No. COA05-1237JUDICIAL DISTRICT FIFTEEN-A
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)From AlamanceCounty
v.)Nos. 04CRS54981, 54986, 54991
)
TINO LOVE,)
Defendant)
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DEFENDANT-APPELLANT TINO LOVE’S BRIEF
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1
INDEX
PAGE
TABLE OF CASES AND AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 1
STATEMENT OF FACTS ...... 2
ARGUMENT:
I.THE COURT ERRED BY DISOBEYING THE GENERAL ASSEMBLY’S MANDATORY PROCEDURE FOR JURY SELECTION ENACTED IN N.C. GEN. STAT. § 15A-1214(D) AND (E). 12
A.Standard of Review ...... 13
B.Discussion ...... 14
II.THE COURT ERRED WHEN IT DENIED THE DEFENDANT’S MOTION TO INSTRUCT THE JURY ON SECOND DEGREE KIDNAPPING. 18
A.Standard of Review ...... 18
B.Discussion ...... 19
III.THE COURT ERRED WHEN IT DENIED THE DEFENDANT’S MOTION TO DISMISS THE AGGRAVATING FACTOR SET OUT IN N.C. GEN. STAT. § 15A-1340.16(D)(2). 21
A.Standard of Review ...... 21
B.Discussion ...... 22
IV.THE COURT COMMITTED PLAIN ERROR WHEN IT MADE FINDINGS ON SUBMITTED MITIGATING FACTORS WHEN THE DEFENDANT WAS NOT PRESENT IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO BE PRESENT. 25
A.Standard of Review ...... 25
B.Discussion ...... 26
CONCLUSION ...... 27
CERTIFICATE OF SERVICE ...... 29
TABLE OF CASES AND AUTHORITIES
CASES
PAGE
Blakely v. Washington,
524 U.S. ___, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004)...... 22
Illinois v. Allen,
397 U.S. 337, 90 S. Ct. 1057,
25 L.Ed.2d 353 (1970)...... 26
Keeble v. United States,
412 U.S. 205, 93 S. Ct. 1993,
36 L.Ed.2d 844 (1973)...... 18
Pointer v. Texas,
380 U.S. 400, 85 S. Ct. 1065,
13 L. Ed. 2d 923 (1965)...... 26
State v Allen,
359 N.C. 425, 615 S.E.2d 256 (2005)...... 22, 23
State v. Blackwelder,
61 N.C. (Phil. Law) 38 (1866)...... 26
State v. Craton,
28 N.C. (6 Ired.) 164 (1845)...... 26
State v. Garcia,
358 N.C. 382, 597 S.E.2d 724 (2004)...... 13
State v. Harper,
50 N.C. App. 198, 272 S.E.2d 600 (1980)...... 16
State v. Holland,
161 N.C. App. 326, 588 S.E.2d 32 (2003)...... 22
State v. Huff,
325 N.C. 1, 381 S.E. 2d 635 (1981)...... 26
State v. Israel,
353 N.C. 211, 539 S.E.2d 633 (2000)...... 22
State v. Leazer,
353 N.C. 234, 539 S.E.2d 922 (2000)...... 18
State v. Mickey,
347 N.C. 508, 459 S.E.2d 669 (1998)...... 21
State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983)...... 14, 25
State v. Peacock,
313 N.C. 554, 330 S.E.2d 190 (1985)...... 19
State v. Roddey,
110 N.C. App. 810, 431 S.E.2d 245 (1993)...... 22
State v. Simpson,
341 N.C. 316, 462 S.E.2d 191 (1995),
cert. denied, 516 U.S. 1161, 116 S.Ct. 1048,
134 L.Ed.2d 194 (1996)...... 17
State v. Stephens,
51 N.C. App. 244, 275 S.E.2d 574 (1981)...... 16
State v. Thomas,
350 N.C. 315, 514 S.E.2d 486,
cert. denied, 528 U.S. 1006, 120 S.Ct. 503,
145 L.Ed.2d 388 (1999)...... 20
State v. White,
127 N.C. App. 565, 492 S.E.2d 48 (1997)...... 20
State v. Williams,
350 N.C. 1, 510 S.E.2d 626,
cert. denied, 528 U.S. 880, 120 S.Ct. 193,
145 L.Ed.2d 162 (1999)...... 13, 16
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
N.C. Const., Art. I, § 19...... 26
N.C. Const., Art. I, § 23...... 26
U.S. Const., Amend. VI...... 22, 26
U.S. Const., Amend. XIV...... 22, 26
N.C. App. R. 10(b)(1)...... 13, 25
N.C. App. R. 10(c)(4)...... 13, 25
