State v. Watlington

NO. COA13-661
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
Alamance County
v.
Nos. 11 CRS 55481, 54816, 54822
THORNE OLIVER WATLINGTON
Appeal by defendant from judgments entered 5 October 2012
by Judge Henry W. Hight, Jr., in Alamance County Superior Court.
Heard in the Court of Appeals 9 December 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders John F. Carella and Benjamin Dowling-Sendor, for
Defendant.
ERVIN, Judge.
Defendant Thorne Oliver Watlington appeals from judgments
sentencing him to a term of eight to ten months imprisonment
based upon his conviction for felonious breaking or entering, to
a consecutive term of eight to ten months imprisonment based
upon his conviction for felonious larceny, to a consecutive term
of fourteen to seventeen months imprisonment based upon his
conviction for possession of a firearm by a felon, and to a
consecutive term of sixty days imprisonment based upon his
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conviction for assault by pointing a gun. On appeal, Defendant
contends that the trial court erred by refusing to admit the
contents of certain text messages and by failing to deliver his
requested instruction concerning the manner in which the jury
should evaluate the validity of eyewitness identification
evidence. After careful consideration of Defendant’s challenges
to the trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgments
should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
a. Background Information
Defendant’s cousin, Loven McLaughlin, has known Defendant
his entire life. In the summer of 2011, Defendant came to live
with Loven McLaughlin and Loven McLauchlin’s mother in the
Forestdale Apartments because Defendant was not getting along
with his own parents. In the latter part of July, Loven
McLaughlin’s mother told Defendant that he would have to leave.
After Defendant’s departure, Loven McLaughlin noticed that
Defendant was sleeping in the woods near the Mellow Mushroom.
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b. Firearm Theft
In July 2011, Cody May, who had gone to high school with
Defendant, lived in the Forestdale Apartments. After seeing
Defendant in the apartment complex, Mr. May reestablished a
connection with him.
On 25 July 2011, Mr. May stayed home from work. At noon,
he left to go to a medical appointment with his girlfriend to
learn the gender of their baby. As a result of the fact that
Defendant was present when Mr. May departed, the two of them
left simultaneously. Defendant had only been to Mr. May’s
apartment on a few occasions before the date in question.
About forty-five minutes after leaving his apartment, Mr.
May realized that he had forgotten something and returned home.
Upon arriving at his apartment, Mr. May discovered that the back
door had been kicked in and that an Xbox video game system;
three rifles, including a Norinco SKS with a laser sight and
that held 7.62 millimeter rounds; and a laptop had been stolen.
c. Mellow Mushroom Incident
Kenneth Pryor was working at the Mellow Mushroom on the
evening of 27 July 2011. After going outside for a cigarette
break, Mr. Pryor noticed a man exiting his truck. Upon making
this observation, Mr. Pryor yelled at and ran towards the
intruder, causing him to head in the opposite direction. As Mr.
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Pryor caught up with the intruder, the intruder turned around,
pulled what appeared to be an SKS rifle out of a bag, pointed it
at Mr. Pryor, and told him to lie down on the ground. Instead
of complying with this command, Mr. Pryor ran in the opposite
direction.
A few days later, Mr. Pryor identified Defendant as his
assailant after viewing a photographic lineup, claiming to be
90% certain that his identification was accurate. At trial,
however, Mr. Pryor only expressed a 50% certainty that his
identification of Defendant as the assailant was correct. In
support of Mr. Pryor’s identification testimony, Loven
McLaughlin testified that he had gone to the Mellow Mushroom on
the date of the incident involving Mr. Pryor so that Defendant
could use his cell phone and that, upon arriving at the Mellow
Mushroom, he had observed Defendant being chased, displaying a
firearm with a laser sight, and chasing the individual who had
been pursuing him.
d. Arby’s Incident
On the night of 29 July 2011, Anja Frick and Jessi
Richardson were working at the Arby’s Restaurant on Huffman Mill
Road. After helping Ms. Frick close the store at around 1:40
a.m., Ms. Richardson got into her car. At that point, she
noticed an African-American male standing beside her car and
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gesturing as if he wanted her to roll down her window or exit
the car. After Ms. Richardson did neither, the man went away.
As Ms. Frick locked the door to the store, she saw a light
emanating from a laser shining on the wall beside her. Although
Ms. Frick initially believed that the light had been caused by a
co-worker or either her father or her brother, who had come to
pick her up, an individual approached her as she neared the
vehicle in which she was to ride. After telling this person to
go away, Ms. Frick realized that another individual was holding
a long gun with a laser sight to her father’s head on the other
side of the car.
After Ms. Frick’s father stated that he did not have any
money, the individual who had approached Ms. Frick said, “just
shoot him.” At that point, Ms. Frick’s father realized that
another person was present and saw that this person was pointing
a rifle directly at his head. Eventually, the armed assailant
took wallets from both Ms. Frick’s father and brother and took a
cell phone from her brother before running towards the woods
with the individual who had approached her. As the men ran
away, one of them said, “give me the gun.” Ms. Frick then went
to a nearby Walmart with her father and brother and called the
police. Andre McLaughlin, Loven McLaughlin’s first cousin,
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testified that he and Defendant had committed the Arby’s
robbery.
