State v. Gullette , 252 N.C. App. 39 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-815
Filed: 21 February 2017
Mecklenburg County, No. 14 CRS 238731, 15 CRS 25911
STATE OF NORTH CAROLINA, Plaintiff,
v.
MARIO DONYE GULLETTE, Defendant.
Appeal by defendant from judgment entered 25 January 2016 by Judge Hugh
B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 8
February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Susannah P.
Holloway, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
ZACHARY, Judge.
Mario Donye Gullette (defendant) appeals from the judgment entered upon his
conviction of trafficking in heroin and having attained the status of a habitual felon.
On appeal, defendant argues that the trial court erred by denying his motion to
suppress “any in-court and out-of-court identifications conducted in violation of the
Eyewitness Identification Reform Act.” We have carefully reviewed the record and
the transcript of the proceedings in this case, and conclude that defendant did not
preserve this issue for appellate review. Accordingly, we do not reach the merits of
defendant’s argument. Given that this is the only basis upon which defendant has
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Opinion of the Court
challenged his convictions, we conclude that defendant had a fair trial, free of
reversible error.
I. Factual and Procedural Background
On 8 April 2014, Charlotte-Mecklenburg Police Officer Charlie Davis was
acting as an undercover detective who was assigned to make a purchase of heroin
from a suspected drug dealer. In the course of this investigation, Officer Davis met
with defendant, who sold the officer heroin for which Officer Davis paid $600. The
day after the undercover drug buy, another officer showed Officer Davis a photograph
of defendant and Officer Davis confirmed that the photograph depicted the person
from whom he had purchased the drugs. Officer Davis had not met defendant prior
to conducting the undercover purchase. However, during the sale, Officer Davis spent
several minutes in close proximity to defendant, and identified defendant in court as
the man who had sold him the heroin.
On 13 October 2014, the Mecklenburg County Grand Jury indicted defendant
for trafficking in heroin by selling a quantity of heroin greater than four grams but
less than fourteen grams. On 27 July 2015, defendant was indicted for being a
habitual felon. On 15 December 2015, defendant filed a motion to suppress “both the
in-court and out-of-court identification” of defendant by Officer Davis, on the grounds
that when another officer showed Officer Davis a photograph of defendant, this
constituted “a ‘show up’ procedure seeking identification of the defendant” that was
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Opinion of the Court
“unnecessarily suggestive” and that was conducted “in deliberate disregard of the
identification procedures required by the Eyewitness Identification Reform Act.”
The charges against defendant came on for trial at the 18 January 2016
criminal session of Mecklenburg County Superior Court before the Honorable Hugh
B. Lewis, judge presiding. Immediately prior to trial, the trial court conducted a
hearing on defendant’s suppression motion. The court heard testimony from the law
enforcement officers involved in the investigation that resulted in defendant’s arrest.
The arguments of counsel focused on whether the provisions of the Eyewitness
Identification Reform Act, N.C. Gen. Stat. § 15A-284.52 (2015), applied to the facts of
this case. The State argued that under the version of N.C. Gen. Stat. § 15A-284.52 in
effect at the time that Officer Davis was shown a photograph of defendant, “a single
photo did not constitute a lineup and did not fall under the [Eyewitness Identification
Reform Act].” The prosecutor cited several cases from this Court in support of this
position. The prosecutor also argued that in a subsequent amendment to the
Eyewitness Identification Reform Act, under which the Act would arguably be
applicable to the situation in this case, the General Assembly explicitly stated that
the amended version of the statute was “effective December 1st of 2015 and applies to
anything after that date.”
Defendant did not dispute the accuracy of the State’s characterization of the
history of the Eyewitness Identification Reform Act. Instead, defendant asserted that
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Opinion of the Court
the State was asking the trial court to “use a technicality in the statute” and asserted
that he did not “believe the intent of the legislature was merely to give somebody who
was in court on November 30th, versus someone who was in court on December 1st,
different treatment.” Thus, defendant argued that for equitable reasons the trial
court should apply the current version of the statute to this case, despite the fact that
the show-up took place prior to the effective date of the amendment.
After hearing the law enforcement officers’ testimony and the arguments of
counsel, the trial court ruled that it was denying defendant’s motion to suppress. The
court found that Officer Davis was an experienced law enforcement officer who had
been in defendant’s presence during the sale of heroin. Regarding the applicability
of the Eyewitness Identification Reform Act, the trial court stated that:
[T]he Court concludes that the identification by Detective
Davis on April 9 of 2014 was appropriate and followed the
law that was enforced on that date. The Court also finds
that the photo lineup act, as is presently enforced and came
into force on December the 1st, 2015, was not in place or
applicable law at the time of the identification by Detective
Davis.
