STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 02CRS233127-28
ERNEST LIGHTNER
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
Carlton Rhodes and Carlton, by Gary C. Rhodes, for defendant-
appellant.
ELMORE, Judge.
Ernest Lightner (defendant) was convicted of robbery with a
firearm and assault with a dangerous weapon. The trial court
arrested judgment on the conviction for assault with a dangerous
weapon and sentenced defendant to 146 to 185 months imprisonment
for the robbery with a firearm conviction. Defendant appeals.
The State's evidence at trial tended to show that around 5:30
a.m. on 31 May 2002 Jessie Kennedy was delivering newspapers on his
regular route along Dundeen Street in Charlotte. Mr. Kennedy
noticed a dark-colored van parked at three different locations
along his route that morning, and this same van pulled up behind
his truck as he was finishing his route. Mr. Kennedy testifiedthat defendant jumped out of the van and waved a gun in his face,
and then defendant and three other men surrounded him. One of
these men was holding a shotgun pointed at Mr. Kennedy. Defendant
demanded money, ordering Mr. Kennedy to “give it up.” Mr. Kennedy
recognized the faces of the men robbing him, including defendant,
because he had seen them in the Dundeen Street area several times
before. When Mr. Kennedy told the group of men that he knew them,
a fifth person stepped out of the van. At this point, defendant
took Mr. Kennedy's necklace and bracelet. All of the men got into
the van and drove away.
As he watched the van drive off, Mr. Kennedy observed that it
had a South Carolina license plate. About ten minutes later, Mr.
Kennedy reported the robbery to an officer of the Charlotte
Mecklenburg Police Department (CMPD). Following the day of the
robbery, Mr. Kennedy did not see the van again until 4 July 2002
and defendant until a few days after that.
During July 2002, Mr. Kennedy spoke with Detective Hulsey of
the CMPD on the phone and informed her that the person who robbed
him was known as “T-Bone.” Based upon the physical description and
this nickname that Mr. Kennedy provided, Detective Hulsey compiled
a photographic lineup. Detective Hulsey showed the photographic
lineup to Mr. Kennedy, who identified defendant as the man who
robbed him. Mr. Kennedy testified that he had seen defendant three
or four times a week during the three years prior to the robbery
and that he knew defendant's nickname from hearing people in the neighborhood call defendant by this name. He further testified
that he was able to see the faces of all of the men who robbed him.
The trial court denied defendant's motion to dismiss at the
close of all evidence, and the jury returned guilty verdicts on 8
January 2004. Defendant gave notice of appeal in open court.
By his first assignment of error, defendant challenges the
trial court's ruling on his motion in limine. Defendant sought to
exclude (1) any testimony by Mr. Kennedy that, subsequent to the
robbery, he heard on the street defendant's nickname in connection
with the robbery; and (2) the photographic lineup based upon Mr.
Kennedy's mention to Detective Hulsey of defendant's street
nickname. The trial court denied the motion in part, ruling that
the photographic lineup was admissible but that the testimony by
Mr. Kennedy would not be allowed into evidence.
First, defendant contends that his motion was in substance a
motion to suppress and that the court should have held a voir dire
hearing. To the contrary, defendant did not allege any
constitutional violations in the motion. Additionally, defendant's
motion was not accompanied by an affidavit reciting facts to
support the motion. See N.C. Gen. Stat. § 15A-977(a) (2004). In
order to be treated as a motion to suppress, the motion submitted
must be in compliance with the procedural requirements of N.C. Gen.
Stat. § 15A-971 et seq. governing such motions. See State v.
Harris, 71 N.C. App. 141, 143, 321 S.E.2d 480, 482 (1984) (motion
to suppress not accompanied by affidavit is not proper in form and
may be summarily dismissed); State v. Conard, 54 N.C. App. 243,245, 282 S.E.2d 501, 503 (1981) (burden is on defendant to show he
has met procedural requirements of 15A-971 et seq.). The trial
court was not required to hold a voir dire hearing, and defendant
was not deprived of the opportunity to testify at such a hearing.
Cf. State v. Battle, 136 N.C. App. 781, 786-87, 525 S.E.2d 850,
853-54 (2000) (when defendant makes motion to suppress in proper
form, trial court must give defendant opportunity to argue basis
for the motion); State v. Pike, 273 N.C. 102, 107, 159 S.E.2d 334,
338 (1968) (where State witnesses testified on voir dire regarding
motion to suppress, trial judge erred in refusing to allow
defendant to testify). Here, the trial court heard arguments from
both parties before ruling on defendant's motion.
