State v. Wallace

Decision Date19 November 1991
Docket NumberNo. 9121SC67,9121SC67
Citation104 N.C.App. 498,410 S.E.2d 226
PartiesSTATE of North Carolina v. Chester Fletcher WALLACE.
CourtNorth Carolina Court of Appeals

Malcolm Ray Hunter, Jr., Appellate Defender, by Benjamin Sendor, Asst. Appellate Defender, Raleigh, for defendant-appellant.

Lacy H. Thornburg, Atty. Gen., by Daniel F. McLawhorn, Sp. Deputy Atty. Gen., Raleigh, for the State.

GREENE, Judge.

Defendant appeals from a judgment entered 12 June 1990, which judgment was based upon a jury verdict convicting defendant of robbery with a dangerous weapon, N.C.G.S. § 14-87 (1986), under the theory of acting in concert.

The State's evidence tends to show that on the afternoon of 31 January 1990, defendant, Christopher White (White), Allyn Buie (Buie), and a man named Tim traveled in defendant's car from Durham to Greensboro where they stopped at a motel and rented a room. The men spent a short time in the motel room discussing plans to commit a robbery, and then returned to the car and proceeded to Winston-Salem. The evidence at trial tended to establish that it was defendant's idea to commit the robbery. Once in Winston-Salem, the men stopped at a store, but determined that it was too small to rob. They drove on to Central Carolina Grocery (the Grocery), and Buie, White, and Tim went in. Defendant remained in the car, the plan being that he would wait in the vicinity in order to help the three men escape when they had completed the robbery.

Joe Choplin (Choplin), the manager of the Grocery, and his son William were present when Buie, White, and Tim entered the store. White pointed a gun at Choplin and demanded money. Choplin testified that he ducked behind a counter and grabbed a bag containing a pistol which belonged to his son. Choplin stated that he tossed the bag at White and said, "Here's the money," and that the bag fell on the floor. Subsequently, according to Choplin, White became agitated, struck Choplin in the face with the barrel of his gun, and ran out of the store with another man whom Choplin could not identify. Once the men were gone, Choplin searched for the bag and gun, but never found either item. White testified that he did not strike Choplin with his pistol, and denied taking the bag and gun.

Buie testified that he became scared during the robbery and left the store. Buie stated that twenty to twenty-five seconds after he left the store, defendant drove up and told Buie to enter the car. Defendant then dropped Buie off near a wooded area and told him to wait there while defendant went to look for White and Tim. Defendant found Tim, but could not find White. White testified that he was not familiar with the area and became lost after he ran out of the store. Defendant, Buie, and Tim drove back to Greensboro. White remained in the vicinity of the store and was apprehended by Winston-Salem police. In the early morning hours of 1 February 1990, a Greensboro police officer, using information supplied by White, arrested defendant after the officer watched defendant leave the motel room. Buie was arrested a few hours later. Tim was never apprehended.

Winston-Salem police officers conducted an inventory search of the vehicle defendant was driving at the time of his arrest, and found, among other things, 61 .38 caliber bullets, one spent .38 caliber shell, and a toboggan with holes cut out in the front like a mask. The car, a burgundy Nissan 200 SX, was registered to Marsha Van Hook of Durham, defendant's wife. The evidence showed that the Nissan was not the car involved in the robbery of the Grocery. The record reveals that police recovered from White the gun used by White during the robbery. This gun, which was made a part of the record on appeal, contained no visible caliber markings. Buie testified that during the robbery he used a gun which had been given to him by defendant. There is no evidence of its caliber in the record, and Buie testified that it was not loaded during the robbery.

Defendant did not testify and offered no evidence.

__________

The issues presented are I) whether the trial court committed prejudicial error by admitting testimony that a detective found bullets and a toboggan cut out like a mask in a search of the car defendant was driving when arrested; and II) whether the trial court committed plain error by failing to instruct the jury that proof of a defendant's actual or constructive presence at the scene of the crime is required in order to prove defendant's guilt under the theory of acting in concert.

