State v. Carpenter

NO. COA13-898
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 10CRS055309, 12CRS006417
LAMAR MONQUEE CARPENTER,
Defendant.
Appeal by defendant from Judgments entered on or about 21
March 2013 by Judge V. Bradford Long in Superior Court, Forsyth
County. Heard in the Court of Appeals 9 January 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Aimee Margolis, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for defendant-
appellant.
STROUD, Judge.
Lamar Carpenter (“defendant”) appeals from judgments
entered on or about 21 March 2013 after a Forsyth County jury
found him guilty on two counts of robbery with a dangerous
weapon and one count of possession of a firearm by a convicted
felon. We conclude that defendant has failed to show error at
his trial, but dismiss his ineffective assistance of counsel
claim without prejudice to his ability to raise it by motion for
appropriate relief.
-2-
I. Background
On 7 February 2011, defendant was indicted in Forsyth
County for robbery with a dangerous weapon. This indictment was
superseded on 23 January 2012 by one charging two counts of
robbery with a dangerous weapon and again on 13 August 2012 by
indictments charging two counts of robbery with a dangerous
weapon and one count of possession of a firearm by a felon.
Defendant pled not guilty and the case proceeded to jury trial.
At trial, the State’s evidence tended to show that on 23
April 2010, Ahmed Khabiry and Shafic Andraos were working at a
gas station and convenience store in Winston-Salem. Mr. Khabiry
was working as a manager and clerk, while Mr. Andraos, the owner
of the store, was working in the back office. At around 9:00 or
9:30 that morning, a young man walked into the convenience store
and attempted to use the ATM. Neither Mr. Khabiry nor Mr.
Andraos recognized the man. That same man returned a few minutes
later with a second man. Both men were wearing bandanas covering
the lower half of their faces. Mr. Khabiry was outside sweeping
the parking lot when he saw the men arrive. He started heading
back inside to assist them when he noticed the first man was
carrying a silver gun in his hand. Mr. Khabiry grabbed for the
gun, but the second robber came up, pointed another silver gun
-3-
at him, and pushed him inside. The first robber took Mr.
Khabiry back behind the counter to the cash register, while the
second robber went back to the office where Mr. Andraos was
working.
Mr. Khabiry recognized the second robber as one of his
regular customers, who he had nicknamed “Big Money,” but did not
recognize the first robber. He recognized “Big Money” from his
build and voice, and also from his tattoo. In court, Mr.
Khabiry identified defendant as the second robber and the man he
knew as “Big Money.”
The first robber told Mr. Khabiry to open the cash
register, which he did, and then demanded Mr. Khabiry hand over
his wallet. When Mr. Khabiry informed the first robber that he
did not have a wallet on him, the robber told him to hand over
whatever money he had in his pocket, which amounted to five
dollars. The second robber took about $6,700 from the back
office, where Mr. Andraos had been preparing the store’s cash
for deposit. Both robbers then left the store and Mr. Khabiry
called the police.
Around 5 May 2010, the police asked Mr. Khabiry to look at
two photo arrays, one of which contained defendant’s photograph.
The arrays were administered by an officer with no connection to
-4-
the investigation and no knowledge of which photograph in the
array was the suspect. Mr. Khabiry identified defendant as the
regular customer who had robbed the store, stating he was “100
percent sure.” He did not identify the man whom police
suspected was the first robber.
Sometime in July 2010, defendant returned to the
convenience store. Mr. Khabiry recognized him as the second
robber and informed Mr. Andraos. Mr. Andraos went out to look at
the car defendant was driving, wrote down the license plate
number, and called the police. At trial, Mr. Andraos identified
defendant as the man he saw in July whom Mr. Khabiry pointed
out. Mr. Andraos testified that he noticed the same tattoo on
defendant’s arm in July as the one he saw on the second robber’s
arm, but that he did not really know defendant.
The State also introduced pictures taken of defendant while
he was in jail that showed the tattoo on his right arm and still
photographs taken by the store’s surveillance cameras during the
robbery. The surveillance camera photographs showed that the
second robber had a tattoo on his forearm, but the photographs
were not of sufficient quality to show the details of the
tattoo.
