State v. Vann , 261 N.C. App. 724 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1158
Filed: 2 October 2018
Mecklenburg County, No. 14 CRS 231999
STATE OF NORTH CAROLINA
v.
JUHAROLD ZAEDWARD VANN
Appeal by defendant from judgment entered 24 February 2017 by Judge
Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of
Appeals 6 September 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General David
D. Lennon, for the State.
Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.
TYSON, Judge.
Juharold Zaedward Vann (“Defendant”) appeals from judgment entered,
following his jury’s conviction of assault with a deadly weapon with intent to kill
inflicting serious injury. We find no error.
I. Factual Background
The State’s evidence tended to show on 11 August 2014, Mahmoud Albdoor
(“Albdoor”) was working at his convenience store, “Southside Mart,” with his nephew,
Jamil Swedat (“Swedat”). Shortly after 1:00 p.m., Defendant entered the Southside
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Opinion of the Court
Mart and attempted to buy a cigar wrapper from Swedat, who stood at the cash
register. Defendant did not have enough money to purchase the product, and Swedat
refused to sell him the wrapper. Defendant became upset and began arguing with
Swedat. After a brief argument with Swedat, Defendant knocked over a Slim Jim
dehydrated jerky stick display on the counter, ran out of the store, and turned right
upon exiting.
Albdoor testified he was also standing behind the counter, approximately five
to six feet away from Defendant, and observed his entire altercation with Swedat.
Albdoor identified Defendant as the person who had argued with Swedat on 11
August 2014. Defendant admitted to police officers he had engaged in a verbal
altercation with Swedat and had knocked over a Slim Jim counter display at the
Southside Mart.
Approximately one hour later, a man entered the Southside Mart with an
orange shirt covering his face and fired four to five shots from a black handgun at
Swedat, with one bullet striking him in the right side. Albdoor testified after the
shooting stopped, he looked up from behind the counter and observed the side of the
shooter’s face as he fled from the store. Albdoor testified the shooter ran towards the
right upon exiting the Southside Mart, just as Defendant had done earlier that day.
Albdoor also identified Defendant as the shooter.
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Swedat gave a written statement to Charlotte-Mecklenburg Police Officer
Quentin Blakeney on 11 August 2014 and identified Defendant as the individual who
had shot him earlier that day. A redacted version of this statement was read to the
jury. Because Defendant had gained weight, wore glasses, and “dressed nice” at trial,
Swedat initially did not recognize Defendant in court. Swedat identified Defendant
as the shooter on the second day of his testimony.
Charlotte-Mecklenburg Police Officer Timothy Kiefer testified on 17 August
2014, he responded to a call for service at 3463 Markland Drive in Charlotte, which
was located approximately two hundred yards from the Southside Mart. Upon
arrival, Officer Kiefer spoke with a resident of that address who had found a 9
millimeter handgun wrapped in a black and white striped Polo shirt and an orange
T-shirt behind his trash cans. At trial, Kelly Shea, a DNA analyst with the Charlotte-
Mecklenburg crime laboratory, testified that she was unable to obtain any useable
DNA from either the pistol or the shirts.
Todd Nordhoff, a Charlotte-Mecklenburg crime laboratory firearm and
toolmark examiner, was admitted as an expert in firearms and toolmark
identification. Nordhoff testified the pistol recovered by Officer Kiefer was a Star
semi-automatic pistol chambered for 9 millimeter Luger ammunition. Nordhoff
further testified the four discharged shell cases recovered at the scene had been fired
by that pistol.
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Opinion of the Court
Defendant testified at trial and admitted to arguing with Swedat and knocking
over the Slim Jim counter display at the Southside Mart. Defendant denied being
the gunman and testified that after the verbal altercation he went to his
grandfather’s house at 2921 Markland Drive, which was located approximately ten
minutes away from the Southside Mart. Defendant testified he asked his grandfather
for a ride to Lexington, North Carolina, where Defendant had a job the next day.
Fifteen minutes after arriving at his grandfather’s house, his grandfather took
Defendant to a Wendy’s restaurant located approximately ten minutes away and then
drove Defendant to Lexington.
