{
  "id": 4175499,
  "name": "STATE OF NORTH CAROLINA v. DEMONTRE ANTHONY SAMUEL",
  "name_abbreviation": "State v. Samuel",
  "decision_date": "2010-05-04",
  "docket_number": "No. COA09-1230",
  "first_page": "610",
  "last_page": "627",
  "citations": [
    {
      "type": "official",
      "cite": "203 N.C. App. 610"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "558 S.E.2d 97",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "pin_cites": [
        {
          "page": "105",
          "parenthetical": "\"[T]his Court is mindful of the reluctance of counsel to interrupt his adversary and object during the course of closing argument for fear of incurring jury disfavor.\""
        }
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    {
      "cite": "355 N.C. 117",
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      "case_ids": [
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          "page": "129",
          "parenthetical": "\"[T]his Court is mindful of the reluctance of counsel to interrupt his adversary and object during the course of closing argument for fear of incurring jury disfavor.\""
        }
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        {
          "parenthetical": "footnote omitted"
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        6468547,
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        6468240,
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          "parenthetical": "footnote omitted"
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          "page": "378",
          "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)"
        },
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          "page": "378",
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        {
          "page": "378",
          "parenthetical": "citation and quotation marks omitted"
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          "page": "660",
          "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)"
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      "cite": "320 N.C. 64",
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      "year": 1992,
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        {
          "page": "592",
          "parenthetical": "holding that a hatchet was relevant in defendant's trial for armed robbery and assault when defendant \"had access to the particular hatchet, and it was at least the same as or similar to the one used in perpetrating the crimes.\""
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          "page": "689",
          "parenthetical": "holding that a hatchet was relevant in defendant's trial for armed robbery and assault when defendant \"had access to the particular hatchet, and it was at least the same as or similar to the one used in perpetrating the crimes.\""
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          "parenthetical": "holding no error in State's exhibiting to the jury a pistol similar to that used during an armed robbery"
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          "parenthetical": "holding no error in State's exhibiting to the jury a pistol similar to that used during an armed robbery"
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          "page": "630"
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          "page": "630"
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    "judges": [
      "Chief Judge MARTIN concurs.",
      "Judge WYNN concurs in the result with a separate opinion."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DEMONTRE ANTHONY SAMUEL"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nI. Procedural History\nOn 21 April 2008, Defendant Demontre Anthony Samuel was indicted on two counts of robbery with a dangerous weapon and one count of assault with a deadly weapon. Defendant declined the State\u2019s plea offer \u201cto consolidate all the charges for the mitigated range for robbery with a dangerous weapon[,]\u201d and the State withdrew the offer on 4 August 2008.\nThe matter was tried before a jury during the 29 September 2008 criminal session of Durham County Superior Court. The jury found Defendant guilty on both counts of robbery with a dangerous weapon and the lesser included offense of simple assault. The trial court entered judgment upon the jury verdicts, sentencing Defendant to a prison term of 60 to 81 months for the first robbery conviction and the simple assault conviction and a consecutive prison term of 60 to 81 months for the second robbery conviction. Defendant gave notice of appeal in open court.\nII. Evidence\nAt trial, the evidence tended to show the following: On 23 February 2008, Larry Johnson (\u201cLarry\u201d) and his cousin Archie Poteat (\u201cArchie\u201d) left the Northgate Mall in Durham, North Carolina and went to the bus stop. In a written statement given to police after the incident at issue, Larry stated:\nWe were waiting for the bus and this guy walked up on me[,] pulled out a gun and said give me your chain[.] I said no and he hit me in the head with the gun, and took the chain off my neck. [H]e then pointed the gun at my cousin and took his [chain]. [H]e then walked back to where he was with his friends and me and my cousin walked to the store and called my mother. She called the police and we described to them what he looked like. I told them he was a heavy set guy, dark skin, short hair, he had on a black shirt, blue jeans. The gun was a smokey [sic] grey gun[. I] think it was a 9 [millimeter] pistol because it was a kmda big pistol.