the face and left with Grey. Rascoe called law enforcement from a nearby home. Rascoe met with Detective Gillen and identified Defendant and Grey through Defendant’s Facebook page. Subsequently, Defendant was charged with robbery with a dangerous weapon.

Defendant was convicted of robbery with a dangerous weapon. During sentencing, the State requested "gang restrictions" and Defendant’s Judgment reflects a finding that the "offense(s) involved criminal street gang activity." Defendant gave oral notice of appeal.

Analysis

I. Unauthenticated Screenshot of a Facebook Message

At trial, during Rascoe’s cross-examination, Defendant’s counsel elicited testimony that Rascoe had spoken on Facebook with Defendant on the offense date, 7 November 2014. Defendant’s counsel then asked Rascoe if he went to Greenville that day to buy marijuana and whether he contacted Defendant to buy marijuana. Rascoe replied no to both questions. Defendant’s counsel then asked to approach the judge outside the jury’s presence. Outside the jury’s presence, Defendant’s counsel described a screenshot of what he alleged was a Facebook message between Defendant and Rascoe the day of the incident in question. Defendant explained that he did not seek to admit the document, he only wanted to use it to "hit [Rascoe’s] incredibility, impeach his testimony and ask him some questions." The State had not received this screenshot pursuant to reciprocal discovery. The State expressed that it seriously doubted the screenshot was admissible, but that the trial court would see if it was if the Defendant put it on as evidence. Until then, Defendant’s counsel could ask Rascoe questions, but was stuck with the answers. Judge Blount instructed that Defendant’s counsel could not hold the screenshot in his hand. Judge Blount made it clear that Defendant could continue to ask questions, which his counsel did.

Defendant argues that the trial court abused its discretion by sustaining the State’s objection to the introduction of an unauthenticated screenshot to impeach Rascoe’s credibility. We disagree.

The scope of cross-examination is within the discretion of the trial judge. State v. Forte , 360 N.C. 427, 442, 629 S.E.2d 137, 147 (2006). A trial judge abuses his discretion when a ruling "is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Whaley , 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) (quoting State v. Peterson , 361 N.C. 587, 602-03, 652 S.E.2d 216, 227 (2007) ). In reviewing whether a trial judge abused his discretion, "we consider not whether we might disagree with the trial court, but whether the trial court’s actions are fairly supported by the record." Id. at 160, 655 S.E.2d at 390.

"[A] witness’s character or propensity for telling the truth is subject to impeachment through cross-examination about prior inconsistent statements[.]" State v. Mitchell , 169 N.C. App. 417, 420, 610 S.E.2d 260, 263 (2005). "Whether a foundation must be laid before a prior inconsistent statement may be shown depends on whether the prior inconsistency relates to a matter pertinent and material to the pending inquiry, or is merely collateral." State v. Mack , 282 N.C. 334, 340, 193 S.E.2d 71, 75 (1972) (emphasis and citations omitted). For material matters, "statement[s] may be shown by other witnesses without the necessity of first laying a foundation therefor by cross-examination." Id . at 334, 193 S.E.2d at 75. When the impeachment about prior inconsistent statements involves only a collateral matter, the witness’ answers are conclusive and extrinsic evidence may not be presented to contradict the witness. Mitchell , 169 N.C. App. at 420, 610 S.E.2d at 263. "The proper test for determining what is material and what is collateral is whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or in the case of prior inconsistent statements, whether evidence of the facts stated would be so admissible." State v. Long , 280 N.C. 633, 640, 187 S.E.2d 47, 51 (1972).

Defendant never sought to admit the screenshot. He only wanted to "hit [Rascoe’s] incredibility, impeach his testimony and ask him some questions." This was permissible, as Rascoe’s character or propensity for telling the truth was subject to impeachment about prior inconsistent statements. See Mitchell , 169 N.C. App. at 420, 610 S.E.2d at 263 (explaining that cross-examination of a witness may include questions about prior inconsistent statements for impeachment purposes). While Defendant could ask about the screenshot, he could not impeach Rascoe’s credibility with extrinsic evidence to prove the contents of the screenshot where no foundation had been laid and the materiality of the posts had not been demonstrated by Defendant. Although this matter may have affected the jury’s view of Rascoe’s credibility, Defendant did not demonstrate its admissibility as to the issue of whether Defendant and Grey robbed the victim at gunpoint. As the record demonstrates this matter could be deemed collateral, and Defendant did not argue otherwise, the trial court did not abuse its discretion in requiring Defendant to lay a foundation before using the unauthenticated screenshot as a prop while cross-examining Rascoe.

Nonetheless, Defendant had the opportunity to ask Rascoe whatever questions he wanted to about the information the screenshot contained. Defendant’s argument that he was unable to conduct voir dire to establish authenticity or purpose of the document is misplaced. Defendant never requested to make an offer of proof or attempted to otherwise introduce the screenshot. The trial court’s actions are fairly supported by the record, and no abuse of discretion took place.

II. Illustrative Picture of Defendant and Grey

Subsequent to Rascoe’s testimony, the State called Detective Brian Gillen who had investigated the incident in question. During the direct examination of the detective, he described how Rascoe showed him a picture of Defendant and Grey on Defendant’s Facebook page for identity purposes. Detective Gillen described using a snipping tool and printing the exact picture that Rascoe had shown him for identity purposes. The State moved to enter the exhibit into evidence for illustrative purposes, and, although Defendant objected as to the picture’s authentication, his objection was overruled, and the picture was admitted.

Defendant argues that the trial court committed plain error by allowing the State to introduce a picture of Defendant and Grey, wherein Defendant’s middle fingers are extended, for illustrative purposes because it was not relevant to the trial and had a prejudicial effect. We disagree.

"[T]he plain error standard of review applies on appeal to unpreserved instructional or evidentiary error." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Plain error exists when: (1) there is an error; (2) that is plain; (3) that affects a substantial right; (4) that must seriously affect the fairness, integrity or public...