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					NO. COA09-1230


                      NORTH CAROLINA COURT OF APPEALS

                            *****************


STATE OF NORTH CAROLINA,             )
                   Plaintiff         )
                                     )
                 v.                  )        From Durham County
                                     )
DEMONTRE SAMUEL,                     )
                         Defendant   )
                                     )



                            *****************

                        DEFENDANT-APPELLANT’S BRIEF

                            *****************
                                          TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... iii

QUESTIONS PRESENTED ........................................................................................1

STATEMENT OF THE CASE ...............................................................................3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW ..........................3

STATEMENT OF THE FACTS ............................................................................4

ARGUMENT ..........................................................................................................16

         I.   NUMEROUS ERRORS AT TRIAL INCLUDING: 1)
         JUDICIALLY COERCED TESTIMONY AND 2) THE
         INTRODUCTION         OF          IRRELEVANT                      AND             HIGHLY
         PREJUDICIAL EVIDENCE ABOUT GUNS, PRIOR ARRESTS,
         AND GANG INVOLVEMENT DENIED DEMONTRE HIS RIGHT
         TO A FAIR TRIAL. ......................................................................................16
                  1. Demontre‟s Due Process Rights Were Violated
                  When The Trial Court, Through Threats Of Perjury
                  Prosecution, Coerced Marcus Jackson Into Changing His
                  Testimony To Accuse Demontre. .......................................................18
                  2. The Trial Court Erred in Admitting Evidence of
                  Guns Found in Demontre‟s Home That Were Not Tied to
                  the Robbery. ........................................................................................25
                  3. The Prosecutor‟s Repeated Introduction of Irrelevant
                  and Inflammatory Information Concerning Gang
                  Involvement and Prior Arrests Denied Demontre his Due
                  Process Right to a Fair Trial. The Trial Court Erred in
                  Denying Demontre‟s Motions for a Mistrial Following
                  the Introduction of This Evidence. ......................................................30
                                                       -ii-

                 4. The Cumulative Effect Of Errors in the Judicial
                 Coercion of Testimony, the Admission of Irrelevant Gun
                 Evidence, and the Repeated Prosecutorial Misconduct in
                 Referring to Alleged Gang Involvement and to
                 Demontre‟s Prior Arrest, Denied Demontre a Fair Trial. ...................33
        II. THE TRIAL COURT FAILED TO EXERCISE DISCRETION
        WHEN IT RAN DEMONTRE‟S SENTENCES ON HIS ROBBERY
        CONVICTIONS CONSECUTIVELY. .........................................................35

CONCLUSION.......................................................................................................36

CERTIFICATE OF WORD COUNT ..................................................................37

CERTIFICATE OF SERVICE ............................................................................37
                                                          -iii-

                                        TABLE OF AUTHORITIES


                                                        CASES

Arizona v. Youngblood, 488 U.S. 51, 102 L.E.2d 281 (1988) ................................23

In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 576 S.E.2d 316

  (2003)............................................................................................................. 25, 29

State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967) .............................................30

State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986) ................................. 17, 29, 35

State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002) ..........................................34

State v. Cowan, __ N.C. App. __, 669 S.E.2d 811 (2008) ......................................25

State v. Johnson, 41 N.C. App. 423, 255 S.E. 2d 275 (1979), ................................31

State v. Locklear, 309 N.C. 428, 306 S.E.2d 774 (1983) ........................... 19, 20, 21

State v. Maher, 305 N.C. 544, 290 S.E.2d 694 (1982) ............................................29

State v. Mckenzie, 122 N.C. App. 37, 468 S.E.2d 817 (1996) ................................35

State v. Patterson, 59 N.C. App. 650, 297 S.E.2d 628 (1982).................... 27, 28, 29

State v. Rhodes, 290 N.C. 16, 224 S.E.2d 631 (1976) ......................... 17, 18, 19, 21

State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958) .......................................35

State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981) ..............................................22

State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992) .............................................34
                                                        -iv-

                                                   STATUTES

N.C. Gen. Stat. § 15A-1443(b) (2009) ....................................................................22

N.C. Gen. Stat. § 8C-1 .............................................................................................27

N.C. General Statute §15A-1444 ...............................................................................3


                                                      RULES

N.C. Evidence Rule 401...........................................................................................27

N.C. Evidence Rule 402...........................................................................................27


                                      CONSTITUTIONAL PROVISIONS

14th Amendment to the U.S. Constitution ................................................................33
NO. COA09-1230

                      NORTH CAROLINA COURT OF APPEALS

                           ****************


STATE OF NORTH CAROLINA,             )
                   Plaintiff         )
                                     )
                 v.                  )        From Durham County
                                     )
DEMONTRE SAMUEL,                     )
                         Defendant   )
                                     )




                            *****************

                        DEFENDANT-APPELLANT’S BRIEF

                            *****************



                           QUESTIONS PRESENTED


I.    DID THE TRIAL COURT ERR IN ACCUSING A WITNESS OF
      LYING UNDER OATH AND ADMONISHING THAT WITNESS
      ABOUT THE CONSEQUENCES OF PERJURY THEREBY
      CAUSING THE WITNESS TO CHANGE HIS TESTIMONY TO
      IMPLICATE DEMONTRE?

II.   DID THE TRIAL COURT COMMIT PREJUDICIAL AND PLAIN
      ERROR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE
      OF GUNS FOUND IN DEMONTRE’S HOME THAT WERE IN NO
      WAY INVOLVED IN THE CHARGED CRIMES?
                             -2-


III.   DID THE PROSECUTOR’S REPEATED MENTION OF GANG
       INVOLVEMENT AND DEMONTRE’S PRIOR ARREST DENY
       DEMONTRE THE RIGHT TO A FAIR TRIAL FREE FROM
       PREJUDICIAL ERROR?

IV.    DID THE TRIAL COURT ERR IN DENYING DEMONTRE’S
       MOTIONS FOR A MISTRIAL FOLLOWING THE PROSECUTOR’S
       REPEATED REFERENCES TO GANG INVOLVEMENT AND
       PRIOR ARRESTS?

V.     DID THE ERRORS IN THE ERRONEOUS INTRODUCTION OF
       GUN EVIDENCE, THE COERCED TESTIMONY IMPLICATING
       DEMONTRE,   AND    THE    PROSECUTOR’S IMPROPER
       REFERENCE TO GANGS AND PRIOR ARRESTS HAVE THE
       CUMULATIVE EFFECT OF DEPRIVING DEMONTRE OF HIS
       CONSTITUTIONAL RIGHT TO A FAIR TRIAL?