During the trial, Officer Davis testified about his undercover purchase of
heroin from defendant and about the photograph of defendant that he was shown the
following day. Defendant did not object when Officer Davis identified defendant as
the person from whom he had bought heroin, or when the officer testified about the
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Opinion of the Court
photograph of defendant he had been shown the following day. Nor did defendant
object when the State introduced the photograph into evidence.
Following the presentation of evidence, the arguments of counsel, and the
instructions from the trial court, the jury returned a verdict finding defendant guilty
of trafficking in heroin. Thereafter, defendant entered a plea of guilty to having the
status of a habitual felon, and the trial court imposed a sentence of 88 to 118 months’
imprisonment. Defendant gave notice of appeal in open court.
II. Preservation of Alleged Error
Defendant’s sole argument on appeal is that the trial court erred by denying
his motion to suppress Officer Davis’ identification of defendant as the person from
whom he made an undercover purchase of heroin. Defendant contends that the trial
court erred by ruling that the current version of N.C. Gen. Stat. § 15A-284.52 was not
applicable to the instant case. The State argues on appeal that “Defendant’s
argument on appeal should be barred” because defendant failed to preserve the issue
for review or to argue that it constituted plain error. We agree with the State and
conclude that defendant has failed to preserve this issue for our review.
N.C. R. App. P. 10(a)(1) (2015) provides in relevant part that “to preserve an
issue for appellate review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for the ruling the party
desired the court to make” and that it “is also necessary for the complaining party to
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Opinion of the Court
obtain a ruling upon the party’s request, objection, or motion.” “The law in this State
is now well settled that ‘a trial court’s evidentiary ruling on a pretrial motion [to
suppress] is not sufficient to preserve the issue of admissibility for appeal unless a
defendant renews the objection during trial.’ ” State v. Hargett, __ N.C. App. __, __,
772 S.E.2d 115, 119 (quoting State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821
(2007) (citations omitted; emphasis in original)), cert. denied, 368 N.C. 290, 776
S.E.2d 191 (2015). “[T]o preserve for appellate review a trial court’s decision to admit
testimony, objections to [that] testimony must be contemporaneous with the time
such testimony is offered into evidence and not made only during a hearing out of the
jury’s presence prior to the actual introduction of the testimony.” State v. Ray, 364
N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal quotation omitted).
Defendant acknowledges on appeal that he failed to object to the admission at
trial of Officer Davis’ testimony identifying defendant as the person who had sold
heroin to him, or to the evidence concerning the photograph that Officer Davis was
shown. Defendant argues, however, that the trial court’s alleged error “is preserved
for normal appellate review.” Defendant contends that “the error here is a failure by
the trial court to apply the statutory mandate expressed in N.C. Gen. Stat. § 15A-
284.52” and that “[v]iolations of statutory mandates are preserved for appellate
review without the need for an objection to the trial court.” In support of his position,
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Opinion of the Court
defendant cites State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). We conclude that
Ashe does not support defendant’s argument.
In Ashe, our Supreme Court discussed N.C. Gen. Stat. § 15A-1233(a), which
provides in relevant part that “[i]f the jury after retiring for deliberation requests a
review of . . . evidence, the jurors must be conducted to the courtroom” and that the
trial court “in his discretion” could allow the jury to review the requested parts of the
trial testimony or to reexamine exhibits that had been admitted into evidence. Ashe,
314 N.C. at 33-34, 331 S.E.2d at 656. The Court held that this statute “imposes two
duties upon the trial court when it receives a request from the jury to review evidence.
First, the court must conduct all jurors to the courtroom. Second, the trial court must
exercise its discretion in determining whether to permit requested evidence to be read
to or examined by the jury[.]” Ashe at 34, 331 S.E.2d at 656. The trial court in Ashe
failed either to summon the jurors to the courtroom or to exercise its discretion. The
State argued that the defendant had waived review of the trial court’s error by failing
to object at trial. Our Supreme Court held that:
As a general rule, defendant’s failure to object to alleged
errors by the trial court operates to preclude raising the
error on appeal. . . . [W]hen a trial court acts contrary to a
statutory mandate and a defendant is prejudiced thereby,
the right to appeal the court’s action is preserved,
notwithstanding defendant’s failure to object at trial.
Ashe at 39, 331 S.E.2d at 659.
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Defendant argues that, as in Ashe, the trial court “fail[ed] to apply [a] statutory
mandate[.]” However, defendant fails to identify the “statutory mandate” to which
he refers or any mandatory responsibility that the trial court neglected. In State v.
