No. COA 09-1422 18 DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA )
v. ) From Guilford County
ERIC RICARDO HANDY, )
* * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * *
TABLE OF AUTHORITIES...........................................ii
STATEMENT OF THE CASE...........................................2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................3
STATEMENT OF THE FACTS..........................................3
I. THE TRIAL COURT COMMITTED PLAIN ERROR IN
ADMITTING DEFENDANT’S PURPORTED CONFESSION WHEN
THAT PURPORTED CONFESSION WAS NEITHER VERIFIED BY
DEFENDANT NOR A VERBATIM RECORD OF DEFENDANT’S
WORDS AND THUS INADMISSIBLE IN EVIDENCE AS
II. THE TRIAL COURT ERRED IN GIVING THE JURY AN
INSTRUCTION ON ACTING IN CONCERT OVER THE
DEFENDANT’S OBJECTION AND ERRED IN DENYING
DEFENDANT’S REQUEST FOR AN INSTRUCTION ON MERE
III. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S
OBJECTION TO TRIAL COUNSEL’S QUESTIONS TO
DEFENDANT REGARDING THREATS HE HAD RECEIVED FROM
THE OTHER KNOW SUSPECTS..............................32
CERTIFICATE OF FILING AND SERVICE..............................36
TABLE OF AUTHORITIES
California v. Trombetta, 467 U.S. 479 (1984).................. 33
Carter v. Kentucky, 450 U.S. 288 (1981)....................... 31
Crane v. Kentucky, 476 U.S. 683 (1986)........................ 33
State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994)........ 22
State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655 (1967)........... 30
State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004)... 24
State v. Bartlett, 121 N.C. App. 521, 466 S.E.2d 302 (1996).. 14,
State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971)......... 19
State v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002)............. 29
State v. Bonnett, 348 N.C. 417, 502 S.E.2d 563 (1998)......... 30
State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984)........... 24
State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42 (1986)........ 28
State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002)......... 15
State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999)............ 30
State v. Cox, 303 N.C. 75, 86, 277 S.E.2d 376, 383 (1981...... 28
State v. Davis, 214 N.C. 787, 1 S.E.2d 104 (1938)............. 32
State v. Edgerton, 86 N.C. App. 329, 357 S.E.2d 399 (1987).... 19
State v. Gardner, 322 N.C. 591, 369 S.E.2d 593 (1988)......... 33
State v. Ham, 238 N.C. 94, 76 S.E.2d 346 (1953)........... 23, 29
State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954)......... 34, 35
State v. Harvell, 334 N.C. 356, 432 S.E.2d 125 (1993)......... 30
State v. Hester, 330 N.C. 547, 411 S.E.2d 610 (1992).......... 34
State v. Hooker, 243 N.C. 429, 90 S.E.2d 690(1956)............ 29
State v. Johnson, 310 N.C. 574, 313 S.E.2d 560 (1984)......... 14
State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)........... 25
State v. Mitchell, 24 N.C. App. 484, 211 S.E.2d 645 (1975)... 24,
State v. Mumford, COA No. 09-300 (January 5, 2010)........ 31, 32
State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987)........ 29
State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d 389 (1982).... 22
State v. Robinette, 33 N.C. App. 42, 234 S.E.2d 28 (1977)..... 26
State v. Smith, 65 N.C. App. 770, 310 S.E.2d 115 (1984)... 24, 28
State v. Spencer, 192 N.C. App. 143, 664 S.E.2d 601 (2008)... 13,
14, 15, 16
State v. Spruill, 338 N.C. 612, 452 S.E.2d 279 (1994)......... 31
State v. Stoner, 59 N.C. App. 656, 298 S.E.2d 66 (1982)....... 34
State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986).......... 25
State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967)...... passim
N.C. Gen. Stat. § 7A-27(b)..................................... 3
N.C. Gen. Stat. § 14-87....................................... 22
N.C. Gen. Stat. § 15A-1443.................................... 33
N.C. Gen. Stat. § 15A-1444..................................... 3
N.C.P.I. Crim § 202.10........................................ 25
N.C. R. App. P. 10............................................ 14
No. COA 09-1422 18 DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA )
v. ) From Guilford County
ERIC RICARDO HANDY, )
I. DID THE TRIAL COURT COMMIT PLAIN ERROR IN
ADMITTING DEFENDANT’S PURPORTED CONFESSION
WHEN THAT PURPORTED CONFESSION WAS NEITHER
VERIFIED BY DEFENDANT NOR A VERBATIM RECORD OF
DEFENDANT’S WORDS AND THUS INADMISSIBLE IN
EVIDENCE AS DEFENDANT’S CONFESSION?
II. DID THE TRIAL COURT ERR BY INSTRUCTING THE
JURY ON THE THEORY OF ACTING IN CONCERT OVER
THE DEFENDANT’S OBJECTION AND ERR BY FAILING
TO GIVE AN INSTRUCTION ON MERE PRESENCE AS
REQUESTED BY DEFENDANT?
III. DID THE TRIAL COURT ERR IN SUSTAINING THE
STATE’S OBJECTION TO TRIAL COUNSEL’S QUESTIONS
TO DEFENDANT REGARDING THREATS HE HAD RECEIVED
FROM THE OTHER KNOWN SUSPECTS?
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STATEMENT OF THE CASE
On 10 December 2007, a Guilford County grand jury indicted
Eric Ricardo Handy with one count of assault with a deadly
weapon with intent to kill inflicting serious injury (07 CRS
100168), one count of possession of a weapon of mass destruction
(07 CRS 10070), and one count of robbery with a dangerous weapon
(07 CRS 100171). (R p. 4; Addendum R pp. 11-12)
Upon a plea of not guilty, Mr. Handy was tried before a
jury during the 23 March 2009 Criminal Session of Guilford
County Superior Court, the Honorable Judge A. Moses Massey,
presiding. (R p. 1) All three charges were joined for trial.
(T pp. 4-5) In case file number 07 CRS 100168, the State
elected to proceed on the lesser charge of assault with a deadly
weapon inflicting serious injury (“AWDWISI”). (T p. 5)
At the conclusion of trial, the jury acquitted Mr. Handy of
possession of a weapon of mass destruction and AWDWISI.
(Addendum R pp. 13-14) The jury convicted Mr. Handy of robbery
with a dangerous weapon. (T pp. 423-24; R p. 34) Mr. Handy
gave notice of appeal in open court. (R p. 41; T p. 436)
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The Clerk of the North Carolina Court of Appeals mailed the
printed record in this matter on 17 November 2009. Defendant
moved this Court to Amend the Record on Appeal by including an
Addendum to the Record on Appeal, which Motion was granted by
this Court on 8 February 2010. Mr. Handy has filed a Second
Motion to Amend the Record contemporaneously with this brief –
requesting a second Addendum to the Record on Appeal – which is
unopposed by the State.1
Defendant sought three extensions of time to file his
brief, which were granted by this Court. This Court ordered
that Defendant’s brief be filed on or before 19 February 2010.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Mr. Handy appeals his convictions following a trial upon
his plea of not guilty. This is an appeal of right pursuant to
N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a).
STATEMENT OF FACTS
A. The Perpetrator was Not Identified
Jesse East and Brandon Brammer were robbed at gunpoint on 6
August 2007 at about 4:00 AM in a Greensboro parking near the
If this Court grants the Second Motion to Amend the
Record, undersigned has included references to documents from
this Second Addendum to Record on Appeal (“Addendum R p.”).
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public library. (T pp. 164, 168, 169, 171; Addendum R p. 7)
Neither Mr. East nor Mr. Brammer could identify the person who
robbed them. (T pp. 170 & 202)
The perpetrator wielded a sawed-off shotgun and wore either
a bandanna that covered most of his face – from the nose down –
or a ski mask that covered his whole head (T pp. 170, 188, &
202) Mr. Brammer’s description of the gunman was limited. He
described him as a young African-American man, about 5’6” to
5’8” tall, with a slim build. (T p. 275) Though Mr. Handy is
about 5’8” or 5’9” – he weighed approximately 230 pounds at the
time of the incident. (T p. 320)
B. The Robbery
Prior to the robbery, Mr. East and Mr. Brammer were at the
parking lot playing video games in the back of a Jeep Cherokee.
(T p. 164 & 167) Mr. East had recently gotten a PlayStation 3;
he and Mr. Brammer parked near the Guilford County Public
Library to pick up the library’s free Wi-Fi. (T pp. 197-78)
A white Honda sedan drove up beside Mr. East and Mr.
Brammer and the front-seat passenger asked for some cigarettes.
(T pp. 168, 199-200, 209-10, & 322) After answering that they
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did not have cigarettes, the passenger asked them for marijuana.
(T pp. 168 & 200) Mr. East later determined that the person
making these requests was the gunman. (T p. 209 & 212)
Mr. East and Mr. Brammer became suspicious and decided to
unplug the video game and go home. (T pp. 168 & 200) After
closing the tailgate, they saw that the white sedan had pulled
in front of the Jeep Cherokee, blocking their exit. (T p. 169)
A man with a shotgun stepped out of the front passenger seat of
the Honda and demanded money. (T pp. 169 & 200) Mr. Brammer
responded that he had no money. (T p. 171) Mr. East gave the
armed man $20.00. (T p. 203)
Mr. Brammer only remembers one person getting out of the
Honda – the man with the shotgun who demanded money. (T pp.
177-78; 182) Mr. East saw a second person exiting the car from
the rear passenger door. (T pp. 200-01) The second man got out
of the car, stood near the man with the shotgun, and then got
back into the car – closing both doors. (T pp. 201-03; 215)
Later on, the police conducted a “show-up” identification and
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Mr. East identified the other person that he saw get out of the
car. He was not Mr. Handy. (T p. 205-06, 217-18, & 264)
C. The Shooting
After the man with the shotgun took $20.00 from Mr. East,
Mr. Brammer began to “talk junk” to the gunman. (T p. 203) Mr.
