Appeal by Defendant from judgments entered 1 June 1998 by
Judge Robert L. Farmer in Superior Court, Wake County. Heard in
the Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for Defendant-Appellant.
Luprise Davon Lincoln (Defendant) was indicted on 23 June 1997
for the first-degree murder of Sean Reginald Easter (Easter) and
for assault with a deadly weapon with intent to kill Jacques Beatty
(Beatty). Defendant was tried capitally and found guilty of both
charges. The jury was unable to agree on Defendant's sentence in
the murder charge; therefore, the trial court sentenced Defendant
to life imprisonment without parole. On the assault charge,
Defendant was sentenced as a prior record level two and received a
sentence of twenty-nine months to forty-four months in prison, to
run consecutively with the life sentence. Defendant appeals.
Prior to trial, Defendant moved to suppress Beatty's
identification of Defendant from a photographic lineup. Defendantcontended that Beatty told police that the shooter wore a "black
pilot-style jacket with a high collar" and that Defendant was the
only individual pictured in the lineup wearing a jacket matching
that description. Therefore, Defendant argued that the lineup was
tainted and suggestive. The trial court held a hearing on
Defendant's motion to suppress on 18 May 1998 and denied
Defendant's motion in open court. In an order filed 16 July 1998,
the trial court concluded that Defendant's federal and state
constitutional rights were not violated by the pretrial
identification procedures used. The trial court also concluded
that the procedures employed "were not in any manner suggestive,
were not conducive to irreparable mistaken identification, and did
not offend fundamental standards of decency, fairness, and
justice." The trial court also concluded that, even if the
pretrial identification procedures were suggestive, Beatty's in-
court identification of Defendant was of independent origin and,
therefore, was not tainted. The trial court denied Defendant's
motion to suppress Beatty's identification of Defendant.
Beatty testified for the State about the events which occurred
in his apartment on the evening Easter was killed. Beatty
testified that on 6 May 1997, he was living in an apartment on
Melvid Court (the apartment) with Tyrone Bragg (Bragg). Beatty and
Bragg invited Easter to stay with them because Easter had "no
steady place to stay." Beatty returned to the apartment between
10:00 p.m. and 11:00 p.m. on 6 May 1997. Easter and Bragg were in
the apartment playing a video game. The three men decided to cook,and Easter and Bragg left the apartment to buy supplies. Easter
and Bragg returned, and Easter began cooking the food the two had
purchased. Easter realized they had forgotten something, and Bragg
said he would be leaving to pick up a friend and would pick up the
needed item at the same time. Bragg left the apartment.
Beatty and Easter remained in the apartment. Beatty was lying
on the floor watching television. From where he was lying, he
could see the front door of the apartment. Easter was cooking in
the kitchen. Beatty heard a knock, and Easter left the kitchen and
opened the front door. Beatty saw two African-American men at the
door and heard one of the men ask for Bragg. Easter told the men
Bragg was not home. The shorter of the two men entered the
apartment, smoking a cigar. Beatty thought the man's face looked
"vaguely familiar." He told the man to take the cigar outside, and
the man left the apartment. Beatty saw the man put out the cigar
on the railing outside. Beatty turned his attention back to the
television but heard the other man standing at the door say,
"What's up with some Gores." Beatty understood this question to be
a request to buy a pair of boots, because Bragg sold clothing out
of the apartment. As Beatty began to rise up from the floor, he
heard a gunshot and a moan. He then heard someone fall to the
floor, and he assumed it was Easter.
Beatty saw the man take a step around the wall in front of the
front door, holding a gun, and Beatty began running toward the man.
The man hit Beatty in the head with the gun, and the two struggled.
Beatty heard a shot fire but kept struggling with the man. The mancontinued to hit Beatty's forehead and neck with the gun. Beatty
and the man were locked together, each struggling for the gun, when
Beatty saw that the gun was jammed and could not fire. During the
struggle, Beatty saw that Easter was still lying on the floor.
