State v Johnson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA11-443 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. New Hanover County Nos. 09 CRS 58144-45 DAMIAN LAQUAN JOHNSON Appeal by Defendant from judgments entered 9 November 2010 by Judge Jack W. Jenkins in New Hanover County Superior Court. Heard in the Court of Appeals 12 October 2011. Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Richard E. Jester for Defendant. STEPHENS, Judge. Procedural History and Evidence On returned 17 August 2009, indictments the New charging Hanover Damian County Grand Laquan Jury Johnson ( Defendant ) with first-degree kidnapping, first-degree rape, two counts of first-degree sexual offense, and robbery with a -2dangerous weapon. following: ( Batts ), The evidence at trial tended to show the On 11 July 2009, Defendant met with Corie Batts a confidential federal informant Wilmington Police Department ( WPD ). working with the When Defendant mentioned needing money, Batts responded, You got to hit a lick, i.e., commit a robbery. The following day, Batts dropped Defendant off in downtown Wilmington. Near midnight, Defendant observed Jane, 1 a young woman walking by herself downtown. Defendant approached Jane with a handgun, led her at gunpoint to a nearby church, and forced her to perform fellatio while he held the gun to her temple. Defendant also forced Jane to remove her shorts and underwear and raped her vaginally and anally. shoot Jane if she made any noise. Defendant threatened to Defendant took Jane s underwear, tank top, purse, and cell phone before fleeing. Disoriented and in shock, Jane returned home. morning, Jane went to a local hospital where she The next told WPD Detective Michael Overton ( Overton ) and nurse Jessica McAlear ( McAlear ) about the assault. McAlear took samples for a sexual assault kit. DNA tests later revealed Defendant s DNA on Jane s rectal swabs and her shorts. 1 The victim is referred to by the pseudonym Jane to protect her identity. -3With Jane s help, a WPD sketch artist prepared a drawing of her assailant, which was circulated. Batts saw the drawing and believed it depicted Defendant. To confirm his suspicions, Batts met with Defendant and recorded their conversation using the audio and video capabilities on his cell phone. During the recorded conversation, Defendant laughed about forcing Jane to perform fellatio. Defendant also said he hit Jane across her head with his gun and threatened her. Defendant then removed a revolver from his pants and demonstrated how he struck Jane. Based on Batts information and the cell phone recording, WPD officers identified Defendant as a suspect. On 18 July 2009, Jane identified Defendant in a photo lineup, stating she was 90% certain he was her assailant. The photo lineup was conducted by a WPD employee not familiar with the case while Overton stood some twenty feet away across a large open room at the station. When Defendant was arrested later that day, he had a revolver in his back pocket. Before trial, identification Defendant of Defendant him. testified at moved The trial trial and to court suppress denied admitted the forcing Jane s motion. Jane to perform fellatio but claimed he had only threatened her with a -4BB gun. He denied holding the gun to her head, touching her vagina or anus, and taking her clothing. The jury kidnapping, but first-degree weapon. found Defendant guilty sexual of not guilty first-degree offense, and of rape, robbery first-degree two with counts a of dangerous The trial court imposed a sentence of 288 to 355 months for the first-degree rape conviction, consolidated the remaining convictions, and imposed an additional sentence of 288 to 355 months to run consecutively with the first. The court also ordered that Defendant register as a sex offender and enroll in lifetime satellite-based monitoring. Defendant appeals. Discussion Defendant brings forward three arguments on appeal: (1) that the State violated his due process rights and N.C. Gen. Stat. § 15A-1054(c) by failing to disclose Batts federal plea agreement, and that the trial court erred in (2) denying Defendant s motion to suppress the results of the photo lineup and (3) admitting the revolver found in Defendant s pocket in evidence over his objection. We find no error. I. Plea Agreement Defendant first argues that the State violated his due process rights and N.C. Gen. Stat. § 15A-1054(c) because he was -5not informed of a plea agreement made between Batts and the federal government. We disagree. A constitutional question not presented and passed upon at trial will not ordinarily be considered on appeal. Howell, 169 (citation N.C. App. omitted). 741, Here, or 746, 611 Defendant argument S.E.2d did regarding 200, not State v. 204 raise Batts (2005) any testimony due process objection at trial. Thus, his constitutional claims are not properly before us, and, accordingly, we dismiss this argument. Defendant s unavailing. codifies contention North and Carolina sanctions the of a General common statutory Statute practice violation section of is 15A-1054 prosecutors offering plea deals or concessions to witnesses who testify for the State. N.C. Gen. Stat. § 15A-1054 (2009). Subsection (c) provides: When a prosecutor enters into any arrangement authorized by this section, written notice fully disclosing the terms of the arrangement must be provided to defense counsel, or to the defendant if not represented by counsel, against whom such testimony is to be offered, a reasonable time prior to any proceeding in which the person with whom the arrangement is made is expected to testify. N.C. Gen. Stat. § 15A-1054(c) (emphasis added). -6Here, Batts, a witness for the State, testified that the State had not promised him anything for his testimony, and Defendant does not allege any arrangement between Batts and the prosecutor. violated Instead, Defendant asserts that the statute was because government.2 Batts However, had the a plain plea deal language with of the this federal subsection indicates that it applies only to arrangements entered into by prosecutors, representing the State. 