Brammer opened the door to his Jeep Cherokee as if to retrieve a
weapon. (T pp. 184-85; 214) The gunman first tried to get back
in the Honda, but the doors had been closed and locked. None of
the occupants opened the door for gunman. (T pp. 203 & 215)
The man with the shotgun then turned and fled. (T p. 214)
Mr. Brammer – who was unarmed – pursued the gunman, chasing
him across the street. (T pp. 171-72, 178) The gunman turned
and fired a shot at Mr. Brammer. (T p. 172) Mr. Brammer was
hit with a number of pellets from the shotgun blast and fell to
the ground. (T pp. 172-73)
A police cruiser happened to be driving by just before the
shotgun blast. (T p. 222) Officer Brown stopped his cruiser
when the gun was fired, radioed for assistance, and went to Mr.
Brammer’s aid. (T pp. 223-25) Though officer Brown witnessed
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the shooting, he was not able to identify the gunman. (T p.
240) Mr. East drove up in the Jeep Cherokee and told Officer
Brown about the robbery. (T pp. 204-05 & 226) While the gunman
was running, the white Honda sedan attempted to drive away, but
instead crashed into the Greensboro Library. (T pp. 204 & 225)
D. The Investigation
Soon, additional officers arrived at the scene. Officer
Domotrovits searched the Honda and found that its license plate
had been removed. (T p. 226) She ran the VIN number to
determine the owner of the Honda. (Id.) After searching the
car, police located one .410 shotgun shell. (T p. 229)
Officer Domitrovits identified suspects soon thereafter.
Ashley Williams, an African American woman, approached first.
(T p. 227) Ms. Williams was crying and claimed to have been
robbed. Later, Timonthy Frieson, the registered owner of the
Honda, arrived on foot (T pp. 228 & 253). Finally, police
located Corderoy Jackson, who also walked by the scene. (T pp.
228 & 239) These three individuals provided police with
conflicting versions of what had just taken place. (T p. 229).
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Ms. Williams and Mr. Frieson were taken into custody for further
questioning. (Id.) About a month later, Mr. Jackson was
questioned by Det. Jones. (T p. 285) After talking with Mr.
Jackson, Det. Jones learned that Mr. Handy was also present that
night. (T p. 285)
A resident of Elwood Avenue near the library called the
police after hearing the gun shot. (T p. 230). Officer Brown
spoke with the resident, who informed him that he saw where the
gunman ran. (T p. 230) With that information, officers searched
the area and located the shotgun lying in the grass in the
backyard. (T p. 230) A CSI Investigator retrieved the weapon,
opened the breach, and a spent shotgun shell popped out of the
gun. (T p. 232) The weapon still had the smell of gunpowder,
indicating that it had recently been fired. (T p. 233)
Investigator Leonard confirmed that the shotgun’s barrel was
about 15 and one quarter inches and that the total length of the
shotgun was approximately 23 inches. (T p. 245) The police did
not attempt to analyze the shotgun or shotgun shells for
fingerprints. (T pp. 246-47)
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Fingerprint analysis was performed, however, on the white
Honda sedan. (T p. 281; Addendum R p. 9) Twenty-seven prints
were identified as Mr. Frieson’s – the owner of the car. These
prints were located in and on various parts of the car,
including the exterior driver’s window, exterior rear window
passenger side, the rear passenger door, and the hood. (T pp.
282-83) Seven prints from Mr. Jackson were located, on the
exterior front passenger window, rear quarter panel on the
passenger’s side, on the hood and on the trunk. There was one
print on the exterior front passenger window belonging to Mr.
Tisdale. (T p. 283) Only two prints belonging to Mr. Handy
were located. One on the rear passenger door and one on the
hood. (T p. 283) Both Mr. East and Mr. Brammer testified that
the shooter emerged from the front passenger side of the Honda.2
The fingerprint analysis was not complete until January 2009 and
did not inform the police investigation into Mr. Handy’s alleged
involvement. (T p. 284; Addendum R p. 12)
Even though Mr. Handy’s prints were only found on the
rear passenger door and hood, the prosecutor nevertheless argued
to the jury that Mr. Handy’s prints were found on the front
passenger door – the door from which the gunman emerged from the
Honda. (T pp. 386, 389, 394, 397)
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E. Arrest and Interrogation of Mr. Handy
Based on the information received from Mr. Jackson, Det.
Jones went to Mr. Handy’s residence. (T p. 286) Mr. Handy was
taken into custody and interrogated. (T p. 287; R p. 12-13)
Det. Jones testified that he had probable cause to arrest Mr.
Handy based on information received from Mr. Jackson – making
known to the jury that at least one of the other suspects
implicated Mr. Handy in the crime. (T p. 287)
Over Defendant’s objection, Det. Jones read what amounted
to a purported confession by Mr. Handy. Det. Jones testified
from his notes of the interrogation. (T pp. 293-95)(App. 1)
According to Det. Jones, Mr. Handy confessed to wielding the
shotgun, participating in the robbery with Mr. Jackson, and
shooting Mr. Brammer. (Id.)
These inculpatory statements were reduced to writing by
Det. Jones in his notes and later typed, but were never read to
Mr. Handy, were not signed by Mr. Handy, and were not in some
other manner verified by Mr. Handy. (T pp. 292, 295-96, 298-99,
& 304-06) Det. Jones acknowledged that his “contemporaneous”
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note-taking was not a complete transcription of the interview.
(T p. 298) He was not taking a “formal statement”; he was
“just” taking notes. (T p. 292)
Immediately after this interrogation, Det. Jones asked Mr.
Handy to make a written statement. Unlike the purported
confession read by Det. Jones, Mr. Handy wrote in his signed
statement that he witnessed the crimes, but was not a
Whent [sic] to the guys and then they went in S
[sic] pockets and then we went back to the car
and the dude came by the car everybody rain [sic]
they are family so they are sticking together the
[sic] also say I shoot the gun that time I wish
that I was not riding with them that night
because my mind was not on that tipe [sic] of
(T pp. 297, 303)(State’s Ex. 2, Addendum R p. 8) Mr. Handy did
not admit to any involvement in the armed robbery or other
crimes charged. Because Det. Jones confronted Mr. Handy with
what Mr. Jackson and the other suspects said about Mr. Handy’s
alleged involvement, Mr. Handy responded to those allegations in
his statement. (T pp. 291, 332-33)
Det. Jones had no answer as to why he did not confront Mr.
Handy with the differences between the purported confession and
Mr. Handy’s handwritten statement. (T pp. 304-05)
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E. The Trial
The linchpin of the State’s case against Mr. Handy was his
purported confession. The other evidence – provided through the
testimony of Mr. East, Mr. Brammer, and law enforcement – proved
only that (1) a robbery and AWDWISI occurred; (2) a shotgun
meeting the statutory definition of a weapon of mass destruction
was used; and (3) Mr. Handy was present when the robbery
Mr. Handy testified in his defense. (T pp. 316-49) He
denied any advance knowledge of or participation in any of the
crimes charged. (T pp. 327-28) Corey Jackson, a casual
acquaintance, offered Eric Handy a ride. (T p. 318-19) The car
drove to the Food Lion parking lot. Mr. Handy heard Mr. Jackson
ask the guys in the Jeep Cherokee for cigarettes. (T pp. 322-
23) When Mr. Jackson and his cousin got out of the Honda, Mr.
Handy did not know that they were armed. (T pp. 323-24) He did
not see for certain what was happening until he got out of the
Honda. (T p. 325) When saw that Corey Jackson and his cousin
were committing a robbery, Mr. Handy first ran back to the
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Honda, and then fled the scene. (T pp. 326-27) He denied that
he made any confession to Det. Jones. (T p. 333)
After Mr. Handy testified, the State offered testimony from
Det. Jones in rebuttal. Det. Jones disputed Mr. Handy’s
estimate of Corey Jackson’s height – though Det. Jones was
himself estimating Mr. Jackson’s height. (T p. 350-51) The
State did not offer testimony from Mr. East or Mr. Brammer in
rebuttal, indicating that they could not identify Mr. Handy’s
voice as being the same as the gunman’s. (T p. 371)
I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING
DEFENDANT’S PURPORTED CONFESSION WHEN THAT PURPORTED
CONFESSION WAS NEITHER VERIFIED BY DEFENDANT NOR A VERBATIM
RECORD OF DEFENDANT’S WORDS AND THUS INADMISSIBLE IN
EVIDENCE AS DEFENDANT’S CONFESSION
Assignment No. 24
Addendum R p. 2
The purported confession, which was read to the jury from
notes taken by Det. Jones, was inadmissible. The incriminating
statements were not a verbatim record of the questions asked or
answers given and were not in any way verified by Mr. Handy.
State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967); State v.
Spencer, 192 N.C. App. 143, 152-53, 664 S.E.2d 601, 607-08
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(2008); State v. Bartlett, 121 N.C. App. 521, 466 S.E.2d 302
Prejudice is manifest. Based on the testimony of Det.
Jones, the State argued that Mr. Handy “admitted shooting
Brandon Brammer and robbing Jesse East.” (T pp. 382-83)
Without the purported confession, there was no evidence of Mr.
Handy’s guilt. Without the purported confession, there was no
basis for including the acting in concert instruction. Without
the acting in concert instruction, there would have been no
basis for the jury to convict.
Take away this evidence, and the State’s case established
only that Mr. Handy was present when the robbery occurred. Mere
presence, however, is insufficient to prove criminal liability.
State v. Johnson, 310 N.C. 574, 313 S.E.2d 560 (1984).
B. Standard of Review
Though Mr. Handy objected to the admission of his purported
confession, he objected on different grounds than raised by this
argument on appeal. (R pp. 6-10; T pp. 293 & 297); N.C. R. App.
P. 10(b)(1). Thus, review is under plain error analysis. N.C.
R. App. P. 10(b)(4).
A plain error is an error “so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
This rule has also been followed in at least one
recent unpublished opinion. See State v. McDowell, No. COA05-
424, 179 N.C. App. 436, 634 S.E.2d 272, slip op. at p. *10
(2006) (unpublished) (App. 4)
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reaching a different verdict than it otherwise would have
reached.” State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899,
908 (2002) (citations and quotation marks omitted); see also
Spencer, 192 N.C. App. at 154, 664 S.E.2d at 608 (finding plain
error for wrongful admission of defendant’s unverified,
C. Mr. Handy’s Purported Confession Was Inadmissible
The State should not have been allowed to introduce Mr.
