1. Witnesses_leading questions_no abuse of discretion
The trial court did not improperly permit the State to ask leading
questions in a first-degree murder prosecution where the questions at issue
were not leading or were permissible to develop a witness's testimony.
2. Criminal Law_prosecutor's argument_defendant as drug dealer--factual
basis
The trial court did not abuse its discretion in a first-degree murder
prosecution by denying defendant's objections to portions of the State's
closing argument as not being based on facts in evidence. The State
specifically outlined the evidence which formed the basis of the inference
that defendant was a drug dealer and defendant invited the issue by
offering an alibi and suggesting that the victim's “drug-related killing”
could have been committed by a “disgruntled client.” Moreover, the
impropriety of the statements was not so extreme as to prejudice the jury.
3. Identification of Defendants_eyewitness testimony_expert witness
rejected
The trial court did not err in a first-degree murder prosecution by
not allowing defendant's proffered expert testimony on identification
testimony where the court found that the witness was in no better position
than the jury to determine the weight to be given the identifications in
this case, that the witness's testimony would not provide any appreciable
assistance to the jury in evaluating the identifications, and that his
testimony was outweighed by the risk of confusing the jury.
4. Criminal Law_instructions_reasonable doubt
The trial court did not err in a first-degree murder prosecution in
its instructions as to the meaning of “reasonable doubt” where the State in
its argument quoted from two Supreme Court decisions, the trial court
originally used the Pattern Jury Instructions definition, the jury first
requested a copy of the language to which the State had referred, then
asked the court to reconcile the language from the two opinions, and the
court responded by reading the language from the two opinions and
instructing the jury that it was to interpret each in its own context.
There is nothing in the record to indicate that the jury was confused after
the court's further instructions and the two Supreme Court cases accurately
defined reasonable doubt.
5. Identification of Defendants_eyewitness testimony_percentages of
certainty
The trial court did not err in a first-degree murder prosecution by
allowing the State to ask a witness to give percentages of certainty to the
words “sure” and “pretty sure” in her identification testimony.
6. Identification of Defendants_photographic_computer generated display
The trial court did not err in a first-degree murder prosecution by
admitting a witness's pre-trial and in-court identifications of defendantwhere the display contained 19 thumbnail photographs generated fro
m a
computerized system which matched descriptions given by witnesses and the
detective merely asked if anyone looked like one of the perpetrators but
did not make any comments or suggestions.
Attorney General Roy Cooper, by Assistant Attorney General Buren R.
Shields, III, for the State.
Leonard Law Firm, by Robert K. Leonard, for defendant-appellant.
WALKER, Judge.
Defendant appeals his conviction for first degree murder under the
felony murder rule. The State's evidence presented at trial tends to show
the following: On the evening of 22 May 1998, Tonya Luther (Luther), Alesia
Clapp (Clapp), and Tina Clapp were visiting with Calvin Jenkins (Jenkins) in
his Greensboro apartment. At approximately 9:10 p.m., Luther decided to
leave and check on her nearby apartment. As she was walking out, there was
a knock at the front door. Jenkins opened the door and two black males
entered. One was noticeably shorter than the other. Luther said “Hi” to the
men as she walked out. The men then spoke briefly with Jenkins and left.
A short time later, Luther returned to Jenkins' apartment and saw the
same two men standing in the parking lot. After about ten minutes, there was
another knock at the front door. Jenkins again answered and the two men
entered. The three women were talking in the kitchen near the apartment's
entrance. Luther and Clapp heard one of the men say “Give me some money” and
observed Jenkins raise his hands. They next heard a gun shot and saw Jenkins
fall to the floor. The shorter of the two men approached the women and
asked, “Where's the money at?” The taller man began to search the kitchen.
After he found “three or four bags of marijuana,” the two men left. When
the police arrived at the apartment, Luther and Clapp provided them with adescription of the two men. Four days later, Luther and Clapp we
nt to the
Greensboro Police Department where they gave further descriptions. The
police then entered a composite description of each man into a computerized
photographic database known as the “Spillman system.” This system matched
the descriptions to photographs maintained in a computer database. It then
displayed approximately nineteen photographs at one time on a seventeen-inch
computer screen. At this time, Luther and Clapp viewed more than one
thousand photographs but did not see one which depicted either of the two
men.
The next day, Luther returned to the police department and continued
viewing photograph displays. After some time, she selected a photograph
which she identified as depicting the shorter of the two men. She continued
to view several displays but did not see a photograph of the second man.
Later that evening, a Greensboro detective went to Clapp's place of work and
showed her the display from which Luther had made her identification. Clapp
selected the same photograph as Luther. Defendant was the individual shown
in the photograph.
