State v. Toomer ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.
An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1246
Filed: 20 October 2015
Alamance County, Nos. 11CRS057238; 12CRS004785, 050991
THE STATE OF NORTH CAROLINA
v.
MARLETTE TOOMER, Defendant.
______________________________________________
Alamance County, Nos. 11CRS057237; 12CRS004786
THE STATE OF NORTH CAROLINA
v.
VERNON TOOMER, Defendant.
Appeal by defendants from judgments entered on or about 24 January 2014 by
Judge G. Wayne Abernathy in Superior Court, Alamance County. Heard in the Court
of Appeals 22 April 2015.
Attorney General Roy A. Cooper III, by Assistant Attorney General Alexandra
M. Hightower and Special Deputy Attorney General Joseph E. Herrin, for the
State.
STATE V. TOOMER
Opinion of the Court
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kathryn
L. VandenBerg, for defendant-appellant Marlette Toomer.
Sharon L. Smith, for defendant-appellant Vernon Toomer.
STROUD, Judge.
Defendant Vernon Toomer appeals from a judgment entered upon a jury
verdict finding him guilty of felony larceny. Defendant Marlette Toomer appeals from
judgments entered upon jury verdicts finding him guilty of two counts of felony
larceny. 1 For the following reasons, we find no error.
I. Background
Because this case has both multiple defendants and multiple offenses, the
background is quite the Gordian knot to untangle. In late 2011, three thefts occurred
at Belk department store at Alamance Crossing in Burlington. In all of these
incidents, the suspects entered the store, went into the Polo section of the men’s
department, grabbed an armful of clothing, quickly ran out of the store, and departed
in a car parked closely to the front door; all of these incidents were captured by
surveillance video.
A. Facts
1 Both defendants also appeal their convictions for attaining habitual felon status.
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STATE V. TOOMER
Opinion of the Court
On 1 September 2011, the first theft (“Theft 1”) occurred. Surveillance video
clearly showed two African-American men, whose faces are visible, take Polo clothing.
The second theft (“Theft 2”) occurred on 3 October 2011. The surveillance video is
blurry but showed two African-American men, whose faces were largely obscured by
hats, taking Polo clothing. Thereafter, on 18 October 2011, Megan Edwards’ silver
Mazda 3 was stolen from a gas station in Mebane. On 26 October 2011, the third
theft (“Theft 3”) occurred. The surveillance video is also blurry and the faces of the
two people taking the Polo clothing are not clear; however, this time a man and a
woman were involved. The African-American man was wearing blue jeans, a black
hoodie, and shoes with white soles. The African-American woman was wearing a
primarily white nurse’s scrub top with dark pants. The man and woman ran out of
the store with their armfuls of clothing and jumped into a waiting silver car. On 27
October 2011, the day after Theft 3 occurred, defendant Marlette and a woman, both
of whom were wearing clothing consistent with the Theft 3 surveillance video, were
found with Ms. Edwards’ stolen silver Mazda 3 in Durham.
B. Criminal Proceedings
The State indicted defendant Marlette for three counts of felony larceny and
defendant Vernon for two counts of felony larceny. Thereafter, the trial court joined
defendants’ cases over their objection. The State chose not to prosecute Theft 3
against defendant Marlette and dismissed the Theft 2 charge against Vernon.
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STATE V. TOOMER
Opinion of the Court
Ultimately, the State tried defendant Marlette for Thefts 1 and 2 and defendant
Vernon for Theft 1.
1. Joinder
The State moved for joinder of defendants’ cases, which the trial court allowed.
Both defendants moved to sever, but their motions were denied. The trial court
reasoned:
Well, the Court finds that there’s an outstanding
similarity in the September 1, 2011, and the October 3,
2011. Specifically, the same store was robbed, same
manner of robbery, what’s typically referred to as a smash
and grab. Both cases they went to the Polo department.
Men’s clothing – men’s sweaters were stolen. . . . Both men
appear to be identified on the security cameras. There was
a getaway car parked in the front of the store.