Beatty pushed the man off and ran for the back door of the
apartment. Beatty jumped off the balcony and as he ran away, he
heard shots fired in his direction. Beatty ran around the building
and hid in some nearby woods. He later found a house with a light
on, knocked on the door, and asked the occupants to call Bragg's
brother. Bragg's brother did not answer and Beatty asked the
people to call a cab. Beatty testified that the shooting took
place between 1:00 a.m. and 1:30 a.m., and that he arrived at
Bragg's brother's house at approximately 2:00 a.m.
When Beatty spoke with police the following morning between
8:00 a.m. and 9:00 a.m., they asked Beatty to do a composite of the
shooter, but he refused. Beatty testified he feared the composite
would not look like the shooter and could cast doubt on any
identification he might make. Instead, Beatty gave police a
description of the shooter's physical attributes and told police he
would be able to identify the shooter if he saw him again. Beatty
stated he "had no doubt" that he could identify the shooter.
Beatty described the shooter to police as a black male,
"approximately six one, six two[,]" with a slim build, between 150
and 160 pounds, with a "small afro." He stated the shooter
appeared to be about twenty-one years old. Beatty testified he
would never forget the face of the shooter. Beatty testified that approximately one week later, a
detective with the Raleigh Police Department asked Beatty to view
some photographs. Beatty was shown two sets of eight photographs.
While viewing the first set, Beatty remarked that one of the
individuals had a head shaped like the shorter man with the cigar,
but he told police that it was not that man. When Beatty viewed
the second set of photographs, he identified one of the photographs
as the shooter. Beatty testified that he stated: "That's the man
that killed my man [Easter], right there." Beatty testified that
he did not wear glasses, that the lights were on in the apartment
during the shooting and struggle, and that Beatty was "face to face
[and] body to body" with the shooter "on several different
occasions" during the struggle. Beatty also testified that he
looked at the shooter "right in his face" and that the shooter
looked Beatty in the face. In addition to his testimony about the
photographic lineup, Beatty testified that earlier in the week
during another courtroom proceeding, he identified Defendant when
Defendant was escorted into the courtroom. During the trial,
Beatty also identified Defendant as the shooter.
Officer William McGregor of the Raleigh Police Department
(Officer McGregor) testified that he responded to a dispatched call
to the Melvid Court Apartments on 6 May 1997. When Officer
McGregor arrived at the apartments, Bragg approached and told
Officer McGregor that his friend had been shot. Officer McGregor
walked up to the apartment and found the front door open. He
entered the apartment and saw Easter lying face down on the floor.Several additional officers arrived at the scene and completed a
security sweep of the apartment. The lights and television were on
in the apartment, the water was running, and the door to the
balcony was open, but officers found no one inside the apartment.
Officer Christopher Robb of the Raleigh Police Department
(Officer Robb) testified that he also responded to the Melvid Court
Apartments the night of the shooting. He testified that while he
was securing the rear of the apartment, he discovered a pager, an
expended shell casing, and a live round of ammunition next to two
"deep footprints, like somebody jumped off a balcony." Herman
Colvin (Agent Colvin), an identification agent with the City County
Bureau of Identification, testified that shell casings were found
inside the living room of the apartment. Agent Colvin also
testified that he located a bullet hole in the wall in the hallway
of the apartment.