\nArchie testified to the same sequence of events that Larry described in his written statement. Archie could not describe in detail what the assailant looked like, although Archie estimated that the assailant was about six feet tall and noticed that \u201c[h]e was built. He wasn\u2019t fat. He was just built.\u201d Archie testified that the assailant was wearing \u201ca black shirt, blue jeans, and black sneakers.\u201d\nLarry testified at trial that one of his friends, Lynnette Paul (\u201cLynnette\u201d), called him the day after the incident and told him that Defendant was the one who had robbed him. Larry told his mother about Lynnette\u2019s call. He also called Detective Richard Clayton (\u201cClayton\u201d) of the Durham City Police Department and reported what Lynnette had said.\nBased on the information given to Larry by Lynnette, Clayton called Larry down to the station so that Larry \u201ccould identify who did it[.]\u201d Larry went to the police station with his sister, who went to school with Lynnette at the time, and his mother. Clayton asked Larry if he could identify who had committed the crimes against Larry and Archie, and Larry indicated that he could. Detective J.R. Salmon (\u201cSalmon\u201d) of the Durham City Police Department showed Larry a six-person photo array, one picture at a time. When Larry went through the array the first time, he did not pick out a photograph. According to Salmon, however, Larry hesitated when he looked at the fifth photograph. Salmon showed the photo array to Larry a second time. Although Larry did not pick out a photograph, according to Salmon, \u201c[w]hen we got to photo number five, he looked- at the picture for approximately 20 seconds, and he made a face and said, no, that\u2019s not him.\u201d Salmon further testified, \u201cThen I went out and spoke with Investigator Clayton because I felt that the victim was nervous and recognized the gentleman, but was not willing to testify or give that information.\u201d Clayton \u201cdecided it would be best to get [Larry\u2019s mother] involved for moral support[,]\u201d so Clayton and Larry\u2019s mother went into the room and talked with Larry for about five minutes. Then Clayton \u201ccame back out of the room and asked [Salmon] to go back in and show [Larry] the photo array one more time.\u201d This time, \u201c[a]t photo number five, [Larry] picked [Defendant] out and pointed to him and said, [\u2018]yeah, that\u2019s him.[\u2019]\u201d Salmon left the interview room after Larry\u2019s identification of Defendant and went to Clayton\u2019s office. Clayton testified, \u201cI closed the door. I remember a smile on [Salmon\u2019s] face. He said, [\u2018]he pointed out number five.[\u2019] At that time, I knew number five was [Defendant].\u201d\nBased on Larry\u2019s identification of Defendant in the photo array, Clayton applied for, and was granted, a warrant to search Defendant\u2019s residence. On 29 February 2008, Clayton, Salmon and other Durham City police officers went to Defendant\u2019s home to execute the search warrant. Defendant was arrested and taken to the police station. Meanwhile, the officers read Defendant\u2019s stepfather, David Bracey, the search warrant and interviewed him. Bracey informed Clayton that there were guns upstairs in his bedroom closet. Upstairs in Bracey\u2019s closet, Clayton found \u201ca silver \u2014 it was a shiny[,] silver semiautomatic, which was [Bracey\u2019s] gun that was locked in a safe. Then there was a small silver revolver that was located inside the closet also but not in the safe.\u201d Clayton collected the guns as evidence. Clayton testified that the main thing he was looking for, \u201caside from the weapons, were the chains, direct evidence from the crime or the robbery that I was unable to locate. So I knew I kind of had to move on with my investigation with that.\u201d\nAfter completing the search of Defendant\u2019s home, Clayton went to the police station to interview Defendant. Defendant told Clayton that he had been at the mall on 23 February 2008 and had taken pictures with his girlfriend at a photo store in the mall. When he left the mall in the evening, he waited at the bus stop with his brother, Teshaun Johnson (\u201cTeshaun\u201d), his cousin, Shaquille Drakeford (\u201cShaquille\u201d), and his girlfriend, Lashay Davis (\u201cLashay\u201d). Defendant told Clayton that he was wearing a black jacket, black t-shirt, black jeans, and black shoes with a yellow and white design on them.\nClayton instructed Salmon to retrieve from the mall the photographs Defendant took with his girlfriend. Salmon went to the mall and located the store where the photographs were taken. Although there were several photographs, Salmon took only one of them. Salmon testified that in the photograph, Defendant was wearing a \u201cblack shirt with either [a] yellow or white stripe across the top where the undershirt was.\u201d Even though the owners of the store cropped Defendant\u2019s girlfriend out of the photograph, the shoulder of another individual, wearing white and yellow stripes, appeared in the photograph to Defendant\u2019s right.\nClayton returned to Defendant\u2019s house the evening of 29 February 2008 \u201cto verify that [Defendant\u2019s] brother Teshuan and his cousin Shaquille [had been] at the bus stop.\u201d While at Defendant\u2019s house, Clayton did not attempt to collect the clothing Defendant claimed to have been wearing on the night of the robberies. Clayton did, however, interview Teshuan. During the interview, Teshuan gave Clayton one of the chains that had been taken during the robberies. Teshaun gave Clayton a statement indicating where he got the necklace. Based on Teshuan\u2019s statement, Clayton set up an interview with Marcus Jackson (\u201cMarcus\u201d).