VI.    DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT RAN
       THE SENTENCES ON THE ROBBERY CONVICTIONS
       CONSECUTIVELY STATING AS ITS REASON, “THAT IS
       BECAUSE I WANT TO”?
                                         -3-

                         STATEMENT OF THE CASE

      On 29 September 2008, Demontre Samuel appeared for trial before the

Honorable Henry Hight, Circuit Court Judge, in the General Court of Justice,

Superior Court Division of Durham County on an indictment for two counts of

Robbery with a Firearm, and one count of Assault with a Deadly Weapon. (R pp

1, 4) The trial lasted until 2 October 2008, at which time the jury returned verdicts

of guilty on the robbery charges, and guilty of simple assault. (R pp 24-25)

      On that same date, Judge Hight sentenced Mr. Samuel to two consecutive

terms of 60-81 months confinement on the robberies and 30 days concurrent on the

assault conviction. (R p 26-31) (T A-IV pp 42-43)1 Mr. Samuel gave notice of

appeal in open court. (T A-IV p 44)

          STATEMENT OF GROUNDS FOR APPELLATE REVIEW

      Following the entry of a final judgment, appeal from a conviction of guilt is

as a matter of right under N.C. General Statute §15A-1444.




      1
        The transcript in this case was originally produced in three volumes
with the pages numbered sequentially through all three volumes. Reference to
pages in these volumes will be “T p __”. A portion of the trial was missing
in this initial production of the transcript due to a misplaced tape. (T p
491). The Court reporter subsequently found the missing tape and produced
two additional volumes of transcript, one entitled “Addendum to Volume III”,
and one erroneously entitled, “Addendum to Volume IV”. Each of these volumes
is numbered independently. They will be cited to as “T A-III p __” and “T A-
IV p __,” respectively, in this brief.
                                          -4-

                          STATEMENT OF THE FACTS


      On 23 February 2008, at about 9:00 pm, Marcus Jackson appeared out of the

darkness behind a bus stop near Northgate Mall in Durham holding two necklace

chains, each with a silver cross. The bus stop was crowded with teenagers,

including Demontre Samuel. (T pp 401-402, 424, 437) Several teens asked

Jackson where he got the chains. Jackson bragged that he‟d taken them from two

dudes and pointed to Larry Johnson and Archie Poteat who were walking away. (T

pp 439,453) Shaquille Drakeford asked for one of the chains. Jackson handed

over the smaller of the two crosses and kept the more valuable necklace with the

large, diamond studded cross for himself. (T pp 402-403, 340-341, 350) (R p 4)

      While Demontre and the others waited for their #1 bus to come, Jackson‟s

mother arrived as planned to pick Jackson up and take him home. (T pp 170, 402)

Lynette Paul, who knew both Larry Johnson and Demontre from school, was on

the #1 when Demontre and his friends boarded the bus that night. She saw

Demontre and his friends with the chain. (T pp 98-99, 100, 104-105)

      Though she wasn‟t present when the robbery occurred, Lynette called her

friend Larry Johnson to tell him that she knew who robbed him. (T pp 47-48) She

told him that it was Demontre. (T pp 85, 87-89, 467) Lynette originally told

police that she saw the robbery. It was not until the day she testified at trial that
                                         -5-

she came clean and admitted that she had only learned of the robbery from others.

(T pp 91-92)

      Lynette Paul‟s identification of Demontre drove the investigation. Larry

Johnson reported the name given to him by Lynette to his mother. (T pp 48-49,

186) His mother in turn called the lead investigator, Detective Clayton, and gave

him Demontre‟s name. (T pp 186, 189, 257-258) Five days after the robbery,

Detective Clayton put together a photo montage for Larry Johnson to view and

asked Detective Salmon to show it to him. (T pp 220, 262)

      Johnson, who was 19 at the time, went through the photo montage and said,

“No,” to each of the six pictures he looked at. Detective Salmon was not satisfied

and had Johnson go through the pictures again. Again Johnson said, “No,” six

times. Detective Salmon was not done. He believed that Johnson had paused at

picture number five, Demontre‟s picture. He left the room and went to talk with

Detective Clayton. (T pp 71, 224-225, 271)

      Detective Clayton decided that Johnson needed “moral support” so he and

Johnson‟s mother went into the interview room to talk with Johnson. (T p 271)

They were in there for about 5 minutes. (T p 225) Johnson‟s mom told him not to

be scared, to do the right thing so the person could be brought to justice. (T pp

191-192) Johnson‟s mother and Detective Clayton left the interview room, and

Detective Salmon returned for a third go at it. This time, when Detective Salmon
                                         -6-

left the interview room he was smiling. He told Detective Clayton that Johnson

had picked number five. Detective Clayton knew that meant Demontre. (T pp

225-226, 272-273)

      Based on Johnson‟s identification of Demontre, Detective Clayton got a

search warrant for Demontre‟s family‟s home. On 29 February 2008 at around

9:00 am, Detective Clayton, Detective Salmon and others went to Demontre‟s

house to execute the warrant. Demontre was arrested and taken to a police station.

At the home, police initially talked with Demontre‟s stepfather, Mr. Bracey. (T pp

319-320)

      Following the conversation with Mr. Bracey, Detective Clayton went to Mr.

Bracey‟s bedroom and found two guns. Mr. Bracey‟s shiny silver, semi-automatic

was locked in a safe in the closet. There was also a small, silver revolver in the

closet, outside of the safe. (T p 321) Based on Johnson‟s and Poteat‟s descriptions

of the robber‟s gun, Detective Clayton determined that this was not the weapon

used in the robbery. (T pp 352-353) Nevertheless, the guns were collected as

evidence in the case. Officers searched the home, but found neither the necklaces

taken during the robbery nor a gun matching the description given by the victims.

(T p 322-323)

      Detective Clayton left the Demontre‟s house and went to the police station

to interview Demontre. Demontre agreed to speak with Detective Clayton. He
                                         -7-

told the detective that he had been at the mall on 23 February 2008, and that he had

taken pictures with his girlfriend at a photo store. He said that he was at the bus

stop that night with his brother, Teshaun Johnson, his little cousin, Shaquille

Drakeford, and Lashay Davis. He told Detective Clayton that he was wearing a

black jacket, black t-shirt, black jeans, and black shoes with a yellow and white

design on them. (T pp 331-332)

      Later that same night, 29 February, Detective Clayton went back by

Demontre‟s house. The detective did not, while he was there, collect the clothes

Demontre was wearing on the night of the robbery. 2 The Detective‟s reason for

not collecting this evidence was that the clothing described was generic, and he did

not want to take Demontre‟s whole wardrobe. Detective Clayton acknowledged

that there are a lot of young men wandering around Durham with those kinds of

clothes on. (T p 368)

      While there, Detective Clayton spoke with Demontre‟s younger brother,

Teshaun Johnson. Teshaun gave Detective Clayton the necklace that was taken

from Archie Poteat. Based on Teshaun‟s response to the question of how he got

the necklace, Detective Clayton set up an interview with Marcus Jackson. (T pp

336-338, 341)


      2
        The distinctive shoes and jeans that Demontre wore that night were
identified by witnesses at trial and introduced into evidence. (T pp 405,
409-411, 472, 475) (Defense exhibits 2, 3A and 3B)
                                         -8-

      On 3 March 2008, before he spoke with Marcus Jackson, Detective Clayton

talked to Shaquille Drakeford. Shaquille told him that he had received a stolen

chain from Marcus Jackson the night of the robbery, and that he‟d given the chain

to his cousin. He told the Detective that Demontre had been at the bus stop that

night sitting under the shed with two boys, D‟Andre and Preston, on either side of

him when Marcus Jackson emerged from behind the stop holding two chains.

