The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1159
Filed: 21 May 2019
Johnston County, Nos. 16 CRS 58074, 58077
STATE OF NORTH CAROLINA
v.
JULIEN ANTONIO ALLEN, Defendant.
Appeal by defendant from judgments entered 29 March 2018 by Judge Thomas
H. Lock in Johnston County Superior Court. Heard in the Court of Appeals
25 April 2019.
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
STATE V. ALLEN
Opinion of the Court
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
-2-
STATE V. ALLEN
Opinion of the Court
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
-3-
STATE V. ALLEN
Opinion of the Court
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
-4-
STATE V. ALLEN
Opinion of the Court
“unavailable” for purposes of N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) and the
Confrontation Clause, and (2) defendant did not forfeit his constitutional right to
confront Montes. We disagree.
i. Unavailability
Rule 804(a) of the North Carolina Rules of Evidence lists the scenarios that
permit a trial court to determine a declarant is “unavailable” to testify as a witness
at trial. Here, the trial court determined Montes was unavailable pursuant to Rule
804(a)(5), which permits statements to be introduced at trial in lieu of live testimony
if: (1) the declarant is unavailable as a witness, and (2) the statement qualifies as a
circumstance listed in Rule 804(b). N.C. Gen. Stat. § 8C-1, Rule 804(b). The trial
court determined Montes’ recorded statement fell within the scope of both Rule
804(b)(3) and (5):
(3) Statement Against Interest. - A statement which was at
the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to
subject him to civil or criminal liability, or to render
invalid a claim by him against another, that a
reasonable man in his position would not have made the
statement unless he believed it to be true. A statement
tending to expose the declarant to criminal liability is
not admissible in a criminal case unless corroborating
circumstances clearly indicate the trustworthiness of
the statement.
....
(5) Other Exceptions. - A statement not specifically covered
by any of the foregoing exceptions but having
-5-
STATE V. ALLEN
Opinion of the Court
equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for which
it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests
of justice will best be served by admission of the
statement into evidence. . . .
N.C. Gen. Stat. § 8C-1, Rule 804(b).
In contrast, our courts have held that finding witnesses unavailable for the
purposes of the Confrontation Clause requires a finding that “the prosecutorial
authorities have made a good-faith effort to obtain [the declarant’s] presence at trial.”
State v. Clonts, __ N.C. App. __, __, 802 S.E.2d 531, 544 (2017) (quoting Barber v.
Page, 390 U.S. 719, 724-25, 20 L. Ed. 2d 255, 260 (1968)), aff’d, __ N.C. __, 813 S.E.2d
796 (2018).
Thus, in sum,
[t]he trial court was required to make sufficient findings of
fact, based upon competent evidence, in support of any
ruling that the State had satisfied its burden of
demonstrating that it had been unable to procure [the
declarant’s] attendance . . . by process or other reasonable
means for the purposes of N.C. Gen. Stat. § 8C-1, Rule
804(a)(5), and that it had made a good-faith effort to obtain
[her] presence at trial for Confrontation Clause purposes.
Id. at __, 802 S.E.2d at 545 (citation and internal quotation marks omitted).
To review a trial court’s determination that a witness is unavailable, our Court
considers “whether the trial court’s findings of fact related to the witness’
-6-
STATE V. ALLEN
Opinion of the Court
unavailability were supported by the evidence and, in turn, supported its conclusions
of law.” Id. at __, 802 S.E.2d at 545 (citations omitted). “The degree of detail required
in the finding of unavailability will depend on the circumstances of the particular
case.” Id. at __, 802 S.E.2d at 545 (quoting State v. Triplett, 316 N.C. 1, 8, 340 S.E.2d
736, 740-41 (1986)).
In the present case, Montes was arrested in connection with the crimes charged
against defendant. Following her arrest, she cooperated with law enforcement and
gave a statement about the robbery that tended to incriminate defendant. Montes
agreed to appear in court and testify against defendant, but failed to appear. Her
whereabouts were unknown to her family, bondsman, and the State. The State
moved the trial court to allow her recorded statement into evidence on grounds that
she was unavailable, and also that defendant forfeited his constitutional right to
confrontation with regard to Montes due to his own wrongdoing.
The trial court heard the motion at an evidentiary hearing on 28 March 2018.
The trial court found, in relevant part:
8. After Montes failed to appear, the State obtained
recordings of the defendant’s telephone calls from jail
to his mother and grandmother. . . .