Defendant next contends that the court erred in admitting the
photographic lineup into evidence. Similar to his argument before
the trial court, defendant asserts on appeal that the photographic
lineup itself was generated based solely upon hearsay testimony.
However, defendant provides no argument in support of this
assignment of error. “Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” N.C.R.
App. P. 28(b)(6). Accordingly, we do not consider this assignment
of error.
Next, defendant argues that the court erred in failing to
strike from the record certain testimony by Mr. Kennedy about his
knowledge of defendant's nickname. At the conclusion of the
hearing on defendant's motion in limine, the trial court ruled thatany statement that the victim, Mr. Kennedy, heard on the street
that “T-Bone” was involved in the robbery would be excluded. The
court specified that only this particular statement, allegedly made
by the victim to police officers, would be excluded. At trial, Mr.
Kennedy testified that he knew defendant's name because he knew
defendant well, but that he learned “through the streets” the names
of the other men present during the robbery. Defense counsel
objected to “what [Mr. Kennedy] learned through the streets” and
moved to strike this statement, but the court overruled the
objection and motion.
After reviewing the record, we find that defendant has failed
to preserve this issue for appeal. See N.C.R. App. 10(b)(1) (“In
order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection, or
motion, stating the specific grounds for the ruling the party
desired the court to make . . . .”). The statement admitted by the
court established that Mr. Kennedy already knew defendant and his
nickname, whereas he had to learn the identity of the other men
involved from outside sources. Defendant did not object to the
admission of testimony that Mr. Kennedy was acquainted with
defendant and knew defendant's nickname prior to and apart from the
robbery. Rather, defendant objected only to any statement about
Mr. Kennedy learning of defendant's nickname in connection with the
robbery. As defendant has failed to preserve the issue, we
overrule this assignment of error. Next, defendant asserts that the court erred in allowing
defendant to appear before the jury during jury selection in a
prison uniform. After reviewing the record before us, we discern
no error on the part of the trial court. The trial judge notified
defendant of his right to wear street clothes and asked defendant
several times, before any jurors were called into the courtroom,
whether defendant wanted to change clothes. Defendant responded in
the negative each time. Where a defendant refuses the court's
offer to change attire for trial, the fact that defendant appeared
before the jury in prison clothes and any alleged prejudice
therefrom is the result of his own choice. State v. Westry, 15
N.C. App. 1, 13, 189 S.E.2d 618, 625-26, cert. denied, 281 N.C.
763, 191 S.E.2d 360 (1972). Defendant's assignment of error is
without merit.
Defendant next assigns error to the court's denial of his
motion to dismiss for insufficiency of the evidence. In
considering a motion to dismiss, the trial court determines
“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). The court must view the evidence in
the light most favorable to the State and may not consider
defendant's evidence if it conflicts with the State's evidence.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982).
This is because “contradictions and discrepancies do not warrant
dismissal of the case _ they are for the jury to resolve.” Id. Here, the State presented the testimony of Mr. Kennedy to
establish defendant as the perpetrator of the crimes charged.
Defendant challenges the credibility of this witness's
identification testimony, pointing out that other evidence
conflicted with Mr. Kennedy's physical description of defendant.
Although Mr. Kennedy described defendant as having brown skin,
defendant's sister testified that defendant was a dark-skinned
black male. However, this evidence is not favorable to the State
and thus could not be considered on a motion to dismiss. See id.
Next, defendant contends that the court committed reversible
error in its response to a request from the jury that the court re-
read testimony previously given in the trial. We note that
defendant cites no legal authority in support of this assignment of
error, and we could deem it abandoned pursuant to N.C.R. App. P.
28(b)(6). Even assuming that defendant properly presented an
argument on this issue, we find the assignment of error to be
without merit. The decision of “[w]hether to allow a jury's
request that previously admitted testimony be read to it lies
solely within the discretion of the trial court.” State v.
Weddington, 329 N.C. 202, 207, 404 S.E.2d 671, 675 (1991). Here,
the jury foreperson asked the court if Detective Hulsey indicated
a date upon which she first learned that Mr. Kennedy knew defendant
from before the robbery. The court reporter reviewed the testimony
of Detective Hulsey and advised the court that there was no
specific date mentioned on which Detective Hulsey received this
information. After consulting with the parties, the courtinstructed the jury that it was their duty to recall the evidence
presented. Defendant has failed to show that the trial court's
decision was an abuse of its discretion.
We have reviewed the remaining assignments of error and find
that they are without merit.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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