Heard in the Court of Appeals 6 August 2019.
by Defendant from judgment entered 5 May 2017 by Judge James
Webb in Robeson County Nos. 13 CRS 54359, 3511 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General L. Michael Dodd, for the State-Appellee.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.
Clarence Wendell Roberts appeals from judgment entered upon
jury verdicts of guilty of second-degree murder and assault
with a deadly weapon. Defendant argues that the trial court
committed certain evidentiary and sentencing errors. We find
no prejudicial error.
September 2013, Defendant was indicted for first-degree
murder, three counts of attempted first-degree murder, and
three counts of assault with a deadly weapon with intent to
kill. A trial commenced on 10 April 2017. At the close of the
State's evidence, the trial court granted Defendant's
motion to dismiss some of the charges. On 5 May 2017, the
jury found Defendant guilty of second-degree murder and
assault with a deadly weapon. The trial court consolidated
the offenses and entered judgment upon the jury's
verdicts, sentencing Defendant to 300 to 372 months'
imprisonment. Defendant gave oral notice of appeal in open
evening of 14 June 2013, approximately twelve people,
including John Allen, Michael Burgess, and Joshua Council,
were playing basketball at a park in the Hayeswood Hut area
of Lumberton. During their breaks, they talked and had drinks
beside their cars parked in the grassy area between the
basketball court and Peachtree Street. Allen and Burgess were
affiliated with the E-Ricket Hunter Bloods street gang.
Allen's sister, her three-year-old daughter, and one of
the sister's friends were hanging out by the cars,
watching them play basketball. At about 9:00 or 9:30 p.m., a
shooting occurred, and Council was killed.
testified that while he, his sister, and Council were
standing beside Council's Chevrolet Blazer, a white Ford
Taurus with its windows rolled down came "kinda
fast" down Peachtree Street. The driver, who was the
only person in the car, yelled "all y'all
mother***ers want to kill me." The car drove past them,
slowed down, and spun backward before stopping beside the
Blazer. Allen thought the driver was drunk. A black male with
a "bald head or either a real close haircut" got
out of the car. Then, Allen saw the driver shooting and heard
a total of five gunshots coming from "where the car
was[, ]" but he did not see the gun that was being
fired. Allen and others ran away from the basketball area.
The white Taurus then drove away.
testified that when he and his friends were taking a break in
the grassy area beside the court, a white car partially
covered in black primer drove by, backed up, and
"whipped" in front of them. Burgess could see that
the driver was a black male with tattoos on his face and gold
teeth, and he was the only person in the car. After the
driver yelled "y'all gonna kill me," someone
shot at the car. Burgess heard more shots coming from the
white car and started running.
Britt lived right around the corner from Hayeswood Hut. On
the night of the shooting, Britt was walking with a friend
through an intersection near the park. She saw a white
four-door car drive past her toward the basketball court. The
driver, a black male with gold teeth, was hanging out of the
window and yelling "ain't nobody going to mess with
me." Britt thought he had been drinking. Just after the
car turned down Peachtree Street, Britt heard gunshots. She
later identified Defendant in a photo lineup at the police
station, but she could not identify him in court.
Carter lived at the corner of Peachtree Street and Eleventh
Street. Carter was sitting in her car in her driveway between
9:00 and 10:00 p.m. on the night of the shooting when she saw
a white car drive by, intermittently "throwing on its
brakes." Carter observed that the driver was the only
person in the car. She saw the car stop briefly at the
intersection while the driver talked to two pedestrians. The
car then "sped down the dirt road." While still
sitting in her car in her driveway about five minutes later,
Carter heard gunshots. She waited a few minutes, then got out
of her car and walked to the edge of Peachtree Street. When
Carter looked down Peachtree Street, she saw the white car
parked beside the basketball court. Then the car drove away
toward Elizabethtown Road, and people were running.
Roberson's house faced the Hayeswood Hut basketball
court. On the night of the shooting, Roberson watched
black-and-white surveillance video of the basketball court,
captured by an infrared camera mounted on the side of his
house. He observed people talking around the basketball
court. He also watched as a dark car came down the road,
backed up near the court slowly, and sat with its engine
running. Then shots were fired. Roberson did not see any
other cars in the area. He called 911 twice-first to report
the loud noise coming from the basketball court, and then to
report the gunshots.
Lowery, the mother of Defendant's son, testified that
Defendant showed up sometime after 9:30 p.m. at her home on
Elizabethtown Road, visibly drunk and driving a white Ford
Taurus. Two other witnesses who knew Defendant testified that
Defendant visited them in Lumberton that night on or after
10:00 p.m., driving a white car.
McGirt, who lived near Hayeswood Hut, was on his way home
from work around 11:20 p.m. when he noticed a white Ford
Taurus "driving strangely" down his street. When
McGirt parked in his driveway, the white car pulled up beside
him in the driveway. A black male, about 5'9" to
6' tall and 160 to 170 pounds with gold teeth, got out of
the white car. After asking McGirt a few questions, the man
got back in the car, started the engine, and backed out of
the driveway while yelling that he was a
"gangster." McGirt thought the driver was impaired.
After the man drove away, McGirt called the police to report
the suspicious activity. Two days later, when McGirt visited
the police station to make a statement, he identified
Defendant in a photo lineup.
midnight, Trooper Steven Hunt of the North Carolina Highway
Patrol found a white Ford Taurus in a ditch beside the
highway. The engine was running, the taillights were on, and
Defendant was asleep inside, leaning against the steering
wheel. When Defendant woke up and tried to put the car in
drive, the officer pulled him out of the car, noticing that
he was impaired. Hunt arrested Defendant for driving while
appeal, Defendant argues that (1) the trial court erred and
violated his right to confrontation by admitting recordings
of his phone calls from jail, (2) the trial court plainly
erred by admitting videos of his interviews with
investigators, (3) the sentence imposed was not authorized by
the jury's verdict, and (4) the trial court erred in
calculating Defendant's prior record level.