On the following morning, Ms. Frick’s father and brother
returned to the scene of the robbery in the hope of finding
their wallets, which contained family photographs. As the two
men looked for their wallets, they found an identification card
that contained a photograph of Defendant near the edge of the
parking lot. Ms. Frick’s father stated, “that’s the guy that
robbed us,” as soon as he looked at it. Ms. Frick’s father had
a 70% level of confidence in the accuracy of his identification
of the person depicted on the identification card as one of the
perpetrators of the robbery. He then called the police,
informed them that he had found the card, and left it in their
possession. At trial, Ms. Frick’s father identified Defendant
as being the individual who had robbed him and his son.
e. Apprehension of Suspects
During the course of the investigation into the Arby’s
robbery, Ms. Frick’s brother provided Detective Gary Matthew
Fitch of the Burlington Police Department with his cell phone
number. After Detective Fitch called Ms. Fitch’s brother’s cell
phone in order to determine its location, investigating officers
went to the Forestdale Apartments and began randomly knocking on
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doors for the purpose of seeking information concerning the
Arby’s robbery.
At approximately 12:30 p.m., the investigating officers
went to Apartment H-F. After knocking and receiving no
response, the investigating officers noticed two cell phones in
the rear of a nearby Honda automobile, one of which resembled
the cell phone that had been taken from Ms. Frick’s brother. In
addition, the investigating officers noticed that there was a
rifle shell in the front seat. Upon calling the number assigned
to Ms. Frick’s brother’s cell phone, the investigating officers
heard a cell phone vibration emanating from the interior of the
Honda automobile.
At approximately 3:00 p.m., Rashawn Alston emerged from
Apartment H-F and entered the Honda automobile. Investigating
officers detained Mr. Alston before he was able to leave. About
an hour later, Loven and Andre McLaughlin came out of the same
apartment and were taken into custody. Upon learning that yet
another individual remained in the apartment, investigating
officers entered the apartment and detained Defendant. During a
subsequent search of the apartment, officers found a wallet that
resembled the one that had been taken from Ms. Frick’s father.
At a nearby abandoned building, investigating officers found a
vehicle that contained a rifle with an attached laser sight and
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7.29 by 39 millimeter rounds that had been loaded into an SKS
magazine. In addition, Defendant’s fingerprints were found on
an ammunition box seized from the vehicle.
2. Defendant’s Evidence
Defendant and Loven McLaughlin, with whom he had grown up,
are second cousins. Defendant knew Andre McLaughlin from high
school. After graduating high school, Defendant enlisted in the
Army. While serving in the military, Defendant was arrested for
being in a stolen vehicle, entered a negotiated plea to a
felony, and received a twelve-month sentence.
After his release from incarceration, Defendant went to
stay with Loven McLaughlin. Defendant denied that Loven
McLaughlin’s mother had requested that he leave and claimed, on
the contrary, that Loven McLaughlin was in the process of
leaving as the result of numerous noise complaints. Upon being
re-called, however, Loven McLaughlin testified that his mother
had told Defendant that he needed to leave because she had heard
that he was getting into trouble around town.
After coming to live with Loven McLaughlin, Defendant
visited Mr. May, whom he had known in high school, on three
occasions. On the first visit, during which he was accompanied
by Loven McLaughlin, Mr. May showed a pistol to the two men. In
the course of the second visit, during which Loven McLaughlin
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was not present, Mr. May showed Defendant a number of guns and
asked for Defendant’s help in locating a purchaser for these
weapons. Mr. May did not ever show Defendant an SKS rifle.
Subsequently, Defendant mentioned Mr. May’s request to Loven
McLaughlin and Mr. Alston, whom he had met at Loven McLaughlin’s
apartment. The third and final visit to Mr. May’s apartment
occurred on the day of the theft. During his visits to Mr.
May’s apartment, Defendant had noticed ammunition crates in the
living room and touched one of them given his curiosity about
what was inside.
Defendant denied having returned to Mr. May’s apartment on
the day of the theft, breaking into Mr. May’s apartment, or
stealing firearms and ammunition from Mr. May. Similarly,
Defendant denied having asked Loven McLaughlin to come to the
Mellow Mushroom or having pointed a firearm at Mr. Pryor.
Although he initially told investigating officers that he
and his friends had been at home at the time of the Arby’s
robbery, Defendant testified at trial that, after Loven
McLaughlin and Andre McLaughlin arrived at the apartment, a
woman named Sonia, whose last name he did not recall, picked him
up and took him to a hotel, where they stayed all night. The
following morning, Defendant returned to Loven McLaughlin’s
apartment, where he fell asleep. Upon awakening, Defendant
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noticed that the house was empty, called Loven McLaughlin’s
phone to find out where he was, and went to a Kmart for the
purpose of meeting Loven McLaughlin and Andre McLaughlin.
Subsequently, Mr. Alston picked the group up and took them
back to Loven McLaughlin’s apartment. After arriving at the
apartment, however, Loven McLaughlin observed that investigating
officers were in the area. Although an officer knocked on the
door, no one answered. At that point, Defendant decided to
sleep for a few hours.
Once Defendant woke up, the members of the group began
leaving the apartment. However, Defendant decided to use the
restroom before exiting. As he left the restroom, investigating
officers entered the apartment and took him into custody. He
was then taken to the police department for questioning.
Defendant speculated that he might have dropped his
identification card near the Arby’s at which the robbery
occurred since he regularly used a walking route near that
location. In a letter that Defendant wrote to Mr. May after his
incarceration, Defendant denied having stolen anything from Mr.