\nOn 3 March 2008, Clayton spoke with Shaquille. Shaquille told Clayton that he had been with Defendant, Teshuan, D\u2019Andre, Preston Scurlock, and Tyrone Peace at the Northgate Mall on 23 February 2008. When the group left the mall, they went to the bus stop to catch the bus home. Shaquille saw Larry and Archie \u201ccrossing the street coming towards the bus stop, going behind the bus stop to the wall.\u201d While they were waiting at the bus stop, Defendant was seated between D\u2019Andre and Preston under the shed. Shaquille testified, \u201cI seen Marcus come out from behind with two chains. So I asked him if I could have one, and he gave me one.\u201d Shaquille testified that Defendant \u201cwas still sitting down\u201d when Marcus walked up with the chains. After handing Shaquille the chain, Marcus and his cousin got in Marcus\u2019s mother\u2019s car and left. Shaquille put the chain around his neck. When the bus pulled up, Shaquille, Defendant, and the rest of their group got on. After he got home, Shaquille \u201cseen that the chain was fake\u201d so he gave it to his youngest cousin, Tyreen.\nOn cross-examination, Shaquille testified that on the night of the robberies, Defendant was wearing a black t-shirt with a yellow shirt under it, black jeans with a big white design outlined in yellow on the back, and black shoes with yellow and white on them. He identified defense exhibits 2, 3A, and 3B as the pants and shoes Defendant wore on the night of 23 February 2008.\nOn 14 March 2008, Clayton went to Marcus\u2019s house, which is located directly across the street from Defendant\u2019s house, and received permission from Marcus\u2019s mother to search Marcus\u2019s room. Clayton did not locate any evidence associated with the crimes at issue in Marcus\u2019s room. Later that day, Clayton met with Marcus at the police station. At that interview, Marcus told Clayton that he had a chain from the robberies at his house but that he had given it to his father. Marcus\u2019s father, who had accompanied Marcus to the police station, did not have the chain with him at the interview. Marcus\u2019s father left the police station, retrieved the chain from his home, and brought it back to Clayton. The chain had a diamond-studded cross on it and was the chain that had been stolen from Larry.\nAt trial, Marcus, a six-foot, two-inch, 240-pound, right tackle for his high school football team, acknowledged that he had been at the Northgate Mall bus stop with his cousin on the night of 23 February 2008. Marcus testified that he saw Defendant sitting \u201c[u]nder the shed thing\u201d at the bus stop that evening with about four other people. Marcus further testified that he \u201creally didn\u2019t see nothing, actually. I really didn\u2019t see nothing.\u201d Marcus admitted that several days after the incident, he gave a written statement to police regarding the incident. The trial court sustained Defendant\u2019s objection to the prosecutor\u2019s attempt to admit Marcus\u2019s written statement for the truth of the matter asserted therein. After excusing the jury, the trial court allowed the prosecutor to voir dire Marcus to determine if the written statement could be admitted to corroborate his in-court testimony. After the voir dire, the trial court ruled that Marcus \u201ccan\u2019t testify to the content of the statement, except as to if the [Defendant gave him the chain. He can testify that that\u2019s consistent.\u201d\nWhen the jury returned, the prosecutor resumed her examination of Marcus. Marcus testified that he and his cousin weren\u2019t at the bus stop longer than five minutes on the night of 23 February 2008 and that his mother came and picked them up. The following exchange then took place:\n[Prosecutor:] What did you have in your possession when you left that bus stop?\n[Marcus:] Nothing.\n[Prosecutor:] Nothing? What, if anything, did [Defendant] give you?\n[Marcus:] Nothing.\n[Prosecutor:] He never gave you anything?\n[Marcus:] The same night?\n[Prosecutor:] Yes.\n[Marcus:] No.\n[Prosecutor:] What did he give you when?\n[Marcus:] When what?\n[Prosecutor:] Did he give you anything? You know him so well. Did he give you anything during the course of you knowing him?\n[Marcus:] No.\n[Prosecutor:] He didn\u2019t give you anything?\n[Marcus:] No, not to my knowledge.\n[Prosecutor:] He never gave you a chain?\n[Marcus:] No.\n[Prosecutor:] He never gave you a chain?\n[Marcus:] I got the chain from another boy when we was like at the corner of my neighborhood.\n[Prosecutor:] From whom did you get the chain?\n[Marcus:] I don\u2019t even remember. . . .\nAfter a brief bench conference, the jury was recessed for lunch. The prosecutor asked that the record reflect that Marcus made several statements during voir dire and \u201cthen turned around and made inconsistent statements on the record when we came back in with the jury.\u201d\nImmediately after the lunch recess, the jury was excused again. The trial court warned Marcus, \u201cYou\u2019ve made an inconsistent statement under oath in this courtroom under oath. I just want to advise you [of] the penalties of perjury .... I think it\u2019s a Class F. . . . [T]he maximum sentence you could receive for a Class F felony would be 20 months.\u201d\nWhen the jury returned to the courtroom, the prosecutor asked Marcus, \u201cDid you receive a necklace?\u201d Marcus responded, \u201cYes.\u201d When asked from whom he received it, Marcus replied that he received it from Defendant.