State v. Walker

• Decision Date: 07 December 2004
• Docket Number: No. COA03-1426.,COA03-1426.
• Citation: 167 NC App. 110,605 S.E.2d 647
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jason Christopher WALKER & Emil E. Browning, Jr. & Javier A. Hernandez, Jr.

605 S.E.2d 647

167 NC App. 110

STATE of North Carolina v. Jason Christopher WALKER & Emil E. Browning, Jr. & Javier A. Hernandez, Jr.

No. COA03-1426.

Court of Appeals of North Carolina.

December 7, 2004.

Roy Cooper, Attorney General, by Philip A. Lehman, Assistant Attorney General, for the State. (Jason Christopher Walker).

Roy Cooper, Attorney General, by Kristine L. Lanning, Assistant Attorney General, for the State. (Emil E. Browning, Jr.).

Roy Cooper, Attorney General, by Barbara A. Shaw, Assistant Attorney General, for the State. (Javier A. Hernandez, Jr.).

Staples Hughes, Appellate Defender, by Kelly D. Miller, Assistant Appellate Defender, for defendant-appellant Walker.

Brian Michael Aus, Durham, for defendant-appellant Browning.

Geoffrey W. Hosford, Wilmington, for defendant-appellant Hernandez. STEELMAN, Judge.

Each of the defendants were indicted on charges of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. The cases were joined for trial pursuant to N.C. Gen.Stat. § 15A-926.

The evidence at trial tended to show that in the early morning hours of 7 April 2002, defendants Walker, Browning, and Hernandez, together with Justo Aguillon, robbed a bar and nightclub in Beaufort County known as "Desperado's." Both Browning and Aguillon had previously worked as bouncers at the bar before being fired. At the time of the robbery, Hernandez worked at Desperado's part-time as a bouncer. Walker had no prior connection to the bar. All four of the men were on active duty with the United States Marine Corps, stationed at Camp Lejeune.

The bar closed around two in the morning, with five bouncers remaining to help clean up, including Hernandez. At approximately 3 a.m., three men arrived at Desperado's with their faces covered, wearing dark clothing, and carrying weapons. Aguillon carried a small baseball bat, Walker carried a gun and a pool stick, and Browning also carried a gun. The bouncers were outside when the robbers arrived. Two of the bouncers ran away when they saw the men were carrying weapons, and the third bouncer ran away after being assaulted. A fourth bouncer, Hector Ramos, testified that two of the robbers pointed guns at him and forced him to stay against the wall outside of the bar. Defendants questioned Ramos about how many bouncers were inside, the location of the owner, whether the owner's boyfriend was inside, and whether the main entrance to the club was locked. When defendant Hernandez, the fifth bouncer working that night, walked by, one of the other defendants told him to sit down with Ramos against the wall. Defendants asked Hernandez the same questions about the security of the club. While Walker remained outside to guard the bouncers, Browning and Aguillon went inside. Only the owner of the bar, Cynthia Lee Perez (Perez) and her boyfriend, Omar Marque (Marque), were inside the bar. Perez was standing behind the bar and Marque was in front of the bar. Once inside, Browning put one of the guns to Marque's head and pushed him to the floor. Aguillon assaulted Perez with the bat, striking her several times in the head and back, until the bat broke. Perez then pretended to fall to the floor dead. Aguillon grabbed the money from behind the bar, and he and Browning ran outside where defendants got into Walker's car and fled. Defendants' drove to a rest stop where they had parked a second car, belonging to Aguillon. They then proceeded to Walker's home and divided the money. Walker and Browning each received between $1,400.00 and $1,500.00 each, Hernandez received $600.00 for "keeping quiet," and Aguillon kept the remainder of the money.

Even though Ramos could not see the defendants' faces since they were wearing masks, he recognized Aguillon's voice. Perez was unable to visually identify any of the robbers, but recognized the voice of one of the robbers as belonging to one of her former bouncers. Perez suffered serious injuries and required thirty-three stitches to close the wounds to her head. Perez testified that the robbers stole between $8,000.00 and $10,000.00.