The State sought to introduce, over Defendant’s objections, portions of a
telephone conversation purportedly between Defendant and his grandmother
recorded from the Mecklenburg County Jail on 1 September 2014. The trial court
conferred with counsel and announced that it would sustain Defendant’s objections
to certain portions of the telephone conversation.
A portion of the conversation allowed into evidence by the trial court included
Defendant’s grandmother questioning him over whether the police had really found
the gun or were merely just saying they had. Defendant argued to her the police
officers must have the gun, because the gun had been found with the orange shirt
and Polo shirt. Defendant added there was no way the police would have known the
shirts were with the gun, unless the police had actually found them.
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Opinion of the Court
Three days after the shooting, Defendant was arrested for assault with a
deadly weapon with intent to kill inflicting serious injury and was subsequently
indicted on the same charge on 2 September 2014. Defendant entered a plea of not
guilty. On 24 February 2017, the jury returned a verdict of guilty of one count of
assault with a deadly weapon with intent to kill inflicting serious injury. Defendant
was sentenced in the presumptive range to a minimum of 70 months and a maximum
of 96 months imprisonment, with 512 days of credit for pre-sentence confinement.
Defendant gave notice of appeal in open court.
II. Jurisdiction
Jurisdiction of right lies in this Court by timely appeal from final judgment
entered by the superior court, following a jury’s verdict pursuant to N.C. Gen. Stat. §
7A-27(b)(1) (2017) and N.C. Gen. Stat. § 15A-1444(a) (2017).
III. Issues
Defendant asserts the trial court erred by (1) not requiring the State to file a
suppression motion regarding Dr. Lori R. Van Wallendael’s (“Dr. Van Wallendael”)
testimony; (2) partially sustaining the State’s objection to Dr. Van Wallendael’s
testimony regarding the factors affecting the reliability of eyewitness identification;
and, (3) excluding portions of Defendant’s 1 September 2014 telephone conversation.
IV. Suppression Motion
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Defendant argues the trial court erred by failing to require the State to “file a
written pre-trial motion to suppress or motion in limine, pursuant to [N.C. Gen. Stat.
§ 15-977.]” Defendant did not raise this argument at trial and has failed to preserve
this argument for review on appeal.
Our Supreme Court has long held that where a
theory argued on appeal was not raised before the trial
court, the law does not permit parties to swap horses
between courts in order to get a better mount in the
appellate courts. . . . The defendant may not change his
position from that taken at trial to obtain a steadier mount
on appeal.
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (quotations
omitted); see State v. Monk, 132 N.C. App. 248, 254, 511 S.E.2d 332, 336, disc. review
denied, 350 N.C. 845, 539 S.E.2d 1 (1999) (“In order to preserve a question for
appellate review, a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the context.” (citation
omitted)). Defendant failed to raise this argument at trial and cannot assert this
argument for the first time on appeal. This assignment of error is dismissed.
V. Exclusion of Expert Witness Testimony
Defendant argues the trial court erred by partially sustaining the State’s
objection to expert testimony by a UNC-Charlotte professor, Dr. Lori Van Wallendael,
regarding the factors affecting the reliability of eyewitness identification.
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A. Standard of Review
“This court has held that the admission of expert testimony regarding memory
factors is within the trial court’s discretion, and the appellate court will not intervene
where the trial court properly appraises probative and prejudicial value of the
evidence under Rule 403 of the Rules of Evidence.” State v. Cotton, 99 N.C. App. 615,
621, 394 S.E.2d 456, 459 (1990) (citing State v. Knox, 78 N.C. App. 493, 495-96, 337
S.E.2d 154, 156 (1985)). The Court in Knox stated the following standard for
determining the admissibility of such testimony:
Expert testimony is properly admissible when it
“can assist the jury to draw certain inferences from facts
because the expert is better qualified.” The test for
admissibility is whether the jury can receive “appreciable
help” from the expert witness. Applying this test requires
balancing the probative value of the testimony against its
potential for prejudice, confusion, or undue delay. See N.C.
