State v. Crumitie

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-781
Filed: 16 July 2019
Mecklenburg County, Nos. 16 CRS 230974–75, 23322, 229841–42
STATE OF NORTH CAROLINA
v.
TIMOTHY LAVAUN CRUMITIE
Appeal by defendant from judgment entered 21 February 2018 by Judge Hugh
B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 10
April 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Anne
M. Middleton, for the State
Massengale & Ozer, by Marilyn G. Ozer for defendant-appellant.
BRYANT, Judge.
Where an identification by a law enforcement officer was not subject to the
Eyewitness Identification Reform Act, we affirm the trial court’s denial of defendant’s
motion to suppress. Where defendant was given an opportunity to cross-examine
testifying expert witness about another expert’s report, the trial court did not err in
allowing the testimony into evidence.
In the early evening of 5 August 2016, defendant Timothy Lavaun Crumitie
went to the apartment complex of his ex-girlfriend, Kimberly Cherry, and shot her
STATE V. CRUMITIE
Opinion of the Court
boyfriend, Michael Gretsinger, twice in the head. Defendant abducted Cherry and
took her to his house in Rowan County. He eventually took her back to a field near
her apartment complex, shot her twice in the head, and dumped her in the trunk of
the car. Cherry survived and escaped to call the police. Cherry had difficulty
speaking, due to the bullets in her head causing hemorrhaging and trauma to the
area that controls speech. After speaking with the police, Cherry was transported to
the hospital and admitted to the intensive care unit. Gretsinger was rushed to the
hospital for surgery. Although the surgery stabilized Gretsinger, the doctors could
not remove the bullets as they had passed through to the other side of his brain, and
Gretsinger died nine days later.
Defendant was indicted on one count of attempted first-degree murder of
Cherry, one count of attempted first-degree murder of Gretsinger, one count of
possession of a firearm by a felon, one count of first-degree kidnapping, and one count
of assault on a female. After Gretsinger was pronounced dead, defendant was
indicted for murder and one count of first-degree burglary. The State did not seek
the death penalty. Defendant filed a pre-trial motion to suppress identification
testimony by Officer Bradley Potter of the Charlotte-Mecklenburg Police
Department, who responded to Cherry’s 911 call and observed defendant near
Cherry’s apartment.
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Opinion of the Court
The case was tried on 5 February 2018 in Mecklenburg County Superior Court
before the Honorable Hugh B. Lewis, Judge presiding. Defendant filed a pre-trial
motion to suppress and a hearing was held.
Officer Potter testified that he saw a man at Cherry’s apartment when he
responded to a shooting incident at her residence. The man ran into the breezeway
of an adjacent building, and Officer Potter ran after him. Officer Potter testified that
he thought, from the towel in the man’s hands, the man was running to render aid to
a gunshot victim. After he lost sight of the man, Officer Potter went to try and locate
Cherry, who had sought refuge with people in another apartment. Cherry told Officer
Potter that her boyfriend had been shot and described the suspect as a black male,
fifty years old, and approximately 5’9” in height. Because Cherry was having
difficulty communicating verbally, Officer Potter asked her to write down what she
needed to tell him on his notepad. She wrote down defendant’s name and her
apartment number where officers soon found Gretsinger. Officer Potter accessed a
DMV photograph of defendant, whom he identified as the same man he had seen
running with a towel when he arrived at the scene. The trial court denied defendant’s
suppression motion and allowed Officer Potter to testify before the jury. At trial, the
State called Officer Potter to testify about Cherry’s 911 call, and over defendant’s
objections, the trial court allowed his testimony identifying defendant.
Special Agent Michael Sutton of the FBI’s Cellular Analysis Survey Team
(“CAST”) was called to testify for the State as an expert in the field of historical
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Opinion of the Court
cellular site analysis and cellular technology. Special Agent Warren, the FBI agent
who analyzed the cellphone records of defendant and Cherry, was unavailable to
testify at trial. The State moved to introduce Agent Warren’s cell site analysis report
through Agent Sutton. Defendant objected arguing the State had committed
discovery violations and that admission of the report would violate defendant’s right
to confront witnesses against him. The trial court excluded Agent Warren’s report
but allowed Agent Sutton to testify about the procedures of CAST, his review of the
report, and his independent opinion about the testing.
Defendant was convicted1 of first-degree murder of Gretsinger, first-degree
kidnapping and attempted first-degree murder of Cherry, second-degree burglary,
and possession of a firearm by a felon. The jury found defendant not guilty of assault
on a female. Defendant received a mandatory life sentence for first-degree murder
and separate sentences for the other convictions. Defendant gave notice of appeal in
open court.
_________________________________________________________
On appeal, defendant argues the trial court erred by: I) denying his motion to
suppress eyewitness identification testimony, and II) allowing an expert witness to
testify regarding a report created by an unavailable witness.
I
1The attempted first-degree murder of Gretsinger was dismissed and the first-degree burglary
indictment was later amended to second-degree burglary.