9. On 15 March 2018, the defendant made a recorded
call to his mother. . . . [His mother] then connected
Montes to the call so that it became a three-way call.
During this call, the defendant made the following
statements to Montes: “You know what the f*** you’re
supposed to be doing. You know what I’m talking
-7-
STATE V. ALLEN
Opinion of the Court
about. You got time to do everything else, n*****.”
Montes responded to the defendant and said, “Now I
have to testify against you, how do you think that
makes me feel? You didn’t take the plea.”
10. Later that same day, the defendant placed a recorded
call to his grandmother . . . [she] then connected
Montes to this call. During this call, the defendant
said to Montes: “You’re thinking about your mother
f****** self, n*****, lying, thinking of yourself. You’re
trying to save your own ass. You ain’t doing a mother
f****** thing, you are a selfish mother f*****. You’re
trying to blame it on me. What the f***** wrong with
you?” Montes responded and asked, “What am I
supposed to do?” The defendant replied: “Let me
break it down, I’m not trying to save my neck to f***
someone else’s life up. You’re f****** stupid. You
don’t listen. You ain’t doing a thing you’re supposed
to because you’re out getting your nails done. The only
thing on my shit is your lying ass because you are a
selfish mother f*****. You’re the mother f******
reason I’m in here right now while you’re out getting
your nails done. Who the f*** else know [sic]? At the
end of the day, you might be home, but I’ve to deal
with this shit you’ve put me in.”
11. On 22 March 2018, the day before a cooperating co-
defendant, Omari Smith, was scheduled to testify, the
defendant placed a recorded call to an unknown
recipient. . . . The defendant told the recipient to
attend court the next day because Omari would be in
court at 9:30 “lying his ass off,” and the defendant told
the recipient to “put it on Facebook.”
12. On the morning of 23 March 2018, the court observed
two young male individuals appear in the courtroom.
These two males had not previously attended any part
of the trial. After approximately one hour, the court
ordered the bailiff to eject one of these males from the
courtroom because of his disruptive behavior. Both
-8-
STATE V. ALLEN
Opinion of the Court
males left the courtroom and never returned.
13. Omari Smith testified that the defendant called him
prior to their arrests and threatened Smith’s brother.
Smith further testified that he decided to testify
against the defendant in part because of this threat.
....
15. On 15 March 2018, the defendant’s mother and
grandmother . . . appeared at the residence of Montes’
parents. Montes was not home. . . . [Defendant’s
mother and grandmother] had been to the residence
on prior occasions . . . but this time they stayed longer
than usual, waiting until Montes arrived home.
16. After Montes arrived home from work, [defendant’s
mother and grandmother] engaged in a hushed
conversation with her. When [they] left, Montes’
parents questioned her about the conversation.
Montes said [they] had told her to “make the best
choice that she had to make.” Montes’ mother told
Montes that her decision had already been made and
that she needed to go to court and testify.
17. Montes’ parents have not seen or talked with Montes
since Sunday, 18 March 2018, and have reported her
missing to the Johnston County Sheriff’s Office.
18. The net effect of the defendant’s words and conduct,
in particular his words and conduct directed towards
[Montes], was to pressure and intimidate her into not
appearing in court and testifying in this case.
19. On 26 March 2018, the State gave the defendant
written notice under [N.C. Gen. Stat. §] 8C-1, Rule
804(b)(5) of its intent to introduce the recorded
statement of Montes. The recorded statement had
been provided to the defendant during discovery.
-9-
STATE V. ALLEN
Opinion of the Court
Based on these findings of fact, the trial court concluded Montes was “unavailable as
a witness for the State within the definition of [N.C. Gen. Stat. §] 8C-1, Rule
804(a)(5).” Additionally, the trial court concluded:
3. The statement was at the time of its making so far
contrary to Montes’ penal interest that she reasonably
would not have made it unless she believed it to be true,
and corroborating circumstances clearly indicate the
trustworthiness of the statement.
4. Montes’ recorded statement is admissible under [N.C.
Gen. Stat. §] 8C-1, Rule 804(b)(3) and (5).
5. The conduct of the defendant as described above
constitutes a forfeiture of the defendant’s rights under
the Sixth Amendment to the United States Constitution
and under Article I, Section 23 of the Constitution of
North Carolina to confront and cross-examine [Montes].
