Transcript - State v Marvin Adams 07-11-12!07!12-12 Vol I of I

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISIONHALIFAX COUNTY 11 CRS 50643, 50644

STATE OF NORTH CAROLINA V.

MARVIN LYKEITH ADAMS, Defendant.

Transcript of jury trial heard on July 11 and 12, 2012, in Halifax County Criminal Superior Court, before the Honorable Alma L. Hinton, Judge Presiding.

APPEARANCES:

FOR THE STATE: Mr. Norlan W. GravesHalifax County D.A.'s OfficeP.O. Box 126Halifax, NC 27839

FOR DEFENDANT:Mr. Jamal SummeyWebb, Webb & SummeyP.O. Drawer 389Scotland Neck, NC 27874

Reported by: Rhonda B. Earley, CVR-CM-M Official Reporter, Judicial District 6A

Transcript Order Dated: 07/16/12 Transcript Delivered/Mailed: 08/06/12

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1 TABLE OF CONTENTS

2STATE'S WITNESSES PAGE #

3 James Marshall Direct by Graves 14

4 Cross by Summey 27Redirect by Graves 44

5 Recross by Summey 46

6 Christy Hudson Direct by Graves 50 Cross by Summey 57

7 Redirect by Graves 69Recross by Summey 70

8 Joanne Robinson Direct by Graves 71

9 Cross by Summey 77Redirect by Graves 84

10 Recross by Summey 85

11 Joshua Clark Direct by Graves 87 Cross by Summey 126

12 Redirect by Graves 145Recross by Summey 162

13

14 STATE'S EXHIBITS MARKED ADMITTED

15 #1 - Field Notes (Clark) 89 168 #2 - Photograph 93 157

16 #3 - Photograph 93 157 #4 - Photograph 93 157

17 #5 - Statement (J.Marshall) 98 101 #6 - Rights & Statement (defendant) 110 113

18 #7 - Video/CD 151 159

19 DEFENDANT'S EXHIBITS #1 - Statement (J.Marshall) 35 --

20 (same as State's #5) #2 - ADA Kanter Morris's notes 63 --

21 #3 - Field notes (Clark) 130 -- (same as State's #1)

22PAGE #

23 STATE RESTS 169DEFENSE RESTS 177

24 CHARGE CONFERENCE 177JURY CHARGE 189

25 VERDICTS/SENTENCING 200

M.L.Adams, Halifax 11 CRS 50643-44, 07/11/12

3

1 PROCEEDINGS, 07/11/12, 10:02 AM

2 THE COURT: Is the State prepared to

3 call its next case for trial?

4 MR. GRAVES: Your Honor, at this time

5 the State calls the case of State v. Marvin Adams.

6 THE COURT: Good morning, ladies and

7 gentlemen of the jury. The State has now called for

8 trial the cases of Marvin Adams.

9 Mr. Adams, would you stand and face the

10 jury, please.

11 (The defendant stood.)

12 THE COURT: Thank you, sir. You may

13 have a seat.

14 Mr. Adams is represented by attorney

15 Jamal Summey. And the State of North Carolina will be

16 represented by Assistant District Attorney Norlan

17 Graves.

18 In these cases Mr. Adams is charged with

19 larceny of a chose in action, possession of stolen

20 goods, and attempt to obtain property by false

21 pretenses. To these charges Mr. Adams has entered a

22 plea of not guilty. These alleged offenses took place

23 on January 3, 2011, the victim being Joanne Robinson.

24 After a jury has been selected and

25 impaneled in this case, you will hear the evidence.


4

1 The evidence is presented according to certain rules of

2 law. I as the judge will enforce those rules and

3 determine what evidence may be admitted.

4 After all of the evidence has been

5 presented and after you have listened to the arguments

6 of counsel, I will instruct you on the law you are to

7 apply to the evidence in the case. It is your duty to

8 apply the law as I give it to you and not as you think

9 it is or as you might like it to be. This is important

10 because justice requires that everyone tried for the

11 same crime be treated in the same way and have the same

12 law applied to them.

13 At this point you are not expected to

14 know the law. The lawyers will not ask you questions

15 about the law except to ask if you can follow the law

16 as given by the Court.

17 As I told you, the defendant has entered

18 a plea of not guilty. Under our system of justice,

19 when a defendant pleads not guilty, he is not required

20 to prove his innocence; he is presumed to be innocent.

21 This presumption remains with the defendant throughout

22 the trial until the jury selected to hear his case is

23 convinced from the facts and the law of the defendant's

24 guilt beyond a reasonable doubt.

25 The burden of proof is on the State to


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1 prove the defendant guilty beyond a reasonable doubt.

2 A reasonable doubt is not a vain or fanciful doubt. It

3 is a doubt based on reason and common sense arising out

4 of some or all of the evidence that has been presented

5 or the lack or insufficiency of the evidence, as the

6 case may be. Proof beyond a reasonable doubt is proof

7 that fully satisfies or entirely convinces you of the

8 defendant's guilt.

9 There is no burden or duty of any kind

10 on the defendant. The mere fact that he has been

11 charged with a crime is no evidence of guilt. A charge

12 is merely a mechanical or administrative way by which a

13 person is brought to trial.

14 If the State proves the defendant guilty

15 beyond a reasonable doubt, then the function of the

16 jury by its verdict is to say guilty. If the State

17 fails to prove or if you have a reasonable doubt, then

18 the function of the jury of course is to say not

19 guilty.

20 At this point I am going to ask the

21 Clerk to call 12 names at random. If your name is

22 called, please rise and come forward and have a seat

23 where you are directed by the bailiff.

24 (Jury selection)

25 (Twelve jurors and an alternate were


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1 selected.)

2 (Twelve jurors and an alternate were

3 duly impaneled - 12:01 PM.)

4 THE COURT: Ladies and gentlemen, at

5 this time I want to explain to you the manner in which

6 we will proceed as we attempt together to find the

7 truth in this case.

8 First the lawyers will have an

9 opportunity to make opening statements. An opening

10 statement is narrow and limited. It is an outline of

11 what the attorney believes the competent and admissible

12 evidence will be. An opening statement is not evidence

13 and should not be considered by you as evidence. The

14 evidence will come in the form of testimony of

15 witnesses, admissions of the parties, stipulations of

16 counsel, and any physical exhibits which may be offered

17 by the parties.

18 Following opening statements, evidence

19 will be offered, witnesses will be placed under oath

20 and questioned by the lawyers. It may be that

21 documents or other tangible exhibits may be offered and

22 received as evidence. If an exhibit is given to you to

23 examine, you should examine it carefully, individually,

24 and without comment to your fellow jurors.

25 It is the right of the lawyers to object


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1 when testimony or other evidence is offered which the

2 lawyer believes is not admissible. When the Court

3 sustains an objection to a question, you as jurors must

4 disregard the question and the answer if one has been

5 given and draw no inference from the question or the

6 answer or speculate as to what the answer would have

7 been had the witness been permitted to answer.

8 When the Court overrules an objection to

9 any evidence, you must not give any such evidence any

10 greater weight than you would had the objection not

11 been made. If the Court grants a motion to strike all

12 or part of the answer of a witness to a question, you

13 must disregard and not consider the evidence which has

14 been stricken.

15 During the course of this trial, it may

16 be that questions of law will arise that need to be

17 considered by the Court out of the presence of the

18 jury. When this happens, I may ask that you go to the

19 jury room for just a few minutes. You should not worry

20 or speculate about what takes place in the courtroom

21 during your absence. We will merely be considering

22 questions of law that need to be considered by the

23 Court out of the presence of the jury. All of the

24 competent and admissible evidence will be admitted

25 while you are present in the courtroom.


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1 When the evidence is completed, the

2 lawyers will have an opportunity to make final

3 arguments or statements to you. The final arguments of

4 the attorneys are not evidence but are given to assist

5 you in evaluating the evidence.

6 Finally, just before you retire to

7 consider your verdict, I will give you further

8 instructions on the law that applies to this particular

9 case. At that time I will declare and explain to you

10 the law arising on the evidence, and then you will be

11 taken to the jury room to deliberate on your verdict.

12 While you serve as a juror in this case,

13 it is imperative that you follow the following rules.

14 First, you must not talk about the case

15 among yourselves. The only place you may talk about

16 the case is in the jury room and then only after I have

17 instructed you to begin your deliberations.

18 Second, you must not talk about the case

19 with anyone else, including your family members, or

20 allow anyone else to talk about the case in your

21 presence. If anyone communicates or attempts to

22 communicate with you about this case, you must notify

23 the Court of that immediately.

24 Third, while you sit as a juror in this

25 case, you are not to form an opinion about the guilt or


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1 innocence of the defendant, nor are you to express to

2 anyone an opinion about the case until I have

3 instructed you to begin your deliberations.

4 Fourth, you must not talk or communicate

5 in any way with any of the parties in the case, any of

6 the lawyers, or any of the witnesses. This rule

7 applies inside as well as outside the courtroom, and it

8 prohibits any type of conversation whatsoever, whether

9 about the evidence in the case, the weather outside, or

10 just to pass the time of day.

11 Fifth, you must not read about this case

12 in the newspaper or listen to any radio broadcasts or

13 watch any television reports about this trial or any

14 Internet accounts, if there be any. Newspaper, radio,

15 television, and Internet accounts may be inaccurate and

16 may contain things which are not proper for your

17 consideration. Your verdict must be based exclusively

18 on what you hear in this courtroom.

19 Sixth, you must not visit the scene or

20 the place that is the subject matter of this trial or

21 make any independent investigation into the subject

22 matter of this trial.

23 Each of you must obey these rules to the

24 letter. Unless you do so, there is no way the State of

25 North Carolina or the defendant can be assured of your


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1 absolute fairness and impartiality. It is your duty

2 both while the trial is in progress or while it is in

3 recess or while you are in the jury room to see that

4 you remain a fair and impartial trier of the facts.

5 I am going to ask the sheriff to hand to

6 you now a juror badge. I am going to ask that you wear

7 your juror badges prominently as you move around the

8 courthouse and over the luncheon recess. The purpose

9 of the jury badges is to alert people who may know

10 something about the case or be connected to the case of

11 your presence so they will curtail their conversations

12 around you. I will ask that you wear them prominently

13 so they can be seen.

14 The jury is with the State for opening

15 statement.

16 (Mr. Graves made an opening statement.)

17 MR. SUMMEY: We waive opening.

18 THE COURT: We are going to take our

19 luncheon recess. I want to remind you of the duties

20 that I listed for you previously. It is your duty not

21 to talk among yourselves about this case. It is your

22 duty not to talk to the parties, witnesses, or counsel

23 about anything. It is your duty not to talk with

24 anyone else or allow anyone else to talk or say

25 anything about this case in your presence. If anyone


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1 communicates or attempts to communicate with you about

2 this case, you must report that to the Court

3 immediately. You have a duty not to form an opinion

4 about the guilt or innocence of the defendant or

5 express an opinion about the case as it is thus far.

6 Please avoid reading, watching, or listening to any

7 news accounts of the trial, if there be any. Finally,

8 you have a duty not to go to any place where these

9 alleged acts were alleged to have been committed.

10 Please continue to wear your badges. If

11 you want to have lunch with someone on the jury, you

12 may do that, but please refrain from discussing the

13 case until I have instructed you to begin your

14 deliberations.

15 I will ask the sheriff to show you how

16 to get in the jury room and ask that you gather there

17 at 2 o'clock, and we will proceed with the evidence in

18 this case. Thank you. Have a good lunch. I will see

19 you at 2 o'clock.

20 (Jury Absent - 12:16 PM:)

21 THE COURT: Let the record reflect that

22 we are outside the presence of the jury. Anything

23 before we take our recess?

24 MR. GRAVES: No.

25 MR. SUMMEY: No.


12

1 THE COURT: Sheriff, take a recess until

2 2 o'clock.

3 (Recess - 12:17 PM to 2:11 PM)

4 (Jury not present, 2:11 PM:)

5 MR. GRAVES: Your Honor, just briefly --

6 THE COURT: Yes, sir?

7 MR. GRAVES: Your Honor, the State has

8 learned of the possibility of Attorney Summey possibly

9 calling a rebuttal witness, being Ms. Kanter Morris,

10 who was formerly employed in our office. And the State

11 would just request if there are any written statements

12 to that effect from that potential witness, that they

13 be turned over and that the Court provide some type of

14 cautionary instruction regarding her testimony only as

15 an impeachment witness.

16 THE COURT: Mr. Summey?

17 MR. SUMMEY: If Your Honor please, I was

18 provided -- it came to my knowledge that Ms. Hudson had

19 not been interviewed formally by law enforcement in

20 this case. So Ms. Morris actually took a statement

21 from the witness, the main witness in the case, on

22 August 22, 2011. She provided --

23 THE COURT: From Ms. Hudson?

24 MR. SUMMEY: Yes, ma'am. When she was

25 with the DA's office, Ms. Morris was prepping this case


13

1 for trial, and she realized that no one had ever taken

2 a statement from Ms. Hudson. So she provided me her

3 statement in supplemental discovery.

4 THE COURT: When she was in the DA's

5 office, she provided you with a statement?

6 MR. SUMMEY: Exculpatory, yes, ma'am.

7 So if Ms. Hudson -- I guess if Ms. Hudson gets up on

8 the witness stand and says something contrary to what

9 she told Ms. Morris, it is my intention to call

10 Ms. Morris.

11 THE COURT: But you don't have any

12 statements from Ms. Morris as a witness?

13 MR. SUMMEY: This is the only statement,

14 Judge, that I plan to use.

15 MR. GRAVES: And the State does have

16 that.

17 THE COURT: The statement that you are

18 holding up now, for the record, is the statement that

19 you got from Ms. Morris when she was employed with the

20 DA's office in discovery?

21 MR. SUMMEY: Yes, ma'am.

22 THE COURT: Do you know of anything to

23 the contrary?

24 MR. GRAVES: No, Your Honor.

25 THE COURT: I will remind counsel of


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1 their continuing obligation to disclose any statements

2 that may come to your knowledge.

3 MR. SUMMEY: Yes, ma'am. Also for the

4 record, I believe Mr. Graves has also spoken to

5 Ms. Morris -- and Mr. Warner, for that matter.

6 THE COURT: Anything else?


8 THE COURT: Ask the jury to come in,

9 please.

10 (Jury Present - 2:13 PM:)

11 THE COURT: You may call your first

12 witness.

13 MR. GRAVES: Your Honor, the State calls

14 Mr. James Marshall.

15 (James Marshall, being first duly sworn/affirmed,

16 testified as follows:)

17 DIRECT EXAMINATION BY MR. GRAVES - 2:14 PM:

18 Q. Mr. Marshall, could use please state

19 your full name for the Court.

20 A. James Junior Marshall.

21 Q. Where do you reside, Mr. Marshall?

22 A. 252 Lee Lane Road, Roanoke Rapids,

23 North Carolina.

24 Q. Mr. Marshall, are you employed?

25 A. Yes, I am.


15

1 Q. Where at?

2 A. West Fraser in Seaboard, North

3 Carolina.

4 Q. What do you do for West Fraser?

5 A. I am a throw worker.

6 Q. How long have you been employed

7 there?

8 A. Going on three years.

9 Q. The individual seated at the

10 defendant's table is named Marvin Adams. Are you

11 familiar with him?

12 A. Just on account of this incident.

13 Q. Have you ever seen him before?

14 A. Not prior to this incident.

15 Q. Just focusing on this incident, did

16 you see him on a certain date?

17 A. Yes.

18 Q. Was that January 3 --

19 MR. SUMMEY: Objection.

20 THE COURT: Don't lead your witness.

21 Q. Did you come into contact with

22 Mr. Adams on January 3 --



25 Q. Have you ever made contact with


16

1 Mr. Marvin Adams?

2 A. Yes, I have.

3 Q. Was that on January 3, 2011?



6 Q. What was that date, Mr. Marshall?

7 A. I can't really recall the date

8 itself. But it was sometime in January, January a year

9 or so ago. As a matter of fact, it has been almost two

10 years. I don't know the specific date.

11 Q. Focusing on that day, what happened

12 on that day that you made contact with Mr. Adams?

13 A. What I had done, I had just got off

14 work. The type of work that I do -- I remember it was

15 cold. My coveralls had got dirty, because sometimes I

16 have to clean up. What I did when I got off work, I

17 went to the laundromat on Tenth Street to wash my

18 coveralls. So I was sitting there halfway looking at

19 TV, but I was looking out the window, too. I saw this

20 gentleman come up. So --

21 Q. When you say this gentleman, who are

22 you referring to?

23 A. This gentleman right here. So he

24 came over where I was and asked me would I take him to

25 the bank. So I told him no. He asked me again, and I


17

1 told him no. So the third time he said, if you take me

2 to the bank, I'll give you $10. So I figured -- I said

3 I could leave my clothes washing and could take him to

4 the bank and get the $10 gas money or whatever and come

5 on back. And that's what I did.

6 Once we proceeded to the bank -- as a

7 matter of fact, he told me what bank to go to. As we

8 proceeded to the bank --

9 Q. What bank did he tell you to go to?

10 A. First Citizens.

11 Q. Was that in Roanoke Rapids?

12 A. Roanoke Rapids, uh-huh (yes).

13 Q. What happened next?

14 A. As we proceeded to the bank, he was

15 giving me a story about helping his aunt and that he

16 knew God and all of this. When he said that he knew

17 God, I was thinking to myself he was all right. But

18 the closer I got to the bank, he told me -- he said, I

19 just got out. I said, just got out of what? And he

20 said jail. And I said, oh, Lord, I am in trouble. But

21 I was close to the bank, so I took him on to the bank.

22 So when I got to the bank, I went around

23 to the back door, because he told me he had a check to

24 cash, and I assumed he was going in the bank. So when

25 I parked at the back door, he told me, he said, no, go


18

1 to the drive-through. So that's what I did; I went to

2 the drive-through.

3 So when I got to the drive-through, he

4 gave me the check, so I passed it on to the teller.

5 And we were just sitting there for a while, and the

6 teller, she kept on punching in numbers and kept

7 looking, and she was acting like something was wrong.

8 So I asked the teller -- I said, do he need to come in?

9 So at that time, he was getting all rowdy or whatever

10 you call it. But then she said no. I think she was

11 trying to verify the check or something.

12 MR. SUMMEY: Objection to what she was

13 trying to do.

14 THE COURT: Just tell us what happened.

15 A. So like I said, she was punching in

16 numbers, and it went from there. I asked her again, I

17 asked her -- I said, do he need to come in? Because it

18 was his check; it won't mine. So she said no. And so

19 a few minutes later she passed the check on back to me.

20 So I gave the check to him, and I proceeded to leave.

21 But I had this funny feeling something won't right.

22 So I got just about to Wendy's, and he

23 said, take me to another check-cashing -- some

24 check-cashing place. And I said, no. I was feeling

25 funny. I said, no, I can't take you nowhere.


19

1 So he asked me, he said, do you listen

2 to CDs or tapes? So I said yes. He said, well, you

3 know, I make them. He said, if you want some

4 sometimes, give me a call. He wrote down a name and a

5 number. So I put it in my glove compartment. And when

6 I got to Wendy's, I put him off. And that was the end

7 of that. I went back to the laundromat, and I got my

8 clothes and went on home. All the while I am having

9 this funny feeling.

10 So I was sitting home a few weeks after

11 that, and I saw the sheriff pass by. And when he

12 passed by, I guess he saw the truck or whatever, and he

13 backed up and came in the yard. So I went out, and

14 somehow we got to talking. And he came inside and

15 showed me a picture. And, sure enough, it was a

16 picture of me in the truck where I was passing the

17 check in to the teller. So he asked me about it and

18 asked me would I come to Halifax.

19 So I told him, I said, can I drive? So

20 he said yeah, so I figured -- I said, I'm driving; I'm

21 coming back. So, sure enough I drove on to Halifax.

22 When I got to Halifax, I think it was a

23 detective; I am not for sure. I believe it was Rooks.

24 So he saw me come in. So he took me back to some

25 little room, and he asked me what happened. And I told


20

1 him. And he left out, and another officer came in. An

2 officer or deputy with the Sheriff's department came in

3 and asked me what had happened, and I told him. And he

4 wrote a statement down or whatever, and he went out.

5 I sat for a little while, and they came back in and

6 told me everything was all right. And we just went

7 from there.

8 And from then on, it's been going

9 downhill all because of that incident. All I was doing

10 was trying to help somebody. But it is just

11 aggravating, because --

12 MR. SUMMEY: Objection; not responsive.

13 THE COURT: Ask another question.

14 Q. Mr. Marshall, backing up just a

15 little bit, you said that you passed a check to the

16 teller?

17 A. Right.

18 Q. Where did you get that check from?

19 A. I got the check from him.

20 Q. Did he hand it to you?

21 A. Yes, he did.

22 Q. Did you see him do anything with

23 that check before he handed it to you?

24 A. No, he didn't do anything. He just

25 passed it to me. I got the little slide out from the


21

1 teller part, and I stuck it in there along with some

2 driver's license.

3 Q. So you didn't have the check in your

4 possession?

5 A. No, sir.

6 Q. Did he tell you what to do with the

7 check when he handed it to you?

8 A. No. But he told me to take him to

9 the bank. So once he gave me the check at the

10 drive-through, I just passed it on to the teller.

11 Q. Before you passed it to the teller,

12 what did the teller say exactly?

13 A. Before I passed it to the teller,

14 what did the teller say?

15 Q. Yes, sir.

16 A. She didn't say anything.

17 Q. You stated that the teller started

18 punching in some numbers, and things got held up, and

19 you said that Mr. Adams got rowdy. What exactly was he

20 doing?

21 A. He started cussing, like he was

22 getting impatient or something.

23 Q. Go ahead.

24 A. That was it.

25 Q. Do you remember anything in


22

1 particular he may have said?

2 A. It was a cussing words, if I don't

3 make a mistake, like -- can I say it?

4 Q. Yes.

5 A. It was like, what the hell is wrong,

6 or something similar to that. It may have been a

7 little more drastic, but something similar to that.

8 Q. What was your impression right then

9 and there?

10 A. I had the gut feeling something

11 won't right. And, another thing, when he passed me the

12 check, you know, he was like sitting up in the truck

13 real high, where normally he was like slumped down and

14 stuff. I started thinking -- but, you know, I'm caught

15 up in a situation where -- I mean, I believe in giving

16 everybody the benefit of the doubt. And --

17 MR. SUMMEY: Objection; move to strike.

18 THE COURT: Overruled. Ask another

19 question.

20 Q. Mr. Marshall, you stated that

21 Mr. Marvin Adams gave you a name and said that he made

22 CDs. Do you remember what that name was?

23 A. If I don't make a mistake, I believe

24 it was Marvin High or Marvin Adams or something like

25 that on the paper. But, see, I just glanced at the


23

1 paper and put it in the glove compartment. Then when

2 the sheriff got with me and I went down to Halifax, you

3 know, I gave it to him. So that's the only time I

4 really looked at it.

5 Q. What did he state regarding CDs?

6 A. He makes them. And, you know, like

7 if I wanted some, all I had to do was call him.

8 Q. When you all were at the teller --

9 when you were in the drive-through at the bank talking

10 to the teller, did you tell the teller that you would

11 come into the bank?

12 A. No, sir.

13 Q. What exactly did you say?

14 A. When she was going through whatever

15 she was doing, like hesitant like she was trying to

16 check something, I asked her, I said, do he need to

17 come in? Because I didn't have any reason to go in.

18 Q. Did you sign anything on that check?

19 A. No, sir. I am going to put it like

20 this. By me going to that teller, passing --

21 MR. SUMMEY: Objection, Judge; not

22 responsive. The question was did he sign the check.

23 A. No, I didn't.

24 MR. GRAVES: If I may have a moment,

25 Your Honor?


24

1 THE COURT: Yes.

2 (Pause)

3 Q. Mr. Marshall, backing up just a

4 little bit, you said you were not familiar with

5 Mr. Adams before this day?

6 A. No, sir.

7 Q. Why did you let him get in your

8 truck?