May, claimed to have been in Raleigh at the time of the theft,
and opined that Mr. Alston had committed the theft given that
evidence of the theft had been found in his car. In addition,
Defendant told Mr. May that he had reached the conclusion that
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Mr. Alston was the culprit because Mr. Alston had mentioned an
Xbox 360 to him and because Defendant had told Mr. Alston about
Mr. May’s guns. Finally, Defendant requested that Mr. May
contact Loven McLaughlin on his behalf and provided Mr. May with
Loven McLaughlin’s number, which he listed as (336) 263-9913.
B. Procedural History
On 31 July 2011, warrants for arrest were issued charging
Defendant with two counts of robbery with a dangerous weapon,
two counts of attempted robbery with a dangerous weapon,
possession of a stolen motor vehicle, possession of stolen
property, breaking or entering a motor vehicle, assault by
pointing a gun, financial transaction card theft, and possession
of a firearm by a felon. On 29 August 2011, the Alamance County
grand jury returned bills of indictment charging Defendant with
two counts of robbery with a dangerous weapon; two counts of
attempted robbery with a dangerous weapon; possession of a
stolen motor vehicle; possession of stolen property; breaking or
entering into a motor vehicle; assault by pointing a gun;
financial transaction card theft; and possession of a firearm by
a felon. On 1 September 2011, a warrant for arrest charging
Defendant with felonious breaking or entering, felonious
larceny, and possession of stolen goods was issued. On 5 March
2012, the Alamance County grand jury returned a bill of
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indictment charging Defendant with felonious breaking or
entering, felonious larceny, and possession of stolen goods. On
25 September 2012, the State voluntarily dismissed the financial
transaction card theft charge.
The charges against Defendant came on for trial at the 25
September 2012 criminal session of the Alamance County Superior
Court before the trial court and a jury. At the conclusion of
the trial, the jury found Defendant guilty of felonious breaking
or entering, felonious larceny, one count of felonious
possession of stolen property, breaking or entering a motor
vehicle, assault by pointing a gun, and possession of a firearm
by a convicted felon; not guilty of one count of attempted
robbery with a firearm, possession of a stolen motor vehicle,
and a second count of possession of stolen property; and failed
to reach a unanimous verdict with respect to two counts of
robbery with a dangerous weapon and a second count of attempted
robbery with a dangerous weapon.1 After arresting judgment in
1
The effect of the jury’s verdict in practical terms was to
convict Defendant of breaking into Mr. May’s apartment and
stealing his laptop computer, Xbox, and firearms; breaking into
Mr. Pryor’s motor vehicle, assaulting Mr. Pryor by pointing a
gun, and possessing a firearm at the time of the assault upon
Mr. Pryor; to acquit Defendant of attempting to rob Ms.
Richardson with a dangerous weapon, possessing Ms. Frick’s
brother’s wallet, and possessing a stolen motor vehicle; and to
fail to reach agreement with respect to the issue of whether
Defendant robbed Ms. Frick’s father and brother and attempted to
rob Ms. Frick.
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connection with Defendant’s conviction for possession of stolen
property, the trial court entered judgments sentencing Defendant
to four consecutive active terms totaling thirty-two to thirty-
nine months imprisonment, and one suspended term of six to eight
months imprisonment, with Defendant being placed on supervised
probation for a period of thirty-six months subject to certain
terms and conditions. Defendant noted an appeal to this Court
from the trial court’s judgments.
II. Legal Analysis
A. Motion to Strike the State’s Brief
As an initial matter, we must address Defendant’s motion to
strike the State’s brief, which was filed in an untimely manner
without any justification or excuse and after several extensions
of the time within which it was authorized to do so had been
obtained. Although the complete failure on the part of counsel
for the State to comply with our rules concerning the timing
within which the State’s brief should have been filed is quite
troubling and although we strongly admonish counsel for the
State to refrain from engaging in such conduct in the future, we
conclude that Defendant’s dismissal motion should be denied for
a number of reasons.
As an initial matter, we note that the filing of an
appellee’s brief, as compared to the filing of an appellant’s
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brief, is not a prerequisite for the perfection of an appeal.
According to the relevant provisions of the North Carolina Rules
of Appellate Procedure, while “the appeal may be dismissed”
“[i]f an appellant fails to file and serve a brief within the
time allowed,” an appellee’s failure to file his or her brief in
a timely manner simply means that he or she may not “be heard in
oral argument except by permission of the court.” N.C.R. App.
P. 13(c). For that reason, decisions such as Thompson v. First
Citizens Bank & Trust Co., 151 N.C. App. 704, 706, 567 S.E.2d
184, 186-87 (2002), and Dalenko v. Wake Cnty. Dep’t of Human
Servs., 157 N.C. App. 49, 53-54, 578 S.E.2d 599, 602, cert.
denied, 357 N.C. 457, 585 S.E.2d 383 (2003) cert. denied sub nom
Bennett v. Wake Cnty. Dep’t of Human Servs., 540 U.S. 1178, 124
S. Ct. 1411, 158 L. Ed. 2d 79 (2004), in which this Court
dismissed appeals based upon the appellant’s failure to file a
brief, shed little light on the proper resolution of this issue.
As a result, since nothing in the relevant provisions of the
North Carolina Rules of Appellate Procedure mandates the
striking of the State’s brief, we must evaluate the merits of
Defendant’s motion to strike based upon an analysis of the
decisions governing the manner in which violations of the North
Carolina Rules of Appellate Procedure should be sanctioned.
