State v. Phelps ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-957
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Washington County
No. 11 CRS 50589
WALTER THOMAS PHELPS
Appeal by defendant from judgment entered 24 April 2013 by
Judge Wayland J. Sermons, Jr. in Washington County Superior
Court. Heard in the Court of Appeals 21 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen N. Bolton, for the State.
Appellate Defendant Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant.
ELMORE, Judge.
On 23 April 2013, Walter T. Phelps (defendant) was indicted
by a Washington County grand jury. Defendant was tried before
Judge Wayland J. Sermons, Jr. in Washington County Superior
Court beginning on 22 April 2013. The jury returned a guilty
verdict as to the charge of robbery with a dangerous weapon on
23 April 2013. On 24 April 2013, defendant was sentenced to 60-
81 months imprisonment and ordered to pay restitution to Annie
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Hyman in the amount of $242.91. Defendant gave oral notice of
appeal. Defendant now appeals the trial court’s admittance of
Captain Willie Williams’ (Captain Williams) testimony and the
award of restitution. After careful review, we find no
prejudicial error in part, and remand in part.
I. Background
On 22 November 2011, Annie Ruth Hyman (Hyman) was working
at the Head Shop salon (Head Shop). Around 7:30 p.m., Hyman was
cutting a little boy’s hair as patron George Puckett (Puckett)
sat in the waiting area, and employee Francis Gilliam (Gilliam)
cleaned the restroom. Suddenly, three black men entered the
Head Shop wearing hoodies and bandannas that covered their
faces. These three men were later identified as defendant,
Hesus Basnight (Basnight), and Anthony Seeley (Seeley).
According to the State’s evidence, Seeley entered the Head
Shop first, followed by defendant and Basnight. Defendant and
Basnight, who was wielding a baseball bat, stood near the Head
Shop’s entrance door. Seeley, machete in hand, immediately
approached Hyman and demanded money. Hyman handed Seeley $60 in
cash from her station drawer. Seeley grew upset and demanded
more. Gilliam heard the commotion and returned from the
restroom. Suddenly, Seeley struck Hyman on the head with his
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machete, knocking her to the ground. Gilliam screamed. Puckett
tried to help Hyman, but Basnight raised his baseball bat and
instructed Puckett to sit down. Hyman handed Seeley her purse,
which contained credit cards, identification, car keys, and
approximately $60.00 to $100.00 in cash. With Hyman’s purse and
cash in their possession, all three men fled from the Head Shop
and into Ms. Rochelle Bowser’s (Bowser) car, which was parked at
the “basketball court around the corner.” Bowser drove Basnight
and Seeley to Seeley’s house. Basnight testified that he did
not know where Bowser took defendant.
Shortly after the robbery, Officer John Sawyer (Officer
Sawyer) received a call and started patrolling the area by the
Head Shop. Officer Sawyer was alerted that Bowser was possibly
involved in the incident. As such, Officer Sawyer took custody
of Bowser’s vehicle and brought her to the police department for
questioning. Bowser named Seeley and Basnight as suspects and
directed Officer Sawyer to the Seeley residence located at 102
Linden Street. Both men were taken into custody for
questioning. During questioning, Basnight admitted that he,
Seeley, and defendant were each involved in the Head Shop
robbery.
At trial, the State called Basnight, who again named
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defendant and himself as two of the three men who participated
in the Head Shop robbery. The State also called Gilliam and
Puckett, who partially described defendant as one of the men
involved in the Head Shop robbery. Specifically, Gilliam
described defendant as a “short, black male with a light
complexion.” Puckett described defendant as a “little short
fellow” who stood near the entrance. Finally, the State called
Captain Williams and elicited testimony to the effect that the
third robber, unavailable co-defendant Seeley, pled guilty to
robbery with a dangerous weapon, and “was sent to the []
Department of Corrections” for the Head Shop robbery. It is the
admission of this testimony that is the basis on which defendant
now appeals.
Defendant’s sole witness at trial was Deborah Walker, who
testified that on 22 November 2011, defendant arrived at her
home between 5:00 p.m. and 6:00 p.m., played a video game with
her son, and left between 9:00 p.m. to 9:30 p.m.
II. Analysis
Defendant contends that the trial court erred in allowing
Captain Williams to testify as to co-defendant Seeley’s guilty
plea and active incarceration for the Head Shop robbery. We
agree.