The cases are strikingly similar and the Court is
going to order the joinder of the offenses and the
defendants for trial in this case, not only for purposes of
judicial efficiency but, in addition, it shows a common
scheme or plan; they’re reasonably closely connected in
time, place and location or exactly connected in terms of
place, and motion to join is allowed.
At trial, the State did not proceed on Marlette’s Theft 3 charge because of the
joinder. However, the State moved to introduce the Theft 3 evidence and the trial
court determined in its written order, “[T]his 404(B) evidence [of Theft 3] is relevant
to defendant Marlette Toomer in that it sufficiently establishes that the theft from
Belk Inc. on October 26, 2011, was in fact committed by the defendant, but that the
Theft 3 “evidence is not admissible against defendant Vernon[.]” Both defendants
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STATE V. TOOMER
Opinion of the Court
objected to the admission of the Theft 3 evidence. Before the jury heard any of the
evidence related to Theft 3, the trial court gave the following limiting instruction:
You are about to hear testimony which may tend to
show that the defendant Marlette Toomer -- and Mr. Marlette
Toomer is the young man at the far end of the table beside Mr.
Sharpe, not Mr. Vernon Toomer who’s seated at this end of the
table -- but you are about to hear testimony which might tend
to show that the defendant Marlette Toomer committed a
subsequent larceny from Belk on October 26, 2011.
This evidence is received solely for the limited purpose
of identifying him as the person who committed the two crimes
charged in this case, the September 1st and October 3rd
crimes, as well as it may be considered by you to show that Mr.
Marlette Toomer had the knowledge or that there existed in
his mind a plan, scheme, or design involving the larcenies on
September 1st and October 3rd if, in fact, they were
committed, which you would have to find. If you -- it would
you be up to you to find that.
If you believe this evidence, you may consider it but only
for that limited purpose for which it was received. In other
words, to show his identity or to show that he had knowledge
or that there existed in his mind a plan, scheme, or design
involving the September 1st and October 3rd larcenies.
Additionally -- and this is important -- this evidence
which you are about to receive regarding the events of October
26th and October 27th have absolutely nothing to do with Mr.
Vernon Toomer and may not be considered by you as evidence
in any way about his case. You must always keep [i]n mind
that you are trying separate cases at the same time.
And none of the evidence that you are going to hear
involving October 26th and October 27th involve Mr. Vernon
Toomer and may not be considered by you when you consider
whether or not he is guilty of the September 1st and October
3rd larcenies.
2. Witness Testimony Identifying Defendants
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STATE V. TOOMER
Opinion of the Court
Also at trial, the State introduced testimony from three witnesses who neither
knew defendant Marlette or defendant Vernon previously nor saw the theft suspects
in person. The first witness, Mr. Duran Bailey, a loss prevention associate at Belk,
testified that he was working during Theft 1 and watched the incident as it occurred
through an in-store surveillance camera. Mr. Bailey narrated the surveillance video
and identified the suspects by their appearance in the video as the same defendants
sitting in the courtroom. Defendant Marlette objected, but was overruled, while
defendant Vernon failed to object.
The second witness, Mr. Darius Sellars, was called to Belk after Theft 2
occurred and watched the surveillance video. At trial, Mr. Sellars narrated the video
and then identified both defendants by name as the Theft 2 suspects. Defendant
Marlette objected, and the trial court sustained the objection and instructed the jury
to strike the testimony at issue. The jury was subsequently instructed that Mr.
Sellars made his identification by comparing the physical similarities between the
suspects in the Theft 2 video and defendants in the courtroom and that they were not
to consider him identifying the defendants by name; neither defendant objected to
these instructions.
The third witness, Detective Kevin King of the Burlington Police Department,
is the only witness at issue who testified about Theft 3 under the trial court’s limiting
instructions. After reviewing the videos from all three thefts as part of his
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STATE V. TOOMER
Opinion of the Court
investigation, Detective King concluded that defendant Marlette was a perpetrator
in all three thefts and defendant Vernon was a perpetrator in Thefts 1 and 2.
