State v. Call

748 S.E.2d 185, 230 N.C. App. 45, 2013 WL 5458655, 2013 N.C. App. LEXIS 1014
CourtCourt of Appeals of North Carolina
DecidedOctober 1, 2013
DocketNo. COA13-266
StatusPublished

This text of 748 S.E.2d 185 (State v. Call) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Call, 748 S.E.2d 185, 230 N.C. App. 45, 2013 WL 5458655, 2013 N.C. App. LEXIS 1014 (N.C. Ct. App. 2013).

Opinion

Elmore, Judge.

On 12 September 2012, a jury found Jerry Kenneth Call, Jr. (defendant) guilty of Larceny from a Merchant pursuant to N.C. Gen. Stat §14-72.11(4). On 13 September 2012, defendant was sentenced to 18-31 [46]*46months imprisonment in the North Carolina Department of Corrections. Defendant now appeals and raises as error the trial court’s denial of his motion to dismiss and motion for a mistrial. However, on 13 August 2013, defendant conceded that the trial court did not err in denying his motion to dismiss and voluntarily withdrew this issue on appeal. After careful consideration, we conclude that the trial court did not err in denying defendant’s motion for a mistrial.

I. Facts

On 12 January 2010, Officer Daniel Abruscato of the Eden Police Department was notified to be on the lookout for a green Ford Expedition, the suspect getaway vehicle of an alleged larceny occurring at Wal-Mart in Eden. Officer Abruscato spotted the vehicle traveling westbound on Stadium Drive, and initiated a traffic stop on Washington Street, less than two miles from the Wal-Mart. Officer Abbruscato observed seven passengers in the vehicle, including defendant, and he saw numerous Wal-Mart bags containing over 50 cans of baby formula in the rear passenger area. After instructing the occupants to sit on a nearby sidewalk, Officer Abbruscato searched the vehicle and ultimately arrested passenger Sabrina Cobbler. Defendant was neither detained nor questioned at the scene.

Thereafter, Officer Abbruscato confiscated the baby formula and contacted the Wal-Mart to verify whether the store was missing formula. He then took the formula to the Eden Police Department.

Later that same day, Officer Abbruscato met with Billy Drum, an assistant manager at the Wal-Mart. Dunn confirmed that the cans of baby formula belonged to his Wal-Mart store. Officer Abbruscato and Dunn then signed a “Receipt For Evidence And/Or Property” form (Receipt for Evidence), which listed the exact type and amount of baby formula that was obtained from the traffic stop. The Receipt for Evidence showed that cans of baby formula were released by Officer Abbruscato on 12 January 2010 and given to Dunn. Dunn then notified Wal-Mart’s Protection Coordinator, Mr. Fred Pedone, about a “loss of product.” As a result, Pedone launched an internal investigation, which led to a formal investigation by the Eden Police Department. On 13 January 2010, Officer Abbruscato reviewed the Wal-Mart in-store camera recording of the alleged larceny, which showed defendant and other individuals taking cans of baby formula from the store past the point of sale without paying for the items. Officer Abbruscato subsequently took out a criminal warrant on defendant for several charges, including Larceny From a Merchant.

[47]*47Dunn died on 25 April 2011 and was unavailable to testify at defendant’s trial on 10 September 2012. The trial court denied defendant’s pre-trial motion in limine to prevent the State from “making reference to reports, statements or conclusions” of Dunn. At trial, Dunn’s statements to Pedone about the lost product and the Receipt for Evidence were admitted into evidence over defendant’s objection. As a result of the aforementioned admitted evidence, defendant made a motion for a mistrial, which was denied by the trial court.

II. Analysis

Defendant argues that the trial court erred in denying his motion for a mistrial. Specifically, defendant contends that two pieces of evidence admitted at trial violated his Sixth Amendment right to cross-examine witnesses and resulted in an unfair and prejudiced trial. We disagree.

It is within the sole direction of the trial court whether to grant a mistrial. State v. Wood, 168 N.C. App. 581, 583, 608 S.E.2d 368, 370 (2005) (citations omitted). This Court has recognized that “where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). “Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted); see also White, 312 N.C. at 777, 324 S.E.2d at 833 (“A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason... [or] upon a showing that [the trial court’s decision] was so arbitrary that it could not have been the result of a reasoned decision.”). A mistrial should be granted only when “there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.” State v. Blackstock, 314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985) (citation omitted).

“Our review of whether defendant’s Sixth Amendment right of confrontation was violated is three-fold: (1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant.” State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (2004) (citation omitted). “[A] trial court must consider two factors in determining whether statements made to the police constitute testimonial evidence: (1) the stage of the proceedings at which the statement was made and (2) the declarant’s knowledge, [48]*48expectation, or intent that his or her statements would be used at a subsequent trial.” State v. Huu The Cao, 175 N.C. App. 434, 437, 626 S.E.2d 301, 303 (2006) (citation omitted). Statements become testimonial “when police questioning shifts from mere preliminary fact-gathering to eliciting statements for use at a subsequent trial[.]” Id. (citations and quotations omitted). Such statements include “response[s] to structured police questioning.” State v. Morgan, 359 N.C. 131, 156, 604 S.E.2d 886, 901 (2004) (citation and quotations omitted). Testimonial evidence “indicate [s] that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” State v. Lewis, 361 N.C. 541, 546, 648 S.E.2d 824, 828 (2007) (citation and quotation omitted). However, a statement made to a private citizen that “was not prior testimony or made to a police officer during the course of an interrogation[]” is non-testimonial. State v. Calhoun, 189 N.C. App. 166, 170, 657 S.E.2d 424, 427 (2008).

First, defendant alleges that it was error for the trial court to have allowed Pedone to testify about a statement made to him by Dunn regarding a loss of product at the Wal-Mart store when defendant never had the opportunity to cross-examine Dunn.

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Related

White v. White
324 S.E.2d 829 (Supreme Court of North Carolina, 1985)
State v. Huu the Cao
626 S.E.2d 301 (Court of Appeals of North Carolina, 2006)
State v. Morgan
604 S.E.2d 886 (Supreme Court of North Carolina, 2004)
State v. Hennis
372 S.E.2d 523 (Supreme Court of North Carolina, 1988)
State v. Lewis
648 S.E.2d 824 (Supreme Court of North Carolina, 2007)
State v. Wood
608 S.E.2d 368 (Court of Appeals of North Carolina, 2005)
State v. Clark
598 S.E.2d 213 (Court of Appeals of North Carolina, 2004)
State v. Lawson
619 S.E.2d 410 (Court of Appeals of North Carolina, 2005)
State v. Blackstock
333 S.E.2d 245 (Supreme Court of North Carolina, 1985)
State v. Calhoun
657 S.E.2d 424 (Court of Appeals of North Carolina, 2008)
State v. Lewis
648 S.E.2d 824 (Supreme Court of North Carolina, 2007)

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Bluebook (online)
748 S.E.2d 185, 230 N.C. App. 45, 2013 WL 5458655, 2013 N.C. App. LEXIS 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-call-ncctapp-2013.