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Although the Rules of Appellate Procedure “are mandatory
and [the] failure to follow these rules will subject an appeal
to dismissal,” Steingress v. Steingress, 350 N.C. 64, 65, 511
S.E.2d 298, 299 (1999), “a party’s failure to comply with
nonjurisdictional rule requirements normally should not lead to
dismissal of the appeal.” Dogwood Dev. & Mgmt. Co., LLC v.
White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365
(2008). Instead, N.C.R. App. P. 25(b) and N.C.R. App. P. 34
provide this Court with substantial discretion in determining an
appropriate sanction in the event that a party commits a non-
jurisdictional violation of the North Carolina Rules of
Appellate Procedure.
Admittedly, a decision to strike a party’s brief is not as
significant as a decision to dismiss a party’s appeal. However,
striking an appellee’s brief is among the most significant
sanctions, if not the most significant, that can be imposed upon
an appellee. For that reason, we are inclined to believe that
an appellee’s failure to file his or her brief in a timely
manner should not, as a general proposition, result in the
striking of that party’s brief in the absence of a showing that
the appellee’s conduct has resulted in material prejudice to the
appellant. Although the record clearly establishes that the
State has completely failed to provide any legitimate excuse for
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its failure to file its brief in a timely manner, the record
also clearly establishes that Defendant has not demonstrated
that he suffered any particularized prejudice as a result of the
State’s lack of timely action. As a result, we hereby conclude,
in the exercise of our discretion, that Defendant’s motion to
strike the State’s brief should be, and hereby is, denied.
Counsel for the State is, however, strongly admonished to
refrain from engaging in such inexcusable conduct in the future
and should understand that any repetition of the conduct
disclosed by the present record will result in the imposition of
significant sanctions upon both the State and himself
personally.
B. Substantive Legal Issues
1. Admissibility of Text Messages
In his brief, Defendant contends that the trial court erred
by sustaining the State’s objections to the admission of
evidence concerning the contents of certain text messages
obtained by investigating officers during an examination of Mr.
Alston’s cell phone. More specifically, Defendant contends that
the cell phone messages were relevant and properly authenticated
and that the exclusion of the evidence in question prejudiced
his chances for a more favorable outcome at trial. We do not
find Defendant’s argument persuasive.
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a. Relevant Facts
The phone number listed on Loven McLaughlin’s arrest report
was (336) 263-9913. According to Loven McLaughlin, the
investigating officers did not confiscate his cell phone at the
time that he was taken into custody and never asked him to
verify his phone number. In addition, Loven McLaughlin
testified that he could not remember the cell phone number
assigned to his phone as of the date upon which he was arrested
given the large number of phones that he had utilized.
Although Detective Jennifer Bradley Matherly of the
Burlington Police Department prepared Loven McLaughlin’s arrest
report, she acknowledged that the names, dates, phone numbers,
and other information that she recorded on that document could
have emanated from a range of sources, such as information
provided by the suspect, information contained in the warrant
for arrest, or information on file with or available to the
Burlington Police Department. For that reason, Detective
Matherly indicated that, while she could have confirmed a phone
number shown on the arrest report with the suspect, she might
have obtained that information in another way as well and did
not know the source of any specific item of information shown on
Loven McLaughlin’s arrest report. Detective Matherly did state,
however, that she would not have used information obtained from
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one suspect in filling out an arrest report relating to a
different suspect.
After recovering Mr. Alston’s cell phone, investigating
officers photographed each individual text message found in that
instrument. During this process, investigating officers found
messages sent to Mr. Alston from individuals identified as
“LuvBoat” and “SnakeNDAGrass.” Although Andre McLaughlin
testified that Mr. Alston referred to Loven McLaughlin as
“LuvBoat,” Loven McLaughlin denied that Mr. Alston called him by
that name and asserted, instead, that Mr. Alston called him
“Slogey.” In addition, Loven McLaughlin testified that he was
not planning on moving, that he is not related to Mr. Alston,
and that he and Mr. Alston never referred to each other as
“cuz.”
After Defendant began to cross-examine Loven McLaughlin
about the text messages taken from Mr. Alston’s phone, the State
lodged a successful objection. Subsequently, during his own
case in chief, Defendant sought to obtain the admission of the
text messages in question. However, the trial court sustained
the State’s objection to the admission of these text messages.
In both instances, the State’s objections were predicated on
authentication and relevance grounds.
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The text messages sought to be introduced showed a callback
number of (336) 263-9913. Without reciting the contents of
these text messages in their entirety, certain messages that
“LuvBoat” sent to Mr. Alston’s phone contained repeated
statements concerning “LuvBoat’s” need for money in order “to
find a place to stay,” inquiring if “ur cuzin” was going to
“sell it,” and asking if Mr. Alston had “got the money.” During
the same time that he was receiving these text messages from
“LuvBoat,” messages were sent from Mr. Alston’s phone to “Cuz”
stating “u gta choppa” and “r u strap[p]ed.” The undisputed
evidence reflects that “choppa” is a reference to an assault
rifle, while the fact that someone is “strapped” means that he
or she is in possession of a weapon.
b. Admissibility of Text Messages
According to well-established North Carolina law, the
requirement that an item be properly authenticated before being
admitted into evidence is “satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a). “A
trial court’s determination as to whether a document has been
sufficiently authenticated is reviewed de novo on appeal as a
question of law.” State v. Crawley, __ N.C. App. __, __, 719
S.E.2d 632, 637 (2011), disc. review denied, 365 N.C. 553, 722
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S.E.2d 607 (2012). Similarly, evidence is relevant when it has
“any tendency to make the existence of any fact that is of
consequence to the action more probable or less probable than it
would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401. “Although ‘[a] trial court’s rulings on relevancy
technically are not discretionary and therefore are not reviewed
under the abuse of discretion standard applicable to [N.C. Gen.