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As defendant failed to object to the contested testimony at
trial, we must review this issue for plain error. “[P]lain
error review is available in criminal appeals[] for challenges
to jury instructions and evidentiary issues[.]” Dogwood Dev. &
Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191,
196, 657 S.E.2d 361, 364 (2008) (citations omitted). “Our
decisions have recognized plain error only in truly exceptional
cases when absent the error the jury probably would have reached
a different verdict.” Id. (quotation omitted).
For error to be tantamount to plain error, the defendant
must
demonstrate that a fundamental error
occurred at trial. To show that an error
was fundamental, a defendant must establish
prejudice that, after examination of the
entire record, the error had a probable
impact on the jury’s finding that the
defendant was guilty. Moreover, because
plain error is to be applied cautiously and
only in the exceptional case, the error will
often be one that seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations and quotations omitted) (alteration in original).
A. Admitting the Challenged Testimony
Our Supreme Court has recognized the “clear rule” that
“neither a conviction, nor a guilty plea, nor a plea of nolo
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contendere by one defendant is competent as evidence of the
guilt of a codefendant on the same charges.” State v. Rothwell,
308 N.C. 782, 785, 303 S.E.2d 798, 800-01 (1983) (citation and
quotation omitted). This rule “appl[ies] equally to evidence
that [co-defendants] were charged and evidence that they were
tried.” State v. Gary, 78 N.C. App. 29, 37, 337 S.E.2d 70, 76
(1985).
In Rothwell, our Supreme Court elucidated:
The rationale underlying this “clear rule”
is twofold. [First,] a defendant’s guilt
must be determined solely on the basis of
the evidence presented against him.
[Second,] the introduction of such a plea by
a co-defendant, when he or she has not
testified at defendant’s trial, would also
deprive the defendant of his constitutional
right of confrontation and cross-
examination.
Rothwell, at 785-86, 303 S.E.2d at 801 (citations omitted).
However, “the Supreme Court in Rothwell realized that
neither of these bases for the rule would be violated if
evidence of a testifying co-defendant’s . . . [guilt] . . . is
introduced for a legitimate purpose.” State v. Brown, 67 N.C.
App. 223, 232, 313 S.E.2d 183, 190 (1984) (citation and
quotation omitted) (alteration in original). In contrast, “if
such evidence is introduced for [an] illegitimate purpose—solely
as evidence of the guilt of the defendant on trial—it is not
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admissible.” Rothwell, at 786, 303 S.E.2d at 801.
Here, co-defendant Seeley was unavailable for trial and was
not a testifying witness. Nonetheless, the State elicited
testimony from Captain Williams regarding co-defendant Seeley’s
guilty plea and active sentence for the same crime charged in
defendant’s case without offering a legitimate purpose. Captain
Williams testified that Seeley pled guilty to robbery with a
dangerous weapon——the same crime charged against defendant——and
that Seeley was “sent to [the] Department of Corrections.” As
Seeley did not testify to his own participation in the crime,
defendant was not afforded an opportunity to cross-examine him.
Because defendant’s guilt must be determined solely by the
evidence presented against him and because Seeley’s absence
during trial deprived defendant of his constitutional right of
confrontation and cross-examination, we conclude that the trial
court erred in admitting the challenged testimony. See, e.g.,
State v. Lyles, 172 N.C. App. 323, 330, 615 S.E.2d 890, 895
(2005) (finding error in the trial court’s admittance of
testimony that unavailable co-defendant was charged with similar
offenses as defendant); see also Gary at 37-38, 337 S.E.2d at 76
(holding that it was error to admit co-defendant’s charges
because “[n]o purpose was served by informing the jury that [co-
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defendant] had been tried, other than to suggest that he had
also been convicted, and by inference that defendant should
receive the same treatment”).
B. Prejudicial Error
Having found that the trial court erred, we now turn to the
question of whether such error was prejudicial to defendant such
that it had a probable impact on the jury’s finding of guilt.
See Lawrence, supra.
Here, defendant contends that the error was prejudicial
because the State failed to produce any competent evidence to
support his conviction, other than the admission of Captain
Williams’ testimony regarding the disposition of Seeley’s case.
