State v. Miller

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-453

Filed 20 June 2023

Mecklenburg County, Nos. 18CRS217142-43

STATE OF NORTH CAROLINA

v.

SANTARIO KENDELL MILLER

Appeal by Defendant from judgments entered 9 November 2021 by Judge

Gregory R. Hayes in Mecklenburg County Superior Court. Heard in the Court of

Appeals 10 January 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Brian D. Rabinovitz, for the State.

Mecklenburg County Public Defender Kevin P. Tully, by Assistant Public Defender Julie Ramseur Lewis, for Defendant.

COLLINS, Judge.

Defendant appeals from judgments entered upon jury verdicts of guilty of first

degree murder on the basis of felony murder and possession of a firearm by a felon.

Defendant argues that the trial court plainly erred by admitting certain portions of a

redacted recording of an interview between law enforcement and Defendant and

erred in calculating Defendant’s prior record level. Even assuming for the sake of

argument that the challenged portions of the interview were erroneously admitted,

their admission did not rise to the level of plain error. Furthermore, the trial court STATE V. MILLER

Opinion of the Court

did not err in its prior record level calculation.

I. Factual Background and Procedural History

Defendant was indicted on 9 July 2018 for first degree murder and possession

of a firearm by a felon. He was tried beginning 1 November 2021. At trial, the State

presented eight witnesses and 39 exhibits, including video surveillance footage of the

area and a redacted recording of the interview between law enforcement and

Defendant. Defendant did not present any evidence. The State’s evidence tended to

show the following:

During the late night and early morning of 20-21 May 2018, Defendant,

Shalamar Venable, Marquis Hines, Dean Hough, and several other individuals were

gathered at a bus stop in Charlotte. Hines and Hough testified that Defendant left

the bus stop for one to two hours before returning with another man, whom Hough

identified as “Damien.” Upon returning, Defendant confronted Venable regarding

drugs and money that Defendant believed Venable owed him. When Venable denied

that she owed Defendant money, Defendant pulled out a revolver.

Hines testified that, after Defendant pulled out the revolver, Defendant

punched Venable and fired a shot past her. Venable then stepped toward Defendant,

and Defendant shot her two to three times. Hines and another man tried to approach,

but Defendant pointed the revolver at them, and they retreated. As Hines was

retreating, he turned back and saw Defendant going through Venable’s pockets.

Upon reaching the nearby woods, Hines called 911.

-2- STATE V. MILLER

Hough testified that, after Defendant pulled out the revolver, Hough began

walking away from the scene. When Hough was a short distance from the scene, he

heard four or five gunshots and looked back to see Defendant and Damien leaving the

scene. Hough returned to the scene to find Venable on the ground and called 911.

Venable was taken to the hospital where she was pronounced dead. The

medical examiner determined that she had suffered four gunshot wounds, and that

two of them were responsible for her death.

Police interviewed Hines and Hough separately after the shooting and showed

them photographic lineups of six individuals, one of whom was Defendant. When

Hines was shown the photo lineup, he identified two individuals as possibly the

shooter, one of whom was Defendant. Hines said that his confidence that Defendant

was the shooter was 7 out of 10, and that his confidence that the other individual was

the shooter was 7 or 8 out of 10. At trial, Hines identified Defendant as the shooter.

When Hough initially viewed the photo lineup, he did not pick anyone out.

Upon reviewing the lineup a second time, he identified Defendant as possibly the

shooter, noting that the picture of Defendant “looks the same. From his eyes, on

down, his whole face.” At trial, Hough identified Defendant as the shooter.

Defendant was arrested on 29 June 2018 and interviewed by two detectives.

The recording of the interview was redacted upon agreement between the State and

Defendant, and the redacted version of the interview was published to the jury during

Defendant’s trial. During the interview, Defendant initially denied any knowledge

-3- STATE V. MILLER

of, or involvement in, the events surrounding Venable’s death. Detectives confronted

Defendant with purported statements from eyewitnesses identifying Defendant as

the shooter and showed Defendant surveillance video depicting someone near the bus

stop when Venable was shot wearing clothes like those Defendant had been wearing.

Upon viewing the surveillance footage, Defendant remarked that the figure in the

video “looks just like me, but I don’t know.”