Stat. § 8C-1,] Rule 403, such rulings are given great deference
on appeal.’” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d
11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502,
410 S.E.2d 226, 228 (1991), appeal dismissed, 331 N.C. 290, 416
S.E.2d 398, cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L.
Ed. 2d 241 (1992)). “A defendant is prejudiced by errors
relating to rights arising other than under the Constitution of
the United States when there is a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises.” N.C. Gen. Stat. § 15A-1443(a).
Assuming, without deciding, that the text messages at issue
in this case were properly authenticated and were relevant to
the matters at issue at trial, we are unable to determine that
there was a reasonable possibility that the outcome at
Defendant’s trial would have been different had these errors not
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been committed. The ultimate effect of the jury’s verdicts was
to convict Defendant of breaking into Mr. May’s apartment and
stealing various electronic items and firearms and breaking into
Mr. Pryor’s motor vehicle and pointing an assault rifle at him.
In attempting to persuade us that the exclusion of these text
messages constituted prejudicial error, Defendant contends that
these messages undercut the credibility of Loven McLaughlin’s
testimony by refuting his contention that he, rather than
Defendant, was being forced to move and suggested that Loven
McLaughlin had been involved in the theft of the firearms from
Mr. May’s apartment and their subsequent use in the commission
of other offenses given his attempt to get Mr. Alston to sell
the firearms taken at that time. Although the record might
support the inferences that Defendant contends should be drawn
from these text messages, those inferences have little strength.
As an initial matter, even if the record suffices to
support an inference that the text messages from “LuvBoat” were
sent by Loven McLaughlin, the record contains substantial
evidence that would support a contrary inference. Secondly, the
record contains no evidence concerning the identity of “Cuz,” to
whom the text messages concerning the firearms were sent.
Thirdly, the text messages from “LuvBoat” simply inquire whether
“ur cuzin [is] goin to sell it,” which is less than a clear cut
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reference to the sale of one or more firearms, much less those
taken from Mr. May’s apartment. Fourthly, the inference that
the firearms referred to in the text messages to “Cuz” are the
same weapons that had been taken from Mr. May’s apartment is
less than compelling. Finally, as the trial court noted, even
if the text messages in question establish that Loven McLaughlin
was involved in the entry into Mr. May’s apartment, that fact,
without more, does not exonerate Defendant of any involvement in
the commission of that crime given the undisputed evidence that
Defendant, Loven McLaughlin, Andre McLaughlin, and Mr. Alston
were spending a great deal of time together during the time in
which that crime was committed. As a result, the inference that
Defendant wishes us to draw from the text messages in question
is, at best, an ambiguous and equivocal one.
In addition, the record contains substantial additional
evidence of Defendant’s guilt. For example, the record contains
the essentially undisputed testimony of Mr. May to the effect
that Defendant was familiar with his property and that his
apartment had been broken into and his property taken within a
relatively short period of time after he and Defendant left the
premises. In addition, Mr. Pryor identified Defendant as the
individual who broke into his motor vehicle and pointed a rifle
at him. Although the strength of Mr. Pryor’s identification of
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Defendant waned between the time of the investigation and the
time of trial, that fact, standing alone, should not divert our
attention from the fact that the jury heard evidence that Mr.
Pryor was 90% certain that Defendant was the individual who had
broken into his vehicle and pointed an assault rifle at him
shortly after the commission of those crimes. In short, the
other evidence of Defendant’s guilt, while perhaps not
overwhelming, was certainly strong. As a result, given the
limited strength of the inferences that Defendant wishes us to
draw from the text messages at issue in this case coupled with
the relative strength of the State’s other evidence of
Defendant’s guilt, we are unable to say that Defendant has shown
that there is a reasonable possibility that the outcome at trial
would have been different had the evidence in question been
admitted at Defendant’s trial. For that reason, we hold that
Defendant is not entitled to an award of appellate relief based
upon this challenge to the trial court’s judgments.
2. Jury Instructions
Secondly, Defendant contends that the trial court erred by
refusing to instruct the jury in accordance with his requested
instruction relating to the manner in which it should consider
the credibility of eyewitness identification evidence. More
specifically, Defendant contends that the trial court should
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have informed the jury about the results of recent research into
factors bearing upon the accuracy of such evidence during its
instructions to the jury. Defendant is not entitled to relief
from the trial court’s judgments on the basis of this
contention.
a. Standard of Review
“It is the duty of the trial court to instruct the jury on
all substantial features of a case raised by the evidence.”
State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988).
For that reason, a “[f]ailure [by the trial court] to instruct
upon all substantive or material features of the crime charged
is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745,
748 (1989). While “[i]t is well established in this
jurisdiction that the trial court is not required to give a
requested instruction in the exact language of the request,”
“when the request is correct in law and supported by the
evidence in the case, the court must give the instruction in
substance.” State v. Green, 305 N.C. 463, 476-77, 290 S.E.2d
625, 633 (1982). This Court reviews issues relating to the
substance of the trial court’s instructions using a de novo
standard of review. State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149 (2009).
b. Applicable Background Information
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In 2012, the New Jersey Supreme Court released a new
pattern jury instruction addressing eyewitness identification
issues2 that was based upon its decision in State v. Henderson,
208 N.J. 208, 27 A.3d 872 (2011). In Henderson, the defendant
contended “that the identification [of him as the culprit] was
not reliable because the officers investigating the case
intervened during the identification process and unduly
influenced the eyewitness.” 208 N.J. at 217, 27 A.3d at 877.