9 A. Because I am a kind-hearted person.

10 I believe in helping people. And prior to this

11 situation, I was going to do a youth meditation about

12 the Wizard of Oz, and --

13 MR. SUMMEY: Objection, Judge.

14 THE COURT: Overruled. You may

15 continue.

16 A. I was going do a youth presentation

17 on the Wizard of Oz, how along Dorothy's life trying to

18 get back home, how she was helping people. See, I grew

19 up not having much, and somehow I am just a kind-

20 hearted person. And I helped people, up to this

21 situation, that I didn't even know. But, see, now it

22 won't happen again; you better believe that. It just

23 put me in a bad position, and --

24 MR. SUMMEY: Objection, Judge.

25 THE COURT: Sustained. Ask another


25

1 question.

2 MR. SUMMEY: Move to strike.

3 THE COURT: Denied.

4 Q. Mr. Marshall, since this incident

5 with Mr. Adams, what effect has it had on you?


7 THE COURT: Overruled.

8 A. In a sense, I guess killing is the

9 wrong word. But it just -- in a sense it destroyed my

10 life, because you're on edge; you don't know when the

11 sheriff is going to get you to come testify. And like

12 two weeks ago -- we plan a vacation every year --


14 THE COURT: Sustained. Ask another

15 question.

16 Q. Mr. Marshall, do you have any type

17 of criminal history?



20 MR. SUMMEY: May we approach?

21 THE COURT: You may.

22 (There was a bench conference, which was

23 not recorded.)

24 THE COURT: You may answer.

25 A. No, I don't.


26

1 Q. Have you ever been convicted of any

2 type of crime?

3 A. No more than speeding.

4 Q. You have gotten a speeding ticket

5 before?

6 A. Yes.

7 Q. Mr. Marshall, a few last little

8 details. You briefly mentioned that Mr. Adams gave you

9 a check to place into the tube to go up to the teller?

10 A. Right.

11 Q. Did he give you anything else with

12 that check?

13 A. A driver's license.

14 Q. Were you able to look at that

15 driver's license?

16 A. I didn't look at it, because he gave

17 it to me, so I just passed it on through.

18 Q. Was this your driver's license?

19 A. If it had been my driver's license,

20 chances are I wouldn't be sitting here.


22 THE COURT: Was it your driver's

23 license?

24 A. No, sir.

25 Q. At any point did you take anything


27

1 from Mr. Adams and pass it up to the teller? Did you

2 take something from him or something that belonged to

3 him without him handing it to you?

4 A. No, I didn't.

5 MR. GRAVES: No further questions, Your

6 Honor.


8 MR. SUMMEY: Thank you, Your Honor.

9 CROSS-EXAMINATION BY MR. SUMMEY - 2:30 PM:

10 Q. Mr. Marshall, where do you live,

11 sir?

12 A. 252 Lee Lane.

13 Q. And you testified a minute ago to

14 the members of the jury -- you said that when the

15 officer came to talk to you, you said he told you you

16 could come down to the police department; is that

17 right?

18 A. Right.

19 Q. So you just told them -- you said

20 you were driving, so you knew you were coming back?

21 A. Right.

22 Q. Do you mean -- do you mean by that

23 you weren't getting arrested?

24 A. No, I didn't.

25 Q. What did you mean when you said he


28

1 told you you could drive, so I'm coming back? What did

2 you mean by that?

3 A. Plain and simple, if I drove down

4 there, I was driving back.

5 Q. So that means if you drove down to

6 the police department, that means you weren't getting

7 arrested; correct?

8 A. Say that question again.

9 Q. When you said -- when you told the

10 members of the jury -- you said when the police said

11 they wanted to come and talk to you, you said you were

12 going to be driving home; right?

13 A. Right.

14 Q. You said, they said I could drive,

15 so that meant I was coming back?

16 A. Right.

17 Q. So that means you thought you were

18 going to be driving home; is that right?

19 A. I knew I was.

20 Q. So in other words, you didn't think

21 they were going to arrest you; is that right?

22 A. No.

23 Q. Were you afraid of being arrested?

24 A. No.

25 Q. Why didn't you go to the police


29

1 before they came to you if you thought something was

2 wrong?

3 A. Why didn't I go?

4 Q. Yes, sir.

5 A. I didn't know what was wrong, but I

6 had a gut feeling something was wrong.

7 Q. If you felt like something was

8 wrong, why didn't you go to the police?

9 A. And tell what?

10 Q. Tell what you saw.

11 A. Tell what I saw?

12 Q. Yes, sir.

13 A. I mean, what am I supposed to tell,

14 when the situation hasn't arose? I mean, I could just

15 stop any sheriff and tell them I took so-and-so to the

16 bank and blah-blah-blah?

17 Q. Well, isn't it true you are the one

18 that passed the check?

19 A. Oh yeah.

20 Q. Isn't it true that you are the one

21 caught on video?

22 A. Yes, sir.

23 Q. It was only because you were caught

24 on video passing the check -- that's why this officer

25 made contact with you; correct?


30

1 MR. GRAVES: Objection.

2 THE COURT: Sustained. He doesn't know

3 why an officer did what he did.

4 Q. Well, let me ask you this. Did this

5 officer not confront you about being on bank video in

6 your black Nissan truck?

7 A. It was not my truck, but they did.

8 Q. Whose truck was that?

9 A. My wife's.

10 Q. So it is your truck then?

11 A. No, sir.

12 Q. Is it not a truck that belongs in

13 your household?

14 A. Yes, sir.

15 Q. And you drive that truck?

16 A. Yes, sir.

17 Q. Do you drive that truck every day?

18 A. Mostly.

19 Q. Do you drive that truck every week?

20 A. Mostly.

21 Q. So it is your truck; correct?

22 A. No, sir.

23 Q. But it is a truck in your household;

24 is that correct.

25 A. The truck is not registered in my


31

1 name; therefore it is not mine.

2 Q. But you drive it every day; correct?

3 MR. GRAVES: Objection, Your Honor,

4 relevance.

5 THE COURT: Sustained.

6 Q. Do you have a key to that truck?

7 A. Yes, sir.

8 Q. And this officer made contact with

9 you at your residence; correct?

10 A. Correct.

11 Q. Based upon seeing you in a video?

12 A. Right.

13 Q. Based on what he told you; correct?

14 MR. GRAVES: Objection, Your Honor.

15 THE COURT: Based upon --

16 Q. Based upon what Officer Clark told

17 you, he saw you in a bank video; is that right?

18 A. Well, at first he showed me a

19 picture.

20 Q. Yes, sir. And that was a picture of

21 what?

22 A. Of me.

23 Q. It wasn't a picture of him; correct?

24 A. What?

25 Q. It wasn't a picture of him, was it?


32

1 A. No, it wasn't.

2 Q. It was a picture of you?

3 A. That's right.

4 Q. Passing a check?

5 A. Right.

6 Q. And that's all that picture showed;

7 correct?

8 A. Correct.

9 Q. When you spoke to the teller, it

10 would have been Ms. Hudson, is that right? Do you

11 recall who the teller was?

12 A. I believe it was her, but I didn't

13 speak to her. I mean -- clarify that.

14 Q. Speak to. Do you know what the

15 words speak to mean?


17 Q. You spoke to her; correct? You

18 spoke to Ms. Hudson; correct?

19 A. At one point, yes I did, at one

20 point.

21 Q. I am not confusing you, am I?

22 A. No. It's not like as soon as I

23 drove up, we held a conversation. At one point I did

24 speak to her.

25 Q. You also spoke -- you also had


33

1 occasion to talk to her and a DA today; correct?

2 A. To her?

3 Q. Yes, sir.

4 A. The teller?

5 Q. The DA and the teller.

6 A. The DA. I mean, I didn't have any

7 reason to speak to the teller.

8 Q. So you come to the teller window;

9 you speak to the teller?

10 A. No.

11 Q. Did she speak to you?

12 A. I mean, she spoke. But, see, it

13 won't like I held a conversation as soon as I got to

14 the teller. I spoke to her at some point.

15 Q. What was it like?

16 A. What was what?

17 Q. Tell me what happened. You pull up.

18 You -- let me back up. You said you pulled up to the

19 bank, and you went to the back door; correct?

20 A. That's right.

21 Q. And you asked him to get out of the

22 car and go in the bank; is that right?

23 A. That's not what I said.

24 Q. What did you say?

25 A. I said when I got to the bank, I


34

1 drove to the back door. The reason I drove to the back

2 door is he had a check to cash, so I am assuming he is

3 going inside the bank. So that's why I went to the

4 back door. I didn't say any time he said it.

5 Q. You gave a statement to Officer

6 Clark; correct?

7 A. I guess it was him.

8 Q. You gave a statement to some police

9 officer; is that right?

10 A. That's right.

11 Q. Did you write it in your own

12 handwriting?

13 A. Yes.

14 Q. Didn't the officer follow up behind

15 you in his handwriting with some questions and answers?

16 A. Yes.

17 Q. And you signed that statement?

18 A. Yes.

19 Q. And that would have been on

20 January 7, 2011; is that correct?

21 A. I don't know the date, but whenever

22 it happened.

23 Q. Which would have been four days

24 after this allegedly happened; correct?

25 A. I guess. I don't know the date.


35

1 Q. If it happened on January 3, 2011,

2 and the officer talked to you on January 7, that would

3 be four days later; correct?

4 A. That sounds right to me.

5 Q. So between January 3 and January 7,

6 you hadn't made any opportunity to talk to anybody

7 about anything that happened that day; is that right?

8 A. That's right.

9 MR. SUMMEY: May I approach, Your Honor?

10 (Defendant's Exhibit Number 1 was marked

11 for identification.)

12 Q. I am going to hand you what I have

13 marked as Defendant's Exhibit Number 1 and ask you to

14 look at this document. Would that be your handwriting,

15 the statement you gave to an officer on January 7?

16 THE COURT: Let him finish reviewing it

17 before you ask him any questions about it, please.

18 (Pause)

19 A. Okay.

20 Q. I couldn't hear you?

21 A. Yes.

22 Q. Take a moment and look at that

23 statement and see where in that statement you say

24 anything about going to the back door at the bank.

25 Take a moment and look at it and read your statement.


36

1 A. I didn't.

2 Q. Where did you say anything about in

3 your statement about asking him to get out of the truck

4 and go in the bank and deposit the check?

5 A. As a matter of fact, I didn't say

6 that.

7 Q. You didn't say that?

8 A. Unh-uh (no).

9 Q. What did you say about the back door

10 again?

11 A. I said when I took him to the bank,

12 he had a check to cash, and I am assuming he's going

13 inside. I never said he said it. So I drove to the

14 back, because I am assuming he's going in the inside.

15 He's got the check.

16 Q. Where did you say that in that

17 statement?

18 A. I didn't.

19 Q. Where do you say anything about

20 asking him to get out of your truck at the --


22 THE COURT: Ask your question.

23 Q. Where did you say anything in your

24 statement about him getting out of your truck at the

25 back door of the bank?


37

1 A. I didn't.

2 THE COURT: It doesn't say that in the

3 statement?

4 THE WITNESS: No, ma'am.

5 THE COURT: Did you testify to that,

6 that he got out at the back door?



9 Q. But you asked him to get out of your

10 truck?

11 A. No.


13 Q. Didn't you say you pulled --

14 THE COURT: Ladies and gentlemen of the

15 jury, if you could, go to the jury room for just a few

16 minutes. Please remember my previous admonitions to

17 you about discussing the case. Don't discuss the case

18 among yourselves. Don't allow your minds to be made up

19 or form an opinion about the guilt or innocence of the

20 defendant or express an opinion about the case as it is

21 thus far. If you will be in the jury room, I will call

22 for you shortly. Thank you.



25 we are outside the presence of the jury.


38

1 Mr. Marshall, did you testify that you

2 pulled up to the back door of the bank, and you did

3 that because you assumed that Mr. Adams was going into

4 the bank, because he told you he had a check to cash in

5 the bank?

6 THE WITNESS: Yes, ma'am.

7 THE COURT: And then did you testify

8 that Mr. Adams directed you to the teller lane and not

9 to the back of the bank, and then you went to the

10 teller lane? Is that what you testified to?

11 THE WITNESS: Yes, ma'am.

12 THE COURT: Did you at any point testify

13 that you told Mr. Adams to get out and go to the back

14 door?


16 THE COURT: Did you at any point testify

17 that Mr. Adams got out and went to the back door?


19 THE COURT: I believed I heard what you

20 testified to.

21 Mr. Summey, did you hear the same thing

22 that I heard?

23 MR. SUMMEY: Well, actually, Judge, I

24 may have been confused, but I thought he said he went

25 around to the back door, parked at the back door, and


39

1 asked him if he wanted to go, and he said no.

2 THE COURT: I don't believe he testified

3 to that during direct examination, and I don't believe

4 upon the Court's examination of him that he recalls

5 testifying to that. And the Court does not recall

6 hearing that.

7 If you would tailor your questions to

8 meet the testimony that we heard, I would appreciate

9 it.

10 Ask the jurors to come in.


12 THE COURT: Thank you, ladies and

13 gentlemen.

14 You may proceed, Mr. Summey.

15 Q. Mr. Marshall, as a result of your

16 involvement in this case, were you ever charged with a

17 crime?

18 A. No.

19 Q. Were you ever offered a polygraph

20 test?

21 A. No.

22 Q. Did you get the $10 from Mr. Adams?

23 A. No.

24 Q. Do you know where the check is now?

25 A. No.


40

1 Q. What about the identification that

2 you passed?

3 A. No.

4 Q. Were you ever shown the video of

5 yourself at the bank?

6 A. What?

7 Q. The video, were you ever shown a

8 bank video?

9 A. No.

10 Q. Do you know whether or not one

11 exists?

12 A. No.

13 Q. When you talked to Officer Clark,

14 did you give him a name of Michael Adams?

15 A. Whatever was on that paper -- I gave

16 him the paper he gave me.

17 Q. Or Marcus High?

18 A. Somebody -- I looked at it one time

19 and put it in my glove compartment, and that's the last

20 I saw it until I gave it to the sheriff.

21 Q. You gave the piece of paper to the

22 sheriff?

23 A. That's right.

24 Q. Was it handwritten notebook paper,

25 or was it like a small little piece of paper?


41

1 A. I guess the piece of paper was

2 probably about that wide (indicating), a little small

3 paper. What happened to it, I don't know.

4 Q. Do you know what name was written on

5 it?

6 A. It was Marvin High or Marvin Adams

7 or something. I glanced at it and put it in the glove

8 compartment, because I didn't have no more use for it.

9 Q. Could it have been Marcus or Michael

10 High?

11 A. It's a possibility. Like I said, I

12 can't remember the name.

13 Q. Were you not shown some photo

14 lineups in this case?

15 A. Yes, I was.

16 Q. When were you shown the photo

17 lineups?

18 A. I don't know the date, but the day I

19 went to Halifax. I can't recall the date.

20 Q. How many lineups were you shown?

21 A. Two.

22 Q. Who showed you those lineups? Do

23 you recall? Was it this officer, Mr. Clark?

24 A. No, it won't.

25 Q. Somebody else?


42

1 A. Somebody else.

2 Q. Do you remember how many photos you

3 were shown in those lineups?

4 A. No. I think it was at least -- I am

5 going to say at least seven or nine maybe. I don't

6 know. I know it was more than five.

7 Q. But you were shown two lineups; is

8 that right?

9 A. Right.

10 Q. You said you never saw a video; is

11 that right? They never showed you a video?

12 A. Right.

13 Q. And you were never charged?

14 A. Right.

15 Q. And is it your testimony that you

16 never said, I could come in if you want me to to this

17 teller right here, Ms. Hudson?

18 A. Right.

19 Q. You never said that?

20 A. I never said that.

21 Q. You never said to her -- the driver

22 said the check was for CDs. You said the check -- did

23 you ever tell --

24 MR. SUMMEY: Let me back up and rephrase

25 the question, Judge.


43

1 THE COURT: Thank you.

2 Q. Did you ever tell Ms. Hudson that

3 the check she was passed was for CDs of music?

4 A. No.

5 Q. You never told her that?

6 A. No.

7 Q. Suffice it to say, all the

8 involvement involving this check was done between you

9 and Ms. Hudson; is that right?

10 A. No.

11 Q. Everything that was done with this

12 check at the bank was done between you and Ms. Hudson;

13 is that right?

14 A. No, it's not right.

15 Q. What was done by somebody else?

16 A. He passed me the check. I in turn

17 put it in the slot and put it in. So that's the

18 involvement. It was three people involved.

19 Q. When the officer asked you how tall

20 the person was, you couldn't give him a height; is that

21 right?

22 A. No, not really. I mean, I am not

23 good at heights.

24 Q. When he asked you his complexion,

25 you said medium complexion; is that right?


44

1 A. I believe so.

2 Q. But you couldn't give him a name,

3 height, description, none of that; is that right?

4 A. No.

5 MR. SUMMEY: Nothing further.

6 REDIRECT EXAMINATION BY MR. GRAVES - 2:48 PM:

7 Q. Mr. Marshall, you stated to Attorney

8 Summey that when the deputies came out to investigate,

9 that you drove down to the Sheriff's office?

10 A. Right.

11 Q. At any point did you think you were

12 getting arrested?

13 A. Unh-uh (no).

14 Q. Why not?

15 A. Because I knew I had not --



18 Why not?

19 THE WITNESS: Because point-blank I

20 hadn't done anything. But if --

21 THE COURT: Does it mean -- does it lead

22 to why you didn't think you were getting arrested?

23 THE WITNESS: I believe so.

24 THE COURT: All right.

25 THE WITNESS: Because if you know you


45

1 haven't done anything -- I mean, that's what it boils

2 down to me. I mean, it's just, plain and honest,

3 that's all it boils down to.

4 Q. Mr. Marshall, Attorney Summey asked

5 you about whether or not you knew where the check or ID

6 is today. Did you go out and do your own investigation

7 to find out where it was?

8 A. No, sir. It won't my check. I

9 mean, at that point when --

10 THE COURT: No, sir. You didn't do

11 anything?

12 THE WITNESS: No, I didn't.

13 Q. When the check and ID came back from

14 the teller, what did you do with it?

15 A. I gave it to the defendant.

16 Q. Attorney Summey asked you about a

17 video, and you said you were not shown a video. Were

18 you shown a picture or anything?

19 A. I was shown a picture.

20 Q. What was in that picture?

21 A. Me sticking my arm to the little

22 booth for the check to go in the teller, along with the

23 truck on the driver's side. And also in one picture --

24 I forgot which picture it was -- it was a picture of

25 another person in the truck, but on the picture, you


46

1 couldn't make the person out.

2 Q. Attorney Summey briefly mentioned

3 you were not really able to give a good description of

4 the individual in your truck?

5 A. Right.

6 Q. Do you see the individual that was

7 in your truck on that day in the courtroom today?

8 A. Yes, I do.

9 Q. Can you point him out?

10 A. Right there.

11 MR. GRAVES: The State asks that the

12 record reflect that Mr. Marshall has identified

13 Mr. Adams.

14 THE COURT: Let the record so reflect.

15 Q. Mr. Marshall, is there any doubt in

16 your mind today that the individual at the table you

17 just pointed to is the same one that was in your truck?

18 A. Believe me, it is no doubt. I have

19 been tussling with this thing for almost two years. It

20 is no doubt.


22 Honor.


24 RECROSS EXAMINATION BY MR. SUMMEY - 2:52 PM:

25 Q. You said tussling for two years?


47

1 A. Going on two years.

2 Q. You're saying this happened back in

3 2010?

4 A. Almost two years. I don't know

5 exactly the date. I think it was 2011. I am not sure

6 about the date. I don't keep no date.

7 Q. But you do admit to the members of

8 the jury you said, they're letting me drive down there,

9 so I know I'm coming back. You did say that, didn't

10 you?

11 A. I said that.

12 Q. You do admit there were pictures of

13 you shown -- you saw pictures of you at the bank; is

14 that right?

15 A. That's correct.

16 Q. You doing everything with the check;

17 is that right?


19 A. Yes, sir.

20 Q. You're handling the check?


22 MR. SUMMEY: I'm sorry, Judge.

23 Q. You're handling the check?

24 A. It all depends on what part of

25 handling you're talking about.


48

1 Q. Does the video or picture show him

2 passing you a check?

3 A. No.

4 Q. Have you ever seen a picture of you

5 passing him a check back?

6 A. No.

7 Q. Everything in that video -- I'm

8 sorry --

9 A. As a matter of fact --

10 THE COURT: I think we have firmly

11 established that he has not seen a video, so if you

12 can, rephrase your question.


14 Q. Is there anything in any picture

15 that you have been shown by Officer Clark or the DA's

16 office showing anything of you passing any check back

17 to him?

18 A. No.

19 Q. Basically you passed the check

20 through the tunnel of the bank, the drive-through bank,

21 and you took the check out of the little bubble thing,

22 the glass compartment, and then you drove off?

23 A. No.

24 Q. Did you pass it back to him?

25 A. Yes, I did.


49

1 Q. So there should be a picture?

2 A. No, sir.


4 THE COURT: Objection sustained.

5 Q. You say you passed the check back to

6 him?

7 A. Right.

8 Q. In your vehicle?

9 A. No, in my wife's vehicle.

10 Q. In your wife's vehicle, I'm sorry.

11 MR. SUMMEY: Nothing further, Judge.

12 THE COURT: Thank you, Mr. Marshall.

13 You may step down.

14 (The witness left the stand.).

15 MR. GRAVES: Your Honor, the State is

16 curious as to whether or not Mr. Marshall can be

17 released.

18 THE COURT: I have no objection to that.

19 Mr. Summey, do you have any objection to releasing

20 Mr. Marshall?

21 MR. SUMMEY: No, ma'am.

22 THE COURT: Mr. Marshall, you are

23 released. Thank you, sir.

24 You may call your next witness.

25 MR. GRAVES: The State calls Ms. Christy


50

1 Hudson.

2 (Christy Hudson, being first duly sworn/affirmed,



5 Q. Ms. Hudson, could you please state

6 your full name for the court.

7 A. Christy Lucas Hudson.

8 Q. Where do you reside, Ms. Hudson?

9 A. In Roanoke Rapids.

10 Q. Where are you employed?

11 A. First Citizens Bank.

12 Q. In what capacity?

13 A. A customer service rep.

14 Q. How long have you been employed with

15 that bank?

16 A. Six years today.

17 Q. In your capacity as a customer

18 service rep, do you sometimes work as a teller?

19 A. Yes. We were formerly called

20 tellers. We just recently had our name changed.

21 Q. Were you employed with that bank on

22 January 3, 2011?

23 A. Yes, sir.

24 Q. Do you remember some incidents

25 taking place at that bank concerning Mr. Marvin Adams


51

1 and Mr. James Marshall?

2 A. Yes, sir.

3 Q. Could you tell us what exactly

4 happened?

5 A. They came to the drive-through in

6 the second lane. They came to the Automater. And I

7 noticed that it was two black males in the vehicle.

8 And the driver put the item, which was a check and

9 driver's license, in the Automater and sent it over to

10 me. And I took it out and examined it and noticed it

11 was a check from Ms. Robinson, who I have known for

12 quite some time. I have been waiting on her and her

13 husband for a while, and I've built up a rapport with

14 them to kind of know what kind of business they

15 conduct.

16 And I looked at it, and I just had a gut

17 feeling that something about it just wasn't right. I

18 can't really remember exactly how it was -- where it

19 was payable. I can't remember exactly how it was paid,

20 but I remember the last name Adams, and I remember it

21 started with an M. I think I eventually told Josh it

22 may have been Michael; I was just trying to remember

23 off the top of my head what the name was.

24 And I talked to my supervisor and told

25 her that I just didn't feel like something was right


52

1 with this check, that it appeared it had been altered.

2 And I think I looked at the signature card of Mr. and

3 Ms. Robinson and noticed that the writing --


5 THE COURT: Grounds?

6 MR. SUMMEY: (No response)


8 A. I compared signatures and the

9 writing, and it just didn't look right. Like I said

10 before, I felt like this was something out of the

11 ordinary for Mr. and Ms. Robinson to do. So I spoke

12 with my supervisor. And I did not have grounds to keep

13 the check or the driver's license, and I sent it back

14 to the driver of the truck.

