State v. Miller ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-453
Filed 20 June 2023
Mecklenburg County, Nos. 18CRS217142-43
STATE OF NORTH CAROLINA
v.
SANTARIO KENDELL MILLER
Appeal by Defendant from judgments entered 9 November 2021 by Judge
Gregory R. Hayes in Mecklenburg County Superior Court. Heard in the Court of
Appeals 10 January 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Brian
D. Rabinovitz, for the State.
Mecklenburg County Public Defender Kevin P. Tully, by Assistant Public
Defender Julie Ramseur Lewis, for Defendant.
COLLINS, Judge.
Defendant appeals from judgments entered upon jury verdicts of guilty of first
degree murder on the basis of felony murder and possession of a firearm by a felon.
Defendant argues that the trial court plainly erred by admitting certain portions of a
redacted recording of an interview between law enforcement and Defendant and
erred in calculating Defendant’s prior record level. Even assuming for the sake of
argument that the challenged portions of the interview were erroneously admitted,
their admission did not rise to the level of plain error. Furthermore, the trial court
STATE V. MILLER
Opinion of the Court
did not err in its prior record level calculation.
I. Factual Background and Procedural History
Defendant was indicted on 9 July 2018 for first degree murder and possession
of a firearm by a felon. He was tried beginning 1 November 2021. At trial, the State
presented eight witnesses and 39 exhibits, including video surveillance footage of the
area and a redacted recording of the interview between law enforcement and
Defendant. Defendant did not present any evidence. The State’s evidence tended to
show the following:
During the late night and early morning of 20-21 May 2018, Defendant,
Shalamar Venable, Marquis Hines, Dean Hough, and several other individuals were
gathered at a bus stop in Charlotte. Hines and Hough testified that Defendant left
the bus stop for one to two hours before returning with another man, whom Hough
identified as “Damien.” Upon returning, Defendant confronted Venable regarding
drugs and money that Defendant believed Venable owed him. When Venable denied
that she owed Defendant money, Defendant pulled out a revolver.
Hines testified that, after Defendant pulled out the revolver, Defendant
punched Venable and fired a shot past her. Venable then stepped toward Defendant,
and Defendant shot her two to three times. Hines and another man tried to approach,
but Defendant pointed the revolver at them, and they retreated. As Hines was
retreating, he turned back and saw Defendant going through Venable’s pockets.
Upon reaching the nearby woods, Hines called 911.
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Hough testified that, after Defendant pulled out the revolver, Hough began
walking away from the scene. When Hough was a short distance from the scene, he
heard four or five gunshots and looked back to see Defendant and Damien leaving the
scene. Hough returned to the scene to find Venable on the ground and called 911.
Venable was taken to the hospital where she was pronounced dead. The
medical examiner determined that she had suffered four gunshot wounds, and that
two of them were responsible for her death.
Police interviewed Hines and Hough separately after the shooting and showed
them photographic lineups of six individuals, one of whom was Defendant. When
Hines was shown the photo lineup, he identified two individuals as possibly the
shooter, one of whom was Defendant. Hines said that his confidence that Defendant
was the shooter was 7 out of 10, and that his confidence that the other individual was
the shooter was 7 or 8 out of 10. At trial, Hines identified Defendant as the shooter.
When Hough initially viewed the photo lineup, he did not pick anyone out.
Upon reviewing the lineup a second time, he identified Defendant as possibly the
shooter, noting that the picture of Defendant “looks the same. From his eyes, on
down, his whole face.” At trial, Hough identified Defendant as the shooter.
Defendant was arrested on 29 June 2018 and interviewed by two detectives.
The recording of the interview was redacted upon agreement between the State and
Defendant, and the redacted version of the interview was published to the jury during
Defendant’s trial. During the interview, Defendant initially denied any knowledge
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Opinion of the Court
of, or involvement in, the events surrounding Venable’s death. Detectives confronted
Defendant with purported statements from eyewitnesses identifying Defendant as
the shooter and showed Defendant surveillance video depicting someone near the bus
stop when Venable was shot wearing clothes like those Defendant had been wearing.
Upon viewing the surveillance footage, Defendant remarked that the figure in the
video “looks just like me, but I don’t know.”