During its consideration of Henderson, the New Jersey Supreme
Court ordered that an evidentiary hearing be held for the
purpose of evaluating whether the “assumptions and other factors
reflected in the two-part” test set out in Manson v. Brathwaite,
432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and the
five factors that must be considered in the course of applying
that test remained “valid and appropriate in light of recent
scientific and other evidence.” Id. at 228, 27 A.3d at 884. On
remand, the parties developed a record that included testimony
from “seven experts and [contained] more than 2,000 pages of
transcripts along with hundreds of scientific studies.” Id. at
217-18, 27 A.3d at 877. In reviewing the resulting special
master’s report, the New Jersey Supreme Court determined “that
2
Supreme Court Releases Eyewitness Identification Criteria
for Criminal Cases, (19 July 2012),
http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm.
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the scientific evidence considered at the remand hearing [was]
reliable”; that, “based on the testimony and ample record
developed at the hearing,” “a number of system and estimator
variables can affect the reliability of eyewitness
identifications”; and that the “evidence offer[ed] convincing
proof that the current test for evaluating the trustworthiness
of eyewitness identifications should be revised.” Id. at 218,
283-85, 27 A.3d at 877, 916-17.
After making these preliminary determinations, the New
Jersey Supreme Court concluded that, “[t]o evaluate whether
there is evidence of suggestiveness to trigger a [pretrial]
hearing, courts should consider the following non-exhaustive
list of system variables,” including:
1. Blind Administration. Was the lineup
procedure performed double-blind? If
double-blind testing was impractical, did
the police use a technique like the
“envelope method” . . . to ensure that the
administrator had no knowledge of where the
suspect appeared in the photo array or
lineup?
2. Pre-identification Instructions. Did
the administrator provide neutral, pre-
identification instructions warning that the
suspect may not be present in the lineup and
that the witness should not feel compelled
to make an identification?
3. Lineup Construction. Did the array or
lineup contain only one suspect embedded
among at least five innocent fillers? Did
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the suspect stand out from other members of
the lineup?
4. Feedback. Did the witness receive any
information or feedback, about the suspect
or the crime, before, during, or after the
identification procedure?
5. Recording Confidence. Did the
administrator record the witness’ statement
of confidence immediately after the
identification, before the possibility of
any confirmatory feedback?
6. Multiple Viewings. Did the witness
view the suspect more than once as part of
multiple identification procedures? Did
police use the same fillers more than once?
7. Showups. Did the police perform a
showup more than two hours after an event?
Did the police warn the witness that the
suspect may not be the perpetrator and that
the witness should not feel compelled to
make an identification?
8. Private Actors. Did law enforcement
elicit from the eyewitness whether he or she
had spoken with anyone about the
identification and, if so, what was
discussed?
9. Other Identifications Made. Did the
eyewitness initially make no choice or
choose a different suspect or filler?
Id. at 289-91, 27 A.3d at 920-21. In addition, the New Jersey
Supreme Court held that, in order to determine whether an
identification was valid, courts should consider particular
“estimator” variables, including:
1. Stress. Did the event involve a high
level of stress?
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2. Weapon focus. Was a visible weapon
used during a crime of short duration?
3. Duration. How much time did the
witness have to observe the event?
4. Distance and Lighting. How close were
the witness and perpetrator? What were the
lighting conditions at the time?
5. Witness Characteristics. Was the
witness under the influence of alcohol or
drugs? Was age a relevant factor under the
circumstances of the case?
6. Characteristics of Perpetrator. Was
the culprit wearing a disguise? Did the
suspect have different facial features at
the time of the identification?
7. Memory decay. How much time elapsed
between the crime and the identification?
8. Race-bias. Does the case involve a
cross-racial identification?
Some of the above estimator variables
overlap with the five reliability factors
outlined in Neil v. Biggers, supra, 409
U.S.at 199-200, 93 S. Ct. at 382, 34 L. Ed.
2d at 411, which we nonetheless repeat:
9. Opportunity to view the criminal at the
time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the
criminal.
12. Level of certainty demonstrated at the
confrontation.
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Did the witness express high confidence at
the time of the identification before
receiving any feedback or other information?
13. The time between the crime and the
confrontation. (Encompassed fully by “memory
decay” above.)
Id. at 291-92, 27 A.3d at 921-22. After describing the manner
in which the trial courts should evaluate the admissibility of
eyewitness identification testimony, the New Jersey Supreme
Court noted that “juries will continue to hear about all
relevant system and estimator variables at trial, through direct
and cross-examination and arguments by counsel”; directed that
“enhanced instructions be given to guide juries about the
various factors that may affect the reliability of an
identification in a particular case” “[b]ased on the record
developed on remand”; and created a process under which various
committees would draft proposed revisions to the existing
pattern instructions relating to the validity of eyewitness
identification evidence based upon the determinations set out in
the Henderson opinion for its consideration. Id. at 296, 298-
99, 27 A.3d at 924-26.3
c. Defendant’s Requested Eyewitness Identification Instruction
3
The pattern instructions are available in full at
http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.
pdf.
