Opinion
No. COA10-827
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgments entered 17 December 2009 by Judge James E. Hardin in Durham County Superior Court. Heard in the Court of Appeals 30 November 2010.
Attorney General Roy Cooper, by Deputy Director Caroline Farmer, for the State. Economos Law Firm, PLLC, by Larry C. Economos, for Defendant.
Durham County Nos. 09 CRS 4310, 09 CRS 40095.
Defendant was indicted by a Durham County Grand Jury on one count of first degree burglary, one count of felonious identity theft, and on attaining habitual felon status. Defendant was tried before a Durham County jury in December 2009 and convicted of first degree burglary and felonious identity theft. Defendant then pled guilty to attaining habitual felon status. From the judgments entered upon these convictions, Defendant now appeals. For the reasons stated below, we conclude there is no error.
Trial in this matter commenced on 14 December 2009. On the evening of 3 January 2009, Angela Morales and her boyfriend, Jorge Romero, were asleep in her apartment at 512 North Hardee Street in Durham. Ms. Morales awoke to hear an intrusion into her apartment through the living room window. She got out of bed, switched on a light, and saw a man wearing a red stocking cap, blue jeans, and a blue hooded sweater standing inside her home. Ms. Morales woke up Mr. Romero, and he came out and saw the man as well. Ms. Morales then called 911 as the perpetrator fled, and Officer Justin Brooks from the Durham Police Department arrived at the scene. Officer Brooks took the victims' statements and gave their description of the suspect across the police radio.
Officer James Barr, Jr. of the Durham Police Department was in the area and responded over the radio that he had found an individual matching Officer Brooks' description of the suspect and had detained him. Officer Brooks transported the victims to the location where the man was being detained, and Ms. Morales and Mr. Romero positively identified Defendant as the same man who broke into the residence approximately one hour earlier. Officer Barr found an identification in Defendant's possession in the name of Hercules Roy Myers, Jr. Defendant identified himself as Mr. Myers, provided Officer Barr with information appearing on Mr. Myers' I.D. card, and was able to speak to a minor infraction that was associated with Mr. Myers' identity. Mr. Myers testified at trial that he never gave Defendant consent to use his identification card or his name and, in fact, did not know his I.D. was missing until the police returned it to him following Defendant's arrest.
Following the close of the State's evidence, the trial court conducted a voir dire hearing to determine the admissibility of the testimony of Defendant's first cousin, Dante McCain. Mr. McCain testified that Defendant had told him that Mr. Myers had allowed Defendant to use his driver's license to get into clubs. Because Mr. McCain's statement included hearsay, the trial court sustained the State's objection and allowed testimony based only upon what Mr. McCain saw personally. Therefore, Mr. McCain could testify that he saw Mr. Myers' I.D. and knew that Defendant had it in his possession, but Defendant elected not to present any evidence.
On 17 December 2009, the jury returned verdicts of guilty on the charges of identity theft and first degree burglary. Following Defendant's plea to having attained habitual felon status, the trial court entered judgements on the convictions and sentenced Defendant to 151 to 191 months' imprisonment. On appeal, Defendant argues that the trial court erred in: (i) not allowing sufficient time for Defendant to procure a witness, in violation of his Sixth Amendment and procedural due process rights; (ii) denying his motions to dismiss both substantive charges on the grounds of insufficient evidence; and (iii) ruling that Defendant had attained habitual felon status.
PROCEDURAL DUE PROCESS
Defendant argues that the trial court violated his rights under both the Sixth Amendment to the United States Constitution, and Article I, § 23 of the North Carolina Constitution, by not allowing a continuance or a recess to give Defendant sufficient time to procure rebuttal witnesses, who would have contravened the testimony of Mr. Myers. We disagree.
