Opinion
No. COA12–782.
2013-04-2
STATE of North Carolina v. Adam Troy McGHEE.
Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State. John R. Mills for defendant.
Appeal by defendant from judgment entered 11 January 2012 by Judge Carl R. Fox in Granville County Superior Court. Heard in the Court of Appeals 11 December 2012. Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State. John R. Mills for defendant.
HUNTER, ROBERT C., Judge.
Adam Troy McGhee (“defendant”) appeals from the judgment entered after a jury found him guilty of robbery with a dangerous weapon and possession of stolen goods or property. On appeal defendant argues that the trial court committed plain error by admitting into evidence (1) the robbery victim's testimony that he identified defendant from photographs shown to him by the police in an impermissibly suggestive manner and (2) the victim's in-court identification of defendant as the perpetrator of the robbery. Defendant also argues that his trial attorney rendered ineffective assistance of counsel by failing to object to the identification testimony. After careful review, we find no error.
Background
The State's evidence tended to establish the following events. In early 2011, Thomas Wheeler (“Mr.Wheeler”) was the owner and operator of a convenience store in Stem, North Carolina. Shortly before 10:00 p.m. on 25 March 2011, Mr. Wheeler was preparing to close his store when a man entered the store wearing a dust mask and demanded money from the cash register. When Mr. Wheeler gave him the cash out of the register he noticed a gun sitting on the counter pointed in Mr. Wheeler's direction. The perpetrator then demanded Mr. Wheeler hand over some lottery tickets. Mr. Wheeler grabbed some scratch-off lottery tickets and gave them to the man who ran from the store and fled by foot in the direction of the Carriage Hill subdivision. Mr. Wheeler called the police to report the robbery; the resulting police report indicated that Mr. Wheeler placed the call at 10:06 p.m. Mr. Wheeler described the perpetrator to the police as a black male who was in his thirties, was approximately five feet and nine inches tall, had a shaved head, and was wearing blue jeans with an orange shirt, blue and white gloves, and a dust mask. Mr. Wheeler testified at trial that the perpetrator had “very little or no hair.” After calling the police, Mr. Wheeler called the North Carolina Lottery Commission to report the stolen lottery tickets.
At trial, Mr. Wheeler identified defendant as the perpetrator of the robbery. Mr. Wheeler testified that he did not know defendant by name at the time of the robbery but that defendant had been in his store on multiple occasions over the previous month to purchase beer: “[T]he only thing he ever purchased was a twenty-four (24) ounce can of Natural Lite beer. And every time he ever bought a beer, he was always counting change.” Mr. Wheeler also testified that approximately one week after the robbery, Detective Bryant Strother showed him some photographs of defendant and asked Mr. Wheeler if he recognized the person in the photographs as the person who had robbed him. Mr. Wheeler testified that it was defendant who appeared in the photographs. Detective Strother subsequently testified that he did not recall showing Mr. Wheeler any photographs of defendant and that he did not know why he would “have done a thing like that.”
April Green testified that on the night of the robbery she and defendant were watching basketball at her house in the Carriage Hill subdivision located less than a half of a mile away from the store. Ms. Green stated that she fell asleep while watching television but that defendant woke her between 9:30 and 10:00 p.m. and asked her to drive him to Butner to see a friend, Germaine Moye. Defendant did not drive as his driver's license was suspended. During their drive to Butner, Ms. Green drove past Mr. Wheeler's convenience store and noticed the police were at the store.
Defendant testified that when he arrived at Mr. Moye's house, he and Mr. Moye discussed the basketball game while Ms. Green stayed in the car. After 20–30 minutes, he and Ms. Green drove to her mother's house where they swapped cars. Defendant and Ms. Green then drove to another convenience store in Butner where defendant bought some gasoline and scratch-off lottery tickets. Defendant testified that while pumping gas he spotted “a lot” of lottery tickets on the ground in the parking lot. He picked up the tickets, put them in his pocket, and rode with Ms. Green back to her house.
Defendant testified that he won $35.00 on the lottery tickets that he found at the gas station. The day after he found the tickets, defendant asked Mr. Moye to redeem the tickets for him in exchange for five dollars. Defendant and Mr. Moye testified that the two men regularly redeemed lottery tickets for the other and that this was not an unusual request. Mr. Moye attempted to redeem the tickets at a convenience store in Butner, but when the convenience store employee put the tickets in the computer, the system alerted the employee that something was wrong. The employee told Mr. Moye that Mr. Moye would have to complete a form with his name and address and take the form and ticket to Raleigh to redeem it. Mr. Moye explained that the tickets were not his, and he took the form with him for defendant to complete. Mr. Moye then drove back to his house where defendant was waiting. Mr. Moye explained to defendant what he would have to do to redeem the ticket, and Mr. Moye went to his bedroom.