At trial, both Luther and Clapp identified defendant as being the
shorter man in Jenkins' apartment on the evening of 22 May 1998. Forensic
evidence also showed that Jenkins died of a single gunshot wound to the
chest. From the apartment, crime scene technicians recovered 175.9 grams of
marijuana, a scale which is similar to those used in weighing marijuana,
approximately one thousand dollars in cash, and several boxes of pistol
cartridges.
Defendant presented evidence which tended to show that he had been in
Dayton, Ohio, for three to four months prior to June 1998. A recording
engineer also testified that he billed defendant for the use of a studio in
Dayton for the same date that Jenkins was killed.
[1]With his first assignment of error, defendant contends the trial
court erred by permitting the State to ask leading questions of its witnessesand to argue facts during closing argument which were not in e
vidence.
Our appellate courts have consistently held that control over the course
and conduct of a trial is the responsibility of the trial court and will not
be disturbed absent an abuse of discretion. State v. Covington, 290 N.C.
313, 334-35, 226 S.E.2d 629, 644 (1976); State v. Davis, 77 N.C. App. 68, 74,
334 S.E.2d 509, 513 (1985); State v. Dickens, 346 N.C. 26, 44, 484 S.E.2d
553, 563 (1997)(“[r]ulings concerning the admissibility of leading questions
are in the sound discretion of the trial court and should not be disturbed
absent an abuse of that discretion”); State v. Johnson, 298 N.C. 355, 368,
259 S.E.2d 752, 761 (1979)(“control of the arguments of counsel must be left
largely to the discretion of the trial judge”). An abuse of discretion
occurs only where the trial court's ruling is “so arbitrary that it could not
have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460,
471, 334 S.E.2d 741, 747 (1985). Even in situations where the trial court
does err, a defendant is not entitled to a new trial unless such error is
material and prejudicial. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d
631, 644 (1983).
Defendant first asserts that he is entitled to a new trial by arguing
that the trial court abused its discretion in allowing the State to ask
leading questions of its witnesses. Specifically, defendant identifies
thirteen questions asked of six different witnesses which he contends were
leading.
After carefully reviewing each of these questions, we agree with the
trial court's conclusion that they were either not leading questions or were
permissible to develop a witness' testimony. State v. Smith, 135 N.C. App.
649, 655, 522 S.E.2d 321, 326 (1999), disc. review denied, 351 N.C. 367, 543
S.E.2d 143 (2000). Defendant has also failed to demonstrate how the trial
court's allowing these questions resulted in prejudicial error. Dickens, 346N.C. at 44, 484 S.E.2d at 563.
[2]Defendant next asserts that he is entitled to a new trial based on
the State's presenting to the jury facts which were not in evidence.
During his closing argument, defendant argued that Jenkins' death was a
“drug-related killing.” He maintained that Jenkins was a drug dealer, that
people were constantly in and out of his apartment, and that he was likely
killed by a disgruntled client. Defendant also argued that he could not
possibly have killed Jenkins because he was in Dayton, Ohio, on the day of
the shooting.
In its argument and in response to these assertions, the State
recounted for the jury the testimony of witnesses who stated that defendant
smoked marijuana, was frequently seen coming and going from Jenkins'
apartment, and maintained a high life style without any known job or visible
source of income. The State also noted there was testimony that defendant's
father had flown into town every couple of weeks and stayed in the exact same
motel. After outlining this testimony, the State asked a number of
rhetorical questions to which defendant made two objections: “[E]ver wonder
what his [father's] business might be? . . . Might common sense tell you that
he might be a Jamaican drug dealer? . . . Might you infer that his son is
involved in his father's business? . . . I mean, remember the demand?
'Where's the money at?' You think that might sound Jamaican?” The State
concluded by suggesting to the jury that it might infer from the evidence
that defendant was selling drugs to Jenkins and that Jenkins' killing had
“all the earmarks of a drug killing.”
Defendant contends the trial court erred by failing to sustain his
objections to this portion of the State's argument. However, after
considering the State's comments within the context in which they were made,
we conclude the trial court did not abuse its discretion in failing to
sustain defendant's objections. See State v. Rouse, 339 N.C. 59, 91, 451
S.E.2d 543, 560, cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60(1994)(“Prosecutorial statements are not placed in an isolated va
cuum on
appeal. Fair consideration must be given to the context in which the remarks
were made and to the overall factual circumstances to which they refer”).
