State v. Steele

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-686

No. COA22-115

Filed 18 October 2022

Forsyth County, Nos. 20 CRS 2004-05

STATE OF NORTH CAROLINA

v.

HENRY JOSEPH STEELE

Appeal by defendant from judgment entered 25 August 2021 by Judge Susan

E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals

24 August 2022.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Thomas J. Campbell, for the State.

Epstein Law Firm, by Drew Nelson, for defendant.

ARROWOOD, Judge. ¶1 Henry Joseph Steele (“defendant”) appeals from judgment following guilty

verdicts for intimidating or interfering with witnesses and obtaining habitual felon

status. On appeal, defendant argues the trial court erred in admitting into evidence

a disk containing a phone call recording. For the following reasons, we conclude that

defendant received a fair trial free from error. -1-

STATE V. STEELE

2022-NCCOA-686

Opinion of the Court

I. Background

¶2 On 17 May 2021, a grand jury in Forsyth County indicted defendant on one

count of intimidating or interfering with witnesses, alleging that defendant

“unlawfully, willfully and feloniously did by threats, menaces, or in any other manner

prevent or deter, or attempt to prevent or deter, Lisa Flowers” (“Flowers”) “from

attending court by telling her not to come to court even if subpoenaed.” “Flowers was

acting as a victim or witness in” another case against defendant, filed under numbers

“20CR01959, 20CR053603, and 20CR053604, in Forsyth County District Court.”

Defendant was also indicted on the same day for obtaining habitual felon status. ¶3 The matter came on for trial on 24 August 2021 in Forsyth County Superior

Court, Judge Bray presiding. On the charge of intimidating or interfering with

witnesses, for which the defendant waived his right to a jury trial, the State provided

testimony from Sergeant Sabrina Robinson (“Sergeant Robinson”), Officer E.L. Klein

(“Officer Klein”), and Officer J.M. Reyes (“Officer Reyes”). Flowers was not present

at trial. ¶4 Sergeant Robinson testified that she had been working at the Forsyth County

Detention Center as a “classification supervisor and gate detail adjust [sic] officer”

for 21 years. As part of her responsibilities, Sergeant Robinson also acted as a

“PayTel administrator[ ]”; PayTel, she described, “is a computerized phone system

which allows inmates to make outside calls from the facility and also allows security

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Opinion of the Court

to monitor those calls.” Sergeant Robinson specifically “monitor[ed] the system for

any type of problems or issues[,]” provided “or restrict[ed] user accessibility,

and . . . listen[ed] and download[ed] phone calls as needed.” ¶5 Sergeant Robinson explained that, when inmates use PayTel, “the system”

prompts them to type in the phone number they are calling, payment information,

and their own “ID number[.]” Inmates receive a unique ID number “[t]he first time

Winston-Salem PD or Forsyth County Sheriff’s Office come into contact” with them.

Thereafter, “each inmate is required to enter that ID number prior to actually making

a phone call.” PayTel automatically records and maintains records of every phone

call made by inmates, and Sergeant Robinson had access to these records. ¶6 The State showed Sergeant Robinson its first exhibit (“Exhibit 1”), which she

identified as “a spreadsheet that’s generated when you download the phone calls.”

Generally, Sergeant Robinson provided, when a phone call is downloaded, it is

accompanied by “a spreadsheet printout of each and every phone call, . . . the station

that the phone call was made from, the date that it was made, the billing

process, . . . the time of the call, the number that it was called [sic], . . . the length of

the call[,]” the inmate’s ID number, and the inmate’s name associated with that ID

number. All of this information is “automatically recorded each time an inmate

makes a phone call[.]”

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2022-NCCOA-686

Opinion of the Court ¶7 Sergeant Robinson was acquainted with “these types of documents[,]” as they

were “made in the regular course of business” at the Forsyth County Detention

Center. After the trial court admitted Exhibit 1, the State asked Sergeant Robinson

to read it. Exhibit 1 revealed that a phone call was made from Forsyth County

Detention Center on 22 December 2020 at 11:24:55 a.m., associated with defendant’s

first name, last name, and unique ID number. ¶8 Next, the State handed Sergeant Robinson its second exhibit (“Exhibit 2”),

which she recognized as a disk onto which she had downloaded, upon the State’s

request, a recording of defendant’s 22 December 2020 phone call. After the trial court

admitted Exhibit 2 into evidence, the State published it to the bench. In this

recording, a man can be heard speaking to a woman, stating, in pertinent part:

“[E]ven when they give you a little subpoena thing at your door, they can’t do s*** to

you, do not come down here, do not come to this courtroom because they’re trying to

hang me.” ¶9 Officer Klein, who was employed with the Winston-Salem Police Department,

testified that, on 8 April 2020, he was “dispatched to an assault call” at Forsyth

Hospital. There, he met Flowers in the Emergency Department; after having a

conversation with her, Officer Klein “responded to the magistrate’s office” and “swore

out charges for assault by strangulation, assault inflicting serious bodily injury,

assault on a female, and false imprisonment” in Forsyth County. The trial court then