\nAfter Marcus left the witness stand, the State recalled Larry, who had identified Defendant both in the photographic line-up and in court as the assailant. Larry testified that he had never seen Marcus before and that Marcus was not his assailant.\nLynnette testified that she told Clayton she had witnessed the robberies. However, Lynnette admitted at trial that she did not witness the robberies and she was not, in fact, at the bus stop with Larry and Archie on the night they were robbed. Instead, she \u201cwas at a different bus stop ... on the other side of the mall.\u201d The prosecutor asked Lynnette, \u201cWhat do you recall happening on [23 February 2008] at that bus stop?\u201d Lynnette responded, \u201cI don\u2019t- \u2014 all I know, they was at a different bus stop.\u201d Lynnette further testified that she heard about the robbery when she got a phone call from Larry. Larry told Lynnette that his assailant was wearing a black shirt, blue jeans, and black sneakers. Lynnette did not recall Larry describing any physical characteristics of his assailant. The prosecutor then asked, \u201cWhen Larry described the person who robbed him, what, if anything, did you say to Larry?\u201d Lynnette replied, \u201cI said [Defendant\u2019s] name.\u201d Lynnette testified that she and Defendant went to school together and that she had seen him at the mall that evening wearing a \u201c[b]lack shirt, blue jeans, and black sneakers.\u201d She also testified that she got on the \u201cnumber one\u201d bus and then, after a while, Defendant got on the bus with \u201cthe people he was with.\u201d Lynnette recalled that Defendant was wearing a \u201c[b]lack [t]-shirt, blue pants, and black sneakers\u201d when he got on the bus. She did not remember any stripes, markings, or other colors on Defendant\u2019s clothes. Lynnette further testified that she saw Larry\u2019s chain in Defendant\u2019s hand. Although both Shaquille and Marcus testified that Marcus was picked up at the bus stop by his mother on the night of the robberies, Lynnette testified that Marcus was also on the bus.\nDefendant called his mother, Khadedre Drakeford, to testify on his behalf. Ms. Drakeford recognized Defendant\u2019s Exhibits Numbers 2 and 3 as the clothes Defendant wore to the mall on the evening of 23 February'2008. She testified that she bought the clothes with Defendant in Raleigh on the afternoon of 23 February because Defendant was going to the mall to take pictures with his girlfriend, \u201cand they wanted to match.\u201d Ms. Drakeford drove Defendant to the Northgate Mall that evening, and \u201c[h]e caught the bus back.\u201d Ms. Drakeford was awake when Defendant came home from the mall, and she testified that he was wearing the same clothes they had purchased that day and that he wore to the mall that evening, \u201c[b]lack [t]-shirt, yellow [t]-shirt up under it, those black jeans with the white stripe down the back, [and] yellow and black sneakers.\u201d\nOn cross-examination, Ms. Drakeford acknowledged that she had spoken to Clayton about the revolver found in Bracey\u2019s bedroom closet. Over objection, she testified that she informed Clayton that she found the revolver on 25 February 2008 in an upstairs bedroom on a top bunk. When Ms. Drakeford asked Defendant if the revolver was his, he told her it was not. Over further objection, Ms. Drakeford testified that she \u201ctook the gun and put it in the closet to take it to an officer that lives down the street from me.\u201d Ms. Drakeford testified, again over objection, that she had never known Defendant to carry a gun. The prosecutor then asked, \u201cSo two days after [the incident at issue], you found a weapon in. the bedroom and you talked to [Defendant] about it?\u201d Ms. Drakeford replied, \u201cYes, I did.\u201d When asked who Defendant said the gun belonged to, over objection, Ms. Drakeford testified that Defendant \u201csaid the young man\u2019s name was Michael. I am familiar with that young man. His last name is Fuller.\u201d The prosecutor then asked, \u201cSo [Defendant] hangs around guys with guns?\u201d Ms. Drakeford responded, \u201cNo.\u201d Defendant\u2019s objection was again overruled.\nIII. Discussion\nDefendant first argues that the trial court erred in admitting evidence of the guns found in Defendant\u2019s home as the guns were not relevant to the crimes charged. We agree.\n\u201c \u2018Relevant evidence\u2019 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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2007). \u201cEvidence which is not relevant is not admissible.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (2007). Although \u201ca trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.\u201d State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).\nWhere a defendant has made a timely objection at trial, \u201c[t]he admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown[.]\u201d State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987). \u201cA defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2007). Where a defendant has failed to make a timely objection at trial, the admission of evidence which is technically inadmissible will be treated as harmless unless plain error is shown. Plain error occurs when an error \u201c \u2018had a probable impact on the jury\u2019s finding that the defendant was guilty.\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)).\nIn his pre-trial statement to police, Larry described the gun used in the attack against him as \u201ca smokey [sic] grey gun[. I] think it was a 9 [millimeter] pistol because it was a kinda big pistol.