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Criminal Practice — Armed Robbery – Evidence – Detective’s Statement – Sentencing – Aggravating Factor – Blakeley Act

State v. Edmonds (Lawyers Weekly No. 14-07-0941, 24 pp.) (Rick Elmore, J.) Appealed from Buncombe County Superior Court (James Downs, J.) N.C. App.

Holding: After a father-and-son team robbed a bank, the trial court correctly allowed the son’s girlfriend to testify that a detective told her the son had robbed a bank. This testimony was not offered for the truth of the matter asserted but to explain how the detective convinced the girlfriend to make a statement in the case. Moreover, the son has neglected to argue that he was prejudiced by the admission of this testimony.

We find no prejudicial error in defendants’ convictions of armed robbery. The judgment against the defendant-father is remanded for correction of clerical errors.

The prosecutor asked the girlfriend whether she had told the detective that she heard a gun being thrown into a river. There is nothing in the record to indicate that the prosecutor’s questions were asked in bad faith. In addition, the trial court sustained the objections, struck one question from the record, and issued a curative instruction. As such, there was no prejudicial evidence introduced in response to the prosecutor’s questions. The trial judge’s action in sustaining the objections was sufficient to remedy any harm that resulted from the asking of the questions. The trial judge did not abuse his discretion in failing to declare a mistrial.

The son contends “the outstanding feature of the State’s case was the extraordinary frequency of cell phone communications between [father and son] at and around the time of the robbery,” so the trial court erred when it precluded him from cross-examining a cell phone company employee about the number of minutes used in the entire billing cycle. The son was attempting to establish that the high level of communication between the defendants was not peculiar to the day of the robbery. However, since there was other evidence that illustrated defendants’ cell phone usage habits, the son has failed to establish that the trial judge’s limitation on cross-examination improperly influenced the verdict.

Under the Blakely Act, the trial judge should have addressed the defendant-son directly about the aggravating factor he was admitting; instead, the judge spoke to defense counsel. However, the son did not object at trial, and he points to no evidence contrary to the aggravating factor that he committed the robbery while on pretrial release for another offense.

The judgment against the father lists the prior record level and attorney’s fee that are attributable to the son. We remand for correction of this clerical error.

No prejudicial error. Remanded for correction of clerical errors.

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