1054(c). N.C. Gen. Stat. § 15A- Accordingly, this argument is overruled. II. Motion to Suppress Defendant next argues that the trial court erred by denying his motion to suppress Jane s identification of him based on statutory violations during the photo lineup. We disagree. This Court s review of a trial court s denial of a motion to suppress in a criminal proceeding is strictly limited to a determination of whether the court s findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court s conclusions of law. If so, the trial court s conclusions of law are binding on appeal. 2 Prior to jury selection, the prosecutor informed the trial court that Batts federal defense counsel had sent both the prosecutor and Defendant s trial counsel a copy of Batts federal plea agreement. Trial counsel extensively cross-examined Batts about the agreement, including handing Batts a copy of the plea agreement, asking him to identify it, and questioning him about specific provisions in it. -7State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009) (internal omitted). citations, quotation marks and brackets Defendant does not allege that any findings are not supported by competent evidence, or that the findings do not support the conclusions of law. Instead, he simply asserts that the process used to obtain identification through the photo lineup did not meet the new statutory lineup should have been suppressed. Section 15A-284.52 of our requirements and the We are not persuaded. General Statutes establishes procedures for identification by photo lineup and provides, in pertinent part: . . There shall not be anyone present during the . photographic suspect s identification identity, required by law. except the procedures eyewitness who and knows the counsel as N.C. Gen. Stat. § 15A-284.52(b)(13) (2009). Further, the statute states that [f]ailure to comply with any of the requirements of this section shall be considered by the court in adjudicating identification. N.C. motions Gen. Stat. to § suppress eyewitness 15A-284.52(d)(1). In addition, non-compliance is admissible in support of claims of eyewitness misidentification [and if such evidence is admitted,] the jury shall be instructed that it may consider credible evidence of . . . noncompliance to determine the reliability of -8eyewitness identifications. N.C. Gen. Stat. § 15A- 284.52(d)(2)-(3). Here, at the pretrial motion hearing, the court found that, in standing twenty feet away across a large open room, Overton had been present subsection (b)(13). during the photo lineup in violation of The trial court then granted Defendant each of the remedies listed in subsection (d): that Defendant would have leeway to cross-examine the State s witnesses about the lineup procedure, and that if he did so, the jury would be instructed it could consider the noncompliance in evaluating the reliability of Jane s identification of Defendant.3 However, because Overton was not in the immediate vicinity of Jane during the technical photo lineup, violation identification of of the the Defendant. court statute Thus, also had the found no that impact trial court Defendant s motion to suppress the identification. on the her denied In light of the trial court s use of each remedy prescribed by the statute and its conclusion that Overton s presence had no impact on Jane s of identification, Defendant s motion. 3 we see no error in the denial Accordingly, this argument is overruled. At trial, Defendant did not dispute Jane s identification of him and admitted during his testimony that he had forced her to perform fellatio. -9III. Admission of the Revolver Defendant next argues that the trial court erred in admitting into evidence the revolver found in Defendant s pocket at his arrest. Specifically, Defendant contends the gun was irrelevant and the court erred in overruling his objection to it. We disagree. Evidence is admissible at trial if it is relevant and its probative value is not substantially outweighed by, among other things, the danger of unfair prejudice. Relevant evidence is defined as any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401 sets a standard to which trial judges must adhere in determining whether proffered evidence is relevant; at the same time, this standard gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. Thus, even though a trial court s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. State v. Wallace, 104 N.C. App. 498, 501-02, 410 S.E.2d 226, 228 (1991) (internal citation and quotation marks omitted), appeal -10dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992). Here, the type of gun used in the crimes was a contested issue at trial. Defendant testified that he used a BB gun, while the State asserted that he used the revolver. Jane was unsure about the exact type of gun involved, but was certain it was a handgun. In addition, Batts testified that Defendant bragged about hitting Jane in the head with a gun, was carrying a revolver during their conversation, and used the revolver to demonstrate how he struck Jane. Defendant had a revolver, a type of handgun, in his back pocket when he was arrested a few days later. We conclude that the revolver on Defendant s person at his arrest was highly relevant. overruled. NO ERROR. Judges BRYANT and ELMORE concur. Report per Rule 30(e). This meritless argument is
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