State v. Luckey ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-12
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Union County
Nos. 10 CRS 56329;
11 CRS 2523; 13 CRS 717
MELVIN LEE LUCKEY
Appeal by defendant from judgment entered 4 June 2013 by
Judge Christopher W. Bragg in Union County Superior Court.
Heard in the Court of Appeals 12 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Mary Carla Hollis, for the State.
Anne Bleyman for defendant-appellant.
BRYANT, Judge.
Where a co-defendant was produced in-court for purposes of
identification by a witness, the trial court did not err in
admitting the in-court identification. Where there was
sufficient similarity between defendant’s two prior armed
robberies and the current armed robbery, the Rule 404(b)
evidence was properly admitted. And, where the evidence
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supported a finding that defendant had been convicted of a
felony in 1997, the trial court did not err in denying
defendant’s motion to dismiss the charge of possession of a
firearm by a felon. We find no error in defendant’s
convictions.
Defendant Melvin Lee Luckey was indicted on two counts of
attempted first-degree murder, two counts of robbery with a
dangerous weapon, larceny of a firearm, two counts of conspiracy
to commit robbery with a dangerous weapon, and two counts of
possession of a firearm by a felon. The matters came on for
trial 12 May 2013 in Union County Superior Court, the Honorable
Christopher W. Bragg, Judge presiding.
The evidence at trial tended to show that on 1 November
2010, Robbie and Crystal Jordan—husband and wife and co-owners
of a Department of Motor Vehicles (DMV) License Plate Agency in
Monroe—closed their business for the day and were walking to
their respective vehicles when Crystal Jordan was approached by
co-defendant Otis Howie, Jr. Howie demanded the bank deposit
bag Crystal was carrying. Howie then shot Crystal four times
before shooting Robbie several times. Howie took the bank
deposit bag and Crystal’s purse before crossing the parking lot
and going out of sight. At trial, Robbie identified Howie as
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the shooter. Within two hours of the time of the shooting,
surveillance video recorded Howie and defendant purchasing shoes
at Sportrax, an athletic shoe retail store on Wilkinson
Boulevard in Charlotte, a short distance from Monroe.1 Both
Howie and defendant paid for their respective purchases with
large bills—“fifties or hundreds.”
On the evening of 10 November 2010, defendant visited his
girlfriend Tanika Ingram at her apartment. She testified that
defendant “just started rambling on.”
He just like talking -- . . . him and Otis
[] had robbed the DMV. And I was like the
DMV . . . ? And he was like yeah, but he was
like he don't know why Otis had shot the
people because he was like he wasn’t
supposed to shoot them. He was like the way
it was supposed to go down; it was going to
be a cut and dry deal. He said all Otis had
to do was go up there, rob the people, get
back in the car, and they come back to
Charlotte.
At the close of the evidence, the jury returned guilty
verdicts against defendant as to both counts of attempted first-
degree murder, both counts of robbery with a dangerous weapon,
larceny of a firearm, both counts of conspiracy to commit
robbery with a dangerous weapon, and two counts of possession of
a firearm by a felon. The trial court arrested judgment on the
1
Charlotte and Monroe, North Carolina are approximately 25 miles
apart.
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charges of larceny of a firearm, one count of conspiracy to
commit robbery with a dangerous weapon, and one count of
possession of a firearm by a felon. Defendant was then
sentenced to a term of 342 to 420 months for each count of
attempted first-degree murder, 111 to 143 months for the first
count of robbery with a dangerous weapon, 139 to 176 months for
the second count of robbery with a dangerous weapon, 55 to 75
months for conspiracy to commit robbery with a dangerous weapon,
and 27 to 33 months for possession of a firearm by a felon. The
trial court ordered all sentences imposed to be served
consecutively. Defendant appeals.
__________________________________
On appeal, defendant raises the following issues: whether
the trial court erred in (I) allowing an in-court identification
of a co-defendant; (II) admitting evidence of other crimes; and
(III) failing to grant defendant’s motion to dismiss the charge
of possession of a firearm by a felon.