Shaquille told the detective that Jackson left the bus stop a short time later when

his mother picked him up in a white SUV. (T pp 374, 402-404)

      Detective Clayton‟s first follow-up on the information regarding Marcus

Jackson occurred on 6 March 2008. On that day, he went to Jackson‟s house

which was right across the street from Demontre‟s home. (T p 340) Jackson was

at school, but his mother gave Detective Clayton permission to search Jackson‟s

room. (T pp 339, 373) Detective Clayton did not find anything at that point.

      Detective Clayton did not speak to Jackson until 14 March 2008, two weeks

after he spoke with Teshaun and determined the need to interview Jackson. On

that day, Jackson‟s father brought him to the police station to be interviewed. (T

pp 373-374) Jackson said that he had one of the stolen chains, but had given it to

his father. The Detective had Jackson‟s father drive home, get the chain and bring

it back to the police station. The chain the Detective received from Jackson was
                                        -9-

the one with a diamond studded cross on it, the one taken from Larry Johnson. (T p

340-341)

      At trial, the State called Marcus Jackson to the stand. Jackson, a 6‟2”, 240

pound, right tackle for the Southern High School football team, admitted to being

at the bus stop on the night of 23 February 2008. He stated that he saw Demontre

there that night, but that Demontre never left the group of teens. (T pp 140-141,

169). The prosecutor tried to introduce his prior, unsworn statement, given to

Detective Clayton. Defense counsel‟s objections were sustained. The prosecutor

then tried to use the statement to impeach her witness‟ testimony. When defense

counsel objected, the jury was excused. (T pp 144-146)

      The Court granted the prosecutor‟s request to treat Jackson as a hostile

witness. Jackson testified, outside the presence of the jury, that most of what was

contained in the statement he had given Detective Clayton came from things he

heard from others. (T p 149) The prosecutor pressed Jackson on whether that was

true with regard to his prior statement that Demontre had given him Larry

Johnson‟s chain. During this exchange, Jackson never testified that Demontre

gave him the chain. (T pp 150-151)

      When the jury returned, the prosecutor continued her examination of

Jackson. He explained that he had gone to the mall with his cousin. His mother

had not wanted him to ride the bus home, so she‟d come to the mall to pick him up.
                                        -10-

Jackson testified that Demontre had never given him anything and that he had

received the chain from another boy in his neighborhood. The prosecutor asked to

approach the bench. The jury was excused. (T pp 157-159)

      Outside of the jury‟s presence, the Judge admonished Jackson:

             The Court: . . . Mr. Jackson, do you understand that you are under
             oath in this trial?

             The Witness: Yes, sir.

             The Court: You have made an inconsistent statement under oath in
             this courtroom under oath. I just want to advise you that the penalties
             of perjury – what is it? It‟s a class what?

                                            ...

             The Court: Perjury is a Class F felony, which carries a maximum
             term of imprisonment of up to 59 months. If you have no past
             criminal history, the maximum sentence you could receive for a Class
             F felony would be 20 months. I just wanted to advise you of that in
             the absence of the jury.

(T p 161, line 18 through p 162, line 14)

      When the jury returned, the prosecutor continued questioning Jackson about

where he got the stolen chain. This time he changed his testimony and accused

Demontre of giving it to him. (T p 165)

      After Jackson left the witness stand, the State recalled Larry Johnson.

Johnson, who had in his earlier testimony committed to his identification of

Demontre both in the photo line-up and in court, testified that Jackson was not his

assailant. (T pp 38, 58-60, 173-174) This was the first time since the inception of
                                        -11-

the investigation that any witness had been asked to exclude Marcus Jackson as a

suspect. (T p 370)

      In their trial testimony, both victims described the robbery similarly. They

explained that they were sitting on a wall behind the bus stop in an area that was

surrounded by trees and not well lit. (T pp 40, 79, 109-111) They were

approached by a guy wearing a black shirt, blue jeans and black sneakers. (T pp

46, 117) Archie Poteat testified that the guy pulled a gun and put it to Larry

Johnson‟s head and told him to give up his chain. Johnson said, “No”. Johnson

was then struck in the head and his chain was taken from him. The guy then put

the gun to Poteat‟s chest and told him to give up his chain, which he did. (T p 112-

113) The entire episode took no more than a minute. (T p 36)

      Archie Poteat testified that he was unable to get a good look at the robber

because he was too focused on the gun. When the robber walked away, Poteat saw

that the robber was 6‟ to 6‟1” with a husky build. (T pp 117-118) The way in

which the robber walked away showed Poteat that he was built:

             Q: Okay. You say this person was husky and built?

             A: Yeah.

             Q: Like husky in what way?

             A: I mean, when he walked off, he walked off like this. I mean, he

             was – he didn‟t literally have his hands pointing out like that but –
                                         -12-

            Q: Yeah.

            A: -- the way that he walked off, he was kind of – the way that he

            walked off, he was built.

            Q: He was a big man?

            A: He was built. He wasn‟t fat. He was just built.

(T pp 136-137)

      Detective Clayton testified that both Johnson and Poteat had told him the

suspect was heavy set. 3 Each victim wrote out a statement describing the robber

as “heavy set.” The detective acknowledged that even at the time of his

investigation, he would not have considered Demontre to be heavy set. The

detective further agreed that Marcus Jackson was “big, and tall, and heavy set”.