15 And he asked me -- and I don't remember

16 the wording exactly. He asked me, do I need to come in

17 or do we need to come in. I don't remember exactly how

18 he worded it, but it was to the nature of do we need to

19 come in. And I said no. And I sent the check and the

20 driver's license back, and they left.

21 Q. Can you describe the demeanor of the

22 driver of that truck?

23 A. The driver, he was fine. He was

24 pleasant actually.

25 Q. Did he act agitated or anything when


53

1 you returned the check?

2 A. No, sir.

3 Q. From your vantage point in the bank,

4 could you get a good look at who exactly these

5 individuals were?

6 A. No.

7 Q. Going back a little bit, you said

8 you are familiar with Ms. Robinson. Is that Ms. Joanne

9 Robinson?

10 A. Yes, sir.

11 Q. Is she seated behind me in the

12 courtroom?

13 A. She is.

14 Q. How exactly did you know

15 Ms. Robinson?

16 A. Just from the bank.

17 Q. Approximately at that point how long

18 had you known her?

19 A. Well, I have been waiting on her the

20 last six years. And I had actually been employed with

21 First Citizens previous to that, and I had waited on

22 them then as well. And I am actually very familiar

23 with her husband. He actually bartended at a couple of

24 functions at a country club that I have been to. I

25 have had interaction with him as well.


54

1 Q. When you stated you looked at the

2 check and you said something just wasn't right, what

3 exactly do you mean by that?

4 A. I guess it's a gut feeling. I have

5 been doing it so long and knowing it just didn't seem

6 like Ms. Robinson would do anything and pay that kind

7 of money for CDs.

8 Q. Do you remember the amount on that

9 check?

10 A. No, sir.

11 Q. Did it appear to have been altered?

12 A. Yes, sir.

13 Q. Do you remember what portions of the

14 check had been altered?

15 A. It look like the payee had been

16 altered and written out, and the boxed amount looked

17 like it had been altered. But I do not remember the

18 amount.

19 Q. When you say the payee had been

20 altered, what exactly do you mean?

21 A. Where the check -- who it is made

22 payable to. It was something -- it was like it was

23 written -- normally it is written on one line. And I

24 think I remember something being written above it. And

25 that is just kind of out of the ordinary when you write


55

1 a check to someone.

2 Q. When you stated you had no grounds

3 to keep the check or the driver's license, what exactly

4 do you mean?

5 A. I couldn't accuse the driver or the

6 passenger of doing anything involving that check

7 without talking to Ms. Robinson. I did try to contact

8 her that day while they were actually sitting in the

9 drive-through.

10 Q. Were you successful in your attempt

11 to contact Ms. Robinson?

12 A. No, sir.

13 Q. Do you have an idea of the

14 approximate time that took place?

15 A. No, I don't.

16 Q. Were you able to eventually get in

17 contact with Ms. Robinson?

18 A. She actually called back the next

19 day.

20 Q. What was the scope of that

21 conversation?

22 A. I really don't remember. But I do

23 know that she came to the bank, and she said that she

24 did not write a check to this person. And her and her

25 husband both came to the bank and closed their account.


56

1 Q. When you said for CDs, that the

2 check was for CDs, how did you learn that?

3 A. It was written in the memo part. I

4 remember something of the nature of saying it was for

5 CDs.

6 Q. And you said that you did not think

7 that Ms. Robinson would write a check for that amount

8 for CDs?

9 A. Right.

10 Q. Ms. Hudson, did you eventually meet

11 with Deputy Josh Clark?

12 A. Yes.

13 Q. What was that in regard to?

14 A. The check.

15 Q. When you first met with Deputy

16 Clark, what was the scope of that conversation?

17 A. Just basically what had happened, to

18 see if I could describe the vehicle, which I said it

19 was a dark-colored truck, a single cab truck, and

20 basically there were two black males in the vehicle.

21 Q. Ms. Hudson, you can be completely

22 honest with me. Do you remember everything that

23 happened to a tee that day?

24 A. No, sir.

25 Q. But when you spoke to Deputy Clark,


57

1 did you tell him what happened when it was fresh in

2 your memory?

3 A. I did.


5 Honor.



8 Q. Ms. Hudson, did Deputy Clark ever

9 take a statement from you?

10 A. Verbal.

11 Q. A verbal statement?

12 A. Uh-huh (yes).

13 Q. As a matter of fact, he wrote it

14 down in about four lines; is that right?


16 A. I didn't see it.

17 Q. You don't know if the ID that was

18 passed to you belonged to the driver or the passenger,

19 do you?

20 A. No, sir.

21 Q. You didn't take down a copy of the

22 check?

23 A. If I am not mistaken, I wrote down

24 his name. But other than that, no.

25 Q. You didn't make a copy of the check?


58

1 A. No, sir.

2 Q. You didn't make a copy of the ID?

3 A. No, sir.

4 Q. Again, you didn't know if the

5 license or identification that was passed to you

6 belonged to the driver or the passenger?

7 A. No.

8 Q. Do you all have video at the bank?

9 A. We do.

10 Q. What type of video equipment is the

11 bank equipped with?

12 A. Cameras.

13 Q. Are they still cameras, ones that

14 catch like a photo, or are these cameras that catch

15 motion, video motion?

16 A. They are motion cameras as far as I

17 know.

18 Q. Is it continuous motion, or is it

19 the type that is --

20 A. As far as I know, they are.

21 Q. So there is some video -- there

22 would be video camera surveillance that would show this

23 truck coming to that teller window?

24 A. Uh-huh (yes).

25 Q. And there would be video camera


59

1 surveillance showing what happened at the window with

2 that truck?


4 THE COURT: Rephrase your question.


6 Q. Would the video camera surveillance

7 equipment, would it show what happened from the window

8 of the car to the machine that you put the check or

9 your currency in, your business in, to send to the

10 bank?

11 A. Uh-huh (yes).


13 Q. What if anything would the -- what

14 would it show?

15 THE COURT: We don't know what would it

16 show. That is speculation on her part. Rephrase your

17 question.

18 Q. Do you know if there was video

19 equipment or if it was working on January 3, 2011?

20 A. As far as I know, it was.

21 Q. Do you have any knowledge as to

22 whether or not any officer with the Sheriff's

23 department looked at the video?

24 A. No. I pretty sure they did, but I

25 am not 100 percent positive, no.


60

1 Q. Do you know if there was video that

2 was preserved from January 3, 2011?

3 A. That's all up to our security. We

4 don't have any say-so in what gets shown.

5 Q. Did you ever take an opportunity to

6 look at the video surveillance?

7 A. No. I saw pictures.

8 Q. You saw pictures?

9 A. Uh-huh (yes).

10 Q. Where did you get the pictures from

11 that you saw?

12 A. I really don't remember.

13 Q. Do you know if Officer Clark -- you

14 don't know where they came from?

15 A. No. I think officer Clark showed

16 them to me, but I'm not 100 percent positive.

17 Q. Do you know where he would have

18 gotten them from?

19 A. I'm pretty sure he got them from the

20 bank.

21 Q. But do you know where he got them

22 from?

23 A. No.

24 Q. The driver in this case did all the

25 talking; is that right?


61

1 A. He did.

2 Q. And the driver gave you the ID;

3 correct?

4 A. Yes.

5 Q. You don't know if that was his ID or

6 the passenger's ID; is that right?

7 A. No.

8 Q. And the driver -- let me back up.

9 Officer Clark never took a formal written statement

10 from you; is that right?

11 A. Right.

12 Q. And this was back in January of

13 2011; correct?

14 A. Uh-huh (yes).

15 Q. At some point in August of 2011 you

16 had an occasion to talk to a young lady who worked at

17 the DA's office named Kanter Morris?

18 A. I did.

19 Q. She was an assistant DA that was

20 assigned to this case; is that right?

21 A. Correct.

22 Q. How was it that you were able to

23 come into contact with her?

24 A. She called me.

25 Q. She called you and said, come down


62

1 here --

2 A. Uh-huh (yes).

3 Q. -- because she wanted to meet with

4 you; is that right?

5 A. Right.

6 Q. Did she tell you what it was in

7 relation to?

8 A. No, I don't think so.

9 Q. When you got down here, what if

10 anything did you say to her, and what did she say to

11 you?

12 A. Basically going over the same

13 situation as to what transpired that day.

14 Q. She took down a statement from you;

15 is that right?

16 A. As far as I know.

17 Q. And these were basically notes about

18 what happened; is that right?

19 A. Right.

20 Q. Based on your recollection?

21 A. Right.

22 Q. Would you say your recollection back

23 in August would have been a little better than it is

24 today?

25 A. No. I mean, it could have been, I


63

1 guess.

2 Q. It would have been a lot fresher

3 then back in August of last year?

4 A. It would have been a lot fresher

5 back in January of last year.

6 Q. Yes, ma'am. So from January to

7 August, we are now in July, a whole year later from

8 August; is that right? Your statement that you gave --



11 Q. The statement you gave to Ms. Morris

12 was on August 22, 2011; is that right?

13 A. I don't know the date, but I am sure

14 that's right.

15 MR. SUMMEY: If I may approach?



18 THE COURT: Ladies and gentlemen, it is

19 time to take our afternoon break now. I will remind

20 you you have a duty not to talk among yourselves about

21 this case. It is your duty not to talk to the parties,

22 witnesses, or counsel about anything. It is your duty

23 not to talk with anyone else or allow anyone else to

24 talk or say anything about this case in your presence.

25 If anyone communicates or attempts to communicate with


64

1 you about this case, you must report that to the Court




5 Please be back in the jury room at 3:25,

6 and we will proceed at that time. Thank you.




10 Ms. Hudson, when you spoke with

11 Ms. Morris, who was then an assistant district

12 attorney, and she took some notes, did you ever see

13 what it was that she was writing?


15 THE COURT: Did you ever sign or adopt

16 what it was that she was writing?

17 THE WITNESS: No.

18 THE COURT: So in the conversation with

19 her, did you do anything other than talk?

20 THE WITNESS: No, that was it.

21 THE COURT: If you are going to question

22 this witness regarding a statement, the Court does not

23 view this as a statement, since there was no adoption

24 by her of it. I mean, I don't have any problem with

25 you talking with her about the notes if you want to


65

1 talk with her about the notes. But I do take issue

2 with you characterizing it as a statement by her,

3 because it was not a statement.

4 MR. SUMMEY: Your Honor, let me ask you

5 this while we are outside the presence of the jury.

6 Can I ask her, do you recall telling Ms. Morris that

7 the driver said that the check was for CDs?

8 THE COURT: You can ask her what her

9 recollection of the conversation was that she had with

10 Ms. Morris, yes. But she has not adopted this is a

11 statement by her, and it was not written by her. It

12 was simply an assistant district attorney's notes on a

13 conversation with her.


15 THE COURT: We'll be at ease until 3:25.

16 (Recess - 3:14 PM to 3:30 PM)

17 THE COURT: Ask the jurors to come back,

18 please.


20 THE COURT: Mr. Summey, you may

21 continue.

22 Q. Ms. Hudson, you do recall having a

23 conversation with Ms. Morris in August of 2011

24 regarding this case; is that right?

25 A. I do.


66

1 Q. Do you recall her taking notes?

2 A. I do.

3 Q. Do you recall telling her the driver

4 asked if there was a problem with the check?

5 A. Yes.

6 Q. Do you recall telling her that the

7 driver said he could come in if you want?

8 A. Like I said earlier, I don't

9 remember if he said I or he. I know it was to the

10 nature of, do we need to come in?

11 Q. Did you ever make a statement that

12 the driver said the check was for CDs?

13 A. I don't recall making that

14 statement, no.

15 Q. You said that the driver told you

16 okay and didn't get ugly?

17 A. No, the driver was not ugly at all.

18 Q. And he just drove away; is that

19 right?

20 A. Yes, sir.

21 Q. You also recall saying you thought

22 you may have returned the check to the driver?

23 A. Yes, I did return the check.

24 Q. But you couldn't accuse him of a

25 crime at that point; is that correct?


67

1 A. Correct.

2 Q. Just suspicion something wasn't

3 right?

4 A. Correct.

5 Q. And basically the driver was the

6 only person you had interaction with; is that right?

7 A. That's correct.

8 Q. Ma'am?

9 A. Yes, sir.

10 Q. Did you ever see him, the driver,

11 doing anything with the check once it came back to him

12 through the tunnel?

13 A. No.

14 Q. You didn't see anything?

15 A. No.

16 Q. And you didn't photocopy the check;

17 is that right?

18 A. No.

19 Q. Nor the ID?

20 A. No.

21 Q. You don't know how much the check

22 was written for?

23 A. No, sir.

24 Q. Or who signed the check?

25 A. No.


68

1 Q. Do you know anything about the check

2 other than it was a check that looked suspicious?

3 A. Correct.

4 Q. What is your normal practice for

5 someone who is trying to cash a check and it looks

6 suspicious or something doesn't look right? Do you all

7 have a protocol when something like that happens?

8 A. First we try to call the owner of

9 the account. I can't accuse a customer of anything

10 without talking to the owner first.

11 Q. Then what?

12 A. Then what?

13 Q. Is that it?

14 A. Yes, basically.

15 Q. No money was ever given; is that

16 right?

17 A. No, sir.

18 Q. The check was not cashed?

19 A. No.

20 Q. And the victim was not out of

21 anything, is that right, Ms. Robinson?

22 A. Correct.

23 Q. You said at some point her and her

24 husband came in and closed the account?

25 A. Correct, the next day.


69

1 MR. SUMMEY: I have nothing further,

2 Judge.


4 Q. Ms. Hudson, Attorney Summey asked

5 you about a statement that you made to Ms. Morris in

6 August of 2011?

7 A. Correct.

8 Q. And I remember you telling him that

9 your memory would have been better in January of 2011

10 as opposed to August of 2011. Is that still the case?

11 A. Yes.

12 Q. You stated to Attorney Summey when

13 he asked you if the check was cashed -- had the

14 transaction gone as normal and you had not stopped and

15 gave the check back, could you fairly say that you

16 would have normally cashed it?

17 A. If I didn't have suspicions about

18 it, I probably would have.

19 Q. Just backing up a little bit, what

20 caused those suspicions that prevented you from cashing

21 that check?

22 MR. SUMMEY: Objection; asked and

23 answered.


25 A. Just that the check looked altered.


70

1 And like I said previously, my gut told me something

2 was just not right about the check, that it seemed out

3 of the ordinary from Ms. Robinson to do.

4 Q. Were you later able to confirm your

5 suspicions?

6 A. Yes.

7 Q. And what was the result?

8 A. Ms. Robinson came in and said that

9 she did not write the check. And they closed their

10 account.


12 Honor.


14 Q. Mr. Graves asked you if your memory

15 would have been better in January versus August; is

16 that right?

17 A. Right.

18 Q. And your memory would have been

19 better in August than July of this year; is that right?

20 A. Uh-huh (yes).

21 Q. What you said back in August would

22 have been more on point memory-wise -- what you said

23 back in August would have been fresher in your mind

24 versus July, like today?

25 A. Probably so, yes.


71

1 MR. SUMMEY: Nothing further Judge.

2 THE COURT: You may step down.

3 Any objection to us releasing her from

4 her subpoena?


6 MR. GRAVES: No.

7 THE COURT: She is released.

8 (The witness left the stand.)

9 MR. GRAVES: Your Honor, next the State

10 calls Ms. Joanne Robinson.

11 (Joanne Robinson, being first duly sworn/affirmed,



14 Q. Ms. Robinson, could you please state


16 A. Joanne Reid Robinson.

17 Q. Where do you live at, Ms. Robinson?

18 A. 39 Bowser Street, Lincoln Heights,

19 Roanoke Rapids.

20 Q. How long have you lived in that

21 area?

22 A. 35 years.

23 Q. Are you employed, Ms. Robinson?

24 A. Yes.

25 Q. What do you do?


72

1 A. I am employed with Cofield Funeral

2 Home.

3 Q. Ms. Robinson, directing your

4 attention to January 3, 2011, do you remember placing a

5 check in the mail?

6 A. Yes.

7 Q. What type of check was it?

8 A. It was a personal check.

9 Q. What was that for?

10 A. It was for American Labels.

11 Q. Is that who it was made out to?

12 A. Yes.

13 Q. What was the amount of that check?

14 A. $10.42.

15 Q. Do you remember the check number?

16 A. No, I don't remember the number

17 exactly.

18 Q. Do you remember getting -- at some

19 point after you placed the check in the mail, do you

20 remember giving the deputy a check number?

21 A. Not that same day, because I told

22 him I had to go back home and look. And I called and

23 gave him the number.

24 Q. How were you able to figure out that

25 number?


73

1 A. I keep a record. And I went back to

2 my checkbook and my label papers.

3 Q. Around what time did you place that

4 check in the mail?

5 A. I placed it around quarter to 10.

6 Q. Is that 10 a.m.?

7 A. Right.

8 Q. Could you describe how your mailbox

9 is situated in regards to your house. Is it out in

10 front of your house?

11 A. No. It's on my porch. It's a

12 mailbox attached to the house. And I take a clothespin

13 and pin the letter on the mailbox.

14 Q. Why do you do it like that?

15 A. So the mail carrier can see it.

16 Q. When the mail carrier is walking

17 down the road picking up mail, is it easy to see that

18 envelope pinned to the outside of the mailbox?

19 A. Yes, it is.

20 Q. About how far is your house from the

21 road?

22 A. About from here to the back row

23 where the jurors are sitting.

24 Q. And from that distance, it is easy

25 to see the envelope pinned to the outside of the


74

1 mailbox?

2 A. Yes.

3 Q. And, Ms. Robinson, you stated you

4 placed your check in the mail around quarter to 10 a.m.

5 What happened next?

6 A. Well, I had planned to go to Rocky

7 Mount. So I placed the check on the mailbox and went

8 back in the house and got my purse and got my car out,

9 and I left. And I did not return until between 5:30

10 and 6:00 O'clock that afternoon.

11 Q. What were you doing in Rocky Mount

12 that day?

13 A. Shopping.

14 Q. And after you returned home, what

15 happened next?

16 A. Well, I took my stuff out of the car

17 and just mostly messed around. I didn't check my

18 answering machine until that night when I got ready to

19 go to bed. I told my husband, I said, the girl from

20 the bank called. She wanted one of us to call her. I

21 said, but I am going to have to wait until tomorrow,

22 because it's too late to call her now. And I looked at

23 the caller ID, and she called at 3:59.

24 Q. That's 3:59 p.m.?

25 A. In the afternoon.


75

1 Q. When you say the girl from the bank,

2 are you talking about Ms. Christy Hudson, who was here

3 earlier?

4 A. Yes.

5 Q. How long had you known her?

6 A. Some years.

7 Q. And did you have a good relationship

8 with her?

9 A. Yes. Mainly when I go to the bank,

10 whatever my business was, she would always speak and

11 ask how I was doing and my husband was doing.

12 Q. You said you received the voicemail

13 message stating that you needed to call Ms. Hudson.

14 What happened next?

15 A. I called Ms. Hudson the next

16 morning. And she told me -- she said someone came to

17 the bank with a check, and it didn't look right. She

18 said, so I wouldn't cash it. She told me that I needed

19 to come into the bank and change that account. So I

20 told her I would be there in 30 minutes. So me and my

21 husband went on to the bank and changed it. We talked

22 to Tracy, and we closed that account and opened another

23 one.

24 Q. Why did you take that course of

25 action?


76

1 A. Because that was the first time I

2 ever had that to happen to me. And I didn't know if

3 that check was going to be cashed or whether they would

4 go and get a counter check and put that number on it or

5 what. And Tracy showed me a tape, but I didn't know

6 neither one of them in the truck.

7 Q. Before that date, had you ever seen

8 Mr. James Marshall, the guy who testified earlier?

9 A. No.

10 Q. Do you even know him other than

11 through this incident?

12 A. No.

13 Q. Do you know Mr. Marvin Adams seated

14 at that table?

15 A. No.

16 Q. Had you ever seen him before?

17 A. No.

18 Q. Did you write a check to Mr. Adams?

19 A. No.

20 Q. Did you write a check to Michael

21 High?

22 A. No.

23 Q. What about Marvin High?

24 A. No.

25 Q. What about Michael Adams?


77

1 A. No.

2 Q. That check that you placed in the

3 mail, who was it addressed to?

4 A. American Labels.

5 MR. GRAVES: No further questions.


7 Q. Ms. Robinson, did you ever write a

8 check to Mr. Marshall, James Marshall?

9 A. No.

10 Q. Do you know Mr. Marshall?

11 A. No.

12 Q. Do you have next-door neighbors?

13 A. Yes.

14 Q. They live right beside you?

15 A. Yes.

16 Q. Are they on both sides of you?

17 A. One side.

18 Q. Do you know if anyone ever talked to

19 any of your neighbors to see if they saw anything

20 unusual or strange that day?

21 A. No.

22 Q. Did you talk to any of your

23 neighbors?

24 A. No.

25 Q. Did the check ever clear?


78

1 A. Not that I know of. I haven't ever

2 seen the check anymore.

3 Q. So you weren't out any money; is

4 that right?

5 A. Right.

6 Q. You said somebody showed you a

7 lineup or showed you some photos?

8 A. Showed me the pictures at the bank.

9 Q. You said Tracy?

10 A. If I am not mistaken, her name is

11 Tracy, one of the office girls.

12 Q. She showed you a picture of?

13 A. Off the video.

14 Q. Of what?

15 A. Of the truck at the drive-through.

16 Q. And you didn't -- you weren't able

17 --

18 A. I didn't know the truck, and I

19 didn't know the people.

20 Q. You gave a handwritten statement to

21 law enforcement at some point in your own handwriting;

22 is that right?

23 A. No, I did not write a statement for

24 nobody.

25 Q. You didn't write a statement. Did


79

1 somebody write a statement on your behalf?

2 A. If anybody wrote it, it must have

3 been the sheriff, because I didn't write a statement

4 for nobody.

5 Q. Did you ever tell them that someone

6 named Michelle called you from First Citizens Bank?

7 A. I think the girl could have been

8 named Michelle or Tracy; I can't remember which one it

9 was.

10 Q. She said at that point it was a

11 black male in the truck that came to the drive-through;

12 is that right.



15 MR. SUMMEY: If I may approach, Judge.

16 THE COURT: You may.

17 Q. Ms. Robinson, take a moment to look

18 at that, please.

19 (Pause)

20 Q. You didn't write that; is that

21 right?

22 A. No, I did not write this. If I

23 recall, I didn't write anything. When I left home

24 after I went to the bank, I went to the police station

25 in Roanoke Rapids. A sheriff came out there. I don't


80

1 recall who he was.

2 Q. So somebody took those notes? Do

3 you know --

4 A. He probably took notes.

5 Q. Did they read it back to you what

6 they wrote?

7 A. No, he didn't read it back to me.

8 Q. Did they allow you to read it?

9 A. Yes, he allowed me to read it.

10 Q. That is not what you told them, or

11 it is what you told them?

12 A. Say what now?

13 Q. Is that what you told them, or is

14 that not what you told them?

15 MR. GRAVES: Objection. I think these

16 are the deputy's notes.

17 MR. SUMMEY: I am trying to establish

18 whether or not she --

19 THE COURT: Have you ever read that

20 before?

21 THE WITNESS: No.

22 THE COURT: You have never seen this

23 before?

24 THE WITNESS: I have never seen these

25 before.


81

1 THE COURT: It doesn't have your

2 signature on it?

3 THE WITNESS: No, it does not.

4 MR. SUMMEY: Your Honor, I was going to

5 ask if that is what she told law -- if she recalls if

6 that is what she told law enforcement, the notes at the

7 bottom.

8 THE COURT: Objection is sustained.

9 Q. Let me ask you this, Ms. Robinson.

10 You do live at 39 Bowser Street in Roanoke Rapids; is

11 that right?

