An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Guilford County
Nos. 03 CRS 105293 - 105294
KEVIN BLAKELY MCEWEN
Appeal by defendant from judgment entered 21 July 2005 by
Judge Anderson D. Cromer in Guilford County Superior Court. Heard
in the Court of Appeals 2 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gary R. Govert, for the State.
Winston & Maher, by Thomas K. Maher, for defendant-appellant.
Kevin Blakely McEwen (defendant) appeals from judgment
entered after a jury found him to be guilty of first-degree rape
and first-degree sexual offense. We find no error.
A. State's Evidence
The State's evidence tended to show that after midnight on 30
April 2003 defendant acted in concert with Bobby Wall (Wall),
Kenny Roberts (Roberts), and Keith Watson (Watson) to
burglarize a house located at 708 Willoubar Terrace in High Point,
North Carolina. The defense did not contest evidence that the
house's four occupants, Aaron Bodenhamer (Bodenhamer), Joshua
Starnes (Starnes), Marcie Devinney, and the victim were robbed atgunpoint during the incident. The victim was forced into a
bathroom by one of the gunmen and subjected to non-consensual
cunnilingus and vaginal intercourse. The issue placed before the
jury was the identity of the victim's assailant.
Bodenhamer testified three of the men came to the front porch
of his residence and asked to purchase marijuana. After Bodenhamer
returned to the door with the marijuana, the men threatened him
with a handgun, pushed him into the house, and placed a towel over
his head. The intruders ordered Starnes and the victim to put
their faces down into the living room couch. A gunman kicked open
the door to Devinney's room and ordered her and Bodenhamer to lie
on her bed with their faces down. After taking money and other
valuables from the occupants, two of the robbers left the house.
The man who had threatened Bodenhamer and Devinney with the gun
stayed in the house, yelling to his associates not to leave without
him. He forced the victim into the bathroom adjoining to her
bedroom and sexually assaulted her. When the gunman left the
house, the victim telephoned her mother. The victim, along with
Devinney and the victim's mother, went to the emergency room at
High Point Regional Hospital. A sexual assault nurse examiner
administered a rape kit to the victim and collected, inter alia, a
DNA scraping from the victim's cheek, swabs from her vagina and
thighs, and the panties she wore immediately after the rape.
The victim identified defendant before the jury as the man who
forced her into the bathroom and raped her. The victim based her
identification on the sound of defendant's voice in the courtroom. She characterized her attacker as having a little bit of a New
York accent. Devinney also described the gunman who kicked in her
bedroom door as having a northern accent. Bodenhamer testified
that the gunman who took the victim into the bathroom sounded like
he was from up North[,] and described him as a stocky guy, light-
skinned and [b]ald.
Wall testified for the State after pleading guilty to four
counts of robbery with a dangerous weapon. Wall knew defendant by
the nickname New York and had been introduced to defendant by
Watson a couple of months before the incident. According to
Wall, defendant drove with Roberts and Watson to Willoubar Terrace
on 30 April 2003 looking for marijuana. When they arrived,
defendant and Watson went to the front door of the house, while
Roberts went around the back. Defendant and Watson carried guns.
Wall stayed in the car with the door open watching them. When an
occupant appeared at the door, defendant drew his gun and the group
entered the house. Wall estimated that Roberts and Watson stayed
inside the house for ten to fifteen minutes, emerging with a safe
or box and probably some marijuana. Defendant remained in the
house [a]bout 15, 10 minutes longer than Watson and Roberts
before returning to the car and driving Wall home.
High Point Police Officer Shawn Hosier (Officer Hosier) took
statements from the four victims on the morning of 30 April 2003,
but was unable to identify any suspects until he was assigned to
investigate the later slaying of Roberts in October 2003. In the
course of the Roberts's homicide investigation, Officer Hosierspoke to Wall, who ultimately provided an account of the Willoubar
Terrace robberies consistent with his trial testimony. Although
Wall identified defendant only as New York, he provided Officer
Hosier with a physical description of defendant and his car and
identified the neighborhood where defendant lived. Officer Hosier
determined defendant's identity through motor vehicle records,
after locating his car in the neighborhood described by Wall. When
Officer Hosier showed Wall defendant's photograph, Wall confirmed
the individual's identity as New York.
Officer Hosier arrested defendant in November 2003. Defendant
initially claimed to have no knowledge of the events at Willoubar
Terrace, but later admitted thathe was the driver of the vehicle
that night and expected to get a portion of the proceeds of the
robbery. He denied entering the house or committing a sexual
assault. Hosier obtained warrants for DNA samples from the three
surviving suspects: Wall, Watson, and defendant.
