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No. COA09-1686 NINETEEN A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)FromCabarrusCounty
)
TERRENCE LAMAR RUCKER,)
Defendant.)
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DEFENDANT APPELLANT’S BRIEF
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1
INDEX
QUESTIONS PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 8
ARGUMENT
1. The trial court erred in granting the State’s motion to join these alleged offenses for trial because the offenses did not arise from the same act or transaction and were not so connected as to constitute parts of a single scheme or plan in violation of N.C. Gen. Stat. § 15A-926(a). 8
2. The trial court erred in refusing to instruct the jury on the lesser included offense of common law robbery, as requested by Mr. Rucker, because the evidence supported the instruction 11
3. The trial court erred and prejudiced Mr. Rucker by instructing the jury, over Mr. Rucker’s objection, on flight when the evidence did not support the instruction 14
CONCLUSION...... 17
SIGNATURE OF COUNSEL...... 17
CERTIFICATE OF FILING AND SERVICE...... 17
TABLE OF AUTHORITIES
Cases
State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994)...... - 11 -
State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982)...... - 9 -
State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981)...... - 9 -
State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980)...... - 9 -
State v. Greene, 294 N.C. 418, 241 S.E.2d 662(1978)...... - 9 -, - 10 -
State v. Herring, 74 N.C. App. 269, 328 S.E.2d 23 (1985), aff’dpercuriam, 316 N.C. 188, 340 S.E.2d 105 (1986) - 9 -
State v. Holland, 161 N.C. App. 326, 588 S.E.2d 32 (2003)..- 15 -
State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)...... - 14 -, - 15 -
State v. Ligon, 332 N.C. 224, 420 S.E.2d 136 (1992)...... - 11 -
State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987)...... - 11 -
State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988)...... - 12 -
State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972)...... - 16 -
State v. Silva, 304 N.C. 122, 282 S.E.2d 449(1981)...... - 9 -
State v. Simpson, 159 N.C. App. 435, 583 S.E.2d 714, aff’dpercuriam, 357 N.C. 652, 588 S.E.2d 466 (2003) - 9 -
State v. Thompson, 328 N.C. 477, 402 S.E.2d 386 (1991) - 14 -, - 15 -
State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986).....- 12 -
State v. Wilson, 108 N.C. App. 575, 424 S.E.2d 454, disc. rev. denied, 333 N.C. 541, 429 S.E.2d 562 (1993) - 9 -
Statutes
N.C. Gen. Stat. §§ 7A-27...... - 8 -
N.C. Gen. Stat. § 15A-926(a)...... - 1 -, - 9 -
N.C. Gen. Stat. § 15A-1442...... - 8 -
N.C. Gen. Stat. § 15A-1443...... - 14 -
N.C. Gen. Stat. § 15A-1444...... - 8 -
N.C. Gen. Stat. § 15A-1446...... - 8 -
N.C. Gen. Stat. § 15A-1447(a)...... - 17 -
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No. COA09-1686 NINETEEN A JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)FromCabarrusCounty
)
TERRENCE LAMAR RUCKER,)
Defendant.)
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DEFENDANT APPELLANT’S BRIEF
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Questions Presented
1. Whether the trial court erred in granting the State’s motion to join these alleged offenses for trial because the offenses did not arise from the same act or transaction and were not so connected as to constitute parts of a single scheme or plan in violation of N.C. Gen. Stat. § 15A-926(a)?
2.Whether the trial court erred in refusing to instruct the jury on the lesser included offense of common law robbery, and requested by Mr. Rucker, because the evidence supported the instruction?
3.Whether the trial court erred and prejudiced Mr. Rucker by instructing the jury, over Mr. Rucker’s objection, on flight when the evidence did not support the instruction?
