An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 February 2006
STATE OF NORTH CAROLINA
Nos. 01 CRS 002156-57
COREY MAURICE DAVIS
Appeal by defendant from judgments entered 6 September 2001 by
Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard
in the Court of Appeals 11 January 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert R. Gelblum, for the State.
Anne Bleyman for defendant appellant.
Defendant appeals from judgments entered 6 September 2001
after jury verdicts of guilty of conspiracy to commit robbery with
a dangerous weapon and robbery with a firearm charges. We find no
On 5 February 2001 a Mecklenburg County grand jury indicted
defendant on the charges of conspiracy to commit robbery with a
dangerous weapon against Sisay Zerihun and robbery with a dangerous
weapon of Sisay Zerihun. A motion to suppress the pretrial
identification of defendant was filed 3 May 2001 which was later
denied by the court. The case against defendant proceeded to trial
on 4 September 2001. The evidence presented at trial by the State tended to show
the following: On 21 December 2000 three young men entered a
convenience store, Five Points Discount Beverage, Inc., owned by
Mr. Sisayshe Zerihua (Mr. Zerihua) and Gedewon Kansa (Mr. Kansa)
located in Charlotte, North Carolina. Mr. Zerihua was working that
day and recognized two of the three men as regular customers.
After idling in the store for a few minutes, Corey Davis
(defendant) pulled a rifle from his jacket, pointed the rifle at
Mr. Zerihua and stated, Give me the money. Defendant continued
to point the rifle at Mr. Zerihua while the other two perpetrators,
Maurice Polk and Charles Edward Toney (Mr. Toney), proceeded behind
the store counter and demanded that he open the register. The two
perpetrators behind the counter searched Mr. Zerihua and took the
wallet from his pocket and $680.00 in cash from the store register.
The entire time that the two perpetrators were behind the counter,
defendant was pointing the rifle at Mr. Zerihua. After taking the
money out of the register and the wallet, the three men fled the
store. Mr. Zerihua then pressed the panic button and called the
Shortly after the robbery occurred, police officers responding
to the call observed someone run from behind a store and jump onto
an unstopped bus in the vicinity of the convenience store. Officer
Simpson followed the bus until the person he observed boarding the
bus exited. When the man exited, Officer Simpson determined that
he matched the description of one of the robbers and immediately
arrested him. Mr. Zerihua was taken to view the person in custodyand upon seeing him stated, 'That is the guy that was behind the
counter.' The apprehended person was later identified as Mr.
Toney. Officer Simpson testified at trial that at the time of
apprehension Mr. Toney was searched and was found carrying loose
bills in his pocket; however, Officer Simpson was unable to
remember the amount of money or the denomination of the bills.
In the ensuing days after the robbery, Mr. Zerihua questioned
customers in order to obtain the names of two of the robbers whom
he recognized as regular patrons of the convenient store. Mr.
Zerihua inquired with customers familiarly associated with the
suspects as to the suspect's names and was given the names Corey
Davis and Maurice Polk. Detective Ledford found a person by the
name of Corey Davis in the arrest database and prepared a
photographic lineup which was shown to Mr. Zerihua on 5 January
2001. Mr. Zerihua immediately identified defendant, Corey Davis,
as the person holding the rifle in the robbery. Mr. Zerihua also
identified defendant at trial as the assailant who pointed the
rifle at him during the robbery.
At trial, defendant made a motion to suppress the pretrial
identification by Mr. Zerihua on the basis that the pretrial
identification was in violation of defendant's constitutional
rights as it was based solely on hearsay. The motion to suppress
was denied by the court. At trial, Mr. Zerihua testified as to his
conversations with customers regarding the names of the robbers.
At the close of the State's evidence, counsel for defendant
made a motion to dismiss the charges; however, counsel fordefendant failed to make a motion to dismiss at the close of all
the evidence. During deliberations, the jury submitted a note to
the court asking the court what was the approximate amount of money
found on Mr. Toney when he was arrested. After conferring with
counsel, the trial judge brought the jury in and gave the following
Members of the jury, I cannot answer that
question for you. It is an evidentiary
question which is a matter of evidence for you
to recall. If there is any evidence about that
matter, it is your duty to recall the evidence
as it was presented. If there is no evidence
about that matter, it is your duty to decide
the case based upon the evidence that has been
presented. That is all I can tell you about
it, so you may be returned to your jury room
to continue your deliberations.
The jury returned a verdict of guilty on the charges of conspiracy
to commit robbery with a dangerous weapon and robbery with a
Defendant now appeals.