Bragg testified that when he left the apartment for the second
time on the evening of 6 May 1997, he was gone for about ten to
fifteen minutes. When Bragg returned, his neighbor said he had
heard gunshots coming from Bragg's apartment. Bragg opened the
door to the apartment and saw Easter lying on the floor, with a
gunshot wound to his head. Easter was still alive and was gagging
and choking. Bragg looked for Beatty, but could not find him, and
asked his neighbor to call police. Bragg left the apartment to go
to his brother's house. On the way, he stopped at a grocery store
and called police. His brother was not home, so Bragg returned to
his apartment where he spoke with police. Cameron Omar Massenburg (Massenburg) testified for the State
that he was driving a friend's car on 6 May 1997, when he saw
Defendant on the street. Massenburg testified that Defendant
"flagged" him down. Defendant asked Massenburg to drive Defendant
and a friend to Melvid Court so they could buy some "trees," or
marijuana. Massenburg agreed. When Defendant got into the car,
Massenburg noticed that Defendant had a gun. When Massenburg
arrived at Melvid Court, he parked the car and Defendant and his
friend got out of the car. Defendant's friend returned to the car
and told Massenburg that "it would be a little[.]" A few seconds
later Massenburg heard two shots, and a few seconds after that
Defendant returned to the car and said he was ready to go.
Defendant said he had "f----- up[.]" Several days later Massenburg
spoke to police. During his testimony, Massenburg admitted he did
not tell police the truth initially, but later changed his mind and
was truthful. Massenburg also admitted that he pled guilty to
being an accessory after the fact to assault with a deadly weapon
as a result of the incident.
At the close of the State's evidence, Defendant moved to
dismiss the first-degree murder charge for insufficient evidence.
The trial court denied Defendant's motion. Defendant did not
present any evidence.
Defendant makes two arguments regarding the sufficiency of the
State's evidence at trial. Defendant first argues that the State
presented insufficient evidence that Defendant was the perpetratorof Easter's murder. Defendant next argues that the State failed to
offer sufficient evidence of premeditation and deliberation to
support the first-degree murder conviction. We disagree with
Defendant as to both arguments.
In order to withstand a defendant's motion to dismiss, the
State must present substantial evidence of each element of the
crime charged, or of a lesser included offense, and of the
defendant's being the perpetrator of the offense. State v.
, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
"Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." State v.
, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When a
defendant moves to dismiss for insufficient evidence,
[t]he trial court's function is to determine
whether the evidence will permit a reasonable
that the defendant is guilty of the
crimes charged. "In so doing the trial court
should only be concerned that the evidence is
sufficient to get the case to the jury; it
should not be concerned with the weight of the
State v. Vause
, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)
, 307 N.C. at 67, 296 S.E.2d at 652). In making
this determination, the trial court must consider "the evidence
. . . in the light most favorable to the State, and the State must
receive every reasonable inference to be drawn from the evidence.
Any contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant
dismissal." State v. King
, 343 N.C. 29, 36, 468 S.E.2d 232, 237
(1996) (internal citations omitted). Where a trial court hasdetermined that a defendant's guilt may reasonably be inferred from
the evidence, the jury must decide whether the evidence convinces
them beyond a reasonable doubt that a defendant is guilty. State
, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994), cert.
, 533 S.E.2d 475 (1999). Further, these rules apply whether
the evidence is direct, circumstantial, or a combination of both.
, 328 N.C. at 237, 400 S.E.2d at 61.
Defendant argues that the State's only evidence that Defendant
was the perpetrator of Easter's killing was the testimony of
Beatty, and that Beatty testified that he did not see Easter get
shot. Defendant also points to a lack of forensic evidence linking
Defendant to the shooting, and a lack of evidence regarding a
possible motive for the shooting. Defendant's argument is directed
to the weight of the evidence, and is unavailing.
Although Defendant correctly states that Beatty admitted that
he did not see Defendant shoot Easter, Defendant ignores much of
the substance of Beatty's testimony. Beatty identified Defendant,
both in a photographic lineup and during the trial, as the man with
whom he struggled seconds after a shot was fired at his front door.
Beatty testified that immediately following the shot that struck
Easter, he saw a man step around the wall near the front door of
the apartment, and point a gun at him. Beatty also testified that
he saw the man's face during the subsequent struggle. Beatty told
police that he "had no doubt" that he could recognize the man.