N.C. Gen. Stat. § 14-33(b)(3)...... 2
N.C. Gen. Stat. § 14-39...... 2
N.C. Gen. Stat. § 14-39(a)(2)...... 19
N.C. Gen. Stat. § 14-39(b)...... 19
N.C. Gen. Stat. § 14-87...... 2
N.C. Gen. Stat. § 15A-1214(d)-(e)...... 14
N.C. Gen. Stat. § 15A-1214(f)...... 16
N.C. Gen. Stat. § 15A-1340.16...... 22
N.C. Gen. Stat. § 15A-1340.16(a)...... 22
N.C. Gen. Stat. § 15A-1340.16(d)...... 21
N.C. Gen. Stat. § 15A-1340.16(d)(2)...... 1, 11, 21, 27
N.C. Gen. Stat. § 15A-1340.16(e)(9)...... 11, 12, 27
N.C. Gen. Stat. § 15A-1340.16(e)(11)...... 11, 12, 27
N.C. Gen. Stat. § 15A-1340.16(e)(15)...... 11, 12, 27
N.C. Gen. Stat. § 15A-1340.16(e)(18)...... 11, 12, 27
N.C. Gen. Stat. § 15A-1340.16(e)(19)...... 11, 12, 27
N.C. Gen. Stat. § 15A-1340.16A...... 11
N.C. Gen. Stat. § 15A-1443(a)...... 13, 19
N.C. Gen. Stat. § 15A-1446(a)...... 13, 25
N.C. Gen. Stat. § 15A-1446(b)...... 13, 25
OTHER AUTHORITIES
Carol B. Anderson,
North Carolina Trial Practice (1996)...... 18
1
No. COA05-1237JUDICIAL DISTRICT FIFTEEN-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From AlamanceCounty
v.)Nos. 04CRS54981, 54986, 54991
)
TINO LOVE,)
Defendant)
*********************************
DEFENDANT-APPELLANT TINO LOVE’S BRIEF
*********************************
QUESTIONS PRESENTED
I.DID THE COURT ERR BY DISOBEYING THE GENERAL ASSEMBLY’S MANDATORY PROCEDURE FOR JURY SELECTION ENACTED IN N.C. GEN. STAT. § 15A-1214(D) AND (E)?
II.DID THE COURT ERR WHEN IT DENIED THE DEFENDANT’S MOTION TO INSTRUCT THE JURY ON SECOND DEGREE KIDNAPPING?
III.DID THE COURT ERR WHEN IT DENIED THE DEFENDANT’S MOTION TO DISMISS THE AGGRAVATING FACTOR SET OUT IN N.C. GEN. STAT. § 15A-1340.16(D)(2)?
IV.DID THE COURT COMMIT PLAIN ERROR WHEN IT MADE FINDINGS ON SUBMITTED MITIGATING FACTORS WHEN THE DEFENDANT WAS NOT PRESENT IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO BE PRESENT?
STATEMENT OF THE CASE
The Defendant, Tino Love, was tried on four counts of first degree kidnapping, one count of robbery with a firearm, and one count of felonious breaking and entering at the 6 December 2004 Criminal Session, the Honorable Evelyn W. Hill, judge presiding. On 15 December 2004, the jury returned a verdict of guilty on all charges. Following a sentencing hearing on 16 December 2004, the court entered judgment, imposing four consecutive sentences of 167 to 210 months followed by a fifth consecutive sentence of 146 to 185 months, for a total term of 814 to 1,025 months. The Defendant gave timely notice of appeal and now appeals to this Court. The record on appeal was filed on 5 September 2005, docketed on 23 September 2005, and mailed from the clerk’s office on 4 October 2005.
STATEMENT OF FACTS
In a case arising in AlamanceCounty, Tino Love was charged with four counts of first degree kidnapping, one count of assault on a child under 12 years of age, and one count of robbery with a dangerous weapon. N.C. Gen. Stat. §§ 14-39; 14-33(b)(3); 14-87. (R. pp. 122-127) Without written motion and over his objection, the action against Tino Love was joined for trial with co-defendants Toby Love and Ronnie Love on 6 through 16 December 2004. (T. pp. 11-12) He was convicted and sentenced to a total term of imprisonment of 814 to 1,025 months. (R. pp. 198-207; T. pp. 1575-1577) His conviction is before this Court for review.
