State v. Patterson , 249 N.C. App. 659 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1145
Filed: 4 October 2016
Mecklenburg County, Nos. 14 CRS 12560-61; 201911
STATE OF NORTH CAROLINA,
v.
WESLEY PATTERSON
Appeal by defendant from judgments entered 19 March 2014 by Judge Robert
T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals
27 April 2016.
Attorney General Roy Cooper, by Assistant Attorney General Alesia Balshakova,
for the State.
Glover & Peterson, P.A., by Ann B. Petersen, for defendant-appellant.
McCULLOUGH, Judge.
Wesley Patterson (“defendant”) appeals from judgments entered upon his
convictions for breaking and entering, habitual larceny, and for attaining habitual
felon status. For the following reasons, we find no error.
I. Background
On 27 January 2014, a Mecklenburg County Grand Jury indicted defendant in
file number 14 CRS 201911 on one count of felonious larceny for stealing a laptop
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Opinion of the Court
computer and iPad valued in excess of $1,000.00. Additional indictments returned
on 31 March 2014 charged defendant for attaining habitual felon status in file
number 14 CRS 12560 and for habitual larceny in file number 14 CRS 12561.
Superseding indictments adding one count of felonious breaking and entering and
one count of felonious possession of stolen goods in file number 14 CRS 201911 were
later returned on 4 August 2014 and 8 December 2014. In total, defendant was
indicted for felonious larceny, felonious breaking and entering, felonious possession
of stolen goods, habitual felon status, and habitual larceny.1
Pretrial matters, including how the court should proceed with the habitual
larceny charge, were addressed on 16 and 17 March 2015. Those pretrial matters
included the State’s motion to join defendant’s charges for trial and defendant’s
motion to dismiss on the ground that the crime of habitual misdemeanor larceny
subjects defendant to double jeopardy. The State’s motion to join was allowed and
defendant’s motion to dismiss was denied. The case then proceeded to trial before
the Honorable Robert T. Sumner in Mecklenburg County Superior Court on
17 March 2015.
During a break in jury selection, and prior to the jury being empaneled,
defendant admitted to the prior misdemeanor larceny convictions needed to establish
1Habitual larceny raises a misdemeanor larceny to a felony if the accused has four prior
misdemeanor larcenies. See N.C. Gen. Stat. § 14-7 (2015).
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habitual larceny in order to keep evidence of the prior larcenies from being presented
at trial.
The State’s evidence at trial tended to show the following: On
14 January 2014, a man entered the offices of First Financial Services, Inc. (“First
Financial”), in the Fairview One Center on Fairview Road in Charlotte (the “office
building”). Brian Gillespie, a loan officer employed by First Financial, observed the
man, whom he had never seen before, coming out of his boss’ office. Gillespie and the
man made eye contact as the man surveyed the office, but they did not speak because
Gillespie was on the phone with a customer. The man then left. Gillespie described
the man as tall, slender, African-American, and wearing a newsboy cap with a button
in the front.
Approximately thirty minutes later, David Hay, Gillespie’s boss, returned to
his office from a meeting. Gillespie then went to Hay’s office to inquire who the man
was. Hay was unaware anyone had been in his office and, at that time, noticed his
computer bag containing his MacBook Air laptop and iPad was missing. Hay began
searching the office building and parking garage for anyone matching the description
provided by Gillespie before realizing that he could track his iPad through an
application on his cell phone. Hay then used his phone to track his iPad moving on
Old Pineville Road. Hay and his coworker, Neil Nichols, then drove to a strip mall
across the road from the Woodlawn light rail station where the tracking application
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indicated the iPad was. As Hay and Nichols turned into the parking lot, Hay saw the
man walking with the computer bag over his shoulder. At trial, Hay identified the
man as defendant.
As defendant headed across the street towards the light rail station, Nichols
called 911 while Hay flagged down a nearby police officer. That officer, Ricardo
Coronel, then approached defendant, who was sitting on a bench at the Woodlawn
light rail station with the computer bag next to him. Officer Coronel first asked
defendant if the computer bag was his, but defendant did not respond. Officer
Coronel then asked for defendant’s identification. After verifying defendant’s
identification and that the computer bag belonged to Hay, Officer Coronel arrested
defendant.
