State v. Morrison ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-247
NORTH CAROLINA COURT OF APPEALS
Filed: 20 January 2015
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 10 CRS 253344-45; 253347-
48
QUADARRIAN ANTONIO MORRISON
Appeal by defendant from judgments entered 6 June 2013 by
Judge Reuben F. Young in Mecklenburg County Superior Court.
Heard in the Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Office of the Public Defender, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
CALABRIA, Judge.
Quadarrian Antonio Morrison (“defendant”) appeals from
judgments entered upon jury verdicts finding him guilty of
assault with a deadly weapon with the intent to kill inflicting
serious injury (“AWDWIKISI”), robbery with a dangerous weapon
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(“RWDW”), attempted RWDW, and conspiracy to commit RWDW. We
find no error.
I. Background
On 4 November 2010, Darius McCrae (“McCrae”) and Timothy
Graham (“Graham”) arranged a drug transaction with Graham’s
acquaintance Shawn, who had previously purchased drugs from
Graham on other occasions. Shawn wanted to buy $40 worth of
marijuana from Graham and agreed to meet McCrae and Graham at a
local Harris Teeter grocery store. McCrae drove Graham to the
meeting location in his parents’ blue Chevrolet HHR (“the HHR”).
After arriving at the Harris Teeter, Shawn called Graham and
McCrae and told them to meet him across the street in the
parking lot of a closed restaurant.
At approximately 10:30 p.m., Graham and McCrae parked in
the lot across the street and waited for Shawn to arrive. A few
seconds later, the driver of a gold Honda parked about three
feet from McCrae and Graham’s vehicle. Shawn exited the Honda
and got into McCrae’s vehicle. Shawn claimed that he wanted to
show the marijuana to his friend, later identified as defendant,
who had remained in the Honda. Subsequently, Shawn motioned for
defendant to come over to the HHR. Defendant entered the HHR’s
backseat and sat diagonally across from Graham. Defendant and
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Shawn sat in the backseat of the HHR for approximately ten to
fifteen minutes and acted as if they intended to purchase the
marijuana. During that time, Graham turned around to look at
defendant two or three times. Defendant and Shawn then both
pulled out black automatic handguns and pointed them at McCrae
and Graham. After sitting in silence for two or three minutes,
Graham and McCrae jumped from the HHR and began to run. Several
shots were fired, one of which hit Graham in the back. Graham
collapsed and was transported to the hospital to be treated for
his injuries. Defendant and Shawn fled in the HHR.
At approximately 11:55 p.m., Officer Jason Kerl (“Officer
Kerl”) of the Charlotte-Mecklenburg Police Department (“CMPD”)
heard a “be on the lookout” broadcast on his police radio for a
blue Chevrolet HHR that had been involved in an armed robbery.
Within minutes of hearing the alert, Officer Kerl noticed the
HHR at a gas station, surrounded by several males. After
confirming that the vehicle’s license plate number matched the
stolen HHR, Officer Kerl called for additional assistance.
Officer Kerl noticed one of the individuals carried a black
backpack, and he observed the individual with the backpack enter
the convenience store.
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CMPD Lieutenant Andrew Harris (“Lt. Harris”), who responded
to Officer Kerl’s request for assistance, also witnessed the man
with the backpack, who he later identified as defendant, enter
the store. Defendant paused near the back corner of the store,
and then moved towards the middle of the store, where he
appeared to bend down as if to retrieve or place something onto
a shelf. After securing three individuals outside of the store,
Lt. Harris sent another CMPD officer inside the store to detain
defendant. Officer Kerl also went into the store and discovered
a black backpack containing two handguns and a set of Honda keys
in the same locations that Lt. Harris had observed defendant
stop and pause. Upon searching the rest of the store, Officer
Kerl found keys to the HHR and a small bag of marijuana on one
of the store shelves.
McCrae was brought to the gas station and a showup was
conducted with the four individuals who had been detained there.
After the showup concluded, only defendant was taken into
custody. Defendant was subsequently charged with AWDWIKISI,
RWDW, attempted RWDW, and conspiracy to commit RWDW.
On 8 November 2010, CMPD Officer Ryan Whetzel (“Officer
Whetzel”) visited Graham at the hospital, where he was
recovering from his gunshot wound. Officer Whetzel intended to
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interview Graham and show him a photographic lineup to see if he
could identify a suspect. However, Graham never viewed the
lineup because he immediately informed Officer Whetzel that he
had seen defendant’s picture on a local news broadcast, and he
identified defendant as the person who had robbed and shot him.