Handy’s purported confession. (T pp. 293-95) North Carolina
law prohibits the admission of a defendant’s purported
confession if it is “reduced to writing by another person” and
the defendant has not “indicated his acquiescence in the
correctness of the writing[.]” Walker, 269 N.C. at 139, 152
S.E.2d at 137. If the purported confession is not
read by or to [the] accused, and is not
signed by [the] accused, or in some other
manner approved, or its correctness
acknowledged, the instrument is not legally,
or per se, the confession of [the] accused;
and it is not admissible in evidence as the
written confession of [the] accused.
Spencer, 192 N.C. App. at 152-53, 664 S.E.2d at 607-08 (quoting
Walker, 269 N.C. at 139, 152 S.E.2d at 137 (citation and
quotation marks omitted). Reading the purported confession
aloud to the jury has “the same prejudicial force and impact as
if such statement [is] identified and received in evidence as an
exhibit.” Walker, supra.
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The incriminating statements introduced at trial were
reduced to writing by Det. Jones and were not verified by Mr.
Handy in any manner. (T pp. 292-306) Thus, these statements
were not “legally” the confession of Mr. Handy and were not
admissible as his confession. Walker, 269 N.C. at 139, 152
S.E.2d at 137.
The facts in Mr. Handy’s case are indistinguishable from
those in Spencer, in which this Court found plain error for the
admission of defendant’s purported confession. Id., 192 N.C.
App. at 154, 664 S.E.2d at 608. The only evidence of Mr.
Handy’s purported confession was notes jotted down and later
typed by Det. Jones. (T pp. 292 & 298) Likewise, in Spencer,
the only evidence of defendant’s statements was the policeman’s
“rough hand-written notes.” Spencer, 192 N.C. App. at 153, 664
S.E.2d at 608. As in Spencer, Det. Jones did not follow up with
Mr. Handy “to have [him] look over and confirm his notes as an
accurate representation of Defendant’s answers.” Id. Finally,
just like the accused in Spencer, Mr. Handy “never returned to
give his approval or...‘his acquiescence in the correctness of
the writing itself.’” Id. (quoting Walker, 269 N.C. at 139, 152
S.E.2d at 137).
The exception to the rule from Walker does not apply here.
If the purported confession is a “verbatim record of the
questions asked and the answers given by” the accused, then the
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statement is admissible even though the defendant fails to
verify its correctness. Bartlett, 121 N.C. App. at 522, 466
S.E.2d at 303. The notes made by Det. Jones, however, were not
a verbatim record of all questions asked and all answers given
by Mr. Handy. (T pp. 298-99)
Det. Jones testified that he was not “making a formal
written statement” during the interrogation, but rather “just”
taking notes. (T p. 292) Det. Jones verified that his notes
were not “as complete as [a transcription].” (T p. 298) Nor
did he make an audio or video recording of the interrogation
from which he could have produced a verbatim record of all
questions asked and all answers given. (T pp. 299-302) Det.
Jones did not testify that he wrote down the questions he asked
Mr. Handy and he “never testified that his handwritten notes
were an exact reflection of the answers given by the defendant.”
Bartlett, 121 N.C. App. at 522, 466 S.E.2d at 303. There is no
basis for applying the “verbatim record” exception in this case.
Nor could Det. Jones’ recitation of the purported
confession be admissible to corroborate any other testimony
introduced at trial. Walker, 269 N.C. at 138, 152 S.E.2d at
140. Mr. Handy’s handwritten statement – made at the same time
as the purported confession – contradicts the statements that
Det. Jones attributes to Mr. Handy in the purported confession.
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Id. (noting that Mr. Walker’s purported confession was not
corroborated by another testifying police officer).
Under Walker and its progeny, Mr. Handy’s handwritten,
signed statement is the only valid evidence of what admissions
he made to law enforcement. Walker, 269 N.C. at 139, 152 S.E.2d
at 137. Considering the context of the interrogation – in which
Det. Jones confronted Mr. Handy with accusations made by others
who were present that night – his statement is understandable as
a denial of any wrongdoing. (T pp. 291-92; 307)
Det. Jones’ failure to confront Mr. Handy with the obvious
differences between the signed statement and the purported
confession further supports its exclusion. (T pp. 304-06)
Having waived his constitutional protections and agreed to talk
with Det. Jones without a lawyer, Mr. Handy is entitled to the
reasonable protections afforded defendants in Walker. (T pp.
288-91) It is particularly unfair to allow such testimony when
the purported confession is contradicted by the accused’s
contemporaneous handwritten statement. Walker, supra.
D. Mr. Handy was Prejudiced by the Admission of the
“Where a confession is erroneously admitted into evidence,
‘no one can say what weight and credibility the jury gave the
confession.’” Bartlett, 121 N.C. App. at 523, 466 S.E.2d at 303
(quoting State v. Blackmon, 280 N.C. 42, 50, 185 S.E.2d 123, 128
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(1971)). Absent “other evidence ‘just as weighty,’ the
improperly admitted confession is prejudicial error and requires
a new trial.” Id. (quoting State v. Edgerton, 86 N.C. App. 329,
335, 357 S.E.2d 399, 404 (1987), rev'd on other grounds, 328
N.C. 319, 401 S.E.2d 351 (1991)).
Mr. Handy’s purported confession was the keystone of the
State’s case. The central theme of the prosecutor’s closing
argument was that the jury should believe Det. Jones and his
testimony about the purported confession and reject Mr. Handy’s
testimony denying that he made the incriminating statements to
the police. (T pp. 382-98)
Remove the purported confession from evidence and there is
no other evidence – “weighty” or otherwise – to support a
conviction. Bartlett, 121 N.C. App. at 523, 466 S.E.2d at 303.
The few fingerprints found on the Honda sedan confirm what Mr.
Handy himself admitted – that he was a passenger in that car and
a witness to the crime. (T pp. 318-19, 323) Neither Mr.
Brammer nor Mr. East identified Mr. Handy as one of the
participants. (T pp. 170 & 202) Nor were they certain about
how many people were originally in the Honda. (T p. 181 & 199)
While Mr. Brammer and Mr. East testified that Mr. Handy’s size
was consistent with the gunman, they also testified that the
gunman had a slim build; Mr. Handy weighed about 230 pounds at
- 20 -
the time of the crime – far from a slim build for someone who is
5’9” tall. (T pp. 275 & 320)
The purported confession had an additional prejudicial
effect on the outcome of Mr. Handy’s trial. As set forth below,
the purported confession provided the sole basis for the trial
court’s acting in concert instruction4 - which in turn provided
the sole basis for the jury’s verdict of guilty of robbery with
a dangerous weapon.
The only support offered by the State for the acting in
concert instruction was from the purported confession. Mr.
Handy allegedly told Det. Jones that Corey Jackson took the
$20.00 and Mr. Handy did not receive anything from the robbery.
(T p. 360) When the State requested the acting in concert
instruction, trial counsel for Mr. Handy objected, saying “I
can’t imagine [the State] arguing anything other than that Mr.
Handy was the one with the shotgun.” (T pp. 359-60) The State
the reason I’m asking [for the instruction], Your
Honor, is that...Mr. Handy stated that...he
didn’t take the money. That there was some – in
his oral statement to Detective Jones that he
didn’t get any money; therefore, if Mr. Jackson
or Mr. Frieson got the money...then they’re
acting in concert and that completes all the
elements of armed robbery. I’m certainly going to
argue that Mr. Handy had the shotgun.
In Section II, infra, Mr. Handy demonstrates that the
acting in concert instruction was error for independent reasons.
- 21 -
(T p. 360)
But for Mr. Handy’s purported confession, there was no
basis for the acting in concert instruction. (Id.) The
allegation that someone other than the gunman received the
$20.00 actually contradicts the accounts given by the State’s
two eyewitnesses to the robbery, Mr. Brammer and Mr. East. They
testified that Jesse East handed the $20.00 directly to the
gunman. They did not testify that anyone went through their
pockets or that the money was handed to anyone else. (T pp. 171
The jury’s verdicts reveal that the acting in concert
instruction provided the sole basis for convicting Mr. Handy of
robbery with a dangerous weapon. (T pp. 423-24) By acquitting
Mr. Handy of AWDWISI and possession of a weapon of mass
destruction, the jury rejected the State’s theory that Mr. Handy
was the person with the shotgun and the person who shot Mr.
Brammer. (R p. 4; Addendum R pp. 11-12) None of the other
elements of those offenses was contested; Mr. Handy did not
dispute that the shotgun was a weapon of mass destruction, that
Mr. Brammer was assaulted with a deadly weapon, and that he
received a serious injury.5 (T pp. 245, 368-82) After the
Though trial counsel asked the trial court during the
charge conference to include a lesser included instruction on
the assault charge, the trial court rightfully rejected that
request. See, e.g., State v. Alexander, 337 N.C. 182, 189, 446
- 22 -
verdict, the State conceded that the jury “obviously didn’t
believe that the defendant had the weapon in his possession.”
(T pp. 431-32) Thus, without the acting in concert instruction,
the jury could not have found an essential element of the crime
of robbery with a firearm. N.C. Gen. Stat. § 14-87 (2009) (the
robbery must be by possession, use, or threatened use of a
The other evidence – even including Mr. Handy’s handwritten
statement – would not support a conviction for robbery with a
dangerous weapon. (State’s Ex. 2, Addendum R p. 8)(T pp. 297,
303) In his signed statement, Mr. Handy wrote that “they” went
through pockets, not that he did. (Id.) Mr. Handy’s
handwritten statement – admittedly not a model of clarity – is a
denial, not a confession.
Evidence of Mr. Handy’s presence at the scene of the armed
robbery – while not itself exculpatory - does not support a
finding of guilt beyond surmise or conjecture.
While the facts and circumstances in respect to
this defendant…are consistent with his guilt,
they are likewise consistent with his innocence.
S.E.2d 83, 87-88 (1994) (holding that evidence of shards of
glass in the arm and shoulder of a drive-by shooting victim,
coupled with officer’s testimony that victim was shaken, was
sufficient to prove “serious injury”). Trial counsel did not
make that argument to the jury or attempt to present evidence
that the injury was anything less than serious. It would have
been proper for the trial court to give a peremptory instruction
that the injury was serious. State v. Pettiford, 60 N.C. App.