I
Defendant argues that the trial court erred to his
prejudice by admitting evidence identifying Howie as the man who
shot DMV owners Robbie and Crystal Jordan. We disagree.
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Pursuant to North Carolina General Statutes, section 8C-1,
Rule 403, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C. Gen. Stat.
§ 8C-1, Rule 403 (2013).
While all evidence offered against a party
involves some prejudicial effect, the fact
that evidence is prejudicial does not mean
that it is necessarily unfairly prejudicial.
The meaning of “unfair prejudice” in the
context of Rule 403 is an undue tendency to
suggest decision on an improper basis,
commonly, though not necessarily, as an
emotional one.
State v. Rainey, 198 N.C. App. 427, 433, 680 S.E.2d 760, 766
(2009) (citations and quotations omitted).
“Whether or not to exclude evidence under Rule 403 is
within the discretion of the trial court and will not be
overturned absent an abuse of discretion.” State v. Underwood,
134 N.C. App. 533, 538, 518 S.E.2d 231, 237 (1999) (citing State
v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
“Abuse of discretion results where the court's ruling is
manifestly unsupported by reason or is so arbitrary that it
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could not have been the result of a reasoned decision.” Hennis,
323 N.C. at 285, 372 S.E.2d at 527 (citation omitted).
At trial, Robbie Jordan testified that up until the time
the shooting occurred, 1 November 2010 had been a normal
business day. The couple prepared to leave the DMV station
sometime between 5:00 and 5:30 p.m. Crystal Jordan looked out
the building door and set the business alarm. She and Robbie
then walked out into the parking lot. When Crystal reached her
car, a man who had been standing next to the business approached
and demanded the bank deposit bag she was holding. Robbie
testified that “I think I recall him saying give me the bag, and
he just went to shooting.”
[H]e shot her and she went down on the
ground, and then he shot her three more
times after she was on the ground. And then
he turned on me.
. . .
He got everything, started up the hill
towards -- there’s a nightclub up there. He
started up towards the nightclub and got
about halfway, maybe not even halfway,
turned around and looked at me to see if I
had ever went down, and that’s when I got a
good look at him before -- I mean that’s
when I got a good look at him.
Subsequent to this testimony, the prosecution presented,
over defendant’s objection, State’s exhibit 20—Otis Howie, Jr.
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Howie did not testify, but Robbie Jordan identified Howie as the
man who shot both him and his wife.
Q Do you recognize the individual that
just walked in the courtroom?
[Robbie Jordan:] I do.
Q Could you tell the jury who that is?
A That’s Otis Howie.
Q And is that the same Otis Howie that
you referred to earlier?
A It is. He’s the one that shot me and my
wife.
Defendant argues that the production of Howie prejudiced
him because “Howie was presented as a dangerous convicted felon.
. . . The State presented Mr. Howie and [defendant] as part of
the same pack and that [defendant] was responsible for the
dangerous Mr. Howie’s acts.”2
Defendant was prosecuted under a theory of acting-in-
concert with Howie. It was incumbent upon the State to prove
that defendant acted together with another person. Because,
Robbie saw Howie after Howie shot Crystal, it was proper to have
Robbie identify Howie. We note that prior to allowing the in-
2
The record reflects that Otis Howie, Jr., was tried separately
for his role in the shooting and robbery of Robbie and Crystal
Jordan.