I

Defendant contends that the trial court erred by admitting, over defendant's objection, testimony by Winston-Salem Police Department Detective R.D. Peddycord (Peddycord) that Peddycord found bullets and a cut-out toboggan during an inventory search of the car defendant was driving when arrested. Defendant argues that the State failed to link these items to the charged offense, and that therefore the testimony was irrelevant. Defendant further argues that this evidence was inflammatory and prejudicial because it impliedly characterized defendant as violent and dangerous.

Evidence is admissible at trial if it is relevant and its probative value is not substantially outweighed by, among other things, the danger of unfair prejudice. N.C.G.S. § 8C-1, Rules 402 and 403 (1988). Relevant evidence is defined as "any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 401 (1988). Rule 401 sets a standard to which trial judges must adhere in determining whether proffered evidence is relevant; at the same time, this standard gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. See C. Wright & K. Graham, 22 Federal Practice and Procedure § 5166 (1978) (hereinafter Wright & Graham); see also State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986). Thus, even though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Wright & Graham at § 5166.

Toboggan

There is no evidence in the record that masks were used in the commission of the robbery, nor does the State make such a contention. Items such as this toboggan which have not been connected to the crime charged and which have no logical tendency to prove any fact in issue are irrelevant and inadmissible. See State v. Patterson, 59 N.C.App. 650, 653, 297 S.E.2d 628, 630 (1982) (introduction of testimony about sawed-off shotgun found in defendant's car where no evidence connected weapon with crime charged was erroneous). However, when the trial court erroneously admits irrelevant evidence, the defendant must show that there is a "reasonable possibility that, had the error in question not been committed, a different result would have been reached" at trial. N.C.G.S. § 15A-1443(a) (1988); see also State v. Norwood, 303 N.C. 473, 479, 279 S.E.2d 550, 554 (1981).

The State presented the testimony of Buie and White--two eyewitnesses to defendant's participation in the robbery. These witnesses testified that defendant planned the robbery, selected the store to be robbed, drove the participants to the location, gave them instructions, gave one of them a gun, and waited in the vicinity in order to help the participants escape after the robbery. Defendant argues that he is entitled to a new trial because, had the trial court not erroneously admitted the toboggan testimony, there is a "reasonable possibility" that the jury would not have convicted defendant since the only evidence of his guilt was the uncorroborated testimony of two biased accomplices. We disagree. It is well settled in North Carolina that uncorroborated accomplice testimony is sufficient to sustain a conviction. State v. Brooks, 49 N.C.App. 14, 20, 270 S.E.2d 592, 597 (1980), disc. rev. denied, 301 N.C. 723, 276 S.E.2d 285 (1981). Furthermore, Buie and White, with immaterial exceptions, testified consistently regarding defendant's participation in the robbery. In light of the substantial evidence of defendant's guilt, we conclude that there is no reasonable possibility that the verdict returned by the jury was affected by the erroneous introduction of the toboggan testimony. See State v. Milby, 302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981) (even if introduction of pistols seized from defendants at time of arrest was error, no prejudice in view of the evidence of guilt presented by the State).

Bullets

A thorough review of the record shows that Peddycord's testimony describing the bullets was relevant. Four witnesses (Choplin, Choplin's son, White, and Buie) testified at trial that pistols were used in the commission of the robbery. Both Buie and White testified that defendant planned the armed robbery and gave the others instructions concerning its implementation. In fact, Buie testified that defendant used a loaded gun to coerce Buie into participating in the robbery. Buie also testified that defendant supplied the pistol Buie used in the robbery. There is no evidence in the record of its caliber. That defendant had pistol ammunition in his possession only a few hours after the commission of a robbery in which pistols were used and in which he has been implicated has a tendency to make defendant's participation in the robbery "more probable ... than it would be without the evidence." The jury could decide how much weight to give this evidence. See State v. Sanchez, 328 N.C. 247, 250, 400 S.E.2d 421, 424 (1991) (once disputed evidence is admitted at trial, its weight and credibility are for the jury).

Although we have determined that the bullet testimony is relevant, relevant evidence may nevertheless be excluded if its...

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