12 A. Yes, sir.

13 Q. And you do work for Cofield Funeral

14 Home in Weldon; is that right?

15 A. Yes, I do.

16 Q. And at the time -- you since closed

17 this account, but at some point did you tell an officer

18 that the unknown check was check number 3352?

19 A. Yes.

20 Q. And that it was written for $10?

21 A. I told him $10.42, if I made no

22 mistake.

23 Q. Did you tell that officer that a

24 Michelle called you from First Citizens Bank in Roanoke

25 Rapids and told you that a black male in a pickup truck


82

1 came to the drive-through?

2 A. I told him that she said that it was

3 two black males in a pickup truck, and she showed me --

4 like I told you, she showed me the film that they was

5 on. She said it was two, and she asked me did I know

6 either one of them. And I looked at them, and I told

7 her, no, I did not know neither one of them.

8 Q. So where an officer would have wrote

9 that you said a black male in a pickup truck, that

10 officer was mistaken if he wrote that?


12 THE COURT: Sustained. Those aren't her

13 notes.


15 THE COURT: Yes.


17 not recorded.)

18 Q. Do you know Tracy Shelburne at First

19 Citizens Bank?

20 A. Yes.

21 Q. You don't know when the envelope

22 became missing, do you?

23 A. When did I find out the envelope was

24 missing? When I returned the call the next day to the

25 bank.


83

1 Q. You don't know when it became

2 missing?

3 A. No, I don't, because I was not at

4 home.

5 Q. Even though you received a call at

6 4 o'clock from Michelle at the bank, you don't know

7 when the person came through at the bank, do you? You

8 don't know when they came through the drive-through, do

9 you?

10 A. I sure don't.

11 Q. Were you ever shown a lineup

12 -- strike that. No one saw who took the check out of

13 your mailbox; is that right?



16 Q. You don't know who took the check

17 out of your mailbox?

18 A. Right.

19 Q. Was your husband home that day?

20 A. No.

21 Q. Was anybody home that day?

22 A. No.

23 Q. Have you talked to your neighbors

24 about this incident to see if anybody was home?

25 A. No, because she works at Halifax


84

1 Laundry. She goes to work at 4 o'clock in the morning.

2 Q. In your checkbook -- do you have one

3 of those checkbooks with a carbon copy?

4 A. No.


6 THE COURT: Mr. Graves?


8 Your Honor.

9 (Pause)


11 Q. Ms. Robinson, Attorney Summey asked

12 you how much money you were out of. And I believe you

13 said that you are not out any money?

14 A. No.

15 Q. Did it inconvenience you in any type

16 of way?

17 A. The only way it inconvenienced me is

18 I had to close that account and start all over again.

19 Q. Has this incident had any other

20 effect on you?

21 A. No.

22 Q. At any point did you write out a

23 statement for anybody?

24 A. No.

25 Q. Just to clarify, Attorney Summey


85

1 asked you about a video and pictures. What exactly did

2 the people from the bank show you to identify the

3 individuals in the truck?

4 A. She showed me -- it was on paper.

5 She said it came off the video for that day. And that

6 was all she showed me.

7 Q. Do you remember how many pictures it

8 was? Was it more than one?

9 A. She showed me two, but I still

10 didn't know who they was.


12 Honor.


14 Q. What did she show you two pictures

15 of?

16 A. The black truck and the two males

17 sitting in the truck, and that was it.


19 THE COURT: You may step down, ma'am.

20 (The witness left the witness stand.)

21 THE COURT: You may call your next

22 witness.

23 MR. GRAVES: May me and Attorney Summey

24 approach?

25 THE COURT: Yes.


86


2 not recorded.)

3 THE COURT: Ladies and gentlemen, please

4 go to the jury room for a few minutes. Please remember

5 my previous admonitions. Please do not discuss the

6 case among yourselves. Please do not allow anyone to

7 discuss the case with you. Please don't communicate

8 with anyone else about the case. And if anyone

9 attempts to communicate with you about this case,

10 report it to me immediately, please. Please do not

11 form an opinion about the guilt or innocence of the


13 thus far. Thank you.




17 Mr. Graves, let me know when you are

18 ready, please.

19 (Pause)



22 gentlemen.

23 Mr. Graves, you may proceed.


25 the State calls Deputy Josh Clark to the stand.


87

1 (Joshua Clark, being first duly sworn/affirmed,



4 Q. Deputy Clark, could you please state


6 A. My name is Joshua Clark.

7 Q. And where do you reside, Deputy

8 Clark?

9 A. I reside in Roanoke Rapids.

10 Q. And how are you employed?

11 A. I am employed with the Halifax

12 County Sheriff's Office in the Patrol Division.

13 Q. And could you give us a brief

14 overview of your career in law enforcement?

15 A. I came into law enforcement -- I

16 have been in law enforcement for 11-and-a-half years.

17 The majority of that time was in the Patrol Division.

18 I started with the Sheriff's office and spent some time

19 with the Roanoke Rapids Police Department. I spent two

20 years in Afghanistan training high-level police

21 officials, and I am now back at the Sheriff's office.

22 Q. Were you employed with the Sheriff's

23 office on January 3, 2011?

24 A. Yes.

25 Q. Do you remember some events that


88

1 took place on that day that led you to begin an

2 investigation?

3 A. On January 6 I was dispatched to

4 meet with the victim Joanne Robinson at the Roanoke

5 Rapids Police Department. The information that was

6 given to me was it was about some stolen mail from her

7 house in Lincoln Heights.

8 Q. And when you met with Ms. Robinson,

9 what happened next?

10 A. She told me that at 3:59 on the 3rd,

11 she had received -- she had a missed call from First

12 Citizens Bank in Roanoke Rapids where the teller had

13 attempted to call her. She said when she called her

14 back, she spoke to one of the bank officials there and

15 they told her that someone was there that had attempted

16 to cash a check. She was able to determine that it was

17 a check that she had that morning placed in an envelope

18 payable to an address labeling company in the amount of

19 just over $10, and she placed it on her mailbox to be

20 mailed off to this company.

21 Q. And at that point did you have

22 Ms. Robinson write a statement?

23 A. No. I just took field notes in

24 order for me -- so that I could refer back to them in

25 order to write the incident report.


89

1 Q. The document that Attorney Summey

2 handed Ms. Robinson, was that a statement, or was that

3 the field notes you are speaking of?

4 A. Just my own field notes that were

5 for me. And nobody else saw them.

6 Q. When you say field notes, what

7 exactly do your field notes include?

8 A. The victim's name, date of birth,

9 address, basically all the pertinent or main

10 information that goes on the face of the incident

11 report that I would need in order to correctly write

12 the incident report, along with my all my personal

13 notes of what the victim and/or witnesses or anybody

14 that I speak to, what they tell me. Basically it is

15 just written in some form of shorthand or just

16 something that I would understand.

17 Q. Are your field notes used to help

18 you organize your thoughts?

19 A. Correct.

20 MR. GRAVES: May I approach the witness,

21 Your Honor?

22 THE COURT: Yes, sir?

23 (State's Exhibit Number 1 was marked for

24 identification.)

25 A. As I was investigating the case over


90

1 the course of a month or so or more, as I came by

2 information, I would just go to that same page and just

3 continue writing.

4 Q. You said that the field notes

5 contain the check number?

6 A. Yes.

7 Q. How did you obtain that check

8 number?

9 A. From the victim.

10 Q. What is that check number?

11 A. 3352.

12 Q. After you met with Ms. Robinson and

13 you took your field notes, what steps or actions did

14 you take next? Strike that question, Your Honor.

15 Backing up, Deputy Clark, at the point

16 when you were talking to Ms. Robinson, had you already

17 developed a suspect?

18 A. No.

19 Q. Did you have any basis for

20 developing a suspect at that point?

21 A. No, not after speaking with the

22 victim.

23 Q. After you spoke with the victim,

24 what steps did you take next?

25 A. I followed up with the bank -- I


91

1 believe she was the vice president. Her name was Tracy

2 Shelburne. She was able to provide me with printed

3 photographs from the video surveillance from the day in

4 question, the day of the event. And then she directed

5 me to the teller that had handled the situation, which

6 was Christy Hudson.

7 I spoke to Ms. Hudson briefly. It was a

8 business day. She was at work. I didn't take a

9 written statement from her because of that, but I was

10 able to indicate her verbal statement to me in my

11 narrative.

12 Q. Backing up just a little bit, you

13 said you were provided with some photographs from the

14 bank video?

15 A. That is correct.

16 Q. Is this the same bank video system

17 Attorney Summey has been referencing?

18 A. Yes.

19 Q. You said these were photographs from

20 the video. Could you explain how that process

21 operates?

22 A. I don't have personal knowledge of

23 how their camera system and surveillance system

24 operates. I was given the still photographs that came

25 from the video surveillance. I was told the copy of


92

1 the actual video, I could not obtain that from that

2 office. It had to be approved and given to me by

3 somebody with the bank's corporation, which I was able

4 to obtain at a later time.

5 Q. From looking at the photographs,

6 were you able to identify Marvin Adams?

7 A. No.

8 Q. Were you able to identify James

9 Marshall?

10 A. Through further investigation, yes.

11 Q. At the point at which you looked at

12 those photographs, you were not able to identify

13 Mr. Marshall --

14 MR. SUMMEY: Objection; asked and

15 answered.

16 MR. GRAVES: If I could finish my

17 question, Your Honor --

18 THE COURT: Yes, you may.

19 Q. At the point you looked at the

20 photographs and you were not able to identify

21 Mr. Marshall, were you later able to identify him based

22 on that same photograph?

23 A. Yes.

24 Q. Were you able to identify Mr. Adams

25 based on the photographs?


93

1 A. Not based on the photograph, no.

2 Q. Were you able to identify Mr. Adams

3 based on the video?

4 A. Yes.

5 MR. SUMMEY: I am going to object to

6 that, Judge, and move to strike.


8 MR. SUMMEY: If I may, may we approach?

9 THE COURT: Yes.


11 not recorded.)

12 Q. Deputy Clark, you stated that at the

13 time you viewed the video, you were able to identify

14 Marvin Adams?

15 A. Yes. The video was much clearer.

16 Once I was able to -- later on in the investigation,

17 once I had the name Marvin Adams to compare with the

18 moving video footage, I was able to compare what I know

19 of what he looks like versus what the video shows.


21 Your Honor?

22 THE COURT: Yes sir.

23 (State's Exhibits Numbers 2, 3, and 4

24 were marked for identification.)

25 Q. Deputy Clark, I am handing you what


94

1 have been marked as State's Exhibits Number 2, 3, and

2 4. Could you identify each of those items?

3 A. State's Exhibit Number 2 is a

4 photograph that I obtained from the bank. Based on the

5 video surveillance, it is a photograph showing the

6 witness, Mr. Marshall, in the driver's seat of the car.

7 The actual photograph only shows the driver's side half

8 of the vehicle. It does not show the overall interior

9 of the vehicle.

10 Q. Can you now identify Exhibit

11 Number 3?

12 A. State's Exhibit Number 3 is a shot

13 from the same camera but as the truck is approaching

14 the drive-through. You can see two black males in the

15 vehicle. It is a dark-colored Nissan truck. In this

16 photograph you are not able to identify either the

17 driver or the passenger from this photograph.

18 Q. Now could you identify Exhibit 4?

19 A. Exhibit 4 is much the same

20 photograph, just a few minutes' difference, of the same

21 witness, Mr. Marshall, in the vehicle at the

22 drive-through.

23 Q. And can Mr. Marshall clearly be seen

24 in those pictures?

25 A. Yes.


95

1 Q. Can Mr. Adams be seen in those

2 pictures?

3 A. No. It only shows the driver.

4 Q. In Exhibit Number 3, does it appear

5 another individual is in that truck?

6 A. Yes, it does.

7 Q. Deputy Clark, backing up just a

8 little bit, you stated that the bank manager provided

9 you with those still shot photos from the video

10 surveillance system?

11 A. Yes.

12 Q. What steps did you take after you

13 looked at those photos?

14 A. The next thing I did is I went and

15 spoke to the witness Christy Hudson.

16 Q. And when did you speak to

17 Ms. Hudson?

18 A. Right after I left the office of one

19 of the bank administrators. It was during the same

20 day, January 6, that it was reported to me.

21 Q. Can you tell us what Ms. Hudson

22 stated to you when you first met with her?

23 A. She told me that two black males in

24 a dark-colored Nissan truck drove up in Lane 2 of the

25 drive-through and attempted to cash a check from


96

1 Ms. Robinson's personal checking account. On the check

2 the amount had been changed from $10 to $600, and the

3 payee had been altered to read care of Marvin Adams.

4 Ms. Hudson stated that the male driver of the truck

5 produced a valid identification card with the name

6 Marvin Adams. When Ms. Robinson could not be

7 contacted, the teller returned the check, and the

8 subjects left.

9 Q. After you spoke with Ms. Hudson,

10 what did you do next?

11 A. After further investigation -- at

12 that point I was attempting to start by identifying the

13 driver, who I could clearly see, and make a positive

14 identification through the photo that I had. I took

15 the name Marvin Adams, and I looked up the Division of

16 Motor Vehicles photograph of Marvin Adams, which of

17 course did not resemble -- was not the driver of this

18 vehicle.

19 Q. And after you looked at the DMV

20 photograph of a Marvin Adams, what did you do next?

21 A. What I did after that was just went

22 out talking and speaking with several people. I was

23 able to come up with a name James Marshall. I looked

24 up information on James Marshall and found the address

25 on Lee Lane Road. And once I found out his address, I


97

1 went to the address on the Lee Lane Road, where parked

2 in the backyard I did see a Nissan truck that looked

3 identical to the one that is in State's Exhibit

4 Number 3.

5 That's where I then met with

6 Mr. Marshall and asked him if he would be willing -- I

7 showed him the photograph. He then verified it and

8 said, yes, that's me in the driver's seat of the pickup

9 truck. I asked him if he would be willing to come to

10 the Sheriff's office, where I would conduct an

11 interview about this case. He gladly agreed, and I met

12 him at the Sheriff's office soon after that.

13 Q. At that point, was Mr. Marshall a

14 possible suspect?

15 A. Yes, for the purpose of identifying

16 the driver at that point.

17 Q. And when you first made contact with

18 Mr. Marshall, was he evasive in any type of way?

19 A. Absolutely not.

20 Q. Was he forthcoming with information?

21 A. Yes, he was.

22 Q. And you told Mr. Marshall to come

23 down to the Sheriff's office. And what happened next?

24 A. At that point I conducted a

25 noncustodial interview with Mr. Marshall, myself and


98

1 Detective Sergeant Rooks; he sat in with me. The

2 actual statement was given to me.

3 Q. And on what date was that statement

4 taken?

5 A. January 7.

6 Q. And do you know what time it was

7 taken?

8 A. I would need a copy of the statement

9 in order to give you an exact time.


11 Your Honor.

12 THE COURT: Yes, sir.


14 identification.)


16 has been marked as State's Exhibit Number 5. Can you

17 identify that document?

18 A. It is the handwritten statement that

19 I obtained from James Junior Marshall on January 7 at

20 5:40 --

21 MR. SUMMEY: Objection. Judge, the

22 statement hasn't been introduced. He is starting to

23 read the statement.

24 THE COURT: Objection overruled.

25 A. -- at 5:40 p.m.


99

1 Q. And is that entire document a

2 handwritten statement by Mr. Marshall?

3 A. The first page is a handwritten

4 statement by Mr. Marshall.

5 Q. What is the last two pages?

6 A. Pages 2 and 3 are follow-up

7 questions that I asked and wrote down in a

8 question-and-answer format. I wrote down the exact

9 wording of the question as I asked it and then wrote

10 down his actual response verbatim.

11 Q. What is your standard protocol when

12 taking a statement from an individual who may be a

13 suspect in a crime.

14 MR. GRAVES: If I may rephrase my

15 question, your Honor?


17 Q. How do you typically take your

18 statements when you are investigating a crime?

19 A. I usually try to conduct a

20 noncustodial interview --

21 Q. What does that mean?

22 A. In other words, the person is not

23 necessarily in custody. They are free to leave at any

24 time. There is nothing holding them there. They are

25 not under arrest. The door is not locked, easy access


100

1 to get up and leave and finish the interview at any

2 time they want.

3 If they are able to read and write at a

4 decent level, I have them handwrite the statement

5 themselves. If they don't feel comfortable handwriting

6 it or don't want to handwrite it or just can't, then I

7 will write it myself, again, verbatim from what they

8 say.

9 After I take the statement, I read

10 through it myself. And if I still have any questions

11 about the statement or anything that I want to know

12 specifically about the case, that's when I go to

13 another page, and I'll ask a question. I'll put a Q

14 for question, and I write out my question exactly how I

15 asked it. And I put an A where their response would

16 be, and I write verbatim exactly what they tell me how

17 they say it in their own words. Then I have them sign

18 at the end of the questioning as well as on the first

19 page of their handwritten statement.

20 Q. Did you follow that routine when you

21 took this statement from Mr. Marshall?

22 A. I did.

23 Q. If you will, read that statement.


25 MR. GRAVES: Your Honor, the State moves


101

1 to introduce the statement as State's Exhibit Number 5.

2 THE COURT: Let it be received.

3 Q. Deputy Clark, could you read that

4 statement?

5 A. Yes. It begins: On Monday of this

6 week I was at the laundromat on Tenth Street around

7 3:45 washing my coveralls. I was sitting there looking

8 at TV when this guy came in. He asked me was I

9 driving. I said yes. He asked if I would take him to

10 the bank. I told him I was washing. Then he said,

11 I'll give you $10, so I drove him there. I went to the

12 drive-through, and he gave me the check, and I gave it

13 to the bank teller. They held it for a while. I asked

14 them did he need to come in. They said no. After

15 that, they gave back the check, and I left. He told me

16 to take him to some check-cashing place. I told him I

17 had to get my clothes, so I put him off at Wendy's.

18 Signed James Marshall.

19 Q. After you had Mr. Marshall write

20 that statement, did you ask any follow-up questions?

21 A. I did.

22 Q. Could you tell us what those

23 questions were and what his answers were?

24 A. Yes.

25 Question: What did the guy you gave a


102

1 ride say his name was?

2 Answer: When I got ready to let him off

3 at Wendy's, he told me his name was Marcus High.

4 Question: Did he tell you the check was

5 stolen?

6 Answer: No. From what I gathered, he

7 told me he gets disability, so I was looking for a

8 state check. Then at the bank he handed me a personal

9 check and said he did some work for the people.

10 Question: Had you ever seen him before

11 that day?

12 Answer: Nope, was the first time.

13 Question: When you asked the teller if

14 he should come inside, did the guy say anything to you?

15 Answer: I looked at him, and he started

16 looking funny and asked what was wrong and said

17 something negative and started getting edgy.

18 Question: Can you describe this guy?

19 Answer: He won't as tall as I am.

20 He had whitewash jeans, glasses, and a cap.

21 Question: How was his hair?

22 Answer: He had on a cap. I didn't

23 really see it.

24 Question: Any hair coming out from

25 under the hat?


103

1 Answer: I think so, but I ain't for

2 sure.

3 Question: Did this guy say where he was

4 from?

5 Answer: He told me he was from Lincoln

6 Heights.

7 Question: Was he light-skinned,

8 dark-skinned, medium?

9 Answer: I'm gonna say medium.

10 Question: What if anything did you

11 notice on the check? Any names? The amount?

12 Answer: Only thing I know, when they

13 gave me back the check was the amount.

14 Question: What was the amount?

15 Answer: $600.

16 Question: Did he tell you the name of

17 the check-cashing place he wanted you to take him to?

18 Answer: I assumed it was at the BP, but

19 I didn't have time, so I put him off at Wendy's.

20 Question: Is there anything else you

21 can think of that you think you should tell me about

22 that day?

23 Answer: That's it. Signed James J.

24 Marshall.

25 Q. After you received Mr. Marshall's


104

1 statement, what steps did you take after that?

2 A. At that point -- the next event, as

3 far as my investigation and writing on this, was

4 February 2.

5 Q. And what happened on that date?

6 A. On that day I spoke to Marvin Adams,

7 the defendant, at his residence about this incident.

8 Q. And how did you come into contact

9 with Mr. Marvin Adams?

10 A. Well, initially he was on the check

11 -- the teller described to me the check was written

12 care of Marvin Adams. And she told me that

13 -- initially she told me -- and I think I wrote it on

14 another page of my notes -- she had given me a

15 different name, Michael Adams maybe. I can't remember.

16 I don't have that note in front of me. I may have it.

17 (Pause)

18 A. But that was just when I was

19 initially talking to her. She told me that she wrote

20 the name down; she didn't have the piece of paper in

21 front of her, that she would try to locate that piece

22 of paper and call me back at a later time. When she

23 did, she was able to give me the name Marvin Adams from

24 the piece of paper she had written down. So I was

25 following up with this based on the information that


105

1 Marvin Adams' name had come up through my

2 investigation.

3 Q. At the point that you spoke to

4 Mr. Marshall, were you trying to follow up on a Michael

5 High?

6 A. I was. Let me find my notes.

7 (Pause)

8 A. When Mr. Marshall gave me the name

9 Marcus High, the closest thing that I could come to was

10 that name Michael High. Through my investigation I

11 learned that Michael High -- Marvin actually told me

12 that Michael High is his cousin.

13 Q. Did Marvin tell you that when you

14 first made contact with Marvin Adams?

15 A. Yes.

16 Q. So at that point were you still

17 looking for a Michael High?

18 A. At that point, yes.

19 Q. But you just so happened to come

20 into contact with Marvin Adams?

21 A. Yes, at his house.

22 Q. And how did you learn that Michael

23 High was Marvin Adams' cousin?

24 A. Marvin told me.

25 Q. And after Marvin told you that


106

1 Michael High was his cousin -- backing up a little bit,

2 where exactly did you come into contact with Mr. Marvin

3 Adams?

4 A. In his front yard.

5 Q. Where is that located in Roanoke

6 Rapids?

7 A. It is on Rhea Smith Road, either 501

8 or 581.

9 Q. Is that in the Lincoln Heights area?

10 A. No. It's 581 Rhea Smith Road.

11 Q. And after you spoke with Mr. Adams

12 about his cousin Michael High, what happened next?

13 A. The defendant told me that Michael

14 High was his cousin. He told me that he took -- Marvin

15 Adams told me that he was missing his identification

16 card. And he told me that Michael High -- I showed him

17 the photograph from the bank displaying the driver of

18 the truck. And then Marvin told me that he did not

19 know the guy. He told me he had never seen him.

20 Marvin told me that day when we were talking about

21 Michael High being his cousin he thought that Michael

22 High may have -- may be the one that had stolen his

23 wallet or his identification card and had in fact been

24 the passenger in the truck that day.

25 Through further investigation I was able


107

1 to determine that Michael High was incarcerated. He

2 was locked up during the time of this crime, so it

3 could not have been him at all.

4 Q. Backing up a just little bit, you

5 stated that you showed Mr. Marvin Adams the photograph

6 from the bank surveillance video; is that correct?

7 A. Yes. It would have been one of the

8 -- I probably showed him all three. If not, at least

9 two of these three.

10 Q. And did you show him the pictures

11 that clearly showed Mr. James Marshall?

12 A. Yes.

13 Q. And you stated that Mr. Adams stated

14 that he had never seen Mr. Marshall?


16 Q. And you said that Mr. Adams told you

17 about his cousin Michael High may have been the

18 possible passenger of the vehicle?

19 A. Yes.

20 Q. What prompted him to tell you that?

21 In other words, at that point had you told him you were

22 investigating a crime?

23 A. Yes.

24 Q. What exactly did you tell him you

25 were investigating?


108

1 A. I don't recall my exact wording on

2 that day.

3 Q. Could you paraphrase it?

4 MR. SUMMEY: Objection to that, Judge,

5 if he doesn't recall.

6 THE COURT: The question was could you

7 paraphrase it. And The answer to that is yes or no,

8 not to paraphrase it, but yes or no.

9 THE WITNESS: It's been so long I really

10 don't want to go off of what I've got on my

11 supplemental report from that date.

12 THE COURT: So the answer is no?

13 THE WITNESS: Yes.

14 Q. After Marvin told you his cousin

15 Michael High may have been the individual in that

16 truck, what steps did you take to confirm or negate

17 that statement?

