State v. McIver ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-561
No. COA22-107
Filed 16 August 2022
Cumberland County, No. 18 CRS 59381
STATE OF NORTH CAROLINA
v.
AKEEM DEVONTE MCIVER, Defendant.
Appeal by Defendant from judgment entered 16 July 2021 by Judge Gale M.
Adams in Cumberland County Superior Court. Heard in the Court of Appeals 8 June
2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
L. Hyde, for the State.
Glover & Petersen, P.A., by James R. Glover, for Defendant-Appellant.
WOOD, Judge.
¶1 Akeem Devonte McIver (“Defendant”) appeals his conviction of first degree
murder. On appeal, Defendant argues the trial court erred or plainly erred by 1)
allowing an expert to testify about the location of Nakeshia Washington’s
(“Washington”) and his cell phones, and 2) instructing the jury on flight. After a
careful review of the record and applicable law, we conclude Defendant received a fair
trial free from error.
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I. Factual and Procedural Background
¶2 On the evening of July 16, 2018, Antonio Johnson (“Johnson”) visited
Defendant at Defendant’s house. Johnson drove his girlfriend’s white Dodge Charger,
which she permitted him to use while she worked a 12 hour shift at the hospital.
When Johnson arrived at Defendant’s house, Defendant entered the Dodge Charger,
sat in the car, and asked Johnson to drive him to visit Alkeen Hair (“Hair”).
¶3 Defendant and Johnson arrived at Hair’s residence around 8:00 p.m.
Defendant, Johnson, and Hair talked for a few minutes and then Hair asked Johnson
to drive him to Cattail, a location across the river. Johnson agreed and drove
Defendant and Hair to Cattail. Approximately one hour later, Hair asked Johnson if
he could “take him to go get some weed.” Hair offered to give Johnson gas money and
some weed for driving him. Johnson agreed, and the three men got back into the
Dodge Charger with Johnson driving, Defendant sitting in the front seat, and Hair
sitting in the back.
¶4 Hair directed Johnson to Washington’s house to get the marijuana.
Washington lived in a house owned by her mother, Vickey McArthur (“McArthur”),
on Slater Avenue in Fayetteville, North Carolina. The house was located across the
street from McArthur. Washington was known to sell marijuana in mason jars from
this residence and had just received a new shipment of marijuana. When Defendant,
Johnson, and Hair arrived at Washington’s house, Hair directed Johnson not to park
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directly in front of the house, because Washington “don’t [sic] like just anybody
pulling up in front of the house . . . .” Johnson parked a “[c]ouple hundred yards[]”
from Washington’s house. Defendant and Hair exited the car around 9:40 p.m.
¶5 Washington was on the phone with a friend when they arrived. While they
were speaking, Washington began saying, “who is it, who is it[]” followed by several
gun shots before the phone call was terminated.
¶6 McArthur was at home that evening. At approximately 9:45 p.m., McArthur
heard gunshots she believed to be coming from her daughter’s house. She stepped
outside to find the source of the sound, looked towards Washington’s house, and saw
two men leaving Washington’s porch. According to McArthur, one man was “a dark-
skinned tall male, male or boy, with dreads, blue jeans, white sneakers, hair hat on,
blue jeans.” McArthur realized she had seen this man “several mornings” at
Washington’s house. At trial, McArthur identified Defendant as the man she had
seen leaving her daughter’s porch that night. As McArthur approached her
daughter’s house, she simultaneously heard one of the men, later identified as Hair,
say “Hurry up. Come on ‘cause she gonna call the police[]” and saw Washington lying
on the sidewalk in front of her house. McArthur saw Defendant and Hair run away
from Washington’s house, enter a white Dodge Charger, and drive away towards
Murchison Road. Another neighbor also observed two black males fleeing the scene
with one holding “a cellphone that was glowing.” McArthur immediately dialed 911
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and attempted to flag down a police officer. MacArthur had purchased an iPhone for
Washington prior to the date of the shooting but did not see the iPhone in
Washington’s house after the shooting occurred.
¶7 Meanwhile, Johnson, who had waited in the Dodge Charger, heard gunshots
coming from “the direction that . . . [Defendant and Hair] walked in.” He “turned the
car on and slowly crept around the corner.” Hair then ran up to the Dodge Charger
and got into the back seat while holding a mason jar of weed. Approximately ten
seconds later Defendant also got into the Dodge Charger. Johnson then “pulled off
kind of fast” from the scene towards Murchison Road.