A forensic serologist and DNA analyst from the North Carolina
State Bureau of Investigation (SBI) testified that spermatozoa
and an amylase indicative of saliva were found on the vaginal
smears and on the panties in the victim's rape kit. DNA analysis
revealed a mixture of two people on both the vaginal swabs and
the victim's panties. The predominant DNA profile in the mixture
matched the victim. Although the analyst excluded Watson and Wall
as potential sources of the second DNA profile in the mixture, the
SBI could not exclude defendant as the contributor of the weaker
profile. An expert in genetics and statistics from North Carolina State
University testified that it was 1.6 billion times more likely
that defendant, rather than an unknown person, contributed the
second DNA profile to the mixture found on the victim's vaginal
swabs and on her panties.
B. Defendant's Evidence
Defendant testified he was born in Brooklyn, New York and
lived there until moving to North Carolina at twenty-one years of
age. He acknowledged pleading guilty to burglary, robbery, and
conspiracy charges arising from the incident at Willoubar Terrace,
but claimed that his role was limited to driving the getaway car.
He denied either entering the residence or raping the victim.
Defendant testified he drove Watson, Roberts, and Wall to the
Five Points neighborhood on 30 April 2003, looking for marijuana.
Unable to find drugs at this location, Watson directed defendant to
drive to Willoubar Terrace. As defendant drove, his passengers
discussed committing a robbery. Defendant expected to be given
some of the marijuana taken in exchange for driving the men.
Defendant claimed he remained inside his car during the incident
and was unable to see where his co-defendants went after they
exited his car. The three men returned to the car as a group five
or ten minutes later and said nothing about what had happened in
the house. Defendant drove away from the scene and received a
dime bag of marijuana from the others. At the time of his arrest,
defendant denied his involvement in the crimes because he no longer
interacted with any of the participants and really didn'tremember. He later recalled the incident and told Officer Hosier
what he knew.
Defendant was found guilty by a jury of first-degree rape and
first-degree sexual offense. The trial court consolidated the
offenses for judgment and sentenced him to an active prison term of
240 to 297 months. Prior to trial, defendant entered a guilty plea
pursuant to North Carolina v. Alford, 400 U.S. 25, 37-39, 27 L. Ed.
2d 162, 171-72 (1970), to additional charges of burglary,
conspiracy to commit armed robbery, and four counts of armed
robbery arising from the same incident. After announcing
defendant's sentence for the rape and sexual assault, the trial
court sentenced defendant to an additional consecutive term of
sixty-four to eighty-six months for the offenses covered by his
Alford plea. Although defendant gave notice of appeal in open
court, we note his appeal is taken only from the judgment entered
upon the guilty verdicts in the rape [03 CRS 105293] and sexual
offense [03 CRS 105294] charges.
Defendant claims the trial court erred in denying his motion
to suppress the results of a photographic lineup presented to
State's witness Maurice Rogers (Rogers) by Officer Hosier in
The record on appeal includes additional assignments of error
not addressed in defendant's brief. Pursuant to N.C.R. App. P.
28(b)(6), we deem them to be abandoned.
III. Motion to Suppress
A. Standard of Review
In denying defendant's motion to suppress, the trial court
concluded nothing was impermissibly suggestive about the
organization of the lineup and the way it was presented and how it
was presented to Maurice Rogers. The trial court found Rogers's
opportunity to observe the men, the accuracy of his description of
at least one of them, and the certainty with which he identified
defendant sufficient to withstand constitutional scrutiny. The
court also found the span of time between Rogers's observation of
the men and the lineup did not undermine the admissibility of the
identification. The trial court noted that the circumstances
surrounding the identification were ripe for cross-examination in
any way, shape, or form that the defendant sees fit.
Review of the denial of a motion to suppress is limited to
determining whether the trial judge's underlying findings of fact
are supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual findings
in turn support the judge's ultimate conclusions of law. State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Absent a
material conflict in the evidence at the suppression hearing, the
trial court need not enter findings of fact to support its ruling.
State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995).
[T]he necessary findings are implied from the admission of the
challenged evidence. Id.
Under constitutional principles of due process, a witness's
pretrial identification of the defendant is inadmissible 'wherethe facts reveal a pretrial identification procedure so
impermissibly suggestive that there is a very substantial
likelihood of irreparable misidentification.' State v. Pinchback,
140 N.C. App. 512, 518, 537 S.E.2d 222, 225-26 (2000) (quoting
State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)).
Assessing the admissibility of such evidence requires a two-part
analysis. State v. McCree, 160 N.C. App. 19, 24, 584 S.E.2d 348,
352, appeal dismissed and disc. rev. denied, 357 N.C. 661, 590
S.E.2d 855 (2003). We must first determine whether the
identification procedures at issue were impermissibly suggestive.
Only if the procedures were impermissibly suggestive must we then
move to the second part of the inquiry and determine whether the
procedures created a substantial likelihood of irreparable
misidentification. Id. The determination of the existence of a
substantial likelihood of irreparable misidentification should be
based upon the totality of the circumstances, including a
consideration of whether: 1) [t]he 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. State v.
Pigott, 320 N.C. 96, 99-100, 357 S.E.2d 631, 633-34 (1987).