Gillespie was then summoned to the Woodlawn light rail station to identify
defendant. Upon the arrival of Gillespie, the police conducted a “show-up”
identification, during which Gillespie positively identified defendant as the man he
had seen exiting Hay’s office.
Defendant was then taken to the Wilkinson Boulevard Police Station, where
he was interviewed by Officer James Crosby and Detective Tammy Post. A redacted
version of the videotaped interview was published to the jury at trial. The State also
published surveillance video footage from the interior of the light rail train and of the
Woodlawn light rail platform. Defendant initially objected that the video lacked
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Opinion of the Court
foundation, but after a voir dire examination of the light rail employee and lengthy
bench conference, the objection was overruled. Ray Alan Thompson, a safety
coordinator for the Charlotte Area Transit, played the surveillance footage for the
jury. Neither the State nor the Defense commented on the video.
The State then played the surveillance footage for a second time during the
testimony of Detective Post. During the playing of the surveillance footage, the State
asked Detective Post to indicate when she recognized someone. Without objection,
Detective Post identified defendant in the surveillance footage from inside the train.
When Detective Post further testified that defendant was carrying the computer bag,
defendant offered a general objection that was overruled. Detective Post then
continued to testify that she could tell it was defendant in the video because she was
familiar with defendant and because defendant is very tall. When the State asked
Detective Post if “[defendant was] wearing the same clothing [that] he was wearing
when [she later] interviewed him[,]” defendant’s objection on the basis of “leading”
was sustained. Detective Post then continued to testify as surveillance footage of the
train and platform recorded by various cameras at different angles was shown.
Detective Post repeatedly identified defendant and indicated defendant was holding
the computer bag in the surveillance footage. Detective Post also testified that
defendant was wearing the same clothes in surveillance footage that he wore when
she observed him in the back of a police car and when she interviewed him.
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The following day, the State also introduced into evidence a still image showing
a person exiting the office building on the day the computer bag was taken. When
Detective Post was asked who the individual in the photograph was, the defense
objected and the objection was overruled. Detective Post then identified defendant
in the photograph. The State followed up on the identification by asking Detective
Post if anything was peculiar about defendant in the picture. Again, defendant
objected and the objection was overruled. Detective Post then responded that a
rectangular object, consistent with the shape of the computer bag, appeared to be
tucked under defendant’s shirt. After this testimony, both the State and defendant
rested.
On 19 March 2015, the jury returned verdicts finding defendant guilty of
felonious larceny pursuant to unlawful entering, felonious entering, and felonious
possession of stolen goods or property pursuant to unlawful entering. Defendant then
pled guilty to attaining habitual felon status as part of a plea arrangement whereby
the State agreed to consolidate defendant’s convictions into a single judgment for
sentencing. Upon defendant’s convictions and the plea arrangement, the trial judge
consolidated the breaking and entering, habitual larceny, and habitual felon offenses
and entered a single judgment sentencing defendant to a term of 110 to 144 months.
The trial judge arrested judgment on the felony larceny and possession of stolen goods
or property offenses. Defendant gave notice of appeal.
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II. Discussion
Defendant asserts that this case turned on whether the evidence was sufficient
to convince the jury that he was the person seen in the office building and that the
State’s evidence placing him in the office building was the weakest part of the State’s
case. Thus, defendant claims the State elicited identification testimony from
Detective Post to bolster its case.
The sole issue on appeal is whether the trial court erred in allowing portions
of Detective Post’s testimony into the evidence at trial. Specifically, defendant
contends the trial court erred in allowing Detective Post to (1) identify defendant in
light rail surveillance footage, (2) testify that defendant could be seen holding David
Hay’s computer bag in the surveillance footage, and (3) identify defendant in the still
image from the office building. Defendant contends that the challenged testimony of
Detective Post was inadmissible and prejudicial lay witness opinion testimony
because “Detective Post was in no better position than the jury to evaluate the
evidence[.]”