The State specifically outlined the evidence which formed the basis of the
inferences it argued. Moreover, defendant invited this line of discussion by
offering an alibi and first suggesting to the jury in his own closing
argument that Jenkins' “drug-related killing” could have been committed by a
“disgruntled client.” See State v. Larrimore, 340 N.C. 119, 165, 456 S.E.2d
789, 814 (1995)(noting prosecutor is allowed to respond to arguments made by
defense counsel).
Further, even assuming arguendo that these statements were improper,
their impropriety was not so extreme as to prejudice the jury in its
deliberations. State v. Ingle, 336 N.C. 617, 650-51, 445 S.E.2d 880, 898
(1994), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995)(holding a
defendant is not entitled to a new trial because of an improper prosecutorial
comment, properly objected to, unless the comment amounted to prejudicial
error). This assignment of error is overruled.
[3]In his second assignment of error, defendant asserts the trial court
erred by not allowing the testimony of his expert witness. During his
presentation of evidence, defendant sought to offer the testimony of Dr. Reed
Hunt, a professor of psychology at the University of North Carolina at
Greensboro. During voir dire, Dr. Hunt testified that he was not a licensed
or clinical psychologist. He further testified that he had attempted to
testify in State court on three previous occasions but had been permitted to
testify only once. On that occasion, the circumstances did not involve a
photographic lineup but rather an in-court identification. Dr. Hunt stated
there are several factors which affect an eyewitness identification and that
witnesses often state they are sure of their identification when, in fact,
they are wrong. He added that when the crime involves a weapon, the accuracyof the identification is “considerably lower.” The
trial court denied
defendant's motion to admit Dr. Hunt's testimony finding that: (1) he was in
no better position than the jury to determine the weight to be given to the
identifications of Luther and Clapp; (2) his testimony would not provide any
appreciable assistance to the jury in evaluating the identifications; and (3)
his testimony, even if probative, was outweighed by the risk it carried of
confusing the jury.
Our Supreme Court has held, “It is undisputed that expert testimony is
properly admissible when such testimony can assist the jury to draw certain
inferences from facts because the expert is better qualified.” State v.
Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998), cert. denied, 526
U.S. 1075, 143 L. Ed. 2d 559 (1999)(quoting State v. Bullard, 312 N.C. 129,
139, 322 S.E.2d 370, 376 (1984)); N.C. Gen. Stat. § 8C-1, Rule 702(a)(1999).
This Court has previously addressed the issue of the admissibility of expert
testimony on eyewitness identifications and 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 and the Rules of Evidence.” State v. Cotton, 99 N.C. App. 615, 621, 394
S.E.2d 456, 459 (1990), affirmed, 329 N.C. 764, 407 S.E.2d 514 (1991)(citing
State v. Knox, 78 N.C. App. 493, 495-96, 337 S.E.2d 154, 156 (1985)). Our
review of the trial court's findings reveals that it considered Dr. Hunt's
testimony and found that any probative value was outweighed by the risk of
confusing the jury. We conclude the trial court did not abuse its discretion
in not allowing Dr. Hunt's proffered testimony.
[4]With his third assignment of error, defendant contends the trial
court erred in its instructions to the jury as to the meaning it should give
to “reasonable doubt.” During its closing argument, the State quoted
language from our Supreme Court's decisions in State v. Adams, 335 N.C. 401,439 S.E.2d 760 (1994) and State v. Bishop, 346 N.
C. 365, 488 S.E.2d 769
(1997), which offered explanations as to how a jury was to interpret
“reasonable doubt.” Here, following closing arguments, the trial court, in
its instructions to the jury, defined reasonable doubt using the North
Carolina Pattern Jury Instruction (Criminal) 101.10. During its
deliberations, the jury requested a copy of the language to which the State
had referred in its closing argument. Over defendant's objection, the trial
court provided the jury with a copy of the language used in both Adams and
Bishop. After further deliberations, the jury asked the trial court to
reconcile the language from Adams “nor is it proof beyond a shadow of a doubt
nor proof beyond all doubts. . . .” 335 N.C. at 420, 439 S.E.2d at 770, with
the language from Bishop “fully satisfies or entirely convinces you. . . .”
346 N.C. at 399, 488 S.E.2d at 787. The trial court responded by reading the
pertinent language from both Adams and Bishop and instructing the jury that
it was to interpret each within its own context.
Defendant maintains that the jury apparently believed that the language
of Adams and Bishop could not be reconciled, therefore demonstrating a
reasonable likelihood that it applied a standard of proof less than “beyond
a reasonable doubt.” However, there is nothing in the record to indicate
that the jury was confused about the standard of proof after the trial
court's further instructions. Both Adams and Bishop accurately define “proof
beyond a reasonable doubt.” Thus, we conclude the trial court committed no
error in its instructions to the jury on the definition of reasonable doubt.
