{
  "id": 11147033,
  "name": "STATE OF NORTH CAROLINA v. LARRY D. STANFIELD",
  "name_abbreviation": "State v. Stanfield",
  "decision_date": "1999-09-07",
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    "judges": [
      "Judges WALKER and McGEE concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LARRY D. STANFIELD"
    ],
    "opinions": [
      {
        "text": "EDMUNDS, Judge.\nOn 13 July 1997, victims Tyrone Campbell (Campbell) and Reggie McKinney (McKinney) drove to the home of LuWanda Corn in Winston-Salem. Campbell and McKinney remained in the car while Campbell, the driver, began talking to Ms. Corn. Co-defendant Cory Beck (Beck), who was defendant\u2019s brother and was also known as Cory Stanfield, was on the porch of the Corn home. After the conversation between Com and Campbell had continued for a few minutes, Beck yelled to Campbell and McKinney, asking if they had any \u201cweed.\u201d When McKinney answered in the negative, Beck approached the driver\u2019s side of the car. Interrupting Campbell\u2019s conversation with Corn, Beck pulled a gun on the two men in the car and demanded their jewelry. Before McKinney and Campbell were able to comply, defendant walked up to the passenger side door, said \u201cWhat\u2019s up? What\u2019s up?,\u201d and told McKinney to keep his hands where they could be seen. He stood against the side of the car so that McKinney could not open the door to mn. Campbell surrendered some rings he was wearing to Beck, who hit Campbell with his pistol. McKinney told police after the robbery and again at trial that he handed his watch and gold necklace to Beck. However, Campbell initially told police that McKinney handed his (McKinney\u2019s) jewelry to defendant Stanfield, but later testified at trial that he did not know to whom McKinney handed his watch and necklace, though he added that Beck reached into the car. Beck told Campbell and McKinney not to look at him, to leave, and not to return or call the police. The victims left but called the police. McKinney later picked defendant out of a photo lineup and identified him at trial.\nDefendant\u2019s first assignment of error pertains to discrepancies between statements made by McKinney and Campbell. McKinney\u2019s trial testimony also included some detail not in his written statement, e.g., that, during the robbery, defendant approached the car saying, \u201cWhat\u2019s up? What\u2019s up?,\u201d then told McKinney to keep his hands where they could be seen. After the investigating detective testified as to the written statement taken from McKinney and after defense counsel elicited on cross-examination the discrepancies between the victims\u2019 statements, the prosecution asked the following series of questions on redirect examination:\nQ. Okay. What has been your experience with trauma victims, Officer Tollie?\nA. It\u2019s been\u2014\n[overruled objection]\nA. It\u2019s been my experience [and] training both that with trauma victims often facts about an event may occur \u2014 may come back to them several hours or even several days after it\u2019s over and they calm down. As a matter of fact, it\u2019s my procedure in dealing with someone that is a victim of a violent crime that I leave my card with my number on it stating to them, [i]f you remember something tomorrow or next week that you didn\u2019t tell me tonight, feel free to call and I\u2019ll take it and annotate it to my report.\nDefendant characterizes this testimony by the detective as expert testimony regarding the recollection process of trauma victims and claims that the court erred in admitting this testimony when the witness had not been qualified as an expert. Defendant also asserts this testimony is a statement of the detective\u2019s opinion as to the credibility of the witnesses. We disagree. The law in North Carolina is settled that an expert may not express an opinion as to the believability of another witness. In State v. Aguallo, 318 N.C. 590, 599, 350 S.E.2d 76, 81 (1986), during a first-degree rape trial, a pediatrician stated, \u201cI think [the victim is] believable.\u201d The Aguallo Court applied State v. Heath, 316 N.C. 337, 340, 341 S.E.2d 565, 567-68 (1986), in which our Supreme Court stated that the official commentary of Rule 608 of the North Carolina Rules of Evidence establishes that \u201c \u2018expert testimony on the credibility of a witness is not admissible.