He went on to say, “It‟s hard to mistake a – I mean, Marcus is a big boy”. (T pp

360-361) (R pp 20-21)

Testimony about guns:

      At trial, Larry Johnson, the State‟s first witness, testified that he knew the

difference between a revolver and a semi-automatic and that the gun used in the

robbery was a semi-automatic. (T p 39) Detective Clayton also testified that both

Johnson and Archie Poteat had said that the gun used in the robbery was a smokey



      3
        At trial, Johnson stated that he had given other descriptions of his
assailant as medium height and build. (T pp 46, 68)
                                        -13-

gray, large, semi-automatic and that both boys knew the difference between a

revolver and a semi-automatic. (T pp 352-353)

      Based on Johnson‟s and Poteat‟s descriptions of the robber‟s weapon,

Detective Clayton determined that guns taken during the search of Demontre‟s

home were not used in the robbery. (T pp 352-353) Nevertheless, the State called

Catherine Lipsey, a crime scene investigator, to the stand. Lipsey described how

she went to Demontre‟s home and collected the revolver and the shiny, semi-

automatic from Mr. Bracey‟s closet. (T pp 379-380) Through Lipsey, the State

introduced a photograph of the revolver without objection. (T p 381) The photo of

the revolver was published to the jury. (T p 382) The State then introduced both

guns into evidence over defense objections. (T pp 386-387)

      Later in the trial, during the defense case, the State was allowed, over

repeated objections, to elicit testimony from Demontre‟s mother that she had found

the revolver in an upstairs bedroom two days after the robbery. Demontre was

with two other boys, and she asked him where the gun came from. He said it

belonged to someone named Michael. (T pp477-480)

      During her closing argument, the prosecutor showed an enlarged slide

photograph of the revolver to the jury. While the image appeared, the prosecutor

stated:

            “On 29th of 2008, February, search warrant was issued. It was
            executed at the defendant‟s home. Gun was found. . .”
                                        -14-


(T A-IV p 33, emphasis added) (R p 35)

Testimony about prior arrests:

      During Detective Clayton‟s direct examination, the prosecutor asked what

the detective had done after he spoke with Larry Johnson‟s mom and received the

name of a potential suspect. Detective Clayton testified that he was able to locate

Demontre Samuel in the police department system. Defense counsel objected, and

the Court responded, “Go on”. Detective Clayton continued, “I was able to obtain

a photograph of Mr. Demontre Samuel from a prior arrest.” Defense counsel again

objected and made a motion to strike which was granted. At counsel‟s request, the

Court instructed the jury to disregard the witness‟s statement about where he got

the picture of Demontre. The Court denied a defense motion for a mistrial. (T pp

258-259)

      Later in the trial, during the prosecutor‟s cross examination of Demontre‟s

mother, the prosecutor asked whether the witness had known Demontre to carry a

weapon. Demontre‟s mother said, “No”. At that point the prosecutor asked, “So

you‟ve never come down to court for him?” Defense counsel made a relevancy

objection which the court sustained. (T p 479)

Reference to Gangs:

      During jury selection, the prosecutor asked a question pertaining to gang

involvement and indicated that there would be some evidence of that in the case.
                                        -15-

Defense counsel objected, and the Court sustained the objection. Counsel then

requested a mistrial which the Court denied. (T pp 5-6)

      Later, during the testimony of Detective Salmon concerning his participation

in the search of Demontre‟s home, the prosecutor asked him, “What, if anything,

did you recover?” In listing the items, Detective Salmon stated, “…some paper

with gang graffiti on it”. Counsel for Demontre again objected. The objection was

sustained, the testimony was stricken, a motion for mistrial denied, and the jury

was instructed to disregard the detective‟s statement. (T p 234)

Sentencing:

      At sentencing, the prosecutor asked for Demontre‟s sentences on the robbery

charges to run consecutive to each other. (T A-IV p 33) Demontre‟s aunt and

mother testified on his behalf at sentencing. They stressed how the crimes charged

did not fit with Demontre‟s character. They described his strong support in the

community and his religious devotion. Defense counsel, noting Demontre‟s

support in the community, asked the Court to consolidate the convictions into one

sentence in the mitigated range. (T A-IV pp 33-39) The Court gave Demontre the

chance to speak before he was sentenced. This is what he said:

              Mr. Samuel: You all are sentencing the wrong person. You all seen
              the dude that did it. I don‟t understand (unintelligible).

              The Court: Mr. Samuel –
                                        -16-

             Mr. Samuel: This is my life, my family. I‟ve got little sisters that‟s
             one years old I‟m going to be away from; brothers I‟m going to be
             away from, cousins. I‟m the oldest. They look up to me. I‟m just a
             innocent man. I‟m innocent, I‟m innocent. …

(T A-IV p 40-41) The Judge then sentenced Demontre to two 60-81 month terms

on the robberies to run consecutive to each other, and 30 days on the misdemeanor

assault conviction to run concurrently. (T A-IV p 42-43) (R pp 26-29)

      Defense counsel asked the Court to place its reasons for the consecutive

sentence on the record. The Court replied, “That is because I want to.” (T A-IV p

44)

                                   ARGUMENT

I.    NUMEROUS ERRORS AT TRIAL INCLUDING: 1) JUDICIALLY
      COERCED TESTIMONY AND 2) THE INTRODUCTION OF
      IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE ABOUT
      GUNS, PRIOR ARRESTS, AND GANG INVOLVEMENT DENIED
      DEMONTRE HIS RIGHT TO A FAIR TRIAL.

      Demontre Samuel went to prison for Marcus Jackson‟s crime. Marcus

Jackson matched the victims‟ descriptions of the robber. He was at the bus stop

with the stolen goods. He bragged about committing the robbery. He had a

prearranged ride away from the crime scene. He had the more valuable of the two

stolen necklaces in his possession when the police got around to interviewing him

nearly three weeks after the robbery. In contrast, the prosecutor had the tainted

identification of Demontre by a witness who twice said that Demontre was not his

assailant before being pressured into making an identification.
                                         -17-

       At trial, the weakness of the State‟s case against Demontre was obscured by:

1) the trial court‟s coercing Marcus Jackson to change his testimony to say that

Demontre gave him the stolen necklace; 2) the improper admission of testimony

regarding guns found in Demontre‟s home that the State‟s own witness

acknowledged were not used in the crime; and 3) the prosecutor‟s repeated efforts

to elicit testimony about Demontre‟s prior arrests and to inject the specter of gang

involvement into the trial. These errors, alone and in combination, denied

Demontre a fair trial. Given the problems with the State‟s scant and compromised

identification evidence, these errors were prejudicial. Demontre Samuel is entitled

to a new trial.

                        Standard of Review for Argument 1

              A presiding judge has broad discretion in matters relating to the

orderly conduct of the trial. State v. Rhodes, 290 N.C. 16, 224 S.E.2d 631 (1976).

Discretionary rulings are afforded deference on appeal and will be overturned only

upon a showing that the exercise of that discretion was arbitrary or capricious.

State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986)
                                         -18-

             1.    Demontre’s Due Process Rights Were Violated When The
             Trial Court, Through Threats Of Perjury Prosecution, Coerced
             Marcus Jackson Into Changing His Testimony To Accuse
             Demontre.
             ASSIGNMENT OF ERROR 12
             (R pp 47-48) (T p 161, lines 18 through T p 162, line 14)

      While trial judges may, outside of the jury‟s presence, caution a witness to

testify truthfully, such admonitions are fraught with peril:

             “[J]udicial warnings and admonitions to a witness with reference to
             perjury are not to be issued lightly or impulsively. Unless given
             discriminatively and in a careful manner they can upset the delicate
             balance of the scales which a judge must hold evenhandedly.
             Potential error is inherent in such warnings, and in a criminal case
             they create special hazards.

