State v. Turner, No. COA09-1116 (N.C. App. 5/18/2010)
| Decision Date | 18 May 2010 |
| Docket Number | No. COA09-1116.,COA09-1116. |
| Parties | STATE OF NORTH CAROLINA v. GWEN WAYNE TURNER |
| Court | North Carolina Court of Appeals |
Kimberly P. Hoppin for Defendant.
UNPUBLISHED OPINION
Defendant Gwen Wayne Turner appeals from judgment entered on her convictions of eight counts of embezzlement. For the reasons stated below, we conclude there is no error.
By 2006, Defendant had been working as a store manager at Home Run Food Mart (the store) for at least eight years. Around October 2006, the company's Chief Financial Officer, Terry Faulk, began a comprehensive review of the store's revenue records. At trial, Faulk testified that he would compare cash register tapes with the store's handwritten weekly sales summary to identify any discrepancies. He explained that Defendant was solely responsible for preparing a weekly sales summary report — recording all of the store's sales for the week — and a corresponding bank deposit.
Faulk and Eddie Butler, the store's general manager, found that, over the previous two years, large sums had been taken in by the store as sales receipts and as payments on in-store charge accounts but were not reported or deposited by Defendant. Both testified that immediately following Defendant's termination and continuously thereafter, there were no further discrepancies on the weekly reports, the summaries exactly matched the cash register sales receipts, and no money was missing.
Special Agent Chris Cardwell with the financial crimes unit of the State Bureau of Investigation testified that all corporate records reviewed by him supported the company's belief that Defendant had taken the funds. Cardwell testified that Defendant told him that she had taken money from the store and used it to pay personal bills and expenses. Defendant further detailed the manner by which she had manipulated the weekly sales summaries.
The jury returned verdicts of guilty on all eight counts of embezzlement, and Defendant filed timely notice of appeal.
On appeal, Defendant contends that the trial court committed plain error by: (1) admitting into evidence the handwritten and transcribed notes of Agent Cardwell's interview with Defendant and (2) failing to properly instruct the jury on each element of embezzlement for each offense charged. Preliminarily, we note that Defendant failed to preserve either issue by objection noted at trial; accordingly, we review both for plain error. See N.C.R App. P. 10(b)(1); N.C.R. App. P. 10(c)(4); see also State v. Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 805-07 (1983) ().
Plain error review involves a two-step inquiry:
A prerequisite to our engaging in a "plain error" analysis is the determination that the instruction [or admission of evidence] complained of constitutes "error" at all. Then, "before deciding that an error by the trial court amounts to `plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict."
State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). To constitute plain error, an error must have "`tilted the scales' and caused the jury to reach its verdict convicting the defendant." Walker, 316 N.C. at 39, 340 S.E.2d at 83.
Defendant assigns as plain error the trial court's admission into evidence of State's Exhibit #64 — Agent Cardwell's handwritten notes of his interview with Defendant — and Exhibit #65 — the transcription of those notes. Defendant also contends that the trial court committed plain error by allowing Cardwell to read from his notes during a portion of his testimony. Defendant asserts that she never reviewed the notes for correctness, and she was never afforded the opportunity to sign the notes to acknowledge their accuracy. Our Supreme Court has set out the rules on the admissibility of a statement reduced to writing A confession which has been wholly or partially reduced to writing is ordinarily admissible against an accused . . . regardless of the fact that it was reduced to writing by another person, where it was read over to or by accused, or was translated to him, and signed or otherwise admitted by him to be correct.
If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused.
State v. Walker 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967) (internal quotation marks and citations omitted). Thus, defendants must acquiesce to a written statement's correctness before the State may tender it as a confession. State v. Fisher, 171 N.C. App. 201, 210, 614 S.E.2d 428, 434 (2005).
Our courts, however, have carved out "a limited exception where an officer's notes are a verbatim record of the questions and answers between the officer and the defendant." State v. Wagner, 343 N.C. 250, 256, 470 S.E.2d 33, 36 (1996). Thus, even where a defendant has not verified its correctness, "the written instrument is admissible, without regard to the defendant's acquiescence, if it is a `verbatim record of the questions [asked] . . . and the answers' given." State v. Bartlett, 121 N.C. App. 521, 522, 466 S.E.2d 302, 303 (1996) (quoting State v. Byers, 105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992)).
The State concedes that Cardwell's notes were not a verbatim transcript of the interview. The State also acknowledges that Cardwell did not ask Defendant to review his notes and sign any written statement. Thus, it is clear that Defendant's statements were not admissible as a confession under either the general rule or the exception. The State, however, proposes that Cardwell's notes were not ever offered as Defendant's confession. Rather, under the circumstances of the instant case, the notes were offered as a corroboration of Cardwell's testimony and to refresh his present recollection of Defendant's statements while he testified thereto. We agree.
Our Supreme Court addressed similar facts in State v. York, 347 N.C. 79, 87-90, 489 S.E.2d 380, 385-86 (1997), holding it was permissible for a sheriff captain, during his testimony, to read from a typed version of the "rough handwritten notes" he took of his interview with the defendant. The defendant contended that this reading "was prejudicial because it led the jury to believe the notes were defendant's confession." Id. at 87-88, 489 S.E.2d at 385. Although the captain had acknowledged that he did not ask the defendant to review his notes or record or make a verbatim transcript of his interview, the Court rejected the argument because "[t]he State did not offer the notes in question as a confession of the defendant." Id. at 88, 489 S.E.2d at 385.
Here, the parties dispute the State's intentions as to how the testimony of Cardwell should have been defined. The State suggests that "Cardwell never testified or gave any indication that his notes were [Defendant's] actual confession . . . adopted by her." Rather, as a part of routine investigative procedures, his notes were simply a memorialization of Defendant's conversation with him to aid his memory. Defendant argues, however, that the trial court clarified the State's intent at the charge conference by asking whether to instruct on admissions or confessions. Defendant points out that the State initially requested an instruction on admissions but subsequently requested the instruction on confessions. The trial court denied the State's request and instructed the jury on admissions. Based on the second request, Defendant argues that the State clearly considered Defendant's statements presented by Cardwell to be confessions and offered them for that purpose. However, Defendant cites no case for the notion that the subjective intent of the State controls how this evidence should be defined.
At no time in the presence of the jury did the State qualify Defendant's statements to Cardwell as a confession. In fact, as mentioned above, Cardwell testified that he summarized Defendant's answers in his own words and that he never showed Defendant his notes or had her adopt them as her own statements in any way. Accordingly, the State did not offer Cardwell's testimony as Defendant's confession nor characterize it as such. Rather, the testimony elicited from Cardwell demonstrates that his notes do not meet the criteria for consideration as a confession. Also, the instructions ultimately given to the jury made no mention of any confession by Defendant, and at no time were either the handwritten or typed interview notes ever described as or purported to be Defendant's confessions. Although the notes were improperly admitted into evidence as exhibits, as discussed infra, we conclude that York controls and that the State did not offer the notes in question as Defendant's confession. See id.; see also State v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (1997) ().
Thus, "[t]he question then becomes whether the trial court properly allowed [Cardwell...
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