92, 98, 298 S.E.2d 389, 392 (1982).
- 23 -
And the guilt of a person charged with the
commission of a crime is not to be inferred
merely from facts consistent with his guilt. Nor
may the enforcement of the criminal law be made
to rest upon surmise or conjecture.
State v. Ham, 238 N.C. 94, 98, 76 S.E.2d 346, 349 (1953)(holding
that State’s evidence proved only that defendant was present and
thus, that motion to dismiss should have been granted). Without
the purported confession, the State’s evidence did not rise
above surmise or conjecture.
Without the purported confession, the jury would have
reached a different verdict. Mr. Handy has demonstrated plain
error for the admission of his purported confession and is
entitled to a new trial in which the purported confession is
excluded from evidence.
II. THE TRIAL COURT ERRED IN GIVING THE JURY AN INSTRUCTION ON
ACTING IN CONCERT OVER THE DEFENDANT’S OBJECTION AND ERRED
IN DENYING DEFENDANT’S REQUEST FOR AN INSTRUCTION ON MERE
Assignments No. 5, 6, 8, 9, & 22
R pp. 54-55 & Addendum R p. 1.
The trial court erred by instructing the jury on acting in
concert for two different reasons. (T pp. 359-62; 413) First,
even in light most favorable to the State, there was not the
requisite “substantial evidence” to support the instruction.
State v. Mitchell, 24 N.C. App. 484, 486, 211 S.E.2d 645, 647
- 24 -
(1975). What little evidence did exist to support the
instruction was contradicted by the State’s key eye-witnesses
and disputed by Mr. Handy. In the alternative, the acting in
concert instruction – as given – allowed the jury to convict on
an abstract theory of guilt not supported by the evidence.
State v. Smith, 65 N.C. App. 770, 773, 310 S.E.2d 115, 117
(1984). Compounding these errors, the trial court refused to
give the requested “mere presence” instruction.
B. Standard of Review
Mr. Handy preserved this issue for review by objecting to
the State’s request for the acting in concert instruction. (T
pp. 359-60) Giving an instruction that is either (1) not
supported by the evidence, State v. Brown, 312 N.C. 237,248, 321
S.E.2d 856, 863 (1984), or (2) that allows conviction based on a
theory of guilt different from that presented to the jury,
Smith, 65 N.C. App. at 773, 31 S.E.2d at 117, is an error of
law. Errors of law are reviewed de novo. See, e.g., State v.
Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004).
Even if he had not preserved this error for appellate
review, it is plain error to instruct a jury on a theory of
criminal liability that is not supported by the evidence. State
v. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422 (1986).
It would be difficult to say that permitting a
jury to convict a defendant on a theory not
legally available to the State because it is not
- 25 -
. . . supported by the evidence is not plain
error even under the stringent test required to
invoke that doctrine.
Id. at 540, 346 S.E.2d at 422.
C. The State did not Present Substantial Evidence in
Support of the Acting in Concert Instruction
Substantial evidence of a common purpose or plan is
required for the acting in concert doctrine to be submitted to
the jury. Mitchell, 24 N.C. App. at 486, 211 S.E.2d at 647.
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion” that such
a common plan or purpose existed. State v. Lucas, 353 N.C. 568,
580-81, 548 S.E.2d 712, 721 (2001), overruled in part on other
grounds State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005); see
also N.C.P.I. Crim § 202.10 (acting in concert instruction
intended “for use in a case in which it is clear that the
defendant was an actual participant in the crime”).
The State must put forth evidence that the defendant “is
present with another,” has “a common purpose,” and “does some
act which forms a part of the offense charged” for there to be
substantial evidence of acting in concert. Mitchell, 24 N.C.
App. at 486, 211 S.E.2d at 647. To determine if this threshold
is met, the evidence is viewed in the light most favorable to
the State. Lucas, 353 N.C. at 581, 548 S.E.2d at 721.
- 26 -
The factual basis for the acting in concert instruction in
Mr. Handy’s case was far from substantial. The State’s key
eyewitnesses testified that nobody went through their pockets.
(T pp. 171 & 212) After the gunman made a demand for money, Mr.
East handed the gunman $20.00 – he did not hand the money to
anyone else. (T p. 203) Even if properly admitted, the factual
basis for the acting in concert instruction from the purported
confession contradicts the State’s other evidence.
Moreover, when the gunman tried to leave the scene, the
Honda was locked and nobody let the gunman back into the car.
(T pp. 203 & 215) This evidence cuts against any inference that
any of the other occupants were participating in the robbery,
sharing in its proceeds, or standing by to offer assistance.
See, e.g. State v. Robinette, 33 N.C. App. 42, 47, 234 S.E.2d
28, 31 (1977) (holding that it was reversible error to give an
acting in concert instruction when “all of the evidence
discloses that during the entire time the crimes were being
committed by others, defendant remained in the automobile”).
Instead, the gunman fled on foot, unassisted by anyone in the
Honda. (T p. 214)
- 27 -
Even in the light most favorable to the State, there is not
the requisite “substantial” evidence to give the acting in
concert instruction. Mitchell, supra.
D. The Acting in Concert Instruction – as given – lead to
Conviction on an Abstract Theory of Guilt that was
Unsupported by the Evidence
The State’s sole theory at trial was that Mr. Handy was the
gunman. (T pp. 360-61; 382-98) The State requested the acting
in concert instruction in the event that the jury believed that
a person other than the gunman took the $20.00 from Mr. East
during the course of the robbery. (T p. 360) But the
instruction given allowed the jury to convict Mr. Handy on a
totally different theory – that he was one of the passengers in
the Honda who played some unspecified role in the robbery. This
abstract theory of guilt was not supported by the evidence and
not advanced by either party at trial. (T p. 413; R pp. 19-20,
28) Yet – as the State conceded – that is the theory on which
the jury convicted Mr. Handy. (T pp. 431-32)
Assuming - in the alternative- that there was a valid basis
for the acting in concert instruction – it should have been
given in a manner that limited the instruction to the evidence.
The trial court should have inserted the acting in concert
language in the relevant portion of the robbery with a firearm
- 28 -
If you find from the evidence beyond a reasonable
doubt that on or about the alleged date, the
defendant had in his possession a firearm, and,
either by himself or acting together with other
persons took and carried away property from the
Compare T p. 413; R p. 20 (pattern instruction as given by the
trial court). The above modification – if followed for the
entire instruction – fits the basis offered by the State. The
jury must find that the defendant had the firearm, but if
someone else, acting in concert, took the $20.00, the conviction
It is prejudicial error for the trial court to allow a jury
to convict upon some abstract theory of guilt not supported by
the evidence. See, e.g., Smith, 65 N.C. App. at 773, 31 S.E.2d
at 117 (“a defendant may not be convicted of an offense on a
theory of his guilt different from that presented to the jury.”)
(citing State v. Cox, 303 N.C. 75, 86, 277 S.E.2d 376, 383
(1981)); State v. Brown, 80 N.C. App. 307, 311, 342 S.E.2d 42,
44 (1986) (instruction on aiding and abetting erroneously
allowed jury to convict on theory unsupported by the evidence).
The jury's verdict did not specify which theory formed the
basis for the robbery with a firearm conviction. When the trial
court has instructed the jury on alternative theories of guilt –
Mr. Handy does not – by this argument – concede that
the purported confession was admissible. This argument is
offered instead in the alternative, in the event that the
purported confession is deemed admissible.
- 29 -
one of which was submitted in error – and it is unknown which
theory the jury relied on, this Court may not assume that the
verdict is based on a properly instructed theory; this Court
must resolve the ambiguity in favor of the defendant. See,
e.g., State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326
E. The Trial Court Erred by Failing to Instruct on “Mere
The trial court compounded its error by refusing to give
the cautionary “mere presence” instruction. (T pp. 360-61) The
trial judge is required to declare and explain the law arising
on the evidence relating to each substantial feature of the
case. See, e.g., State v. Blue, 356 N.C. 79, 85, 565 S.E.2d
133, 137 (2002). Though mere presence is not included in the
acting in concert pattern instruction, it is a correct statement
of law and supported by the record. Ham, 238 N.C. at 98, 76
S.E.2d at 349. When correct and supported by the evidence,
requested instructions should be given, at least in substance.
State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956).
If the defendant’s participation in the crime is disputed
by competent evidence or there is evidence that defendant was
merely present, failing to give a mere presence instruction can
constitute reversible error. See, e.g. State v. Cheek, 351 N.C.
48, 520 S.E.2d 545 (1999) (holding that it is not error to fail
- 30 -
to give the instruction “where there was undisputed evidence
that the [defendant] actively participated in the” crime); State
v. Bonnett, 348 N.C. 417, 440, 502 S.E.2d 563, 579 (1998) (trial
court correctly did not instruct on mere presence where evidence
overwhelmingly showed defendant was an active participant in the
crimes); State v. Harvell, 334 N.C. 356, 432 S.E.2d 125 (1993)
(no error in failing to give mere presence instruction because
“[n]o evidence tended to show that the defendant...was merely
present at the scene of the killing”) (emphasis supplied).
In contrast to the cases cited above, evidence of acting in
concert here was slight. There was evidence to support the
conclusion that Mr. Handy was merely a bystander. (T p. 327-28;
Addendum R p. 8) The trial court thus had an obligation to give
the requested mere presence instruction. See, e.g. State v.
Aycoth, 272 N.C. 48, 51, 157 S.E.2d 655, 657 (1967).
Prejudice from the trial court’s failure to give the
requested instruction cannot be cured by its decision to allow
trial counsel to argue mere presence to the jury. (T p. 362) A
jury must take its instructions on the law from the court, not
from counsel. “[A]rguments of counsel cannot substitute for
instructions by the court.” Carter v. Kentucky, 450 U.S. 288,
304 (1981); State v. Spruill, 338 N.C. 612, 654, 452 S.E.2d 279,
302 (1994). The trial court’s failure to instruct on the law of
- 31 -
mere presence could not be cured by any potential closing
argument of counsel.
F. Mr. Handy was Prejudiced by the Instruction
As previously argued, the jury would have had no basis to
convict without the acting in concert instruction. Thus, Mr.
Handy was prejudiced by the erroneous instruction. See
Defendant-Appellant’s Brief, supra, Section I.D.