             “First among these is that the judge will invade the province of the
             jury which is to assess the credibility of the witnesses and determine
             the facts from the evidence adduced. It is most unlikely that a judge
             would ever warn a witness of the consequences of perjury unless he
             had determined in his own mind that the witness had testified falsely.
             Therefore, if, while acting upon an assumption which only the jury
             can establish as a fact, he makes a declaration which alter the course
             of the trial, he risks committing prejudicial error.

             “A second hazard is that the judge‟s righteous indignation engendered
             by his “finding of fact” that the witness has testified untruthfully may
             cause the judge, expressly or impliedly, to threaten the witness with
             prosecution for perjury, thereby causing him to change his testimony
             to fit the judge‟s interpretation of the facts. . . [This] could be an
             infringement to the defendant‟s Sixth Amendment rights to confront a
             witness for the prosecution for the purpose of cross-
             examination…[This right is a] fundamental element[] of due process
             of law, and a violation…could hamper the free presentation of
             legitimate testimony. ... „Any statement by a trial court to a witness
             which is so severe as to put him or other witnesses present in fear of
             the consequences of testifying freely constitutes reversible error.‟”
                                         -19-


Rhodes, supra at 23-24, 224 S.E.2d at 636 (internal citations omitted, emphasis

added).

        Relying on the principles announce in Rhodes, our Supreme Court in State

v. Locklear, 309 N.C. 428, 306 S.E.2d 774 (1983), ordered a new trial for a

defendant convicted of firing into a dwelling. The Court held that the trial court‟s

admonitions to the State‟s witness invaded the province of the jury and probably

caused the witness to change her testimony to implicate the defendant.

        In Locklear, a State‟s witness on direct was “hesitant in her testimony and

appeared to be trying to help the defendant.” Id. at 430, 360 S.E.2d at 775. The

jury was excused and the prosecutor was allowed to voir dire the witness. The

witness repeatedly failed to answer questions and spoke too softly to hear. The

judge admonished her to answer the questions and to speak up, noting that she

could be held in contempt for failure to do so. When the witness‟ testimony

deviated from what she had told police, the trial judge told her that her failure to

testify truthfully could subject her to charge of perjury which could carry a ten year

sentence. After several admonitions, the witness finally testified that she had seen

the defendant pointing something at her house the night shots were fired at her

home.

        After citing extensively from Rhodes, the Locklear Court stated:
                                         -20-

      “Applying these considerations to the present case, we hold that the trial
      judge’s actions invaded the province of the jury, probably caused the
      witness to change her testimony, and may have deprived the defendant of a
      fair trial before an impartial judge. We note that after the last warning by
      the trial judge, the witness testified that it was defendant‟s car outside her
      house and that defendant was the person she saw outside her home at the
      time she heard the objects strike her home. It can be fairly inferred that this
      testimony resulted from the admonitions of the judge to Ms. Campbell. For
      this error, defendant is entitled to a new trial.”

Locklear, at 437, 306 S.E.2d at 779 (emphasis added).

      In the present case, the trial court did not just advise Jackson to testify

truthfully and explain the penalty for perjury as in Locklear. Rather, the trial

judge took a break in Mr. Jackson‟s testimony immediately after Jackson testified

that he was given the stolen necklace by someone other than Demontre. (T p 159)

Before allowing Jackson to continue testifying, the judge spoke to him out of the

jury‟s presence. The judge unequivocally accused Jackson of making an

inconsistent statement under oath.4 He then informed him of the penalties for

perjury. (T pp 161-162) It was only then that Jackson was allowed to resume his

testimony. This time, when the prosecutor asked who gave him the necklace,

Jackson said he got it from Demontre. (T p 165)



      4
        While the accuracy of the accusation is not a factor in determining
error, in this case, the Court’s accusation was not supported by the record
and invaded the province of the jury. Jackson never testified during the
voir dire exchange that Demontre had given him the chain. The prosecutor had
asked several, compound questions that included questions about who had given
Jackson the chain. He never directly answered her. (T p 150, lines 18-21)
She also phrased some of her questions regarding the chain in terms of what
Jackson had told Detective Clayton. (T p 150, line 22 through p 151, line 7)
                                         -21-

      The judge‟s comments in this case were more accusatory than those that

required reversal Locklear, and, because of that, the admonishment about perjury

charges was all the more threatening. In this case, there can be little doubt that the

trial judge‟s actions caused the witness to change his testimony. Before the

admonition, Jackson testified that someone other than Demontre gave him the

chain. After the admonition, Jackson testified that he received the chain from

Demontre.

      In both Locklear and Rhodes, our Supreme Court found reversible error

where the actions of the trial judge in admonishing a witness or counsel likely

affected the witness‟ testimony (Locklear) or counsel‟s subsequent questions

(Rhodes). Neither court conducted a harmless or prejudicial error analysis in

assessing whether to order a new trial. Our Supreme Court has in effect applied a

“harmful per se” rule to due process violations of this nature. 5 As in Locklear, “it

can be fairly inferred that [Marcus Jackson‟s] testimony [implicating Demontre]




      5
        Other courts addressing the issue of judicial or prosecutorial
interference with a witness’ testimony have held that due process violations
of this nature are harmful per se. In United States v. Hammond, 598 F.2d
1008, (5th Cir. 1979), the court stated: “On the basis of Webb v. Texas, 409
U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351 (1972), both the third and the sixth
circuits have stated that they would not require a finding of prejudice in
order to reverse a conviction because of this type of due process violation.
United States v. Morrison, 535 F.2d 223 (3d Cir. 1976); United States v.
Thomas, 488 F.2d 334 (6th Cir. 1973). We agree with their analysis of Webb
and hold that this type due process violation is harmful per se.”
                                         -22-

resulted from the admonitions of the judge… For this error, defendant is entitled

to a new trial.” Id.

      Even were this Court to entertain a claim that reversal is not required

because the due process violation was harmless, such a showing cannot be made

under the facts of this case. “A violation of the defendant's rights under the

Constitution of the United States is prejudicial unless the appellate court finds that

it was harmless beyond a reasonable doubt. The burden is upon the State to

demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C. Gen.

Stat. § 15A-1443(b) (2009); State v. Silva, 304 N.C. 122, 134, 282 S.E.2d 449, 456

(1981). The State cannot meet its burden here.

      In this case, the State had only two, problematic pieces of evidence other

than Marcus Jackson‟s coerced testimony that tied Demontre to the robbery.

