State v. Bandy

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-711 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Edgecombe County No. 11-CRS-5228 DANIEL JUNIOR BANDY

Appeal by Defendant from judgment entered 27 August 2012 by

Judge W. Russell Duke, Jr. in Edgecombe County Superior Court.

Heard in the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State.

Larry C. Economos for Defendant.

DILLON, Judge.

Defendant appeals from a judgment entered upon a jury

verdict finding him guilty of robbery with a dangerous weapon.

All of Defendant’s arguments derive from the trial court’s

admission of a surveillance videotape into evidence. We find no

error.

The State presented evidence tending to show that on 24

July 2011, Tannisha Johnson was working as the cashier of the -2- Lucky Land Sweepstakes Café (hereinafter “Lucky Land”). To

permit one to enter the business, Ms. Johnson had to push a

button to unlock the door. Shortly before the business closed

at 2:00 a.m., Defendant was the last patron in the business.

Soon after Defendant walked out of the business, an unidentified

man wearing a mask entered, pointed a gun at Ms. Johnson, and

demanded money. Ms. Johnson complied with the man’s demand.

After the man left, Ms. Johnson called her friend, Taranius

Whitehead, and reported that Defendant had robbed her. She also

called 911 and reported the crime.

Mr. Whitehead testified that after receiving a call from

Ms. Johnson, he located Defendant, his cousin, and told him that

he needed to return to Lucky Land. Defendant told Mr. Whitehead

that a man pointed a gun at him and instructed him to leave

Lucky Land. Mr. Whitehead followed Defendant back to Lucky

Land.

Sergeant William Moore of the Edgecombe County Sheriff’s

Department testified that he responded to a dispatch to Lucky

Land on 24 July 2011. When he arrived, he saw Defendant, Ms.

Johnson, Mr. Whitehead, and an unidentified female standing

outside the business. Defendant told the officer that as he was

leaving the business, a man wearing a white mask jumped out from -3- behind a water cooler, told Defendant to leave or he would kill

Defendant, and ran into the business. Defendant told the

officer that he then ran to his truck and left.

After Sergeant Moore testified, the State announced its

intention to seek admission into evidence of a videotape

recorded by a surveillance camera at the entrance to Lucky Land.

Defendant objected, and the court conducted a voir dire hearing

to determine its admissibility.

Bonnie Blackley, the co-owner of Lucky Land, testified

during voir dire that the business had a security system that

included a surveillance camera which recorded what was happening

in each area of the business. She provided law enforcement with

the recording for 24 and 25 July 2011. Detective Sergeant Ross

Ellis of the Edgecombe County Sheriff’s Department testified

that he received security camera footage from Ms. Blackley’s

daughter, viewed the footage, and turned it over to the district

attorney’s office. Detective Ellis also testified that the

surveillance camera was motion activated, meaning it did not

record or operate unless it sensed movement. Detective John

Denton of the Rocky Mount Police Department testified that he

received the footage from the district attorney’s office and -4- shortened the length of the footage to show only the time frame

pertinent to the crime.

Defendant’s counsel conceded that the recording was

authentic, but argued that the recording was misleading and not

admissible because of time gaps in the recording. The trial

court ruled that the recording was authentic and admissible.

When the State later offered the recording into evidence,

Defendant did not object.

Detective Ellis later testified before the jury that he had

searched Defendant’s vehicle and found a wallet belonging to a

person named “Leonard Jenkins,” several rounds of revolver

ammunition, and several bullet holes in the vehicle. His

department has not been able to find Leonard Jenkins.

To bring forward on appeal a challenge to the admission of

evidence, a defendant must object to the evidence when it is

actually introduced at trial. State v. Ray, 364 N.C. 272, 277,

697 S.E.2d 319, 322 (2010). An objection to the admission of

evidence during a hearing outside the presence of the jury

before or during another portion of the trial is insufficient to

preserve the issue for full review. Id. Absent a timely

objection, the defendant can obtain appellate relief only if he

shows that the trial court committed plain error. State v. -5- Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000). The

defendant must specifically contend that the court committed

plain error. State v. Dennison, 359 N.C. 312, 312-13, 608

S.E.2d 756, 756 (2005). Plain error is a “fundamental error”

which had a probable impact upon the jury’s verdict. State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).

Here, Defendant alleges that the court committed plain

error by admitting the videotape. We conclude, however, that

the court did not commit plain error. Defendant conceded that

the video recording is authentic and accurate as to what it

depicts, which is Defendant’s exit from Lucky Land and the

masked man’s entrance into the business. Defendant has not

shown that the original length recording contains anything

germane to the issue of his guilt, innocence, or credibility

which was not shown to the jury. We conclude that the fact that

the videotape was shortened to a specific time frame had no

probable impact upon the jury’s verdict.

Defendant also contends that he was denied effective

assistance of counsel because of counsel’s failure to object to

the evidence at the time it was admitted. To establish a valid

claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance was deficient and that his -6- defense was prejudiced by counsel’s defective performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish prejudice, the defendant must show that but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. at 694. For the reasons stated

above, Defendant has not shown a different outcome would have

occurred at trial or on appeal if counsel had interposed an

objection to the condensed videotape when it was offered into

evidence.

Accordingly, we conclude that Defendant received a fair

trial free of prejudicial error.

NO ERROR.

Chief Judge MARTIN and Judge HUNTER, JR. concur.

Report per Rule 30(e).