Defendant Marlette objected, and was overruled, while defendant Vernon did not
object.
C. Outcome
The jury found defendant Vernon guilty of felony larceny for Theft 1, and the
trial court entered judgment. The jury found defendant Marlette guilty of two counts
of felony larceny for Theft 1 and Theft 2, and the trial court entered judgments. Both
defendants appeal.
II. Defendant Vernon
Although both defendants raise similar issues on appeal, we will separately
review their cases and individual arguments. See generally State v. Wilson, 108 N.C.
App. 575, 581, 424 S.E.2d 454, 457 (1993) (considering co-defendants’ cases
individually), disc. review denied and appeal dismissed, 333 N.C. 541, 429 S.E.2d 562
(1993). We first consider defendant Vernon’s appeal.
A. Joinder
Defendant Vernon first contends that the trial court erred in joining the
defendants for trial, arguing that “joinder of the defendants deprived . . . [him] of a
fair trial where the trial court admitted highly prejudicial [Theft 3] evidence against
Marlette Toomer that was not admissible against” him. (Original in all caps.)
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STATE V. TOOMER
Opinion of the Court
Joinder decisions are in the sound discretion of the
trial court. According to our General Statutes, charges
against two or more defendants may be joined for trial if
the charges 1) are part of a common scheme or plan, 2) are
part of the same act or transaction, or 3) are closely
connected in time, place, and occasion. In fact, public policy
strongly compels consolidation as the rule rather than the
exception when each defendant is sought to be held
accountable for the same crime or crimes. Thus, the test
we apply on review is whether the offenses are so separate
in time and place and so distinct in circumstances as to
render consolidation unjust and prejudicial to the
defendant.
State v. Pittman, 219 N.C. App. 512, 515, 725 S.E.2d 25, 27 (citations and quotation
marks omitted), disc. review denied, 366 N.C. 223, 726 S.E.2d 832 (2012).
In State v. Ellison, this Court determined:
It is not uncommon where two defendants are joined for
trial that some evidence will be admitted which is not
admissible as against both defendants, leading our Courts
to recognize that limiting instructions ordinarily eliminate
any risk that the jury might have considered evidence
competent against one defendant as evidence against the
other. As a result, the presentation of evidence admissible
to prove the guilt of only one of multiple defendants whose
guilt is being considered in the context of a joint trial will
not, without more, render the joinder of multiple
defendants for trial inappropriate.
If we were to agree with the defendant that
the introduction of evidence admissible
against only one of the defendants joined for
trial required a severance of the defendants’
trials, we would in effect be ruling that co-
defendants may not be joined for trial in this
state. It would be unusual for all evidence at
a joint trial to be admissible against both
defendants, and we often rely on the common
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STATE V. TOOMER
Opinion of the Court
sense of the jury, aided by appropriate
instructions of the trial judge, not to convict
one defendant on the basis of evidence which
relates only to the other.
213 N.C. App. 300, 313, 713 S.E.2d 228, 237-38 (2011) (citations, quotation marks,
and brackets omitted), aff'd, 366 N.C. 439, 738 S.E.2d 161 (2013). Here, the trial
court gave an appropriate limiting instruction regarding the evidence that was only
applicable to defendant Marlette. We conclude that the trial court did not abuse its
discretion in joining the cases as the joinder was neither “unjust [nor] prejudicial[,]”
particularly in light of the fact that the State ultimately only submitted Theft 1 as
the charge to the jury and the evidence for Theft 1 included video of the perpetrators’
faces. See Pittman, 219 N.C. App. at 515, 725 S.E.2d at 27. This argument is
overruled.
B. Admission of Witness Testimony
Defendant Vernon next contends that “the trial court committed reversible
error in allowing the State’s witnesses to offer opinion testimony identifying . . . [him]
from the surveillance tape where the witnesses were not in a better position than the
jurors to draw conclusions from the evidence.” (Original in all caps.) Defendant
Vernon further contends that this was prejudicial because the State’s case against
him “rested entirely on identifying him from the . . . [Theft 1] videotape and still
photographs.”