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Opinion of the Court
Defendant first argues the trial court improperly denied his motion to suppress
Officer Potter’s eyewitness testimony. Specifically, defendant argues that Officer
Potter failed to comply with “show-up” procedures, as set forth in the Eyewitness
Identification Reform Act (“EIRA”). We disagree.
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings[,] in turn[,] support the judge’s ultimate conclusions
of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “Conclusions
of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C.
162, 168, 712 S.E.2d 874, 878 (2011).
The EIRA, codified in N.C. Gen. Stat. § 15A-284.52, establishes standard
procedures for law enforcement officers when conducting out-of-court eyewitness
identifications of suspects. N.C. Gen. Stat. § 15A-284.52 (2017). There are three
types of eyewitness identifications under the EIRA to identify the perpetrator of a
crime: live lineups, photo lineups, and show-ups. Live lineups are “procedure[s] in
which a group of people [are] displayed to an eyewitness[,]” whereas photo lineups
are “procedure[s] in which an array of photographs [are] displayed to an
eyewitness[.]” Id. § 15A-284.52(a)(6)–(7). Show-ups are “procedure[s] in which an
eyewitness is presented with a single live suspect for the purpose of determining
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Opinion of the Court
whether the eyewitness is able to identify the perpetrator of a crime.” Id. § 15A-
284.52(a)(8).
Here, the inadvertent out-of-court identification of defendant, based on a single
DMV photograph accessed by an investigating officer, was neither a lineup or show-
up under the EIRA, and thus not subject to those statutory procedures.
At the hearing, the trial court made the following factual findings:
We have an officer arriving on the scene having been
dispatched for a high priority call. He is on full alert. He is
going into a well[-]lit area, his eyesight is 20/20 with his
contacts which he was wearing that evening. He saw an
individual running with a towel approximately sixty yards
or fifty yards away from him. That’ll be about 160 feet, 175
feet.
He believes that individual was actually proceeding to the
location where the injured individual may need to provide
aid, and follows that individual and loses sight of him in
the breeze way [sic]. Eventually[,] the officer, along with
other officers, come across the victim who was allegedly
shot twice in the head. They began looking for another
victim, who then provided the information of names.
The officer proceeds to continue his investigation using an
electronic database in his patrol car, which includes
identification photographs of individuals that are in that
database. When he brings up the defendant’s name, a
picture comes up as well. It’s after that point he connects
the identity of the defendant with the person he saw in the
parking lot.
That officer is doing good police work and investigating a
crime scene which is part of his official capacity. Therefore,
I believe that as to the photograph itself, that the
statement in Macon where the court indicated that they
did not believe the legislature intended to prevent police
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Opinion of the Court
officers from consulting a photograph in a database to
follow up on leads that are given by other officers, or in this
case also a victim. And they upheld the court’s decision
that the EIRA did not apply here.
Upon review of Officer Potter’s testimony, we agree with the trial court that
the EIRA does not apply to his identification of defendant. Officer Potter testified in
detail that when he arrived at Cherry’s apartment complex, he saw a black male,
wearing a green t-shirt, and carrying a white towel approximately 60 yards away.
Officer Potter interviewed Cherry, who issued a detailed statement and description
of the suspect––she identified defendant by name and age. That information––
defendant’s name, physical description, and date of birth––was used by Officer Potter
to locate registered vehicles for the purposes of issuing a BOLO. As Officer Potter
searched through the CJLeads database, defendant’s DMV photograph appeared and
Officer Potter learned for the first time that defendant was the man he saw when he
arrived at Cherry’s apartment complex. Officer Potter testified that he was “100
percent” certain he could identify the man even if defendant’s DMV photograph was
suppressed as evidence.
Even assuming Officer Potter’s viewing of defendant’s DMV photograph was
somehow inherently suggestive, defendant has not demonstrated that, under the
totality of the circumstances, there was a substantial likelihood of irreparable
misidentification. See State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)
(“Identification evidence must be excluded as violating a defendant’s right to due
process where the facts reveal a pretrial identification procedure so impermissibly
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suggestive that there is a very substantial likelihood of irreparable
misidentification.”).
The factors to be considered in evaluating the likelihood of
irreparable misidentification include: (1) the opportunity of
the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior description of the criminal; (4) the level of
certainty demonstrated by the witness at the
confrontation; and (5) the length of time between the crime
and the confrontation.
Id. at 164, 301 S.E.2d at 95.
Officer Potter responded to a high-priority dispatch to investigate a crime. He
was in a well-lit area, had clear 20/20 vision with contacts, and a clear, unobstructed
view of a man running about “sixty yards or fifty yards away from him.” He was able
to see a man, wearing a green shirt, and carrying a white towel. Prior to viewing
defendant’s photograph, Officer Potter did not give a description of the man as he was
not a suspect at that time. In fact, Officer Potter testified with “100 percent” certainty
that he could identify the man as it was an “instantaneous reaction” upon seeing the
photograph. Further, the length of time between Officer Potter seeing defendant in
person and seeing his DMV photograph in CJLeads was less than an hour.