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The eyewitness identification instruction that Defendant
requested the trial court to deliver in this case was eight
pages long and contained language that bore a strong resemblance
to the New Jersey instruction developed as a result of the
Henderson decision. Among other things, Defendant requested the
trial court to instruct the jury that “there are risks of making
mistaken identifications” and that the jury should consider a
number of factors in evaluating the credibility of the
eyewitness identification testimony presented in this case,
including, among other things, the witness’ “opportunity to view
the person who committed the offense”; the witness’ “level of
stress,” given that high levels of stress can reduce an
eyewitness’s ability to recall; “[t]he amount of time [the
witness had] to observe an event”; whether the “witness saw a
weapon during the incident,” since “the presence of a visible
weapon may reduce the reliability of a subsequent
identification”; the distance between the witness and the person
being identified; the adequacy of the lighting conditions at the
time that the witness saw the perpetrator; the extent to which
the witness’ level of intoxication “affect[ed] the reliability
of the identification”; the possible use of a disguise; the
“accuracy of any description [that] the witness gave after
observing the incident and before identifying the perpetrator”;
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the degree to which the witness is confident about the accuracy
of his or her identification, subject to the caveat that an
“eyewitness’s confidence is generally an unreliable indicator of
accuracy”; the extent to which there have been “delays between
the commission of a crime and the time an[] identification is
made”; and, since “[r]esearch has shown that people may have
greater difficulty in accurately identifying members of a
different race,” whether the witness and the alleged perpetrator
are of the same or different races. In addition, Defendant’s
proposed instruction informed the jury that, in considering the
reliability of any identification procedure described in the
record, the jury should consider whether any person stood “out
from other members of the lineup”; whether a minimum of “six
persons or photos” had been included in the lineup; whether the
witness viewed the suspect in multiple lineups, since “the risk
of mistaken identification is increased” “if a witness views an
innocent suspect in multiple identification procedures”; whether
the witness identified the suspect in a show-up, since “show ups
conducted more than two hours after an event present a
heightened risk of misidentification”; whether the line-up
administrator knew the suspect’s identity; what was said to the
witness prior to viewing a lineup or photographic array; and
whether “police officers or witnesses to an event who are not
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law enforcement officials[] signal to eyewitnesses that they
correctly identified the suspect.”
d. Trial Court’s Eyewitness Identification Instruction
The trial court declined to give the eyewitness
identification instruction that Defendant requested and,
instead, instructed the jury that:
You, ladies and gentlemen, are the sole
judges of the credibility and the
believability of each and every witness,
that is their worthiness of belief. You
must decide for yourselves whether to
believe the testimony of any witness, or you
may believe all or any part or none of what
a witness has said on the witness stand.
In determining whether to believe any
witness, you should apply the same tests of
truthfulness which you do apply in your own
everyday affairs. As applied to this trial,
these tests may include the opportunity of
the witness to see, hear, know or remember
the facts or occurrence about which the
witness testified; the manner and the
appearance of the witness; any interest,
bias or prejudice the witness may have; the
apparent understanding and fairness of the
witness; whether the witness’s testimony is
reasonable and whether such testimony is
consistent with other believable evidence in
the case.
You are the sole judges of the weight
to be given to any evidence. By this I
mean, if you decide that certain evidence is
believable, you must then determine the
importance of that evidence in light of all
other believable evidence in the case.
. . . .
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I instruct you that the State has the
burden of proving the identity of the
defendant as the perpetrator of the crime
charged beyond a reasonable doubt. This
means that you, the jury, must be satisfied
beyond a reasonable doubt that the defendant
was the perpetrator of the crime charged
before you may return a verdict of guilty.
In addition, the trial court delivered the instruction relating
to the manner in which the jury should evaluate the validity of
photographic identification procedures as required by N.C. Gen.
Stat. § 15A-284.52(d)(3), with this instruction having included
a lengthy recitation of the criteria for a proper identification
procedure set out in N.C. Gen. Stat. § 15A-284.52(b). We do not
believe, given the record developed before the trial court in
this case and the content of the instructions actually delivered
by the trial court, that the trial court erred by declining to
deliver Defendant’s requested eyewitness identification
instruction.
e. Relevant Appellate Decisions
The appellate courts in this jurisdiction have addressed
the appropriateness of delivering additional instructions
concerning the credibility of eyewitness identification
testimony on a number of occasions. In State v. Green, the
defendant requested the trial court to instruct the jury to
consider the mental state of the witness and the adequacy of the
witness’ eyesight in evaluating the credibility of the
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eyewitness identification testimony. 305 N.C. at 475-76, 290
S.E.2d at 633. In lieu of delivering the instruction requested
by the defendant, the trial court instructed the jury in
accordance with the pattern jury instructions addressing the
weight and credibility of the evidence and the necessity for the
jury to find beyond a reasonable doubt that the defendant was
the perpetrator of the crime charged before returning a verdict
of guilty. Id. at 476, 290 S.E.2d at 633. In reviewing the
defendant’s challenge on appeal to the trial court’s refusal to
deliver his requested instruction, the Supreme Court held that
the instructions delivered by the trial court, considered as a
whole, were “adequate[] [to] explain[] to the jury the various
factors they should consider in evaluating the testimony of
witnesses.” Id. at 477, 290 S.E.2d at 633.