Before the trial of his co-defendants, Aguillon pled guilty pursuant to a plea agreement to robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. As part of his plea agreement, Aguillon agreed to testify against the other defendants and in exchange the charges against him would be consolidated and he would receive a sentence in the presumptive range. Aguillon knew both Browning and Hernandez from the Marine Corps, although he did not meet Walker until the night of 6 April 2002. Aguillon testified that about a week and a half before the robbery Browning approached him with a plan to rob Desperado's and asked if he was interested in participating. Aguillon agreed to help Browning rob the bar. Aguillon visited Hernandez on two occasions because he knew Hernandez worked at Desperado's and would have knowledge about security at the bar and where the owner kept the money. Hernandez answered all of Aguillon's questions. On the second visit, Browning accompanied Aguillon and informed Hernandez of his plan to rob the bar.

On the night of 6 April 2002, Aguillon testified he picked Browning up and they drove to Walker's home, where they hung-out until around 1:00 a.m. on the morning of 7 April 2002. Aguillon stated that they discussed their plan with Walker and got their gear together. He also stated that while they were at Walker's home Browning painted pellet guns so they would look like real guns. Defendants waited to leave so that they would arrive at the bar around closing time.

Investigator Wayne Melton of the Beaufort County Sheriff's Office investigated the robbery, assisted by two agents from the U.S. Department of Defense. When Detective Melton interviewed Perez, she stated she believed Browning and Aguillon were involved in the robbery. As a result of Perez's statements, Detective Melton interviewed each of the defendants and Aguillon. Walker, Browning, and Aguillon each provided a signed written statement to Detective Melton. In Walker's written statement, he claimed he only went to Desperado's to provide back-up for two of the men who wanted to settle scores with some of the bar's employees, and he knew nothing about a planned robbery. At trial, Walker testified that Browning told him he had a problem with someone named "Pablo," who was Perez's boyfriend, and wanted to go to Desperado's to confront "Pablo." Walker agreed to go with him to provide back-up. Walker denied dividing the money, stating that Aguillon just left some of it at his house to keep him quiet. In rebuttal of Walker's testimony, Michael Paschall (Paschall) testified for the State. Paschall shared a cell with Walker while Walker awaited his trial. Paschall testified that while they were in jail, Walker discussed the robbery with him and Walker admitted he "knew what they were going there for...."

The jury found Walker and Browning guilty of robbery with a dangerous weapon and assault inflicting serious injury. The jury found Hernandez guilty of robbery with a dangerous weapon, but he was acquitted on the assault charge. The trial court sentenced Walker to an active sentence from the presumptive range of 70 to 93 months; sentenced Browning to an active sentence from the aggravated range of 80 to 105 months; and sentenced Hernandez to an active sentence from the presumptive range of 51 to 71 months. Defendants appeal.

There are three defendants with three separate appeals. We first address common assignments of error and then address their separate assignments of error.

I. Common Assignments of Error — Walker and Browning

A. Jury Instruction Regarding Common Law Robbery

In their first assignment of error, defendants Walker and Browning contend the trial court committed plain error by failing to instruct the jury on the charge of common law robbery as a lesser included offense of armed robbery. We disagree.

Since defendants failed to raise this issue before the trial court our review is limited to plain error. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) (noting our Supreme Court has held plain error review to be appropriate regarding situations involving jury instructions). The plain error rule only applies in truly exceptional cases. Id. at 661, 300 S.E.2d at 379. To constitute plain error the appellate court must be convinced that absent the error, the jury probably would have reached a different verdict. Id.

Defendants must also overcome the bar of invited error. Under the doctrine of invited error, "a defendant is not prejudiced by ... error resulting from his own conduct." N.C. Gen.Stat. § 15A-1443(c) (2003). "[A] defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser included offense was error." State v. Gay, 334 N.C. 467, 489, 434 S.E.2d 840, 852 (1993). In Gay, our Supreme Court refused to grant defendant a new trial where the trial court specifically asked defense counsel if there were any lesser included offenses he wanted the judge to instruct the jury on, to which defense counsel replied in the negative. Id. See also State v. Williams, 333 N.C. 719, 728, 430 S.E.2d 888, 893 (1993)

; State v. Blue, 115 N.C.App. 108, 112, 443 S.E.2d 748, 750 (1994) (holding a defendant cannot decline to object to an instruction at trial and then use this deliberate choice to claim error on appeal.)

In this case, during the charge conference, the trial judge initially proposed submission of separate verdict sheets for each defendant with the following possible verdicts: (1) guilty of robbery with a dangerous weapon or not guilty; and (2) guilty of assault with a deadly weapon inflicting serious injury or not guilty. Walker's attorney requested the jury also be instructed on the lesser included offense of assault inflicting serious injury. Neither Browning...