State v. Morrison

• Court: Court of Appeals of North Carolina
• Decided: January 20, 2015
• Docket: 14-247
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-247 NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2015

STATE OF NORTH CAROLINA

v. Mecklenburg County Nos. 10 CRS 253344-45; 253347- 48 QUADARRIAN ANTONIO MORRISON

Appeal by defendant from judgments entered 6 June 2013 by

Judge Reuben F. Young in Mecklenburg County Superior Court.

Heard in the Court of Appeals 27 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General Anne Goco Kirby, for the State.

Office of the Public Defender, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant.

CALABRIA, Judge.

Quadarrian Antonio Morrison (“defendant”) appeals from

judgments entered upon jury verdicts finding him guilty of

assault with a deadly weapon with the intent to kill inflicting

serious injury (“AWDWIKISI”), robbery with a dangerous weapon -2- (“RWDW”), attempted RWDW, and conspiracy to commit RWDW. We

find no error.

I. Background

On 4 November 2010, Darius McCrae (“McCrae”) and Timothy

Graham (“Graham”) arranged a drug transaction with Graham’s

acquaintance Shawn, who had previously purchased drugs from

Graham on other occasions. Shawn wanted to buy $40 worth of

marijuana from Graham and agreed to meet McCrae and Graham at a

local Harris Teeter grocery store. McCrae drove Graham to the

meeting location in his parents’ blue Chevrolet HHR (“the HHR”).

After arriving at the Harris Teeter, Shawn called Graham and

McCrae and told them to meet him across the street in the

parking lot of a closed restaurant.

At approximately 10:30 p.m., Graham and McCrae parked in

the lot across the street and waited for Shawn to arrive. A few

seconds later, the driver of a gold Honda parked about three

feet from McCrae and Graham’s vehicle. Shawn exited the Honda

and got into McCrae’s vehicle. Shawn claimed that he wanted to

show the marijuana to his friend, later identified as defendant,

who had remained in the Honda. Subsequently, Shawn motioned for

defendant to come over to the HHR. Defendant entered the HHR’s

backseat and sat diagonally across from Graham. Defendant and -3- Shawn sat in the backseat of the HHR for approximately ten to

fifteen minutes and acted as if they intended to purchase the

marijuana. During that time, Graham turned around to look at

defendant two or three times. Defendant and Shawn then both

pulled out black automatic handguns and pointed them at McCrae

and Graham. After sitting in silence for two or three minutes,

Graham and McCrae jumped from the HHR and began to run. Several

shots were fired, one of which hit Graham in the back. Graham

collapsed and was transported to the hospital to be treated for

his injuries. Defendant and Shawn fled in the HHR.

At approximately 11:55 p.m., Officer Jason Kerl (“Officer

Kerl”) of the Charlotte-Mecklenburg Police Department (“CMPD”)

heard a “be on the lookout” broadcast on his police radio for a

blue Chevrolet HHR that had been involved in an armed robbery.

Within minutes of hearing the alert, Officer Kerl noticed the

HHR at a gas station, surrounded by several males. After

confirming that the vehicle’s license plate number matched the

stolen HHR, Officer Kerl called for additional assistance.

Officer Kerl noticed one of the individuals carried a black

backpack, and he observed the individual with the backpack enter

the convenience store. -4- CMPD Lieutenant Andrew Harris (“Lt. Harris”), who responded

to Officer Kerl’s request for assistance, also witnessed the man

with the backpack, who he later identified as defendant, enter

the store. Defendant paused near the back corner of the store,

and then moved towards the middle of the store, where he

appeared to bend down as if to retrieve or place something onto

a shelf. After securing three individuals outside of the store,

Lt. Harris sent another CMPD officer inside the store to detain

defendant. Officer Kerl also went into the store and discovered

a black backpack containing two handguns and a set of Honda keys

in the same locations that Lt. Harris had observed defendant

stop and pause. Upon searching the rest of the store, Officer

Kerl found keys to the HHR and a small bag of marijuana on one

of the store shelves.

McCrae was brought to the gas station and a showup was

conducted with the four individuals who had been detained there.

After the showup concluded, only defendant was taken into

custody. Defendant was subsequently charged with AWDWIKISI,

RWDW, attempted RWDW, and conspiracy to commit RWDW.

On 8 November 2010, CMPD Officer Ryan Whetzel (“Officer

Whetzel”) visited Graham at the hospital, where he was

recovering from his gunshot wound. Officer Whetzel intended to -5- interview Graham and show him a photographic lineup to see if he

could identify a suspect. However, Graham never viewed the

lineup because he immediately informed Officer Whetzel that he

had seen defendant’s picture on a local news broadcast, and he

identified defendant as the person who had robbed and shot him.