Statement of the Case
Terrence Lamar Rucker was indicted for two counts of robbery with a dangerous weapon on November 17, 2008. (R pp. 6, 8)
These cases were tried before the Honorable Kevin M. Bridges at the April 20, 2009 Criminal Session of Cabarrus County Superior Court. On April 22, 2009, the jury convicted Mr. Rucker of both offenses. (R pp. 37-38)
Judge Bridges sentenced Mr. Rucker on April 22, 2009. Judge Bridges imposed consecutive sentences of 65 to 87 months in the Department of Corrections, which is in the presumptive range for Level II for Class D felonies. (R pp. 39-44, T pp. 271-272)
Mr. Rucker gave oral notice of appeal on April 22, 2009. Initial appellate entries were also entered on April 22, 2009. (R pp. 47-48)
The Appellate Defender appointed appellate counsel for Mr. Rucker on May 4, 2009. (R p. 51) There were two court reporters for Mr. Rucker’s trial. The first volume of the transcript was mailed to the parties on June 25, 2009. The trial court extended the time for the second court reporter to complete the transcript to July 29, 2009. The second volume of the transcript was mailed to the parties on July 16, 2009. (R pp. 52, 55-56) The appellate entries were later amended to order a transcript for a pretrial hearing. That order was mailed to the court reporter on August 26, 2009. (R pp. 49-50) The transcript from the pretrial hearing was mailed on October 26, 2009.
The proposed record on appeal was mailed on November 30, 2009. (R pp. 59A) The record on appeal was settled by stipulation of the parties. (R p. 60) The record on appeal was mailed on December 18, 2009, filed on December 22, 2009, and docketed on January 15, 2010. (R pp. 1, 61) The printed record on appeal was mailed to the parties on January 20, 2010.
Statement of the Facts
Mr. Rucker was charged with two counts of robbery with a firearm involving the robberies of two taxi drivers for T.J.’s Taxis a few days apart in October, 2008. Both cab drivers testified at Mr. Rucker’s trial as well as gave statements to law enforcement officers shortly after the incidents. Mr. Rucker also gave a statement to law enforcement officers soon after he was arrested and testified in his own defense.
The first robbery involved Derrick Upright around 11:15 pm on October 13, 2008. Mr. Upright received a call from dispatch to pick up a fare at a house on South Little Texas Road where Rose Collins lived. He went to the address given, and several people were there, both inside in the house and in the yard. The fare, aman, got in the cab directly behind Mr. Upright and asked to go to West Green Apartments. (T p. 42, l.15 to p. 43, l.23; T p. 53, l1. 1-11; T p. 65, l.14 and ll. 23-24)
During the ride, the fare talked on a cell phone. When the cab arrived at the apartment complex, Mr. Upright told the fare that the ride cost $6.00. When the fare explained that he only had a $50.00 bill, Mr. Upright explained that he could not make change. The fare first directed Mr. Upright to go to one apartment to get change and then directed him to another apartment. (T p. 53, l.21 to p. 54, l.3; T p. 45, l.19 to p. 46, l.2; T p. 54, ll. 8-9)
Mr. Upright testified that when the fare got out of the cab, the fare lunged back toward the cab, wrapped the seat belt around Mr. Upright’s neck and slammed an object against his head. Mr. Upright never saw a gun but believed the object was a gun because it felt like metal. The fare instructed Mr. Upright to give him all of his money or the fare would kill him. (T p. 46, ll. 14-17; T p. 48, ll. 20-25; T p. 55, l.14)
Mr. Upright yelled at the fare to “put down the gun, step out of the cab, we’ll see who’s on top”. (T p. 47, ll. 23-25)A woman came out of an apartment with a phone. Mr. Upright testified that the fare walked away around the side of the building, but kept his arm aimed at Mr. Upright. Mr. Upright lost about $40.00. (T p. 47, ll. 22-25; T. p. 49, ll. 7-10; T p. 49, ll. 11-19; T p. 50, ll. 1-2)
Mr. Upright described the fare to the police as a black male, 5’6” to 5’8”, with a large afro that looked like it had been pulled. He was wearing black. (T p. 50, ll. 3-10; T p. 53, ll. 13-20)