Gen. Stat. 8C-1, Rule 403. Even relevant evidence may be
excluded if its probative value is outweighed by the danger
that it will confuse or mislead the jury. The court “is
afforded wide latitude of discretion when making a
determination about the admissibility of expert testimony.”
Knox, 78 N.C. App. at 495, 337 S.E.2d at 156 (citations omitted).
This Court has also noted, “expert testimony on the credibility of a witness is
inadmissible[.]” State v. Davis, 106 N.C. App. 596, 602, 418 S.E.2d 263, 267 (1992)
(citations omitted). Our Supreme Court has held: “When the jury is in as good a
position as the expert to determine an issue, the expert’s testimony is properly
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excludable because it is not helpful to the jury.” Braswell v. Braswell, 330 N.C. 363,
377, 410 S.E.2d 897, 905 (1991) (citation omitted).
B. Analysis
Dr. Lori Van Wallendael was qualified and accepted by the court as an expert
witness in the field of memory perception and eyewitness identification. Defendant
sought to have Dr. Van Wallendael testify on his behalf concerning whether any
factors were present that could have affected Albdoor’s and Swedat’s identifications
of Defendant as the shooter. The State objected.
The trial court conducted a voir dire hearing to determine whether to admit or
exclude Dr. Van Wallendael’s testimony. Dr. Van Wallendael identified four factors
in the present case which could have affected Albdoor’s and Swedat’s identifications
of Defendant: (1) the time factor, (2) the disguise factor, (3) the stress factor, and (4)
the weapon focus effect. See generally Hon. D. Duff McKee, Challenge to Eyewitness
Identification Through Expert Testimony, 35 Am. Jur. Proof of Facts 3d 1, § 10 (1996
& Supp. 2018) (describing psychological factors affecting eyewitness identification).
Dr. Van Wallendael related that the time factor means the likelihood of an
accurate identification increases the longer in time a witness has to view the
perpetrator’s face. For the second factor, a disguise refers to anything covering the
face of the perpetrator, which decreases the chances of an accurate identification later
by the eyewitness. The stress factor states that stress, especially from violent crimes,
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Opinion of the Court
can significantly reduce an eyewitness’s ability to remember accurately. Dr. Van
Wallendael testified that studies on the weapon focus factor have shown people
confronted with a weapon tend to concentrate their attention on the weapon itself,
and not the individual holding the weapon, which decreases the likelihood of an
accurate identification of the assailant or shooter later. Psychologists refer to this
phenomenon as the weapon focus effect. See id.
After hearing arguments from both sides, the trial court sustained the State’s
objection to Dr. Van Wallendael’s opinion testimony concerning the time and disguise
factors. The trial court noted these two concepts “are such elementary, common sense
conclusions that it would be of little if any benefit to the jury to hear someone
purporting to be an expert to espouse those opinions.”
The trial court, however, did allow Dr. Van Wallendael to testify on the stress
factor and weapon focus effect, noting expert testimony on these two concepts “could
be helpful to the jury.” In addition, the trial court strongly admonished the defense
and Dr. Van Wallendael not to express any opinion regarding the credibility or
reliability of a witness.
Defendant has failed to show any abuse of discretion by the trial court in
partially sustaining the State’s objection. The trial court properly found the time and
disguise concepts were “common sense conclusions that . . . would be of little if any
benefit to the jury” and excluded expert testimony on these two factors. See Smith v.
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Pass, 95 N.C. App. 243, 251, 382 S.E.2d 781, 786 (1989) (“Rule 702 permits a witness
qualified as an expert to offer opinion testimony about his or her area of expertise if
the trier of fact determines such testimony would be helpful to the jury.” (emphasis
supplied)).
The trial court correctly found expert testimony on these two factors would be
of little help to the jury and strongly admonished Dr. Van Wallendael not to express
any opinion concerning the credibility or reliability of a witness, to prevent her
testimony from invading the province of the jury. See State v. Scott, 323 N.C. 350,
353, 372 S.E.2d 572, 575 (1988) (“The credibility of the witnesses and the weight to
be given their testimony is exclusively a matter for the jury.” (citation omitted)).