Prior to trial, defendant filed a motion to suppress

Graham’s in-court testimony identifying defendant as the man who

robbed him on the basis that Graham’s identification would be

inherently incredible and that it was tainted by an improper

pretrial identification. After a voir dire hearing, the trial

court concluded that Graham had made an independent

identification of defendant prior to viewing defendant’s photo

on the news broadcast and denied defendant’s motion to suppress.

Beginning 3 June 2013, defendant was tried by a jury in

Mecklenburg County Superior Court. On 6 June 2013, the jury

returned verdicts finding defendant guilty of all charges. The

trial court sentenced defendant to a minimum of 83 months to a

maximum of 109 months for the AWDWIKISI conviction, a minimum of

73 months to a maximum of 97 months for the RWDW conviction, and

a minimum of 73 months to a maximum of 97 months for the

attempted RWDW and conspiracy convictions. The sentences were -6- to be served consecutively in the North Carolina Division of

Adult Correction. Defendant appeals.

II. In-Court Identification

Defendant argues that the trial court erred by denying his

motion to suppress Graham’s in-court identification of

defendant. We disagree.

Initially, we note that the trial court did not enter a

written order denying defendant’s motion to suppress, but merely

rendered an oral decision in open court. However, this Court

has permitted this procedure so long as “(1) the trial court

provides its rationale from the bench, and (2) there are no

material conflicts in the evidence at the suppression hearing.”

State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395

(2009). Defendant does not dispute that the trial court met

both of these criteria. Instead, defendant contends that the

trial court’s conclusion of law that Graham’s identification was

not inherently incredible was not supported by the undisputed

evidence presented at the suppression hearing. Defendant relies

upon State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), in

support of this argument.

In Miller, the defendant was identified by a sole

eyewitness who only had the opportunity to observe the -7- perpetrator running at night at a distance of 286 feet away. Id.

at 732, 154 S.E.2d at 905. Our Supreme Court explained that,

even though the question of whether a witness’s identification

of a defendant as the perpetrator of a crime has any probative

value is generally one for the jury, that general rule does not

apply “where the only evidence identifying the defendant as the

perpetrator of the offense is inherently incredible because of

undisputed facts, clearly established by the State’s evidence,

as to the physical conditions under which the alleged

observation occurred.” Id. at 731, 154 S.E.2d at 905. However,

the Court further explained that “[w]here there is a reasonable

possibility of observation sufficient to permit subsequent

identification, the credibility of the witness’ identification

of the defendant is for the jury . . . .” Id. at 732, 154 S.E.2d

at 906.

In the instant case, Graham testified that he first

observed defendant from three feet away because of the

visibility from the interior light in the gold Honda that was

turned on while Shawn exited the vehicle. Graham also testified

that he observed defendant two or three additional times as he

sat diagonally from defendant in the HHR. Defendant sat in the

car with Graham for approximately ten to fifteen minutes, and -8- the interior light of the car remained on during that time so

that the men could see in order to complete the drug

transaction. Given defendant’s close proximity to Graham and

the amount of time he had to observe defendant, there was

sufficient evidence to support the trial court’s conclusion that

Graham had a reasonable opportunity to identify his attacker,

such that the reliability of the identification was a question

for the jury. Consequently, the trial court properly denied

defendant’s motion to suppress. This argument is overruled.

III. Due Process

Defendant argues that the trial court committed plain error

by permitting evidence that Graham identified defendant as the

perpetrator after witnessing defendant’s photograph on a local

news broadcast. We disagree.

As an initial matter, we note that defendant did not object

to evidence of Graham’s out-of-court identification at trial.

Consequently, we review this issue 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, -9- the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal quotations and citations omitted).

“Identification evidence must be excluded as violating a

defendant’s right to due process where the facts reveal a

pretrial identification procedure so impermissibly suggestive

that there is a very substantial likelihood of irreparable

misidentification.” State v. Harris, 308 N.C. 159, 162, 301

S.E.2d 91, 94 (1983). However, “‘suggestive pretrial

identification procedures that do not result from state action

do not violate defendant’s due process rights.’ [State v.]

Fisher, 321 N.C. [19,] 24, 361 S.E.2d [551,] 554 [(1987)].