\u201d At trial, Larry testified regarding the gun as follows:\n[Larry:] It was a pretty big gun. It was a smokey [sic] gray color.\n[Prosecutor:] Smokey [sic] gray?\n[Larry:] Yes.\n[Prosecutor:] Are you familiar with weapons?\n[Larry:] A little bit.\n[Prosecutor:] Can you distinguish between a revolver and a semi-automatic?\n[Larry:] Yes.\n[Prosecutor:] Which type of weapon was pointed at you?\n[Larry:] A semi-automatic.\nArchie testified regarding the gun used in the attack as follows: \u201cIt was a long gun. A smokey [sic] \u2014 it was smokey [sic] gray, pointed at me.\u201d\nClayton testified that he found \u201ca silver \u2014 it was a shiny[,] silver semi-automatic, which was [Bracey\u2019s] gun that was locked in a safe. Then there was a small silver revolver that was located inside the closet also but not in the safe.\u201d\nClayton testified further:\nI made a determination, due to my prior interviews with both victims, I asked them to describe the weapons, the gun that was displayed. Both victims, Larry and Archie, indicated that it was a silver, like a smokey [sic] gray, large semi-automatic handgun.\nI ensured that they knew the difference between a revolver and a semi-automatic. Both victims indicated it was a semi-automatic.\nThe weapon that I recovered at [Defendant\u2019s] residence, aside from the semi-automatic [sic], was a silver shiny semi-automatic that was owned by his stepfather. Aside from that, another weapon which was a small, gray revolver was located. So I made the determination that that was not the weapon that was used in the robbery.\nSalmon identified State\u2019s Exhibit Number 16, the revolver, as \u201cone of the two guns that was taken out of the residence out of the stepfather\u2019s room[.]\u201d Salmon identified State\u2019s Exhibit Number 17, the semi-automatic, as \u201cthe second handgun that was recovered in the house.\u201d On cross-examination, Salmon testified that the second gun was found upstairs in a locked safe.\nOfficer Catherine M. Lipsey of the Durham Police Department photographed the guns and placed them in brown paper bags. Lipsey identified State\u2019s Exhibit Number 22 as \u201ca photograph I took of the weapon.\u201d Over objection, Lipsey identified State\u2019s Exhibit Number 16 as \u201cthe handgun that I took out of the closet on the top shelf.\u201d The exhibit was admitted into evidence, over objection. Lipsey identified State\u2019s Exhibit Number 17 as \u201cthe gun that... I took out of the safe.\u201d Over objection, the exhibit was admitted into evidence.\nOn cross-examination, Lipsey explained that she did not collect \u201cany kind of tissue or blood\u201d from either gun and that if there had been any, she \u201cwould have collected it, or . . . taken the handgun and driven it down to the SBI labs\u201d for testing. Clayton testified that only the revolver was swabbed for DNA and that no fingerprints were taken from the revolver.\nOn cross-examination, over Defendant\u2019s repeated objection to the relevance of the line of questioning, the prosecutor questioned Ms. Drakeford about the revolver. Ms. Drakeford testified that she found the revolver on 25 February 2008 in an upstairs bedroom on a top bunk and talked to Defendant about it. The prosecutor asked, \u201cSo two days after [the incident at issue], you found a weapon in the bedroom and you talked to [Defendant] about it?\u201d Ms. Drakeford replied, \u201cYes, I did.\u201d Ms. Drakeford \u201ctook the gun and put it in the closet [.]\u201d She further testified that Defendant denied that the revolver was his. When asked who Defendant said the gun belonged to, Ms. Drakeford testified that Defendant \u201csaid the young man\u2019s name was Michael. I am familiar with that young man. His last name is Fuller.\u201d The prosecutor then asked, \u201cSo [Defendant] hangs around guys with guns?\u201d Ms. Drakeford responded, \u201cNo.\u201d\nIn her closing argument to the jury, the prosecutor projected a slide of an enlarged photograph of the revolver. While the image appeared, the prosecutor narrated: \u201cOn 29th of 2008, February, search warrant was issued. It was executed at the [Defendant's home. Gun was found . . . .\u201d\nThe victims\u2019 description of the gun used in the attack did not match either of the guns found in Bracey\u2019s closet. Furthermore, neither witness identified either gun as the gun used in the robbery. After Clayton \u201censured that [the victims] knew the difference between a revolver and a semi-automatic[,]\u201d he \u201cmade the determination that [the revolver] was not the weapon that was used in the robbery.\u201d Despite this determination, the revolver was the only weapon from which a DNA swab was taken, Defendant\u2019s mother was questioned solely about the revolver, and the revolver was presented to the jury by the prosecutor in her closing argument, along with the misleading narrative, \u201cGun was found.\u201d Moreover, although the assailant used the gun to hit Larry just above the eyebrow, opening up a bloody gash, no tissue or blood was collected from either gun.\nIn sum, there was not a scintilla of evidence linking either of the guns to the crimes charged. Accordingly, we conclude that the evidence about the guns was wholly irrelevant and, thus, inadmissible. See N.C. Gen. Stat. \u00a7 8C-1, Rule 402.\nHaving determined that the evidence of the guns was irrelevant and, thus, inadmissible, we must now determine whether Defendant is entitled to a new trial because of the error.