Approximately 30 minutes after Mr. Moye arrived home, Captain Michael Beal of the Stem Police Department arrived to speak with him. Captain Beal asked Mr. Moye how he had come into possession of the lottery tickets. Mr. Moye explained that they belonged to defendant, and he went back inside his house to find defendant; defendant was no longer there. Mr. Moye testified that defendant had “just” been in his house a few minutes before Mr. Moye had stepped outside to talk to the police, but unbeknownst to Mr. Moye, defendant left. Defendant testified that he had not seen the police arrive at Mr. Moye's house and that he got a ride to Durham from another friend.
At Mr. Moye's suggestion, Captain Beal then visited defendant's mother who lived close by. With Captain Beal standing by, defendant's mother called defendant on his cell phone. Captain Beal spoke with defendant and told him to bring the tickets to the police station, which he did.
Upon his arrival at the police station, the lottery tickets were identified as the same tickets that had been stolen from Mr. Wheeler the night before. Detective Strother advised defendant of his Miranda rights, called Mr. Wheeler to confirm that defendant matched the description of the suspect, and arrested defendant. The jail record indicated that when defendant was arrested he had hair and that his height was six feet and two inches. Detective Strother called Mr. Wheeler to confirm the description that Mr. Wheeler had given of the perpetrator. Mr. Wheeler told Detective Strother that if the perpetrator had hair, it had not been noticeable to him.
The next day, on 27 March 2011, when defendant was being processed at the magistrate's office, defendant told a criminal investigator with the Granville County Sheriff's Department, Craig Williams, that he did not rob Mr. Wheeler's store, but the person who committed the robbery sold the lottery tickets to defendant. Investigator Williams further testified that defendant stated that he had originally said he found the lottery tickets because defendant “was afraid to tell on the person” who sold him the tickets. Defendant admitted to changing his story about how he acquired the tickets and testified that he did so because he was “very angry” and was “trying [his] best in every way [he] kn [e]w how” to explain that he did not commit the robbery.
Defendant's charges came on for a jury trial in the 9 January 2012 Criminal Session of Granville County Superior Court, Judge Carl R. Fox presiding. The jury found defendant guilty of robbery with a dangerous weapon and possession of stolen goods or property. Defendant was sentenced to a term of 85 to 111 months imprisonment. Defendant appeals.
Discussion
A. Identification Testimony
Defendant argues that the trial court erred by admitting into evidence Mr. Wheeler's testimony that he identified defendant from photographs shown to him by the police before trial. Defendant contends that the pretrial identification was obtained by means that were impermissibly suggestive and in violation of the Eyewitness Identification Reform Act, N.C. Gen.Stat. §§ 15A–284.50 through 248 .53 (2011). Defendant further argues that Mr. Wheeler's in-court identification should have been excluded as it was tainted by the unduly suggestive pretrial identification. We disagree.
Because defendant did not object to Mr. Wheeler's identification testimony, defendant bears the burden of demonstrating not only that the court's admission of the testimony was error but that it was plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
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, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
Id. (internal citations and quotation marks omitted).
Defendant contends that the trial court's admission of Mr. Wheeler's identification testimony was a violation of his due process rights because the identification was procured in an unduly suggestive manner. State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983) (“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.”) Defendant also argues that Mr. Wheeler's pretrial photographic identification of defendant was procured in a manner that was in violation of the Eyewitness Identification Reform Act (“EIRA” or “the Act”), which provides requirements for conducting live and photographic lineups conducted by State and local law enforcement officials. N.C. Gen.Stat. § 15A–284.52. Among the procedures required by EIRA for conducting photographic lineups is the inclusion of at least five photographs of individuals other than the suspect and that the lineup is to be conducted by an “independent administrator.” N.C. Gen.Stat. § 15A–284.52 (b)(1), (b)(5)(b). Defendant argues that the photo identification conducted for Mr. Wheeler was a photo lineup as contemplated by the EIRA but it did not contain any photographs other than photographs of defendant, and it was not conducted by an independent administrator. The EIRA provides remedies for violations of the Act, including a jury instruction that the jury may consider evidence of compliance or noncompliance with the Act as evidence by which to assess the reliability of eyewitness identifications. N.C. Gen.Stat. § 15A–284.52 (d)(3). Defendant argues that failure to give this instruction was error.
[C]onstitutional arguments not raised at trial are not preserved for appellate review: “ ‘[I]n order for an appellant to assert a constitutional or statutory right on appeal, the right must have been asserted and the issue raised before the trial court.’ “ State v. Moses, 205 N.C.App. 629, 635, 698 S.E.2d 688, 693 (2010) (alteration in original) (quoting State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980)). “Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error[.]” State v. Gobal, 186 N.C.App. 308, 320, 651 S.E.2d 279, 287 (2007) (citations omitted), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008). However, because the constitutional right at issue involves the admissibility of evidence, see State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009) (“Plain error analysis applies to evidentiary matters and jury instructions.”), cert. denied,175 L.Ed.2d 362 (2009), and because defendant has also raised the issue of ineffective assistance of counsel with respect to the admission of the same evidence, we reach the merits of defendant's arguments under a plain error standard of review. State v. Lawson, 159 N.C.App. 534, 538, 583 S.E.2d 354, 357 (2003).