¶8 Hair directed Johnson to drive to Hair’s girlfriend’s trailer which was located
across the river. On the way there, Hair pulled out a loaded gun and handed it to
Defendant, who then placed the gun in the Dodge Charger’s console. According to
Johnson, Defendant kept asking McIver, “[w]hat the f*** you got going on? What
type time you on?” over and over.1 The three men drove for about ten to twenty
minutes, reached Johnson’s girlfriend’s trailer, and went inside to smoke marijuana
from the mason jar Hair had acquired from Washington’s house. They stayed there
for about an hour and then Johnson drove Hair and Defendant back to their houses
before returning to his own house.
1 At trial, Johnson explained “[w]hat type time you on?” means “what you got going
through your mind, like what’s going on with you?”
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¶9 Meanwhile, McArthur got the attention of Officer Percy Evans (“Officer
Evans”) of the Fayetteville Police Department who was patrolling the area.
McArthur told Officer Evans that Washington had been shot, and Officer Evans then
ran over to Washington and saw her lying on the ground, bleeding from her mouth.
Officer Evans immediately called for Emergency Medical Services (“EMS”), the fire
department, and police back up, and he attempted to administer first aid. EMS
arrived and declared Washington was “deceased on scene.” Diana Engel, (“Engel”), a
forensic technician, photographed the scene and collected evidence at Washington’s
house that same evening.
¶ 10 Fayetteville Police Department Homicide detectives arrived on the scene; and
after obtaining a search warrant, began an investigation. Inside Washington’s house,
Detectives determined that the gunshots had been fired within the entrance to
Washington’s house and gathered several spent 9mm and .40 shell casings. However,
Washington’s iPhone was not located during their search of the property.
¶ 11 Johnson continued to drive around in the white Dodge Charger while his
girlfriend was at work. After noticing that police officers were asking questions about
the Dodge Charger, he attempted to conceal it within a wood-lined area behind an
apartment complex on Caledonia Drive. Police officers ultimately found the Dodge
Charger where Johnson had attempted to conceal it.
¶ 12 On July 16, 2018, Defendant was indicted for first degree murder and robbery
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with a dangerous weapon. On June 28, 2021, Defendant filed a motion in limine to
exclude evidence of the GeoTime Report and the testimony of investigative assistant
William Potter (“Potter”) asserting it lacks proper evidentiary foundation, uses
multiple cell towers, contains prejudicial hearsay, and contains conclusory references
and statements.
¶ 13 This case came on for jury trial from July 12 to July 16, 2021. At trial, Potter,
an investigative assistant with the homicide unit of Fayetteville Police Department,
testified on behalf of the State. When the State tendered Potter as an expert in cell
phone analytics, Defendant’s counsel was allowed to voir dire outside of the presence
of the jury. After voir dire and still outside the presence of the jury, Defense counsel
objected to Potter being accepted by the trial court as an expert. The trial court
overruled Defendant’s objection and accepted Potter as an expert. Potter testified he
used GeoTime, based off the call record of Johnson’s and Washington’s cell phones, to
plot the respective locations of their phones at various points of time before and after
the shooting. Defense counsel did not object to Potter’s testimony during examination
or in the presence of the jury. At the end of Potter’s testimony and cross-examination,
the court stated, in the presence of the jury, “put it on the record so that it is in front
of the jury that the objection was overruled as to Mr. Potter being tendered and
accepted as an expert.”
¶ 14 The jury found Defendant guilty of first-degree murder and robbery with a
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dangerous weapon. The court sentenced Defendant to life imprisonment without
parole for his first-degree murder conviction and arrested judgment on the charge of
robbery with a dangerous weapon. Defendant gave oral notice of appeal in open court.
II. Discussion
¶ 15 Defendant raises several issues on appeal; each will be addressed in turn.
A. Expert’s Testimony
¶ 16 Defendant first contends the trial court erred by allowing Potter’s testimony
regarding the location of Washington’s and Johnson’s cell phones alleging it was
based on hearsay because the call detail records were never produced nor
authenticated as accurate or confirmed as belonging to Washington and Johnson. We
disagree.