Furthermore, our Courts have consistently held that evidence

obtained by the actions of private citizens with no State

involvement do not implicate a defendant’s constitutional

rights.” State v. Jones, 216 N.C. App. 225, 234-35, 715 S.E.2d

896, 903 (2011).

In State v. Williams, the defendant argued that the trial

court erred by allowing evidence of a “showup” which occurred

when a friend called a witness so that she could view the

defendant being arrested. 201 N.C. App. 103, 107, 685 S.E.2d -10- 534, 538 (2009). The defendant contended “that the use of

improper identification procedures violate[d] his rights under

the United States and North Carolina Constitution[s].” Id. at

108, 685 S.E.2d at 538. However, the witness specifically

testified that no one from the police department had informed

her about the arrest. Id. at 107, 685 S.E.2d at 538. This

Court held that since the witness’s friend “was not acting as an

agent of the government and instead was acting as a private

citizen,” the “showup” did not implicate defendant’s

constitutional rights. Id. at 108, 685 S.E.2d at 538.

In the instant case, defendant contends that the display of

his mugshot on a local television station essentially amounted

to a “‘media’ showup” which rendered Graham’s pretrial

identification unreliable. However, as in Williams, there is no

dispute that the television station’s posting of the mugshot was

not the result of any state action. Consequently, the display

of defendant’s mugshot by a private actor did not “violate

defendant’s due process rights.” Jones, 216 N.C. App. at 234,

715 S.E.2d at 903. This argument is overruled.

Defendant additionally argues that the pretrial

identification tainted Graham’s subsequent in-court

identification such that it should have been suppressed. -11- However, since we have already determined that Graham had a

sufficient opportunity to identify defendant and that the

viewing of defendant’s mugshot on the news broadcast did not

implicate defendant’s due process rights, the in-court

identification was properly admitted. See State v. Lawson, 159

N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003).

IV. Hearsay

by allowing evidence that implied that McCrae identified

defendant during a showup conducted shortly after the robbery.

Specifically, defendant contends that the testimony regarding

the identification was inadmissible hearsay. We disagree.

Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801 (2013). A “statement” is a written or

oral assertion or nonverbal conduct of a person intended by the

declarant as an assertion. N.C. Gen. Stat. § 8C-1, Rule 801(a).

In the instant case, Lt. Harris testified that he brought

one of the victims to the gas station to conduct a showup with

the four men who had been detained. Lt. Harris further testified

that “the person [he] brought to the scene ID[ed]” one of the -12- four as a perpetrator. At the conclusion of the showup, only

defendant was arrested. Officer Whetzel also testified that he

took McCrae to the gas station and defendant was subsequently

arrested. Defendant contends that the only logical inference

that could be drawn from this testimony was that McCrae stated

that defendant was the perpetrator of the robbery, a statement

which would constitute inadmissible hearsay. Defendant notes

that during closing arguments, the State specifically argued

that McCrae identified defendant based upon this testimony.

However, defendant only objected to a portion of the

challenged testimony at trial. As a result, defendant failed to

preserve this issue for appellate review. See State v. Hunt,

325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (When “evidence

is admitted over objection, but the same or similar evidence has

been previously admitted or is later admitted without objection,

the benefit of the objection is lost.”). Consequently, even

assuming, arguendo, that the officers’ testimony was

inadmissible hearsay, defendant is only entitled to relief if he

can demonstrate plain error.

We have already held that Graham’s identifications of

defendant, both in court and out of court, were properly

admitted. In addition, defendant’s DNA was determined to be a -13- match to the partial DNA profile recovered from the gun that was

used to shoot Graham, and officers witnessed defendant with a

backpack that was later found to contain the handgun and the

keys to the Honda. Officers also recovered the keys to the HHR

and marijuana in the other areas of the store where defendant

had recently been. In light of this evidence, it cannot be said

that the testimony implying McCrae’s identification of defendant

“had a probable impact on the jury’s finding that the defendant

was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334

(internal quotations and citation omitted). Thus, defendant has

failed to meet his burden to establish plain error. This

argument is overruled.

V. Conclusion

The evidence at the suppression hearing was sufficient to

support the trial court’s conclusion that Graham had a

reasonable opportunity to identify defendant. The broadcast of

defendant’s mugshot by a local television station did not

implicate defendant’s constitutional rights. Defendant failed

to establish that alleged hearsay evidence regarding McCrae’s

identification of defendant constituted plain error. Defendant

received a fair trial, free from prejudicial error.

No error. -14- Judges ELMORE and STEPHENS concur.

Report per Rule 30(e).