State v. Jones, ––– N.C.App. ––––, ––––, 715 S.E.2d 896, 900–01 (2011), review dismissed,––– N.C. ––––, 723 S.E.2d 767, and appeal dismissed, review denied, ––– N.C. ––––, 723 S.E.2d 767 (2012).
This Court's analysis of identification procedures for violations of a defendant's right to due process is comprised of two steps:
“First, the Court must determine whether the pretrial identification procedures were unnecessarily suggestive. If the answer to this question is affirmative, the court then must determine whether the unnecessarily suggestive procedures were so impermissibly suggestive that they resulted in a substantial likelihood of irreparable misidentification. Whether a substantial likelihood exists depends on the totality of the circumstances.”
Id. at ––––, 715 S.E.2d at 901 (quoting State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987) (citations omitted)). However, we need not determine whether the pretrial procedures were impermissibly suggestive where a witness's in-court identification of the defendant has a basis of origin independent from the pretrial procedure. See State v. Powell, 321 N.C. 364, 369, 364 S.E.2d 332, 336 (1988).
There are five factors our Courts consider in determining whether an in-court identification of the defendant was independent of the pretrial procedure:
“(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.”
Jones, ––– N.C.App. at ––––, 715 S.E.2d at 901–02 (quoting State v. Pulley, 180 N.C.App. 54, 64, 636 S.E.2d 231, 239 (2006)).
Mr. Wheeler's testimony establishes that he observed the perpetrator at close range during the robbery when the perpetrator stood across from Mr. Wheeler on the other side of the store counter and was only three to four feet away. Mr. Wheeler's degree of attention is indicated by his description of the perpetrator's gun (black with a silver barrel) and clothing, that he followed the perpetrator out of the store to see where the perpetrator fled, and that he described the perpetrator to the police immediately after the robbery. Although the perpetrator's face was partially obscured by a dust mask, Mr. Wheeler told the police that he recognized the perpetrator as a man who had frequented Mr. Wheeler's store over the previous four to six weeks to buy beer. Mr. Wheeler testified that these prior interactions in his store allowed him to get a “good look” at that person, that he believed that person was defendant, and that defendant was the perpetrator of the robbery.
Mr. Wheeler's description of the perpetrator as being approximately five feet nine inches tall and having no hair conflicts with evidence of defendant's characteristics: short hair and a height of six feet and two inches. However, under the totality of the circumstances, we conclude these discrepancies in the evidence do not render Mr. Wheeler's in-court identification to be unreliable, and the trial court's admission of Mr. Wheeler's in-court identification of defendant was not error, much less plain error. See Powell, 321 N.C. at 370, 364 S.E.2d at 336 (holding it was not error for the trial court to conclude the in-court identification of the defendant was independent of the pretrial procedure where three of the five factors supported the conclusion). Thus, even if we were to assume that the pretrial photo identification was impermissibly suggestive and in violation of the EIRA and that Mr. Wheeler's testimony regarding the photo identification should have been excluded, the admission of that testimony could not rise to the level of plain error in light of the admissible in-court identification. Similarly, assuming, without deciding, the trial court erred in failing to instruct the jury that evidence of noncompliance with the EIRA could be considered in its assessment of the reliability of the pretrial identification, the error did not rise to the level of plain error. Defendant's arguments are overruled.
B. Ineffective Assistance of Counsel
Next, defendant argues that because his trial counsel failed to object to Mr. Wheeler's identification testimony, he received ineffective assistance of counsel. Because we conclude that Mr. Wheeler's in-court identification of defendant was admissible, defendant's trial counsel did not err in failing to object to that testimony. Jones, ––– N.C.App. at ––––, 715 S.E.2d at 904 (citing State v. Mewborn, 200 N.C.App. 731, 739, 684 S.E.2d 535, 540 (2009) (“The failure to object to admissible evidence is not error.”)). In light of the admissible in-court identification, there is no reasonable probability that the jury would have reached a different verdict had Mr. Wheeler's testimony about the pretrial photo identification been excluded. Therefore, we need not determine whether the performance by defendant's trial counsel was deficient. See State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985) (“ ‘[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.’ ”). Defendant's arguments are overruled.
Conclusion
For the reasons stated above, we find no error.
NO ERROR. Judges McGEE and ELMORE concur.
Report per Rule 30(e).