State v. Bandy ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-711
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Edgecombe County
No. 11-CRS-5228
DANIEL JUNIOR BANDY
Appeal by Defendant from judgment entered 27 August 2012 by
Judge W. Russell Duke, Jr. in Edgecombe County Superior Court.
Heard in the Court of Appeals 27 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David D. Lennon, for the State.
Larry C. Economos for Defendant.
DILLON, Judge.
Defendant appeals from a judgment entered upon a jury
verdict finding him guilty of robbery with a dangerous weapon.
All of Defendant’s arguments derive from the trial court’s
admission of a surveillance videotape into evidence. We find no
error.
The State presented evidence tending to show that on 24
July 2011, Tannisha Johnson was working as the cashier of the
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Lucky Land Sweepstakes Café (hereinafter “Lucky Land”). To
permit one to enter the business, Ms. Johnson had to push a
button to unlock the door. Shortly before the business closed
at 2:00 a.m., Defendant was the last patron in the business.
Soon after Defendant walked out of the business, an unidentified
man wearing a mask entered, pointed a gun at Ms. Johnson, and
demanded money. Ms. Johnson complied with the man’s demand.
After the man left, Ms. Johnson called her friend, Taranius
Whitehead, and reported that Defendant had robbed her. She also
called 911 and reported the crime.
Mr. Whitehead testified that after receiving a call from
Ms. Johnson, he located Defendant, his cousin, and told him that
he needed to return to Lucky Land. Defendant told Mr. Whitehead
that a man pointed a gun at him and instructed him to leave
Lucky Land. Mr. Whitehead followed Defendant back to Lucky
Land.
Sergeant William Moore of the Edgecombe County Sheriff’s
Department testified that he responded to a dispatch to Lucky
Land on 24 July 2011. When he arrived, he saw Defendant, Ms.
Johnson, Mr. Whitehead, and an unidentified female standing
outside the business. Defendant told the officer that as he was
leaving the business, a man wearing a white mask jumped out from
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behind a water cooler, told Defendant to leave or he would kill
Defendant, and ran into the business. Defendant told the
officer that he then ran to his truck and left.
After Sergeant Moore testified, the State announced its
intention to seek admission into evidence of a videotape
recorded by a surveillance camera at the entrance to Lucky Land.
Defendant objected, and the court conducted a voir dire hearing
to determine its admissibility.
Bonnie Blackley, the co-owner of Lucky Land, testified
during voir dire that the business had a security system that
included a surveillance camera which recorded what was happening
in each area of the business. She provided law enforcement with
the recording for 24 and 25 July 2011. Detective Sergeant Ross
Ellis of the Edgecombe County Sheriff’s Department testified
that he received security camera footage from Ms. Blackley’s
daughter, viewed the footage, and turned it over to the district
attorney’s office. Detective Ellis also testified that the
surveillance camera was motion activated, meaning it did not
record or operate unless it sensed movement. Detective John
Denton of the Rocky Mount Police Department testified that he
received the footage from the district attorney’s office and
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shortened the length of the footage to show only the time frame
pertinent to the crime.
Defendant’s counsel conceded that the recording was
authentic, but argued that the recording was misleading and not
admissible because of time gaps in the recording. The trial
court ruled that the recording was authentic and admissible.
When the State later offered the recording into evidence,
Defendant did not object.
Detective Ellis later testified before the jury that he had
searched Defendant’s vehicle and found a wallet belonging to a
person named “Leonard Jenkins,” several rounds of revolver
ammunition, and several bullet holes in the vehicle. His
department has not been able to find Leonard Jenkins.
To bring forward on appeal a challenge to the admission of
evidence, a defendant must object to the evidence when it is
actually introduced at trial. State v. Ray, 364 N.C. 272, 277,
697 S.E.2d 319, 322 (2010). An objection to the admission of
evidence during a hearing outside the presence of the jury
before or during another portion of the trial is insufficient to
preserve the issue for full review. Id. Absent a timely
objection, the defendant can obtain appellate relief only if he
shows that the trial court committed plain error. State v.
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Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000). The
defendant must specifically contend that the court committed
plain error. State v. Dennison, 359 N.C. 312, 312-13, 608
S.E.2d 756, 756 (2005). Plain error is a “fundamental error”
which had a probable impact upon the jury’s verdict. State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
Here, Defendant alleges that the court committed plain
error by admitting the videotape. We conclude, however, that
the court did not commit plain error. Defendant conceded that
the video recording is authentic and accurate as to what it
depicts, which is Defendant’s exit from Lucky Land and the
masked man’s entrance into the business. Defendant has not
shown that the original length recording contains anything
germane to the issue of his guilt, innocence, or credibility
which was not shown to the jury. We conclude that the fact that
the videotape was shortened to a specific time frame had no
probable impact upon the jury’s verdict.
Defendant also contends that he was denied effective
assistance of counsel because of counsel’s failure to object to
the evidence at the time it was admitted. To establish a valid
claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient and that his
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defense was prejudiced by counsel’s defective performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, the defendant must show that but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 694. For the reasons stated
above, Defendant has not shown a different outcome would have
occurred at trial or on appeal if counsel had interposed an
objection to the condensed videotape when it was offered into
evidence.
Accordingly, we conclude that Defendant received a fair
trial free of prejudicial error.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER, JR. concur.
Report per Rule 30(e).