Moreover, the acting in concert instruction – at least
ostensibly – saves what would otherwise be logically
inconsistent and legally contradictory verdicts. State v.
Mumford, COA No. 09-300 (January 5, 2010).
In Mumford, this Court held that “when a jury convicts of
the greater charge and acquits on the lesser charge, then a
logically inconsistent and legally contradictory verdict
results.” COA No. 09-300, slip op. at p. 18. Though neither
AWDWISI nor possession of a weapon of mass destruction is a
lesser included offenses of robbery with a firearm, all three
charges contain a common element – the possession of a “sawed
off shotgun.” (R p. 4; Addendum R pp. 11-12) It is evident
from this record that the jury rejected the possession of the
shotgun element from the two lesser charges.
Under the logic of Mumford, Mr. Handy’s resulting verdicts
would be impermissibly inconsistent and contradictory – but for
the erroneous acting in concert instruction. There would have
- 32 -
been no basis for the conviction and the apparent inconsistency
could not have been “explained by an examination of the record
as a whole.” State v. Davis, 214 N.C. 787, 793-94, 1 S.E.2d
104, 108 (1938).
The acting in concert instruction – and the failure to give
the mere presence instruction – constitutes prejudicial error,
and Mr. Handy’s conviction should be reversed.
III. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S OBJECTION
TO TRIAL COUNSEL’S QUESTIONS TO DEFENDANT REGARDING THREATS
HE HAD RECEIVED FROM THE OTHER KNOWN SUSPECTS
Assignment No. 13
R p. 56
While exercising his constitutional right to testify in his
own defense, Mr. Handy attempted to explain how he had received
threats from the other suspects. (T pp. 336-39) The State
objected to this line of questioning and the trial court
sustained the objection – allowing Mr. Handy only to say that he
did not tell law enforcement who committed the crimes because he
“didn’t want his family in danger.” (Id.) The trial court’s
ruling unduly limited Mr. Handy’s constitutional right to mount
a complete defense and constitutes reversible error.
B. Standard of Review
Under the Sixth and Fourteenth Amendments of the United
States Constitution, a criminal defendant has the right “‘to
- 33 -
present a complete defense,’” including the right to present
testimony about the circumstances of his purported confession.
Crane v. Kentucky, 476 U.S. 683, 689-91 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)). When an
error is based on a constitutional right, the trial court’s
ruling is a question of law and is reviewed de novo. State v.
Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 597 (1988). When an
evidentiary error is of a Constitutional dimension, the error is
prejudicial unless the State can prove that it was harmless
beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443 (2009).
C. Mr. Handy was Prejudiced by the Exclusion of Competent
Evidence that Explained his Statement to Police and
Challenged the Credibility of his Accuser
During his testimony, Mr. Handy attempted to explain that
other suspects in this crime had threatened him and his family
between the time of the robbery and when Det. Jones interrogated
him. (T pp. 336-39) This evidence was not impermissible
hearsay because it was not offered to prove that he was
threatened (i.e., the matter asserted), but to explain his state
of mind during the interrogation. State v. Stoner, 59 N.C. App.
656, 659, 298 S.E.2d 66, 68 (1982) (holding that it was
reversible, prejudicial error to prohibit defendant’s testimony
that supported his defense).
The State introduced evidence that one of the other
suspects had implicated Mr. Handy in the crime. (T p. 285, 287)
- 34 -
Det. Jones testified that after speaking to Mr. Jackson, he had
probable cause to arrest Mr. Handy. (T p. 287) This testimony
was tantamount to telling the jury that Mr. Jackson accused Eric
Handy of being involved in these crimes. Thus, Mr. Handy should
have been allowed to put on evidence that would cast doubt on
the reliability of Mr. Jackson’s allegation. State v. Hart, 239
N.C. 709, 710, 80 S.E.2d 901, 902 (1954) (“any evidence is
competent which tends to show the feeling or bias of a witness
in respect to the party or the cause”) (internal quotations and
citations omitted); State v. Hester, 330 N.C. 547, 553, 411
S.E.2d 610, 613 (1992) (holding that it was error to uphold the
State’s objection to questions that were central to defendant’s
Before interrogating Mr. Handy, Det. Jones went over his
investigation of the crime. (T pp. 291-92; 307) Mr. Handy
recalled Det. Jones telling him that the other suspects named
him as the gunman and showing Mr. Handy their statements. (T
pp. 332-33) Thus, Mr. Handy had every reason to believe that
whatever statement he made would be shown to the other suspects.
Mr. Handy’s proffered testimony about receiving threats
from the other suspects was relevant to explain why Mr. Handy
was reluctant to name one of the other suspects as the gunman.
This testimony would have precluded – or at least blunted – the
State’s closing arguments with regard to Mr. Handy’s handwritten
- 35 -
statement. (T pp. 389-90) Instead, the State was able to argue
to the jury that Mr. Handy’s reluctance to explicitly state what
happened is further evidence that Mr. Handy should not be
believed. Hart, supra.
Because the trial court’s ruling limited Mr. Handy’s
ability to mount a complete defense and to explain the
circumstances surrounding his written statement, his conviction
should be reversed.
For the foregoing reasons, Mr. Handy respectfully requests
that the judgment below be vacated.
Respectfully submitted, this the 19th day of February 2010.
/S/ David L. Neal
David L. Neal
N.C. Bar No. 27992
Attorney for Defendant-Appellant
Post Office Box 968
Hillsborough, NC 27278
- 36 -
CERTIFICATE OF SERVICE AND FILING
I hereby certify that Defendant-Appellant’s Brief and Appeal
Information Statement has been filed by electronic filing to the
North Carolina Court of Appeals pursuant to N.C. R. App. P.
I further certify that a copy of the above and foregoing has
been served on the State by electronic mail, addressed to:
Jason T. Campbell
Assistant Attorney General
North Carolina Department of Transportation
Attorney General’s Office
1500 Mail Service Center
Raleigh, NC 27699-1505
This the 19th day of February, 2010.
/s/ David L. Neal
David L. Neal
Attorney for Eric Handy
- 37 -
No. COA 09-1422 18 DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA )
v. ) From Guilford County
ERIC RICARDO HANDY, )
* * * * * * * * * * * * * * * * *
APPENDIX TO DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * * *
Excerpt from Det. Jones’ Testimony (T pp. 293-95)
State v. McDowell, No. COA05-424, 179 N.C. App.
436, 634 S.E.2d 272, slip op. (2006)
(unpublished) App. -4-
App. - 1 -
Excerpt from Transcript, pp. 293-95
Direct Examination of Det. Jones
[T p. 293]
Q. You took some notes as to his statement
to you. What did you - what did he tell
you happened in the early morning hours
of August 6th, 2007?
MR. LLOYD: Well, object for the record,
Your Honor, on grounds previously
raised. Do not ask to be heard.
THE COURT: Yes, sir. Objection noted.
Objection overruled, Counsel. You may
proceed to answer the question, sir.
A. Uh, basically told me that they,
referring to Tim, Corey and Ashley, the
female, picked them up from South-Elm
Eugene Street that night.
Q. All right. And where did they go after
they picked him up off South Elm-Eugene
A. He said they went straight there,
referring I’m assuming as to the
Q. To Coliseum and Florida Street?
A. That’s correct.
Q. What did he tell you happened when they
got to Coliseum and Florida?
A. Told me when they pulled onto the lot
of the library there was a Jeep being -
a white Jeep on the parking lot.
Q. Did he say there were any other
A. There were no other vehicles present at
Q. So, what happened next? Or what did he
[T p. 294]
A. He told me that they got out of the car
and went over to take their money or
Q. All right. What happened next did he
App. - 2 -
A. He told me that he may have asked them
if they had anything.
Q. What happened next according to Mr.
A. According to Mr. Handy, Tim said give
me your money and Corey said give my
cousin the money.
Q. All right. What happened after that? Or
what did Mr. Handy tell you happened
A. He said to him it appeared that Corey
was going through the guy’s pockets. I
then asked if he had the shotgun.
Q. What did Mr. Handy tell you about the
A. Mr. Handy said, yes, he had the shotgun
but he did not get any money.
Q. Did he tell you who was standing there
with the subjects?
A. Said all three of them were standing
Q. He and Mr. Frieson and Mr. Jackson?
Q. What did he tell you happened after he
was standing there with the shotgun?
A. Well, I then asked him about the
[T p. 295]
occurred after that. I noticed that Mr.
Handy became nervous at that point in
Q. Now, when you said became nervous, what
do you mean by that?
A. His demeanor seemed to change. I think
he realized the seriousness of the
situation more. So, being a shooting
was involved and it just seemed though
he became even more nervous at that
point in time.
Q. All right. So, you asked him about the
shooting. What did he tell you about
A. He stated— Well, I asked him if he
became scared or nervous when the guy
started chasing him and he stated yes.
I asked him how many times he shot the
App. - 3 -
gun at the guy. He stated, “I just shot
Q. All right. What did he tell you he did
after he shot the gun one time?
A. I asked him what he did after that. He
stated, “I just ran. I’m not sure how I
App. - 4 -
NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL
APPEAR IN A REPORTER TABLE.
Court of Appeals of North Carolina.
STATE of North Carolina
Dena Milline McDOWELL, and Shon Marquet McDowell, Defendants.
Sept. 5, 2006.
*1 Appeal by defendants from judgments entered 12 November 2004 by Judge Julius A. Rousseau in Catawba
County Superior Court. Heard in the Court of Appeals 7 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State as to defendant-
appellant Dena Milline McDowell.
Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State as to defendant-
appellant Shon Marquet McDowell.
Haakon Thorsen, for defendant-appellant Dena Milline McDowell.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall and Douglas L. Hall, for defendant-appellant Shon Marquet
Defendant Dena Milline McDowell (“Ms.McDowell”) appeals her convictions for embezzlement, obtaining
property by false pretenses, and conspiracy to obtain property by false pretenses. Ms. McDowell's husband,
defendant Shon Marquet McDowell (“Mr.McDowell”), appeals his conviction for conspiracy to obtain property by
false pretenses. Defendants argue primarily that the trial court erred in (1) denying a motion for a mistrial following
alleged misconduct by a juror, (2) admitting testimony of the investigating officer regarding out-of-court statements
made by a person interviewed, and (3) admitting lay opinion testimony regarding alteration of a document. We
reject these contentions for the reasons set forth below.