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STATE V. TOOMER
Opinion of the Court
Defendant directs our attention to three witnesses, Mr. Bailey, Mr. Sellars,
and Detective King; as to all three witnesses, defendant failed to object on this issue.
Defendant directs our attention to defendant Marlette’s objections, but defendant
Vernon failed to make an objection. We therefore address this issue under plain error
analysis, see State v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993)
(“Due to defendant’s failure to object at trial, we must review this objection under the
plain error rule.”), which defendant also raised in his brief:
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and
quotation marks omitted). Since the jury was able to view the Theft 1 video, which
clearly shows the faces of two men taking Polo clothing, we do not conclude that any
error in allowing witness opinion testimony “had a probable impact on the jury’s
finding that the defendant was guilty.” Id. This argument is overruled.
III. Defendant Marlette
We next address defendant Marlette’s appeal.
A. Admission of Witness Testimony
Defendant Marlette, like defendant Vernon, contends that
the trial court committed error, or in the alternative plain
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STATE V. TOOMER
Opinion of the Court
error, in admitting testimony of three witnesses who gave
opinions that . . . [he] was one of the men in the Belk
surveillance videotapes, where these witnesses were in no
better position than the jurors to draw a conclusion on
identity.
(Original in all caps.)
We first consider Mr. Bailey’s testimony:
Q (By Mr. Soderberg [State’s Attorney]) Mr. Bailey, do
you recognize the two individuals in that video as being in
this courtroom here today?
A Yes, sir.
Q And can you point them out to the jury?
A Yes, sir.
Q And where are they at? Describe some clothing that
they’re wearing?
A Got on white shirts. One had on white shirt and
black pants. The other one have on white shirt and khaki
looking pants.
Q From those videos and those photographs, who do
you recognize who to be?
A The guy with the light blue shirt on with the Nike
hat is with the white shirt and black pants. And the guy
with the black striped shirt -- white striped shirt is sitting
right to your right.
THE COURT: For the record, the defendant
Marlette Toomer is wearing black pants today with a white
shirt and the defendant Vernon Toomer is wearing a white
shirt with light khaki colored pants. Is that a fair
statement, sir?
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STATE V. TOOMER
Opinion of the Court
THE WITNESS: Yes, sir.
MR. SHARPE: I would respectfully object and
just say that he doesn’t have any better knowledge than
anyone else of this identification.
MR. SODERBERG: Object to the
argumentative, Your Honor.
THE COURT: Sustained as to the
argumentative. It’s already in testimony. Overruled.
In State v. McCray, the Supreme Court stated:
It is well established that error may not be
predicated upon a ruling which admits evidence unless a
timely objection or motion to strike appears of record.
Where the defendant seeks to challenge an in-court
identification, a motion to strike an incompetent answer
must be made when the answer is given. A motion to strike
will therefore be deemed untimely if the witness answers
the question and the opposing party does not move to strike
the response until after further questions are asked of the
witness.
342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (citations, quotation marks, ellipses,
and brackets omitted). Due to defendant’s untimely objection to the State’s question
and total failure to move to strike Mr. Bailey’s testimony until after he had twice
identified defendants, we conclude that the objection was not preserved for appeal,
and we can review only for plain error. See generally Harding, 110 N.C. App. at 161,
429 S.E.2d at 420.
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STATE V. TOOMER
Opinion of the Court
As to Mr. Sellars, we have already noted that after defendant Marlette’s
objection the trial court provided a curative instruction regarding the scope of Mr.
Sellars’s testimony. Defendant Marlette did not object after those instructions were
provided. Defendant Marlette now contends that his counsel at trial likely considered
the objection sufficiently preserved by prior objections or believed further objections
to be futile, likening the situation at trial to State v. Mills, where the defendant failed
to object to each and every piece of evidence regarding “prior bad acts[,]” and this
Court stated, “We find that the pattern of objections constitutes a continuing
objection to the line of questioning with respect to bad acts.” See State v. Mills, 83
N.C. App. 606, 612, 351 S.E.2d 130, 134 (1986). But here, immediately after providing
the curative instruction the trial court immediately asked, “Anything else, Mr.