      One piece of evidence was the identification of Demontre by Larry Johnson.

In addition to the inherent unreliability of eyewitness identification,6 Johnson‟s

identification was tainted by the fact that Lynette Paul told Johnson that Demontre

robbed him before Johnson looked at a photo line-up. While Johnson testified that


      6
        Two factors, the inherent unreliability of eyewitness identification
and its strong impact on juries, regardless of its accuracy, weighed strongly
in the U.S. Supreme Court’s decisions providing defendants with the right to
counsel at post-indictment line-ups. United States v. Wade, 388 U.S. 218
(1967) “The vagaries of eyewitness identification are well-known; the annals
of criminal law are rife with instances of mistaken identification. Id. at
228.
                                         -23-

he did not know Demontre, they had attended school together. (T pp 85, 87-89,

98-99, 467)

       19 year-old Johnson‟s identification of Demontre was further compromised

by the fact that his two statements to Detective Salmon saying that Demontre was

not the robber were rejected by the officers. Rather, adult pressure was brought to

bear on Johnson and resulted in an identification of Demontre after Johnson‟s third

time through the photo array. (“Studies show that children are more likely to make

mistaken identifications than are adults, especially when they have been

encouraged by adults.” Arizona v. Youngblood, 488 U.S. 51, 71, 102 L.E.2d 281,

298 (1988) (Blackmun, J. Dissenting))

       The second piece of evidence introduced by the State came from Lynette

Paul who testified that she saw Demontre on the night of the robbery with a stolen

chain. (T pp104-105) Lynette had little to no credibility. She admitted that she

had lied to the police regarding her knowledge of the crime. Up until the day she

testified at trial, she told police that she had actually witnessed the robbery. At

trial, she admitted that she was not there. (T pp 91-92) Her credibility was further

diminished when she testified that she saw Marcus Jackson get on the bus with

Demontre. (T p 103) Marcus Jackson and witness at the bus stop testified that he

did not get on the bus, but was picked up by his mother. (T pp 170, 402, 425,453-

454)
                                        -24-

      In contrast, the second robbery victim, Archie Poteat, very clearly testified

that the robber was a large, muscular guy. (T pp 136-137) Even Johnson, in his

handwritten statement, described his attacker as heavy set. (R p 20) As Detective

Clayton acknowledged, this description matched Marcus Jackson. It did not match

Demontre. (T pp 360-361)

      Numerous witnesses who were at the bus stop on the night of the robbery

testified that Demontre never left the bus stop bench and that Marcus Jackson

appeared at the bus stop with the stolen chains. The robbery victims described the

robber as wearing dark clothing; they failed to describe the unique yellow and

white design that was on Demontre‟s pants and shoes.7 Neither victim described a

visible yellow t-shirt collar that stuck out from under Demontre‟s black shirt.8

Both victims also described their assailant as having worn blue jeans. (T pp 46,

117) Demontre was wearing black jeans on the night of the robbery. (T pp 332,

405, 426, 475-476) Demontre did not have either of the stolen chains when police

searched his home and arrested him; both necklaces were recovered from other




      7
        As Detective Clayton’s testimony made clear, the mere description of
an assailant in a black shirt, blue jeans, and black sneakers was relatively
meaningless as an identifying factor. Such a generic outfit is common among
Durham youth. (T p 368)
      8
        The yellow collar can be seen in the photograph that Demontre had
taken at the photo shop in the mall on 23 February. This photograph was
obtained by police and introduced as State’s exhibit 15 (T pp 230-232) The
yellow undershirt was also described by witnesses at trial. (T p 405)
                                        -25-

people. No gun matching the victims‟ description of the gun used in the robbery

was ever found.

      Marcus Jackson‟s coerced testimony placed the stolen necklace in

Demontre‟s hand. Given the weakness of the State‟s case, it is impossible to say

that this testimony was harmless beyond a reasonable doubt.

                      Standard of Review for Argument 2.

             A trial court‟s rulings on relevancy objections are not discretionary

and thus not entitled to the abuse of discretion standard of review. State v. Cowan,

__ N.C. App. ___, at ___, 669 S.E.2d 811, 814 (2008). They are in fact rulings of

law and accordingly should be reviewed de novo. “Under a de novo review, the

court considers the matter anew and freely substitutes its own judgment for that of

the [trial court].” In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003) (citation omitted). Such rulings are,

however, accorded deference on appeal. Cowan, supra.

             2.   The Trial Court Erred in Admitting Evidence of Guns
             Found in Demontre’s Home That Were Not Tied to the Robbery.
             ASSIGNMENTS OF ERROR 6-9
             (T pp 234, 383, 386-387, 477-480); (R p 47)

      Neither of the two guns introduced at trial met the victims‟ descriptions of

the weapon used in the robbery. Both witnesses clearly described the gun used as

a large, smokey gray, semi-automatic. Detective Clayton ensured that both victims
                                         -26-

knew the difference between a revolver and a semi-automatic handgun. (T pp 39,

352-353) The weapons collected from Demontre‟s home were a shiny silver semi-

automatic owned by Demontre‟s stepfather and kept in a locked safe, and a small,

gray revolver. Based on the victims‟ descriptions of the gun, Detective Clayton

determined that these were not the weapons used in the robbery. (T p 353) The

victims never identified either of the two guns introduced at trial as being the

weapon used in the robbery.

      Despite the obvious irrelevance of the guns found in Demontre‟s home, the

State was allowed, over objection, to introduce both guns into evidence. (T pp

386-387) A photograph of the revolver was introduced without objection and

published to the jury.9 (T p 381)

      Most egregiously, the trial court allowed the prosecutor, over repeated

relevancy objections, to introduce evidence that the revolver was found by

Demontre‟s mother in their home two days after the robbery and that she

questioned Demontre about it. (T pp 477-478) The prosecutor compounded the

harmful effect of the admission of this irrelevant, prejudicial and confusing

evidence by showing the jury an enlarged, slide version of the photograph of the

revolver during her closing argument. While the jury looked at the blown-up slide




      9
          This admission constituted plain error.
                                        -27-

of the gun, the prosecutor, in reviewing the evidence to support a conviction said,

“Gun was found. . .”

      "Evidence which is not relevant is not admissible." N.C. Gen. Stat. § 8C-1,

N.C. Evidence Rule 402. "„Relevant evidence' means evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence." N.C. Gen. Stat. § 8C-1, N.C. Evidence Rule 401. Absent

some connection between a weapon sought to be admitted and the crime charged,

weapon evidence is irrelevant and should be excluded.

      In State v. Patterson, 59 N.C. App. 650, 297 S.E.2d 628 (1982), the Court of

Appeals reversed Patterson‟s armed robbery conviction and ordered a new trial

where the State had introduced evidence of a shotgun found in the defendant‟s car.