18 A. I researched the person of Michael

19 High and found out he was actually incarcerated. I was

20 able to look at the dates of his incarceration. He was

21 still incarcerated at that time, and he was

22 incarcerated at the time on January 3.

23 Q. Did you do that on the same date

24 that you had seen Mr. Adams in his yard?

25 A. Yes, at a later time.


109

1 Q. So when you spoke to Mr. Adams in

2 his yard, was he under arrest at that point?

3 A. No, he was not.

4 Q. And after you later discovered that

5 Michael High had been incarcerated, what did you do

6 next?

7 A. On that same day I had gotten a call

8 for First Citizens Bank, and they told me they had a

9 CD, the actual video surveillance on a CD. So I went

10 by the bank and picked up the CD and took it to the

11 Sheriff's office to review the video footage. In my

12 supplement I stated that I reviewed the video footage

13 at the Sheriff's office, which was a better quality

14 than the original photos that I had. I was able to

15 identify the passenger in the truck as Marvin Adams,

16 whom I had just spoken with.



19 Q. And you stated that you saw

20 Mr. Adams again?

21 A. Yes. It was maybe a week later,

22 February 13.

23 Q. And can you describe how you came

24 into contact with Mr. Adams again?

25 A. I was at the office. I happened to


110

1 cross paths with Mr. Adams. He was at the Sheriff's

2 office trying to obtain a warrant on someone for an

3 unrelated matter. I asked him at that point if he

4 would be willing to speak with me again in an interview

5 setting, and he said that he would, again a

6 noncustodial interview.

7 Q. And when you say noncustodial, is

8 that the same way that you questioned Mr. James

9 Marshall?

10 A. Yes, it is.

11 Q. So at that point was Mr. Adams free

12 to leave?

13 A. He was, yes.

14 Q. Had you placed him under arrest when

15 you saw him that day?

16 A. No, I had not.


18 Your honor?



21 identification.)

22 Q. Deputy Clark, I just handed you an

23 item, State's Exhibit Number 6. Could you identify

24 that document?

25 A. Page 1 is the Halifax County


111

1 Sheriff's Office Miranda -- Adult Miranda Rights Form.

2 Q. What exactly is a Miranda rights

3 form?

4 A. Miranda rights are the rights given

5 to suspects and/or defendants when they are questioned

6 or given an opportunity for an interview.

7 Q. Did you advise Mr. Adams of his

8 rights?

9 A. I did.

10 Q. And what exactly were those rights

11 at that time?

12 A. The advisement of rights reads:

13 Before I ask you any questions, you must understand

14 your rights. You have the right to remain silent.

15 Anything you say can and will be used against you in a

16 court of law. You have the right to talk with an

17 attorney before I ask you any questions and to have him

18 present with you while you are being questioned. If

19 you cannot afford to hire an attorney, one will be

20 appointed to represent you before any questioning. If

21 you decide to answer questions, you have the right to

22 stop answering them at any time. And it was signed

23 Marvin Adams.

24 And then under that is the section

25 called Waiver of Rights. The question states: Do you


112

1 understand each of these rights I have explained to

2 you? And Marvin himself checked yes.

3 Having these rights in mind, do you wish

4 to answer questions now? Marvin checked the block for

5 yes.

6 Then there is a paragraph underneath: I

7 -- and then Marvin Adams wrote his name -- age -- he

8 wrote 35 -- and then checked the block for, have read

9 and had read to me -- which means I read them out loud

10 to him and he had a blank copy of this same form on

11 which he read along with me -- this statement of my

12 rights, and I understand what my rights are. I am

13 willing to make a statement and answer questions. I do

14 not want an attorney at this time. I understand and

15 know what I am doing and voluntarily agree to answer

16 questions. No promises or threats have been made to me

17 and no pressure of any kind has been used against me to

18 give the following statement. The highest grade level

19 completed in school is eight.

20 And then it says, Are you at this time

21 under the influence of any alcoholic beverages or

22 drugs? And he checked no. Today's date and time.

23 It was February 13 at 9:09 p.m. He gives his date of

24 birth, his age, his social security number, and his

25 signature.


113

1 Q. This may sound redundant or

2 repetitive, but was Mr. Adams free to leave when you

3 were taking his statement?

4 A. Yes, he was.

5 MR. GRAVES: Your Honor, the State moves

6 to admit State's Exhibit Number 6.

7 THE COURT: Let it be received.

8 Q. Deputy Clark, could you give us a

9 recitation of what exactly Mr. Adams wrote?

10 A. The statement was actually written

11 by me, given to me verbally by Mr. Adams with the

12 understanding that I would be writing the statement for

13 him and the statement would be written verbatim as to

14 what he said.

15 Q. And did he sign it after you wrote

16 it?

17 A. Yes, he signed each page. There are

18 a total of six pages here. He signed each one. Prior

19 to him signing each page, I afforded him the

20 opportunity to read over the entire statement to make

21 sure the words that I used were in fact his words given

22 to me verbatim.

23 Q. Did he sign at the top or bottom of

24 each page?

25 A. The bottom of each page.


114

1 Q. Could you tell us what his statement

2 was?

3 A. All I know is that I was walking on

4 Tenth Street. I stopped by the laundromat to ask for a

5 ride from somebody. And I paid this guy $10 to take me

6 home, and this guy told me he had to make a couple of

7 stops.

8 I stopped at Presto. He got out of his

9 truck to go in and told me he'll be right back. I

10 noticed that I needed some cigarettes, and he came back

11 out of the store before I went in. He got back in his

12 truck waiting on me. When I got back in the truck, I

13 noticed that my wallet was misplaced, lost, or stolen.

14 When I said I lost my wallet, at first the man didn't

15 admit that he had found my wallet, but on the way to

16 the next stop -- the second stop was at the bank, First

17 Citizens. We went through the drive-through. The

18 teller sent the thing through the machine. It wasn't

19 no pen in it. He started to push the button to tell

20 the teller, and I said I had a pen he could use. When

21 I gave him a pen, he signed a piece of paper. It's

22 quite obvious it was a check. He signed it and put it

23 inside the machine and sent it back to the teller.

24 But before he did that, what I failed to

25 mention before, while he was pulling up to the line, I


115

1 was still complaining about my wallet. The man gave me

2 my wallet back. I thought the guy was nice enough to

3 give my wallet back, my social security card, ID, and

4 other documents. I didn't take the time -- I'm trying

5 to find the right words so I don't incriminate myself

6 -- to look for the above-mentioned items, because if

7 the man was honest enough to give my wallet back, I

8 felt like he had no use for anything else.

9 Next thing I know, as I was mentioning

10 earlier, when I handed him the ink pen and after he

11 signed whatever he signed, the teller informed him that

12 they could not contact somebody and they would not be

13 able to take care of him then. The bank teller sent

14 the container back through the machine, and whenever he

15 got out whatever he got out of there, he handed me my

16 pen back.

17 We left from there. He took me home on

18 Highway 48 at 581 Rhea Smith Road. I have not seen

19 this man since other than questions about him to help

20 the sheriff to narrow down the investigation. I,

21 Marvin Adams, did not at no time cash or try to attempt

22 to cash anything at the bank. End of statement.

23 Q. Deputy Clark, what prompted your

24 conversation with Mr. Adams on that date? Did you tell

25 him that you were investigating the same crime that you


116

1 had talked to him about previously?

2 A. Yes.

3 Q. And did you show him the same

4 photographs that you had shown him previously?

5 A. I don't recall if I showed him the

6 photographs that day.

7 Q. But previously when you talked to

8 Mr. Adams, did he clearly state that he did not know

9 Mr. James Marshall?


11 Q. Did he state that he had not ever

12 seen Mr. Marshall?

13 A. Yes.

14 Q. After you took that statement from

15 Mr. Adams, did you place him under arrest then?

16 A. No. I asked some follow-up

17 questions.

18 Q. What were those follow-up questions?

19 A. Again I wrote them in question-and-

20 answer format, as I stated earlier.

21 Question: Did you buy cigarettes at

22 Presto?

23 Answer: When I went to Presto, the guy

24 I saw on the outside of Presto sold me some loose

25 cigarettes so I wouldn't have to spend the full price


117

1 for a whole pack of cigarettes, because I have no

2 income, and I try and stretch my money. I was going in

3 the store to buy cigarettes, but they don't sell loose

4 cigarettes. While I was standing by the flammable

5 barrels, I saw the guy there. When he pulled out his

6 pack, I bought some from him. While I was talking to

7 that guy, the guy that gave me a ride was waiting for

8 me. At no time I went in the store to buy a pack of

9 cigarettes.

10 Question: If you didn't have your

11 wallet, how did you pay the man?

12 Answer: I keep cash in my pocket. I do

13 not keep cash in my wallet.

14 Question: Earlier in your statement you

15 stated that you went in the store. Are you now saying

16 that was an untrue statement?

17 Answer: Well, I didn't mean to say in.

18 I never went in the store. It was my intention to go

19 in the store.

20 Question: When I talked to you last

21 week and showed you the bank surveillance photo, why

22 did you tell me -- it is crossed out here. If I may

23 add, at the bottom here where I originally wrote --

24 where I was writing a question, when I was giving

25 Mr. Adams the opportunity to review his statement, he


118

1 began to cross some of the information out. And I made

2 an initial, and he made an initial. He was crossing

3 out my question. So I don't think I finished writing

4 that question.

5 Q. Did he indicate that he did not want

6 to answer that question?

7 A. No, he didn't. I restarted the

8 question and said, I told you I would be obtaining

9 video footage to identify the passenger because the

10 passenger was my suspect. Why did you tell me that I

11 wouldn't see you as the passenger?

12 Answer: I did say that because at first

13 I didn't think about it right then. I wasn't thinking

14 about -- I couldn't keep my days straight. The more I

15 thought about it, I started doing some digging.

16 Question: Do you admit today that you

17 were in fact the passenger?

18 Answer: Yes.

19 Question: Last week I showed you a

20 picture of the driver and the truck, the same photo I

21 showed you today. Today you were able to identify the

22 driver as the same man that gave you a ride, but last

23 week you said you didn't know him. Why were you not

24 truthful last week?

25 Answer: If you only knew how much I'm


119

1 going through. I'm not no computer. I didn't

2 recognize him then.

3 Question: You and I have spoken about

4 this case on more than one occasion prior to today.

5 Why are you just now telling me that you were the one

6 in the truck?

7 Answer: We only spoke twice before

8 today. Because when I found out it wasn't my cousin

9 Michael High, because doing my research/investigation,

10 I was trying to figure out what's going on in regard to

11 the question at hand.

12 Question: You say "when I found out it

13 wasn't my cousin," but the whole time you knew it was

14 you. Why were you trying to hide the fact that it was

15 you?

16 Answer: My answer, I did not do it. I

17 am getting aggravated. I am bipolar, and I'm trying to

18 work with officers to resolve this matter. But before

19 this escalates, I prove my case in court. End of

20 statement.

21 Question: Do you want to continue the

22 interview?

23 Answer: Yes -- well, no, not at this

24 time.

25 That is the end of the statement.


120

1 Q. After you took that statement from

2 Mr. Adams, what steps did you take after that?

3 A. Upon completing the interview,

4 Mr. Adams was placed under arrest at that time and

5 charged with the charges.

6 Q. Why exactly did you place Mr. Adams

7 under arrest?

8 A. Because of the totality of the

9 circumstances of the case, through my overall

10 investigation. The witness Mr. Marshall was able to

11 identify him as the passenger of the car. He admitted

12 to being a passenger in the car. The bank teller was

13 able to identify on the check the name Marvin Adams was

14 written, care of Marvin Adams. Marvin Adams' photo ID

15 was included with the check to the bank.


17 Your Honor?


19 (Pause)

20 Q. Deputy Clark, at some point did you

21 have Mr. Marshall do two separate photo lineups?

22 A. I did not physically present the

23 photo lineups, no.

24 Q. Did you initiate the process?

25 A. I believe Detective Rooks did at


121

1 least one of them, according to my incident report.

2 THE COURT: He said did you initiate the

3 process.

4 THE WITNESS: No, Detective Rooks did.

5 Q. Just for me and the jury, what is a

6 photo lineup?

7 A. A photo lineup is where we take a

8 minimum of six photographs, and you include the suspect

9 or the person you are trying to identify in the

10 photographs in the lineup. You try to match somewhat

11 the features, facial features and identities of each of

12 the persons that you are looking at to try to make it

13 stand out to the others. You have the person look at

14 each photo one at a time and tell you yes or no whether

15 the person you are trying to identify is that person.

16 Q. How do you typically develop your

17 starting point for a photo lineup?

18 A. In most cases what we try to use is

19 the Department of Corrections website where they take

20 photographs of anybody that has been in the community

21 corrections program.

22 Q. When the photo lineups were

23 conducted in this case, were they based on Marvin

24 Adams' --



122

1 THE COURT: Counsel, approach.


3 not recorded.)

4 Q. Deputy Clark, at some point did you

5 select the photographs to go into the photo lineups?

6 A. No, Detective Rooks did.

7 Q. Deputy Clark, prior to your

8 involvement with Mr. Adams concerning the case at hand,

9 had you ever had contact with him before?



12 Q. Were you familiar with Mr. Adams?


14 THE COURT: That is a yes or no

15 question.

16 A. Yes.

17 Q. Was this out of character for

18 Mr. Adams?



21 MR. SUMMEY: Move to strike.

22 THE COURT: It was not answered.


24 Your Honor?

25 (Pause)


123


2 Honor.

3 THE COURT: Ladies and gentlemen, it is

4 time to take our evening recess. I want to remind you

5 of the duties that I listed for you previously. It is

6 our duty not to talk among yourselves about this case.

7 It is your duty not to talk to the parties, witnesses,

8 or counsel about anything. It is your duty not to talk

9 with anyone else or allow anyone else to talk or say

10 anything about this case in your presence. If anyone






16 Please avoid reading, watching, or listening to any

17 news accounts of the trial, if there be any. Finally,

18 you have a duty not to go to any place where these

19 alleged acts were alleged to have been committed.

20 Please be back in the jury room tomorrow

21 morning at 9:30, and we will proceed at that time. You

22 may leave your jury badges in your seats and gather in

23 the jury room tomorrow morning at 9:30, and you will be

24 brought out collectively. Thank you. Have a good

25 evening.


124



3 we are outside the presence of the jury. You may step

4 down.

5 (The witness left the witness stand.)

6 THE COURT: Mr. Summey, I am not holding

7 you to this, but are you of the opinion that you will

8 or will not be calling witnesses?

9 MR. SUMMEY: I will not.

10 Judge, if Your Honor please, in this

11 particular case the officer was testifying from a

12 supplemental investigation report regarding the

13 incident where he says he met my client at his house in

14 the course of the testimony. Judge, I don't have that

15 in my --

16 THE WITNESS: It is dated February 7 at

17 1700 hours at the bottom.

18 MR. SUMMEY: I don't have that, Judge.

19 Well, hold on.

20 (There was an off-the-record

21 conversation, which was not recorded.).

22 MR. SUMMEY: Okay, I have it.

23 (End of 07/11/12 proceedings, 5:04 PM)

24

25


125

1 PROCEEDINGS, 07/12/12, 9:40 AM

2 THE COURT: Anything before we bring the

3 jury in?

4 MR. GRAVES: The State has a brief

5 motion before we bring the jury in. Your Honor, the

6 indictment for attempted obtaining property by false

7 pretenses reads that this property was obtained by

8 means of changing the amount of a check from $10 to

9 $600.

10 THE COURT: Yes.

11 MR. GRAVES: And the original amount was

12 for $10. The State would move to amend that $10 amount

13 to $10.42. The State would present to the Court that

14 we are not contesting the amount of the original check

15 in terms of dollars and cents but the fact that it was

16 altered.

17 THE COURT: What says the defendant?

18 MR. SUMMEY: If it please the Court,

19 Judge, I don't think it makes any difference. I would

20 say, Judge, at this point in time that the jury has

21 been impaneled and witnesses have been sworn, and I

22 think prejudice has attached to the State with respect

23 to any changes they would deem to make. I am not

24 saying that is a fatal variance, but it is a variance

25 from the indictment that was presented to the grand


126

1 jury back in May of 2011. But I will leave it in the

2 Court's decision.

3 THE COURT: Do you have any law on

4 amending indictments prior to --

5 (Pause)

6 MR. GRAVES: Your Honor, Assistant

7 District Attorney Warner told me he will research it,

8 if the Court would like to continue to proceed, and we

9 could re-address it out of the jury's presence.

10 THE COURT: All right. Thank you. We

11 will do that.

12 Ask the jurors to come in, please.

13 (Jury Present - 9:45 AM:)

14 THE COURT: Mr. Summey, the witness is

15 with you.

16 CROSS-EXAMINATION BY MR. SUMMEY - 9:46 AM:

17 Q. Good morning, Mr. Clark.

18 A. Good morning.

19 Q. How long have you been in law

20 enforcement, sir?

21 A. 11-and-a-half years.

22 Q. And you said you are a patrol

23 officer?

24 A. I am a patrol deputy.

25 Q. What exactly are your


127

1 responsibilities as a patrol deputy?

2 A. Respond to calls for service,

3 patrol, crime prevention, some investigations, street

4 narcotics.

5 Q. If you could, please explain to the

6 members of the jury, when you investigate a misdemeanor

7 versus a felony, what type of investigation -- are you

8 required to do a DA's report?

9 A. Yes. When the crime is charged for

10 a felony versus a misdemeanor, a District Attorney's

11 report is required.

12 Q. And that is an officer's

13 investigation report; is that correct?


15 Q. And that is within how many hours of

16 the charge itself?

17 A. 72 hours.

18 Q. Now, do you type your own

19 investigation reports, or do you have your secretary at

20 the Sheriff's office type your reports?

21 A. I either handwrite or type, and then

22 it is submitted to the Sheriff's office. And then one

23 of the Sheriff's administrators will retype it and

24 enter it into the computer.

25 Q. And this report that was compiled


128

1 and was turned in to the DA's office, received February

2 2011, would that have been typed by somebody else or

3 typed by you, the one that is in your hands now?

4 A. For which date?

5 Q. The actual report that you did.

6 A. The original report?

7 Q. Yes, sir.

8 A. The original report was typed on

9 January 6.

10 Q. Was that report typed by you or

11 someone within the Sheriff's office?

12 A. The original incident report was

13 typed by me.

14 Q. I'm saying the actual DA report that

15 you turned in.

16 A. I don't have the actual District

17 Attorney's report in my hand to verify the date it was

18 typed and submitted.

19 MR. SUMMEY: If I may approach, Judge --


21 Members of the jury, I am going to ask

22 you to go to the jury room for a few minutes. Please

23 remember my previous admonitions to you about not

24 communicating with anyone about this case or forming an

25 opinion about the defendant's guilt or innocence. You


129

1 are not to do that. Please be in the jury room, and I

2 will call for you shortly. Thank you.

3 (Jury Absent - 9:49 AM:)

4 THE COURT: Court will be at ease for 10

5 minutes.

6 (There was a recess in this case from

7 9:49 AM to 10:01 AM while the Court attended to another

8 matter.)

9 THE COURT: Ask the jurors to come back

10 in, please.


12 Q. Officer Clark, field notes are

13 actually notes that you take out in the field; is that

14 right?


16 Q. And when you went and talked to

17 Ms. Hudson on January 6, you talked to her at the bank;

18 is that right?


20 Q. And so any notes you took at the

21 bank you would consider to be field notes; is that

22 correct?


24 Q. And basically you testified to the

25 members of the jury that when you talked to her on the


130

1 6th, the bank was somewhat busy, so you really didn't

2 pull her to the side and interview her; you just got

3 some cursory notes about the case; is that right?

4 A. I spoke to her in person there. I

5 did not take her to a separate room and sit her down

6 and have her write a statement. I took her information

7 orally and put it down in the incident report.

8 MR. SUMMEY: If I may approach, Judge?

9 THE COURT: Yes.



12 Q. I am going to hand you what I have

13 marked as Defendant's Exhibit Number 3. Are those your

14 field notes --

15 A. Yes, sir.

16 Q. -- that you took regarding your

17 conversation with Ms. Hudson?

18 A. Yes, some of these notes are related

19 to that.

20 Q. Well, are there any other notes --

21 handwritten notes that you have somewhere else?

22 A. Yes. As I also testified yesterday,

23 my notes -- I don't create one separate page of notes

24 per se for each thing that I do.

25 Q. Do you have some other handwritten


131

1 notes anywhere in your file or anywhere in the

2 Sheriff's department that reflects any other

3 conversation you had with Ms. Hudson, any handwritten

4 notes?

5 A. No.

6 Q. So those are the only notes; is that

7 right?

8 A. There is another page of notes,

9 which would be in the District Attorney's report.

10 Q. Do you have it with you up there?

11 A. Yes.


13 A. I have the same one here. There is

14 another set also.

15 Q. That would deal with your

16 conversation with Ms. Robinson, would it not?

17 A. Yes.

18 Q. But I am talking about Ms. Hudson.

19 If you could for the members of the jury, do you have a

20 day on there that you talked to Ms. Hudson?

21 A. No.

22 Q. Do you have anything showing that

23 you read it to her and that she signed that as what she

24 told you?

25 A. No, because it was not a statement


132

1 for her to sign.

2 Q. Did you read it to her and let her

3 sign anything is the question.


5 THE COURT: Answer yes or no.

6 A. No.

7 Q. And all that she related to you was

8 it was two black males; is that right?

9 A. No.

10 Q. What else did she tell that you

11 didn't write down? I'm saying, if you could look at

12 the statement I handed you, those are --

13 THE COURT: That's not a statement.

14 MR. SUMMEY: I'm sorry, I keep saying

15 statement, Judge.

16 Q. Could you look at your field notes

17 on January 6.

18 MR. SUMMEY: That's what I was asking

19 him about, Judge.

20 Q. Pertaining to your field notes on

21 January 6, did she tell you anything other than what

22 you wrote down?

23 A. Yes. She told me something other

24 than what I wrote down, yes.

25 Q. Why wouldn't you write that down?


133

1 A. Because it is in my incident report.

2 Q. But you didn't write it in your

3 handwritten notes when you talked to her?

4 A. No. I don't write every single

5 thing.

6 Q. Well, isn't it true that you wrote

7 down the name Michael Adams?

8 A. Right. Yes, I did. That was just

9 --

10 Q. That's the name she gave you; is

11 that right?

12 A. Originally. She called me later and

13 gave me Marvin Adams. That name Marvin Adams is in the

14 original incident report.


16 THE COURT: Yes.

17 Q. But basically you took down her

18 contact information; correct?

19 A. Yes.

20 Q. And you took down two black males,

21 one with a toboggan, a Redskins toboggan; is that

22 right?


24 Q. In a dark truck?



134

1 Q. And that is all you wrote concerning

2 your conversation with her; is that correct?


4 Q. And that was three days after the

5 incident; is that right?


7 Q. And isn't it also true that she is

8 basically the primary -- the primary witness in this

9 case; is that right?



12 Q. Would you not consider her to be an

13 important witness in the case?

14 A. She is a witness in the case.

15 Q. She is a witness to the case; is

16 that right?

17 A. Yes.

18 Q. She is the only one that can tell

19 you what happened at the bank; correct?

20 A. No.

21 Q. She is the main one -- she is the --


23 Q. She is a disinterested witness as

24 far as what happened at the bank; correct?



135


2 Q. Well, let me ask you this, why did

3 you not go back and take a formal written statement

4 from her?

5 A. I didn't feel that I needed to.

6 Q. Isn't it true that she met with --

7 are you familiar with her meeting with Kanter Morris on

8 August 22, 2011?

9 A. I am only familiar with it as to our

10 conversation in the courtroom yesterday.

11 Q. So you were not at that meeting?

12 A. No, I was not.

13 Q. Were you familiar with her saying

14 that -- did you know prior to yesterday that Ms. Hudson

15 told Ms. Morris that the driver said, if there's a

16 problem that I could come in or we could come in if you

17 want?