Specifically, defendant avers that
[i]n all probability, the erroneously
admitted testimony ultimately pushed the
jury into convincting Mr. Phelps based on
the preexisting legal determination that his
co[-]defendant was guilty of the exact same
charge. Without the erroneously admitted
guilty plea of a non-testifying co[-
]defendant, it is probable the jury would
have been unable to convict as the only
evidence linking [defendant] to the robbery
was the story of a convicted felon with a
significant negotiated interest in the
outcome of the case.
We are not persuaded. The fact that the jury learned that
Seeley pled guilty and was serving an active sentence is not
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determinative of the outcome in defendant’s case. The State
presented sufficient additional evidence to warrant defendant’s
conviction. At trial, the State proceeded under the theory of
acting in concert. Plenary evidence showed that a robbery with
a dangerous weapon occurred at the Head Shop. The State’s three
eye witnesses testified that three men entered the barber shop,
one wielding a machete, and demanded money from Ms. Hyman before
fleeing together. Additionally, co-defendant Basnight testified
that defendant participated in the Head Shop robbery. This
testimony corroborated his earlier statements to Captain
Williams. Further, Gilliam and Puckett partially described
defendant as a “short, black male with a light complexion” and
as “little short fellow,” respectively.
Defendant has failed to convince us that the challenged
testimony had a probable impact on the jury’s guilty verdict.
Disclosing Seeley’s guilty plea and conviction resulted in no
substantial prejudice to defendant. We note that the State
never otherwise alleged that Seeley’s guilty plea and conviction
was competent evidence of defendant’s guilt——the contested
testimony was referenced once during Captain Williams’ direct
examination.
Because we apply plain error cautiously and only in the
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exceptional case, we conclude that defendant failed to meet the
high burden of proving that the contested testimony had a
probable impact on the jury’s guilty verdict. Lawrence, supra.
Accordingly, while the admission of the guilty plea of Seeley
was error, it does not rise to the level of plain error on these
facts.
III. Restitution Order
Defendant argues, and the State concedes, that the trial
court erred in ordering defendant to pay $242.91 in restitution
to Hyman, because the restitution amount is not supported by
sufficient evidence. We agree.
“[N]o objection is required to preserve for appellate
review issues concerning the imposition of restitution.” State
v. Smith, 210 N.C. App. 439, 443, 707 S.E.2d 779, 782 (2011).
“Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (citation omitted).
Our restitution statute requires that the “amount of
restitution must be limited to that supported by the record.”
N.C. Gen. Stat. § 15A-1340.36 (2013). “A restitution worksheet,
unsupported by testimony, documentation, or stipulation, is
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insufficient to support an order of restitution.” State v.
Blout, 209 N.C. App. 340, 348, 703 S.E.2d 921, 927 (2011)
(quotation omitted). Where some evidence supports an award of
restitution, but the evidence is not specific enough to support
the exact amount ordered, our Supreme Court has held that the
proper course is to remand to the trial court to determine the
correct amount of restitution. See State v. Moore, 365 N.C.
283, 286, 715 S.E.2d 847, 850-51 (2011) (remanding to the trial
court for a new hearing to recalculate the restitution award
where there was “some evidence” to support an order of
restitution, but the evidence was unable to support the exact
amount ordered).
Here, Ms. Hyman testified that defendant stole $60 cash
from her station drawer and took her purse, which contained $60-
$100 in cash, credit cards, identification cards, and car keys.
No evidence was introduced regarding the cost of replacing her
stolen goods. Nevertheless, the trial court ordered that
“[defendant] shall pay restitution to Annie Hyman in the amount
of $242.91,” without any further explanation. Because defendant
did not stipulate to the restitution amount, and because no
evidence was presented at trial or during sentencing to support
the exact amount of restitution ordered, the trial court erred
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in ordering defendant to pay $242.91. While an award of
restitution is supported by the record, the evidence presented
did not adequately support the particular amount awarded. Thus,
we remand for the trial court to calculate the correct amount of
restitution.
IV. Conclusion
In sum, we conclude that the trial court erred in admitting
Captain Williams’ testimony regarding co-defendant Seeley’s
sentence and plea; however, such error did not constitute plain
error under Rule 10(b)(2). Accordingly, we find no prejudicial
error in defendant’s conviction. We conclude that there is
insufficient evidence in the record to support the trial court’s
specific award of restitution. Therefore, we remand to the
trial court for a new hearing to determine the appropriate
amount of restitution.
No prejudicial error in part; remanded in part.
Judges McGEE and HUNTER, Robert C., concur.
Report per Rule 30(e).