[5]In his fourth assignment of error, defendant argues the trial court
erred in allowing the State to ask Clapp questions which defendant maintains
were beyond her personal knowledge.
Defendant identifies three specific questions which were asked of Clapp
concerning the certainty of her pre-trial and in-court identifications. Thefirst question occurred after Clapp had described her opportuni
ty to view the
defendant on the evening of 22 May 1998:
Q: . . . what kind of look were you able to get at the
person's facial features during that . . . approximate
three minute period?
A: A glance.
Q: Do you feel personally that you got a good look at the
person should you see them [sic] again?
The trial court overruled defendant's objection.
A: Yes.
The second question occurred following Clapp's testimony concerning her
identification of defendant from the photograph display:
Q: At the time you picked out the photograph, Ms. Clapp,
how certain or how sure were you that the person you
picked out . . . was what you're describing as [the
defendant]?
A: Pretty sure.
Q: All right. If you had to put pretty sure in some kind
of a percent -- could you do that?
The trial court overruled defendant's objection.
Q: So we know what you mean by pretty sure. I mean are
we talking --
A: Sure.
Q: -- 70 percent, 90 percent, 95 percent? What are we
talking?
A: 95 percent.
The final question occurred after defendant cross-examined Clapp concerning
her in-court identification:
Q: Now, what is your degree of certainty when you pointed
to the defendant seated over there at the table . . . as
to him being . . . the person you saw [the evening of 22
May 1998]?
A: Pretty sure.
Q: Is that equal to more than sure?
The trial court overruled defendant's objection.
A: Yes. Defendant asserts that the trial court should have sustained
his
objections and prevented Clapp from providing answers and percentages with
respect to her degree of certainty for the reason that such a precise
calculation was beyond her personal knowledge.
Under our rules of evidence, a witness “may not testify to a matter
unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602 (1999).
The purpose of Rule 602 is to prevent a witness from testifying to a fact of
which he has no direct personal knowledge. See N.C. Gen. Stat. § 8C-1, Rule
602 (Commentary)(1999). “[P]ersonal knowledge is not an absolute but may
consist of what the witness thinks he knows from personal perception.” Id.
Here, each of the State's questions were designed to ascertain from Clapp the
degree of certainty she attached to the words “sure” and “pretty sure” in
relation to what she observed about defendant in Jenkins' apartment on the
evening of 22 May 1998. Such information was within her personal knowledge.
Therefore, we overrule defendant's assignment of error.
[6]Finally, defendant contends the trial court erred in admitting
Clapp's pre-trial and in-court identifications of defendant, arguing that
each was “impermissibly suggestive.”
With regard to a pre-trial identification, such evidence must be
excluded where the “facts reveal a pretrial identification procedure [which
is] so impermissibly suggestive that there is a very substantial likelihood
of irreparable misidentification.” State v. Harris, 308 N.C. 159, 162, 301
S.E.2d 91, 94 (1983). Accordingly, in the context of a photograph display,
a positive identification must be suppressed where the display is both: “(1)
impermissibly suggestive, and (2) so suggestive that irreparable
misidentification is likely.” State v. Roberts, 135 N.C. App. 690, 693, 522
S.E.2d 130, 132 (1999)(citing State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d
631, 633 (1987)). Defendant argues that the photograph display from which Clapp identified
defendant was impermissibly suggestive in that “[t]here is no evidence that
any of the other photos even came close to matching the original description”
which Clapp gave to police. The evidence shows that the display contained
nineteen thumbnail-sized photographs. These photographs were generated from
a computerized system which matched photographs similar to the descriptions
Clapp and Luther provided to police. The evidence also shows that the
detective did not make any comments or suggestions to Clapp when he showed
her the display but merely asked her if anyone looked like one of the
perpetrators. See generally State v. Goodson, 101 N.C. App. 665, 670-71, 401
S.E.2d 118, 122 (1991). Therefore, the trial court properly concluded that
Clapp's pre-trial identification was not impermissibly suggestive and we find
no error with its admission.
Defendant also argues that the trial court should not have permitted
Clapp to make an in-court identification because it was tainted by the
impermissibly suggestive pre-trial identification. However, having found no
merit to defendant's claim concerning Clapp's pre-trial identification, we
likewise conclude that the trial court did not err in permitting her to make
an in-court identification. See Roberts, 135 N.C. App. at 694-95, 522 S.E.2d
at 133 (where pre-trial identification is not impermissibly suggestive, a
subsequent in-court identification cannot be considered “fruit of the
poisonous tree”).
In sum, we find defendant received a trial free of prejudicial error.
No error.
Judges MARTIN and TYSON concur.
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