State v. Thorne

• Decision Date: 20 September 2005
• Docket Number: No. COA04-546.,COA04-546.
• Parties: STATE of North Carolina v. Wesley Shane THORNE.
• Court: North Carolina Supreme Court

618 S.E.2d 790

STATE of North Carolina v. Wesley Shane THORNE.

No. COA04-546.

Court of Appeals of North Carolina.

September 20, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from judgment entered 21 November 2003 by Judge Benjamin G. Alford in Onslow County Superior Court. Heard in the Court of Appeals 16 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge for the State.

Paul F. Herzog, Fayetteville, for defendant-appellant.

CALABRIA, Judge.

Wesley Shane Thorne ("defendant") appeals a judgment entered on a jury verdict of guilty of robbery with a firearm. We find no error.

The State presented evidence that sometime around 4:00 p.m. on 3 November 1998, defendant and his girlfriend, Maxine Little ("Maxine"), drove defendant's car to the end of a dead end street near the woods behind the Marine Federal Credit Union (the "Credit Union") in Jacksonville, North Carolina to smoke marijuana. Defendant exited the car, opened the trunk, and left for approximately seven minutes. During this time, defendant entered the back entrance of the Credit Union wearing a black top, black pants, a black ski mask, and sunglasses. Defendant was armed with a sawed-off shotgun and was carrying a black pillowcase. He ordered the tellers to fill the pillowcase with money and threatened to harm the tellers and customers if anyone moved or did anything wrong. Defendant took the money and exited the bank through the same door he entered.

Defendant returned to the car, and Maxine observed he was out of breath and was wearing a black, hooded sweatshirt that was different from the shirt he had been wearing when he exited the car. When defendant later opened the trunk of the car, Maxine noticed a small rifle or shotgun and a black pillowcase with money hanging out of it. Two days after the robbery, defendant paid cash for the balance of the restitution he owed on his probation sentence. The following month, defendant paid $740.94 in cash for new furniture and $600.00 in cash towards the rent on a new apartment.

Members of the Jacksonville Police Department and the State Bureau of Investigation arrived at the Credit Union shortly after the robbery. An audit revealed the total amount stolen during the robbery was $10,884.00. Captain Tim Malfitano ("Captain Malfitano") of the Jacksonville Police Department viewed the Credit Union's surveillance tape of the robbery several times and informed the police detectives that the "characteristic of the [robber's] walk" was similar to that of defendant. During the investigation, Thomas Rafferty of the Onslow County Sheriff's Department also recovered a pair of sunglasses that were on the ground behind the Credit Union, and they were later identified as being similar to sunglasses normally worn by defendant. That night, police obtained defendant's consent to search his bedroom, where they found and seized a black pillowcase. Defendant was not taken into custody and the robbery case was classified inactive. Subsequently, the Jacksonville Police Department lost the surveillance videotape of the robbery.

On 22 May 2000, Detective David Kaderbek ("Detective Kaderbek"), the detective assigned to the case, obtained statements from four separate people who linked defendant to the robbery. The first statement was by Sharon Gardner ("Gardner"), Maxine's mother. She stated that Kristin Elkert ("Elkert") informed her that Maxine was involved in the robbery. The second statement by Elkert revealed that Maxine told her that she and defendant had robbed the Credit Union. Hilton Scott ("Scott") also gave a statement that defendant told him that he obtained his money by robbing a bank. The last statement, given by Maxine, identified defendant as the robber of the Credit Union on 3 November 1998. On 4 August 2000, a warrant was issued for defendant's arrest, and he was indicted for robbery with a dangerous weapon on 11 February 2003.

Prior to trial, defendant made a motion in limine to prohibit any witnesses who had viewed the surveillance tape of the robbery from testifying about the contents of the videotape at trial. The trial court denied the motion in limine and Captain Malfitano subsequently testified at trial, over defendant's objection, that the gait of defendant was similar to that of the person seen robbing the bank on the surveillance tape. At trial, Elkert and Scott also read into evidence the statements they had previously made. Maxine, pursuant to plea bargain, also testified.

On 21 November 2003, the jury returned a verdict of guilty of robbery with a firearm. The trial court determined defendant's prior record level was a level four and sentenced defendant to a term of 117 to 150 months in the North Carolina Department of Correction. Defendant appeals.