At trial, the State's evidence tended to show the following facts. The Catawba County Department of Social Services
(“DSS”) administered a housing grant program called Temporary Assistance to Needy Families (“TANF”) that
provided short-term help with rent or utilities to eligible families. Families with incomes at or below 200% of the
poverty level, with at least one minor child, and who were experiencing a short-term financial crisis, could apply for
a TANF grant and, if approved, a check was issued to the applicant's landlord or utility provider.
Three TANF grants from April 2002 are involved in this case: a grant of $2,600.00 on behalf of William Harris to
his landlord, Richard Rizk; a grant of $2,400.00 on behalf of Antonio Smith to his landlord, James Rogers; and a
grant of $2,700.00 on behalf of David Strathers to his landlord, Eric Robertson. DSS began an investigation into
these payments when the putative landlords failed to return tax information required by DSS. DSS discovered that
the two checks issued to Mr. Rogers and Mr. Robertson were sent to the same address: a mailbox at a Mailboxes,
Etc. located in Hickory, North Carolina. Upon further investigation, DSS learned that the information on the three
TANF applications was false. In April 2002, Ms. McDowell was employed with DSS as one of two Service Intake
Providers with the TANF program. Ms. McDowell's duties included meeting with TANF applicants, filling out the
paperwork necessary to determine whether they were entitled to a grant, and referring ineligible applicants to other
programs that could provide assistance. Ms. McDowell also had authority to approve TANF grants. The 11 April
App. - 5 -
2002 portions of the intake log identifying which Service Intake Provider saw Mr. Harris, Mr. Smith, and Mr.
Strathers appeared to have been “whited-out,” and Ms. McDowell's name was then written in the space for each.
Further, although the intake log from that day showed that the Service Intake Providers generally alternated seeing
applicants in the order they arrived, Ms. McDowell saw both Mr. Harris and Mr. Smith, even though the two signed
in at the same time. Ms. McDowell also authorized each of the three TANF grants.
*2 Eric Robertson testified that he was a recovering heroin addict who had previously purchased heroin from Mr.
McDowell at his home. According to Mr. Robertson, he had met Ms. McDowell there on a number of occasions,
and she knew him by name. On 11 April 2002, Mr. McDowell drove Mr. Robertson to DSS after they had discussed
a means by which Mr. Robertson could obtain money to pay his rent. Mr. McDowell told Mr. Robertson that he
would need to sign in under a false name, David Strathers, and speak to his wife, Ms. McDowell. After Mr.
McDowell used his cellular phone from the DSS parking lot to call Ms. McDowell, he sent Mr. Robertson into DSS
to sign in as “David Strathers.” Mr. Robertson then waited in the waiting room until Ms. McDowell called him into
her office under the name “David,” even though she knew his real name was Eric Robertson. Ms. McDowell then
had Mr. Robertson provide her with his real social security number and sign some documents. Ms. McDowell told
him that “she would take care of the rest.” When Mr. Robertson reviewed his application at trial, he testified that he
did not supply any of the information contained on that application, all of which was false.
After Mr. Robertson finished meeting with Ms. McDowell, Mr. McDowell was waiting in the parking lot to drive
him home. Several weeks after 11 April 2002, Mr. McDowell brought Mr. Robertson a check from Catawba County
in the amount of $2,700.00. Mr. McDowell took Mr. Robertson to a check cashing store, where Mr. Robertson
cashed the check, gave Mr. McDowell $2,000.00, and used the remaining $700.00 to buy heroin from Mr.
The check made out to Eric Robertson as the purported landlord for the fictitious David Strathers was sent to the
Mailboxes, Etc. mailbox. That mailbox had been rented by Mr. McDowell, and he had listed on his service
agreement that both Mr. Robertson and James Rogers, the purported landlord for Antonio Smith, were authorized
users and could receive mail at that box.
With respect to the check issued to Richard Rizk as the purported landlord of William Harris, Mr. Robertson
testified that he had been introduced to Mr. Rizk by Mr. McDowell, that Mr. Rizk also purchased heroin from Mr.
McDowell, and that Mr. Robertson had purchased heroin from Mr. Rizk. In addition, Officer Lance Foss of the City
of Hickory Police Department determined that Mr. Harris, the supposed tenant of Mr. Rizk, did not reside at the
address listed on his application.
The check issued to James Rogers as landlord for Antonio Smith was ultimately cashed by Jonathan McCluny, who
testified that Mr. Rogers owed him about $400.00, and that Mr. Rogers satisfied this debt by endorsing a TANF
check and turning it over to Mr. McCluny. Mr. McCluny had his girlfriend cash the check, he took $400.00, and he
gave the balance to Mr. Rogers. Mr. Rogers had told him that he was hungry and needed to pay his hotel bill. Mr.
McCluny had seen Mr. Rogers and Mr. McDowell together on several occasions. In addition, Officer Foss
determined that there was no residence at the supposed address for which Mr. Rogers was the purported landlord.
*3 On 12 April 2004, the McDowells were both indicted for conspiracy to obtain property by false pretenses, and
Ms. McDowell was individually indicted for three counts of embezzlement by a public employee and three counts of
obtaining property by false pretenses. The State successfully moved to join the cases against both defendants. As to
Ms. McDowell, the jury returned verdicts of guilty on two counts of embezzlement, one count of obtaining property
by false pretenses, and one count of conspiracy to obtain property by false pretenses. Mr. McDowell was found
guilty of conspiracy to obtain property by false pretenses. The trial court sentenced Ms. McDowell within the
presumptive range to 15 to 18 months imprisonment for the embezzlement conviction to be served concurrently with
two consecutive terms of 6 to 8 months imprisonment for the obtaining property by false pretenses and conspiracy
convictions. The trial court sentenced Mr. McDowell within the presumptive range to a term of 4 to 6 months
imprisonment, which the court suspended, with Mr. McDowell being placed on 36 months of supervised probation.
App. - 6 -
I. Arguments Made Jointly by Defendants
A. Denial of Defendants' Motion for a Mistrial
Defendants, both of whom are African-American, argue that the trial court erred in denying their motion for a
mistrial based on alleged misconduct of a juror suggesting racial bias. The North Carolina Constitution guarantees
the right to trial by jury and contemplates no less than a jury of twelve persons. See State v. Poindexter, 353 N.C.
440, 443, 545 S.E.2d 414, 416 (2001). Consequently, any verdict reached by a jury containing a juror disqualified by
misconduct will be a nullity and automatically entitles the defendant to a new trial. See id. at 443-44, 545 S .E.2d at
416 (concluding that disqualifying juror misconduct during the guilt phase of a capital trial rendered the guilty
“Both the existence of misconduct and the effect of misconduct are determinations within the trial court's
discretion.” State v.. Murillo, 349 N.C. 573, 600, 509 S.E.2d 752, 767-68 (1998), cert. denied,528 U.S. 838, 145
L.Ed.2d 87, 120 S.Ct. 103 (1999). Accordingly, this Court generally will not overturn a trial court's decision if the
trial court made “an appropriate inquiry and took corrective action to remedy [the] matter.” State v. Womble, 343
N.C. 667, 694, 473 S.E.2d 291, 307 (1996), cert. denied,519 U.S. 1095, 136 L.Ed.2d 719, 117 S.Ct. 775 (1997).
On the morning of the last day of the trial, following closing arguments but before jury instructions, the trial judge
learned that juror number 5 had told a bailiff that one of the other jurors had spoken to her improperly about the
case. The trial judge engaged in the following inquiry with juror number 5:
THE COURT: ... Reason I called you out the bailiff told me this morning that you had told him that one of the
jurors had spoken to you about this case.
*4 JUROR: Made a couple [of] offhand comments, Your Honor.
THE COURT: Do you recall what those comments were?
JUROR: Yes, Your Honor, I do.
THE COURT: What were they?
JUROR: I wrote them down if I can-
THE COURT: First, let me ask you: When did you hear those comments?
JUROR: Upon leaving the building Wednesday afternoon, out in front of the building.
THE COURT: What were the comments?
JUROR: “Anyone who steals over $100,000 knows how to hide it. I worked with blacks for many years-“
THE COURT: Wait a minute. Anyone who steals a hundred thousand dollars knows what?
JUROR: Knows how to hide it.
THE COURT: What else?
JUROR: “I worked with blacks for many years and they know how to hide things.”
App. - 7 -
THE COURT: And did anyone else hear it?
JUROR: Yes, Your Honor, number twelve, the young man.
THE COURT: Did he make any comment?
JUROR: Yes, Your Honor, he said-he reminded her-he said, “You aren't supposed to talk about the trial.”
THE COURT: Now, having heard that, can you disabuse your mind of those statements and try the case on what
you heard here in the courtroom?
JUROR: Yes, sir, Your Honor. Makes no difference to me. Not a bit.
The trial judge then returned juror number 5 to the other jurors and had juror number 12 brought out. He inquired as
follows of that juror:
THE COURT: ... [Juror number 5], we called her out-she's told the bailiff this morning that someone talked to her
about the case.
JUROR: Uh huh.
THE COURT: She said you also heard that person say something.
JUROR: It's been overnight.
THE COURT: Did he actually say something in your presence?
JUROR: Is it a he?
THE COURT: Sir? No, you're not going to get in any trouble.
JUROR: I really don't remember....
As with juror number 5, the trial judge asked juror number 12 whether he could be fair about the case and only “try
it on what [he] heard in the courtroom.” When the juror answered that he could, the trial judge returned him to the
Following defendants' motion for a mistrial, the trial judge questioned juror number 10, who had been identified as
making the statements. Juror number 10 denied having made any of the comments attributed to her and stated that
she could be fair and impartial and could decide the case based on the facts. The trial judge gave counsel an
opportunity to question juror number 10, but they chose not to do so.
After oral argument on the motion for a mistrial, the judge denied the motion. When the jurors re-entered the
courtroom, he instructed them as follows:
Now, members of the jury, it came to my attention this morning that some of the jurors might have heard
something that didn't-outside the courtroom that didn't pertain to this trial and that's why I called several of them
out here in the courtroom individually. However, they all said they could be fair and impartial about it, render a
fair and impartial verdict, and I assume all of you can do that. That's what you said Monday or Tuesday when we
started this case.