Defendant then admitted to being in the area on the night of the shooting with
another man whom Defendant identified as a “dope fiend.” Defendant stated that he
had confronted Venable regarding drugs, and that the dope fiend began to argue with
Venable. Defendant said he did not want to get involved so he left the area.
Defendant heard gunshots but continued about his business because it did not involve
him. Defendant continued to deny that he had shot Venable for the duration of the
interview.
On 9 November 2021, the jury returned guilty verdicts for first degree felony
murder1 and possession of a firearm by a felon. Defendant was sentenced to life
imprisonment without the possibility of parole for his first degree murder conviction
and 17 to 30 months’ imprisonment to begin at the expiration of his life sentence for
his possession of a firearm by a felon conviction. Defendant gave oral notice of appeal
in open court.
1The jury did not find Defendant guilty of first degree murder on the basis of malice,
premeditation, and deliberation.
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II. Discussion
A. Defendant’s Recorded Interview
Defendant first argues that the trial court plainly erred by admitting certain
portions of the recorded interview between law enforcement and Defendant because
the challenged portions of the recording contained hearsay and inadmissible
character evidence, were unfairly prejudicial, regarded Defendant’s pre-arrest
silence, and/or shifted the burden of proving his innocence.
1. Preservation and Standard of Review
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion[.]” N.C. R. App. P.
10(a)(1). “[A]n issue that was not preserved by objection . . . nevertheless may be
made the basis of an issue presented on appeal when the judicial action questioned
is specifically and distinctly contended to amount to plain error.” N.C. R. App. P.
10(a)(4).
Defendant acknowledges that he did not object to the admission of the
statements that he now argues were admitted in error. However, Defendant
specifically and distinctly argues that the admission of these statements amounts to
plain error. Thus, the evidentiary issues are reviewable for plain error. See id.
The State argues that Defendant invited any error and waived appellate
review because, “(1) Defendant, through counsel, actively cooperated with the State
to determine the appropriate redactions to his videotaped interview; (2) the
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redactions to the video were for the benefit of Defendant; and (3) Defendant agreed
to the admission of the redacted video and its publication to the jury.”
“[U]nder the doctrine of invited error, a party cannot complain of a charge
given at his request, or which is in substance the same as one asked by him[.]”
Sumner v. Sumner, 227 N.C. 610, 613, 44 S.E.2d 40, 41 (1947) (citations omitted); see
also State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971) (“Ordinarily one
who causes . . . the court to commit error is not in a position to repudiate his action
or assign it as ground for a new trial.”). The invited error doctrine is codified by N.C.
Gen. Stat. § 15A-1443(c), which states, “A defendant is not prejudiced by the granting
of relief which he has sought or by error resulting from his own conduct.” N.C. Gen.
Stat. § 15A-1443(c) (2021). “Thus, a defendant who invites error has waived his right
to all appellate review concerning the invited error, including plain error review.”
State v. Crane, 269 N.C. App. 341, 343, 837 S.E.2d 607, 608 (2020) (citation omitted).
Our courts have consistently applied the invited error doctrine when a
defendant’s affirmative actions directly precipitate error. See, e.g., id. at 345, 837
S.E.2d at 609-10 (applying invited error doctrine where defense counsel elicited the
testimony at issue on cross-examination); State v. Roseboro, 344 N.C. 364, 373, 474
S.E.2d 314, 318 (1996) (applying invited error doctrine where “defendant
unequivocally agreed” to limit the purpose of certain testimony); State v. Barber, 147
N.C. App. 69, 74, 554 S.E.2d 413, 416, (2001) (applying invited error doctrine where
defendant requested evidence be admitted “despite explicit warnings by the trial
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court that defendant’s statement had not been properly redacted”).
On the other hand, our courts have declined to apply the invited error doctrine
where such specific and affirmative actions are absent. See, e.g., State v. Chavez, 270
N.C. App. 748, 757, 842 S.E.2d 128, 135 (2020) (holding invited error doctrine did not
apply where defendant “did not request the [erroneous] instruction, but merely
consented to it”), rev’d on other grounds, 378 N.C. 265, 861 S.E.2d 469 (2021); State
v. Harding, 258 N.C. App. 306, 311, 813 S.E.2d 254, 259 (2018) (holding invited error
doctrine did not apply where defendant “failed to object, actively participated in
crafting [a portion of] the challenged instruction, and affirmed it was ‘fine’”).