Similarly, in State v. Dodd, 330 N.C. 747, 752, 412 S.E.2d
46, 49 (1992), the defendant requested the trial court to
instruct the jury in such a manner as to “emphasize[] at length
the jury’s need to examine the testimony of the witnesses to
assess whether they had the opportunity to observe the alleged
crime, their ability to identify the perpetrator given the
length of time they had to observe, their mental and physical
conditions, and the lighting and other conditions that might
have affected their observation.” Although these instructions
-35-
focused on a somewhat different set of factors than were
addressed in the requested instruction at issue in Green, the
Supreme Court upheld the trial court’s decision to refrain from
delivering the instruction requested by the defendant and to
utilize the pattern jury instructions concerning the weight and
credibility of the evidence and the necessity for the jury to
find beyond a reasonable doubt that the defendant was the
perpetrator of the crime charged before returning a guilty
verdict on the grounds that the instructions actually delivered
by the trial court adequately informed the jury about the
factors that should be considered in evaluating the credibility
of eyewitness identification testimony. Id. at 753, 412 S.E.2d
at 49.
An examination of the Supreme Court’s decisions in Green
and Dodd, coupled with our similar decision in State v. Summey,
109 N.C. App. 518, 525-26, 428 S.E.2d 245, 249-50 (1993)
(holding that the trial court did not err by failing to instruct
the jury to consider certain additional factors in evaluating
the validity of eyewitness identification testimony), reveals
that this Court and the Supreme Court have clearly held that the
existing pattern jury instructions governing the manner in which
jurors should evaluate the weight and credibility of the
evidence and the necessity for the jury to find that the
-36-
defendant perpetrated the crime charged beyond a reasonable
doubt sufficiently address the issues arising from the
presentation of eyewitness identification testimony. In
recognition of these decisions, Defendant contends that, while
the weight, credibility, and identity instructions held to be
adequate in Green and Dodd are sufficient in cases, such as
those involving poor lighting, distance, or intoxication, in
which the alleged deficiencies in an eyewitness identification
should be obvious, they do not suffice to provide jurors with
adequate information concerning more subtle and less obvious
deficiencies in eyewitness identification evidence. In support
of this argument, Defendant relies upon the logic set out in
Henderson, in which the New Jersey Supreme Court stated, among
other things, that, while “[e]veryone knows, for instance, that
bad lighting conditions make it more difficult to perceive the
details of a person’s face,” other “findings are less obvious,”
with many people clearly believing that “witnesses to a highly
stressful, threatening event will ‘never forget a face’ because
of their intense focus at the time, the research suggests that
is not necessarily so.” Henderson, 208 N.J. at 272, 27 A.3d at
910. As a result, Defendant essentially argues that we should
treat Green, Dodd, and Summey as distinguishable based upon the
-37-
nature of the factors addressed in the requested instructions
deemed unnecessary there.
Assuming, without deciding, that the distinction upon which
Defendant relies is a valid one, a point that we need not
address in this instance, we do not believe that the additional
instruction that Defendant requested in this case had adequate
evidentiary support. In essence, the difference between the
instructions that the trial court delivered and the instruction
that Defendant requested is that the latter, unlike the former,
contained numerous factual statements about the impact of
weapons, focus, stress, racial differences, and the degree of
certainty expressed by the witness in identifying the defendant
as the perpetrator. For example, the effect of a decision to
deliver Defendant’s requested instruction would put the trial
courts in the position of making numerous factual statements
about the impact of various factors on the validity of
eyewitness identification testimony, such as assertions that
“[t]he process of remembering consists of three stages”; that
“research has shown that there are risks of making mistaken
identifications”; that “[r]esearch has revealed that human
memory is not like a video recording”; that “the presence of a
visible weapon may reduce the reliability of a subsequent
identification if the crime is of short duration”; that an
-38-
“eyewitness’s confidence is generally an unreliable indicator of
accuracy”; and that “[r]esearch has shown that people may have
greater difficulty in accurately identifying members of a
different race.” Although the record developed in Henderson
contained evidence relating to these issues, there is no such
evidence in the present record and Defendant has not argued,
much less established, that we are entitled to take judicial
notice of the information upon which the Henderson Court relied
in adopting the pattern instruction upon which Defendant relies.
West v. G. D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221,
223 (1981) (stating that, “generally a judge or a court may take
judicial notice of a fact which is either so notoriously true as
not to be the subject of reasonable dispute or is capable of
demonstration by readily accessible sources of indisputable
accuracy”). As a result, a decision to reverse the trial court
for failing to deliver Defendant’s requested instruction
relating to the credibility of eyewitness identification
testimony would, in essence, put this Court in the position of
making factual determinations and exercising rule-making
authority, neither of which we have the authority to do. Shera
v. N.C. State Univ. Veterinary Teaching Hosp., __ N.C. App. __,
__, 723 S.E.2d 352, 358 (2012) (holding that “[t]his Court is an
error-correcting court, not a law-making court”). As a result,
-39-
we hold, in light of the previous decisions of the Supreme Court
and this Court, by which we are bound; the absence of any
evidentiary support for the instruction that Defendant contends
that the trial court should have delivered; and the well-
established limitations under which this Court operates, that
the trial court did not commit prejudicial error by failing to
give Defendant’s requested instruction concerning the manner in
which the jury should evaluate the credibility of the eyewitness
identification testimony presented for its consideration.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
neither of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Chief Judge MARTIN and Judge MCCULLOUGH concur.