\u2019 \u201d In Heath, after being asked her opinion as to whether a mental condition could have caused the witness to fabricate a story, the witness\u2019 psychologist responded, \u201cThere is nothing in the record or current behavior that indicates that she has a record of lying.\u201d Id. Our Supreme Court held that this statement was improper expert testimony that bolstered the credibility of the witness. See id.\nIn contrast, even assuming the detective was testifying as an expert in this portion of his testimony (he had not been formally qualified or tendered as an expert but testified that he had investigated between 350 and 375 incidents involving trauma), he was not stating an opinion, but was instead relating his experience. His testimony was a recitation of the procedure he followed when working with trauma victims and the reason he followed it. The officer did not suggest any reason such belated recollection occurs, nor did he vouch for the accuracy of such recollection. Unlike the cases cited above, this testimony contained no opinion as to the credibility of the witness. This assignment of error is overruled.\nDefendant next argues that the trial court committed plain error when it permitted the State, when cross-examining defendant about his prior convictions, to inquire into details that went beyond the nature of the crime, time and place of conviction, and punishment imposed. See State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997). Because defendant failed to object to this line of questions, he carries the burden of showing \u201c(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d Id. at 385, 488 S.E.2d at 779. The particular portion of cross-examination to which defendant now objects is as follows:\nQ. And you\u2019ve been convicted of possession with intent to sell and deliver cocaine?\nA. Well, I got convicted of simple possession.\nQ. I\u2019m sorry. I thought you told [defense counsel] you were convicted of possession with intent to sell.\nA. That\u2019s what I was charged with. It cost me several thousand dollars. I got it down to simple possession.\nQ. So you plea bargained that case?\nA. Yes, sir, I did.\nQ. Is that the one in Danville, Virginia, in 1996?\nA. Yes, sir, it is.\nQ. And you were put on probation?\nA. Yes, sir, I was.\nQ. For how long?\nA. I can\u2019t even remember.\nQ. . . . And almost within a year you had some more cocaine on you, didn\u2019t you?\nA. Well, in fact, that charge that I was charged for in \u201996 that was from, like, four years ago. I had been living in Winston-Salem. They had just- \u2014 They had just recently caught up with me. And I took a plea bargain.\nQ. ... [I]n July of \u201997, three days before this crime, you were convicted of possession of cocaine again, were you not?\nA. What do you mean three days before this crime?\nQ. Well, this crime occurred on July 13 of \u201997.\nA. From what I understood this wasn\u2019t a crime. It was a simple assault. From what I understand these guys are making up this story.\nQ. Okay. Well, from July the 13th of 1997 \u2014 You were convicted on July 10th of \u201997 of possession of cocaine, were you not, Mr. Stanfield?\nA. On July the 10th?\nQ. Yes, sir.\nA. Yes, I was.\nQ. So, in other words, you ignored your probation from the [Commonwealth] of Virginia; is that correct?\nA. Well it was transferred to the state of North Carolina.\nQ. But, anyway, you were on probation to stay away from drugs. And from a court order from Virginia, North Carolina, wherever, Mr. Stanfield, you ignored that court order, did you not?\nA. Yes, sir.\nQ. And got convicted again of the same drag; isn\u2019t that right?\nA. Yes, sir.\nOur review of this transcript'satisfies us that the State\u2019s questions did not exceed the permissible scope of inquiry concerning defendant\u2019s prior convictions. Although some of these questions were objectionable as to form where the prosecutor asked about the underlying facts rather than the conviction itself (\u201c[a]nd almost within a year you had some more cocaine on you, didn\u2019t you?\u201d), no objection was made. See N.C. Gen. Stat. \u00a7 8C-1, Rule 609 (1992). Moreover, the substance of the questions was appropriate. The prosecutor limited his inquiry to the facts supporting the conviction and did not elicit extraneous prejudicial details. Compare State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985), disc. review denied, 316 N.C. 200, 341 S.E.2d 582 (1986), with State v. Wilson, 98 N.C. App. 86, 389 S.E.2d 626 (1990). Where defendant\u2019s answers demonstrated confusion or evasion, the prosecutor properly sought clarification. This assignment of error is overruled.