\nThe State contends that the admission of the evidence is limited to plain error review as Defendant \u201cdid not timely object to . . . the admission of the guns into evidence^]\u201d However, the transcript of the proceedings unequivocally establishes that Defendant timely objected to the admission of both guns, and that both objections were overruled by the trial court. The State also intimates that Defendant somehow waived his objection to the evidence by \u201cexamining] various witnesses at length in regard to the three [sic] handguns found.\u201d However, the State cites no legal authority for this proposition, and our research has revealed none. The State further contends that the admission of the evidence is limited to plain error review as Defendant \u201cdid not timely object to many references to the evidence\u201d of the guns. Even assuming ar-guendo that a plain error standard of prejudice applies, we conclude that it was plain error to admit any evidence of the guns.\nThe sole issue in contention at the trial of this case was the identity of the individual who robbed Larry and Archie. The State used the evidence of the guns, and most specifically the revolver, to tie Defendant to the crime. Although the evidence before the trial court was that the revolver was not the gun used in the crime, the prosecutor\u2019s case relied upon tying Defendant to the revolver and then tying the revolver to the crime. The prosecutor\u2019s cross-examination of Defendant\u2019s mother connected Defendant to the revolver within days of the robbery. The prosecutor published a photograph of the revolver to the jury during the trial. The prosecutor further highlighted the revolver as an important link between Defendant and the crime in her closing argument to the jury by projecting an enlarged image of the revolver while narrating, \u201cGun was found.\u201d There is no tenable argument that the admission of the evidence of the guns, and the prosecutor\u2019s reliance upon the revolver to link Defendant to the crimes charged, did not have \u201ca probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation and quotation marks omitted). We disagree with the State\u2019s unsupported assertion that \u201c[g]iven the substantial evidence of guilt in the record, Defendant cannot meet th[e] burden\u201d of showing plain error. We agree with Defendant that there \u201cis not, by any fair characterization, overwhelming evidence that [Defendant] was the robber^]\u201d demonstrated as follows:\nThe evidence indicates that Defendant was initially identified as the assailant by Lynnette. While Lynnette told Clayton that she was an eyewitness to the robberies, she admitted on the stand that she did not witness the crimes and, furthermore, that she was not even at the bus stop where the crimes were committed at the time they were committed.\nBased on the false information given to Larry by Lynnette, Clayton called Larry down to the station so that Larry \u201ccould identify who did it[.]\u201d Larry was shown a photo array created by Clayton containing Defendant\u2019s picture. Larry did not identify his assailant the first two times he viewed the array. Believing that Larry had \u201cpaused\u201d at picture number five, Defendant\u2019s picture, Salmon left the room to talk with Clayton. Clayton and Larry\u2019s mother then entered the room to lend \u201cmoral support\u201d to Larry. After talking with Larry for five minutes, Clayton and Larry\u2019s mother left the room, and Salmon again showed the photo array to Larry. This time, Larry identified Defendant as the assailant. Salmon went to Clayton\u2019s room with a \u201csmile on his face\u201d to tell Clayton that Larry had identified Defendant in the photo array.\nBased on this questionable identification, Clayton obtained a search warrant for Defendant\u2019s home. As a result of the search, the two handguns were found. As discussed supra, there was not a scintilla of evidence linking either of the guns to the crimes charged.\nAt trial, Marcus testified that he had been given the chain by someone other than Defendant. Before allowing Marcus to continue testifying, the trial court told Marcus that he had \u201cmade an inconsistent statement under oath in this courtroom\u201d and warned him of the penalties for perjury. Marcus then testified that Defendant had given him the chain.\nArchie testified that his assailant \u201cwas built. He wasn\u2019t fat. He was just built.\u201d Larry described his attacker as \u201cheavy set[.]\u201d Clayton testified at trial that he did not consider Defendant \u201cheavy set,\u201d and conceded that Marcus, a six-foot, two-inch, 240-pound, right tackle for his high school football team, is \u201cpretty big and tall and heavy set[.]\u201d Clayton further testified, \u201cIt\u2019s hard to mistake a \u2014 I mean, Marcus is a big boy.\u201d\nShaquille, who was at the bus stop on the night of the robberies, testified that Defendant never left the bus stop bench and that Marcus appeared at the bus stop with the stolen chains. Larry and Archie both testified that their assailant was wearing a black shirt, blue jeans, and black sneakers. However, Defendant was wearing a distinctive bright yellow t-shirt under his black shirt, which was plainly visible in the photograph Salmon retrieved from the mall, and his black pants and black shoes had unique yellow and white designs on them. Furthermore, neither of the chains were discovered in Defendant\u2019s possession.