18 A. I did not know that.



21 MR. SUMMEY: If he knows, Judge.

22 THE COURT: I said overruled.

23 Q. Sir?

24 A. I did not know that.

25 Q. Did you know prior to yesterday that


136

1 Ms. Hudson told Ms. Morris that the driver did

2 everything at the counter?

3 MR. GRAVES: Objection, Your Honor. I

4 think the basis of his question is the notes that

5 Attorney Morris took, not a statement given by

6 Ms. Hudson.

7 MR. SUMMEY: And what I want to ask is

8 what she testified to.

9 THE COURT: You can answer if you knew

10 prior to yesterday.

11 A. Anything dealing with the meeting of

12 Ms. Morris and Ms. Hudson, I had no prior knowledge of

13 until yesterday in court.

14 Q. Well, did you know prior to

15 yesterday that the name of the person was written on a

16 piece of paper that Ms. Hudson had in her custody,

17 care, and control that she threw away? Did you know

18 that?

19 A. Yes.

20 Q. Sir? What was your answer?

21 A. Yes.

22 Q. You knew about it?

23 A. Yes.

24 Q. Did you ever make any attempt to

25 take either -- at some point you arrested my client; is


137

1 that right?


3 Q. Subsequent to his arrest, did you

4 ever make any attempt to take his identification and

5 the identification of Mr. Marshall and take it and show

6 it to Ms. Hudson?

7 A. No, I did not take his personal

8 identification upon arrest.

9 Q. Did you try to get it?

10 A. No.

11 Q. But you could have gotten it; is

12 that right?



15 Q. And do you have any direct witnesses

16 that you know of that you interviewed that said they

17 ever saw Mr. Adams taking the check out of

18 Ms. Robinson's mailbox?

19 A. No.

20 Q. Did you canvass the neighborhood or

21 attempt to canvass the neighborhood to talk to

22 neighbors or potential witnesses to see if anyone saw

23 anything strange in the neighborhood that day?

24 A. No.

25 Q. And you testified yesterday that you


138

1 were able to gather Mr. James Marshall as a person of

2 interest in this case; is that right?

3 A. Yes.

4 Q. How were you able to do that?

5 A. Randomly showing his picture around

6 until somebody gave me the name and said, I know who he

7 is.

8 Q. Who gave you the name?

9 A. I don't recall.

10 Q. And prior to that, did you have any

11 knowledge as to whether or not Mr. Marshall ever went

12 down to the police department to say anything about

13 what happened at the bank?

14 A. I did not know Mr. Marshall prior to

15 this incident at all. I had never seen him.

16 Q. And you received the name of

17 Michael -- was there ever conversation about a Presto

18 store?

19 A. The only conversation about Presto

20 was in my interview with the defendant.

21 Q. What was that about? Did you

22 question him about Presto?

23 A. No. He brought it up in the

24 statement which I read to the jury yesterday.

25 Q. And you never extracted a check, is


139

1 that right, or found a check; is that right?


3 Q. And based upon -- you were in here

4 yesterday when Ms. Hudson testified. Based upon what

5 she said -- she didn't say what the check number was or

6 anything on that check; is that correct?

7 A. I don't remember her saying a check

8 number.

9 Q. She didn't say who signed it or who

10 endorsed it or what was written on the check, correct,

11 from what she testified to?

12 A. To the best of my recollection, I

13 don't believe so.

14 Q. And you can't say who wrote what on

15 that check, can you?

16 A. I can't say who wrote what. I can

17 just tell you what Ms. Hudson told me was written on

18 the check the day that I questioned her at the bank.

19 Q. So the answer to my question is you

20 can't say; is that right?

21 A. Right.

22 Q. Did you ever offer either my client

23 or Mr. Marshall any type of test to tell whether or not

24 they were telling you the truth, any type of --



140

1 THE COURT: Finish your question.

2 Q. Did you offer Mr. Marshall or my

3 client a polygraph test?

4 A. No.


6 Q. Do you know how far James Marshall

7 lives from Ms. Robinson?

8 A. The Lincoln Heights community is

9 approximately one mile outside the city limits of

10 Roanoke Rapids on US Highway 158. And Lee Lane Road

11 where Mr. Marshall lives is the opposite direction

12 going down NC Highway 48 outside of Roanoke Rapids

13 approximately four to five miles.

14 Q. So to answer my question, about four

15 or five miles or six miles?

16 A. Four to five miles.

17 Q. Tell the members of the jury at some

18 point when you made contact with Mr. Marshall if you

19 allowed him to drive down to the police department.

20 A. Yes, I did.

21 Q. And when he met you down there, did

22 you advise him of his Miranda rights?

23 A. I don't remember if I advised him of

24 his Miranda rights at that point.

25 Q. Why did you let him drive and not


141

1 take him?

2 A. It was a noncustodial interview. He

3 wasn't in custody.

4 Q. Did you ever take an opportunity to

5 speak to the mail carrier on that route, on

6 Ms. Robinson's route to see if the mail had been picked

7 up that day?

8 A. No, I did not.

9 Q. Mr. Adams told you he was bipolar;

10 is that right?

11 A. At the end of his statement I

12 believe he did.

13 Q. You put down he had an eighth grade

14 education?

15 A. That is what he told me.

16 Q. You wrote it down; right?

17 A. Yes.

18 Q. In your opinion would you consider

19 that to be a limited education?



22 Q. Do you have an opinion as to whether

23 he understood what you were asking him?

24 A. I believe in my opinion that Marvin

25 Adams understood what I was asking him.


142

1 Q. Did he appear to be bipolar to you?



4 Q. Why is it that you allowed -- you

5 did allow Mr. James Marshall to write his statement; is

6 that correct?

7 A. Yes.

8 Q. Why didn't you allow Mr. Adams to

9 write his statement?

10 A. He asked if I would write it for

11 him.

12 Q. Did you write anywhere in the

13 statement that he asked that you write it for him?

14 A. No.

15 Q. Why did you then -- but in

16 Mr. Marshall's situation, you allowed him to write his

17 statement and then you wrote a statement, is that

18 right, or you added an addendum to the statement; is

19 that right?

20 A. No. I asked follow-up questions,

21 and I wrote down the question that I asked and the

22 answer that went along with it. And I did the same for

23 your client.

24 Q. And you just took what he said at

25 face value; is that right?


143

1 A. Yes.

2 Q. And this man talked to you twice,

3 did he not?

4 A. He did.

5 Q. If -- you said that -- you testified

6 yesterday you were able to see my client in the video;

7 is that right?

8 A. That's right.

9 Q. And you testified also that

10 Ms. Hudson told you that the check had in care of

11 Marvin Adams on it; is that right?

12 A. That's right.

13 Q. What day did she tell you that?

14 A. It was the day that I interviewed

15 her at the bank, but later on in the day.

16 Q. What day would that have been?

17 A. January 6.

18 Q. And you say you know my client; is

19 that right?


21 Q. If that is the case, why didn't you

22 arrest him that day?

23 A. Because I hadn't completed my

24 investigation.

25 Q. You said that was him on the video,


144

1 and she told you it was him trying to pass the check;

2 is that right?

3 A. She did not tell me it was him

4 trying to pass the check. She told me that the check

5 had been altered to say care of Marvin Adams and that

6 the check was altered from the original amount to say

7 $600 and the identification card along with the check

8 was that of Marvin Adams.

9 Q. The Sheriff's department is now

10 equipped with audio and video recording equipment; is

11 that correct?

12 A. I am not in the Investigative

13 Division. I do not know what technology they have

14 available to them in their interviews.

15 Q. So you don't know what is available

16 at the Sheriff's office that you work for?

17 A. It is not available to me.

18 Q. Is it available to the Sheriff's

19 department?

20 A. I don't have information as to what

21 they have available to them in the Investigative

22 Division.

23 Q. So suffice it to say that none of

24 your interaction with Mr. Adams was ever recorded,

25 either audio or visual; is that right?


145


2 Q. And you are saying basically that

3 you couldn't do it yourself; is that right? You

4 couldn't record either audio or visually; is that

5 right?



8 Q. Or you didn't?



11 THE COURT: Redirect?


13 Your Honor?

14 THE COURT: Yes.

15 (Pause)

16 REDIRECT EXAMINATION BY MR. GRAVES - 10:20 AM:

17 Q. Deputy Clark, going back to the

18 discussion about your field notes, just to reiterate,

19 what exactly are field notes?

20 A. Field notes are just random notes

21 that I jot down during my investigation, during the

22 initial investigation, just notes that I use to jot

23 down small bits of information so that I can recall it

24 while I am writing my incident report.

25 Q. And do you typically ask people to


146

1 sign your field notes?

2 A. Nobody sees my field notes except me

3 and the attorneys in discovery.

4 Q. And what do you mean by the

5 attorneys in discovery?

6 A. I am required to submit any and all

7 information or notes that I write down concerning the

8 case and submit it with the District Attorney's file.

9 Discovery is a process in which the defense has an

10 opportunity to review the same information that we have

11 in our case file.

12 Q. And did you do that in this case?

13 A. I did.

14 Q. After being questioned by Attorney

15 Summey regarding whether or not Ms. Hudson gave the

16 name of Marvin Adams, how exactly did she know that

17 name, or how was she able to give it to you?

18 A. During my initial conversation with

19 her, she told me that she wrote the name down on a

20 piece of paper. She couldn't recall the name

21 immediately. She said that she -- she gave me a name.

22 I don't have that page in front of me, but I believe it

23 was Michael -- yes, I do, Michael Adams. But she told

24 me that she couldn't remember the name; that's the

25 first name that popped in her mind. She said to give


147

1 her some time and she would locate that piece of paper

2 that she wrote it down on and she would call me at a

3 later time and give me the actual name, which she did.

4 She gave me the name Marvin Adams.

5 Q. At that point did you already have

6 the name Marvin Adams in your head as a suspect?

7 A. No.

8 Q. Did you tell her the name Marvin

9 Adams before she gave you that name?

10 A. No.

11 Q. At that point who did you have as a

12 suspect?

13 A. The only information I had was the

14 name -- at that point was Michael Adams. While I was

15 waiting on her to give me the name, to confirm or alter

16 the name that she gave me, I began doing an

17 investigation and research on that name.

18 Q. You stated to Attorney Summey that

19 Ms. Hudson had never provided a check number. Did

20 Ms. Robinson provide a check number?

21 A. She did.

22 Q. You also stated to Attorney Summey

23 that you could not say who wrote what on the check.

24 But what information could you provide that was related

25 to you by Ms. Hudson regarding what was written on the


148

1 check?

2 A. The information that I documented in

3 my incident report is that Ms. Hudson stated that two

4 black males in a dark-colored Nissan truck drove up in

5 Lane 2 of the drive-through and attempted to cash a

6 check from Ms. Robinson's personal checking account,

7 and on the check the amount had been changed from $10

8 to $600, and the payee had been altered to read care of

9 Marvin Adams. Ms. Hudson told me that the male driver

10 of the truck produced a valid identification card with

11 Marvin Adams as the name on the card. When

12 Ms. Robinson couldn't be contacted at that point,

13 Ms. Hudson returned the check back to the driver.

14 Q. Did Ms. Hudson ever indicate to you

15 that a driver's license had been presented with the

16 name James Marshall on it?

17 A. No.

18 Q. And going forward, Deputy Clark, to

19 the point that you met with Mr. Adams in the Sheriff's

20 office, could you tell us whether or not that was a

21 voluntary interaction with Mr. Adams, or did you make

22 him come to the Sheriff's office?

23 A. He was already at the Sheriff's

24 office trying to obtain warrants for an unrelated

25 matter. I met him in the lobby. I was walking through


149

1 the lobby, and I saw him there. I asked him if he had

2 time to speak to me again about the case that I was

3 investigating, if he would be willing to sit down in an

4 interview with me, which he agreed to do.

5 Q. You stated to Attorney Summey that

6 you believe that Mr. Adams understood what was going on

7 as far as the interview?

8 A. Yes.

9 Q. You also stated to Attorney Summey,

10 after being questioned by Attorney Summey, that

11 Mr. Adams had talked to you twice?

12 A. Yes.

13 Q. Each time that you spoke to

14 Mr. Adams, did his stories add up; were they the same?

15 MR. SUMMEY: Objection to that, Judge.

16 THE COURT: Rephrase your question.

17 Q. Each time you spoke with Mr. Adams,

18 did he give the same account of what had happened?



21 A. No.

22 Q. What were the differences?



25 MR. SUMMEY: Beyond the scope.


150


2 A. My first interaction with him at his

3 residence, his home, Mr. Adams denied knowing -- when I

4 showed him a picture of Mr. Marshall in the driver's

5 seat, he denied knowing who he was and had never seen

6 him. I also told him I was trying to identify the

7 passenger. And he was emphatic and told me that

8 through my investigation I would not find him as the

9 passenger.

10 On the date of the interview in which he

11 gave a written statement, on that day he admitted to me

12 as being the passenger of the vehicle, at which time I

13 knew that he had in fact seen Mr. Marshall before. So

14 he told two different versions, told me two different

15 things. The first time he told me he had no knowledge

16 of him; the second time he did.

17 Q. In regards to recording the video,

18 you stated that there is some difference between the

19 Investigative Division and -- what division are you in?

20 A. I am in the Patrol Division.

21 Q. Do you typically record interviews

22 as a member of the Patrol Division?

23 A. I do not.

24 Q. Why is that?

25 A. Because I don't have my own personal


151

1 recording device.

2 Q. So are investigative officers

3 assigned recording devices?

4 A. I don't know what their individual

5 equipment that is assigned to them. But I do not

6 believe they have recording devices assigned to them.

7 The detectives that I know that record some of their

8 interviews have their own personal recorders.

9 Q. Do you even have an office at the

10 Sheriff's department, like your own personal office?

11 A. I do not.

12 Q. Does the Investigative Division have

13 its own office?

14 A. Yes.

15 MR. GRAVES: If I may approach the

16 witness, Your Honor?

17 THE COURT: Yes.


19 identification.)

20 THE COURT: Ladies and gentlemen, I need

21 you to go to the jury room for a few minutes. Please

22 remember my previous admonitions not to discuss the

23 case among yourselves. You are not to discuss the case

24 with anyone else or allow anyone else to talk or say

25 anything about the case in your presence. If any


152



3 immediately. Please do not form an opinion about the

4 guilt or innocence of the defendant or express an

5 opinion about the case as it is thus far.

6 Please be in the jury room, and I will

7 call for you shortly. Thank you.

8 (Jury Absent - 10:30 AM:)



11 Mr. Graves, what you have just attempted

12 to identify is the bank video from First Citizens Bank

13 on the day in question; is that correct?

14 MR. GRAVES: Yes, Your Honor.

15 THE COURT: And I assume you are going

16 to be seeking to exhibit this to the jury; is that

17 correct?

18 MR. GRAVES: Not just the disk but the

19 video contained on the disk.


21 MR. SUMMEY: Judge, I would object for

22 the record. Number one, this is beyond the scope of

23 cross-examination, number one.

24 And, number two, I don't believe this

25 officer can authenticate that video. They have no one


153

1 from the bank to authenticate the authenticity of that

2 video, no one to say this is the video from First

3 Citizens Bank on such-and-such street in Roanoke Rapids

4 on January 3, 2011. They are just coming in here with

5 the video, and they want to say this is the video for

6 this particular case. I think, Judge, they have to got

7 to go through some hoops to authenticate that bank

8 video, and I don't think this officer can do it. We

9 would contend, Judge, that they need a representative

10 here from First Citizens Bank, whoever the officer was

11 that downloaded that video and then either turned it

12 over to this officer or handed it to this officer, to

13 say this is the video from this bank on this day.

14 THE COURT: As I understood it, the

15 officer saw the video.

16 You actually saw this video?

17 THE WITNESS: Yes.

18 THE COURT: And based on -- and you took

19 certain actions after you saw the video?

20 THE WITNESS: That is correct.

21 THE COURT: I don't have a problem with

22 the video being authenticated, considering he saw this

23 and he acted upon it.

24 My issue is whether it is in fact beyond

25 the scope. However, as I recall -- this witness didn't


154

1 come to you until this morning; is that correct? You

2 didn't ask him any questions until this morning?

3 MR. SUMMEY: Yes ma'am, correct.

4 THE COURT: On questions about --

5 MR. SUMMEY: I didn't ask him one word;

6 I didn't ask him one question --

7 MR. GRAVES: Attorney Summey did

8 question Deputy Clark regarding whether or not he saw

9 Mr. Adams in the video at the bank.

10 MR. SUMMEY: I don't believe that to be

11 the case.

12 THE COURT: When was that, this morning?

13 MR. GRAVES: Yes, Your Honor. I made

14 note of it when he said it.

15 THE COURT: Madam Court Reporter, if you

16 could --

17 (Pause)

18 THE COURT: The court reporter has

19 reviewed the record and determined that there were two

20 instances in which, Mr. Summey, you made reference or

21 asked questions regarding the video and the officer's

22 reviewing the video, and therefore the Court determines

23 that the video is not outside the scope of your cross,

24 so redirect of this video will not be outside the scope

25 of your cross.


155

1 MR. SUMMEY: And, Judge, I want to

2 object for the record on the issue of authenticity of

3 the actual video itself not being authenticated by any

4 member of the bank, First Citizens Bank.

5 THE COURT: Yes, sir, your objection is

6 noted.

7 With regard to the issue -- since the

8 jury is still out, with regard to the issue of the

9 amendment to the indictment, the Court will allow that

10 amendment.

11 MR. GRAVES: Your Honor --

12 THE COURT: The indictment will be

13 amended to read $10.42 versus $10, as it reads now.

14 MR. GRAVES: And, Your Honor, the State

15 only mentioned the obtaining property by false

16 pretenses, but the request would be the same for the

17 additional charge as well, because I think that same

18 figure was on the other charge.

19 THE COURT: Yes.

20 MR. GRAVES: Thank you, Judge.

21 THE COURT: Both indictments will be

22 amended to read $10.42 versus $10.

23 Anything else before we bring the jury

24 in?



156

1 MR. SUMMEY: No.

2 THE COURT: Did you want to que that up

3 so you don't have to do it in front of the jury, or is

4 it already done?

5 (Pause while the television was set up)

6 THE COURT: Ask the jury to come back.


8 THE COURT: Yes, sir, Mr. Graves?


10 Your Honor?



13 has been marked as State's Exhibit Number 7. Could you

14 identify that item?

15 A. This is the CD that I was given by

16 the First Citizens Bank representative on February 2.

17 It contains the video footage, the security

18 surveillance from the day in question.

19 Q. And that was given to you on

20 February 2?


22 Q. And what was the original date of

23 the offense?

24 A. The date of offense was on

25 January 3.


157

1 Q. Were you initially given the video

2 evidence, or what were you given first?

3 A. At first I was given the photographs

4 from the bank.


6 Your Honor?

7 THE COURT: Yes.

8 Q. I am handing you what have been

9 marked as State's Exhibits 2, 3, and 4. Could you

10 identify those items?

11 A. These are the photographs that I

12 received from the bank during my initial investigation,

13 from Lane 2 of the bank drive-through.

14 MR. GRAVES: Your Honor, the State

15 hereby moves to have those photographs admitted in the

16 State's evidence.


18 THE COURT: Do you wish to be heard?

19 MR. SUMMEY: No.

20 THE COURT: Objection overruled; motion

21 allowed.

22 Q. And after you received those

23 photographs, what steps did you take after that in

24 terms of obtaining more video evidence?

25 A. Upon reviewing these photos of the


158

1 bank, I informed them that I would need a copy of the

2 -- a digital copy of the actual surveillance video,

3 which at that time they told me that I could not get

4 that --

5 MR. SUMMEY: Objection to what they told

6 him.

7 MR. GRAVES: Your Honor, this is not

8 being offered to prove the truth of the matter

9 asserted.


11 A. They were not able to produce the

12 video at that office.

13 MR. SUMMEY: Objection to what they were

14 not able to do, Judge.


16 A. They would have to get their

17 corporate office to produce the video.

18 Q. And did you eventually obtain the

19 video?

20 A. I did.

21 Q. And how did you receive it?

22 A. I was contacted by the bank on

23 February 2 and told that the video was available, and I

24 went by the bank and picked it up.

25 Q. And what steps did you take after


159

1 you picked up that video?

2 A. After I picked up the video, I took

3 it to the Sheriff's office, where I viewed the footage

4 on one of our computers.

5 Q. And from that footage, were you able

6 to come up with a suspect?

7 A. Yes.

8 Q. And who was that suspect?



11 A. I was able to identify the passenger

12 as Marvin Adams.

13 Q. And was that based solely on the

14 video?

15 A. Yes.


17 the State would ask that the Court allow the State to

18 play the video.

19 THE COURT: Are you moving to admit it?

20 MR. GRAVES: Yes, Your Honor. The State

21 moves to admit the video.

22 THE COURT: It shall be received.

23 (The witness left the witness stand and

24 testified in front of the jury box as follows:)

25 MR. GRAVES: Just for clarification, is


160

1 Deputy Clark allowed to tell what he is seeing in the

2 video?

3 THE COURT: Yes.

4 Q. Deputy Clark, as I play this video,

5 would you just explain to the members of the jury

6 exactly what we are looking at and your impressions

7 when you are watching this video.

8 (State's Exhibit Number 7 was turned on

9 and began playing.)

10 A. This is the video from Lane 2. That

11 is the suspect vehicle coming into view there. The

12 angle just before this, if you -- are able to back it

13 up?

14 (State's Exhibit Number 7 was rewound.)

15 A. It was at that angle there that I

16 was able to --



19 MR. SUMMEY: If I may?

20 THE COURT: Yes.


22 not recorded.)

23 Q. Continue, Deputy Clark.

24 A. From this view here, I was able to

25 recognize the passenger as Marvin Adams.


161

1 Q. Had you ever seen him before?

2 A. Yes. I am familiar with Mr. Adams.

3 Q. So when you saw this video, did you

4 just immediately know who it was?

5 A. No. I knew the original name given

6 on the check and the identification card passed was

7 Marvin Adams. And after seeing the video and seeing

8 the passenger -- I personally know Marvin Adams through

9 dealing with him job-related, and I was able to

10 recognize him myself. It is a much clearer picture

11 here than on the photographs that the bank printed out

12 in black and white.

13 Q. Could you continue to tell us what

14 you see.

15 A. That is the witness Mr. Marshall,

16 and he is putting the check and the driver's license

17 inside the machine there.

18 Q. At that angle, can you see the other

19 person in the vehicle?

20 A. No, not at that particular angle.

21 Q. And can you see what the other

22 person may have done in the vehicle?

23 A. No.

24 Q. If you could, retake the witness

25 stand.


162

1 (State's Exhibit Number 7 was turned

2 off, and the witness returned to the stand.)

3 Q. Deputy Clark, after you made the

4 identification of Mr. Adams in that video, did anything

5 come about after that that caused you to question the

6 identification that you had made of Mr. Adams?



9 A. No. I was positive in my

10 identification of Mr. Adams.

11 Q. And approximately how long had you

12 known or dealt with Mr. Adams before making an

13 identification in the video?



16 A. I had known him for a couple of

17 years.


19 Honor.


21 RECROSS EXAMINATION BY MR. SUMMEY - 11:04 AM:

22 Q. You said that your field notes are

23 random, is that right, the notes you take are random?

24 A. Yes.

25 Q. Well, aren't those the actual notes


163

1 from witnesses that you talk to?


3 THE COURT: Your field notes are random?

4 Q. Did you not testify on redirect that

5 your field notes are random?

6 A. I testified that the field notes are

7 not exactly written one page for each person that I

8 talk to.

9 Q. Did you not say they were random?

10 A. I don't recall my exact words.

11 Q. Those are your actual notes, is that

12 right, from when you talk to witnesses out in the

13 field; correct?

14 A. Yes.

15 Q. And you never located a piece of

16 paper with Mr. Adams' name on it; is that right?

17 A. I did not.

18 Q. And you were also given the name of

19 Michael High; is that right?

20 A. Yes.

21 Q. And if you could, where are your

22 field notes -- when you talked to Mr. Adams on

23 February 2 of 2011, you said you talked to him at his

24 residence; is that right?

