Opinion
No. COA11–1384.
2012-04-17
STATE of North Carolina v. Ernest Andre RATLIFF, Jr., Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General David W. Boone, for the State. J. Edward Yeager, Jr., for defendant-appellant.
Appeal by defendant from judgment entered on or about 27 July 2011 by Judge James U. Downs in Superior Court, Buncombe County. Heard in the Court of Appeals 8 March 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General David W. Boone, for the State. J. Edward Yeager, Jr., for defendant-appellant.
STROUD, Judge.
Defendant appeals his convictions for second degree kidnapping, common law robbery, conspiracy to commit robbery, and obtaining the status of habitual felon, arguing that the trial court erred in denying his motion in limine and motion to dismiss. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that on 20 July 2010, Johnathan Hoodenpyle got into his car and was joined by defendant and another man; Mr. Hoodenpyle did not know defendant or the other man. The men told Mr. Hoodenpyle “that [he] was going to do them a favor and that [he] shouldn't consider not doing it because they were both packing pistols and it was in [his] interest to do what they wanted.” The men then had Mr. Hoodenpyle drive them around to various places. Defendant told Mr. Hoodenpyle, he
would get out of this fine if [he] would give them some money. And [Mr. Hoodenpyle] said [he] didn't have any money on [him], so [defendant] said that [they]'d have to go to an ATM and that if [he] went along with this, they'd drop [him] off right after and [he]'d be fine.
Mr. Hoodenpyle drove to an ATM and gave the men money. Eventually the men had Mr. Hoodenpyle drop them off at two different locations. Thereafter Mr. Hoodenpyle drove to the police department, provided a written statement, and identified defendant from photographs shown to him.
On or about 4 April 2011, defendant was indicted for conspiracy to commit common law robbery, obtaining the status of habitual felon, second degree kidnapping, and common law robbery. On 25 July 2011, defendant filed two motions in limine requesting, inter alia, the trial court to suppress “a statement from an unidentified individual at Hillcrest Apartments, who allegedly uttered the name ‘Ratliff’ and stated that ‘he got out of prison on the 19th[.]’ “ Before defendant's trial began the trial court heard defendant's motions in limine; the trial court denied the motion regarding the statement of the unidentified individual. After a trial by jury defendant was found to be guilty of conspiracy to commit common law robbery, second degree kidnapping, and common law robbery. Defendant pled guilty to obtaining the status of habitual felon. Defendant was sentenced to 96 to 125 months imprisonment on all of the convictions. Defendant appeals.
II. Motion in Limine
During defendant's trial, the following dialogue took place during Mr. Hoodenpyle's testimony as he explained one interaction with individuals at Hillcrest, one of the locations where defendant and the other man had him drive to:
THE WITNESS: The individuals approached from the driver's side of the car at the back, and they said, “Hey”
MR. RICE [Defendant's attorney]: Objection.
THE COURT: Overruled.
THE WITNESS: “Hey, Ratliff.”
MR. RICE: Objection.
THE WITNESS: “What are you doing?”
MR. RICE: Move to strike.
THE COURT: “Hey” what?
THE WITNESS: “Ratliff.”
THE COURT: Ratliff?
THE WITNESS: Yes.
THE COURT: And, “What are you doing?”
THE WITNESS: Like, “What are you up to?”
THE COURT: “What are you up to?”
Members of the jury, you will not consider that remark that some unknown individual made to the individual allegedly sitting behind this man in his car as any indication of identification of the defendant as being that individual, but you may consider that along with any other circumstances that you find to exist from the evidence to the extent of beyond a reasonable doubt as to the identity of the individual sitting behind this man.
Go ahead.
MR. AMBURGEY [State's attorney]: May I be heard?
THE COURT: Let me ask you to go to the jury room for a minute, please, members of the jury.
(Jury exits the courtroom at 2:17 p.m.)
THE COURT: Yes.
MR. AMBURGEY: Your Honor, I renew my request that that evidence come in with no restrictions. I think it falls under the present sense impression and they should be able to consider it as an identification of the defendant, Mr. Ratliff.
THE COURT: That request is denied.
Sheriff, bring the jury back in, please.
Later, also during Mr. Hoodenpyle's testimony, Mr. Hoodenpyle read a statement which he had provided to the police:
THE WITNESS: ... “The first place they had me go was Hillcrest. We went in the main entrance close to 6 p.m. We went straight in and then to the left down the second road. Here some other people came up to the car, one of whom called back seat ‘Ratliff.’ “
MR. RICE: Objection, Your Honor. I'd ask for the same instruction there as you gave previously.