The second robbery occurred on October 16, 2008 and involved Roger Knox. Mr. Knox was ready to stop work for the night around 1:00 am when he received a call for a fare at 4457 Green Ridge Drive. Mr. Knox testified that a man about 5’7” to 5’8”, weighing about 150-160 pounds got in the cab and requested to go to an apartment at the Ridges. He could not see the fare’s face, but looked like he had dread locks underneath because his hair hung out. Mr. Knox thought the fare’s age to late 20’s to early 30’s. He had on dark clothing. (T p. 87, l.21 to p. 88, l.9; T p. 89, ll. 9-15)
Mr. Knox testified that he never heard the door shut, but felt some object of some sort against his head. He thought it was a gun because it felt cold. The fare said to give him his money. Mr. Knox did, and the fare left. Mr. Knox lost about $100 and a $30 gas receipt. (T p. 89, ll. 20-25; T p. 90, l. 19 to p. 91, l.7; T p. 99, ll. 5-10))
Soon after the robbery, Mr. Knox went with law enforcement officers for a drive-by of a possible suspect. Mr. Knox was 85-90% certain that the person in the drive-by was the same man who robbed him. This man was not Mr. Rucker. (T p. 100, l.9 to p. 101, l.14; T p. 102, ll. 1-6)
Rose Collins, who lived at the house where Mr. Upright picked up his fare, initially told law enforcement officials that she saw Austin Collins get in the cab when it came to her home on October 13th. She later called and said that it was not Austin but was Mr. Rucker. (T p. 68, l.5 to p. 69, l.2; T p. 80, ll. 15-23; T p. 81, ll. 4-9)
Rose Collins identified Mr. Rucker by name and through a photo array. Mr. Upright reviewed the photo array, and could not be sure if it contained a picture of the man who robbed him. He hesitated when viewing the array and picked Mr. Rucker’s picture, although he said he could not be sure. (T p. 110, l.4 to p. 111, l.5; T p. 115, l.19 to p. 116, l.13
After Ms. Collins and Mr. Upright identified Mr. Rucker to the extent that they did identify him, the police arrested Mr. Rucker. He agreed to give a statement admitting to robbing Mr. Upright and Mr. Knox. He explained that he had been upset because he had recently lost his grandfather and had been very close to him. He said that he was visiting his cousin on South Little Texas Road on October 13th and called the cab. He got out of the cab to see whether he had enough money to pay for the ride. When he did not, he decided to rob him. Mr. Rucker said he put his cell phone up to Mr. Upright’s neck, and Mr. Upright gave him his money. Mr. Rucker said he did not say anything to Mr. Upright. Mr. Rucker denied robbing Mr. Knox and said that he does not who robbed Mr. Knox during his first interview. (T p. 130, l.13 to p. 131, l.9; T p. 134, l.11 to p. 136, l.14; T p. 137, l.16 to p. 140, l.3)
The officer interviewing Mr. Rucker believed that, despite Mr. Rucker’s statement, he had been involved in robbing Mr. Knox. The officer asked her supervisor to talk to Mr. Rucker. During this conversation, Mr. Rucker stated that he was walking with his friend Scotty. Scotty wanted to rob a cab driver and asked for his help. Mr. Rucker called the cab company. When the cab arrived, Mr. Rucker put his cell phone to his neck and said he wanted his money. Scotty stayed on the side of the building. He split the money with Scotty. (T p. 158, l.14 to p. 159, l.13)
No firearm was ever recovered during the investigation of the charges against Mr. Rucker. (T p. 130, ll. 24-25)
The State moved to join these two robberies for trial. Mr. Rucker objected, arguing that there was no evidence of a single scheme or plan and that joinder would prejudice Mr. Rucker. After a hearing, the trial court allowed the State’s motion for joinder. (R pp. 11-12, 15-17; Motion T p. 2, l.13 to Motion T p. 13, l.21)
During the charge conference, the trial court denied Mr. Rucker’s request to instruct the jury on the lesser included offense of common law robbery. In addition, over Mr. Rucker’s objection, the trial court granted the State’s request to instruct the jury on flight. (T p. 234, l. 22 to p. 241, l.18; R pp. 20-27; T p. 246, ll. 1-7; R p. 246; T p. 247, l.18 to p. 248, l.22; R pp. 33-34)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Mr. Rucker appeals his conviction as a matter of right from his conviction after a jury trial in Superior Court. N.C. Gen. Stat. §§ 7A-27(b); N.C. Gen. Stat. § 15A-1442; N.C. Gen. Stat. § 15A-1444(a); and N.C. Gen. Stat. § 15A-1446(a) and (d).