\nDefendant also asserts that the trial court committed plain error by permitting the State to inquire about defendant\u2019s attitude concerning the law in general, referring to the following exchange:\nQ. ... So your attitude about the criminal laws of North Carolina or any other state, you don\u2019t hold them in any high esteem, do you?\nA. Well, selling drugs \u2014 First of all, selling drugs is against the law anywhere. So for me to be convicted of selling drugs, I had to have sold the drugs. That\u2019s against the law. So same scenario.\nQ. Yes, sir. So you don\u2019t have any respect for the criminal laws, do you?\nA. No, it\u2019s not that. It\u2019s just what I chose to do at that time.\nDefendant did not object to this line of questioning.\nAlthough a party may cross-examine a witness with respect to any evidence that tends to show feeling or bias of the witness with respect to a party or cause, see State v. McCall, 31 N.C. App. 543, 230 S.E.2d 195 (1976), \u201cthe criminal laws\u201d are neither party nor cause. Nevertheless, assuming arguendo that this evidence was inadmissible, defendant has failed to meet his burden of showing (1) that a different result probably would have been reached but for the error or (2) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial. See Bishop, 346 N.C. 365, 488 S.E.2d 769. This assignment of error is overruled.\nDefendant next asserts that the trial court improperly denied his motion for mistrial after Beck pled guilty outside the presence of the jury. We disagree. \u201cThe decision to grant a mistrial is within the trial court\u2019s discretion.\u201d State v. Jaynes, 342 N.C. 249, 280, 464 S.E.2d 448, 467 (1995) (citations omitted), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). A trial court should grant a mistrial \u201c \u2018only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant\u2019s case and make it impossible for the defendant to receive a fair and impartial verdict.\u2019 \u201d State v. Marlow, 334 N.C. 273, 287, 432 S.E.2d 275, 283 (1993) (quoting State v. Laws, 325 N.C. 81, 105, 381 S.E.2d 609, 623, sentenced vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990)). \u201c[A] trial court\u2019s decision regarding a motion for mistrial will not be disturbed on appeal absent a clear showing that the trial court abused its discretion.\u201d Id. Here, Beck entered his guilty plea outside the presence of the jury. When the jury returned, the trial judge gave the pattern instruction that the co-defendant\u2019s case was no longer before the jury, that its disposition was of no concern to them, and that their deliberations as to defendant should not be affected in any way. The procedure followed by the trial court has been approved by this Court. See State v. Dewalt, 16 N.C. App. 546, 192 S.E.2d 665 (1972). This assignment of error is overruled.\nDefendant also argues that the trial court committed reversible error by not allowing him to call Beck to testify on his behalf. After Beck pled, the court ascertained in the absence of the jury that, if called as a witness, he would invoke his Fifth Amendment privilege not to incriminate himself. The court then instructed defendant\u2019s attorney not to call Beck. Our Supreme Court has admonished trial courts to exercise caution in deciding whether to allow a party to call a witness who will plead the Fifth Amendment.\n[T]here are two difficulties that may arise when a witness is presented and then refuses to testify by asserting his Fifth Amendment privilege. The first is that it permits the party calling the witness to build or support his case out of improper speculation or inferences that the jury may draw from the witness\u2019 exercise of the privilege, which cannot be adequately corrected by trial court instruction. The second concern is that it encroaches upon the constitutional right to confrontation because the presentation of the exercise of the privilege cannot be tested for relevance or value through cross-examination. As a result of these difficulties, \u201cthe trial judge must weigh a number of factors in striking a balance between the competing interests.\u201d Such a balancing will be left to the discretion of the trial court in determining whether the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice in accordance with Rule 403 of the Rules of Evidence.