After the State objected, the trial court excused the jury, conducted a voir dire
examination of Dr. Van Wallendael to determine the substance of her testimony, and
heard and considered arguments of counsel before partially sustaining the State’s
objection. The trial court did allow Dr. Van Wallendael to testify to both the stress
factor and weapon focus effect, noting these two concepts “could be helpful to the
jury.” Defendant has not shown the trial court abused its discretion in partially
sustaining the State’s objection to Dr. Van Wallendael’s testimony.
Although the trial court did not make a specific finding that the probative value
of this admitted testimony outweighed its prejudicial effect, the procedure it followed
demonstrates the trial court conducted its discretionary balancing test under Rule
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403 and its ruling was “the result of a reasoned decision.” State v. Riddick, 315 N.C.
749, 756, 340 S.E.2d 55, 59 (1986) (citation omitted) (“A trial court may be reversed
for abuse of discretion only upon a showing that its ruling was manifestly
unsupported by reason and could not have been the result of a reasoned decision.”).
We defer to the trial court’s exercise of discretion and its “reasoned decision.” Id.
Nothing in the trial court’s ruling prevented Defendant from probing the time and
disguise factors upon cross-examination of the State’s witnesses and to bring forth
and argue any asserted flaws and doubts in the victim’s identification of Defendant
as the perpetrator of the crime due to the length of time of the crime or the impact of
any disguise the shooter wore. Defendant’s argument is overruled.
VI. Exclusion of Defendant’s Telephone Conversation
Defendant argues the trial court erred by allowing the State to offer portions
of Defendant’s 1 September 2014 telephone call with his grandmother into evidence,
but refusing to allow Defendant to offer other portions from the same telephone call
into evidence. Defendant asserts the exclusion of portions of the telephone call
violated (1) the Rule of Completeness and (2) Defendant’s constitutional “right to fully
confront and cross-examine the witnesses against him.”
A. Rule of Completeness
N.C. Gen. Stat. § 8C-1, Rule 106 (2017) codifies the common law Rule of
Completeness and states: “When a writing or recorded statement or part thereof is
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introduced by a party, an adverse party may require him at that time to introduce
any other part or any other writing or recorded statement which ought in fairness to
be considered contemporaneously with it.”
Our Supreme Court reviewed and addressed Rule 106 in State v. Thompson
and noted North Carolina’s rule is identical to the Federal rule, which has been
interpreted and applied in many federal courts’ decisions. 332 N.C. 204, 219, 420
S.E.2d 395, 403 (1992).
The Court in Thompson set out the following principles as our standard of
review:
The lessons of the federal decisions discussing Rule
106 are well settled. Rule 106 codifies the standard
common law rule that when a writing or recorded
statement or a part thereof is introduced by any party, an
adverse party can obtain admission of the entire statement
or anything so closely related that in fairness it too should
be admitted. The trial court decides what is closely related.
The standard of review is whether the trial court abused its
discretion. The purpose of the ‘completeness’ rule codified
in Rule 106 is merely to ensure that a misleading
impression created by taking matters out of context is
corrected on the spot, because of the inadequacy of repair
work when delayed to a point later in the trial.
Federal decisions also make [it] clear that Rule 106
does not require introduction of additional portions of the
statement or another statement that are neither
explanatory of nor relevant to the passages that have been
admitted.
Id. at 219-20, 420 S.E.2d at 403-04 (emphasis supplied) (citations and internal
quotation marks omitted).
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The admitted portions of the telephone conversation between Defendant and
his grandmother tend to show Defendant possessed knowledge of the crime that only
the shooter would know. Defendant sought to introduce an additional portion of the
telephone conversation, in which Defendant’s grandmother said “you didn’t do it,”
and Defendant responded, “I know.”
The State objected on grounds that the trial court had already ruled only the
portion of the telephone conversation previously agreed upon by both parties was
admissible, which did not include the above exchange. Defendant argued the door
had been opened by the admission of the agreed-upon limited portion of the
conversation to admit the proffered statements.