Defendant then admitted to being in the area on the night of the shooting with

another man whom Defendant identified as a “dope fiend.” Defendant stated that he

had confronted Venable regarding drugs, and that the dope fiend began to argue with

Venable. Defendant said he did not want to get involved so he left the area.

Defendant heard gunshots but continued about his business because it did not involve

him. Defendant continued to deny that he had shot Venable for the duration of the

interview.

On 9 November 2021, the jury returned guilty verdicts for first degree felony

murder1 and possession of a firearm by a felon. Defendant was sentenced to life

imprisonment without the possibility of parole for his first degree murder conviction

and 17 to 30 months’ imprisonment to begin at the expiration of his life sentence for

his possession of a firearm by a felon conviction. Defendant gave oral notice of appeal

in open court.

1The jury did not find Defendant guilty of first degree murder on the basis of malice, premeditation, and deliberation.

-4- STATE V. MILLER

II. Discussion

A. Defendant’s Recorded Interview

Defendant first argues that the trial court plainly erred by admitting certain

portions of the recorded interview between law enforcement and Defendant because

the challenged portions of the recording contained hearsay and inadmissible

character evidence, were unfairly prejudicial, regarded Defendant’s pre-arrest

silence, and/or shifted the burden of proving his innocence.

1. Preservation and Standard of Review

“In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion[.]” N.C. R. App. P.

10(a)(1). “[A]n issue that was not preserved by objection . . . nevertheless may be

made the basis of an issue presented on appeal when the judicial action questioned

is specifically and distinctly contended to amount to plain error.” N.C. R. App. P.

10(a)(4).

Defendant acknowledges that he did not object to the admission of the

statements that he now argues were admitted in error. However, Defendant

specifically and distinctly argues that the admission of these statements amounts to

plain error. Thus, the evidentiary issues are reviewable for plain error. See id.

The State argues that Defendant invited any error and waived appellate

review because, “(1) Defendant, through counsel, actively cooperated with the State

to determine the appropriate redactions to his videotaped interview; (2) the

-5- STATE V. MILLER

redactions to the video were for the benefit of Defendant; and (3) Defendant agreed

to the admission of the redacted video and its publication to the jury.”

“[U]nder the doctrine of invited error, a party cannot complain of a charge

given at his request, or which is in substance the same as one asked by him[.]”

Sumner v. Sumner, 227 N.C. 610, 613, 44 S.E.2d 40, 41 (1947) (citations omitted); see

also State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (“Ordinarily one

who causes . . . the court to commit error is not in a position to repudiate his action

or assign it as ground for a new trial.”). The invited error doctrine is codified by N.C.

Gen. Stat. § 15A-1443(c), which states, “A defendant is not prejudiced by the granting

of relief which he has sought or by error resulting from his own conduct.” N.C. Gen.

Stat. § 15A-1443(c) (2021). “Thus, a defendant who invites error has waived his right

to all appellate review concerning the invited error, including plain error review.”

State v. Crane, 269 N.C. App. 341, 343, 837 S.E.2d 607, 608 (2020) (citation omitted).

Our courts have consistently applied the invited error doctrine when a

defendant’s affirmative actions directly precipitate error. See, e.g., id. at 345, 837

S.E.2d at 609-10 (applying invited error doctrine where defense counsel elicited the

testimony at issue on cross-examination); State v. Roseboro, 344 N.C. 364, 373, 474

S.E.2d 314, 318 (1996) (applying invited error doctrine where “defendant

unequivocally agreed” to limit the purpose of certain testimony); State v. Barber, 147

N.C. App. 69, 74, 554 S.E.2d 413, 416, (2001) (applying invited error doctrine where

defendant requested evidence be admitted “despite explicit warnings by the trial

-6- STATE V. MILLER

court that defendant’s statement had not been properly redacted”).

On the other hand, our courts have declined to apply the invited error doctrine

where such specific and affirmative actions are absent. See, e.g., State v. Chavez, 270

N.C. App. 748, 757, 842 S.E.2d 128, 135 (2020) (holding invited error doctrine did not

apply where defendant “did not request the [erroneous] instruction, but merely

consented to it”), rev’d on other grounds, 378 N.C. 265, 861 S.E.2d 469 (2021); State

v. Harding, 258 N.C. App. 306, 311, 813 S.E.2d 254, 259 (2018) (holding invited error

doctrine did not apply where defendant “failed to object, actively participated in

crafting [a portion of] the challenged instruction, and affirmed it was ‘fine’”).