The N.C. Rules of Evidence provide that “[i]f the witness is not testifying as an
expert, his testimony in the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2015). “Ordinarily, opinion evidence of a
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non-expert witness is inadmissible because it tends to invade the province of the
jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980). But, lay opinion
testimony identifying a person in a photograph or videotape may be allowed “ ‘where
such testimony is based on the perceptions and knowledge of the witness, the
testimony would be helpful to the jury in the jury’s fact-finding function rather than
invasive of that function, and the helpfulness outweighs the possible prejudice to the
defendant from admission of the testimony.’ ” State v. Belk, 201 N.C. App. 412, 415,
689 S.E.2d 439, 441 (2009) (quoting State v. Buie, 194 N.C. App. 725, 730, 671 S.E.2d
351, 354-55 (2009), disc. review denied, 363 N.C. 375, 679 S.E.2d 135 (2009)), disc.
review denied, 364 N.C. 129, 695 S.E.2d 761 (2010). In Belk, this Court identified the
following factors as relevant in the above analysis:
(1) the witness’s general level of familiarity with the
defendant’s appearance; (2) the witness’s familiarity with
the defendant’s appearance at the time the surveillance
photograph was taken or when the defendant was dressed
in a manner similar to the individual depicted in the
photograph; (3) whether the defendant had disguised his
appearance at the time of the offense; and (4) whether the
defendant had altered his appearance prior to trial.
Id. Applying these factors in Belk, this Court held that the trial court erred by
admitting an officer’s lay opinion testimony identifying the defendant as the person
depicted in surveillance video footage “[b]ecause [the o]fficer . . . was in no better
position than the jury to identify [the d]efendant as the person in the surveillance
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video[.]” Id. at 414, 689 S.E.2d at 441. This Court further found the error to be
prejudicial and remanded for a new trial. Id.
When a trial court’s ruling on the admissibility of lay witness opinion
testimony is properly preserved for appellate review, we review for an abuse of
discretion. See State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395
(2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). An abuse of
discretion occurs when the trial judge’s decision “lacked any basis in reason or was so
arbitrary that it could not have been the result of a reasoned decision.” Williams v.
Bell, 167 N.C. App. 674, 678, 606 S.E.2d 436, 439 (quotation marks and citation
omitted), disc. review denied, 359 N.C. 414, 613 S.E.2d 26 (2005). Thus, as this Court
recognized in Belk, “we must uphold the admission of [an officer’s] lay opinion
testimony if there was a rational basis for concluding that [the officer] was more likely
than the jury [to correctly] identify [the d]efendant as the individual in the
surveillance footage.” Belk, 201 N.C. App. at 417, 689 S.E.2d at 442.
Yet, as an initial matter, we must decide whether defendant preserved these
issues for appeal. The State contends defendant did not.
“In order to preserve a question for appellate review, a party must have
presented the trial court with a timely request, objection or motion, stating the
specific grounds for the ruling sought if the specific grounds are not apparent.” State
v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P.
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10(a)(1). “A general objection, when overruled, is ordinarily not adequate unless the
evidence, considered as a whole, makes it clear that there is no purpose to be served
from admitting the evidence.” State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20
(1996). “Where evidence is admitted without objection, the benefit of a prior objection
to the same or similar evidence is lost, and the defendant is deemed to have waived
his right to assign as error the prior admission of the evidence.” State v. Wilson, 313
N.C. 516, 532, 330 S.E.2d 450, 461 (1985). Similarly, “[a] defendant waives any
possible objection to testimony by failing to object to [the] testimony when it is first
admitted.” State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000).
As indicated above, all the challenged testimony in the present case was
elicited by the State during the testimony of Detective Post. Upon review of the
transcript, it is clear that defendant waived review of his challenges to Detective
Post’s testimony regarding what she observed in the surveillance footage from the
light rail train and light rail platform. First, there was never an objection to Detective
Post’s repeated identifications of defendant in the surveillance footage. Second,
although defendant did object the first time Detective Post testified that defendant
was carrying the computer bag in the surveillance footage, that objection was general
and the same testimony was later admitted without objection. Concerning Detective
Post’s testimony based on the still image from the office building, we find the
preservation issue to be a closer call because defendant objected to both questions
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about the photograph. However, those objections were general and “the evidence,
considered as a whole, [is not] clear that there is no purpose to be served from
admitting the evidence.” Jones, 342 N.C. at 535, 467 S.E.2d at 20.
Nevertheless, because the preservation of the issues concerning Detective
Post’s identification of defendant in the still image is a close call, we feel compelled
to note that even if defendant had properly preserved the issues for appellate review
and the testimony was determined to be admitted in error, defendant is entitled to a
new trial only if he was prejudiced by the error.
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. . . .
