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No. COA13-957 SECOND DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ) )

v. ) From Washington ) WALTER THOMAS PHELPS )

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

TABLE OF AUTHORITIES..................................................................................ii

ISSUES PRESENTED............................................................................................1

STATEMENT OF THE CASE...............................................................................2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW..............................2

STATEMENT OF THE FACTS.............................................................................2

ARGUMENT..........................................................................................................6

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING CAPTAIN WILLIAMS TO TESTIFY THAT CODEFENDANT ANTHONY SEELEY PLED GUILTY TO ROBBERY WITH A DANGEROUS WEAPON AND WAS SERVING AN ACTIVE SENTENCE FOR THE ROBBERY OF ANNIE HYMAN AS THE DISPOSITION OF NON-TESTIFYING CODEFENDANT SEELEY’S CHARGE WAS INADMISSIBLE TO PROVE MR. PHELPS’ GUILT OF THE SAME CHARGE.......................................................................6

II. THE TRIAL COURT ERRED IN ORDERING MR. PHELPS TO PAY $242.91 IN RESTITUTION TO ANNIE HYMAN AS THE AMOUNT OF RESTITUTION ORDERED WAS NOT SUPPORTED BY EVIDENCE PRESENTED AT TRIAL OR DURING SENTENCING...............11

CONCLUSION.....................................................................................................13

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)................14

CERTIFICATE OF FILING AND SERVICE......................................................15

APPENDIX

TABLE OF AUTHORITIES

CASES

N.C. Dep’t of Envtl. & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)........................................................11

State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992)..........................................12, 13

State v. Campbell,296 N.C. 394, 250 S.E.2d 228 (1979)..................................................7, 8, 9

State v. Hammett, 361 N.C. 92, 637 S.E.2d 518 (2006)............................................................7

State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012)................................................7, 9, 11

State v. Lewis, ___ N.C. ___, 724 S.E.2d 492 (2012)..........................................................7

State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984)..........................................................8

State v. Mauer, 202 N.C. App. 546, 688 S.E.2d 774 (2010)................................................12

State v. Mumford, 364 N.C. 394, 4699 S.E.2d 911 (2010)......................................................12

State v. Rothwell, 308 N.C. 782, 303 S.E.2d 798 (1983)......................................................8, 9

State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004)................................................11

State v. Wright, 212 N.C. App. 640, 711 S.E.2d 797, review denied, 365 N.C. 351, 717 S.E.2d 743 (2011)........................................................11

ii

STATUTES

N.C. Gen. Stat. § 7A-27(b).....................................................................................2

N.C. Gen. Stat. § 15A-1444(a)................................................................................2

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DEFENDANT-APPELLANT’S BRIEF

****************************************************ISSUES PRESENTED

I. DID THE TRIAL COURT COMMIT PLAIN ERROR BY PERMITTING CAPTAIN WILLIAMS TO TESTIFY THAT CODEFENDANT ANTHONY SEELEY PLED GUILTY TO ROBBERY WITH A DANGEROUS WEAPON AND WAS SERVING AN ACTIVE SENTENCE FOR THE ROBBERY OF ANNIE HYMAN WHEN THE DISPOSITION OF NON-TESTIFYING CODEFENDANT SEELEY’S CHARGE WAS INADMISSIBLE TO PROVE MR. PHELPS’ GUILT OF THE SAME CHARGE.

II. DID THE TRIAL COURT ERR IN ORDERING MR. PHELPS TO PAY $242.91 IN RESTITUTION TO ANNIE HYMAN WHEN THE AMOUNT OF RESTITUTION ORDERED WAS NOT SUPPORTED BY EVIDENCE PRESENTED AT TRIAL OR DURING SENTENCING.

STATEMENT OF THE CASE

This case came on to be tried at the April 22, 2013 criminal session of

Washington County Superior Court, before the Honorable Wayland J. Sermons,

Jr., on an indictment alleging robbery with a dangerous weapon. (Rpp. 1, 4) 1 On

April 23, 2013, the jury found Mr. Phelps guilty as charged. (Rp. 24) On April 24,

2013, Mr. Phelps was sentenced to 60 to 81 months imprisonment. (Rpp. 27-28)

After entry of judgment, Mr. Phelps gave oral notice of appeal in open court.

