State v. Roberts

268 N.C.App. 272

836 S.E.2d 287

STATE of North Carolina

v.Clarence Wendell ROBERTS, Defendant.

No. COA18-1194

Court of Appeals of North Carolina.

Filed: November 5, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General L. Michael Dodd, for the State-Appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.

COLLINS, Judge.

Defendant Clarence Wendell Roberts appeals from judgment entered upon jury verdicts of guilty of second-degree murder and assault with a deadly weapon. Defendant argues that the trial court committed certain evidentiary and sentencing errors. We find no prejudicial error.

I. Procedural History

On 9 September 2013, Defendant was indicted for first-degree murder, three counts of attempted first-degree murder, and three counts of assault with a deadly weapon with intent to kill. A trial commenced on 10 April 2017. At the close of the State's evidence, the trial court granted Defendant's motion to dismiss some of the charges. On 5 May 2017, the jury found Defendant guilty of second-degree murder and assault with a deadly weapon. The trial court consolidated the offenses and entered judgment upon the jury's verdicts, sentencing Defendant to 300 to 372 months' imprisonment. Defendant gave oral notice of appeal in open court.

II. Factual Background

On the evening of 14 June 2013, approximately twelve people, including John Allen, Michael Burgess, and Joshua Council, were playing basketball at a park in the Hayeswood Hut area of Lumberton. During their breaks, they talked and had drinks beside their cars parked in the grassy area between the basketball court and Peachtree Street. Allen and Burgess were affiliated with the E-Ricket Hunter Bloods street gang. Allen's sister, her three-year-old daughter, and one of the sister's friends were hanging out by the cars, watching them play basketball. At about 9:00 or 9:30 p.m., a shooting occurred, and Council was killed.

Allen testified that while he, his sister, and Council were standing beside Council's Chevrolet Blazer, a white Ford Taurus with its windows rolled down came "kinda fast" down Peachtree Street. The driver, who was the only person in the car, yelled "all y'all mother***ers want to kill me." The car drove past them, slowed down, and spun backward before stopping beside the Blazer. Allen thought the driver was drunk. A black male with a "bald head or either a real close haircut" got out of the car. Then, Allen saw the driver shooting and heard a total of five gunshots coming from "where the car was[,]" but he did not see the gun that was being fired. Allen and others ran away from the basketball area. The white Taurus then drove away.

Burgess testified that when he and his friends were taking a break in the grassy area beside the court, a white car partially covered in black primer drove by, backed up, and "whipped" in front of them. Burgess could see that the driver was a black male with tattoos on his face and gold teeth, and he was the only person in the car. After the driver yelled "y'all gonna kill me," someone shot at the car. Burgess heard more shots coming from the white car and started running.

Sheena Britt lived right around the corner from Hayeswood Hut. On the night of the shooting, Britt was walking with a friend through an intersection near the park. She saw a white four-door car drive past her toward the basketball court. The driver, a black male with gold teeth, was hanging out of the window and yelling "ain't nobody going to mess with me." Britt thought he had been drinking. Just after the car turned down Peachtree Street, Britt heard gunshots. She later identified Defendant in a photo lineup at the police station, but she could not identify him in court.

Whitney Carter lived at the corner of Peachtree Street and Eleventh Street. Carter was sitting in her car in her driveway between 9:00 and 10:00 p.m. on the night of the shooting when she saw a white car drive by, intermittently "throwing on its brakes." Carter observed that the driver was the only person in the car. She saw the car stop briefly at the intersection while the driver talked to two pedestrians. The car then "sped down the dirt road." While still sitting in her car in her driveway about five minutes later, Carter heard gunshots. She waited a few minutes, then got out of her car and walked to the edge of Peachtree Street. When Carter looked down Peachtree Street, she saw the white car parked beside the basketball court. Then the car drove away toward Elizabethtown Road, and people were running.