-5-
At the close of the State’s evidence, defendant moved to
dismiss all of the charges against him and the trial court
denied the motion. He then elected not to present evidence and
renewed his motion to dismiss. Again, the trial court denied the
motion. The jury found defendant guilty on two counts of robbery
with a dangerous weapon and one count of possession of a firearm
by a felon. The trial court sentenced defendant to two
consecutive terms of 97-126 months imprisonment and one term of
19-23 months imprisonment. Defendant gave notice of appeal in
open court.
II. Admission of Photographs
Defendant first argues that the trial court erred in
admitting three photographs of him and his tattoos taken at the
jail after his arrest. He contends that the photographs were not
properly authenticated, not relevant, and that the trial court
erred in denying his motion to exclude them under Rule 403. We
hold that the trial court did not err in admitting the
photographs.
A. Standard of Review
At trial, defendant only objected to admission of the
photographs under N.C. Gen. Stat. § 8C-1, Rule 403 (2011).
Defendant did not raise either authentication or relevance
-6-
below, but asks us to review the trial court’s denial of his
motion to exclude the photographs on those grounds for plain
error.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury’s finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations and quotation marks omitted).
Defendant did object on the basis that the evidence was
inadmissible under Rule 403. We review the trial court’s
determination under Rule 403 for an abuse of discretion. State
v. Cunningham, 188 N.C. App. 832, 836-37, 656 S.E.2d 697, 700
(2008). “An abuse of discretion results only where a decision is
manifestly unsupported by reason or so arbitrary that it could
not have been the result of a reasoned decision.” State v.
Black, 197 N.C. App. 731, 737, 678 S.E.2d 689, 693 (citation and
quotation marks omitted), app. dismissed, 363 N.C. 657, 685
-7-
S.E.2d 108 (2009), cert. dismissed, 365 N.C. 208, 710 S.E.2d 38(2011).
B. Authentication
“Photographs may be used as substantive evidence upon the
laying of a proper foundation, N.C.G.S. § 8-97, and may be
admitted when they are a fair and accurate portrayal of the
place in question and are sufficiently authenticated.” Sellers
v. CSX Transp., Inc., 102 N.C. App. 563, 565, 402 S.E.2d 872,
873 (1991). A photograph is authentic if there is “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)
(2011).
Here, the photographs that defendant challenges are
photographs taken of him, including his tattoo, while he was in
custody in October 2010. Defendant argues that because the State
introduced no evidence that defendant had that tattoo on 23
April 2010, the date of the robbery, the photographs were not
what they purported to be. We disagree.
The custodial photographs did not purport to show
defendant’s arm at the time of the robbery. The photographs
clearly show—and the State introduced them to show—that
defendant had a tattoo on a particular place on his forearm at
-8-
the time the photograph was taken. The officer who took the
photographs testified about the procedure used to take them and
testified that they fairly and accurately depicted defendant’s
tattoo as it appeared in October 2010. Indeed, defendant does
not contest that the photographs fairly and accurately depict
defendant’s arm while he was in custody. Therefore, there is no
authentication issue with the photographs under either N.C. Gen.
Stat. § 8C-1, Rule 901(a) or N.C. Gen. Stat. § 8-97.
C. Relevance
Similarly, defendant argues that the custodial photographs
were irrelevant because the State has failed to show that he had
the tattoo on 23 April 2010. Defendant contends that the fact
that he had a tattoo on his forearm in October 2010 is not
probative at all as to identity. Again, we disagree.
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401 (2011). “Evidence is relevant if it has any logical
tendency, however slight, to prove a fact in issue in the case.”
State v. Whiteside, 325 N.C. 389, 397, 383 S.E.2d 911, 915
(1989). A piece of evidence does not have to positively identify
-9-
the perpetrator to be relevant to the issue of identity. See
State v. Collins, 35 N.C. App. 250, 252, 241 S.E.2d 98, 99
(1978) (“Under the facts in this case it was not necessary that
the victim give testimony positively identifying the clothing as
that worn by the robber, only that it was similar.”); State v.