(Tpp. 156-57; Rpp. 31-32)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Phelps appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444(a) from a final judgment of Washington County Superior Court.

STATEMENT OF THE FACTS

Washington County resident Deborah Whitaker has known 18-year-old

Walter Thomas Phelps for many years. Whitaker’s sons and Mr. Phelps grew up

together and have remained close. (Tpp. 113-14, 119-20) On November 22, 2011,

Mr. Phelps was at the Whitaker residence from approximately 5:00 p.m. to 9:30

p.m. While Deborah cooked dinner and watched television, Mr. Phelps and the

Whitaker boys played video games. When Mr. Phelps left the Whitakers’ that

1 The Record on Appeal is cited as “Rp.” The transcript is cited as “Tp.” While counsel inadvertently misidentified the superior court case number as 12 CRS 228345 on the first two pages of the Record on Appeal (Index, Rp. 1), as otherwise established by the Record, the actual case number is 11 CRS 50589. (Rpp. 2, 4-5, 7-8, 10, 24, 27, 29, 33, 35, 38-39)

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night with his mother, he was wearing the same white shirt, dark hoodie, and black

pants he had on when he arrived at 5:00 p.m. (Tpp. 113-14, 119-20)

While Mr. Phelps was playing video games at the Whitaker residence, Annie

Hyman was working at the Head Shop salon on East Fourth Street. At

approximately 7:30 p.m. on November 22, 2011, Hyman was cutting a little boy’s

hair. Hyman’s next client George Puckett was seated in the waiting area.

Employee Francis Gilliam was cleaning the restroom. Suddenly, three black males

entered the Head Shop wearing khaki pants, hoodies, and bandanas over their

faces. (Tpp. 18-19, 39-40) Holding a machete, one of the three men immediately

approached Hyman and demanded money. The other two men remained near the

shop entrance. One of the men near the entrance had a baseball bat and instructed

Puckett to remain seated in the waiting area. (Tpp. 19, 54)

When the man with the machete demanded money, Hyman gave him $60 in

cash from her station drawer. The man with the machete demanded more money

and struck Hyman’s head with the flat side of the blade knocking her to the

ground. From the floor, Hyman handed her purse to the man with the machete.

Hyman’s purse contained credit cards, identification, car keys, and approximately

$60 to $100 in cash. With Hyman’s purse and cash, the man with the machete ran

out of the shop. (Tpp. 21-23) The other two men fled the store behind him. While

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Hyman, Puckett, and Gilliam described the complexion and clothing of the three

men, no witness identified any individual involved. (Tpp. 20, 30, 33, 39, 53, 56)

At trial, codefendant Hesus Basnight testified that he, Anthony Seeley, and

Mr. Phelps were the three individuals involved in the robbery of Hyman.

According to Basnight, Seeley had the machete, approached Hyman, demanded

money, pointed the machete at Hyman, and left the store with Hyman’s purse and

cash. Basnight had the baseball bat, stayed near the shop entrance, and told

Puckett to “sit down.” (Tp. 66-67) Basnight testified that Mr. Phelps remained at

the shop entrance, standing “halfway in and halfway out” the door. (Tp. 67)

When asked if Mr. Phelps was “guarding” the door, Basnight testified “not really.”

(Tpp. 65-67)

Basnight testified that after Seeley got Hyman’s purse and cash, all three

men ran to Rochelle Bower’s car around the corner. On the way to Bower’s car,

Basnight dropped the baseball bat. (Tp. 67) Bower drove Basnight, Seeley, and

Mr. Phelps to 102 Linden Street. After exiting Bower’s car, Basnight and Seeley

removed their hoodies and bandanas and put the clothing on top of a car in the

driveway. Basnight and Seeley entered the 102 Linden Street residence and

“divide[d] [] the money.” (Tp. 68) Mr. Phelps did not put any clothing on top of a

car in the driveway. Basnight did not know where Mr. Phelps went after exiting

Bower’s car. (Tpp. 67-69)

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Later that night, Basnight was arrested at 102 Linden Street for the robbery

of Hyman at the Head Shop. Two gray hoodies and one bandana were seized from

the top of a car in the driveway. On Basnight was $97.09 in cash. (Tpp. 80-82, 85,

87) At the station, Basnight told officers that Anthony Seeley and Mr. Phelps were

the other two individuals involved in the robbery of Hyman. Based on Basnight’s

statement, officers returned to 102 Linden Street and arrested Anthony Seeley.

