State v. Wilkerson
| Decision Date | 07 July 2015 |
| Docket Number | No. COA15–95.,COA15–95. |
| Citation | 775 S.E.2d 925 (Table) |
| Parties | STATE of North Carolina v. Robert Earl WILKERSON, Defendant. |
| Court | North Carolina Court of Appeals |
Roy Cooper, Attorney General, by Lars F. Nance, Special Deputy Attorney General, for the State.
Amanada S. Zimmer for defendant-appellant.
Robert Earl Wilkerson (“Defendant”) appeals from his convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. On appeal, he contends that the trial court erred by (1) admitting certain photographs into evidence; (2) admitting testimony of a prior crime committed by him; (3) instructing the jury on the theory of acting in concert; (4) admitting victim impact testimony and the testimony of Defendant's accomplice concerning his fear of Defendant; and (5) denying his motion for a speedy trial. After careful review, we conclude that Defendant has failed to show that the trial court committed prejudicial error at his trial. However, we remand to the trial court for further proceedings in connection with Defendant's claim that his right to a speedy trial was violated.
The State's evidence at trial tended to establish the following facts: On the morning of 7 April 2010, Defendant and Leryan Scarlett (“Scarlett”) left Defendant's family tire business on Alston Avenue in Durham, North Carolina in a green Oldsmobile Intrigue (the “Intrigue”) in order to “[commit] another crime.” Scarlett was driving the Intrigue and Defendant was riding in the front passenger seat. Defendant was armed with a Smith and Wesson .40 caliber pistol and Scarlett was armed with a Ruger P89 pistol.
At 11:30 a.m. that same day, George Pratt (“Pratt”) drove to the home of Ethel Crawford (“Crawford”) at the corner of Franklin Street and Alston Avenue in order to pick her up and drive her to work. Pratt was driving a burgundy Plymouth Acclaim (the “Acclaim”).
While Pratt was parked in front of Crawford's home waiting for her to come out, Defendant and Scarlett approached the intersection of Franklin Street and Alston Avenue. Scarlett recognized Pratt's car and, knowing that Pratt often sold “ball tickets,” formed the belief that he likely had a large amount of cash on his person. Scarlett then told Defendant “[t]here's someone right there,” at which point Scarlett pulled up behind the Acclaim and “swapped” guns with Defendant.
Defendant then exited the Intrigue, walked to the Acclaim's driver side door, and aimed Scarlett's gun at Pratt through the open driver's side window. He then demanded money from Pratt, opened the car door, and shot Pratt twice—once in his right ankle and once above his left knee. Defendant threw Pratt out of the car and onto the street. Defendant then got into the driver's seat of the Acclaim and drove the car away from the scene with Scarlett following him in the Intrigue.
Maverick Tatum, a neighbor of Crawford's, witnessed the robbery. Although he could not identify the perpetrators, he was able to see the license plate number of the Intrigue as the Intrigue and the Acclaim drove away. The Intrigue was later discovered to belong to Defendant's girlfriend, Sharrell Roberson (“Roberson”), who lived with Defendant at 514 Currin Street in Durham.
Defendant and Scarlett proceeded to drive to North Hyde Park where they parked both cars. Defendant then began searching Pratt's car for anything of value. While doing so, Defendant realized that he had dropped his cellphone at the scene of the robbery. Defendant wiped down Pratt's car with his shirt and threw the keys away from the vehicle. He and Scarlett then drove in the Intrigue to the residence at 514 Currin Street.
Approximately five minutes after arriving at the residence, Defendant noticed a police car parked outside. Defendant immediately took both his and Scarlett's guns and fled out the back window of the house. Shortly thereafter, additional law enforcement officials arrived, surrounded the house, and ordered any occupants of the house to exit the residence. Scarlett complied and was taken into custody. He was thereafter arrested on an outstanding warrant for failure to appear and taken to the Durham County Detention Facility.
Scarlett was released on bond roughly an hour later and went to the home of Defendant's cousin, believing that Defendant might be there. Upon arrival, Scarlett discovered that Defendant was, in fact, present. After a brief conversation, Scarlett and Defendant proceeded to drive to an area off of Mineral Springs Road where Defendant had hidden his and Scarlett's guns and recovered the weapons. Two days later, Scarlett disposed of the Ruger P89 pistol by disassembling it and throwing the pieces out of his car window at various intervals along Red Mountain Road.