1. Standard of Review
¶ 17 As an initial matter, Defendant contends the motion in limine and oral
objection at the trial are sufficient to preserve his first issue for appellate review.
Alternatively, Defendant contends we should review Potter’s testimony under a plain
error standard of review. The State, in turn, argues Defendant altogether failed to
preserve his first issue.
¶ 18 The North Carolina Appellate Rules of Procedure provide, “[i]n order 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
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party desired the court to make if the specific grounds were not apparent from the
context.” N.C.R. App. P. 10(a)(1); see State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319,
322 (2010) (“[T]he appellate courts of this state will not review a trial court’s decision
to admit evidence unless there has been a timely objection.”).
¶ 19 Defendant first raises this issue concerning Potter’s testimony in his motion in
limine. It is firmly established that a “motion in limine is insufficient to preserve for
appeal the question of the admissibility of evidence.” State v. Hill, 347 N.C. 275, 293,
493 S.E.2d 264, 274 (1997) (internal quotation marks omitted) (quoting State v.
Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995)); see Heatherly v. Industrial
Health Council, 130 N.C. App. 616, 620, 504 S.E.2d 102, 105 (1998). Rather,
“[r]ulings on these motions . . . are merely preliminary and subject to change during
the course of trial, depending upon the actual evidence offered at trial and thus an
objection to an order granting or denying the motion ‘is insufficient to preserve for
appeal the question of the admissibility of the evidence.’ ” Hill, 347 N.C. at 293, 493
S.E.2d at 274 (quoting T&T Dev. Co. v. Southern Nat’l Bank, 125 N.C. App. 600, 602,
481 S.E.2d 347, 349 (1997)).
¶ 20 In order for an objection to admission of evidence to be considered timely it
“must be made ‘at the time it is actually introduced at trial.’ ” Ray, 364 N.C. at 277,
697 S.E.2d at 322 (quoting State v. Thibodeaux, 352 N.C. 570, 581, 532 S.E.2d 797,
806 (2000)). Thus, “to preserve for appeal matters underlying a motion in limine, the
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movant must make at least a general objection when the evidence is offered at trial.”
Beaver v. Hampton, 106 N.C. App. 172, 177, 416 S.E.2d 8, 11 (1992), aff’d in part and
vacated in part on other grounds, 333 N.C. 455, 427 S.E.2d 317 (1993); see Hill, 347
N.C. at 293, 493 S.E.2d at 274 (“A party objecting to an order granting or denying a
motion in limine, in order to preserve the evidentiary issue for appeal, is required to
object to the evidence at the time it is offered at the trial (where the motion was
denied) or attempt to introduce the evidence at the trial (where the motion was
granted.”)); Thibodeaux, 352 N.C. at 581, 532 S.E.2d at 806. Such objections may not
be made “only during a hearing out of the jury’s presence prior to the actual
introduction of the testimony.” Ray, 364 N.C. at 277, 697 S.E.2d at 322 (emphasis
added).
¶ 21 The record before us demonstrates Defendant renewed his objection to Potter’s
testimony during voir dire outside of the presence of the jury. Our Supreme Court
addressed a similar issue in State v. Ray. There, the prosecutor informed the trial
court judge outside the presence of the jury he intended to conduct a line of
questioning concerning the defendant’s prior conduct to prove motive and intent. Id.
at 275, 697 S.E.2d at 321-22. Defense counsel objected at the hearing but did not
object once the jury returned and the State proceeded with its line of questioning. Id.
at 276, 692 S.E.2d at 321. Our Supreme Court held the defendant failed to preserve
this issue for appellate review because he “objected to the State's forecast of the
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evidence, but did not then subsequently object when the evidence was ‘actually
introduced at trial.’ ” Id. at 277, 697 S.E.2d at 322 (quoting Thibodeaux, 352 N.C. at
581, 532 S.E.2d at 806).
¶ 22 This court addressed the issue in the case sub judice more recently in State v.