While Deborah Whitaker lives about a block from Linden Street, no officer

contacted Whitaker at any time. (Tpp. 59, 95, 115-16)

Basnight testified that the State permitted him to plead guilty to the lesser

charge of conspiracy to commit common law robbery instead of robbery with a

dangerous weapon. In exchange, Basnight was required to testify for the State

against Mr. Phelps. (Tpp. 71-72, 74) At the time of Mr. Phelps’ trial, Basnight

was not in custody or serving any sentence. Basnight’s sentence for conspiracy to

commit common law robbery was dependent upon the testimony he provided for

the State against Mr. Phelps. (Tpp. 71-72, 74)

Regarding the disposition of codefendant Anthony Seeley’s charge, the

prosecutor elicited the following testimony from Plymouth Police Department

Captain Willie Williams:

[PROSECUTOR]: All right. And at some point Seeley was arrested also, correct?

[CAPTAIN WILLIAMS]: Yes, sir.

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[PROSECUTOR]: All right. Do you know if his case has been disposed of as of yet?


[PROSECUTOR]: Do you know the results of -- if he was convicted or anything like that?

[CAPTAIN WILLIAMS]: I know he was sent to [the] Department of Corrections.

[PROSECUTOR]: He pled guilty to robbery with a dangerous weapon?


(Tp. 96; App. 1) 2 Williams’ testimony about codefendant Seeley’s guilty plea and

incarceration was admitted without objection. (Tp. 96; App. 1) 3

ARGUMENT

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING CAPTAIN WILLIAMS TO TESTIFY THAT CODEFENDANT ANTHONY SEELEY PLED GUILTY TO ROBBERY WITH A DANGEROUS WEAPON AND WAS SERVING AN ACTIVE SENTENCE FOR THE ROBBERY OF ANNIE HYMAN AS THE DISPOSITION OF NON-TESTIFYING CODEFENDANT SEELEY’S CHARGE WAS INADMISSIBLE TO PROVE MR. PHELPS’ GUILT OF THE SAME CHARGE.

Standard of Review

If the defendant failed to object to the admission of certain evidence at trial,

admission of the challenged evidence is reviewed by this Court for plain error.

2 The complete portion of testimony cited is appended to this brief. (App. 1) See N.C. R. App. P. 28(d).3 Defense counsel’s objection (Tp. 96; App. 1) and subsequent voir dire (Tpp. 97-102) was unrelated to testimony regarding the disposition of Seeley’s charge.

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E.g., State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006). To

constitute plain error, the record must establish that absent the erroneous admission

of the challenged evidence, it is probable the jury would have reached a different

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

Discussion

The trial court permitted Captain Williams to testify that codefendant

Anthony Seeley pled guilty to robbery with a dangerous weapon and was serving

an active prison sentence for the robbery of Annie Hyman. (Tp. 96; App. 1)

Because the disposition of a non-testifying codefendant’s charge was inadmissible

to establish Mr. Phelps’ guilt of the same charge, admission of this testimony was

error. State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 230 (1979); see also

State v. Lewis, ___ N.C. ___, 724 S.E.2d 492, 501 (2012) (quoting Campbell, 296

N.C. at 399, 250 S.E.2d at 230). Had the trial court properly excluded this

testimony, it is probable the jury would have reached a different result. Because

admission of the challenged testimony was plain error, Mr. Phelps’ conviction

must be reversed, and he is entitled to a new trial.

A. The trial court erred by admitting testimony that non-testifying codefendant Anthony Seeley pled guilty to robbery with a dangerous weapon to show Mr. Phelps was guilty of the same charge.

The disposition of a codefendant’s charge is generally inadmissible against

the defendant. Lewis, 724 S.E.2d at 501 (quoting Campbell, 296 N.C. at 399, 250

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S.E.2d at 230). More specifically, a non-testifying codefendant’s guilty plea or

conviction is inadmissible to establish the defendant’s guilt of the same charge.