\nGiven the weakness in the State\u2019s evidence that Defendant was the assailant and the substantial evidence tending to show that Defendant was not the assailant, we conclude that the admission of the evidence of the guns, and the prosecutor\u2019s reliance upon the revolver to link Defendant to the crimes charged, had \u201ca probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation and quotation marks omitted). Accordingly, we hold that the admission of the irrelevant gun evidence amounted to plain error, for which Defendant is entitled to a new trial.\nIn light of this conclusion, we need not reach Defendant\u2019s remaining arguments. For the foregoing reasons, Defendant\u2019s convictions are reversed and this matter is remanded to Durham County Superior Court for a new trial.\nNEW TRIAL.\nChief Judge MARTIN concurs.\nJudge WYNN concurs in the result with a separate opinion.\n. Although the trial court announced in open court that Defendant was sentenced to 30 days in prison for the simple assault conviction, and that such sentence was to run consecutively with the 60 to 81 month sentence for the first robbery conviction and the simple assault conviction shows only one sentence of 60 to 81 months for both convictions.\n. D\u2019Andre\u2019s last name is not included in the record.\n. On appeal, the State mistakenly asserts that it\npresented evidence that three, not two, handguns were found, two of which were semi-automatic weapons, as was the weapon used to rob the victims. Only one gun, a revolver, was identified by a witness as probably not being the weapon used in the robbery.\nOn the contrary, it is abundantly clear from the record that only two' guns were found in Bracey\u2019s closet and admitted into evidence.\n. State\u2019s Exhibit Number 22 is a photograph of the revolver.\n. Although Clayton testified that \u201c[b]oth victims ... indicated that [the gun] was a silver, like a smolrey [sic] gray, large semi-automatic handgun[,]\u201d neither victim described the gun as \u201csilver\u201d and, instead, consistently described the gun\u2019s color as \u201csmokey [sic] gray.\u201d\n. While the State could possibly have advanced a theory that the \u201csilver\u201d semiautomatic gun found in Bracey\u2019s locked safe was the \u201csmoky gray\u201d semi-automatic gun used in the attacks, no evidence was presented to support this theory and the State, instead, focused solely on the revolver in its attempt to link Defendant to the crimes charged.\n. The State contradicts itself two pages later when it asserts that \u201cDefendant\u2019s only objection [to the guns] came when the State introduced Exhibits 16[, the revolver,] and 17[, the semi-automatic,] into evidence.\u201d\n. As explained supra, the State introduced evidence of two guns at trial. The State\u2019s brief to this Court contending that three guns were found profoundly misstates the evidence.\n. Indeed, we find shocking the suggestion that a party is prohibited from testing the sufficiency or credibility of evidence admitted over that party\u2019s objection.\n. While a defendant\u2019s failure to object to the improper admission of evidence is generally limited to plain error review on appeal, this Court is mindful of the reluctance of counsel to repeatedly interrupt his adversary in order to repeatedly object to the admission of the same evidence for fear of incurring jury and/or judicial disfavor and drawing extra attention to the evidence being objected to. See State v. Jones, 355 N.C. 117, 129, 558 S.E.2d 97, 105 (2002) (\u201c[T]his Court is mindful of the reluctance of counsel to interrupt his adversary and object during the course of closing argument for fear of incurring jury disfavor.\u201d).\n. Clayton\u2019s testimony illustrates that a black shirt, blue jeans, and black sneakers is a common outfit among Durham youth and relatively unhelpful as an identifying factor.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      },
      {
        "text": "WYNN, Judge,\nconcurring.\nIn North Carolina, it is error in a trial for armed robbery to admit evidence of a gun that is in no way linked to the crime charged. Additionally, such error warrants a new trial where there is conflicting evidence of the identity of the perpetrator. While I would hold in this case that the semi-automatic pistol was properly admitted as evidence, I agree with the majority that admitting the revolver was prejudicial error. Thus, I concur in awarding Defendant a new trial.\nOn 23 February 2008, while waiting at a bus stop at the mall, Larry Johnson and Archie Poteat were robbed of their neck chains, and Larry Johnson was struck in the face, by a heavyset man with a gun. The assailant, later identified as Defendant, was described by both young men as brandishing a gray semi-automatic pistol.\nThe same evening, Larry Johnson described his assailant to a friend, Lynnette Paul. She testified that the clothes she saw Defendant wearing on that day were consistent with the description Larry Johnson provided. She testified that she observed Defendant and his companions on the bus playing with a chain that she recognized as belonging to Larry Johnson. Larry Johnson subsequently picked Defendant out of a photo lineup assembled by the detective investigating the robbery.\nBased on Larry Johnson\u2019s identification of Defendant, Detective Clayton obtained a search warrant for Defendant\u2019s residence. Upon execution of the warrant, detectives retrieved two handguns: a revolver and a semi-automatic pistol from the home. Defendant was placed in custody. Defendant waived his Miranda rights, and told police that he was indeed at the mall on the date of the incident, and that he was later on the bus with Lynnette Paul. Later, detectives recovered Archie Poteat\u2019s neck chain from Defendant\u2019s brother, Teshaun, and recovered Larry Johnson\u2019s neck chain from Marcus Jackson who testified at trial that he got the chain from Defendant two or three days after the robbery.