*5 Anybody got any reason why they feel like they can't be fair in this case and try the case on the evidence that
came from this witness stand and not something somebody might have said outside this courtroom? Can all of you
App. - 8 -
do that? If you can, raise your hand.
The jurors each raised his or her hand.
Although the trial judge made no specific findings of fact in support of his denial of the motion for a mistrial, “
‘[t]he denial of a motion for a mistrial based on alleged misconduct affecting the jury is equivalent to a finding by
the trial judge that prejudicial misconduct has not been shown.’ “ State v. Degree, 114 N.C.App. 385, 392, 442
S.E.2d 323, 327 (1994) (quoting State v. Jones, 50 N.C.App. 263, 268, 273 S.E.2d 327, 330,cert. denied,302 N.C.
400, 279 S.E.2d 354 (1981)). In arguing that the trial court erred in denying the motion for a mistrial, defendants
contend that the trial judge did not conduct a sufficient inquiry. According to Mr. McDowell, the trial judge should
have questioned the remaining jurors, while Ms. McDowell argues that the court's investigation was “brief,” did not
have the necessary depth, and confused the situation.
Because further questioning of the remaining jurors, who may not have known of the alleged comments, had the
potential to taint the other jurors, we cannot view as an abuse of discretion the trial court's decision to use an
instruction to the entire panel rather than individual questioning. Further, although the trial judge exhibited some
confusion over the identity of the juror alleged to have engaged in the misconduct, we do not believe that confusion-
ultimately corrected-undermined the inquiry substantially. In addition, the court conducted a careful examination of
juror number 12, who had made the allegations of misconduct, and juror number 10, who had been accused. We
note that trial counsel chose not to question any of the jurors further. Although the remarks attributed to juror
number 10 are very troubling, based upon our review of the record, we are compelled to hold that the trial court did
not abuse its discretion in denying the motion for a mistrial. See State v. Bethea, 173 N.C.App. 43, 51, 617 S.E.2d
687, 693 (2005) (finding that, after several jurors were told by courtroom spectators that the victims were liars, the
trial court did not abuse its discretion by declining to order a mistrial when the judge investigated the matter by
individually questioning each juror and asking about his or her ability to be fair and impartial). FN1
FN1. In the analogous context of peremptory strikes, the North Carolina Supreme Court has stated “that a
prospective juror's bias may not always be provable with unmistakable clarity, and in such instances,
reviewing courts must defer to the trial court's judgment concerning whether the prospective juror would be
able to follow the law impartially.” Womble, 343 N.C. at 679-80, 473 S.E.2d at 298 (internal quotation
B. Officer Foss' Testimony Regarding Jenny Gaddis
Both defendants contend that the trial court erred in admitting testimony of Officer Foss regarding his conversation
with Jenny Gaddis, who answered the door at the address attributed to Mr. Harris on one of the disputed
applications. Mr. McDowell argues that the testimony constituted inadmissible hearsay, while Ms. McDowell argues
both a violation of the hearsay rule and the Confrontation Clause.
*6 At trial, Officer Foss was asked on direct examination about his efforts, with respect to each application, to
validate the name of the client, the name of the landlord, and the other information contained in the application.
Regarding the application completed by William Harris, Officer Foss testified about visiting the address listed on the
application: A.... William Harris listed an address of 3117 Second Avenue Southwest, Hickory. That address is
actually in Longview. I went to that address, spoke with a woman by the name of Jenny Gaddis. Miss Gaddis had
lived at that residence for-
MR. CLARK: Objection.
THE COURT: OVERRULED as to who lived there.
The prosecutor nonetheless rephrased the question:
Q. When you knocked on the door at that address, who knocked on the-who answered the door?
A. Miss Gaddis.
App. - 9 -
Q. How would you describe Miss Gaddis?
A. She's a while [sic] female, retired. I would say she's mid-sixties.
Q. Did you see anyone at that place, besides her, that's referred to on that application?
A. No, sir.
Q. Thank you. You may continue.
A. I advised Miss Gaddis of the name and she was not familiar with the name.
MR. CLARK: Objection.
THE COURT: OVERRULED. Go ahead.
The only statements that arguably could constitute out-of-court statements and that were the subject of an objection
are (1) the suggestion that Ms. Gaddis told Officer Foss that she lived at the address, and (2) Ms. Gaddis' statement
that she was not familiar with Mr. Harris' name.
As for Ms. McDowell's contention that admission of this testimony violated the Confrontation Clause, that objection
was not made below. It is well established that “constitutional error will not be considered for the first time on
appeal.” State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005). When a defendant fails to raise
constitutional issues at trial, “he has failed to preserve them for appellate review and they are waived.” Id. We,
therefore, do not address Ms. McDowell's argument under the Confrontation Clause. FN2
FN2. Likewise, we do not address Ms. McDowell's argument under the Confrontation Clause regarding
admission of out-of-court statements of her husband. We have found no indication in the record that this
argument was made below.
With respect to the hearsay arguments, even if we assume, arguendo, that the statements were inadmissible,
defendants have failed to demonstrate prejudice. Defendants argue that this testimony was necessary to establish that
one of the addresses in the applications was false. With respect to Mr. McDowell, who was convicted only of one
count of conspiracy to obtain property by false pretenses, there was overwhelming evidence to support his
conviction even in the absence of consideration of this false address. As for Ms. McDowell, there was admissible
evidence from Officer Foss that Mr. Harris did not live at the address on the application, that Mr. Rizk was not a
landlord, and that Ms. McDowell saw Mr. Harris at the same time as Mr. Smith, whose application was also false. In
light of this specific evidence, as well as other circumstantial evidence, we do not believe that Ms. McDowell has
demonstrated that “there is a reasonable possibility that, had the error in question not been committed, a different
result would have been reached at the trial” with respect to the charges relating to the Harris application. N.C.
Gen.Stat. § 15A-1443(a) (2005).
C. Lay Opinion Testimony
*7 Both defendants next contend that Ms. McDowell's supervisor, Terri Franco, was erroneously permitted to give
inadmissible lay opinion testimony. The prosecutor asked Ms. Franco to hold up the intake log and state whether “a
change has been made” where the log indicated which DSS worker saw Mr. Harris, Mr. Smith, and Mr. Strathers.
Over defendants' objection, the trial court allowed Ms. Franco to “describe what she sees.” Ms. Franco then stated:
“There was white-out. Obviously there was something else there and it was whited out.” Ms. McDowell's name
appeared on the altered lines.
Rule 701 of the North Carolina Rules of Evidence governs the admission of lay opinion testimony:
App. - 10 -
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in issue.
N.C. Gen.Stat. § 8C-1, Rule 701 (2005). Here, Ms. Franco's testimony arose out of her personal examination of the
document, and the opinion directly related to her testimony regarding which DSS worker had seen the clients
involved with the disputed applications.
Moreover, Ms. McDowell subsequently testified on cross-examination, without any objection to the questions, that
the intake log had been “whited out and changed”:
Q. Do you see-would you hold it up to the light, ma‘am, and tell if you see where it's been whited out and
changed? Can you tell?
Q. Describe to the jury what you see please.
A. Looks like white-out.
Q. And whose name is written over the whiteout? Whose initials are written over the white-out?
It is well established that “[w]hen evidence is admitted over objection and the same evidence has been previously
admitted or is later admitted without objection, as here, the benefit of the objection is lost.” State v. Morgan, 315
N.C. 626, 641, 340 S.E.2d 84, 94 (1986). We, therefore, overrule this assignment of error.
II. Ms. McDowell's Additional Arguments
Ms. McDowell makes only one additional argument individually: she contends that there was insufficient evidence
to convict her. In reviewing the sufficiency of the evidence, the trial court must determine whether there is
substantial evidence: (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator
of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of
relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869. The
court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable
inferences. Id. at 596, 573 S.E.2d at 869.
In support of this assignment of error, Ms. McDowell does not argue that the State failed to present evidence of any
element of the charged offense. Instead, she states only that “[e]vidence presented by the State suggested Dena
McDowell was an innocent participant in Shon McDowell's scheme to defraud the DSS” and points to Officer Foss'
typewritten notes of his interview with Mr. McDowell. While the jury could have viewed these notes as suggesting
Ms. McDowell's innocence, the State also presented ample other evidence supporting a finding that Ms. McDowell
was an active participant in the scheme, as the jury ultimately concluded. This assignment of error is, therefore,
III. Mr. McDowell's Additional Arguments
A. References to Mr. McDowell as a “Drug Dealer”
*8 Mr. McDowell argues that the trial court erred in allowing Eric Robertson (1) to refer to him as his drug dealer,
(2) to testify that he saw Mr. McDowell almost daily, during the relevant time frame, for the purpose of purchasing
App. - 11 -
heroin from Mr. McDowell, and (3) to identify other people who purchased drugs from Mr. McDowell. He contends
that this testimony was inadmissible under Rules 403 and 404(b) of the Rules of Evidence.
During Mr. Robertson's testimony, the State asked him about the nature of his relationship with Mr. McDowell, and
he responded, “He was my drug dealer.” The trial court sustained defense counsel's objection and instructed the jury
to disregard “that statement.” The court, however, allowed Mr. Robertson subsequently to testify that he purchased
heroin from Mr. McDowell “[a]lmost daily.” Mr. Robertson was also allowed to testify that Richard Rizk bought
heroin from Mr. McDowell.
With respect to Mr. Robertson's initial characterization of Mr. McDowell as his “drug dealer,” the trial court
sustained the defense counsel's objection and instructed the jury to disregard the testimony. Defendant has made no
argument as to how the trial court erred given that it sustained the objection and gave a curative instruction.
As for the testimony regarding heroin sales, Rule 404(b) of the North Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that
he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant,
subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of the crime charged.” State v. Lloyd, 354 N.C. 76, 88,
552 S.E.2d 596, 608 (2001) (internal quotation marks omitted).
In this case, the fact that Mr. Robertson went to Mr. McDowell's home to purchase heroin from him showed how the
two men knew each other and rebutted Ms. McDowell's contention that she did not know Mr. Robertson. Further,
the evidence that Mr. Robertson and Mr. Rizk both purchased drugs from Mr. McDowell was relevant to
“opportunity”: how Mr. McDowell had the means to enlist them in the conspiracy to obtain TANF funds unlawfully.