The trial court sustained the State’s objection to the introduction of this portion
of the conversation and noted if it ruled the agreed-upon portion of the conversation
opened the door for any other part, that might be grounds for the State to demand
admission of other clearly inadmissible parts of the conversation. Defendant’s
assertion that the trial court violated the Rule of Completeness and abused its
discretion in sustaining the State’s objection and excluding other portions of the 1
September 2014 telephone conversation is without merit.
This portion of the conversation admitted before the jury dealt largely with
Defendant’s explanation to his grandmother of the evidence the State had amassed
against him. Defendant must demonstrate the statements concerning whether and
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how the police had actually found the gun were taken out of context when introduced
into evidence. Defendant’s exculpatory statement to his grandmother was “neither
explanatory of nor relevant to” his admitted statements regarding whether the police
found the gun. See id. Presuming Defendant’s conversation evinces knowledge of the
crime, Defendant did not admit to the crime during the conversation and his
response, “I know,” to his grandmother’s statement was not explanatory of or relevant
to his other discussion of the State’s recovery and possession of the gun.
In excluding this portion of the telephone conversation, the trial court correctly
expressed concerns that admission of this not agreed-upon portion of the telephone
call could open the door to other portions of the conversation, which both parties had
previously agreed were inadmissible. Defendant has failed to show the trial court
abused its discretion when it sustained the State’s objection to this portion of the 1
September 2014 telephone conversation. Defendant’s arguments are overruled.
B. Confrontation Clause Claim
Defendant contends it was reversible error for the trial court to exclude the
aforementioned portion of the 1 September 2014 telephone call because it violated his
constitutional right to fully confront and cross-examine the witnesses against him.
See U.S. Const. amend. VI; N.C. Const. art. I, § 23. Defendant has failed to preserve
this issue for appeal.
1. Standard of Review
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Our Supreme Court has stated:
It is well established that a defendant may waive the
benefit of statutory or constitutional provisions by express
consent, failure to assert it in apt time, or by conduct
inconsistent with a purpose to insist upon it. It follows that
in 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. In
addition, it must affirmatively appear on the record that
the issue was passed upon by the trial court.
State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980) (citations omitted).
2. Analysis
Defendant referenced the Confrontation Clause briefly in his objection to
authentication of the 1 September 2014 telephone conversation. The trial court and
parties conferred and the trial court partially sustained the Defendant’s objection.
After the trial court ruled that certain portions of the telephone conversation would
be inadmissible, Defendant’s counsel stated, “I’m fine with the other portion.”
Mecklenburg County Sheriff’s Office Sergeant Thomas Shields then testified to the
authenticity of the recorded phone conversation and the agreed-upon portions were
played before the jury.
Later during cross-examination of Sergeant Shields, Defendant attempted to
question Sergeant Shields about the statement counsel had previously agreed, and
the court had ruled, to be inadmissible. The State objected. The trial court heard
arguments from both sides and sustained the State’s objection. During this exchange,
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defense counsel did not specifically assert Defendant’s rights under the Confrontation
Clause. Defendant’s failure to raise the Confrontation Clause here is a waiver of
these rights. See id.; see also Monk, 132 N.C. App. at 254, 511 S.E.2d at 336 (“‘In order
to preserve a question for appellate review, a party must have presented to the trial
court a timely request, objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were not apparent from
the context.’” (citation omitted)). This argument is dismissed.
VII. Conclusion
Defendant failed to preserve for review procedural issues regarding the State’s
objection to Dr. Van Wallendael’s testimony. The trial court did not abuse its
discretion by partially sustaining the State’s objection to Dr. Van Wallendael’s
testimony regarding the commonsense time and disguise factors presumably
affecting the reliability of eyewitness identification. Defendant was free to probe
these factors from the State’s witnesses and argue to the jury.
The trial court also did not abuse its discretion by excluding portions of
Defendant’s 1 September 2014 jailhouse telephone conversation with his
grandmother, after review, agreement and consent of counsel. Defendant failed to
renew or preserve for review constitutional issues on the exclusion of the
aforementioned conversation. Defendant received a fair trial, free from prejudicial
errors he preserved and argued. It is so ordered.
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NO ERROR.
Judges INMAN and BERGER concur.
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