711 S.E.2d 207
No. COA10-716North Carolina Court of Appeals
Filed 15 March 2011 This case not for publication
Mecklenburg County Nos. 08 CRS 237250-51.
Appeal by Defendant from judgment entered 8 October 2009 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.
Michele Goldman for Defendant.
STEPHENS, Judge.
Blake Sherdan Odom (“Defendant”) appeals from his convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, contending that the trial court erred by allowing the introduction of an out-of-court statement by a witness at trial. Concluding that Defendant waived his objection to the challenged evidence, we further conclude that the challenged evidence was not erroneously admitted.
The State’s evidence tends to show the following: On 5 August 2008, Oscar Milla was in the apartment he shared with his father, Jose Milla (“Mr. Milla”), along with Oscar’s friend, Walter Torres.
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Mr. Milla went outside to talk on his cell phone. Oscar heard his father calling his name, and Walter said he saw people beating Mr. Milla. Oscar ran outside to help his father, who was on the ground. He saw four individuals around his father: a Hispanic male, a Hispanic female, and two black males. Oscar testified that the three men were hitting and kicking his father, and the woman had her hand in his father’s pocket and was attempting to take his wallet. Then, Oscar heard a gunshot and saw the four assailants run toward a car. He testified that it was the Hispanic male, later identified as Yoan Tosca, who fired the gun and drove the car. Oscar and Walter pursued the car in Walter’s van, as Oscar called the police and gave them information. They continued to follow the assailants until they saw the car stopped by the police. Oscar and Walter recognized the four people in the car as the ones who had beaten Oscar’s father.
Charlotte-Mecklenburg Police Officer David Sussman testified that, on the night of 5 August 2008, he stopped a car containing the four suspects identified by Oscar and Walter as Jose’s assailants; Defendant was among them. A pistol, clothing, cell phones, and a wallet with money in it were discovered in the car. Oscar and Walter each gave statements to the police.
The State elicited testimony from Defendant’s three co-defendants: Tosca, Chavis Bryant, and Ashley Castro. All three had already pled guilty to charges arising from the attack on Mr. Milla. Tosca testified that, on the afternoon of 5 August 2008, Defendant called him, said they “were going to make some money,”
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and discussed the possibility of trying to rob someone or steal a car. Tosca and Castro picked up Defendant and Bryant, and they discussed finding someone to rob. They drove into an apartment area and saw an Hispanic man talking on a cell phone. According to Tosca, he parked, and then he, Defendant, and Bryant got out and ran up to the Hispanic man, Mr. Milla, while Castro waited in the car. Bryant hit Mr. Milla with a belt, and they took his cell phone before family members came out of a nearby apartment. Tosca then fired a gun into the air, and the three men jumped in the car and drove off. Tosca testified that they later drove past a gas station where they saw two Hispanic men walking. Tosca stopped the car and he, Defendant, and Bryant jumped out and took a wallet from one of the men. They were stopped by the police and arrested shortly after driving away.
Bryant testified that Defendant had not been aware of the plan to rob someone, attempted to stop the robbery of Mr. Milla and was not involved in it. Bryant recalled giving a videotaped statement to Detective Angela Caroway with the Charlotte-Mecklenburg Police Department, but did not remember telling her that Defendant had covered Mr. Milla’s mouth during the attack. At trial, Bryant testified that Defendant did not cover the victim’s mouth, and stated that he had lied to the detective to protect himself.
Castro testified that Defendant was involved with the robbery of Mr. Milla. She stated that she, Tosca, Bryant, and Defendant were driving around when Defendant pointed at an Hispanic man talking on a cell phone and said, “Get him.” Tosca pulled over,
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and the three men got out of the car and ran up and grabbed the Hispanic man. She did not see Defendant try to stop the robbery.
Det. Caroway testified that she interviewed Castro and Bryant the night of the incident. She recalled that Bryant told her that he, Tosca, Castro, and Defendant discussed trying to find someone to rob as they drove around. Bryant told Det. Caroway that Tosca hit Mr. Milla with a gun, Bryant struck him with a belt, and Defendant covered his mouth, while Castro stayed in the car. After the incident, the three men got back in the car and looked for someone else to rob. Tosca handed the gun to Defendant, and later they robbed two other people.
The State sought to introduce the audio recording of Bryant’s taped interview with Det. Caroway. Defendant objected on the grounds that most of the recording was irrelevant and too vague to implicate Defendant in a conspiracy to commit robbery. The trial court overruled Defendant’s objection and admitted the majority of the recording.
Defendant testified that, when the group saw Mr. Milla, Tosca circled the car around and asked Defendant if he was with them. Defendant understood that they meant to rob Mr. Milla and told them that he would not help. Defendant testified that, when Tosca and Bryant got out of the car, he tried to intervene, attempting to pull Bryant off of Mr. Milla and saying, “Let’s go.” He also denied involvement with the robbery of the two other Hispanic males.
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The jury found Defendant guilty of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Defendant pled guilty to an aggravating factor, and the trial court consolidated the offenses for judgment, imposing a sentence in the aggravated range of 77 to 102 months imprisonment. From the judgment entered, Defendant appeals.
In his sole argument on appeal, Defendant argues that the trial court erred by overruling his objection and allowing the admission of Bryant’s out-of-court recorded statement to Det. Caroway as substantive evidence.[1] Defendant contends that, since the trial court allowed the admission of the out-of-court statement for the express purpose of establishing the existence of an agreement between himself and the other accused individuals, it was offered for the truth of the matter asserted and therefore constituted impermissible hearsay.
North Carolina Rule of Evidence 801 defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2009). Hearsay is generally not admissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2009). However, “[w]hen admitted without objection, otherwise
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inadmissible hearsay may be considered with all the other evidence and given such evidentiary value as it may possess.” State v. Dyson, 165 N.C. App. 648, 652, 599 S.E.2d 73, 76 (2004) (quotation marks and citation omitted), disc. review denied, 359 N.C. 412, 612 S.E.2d 325
(2005). Further, “the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231
(1979) (citations omitted).
Here, Det. Caroway testified that, when she interviewed Bryant after his arrest, he stated that the four participants, including Defendant, agreed to drive around together to find someone to rob and that Defendant covered Mr. Milla’s mouth during the robbery. This testimony was elicited without Defendant’s objection or request for a limiting instruction regarding use by the jury of Det. Caroway’s testimony for corroborative purposes only. Subsequently, Defendant objected to the admission of the recording of his statement to Det. Caroway. Because Defendant did not object to Det. Caroway’s testimony regarding the content of Mr. Bryant’s interview, he waived his subsequent objection to the admission of the videotape of that interview. Thus, the trial court did not err in admitting the evidence.
Defendant asserts that, despite his failure to object or request a limiting instruction at the time of Det. Caroway’s testimony, the trial court’s general instruction regarding prior statements of witnesses, delivered after the close of all evidence
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during the jury charge, applied to Det. Caroway’s testimony about her interview with Bryant:
Ladies and gentlemen, when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent with or may conflict with his testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial.
Therefore, Defendant contends that Det. Caroway’s testimony was not admitted as substantive evidence and that he did not waive his right to object to the later admission of Bryant’s recorded statement unde Campbell. We reject this contention, noting that, if the trial court’s broad jury instruction could somehow operate to serve as an objection and limiting instruction to Det. Caroway’s testimony about Bryant’s statement, it would also apply to the later introduction of the recording. In that case, neither the detective’s testimony nor the recording was admitted as substantive evidence, and Defendant has no basis to argue that the trial court erred by overruling his objection and allowing the admission of hearsay. This argument is overruled.
No error.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).
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