Defendant first assigns error to the trial court's denial of his motion in limine, in which he requested an order prohibiting witnesses from testifying about the contents of the lost surveillance videotape of the bank robbery. Defendant's only specific contention properly before this Court is that the denial of the motion in limine violated his constitutional right to confront the witnesses against him under the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution.¹ Defendant claims that by allowing Captain Malfitano to testify about the contents of the videotape, the trial court interfered with his right of effective cross-examination because he had no way to test the credibility of the witness. Specifically, defendant argues "[h]e could not show the tape to the jury during cross-examination, and ask the witness specific questions about the basis of the opinion, with the jurors watching both the tape and the witness."

It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated. Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001). Under the Confrontation Clause of the Sixth Amendment, a defendant is guaranteed the right to effectively cross-examine a witness which includes the opportunity to show that a witness is biased or that the testimony is exaggerated or unbelievable. United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 83 L.Ed.2d 450, 456 (1984). The right to effectively cross-examine a witness, however, does not guarantee a defendant a "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15, 19 (1985) (per curiam). Indeed, the right to confront one's accusers is generally satisfied if defense counsel receives wide latitude at trial to question witnesses. Fensterer, 474 U.S. at 22, 106 S.Ct. at 295, 88 L.Ed.2d at 21.

In Fensterer, the defendant was convicted, in part, on the testimony of the State's expert witness, who could not recall which scientific test he used to form his opinion. Id., 474 U.S. at 17, 106 S.Ct. at 293, 88 L.Ed.2d at 18. Despite his inability to recall limited defense counsel's efforts to discredit the testimony, the Supreme Court held that there was no Sixth Amendment violation. The Court held that because the scope of defendant's cross-examination was not restricted by the trial court or by law, the defendant had a full "opportunity for effective cross-examination." Id., 474 U.S. at 19-20, 106 S.Ct. at 294-95, 88 L.Ed.2d at 19.

In State v. Zinsli, 156 Or.App. 245, 966 P.2d 1200 (1998), the Oregon Court of Appeals, considered a Confrontation Clause challenge on facts similar to the case at bar. In Zinsli, the defendant was driving under the influence of intoxicants and the administered field sobriety tests were videotaped. Id., 156 Or.App. at 247, 966 P.2d at 1201. The videotape was later destroyed inadvertently. Id. The trial court granted the defendant's motion to dismiss, finding that the loss of the videotape violated defendant's right to confrontation. Id. On appeal, the Oregon Court of Appeals found the Supreme Court's decision in Fensterer to be controlling and found no Confrontation Clause violation since the arresting officer would be available to testify at trial and his cross-examination would not be restricted by the trial court. Id., 156 Or.App. at 251, 966 P.2d at 1203.

Similarly, in this case, defendant's cross-examination was neither restricted by the law nor did the trial court limit the scope of such examination. Instead, defendant's only limitation in cross-examining Captain Malfitano was his inability to play the lost videotape to the jury. Nonetheless, defendant had ample opportunity to cross-examine Captain Malfitano regarding the quality of the videotape, his viewing of the videotape, and his personal knowledge of defendant's gait. In fact, defendant concedes in his brief that "defense counsel [had] the opportunity to question Captain Malfitano about what he saw on the videotape[.]" Accordingly, defendant's confrontation rights under the Sixth Amendment were vindicated, and we find no error.

Article I, Section 23 of the North Carolina Constitution also provides a defendant the right to cross-examine adverse witnesses through the constitutional guarantee of the right of confrontation. N.C. Const. Art. I, § 23. State v. Watson, 281 N.C. 221, 229, 188 S.E.2d 289, 294, cert. denied, 409 U.S. 1043, 93 S.Ct. 537, 34 L.Ed.2d 493 (1972). However, our Supreme Court, in interpreting Article I, Section 23 has followed the United States Supreme Court in holding that, "[North Carolina's] Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." State v. McNeil, 350 N.C. 657, 676, 518 S.E.2d, 486, 498 (1999) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15, 19 (1985) (per curiam)). Although our courts have not examined the meaning of "ef...