Defendant first contends on appeal that the trial court erred
in denying the motion to suppress the pretrial identification by
Mr. Zerihua where it was based on hearsay evidence and further
allowing testimony regarding the pretrial identification. We
A trial court is deemed to have discretion in determining
whether to grant a motion in limine and absent an abuse of that
discretion, the decision of the trial court will not be overturned.State v. Hightower, 340 N.C. 735, 746-47, 459 S.E.2d 739, 745
(1995). Defendant contends that the trial court abused its
discretion in basing the following finding on hearsay evidence:
[U]pon being shown the six pictures in State's
Exhibit A, Mr. Zerihua identified immediately
the Defendant in this case. That
identification _ the inclusion of that
photograph came as a result of Mr. Zerihua's
somewhat zealous investigation within the
community to identify the name of the person
who robbed him. The face of the person who
robbed him was well known to Mr. Zerihua, but
he did not know the name. He worked hard to
find out the name and he called the police and
told them the name of this Defendant, Corey
Davis. He had earlier told the police the name
of Decorey Davis. The Detective found a
picture of Corey Davis and put it in the line-
up. He went directly to Mr. Zerihua who
identified the Defendant, Corey Davis, from
the six pictures presented.
Defendant's argument is unpersuasive. First and foremost, a
photographic lineup is an acceptable method by which to obtain a
pretrial identification and is admissible as long as it is not so
impermissibly suggestive as to give rise to a substantial
likelihood of irreparable misidentification. Simmons v. United
States, 390 U.S. 377, 19 L. Ed. 2d 1247 (1968). Defendant does not
contend though that the pretrial identification was impermissibly
suggestive; instead defendant contends that it improperly rested on
hearsay testimony. However, the policy of disallowing hearsay in a
trial is to prevent the jury from hearing such evidence, not to
disallow pretrial identifications from being based on such
evidence. We note that the very essence of a pretrial motion is to
prevent the jury from hearing potentially prejudicial evidence.Hightower, 340 N.C. at 746-47, 459 S.E.2d at 745. We decline to
find that the rules prohibiting hearsay evidence at trial have any
bearing on the methods by which a pretrial identification is made.
Therefore, this assignment of error is overruled.
Defendant further contends that it was error for the court to
allow testimony at trial regarding the pretrial identification.
This Court has held that a pretrial motion to suppress is not
sufficient to preserve for appellate review the admissibility of
evidence and therefore an objection must have been made at the time
the evidence was offered at trial. State v. Golphin, 352 N.C. 364,
405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L.
Ed. 2d 305 (2001), cert. denied, 358 N.C. 157, 593 S.E.2d 84
(2004). Even assuming that the objection was properly preserved for
appellate review, there was no error in the admission of testimony
regarding the pretrial identification.
'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). If an out-of-court statement is
offered for a purpose other than to prove the truth of the matter
asserted, then it is not hearsay and is admissible for the purpose
offered. State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513
(1998), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001). One
such situation is when the statement explains the subsequent
conduct of the person to which the statement is directed. State v.Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990), cert. denied,
421 S.E.2d 360 (1992).
In the instant case, the evidence was offered to explain the
subsequent conduct of the police in placing defendant's picture in
a photographic lineup. Though this issue is not raised on appeal
and was not requested by defendant at trial, the trial court should
have offered a limiting instruction to the jury in order to explain
the purpose for which the evidence was offered. (The admission of
evidence which is competent for a restricted purpose without
limiting instructions will not be held to be error in the absence
of a request by the defendant for such limiting instructions.
Coffey, 326 N.C. at 286, 389 S.E.2d at 59 (1990)). However, there
was no error in admitting the testimony for a purpose sanctioned
under the Rules of Evidence and this Court. Therefore, this
assignment of error is overruled.
Next, defendant contends that the trial court erred in failing
to find that there was a fatal variance in the indictment because
the victim was improperly identified. We disagree.
We note that while defendant did not raise this issue at
trial, we nevertheless consider defendant's argument because where
it appears from the face of the indictment that the conviction and
sentence are void, this Court will, of its own motion, arrest
judgment. Call, 349 N.C. at 424, 508 S.E.2d at 522 (1998). Where
a variance exists between the name of a victim as it appears in the
indictment and as substantiated by the evidence presented at trial,our Supreme Court has stated that '[w]here an indictment charges
the defendant with a crime against someone other than the actual
victim, such a variance is fatal.' Id. (citation omitted).
However, in State v. Cameron, this Court held that where the record
reveals that the victim's name as alleged in the indictment is
sufficiently similar to the victim's name as evidenced at trial,
and the proof at trial matched the indictment's allegations in all
other respects, defendant was not surprised or placed at any
disadvantage in preparing his defense to the crimes charged in the
indictment. State v. Cameron, 73 N.C. App. 89, 92, 325 S.E.2d 635,
637 (1985), disc. review denied, 315 N.C. 592, 341 S.E.2d 31
(1986). Further, under the rule of idem sonans, meaning sounds the
same, absolute accuracy in the spelling of names in connection with
legal proceedings, even in felony indictments, is not required.
State v. Wilson, 135 N.C. App. 504, 508, 521 S.E.2d 263, 265
(1999). Names are mere conduits to identify people and if the
spelling used adequately identifies the victim and the defendant is
not misled to his prejudice, he has no complaint. Id.