Following the court’s initial introduction and inquiries (T. pp. 287-310), jury selection began with voirdire by the State until the State was satisfied with twelve jurors. (T. pp. 319-435) During the course of the State’s voirdire, outside the presence of the jury pool, the court explained to co-defendant Ronnie Love’s counsel its plan for jury selection as follows:
The State passes 12 to you. You question. You excuse any, it goes back to the State. State fills up those seats. Passes 12 to you. You excuse any, it goes back to the State. When there’s 12 that you’ve passed and the State has passed, then it goes to Ms. Harris [counsel for Tino Love]. We’ll keep doing that until we’re done and we’re going to have to keep up with it because I probably will have some trouble remembering how many each persons [sic] gets to question. I’ll do my best. Any other questions? (T. pp. 419-420).
In accord with that announced plan, the twelve jurors with which the State was satisfied were passed to Ronnie Love for voirdire, who exercised four strikes. (T. pp. 435-445) After replacing those four and examining them, the court passed four replacement jurors to the State for voirdire until it was satisfied with a new complement of twelve. (T. pp. 469-491) Then, those four replacements were passed to Ronnie Love for voirdire, and he struck one. (T. pp. 494-497) That replacement juror was then passed to the State, and, following voirdire, the State was satisfied and the new complement was passed back to Ronnie Love who, after voir dire, was satisfied. (T. pp. 498-506)
Then, the full complement of twelve jurors was passed to Tino Love for voirdire. (T. p. 509) Tino Love struck two jurors (T. pp. 519), and those two replacements were then passed to the State who was satisfied with them. (T. pp. 521-526) The replacement jurors were then passed to Ronnie Love who was satisfied with them (T. pp. 526-534) and then to Tino Love, who, after voirdire, struck one of the replacements. (T. pp. 534-536) A new replacement juror was called and passed to the State, which was satisfied. (T. pp. 536-543) That replacement was, however, stricken by Ronnie Love. (T. pp. 543-545) A new replacement was called and passed to the State, which was satisfied, then passed to Ronnie Love, who was satisfied, and then passed to Tino Love, who was then satisfied. (T. pp. 546-552) With that, a full complement of twelve jurors was passed to Toby Love, and Toby Love was satisfied with all twelve. (T. pp. 552-555) Similar procedure was then followed in selecting alternates. (T. pp. 556-581) The evidence presented to the jury thus selected tended to show the following:
Martin Eugene Petersen and his wife Tammy lived in AlamanceCounty on Pagetown Road with their two sons, Matt (age 18) and Grant (age 10). (T. pp. 638, 780, 800, 818, 850) Upon denial of the Defendant’s sequestration motion (T. p. 596), all witnesses testified in one another’s presence.
On 2 June 2004, at approximately 7:00 a.m., Mr. Petersen stepped out their kitchen door to call his son, who had just graduated from high school the night before. Receiving no answer, he stepped back in and saw an individual coming across the room toward the kitchen. The person was “strange” and was wearing a wig, had his face made up, and was wearing baggie clothes. When Mr. Petersen asked the stranger to identity himself, a gun was pointed in his face. (T. pp. 639-641, 704) He then saw a second person coming from the basement, wearing baggie clothes, a covering over his face, and armed with an automatic weapon. (T. pp. 642-643)
Thinking it was a practical joke, Mr. Petersen “brushed” the second person back, and Mrs. Petersen, who was in the room, said she thought it was real. Then, Mr. Petersen saw Matt enter, bound with duct tape and something over his face. A third person had a gun on Matt who said, “Dad, this is real.” (T. pp. 643, 733; seealso pp. 782, 823)
Mr. Petersen was placed face down on a couch and his hands and ankles were bound with duct tape. (T. p. 646) Meanwhile, Matt had gone and wakened Grant, and then Mrs. Petersen and Grant were pushed down on their knees and taped at a second couch. Matt was placed on a recliner between the two couches, his hands and feet bound, and his face covered with a “rag or something.” Grant was bound hand and foot, and tape was wrapped around his head to cover his mouth. (T. pp. 649-650, 784-787, 824, 851-852) After all four Petersens were bound, a fourth person, who was unarmed, entered the living room. (T. pp. 651, 652)