There was no evidence connecting the shotgun to the robbery. The Patterson Court

recognized that weapons are admissible in evidence where there is testimony

connecting them with the crime charged. In Patterson the testimony establishing

this connection between the shotgun and the robbery was missing. Thus, the

Patterson Court concluded that the trial court erred in admitting evidence

concerning the shotgun.

      The Court went on to conclude that there was “a reasonable possibility that

the erroneous admission of the shotgun evidence contributed to the defendant‟s
                                          -28-

conviction, particularly in light of the conflicting evidence regarding the identity of

the defendant as the man who robbed Marie Tarver.” Id. at 653-654, 297 S.E.2d at

630. The Court also recognized that the evidence of the shotgun was potentially

confusing and misleading to the jury.

        In the present case, like in Patterson, there was no evidence connecting

either gun to the crime. Like Patterson, there was conflicting testimony regarding

the identity of the robber. In this case, like in Patterson, there was a reasonable

possibility that the admission of the evidence of the guns found in Demontre‟s

home contributed to his conviction.

        It is clear that State was using evidence of the revolver to link Demontre to

the robbery. While two guns were found in the home, the prosecutor focused on

the revolver. She introduced a photograph of the revolver and not of the shiny,

semi-automatic that was found in Bracey‟s safe. The prosecutor elicited testimony

from Demontre‟s mother linking him to the revolver. She highlighted this one gun

by publishing a picture of it to the jury during trial. In her closing, she referred to

“gun found” in the singular, and projected an image of the revolver alone for the

jury.
                                            -29-

      Given the weakness of the State‟s evidence that Demontre was the robber

and the substantial evidence demonstrating that he was not,10 there is a reasonable

possibility, indeed a high probability,11 that the erroneously admitted gun evidence

confused and misled the jury and contributed to Demontre‟s conviction. Under

Patterson, he is entitled to a new trial.

                        Standard of Review for Argument 3.

      Where a defendant alleges a violation of his constitutional right to due

process, the claim is a question of law and entitled to de novo review. State v.

Maher, 305 N.C. 544, 547, 290 S.E.2d 694, 696 (1982). “Under a de novo review,

the court considers the matter anew and freely substitutes its own judgment for that

of the [trial court].” In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003) (citation omitted).

      A court‟s ruling denying a motion for a mistrial is reviewed for an abuse of

discretion and will be overturned only upon a showing that the exercise of that



      10
        See detailed discussion of the problems in the State’s case earlier
in this brief at pp 22-25.
      11
        With regard to the admission of the photograph of the gun, the plain
error standard of prejudice applies because no objection was made. Under
this standard, the defendant must demonstrate either 1) that a different
result probably would have been reached but for the error or 2) that the
error was so fundamental as to deny the defendant a fair trial or result in a
miscarriage of justice. State v. Jones, 358 N.C. 330, 348, 595 S.E.2d 124,
136 (2004) Given the unique facts of this case, which include the problems
with the victim’s identification of Demontre and the significant evidence
concerning Marcus Jackson’s involvement in this crime, a different result
probably would have been reached without the gun evidence that the State used
to bolster its weak identification evidence.
                                         -30-

discretion was arbitrary or capricious. State v. Barts, 316 N.C. 666, 682, 343

S.E.2d 828, 839 (1986).

             3.    The Prosecutor’s Repeated Introduction of Irrelevant and
             Inflammatory Information Concerning Gang Involvement and
             Prior Arrests Denied Demontre his Due Process Right to a Fair
             Trial. The Trial Court Erred in Denying Demontre’s Motions for
             a Mistrial Following the Introduction of This Evidence.
             ASSIGNMENTS OF ERROR 2-5
             (RP 46) (T pp 5-6, 234, 258, 479)

      On four separate occasions during the trial, the prosecutor placed

information about gangs and Demontre‟s prior arrest before the jury. On each

occasion, defense counsel objected and was sustained. (T pp 5-6, 234, 258, 479)

On two of the occasions, the jury was instructed to disregard the evidence. On

three of these occasions, defense made motions for a mistrial which were denied.

(T pp, 5-6, 234, 258) Despite the trial court‟s attempts to neutralize the harm done

by the prosecutor, the information adduced or alluded to was so highly

inflammatory, prejudicial and confusing that, under the unique circumstances of

this case, the instructions given could not cure the harm done to Demontre‟s right

to a fair trial. Correspondingly, the court erred in refusing to grant the defense

motions for a mistrial.

      While our appellate courts ordinarily presume that a jury has followed a

court‟s instruction to disregard inadmissible evidence, this is not always the case.

In State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), our Supreme Court found
                                          -31-

that the trial court‟s denial of a mistrial was error where a State‟s witness

volunteered evidence of the defendant‟s prior arrest and indictment for murder. In

Aycoth, the trial court had sustained the defense objection to the testimony and

instructed the jury to disregard it, but denied the defendant‟s motion for a mistrial.

The Aycoth court recognized that in some cases, due to the nature of the

incompetent evidence and its likely influence on the minds of a jury, a curative

instruction does not cure the error. The analysis of the effectiveness of the curative

instruction depends on the “nature of the evidence and the circumstances of the

particular case.” Id. at 273, 154 S.E.2d at 61 (citation omitted).

      Similarly, in State v. Johnson, 41 N.C. App. 423, 255 S.E. 2d 275 (1979),

the Court ordered a new trial where the prosecutor questioned a witness regarding

the defendant‟s prior convictions. Though timely objections were sustained and

the witness never answered the question, the Johnson court concluded that the

“possible prejudicial effect of the prosecuting attorney‟s comments could not be

cured by the trial court‟s instructions that they be disregarded.” Id. at 429, 255

S.E.2d at 279. In reaching this conclusion, the Court noted that, “[t]he evidence in

this case is not so overwhelming as to render the prejudicial effect insignificant.”

Id. Thus, the trial court‟s denial of a mistrial was error.

      Mention of or allusion to gang involvement has, like evidence of prior

arrests, a high likelihood of prejudicing and confusing the jury. In cases involving
                                         -32-

the erroneous admission of evidence of gang involvement, relief was denied

because the evidence of the defendant‟s guilt was overwhelming. State v. Gayton,

185 N.C. App. 122, 125-126, 648 S.E. 2d 275, 278 (2007).

      In the present case, evidence of Demontre‟s guilt was the antithesis of

“overwhelming”. This case was exclusively about identification. In addition to

inflaming the jury‟s prejudices generally, the prosecutor‟s questions about

Demontre‟s prior arrest specifically alerted the jury to the fact that it was for a gun

offense. (T p 479) The clear danger is that the jury would use this as evidence that

Demontre was in fact the armed robber.