At trial, Rogers testified he stopped briefly at 708 Willoubar
Terrace on 30 April 2003. As he was leaving, he passed two men on
the front porch and called Bodenhamer to the door. Rogers wasshown by the State a series of four photographic lineups prepared
by Officer Hosier. Rogers identified defendant as one of the two
men he observed on Bodenhamer's porch on 30 April 2003.
At the pre-trial suppression hearing, Officer Hosier testified
he interviewed Rogers within hours after the robberies and sexual
assault at 708 Willoubar Terrace occurred. Rogers told Officer
Hosier that he had encountered two baldheaded black males
standing on Bodenharmer's front porch as he was leaving the house
right around midnight on 30 April 2003. One of these men, whom
Rogers described as 5'11, with a light skin complexion[,] asked
him if anyone in the house had marijuana. Rogers called Bodenhamer
to the front door telling him, there's somebody here to see you.
As Rogers left the scene, he saw a third male on the street,
wearing a gray windbreaker with a hoodie. He described that male
as 5'6 in height . . . with a goatee.
Having identified defendant, Rogers, Wall, and Watson as
suspects in the case, Officer Hosier prepared four photographic
lineups each containing one suspect and presented them to Rogers on
9 December 2003, as follows:
I had all the lineups contained in one folder.
I instructed Mr. Rogers that there had been an
arrest in this case, and I wished to show him
lineups to see if he could identify anybody he
may have seen when he exited out of the
residence. I explained to him again the fact
that hairstyles can change, facial hair can
change from when the photograph was taken to
when he actually saw this person or persons.
I then asked him if he could identify
somebody, to do so. If not, then he was not
compelled to identify anybody.
Rogers identified defendant's picture from a lineup of sixphotographs, telling Officer Hosier that he remembered the shape
of his face and the shape of his head and jaw line. Rogers did
not identify any other person from the four lineups.
Rogers testified he observed two males standing on the front
porch of Bodenhamer's residence on the morning of 30 April 2003,
and identified defendant as one of the guys that was on the porch
that night in a photographic lineup presented by Officer Hosier in
December 2003. Officer Hosier referred to the incident on 30 April
2003 before displaying the photographs, but did not tell Rogers
anything about who [he was] looking for. Rogers testified that
Officer Hosier instructed him to view the lineups as follows: He
was going to show me six pictures. If I didn't see nobody on it,
then don't mark nothing. Rogers could not recall how many lineups
he viewed. Rogers selected only defendant's photograph and
recognized him by the structure of his head, [and] how his head
was built. On cross-examination, Rogers explained that although
there was no light source on the front porch, the porch was
illuminated by an interior light in the front room of the house.
Rogers estimated that he was on the porch only for a few seconds.
Defendant offered no evidence at the suppression hearing.
C. Impermissibly Suggestive
Defendant argues Rogers's seconds-long observation of the two
men on the darkened porch was insufficient as a matter of law to
allow him to make a reliable identification of either man seven
months later. Defendant faults Officer Hosier for informing Rogers
that an arrest had been made in the case prior to showing him thelineups. Defendant also argues Rogers simply picked a photograph
of someone who reminded him of someone he knew.
Defendant failed to object to the evidence of Rogers's
photographic identification at trial, as required to preserve the
denial of his motion in limine for appellate review. State v.
Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723, cert. denied, 534
U.S. 838, 151 L. Ed. 2d 54 (2000). Rule 103(a)(2) of the North
Carolina Rules of Evidence was amended to provide that [o]nce the
[trial] court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal. See State v. Brown, ___ N.C. App. ____, ____, 631
S.E.2d 49, 51 (2006).
The facts recounted at the suppression hearing fully support
the trial court's conclusion that the procedures resulting in
Rogers's pretrial identification of defendant were not
impermissibly suggestive. Defendant presented no evidence which
tended to suggest that the lineups were assembled or presented to
Rogers in any manner to induce his identification of defendant.
McCree, 160 N.C. App. at 26, 584 S.E.2d at 353. Rogers was shown
four lineups with six photographs each, only one of which contained
defendant's photograph. The three remaining lineups each included
a photograph of another participant in the robberies. Officer
Hosier did nothing to direct Rogers to defendant's lineup. Our
examination of defendant's lineup reveals nothing in its
arrangement or composition which tends to distinguish defendant'sphotograph from the five other photographs displayed therein.
Absent any evidence of an impermissibly suggestive pre-trial
identification procedures, we need not proceed to the second step
of the due process analysis set forth in McCree and Pigott.
McCree, 160 N.C. App. at 26, 584 S.E.2d at 353; Pigott, 320 N.C. at
99-100, 357 S.E.2d at 633-34. We hold the trial court properly
denied defendant's motion to suppress. Defendant's assignment of
error is overruled.
The trial court did not err in allowing pretrial
identification of defendant by Rogers. Defendant failed to present
any evidence that the pretrial identification was suggestive or
directed. Defendant received a fair trial free from prejudicial
errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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