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State v. Allen

Court of Appeals of North Carolina

May 21, 2019

STATE OF NORTH CAROLINA
v.
JULIEN ANTONIO ALLEN, Defendant.

          Heard in the Court of Appeals 25 April 2019.

          Appeal by defendant from judgments entered 29 March 2018 by Judge Thomas H. Lock in Johnston County, Nos. 16 CRS 58074, 58077 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General L. Michael Dodd, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellant Defender Kathryn L. VandenBerg, for defendant.

          ARROWOOD, JUDGE

         Julien Antonio Allen ("defendant") appeals from judgments entered upon his convictions for first degree murder, robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, and conspiracy to commit robbery with a dangerous weapon. For the following reasons, we find no error.

         I. Background

         On 10 January 2017, a Johnston County Grand Jury indicted defendant for first degree murder of Mr. Esmail Alshami ("Mr. Alshami"), robbery with a dangerous weapon from the person and presence of Mr. Alshami, assault with a deadly weapon with intent to kill inflicting serious injury of Mr. Ricky Lynch ("Mr. Lynch"), and conspiracy to commit the murder. The Grand Jury later entered a superseding indictment, replacing the aim of the conspiracy charge with conspiracy to commit robbery. The matter came on for trial on 19 March 2018 in Johnston County Superior Court, the Honorable Thomas H. Lock presiding. The State's evidence tends to show as follows.

         Defendant and his friend Omari Smith ("Smith") robbed a Knightdale restaurant on 20 October 2016, with the help of an additional accomplice. They used gray bandanas, guns, and a clown mask to carry out the robbery. A week later, on 27 October 2016, defendant and Smith agreed to rob a Shop-N-Go variety store. Their friend Darius McCalston ("McCalston") also agreed to participate in the robbery.

         The group met at Smith's grandmother's house, and got into defendant's girlfriend, Grecia Montes ("Montes")'s, mother's car. Defendant drove, Montes sat in the front passenger seat, and Smith and McCalston sat in the backseat. They arrived at the Shop-N-Go around 10:00 p.m., parking the car on the other side of the street, across from the store.

         Defendant and Montes remained in the car while Smith and McCalston left to stand outside the store, armed with guns supplied by defendant. Their faces were covered with gray bandanas. Defendant kept watch, and communicated with Smith and McCalston by phone. At defendant's direction, Smith and McCalston began the robbery.

         A store clerk, Mr. Alshami, stood behind the counter. Smith and McCalston demanded that Mr. Alshami fill a bag with money. Smith went behind the counter, holding out the bag for Mr. Alshami to fill, and grabbing cigars. McCalston told Mr. Alshami: "Make one more move, I'll shoot the shit out of you." McCalston then shot Mr. Alshami. He later told Smith that he shot Mr. Alshami because Mr. Alshami hit an alarm.

         The other store clerk, Mr. Lynch, said, "Hey, what's going on in there?" [Smith and McCalston fled. Smith ran out the backdoor, shooting behind him at Mr. Lynch as he made his way to Montes' mother's car. One of the shots hit Mr. Lynch in the abdomen. Once Smith and McCalston reached Montes' mother's car, defendant drove them to Montes' mother's house, where Smith and McCalston divided the money they stole during the course of the robbery.

         Mr. Alshami died as a result of gunshot wounds to his neck and back. Mr. Lynch recovered after spending three weeks in the hospital.

         One of defendant's housemates, Malik Rogers ("Rogers") later found gray and blue bandanas, a gun, and a clown mask in defendant's closet. He used the bandanas and clown mask to carry out a robbery on 1 November 2016. Although defendant did not participate in this robbery, the evidence tended to connect the masks from the other robberies to defendant. Smith and defendant again robbed a store on 9 December 2016, with another accomplice, Nathan Davis ("Davis).

         On 29 March 2018, the jury found defendant guilty of all charges. The trial court sentenced defendant to life imprisonment without parole for first degree murder, 83 to 112 months for assault with a deadly weapon with intent to kill inflicting serious injury, and 29 to 47 months for conspiracy, all to be served consecutively. The trial court arrested judgment on the robbery charge.

         Defendant appeals.

         II. Discussion

         Defendant argues the trial court erred by admitting into evidence: (1) a recorded statement given by Montes, and (2) gang-related evidence. We address each argument in turn.

         A. Montes' Recorded Statement

         Montes did not attend defendant's trial. Nevertheless, after finding Montes was "unavailable" for purposes of N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) (2017) and the Confrontation Clause of the United States Constitution, and holding that defendant forfeited his constitutional right to confront her, the trial court admitted a recorded statement Montes made to law enforcement prior to trial. Defendant argues the trial court erred by admitting this statement because: (1) Montes was not "unavailable" for purposes of N.C. Gen. Stat. § 8C-1, ...


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