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Opinion of the Court

admitted into evidence the State’s third and fourth exhibits, featuring pictures that

Officer Klein had taken of Flowers at the hospital. ¶ 10 The State questioned Officer Klein about Exhibit 2; Officer Klein confirmed

that he had recognized both voices contained in the recording when the State

published Exhibit 2 in open court. The State then proceeded to play a portion of the

recording, and Officer Klein stated that he recognized the voice captured therein as

that of defendant. The State played another portion of the recording, and Officer

Klein recognized the voice captured therein as that of Flowers. ¶ 11 Officer Klein explained that, when he met Flowers at the hospital on

8 April 2020, he spoke with her for “[a]pproximately an hour[,]” and had thus “become

familiar” with her voice. Officer Klein testified that he had also heard defendant’s

voice by virtue of being present at trial. The defense objected, arguing that, because

defendant had not testified under oath during these proceedings, but had merely

responded to the trial court’s inquiry, under defendant’s Fifth Amendment right to

remain silent, “any statements” defendant may have made “cannot be considered by

[Officer Klein] as familiarity with . . . defendant’s voice.” The trial court sustained

the objection. ¶ 12 Officer Reyes, who worked for the Winston-Salem Police Department, testified

that, on 17 February 2020, he was “dispatched to an assault on a female” call at

Baptist Hospital. There, he met Flowers and observed “injuries to her [sic] right side

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Opinion of the Court

of her face.” The trial court then admitted the State’s fifth and sixth exhibits,

featuring pictures Officer Reyes had taken of Flowers on 17 February 2020. ¶ 13 Officer Reyes testified that he spoke with Flowers for “approximately at least

40 minutes” on 17 February 2020. Based upon that conversation, Officer Reyes filed

charges for “[a]ssault on a female” in Forsyth County. Because Flowers had also

called Officer Reyes during the course of his investigation, he had had the opportunity

to hear her voice both over the phone and in-person. Officer Reyes testified that he

also spoke with defendant for “15 to 20 minutes.” ¶ 14 The State questioned Officer Reyes about Exhibit 2. After Officer Reyes

confirmed that he had recognized the two voices depicted in the recording when the

State published Exhibit 2 to the bench, the State played a portion of the recording.

Officer Reyes recognized defendant’s voice, to which the defense made a general

objection and was overruled. Then, the State played another portion of the recording,

and Officer Reyes recognized Flowers’s voice. ¶ 15 As to his ability to identify defendant’s voice, Officer Reyes testified that, on

17 February 2020, he was given what he had been told was defendant’s phone

number. Officer Reyes called the number, which was initially answered by a woman.

Then, “[t]he number called back,” and Officer Reyes spoke with a man who identified

himself as defendant; this individual did not otherwise provide any other personally

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Opinion of the Court

identifying information. Officer Reyes testified that this individual stated he knew

Flowers and spoke with Officer Reyes about the alleged assault involving Flowers. ¶ 16 When the State asked Officer Reyes whether this individual “was familiar with

the facts that [Officer Reyes] [was] going over with him” during the phone call, the

defense objected, arguing that the individual’s purported self-identification as

defendant and the contents of the phone call constituted hearsay. The State, in turn,

argued that “it would be a statement by a party opponent.” The trial court overruled

the defense’s objection. Officer Reyes then testified that the individual on the phone

identified Flowers as his girlfriend, stated that “nothing [had] happened that night[,]”

stated that he “wanted nothing to do with” Flowers, denied assaulting Flowers, and

expressed his belief that “[i]t was probably one of the other guys she talks to” who

had committed the alleged assault. ¶ 17 After Officer Reyes’s testimony, the State introduced into evidence its seventh

exhibit, “a release paper on Case No. 20 CR 51959” for defendant, and rested its case.

The defense moved to dismiss the case based on insufficient evidence, and the trial

court denied the motion. Then, the defense elected not to present evidence and

renewed its motion to dismiss, which was again denied. ¶ 18 The trial court entered a verdict of guilty of intimidating or interfering with

witnesses. Then, the State proceeded with its charge of obtaining habitual felon

status, and defendant once again waived his right to a jury trial. At this stage of the

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Opinion of the Court

proceedings, the State introduced three more exhibits, which constituted various past

judgments against defendant. At the close of all evidence, the trial court found

defendant guilty of obtaining habitual felon status, sentencing him in the mitigated

range of 100-to-132 months imprisonment, crediting time served. Defendant gave

notice of appeal in open court.

II. Discussion

¶ 19 Defendant argues that the trial court erred in admitting the State’s Exhibit 2

because Officer Reyes’s testimony was insufficient to identify defendant as the

alleged speaker in the recording contained therein. ¶ 20 Defendant also states that the standard of review “when assessing whether

evidence has been properly authenticated” is de novo. This is, however, a

mischaracterization of the issue on appeal. “On appeal, the standard of review of a

trial court’s decision to exclude or admit evidence is that of an abuse of discretion.”