Based on the circumstances, there is neither evidence that viewing the
photograph was inherently suggestive or that Officer Potter’s viewing of the
photograph created a substantial likelihood of irreparable misidentification. Officer
Potter’s identification at the scene was clearly independent of his viewing of
defendant’s photograph, and thus, there was no error by the trial court in admitting
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Opinion of the Court
his testimony. See State v. Macon, 236 N.C. App. 182, 191, 762 S.E.2d 378, 383 (2014)
(holding that an officer’s identification of a suspect would be admissible if the
identification “had an origin independent of the impermissible procedure.”).
II
Defendant also argues the trial court erred by allowing Agent Sutton to testify
as an expert witness, and refer to the report of Agent Warren, who was unavailable
to testify. Specifically, defendant contends the trial court violated his constitutional
right to confront his witness.2 We disagree.
Our courts have consistently held that an expert witness may testify as to the
testing or analysis conducted by another expert if: (i) that information is reasonably
relied on by experts in the field in forming their opinions; and (ii) the testifying expert
witness independently reviewed the information and reached his or her own
conclusion in this case. See State v. Brewington, 367 N.C. 29, 32, 743 S.E.2d 626, 628
(2013) (holding that the defendant’s rights were not violated when testifying witness
gave an opinion based on her own analysis of a lab report prepared by another
analyst); see also State v. Ortiz-Zape, 367 N.C. 1, 9, 743 S.E.2d 156, 161 (2013)
(holding that Confrontation Clause was not violated by the admission of expert’s
2 Defendant also contends that because he was not provided an expert report from Agent
Sutton, he was unable to effectively cross-examine him. Defendant was given prior notice that Agent
Sutton would testify in place of Agent Warren and he was given an opportunity to use Agent Warren’s
report during cross-examination of Agent Sutton to challenge the underlying basis of his opinion. Thus,
we reject defendant’s contention of a potential discovery violation as it is without merit.
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independent opinion based on testing that was conducted by another analyst). Our
Supreme Court in State v. Ortiz-Zape stated:
[W]hen an expert gives an opinion, the expert is the
witness whom the defendant has the right to confront. In
such cases, the Confrontation Clause is satisfied if the
defendant has the opportunity to fully cross-examine the
expert witness who testifies against him, allowing the
factfinder to understand the basis for the expert’s opinion
and to determine whether that opinion should be found
credible. Accordingly, admission of an expert’s
independent opinion based on otherwise inadmissible facts
or data of a type reasonably relied upon by experts in the
particular field does not violate the Confrontation Clause
so long as the defendant has the opportunity to cross-
examine the expert.
367 N.C. at 9, 743 S.E.2d at 161 (internal citation and quotation marks omitted).
Here, Special Agent Warren, who was unavailable to testify, had performed a
cell site analysis and created a report of the data. The State called Agent Sutton, an
expert in the field of historical cell site analysis and cellular technology, and he was
tendered as an expert without objection from defendant. During his direct
examination, Agent Sutton testified about the procedures in cell site analysis:
[PROSECUTOR]: Can you tell the jury how a peer review
is completed?
[AGENT SUTTON]: With all of our cases when the CAST
expert conducts an analysis, before we put the final stamp
of approval on that, a second expert has to review that
information and concur. So a completely independent
analysis of the call detail records and the ultimate
conclusions has to be done. And then at that point[,] the
report is submitted as final.
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Opinion of the Court
[PROSECUTOR]: Were you asked to review [Agent
Warren’s] cell phone analysis for this case?
[AGENT SUTTON]: Yes.
[PROSECUTOR]: Did you do that?
[AGENT SUTTON]: I did.
[PROSECUTOR]: And did you independently check the
information in his cell site analysis to verify that it is
correct and accurate?
[AGENT SUTTON]: I did.
[PROSECUTOR]: Is it correct and accurate?
[AGENT SUTTON]: It is.
[PROSECUTOR]: Is it fair to say that you essentially did
another peer review on it?
[AGENT SUTTON]: That is exactly what I did.
[PROSECUTOR]: Is [sic] your analysis and conclusions
the same as Special Agent Warren’s?
[AGENT SUTTON]: They are.
Defendant’s argument that the admission of Agent Sutton’s testimony
regarding Agent Warren’s report violated his constitutional right to confront his
witness is without merit. The record supports that Agent Sutton gave his
independent opinion about the process of reviewing cellphone data recorded by
network carriers and utilizing cellphone towers to determine the location of
defendant’s phone in relation to Cherry’s apartment around the time of the incident.
His testimony provided insight as to the practice of cell site analysis and the peer
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review process, which he used to formulate his independent opinion separate from
that of Agent Warren prior to the submission of the final report. It is also clear from
the record that defendant was given ample opportunity to cross-examine Agent
Sutton as to the report created by Agent Warren as well as Agent Sutton’s own
independent expert opinion. Accordingly, the trial court did not err in admitting
Agent Sutton’s testimony.
NO ERROR.
Judges STROUD and COLLINS concur.
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