THE COURT: Sir?
....
MR. RICE: I would ask for the same instruction there that you gave previously with regard to the utterance of the name “Ratliff.”
THE COURT: Members of the jury, you'll remember the instructions I gave you as to whatever, if any, remarks were made by some unidentified people that approached the car; you will not consider it as evidence that the defendant was one and the same as the one addressed by the bystanders but may consider that, along with any other circumstances offered in this case, if it satisfies you to the extend [sic] of beyond a reasonable doubt that as to the identification of the man in the back seat being the defendant.
Defendant contends that the trial court erred by denying his motion in limine regarding the unidentified individual's statement. Defendant first argues that the trial court should have treated his motion in limine as a motion to suppress. However, a motion to suppress must comply with N.C. Gen.Stat. § 15A–977 which requires an affidavit accompany the motion. SeeN.C. Gen.Stat. § 15A–977(a) (2009). Defendant did not file the required affidavit, and thus his motion in limine was properly treated as such. See id.
Defendant next argues that the admission of the statement of the unidentified individual “violated ... [his] Constitutional right to confront witnesses against him; (2) it was hearsay; and (3) the prejudicial effect far exceeded the probative value of the evidence.” Defendant also contends that the trial court's limiting instruction regarding the statement made by the unidentified individual was “basically gibberish” and “did not clearly limit consideration of the evidence.”
We note that even if the instruction was “gibberish [,]” defendant's counsel nevertheless requested that the trial court repeat it when the mention of the unidentified person saying “Ratliff” came up the second time. Thus, to the extent it may be error, it is invited error. State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001) ( “North Carolina General Statutes section 15A–1443(c) states that a defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” (citation, quotation marks, and brackets omitted)), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002).
A ruling on a motion in limine is within the sound discretion of the trial court and will only be disturbed on appeal in the case of a manifest abuse of discretion. Such a motion operates to exclude anticipated prejudicial evidence before such evidence is actually offered in the hearing of a jury. A motion in limine may be granted to prevent the jury from ever hearing the potentially prejudicial evidence thus obviating the necessity for an instruction during trial to disregard that evidence if it comes in and is prejudicial.
State v. Clapp, 135 N.C.App. 52, 55, 519 S.E.2d 90, 92 (1999) (citations and quotation marks omitted).
N.C. Gen.Stat. § 15A–1443 provides:
(a) A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
(b) A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.
N.C. Gen.Stat. § 15A–1443(a)–(b) (2009).
All of defendant's arguments, save the one regarding the Confrontation Clause, fail to raise constitutional issues. Thus, defendant must demonstrate that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached[.]” N.C. Gen.Stat. § 15A–1443(a). As Mr. Hoodenpyle, the victim, identified defendant's photograph at the police department after he had spent approximately three and one-half hours in the same car with defendant and identified defendant in person during the trial as one of the men involved, we see no way in which “a different result would have been reached” by the suppression of the statement by the unidentified individual. Id. Furthermore, as to defendant's argument regarding the Confrontation Clause, we believe the State has demonstrated “the error was harmless” in light of the Mr. Hoodenpyle's two identifications of defendant. N.C. Gen.Stat. § 15A–1443(b). Accordingly, this argument is overruled.
III. Motion to Dismiss
Defendant next contends that the trial court erred in denying his motion to dismiss.
A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). Here, defendant does not challenge the essential elements of any of the crimes he was convicted of but instead argues that the State did not prove he was “the perpetrator of the charged offense.” Id. Defendant contends that Mr. Hoodenpyle's testimony was inconclusive and that “there was no corroborative evidence.” Again, Mr. Hoodenpyle spent approximately three and one half hours with defendant; afterwards he drove to the police department and positively identified defendant from a photograph. Mr. Hoodenpyle also identified defendant during defendant's trial. As such, there was “substantial evidence” that defendant was the “perpetrator of the charged offense[s].” Id.; see State v. Turner, 305 N.C. 356, 362–63, 289 S.E.2d 368, 372 (1982) (“As a general rule, the credibility of witnesses and the proper weight to be given their identification testimony is a matter for jury determination. An exception to this rule, however, was set forth in the case of State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967). Miller involved a trial court's ruling on a motion for nonsuit on the grounds that the identification evidence was inherently incredible. .... According to Miller, 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. Where such a possibility exists, the credibility of the witness' identification and the weight given his testimony is for the jury to decide.” (emphasis added) (citation and quotation marks omitted)).
IV. Conclusion
For the foregoing reasons, we find no prejudicial error.
NO ERROR. Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).