State v. Murray

746 S.E.2d 452, 229 N.C. App. 285, 2013 WL 4441650, 2013 N.C. App. LEXIS 882
CourtCourt of Appeals of North Carolina
DecidedAugust 20, 2013
DocketNo. COA12-1066
StatusPublished
Cited by5 cases

This text of 746 S.E.2d 452 (State v. Murray) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Murray, 746 S.E.2d 452, 229 N.C. App. 285, 2013 WL 4441650, 2013 N.C. App. LEXIS 882 (N.C. Ct. App. 2013).

Opinion

DILLON, Judge.

Donnell Murray (Defendant) appeals from judgments entered upon convictions of possession with intent to sell and deliver cocaine and sale of cocaine in violation of N.C. Gen. Stat. § 90-95 (2011), challenging the authentication and relevancy of photographs admitted into evidence, the trial court’s failure to exercise its discretion in responding to a jury request, and the alleged ineffective assistance of Defendant’s trial counsel.1 We conclude that Defendant is entitled to a new trial.

I. Background

The evidence of record tends to show the following: On 18 January 2011, Phillip West, a police informant, was wired with a camera by officers of the Shelby Police Department and provided a vehicle and two $20 bills. Detective James Burgess and Detective Chad Burnette provided Mr. West with two $20 bills and instructed him to go to a particular residence and attempt to buy controlled substances from a man named Donnell Murray.

Mr. West went to the residence and knocked on the door. A man opened the door, and Mr. West asked if “it was Donnell,” to which the man replied, “Yes.” Mr. West said he needed “a forty,” which meant $40 worth of crack cocaine. The man handed Mr. West two rocks that appeared to be crack cocaine in exchange for the two $20 bills. The substances were subsequently determined to have a total weight of .1 grams and to contain cocaine base. On 13 June 2011, Defendant was indicted on charges of possession with intent to sell and deliver cocaine and sale of cocaine.

Defendant denied being the person who sold Mr. West the drugs, claiming that it was probably one of his two sons, named Donnell, Jr., [287]*287and Aikeem. Detective Mark Boris of the Shelby Police Department prepared three photo lineups which were shown to Mr. West. The third lineup contained a picture of Defendant. Purportedly, each of the first two lineups contained a picture of either Donnell, Jr., or Aikeem. Mr. West identified an individual from each lineup, including Defendant in the third lineup, as people from whom he had purchased drugs in the past, but he did not identify the photos he chose from the first two lineups as Defendant’s sons by name or familial association with Defendant.

Defendant’s case came on for trial at the 12 March 2012 session of Cleveland County Superior Court. At trial, the three photos from the lineups were introduced into evidence as State’s Exhibits 7, 8 and 9. The video of the drug transaction was also admitted into evidence, but only a portion of the face of the man who sold Mr. West the cocaine was visible on the video. During deliberations the jury requested to review the photographs, the videotape and the testimonial evidence. The trial court allowed the jury to review the photographs and the videotape. Ultimately, the jury returned guilty verdicts on both charges. The trial court entered judgments consistent with the jury’s verdicts, sentencing Defendant to consecutive terms of 15 to 18 months incarceration on the possession with intent to sell and deliver conviction, and 21 to 26 months incarceration on the sale of cocaine conviction. From these judgments, Defendant appeals.

II. Analysis

Defendant argues on appeal that the trial court erred by admitting, as substantive evidence, the State’s Exhibits 7 and 8, which were photographs picked out by Mr. West from the first two lineups. Defendant specifically challenges the admission of the photographs as substantive evidence on two grounds: (1) Defendant contends the photographs were not properly authenticated in violation of N.C. Gen. Stat. § 8C-1, Rule 901 (2011); and (2) Defendant contends the photographs were irrelevant and prejudicial-in violation of N.C. Gen. Stat. § 8C-1, Rules 401 and 403 (2011). We address each argument in turn.

“We [generally] review the trial court’s decision to admit evidence for abuse of discretion, looking to whether the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009), cert. denied, _ U.S. _, 178 L. Ed. 2d 90 (2010). However, with regard to a determination on the relevancy of evidence, “a trial court’s rulings ... technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to [288]*288Rule 403[;] [nonetheless] [,] such rulings are given great deference on appeal.” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).

A. Authentication

N.C. Gen. Stat. § 8-97 provides that “[a]ny party may introduce a photograph ... as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements.” Id. Rule 901 of our Rules of Evidence requires authentication or identification “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 (2011). “In order for a photograph to be introduced, it must first be properly authenticated by a witness with knowledge that the evidence is in fact what it purports to be.” State v. Lee, 335 N.C. 244, 270, 439 S.E.2d 547, 560, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994) (citation omitted).

In this case, the testimony concerning authentication of the photographs consisted of testimony from Mr. West and from Detective Boris. Mr. West testified that he' knew the individuals depicted in Exhibits 7 and 8 to be people from whom he had bought drugs in the past, though not on 18 January 2011, and that he had picked each of them out of a photo lineup the night before. Mr. West did not further testify as to the identities of the men depicted in Exhibits 7 and 8. Mr. West, however, testified that the individual depicted in Exhibit 9 was the person from whom he bought drugs on 18 January 2011 and that the person was Defendant. Over Defendant’s objection, all three photos were admitted as substantive evidence.

We believe this testimony was sufficient to authenticate Exhibits 7 and 8 as photographs of people from whom Mr. West purchased drugs in the past. See Lee, 335 N.C. at 270, 439 S.E.2d at 560 (stating that, “[i]n order for a photograph to be introduced, it must first be properly authenticated by a witness with knowledge that the evidence is in fact what it purports to be”). We further believe this testimony was sufficient to authenticate Exhibit 9 as Defendant, such that it was properly admitted. See id.

The State, however, attempted to further authenticate Exhibits 7 and 8 as photos depicting Defendant’s sons through the testimony of Detective Boris. Detective Boris’ testimony was somewhat confusing on the issue. On direct examination, he testified that he put together three lineups with photos of Defendant and his two sons; that Exhibit 7 was a picture of Defendant’s son Aikeem; that he could not remember the name of the individual depicted in Exhibit 8; and that Exhibit 9 was a [289]*289picture of Defendant. However, on cross-examination, he gave the following testimony:

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Bluebook (online)
746 S.E.2d 452, 229 N.C. App. 285, 2013 WL 4441650, 2013 N.C. App. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murray-ncctapp-2013.