On the second day of trial, just before the parties were called upon to deliver their opening statements, Defendant argued that the State had interviewed the identity theft victim, Mr. Myers, earlier that morning and that the notes provided to him contained information unknown to the defense. The trial court allowed a recess so that defense counsel could review the interview notes with her client. During the break, Defendant gave his attorney the names of some people who could "counter some of the . . . things that Mr. Myers ha[d] said in [his] statement." Specifically, defense counsel had been unaware that Mr. Myers "had no idea that this identification was missing until the police arrived at his house for a different incident and brought it to his attention," as stated in the interview notes. Where Defendant had requested that his attorney try to contact witnesses in reference to Mr. Myers' statement, defense counsel made a motion to open Defendant's witness list and add the names of Crystal McCain and Dante McCain and Defendant's brother, Daniel Bailey. The trial court allowed the motion, and defense counsel indicated that she was arranging for subpoenas to be issued to the potential witnesses.
After the close of the State's evidence, defense counsel informed the trial court that they had not been reached and that she and her client were "asking if [they] could continue this matter, [to] give [them] some time to try to track [Defendant's] witnesses down." Defense counsel had offered a preview of what might be included in these witnesses' testimony, and although the trial court was "struggling with whether that information [was] going to be admissible," the trial court granted the motion to continue because Defendant had not had prior knowledge of the contents of Myers' statement. The trial court ruled that "the Court in its discretion will allow the continuance until tomorrow morning to give the defendant an opportunity to locate his witnesses. But tomorrow morning at 9:30, we're going to proceed." When Defendant appeared in court at 9:30 on the third day of trial, without success in procuring his witnesses, the trial court granted another recess, allowing the defense an hour to locate the individuals and even requesting that the bailiff transport Mr. and Ms. McCain to the courthouse if necessary. After Mr. McCain had arrived and court reconvened, defense counsel still had not heard from Ms. McCain but proceeded with the voir dire hearing on Mr. McCain's testimony. Thereafter, Defendant chose not to call Mr. McCain as a witness and declined to take the witness stand himself but informed the trial court that Ms. McCain was on her way. Refusing to delay the proceedings any further, the trial court responded that it was 12:28, they had "been waiting for her all morning," and "[t]he time has come for the defendant to make his decision as to whether he's going to proceed." Defendant indicated that "with Crystal McCain not being [t]here," he declined to offer further evidence to the court. Defendant now contends that the trial court's denial of "any further continuance or recess necessary to bring Ms. McCain to court to testify in furtherance of [his] defense" deprived him of his constitutional rights to present a defense.
"Ordinarily, a motion to continue is addressed to the sound discretion of the trial judge and is reviewable only for abuse of discretion." State v. Kuplen, 316 N.C. 387, 401, 343 S.E.2d 793, 801 (1986). However, if "such a motion raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case." State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). Our Supreme Court has stated:
[t]he right[] . . . of confrontation of one's accusers and witnesses [is] guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, [§ 23] of the North Carolina Constitution. It is implicit in these guarantees that an accused have a reasonable time to investigate, prepare and present his defense. However, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of the circumstances of each case.
State v. Harris, 290 N.C. 681, 686-87, 228 S.E.2d 437, 440 (1976) (internal citations omitted).
Defendant contends that our standard of review here is de novo, as he argues in his brief that this Court is examining the denial of his motion for a continuance for constitutional error. However, at no point when Defendant sought additional time from the trial court to procure the testimony of Crystal McCain did he raise any constitutional issue. Where "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal," State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002), Defendant has failed to preserve this question and we review his contention of error only for an abuse of discretion. See State v. Ellis, ___ N.C. App. ___, ___, 696 S.E.2d 536, 537 (2010) ("Constitutional issues, which are not raised and ruled upon at trial, will not be considered for the first time on appeal. Thus, defendant has not preserved the issue of whether the denial of his motion to continue violated his constitutional rights."). In Ellis, the defendant had alleged that the State had not given him notice that a prosecution witness would be able to identify him as the robber and argued for a continuance on that ground. This Court noted, however, that the "[d]efendant's argument to the trial court was limited to the issue of obtaining an expert witness on identification," and "[n]owhere in his motion to continue did defendant contend that his constitutional rights were violated or implicated." Id. at ___, 696 S.E.2d at 539. Accordingly, the issue of whether the trial court's denial of the "motion to continue for the purpose of seeing experts" violated the defendant's constitutional rights was not properly before the Court. Likewise, Defendant's argument in the case sub judice included no reference at all to his constitutional rights to present a defense, nor did Defendant ever suggest, in his requests to further delay the trial, that the failure to grant an extended continuance would deprive him of due process. Therefore, we do not address Defendant's constitutional arguments and review the trial court's decision to proceed without Ms. McCain for an abuse of discretion.
