in the Court of Appeals 25 April 2019.
by defendant from judgments entered 29 March 2018 by Judge
Thomas H. Lock in Johnston County, Nos. 16 CRS 58074, 58077
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.
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.
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.
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
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.
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.
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
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.
Alshami died as a result of gunshot wounds to his neck and
back. Mr. Lynch recovered after spending three weeks in the
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
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.
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.
Montes' Recorded Statement
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, ...