Here, the record reflects that Defendant agreed with the State on certain
portions that were redacted from the interview, and that Defendant did not object to
the redacted interview being published to the jury. The record does not reflect that
Defendant took any affirmative action to introduce the redacted interview.
Accordingly, the invited error doctrine does not apply.
2. Analysis
Even assuming for the sake of argument that the challenged statements were
erroneously admitted, Defendant has failed to establish that the error constituted
plain error.
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723
S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
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(1983)). “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.” Id. (quotation marks and
citations omitted).
Here, absent the complained of portions of the redacted interview, the jury
heard from two eyewitnesses who picked Defendant out of a photo lineup as the likely
shooter and identified Defendant as the shooter in court. Both eyewitnesses gave
testimony that Defendant had previously been at the bus stop with Venable; that
Defendant left for one to two hours and returned with another man; and that, upon
returning, Defendant argued with and subsequently shot Venable. The jury also
heard Defendant’s eventual version of events that corroborated both eyewitnesses’
testimonies in every respect except as to who shot Venable. Additionally, the jury
saw video surveillance footage depicting someone near the bus stop when Venable
was shot wearing clothes like those Defendant had been wearing. The jury also saw
Defendant being shown that footage and stating, “it looks just like me,” shortly before
changing his story to the version of events that corroborated both eyewitnesses’
testimonies.
In light of this substantial evidence of Defendant’s guilt, Defendant cannot
show that, “absent the error, the jury probably would have returned a different
verdict.” Id. at 519, 723 S.E.2d at 335. Accordingly, the admission of the challenged
statements, if error, did not amount to plain error.
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B. Prior Record Level Calculation
Defendant next argues that the trial court erred in calculating his prior record
level because the State failed to prove Defendant’s prior felonies.
The determination of a defendant’s prior record level is a conclusion of law,
which is reviewed de novo. State v. Black, 276 N.C. App. 15, 17, 854 S.E.2d 448, 451
(2021) (citation omitted).
The State must prove each of a felony offender’s prior convictions by a
preponderance of the evidence. N.C. Gen. Stat. § 15A-1340.14(f) (2021). To satisfy
its burden, the State must prove both “that a prior conviction exists and that the
offender before the court is the same person as the offender named in the prior
conviction.” Id.
The State may prove a defendant’s prior convictions by submitting “[a] copy of
records maintained by the Department of Public Safety[.]” Id. § 15A-1340.14(f)(3).
Additionally, a record from the Department of Public Safety “bearing the same name
as that by which the offender is charged, is prima facie evidence that the offender
named is the same person as the offender before the court, and that the facts set out
in the record are true.” Id. § 15A-1340.14(f).
Here, the trial court checked the box on Defendant’s Prior Record Level
Worksheet indicating that, in making its determination about Defendant’s prior
record level, “the Court has relied upon the State’s evidence of the defendant’s prior
convictions from a computer printout of DCI-CCH.” The DCI-CCH is a computerized
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criminal record maintained by the North Carolina State Bureau of Investigation
(“NCSBI”). See 14B N.C. Admin. Code 18A.0102(6) (2021) (defining CCH as
“computerized criminal history record information”); id. 18A.0102(19) (2021)
(defining DCI as the “Division of Criminal Information” within the NCSBI). The
NCSBI is administratively located within the Department of Public Safety. N.C. Gen.
Stat. § 143B-915 (2021). Thus, a DCI-CCH is a record maintained by the Department
of Public Safety and may be used to prove Defendant’s prior convictions pursuant to
N.C. Gen. Stat. § 15A-1340.14(f).
By submitting Defendant’s DCI-CCH to the trial court, as indicated by the
court on Defendant’s Prior Record Level Worksheet, the State satisfied its burden to
prove Defendant’s prior convictions by a preponderance of the evidence. Accordingly,
the trial court did not erroneously calculate Defendant’s prior record level.
III. Conclusion
Because Defendant has failed to demonstrate plain error, and because the
State met its burden to prove Defendant’s prior convictions, we conclude that
Defendant received a fair trial free from prejudicial error.
NO PLAIN ERROR AND NO ERROR.
Chief Judge STROUD and Judge ZACHARY concur.
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