STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 00CRS100441-42
CARLOS MAURICE NEELY
Attorney General Roy A. Cooper, III, by Associate Attorney
General Margaret P. Eagles, for the State.
Eric A. Bach for defendant-appellant.
HUNTER, Judge.
Carlos Maurice Neely (“defendant”) was charged with assault
with a deadly weapon with intent to kill inflicting serious injury
and robbery with a dangerous weapon. The State's evidence tended
to show that on the morning of 19 July 1999, Latonya Kearney
(“Kearney”) stopped by the home of Maurice Hill (“Hill”) to ask
whether he had any marijuana to sell. When Hill responded that he
did not, she left.
Kearney returned to Hill's residence around noon. She and
Hill shared a marijuana cigarette on the porch before entering the
house. Once inside, Hill went into his bedroom while Kearney used
the bathroom and then the phone. Hill's bedroom was illuminated bya television and by sunlight coming through two windows, which were
partially covered by shades. Kearney joined Hill in his bedroom
and she performed oral sex on him. As Kearney and Hill lay in the
bed, a man, later identified as defendant, barged into the bedroom
carrying a nine millimeter gun. Kearney ran out of the room and
defendant shut the door behind her.
Defendant stood four feet from Hill, pointed the gun at him
and demanded drugs. When Hill told defendant that he did not have
any drugs, defendant shot him in the leg. Defendant again demanded
drugs from Hill. Hill subsequently gave defendant approximately
$100.00 and a small bag of marijuana. Afterwards, defendant
attempted to shoot Hill in the head and chest, but his gun jammed.
Defendant then struck Hill in the back of the head and shoulder
with his gun. Defendant fled the residence, entered a vehicle
occupied by Kearney and another male, and drove away. Two of
Hill's neighbors saw a man matching defendant's description flee
Hill's residence.
Hill staggered out of his house and sought help from his
neighbors. Hill was transported to the hospital, where he gave a
statement and a description of defendant to the police. Kearney
also gave a statement to the police. Kearney identified her
friend's boyfriend (defendant) as the perpetrator and gave the
police his address. On 16 September 1999, Officer Gerald Esposito
of the Charlotte-Mecklenburg Police Department brought a
photographic lineup to Hill. A picture of defendant was included
in the photographic lineup. Officer Esposito testified that Hill“looked at [the lineup] for a few seconds, took his index finger
and put it right on Mr. Neely's photograph and said that's the guy,
I'll never forget him.”
Defendant did not present any evidence. A jury found
defendant guilty as charged. The trial court sentenced defendant
to 96 to 125 months' imprisonment for the assault with intent to
kill inflicting serious injury conviction and 77 to 102 months'
imprisonment for the robbery with a dangerous weapon conviction.
Defendant appeals. We find no error.
Defendant first contends the State violated his due process
rights by failing to disclose that he was the only person in the
photographic lineup with gold teeth. “[T]he suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d
215, 218 (1963). Although defendant argues the State had an
obligation to inform him of the defects in the photographic lineup,
defendant, nevertheless, concedes “no material harm can be shown.”
Because defendant concedes the error was not prejudicial, this
assignment of error is overruled.
Defendant next contends the trial court erred by denying his
motion to suppress both the out-of-court and in-court
identifications of defendant in violation of his right to due
process. “Identification evidence must be excluded as violating a
defendant's right to due process where the facts reveal a pretrialidentification procedure 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). A
positive identification must be suppressed only if the photographic
lineup itself is both (1) impermissibly suggestive and (2) so
suggestive that “irreparable misidentification” is likely. State
v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633 (1987). The
failure of either requirement defeats defendant's due process
claim. In determining whether this substantial likelihood exists,
our courts look at the totality of the circumstances, guided by
five factors:
1) The opportunity of the witness to view
the criminal at the time of the crime;
2) the witness' degree of attention;
3) the accuracy of the witness' prior
description;
4) the level of certainty demonstrated at
the confrontation; and
5) the time between the crime and the
confrontation.
Id. at 99-100, 357 S.E.2d at 634 (citing Manson v. Brathwaite, 432
U.S. 98, 114-15, 53 L. Ed. 2d 140, 154 (1977)).
Defendant argues the photographic lineup was impermissibly
suggestive because he was the only individual who had a gold tooth.
However, “'[t]he mere fact that defendant ha[s] specific
identifying characteristics not shared by the other participants
does not invalidate the lineup.'” State v. Roberts, 135 N.C. App.