Williams. In Williams, defense counsel first objected to evidence of a prior incident
before jury selection, but the trial court judge deferred its ruling until the State
presented its evidence. State v. Williams, 253 N.C. App. 606, 612, 801 S.E.2d 169,
173 (2017), rev’d in part and remanded, 370 N.C. 526, 809 S.E.2d 581 (2018). When
the witness began to testify about the circumstances surrounding the prior incident,
the trial court took a recess, during which defense counsel reminded the trial court
judge about his objection. Id. The session then resumed and a voir dire of the witness
was conducted. Id. Ultimately, the trial court judge ruled the testimony was
admissible, but defense counsel requested an exception for the record which was
granted by the trial court judge. Id. at 612-13, 801 S.E.2d at 173. Defense counsel,
however, failed to object once the jury returned and the witness testified about the
incident. Id. at 613, 801 S.E.2d at 173-74. The majority held it “would be
fundamentally unfair to fault defendant on appeal” and proceeded to review for
prejudicial error. Id. at 613, 801 S.E.2d at 174. Judge Dillon dissented, arguing the
appropriate standard of review was plain error as “[o]ur Supreme Court has held that
a defendant who objects during a forecast of evidence outside the presence of the jury
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does not preserve the objection unless he objects when the testimony is offered into
evidence in the jury’s presence.” Id. at 620, 801 S.E.2d at 178 (Dillon, J. dissenting).
On appeal, our Supreme Court reversed “for reasons stated in the dissenting opinion.”
State v. Williams, 370 N.C. 526, 809 S.E.2d 581 (2018) (order).
¶ 23 In this case, Defendant’s objection to the admission of Potter’s testimony
regarding the location of Johnson’s and Washington’s cell phones was proffered only
outside of the jury’s presence. The trial court noted Defendant’s objection, but only
after Potter’s testimony and cross-examination had concluded. Thus, an objection, if
any, was not made “contemporaneous[ly] with the time . . . [Potter’s] testimony . . .
[was being] offered into evidence.” Thibodeaux, 352 N.C. at 582, 532 S.E.2d at 806.
We conclude Defendant merely “objected to the State’s forecast of the evidence, but
did not then subsequently object when the evidence was ‘actually introduced at trial.’
” Ray, 364 N.C. at 277, 697 S.E.2d at 322 (quoting Thibodeaux, 352 N.C. at 581, 532
S.E.2d at 806). Defendant failed to properly preserve his objection for appeal.
¶ 24 Our Supreme Court has “been clear on this point[,]” Williams, 253 N.C. App.
at 621, 801 S.E.2d at 178 (Dillon, J. dissenting), and “we are bound by our Supreme
Court’s holding.” State v. Shepherd, 156 N.C. App. 69, 72, 575 S.E.2d 776, 778 (2003);
see also In re Appeal from Civil Penalty Assessed for Violations of Sedimentation
Pollution Control Act etc., 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel
of the Court of Appeals has decided the same issue, albeit in a different case, a
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subsequent panel of the same court is bound by that precedent, unless it has been
overturned by a higher court.”). Therefore, we hold the proper standard of review is
plain error.
2. Analysis
¶ 25 On appeal, Defendant argues the admission of Potter’s testimony rises to the
level of plain error. We disagree.
¶ 26 As a general rule, the plain error standard of review is applied when a
defendant fails to preserve an error at trial. See N.C. R. App. P. 10(a)(4); see State v.
Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012). A defendant has a heavier
burden to show the alleged error rises to the level of plain error. Lawrence, 365 N.C.
at 512, 723 S.E.2d at 330. Appellate courts must only apply the plain error rule
where,
after reviewing the entire record, it can be said the claimed
error is a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot
have been done, or where the error is grave error which
amounts to a denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of justice or in
the denial to appellant of a fair trial or where the error is
such as to seriously affect the fairness, integrity or public
reputation of judicial proceedings or where it can be fairly
said the instructional mistake had a probable impact on
the jury’s finding that the defendant was guilty.
Id. at 516-517, 723 S.E.2d at 333 (cleaned up) (quoting State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983)). To determine whether an unpreserved error was
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prejudicial, an appellate court must “examine[] the entire record to determine if the .
. . error had a probable impact on the jury's finding of guilt.” Id. at 517, 723 S.E.2d at
334 (cleaned up) (quoting Odom, 307 N.C. at 661, 300 S.E.2d at 379).