Furthermore, Massenburg testified that he drove Defendant and
another man to the Melvid Court Apartments on the night of theshooting, and that Defendant was carrying a gun. Massenburg also
testified that Defendant's friend returned to the car before
Defendant, and Massenburg then heard two shots. When viewed in the
light most favorable to the State, this evidence is sufficient to
permit a reasonable inference that Defendant was the perpetrator of
the shooting which killed Easter.
Defendant also argues that the State failed to present
substantial evidence of premeditation and deliberation. "Murder in
the first degree is the unlawful killing of a human being with
malice and with premeditation and deliberation." State v. Fleming
296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979). "Premeditation means
that the act was thought out beforehand for some length of time,
however short, but no particular amount of time is necessary for
the mental process of premeditation." State v. Conner
, 335 N.C.
618, 635, 440 S.E.2d 826, 835-36 (1994). "Deliberation does not
require brooding or reflection for any appreciable length of time,
but imports the execution of an intent to kill in a cool state of
blood without legal provocation, and in furtherance of a fixed
design." State v. Myers
, 299 N.C. 671, 677, 263 S.E.2d 768, 772
(1980). Evidence of premeditation and deliberation is "not
susceptible to direct proof and must almost always be proved by
circumstantial evidence." State v. Corn
, 303 N.C. 293, 297, 278
S.E.2d 221, 223 (1981). Circumstances that tend to prove
premeditation and deliberation include:
"(1) want of provocation on the part of the
deceased; (2) the conduct and statements of
the defendant before and after the killing;
(3) threats and declarations of the defendantbefore and during the course of the occurrence
giving rise to the death of the deceased; (4)
ill-will or previous difficulty between the
parties; (5) the dealing of lethal blows after
the deceased has been felled and rendered
helpless; and (6) evidence that the killing
was done in a brutal manner."
, 337 N.C. at 607, 447 S.E.2d at 367 (quoting State v.
, 308 N.C. 47, 69, 301 S.E.2d 335, 349, cert. denied
Williams v. North Carolina
, 464 U.S. 865, 78 L. Ed. 2d 177 (1983)).
Applying the above factors to the present case, we conclude
that the State presented substantial evidence of premeditation and
deliberation. Beatty's testimony as to the events leading up to
the shot fired at Easter suggests a lack of provocation by Easter.
Beatty testified that after the first shot the shooter pursued him,
and the two struggled until Beatty was able to flee through the
back door of the apartment. Massenburg's testimony established
that Defendant sought a ride to the Melvid Court Apartments, and
had a handgun. Further, testimony by the medical examiner
established that when Easter was shot, the gun was fired between
one and eight inches from Easter's face. Beatty also testified
that as he was fleeing the apartment, Defendant fired additional
shots at Beatty. This evidence constituted substantial evidence of
premeditation and deliberation. Therefore, we conclude the trial
court did not err by denying Defendant's motion to dismiss the
first-degree murder charge for insufficient evidence. We overrule
these assignments of error.
Defendant next argues that the trial court improperly admittedBeatty's eyewitness identification of Defendant under State v.
, 270 N.C. 726, 154 S.E.2d 902 (1967). Because Defendant
failed to object to the admission of this evidence at trial,
Defendant argues this error amounted to plain error, requiring that
he receive a new trial on both the first-degree murder charge and
the charge of assault with a deadly weapon with intent to kill. We
, our Supreme Court held that "where the only
evidence identifying [a] defendant as the perpetrator of [an]
offense is inherently incredible because of undisputed facts[,]"
the general rule that assessment of the weight of an identification
is within the province of the jury does not apply. Id.
at 731, 154
S.E.2d at 905. In order to determine whether the identification
evidence is "inherently incredible[,]" a trial court must consider
whether "there is a reasonable possibility of observation
sufficient to permit subsequent identification[.]" Id.