Prior to trial, defendant filed a motion to suppress
Graham’s in-court testimony identifying defendant as the man who
robbed him on the basis that Graham’s identification would be
inherently incredible and that it was tainted by an improper
pretrial identification. After a voir dire hearing, the trial
court concluded that Graham had made an independent
identification of defendant prior to viewing defendant’s photo
on the news broadcast and denied defendant’s motion to suppress.
Beginning 3 June 2013, defendant was tried by a jury in
Mecklenburg County Superior Court. On 6 June 2013, the jury
returned verdicts finding defendant guilty of all charges. The
trial court sentenced defendant to a minimum of 83 months to a
maximum of 109 months for the AWDWIKISI conviction, a minimum of
73 months to a maximum of 97 months for the RWDW conviction, and
a minimum of 73 months to a maximum of 97 months for the
attempted RWDW and conspiracy convictions. The sentences were
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to be served consecutively in the North Carolina Division of
Adult Correction. Defendant appeals.
II. In-Court Identification
Defendant argues that the trial court erred by denying his
motion to suppress Graham’s in-court identification of
defendant. We disagree.
Initially, we note that the trial court did not enter a
written order denying defendant’s motion to suppress, but merely
rendered an oral decision in open court. However, this Court
has permitted this procedure so long as “(1) the trial court
provides its rationale from the bench, and (2) there are no
material conflicts in the evidence at the suppression hearing.”
State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395
(2009). Defendant does not dispute that the trial court met
both of these criteria. Instead, defendant contends that the
trial court’s conclusion of law that Graham’s identification was
not inherently incredible was not supported by the undisputed
evidence presented at the suppression hearing. Defendant relies
upon State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), in
support of this argument.
In Miller, the defendant was identified by a sole
eyewitness who only had the opportunity to observe the
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perpetrator running at night at a distance of 286 feet away. Id.
at 732, 154 S.E.2d at 905. Our Supreme Court explained that,
even though the question of whether a witness’s identification
of a defendant as the perpetrator of a crime has any probative
value is generally one for the jury, that general rule does not
apply “where the only evidence identifying the defendant as the
perpetrator of the offense is inherently incredible because of
undisputed facts, clearly established by the State’s evidence,
as to the physical conditions under which the alleged
observation occurred.” Id. at 731, 154 S.E.2d at 905. However,
the Court further explained that “[w]here there is a reasonable
possibility of observation sufficient to permit subsequent
identification, the credibility of the witness’ identification
of the defendant is for the jury . . . .” Id. at 732, 154 S.E.2d
at 906.
In the instant case, Graham testified that he first
observed defendant from three feet away because of the
visibility from the interior light in the gold Honda that was
turned on while Shawn exited the vehicle. Graham also testified
that he observed defendant two or three additional times as he
sat diagonally from defendant in the HHR. Defendant sat in the
car with Graham for approximately ten to fifteen minutes, and
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the interior light of the car remained on during that time so
that the men could see in order to complete the drug
transaction. Given defendant’s close proximity to Graham and
the amount of time he had to observe defendant, there was
sufficient evidence to support the trial court’s conclusion that
Graham had a reasonable opportunity to identify his attacker,
such that the reliability of the identification was a question
for the jury. Consequently, the trial court properly denied
defendant’s motion to suppress. This argument is overruled.
III. Due Process
Defendant argues that the trial court committed plain error
by permitting evidence that Graham identified defendant as the
perpetrator after witnessing defendant’s photograph on a local
news broadcast. We disagree.
As an initial matter, we note that defendant did not object
to evidence of Graham’s out-of-court identification at trial.
Consequently, we review this issue for plain error.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
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the error will often be one that seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal quotations and citations omitted).
“Identification evidence must be excluded as violating a
defendant’s right to due process where the facts reveal a
pretrial identification procedure so impermissibly suggestive
that there is a very substantial likelihood of irreparable
misidentification.” State v. Harris, 308 N.C. 159, 162, 301
S.E.2d 91, 94 (1983). However, “‘suggestive pretrial
identification procedures that do not result from state action
do not violate defendant’s due process rights.’ [State v.]
Fisher, 321 N.C. [19,] 24, 361 S.E.2d [551,] 554 [(1987)].