25 A. Yes.


164

1 Q. So that would have been out in the

2 field; is that correct?

3 A. Yes.

4 Q. So where are your field notes from

5 your encounter with him on February 2?

6 A. I didn't make any.



9 Q. Why didn't you make any?

10 A. Because I could recall the little

11 bit of information that I got that day.

12 Q. So sometimes you do field notes and

13 sometimes you don't?


15 Q. So when do you determine when you

16 are going to do field notes and when you are not?

17 A. I don't have any specific way of

18 determining.

19 Q. And you testified that you showed

20 Mr. Adams some photos on February 2, 2011?

21 A. Yes.

22 Q. Which photos did you show him?

23 A. The three photos that were here.

24 Q. How do you know those are the three

25 photos you showed him?


165

1 A. Because these are the three photos

2 that I was using during my investigation.

3 Q. Did you have him sign anything

4 showing that he is not in the photo?

5 A. No.


7 THE COURT: Yes. Would your question

8 be, did you have him sign anything showing that he was

9 not in the photos?

10 MR. SUMMEY: Yes, that he was or was not

11 in the photos.

12 Q. Did you have him sign anything

13 acquiescing or consenting or agreeing that he was or

14 was not in the photos?

15 A. No.


17 THE COURT: Yes.

18 Q. Look at State's Exhibit Number 3.

19 That's about the best -- that's a clear photo of two

20 people in a truck; is that right?


22 Q. And in that photo are you able to

23 say that is Marvin Adams?

24 A. In this photo?

25 Q. Yes, sir.


166

1 A. No.

2 Q. So your testimony to the jury is in

3 State's Exhibit Number 3 you can't say that that is

4 Marvin Adams in that photo in the passenger's seat; is

5 that correct?


7 Q. And this photo was taken from this

8 video that you just showed; is that right?


10 Q. It is the same photo?


12 Q. And in State's Exhibits Number 2 and

13 4, those just show the driver; is that right?


15 Q. In that video that you showed --

16 MR. SUMMEY: If you could, bring that

17 video back up, Mr. Graves. I don't know how to use

18 your --

19 Q. If you could step down.

20 (The witness left the stand and

21 testified in front of the jury box as follows:)

22 (State's Exhibit Number 7 was turned on

23 and began playing.)

24 Q. That is the video from Lane 2; is

25 that right?


167

1 A. Yes.

2 Q. Is that what you are telling the

3 members of the jury you can clearly see that is Marvin

4 Adams?

5 A. That is correct. The quality of the

6 video is much greater than the quality of the

7 photograph that I was given.

8 Q. This is the same quality video that

9 you saw when you are saying that is Marvin Adams on the

10 day in question?

11 A. Yes.

12 Q. That is the same quality video, and

13 you can tell exactly who that is in that blurry video?

14 A. Yes, because I am familiar with him.

15 Q. That is a blurry picture, is it not?

16 A. I can tell that is him.

17 (State's Exhibit Number 7 was turned

18 off, and the witness returned to the stand.)


20 THE COURT: You may step down.

21 (The witness left the stand.)

22 MR. GRAVES: At this time the State

23 would move to admit into evidence State's Exhibit

24 Number 1, as well as publish all of the State's

25 exhibits to the jury.


168

1 THE COURT: All right.

2 Ladies and gentlemen, the State is now

3 seeking to publish to you all of their exhibits other

4 than the video, which you have already seen.

5 Publishing just means they are going to show them to

6 you. If you will, review each of the exhibits to your

7 satisfaction. And once you have reviewed it to your

8 satisfaction, pass it on to the next juror without

9 comment, please.

10 (Exhibits published to the jury)

11 THE COURT: Ladies and gentlemen, I need

12 you to go to the jury room.

13 Sheriff, wherever the exhibit is, I need

14 you to collect that.

15 Ladies and gentlemen, I will ask you to

16 step to the jury room. Please be in there, and

17 remember my previous admonitions. You are not to talk

18 about the case among yourselves. You are not to allow

19 anyone else to talk about the case with you. Please do

20 not form an opinion about the guilt or innocence of the


22 thus far. Thank you.





169

1 Please, please, please copy exhibits.

2 One of the jurors needed a bathroom break.

3 (Pause 12:03 PM to 12:15 PM)

4 (Jury present - 12:15 PM:)


6 gentlemen. We have prepared six copies of the last

7 exhibit so you all can read along and speed it up a

8 little bit.

9 Sheriff, if you would, give six copies

10 -- and I believe Ms. Jones was in the middle of

11 reviewing the last exhibit. Is that correct?

12 JUROR NUMBER 12: Yes ma'am.

13 (Continuation of exhibits being

14 published to the jury, 12:16 PM - 12:26 PM)

15 THE COURT: Mr. Graves, it is with you.

16 MR. GRAVES: Your Honor, that is the

17 close of the State's evidence.

18 THE COURT: Ladies and gentlemen, we are

19 going to take our lunch recess now. I want to remind

20 you of the duties that I listed for you previously. It

21 is our duty not to talk among yourselves about this

22 case. It is your duty not to talk to the parties,

23 witnesses, or counsel about anything. It is your duty

24 not to talk with anyone else or allow anyone else to

25 talk or say anything about this case in your presence.


170

1 If anyone communicates or attempts to communicate with

2 you about this case, you must report that to the Court




6 Please be back in the jury room this

7 afternoon at 2 o'clock, and we will proceed at that

8 time with this case. Thank you.




12 Mr. Summey, do you wish to be heard?

13 MR. SUMMEY: Yes, Judge. We will not be

14 presenting any evidence, but I would like to make a

15 couple of motions at the close of the State's case.

16 If Your Honor please, with respect to

17 the larceny of a chose in action and the possession of

18 stolen goods or property, Judge, it is alleged that my

19 client did steal, take, or carry away another's chose

20 in action, the personal property, personal check Number

21 3352, from First Citizens Bank valued at $10.42 from

22 the possession of Joanne Robinson. And, Judge, the

23 misdemeanor possession of stolen property would be the

24 personal check Number 3352 from First Citizens Bank.

25 If Your Honor please, Judge, there has


171

1 been no evidence that my client stole, took, or carried

2 away any check belonging to Joanne Robinson. There is

3 no witness who testified that they saw my client take

4 the check.

5 I believe, Judge, the DA's office may

6 come up with the doctrine of recent possession. But,

7 Judge, again, there has been no evidence that my client

8 possessed anything other than -- the only evidence --

9 the tangible evidence shows that Mr. James Marshall was

10 in possession of the check. Mr. James Marshall is the

11 one who put it in the driver's teller machine and sent

12 it to Ms. Hudson.

13 Judge, again, there has been no tangible

14 evidence or testimony that the State has elicited from

15 Ms. Robinson showing that that check that she put in

16 the mail that morning was the actual check that

17 Mr. Marshall would have or tried to pass to Ms. Hudson

18 at 4 o'clock in the afternoon. You have got a six-hour

19 window, Judge, from 10:00 AM until 4 in the afternoon.

20 Ms. Hudson testified that she was not able to take any

21 identifying information off the check. Ms. Robinson

22 testified that the check Number 3352 was the check that

23 she wrote for $10.42 to an address labeling company.

24 There is no evidence, Judge, that the State elicited --

25 was that the only check that you put in the mail that


172

1 day? Was that the only piece of mail that you put it

2 the flow of commerce that day? None of that was

3 elicited. She could have put three or four or five

4 checks in the mail. But be that as it may, there is no

5 evidence to show, Judge, that that check that

6 Mr. Marshall tried to pass off to Ms. Hudson is that

7 check that Ms. Robinson put in the mail at 10 o'clock

8 that morning.

9 So, Judge, again, on the larceny of a

10 chose in action and misdemeanor possession of stolen

11 goods, Judge, we are arguing that there is no evidence

12 that my client either possessed the check -- there is

13 no evidence that he stole, took, or carried away -- did

14 steal, take, or carry away that check.

15 And, again, that nexus between that

16 check that Ms. Robinson put in her mailbox that morning

17 -- there has been no nexus shown or no tie between

18 whatever was presented that afternoon to Ms. Hudson.

19 There is no check to show the jury. And from what

20 Ms. Hudson testified to, Judge, she couldn't give you

21 anything on that check. She couldn't tell you who the

22 ID belonged to. She couldn't tell you what was written

23 on the check, who endorsed the check. She couldn't

24 tell you who it was made out to. She couldn't tell you

25 what the check number was.


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1 And I think, Judge, there is a quantum

2 leap that the State -- there is an assumption the State

3 wants you to make. I think it has been an assumption

4 from day one, from minute one that that is the check

5 that -- that that check for $10 is the check that

6 Mr. Marshall tried to pass that day. And, Judge, I

7 don't think there has been evidence to show that that

8 has been presented by the DA's office.

9 And then on the attempt to obtain

10 property by false pretenses, Judge, the instruction

11 says that the defendant made representation to another,

12 which representation was false and was calculated to

13 deceive. Judge, in this particular case Mr. Marshall

14 made all the representations. My client didn't make

15 any representations. All you have got, Judge, is my

16 client sitting in the car -- sitting in the truck with

17 Mr. Marshall, if you believe the video. There is

18 nothing to show that my client did anything or passed

19 anything to Mr. Marshall. There is no evidence to show

20 that Mr. Marshall passed or did anything to him after

21 that check came back through the tunnel, through the

22 drive-through carrying window, or the machine.

23 So, Judge, again, there is no

24 representation made by my client to Ms. Hudson that

25 would have allowed him to receive any money from First


174

1 Citizens Bank to the detriment of Ms. Robinson, Judge.

2 All the representations were made by Mr. Marshall and

3 not my client. Again, Judge, I make that motion to

4 dismiss on those two grounds.

5 MR. GRAVES: Your Honor, the State asks

6 that the Court deny Attorney Summey's -- both of his

7 motions. In regards to the larceny of a chose in

8 action, the Court is well aware of the doctrine of

9 recent possession. And all that simply needs to be

10 shown is that property was stolen, that the defendant

11 -- in this case Mr. Adams -- had possession of that

12 property, and that he had possession of the property so

13 soon after it was stolen and under such circumstances

14 as to make it unlikely that he obtained that property

15 honestly.

16 Your Honor, there has been testimony

17 from Deputy Clark, who initially had contact with

18 Ms. Hudson, that the check had been altered from $10 to

19 read $600. There has been testimony that the payee had

20 been altered from -- I forgot the labeling company --

21 but it had been altered to read care of Marvin Adams.

22 And we have direct testimony from Ms. Robinson that she

23 had placed a check -- a check outside of her mailbox

24 and clipped it on. She didn't state that she had

25 placed multiple checks outside of her mailbox and


175

1 clipped them on. She testified that that was her

2 common, her routine -- her common course of action was

3 when she wants to place something on the mailbox for

4 the postman to see, she clips it onto the outside of

5 her mailbox, and that is how she places her mail into

6 the possession of the postman. And it is visible to

7 the postman, Ms. Robinson testified, from where she was

8 sitting out to the first row in the courtroom.

9 Your Honor, the State would submit that

10 there has been evidence that this was the same check

11 that got passed off that day. Even though Ms. Hudson

12 did not keep the check, but she did remember at that

13 time the information that was on that check, and she

14 relayed it to Deputy Clark, who relayed it to the Court

15 here both yesterday and today.

16 In regards to the attempted obtaining

17 property by false pretenses, Your Honor, Mr. Marshall

18 testified directly that not only was Mr. Adams sitting

19 in the truck, but that Mr. Adams passed him the check

20 -- well, before that, Mr. Adams had him drive through

21 the drive-through and then passed him a check to

22 present to the teller. So If Mr. Marshall was passing

23 off a check, he was doing so at the direction of

24 Mr. Adams.

25 And, Your Honor, the reason why he is


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1 charged with attempted obtaining property by false

2 pretenses is that he just fell short of it. Ms. Hudson

3 testified that had she not had the gut feeling that she

4 had, the transaction would have went through, and she

5 wouldn't have sent the check back. And that is why it

6 is an attempted obtaining property by false pretenses.

7 The representation that the State would

8 contend that was made that was false was the

9 representation that this check was made out to the care

10 of Marvin Adams and that the amount was for $600 worth

11 of CDs. Even Ms. Hudson testified that that didn't

12 even appear correct or true on its face and that is why

13 she returned the check.

14 And, Your Honor, just to reiterate,

15 there has been testimony from Ms. Robinson as to the

16 check number and as to her check being missing and that

17 she never made a check out to Mr. Marvin Adams or

18 Marvin High or Michael Adams or Michael High, none of

19 the names associated with this case. She did not make

20 any check out to any of those people.

21 So the State would submit that Mr. Adams

22 did come into possession of the check and that he took

23 it and carried it away and that can be shown to the

24 jury by the doctrine of recent possession.

25 THE COURT: Your motion is denied. Your


177

1 motions are denied.

2 I understood that there will not be

3 evidence by the defendant; is that correct?

4 MR. SUMMEY: Yes.

5 THE COURT: Do you wish to renew your

6 motions at the end of all the evidence?

7 MR. SUMMEY: Yes.

8 THE COURT: Those motions are denied.

9 Any objection to us entering into the

10 charge conference?

11 MR. SUMMEY: No.


13 THE COURT: I have prepared a rough

14 draft of my potential charge so that you all can read

15 along with me.

16 Let the record reflect that we are

17 gathered for the purpose of a charge conference at this

18 point. The Court proposes to charge the jury as such:

19 101.05, function of the jury; 101.10, burden of proof

20 and reasonable doubt; 101.15, credibility of witnesses;

21 101.20, weight of the evidence; 104.05 circumstantial

22 evidence, 104.20, testimony of interested witness;

23 104.50, photographs and video evidence; 120.10,

24 definition of intent; 101.30, effect of the defendant's

25 decision not to testify -- Mr. Summey, are you


178

1 requesting that?

2 MR. SUMMEY: Yes.

3 THE COURT: -- 201.10, the general

4 attempt charge. I have highlighted that, because what

5 I have done is -- what I intend to do is to give 219.10

6 modified to include six elements instead of five, and

7 the mandate will read: If you find from the evidence

8 beyond a reasonable doubt that on or about the alleged

9 date the defendant attempted to commit obtaining

10 property by false pretense and so on and so forth,

11 instead of the mandate on the obtaining property by

12 false pretense charge.

13 Any objection to that by the State?


15 THE COURT: By the defendant?

16 MR. SUMMEY: No.

17 THE COURT: So some of that highlighted

18 will come out.

19 Larceny of a chose in action -- I could

20 not find an instruction for that, so I altered the

21 felonious larceny charge. The statute says it is a

22 felony -- it's a Class H Felony, so I used a Class H

23 felony larceny charge and changed it as you see there.

24 I will define a chose in action as a check.

25 MR. GRAVES: Your Honor, will the Court


179

1 strike the portion regarding felonious versus

2 non-felonious larceny?

3 THE COURT: I will. Is it in there?

4 Are you looking at the larceny of a chose in action?

5 MR. GRAVES: Yes, Your Honor.

6 THE COURT: I must have taken it out

7 after I printed it for you all. But it will read:

8 Larceny of a chose in action: The defendant has been

9 charged with larceny of a chose in action. For you to

10 find the defendant guilty of this offense the State

11 must prove six things beyond a reasonable doubt.

12 MR. SUMMEY: Well, Judge, I would be

13 asking for an attempted misdemeanor larceny

14 instruction.

15 THE COURT: Attempted misdemeanor

16 larceny?

17 MR. SUMMEY: Yes, ma'am. The jury could

18 reasonably -- our position would be that the jury could

19 reasonably find that my client made no representation

20 to First Citizens Bank and/or to Ms. Hudson.

21 THE COURT: Attempted misdemeanor

22 larceny?

23 MR. SUMMEY: Yes, ma'am, we are asking

24 for a jury instruction on attempted misdemeanor

25 larceny. The value of the check was under $600. They


180

1 could find he might have attempted to steal money but

2 that he didn't make any representations to the bank.

3 So based upon that --

4 THE COURT: Attempted misdemeanor?


6 THE COURT: Your motion is denied.

7 MR. SUMMEY: I would like to note an

8 exception to your ruling.

9 THE COURT: So ordered.

10 MR. SUMMEY: And note my objection as

11 well.

12 THE COURT: Your objection is noted.

13 Going back to larceny of a chose in

14 action, any objection to the charge as it is there?


16 MR. SUMMEY: I think Mr. DA was asking

17 the Court to strike the non-felonious portion.

18 THE COURT: That is the portion that is

19 highlighted. I am. That is why it is highlighted,

20 because I am going to take it out. Isn't it grayed

21 out?

22 MR. GRAVES: Yes, Your Honor?

23 THE COURT: The next is 216.46,

24 misdemeanor possession of stolen goods; and the

25 concluding instruction 101.35, and included in that


181

1 101.36.

2 MR. SUMMEY: Again, Judge, I would like

3 to renew my motion or request for a jury instruction on

4 attempted misdemeanor larceny. And the basis for that

5 motion is, Judge, it is our position that the jury

6 could find that my client did not make any

7 representation but that there was an attempt by him to

8 take money from Ms. Robinson in the amount of $600.

9 But they could find --

10 THE COURT: The attempt was not to -- I

11 am sorry, Mr. Summey, go ahead.

12 MR. SUMMEY: I am saying, it is our

13 position that the jury could reasonably find that he

14 made no representation but that there was an attempt by

15 him to get money. So I am asking the Court to give the

16 jury instruction for attempted misdemeanor larceny.

17 THE COURT: But the attempt was for

18 $600, so that would be --

19 MR. SUMMEY: A misdemeanor.

20 THE COURT: $600 --

21 MR. SUMMEY: Under $1,000 is not a

22 felony. Misdemeanor larceny is under $1,000.

23 THE COURT: But the larceny was the

24 taking of the check. The passing of the check was the

25 obtaining property by false pretense.


182

1 MR. SUMMEY: I am saying the amount of

2 the check would have been -- if it was -- either the

3 taking of the check, which there is no value on that --

4 THE COURT: The taking is larceny.


6 THE COURT: The taking is larceny. So

7 the larceny -- if they believe that he took the check,

8 there's no attempted taking of the check. The subject

9 of the larceny is the check, not the $600.

10 MR. SUMMEY: Again, Judge, our position

11 is the representation, the attempt to obtain property

12 --

13 THE COURT: Which is the obtaining.

14 Once you start saying representation, you move to

15 obtaining; you're off the larceny. Once you start

16 talking about misrepresentation, that is obtaining

17 property by false pretenses. Misdemeanor larceny

18 doesn't have anything to do with that.

19 MR. SUMMEY: Okay. Again, we would

20 respectfully request the Court for the attempted

21 misdemeanor larceny.

22 THE COURT: Your request is denied

23 again.

24 Any objection to the charges other than

25 the one that has been announced by the defendant?


183

1 MR. GRAVES: Nothing from the State,

2 Your Honor.

3 THE COURT: In 11 CRS 50643, attempt to

4 obtain property by false pretenses, the verdict sheet

5 will read guilty of attempt to obtain property by false

6 pretenses or not guilty. In 11 CRS 50644, the verdict

7 sheet will read larceny of a chose in action or not

8 guilty, and the second count, possession of stolen

9 property or not guilty.

10 (Pause while verdict sheets were printed

11 and distributed to counsel)

12 THE COURT: Have each of you had an

13 opportunity to review the verdict sheets?

14 MR. GRAVES: Yes, Your honor.

15 MR. SUMMEY: Yes.

16 THE COURT: Any objection from the

17 State?

18 MR. GRAVES: Not from the State.

19 THE COURT: From the defendant?

20 MR. SUMMEY: No.

21 THE COURT: Any objection to us closing

22 the charge conference?


24 THE COURT: Mr. Summey, are you waiving

25 opening?


184

1 MR. SUMMEY: Yes.

2 THE COURT: We will gather at 2 o'clock.

3 Sheriff, take a recess until 2 o'clock.

4 (Recess - 12:49 PM to 2:10 PM)

5 THE COURT: Over the luncheon recess

6 Mr. Graves indicated to my office that the State wished

7 to revisit the charge.

8 MR. GRAVES: Yes. I believe during the

9 charge conference the Court did indicate that the Court

10 would be instructing on the doctrine of recent

11 possession. Then when I went through the written

12 portion, or the printed portion, I didn't see it in

13 there. And I was just seeking some clarification.

14 THE COURT: I did not say that I was

15 going to be charging on that. Mr. Summey, do you wish

16 to be heard?

17 MR. SUMMEY: We would object for the

18 record.

19 If I may, Judge, from my understanding,

20 the Court is going to use the jury instruction for

21 felonious larceny.

22 THE COURT: Yes. For the larceny of a

23 chose in action, yes, I am.

24 MR. SUMMEY: But you are going to didact

25 the portion about the misdemeanor?


185

1 THE COURT: Correct.

2 MR. SUMMEY: We would object to the

3 didaction or redaction or --

4 THE COURT: Deletion.

5 MR. SUMMEY: We would object to the

6 Court's deletion of the misdemeanor portion, again

7 based upon the same grounds of the attempted

8 misdemeanor larceny.

9 THE COURT: I will hear you on the

10 misdemeanor larceny. I am not going to hear you on

11 attempted misdemeanor larceny, because I still haven't

12 grasped that. But if you would like to be heard on the

13 misdemeanor larceny, I will entertain that.

14 MR. SUMMEY: Your Honor, we would ask

15 the Court to consider instructing on misdemeanor

16 larceny based upon the grounds of the check that was

17 taken, the value of the check, which there is no value

18 enunciated in the DA's report, but the Court can take

19 judicial notice of the value of a check, being less

20 than $1 or $2, however much it takes to print the paper

21 for the check itself.

22 THE COURT: But if they found that it

23 was -- I am going to instruct them -- Mr. Graves, I'll

24 hear you.

25 MR. GRAVES: Your Honor, just in terms


186

1 of misdemeanor larceny, the State would object due to

2 the fact that if it was a blank check, misdemeanor

3 larceny would be the appropriate charge. But being

4 this check was filled out -- and there is case law on

5 point. But being that the check was made out and had a

6 value, the State would submit that misdemeanor larceny

7 wouldn't fit under those circumstances.

8 MR. SUMMEY: And, Judge, even with it

9 being filled out with a value, that value is still

10 under $1,000.

11 THE COURT: But regardless of -- in this

12 Court's opinion, regardless of the value written on it

13 or if it was a blank check, it is still -- maybe if it

14 was a blank check, maybe not -- but it still qualifies

15 as a chose in action. And larceny of a chose in action

16 is a felony, regardless of the amount written on it.

17 It is the stealing of the chose in action that makes it

18 a felony. So if there was any larceny committed at

19 all, it would be a felony. So your motion is denied.

20 I have added the doctrine of recent

21 possession, and I am going to put that right before I

22 charge on larceny of a chose in action.

23 MR. GRAVES: Thank you, Judge.

24 THE COURT: Anything else before we

25 bring the jury in?


187



3 THE COURT: Sheriff, ask the jury to

4 come in.


6 THE COURT: Ladies and gentlemen, all of

7 the evidence has been presented. It is now time for

8 the final arguments of the lawyers. At the conclusion

9 of these arguments, I will instruct you on the law in

10 this case, and then you will be taken to the jury room

11 to begin your deliberations.

12 The final arguments of the lawyers are

13 not evidence but are given to assist you in evaluating

14 the evidence. The lawyers are permitted in their final

15 statements to argue, to characterize the evidence, and

16 to attempt to persuade you to a particular verdict.

17 It is improper for a lawyer in a final

18 argument to become abusive, to inject personal

19 experiences, to express a personal belief as to the

20 guilt or innocence of the defendant, or to make

21 arguments on the basis of matters outside the record

22 except for matters concerning which the Court may have

23 taken judicial notice. A lawyer may, however, on the

24 basis of the lawyer's analysis of the evidence, argue

25 any position or conclusion with respect to a matter in


188

1 issue.