¶ 27 Defendant is unable to meet the required burden of proof to show his alleged
error was plain error. In the case sub judice, there was sufficient evidence presented
at trial from which the jury could deduce Defendant committed the crimes of first-
degree murder and robbery with a dangerous weapon. The jury heard testimony from
Johnson that he drove Defendant to Washington’s house, saw Defendant exit the car,
and then heard the sound of gunshots approximately five minutes later from the
direction Defendant had walked. He explained he observed Defendant get back into
the Dodge Charger; frantically ask Hair “[w]hat the f*** you got going on? What type
time you on?”; and then receive a gun from Hair. Likewise, McArthur testified she
heard gunshots coming from Washington’s house and saw two men leaving
Washington’s front porch. McArthur told the jury she recognized Defendant because
she had previously seen him “several mornings” at Washington’s house. McArthur
further explained that she saw Washington lying in front of the front porch of the
house and overheard Hair saying, “[h]urry up. Come on ‘cause she gonna call the
police.” Furthermore, McArthur testified she had purchased an iPhone for
Washington but did not see it at her daughter’s house after the shooting occurred.
Engel corroborated McArthur’s testimony, testifying she did not see Washington’s
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iPhone during the search of her house.
¶ 28 In light of this evidence, we cannot say Potter’s testimony had a “probable
impact on the jury’s finding of guilt[,]” was a “fundamental error[,]” “amount[ed] to a
denial of a fundamental right” for Defendant, “resulted in a miscarriage of justice[,]”
denied Defendant a fair trial, or “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings or where it can be fairly said the instructional
mistake had a probable impact on the jury’s finding that the defendant was guilty.”
Lawrence, 365 N.C. at 516-17, 723 S.E.2d at 333 (emphasis omitted) (quotations
omitted).
B. Jury Instruction
¶ 29 Next, Defendant argues the trial court plainly erred on instructing the jury on
flight because there was insufficient evidence presented to demonstrate he took steps
to avoid apprehension. We disagree.
¶ 30 Under Rule 10 of our North Carolina Rules of Appellate Procedure, “[a] party
may not make any portion of the jury charge or omission therefrom the basis of an
issue presented on appeal unless the party objects thereto before the jury retires to
consider its verdict.” N.C. R. App. P. 10(a)(2). Defendant concedes he did not object
to the challenged jury instruction. Additionally, the State asserts Defendant may
have even invited his own error when he assisted with the drafting of the jury
instruction and expressed satisfaction with the result. If true, we would be prohibited
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from reversing for plain error. State v. McPhail, 329 N.C. 636, 643, 406, S.E.2d 591,
596 (1991). Nevertheless, as we explain below, Defendant would not be afforded
reversal under plain error review even if the error was uninvited.
¶ 31 Applying the principles of law as discussed supra, we hold ample evidence
exists to support the jury’s finding Defendant guilty of first-degree murder. First,
Johnson testified he drove Defendant and Hair to Washington’s house and shortly
thereafter heard gunshots from “the direction that . . . [Defendant and Hair] walked.”
Johnson then saw Defendant get back into the white Dodge Charger, observed Hair
pull out a gun, and hand it to Defendant while Defendant repeated “[w]hat the f***
you got going on? What type time you on?” Moreover, McArthur stated at trial she
heard gunshots coming from Washington’s house, stepped outside to investigate the
noise, and observed two men leaving Washington’s porch, one of which she recognized
as Defendant. As MacArthur approached Washington’s house, she observed
Defendant and the other man run away and get into a white Dodge Charger, and she
observed Washington lying on the sidewalk.
¶ 32 In light of these testimonies and record evidence, we conclude the trial court’s
jury instruction on flight did not have “a probable impact on the jury’s finding of”
Defendant’s guilt. Lawrence, 365 N.C. at 517, 723 S.E.2d at 334 (emphasis omitted)
(quotation omitted). Therefore, we hold Defendant has not met his burden of proving
the trial court committed plain error by instructing the jury on flight.
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III. Conclusion
¶ 33 For the foregoing reasons, we hold Defendant has failed to meet his burden to
show that the trial court committed plain error by allowing Potter’s testimony or by
giving the jury instruction on flight. Therefore, we conclude Defendant received a
fair trial free from error.
NO ERROR.
Judges DIETZ and MURPHY concur.