N.C. Gen. Stat. § 15A-1443(a) (2015). Upon review of the evidence in this case, we
hold defendant was not prejudiced by any error in allowing Detective Post’s
testimony. Unlike in Belk, where the State’s case rested exclusively on the
surveillance video and the officer’s identification testimony from the video, 201 N.C.
App. at 418, 689 S.E.2d at 443, the State in the present case presented sufficient
evidence besides Detective Post’s testimony to allow the jury to determine defendant
was at the office building and to identify defendant as the perpetrator.
First, the jury was afforded the opportunity to view the surveillance footage
and the still image. As defendant notes in his argument that Detective Post was in
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no better position to identify defendant than the jury, the jury could compare
defendant’s appearance in the surveillance footage and the still image to the
appearance of defendant in the videotaped interview conducted immediately after
defendant’s arrest. Second, the State presented other evidence tending to place
defendant in the office building, including an identification of defendant by Gillespie.
Specifically, Gillespie testified that he observed a man exit Hay’s office and later
identified that man as defendant. Defendant acknowledges Gillespie’s testimony, but
contends that the testimony by itself could be considered skeptically; and further
asserts the suggestive nature of “show-up” identifications increases the potential for
unreliability.
Defendant is correct that courts have criticized the use of show-up
identifications because the practice of showing suspects singly to persons for the
purpose of identification may be inherently suggestive. State v. Oliver, 302 N.C. 28,
44-45, 274 S.E.2d 183, 194 (1981). Yet, show-up identifications “are not per se
violative of a defendant’s due process rights.” State v. Turner, 305 N.C. 356, 364, 289
S.E.2d 368, 373 (1982) (citing Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140
(1977)). “An unnecessarily suggestive show-up identification does not create a
substantial likelihood of misidentification where under the totality of the
circumstances surrounding the crime, the identification possesses sufficient aspects
of reliability.” Id. We have explained as follows:
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Our courts apply a two-step process for determining
whether an identification procedure was so suggestive as
to create a substantial likelihood of irreparable
misidentification. First, the Court must determine
whether the identification procedures were impermissibly
suggestive. Second, if the procedures were impermissibly
suggestive, the Court must then determine whether the
procedures created a substantial likelihood of irreparable
misidentification.
State v. Rawls, 207 N.C. App. 415, 423, 700 S.E.2d 112, 118 (2010) (internal quotation
marks and citations omitted). When determining if there is a substantial likelihood
of irreparable misidentification,
courts apply a totality of the circumstances test. For both
in-court and out-of-court identifications, there are five
factors to consider in determining whether an
identification procedure is so inherently unreliable that the
evidence must be excluded from trial: (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. Against these factors is to be
weighed the corrupting effect of the suggestive
identification itself.
Id. at 424, 700 S.E.2d at 118-19 (internal quotation marks and citations omitted).
In this case, Gillespie was summoned to the light rail station to identify
someone detained as a suspect. That person, defendant, was then brought before
Gillespie from the back of a police car for identification. This process was unduly
suggestive. We, however, do not conclude that there was a substantial likelihood of
irreparable misidentification in this case where Gillespie observed defendant exit
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Hay’s office, observed defendant for several minutes and even made eye contact with
defendant, was able to give a good description of defendant, did not second guess his
identification, and the identification occurred within hours after he had observed him
in the office building. Thus, we are not persuaded that Gillespie’s testimony was
insufficient to allow the jury to find that defendant was seen exiting Hay’s office.
Moreover, the evidence shows that Hay immediately noticed a man with his computer
bag when he arrived at the strip mall while tracking his iPad and later identified that
man as defendant. The evidence also shows that defendant was sitting on a bench
with the computer bag containing Hay’s laptop and iPad when he was approached
and detained by police.
In light of the evidence presented at trial showing that defendant was present
at the office building and was seen with the computer bag in his possession, even if
Detective Post’s testimony was admitted in error, defendant was not prejudiced
because there is not a reasonable possibility that a different result would have been
reached at trial.
III. Conclusion
For the reasons discussed above, we hold defendant failed to preserve the
issues for appeal by proper objections at trial; but, in any event, any error by the trial
court in admitting the testimony of Detective Post was not prejudicial given the other
identification evidence presented at trial.
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NO ERROR.
Judges ELMORE and INMAN concur.
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