Defendant argues the trial court did not properly find Montes unavailable
under the North Carolina Rules of Evidence and the Confrontation Clause because
the trial court failed to find the State made a good faith effort to obtain Montes’
attendance at trial. We disagree. The trial court made sufficient findings of fact to
demonstrate that the State utilized reasonable means and made a good faith effort to
procure Montes’ presence at trial.
The North Carolina Rules of Evidence require that a finding of unavailability
be supported by evidence of process or other reasonable means, Clonts, __ N.C. App.
at __, 802 S.E.2d at 545, whereas, “a witness is not ‘unavailable’ for purposes of the
foregoing exception to the confrontation requirement unless the prosecutorial
- 10 -
STATE V. ALLEN
Opinion of the Court
authorities have made a good-faith effort to obtain his presence at trial.” Barber, 390
U.S. at 724-25, 20 L. Ed. 2d at 260 (finding the State did not make a good faith effort
to obtain a witness’ presence at trial where the sole reason the witness was not
present was because the State did not attempt to seek his presence).
Defendant refers us to Clonts, a case where our Court held the State did not
make a good faith effort to obtain a witness’ presence where the trial court made
insufficient findings of fact related to a witness’ unavailability where the trial court
“did not address the option of continuing trial until [the witness] returned from
[military] deployment, nor did it make any finding . . . the State made a good-faith
effort to obtain [the witness’] presence at trial[,] much less any findings
demonstrating what actions taken by the State could constitute good-faith efforts.”
Clonts, __ N.C. App. at __, 802 S.E.2d at 546 (citation and internal quotation marks
omitted). The Court then noted that, assuming arguendo the findings were sufficient,
the evidence was not sufficient to support a good faith effort to obtain the witness’
presence where the State knew the witness was deployed, and only served a last
minute subpoena, despite being provided with contact information with military
personnel who were identified as the point of contact for the matter months prior. Id.
at __, 802 S.E.2d at 546-47.
In contrast, here, the trial court found that the State delivered a subpoena for
Montes to her lawyer, and Montes agreed to appear in court and testify against
- 11 -
STATE V. ALLEN
Opinion of the Court
defendant. Unlike the findings in Clonts, these findings support a conclusion both
that the State utilized reasonable means and made a good faith effort to obtain the
witness’ presence at trial.
ii. Confrontation Rights
We now turn to defendant’s argument that he did not forfeit his confrontation
rights by wrongdoing. We disagree.
Once a witness has been shown to be unavailable, our Court has held that, to
protect a defendant’s right to confrontation, “[w]e must determine: (1) whether the
evidence admitted was testimonial in nature; (2) whether the trial court properly
ruled the declarant was unavailable; and (3) whether defendant had an opportunity
to cross-examine the declarant.” Id. at __, 802 S.E.2d at 551-52 (citation and internal
quotation marks omitted). Our Court reviews for alleged violations of constitutional
rights de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009)
(citation omitted). In the instant case, the recorded statement at issue was given by
an unavailable declarant and is testimonial in nature, but defendant did not have the
opportunity to cross-examine the declarant. However, the trial court found that,
nonetheless, defendant forfeited his confrontation rights as to Montes by wrongdoing.
“Under the doctrine of forfeiture by wrongdoing, ‘one who obtains the absence
of a witness by wrongdoing forfeits the constitutional right to confrontation.’ ” State
v. Weathers, 219 N.C. App. 522, 524, 724 S.E.2d 114, 116 (2012) (quoting Davis v.
- 12 -
STATE V. ALLEN
Opinion of the Court
Washington, 547 U.S. 813, 833, 165 L. Ed. 2d 224, 244 (2006)), cert. denied, 366 N.C.
596, 743 S.E.2d 203 (2013). Pursuant to this doctrine,
when defendants seek to undermine the judicial process by
procuring or coercing silence from witnesses and victims,
the Sixth Amendment does not require courts to acquiesce.
While defendants have no duty to assist the State in
proving their guilt, they do have the duty to refrain from
acting in ways that destroy the integrity of the criminal
trial system.
Id. Although North Carolina courts have applied this doctrine, they have not yet
taken a position on the standard necessary to demonstrate forfeiture by wrongdoing.
Id. at 525, 724 S.E.2d at 116. Here, the trial court held the government to the
preponderance of the evidence standard. The preponderance of the evidence standard
is generally applied by federal courts applying Rule 804(b)(6) of the Federal Rules of
Evidence, and tends to also be applied by state courts assessing forfeiture by
wrongdoing. See Davis, 547 U.S. at 833, 165 L. Ed. 2d at 244. In accord with these
courts, we hold the trial court correctly determined that the State was required to
establish forfeiture by wrongdoing pursuant to the preponderance of the evidence
standard.