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court identification of Howie, the trial court heard the
arguments from both the prosecution and defense and made a
deliberate decision to allow the in-court identification after
weighing the probative value of the in-court identification with
the possibility of prejudice to defendant.3
As with most evidence offered against a party, there is
some prejudicial effect. See Reis v. Hoots, 131 N.C. App. 721,
729, 509 S.E.2d 198, 204 (1998) (“The question is whether the
evidence is unduly prejudicial.”). However, we reject the
notion the State’s presentation of Howie along with Robbie’s
identification of Howie as the person who shot both Robbie and
Crystal leads to undue prejudice. Rainey, 198 N.C. App. at 433,
680 S.E.2d at 766. Other evidence showed that defendant was
with Howie on the afternoon of the shooting, and actively
assisted Howie in the commission of the crimes. The value of
the identification evidence was not substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury. See N.C. Evid. Rule 403. Therefore, we
hold the trial court did not abuse its discretion in admitting
3
Notwithstanding that Howie was in a prison uniform and shackled
when he appeared, we note that his appearance in court was very
brief, he did not speak, and that his attorney was present.
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the in-court identification of Howie. Accordingly, we overrule
defendant’s argument.
II
Next, defendant argues that the robbery of a cash business
is not an unusual enough occurrence to satisfy the requirements
for admission of prior wrongs or bad acts pursuant to Rule
404(b). Specifically, defendant contends that the admission of
evidence surrounding the robbery of two DMV license plate
agencies in Charlotte in 2007 and 2010 as Rule 404(b) evidence
was improper because the only similarity between these robberies
was that each happened outside of a DMV office. We disagree.
Pursuant to Rule 404(b),
[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of
a person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013).
Prior to trial, defendant filed a motion to exclude
evidence of any previous robberies defendant allegedly
committed. During the hearing on defendant’s motion to
suppress, the trial court heard voir dire testimony from
witnesses as to defendant’s involvement in two prior robberies
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occurring in Charlotte on 24 September 2007 and 8 October 2010,
as well as testimony from Kenneth Meaders—a co-defendant in the
2010 robbery. At the conclusion of the hearing, the trial court
reasoned that the evidence presented met the purpose of showing
a common scheme or plan, that the prior two robberies were
conducted in such a way as to be sufficiently similar to the
current robbery, and that the dates on which the prior robberies
occurred—24 September 2007 and 8 October 2010—were within
temporal proximity to the 1 November 2010 robbery. The court
further determined that the admission of such evidence would
survive a Rule 403 balancing test. Following the admission of
evidence regarding the two prior robberies, the trial court
provided the jury with a limiting instruction informing them
that “the [404(b)] evidence was received solely for the purpose
of showing that there existed in the mind of the defendant a
plan, scheme, system or design involving the crime charged in
this case.”
Again, here on appeal, defendant challenges the conclusion
that the robberies occurring 24 September 2007 and 8 October
2010 were sufficiently similar to the robbery occurring 1
November 2010 to be admissible as evidence pursuant to Rule
404(b).
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“Our Rules of Evidence require that in order for the prior
crime to be admissible, it must be relevant to the currently
alleged crime.” State v. Carpenter, 361 N.C. 382, 388, 646
S.E.2d 105, 110 (2007) (citations omitted).
[A]s to the “similarity” component, evidence
of a prior bad act must constitute
substantial evidence tending to support a
reasonable finding by the jury that the
defendant committed a similar act. Under
Rule 404(b) a prior act or crime is
‘similar’ if there are some unusual facts
present in both crimes.
Id. at 388, 646 S.E.2d at 110 (citations and quotations
omitted).
With regard to the robberies occurring 24 September 2007
and 8 October and 1 November 2010, instead of detailing the
events as recounted on the record, we summarize the salient
points for Rule 404(b) analysis. Each of the prior robberies
occurred outside of a DMV office. On each occasion, the victim
observed a firearm, usually a handgun used by the assailant.
The timing of the robberies was always after the close of
business between 5:30 and 6:00 p.m. In each case, the assailant
approached the DMV’s female business owner as she crossed a
parking lot while the owner was carrying the day’s receipts,
including a large amount of cash. After taking the deposit bag
or attaché in which the money was being carried, the assailant
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exited the vicinity by a vehicle driven by another person. The
trial court found, and we agree, that present in each robbery on
24 September 2007 and 8 October 2010 are unusual facts that are
sufficiently similar to the robbery occurring 1 November 2010 to
satisfy the similarity component of Rule 404(b). See id.