\nOn appeal from convictions of two counts of robbery with a dangerous weapon and one count of simple assault, Defendant contends the trial court erred by, among other things, admitting evidence of guns found in Defendant\u2019s home that were not tied to the robbery. The majority reverses Defendant\u2019s conviction on the grounds that the evidence of the guns seized from Defendant\u2019s residence was irrelevant to the charge of armed robbery. I agree that the evidence regarding the revolver was irrelevant; consequently, I concur with the majority that Defendant is entitled to a new trial.\nDefendant relies on State v. Patterson, 59 N.C. App. 650, 297 S.E.2d 628 (1982), to argue that the trial court\u2019s admission of evidence regarding guns not tied to the robbery was error. The victim in Patterson was robbed of her wallet and car keys by a man with a gun. Id. at 651, 297 S.E.2d at 629. \u201cDuring cross-examination of the defendant the assistant district attorney brought out testimony to the effect that there was a sawed-off shotgun in the car in addition to the pistol identified by the robbery victim.\u201d Id. at 652, 297 S.E.2d at 630.\nUpon review, this Court held in Patterson that \u201c[t]he shotgun was not connected to the robbery and it was clearly not relevant to any issues in the case. Therefore, the shotgun was erroneously admitted into evidence.\u201d Id. at 653, 297 S.E.2d at 630. No error was found (or alleged) in the fact that \u201c[a] small caliber pistol which the State contended] was the weapon used in the commission of the robbery was introduced and the victim identified this pistol as being very similar to the one used in the robbery.\u201d Id. We held further \u201cthat there [was] a reasonable possibility that the erroneous admission of the shotgun evidence contributed to the defendant\u2019s conviction, particularly in light of the conflicting evidence regarding the identity of the defendant as the man who robbed [the victim].\u201d Id. at 653-54, 297 S.E.2d at 630.\nIn the present case, the witnesses described the weapon used during the robbery and assault as a large gray semi-automatic pistol. Detective Clayton identified the guns seized from Defendant\u2019s home as being (1) a silver semi-automatic pistol, and (2) a small gray revolver. The State introduced both guns seized from Defendant\u2019s home into evidence over Defendant\u2019s objection. A photograph of the revolver was introduced without objection and published to the jury. I agree with the majority that admitting the revolver was prejudicial error; however, I disagree that admitting the semi-automatic pistol was error.\nRegarding the semi-automatic pistol, the victims in this case were robbed by a man with a gray semi-automatic pistol. A silver semiautomatic pistol was seized from Defendant\u2019s home. I believe this makes evidence of the semi-automatic relevant to the State\u2019s case against Defendant, whether or not the semi-automatic seized was the same gun used in the robbery. See State v. See, 301 N.C. 388, 391, 271 S.E.2d 282, 284 (1980) (holding no error in State\u2019s exhibiting to the jury a pistol similar to that used during an armed robbery); State v. Bush, 78 N.C. App. 686, 689, 338 S.E.2d 590, 592 (1986) (holding that a hatchet was relevant in defendant\u2019s trial for armed robbery and assault when defendant \u201chad access to the particular hatchet, and it was at least the same as or similar to the one used in perpetrating the crimes.\u201d). Insofar as the majority holds evidence of the semi-automatic was not relevant, I respectfully disagree.\nHowever, regarding the revolver, this case involved conflicting evidence regarding the identity of the man who robbed Larry Johnson and Archie Poteat. The risk of prejudice to Defendant by the admission of improper evidence was correspondingly high. Both victims testified that their assailant wielded a semi-automatic pistol. Notwithstanding, the trial court admitted evidence of a gun seized from Defendant\u2019s residence \u2014 the revolver \u2014 that was obviously not involved in the commission of the robbery. Patterson addressed these precise circumstances. Applying Patterson strictly, I concur in the result that awards Defendant a new trial.\n. State v. Patterson, 59 N.C. App. 650, 653, 297 S.E.2d 628, 630 (1982).",
        "type": "concurrence",
        "author": "WYNN, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.",
      "Michele Goldman for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DEMONTRE ANTHONY SAMUEL\nNo. COA09-1230\n(Filed 4 May 2010)\nEvidence\u2014 guns \u2014 plain error to admit \u2014 relevancy\nThe trial court committed plain error in a double robbery with a dangerous weapon and assault with a deadly weapon case by admitting evidence of guns found in defendant\u2019s home. The guns were not relevant to the crimes charged because the victims\u2019 description of the gun used in the attack did not match either of the guns found in the closet, and neither witness identified either gun as the one used in the robbery.\nAppeal by Defendant from judgments entered 2 October 2008 by Judge Henry W. Hight in Durham County Superior Court. Heard in the Court of Appeals 22 February 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.\nMichele Goldman for Defendant."
  },
  "file_name": "0610-01",
  "first_page_order": 638,
  "last_page_order": 655
}