Furthermore, we hold the State met this burden. The record shows defendant
made phone calls that the court could find evidenced his intent to intimidate Montes
into not testifying. He also threatened another testifying witness, Smith. In addition,
his mother and grandmother, who helped facilitate defendant’s threatening calls to
- 13 -
STATE V. ALLEN
Opinion of the Court
Montes, showed up at Montes’ parents’ house prior to trial to engage in a conversation
with her about her testimony. Based on the trial court’s findings of fact related to
this evidence, the trial court properly found, by at least a preponderance of the
evidence, that the net effect of defendant’s conduct was to pressure and intimidate
Montes into not appearing in court and testifying in this case. Accordingly, the trial
court properly concluded defendant forfeited his confrontation rights by wrongdoing.
B. Evidence of Gang Affiliation
Next, defendant argues the trial court erred by admitting irrelevant and
prejudicial evidence of gang affiliation, including: (1) Smith’s testimony that he and
defendant were in a gang together, (2) Smith’s testimony about his and defendant’s
ranking in the gang, (3) Davis’ testimony that Smith and defendant were members of
the Crip gang, and (4) Rogers’ testimony that Smith and defendant were members of
the Crip gang and that when he used defendant’s masks during a robbery, he and his
accomplices did so to “act like [they were] Crip.”
“North Carolina courts have long held that membership in an organization
may only be admitted if relevant to the defendant’s guilt.” State v. Hinton, 226 N.C.
App. 108, 113, 738 S.E.2d 241, 246 (2013) (citations omitted). Relevant evidence is
defined as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2017). “Relevant
- 14 -
STATE V. ALLEN
Opinion of the Court
evidence may also be excluded if ‘its probative value is substantially outweighed by
the danger of unfair prejudice.’ ” Hinton, 226 N.C. App. at 113, 738 S.E.2d at 246
(quoting N.C. Gen. Stat. § 8C-1, Rule 403 (2017)). The “admission of gang-related
testimony tends to be prejudicial[.]” Id.
Although the trial court’s rulings on relevancy
technically are not discretionary and therefore are not
reviewed under the abuse of discretion standard applicable
to Rule 403, such rulings are given great deference on
appeal. Because the trial court is better situated to
evaluate whether a particular piece of evidence tends to
make the existence of a fact of consequence more or less
probable, the appropriate standard of review for a trial
court’s ruling on relevancy pursuant to Rule 401 is not as
deferential as the ‘abuse of discretion’ standard which
applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and
internal quotation marks omitted).
Pursuant to N.C. Gen. Stat. § 15A-1443 (2017), it is the defendant’s burden to
prove the testimony was erroneously admitted and he was prejudiced by the
erroneous admission. “The admission of evidence which is technically inadmissible
will be treated as harmless unless prejudice is shown such that a different result
likely would have ensued had the evidence been excluded.” State v. Moses, 350 N.C.
741, 762, 517 S.E.2d 853, 867 (1999) (quoting State v. Gappins, 320 N.C. 64, 68, 357
S.E.2d 654, 657 (1987)).
- 15 -
STATE V. ALLEN
Opinion of the Court
Here, assuming arguendo that the admission of this evidence was error,
defendant has not shown that a different result likely would have ensued had the
evidence been excluded because there was overwhelming evidence of defendant’s
guilt. Smith, a co-conspirator, and Rogers both testified that defendant participated
in the robbery of the Shop-N-Go. Rogers’ testimony also tended to tie the bandanas
used in the Shop-N-Go robbery to defendant. Similarly, Montes’ statement to law
enforcement averred that she was present and witnessed defendant participate in the
Shop-N-Go robbery. Additionally, the jury was shown surveillance video taken by
cameras at the Shop-N-Go on the night in question, which tended to be consistent
with Smith’s testimony, Montes’ statement, and the motive and planning shown by
the other robberies that Smith and Davis testified defendant committed.
In view of all of this evidence, we hold that defendant failed to show that there
was a reasonable probability that defendant would have been acquitted if the gang
references made during Smith, Roger, and Davis’ testimony had not been admitted
into evidence.
III. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges INMAN and YOUNG concur.
- 16 -