at 732, 154
S.E.2d at 906. Defendant contends the Miller
rule applies to the
present case, inter alia
, because (1) Beatty did not know Defendant
prior to the night of the shooting; (2) Beatty admitted he could
not see the men who stood at the front door when the shot that
killed Easter was fired; and (3) Beatty was only able to see the
shooter during an intense struggle in which he was fighting for his
We conclude that the circumstances of the present case are
easily distinguishable from those presented in Miller
, and that the
trial court properly left the determination of the weight to begiven to Beatty's identifications of Defendant with the jury. In
, the identification of the perpetrator was based upon
observation made from a distance of 286 feet. Id.
at 732, 154
S.E.2d at 905. Further, although the area where the perpetrator
was seen was well lighted, the events occurred at night. Id.
concluded that "the distance was too great for an observer to note
and store in memory features which would enable him, six hours
later, to identify a complete stranger with the degree of certainty
which would justify the submission of the guilt of such person to
the jury." Id.
at 732, 154 S.E.2d at 905. In the present case,
although Beatty did not see the shot fired that killed Easter, he
engaged in a lengthy struggle with the shooter moments later, in
which Beatty and the shooter looked directly at one another.
Beatty testified that he did not wear glasses and that all the
lights were on in the apartment. We overrule this assignment of
In a related argument, Defendant contends that the trial court
erroneously denied his motion to suppress Beatty's pretrial
identification of Defendant, as well as both of Beatty's in-court
identifications of Defendant. We disagree.
Defendant argues that the procedures used during Beatty's
identification of Defendant as the shooter from a photographic
lineup were "so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification."
Defendant contends (1) that the array containing Defendant'sphotograph was itself suggestive; (2) that the comments made by the
detective during the pretrial identification were suggestive; and
(3) that there was a very substantial likelihood that Beatty
misidentified Defendant because Beatty had a poor opportunity to
view the shooter.
The State argues that Defendant waived the admission of this
evidence by failing to object when the evidence was offered during
trial. The State also argues that Defendant has raised on appeal
a constitutional issue which he failed to raise at trial, thereby
precluding our review. We do not agree. Defendant moved to
suppress Beatty's pretrial identification on the grounds that it
was impermissibly suggestive. In its order, the trial court
concluded that no constitutional error occurred during the pretrial
identification procedures, and specifically noted that Defendant's
due process rights were not violated under the federal or state
constitutions. Therefore, we conclude that Defendant raised this
constitutional argument below. Further, although Defendant failed
to object to this testimony at trial, Defendant contends before
this Court that admitting the evidence amounted to plain error.
Therefore, we conclude that Defendant's argument is properly before
us for plain error review. N.C.R. App. P. 10(c)(4). Although we
conclude we can properly reach this argument, we find no error in
the trial court's decision to deny Defendant's motion to suppress.
"Identification evidence must be suppressed on due process
grounds where the facts show that the pretrial identification
procedure was so suggestive as to create a very substantiallikelihood of irreparable misidentification." State v. Powell
N.C. 364, 368, 364 S.E.2d 332, 335 (1988). The trial court must
first determine whether the pretrial identification procedure was
impermissibly suggestive, and if so, determine whether the
suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification. Id.
at 368-69, 364 S.E.2d at 335.
In undertaking this analysis,
[f]actors to be considered . . . are (1) the
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 of the
criminal, (4) the level of certainty
demonstrated at the confrontation, and (5) the
time between the crime and confrontation.
at 369, 364 S.E.2d at 335.
In the present case, Beatty testified that during the struggle
with the shooter, he was "face to face" with the shooter, and that
he looked the shooter "right in his face." Beatty testified that
he told police he would never forget the face of the shooter and
"had no doubt" that he could identify the shooter. When he was
shown the second photograph array, one week after Easter's murder,
Beatty did not hesitate and stated, "[t]hat's the man that killed
my man [Easter], right there." These facts were reflected in the
trial court's findings, and supported the trial court's conclusion
that the pretrial identification procedures used were not
impermissibly suggestive nor conducive to irreparable
misidentification. In addition, the trial court found as fact that
the photographs in the array included more than one individual
wearing a jacket with a high collar. Further, our review of thearray reveals this finding to be supported by the evidence. Where
a trial court's findings of fact are supported by competent
evidence, they are binding on appeal. State v. Fowler
, 353 N.C.