In the instant case, the indictment incorrectly identified the
victim as Sisay Zerihun and it was later determined at trial that
the correct name of the victim was Sisayshe Zerihua. The two
spellings are sufficiently similar to identify the victim of the
crime. See State v. Isom, 65 N.C. App. 223, 226, 309 S.E.2d 283,
285 (1983) (holding that the names 'Eldred,' 'Elred,' and
'Elton' were sufficiently similar to fall within the doctrine of
idem sonans and that the variance between the indictment and theproof at trial was wholly immaterial). Further, it was clear from
the evidence at trial that the person alleged in the indictment was
in fact the victim in this case. Mr. Zerihua testified that he is
a co-owner of Five Points Discount Beverage, Inc., which was the
store in which the robbery occurred, and moreover that he was
working as store clerk at the time of the incident. He testified
that defendant pointed a gun at him while the other two accomplices
took his wallet and the money from the register. Mr. Zerihua
identified defendant in the photographic lineup shown to him by
police officers and further identified defendant as one of the
perpetrators at trial. Where defendant and the jury were certain of
the identity of the victim, the variance between the indictment and
the evidence at trial is immaterial and therefore this assignment
of error is overruled.
Defendant further contends that the trial court erred in
failing to exercise discretion as required by N.C. Gen. Stat § 15A-
1233(a) in responding to a jury request to review evidence during
deliberations. We disagree.
The decision to grant or deny a jury request for a review of
evidence is committed to the discretion of the trial court. N.C.
Gen. Stat. § 15A-1233(a) (2005). We have held that the trial court
errs where it does not exercise its discretion in determining
whether the jury should be allowed to review the evidence
introduced at trial. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652(1985). However, we conclude that this principle has no
In the instant case, the trial judge received a request from
the jury during deliberations asking the court what amount of money
was found on Mr. Toney when he was arrested. The trial judge
responded, I cannot answer this question for you. The judge
further instructed the jury that this was a matter of evidence
which they themselves must recall and required that they rely on
their own recollection of the evidence and apply it properly. It
cannot be said that this was error. See, e.g., State v. Lawrence,
352 N.C. 1, 27-28, 530 S.E.2d 807, 824 (2000) (concluding that the
trial court did not impermissibly deny the jury's request to review
certain testimony based solely on the unavailability of the
transcript where the trial court instructed the jury as follows:
[M]embers of the jury, it is your duty to recall the evidence as
the evidence was presented. So you may retire and resume your
deliberation.), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684
The transcript is devoid of any testimony as to the amount of
money found on Mr. Toney when he was arrested. Officer Simpson
could not recall the amount during his testimony and the State was
unable to refresh his recollection. Therefore, the jury's question
related to a point for which no direct evidence had been
introduced. Assuming that the jury's request was, in effect, a
request to review the arresting officer's testimony, the trial
court did not abuse its discretion as to whether to allow the juryto review evidence on a point, when no such evidence was in the
record. State v. Porter, 340 N.C. 320, 329-30, 457 S.E.2d 716,
720-21 (1995). Therefore, this assignment of error is without
Lastly, defendant contends that he received ineffective
assistance of counsel where his attorney failed to make a motion to
dismiss at the close of all the evidence. We disagree.
A defendant's right to counsel includes the right to the
effective assistance of counsel. State v. Braswell
, 312 N.C. 553,
561, 324 S.E.2d 241, 247 (1985) (citation omitted). When a
defendant attacks his conviction on the basis that counsel was
ineffective, he must show that his counsel's conduct fell below an
objective standard of reasonableness. Strickland v. Washington
U.S. 668, 80 L. Ed. 2d 674, reh'g denied
, 467 U.S. 1267, 82 L. Ed.
2d 864 (1984). In order to meet this burden defendant must satisfy
a two-part test.
First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted).
Thus, if a reviewing court can determine at the outset that there
is no reasonable probability that in the absence of counsel'salleged errors the result of the proceeding would have been
different, then the court need not determine whether counsel's
performance was actually deficient. Braswell
, 312 N.C. at 563, 324
S.E.2d at 249. After examining the record we conclude that there is
no reasonable probability that any of the alleged errors of
defendant's counsel affected the outcome of the trial.
Counsel for defendant made a motion to dismiss at the close of
the State's evidence which was denied by the trial court. There is
no evidence that any probability exists that the trial court would
have granted the same motion to dismiss at the close of all the
evidence, as the State had presented substantial evidence on all
elements of the crimes charged. Therefore, this assignment is
Accordingly, the trial court did not err in denying the motion
to suppress the pretrial identification of defendant, in finding no
fatal variance in the indictment, or in instructing the jury after
a request to review evidence. Further, defendant did not receive
ineffective assistance of counsel where counsel failed to renew the
motion to dismiss at the close of all the evidence.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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