Sharpe [defendant Marlette’s attorney]?” to which defendant responded, “No, Your
Honor. Thank you.” As defendant Marlette not only failed to object to the
instructions, but affirmatively stated that he had no further objections, we view Mr.
Sellars’s testimony at issue only for plain error. See generally Harding, 110 N.C. App.
at 161, 429 S.E.2d at 420.
Lastly, we turn to Detective King. While defendant Marlette did object to
Detective King’s testimony, he did not specifically do so. While a specific objection
may not be required if the reason for the objection is clear, we do not believe
defendant’s general objections here was clear. See State v. Catoe, 78 N.C. App 167,
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STATE V. TOOMER
Opinion of the Court
168, 336 S.E.2d 691, 692 (1985) (“Defendant’s objections to the contested testimony
were only general. Error may not be argued on appeal where the underlying objection
fails to present the nature of the alleged error to the trial court.”), disc. review denied,
316 N.C. 380, 344 S.E.2d 1 (1986). Throughout the trial, defendant Marlette objected
to the Theft 3 evidence and Detective King testified regarding much of this evidence.
Defendant Marlette did not specifically state he was objecting to an in-court
identification made by Detective King, and thus the trial court may have been under
the impression defendant was objecting to the Theft 3 evidence as a whole or for some
other reason. Indeed, when defendant Marlette untimely objected to Mr. Bailey’s in-
court identification the trial court addressed the objection as untimely, and when
defendant Marlette objected to Mr. Sellars’s testimony the trial court sustained the
objection and provided a curative instruction. If the trial court understood the
objection to be regarding the in-court identification, rather than regarding the Theft
3 evidence which it had previously ruled on, it likely would have addressed the issue
just as in the prior two instances. Defendant Marlette’s objection was not sufficient
for review, and accordingly, here too, we review only for plain error. See generally
Harding, 110 N.C. App. at 161, 429 S.E.2d at 420.
Again,
[f]or error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
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STATE V. TOOMER
Opinion of the Court
record, the error had a probable impact on the jury’s
finding that the defendant was guilty.
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Due to the clear videotape of
Theft 1, the blurry videotape of Theft 2, and the Theft 3 evidence wherein defendant
Marlette was caught by the police in clothes the same or quite similar to those in the
Theft 3 videotape, we believe a common plan of thefts from Belk was demonstrated,
and due to this and other evidence any in-court identification did not have a “probable
impact” on the jury’s finding of guilt as to Theft 1 and Theft 2. Id. This argument is
overruled.
B. Joinder
Lastly, defendant Marlette contends, as did defendant Vernon that “the trial
court erred in joining defendants . . . for trial, and denying motions to sever, as joinder
impeded a fair determination of innocence or guilt.” (Original in all caps.) Defendant
Marlette argues that joinder “allowed the jury to consider the two men as one unit
and to conflate the evidence against one with the evidence against the other[.]”
Again, “[j]oinder decisions are in the sound discretion of the trial court.” Pittman,
219 N.C. App. at 515, 725 S.E.2d at 27 (2012).
Once more we note that the trial court correctly instructed the jury that they
were considering two different defendants and conducting two completely separate
trials, and that they must keep evidence against the respective defendants separate
in their minds. Furthermore, defendant Marlette has failed to direct us to a single
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STATE V. TOOMER
Opinion of the Court
piece of evidence that was admissible against defendant Vernon that was not
admissible against him. While defendant contends the Theft 1 videotape shows
defendant Vernon’s face clearly, and not his, even if this were true, the fact remains
that the evidence was still admissible against him as he bore similarities to the man
with defendant Vernon in the Theft 1 videotape. Therefore, we conclude that the trial
court did not abuse its discretion in joining defendants’ cases for trial.
IV. Conclusion
For the foregoing reasons, we conclude that the trial court committed no
error.
NO ERROR.
Judges CALABRIA and TYSON concur.
Report per Rule 30(e).
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