State v Thompson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-582 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 06 CRS 257752; 257754 BRYANT DAVID THOMPSON On writ of certiorari to review judgment entered 18 January 2008 by Judge James E. Hardin in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 October 2011. Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State. Richard E. Jester, for defendant-appellant. CALABRIA, Judge. Bryant David Thompson ( defendant ) appeals from a judgment entered upon jury verdicts finding him guilty of robbery with a dangerous weapon ( RWDW ) and possessing a weapon on educational property. We find no error. I. Background -2On 14 December 2006, Donald,1 a student at Hopewell High School in Huntersville, North Carolina, entered a restroom. Two males ( the robbers ) were inside the restroom, one of which was defendant. When Donald attempted to leave, the robbers stopped him and forced him into the back of the restroom. Defendant demanded that Donald give the robbers his wallet. The robbers told Donald that they had a knife and then defendant took a knife out of his pocket. knife, Donald surrendered his wallet. Upon seeing the The robbers took a twenty dollar bill and other currency from the wallet, returned the wallet to David, and then left the restroom. After a few moments, Donald left the restroom and reported the robbery ( Sanders ). classroom. to the school Sanders and security David officer, saw the Thomas robbers Sanders enter a Sanders removed two students from the classroom and brought them to Donald, who positively identified them as the robbers. Sanders escorted the robbers to the office of Assistant Principal Reginald Coles ( Coles ). Coles had Sanders place the robbers in his office and then conferred briefly with Sanders and Donald outside the door. Sanders heard one of the robbers throw something in Coles trash 1 Donald is a pseudonym used to protect the identity of the minor child victim. -3can. He went into the office to investigate and discovered the knife inside the can. Sanders brought the knife to Coles. Coles asked the two robbers to identify the owner of the knife. Defendant admitted the knife was his. When Coles asked defendant why he threw the knife in the trash can, defendant replied that he didn t know. Officer C. Huntersville A. Police Jones, Department II ( Officer was called Jones ) to Coles of the office. When he arrived, Donald told him about the robbery and Coles gave him the knife. Officer Jones went into Coles office and asked the robbers, whose knife is this? that the knife was his. and, while searching Defendant responded Officer Jones arrested both robbers defendant incident to the arrest, discovered a twenty dollar bill in defendant s sock. Several weeks after defendant was arrested, he approached Donald to encourage him not to testify against defendant. Donald refused, and provided a written statement regarding this encounter to Officer Jones. Defendant was indicted for RWDW and possession of a weapon on educational property. Beginning 14 January 2008, defendant was tried by a jury in Mecklenburg County Superior Court. trial, defendant allowed his attorney to admit that he At was -4guilty of possession of a weapon on educational property. Defendant testified on his own behalf and admitted both that he possessed the knife on school property and that he pulled it out during the robbery, but he denied that he intentionally participated in robbing Donald. On 18 defendant January guilty determining that 2008, of both the jury charges. mitigating factors returned The verdicts trial were finding court, present, after sentenced defendant to a minimum of 38 months to a maximum of 55 months in the North Carolina Department of Correction. After failing to give notice of appeal, defendant filed a petition for writ of certiorari, and this Court granted review. II. Questioning of Defendant Defendant argues that the trial court erred by failing to rule sua sponte that defendant was improperly questioned Coles and Officer Jones in violation of his Miranda rights. by We disagree. A. Preservation at Trial Defendant s attorney did not object to this evidence at trial; therefore appellate review. defendant s he has failed to preserve this issue See N.C.R. App. P. 10(a)(1) (2010). argument also references plain for While error, -5 [c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error[.] State v. Gobal, 186 N.C. App. 308, 320, 651 S.E.2d 279, 287 (2007)(citations omitted). Thus, this argument is not properly before this Court. B. Motion for Appropriate Relief However, in the alternative, defendant has filed a motion for appropriate relief ( MAR ) with this Court pursuant to N.C. Gen. Stat. § 15A-1418 (2009). N.C. Gen. Stat. § Defendant s MAR is based upon 15A-1415(b)(7) (2009), which allows a defendant to seek relief where [t]here has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required. Defendant contends that the United States Supreme Court s decision in J.D.B. v. North Carolina, S. Ct. 2394, 180 