The third person asked where the Petersens kept their money, and Mr. Petersen told them where he had just put $500 of grocery money. (T. p. 653) The fourth person went to the attic, and the third person started going through the house. (T. p. 653) Later, the fourth person came in wearing Matt’s “turkey hunting hood” and a pair of Mr. Petersen’s old Thorlo socks. He motioned for Mr. Petersen to get up. The first person helped him up, and the first and fourth persons helped him downstairs where there were two safes. (T. pp. 654, 656, 829)
They told Mr. Petersen to open both safes, and he opened the first one. (T. pp. 668-669) The fourth person, who had been unarmed, reached in and got Matt’s 20 gauge shotgun and then said, “I’m going to shell up, go upstairs, and take care of some business. If you don’t open the other safe in five minutes I’m going to come back down and take care of some more.” (T. pp. 670-671) After the fourth person left the basement, Mr. Petersen managed to open the second safe, while one of strangers had a gun at the back of his head. (T. p. 673)
While Mr. Petersen was downstairs, Mrs. Petersen heard someone come back up and a few minutes after that, someone came up and felt her breast. She told the person to stop and the person stopped when told to, but then said “in kind of a snide remark, ‘We’ll be back.’” (T. pp. 789, 792)
Upon being taken back upstairs, Mr. Petersen was taken to the master bedroom by the first person, and when he got there another was going through their things. Mr. Petersen opened a drawer, got money, and handed it to the first person. When asked if that was all the money, Mr. Petersen asked if they had gotten his billfold, and, upon being told, “No,” he told them to take him to the kitchen, where Mr. Petersen got money out of his billfold and gave it to the first person. (T. pp. 679, 683-685) Mr. Petersen was then taken back to the living room couch, where he was bound hand and foot and taped around his face, covering his mouth. (T. pp. 686-687) Then, all four members of the Petersen family were taken into the dining room area of the house and bound in dining room chairs in two pairs, back-to-back: Mr. and Mrs. Petersen’s chairs bound back-to-back, and Matt’s and Grant’s chairs bound back-to-back, and a plastic grocery bag was placed over Matt’s head. (T. pp. 690-693, 793, 831-832, 835, 858)
One of the persons came into the room and said, “If you don’t mind we’re going to borrow your van,” and Mr. Petersen threw him the keys. They also said several times, “We’re heading back to Virginia.” (T. pp. 694-695, 833-835) After the four strangers left, Mr. Petersen, whose hands were bound in front, pulled the tape off his mouth and then “chewed through the bindings on [his] hands, broke them loose,” and saw the van go out of sight. (T. p. 697)
Mr. Petersen then ran to the phone but found no dial tone. (It later turned out that the phone was off the hook.) He then got a steak knife and cut the remainder of his tape and his wife’s who then cut Matt and Grant loose. Mr. Petersen ran on to the basement, loaded a pistol, and got in his truck which he drove to the top of the hill where he used a cell phone to call 911. (T. pp. 698-699, 766, 836, 860) Matt ran after his father, got one of his shotguns, put it in his father’s truck, ran across the back field where a farmer was plowing and asked him if he had seen anything and then came back to the house. (T. p. 837) The entire incident had lasted about an hour. (See T. p. 842)
Law enforcement arrived shortly, and the Petersens noted the following missing property: a shotgun, Mrs. Petersen’s jewelry, money, a jar of quarters, money from one of the Petersen boys’ piggy bank, a video camcorder, a digital camera and memory card, set of surround sound speakers. (T. pp. 702-712, 794; seealso pp. 1068-1069)
On 5 June 2004, Det. Denham of the Alamance County Sheriff’s Department (ACSD) came into contact with co-defendant Ronnie Love, when Ronnie Love came to ACSD and had a conversation with Det. Denham. (T. p. 1070) Before that conversation began in the interview room, Det. Denham advised Ronnie Love of his rights and then taped the interview. (T. p. 1071) A redacted transcript of Ronnie Love’s self-incriminating interview was admitted, published to the jury, and read into the record. (T. pp. 1071-1096; see R. pp. 240-247)
In June 2004, Tino Love had been “staying with” Pamela McCray, and they were dating. (T. pp. 868, 889) During that month, she began to notice property coming into her house, including a box with an outside that “looked as to be some speakers.” (T. p. 869) On 7 June 2004, a search warrant was executed against her residence on Elwood Street in Burlington, and the following items were seized: wig pieces, fade cream, rag, blue wind suit, gold necklace, mannequin head with wig on it, yellow metal cross, gold colored necklace, two one-dollar bills, ownership documents, a blue and white bandana, black fiber on white paper. (T. p. 910-911)