Campbell, 296 N.C. at 399, 250 S.E.2d at 230. This “clear rule” is required

because “guilt must be determined solely on the basis of the evidence presented

against” the defendant on trial. Id. See also State v. Rothwell, 308 N.C. 782, 786,

303 S.E.2d 798, 801 (1983) (holding that a codefendant’s guilty plea is

inadmissible to prove defendant’s guilt but a testifying codefendant’s plea may be

admissible if introduced for a “legitimate purpose”); State v. Marlow, 310 N.C.

507, 523, 313 S.E.2d 532, 542 (1984) (finding the disposition of a testifying

codefendant’s charge may be admissible if introduced for legitimate purpose such

as corroborating the testifying codefendant’s testimony).

Here, the trial court admitted Captain Williams’ testimony that Mr. Phelps’

codefendant Anthony Seeley pled guilty to robbery with a dangerous weapon and

was serving active time in the Department of Correction for the robbery of Hyman.

(Tp. 96; App. 1) The disposition of Seeley’s charge was not admitted to impeach

or corroborate Seeley’s testimony as Seeley did not testify. See Marlow, 310 N.C.

at 523, 313 S.E.2d at 542. The only purpose for admitting evidence that Seeley

pled guilty to robbery with a dangerous weapon was to show Mr. Phelps was guilty

of the same charge. See Campbell, 296 N.C. at 399, 250 S.E.2d at 230; Rothwell,

308 N.C. at 786, 303 S.E.2d at 801. As Mr. Phelps’ “guilt must be determined

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solely on the basis of the evidence presented against” him, Campbell, 296 N.C. at

399, 250 S.E.2d at 230, the disposition of codefendant Seeley’s charge was

inadmissible as evidence of guilt. See id.; Rothwell, 308 N.C. at 786, 303 S.E.2d at

801. Admission of this testimony was error. See id.

B. The trial court’s erroneous admission of the challenged evidence constituted plain error.

Had the trial court properly excluded Williams’ highly prejudicial testimony

that codefendant Seeley pled guilty to robbery with a dangerous weapon for the

Hyman robbery (Tp. 96; App. 1), it is probable the jury would have reached a

different result. See State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012). The only evidence incriminating Mr. Phelps was codefendant Basnight’s

story. There was no forensic evidence. There was no physical evidence. While all

three eyewitnesses testified, no witness identified Mr. Phelps or any other

individual. (Tpp. 20, 30, 33, 39, 53, 56) While the men involved in the robbery

wore khaki pants (Tpp. 40, 43), the State established Mr. Phelps’ pants were black,

not khaki. (Tp. 123) Nothing connected Mr. Phelps to khaki pants. No

circumstantial evidence connected Mr. Phelps to the Head Shop, Bower’s car, or

102 Linden Street. The only personal items or clothing recovered belonged to

Seeley and Basnight, not Mr. Phelps. Nothing connected Mr. Phelps to the

machete, baseball bat, stolen property, or cash. Rather, all seven State witnesses

established Seeley’s exclusive possession of the machete, Basnight’s exclusive

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possession of the bat, and possession of the stolen property by Seeley and

Basnight, not Mr. Phelps. (Tpp. 19, 21, 22-23, 34, 53, 54, 66-68, 73, 82, 85, 93-

95)

Since nothing connected Mr. Phelps to the robbery, the State was forced to

rely entirely on codefendant Basnight’s story incriminating Mr. Phelps. Basnight

told the jury that in exchange for his testimony against Mr. Phelps, he pled guilty

to a lesser charge. Basnight told the jury his sentence hinged on the testimony he

provided. (Tpp. 71-72, 74) Considering Basnight is a convicted felon giving

interested testimony, the State could reasonably expect the jury would not believe

Basnight or his sentence-determining testimony. To bolster Basnight’s credibility

and the State’s deficient case against Mr. Phelps, the prosecutor had the police

captain tell the jury the only remaining codefendant pled guilty to the exact same

charge for which Mr. Phelps was being tried. It is reasonable to conclude the jury

probably accepted the police captain’s testimony as true.

In all probability, the erroneously admitted testimony ultimately pushed the

jury into convicting Mr. Phelps based on the preexisting legal determination that

his codefendant was guilty of the exact same charge. Without the erroneously

admitted guilty plea of a non-testifying codefendant, it is probable the jury would

have been unable to convict as the only evidence linking Mr. Phelps to the robbery

was the story of a convicted felon with a significant negotiated interest in the

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outcome of the case. Had the trial court properly excluded this evidence, it is

probable the jury would have reached a different decision. See Lawrence, 365

N.C. at 518, 723 S.E.2d at 334. As the erroneous admission of the challenged

evidence was plain error, Mr. Phelps’ conviction must be reversed, and he is

entitled to a new trial.

