STATE OF NORTH CAROLINA
No. 04 CRS 56238
ALLEN DWAYNE BROWN
Attorney General Roy Cooper, by Assistant Attorney General
Alexandra M. Hightower, for the State.
Daniel F. Read for defendant-appellant.
The trial court properly admitted evidence on the identification of defendant in a photographic lineup and testimony regarding the location of defendant's arrest. The trial court did not err in denying defendant's motion to dismiss for insufficiency of the evidence. The trial court's flight instruction to the jury was proper.
On 15 September 2004 between five o'clock and six o'clock in the morning, two men entered the home occupied by Heather Norton (Norton) and Dwione Baxter (Baxter). One of the men entered by kicking in the front door. The other entered through the back door. Norton and Baxter were sleeping in their bedroom. Norton's three children were asleep at the other end of the house. Both men entered the bedroom carrying guns, turned on the lights, and shouted give it up. One of the men wore a mask covering his entire face and was unidentifiable. The second, identified as defendant, wore a bandanna over his mouth and a camouflage hat. Defendant put a gun to Norton's eye, and demanded that she give it up. Norton begged to go to her children. Defendant instructed the other man to go handle the children. Norton told defendant to take whatever he could find, just not to hurt anyone. The men fled with several hundred dollars in cash, jewelry, and an X-box. When they left, Norton saw the get-away car illuminated by an outside light.
Norton contacted the police that afternoon. She did not know either intruder, but was able to give a description of the man wearing the bandanna to the police. Baxter told police he recognized defendant as a man named Allen. At trial Baxter testified he had known defendant for about a month before the crime, that defendant lived in Red Springs, and had previously been to the house.
On 19 January 2005, Baxter signed a written statement and identified defendant in a photographic lineup. Norton signed a written statement on 19 January 2005 and identified defendant in a photographic lineup on 25 January 2005. Detective Strickland of the Robeson County Sheriff's Department testified that after defendant was arrested and placed in jail, he prepared two photographic lineups, one for each victim, using head shots of defendant and five other men in orange uniforms. The two lineupcompilations placed defendant in different positions. Norton and Baxter were both instructed that the perpetrator may not be present on the lineup. The victims could not see height or weight by the photos. Baxter identified defendant in four seconds. Norton identified defendant in three seconds.
On 13 June 2005, defendant was indicted on charges of robbery with a dangerous weapon and first degree burglary. On 25 May 2006, a jury found defendant guilty of both charges. Judge Floyd sentenced defendant to 57-78 months imprisonment for robbery with a dangerous weapon and 57-78 months imprisonment for first degree burglary, with the sentences to run consecutively. Defendant appeals.
In his first argument, defendant contends that the trial court erroneously admitted evidence of the victims' identification of defendant in photographic lineup. We disagree.
A party must preserve a question for appellate review by presenting a timely request, objection or motion, stating the specific grounds for the ruling the party desire[s] the court to make if the specific grounds [are] not apparent from the context. N.C. R. App. P. 10(b)(1) (2007). The complaining party must also obtain a ruling upon the party's request, objection or motion to preserve error. Id.
The assignments of error assert that the victims' identification of defendant was a product of overly suggestive police action. However, defendant made no pretrial motion to suppress evidence of the photographic lineups. Further, defendantmade no objection to victims' testimony regarding their prior identification of defendant by means of the photographic lineups.
At trial, defendant objected to the admission of the lineups into evidence first, on the ground of failure to lay a proper foundation and, second, without stating a specific ground. These objections do not preserve the defendant's assignment of error. Defendant does not assert plain error as to this assignment of error. He therefore failed to preserve this argument for appellate review. State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269, 271 (1995); see also State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997). This argument is dismissed.
In his second argument, defendant contends that the trial court erred in admitting testimony by the detective indicating the location of defendant's arrest. We disagree.
This assignment of error is based upon the following objection, which occurred during the direct examination of Detective Strickland:
[STATE]: Do you know when he was brought back to North Carolina?
[THE WITNESS]: Yes, sir.
[DEFENSE]: Your Honor, I object.
THE COURT: Basis?
[DEFENSE]: To the form of the question, Your Honor. He was brought back like my client was incarcerated or something like that.
[STATE]: I'll change it.
THE COURT: All right, sir.
(emphasis in original). At that point, the assistant district attorney rephrased the question and proceeded with the examination of Detective Strickland, without objection. Defendant failed to obtain a ruling on his original objection, and failed to object to the rephrased question. There is nothing preserved in the record for this Court to review. N.C. R. App. P. 10(b)(1) (2007). This argument is dismissed.
In his third argument, defendant contends that the trial court erred in denying defendant's motion to dismiss for insufficiency of the evidence. We disagree.
When a defendant moves for dismissal, the trial court must determine if the State has presented substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense, viewing the evidence in the light most favorable to the State. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)(quotations omitted). The evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. Id.
Defendant asserts that the testimony of witnesses for the State was not believable, arguing that: the testimony by Norton and Baxter. . .was inherently incredible, that they positively identified him for the first time after four months, which they tried to explain away 'as a few days.' However, the question of credibility of the evidence is a question for the jury. State v. Hardin, 38 N.C. App. 558, 560, 248 S.E.2d 458, 459 (1978). This argument is without merit. In his fourth argument, defendant contends that the trial court erroneously instructed the jury on flight. We disagree.
A jury instruction on flight is proper where some evidence in the record reasonably support[s] the theory that defendant fled after commission of the crime charged. State v. Levan, 326 N.C. 155, 164-65, 388 S.E. 2d 429, 434 (1990) (quotations omitted). Mere evidence that the defendant left the scene of the crime is insufficient to support an instruction on flight. State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). Rather, evidence must also support that the defendant attempted to avoid apprehension. Id. An instruction on flight will not be improper solely because other reasonable explanations may also account for the defendant's conduct. State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977).
This Court has held that errors must be material and prejudicial in order to warrant a new trial. State v. Hutchinson, 139 N.C. App. 132, 139, 532 S.E.2d 569, 574 (2000). Further, this Court will not grant a new trial absent a showing that [defendant] was prejudiced by the admission of the evidence. Id. The defendant must meet this burden by showing a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. N.C. Gen. Stat. § 15A-1443(a) (2005).
In the instant case, the two victims positively identified defendant, without objection, as one of the perpetrators that fled in the get-away car following the robbery on 15 September 2004. Evidence showed that defendant lived in his father's home in Red Springs, North Carolina, on the date of the robbery. Defendant was in Virginia two days later. Officials arrested defendant on 30 December 2004, more than three months after the robbery. He arrived back in North Carolina that same date. Evidence showed that he was extradited from either West Virginia or Virginia.
Even assuming, arguendo, that the trial court erred in giving a flight instruction to the jury, defendant fails to meet his burden to show prejudice under N.C. Gen. Stat. § 15A-1443(a). Defendant merely asserts that the speculative evidence of flight biased the jury. He fails to demonstrate a reasonable possibility that the jury would have reached a different result absent the error. See Hutchinson, 139 N.C. App. at 139, 532 S.E.2d at 574. This argument is without merit.
Defendant failed to argue his remaining assignments of error in his brief and they are therefore abandoned. N.C. R. App. P. 28(b)(6) (2007).
Judge BRYANT concurs.
Judge LEVINSON concurred prior to 7 July 2007.
Report per Rule 30(e).
*** Converted from WordPerfect ***