Also during the search of the Elwood Street residence, Det. Ross (ACSD) found Tino Love there and had a conversation with Tino Love there. (T. p. 1010) Tino Love was taken to the ACSD, where he was advised of his rights and interviewed. (T. p. 1011) Over the objections of Tino Love and also his two co-defendants, Toby Love and Ronnie Love, a redacted transcript of that self-incriminating interview was admitted, published to the jury, and read into the record. (T. pp. 1012-1046; see R. pp. 170-179)
In June 2004, Toby Love was Dana Herbin Royster’s boyfriend, and Ms. Royster noticed unusual things coming into the house, including a surround sound system and some woman’s jewelry. (T. pp. 891-892) On Friday (4 June 2004), Ms. Royster and Toby Love had gone to Myrtle Beach and she received some phone calls that night. She returned to AlamanceCounty at some point Sunday night (6 June 2004), and later had a conversation with Det. Crowder (ACSD), who came to her house, and she gave him the surround sound speakers and video tape and film from a camera. (T. pp. 894-897) A search warrant was executed against Ms. Royster’s residence on 6th Street in Burlington, and the following items were seized: assorted gold and silver jewelry; two-way radios; small .380 handgun; small rusty, possibly a .25, handgun. (T. pp. 933, 935)
Also on 7 June 2004, Det. Denham had contact with co-defendant Toby Love when he “showed up” at ACSD with Ms. Herbin [Royster]. (T. pp. 1097, 1101) Det. Denham advised Toby Love of his rights and then interviewed him. The interview was taped, and a redacted transcript of the self-incriminating interview was admitted, published to the jury, and read into the record. (T. pp. 1102-1123; see R. pp. 61-66)
Bennie Love, father of Toby and Tino Love and brother of Ronnie Love, lived on Kerr Chapel Road in CaswellCounty. (T. pp. 898-899) On 8 June 2004, he saw Det. Denham of the ACSD and gave the following property to Det. Denham: a camera, a video camera, and some jewelry. (T. p. 899)
Various pieces of personal property, some of which bore Mr. Petersen’s initials or were otherwise identified as Petersen property, seized during the searches or voluntarily surrendered to law enforcement by owners of the premises searched were admitted into evidence at trial. (See T. pp. 1125, 1128-1141)
Upon the presentation of evidence showing the preceding, the State rested. (T. p. 1165) Tino Love moved to dismiss the first degree kidnapping charge, and the court denied the motion. (T. p. 1173) Tino Love also moved to dismiss the charge of assault on a child under 12, and the State announced its intention to dismiss those charges. (T. p. 1173) The trial court forecast charges to the jury on first degree kidnapping (four counts with no lesser included offenses), felonious breaking and entering, larceny and possession of stolen property, robbery with a dangerous weapon, and common law robbery. (T. p. 1177) Then, after dismissing the charges of larceny and possession of stolen property, the court summarized: Each defendant would be facing four counts of first degree kidnapping, one count of felonious breaking and entering, and one count of robbery with a dangerous weapon and a lesser included offense of common law robbery. (T. p. 1178-1179)
The defendants presented no evidence, and Tino Love joined Ronnie Love’s renewed motion to dismiss and request for charges on second degree kidnapping. Both the motion and the request were denied. (T. pp. 1207-1210; seealso p. 1241)
Following closing arguments by all parties and instructions to the jury, the jury retired to deliberate and later returned verdicts of guilt on all charges against Tino Love. (T. pp. 1255-1314, 1331-1394, 1417-1418; R. pp. 187-190) Following a hearing on a firearm enhancement, N.C. Gen. Stat. § 15A-1340.16A, charged against Tino Love and his two co-defendants (T. pp. 1472-1504), the jury returned with a negative answer to the firearm enhancement question. (T. p. 1523)
Meanwhile, during the jury’s deliberation on the firearm enhancement, Tino Love moved to dismiss the aggravating factor set out in N.C. Gen. Stat. § 15A-1340.16(d)(2)(defendant joined with more than one other person and not charged with conspiracy), and that motion was denied. (T. p. 1516) Then, Tino Love waived jury trial on that aggravating factor and plead guilty to the aggravating factor. (T. pp. 1532, 1542-1545)