L. Ed. 2d 310 (2011), 564 U.S. ___, 131 which held that a juvenile s age must be taken into consideration for purposes of the Miranda custody analysis, constituted a significant change in the law. Defendant further argues that applying J.D.B. in the instant case would have required Coles and Officer Jones to inform defendant, who was sixteen years old at the time of the -6robbery, of his Miranda rights before questioning him in Coles office. However, it is unnecessary to determine what effect, if any, J.D.B. had upon the propriety of defendant s questioning. Even assuming, defendant s arguendo, answers to that Coles the and introduction Officer Jones at trial violated of his constitutional rights, the violation would not entitle defendant to relief as it was harmless beyond a reasonable doubt. See N.C. Gen. Stat. §§ 15A-1420(c)(6) (2009)( A defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443. ) and 15A1443(b)( A Constitution violation of the of the United defendant's States is rights prejudicial under the unless the appellate court finds that it was harmless beyond a reasonable doubt. ). In the instant case, both Coles and Officer Jones testified about the questions they asked defendant in Coles office after the robbery. Their individual testimony indicates that the only questions asked of defendant pertained to the identity of the owner of the knife. Coles testified: Um, I asked whose knife is this and initially, um, no one wanted to speak up but -7about then, [defendant s accomplice] stated that it wasn t his. Bryant did say - Mr. Thompson did say it was his. I asked him, Why did you throw it in the trash can? , and he said, he didn t know. Officer Jones testimony was similar: I then went into Mr. Coles office. I pulled the knife out and I said, you know, Whose knife is this? . And that s when Mr. Thompson - Bryant Thompson, he said, That s my knife. Neither Coles nor Officer Jones asked defendant any questions regarding the actual events of the robbery. Since these questions and defendant s subsequent answers were limited to his ownership of the knife, the introduction of these answers could not have been prejudicial. Prior to trial, defendant specifically assented to his attorney admitting that he was guilty of possession of a weapon on school property. In addition, defendant testified, at trial, that the knife was his and that he had brought it to school on the day of the robbery. In light of defendant s admissions, any constitutional violation defendant suffered by the introduction of his answers to Coles and Officer Jones would be harmless beyond a reasonable doubt. Consequently, defendant is not entitled to relief on his MAR and his motion is denied. III. Donald s Statement to Officer Jones -8Defendant argues that the trial court erred by refusing to allow defendant to fully examine the State s witnesses. This portion of defendant s brief is confusing, but it appears that defendant during specifically sustaining the that the trial cross-examination defendant s contends of Officer State s objections to court Jones questions Donald s written statement after the robbery. erred by regarding Defendant argues there was a contradiction between Donald s testimony at trial regarding how he felt while he was being robbed and the statement. However, the record does not reflect that the trial court ever took the action alleged by defendant, and defendant s record references certainly do not contain any such ruling by the trial court. First, defendant cites portions of the transcript during which defendant s counsel was attempting to question Officer Jones about a statement which was provided by Sanders, not Donald. Next, defendant references a portion of the transcript regarding Donald s written statement to Officer Jones describing his encounter with defendant a few weeks after the incident. The statement reflected how Donald felt when defendant attempted to persuade Donald not to testify against him. How Donald felt after this incident, which occurred weeks -9after the robbery, was wholly irrelevant to how Donald felt at the time of the robbery and thus, immaterial to defendant s argument. In fact, defendant s trial counsel never questioned Officer Jones about Donald s statement in the context of how David felt during the robbery, and so the trial court could not have sustained any objections to a cross-examination that never took place. Since the trial court never took the action defendant argues as an issue on appeal, the trial court necessarily could not have erred. This argument is overruled. IV. Conclusion Defendant failed to show prejudice in his MAR because his answers to Coles and Officer Jones related only to his ownership of the knife, and ownership during trial. defendant repeatedly acknowledged his As a result, defendant s MAR is denied. The trial court did not err in sustaining the State s objections during Officer Jones cross-examination. No error. Judges McGEE and HUNTER, Robert C. concur. Report per Rule 30(e).
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