II. THE TRIAL COURT ERRED IN ORDERING MR. PHELPS TO PAY $242.91 IN RESTITUTION TO ANNIE HYMAN AS THE AMOUNT OF RESTITUTION ORDERED WAS NOT SUPPORTED BY EVIDENCE PRESENTED AT TRIAL OR DURING SENTENCING.

Standard of Review

Whether the amount of restitution ordered was sufficiently supported by

evidence is deemed preserved for appeal absent any objection at trial, State v.

Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004), and presents a

question of law subject to de novo review by this Court. State v. Wright, 212 N.C.

App. 640, 645, 711 S.E.2d 797, 801, review denied, 365 N.C. 351, 717 S.E.2d 743

(2011). When reviewing an issue de novo, this Court considers the matter anew

and may freely substitute its own judgment for that of the trial court. N.C. Dep’t of

Envtl. & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

Discussion

While the prosecutor did not request or otherwise mention restitution at trial

or during sentencing, the trial court ordered payment of $242.91 in restitution to

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Annie Hyman based on the State’s restitution worksheet. (Tp. 155; Rpp. 28-30) 4

Because evidence failed to support the $242.91 amount and because the worksheet

was insufficient to support the restitution order, the trial court erred in ordering

$242.91 in restitution. See State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d

819, 821 (1992) (holding that absent stipulation or agreement, restitution must be

supported by evidence presented at trial or during sentencing). Therefore, the

restitution order must be vacated. See id.

The only evidence tending to support the $242.91 restitution amount was

Hyman’s testimony that her purse, $60 to $100 in cash, credit cards, identification,

car keys, and $60 in cash from her station drawer were taken by the man with the

machete. No testimony or documentation was offered regarding cost or value of

the purse, credit cards, identification, keys, or hospital visit. (Tpp. 22-23, 30-31)

At most, the total value of cash taken was approximately $120 to $160. This failed

to support the $242.91 restitution amount ordered. See id.

As there was no stipulation, “definite and certain” or otherwise, State v.

Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010); see State v. Mauer, 202

N.C. App. 546, 552, 688 S.E.2d 774, 778 (2010) (finding that silence at entry of

judgment was not a stipulation), absent sufficient supporting evidence, the

restitution worksheet failed to support the $242.91 amount. See Buchanan, 108

4 After entry of judgment, the restitution order, and notice of appeal, the prosecutor told the trial court: some value “might need to be [subtracted] [from] the [$]242” restitution amount ordered (Tp. 157); and “the restitution work[]sheet [was] correct” as submitted. (Tp. 158)

N.C. App. at 341, 423 S.E.2d at 821. Therefore, the restitution order must be

vacated. See id.

CONCLUSION

For the foregoing reasons and authorities, Mr. Phelps respectfully requests

that his conviction be reversed and remanded for a new trial and the restitution

order be vacated or reversed and remanded for a new hearing.

Respectfully submitted, this the 3d day of September, 2013.

By Electronic Submission:Emily H. DavisAssistant Appellate DefenderNorth Carolina State Bar Number 35247

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701919.354.7210

[email protected]

ATTORNEYS FOR DEFENDANT-APPELLANT

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(J)(2)

I hereby certify that Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2) of the North Carolina Rules of Appellate Procedure as it is printed in fourteen point Times New Roman and the body of the brief, including footnotes and citations, contains no more than 8750 words as indicated by the word-processing program used to prepare the brief.

This the 3d day of September, 2013.


CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed, pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure, by electronic means with the Clerk of the North Carolina Court of Appeals.

I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Mr. Robert Montgomery, Special Deputy Attorney General, North Carolina Department of Justice, by electronic means by emailing it to [email protected].

This the 3d day of September, 2013.


mailto:[email protected]



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****************************************************APPENDIX

****************************************************Table of Contents

Appendix Page Brief Page

App. 1 Portion of Captain Williams’ Testimony 5, 6, 7, 8, 9 (Tp. 96) 10, 11

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