599, 618, 548 S.E.2d 684, 698 (2001), cert. denied
, Fowler v. North
, 535 U.S. 939, 152 L. Ed. 2d 230 (2002). This assignment
of error is overruled.
Defendant also argues that he is entitled to a new trial
because the State committed ex mero motu
error during its closing
statement. Defendant states that the State (1) made grossly
improper emotional appeals for conviction; (2) misrepresented the
evidence; and (3) disparaged and misrepresented defense counsel.
"Where there is no objection at trial to a jury argument, the
standard of review to determine whether the trial court should have
intervened ex mero motu
is whether the allegedly improper argument
was so prejudicial and grossly improper as to interfere with [a]
defendant's right to a fair trial." State v. Alford
, 339 N.C. 562,
571, 453 S.E.2d 512, 516 (1995). To succeed in such a claim, a
"defendant must show that the [State's] comments so infected the
trial with unfairness that they rendered the conviction
fundamentally unfair." State v. Davis
, 349 N.C. 1, 23, 506 S.E.2d
455, 467 (1998), cert. denied
, Davis v. North Carolina
, 526 U.S.
1161, 144 L. Ed. 2d 219 (1999).
After reviewing the statements made by the State, we cannot
conclude that Defendant is entitled to a new trial on this basis.
Even if we assume arguendo
that the State's comments were improper,Defendant has not shown that the comments were so "grossly improper
as to interfere with [his] right to a fair trial." Alston
N.C. at 571, 453 S.E.2d at 516. Therefore, we overrule this
assignment of error.
Lastly, Defendant contends that he is entitled to a new
sentencing hearing on the charge of assault with a deadly weapon
with intent to kill. We agree with Defendant's contention.
N.C. Gen. Stat. § 15A-1340.14(f) (2005) provides the methods
by which prior convictions can be proved to determine a defendant's
prior record level for felony sentencing. This statute permits
proof by stipulation of the parties, a court record of the prior
conviction, a copy of records maintained by one of three state
agencies, or "any other method found by the [trial] court to be
"The State bears the burden of proving, by a
preponderance of the evidence, that a prior conviction exists and
that the offender before the [trial] court is the same person as
the offender named in the prior conviction." Id.
15-1340.14 uses the term 'prior felony conviction' it refers only
to a prior adjudication of the defendant's guilt or to a prior
entry of a plea of guilty or no contest by the defendant." State
, 130 N.C. App. 456, 460, 503 S.E.2d 110, 113 (1998),
aff'd per curiam
, 350 N.C. 88, 511 S.E.2d 638 (1999). Our Supreme
Court has held that standing alone, a worksheet is insufficient to
establish a defendant's prior record level. State v. Alexander
359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005). Our review of the sentencing hearing reveals that the trial
court noted receipt of a worksheet that indicated that Defendant
had a 1996 conviction for larceny. The State also noted that it
had "the court files[.]" However, at no time during the sentencing
hearing was any evidence of any prior conviction offered by the
State and admitted by the trial court. Further, there was no
evidence presented that Defendant stipulated to a prior conviction.
Although the State made remarks during the sentencing hearing that
referenced a prior larceny conviction, a statement by the State
that a defendant has a certain number of points, if only supported
by a worksheet, is insufficient to prove a prior record level, even
if uncontested by a defendant. State v. Riley
, 159 N.C. App. 546,
557, 583 S.E.2d 379, 387 (2003). Therefore, we must conclude that
Defendant is entitled to a new sentencing hearing on the charge of
assault with a deadly weapon with intent to kill.
No error in 97 CR 30316; remanded for new sentencing hearing
in 97 CR 30317.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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