Bass, 280 N.C. 435, 449, 186 S.E.2d 384, 394 (1972) (holding
that testimony identifying the jacket the defendant was wearing
at his arrest as similar to that of the perpetrator was relevant
and admissible).
Here, the photographs of defendant’s tattoo taken after his
arrest were relevant to proving his identity as the perpetrator.
Detective Clark did testify that he could not make out what the
tattoo said, in the surveillance camera still photographs but
noted that he could tell it was a tattoo. Additionally, the
surveillance camera photographs clearly show the location and
general dimensions of the tattoo of the second robber. It would
be reasonable for a juror to conclude that the photographs taken
after defendant’s arrest show a tattoo in approximately the same
location and approximately the same size as that of the second
robber. That defendant had a tattoo on his forearm in October
2010 similar to that of the second robber is at least some
evidence that he was the second robber. Such evidence makes it
-10-
“more probable” that defendant was the perpetrator “than it
would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401. Therefore, the evidence is relevant to the issue of
identity. See Whiteside, 325 N.C. at 397-98, 383 S.E.2d at 915-
16 (holding that evidence that a pair of shoes owned by
defendant matched the shoe prints found at the crime scene is
relevant to identity, even if the witnesses were unsure if he
was wearing those shoes on the night of the crime). “Once
properly admitted, the weight to be given the evidence was a
decision for the jury.” Id. at 398, 383 S.E.2d at 916.
D. Rule 403
We have held that the photographs of defendant’s tattoos
were properly authenticated and relevant to identify the second
robber. Now, we must address defendant’s argument—the only one
raised below—that the photographs are inadmissible under Rule
403 because “[a]ny probative value from the custodial
photographs was outweighed by the danger of unfair prejudice and
confusion of the issues.”
Defendant first contends that the photographs had no
probative value and tended to confuse the jury, largely
repeating the same arguments made as to authentication and
relevance. For the reasons discussed in the sections addressing
-11-
those arguments, this argument is similarly unconvincing. Next,
defendant argues that the photographs were unfairly prejudicial
because they showed him in a jail setting. Defendant fails to
highlight anything in the photographs that clearly identify
where they were taken other than “some type of institutional
setting” and the reflections of two officers.
While all evidence offered against a party
involves some prejudicial effect, the fact
that evidence is prejudicial does not mean
that it is necessarily unfairly prejudicial.
The meaning of unfair prejudice in the
context of Rule 403 is an undue tendency to
suggest decision on an improper basis,
commonly, though not necessarily, as an
emotional one.
State v. Capers, 208 N.C. App. 605, 617, 704 S.E.2d 39, 46
(2010) (citation and quotation marks omitted), disc. rev. denied
and app. dismissed, 365 N.C. 187, 707 S.E.2d 236 (2011).
Here, the trial court admitted the photographs that it
determined showed the least amount of information regarding the
location, but excluded as cumulative one of the photographs that
showed more of defendant’s jail jumpsuit. The photographs
admitted by the trial court did not clearly show defendant in
jail garb or in handcuffs. The pictures only showed defendant in
a white t-shirt in a cinderblock room with large windows. The
trial court specifically found that it was unable to determine
-12-
from the pictures that they were taken in a jail. Therefore, we
fail to see how the admission of these pictures was unfairly
prejudicial.
Even to the extent that a juror could have deduced that the
pictures were taken in a jail, the trial court did not abuse its
discretion in determining that the unfair prejudice did not
substantially outweigh the probative value. It is common
knowledge that defendants charged with armed robbery are often
arrested and that when people are arrested they are taken to
jail. See id. at 614, 704 S.E.2d at 44-45 (noting that it is
common knowledge that arrestees are handcuffed and citing State
v. Smith, 278 Kan. 45, 49, 92 P.3d 1096, 1099–1100 (2004), which
held that the “trial court did not err in admitting photographs
of defendant in jail clothing because most jurors would hardly
be shocked to learn that a murder suspect was taken into custody
for some period of time, the only information communicated by
jail clothing.”). These photographs, at most, conveyed only the
limited information that defendant had been arrested, taken to
jail, and photographed. Therefore, we hold that the trial court
did not abuse its discretion in overruling defendant’s objection
based on Rule 403 and did not err in admitting the photographs
of defendant.