The relationship also (1) explained Mr. Robertson's motive in participating since he used his share of the funds to
purchase heroin from Mr. McDowell, and (2) tended to prove that Mr. Rizk was not a legitimate landlord, although
identified as such on the application. The evidence thus was admitted for proper purposes and was not offered solely
“to prove the character of [defendant] in order to show that he acted in conformity therewith.” N.C. Gen.Stat. § 8C-
1, Rule 404(b). See State v. Ligon, 332 N.C. 224, 235, 420 S.E.2d 136, 142 (1992) (evidence that defendant dealt
drugs was properly admitted to show motive under Rule 404(b) where the State contended the victim was shot
because he attempted to steal cocaine from defendant); State v. Reid, 175 N.C.App. 613, ----, 625 S.E.2d 575, 584
(2006) (holding that testimony that the witness knew the defendant because they sold drugs together was properly
admitted to establish how the witness could identify the defendant).
*9 While defendant has argued that unfair prejudice outweighed any probative value, our review of the record
indicates that the evidence of the nature of the parties' relationship was fundamental to establishing the nature of the
scheme and, therefore, was admissible under Rule 403. Accordingly, we cannot say that the trial court abused its
discretion in determining that any danger of unfair prejudice was outweighed by the testimony's probative value. See
State v. Garcia, 358 N.C. 382, 416-17, 597 S.E.2d 724, 749 (2004) (the decision whether to exclude evidence under
Rule 403 is reviewed for abuse of discretion), cert. denied,543 U.S. 1156, 161 L.Ed.2d 122, 125 S.Ct. 1301 (2005).
Defendant has also failed to make any persuasive argument that in the absence of this evidence the jury would have
reached a contrary verdict on the conspiracy charge given the overwhelming evidence presented regarding Mr.
McDowell's extensive involvement with respect to the applications and the fictitious nature of those applications.
B. Admission of Officer Foss' Notes
Mr. McDowell next argues that the trial court erred both by permitting Officer Foss to read the notes of his interview
with Mr. McDowell to the jury and by later admitting into evidence the original longhand notes and a subsequently
prepared typewritten version. We agree.
App. - 12 -
In State v. Walker, 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967), our Supreme Court held that a statement
purporting to be a confession by a defendant that was reduced to writing by another person, is admissible by the
State only if the defendant has “in some manner ... indicated his acquiescence in the correctness of the writing
itself.” The Court also held that “the reading verbatim of the typed statement to the jury [has] the same prejudicial
force and impact as if such statement [is] identified and received in evidence as an exhibit.” Id. Subsequently, our
courts recognized that “the written instrument is admissible, without regard to the defendant's acquiescence, if it is a
‘verbatim record of the questions [asked] ... and the answers' given by him.” State v. Bartlett, 121 N.C.App. 521,
522, 466 S.E.2d 302, 303 (1996) (quoting State v. Byers, 105 N.C.App. 377, 383, 413 S.E.2d 586, 589 (1992)).
Under this analysis, the Supreme Court's decision in Walker “does not preclude admission of an unsigned statement
taken in longhand” if it contains a record “of a defendant's actual responses to the recorded questions.” State v.
Wagner, 343 N.C. 250, 256-57, 470 S.E.2d 33, 36 (1996).
In Bartlett, the officer testified that he had written down the defendant's answers during the course of an interview,
but acknowledged that he did not write down the questions asked of the defendant. The record contained no other
evidence suggesting that the officer's “handwritten notes were an exact reflection of the answers given by the
defendant,” and there was “no evidence that the defendant acquiesced in the correctness of the writing....” Bartlett,
121 N.C.App. at 522, 466 S.E.2d at 303. Under those circumstances, this Court held: “It was ... error to admit the
document into evidence and allow the officer to read it to the jury.” Id.
*10 This case is indistinguishable from Bartlett. Mr. McDowell did not sign either the handwritten or typewritten
version, and the record contains no evidence that he otherwise indicated an acquiescence in the accuracy of those
documents. Further, Officer Foss merely testified that he took notes while talking with Mr. McDowell and that those
notes “accurately reflect[ed][his] recollection ... of what this defendant told [him] at the police department [.]” He
did not include the questions that he asked defendant and never testified that the notes reflected a verbatim rendition
of Mr. McDowell's answers. To the contrary, he acknowledged that some of the words were his “terminology”
rather than that of Mr. McDowell. Given Officer Foss' testimony, Bartlett compels the conclusion that the trial court
erred in allowing Officer Foss to read aloud the statement and in admitting the handwritten and typewritten versions.
Bartlett further holds that “in the absence of some other evidence ‘just as weighty,’ [an] improperly admitted
confession is prejudicial error and requires a new trial.” Id. at 523, 466 S.E.2d at 303 (quoting State v. Edgerton, 86
N.C.App. 329, 335, 357 S.E.2d 399, 404 (1987), rev'd on other grounds,328 N.C. 319, 401 S.E.2d 351 (1991)).
Based upon our review of the record in this case, however, we believe defendant has failed to demonstrate
prejudicial error under N.C. Gen.Stat. § 15A-1443(a).
The purported statement reported that Mr. McDowell knew Mr. Rogers, Mr. Robertson, and Mr. Rizk all needed
rent money; that Mr. McDowell discussed with them going to DSS and told them what to tell his wife to qualify for
assistance; that he learned about the application process by going through his wife's briefcase and she knew nothing
about the plan; that he intended to make money from the DSS plan; and that Mr. Robertson and Mr. Rizk had keys
to the mailbox, but only Mr. Rogers and Mr. Robertson were authorized to retrieve mail. The State, however, also
offered substantial evidence from other sources on each of the material points of the statement, with the exception of
the portion exculpatory of Ms. McDowell. Based on this other evidence, we hold that admission of the statement did
not constitute prejudicial error under N.C. Gen.Stat. § 15A-1443(a). Mr. McDowell has made no showing otherwise,
but rather has relied solely on a bare assertion that admission of the evidence was “prejudicial.” This assignment of
error is, therefore, overruled.
C. Time Limitations on Opening Arguments
Mr. McDowell argues that the trial court erred in “sua sponte limit[ing] each side to three minutes for their opening
statements.” As an initial matter, we note that he mistakenly asserts that the two defendants were required to divide
the three minutes. The record indicates, however, that the trial court granted each of the attorneys three minutes.FN3
FN3. The prosecutor unsuccessfully sought additional time, arguing that the three minute limitation meant
that he had only 1 1/2 minutes to address each defendant.
App. - 13 -
Parties are entitled to “the opportunity to make a brief opening statement.” N.C. Gen.Stat. § 15A-1221(a)(4) (2005).
“Control over opening statements [, however,] rests within the sound discretion of the trial court.” State v. Call, 349
N.C. 382, 396, 508 S.E.2d 496, 505 (1998). The North Carolina Supreme Court has found no error in situations
similar to the instant case. See id. (finding no abuse of discretion where trial court limited counsel to five-minute
opening statements in the guilt-innocence phase and no opening statements in the sentencing phase of a capital
proceeding); State v. Paige, 316 N.C. 630, 647, 343 S.E.2d 848, 859 (1986) (finding no abuse of discretion where
the trial judge limited counsel to five-minute opening statements and told counsel they could not comment on the
other party's evidence, could not characterize any witness, could not comment on what the other lawyer may argue,
and could not argue the law, but could only state what they contended their evidence would show); see also N .C.
Gen. R. Prac. 9 (“Opening statements shall be subject to such time and scope limitations as may be imposed by the
*11 We note that the opening statements were not transcribed. Further, Mr. McDowell has made no specific
argument as to how he was prejudiced, such as identifying what he would have included in his opening statement
had he been granted additional time. Although we recognize that the trial court's time limitation resulted in
extraordinarily “brief” opening statements, Mr. McDowell has failed to demonstrate that the decision in this case
was an abuse of discretion.
D. Prosecutorial Misconduct
Finally, Mr. McDowell argues he is entitled to have his conviction vacated because of the State's violation of the
discovery statute by failing to disclose the existence of any agreements with Mr. Robertson in connection with his
testimony. Mr. McDowell points to the prosecutor's denial at a pre-trial hearing that there were “any conversations,
agreement, [or]innuendos that have been passed on to Mr. Robertson in exchange for his testimony.” Mr. McDowell
then argues that Mr. Robertson's and Officer Foss' testimony at trial contradicted the prosecutor's assertion.
Mr. McDowell contends that the State was, as a result, subject to sanctions under N.C. Gen.Stat. § 15A-910 (2005).
He did not, however, seek sanctions at trial. Rule 10(b)(1) of the Rules of Appellate Procedure specifically provides
that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” Since defendant did not seek discovery sanctions, he has not
preserved this issue for appeal.
Recognizing this omission, defendant argues that he “could not have known at the time of trial that the State had
failed to disclose the existence of discussions or arrangements with Robertson. This information came to light only
with the undersigned examining Robertson's criminal case file at the Catawba County Courthouse.” Although Mr.
McDowell included in the record on appeal a copy of the dismissal of Mr. Robertson's charges, this document is not
properly a part of the record on appeal in this case since it was never presented to the trial court. SeeN.C.R.App. P.
9(a)(3)(i) (providing that the record on appeal should include “copies of all other papers filed and statements of all
other proceedings had in the trial courts which are necessary for an understanding of all errors assigned” (emphasis
added)). Because this argument relies upon information outside the record in this case, it cannot be argued on direct
appeal, but might be the subject of a motion for appropriate relief under N.C. Gen.Stat. § 15A-1415 (2005). See
State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (holding that ineffective assistance of counsel claims
should not be reviewed on direct appeal if they require consideration of information outside of the record on appeal
and the verbatim transcript), cert. denied,535 U.S. 1114, 153 L.Ed.2d 162, 122 S.Ct. 2332 (2002).
*12 No error.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
State v. McDowell
179 N.C.App. 436, 634 S.E.2d 272, 2006 WL 2528057 (N.C.App.)
END OF DOCUMENT