Therefore, we affirm the trial court’s admission of the 404(b)
evidence. Accordingly, defendant’s argument is overruled.
III
Defendant argues that his convictions for possession of a
firearm by a felon must be vacated because the evidence was
insufficient that defendant was the perpetrator. Specifically,
defendant contends that because the name on the judgment and
commitment form submitted to establish defendant’s prior felony
conviction did not reflect defendant’s name, the trial court
erred in failing to grant his motion to dismiss the charge of
possession of a firearm by a felon. We disagree.
Our Supreme Court set forth the
standard for when a trial court should
properly deny a motion to dismiss for
insufficient evidence:
[T]he trial court must determine
only whether there is substantial
evidence of each essential element of
the offense charged and of the
defendant being the perpetrator of the
offense. Substantial evidence is
relevant evidence that a reasonable
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mind might accept as adequate to
support a conclusion. In ruling on a
motion to dismiss, the trial court must
examine the evidence in the light most
favorable to the State, and the State
is entitled to every reasonable
inference and intendment that can be
drawn therefrom. Any contradictions or
discrepancies in the evidence are for
the jury to resolve and do not warrant
dismissal.
Under this standard, we affirm the denial of
a motion to dismiss for insufficient
evidence if the record discloses substantial
evidence of each essential element
constituting the offense for which the
accused was tried.
State v. Davis, 198 N.C. App. 146, 150—51, 678 S.E.2d 709, 713
(2009) (citations and quotations omitted).
Pursuant to North Carolina General Statutes, section 14-
415.1, “[i]t shall be unlawful for any person who has been
convicted of a felony to purchase, own, possess, or have in his
custody, care, or control any firearm . . . .” N.C. Gen. Stat.
§ 14-415.1(a) (2013). “In order to obtain a conviction for
possession of a firearm by a felon, the State must establish
that (1) the defendant has been convicted of or pled guilty to a
felony and (2) the defendant, subsequent to the conviction or
guilty [plea], possessed a firearm.” State v. Taylor, 203 N.C.
App. 448, 458, 691 S.E.2d 755, 764 (2010) (citations omitted).
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We note that defendant is correct: the name on the judgment
and commitment form was not defendant’s name and standing alone
the form would not support defendant’s conviction for possession
of a firearm by a felon. However, there was additional evidence
to support defendant’s prior felony conviction. The State
admitted into evidence and published to the jury a video of
defendant’s interview with Monroe Police Detective Glen Jenkins
on 10 November 2010. Defendant was asked “what kind of trouble
have you been in before?” to which defendant responded, “When I
was nineteen years old, I caught an armed robbery.” Later,
Detective Jenkins asked defendant, “Do you own any firearms?”;
defendant responded, “Man, I’m a convicted felon.” The State
also proffered a warrant for arrest issued 18 February 1997 by a
Mecklenburg County Magistrate, charging Melvin Lee Luckey, born
5 August 1977, with robbery with a dangerous weapon, a felony.
The State presented an indictment issued against Melvin Lee
Luckey on 10 March 1997 for the felony charge of robbery with a
dangerous weapon. The State also presented a Transcript of Plea
form reflecting Melvin Lee Luckey’s proffer of a guilty plea to
two counts of felony robbery with a dangerous weapon.
We find this to be substantial evidence of the requirement
that defendant pled guilty to and was convicted of a felony
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prior to possessing a firearm in relation to the 1 November 2010
armed robbery. Therefore, we affirm the trial court’s denial of
defendant’s motion to dismiss for insufficient evidence of the
existence of a prior felony conviction by defendant.
Defendant’s argument is overruled.
No error.
Chief Judge McGEE and Judge STROUD concur.
Report per Rule 30(e).