2 If in the course of making a final

3 argument a lawyer attempts to restate a portion of the

4 evidence and your recollection of the evidence differs

5 from that of the lawyer, you are, in recalling and

6 remembering the evidence, to be guided exclusively by

7 your own recollection of the evidence.

8 The jury is with the State.

9 (Mr. Graves made a closing argument.)

10 (Mr. Summey made a closing argument.)

11 THE COURT: Members of the jury, I am

12 going to let you take an afternoon break now. I want

13 to remind you of the duties that I listed for you

14 previously. It is our duty not to talk among

15 yourselves about this case. It is your duty not to

16 talk to the parties, witnesses, or counsel about

17 anything. It is your duty not to talk with anyone else

18 or allow anyone else to talk or say anything about this

19 case in your presence. If anyone communicates or

20 attempts to communicate with you about this case, you

21 must report that to the Court immediately. You have a

22 duty not to form an opinion about the guilt or

23 innocence of the defendant or express an opinion about

24 the case as it is thus far.

25 Please be back in the jury room at 3:30,


189

1 and I will give my charge or instructions to you at

2 that time.



5 we are outside the presence of the jury. We will be at

6 ease until 3:30.

7 (Recess - 3:15 PM to 3:32 PM)

8 THE COURT: Ask the jury to come in,

9 please.


11 THE COURT: Members of the jury, it is

12 now time for me to give you my charge, or the law that

13 both of the lawyers have been talking to you about. I

14 have prepared copies so that each of you can have your

15 own copy, and you can read along with me. I am going

16 to read it regardless of whether you read along with me

17 or not. But sometimes people get a better

18 understanding if they are able to read along instead of

19 being read to. If you choose to read along with me, I

20 ask that you do just that, that you read along with me.

21 Don't lag behind me or read ahead of, so that we are

22 all at the same place at the same time.

23 Members of the jury, all of the evidence

24 has been presented. It is now your duty to decide from

25 this evidence what the facts are. You must then apply


190

1 the law which I am about to give you to those facts.

2 It is absolutely necessary that you understand and

3 apply the law as I give it to you and not as you think

4 it is or as you might like it to be. This is important

5 because justice requires that everyone tried for the

6 same crime be treated in the same way and have the same

7 law applied to them.

8 The defendant has entered a plea of not

9 guilty. The fact that he has been charged is no

10 evidence of guilt. Under our system of justice, when a

11 defendant pleads not guilty, he is not required to

12 prove his innocence; he is presumed to be innocent.

13 The State must prove to you that the defendant is

14 guilty beyond a reasonable doubt.

15 A reasonable doubt is a doubt based on

16 reason and common sense arising out of some or all of

17 the evidence that has been presented or the lack or

18 insufficiency of the evidence, as the case may be.

19 Proof beyond a reasonable doubt is proof that fully

20 satisfies or entirely convinces you of the defendant's

21 guilt.

22 You are the sole judges of the

23 credibility, that is, the believability of each

24 witness. You must decide for yourselves whether to

25 believe the testimony of any witness. You may believe


191

1 all or any part or none of what a witness has said on

2 the stand.

3 In determining whether to believe any

4 witness, you should apply the same tests of

5 truthfulness which you apply in your everyday affairs.

6 These tests may include, among other things: the

7 opportunity of the witness to see, hear, know, or

8 remember the facts or occurrences about which they

9 testified; the manner and appearance of the witness;

10 any interest, bias, or prejudice the witness may have;

11 the apparent understanding and fairness of the witness;

12 whether the testimony is reasonable; and whether the

13 testimony is consistent with other believable evidence

14 in the case.

15 You are the sole judges of the weight to

16 be given any evidence. By this I mean if you decide

17 that certain evidence is believable, you must then

18 determine the importance of that evidence in light of

19 all other believable evidence in the case.

20 There are two types of evidence from

21 which you may find the truth as to the facts of a case,

22 direct and circumstantial evidence. Direct evidence is

23 the testimony of one who asserts actual knowledge of a

24 fact, such as an eyewitness. Circumstantial evidence

25 is proof of a chain or group of facts and circumstances


192

1 indicating the guilt or innocence of a defendant. The

2 law makes no distinction between the weight to be given

3 to either direct or circumstantial evidence, nor is a

4 greater degree of certainty required of circumstantial

5 evidence than of direct evidence. You should weigh all

6 of the evidence in the case. After weighing all of the

7 evidence, if you are not convinced of the guilt of the

8 defendant beyond a reasonable doubt, you must find the

9 defendant not guilty.

10 You may find that a witness is

11 interested in the outcome of this trial. In deciding

12 whether or not to believe such a witness, you may take

13 the witness's interest into account. If after doing so

14 you believe the testimony in whole or in part, you

15 should treat what you believe the same as any other

16 believable evidence.

17 Photographs and a video cd were

18 introduced into evidence in this case for the purpose

19 of illustrating and explaining the testimony of a

20 witness. These photographs and video may not be

21 considered by you for any other purpose.

22 Intent is a mental attitude seldom

23 provable by direct evidence. It must ordinarily be

24 proven by circumstances from which it may be inferred.

25 You arrive at the intent of a person by such just and


193

1 reasonable deductions from the circumstances proven as

2 a reasonably prudent person would ordinarily draw

3 therefrom.

4 The defendant in this case has not

5 testified. The law gives the defendant this privilege.

6 This same law also assures the defendant that this

7 decision not to testify creates no presumption against

8 the defendant. Therefore, the silence of the defendant

9 is not to influence your decision in any way.

10 The defendant has been charged with

11 attempted obtaining property by false pretenses. For

12 you to find the defendant guilty of this offense, the

13 State must prove six things beyond a reasonable doubt:

14 First, that the defendant made a

15 representation to another.

16 Second, that this representation was

17 false.

18 Third, that this representation was

19 calculated and intended to deceive.

20 Fourth, that the victim was in fact

21 deceived by this representation.

22 Fifth, that the defendant thereby

23 attempted to obtain property from the victim.

24 And, sixth, that at the time the

25 defendant had this intent, he performed an act which


194

1 was calculated and designed to bring about obtaining

2 property by false pretenses but which fell short of the

3 completed offense and which came so close to bringing

4 it about that in the ordinary and likely course of

5 things he would have completed that crime had he not

6 been stopped or prevented from completing his apparent

7 course of action.

8 Mere preparation or mere planning is not

9 enough to constitute such an act. But the act need not

10 necessarily be the last act required to complete the

11 offense.

12 If you find from the evidence beyond a

13 reasonable doubt that on or about the alleged date the

14 defendant intended to obtain property by false pretense

15 and performed acts which were designed to bring this

16 about but which fell short of the completed offense and

17 which in the ordinary and likely course of things would

18 have resulted in obtaining property by false pretense

19 had he not been stopped or prevented from completing

20 his apparent course of action, it would be your duty to

21 return a verdict of guilty of attempted obtaining

22 property by false pretense. If you do not so find or

23 have a reasonable doubt as to one or both of these

24 things, it would be your duty to return a verdict of

25 not guilty.


195

1 The State seeks to establish the

2 defendant's guilt by the doctrine of recent possession.

3 For this doctrine to apply, the State must prove three

4 things beyond a reasonable doubt.

5 First, that property was stolen.

6 Second, that the defendant had

7 possession of this property. A person possesses

8 property when that person is aware of its presence and

9 has, either alone or together with others, both the

10 power and intent to control its disposition or use.

11 And, third, that the defendant had

12 possession of this property so soon after it was stolen

13 and under such circumstances as to make it unlikely

14 that the defendant obtained possession honestly.

15 If you find these things from the

16 evidence beyond a reasonable doubt, you may consider

17 them together with all other facts and circumstances in

18 deciding whether or not the defendant is guilty of

19 larceny.


21 larceny of a chose in action.

22 For you to find the defendant guilty of

23 this offense, the State must prove six things beyond a

24 reasonable doubt.

25 First, that the defendant took property


196

1 belonging to another person.

2 Second, that the defendant carried away

3 the property.

4 Third, that the victim did not consent

5 to the taking and carrying away of the property.

6 Fourth, that at the time of the taking,

7 the defendant intended to deprive the victim of its use

8 permanently.

9 Fifth, that the defendant knew he was

10 not entitled to take the property.

11 And, sixth, that the property was a

12 chose in action. A check is a chose in action.


14 reasonable doubt that on or about the alleged date the

15 defendant took and carried away another person's

16 property without her consent, knowing that he was not

17 entitled to take it and intending at that time to

18 deprive the victim of its use permanently, and that the

19 property was a chose in action, it would be your duty

20 to return a verdict of guilty of larceny. If you do

21 not so find or if you have a reasonable doubt as to one

22 or more of these things, it would be your duty to

23 return a verdict of not guilty.


25 possession of stolen goods, which is possessing goods


197

1 which the defendant knew or had reasonable grounds to

2 believe had been stolen.

3 For you to find the defendant guilty of

4 this offense, the State must prove four things beyond a

5 reasonable doubt.

6 First, that the check was stolen.

7 Property is stolen when it is taken and carried away

8 without the owner's consent by someone who intends at

9 the time to deprive the owner of its use permanently

10 and knows that he is not entitled to take it.

11 Second, that the defendant possessed

12 this property.

13 Third, that the defendant knew or had

14 reasonable grounds to believe that the property had

15 been stolen.

16 And, fourth, that the defendant

17 possessed the property with a dishonest purpose.


19 reasonable doubt that the check was stolen and that on

20 or about the alleged date the defendant possessed this

21 property and knew or had reasonable grounds to believe

22 that it was stolen and that the defendant possessed

23 this property for a dishonest purpose, it would be your

24 duty to return a verdict of guilty. If you do not so

25 find or if you have a reasonable doubt as to one or


198

1 more of these things, it would be your duty to return a

2 verdict of not guilty.

3 Members of the jury, you have heard the

4 evidence and the arguments of counsel. If your

5 recollection of the evidence differs from that of the

6 prosecuting attorney or of the defense attorney, you

7 are to rely solely upon your recollection. Your duty

8 is to remember the evidence whether called to your

9 attention or not.

10 You should consider all of the evidence,

11 arguments, contentions, and positions urged by the

12 attorneys and any other contention that arises from the

13 evidence, and, using your common sense, you must

14 determine the truth in this case.

15 As the presiding judge, I am required by

16 the law to be impartial. You should not mistakenly

17 infer that I have implied any of the evidence should be

18 believed or disbelieved, that a fact has been proven or

19 not, or what your findings ought to be. Instead, you

20 alone are to find the facts and to render a verdict

21 reflecting the truth. You may not return a verdict

22 until all 12 jurors agree unanimously. You may not

23 render a verdict by majority vote.

24 After retiring to the jury room, you

25 should first select your foreperson. Your foreperson


199

1 should lead the deliberations. You may begin your

2 deliberations when the bailiff delivers the verdict

3 forms to you. When you have unanimously agreed upon a

4 verdict and are ready to announce it, your foreperson

5 should record your verdict, sign and date the verdict

6 forms, and notify the bailiff by knocking on the jury

7 room door. You will be returned to the courtroom, and

8 your verdict will be announced.

9 Ladies and gentlemen, the highest aim of

10 every legal contest is the ascertainment of the truth.

11 Somewhere within the facts of every case the truth

12 abides. And where truth is, justice steps in, garbed

13 in its robes, and tips the scales. In this case you

14 have no friend to reward, you have no enemy to punish,

15 you have no anger to appease or sorrow to assuage.

16 Yours is a solemn duty to let your verdict speak the

17 everlasting truth.

18 Thank you. You may retire and select

19 your foreperson. Please remember not to begin your

20 deliberations until the verdict forms have been

21 delivered to you.

22 Ms. Copeland, if you would, simply keep

23 your seat, ma'am.




200

1 we are outside the presence of the jury. Are there

2 corrections, deletions, or additions requested by the

3 State to give a proper charge to the jury?

4 MR. GRAVES: Not from the State.



7 THE COURT: Sheriff, knock on the door

8 and give this to the first person who answers without

9 comment, please.

10 (Deliberations 3:49 PM to 4:07 PM)


12 we are back in session in the Adams matter. I

13 understand that the jury has indicated that they have a

14 verdict. Understand that I expect everyone to maintain

15 proper courtroom decorum in here. And I trust,

16 Mr. Summey, you have had that conversation with your

17 client.

18 MR. SUMMEY: I have not, but I will,

19 Judge.

20 THE COURT: Have it now.

21 (Pause while Mr. Summey conferred with

22 his client)

23 THE COURT: Ask the jurors to come in.


25 THE COURT: Mr. Scott, usually the


201

1 person who walks in with the envelope is the

2 foreperson.

3 THE JURY FOREPERSON: Yes.

4 THE COURT: Would you stand and give us

5 your name for the record, please.

6 THE JURY FOREPERSON: David Warren

7 Scott.

8 THE COURT: Mr. Scott, I need you to

9 answer these questions yes or no. Has the jury reached

10 a verdict as to each charge?


12 THE COURT: Have you marked the

13 appropriate verdict selected by the jury for each

14 charge?


16 THE COURT: Have you signed and dated

17 each verdict sheet?


19 THE COURT: Hand the envelope to the

20 sheriff, please.

21 (Envelope passed to the Court)

22 THE COURT: Madam Clerk, if you would,

23 take the verdicts.

24 THE CLERK: Ladies and gentlemen, if you

25 would, please stand.


202

1 Members of the jury, you have returned

2 the following in case number 11 CRS 50644: We the jury

3 by unanimous verdict find the defendant Marvin Lykeith

4 Adams to be, as to Count I, guilty of larceny of a

5 chose in action and, as to Count II, guilty of

6 possession of stolen property. Do you still agree and

7 assent thereto, and would each of you so indicate by

8 raising your right hand?

9 (Affirmative response)

10 THE CLERK: Members of the jury, you

11 have returned the following in case number

12 11 CRS 50643: We the jury by unanimous verdict find

13 the defendant Marvin Lykeith Adams to be guilty of

14 attempt to obtain property by false pretenses. Do you

15 still agree and assent thereto, and would each of you

16 so indicate by raising your right hand?

17 (Affirmative response)

18 THE CLERK: Thank you. You may be

19 seated.

20 THE COURT: Anything further with the

21 jury from the State?




25 THE COURT: Is the State ready to pray


203

1 judgment?

2 MR. GRAVES: Yes.

3 (Jury dismissed from the jury box)

4 THE COURT: Mr. Graves? Is there

5 anything further you wish to say other than the

6 worksheet?

7 MR. GRAVES: Your Honor, the State does

8 ask that the Court consider giving Mr. Adams an active

9 sentence.


11 MR. SUMMEY: Judge, I would like to pass

12 up just some medical records. He has had an assessment

13 done, Judge, if I may approach --

14 THE COURT: Yes.

15 MR. SUMMEY: Judge, he has got a myriad

16 of health and mental issues. We just ask the Court to

17 -- I think the Court is familiar with Mr. Adams.


19 MR. SUMMEY: He wanted me to ask the

20 Court for probation. I know that is a far-reaching

21 venture, but, Judge, he hasn't been on probation in ten

22 years, from what he is telling me. He says that the

23 last charges that he had, he went to prison on. But he

24 says he hasn't been on probation in over ten years, so

25 he wanted to ask the Court to consider probation.


204

1 In the alternative, Judge, I would ask

2 that, since there is no restitution in this particular

3 case -- the victim is not out anything -- I would ask

4 the Court to consider a split sentence. That is also

5 available to the Court, if probation is not an option.

6 I think that supervision would do Mr. Adams some good.

7 He needs supervision. We would all agree he needs

8 supervision. So I would ask the Court to consider

9 either a split sentence or a probationary sentence.

10 MR. GRAVES: Your Honor, the State would

11 ask that any sentences, multiple sentences run at the

12 expiration of each other.

13 MR. SUMMEY: He would like to speak to

14 the Court, if the Court would entertain that.


16 THE DEFENDANT: Your Honor, since I've

17 been out of prison back on May 21, 2010, I have came a

18 long ways. I have gotten my own home, which I have my

19 lease right here, for the first time in my life. My

20 mom constantly -- you know, I thank God that I am

21 fortunate to have my mother and father, which you

22 probably know my mother, Alma Sledge, you know, who

23 helped me a long ways. And all I'm trying to do -- you

24 know, I wasted all my life being in and out of the

25 system ever since I was a child. And the only thing I


205

1 am trying to do -- I know I have been getting in

2 trouble in and out, you know, with the law here and

3 there. But I am trying to get my life on track and

4 move forward. I am in church. I go to First Baptist

5 in Weldon. I go every week. And I am just trying to

6 do the best I can to move forward with my life, because

7 I have no kids and have never been married. And I'm

8 just ready -- you know, in other words, a choice of

9 words, retire and just settle down. I am trying to

10 find me a good woman. I already got a home. Like I

11 said, this is the first time I had a home -- the first

12 time in my life my own lease.

13 And I promise that if I can get

14 intensive probation, you know the strictest probation

15 there is, that I will abide by that. And I will be

16 willing to pay whatever it is monthly probation fee or

17 whatever to show that I am trying. You know, I am

18 doing the best I can. And I have not been on probation

19 in over ten years or parole.

20 THE COURT: If you were truly trying,

21 why did you steal that check from that woman?

22 THE DEFENDANT: Your Honor, I did not do

23 it. But they found me guilty of it, and I'll be

24 willing to pay the price and move forward. I am not

25 going to let that -- I am determined I am not going to


206

1 let that hold me back.

2 You know, it seems like every time I

3 try, there is a roadblock somewhere. I need to be very

4 selective who I deal with. You know, like the guy said

5 on the stand, you can't trust everybody. Because every

6 time somebody points a finger back at Marvin Adams --

7 due to my reputation, my past history, people are

8 always judging me based on my past. And it is really

9 tearing me down.

10 THE COURT: Are there still two -- these

11 records indicate that there are -- that you have a

12 charge pending in district court for failing to return

13 rental property. Has that been resolved?

14 THE DEFENDANT: That has been resolved.

15 I paid that off. And also I had some tickets, which my

16 mom brought me down here, and I'm quite sure -- I just

17 brought $2,000 down here to pay all them fines off.

18 THE COURT: At the time of these medical

19 records, these records that you handed up, it refers

20 that there are -- it denotes that there are two

21 restraining orders against you, one from your sister

22 and another from --

23 THE DEFENDANT: She dropped that. We

24 are supposed to have a family reunion next month.

25 THE COURT: And then another from


207

1 someone that you once dated at the post office.

2 THE DEFENDANT: And she dropped that.

3 MR. SUMMEY: Those are Northampton

4 County; right?

5 THE DEFENDANT: No, the one at the post

6 office, that has expired, and I haven't seen her since.

7 And my sister, she dropped that, because we have

8 reunited, and we are working on a family reunion next

9 month where my family is supposed to be coming down

10 from up north. And that will be my first family

11 reunion, you know, in my life that I ever been to.

12 MR. GRAVES: Your Honor, if I may, just

13 looking at the other charges that Mr. Adams currently

14 has pending, there are a number of traffic matters as

15 well as misdemeanor larceny, larceny of a motor

16 vehicle, possession of stolen goods, worthless check.

17 THE DEFENDANT: That has all been

18 resolved. The only case that I've got pending now is

19 driving while license revoked, and it is a case that I

20 appealed over here, Your Honor. That's the case that

21 was appealed over here. I got put on probation over

22 there in district court, and I appealed it over here.

23 MR. SUMMEY: It is a misdemeanor, Judge.

24 THE DEFENDANT: That's the only thing I

25 have pending, Your Honor.


208

1 THE COURT: Despite the -- what does the

2 State contend the attempting to obtain is?

3 MR. GRAVES: In the case he was just

4 found guilty, Your Honor?

5 THE COURT: Yes.

6 MR. GRAVES: The State would contend

7 that he attempted to obtain $600 from Ms. Robinson.

8 THE COURT: I understand that. But what

9 class felony do you contend it is?

10 MR. SUMMEY: I.

11 MR. GRAVES: I.

12 THE DEFENDANT: And may I say something

13 else? This lady Ms. Joanne --

14 MR. GRAVES: The attempt is one class

15 lower; right?

16 THE COURT: I didn't know, since it has

17 attempt in the jury instruction, whether -- that's

18 fine.

19 THE DEFENDANT: Your Honor, I give you

20 my word -- I am asking the Court for mercy. Just give

21 me a chance.

22 THE COURT: Mr. Adams, you and I both

23 know that you have had chance after chance after

24 chance. You and I both know -- we go way, way back,

25 don't we?


209

1 THE DEFENDANT: Yes, ma'am, ever since

2 you were the DA. You are the one that sent me away.

3 THE COURT: I know. And it never gets

4 any better with you. It doesn't get any better. I

5 understand that you are prohibited from going back to

6 the library in Roanoke Rapids. You can't go to the

7 post office in Roanoke Rapids. You tore up stuff down

8 in the clerk's office here --

9 THE DEFENDANT: You know why I can't go

10 to the library?

11 THE COURT: -- in the courthouse. And

12 --

13 THE DEFENDANT: Because they said I

14 strowed paper everywhere.

15 THE COURT: But you can't go back there.

16 THE DEFENDANT: Yes, ma'am.

17 THE COURT: Everywhere you go, you can't

18 go back.

19 THE DEFENDANT: Because it's Marvin

20 Adams. Nobody don't like me in this county.

21 THE COURT: That's exactly right, it is

22 Marvin Adams. And Marvin Adams keeps right on doing

23 it. It's not everybody else. When you start thinking

24 that it's everybody else, you need to check yourself.

25 And it's not everybody else.


210

1 On the attempted obtaining property

2 -- I'm sorry, the felonious larceny of a chose in

3 action, it is a Class H, Level IV. He is sentenced to

4 no less than 11, no more than 14 months in the North

5 Carolina Department of Correction.

6 On the -- consolidate the misdemeanor

7 possession with the attempt to obtain property by false

8 pretenses. It is a Class I, Level IV. He is sentenced

9 to no less than 8, no more than 10 months in the North

10 Carolina Department of Correction to run at the

11 expiration of the previous sentence.

12 Sheriff, he is in your custody.

13 MR. SUMMEY: Your Honor, we give notice

14 of appeal.

15 THE COURT: Notice of appeal given in

16 open court, further notice waived. He will be

17 appointed the Appellate Defender to perfect his appeal.

18 (End of proceedings, 07/12/12, 4:24 PM)

19

20

21

22

23

24

25


211

CERTIFICATE

I, Rhonda B. Earley, the officer before whom

the foregoing proceedings were taken, do hereby certify

that the foregoing pages are a true, correct, and

verbatim transcript of said proceedings.

I further certify that I am not counsel for,

related to, or employed by any of the parties to this

action and that I am not financially or otherwise

interested in the outcome of this action.

This the 6th day of August, 2012.

Rhonda B. Earley, CVR-CM-MOfficial Court Reporter, 6APO Box 66, Halifax, NC 27839

M.L.Adams, Halifax 11 CRS 50643-44, 07/11/12-07/12/12

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISIONHALIFAX COUNTY 11 CRS 50643, 50644

STATE OF NORTH CAROLINA V. CERTIFICATE OF DELIVERYMARVIN LYKEITH ADAMS, Defendant.

This is to certify that a transcript (211 total pages) of the July 11 - 12, 2012 jury trial in the above-entitled case was ordered on the 16th day of July, 2012, and that an electronic copy was e-mailed and a CD mailed to the attorneys of record as indicated below on the 6th day of August, 2012.

Rhonda B. Earley, CVR-CM-MOfficial Court Reporter, 6APO Box 66, Halifax, NC 27839

TRANSCRIPT FOR THE STATE TO: N.C. Dept. of Justice, Appellate SectionP.O. Box 629Raleigh, NC 27602Courier [email protected]

Halifax County D.A.'s OfficeP.O. Box 126Halifax, NC [email protected]@nccourts.org

TRANSCRIPT FOR THE DEFENDANT TO: Mr. Rudolph Ashton, IIIP.O. Box 12800New Bern, NC [email protected]

COPY OF CERTIFICATE TO: N.C. Court of AppealsP.O. Box 2779Raleigh, NC 27602

Documents

Transcript - State v Marvin Adams 07-11-12!07!12-12 Vol I of I