-13-
III. Motion to Dismiss
Defendant argues that the trial court erred in denying his
motion to dismiss because the State presented insufficient
evidence identifying him as the second robber. We conclude that
the trial court did not err in denying defendant’s motion to
dismiss.
A. Standard of Review
The standard of review for a motion to
dismiss is well known. A defendant’s motion
to dismiss should be denied if there is
substantial evidence of: (1) each essential
element of the offense charged, and (2) of
defendant’s being the perpetrator of the
charged offense. Substantial evidence is
relevant evidence that a reasonable mind
might accept as adequate to support a
conclusion. The Court must consider the
evidence in the light most favorable to the
State and the State is entitled to every
reasonable inference to be drawn from that
evidence. Contradictions and discrepancies
do not warrant dismissal of the case but are
for the jury to resolve.
State v. Teague, ___ N.C. App. ___, ___, 715 S.E.2d 919, 923
(2011) (citation omitted), app. dismissed and disc. rev. denied,
365 N.C. 547, 742 S.E.2d 177 (2012).
B. Analysis
Defendant contends that there was insufficient evidence
identifying him as the second robber. He cites a number of
articles and cases from other states discussing the weaknesses
-14-
of eyewitness identification, especially when the identification
is cross-racial and when a firearm is pointed at the eyewitness.
Such arguments have no bearing on the sufficiency of the
evidence when considering a motion to dismiss. If relevant at
all, these arguments would go only to the credibility of an
eyewitness identification. See generally State v. Knox, 78 N.C.
App. 493, 496-97, 337 S.E.2d 154, 157 (1985) (holding that the
exclusion of expert testimony on the reliability of eyewitnesses
was within the trial court’s discretion where the expert on voir
dire only testified generally); State v. Cotton, 99 N.C. App.
615, 621-22, 394 S.E.2d 456, 459-60 (1990) (finding no abuse of
discretion where the trial court concluded that general expert
testimony on the reliability of eyewitnesses was unduly
prejudicial to the State), aff’d, 329 N.C. 764, 407 S.E.2d 514(1991).
The State called two eyewitnesses who were present at the
time of the robbery—the store clerk, Mr. Khabiry, and the owner,
Mr. Andraos. Mr. Khabiry testified that he recognized the second
robber by his eyes and his voice as one of his regular customers
both from working at the convenience store and from his previous
business operating an ice cream truck in the area.1 Although he
1
Defendant, in his interview with a detective, confirmed that he
-15-
did not know the customer’s name, Mr. Khabiry had been calling
him “Big Money.” He also testified that he recognized defendant
as the second robber from his tattoo.2 Further, as previously
mentioned, although the surveillance video was not clear enough
to positively identify what the second robber’s tattoo said, it
was clear enough for a reasonable juror to conclude that the
robber’s tattoo was in approximately the same location, and
approximately the same size and shape, as defendant’s tattoo.
Mr. Khabiry was later asked to do two photo lineups, one of
which contained defendant’s photograph, and one of which
contained a photograph of the suspected first robber. He
identified defendant’s photograph as one of the robbers and as
the man he knew as “Big Money.” He indicated that he was 100%
certain. In court, he again identified defendant as the second
robber. The police officers who investigated the robbery
confirmed that Mr. Khabiry had told them that he knew the second
robber as “Big Money” and that he told them he recognized that
lived in that area and had been to the convenience store on a
number of occasions.
2
Mr. Khabiry testified that the tattoo was on the robber’s hand,
but when he was examining the photograph of the robber, marked
as State’s Exhibit 2, which clearly shows a tattoo on the
robber’s arm, he again described the tattoo as being on the
robber’s hand. Taken in the light most favorable to the State,
this inconsistency could mean that Mr. Khabiry simply misspoke
when he said the tattoo was on the second robber’s “hand.”