Furthermore, our Courts have consistently held that evidence
obtained by the actions of private citizens with no State
involvement do not implicate a defendant’s constitutional
rights.” State v. Jones, 216 N.C. App. 225, 234-35, 715 S.E.2d
896, 903 (2011).
In State v. Williams, the defendant argued that the trial
court erred by allowing evidence of a “showup” which occurred
when a friend called a witness so that she could view the
defendant being arrested. 201 N.C. App. 103, 107, 685 S.E.2d
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534, 538 (2009). The defendant contended “that the use of
improper identification procedures violate[d] his rights under
the United States and North Carolina Constitution[s].” Id. at
108, 685 S.E.2d at 538. However, the witness specifically
testified that no one from the police department had informed
her about the arrest. Id. at 107, 685 S.E.2d at 538. This
Court held that since the witness’s friend “was not acting as an
agent of the government and instead was acting as a private
citizen,” the “showup” did not implicate defendant’s
constitutional rights. Id. at 108, 685 S.E.2d at 538.
In the instant case, defendant contends that the display of
his mugshot on a local television station essentially amounted
to a “‘media’ showup” which rendered Graham’s pretrial
identification unreliable. However, as in Williams, there is no
dispute that the television station’s posting of the mugshot was
not the result of any state action. Consequently, the display
of defendant’s mugshot by a private actor did not “violate
defendant’s due process rights.” Jones, 216 N.C. App. at 234,
715 S.E.2d at 903. This argument is overruled.
Defendant additionally argues that the pretrial
identification tainted Graham’s subsequent in-court
identification such that it should have been suppressed.
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However, since we have already determined that Graham had a
sufficient opportunity to identify defendant and that the
viewing of defendant’s mugshot on the news broadcast did not
implicate defendant’s due process rights, the in-court
identification was properly admitted. See State v. Lawson, 159
N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003).
IV. Hearsay
Defendant argues that the trial court committed plain error
by allowing evidence that implied that McCrae identified
defendant during a showup conducted shortly after the robbery.
Specifically, defendant contends that the testimony regarding
the identification was inadmissible hearsay. We disagree.
Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801 (2013). A “statement” is a written or
oral assertion or nonverbal conduct of a person intended by the
declarant as an assertion. N.C. Gen. Stat. § 8C-1, Rule 801(a).
In the instant case, Lt. Harris testified that he brought
one of the victims to the gas station to conduct a showup with
the four men who had been detained. Lt. Harris further testified
that “the person [he] brought to the scene ID[ed]” one of the
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four as a perpetrator. At the conclusion of the showup, only
defendant was arrested. Officer Whetzel also testified that he
took McCrae to the gas station and defendant was subsequently
arrested. Defendant contends that the only logical inference
that could be drawn from this testimony was that McCrae stated
that defendant was the perpetrator of the robbery, a statement
which would constitute inadmissible hearsay. Defendant notes
that during closing arguments, the State specifically argued
that McCrae identified defendant based upon this testimony.
However, defendant only objected to a portion of the
challenged testimony at trial. As a result, defendant failed to
preserve this issue for appellate review. See State v. Hunt,
325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (When “evidence
is admitted over objection, but the same or similar evidence has
been previously admitted or is later admitted without objection,
the benefit of the objection is lost.”). Consequently, even
assuming, arguendo, that the officers’ testimony was
inadmissible hearsay, defendant is only entitled to relief if he
can demonstrate plain error.
We have already held that Graham’s identifications of
defendant, both in court and out of court, were properly
admitted. In addition, defendant’s DNA was determined to be a
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match to the partial DNA profile recovered from the gun that was
used to shoot Graham, and officers witnessed defendant with a
backpack that was later found to contain the handgun and the
keys to the Honda. Officers also recovered the keys to the HHR
and marijuana in the other areas of the store where defendant
had recently been. In light of this evidence, it cannot be said
that the testimony implying McCrae’s identification of defendant
“had a probable impact on the jury’s finding that the defendant
was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334(internal quotations and citation omitted). Thus, defendant has
failed to meet his burden to establish plain error. This
argument is overruled.
V. Conclusion
The evidence at the suppression hearing was sufficient to
support the trial court’s conclusion that Graham had a
reasonable opportunity to identify defendant. The broadcast of
defendant’s mugshot by a local television station did not
implicate defendant’s constitutional rights. Defendant failed
to establish that alleged hearsay evidence regarding McCrae’s
identification of defendant constituted plain error. Defendant
received a fair trial, free from prejudicial error.
No error.
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Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).