Argument
I.THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO JOIN THESE ALLEGED OFFENSES FOR TRIAL BECAUSE THE OFFENSES DID NOT ARISE FROM THE SAME ACT OR TRANSCTION AND WERE NOT SO CONNECTED AS TO CONSTITUTE PARTS OF SINGLE SCHEME OR PLAN IN VIOLATION OF N.C. GEN. STAT. § 15A-926(a).
Assignments of Error 2, 3, 4
R pp. 11-12, 15-17
Motion T p. 13
Standards of Review: Whether there is a transactional connection between alleged offenses sufficient to allow the offenses to be joined for trial is a question of law. As such, this Court reviews whether a transactional basis existed on a denovo basis. If this Court determines a transactional connection between the alleged offenses exists, this Court determines the trial court’s granting of a motion to join the offenses for trial under an abuse of discretion basis. State v. Simpson, 159 N.C. App. 435, 583 S.E.2d 714, aff’dpercuriam, 357 N.C. 652, 588 S.E.2d 466 (2003); State v. Wilson, 108 N.C. App. 575, 424 S.E.2d 454, disc. rev. denied, 333 N.C. 541, 429 S.E.2d 562 (1993); State v. Herring, 74 N.C. App. 269, 328 S.E.2d 23 (1985), aff’dpercuriam, 316 N.C. 188, 340 S.E.2d 105 (1986).
A trial court may join two offenses for trial when the offenses “are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan”. N.C. Gen. Stat. § 15A-926(a). It is not enough that a defendant is charged with acts of the same class of crime or offense; there must also be a transactional connection between the offenses. State v. Greene, 294 N.C. 418, 421, 241 S.E.2d 662, 664 (1978). While no single factor is determinative to show a transactional connection, the length of time between the offense can be important as well as common facts and circumstances unique to the offenses. Seee.g., Herring at 273, 328 S.E.2d at ___ (1985), aff’dpercuriam, 316 N.C. 188, 340 S.E.2d 105 (1986); State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981); State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980).
In granting a motion for joinder, the trial court must also determine whether the accused can receive a fair hearing on one or more than one charge at the same trial. State v. Silva, 304 N.C. 122, 282 S.E.2d 449(1981). If joinder impairs a defendant’s ability to present a defense, the trial court should deny the motion for joinder. Greene, 294 N.C. 418, 241 S.E.2d 662(1978).
In this case, the evidence concerning the two robberies did not show that they were so connected so as to be part of a single scheme or plan. Moreover, the joinder of these charges also prevented Mr. Rucker from receiving a fair trial. As such, the trial court abused its discretion in joining all of the robbery cases for trial.
There are several significant differences that required Mr. Rucker to be tried separately on these offenses. The robberies charged against Mr. Rucker occurred days apart from each other at different locations. The cab drivers picked up their fares at different locations. The fare asked to go to a different apartment complex in each case. While Mr. Upright actually drove his fare to the requested location, Mr. Knox was robbed as soon as the fare entered the cab. Mr. Upright testified that he was robbed only after the fare put the seat belt around his neck and then demanded money. He also threatened his fare, challenging him to step out of the cab. Meanwhile, there are no allegations of an assault with a seat belt or anything else against Mr. Knox. Mr. Knox did not challenge his fare. There are no unusual or unique factors to join the incidents in any manner.
Mr. Rucker was also prejudiced by having these charges tried together. The jury was more likely to assume that Mr. Rucker committed both offenses by hearing evidence of both charges. The jury may well have combined the evidence from each charge or been confused about the distinct incidents. This is particularly important given that the trial court failed to instruct the jury on common law robbery.
Because these robberies were not part of the same scheme or plan and Mr. Rucker was prejudiced by having these charges tried together, the trial court erred in joining these offenses for trial.