Ronnie Roberson's house faced the Hayeswood Hut basketball court. On the night of the shooting, Roberson watched black-and-white surveillance video of the basketball court, captured by an infrared camera mounted on the side of his house. He observed people talking around the basketball court. He also watched as a dark car came down the road, backed up near the court slowly, and sat with its engine running. Then shots were fired. Roberson did not see any other cars in the area. He called 911 twice—first to report the loud noise coming from the basketball court, and then to report the gunshots.

Kimberly Lowery, the mother of Defendant's son, testified that Defendant showed up sometime after 9:30 p.m. at her home on Elizabethtown Road, visibly drunk and driving a white Ford Taurus. Two other witnesses who knew Defendant testified that Defendant visited them in Lumberton that night on or after 10:00 p.m., driving a white car.

Chris McGirt, who lived near Hayeswood Hut, was on his way home from work around 11:20 p.m. when he noticed a white Ford Taurus "driving strangely" down his street. When McGirt parked in his driveway, the white car pulled up beside him in the driveway. A black male, about 5'9" to 6' tall and 160 to 170 pounds with gold teeth, got out of the white car. After asking McGirt a few questions, the man got back in the car, started the engine, and backed out of the driveway while yelling that he was a "gangster." McGirt thought the driver was impaired. After the man drove away, McGirt called the police to report the suspicious activity. Two days later, when McGirt visited the police station to make a statement, he identified Defendant in a photo lineup.

After midnight, Trooper Steven Hunt of the North Carolina Highway Patrol found a white Ford Taurus in a ditch beside the highway. The engine was running, the taillights were on, and Defendant was asleep inside, leaning against the steering wheel. When Defendant woke up and tried to put the car in drive, the officer pulled him out of the car, noticing that he was impaired. Hunt arrested Defendant for driving while impaired.

III. Issues

On appeal, Defendant argues that (1) the trial court erred and violated his right to confrontation by admitting recordings of his phone calls from jail, (2) the trial court plainly erred by admitting videos of his interviews with investigators, (3) the sentence imposed was not authorized by the jury's verdict, and (4) the trial court erred in calculating Defendant's prior record level.

IV. Discussion

A. Recorded Phone Calls

Defendant argues that the trial court erred by admitting recordings of three phone calls Defendant made from the Robeson County Jail. Defendant specifically contends that (1) the recordings of the phone calls contained inadmissible hearsay, and (2) by allowing the jury to hear the phone calls, the trial court violated Defendant's right to confront witnesses against him.

Defendant first argues that the recorded phone calls were erroneously admitted because they contained inadmissible hearsay.

This Court conducts de novo review of the admission of evidence over a hearsay objection. State v. Johnson , 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). An erroneous admission of hearsay necessitates a new trial only if the defendant shows that there is a reasonable possibility that without the error the jury would have reached a different result. N.C. Gen. Stat. § 15A-1443(a) (2018) ; State v. Wilkerson , 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009) (internal quotation marks and citation omitted).

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2018). "Hearsay is not admissible except as provided by statute or by these rules." N.C. Gen. Stat. § 8C-1, Rule 802 (2018). However, a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence for a purpose other than to prove the truth of the matter asserted is admissible. Livermon v. Bridgett , 77 N.C. App. 533, 540, 335 S.E.2d 753, 757 (1985).

During one of the calls, Roberts repeatedly expressed bewilderment about being accused of murder. In another call, a woman urged Defendant to request a "lie detector test," to which Defendant replied, "They ain't do none of that." One of the women also told Roberts he should have "come back home." Referring to another person, the woman said, "She say, her baby daddy say, whenever you got around, he and them other dudes were trying to tell you to go home, but you wouldn't leave."

The State argues that these statements were admissible because (1) they were not hearsay, as they were introduced only to prove the existence of the statements and to show Defendant's state of mind under evidentiary Rule 803(3), rather than to prove the truth of the matters asserted, and (2) they were excepted from hearsay under evidentiary Rule 801(d), as an admission of a party opponent.

We need not determine whether the trial court erred because, even assuming arguendo that the evidence was erroneously admitted, Defendant fails to show that the error was prejudicial. See N.C. Gen. Stat. § 15A-1443(a). The State presented the following evidence:

Britt saw a white four-door car drive past her toward the Hayeswood Hut area...