At the outset, we note that despite its own reservations about the admissibility of the evidence sought from the defense's added witnesses, the trial court granted Defendant's first motion for a continuance. At the close of the State's evidence on 15 December 2009, the trial court allowed an afternoon recess to enable Defendant to contact his witnesses and ensure they appeared in court the following morning at 9:30 am. The court also instructed the Bailiff to use all due diligence in having subpoenas served on these defense witnesses. Defendant, however, failed to produce these witnesses when the trial resumed on 16 December 2009, so the court granted yet another recess until 11:00 am to enable the Defendant to produce his witnesses. After this second recess, one of Defendant's two proposed witnesses appeared in court, and voir dire was conducted to determine the admissibility of this witness' testimony. Then, at 12:28 pm on 16 December 2009, when Ms. McCain still had not arrived after the voir dire hearing, the trial court refused to give Defendant any additional time to procure his second proposed witness.
Defendant maintains that because he received the interview statement of identity theft victim, Hercules Roy Myers, Jr., on the morning of 15 December 2009, in the midst of trial, he was entitled to a continuance to procure his defense witnesses. However, the trial court granted that continuance, giving Defendant time to get his witnesses into court, and did so even though Defendant had notice that Mr. Myers was an alleged victim from the time the indictment was entered on 20 April 2009. As recognized by the trial court, Defendant thus had ample time to interview both him and rebuttal witnesses in the months before trial. See State v. Smathers, 287 N.C. 226, 231, 214 S.E.2d 112, 115 (1975) ("Ordinarily the absence of witnesses upon whom a subpoena could have been served will not constitute a ground for continuance."). Before proceeding with Mr. McCain's voir dire testimony, where Ms. McCain had not yet arrived, the trial court made clear that it would not "wait indefinitely." The trial court indicated that Ms. McCain was already an hour and forty-five minutes late, and while Defendant received Mr. Myers' statement only the day before, the trial court was unconvinced that Defendant did not have adequate notice of the proposed testimony, explaining:
But it's not like you didn't have notice that he was an alleged victim and that this was going to be an issue. Although, I entertained that motion yesterday, given the fact that you had just received an interview. Although, frankly, I think the defendant had adequate notice, because of the indictment [for identity theft], to locate any potential witnesses.
The trial court thus demonstrated its rationale, and it is clear that the trial court properly exercised its discretion in declining to grant any further continuance or recess in this matter.
Moreover, Defendant fails to cite any relevant case law to show that the length of the continuance granted by the trial court was insufficient. Instead, he relies on Smathers, which involved an outright denial of a defendant's motion for a continuance and is therefore inapplicable to the instant case. Smathers, 287 N.C. at 227-28, 214 S.E.2d at 113. Nowhere in the Smathers opinion did our Supreme Court indicate an appropriate length of time for a continuance. Where Smathers thus does not inform our discussion here, Defendant has not shown that the continuance was insufficient, and we conclude that the trial court's decision against an extension thereof was not manifestly unsupported by reason. See State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (clarifying that "an abuse of discretion is established only upon a showing that a court's actions are `manifestly unsupported by reason,' . . . [and] emphasiz[ing] that any `ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision'"). Accordingly, the trial court did not commit an abuse of discretion.
MOTIONS TO DISMISS
Defendant argues that the trial court erred in denying his motions to dismiss the charges of first degree burglary and felonious identity theft on the ground of insufficient evidence. We disagree.
"Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). However, "[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." Id. When reviewing challenges to the sufficiency of the evidence, "we must view the evidence in the light most favorable to the State." State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Therefore, "the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal of the case — they are for the jury to resolve." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).
Defendant alleges that Ms. Morales' eyewitness identification was inherently incredible and thus should have been excluded by the trial court, and without that identification there was insufficient evidence to support Defendant's conviction for the charge first degree burglary.
"Ordinarily, the credibility of witnesses and the proper weight to be given their testimony is to be determined by the jury, not by the court upon a motion for judgment of nonsuit." State v. Miller, 270 N.C. 726, 730, 154 S.E.2d 902, 904 (1967). However, this well-established 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. Our Supreme Court has held that "the test to be employed to determine whether the identification evidence is inherently incredible is whether `there is a reasonable possibility of observation sufficient to permit subsequent identification.'" State v. Turner, 305 N.C. 356, 363, 289 S.E.2d 368, 372 (1982) (quoting Miller, 270 N.C. at 732, 154 S.E.2d at 906).
Ms. Morales testified that she was only able to observe the perpetrator for a very short time, but this observation took place from a distance of approximately seven or eight steps, in a well-lit room. Ms. Morales was able to give police a description, and subsequently identified Defendant as the perpetrator about an hour after the incident. Ms. Morales testified that she was able to get a "good look" at the person that broke into her apartment. While it is true that Ms. Morales had only a limited opportunity to observe the perpetrator, "[t]he victim's limited opportunity for observation goes to the weight the jury might place upon her identification rather than its admissibility." State v. Ricks, 308 N.C. 522, 528, 302 S.E.2d 770, 773 (1983).
In support of his assertion that Ms. Morales' identification was inherently incredible, Defendant also points to purported discrepancies between Ms. Morales' testimony at trial and both the statement she gave to the police following the incident and Defendant's booking photo taken the on the night of the burglary. However, Defendant had every opportunity to cross-examine Ms. Morales at trial and expose any such inconsistencies to the jury. Accordingly, Ms. Morales' testimony was properly admitted, and with her testimony, the evidence viewed in the light most favorable to the State was sufficient to support a finding that Defendant was the perpetrator of the charged crime of first degree burglary, and the trial court did not err in denying Defendant's motions to dismiss said charge.
With respect to the count of felonious identity theft, Defendant argues that without the first degree burglary charge, there is insufficient evidence to show that Defendant was fraudulently representing himself as another person for the purpose of avoiding legal consequences when arrested, because there were no legal consequences to avoid otherwise. Defendant had the intent to fraudulently represent himself as Hercules Roy Myers, Jr. in order to avoid legal consequences which is an essential element of the charged crime of felonious identity theft. See N.C. Gen. Stat. § 14-113.20(a) (2009) ("A person who knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person's name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences is guilty of a felony. . . ." (emphasis added)). Indeed, the State's evidence showed that Defendant was fraudulently representing himself as Mr. Myers to avoid legal consequences of the burglary charge, regardless of whether Defendant was ultimately convicted of first degree burglary or even indicted on that charge in the first place. Even if the burglary charge had not resulted in conviction, Defendant knew that legal consequences would follow his arrest, including an arraignment and being held on the burglary charge, during which he allowed himself to be represented as Mr. Myers without correcting the identity associated with the charge. Such evidence sufficiently allows the jury to infer that Defendant acted in this manner to cause the burglary charge to be attributed to another person. Accordingly, the trial court did not err in denying Defendant's motions to dismiss the identity theft charge.
HABITUAL FELON
Defendant argues that because his guilty plea to attaining habitual felon status was predicated on guilty verdicts as to first degree murder and felonious identity theft, which he alleges to have been erroneously entered, the guilty verdict for attaining habitual felon status was also in error. We have found no error with either the burglary or the identity theft conviction. Therefore, the trial court did not err in adjudging Defendant guilty of having attained habitual felon status.
No Error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).