II.THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF COMMON LAW ROBBERY, AS REQUESTED BY MR. RUCKER, BECAUSE THE EVIDENCE SUPPORTED THE INSTRUCTION.
Assignment of error 8
R pp. 27, 33-34
T pp. 241, 247-248
Standard of Review: A trial court’s refusal to give a jury instruction requested by a party is a decision of law, and is therefore reviewable by this Court on a denovo basis. SeeState v. Ligon, 332 N.C. 224, 241-42, 420 S.E.2d 136, 146 (1992).
It is reversible error for a trial court to fail to submit lesser included offenses to the crime charged that are supported by the evidence. State v. Lytton, 319 N.C. 422, 426-27, 355 S.E.2d 485, 487 (1987). To determine whether the evidence is sufficient to support submitting a lesser included offense, the evidence must be viewed in light most favorable to the defendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). SeeState v. Whitaker, 316 N.C. 515, 522, 342 S.E.2d 514, 519 (1986)(holding that the trial court must submit lesser included offenses unless the evidence “point[s] inexorably and unerringly” to the greater offense); State v. Mash, 323 N.C. 339, 346-48, 372 S.E.2d 532, 536-37 (1988).
Mr. Rucker requested that the trial court instruct the jury on common law robbery, which is a lesser included offense of robbery with a dangerous weapon. The trial court’s refusal to give the instruction was reversible error.
The evidence presented, in the light most favorable to Mr. Rucker, does not point solely to robbery with a dangerous weapon. There is no evidence that Mr. Rucker had a weapon of any kind prior to entering the cab. Neither Mr. Upright nor Mr. Knox ever saw a weapon of any kind, despite the fact that they could see their fare to some degree in the rear view mirror. Both testified that the fare put an object to their heads and that they believed that the fare had a gun. Neither one was able to describe a weapon in any detail. Mr. Upright thought Mr. Rucker had a gun because he felt metal. Mr. Knox believed Mr. Rucker had a gun because the object felt cold. Neither Mr. Upright nor Mr. Knox was shot. No weapon of any sort was ever recovered.
Not only was there not overwhelming evidence from the State that Mr. Rucker used a gun in committing the robberies, Mr. Rucker had given statements to the police essentially admitting committing the robberies with his cell phone. Mr. Rucker also testified that he still stood by the statements he had given. Mr. Upright saw Mr. Rucker use his cell phone and talk on the cell phone during the ride, providing verification that Mr. Rucker did possess a cell phone.
The trial court also should have instructed the jury on common law robbery because, at least with Mr. Upright, there was conflicting evidence as to whether all of the elements for armed robbery were met. Mr. Upright testified that when Mr. Rucker pressed the object to his head, he challenged Mr. Rucker to step out of the cab and see which one of them ended up on top. A jury could well have found that Mr. Upright was not endangered or threatened because he challenged Mr. Rucker.
Considering the evidence in the light most favorable to Mr. Rucker, the evidence does not point solely to armed robbery but also supports instructing the jury on common law robbery. While it was certainly proper for the trial court to instruct the jury on robbery with a firearm, the trial court erred in failing to instruct the jury as well on common law robbery when there was significant evidence that Mr. Rucker used his cell phone to commit the robberies and there was contradictory evidence on the elements.
Because the evidence supported instructing the jury on the lesser included offense of common law robbery, the trial court erred in failing to so instruct the jury.
III.THE TRIAL COURT ERRED AND PREJUDICED MR. RUCKER BY INSTRUCTING THE JURY, OVER MR. RUCKER’S OBJECTION, ON FLIGHT WHEN THE EVIDENCE DID NOT SUPPORT THE INSTRUCTION.
Assignment of Error 10
T pp. 235-236; 247
Rpp. 21-22, 32
Standard of Review:This Court reviews the trial court’s decision to instruct the jury on flight on a denovo basis to determine whether there was an error of law prejudicing the defendant so that there is a reasonable possibility that the without the error, a different result would have been reached at trial. N.C. Gen. Stat. § 15A-1443.