690, 693, 522 S.E.2d 130, 132 (1999) (quoting State v. Gaines, 283N.C. 33, 40, 194 S.E.2d 839, 844 (1973)), appeal dismissed and
disc. review denied, 351 N.C. 367, 543 S.E.2d 142 (2000).
Therefore, the fact that defendant was the only person pictured
with gold teeth “does not render the photographic lineup
impermissibly suggestive per se.” Id. at 693-94, 522 S.E.2d at
132. At the voir dire hearing, the officer who compiled the
photographic lineup testified that the lineup was based upon the
physical characteristics of the suspect found in the police report.
The officer further testified that gold teeth were not included in
the description of the assailant in the police incident report and,
therefore, they were not a characteristic that he focused on when
compiling the photographic lineup. Finally, after reviewing the
lineup, the officer testified that he was unable to determine from
the pictures used whether as many as three of the men had a gold
tooth. Accordingly, we conclude that this was not an impermissibly
suggestive lineup.
Even assuming arguendo that the photographic lineup was
impermissibly suggestive, the circumstances here show there was not
a substantial likelihood of irreparable misidentification. Hill
had an opportunity to view the assailant from four feet away in the
early afternoon sunlight. Hill's description of the assailant
matched defendant's general appearance. Furthermore, when police
showed Hill the photographic lineup, he identified defendant almost
immediately and stated, “that's the guy, I'll never forget him.”
Accordingly, the trial court did not err in denying defendant's
motion to suppress the pretrial identification. Defendant also contends Hill's in-court identification of him
should have been suppressed because it was tainted by the
impermissibly suggestive photographic lineup. In-court
identifications are generally admissible, yet they may be excluded
“if 'tainted by a prior confrontation in circumstances shown to be
“unnecessarily suggestive and conducive to irreparable mistaken
identification.”'” State v. Caporasso, 128 N.C. App. 236, 239, 495
S.E.2d 157, 160 (1998) (citations omitted). In view of our holding
that the suggestiveness of the pretrial identification did not, in
the totality of the circumstances, rise to a level conducive to
irreparable mistaken identification, we hold that any effect of the
pretrial identification on Hill's in-court identification is not a
basis for its exclusion.
Finally, defendant contends the trial court erred by denying
his motion to dismiss based on insufficiency of the evidence. The
standard for ruling on a motion to dismiss “is whether there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).
Substantial evidence is that relevant evidence which a reasonable
mind might accept as adequate to support a conclusion. State v.
Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In
ruling on a motion to dismiss, the trial court must consider all of
the evidence in the light most favorable to the State, and the
State is entitled to all reasonable inferences which may be drawn
from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505S.E.2d 138, 141 (1998). “Any contradictions or discrepancies
arising from the evidence are properly left for the jury to resolve
and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468
S.E.2d 232, 237 (1996).
To prevail on the charge of assault with a deadly weapon with
intent to kill inflicting serious injury, the State must present
substantial evidence of the following elements: (1) an assault;
(2) with a deadly weapon; (3) an intent to kill; and (4) infliction
of a serious injury. In his brief, defendant argues the State
failed to present sufficient evidence of intent to kill. We
disagree.
“'An intent to kill is a mental attitude, and ordinarily it
must be proved . . . by circumstantial evidence, that is, by
proving facts from which the fact sought to be proven may be
reasonably inferred.'” State v. Grigsby, 351 N.C. 454, 457, 526
S.E.2d 460, 462 (2000) (quoting State v. Cauley, 244 N.C. 701, 708,
94 S.E.2d 915, 921 (1956)). “In the context of G.S. § 14-32(a), an
intent to kill may be inferred from 'the nature of the assault, the
manner in which it was made, the weapon, if any, used, and the
surrounding circumstances.'” State v. Peoples, 141 N.C. App. 115,
118, 539 S.E.2d 25, 28 (2000) (quoting State v. White, 307 N.C. 42,
49, 296 S.E.2d 267, 271 (1982)).
Here, defendant shot the victim in the leg at close range with
a nine millimeter automatic gun. The evidence tended to show that
after the victim gave defendant his money and marijuana, defendant
tried to shoot the victim in the head and the chest, but his gunjammed. Unable to shoot the victim again, defendant struck the
victim in the head with the butt of his gun. Defendant's intent to
kill the victim can be inferred from his conduct and the deadly
nature of the weapon used. Accordingly, the trial court properly
denied defendant's motion to dismiss.
No error.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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