STATE OF NORTH CAROLINA
v
.
New Hanover County
Nos. 01 CRS 12195-96
LARRY WATSON
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
William H. Dowdy, for defendant-appellant.
CALABRIA, Judge.
Larry Watson (“defendant”) appeals his convictions for assault
with a deadly weapon with intent to kill inflicting serious injury
and robbery with a dangerous weapon. Defendant asserts the trial
court erred by improperly admitting evidence, curtailing
defendant's cross-examination of a witness, and denying his motion
to dismiss. We find no error.
On 30 May 2001, defendant, one of eight inmates, was working
pursuant to a work release program on the Battleship U.S.S. North
Carolina. All of the inmates worked from early in the morning
until late in the afternoon and wore special fatigues. At
approximately 3:00 p.m., David W. Miller (“Miller”), an eighty-
five-year-old man, was touring the ship. As he entered the thirdlevel fire control area on the starboard side of the ship, he saw
a man standing to the left of the fire control door. Miller
believed the man was one of the workmen on the ship. Miller
testified he was within a foot of him and he could see the man
well. The man was bald, African-American, medium height, had a
stocky build, and was wearing fatigues. Miller looked into the
fire control door and commented to the man that he would hate to be
trapped in there. The man responded with a grunt. As Miller
turned to leave the area, and after he walked a few paces, he was
hit on the head with an object which caused a five-inch gash.
Miller testified to what happened next:
I was grabbed around the neck from behind and
slammed against the bulkhead. And the side of
my head, I had cuts on the side of my head
where I was slammed against the bulkhead. And
then he kind of threw me down and then it - -
it was all happening so fast. And I was kind
of laying on my back. And I was trying to
protect _ _ he nailed me a stride to me and
just beat the living dickens out of me.
Miller could not clearly see the man who was beating him because,
he explained, “I was getting blood in my eyes” and “was trying to
protect my face.” The attacker then took Miller's billfold out of
his hip pocket and left. Miller, with some trouble, got to his
feet and walked a few paces seeking help because no one else was in
that area of the third level. He leaned over a railing and called
to people on a lower deck “Help me, I'm hurt.”
Officer William Crowningshield, Jr. (“Detective
Crowningshield”), and Detective Edward McMahon (“Detective
McMahon”), two detectives from the New Hanover County Sheriff'sDepartment, arrived at the Battleship to investigate. Other
officers were already present; some were stationed at the entrances
and exits to ensure no one else left or entered the ship, and some
were searching the ship.
Miller received medical attention but prior to being taken to
the hospital he was shown a line-up including all eight inmates.
Miller testified that when he was shown a line-up of suspects, he
recognized that defendant “looks like the fella I spoke to”
approximately ten seconds before the attack, but clarified that he
could not say defendant hit him because he never saw the assailant.
In court, Miller again identified defendant as the person he spoke
to immediately prior to the attack. Detective McMahon testified
that Miller pointed to defendant and said “[t]hat looks like him.
He's got the same build. He was wearing the same type of
clothing.” Miller also identified defendant in a photographic
line-up the following day.
After Detective Crowningshield arrived, he personally searched
the welding room, the break room and adjacent smaller rooms. In
the welding room area, right off the break room, he found a box
with a pair of boots. His attention was drawn to the boots because
they had some spots on them that looked like blood spots.
Detective Crowningshield impounded the boots and “determined that
the boots should be sent to the S.B.I. lab for evaluation on the
blood.” Testing later revealed the blood matched the victim's
blood. Detectives McMahon and Crowningshield also investigated the
crime by interviewing the inmates working on the ship. The
officers interviewed all the other inmates before they interviewed
defendant. Two other inmates remembered that immediately following
the attack defendant came into the break room, was acting agitated,
and changed his boots. The substance of the officers' interview
with defendant on 30 May 2001 was not presented to the jury.
However, on 31 May 2001, the officers “mirandized” and interrogated
defendant at the police station. See Miranda v. Arizona, 384 U.S.
436, 16 L. Ed. 2d 694 (1966). Although defendant denied being the
attacker, he admitted the seized boots were a pair he occasionally
wore and had worn that day. However, defendant claimed the boots
were too big and on the day of the crime he changed out of them.
Defendant appeals asserting the trial court erred by: (I)
denying his motion to suppress the seizure of the boots; (II)
permitting Detective McMahon to testify that Miller identified his
attacker in the line-up, because Miller testified he identified the
man he spoke to but could not confirm defendant was his attacker;
(III) curtailing defendant's cross-examination of Detective
Crowningshield; and (IV) failing to dismiss the case for
insufficient evidence identifying defendant as the attacker. For
the reasons set forth herein, we find no error.
I. Motion to Suppress
Defendant asserts the trial court erred in denying his motion
to suppress the evidence of the boots and the DNA evidence derived
from the boots because this evidence results from the officers'interrogation of defendant on 30 May 2001 at which time the
officers did not read defendant his rights in accordance with
Miranda. Since we find the evidence results from an independent
source, we find no error.