-16-
robber as a regular customer, but testified that he had not
mentioned anything about a tattoo. Mr. Khabiry was unable to
identify anyone as the first robber.
In July 2010, defendant drove up to the gas station and
walked into the convenience store. Mr. Khabiry testified that he
recognized defendant and told Mr. Andraos that he was the one
who had robbed them. Mr. Andraos then went outside, took down
the car’s license plate number and called the police. Mr.
Andraos did not recognize either of the robbers, but confirmed
that Mr. Khabiry had identified defendant as the second robber
when he returned to the store in July.
Defendant argues that this evidence is insufficient to
identify him as the second robber because the eyewitnesses had
not mentioned a tattoo when interviewed by the police and
because there was no corroborating physical evidence. First, the
argument about the witness’ failure to mention the tattoo simply
goes to the credibility of eyewitness’ testimony. “The
credibility of the witnesses and the weight to be given their
testimony is exclusively a matter for the jury.” State v.
Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988) (citation
omitted). Defendant’s second argument is simply unconvincing. He
was positively identified by Mr. Khabiry as the second robber.
-17-
Mr. Khabiry testified how he recognized defendant and identified
him both in court and through an out-of-court photographic
array. Additionally, it would be reasonable for a juror to
conclude that the photographs from the day of the robbery show
that the second perpetrator had a tattoo consistent with
defendant’s. Taken in the light most favorable to the State, the
above evidence is sufficient to convince a reasonable juror that
defendant was one of the perpetrators of the armed robbery. See
State v. Mobley, 86 N.C. App. 528, 532, 358 S.E.2d 689, 691
(1987) (holding that eyewitness identification of defendant as
the perpetrator is sufficient to defeat a motion to dismiss on
the basis of identity). Therefore, the trial court did not err
in denying defendant’s motion to dismiss. See Teague, ___ N.C.
App. at ___, 715 S.E.2d at 923.
IV. Ineffective Assistance of Counsel
Defendant next argues that he received ineffective
assistance of counsel, in violation of his Sixth Amendment
rights, when his trial counsel failed to cross-examine the two
eyewitnesses with prior inconsistent statements they had made to
police and the prosecutor.
As a general proposition, claims of
ineffective assistance of counsel should be
considered through motions for appropriate
relief and not on direct appeal. It is well
-18-
established that ineffective assistance of
counsel claims brought on direct review will
be decided on the merits when the cold
record reveals that no further investigation
is required, i.e., claims that may be
developed and argued without such ancillary
procedures as the appointment of
investigators or an evidentiary hearing.
Thus, when this Court reviews ineffective
assistance of counsel claims on direct
appeal and determines that they have been
brought prematurely, we dismiss those claims
without prejudice, allowing defendants to
bring them pursuant to a subsequent motion
for appropriate relief in the trial court.
State v. Hernandez, ___ N.C. App. ___, ___, 742 S.E.2d 825, 830
(2013) (citations, quotation marks, and brackets omitted).
Defendant asserts that there was no possible strategic
reason that his trial counsel would fail to cross-examine the
eyewitnesses on any prior inconsistent statements they made. The
State counters that there were a number of possible strategic
reasons that defendant’s trial counsel would elect not to cross-
examine the witnesses using those prior statements. As we cannot
resolve this dispute on the cold record before us, we dismiss
defendant’s ineffective assistance claim as premature without
prejudice to his ability to raise it through a motion for
appropriate relief.
V. Conclusion
-19-
For the foregoing reasons, we conclude that the trial court
did not err in admitting the photographs of defendant and his
tattoos taken at the jail and that the trial court did not err
in denying defendant’s motion to dismiss. We dismiss defendant’s
ineffective assistance of counsel claim without prejudice to his
ability to raise it by motion for appropriate relief.
NO ERROR; DISMISSED in part.
Judges HUNTER, JR., Robert N. and DILLON concur.