An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-105

NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2004

STATE OF NORTH CAROLINA

v .                         New Hanover County
                            Nos. 01 CRS 12195-96
LARRY WATSON

    Appeal by defendant from judgments entered 5 December 2001 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 13 November 2003.

    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).

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