“[G]enerally, statements made by a defendant during custodial
interrogation should be excluded from evidence if the defendant can
show that he made them without benefit of Miranda warnings.” State
v. Trull, 153 N.C. App. 630, 635, 571 S.E.2d 592, 596 (2002), disc.
rev. denied and appeal dismissed, 356 N.C. 691, 691, 578 S.E.2d
596, 596-97 (2003). Moreover, “[w]hen evidence is obtained as the
result of illegal police conduct, not only should that evidence be
suppressed, but all evidence that is the 'fruit' of that unlawful
conduct should be suppressed.” State v. Pope, 333 N.C. 106,
113-14, 423 S.E.2d 740, 744 (1992). However, facts revealed as a
result of the illegal conduct do not become “'sacred and
inaccessible. If knowledge of them is gained from an independent
source they may be proved like any others.'” State v. McDaniel,
274 N.C. 574, 582, 164 S.E.2d 469, 473 (1968) (quoting Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392, 64 L. Ed. 319, 321
(1920)).
In the case at bar, before the officers spoke to defendant,
another inmate told them that he saw defendant enter the break
room, change his boots and act agitated immediately after the
assault on Miller. Moreover, as soon as Detective Crowningshield
arrived on the ship on 30 May, he “talk[ed] with Lieutenant McMahon
for a few seconds, [and then] I did a search of the welding roomand also the break room area trying to look at any type of
evidence.” During a search of smaller rooms in the area, Detective
Crowningshield found a box with boots. The boots appeared to be
stained with blood. He took the boots into evidence and “at that
time I determined that the boots should be sent to the S.B.I. lab
for evaluation.” Accordingly, even assuming, as defendant contends
that the interview of defendant on 30 May without Miranda warnings
was illegal, we cannot find the boots were a fruit of this
illegality because the boots were discovered through an independent
source.
II. Evidence of Identification of Defendant
Defendant next asserts the trial court abused its discretion
under N.C. Gen. Stat. § 8C-1, Rule 403, when it permitted Officer
McMahon to testify regarding Miller's identification of defendant
during the line-up because this testimony extended beyond mere
corroboration of Miller's testimony. We disagree.
Relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403 (2003). The trial court's ruling pursuant to Rule 403 may be
reversed only for abuse of discretion, which requires this Court to
find the decision was manifestly unsupported by reason. State v.
Shoemaker, 334 N.C. 252, 261, 432 S.E.2d 314, 319 (1993). Miller testified that he identified defendant as looking like
“the fella I spoke to” immediately before the attack but could not
identify defendant as the attacker because he never saw his
assailant. Detective McMahon's testimony was admitted solely for
corroboration of Miller's testimony. Detective McMahon testified
that when he asked Miller “if he thought he could recognize the
person,” Miller responded affirmatively, and when presented with
the line-up Miller “pointed to the Defendant and said 'That looks
like him. He's got the same build. He was wearing the same type
of clothing.'” Although the transcript reveals no clear
contradiction, as Detective McMahon did not testify that Miller
identified the attacker, such testimony could have been stricken
under Rule 403 as being misleading because Detective McMahon was
not clear whether Miller was describing the man he saw in the area
or his attacker. However, that decision lies with the trial judge
and cannot be set aside absent an abuse of discretion. We cannot
find the trial court's judgment was manifestly unsupported by
reason, especially considering that Detective McMahon's testimony
that Miller identified “the person” is clarified by Miller's
testimony that his identification of defendant was solely on the
issue of the man he spoke to and not his assailant.
Defendant next asserts Detective Donald Warnick's (“Detective
Warnick”) testimony regarding Miller's identification of defendant
during a photographic line-up at the hospital was also not
corroborative of Miller's testimony. Miller testified the officers
who came to the hospital asked him to look at pictures of possiblesuspects, and as a result he identified defendant. Detective
Warnick testified that when he asked Miller to identify the person
who attacked and robbed him, Miller identified defendant. However,
Detective Warnick clarified that Miller did not state defendant was
the attacker, he only identified defendant as the man he spoke to
immediately prior to the attack. Although this distinction may
have been confusing to the jury, again, we cannot find, especially
considering the witness' clarification, that the trial court abused
its discretion in permitting this evidence under Rule 403.
III. Cross-examination
Defendant next asserts the trial court abused its discretion
by not permitting defense counsel to cross-examine Detective
Crowningshield regarding a photograph of a bloody shoe print which
the State had not yet introduced into evidence. It accepted that “a
criminal defendant has no right to introduce exhibits into evidence
during the presentation of the State's case.” State v. Jordan, 305
N.C. 274, 277, 287 S.E.2d 827, 830 (1982). However, “the order of
presentation or proof at a criminal trial is a rule of practice,
not of law, and may be altered when the trial court, in its
discretion, considers a departure necessary to promote justice.”
Id., 305 N.C. at 278, 287 S.E.2d at 830. Here, when defense
counsel sought to cross-examine Detective Crowningshield about a
photograph of a bloody shoe print the State had not introduced into
evidence, the State objected and the trial court agreed with the
State. We cannot find the trial court's decision “manifestly
unreasonable” and therefore cannot hold it was an abuse ofdiscretion. Moreover, we note, after defendant agreed to utilize
another photograph that had been introduced, the State introduced
the photograph on re-direct, and defendant was able to utilize it
on re-cross; accordingly, defendant has failed to demonstrate
prejudice.
IV. Motion to Dismiss
Lastly, defendant asserts the trial court erred in failing to
dismiss the charges for insufficient evidence. Defendant bases his
assertion on the premise that the officers' testimony regarding
Miller's identification was error. Since we have previously found
otherwise, we need not address the assertion further.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***