      As discussed extensively in this brief at pp 22-25, there were serious

weaknesses in Larry Johnson‟s identification of Demontre. The only other

evidence linking Demontre to the crime was the coerced testimony of Marcus

Jackson, and the testimony of an admitted liar, Lynette Paul, that placed a stolen

necklace in Demontre‟s hand.

      On the other side of the scale was the testimony of the second victim, Archie

Poteat, who graphically described the build of his assailant, and Detective

Clayton‟s testimony that the description given to him by both victims matched

Marcus Jackson and not Demontre. (T pp 136-137, 360-361) Numerous witnesses

testified that Demontre never left the bus stop bench during the time of the

robbery, and that Marcus Jackson bragged about committing the crime. Marcus
                                          -33-

Jackson was ultimately found in possession of one of the stolen necklaces and had

given the other necklace to Shaquille Drakeford.

      Given the weaknesses in the State‟s case, and the substantial evidence that

pointed to Marcus Jackson as the perpetrator of the robbery, it is impossible to

conclude that the trial court‟s instructions cured the prejudicial effect of the

prosecutor‟s repeated references to prior arrests and gang involvement.

Accordingly, Demontre is entitled to a new trial.

             4. The Cumulative Effect Of Errors in the Judicial Coercion of
             Testimony, the Admission of Irrelevant Gun Evidence, and the
             Repeated Prosecutorial Misconduct in Referring to Alleged Gang
             Involvement and to Demontre’s Prior Arrest, Denied Demontre a
             Fair Trial.
             ASSIGNMENT OF ERROR 13
             (R p 48) (T pp 5, line 18- page 6, line 3; T p 234, lines 8-16; T p 254,
             lines 6-18; T p 479, lines 11-18; T p 234, lines 8-16, T p 383, lines 16-
             19; T pp 321, line 14 through T p 323, line 4; T p 386 lines 3-15; T p
             387, lines 6-10; T p 55, line 1 through T p 59 line 20; T p 60, line 2
             through T p 61, line 14; T p 225, line 21 through T p 226, line 4; T p
             272, line 21 through T p 273 line 3; T p 315, lines 6-11; T p 37, line
             22 through T p 38, line 1; T p 174 lines 13-20; T p 161, line 18
             through T p 162, line 14; T A-III p 29, lines 18-23)

      Even were this Court to conclude that the errors alleged in arguments 1-3

above did not individually deny Demontre his right to a fair trial as guaranteed by

the 14th Amendment to the U.S. Constitution, there can be little doubt that the

combined effect of these errors did. The only issue in this case was whether a

single witness had correctly identified Demontre as his attacker. The combined
                                         -34-

effect of judicially coerced testimony tying Demontre to the stolen property, the

admission of irrelevant gun evidence, and the repeated references to prior arrests

and gang involvement so compromised the integrity of the judicial process that a

new trial is required.

       In State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992), our Supreme Court

recognized the principle of cumulative error as an alternative means of showing

prejudice:

      Although neither of the trial court's errors, when considered in isolation,
      might have been sufficiently prejudicial to warrant a new trial, we are of the
      opinion that cumulatively they are sufficiently prejudicial that we are unable
      to say that defendant received a fair trial, and therefore a new trial is
      required.

Id. at 610, 419 S.E.2d at 561. (See also, State v. Canady, 355 N.C. 242, 254, 559

S.E.2d 762, 768 (2002) “We conclude that the errors outlined above, taken as a

whole, deprived defendant of his due process right to a fair trial free from

prejudicial error.”)

      Here, there were significant problems with the State‟s identification

evidence. See, at length discussion in Arguments 1-3, above. The errors, which all

involved exposing the jury to incompetent, highly prejudicial information both

confused the identification issue and generally prejudiced the jury against

Demontre. Because the evidence in this case was far from overwhelming, it is
                                         -35-

impossible to conclude that Demontre received a fair trial free from prejudicial

error. As in White and Canady, a new trial is required.

II.   THE TRIAL COURT FAILED TO EXERCISE DISCRETION WHEN
      IT RAN DEMONTRE’S SENTENCES ON HIS ROBBERY
      CONVICTIONS CONSECUTIVELY.
      ASSIGNMENT OF ERROR 14
      (R p 28, 48) (T p 501)

      The decision on whether to run sentences concurrently or consecutively is

left to the trial court‟s discretion. State v. Mckenzie, 122 N.C. App. 37, 48, 468

S.E.2d 817,825 (1996). Discretionary decisions are granted deference on appeal

and will be overturned only upon a showing that the exercise of that discretion was

arbitrary or capricious. State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839

(1986).

      While a trial court‟s discretion is broad, it is not unbridled. The requirement

for the exercise of that discretion “implies conscientious judgment, not arbitrary

action”. State v. Robinson, 248 N.C. 282, 286, 103 S.E.2d 376, 379 (1958).

Defendants subject to a court‟s discretionary decisions are “entitled to fair

treatment, and [are] not to be made the victim[s] of whim or caprice”. Id.

      In the present case, the trial court made clear on the record that its decision

to run Demontre‟s robbery sentences consecutively was the embodiment of an

arbitrary and capricious decision. When asked by defense counsel to provide its

reasons for ordering the sentences to run consecutively, the court responded, “That
                                        -36-

is because I wanted to.” (T p 501) Because the trial court‟s decision was not

conscientious, but rather, by the court‟s own admission, capricious, the decision to

run Demontre‟s sentences consecutively was an abuse of discretion and must be

reversed.

                                 CONCLUSION


      For all the foregoing reasons, defendant respectfully contends that the

conviction below should be vacated and a new trial ordered. If this Court upholds

the conviction, the defendant respectfully contends that the judgments should be

vacated and remanded for resentencing.

      Respectfully submitted this the 4th day of November 2009.



                                      (Electronically submitted)
                                Michele Goldman
                                ATTORNEY FOR DEFENDANT-APPELLANT
                                N.C. State Bar No. 36358
                                P.O. Box 30564
                                Raleigh, NC 27622
                                (919) 270-4175
                                michelegoldman@earthlink.net
                                        -37-

                      CERTIFICATE OF WORD COUNT


      I hereby certify that the word count of Defendant-Appellant‟s Brief in COA

09-1230 is less than 8,750 words including footnotes and citations.

      This the 4th day of November, 2009.



                               (Electronically submitted)
                          Michele Goldman
                          ATTORNEY FOR DEFENDANT-APPELLANT


                         CERTIFICATE OF SERVICE

      I hereby certify that a copy of the above and foregoing Defendant-

Appellant‟s Brief has been duly served upon Ms. Alexandra Hightower, Assistant

Attorney General, by sending it electronically to her correct email address,

ahightower@ncdoj.gov.

      This the 4th day of November 2009.



                                     (Electronically submitted)
                                Michele Goldman
                                ATTORNEY FOR DEFENDANT-APPELLANT

				
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