Neither the Smith and Wesson pistol nor the pieces of the Ruger P89 pistol were ever recovered. Approximately two months after these events, Pratt died as a result of complications from the gunshot wounds he had suffered.
On 2 July 2010, pursuant to an investigation into Pratt's robbery by Investigator Anne Cristaldi with the Durham Police Department's Violent Crimes Unit, a warrant was issued for Defendant's arrest. That same day Defendant was arrested, and on 2 August 2010, Defendant was indicted on charges of first-degree murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon.
On 7 May 2012, Defendant filed a motion for a speedy trial. The motion was filed pro sedespite the fact that Defendant had been appointed counsel prior to the filing of this motion. On 23 August 2012, a hearing was held on Defendant's motion before the Honorable Michael R. Morgan. At the hearing, Defendant's counsel adopted the pro semotion and argued that nearly two years had passed since Defendant had been indicted. After hearing arguments from Defendant's counsel and the State, Judge Morgan denied the motion. On 19 September 2012, Judge Morgan entered a written order reflecting his ruling.
A jury trial was held in Durham County Superior Court on 21 April 2014 before the Honorable W. Osmond Smith, III. Immediately before trial, Defendant filed a pro semotion to dismiss in which he asserted that his right to a speedy trial had been violated. As with his previous pro semotion, the motion was adopted by his attorney. After hearing arguments of counsel, the trial court ultimately denied the motion.
At trial, the State introduced into evidence the cellphone found at the scene of the robbery. The cellphone contained pictures that were also admitted into evidence depicting Defendant holding an assault rifle inside the Currin Street residence while extending his middle finger as well as an image of an assault rifle placed on a chair inside the residence.
Forensic Scientist Supervisor Zack Kallenbach with the North Carolina State Crime Lab performed an analysis of the cellphone and testified at trial that the cellphone contained Defendant's DNA profile. In addition, Kallenbach testified that Defendant's DNA profile was also found on a glove discovered in the back of the Intrigue shortly after the robbery. The glove was also admitted into evidence.
The State also elicited the testimony of Marlo Bates (“Bates”), Pratt's granddaughter, who testified as to Pratt's deteriorating condition after being shot during the robbery and the impact it had upon his family. She further testified that Pratt had told her on multiple occasions that the man who had robbed him had dropped his cellphone during the course of the robbery.
Scarlett testified at trial pursuant to a plea agreement he had entered into with the State. Scarlett testified as to the events and circumstances surrounding the robbery of Pratt and further discussed a separate robbery committed by Defendant and him the previous night. During his testimony, Scarlett stated that he was afraid for his family's safety due to the fact that he was giving testimony against Defendant.
Defendant was convicted of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The jury acquitted Defendant of the first-degree murder charge. Defendant was sentenced to 97–126 months imprisonment for the robbery with a dangerous weapon charge and 38–55 months for the conspiracy to commit robbery with a dangerous weapon charge with the sentences to run consecutively. Defendant gave notice of appeal in open court.
Defendant initially contends that the trial court erred in admitting the photographs discovered on the cellphone left at the scene of the robbery depicting him holding an assault rifle with his middle finger extended and showing an assault rifle sitting on a chair. He asserts that “[t]hese photographs were irrelevant and more prejudicial than probative” under Rule 403 of the North Carolina Rules of Evidence.
Relevant evidence is “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.R. Evid. 401. However, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N . C.R. Evid. 403.
The State contends that these photographs were admitted in order to (1) demonstrate that the cellphone was linked to Defendant; (2) connect Defendant to the crime scene; and (3) link Defendant to the Currin Street residence, which was the address at which the photographs in question were taken and where Scarlett testified he and Defendant fled after their commission of the robbery.
Prior to trial, Defendant filed a motion in limine to exclude the photographs pursuant to Rule 403. After hearing arguments from Defendant and the State, the trial court ruled that “[t]he defendant's motion in limine to exclude...
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State v. Wilkerson
...38–55 months for conspiracy. Defendant appealed.Defendant's first appeal was heard on 7 July 2015. State v. Wilkerson , 242 N.C. App. 253, 775 S.E.2d 925, 2015 WL 4081964, 2015 N.C. App. LEXIS 560 (unpublished). This Court concluded Defendant had failed "to show that the trial court committ......