Brown v. City of Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753 (2006)

(citation omitted). “An abuse of discretion will be found only when the trial court’s

decision was so arbitrary that it could not have been the result of a reasoned decision.”

Id. (citation and quotation marks omitted). “In addition, Rule 901 of our Rules of

Evidence requires that as a condition precedent to admissibility evidence must be

authenticated or identified sufficient to support a finding that the matter in question

is what its proponent claims.” Id. (citation and quotation marks omitted).

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2022-NCCOA-686

Opinion of the Court ¶ 21 Accordingly, although an appellate court’s review of whether a trial court

properly admitted evidence entails an authentication element, because defendant’s

argument here is that the trial court erred by admitting Exhibit 2, we must review

this appeal for abuse of discretion. See id. ¶ 22 Here, Exhibit 2 was introduced by the State mid-way through Sergeant

Robinson’s testimony. Sergeant Robinson testified that she recognized Exhibit 2 as

the disk onto which she had downloaded defendant’s recorded phone call dated

22 December 2020. Accordingly, Sergeant Robinson properly authenticated Exhibit

2 before the trial court admitted it into evidence. See id. (“Authentication under Rule

901 may be satisfied through the testimony of a witness who has knowledge of the

matter, and who can testify that a matter is what it is claimed to be.” (citations and

quotation marks omitted)). ¶ 23 After Sergeant Robinson’s testimony, Officer Klein testified, followed by

Officer Reyes. It is at this point that defendant takes issue with the trial court’s

admission of Exhibit 2. Specifically, defendant contends “the [S]tate relied solely on

the testimony of Office Reyes to identify the voice heard” even though “Officer Reyes’s

alleged interaction with [defendant] was limited,” in that “it was based on a single

phone call, conducted under suspicious circumstances, in which a male speaker

professed to be [defendant] and demonstrated a vague, general familiarity with an

alleged past assault involving . . . Flowers.” According to defendant, “[t]he lack of

STATE V. STEELE

2022-NCCOA-686

Opinion of the Court

information confirming the speaker’s identity and the lack of detail in the

conversation render this phone call insufficient to connect the voice heard in Exhibit

2 with [defendant]” and, thus, “the trial court erred by admitting Exhibit 2 as

evidence.” (Emphasis added.) ¶ 24 This argument has no merit for multiple reasons. First, the record indicates

that the trial court did not rely solely on Officer Reyes’s testimony to identify

defendant as the caller on 22 December 2020. Rather, this finding was supported by

Sergeant Robinson’s testimony and the contents of Exhibit 1, the latter of which

contained unaltered information automatically provided by the PayTel system and

which unequivocally indicated that defendant had made the phone call in question. ¶ 25 Additionally, defendant’s argument is chronologically confused. As illustrated

above, the trial court admitted Exhibit 2 into evidence prior to Officer Reyes’s taking

the witness stand. Indeed, Exhibit 2 was introduced during the testimony of Sergeant

Robinson, the State’s first witness at trial, who duly authenticated the exhibit. Even

assuming arguendo that Officer Reyes was not sufficiently equipped to identify

defendant’s voice in the recording contained in Exhibit 2, this issue has no bearing

whatsoever on whether the trial court should have admitted Exhibit 2, because it had

already properly done so well before Officer Reyes testified. ¶ 26 Accordingly, the trial court did not abuse its discretion when it admitted

Exhibit 2 into evidence.

STATE V. STEELE

2022-NCCOA-686

Opinion of the Court

III. Conclusion

¶ 27 For the foregoing reasons, we conclude defendant received a fair trial free from

error.

NO ERROR.

Judge GRIFFIN concurs.

Judge TYSON concurs by separate opinion.

No. COA 22-115 – State v. Steele

TYSON, Judge, concurring in the result to affirm the trial court’s judgment. ¶ 28 Defendant has not shown any basis or prejudice to reverse the trial court’s

judgment. The trial court’s judgment entered herein without a jury trial and after a

bench trial is properly affirmed. See State v. Rutledge, 267 N.C. App. 91, 832 S.E.2d

745 (2019) (Affirmed); State v. Porter, 281 N.C. App. 722, 2022-NCCOA-112, 867

S.E.2d 768 (2022) (Affirmed) (unpublished); State v. Alexander, 380 N.C. 572, 2022-

NCSC-26, 869 S.E.2d 215 (2022) (Affirmed); State v. French, 280 N.C. App. 300, 2021-

NCCOA-606, 864 S.E.2d 544 (2021) (Affirmed) (unpublished); State v. Cranford, 279

N.C. App. 512, 2021-NCCOA-511, 862 S.E.2d 435 (2021) (Affirmed) (unpublished);

State v. Hamer, 377 N.C. 502, 2021-NCSC-67, 858 S.E.2d 777 (2021) (Affirmed); State

v. Cheeks, 377 N.C. 528, 2021-NCSC-69, 858 S.E.2d 566 (2021) (Affirmed).

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