Here, the record reflects that Defendant agreed with the State on certain

portions that were redacted from the interview, and that Defendant did not object to

the redacted interview being published to the jury. The record does not reflect that

Defendant took any affirmative action to introduce the redacted interview.

Accordingly, the invited error doctrine does not apply.

2. Analysis

Even assuming for the sake of argument that the challenged statements were

erroneously admitted, Defendant has failed to establish that the error constituted

plain error.

“For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

-7- STATE V. MILLER

(1983)). “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.” Id. (quotation marks and

citations omitted).

Here, absent the complained of portions of the redacted interview, the jury

heard from two eyewitnesses who picked Defendant out of a photo lineup as the likely

shooter and identified Defendant as the shooter in court. Both eyewitnesses gave

testimony that Defendant had previously been at the bus stop with Venable; that

Defendant left for one to two hours and returned with another man; and that, upon

returning, Defendant argued with and subsequently shot Venable. The jury also

heard Defendant’s eventual version of events that corroborated both eyewitnesses’

testimonies in every respect except as to who shot Venable. Additionally, the jury

saw video surveillance footage depicting someone near the bus stop when Venable

was shot wearing clothes like those Defendant had been wearing. The jury also saw

Defendant being shown that footage and stating, “it looks just like me,” shortly before

changing his story to the version of events that corroborated both eyewitnesses’

testimonies.

In light of this substantial evidence of Defendant’s guilt, Defendant cannot

show that, “absent the error, the jury probably would have returned a different

verdict.” Id. at 519, 723 S.E.2d at 335. Accordingly, the admission of the challenged

statements, if error, did not amount to plain error.

-8- STATE V. MILLER

B. Prior Record Level Calculation

Defendant next argues that the trial court erred in calculating his prior record

level because the State failed to prove Defendant’s prior felonies.

The determination of a defendant’s prior record level is a conclusion of law,

which is reviewed de novo. State v. Black, 276 N.C. App. 15, 17, 854 S.E.2d 448, 451

(2021) (citation omitted).

The State must prove each of a felony offender’s prior convictions by a

preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2021). To satisfy

its burden, the State must prove both “that a prior conviction exists and that the

offender before the court is the same person as the offender named in the prior

conviction.” Id.

The State may prove a defendant’s prior convictions by submitting “[a] copy of

records maintained by the Department of Public Safety[.]” Id. § 15A-1340.14(f)(3).

Additionally, a record from the Department of Public Safety “bearing the same name

as that by which the offender is charged, is prima facie evidence that the offender

named is the same person as the offender before the court, and that the facts set out

in the record are true.” Id. § 15A-1340.14(f).

Here, the trial court checked the box on Defendant’s Prior Record Level

Worksheet indicating that, in making its determination about Defendant’s prior

record level, “the Court has relied upon the State’s evidence of the defendant’s prior

convictions from a computer printout of DCI-CCH.” The DCI-CCH is a computerized

-9- STATE V. MILLER

criminal record maintained by the North Carolina State Bureau of Investigation

(“NCSBI”). See 14B N.C. Admin. Code 18A.0102(6) (2021) (defining CCH as

“computerized criminal history record information”); id. 18A.0102(19) (2021)

(defining DCI as the “Division of Criminal Information” within the NCSBI). The

NCSBI is administratively located within the Department of Public Safety. N.C. Gen.

Stat. § 143B-915 (2021). Thus, a DCI-CCH is a record maintained by the Department

of Public Safety and may be used to prove Defendant’s prior convictions pursuant to

N.C. Gen. Stat. § 15A-1340.14(f).

By submitting Defendant’s DCI-CCH to the trial court, as indicated by the

court on Defendant’s Prior Record Level Worksheet, the State satisfied its burden to

prove Defendant’s prior convictions by a preponderance of the evidence. Accordingly,

the trial court did not erroneously calculate Defendant’s prior record level.

III. Conclusion

Because Defendant has failed to demonstrate plain error, and because the

State met its burden to prove Defendant’s prior convictions, we conclude that

Defendant received a fair trial free from prejudicial error.

NO PLAIN ERROR AND NO ERROR.

Chief Judge STROUD and Judge ZACHARY concur.

- 10 -