\nState v. Pickens, 346 N.C. 628, 639, 488 S.E.2d 162, 167-68 (1997) (internal citations omitted). In Pickens, the defendant sought to call his former co-defendant (Arrington) to the witness stand. Outside of the jury\u2019s presence, Arrington had exercised his Fifth Amendment privilege against self-incrimination, and the defendant alleged it was error to prevent him from calling Arrington to the stand to exercise the privilege before the jury. The defendant wanted to show that Arrington fired the weapon that caused the victim\u2019s death; however, our Supreme Court held that the defendant was tried under a theory of acting in concert, making Arrington\u2019s assertion of his constitutional privilege \u201cimmaterial.\u201d Thus, the Court held that the trial court did not abuse its discretion in denying the defendant\u2019s request.\nDefendant here argues that the trial court abused its discretion by denying defendant\u2019s request to call Beck. We disagree. Defendant never made a proffer as to what evidence he sought to elicit from Beck; instead, defendant maintains that he had \u201cthe right of having the jury make whatever inferences it might from the assertion by [Beck] of [his] Fifth Amendment rights.\u201d In other words, he wanted the jury to speculate in the hope that the speculation might be to his benefit. The trial court weighed a privilege expressly protected by the U.S. Constitution against this nebulous hope and decided correctly. Moreover, defendant, like the defendant in Pickens, was being tried under the theory of acting in concert. Because Beck\u2019s admission of his own involvement would not exonerate defendant, Beck\u2019s claiming his Fifth Amendment privilege was immaterial to defendant\u2019s defense. The trial court did not abuse its discretion. This assignment of error is overruled.\nDefendant next argues that the trial court erred by admitting testimony about the bad acts of his co-defendant Beck after Beck pled guilty. This evidence was elicited during cross-examination of defense witnesses and related to Beck\u2019s drug dealing. Because defendant did not object to this testimony at trial, we review admission of the testimony for plain error. See Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Here, the evidence in question was consistent with testimony taken prior to Beck\u2019s plea. Nevertheless, once Beck was out of the trial, evidence of his bad acts unrelated to the instant offense had no probative value and could only serve to prejudice defendant. However, we hold that the error in admitting the evidence was harmless. There was substantial other evidence of defendant\u2019s guilt, and we see no possibility that a different result could have been reached if this testimony pertaining to the co-defendant had been excluded. This assignment of error is overruled.\nFinally, defendant contends that the court erred by failing to grant his motion to dismiss at the conclusion of all the evidence. \u201c \u2018In passing upon a defendant\u2019s motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference.\u2019 \u201d State v. Tucker, 347 N.C. 235, 243, 490 S.E.2d 559, 563 (quoting State v. Aikens, 342 N.C. 567, 573, 467 S.E.2d 99, 103 (1996)), cert. denied, 523 U.S. 1061, 140 L. Ed. 2d 649 (1998). The State\u2019s case against defendant was based on a theory of acting in concert.\nWhere the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes\u2019 commission. That which is essentially evidence of the existence of concerted action should not, however, be elevated to the status of an essential element of the principle. Evidence of the existence of concerted action may come from other facts. It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.\nState v. Joyner, 297 N.C. 349, 356-57, 255 S.E.2d 390, 395 (1979).\nViewed in the light most favorable to the State, the evidence showed that Beck used a gun while taking the personal property of Campbell and McKinney. McKinney testified that defendant blocked his exit from the car, told him to keep his hands where they could be seen, and took his jewelry. This is sufficient evidence to establish beyond a reasonable doubt that defendant shared a common purpose with Beck. Accordingly, the trial court properly denied defendant\u2019s motion. This assignment of error is overruled.\nNo error.\nJudges WALKER and McGEE concur.",
        "type": "majority",
        "author": "EDMUNDS, Judge."
