State v. Pless

822 S.E.2d 725, 263 N.C. App. 341
Court of Appeals of North Carolina·Decided December 18, 2018·No. COA18-21·Published·Cited by 2 cases

Opinion

STROUD, Judge.

*342 Defendant appeals from convictions of several drug-related offenses. The trial court did not err by denying defendant's motion to suppress evidence regarding the pretrial identification using his DMV photograph, and the trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst who did her own independent analysis of machine-generated data. We therefore affirm the trial court's denial of defendant's motion to suppress and find no error as to the admission of evidence.

I. Background

Detective Jessica Jurney of the Iredell County Sheriff's Office conducted an undercover narcotics purchase with Sergeant Chris Walker of the Mooresville Police Department in September of 2012. Detective Jurney was to meet a man known as "Junior" at a McDonald's restaurant to purchase the drugs. "Junior" arrived at the McDonald's parking lot in a gold Lexus. Detective Jurney interacted with him for three or four minutes and successfully purchased what would later be identified as oxycodone and heroin from defendant. A surveillance team from the Mooresville Police Department including Sgt. Walker witnessed the transaction. The identity of defendant was unknown at the time of the drug deal, but Sgt. Walker obtained defendant's name from a confidential informant. Several days after the transaction, Sgt. Walker obtained a photograph of defendant from the Department of Motor Vehicles ("DMV") and showed it to Detective Jurney. Sgt. Walker also testified that he had seen defendant on another occasion driving the same gold Lexus with the same license plate number as the one he saw during the drug transaction.

Defendant was indicted on numerous drug related charges in December of 2012. Defendant pled guilty to these charges, but his plea was overturned by this Court in 2016 based upon a sentencing error. On remand, defendant elected to have a new trial, and Detective Jurney and Sgt. Walker identified defendant over objection in court as the individual who sold the drugs to Jurney. Erica Lam, the forensic chemist who tested the substances purchased from defendant, was not available to testify during the trial since *727 she had moved out of state. 1 The State *343 presented Lam's supervisor, Lori Knops, who independently reviewed Lam's findings to testify instead. The jury found defendant guilty of possession with intent to manufacture, sell, or deliver heroin, sale of heroin, trafficking in opium or heroin by possession, trafficking in opium or heroin by sale, possession with intent to sell or deliver oxycodone, and sale of oxycodone. Judgment was entered against defendant on all charges which were consolidated into a sentence of 70 months minimum to 84 months maximum. Defendant gave notice of appeal in open court.

II. Motion to Suppress

"[Defendant] contends that the in-court identification of him by Ms. Jurney and by Officer Walker should have been suppressed because the identifications were unreliable; tainted by the impermissibly suggestive Department of Motor Vehicles photograph."

Standard of Review

Our review of a trial court's denial of a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke , 306 N.C. 132 , 134, 291 S.E.2d 618 , 619 (1982) (citations omitted). "The trial court's conclusions of law, however, are fully reviewable on appeal." State v. Hughes , 353 N.C. 200 , 208, 539 S.E.2d 625 , 631 (2000).

Analysis

Defendant does not challenge any of the trial court's findings of fact in the order but argues, "[a]lthough the court's findings of fact 17 and 18 discuss the DMV photo, the trial court failed to address whether or not this procedure was impermissibly suggestive and, if it was, whether or not it was so impermissibly suggestive that it created a very substantial likelihood of irreparable misidentification." We review the trial court's conclusions of law de novo . Our Supreme Court has described a two-step process for this issue:

This Court employs a two-step process in evaluating such claims of denial of due process. First we must determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification. If this question is answered in the negative, we need proceed no further. If it is answered affirmatively, the second inquiry is whether, under all the circumstances, the suggestive procedures *344 employed gave rise to a substantial likelihood of irreparable misidentification.

State v. Hannah , 312 N.C. 286 , 290, 322 S.E.2d 148 , 151 (1984) (citations omitted). Relevant factors for determining whether the identification procedures were impermissibly suggestive include: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification." State v. Johnson , 161 N.C. App. 68 , 73, 587 S.E.2d 445 , 448 (2003) (citation omitted).

Some of the relevant findings of fact are:

4. Investigator Jurney was provided with information from the informant and then observed a black male with a stocky to heavy set build and a bald head walk across the parking lot of the McDonald's parking lot and get into a gold in color Lexus motor vehicle. The black male was alone in the vehicle.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Pless, 822 S.E.2d 725, 263 N.C. App. 341 (N.C. Ct. App. 2018).

822 S.E.2d 725 (State v. Pless) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Pless v. Hooks
W.D. North Carolina, 2021
State v. Romano
Court of Appeals of North Carolina, 2019