Hill, 235 N.C. App. 166, 170, 760 S.E.2d 85, 88, disc. review denied, 367 N.C. 793, 766
S.E.2d 637 (2014), the defendant argued that “holding a charge conference is a
statutory mandate,” and this Court stated that “ ‘ordinarily, the word ‘must’ and the
word ‘shall,’ in a statute, are deemed to indicate a legislative intent to make the
provision of the statute mandatory[.]’ ” (quoting State v. Inman, 174 N.C. App. 567,
570, 621 S.E.2d 306, 309 (2005)). With this in mind, we have carefully reviewed the
text of N.C. Gen. Stat. § 15A-284.52. We observe that N.C. Gen. Stat. § 15A-284.52(d)
provides in both the original and the amended versions of the statute that:
(d) Remedies. -- All of the following shall be available as
consequences of compliance or noncompliance with the
requirements of this section:
(1) Failure to comply with any of the requirements of this
section shall be considered by the court in adjudicating
motions to suppress eyewitness identification.
(2) Failure to comply with any of the requirements of this
section shall be admissible in support of claims of
eyewitness misidentification, as long as such evidence is
otherwise admissible.
(3) When evidence of compliance or noncompliance with the
requirements of this section has been presented at trial,
the jury shall be instructed that it may consider credible
evidence of compliance or noncompliance to determine the
reliability of eyewitness identifications.
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Opinion of the Court
Given that this is the only part of the statute that refers to the trial court’s
responsibilities, we will assume that this section is the “statutory mandate” to which
defendant refers. N.C. Gen. Stat. § 15A-284.52(d) mandates that, upon a trial court’s
review of the State’s compliance or noncompliance with the statute: (1) the failure to
comply with Eyewitness Identification Reform Act “shall be considered” by the court
in adjudicating motions to suppress eyewitness identification; (2) evidence of the
failure to comply with the Eyewitness Identification Reform Act, if otherwise
admissible, “shall be admissible” to support claims of eyewitness misidentification;
and (3) if evidence of compliance or noncompliance is offered at trial, the jury “shall
be instructed” on the proper consideration of such evidence (emphasis added). These
remedies appear to be mandatory and if, for example, a trial court found that the
State had failed to comply with the Eyewitness Identification Reform Act in a given
case, but then stated that it would not consider this fact in its determination of a
defendant’s suppression motion, that would be a violation of a statutory mandate.
However, the issue of a trial court’s compliance with this part of the statute
does not arise unless the court first reviews a party’s compliance or noncompliance
with the Eyewitness Identification Reform Act. In the present case, the trial court
ruled that the Eyewitness Identification Reform Act did not apply to the facts of this
case. The trial court did not consider evidence of compliance or noncompliance with
the statute, did not make any findings or conclusions on this issue, and was not asked
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Opinion of the Court
to admit evidence or to instruct the jury concerning the Eyewitness Identification
Reform Act. Because the trial court ruled that, as a matter of law, the Eyewitness
Identification Reform Act did not apply to this case, it never conducted the type of
hearing on the Eyewitness Identification Reform Act that might have triggered the
court’s statutorily-mandated responsibilities arising from the statute. We conclude
that the trial court did not violate a “statutory mandate” because the mandates of the
statute arise only if a court determines that the Eyewitness Identification Reform Act
does apply to a case and conducts the appropriate inquiry on the issue.
Defendant has not offered any other argument in support of his assertion that
the trial court’s alleged error was preserved for appellate review. We conclude that,
by failing to object to the challenged evidence at the time it was introduced in the
jury’s presence, defendant has failed to preserve this issue for review. “And since
defendant failed to specifically and distinctly allege plain error in his brief, he waived
his right to have this issue reviewed under that standard.” State v. Joyner, __ N.C.
App. __, __, 777 S.E.2d 332, 335 (2015) (citing N.C.R. App. P. 10(a)(4), and State v.
Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)).
We also note that defendant, who does not acknowledge his failure to preserve
the alleged error for appellate review, has not asked this Court to apply N.C. R. App.
P. 2 in order to reach the merits of his argument.
Appellate Rule 2 relates to the residual power of our
appellate courts to consider, in exceptional circumstances,
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Opinion of the Court
significant issues of importance in the public interest, or to
prevent injustice which appears manifest to the Court and
only in such instances. This Court’s discretionary exercise
to invoke Appellate Rule 2 is intended to be limited to
occasions in which a fundamental purpose of the appellate
rules is at stake, which will necessarily be rare occasions.
State v. Biddix, __ N.C. App. __, __, 780 S.E.2d 863, 868 (2015) (internal quotations
omitted). Defendant has not requested that we invoke Rule 2, and we discern no
“exceptional circumstances” that would warrant its application.
For the reasons discussed above, we conclude that defendant failed to preserve
for appellate review the issue of the trial court’s ruling on his suppression motion. As
this is the only basis upon which he has challenged his conviction, we conclude that
defendant had a fair trial, free of reversible error.
NO ERROR.
Judges ELMORE and DILLON concur.
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