      }
    ],
    "attorneys": [
      "Michael F. Easley, Attorney General, by Emmett B. Haywood, Assistant Attorney General, for the State.",
      "Tisdale & Menefee, P.A., by Donald K. Tisdale, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LARRY D. STANFIELD\nNo. COA98-1160\n(Filed 7 September 1999)\n1. Evidence\u2014 not an expert \u2014 testimony about experience\u2014 belated recollections\nThe trial court did not err in a robbery case by allowing the testimony of a detective, who was not testifying as an expert, regarding the belated recollection process of trauma victims because he was relating his own experience instead of stating an opinion. Further, the detective did not suggest any reasons why belated recollections occurred, he did not vouch for the accuracy of such recollections, and he gave no opinion as to the credibility of the victim-witnesses.\n2. Evidence\u2014 cross-examination of defendant \u2014 robbery\u2014 prior convictions \u2014 no plain error\nThe trial court did not commit plain error in a robbery case when it permitted the State to cross-examine defendant about his prior convictions for possession of cocaine because although some of the forms of the questions were objectionable, the substance of the questions were appropriate since the prosecutor limited his inquiry to the facts supporting the conviction without eliciting extraneous prejudicial details.\n3. Evidence\u2014 cross-examination of defendant \u2014 robbery\u2014defendant\u2019s attitude towards criminal laws in general \u2014 no plain error\nThe trial court did not commit plain error in a robbery case by permitting the State to cross-examine defendant about his attitude concerning the esteem that he holds for criminal laws in general because even if this evidence was inadmissible, defendant failed to show that a different result would have been reached but for the error, or that the error was so fundamental as to result in a miscarriage of justice.\n4. Criminal Law\u2014 codefendant pled guilty \u2014 mistrial not required\nThe trial court did not err in a robbery case by failing to declare a mistrial after a codefendant pled guilty outside of the presence of the jury because when the jury returned, the trial court gave the pattern jury instruction that the codefendant\u2019s case was no longer before the jury, its disposition was of no concern to them, and their deliberations as to defendant should not be affected in any way.\n5. Constitutional Law\u2014 self-incrimination \u2014 robbery\u2014acting in concert \u2014 codefendant not required to testify\nThe trial court did not err in a robbery case when it did not allow defendant to call his codefendant to testify after the code-fendant pled guilty outside the presence of the jury and claimed he would invoke his Fifth Amendment privilege not to incriminate himself if called as a witness because defendant did not proffer the evidence he sought to elicit from his codefendant and merely wanted the jury to speculate. In addition, the fact that defendant was being tried on the theory of acting in concert meant the codefendant\u2019s admission of his involvement would not exonerate defendant.\n6. Evidence\u2014 prior crime or act \u2014 codefendant\u2014harmless error\nAlthough the trial court erred in a robbery trial by admitting irrelevant evidence of a codefendant\u2019s prior bad acts involving drug dealing after the codefendant pled guilty, it was harmless error in light of the substantive evidence against defendant.\n7. Robbery\u2014 motion to dismiss \u2014 acting in concert\nThe trial court did not err in a robbery case based on the theory of acting in concert by failing to grant defendant\u2019s motion to dismiss because viewed in the light most favorable to the State, the evidence was sufficient to show that defendant shared a common purpose with his codefendant. While the codefendant used a gun to take the personal property of both victims, defendant blocked one victim\u2019s attempt to exit from his car, defendant told the victim to keep his hands where they could be seen, and defendant took that victim\u2019s jewelry.\nAppeal by defendant from judgment entered 7 May 1998 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 10 June 1999.\nMichael F. Easley, Attorney General, by Emmett B. Haywood, Assistant Attorney General, for the State.\nTisdale & Menefee, P.A., by Donald K. Tisdale, for defendant-appellant."
  },
  "file_name": "0685-01",
  "first_page_order": 717,
  "last_page_order": 727
}
