State v. TuttState v. Tutt
- Reporters:
- , ,
- Before:
- Wynn
Lead Opinion
The Constitution of North Carolina vests our Supreme Court with exclusive authority to make rules of practice and procedure for the appellate division of the courts.
The underlying facts of this matter tend to show that on 5 November 2002, Defendant Micah Lee Tutt and his brother entered a Quick Mart convenience store owned by Anh Vu’s family in Greensboro, North Carolina. The door to the store was kept locked, and the owner’s daughter let the two men in. Anh Vu ran to the front of the store after hearing her daughter start screaming. Defendant ran toward Anh Vu, pointed a large knife at her stomach, and pushed her to the cash register. When Anh Vu did not open the cash register, Defendant poked a hole into her stomach, which later became infected. Anh Vu opened the cash register, Defendant and his brother took cash and cigarettes, then fled the store.
After the robbery, J. R. Labarre, an officer with the Greensboro Police Department, arrived at the store. He took the store’s security tape, which recorded the robbery, as evidence. He also interviewed Anh Vu, through an interpreter, and obtained a description of the robbers. She described one of the robbers as being an African-American male, about eighteen to nineteen-years-old, short hair, and wearing a gray jacket with writing on the front.
Detective G. R. Marks, also assigned to the case, made a photograph from the security tape to send to other districts in an attempt to locate the suspects. On 13 November 2002, Defendant was arrested on unrelated
Thereafter, Detective Marks created a photographic lineup, consisting of Defendant and five other African-American males of a similar description. Anh Vu identified Defendant from the lineup as one of the robbers. Detective Marks testified that this was the first photograph of Defendant he showed Anh Vu. However, Anh Vu gave inconsistent testimony as to whether the first photograph she saw was the lineup or an individual photograph of Defendant wearing a gray jacket with writing.
Defendant was indicted for robbery with a dangerous weapon and conspiracy. On 3 November 2003, Defendant filed a written motion to suppress the pretrial photographic lineup identification. Following a pretrial hearing, the trial court orally denied the motion to suppress, finding that the photographic lineup was not “unduly suggestive.” The photographic lineup was admitted into evidence at trial, without objection by Defendant, and Anh Vu identified Defendant in court.
Defendant was found guilty by a jury of robbery with a dangerous weapon and conspiracy. The trial court sentenced Defendant to twenty-seven to forty-two months imprisonment for the conspiracy charge and a consecutive sentence of 103 to 133 months imprisonment for the robbery with a dangerous weapon charge. Defendant appeals.
Although Defendant failed to object at trial to the admission of the photographic lineup evidence, he argues on appeal that the trial court erred in denying his motion to suppress the pretrial photographic lineup identification.
A pretrial motion to suppress is a type of motion in limine. 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), disc. review denied, 358 N.C. 157, 593 S.E.2d 84 (2004). Our Supreme Court has consistently held that “[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.” State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations omitted); see also State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005) (per curiam) (in light of discussion below the trial judgment was on 20 May 2002, before the amendment); Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998);
The General Assembly, however, recently amended Rule 103(a) of the North Carolina Rules of Evidence to provide: “Once the 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.”
However, Rule 103(a)(2) of the North Carolina Rules of Evidence is in direct conflict with
In State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987), our Supreme Court addressed a similar issue wherein it struck down
N.C.G.S. 15A-1446(d)(5) provides that errors based upon insufficiency of the evidence may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.N.C.R. App. P. 10(b)(3) , however, provides that a defendant ‘may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial.’ To the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent withN.C.R. App. P. 10(b)(3) , the statute must fail. Citations omitted.
Stocks, 319 N.C. at 439, 355 S.E.2d at 493.
Moreover, in State v. Bennett, 308 N.C. 530, 302 S.E.2d 786 (1983), our Supreme Court addressed this issue wherein it struck down
G.S. 15A-1446(d)(13) allows for appellate review of errors in the charge to the jury ‘even though no objection, exception or motion has been made in the trial division.’Rule 10(b)(2) states: ‘No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict_’Rule 10(b)(2) is a rule of appellate practice and procedure, promulgated by the Supreme Court pursuant to its exclusive authority under the Constitution of North Carolina, Article IV, Section 13(2). To the extent that G.S. 15A-1446(d)(13) is inconsistent withRule 10(b)(2) , the statute must fail. See State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981). We also note that G.S. 15A-1231(d) states in part that ‘[f]ailure to object to an erroneous instruction or to the erroneous failure to give an instruction does not constitute a waiver of the right to appeal on that error in accordance with G.S. 15A-1446(d)(13).’ Inasmuch as this section also conflicts withRule 10(b)(2) , it too must fail.
Bennett, 308 N.C. at 535; 302 S.E.2d at 790.
Similarly, our Supreme Court addressed this issue in State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 (1981), when it struck down
G.S. 15A-1446 (d) (6) [] provides:
Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.
(6) The defendant was convicted under a statute that is in violation of the Constitution of the United States or the Constitution of North Carolina.
Subsection (6) of G.S. 15A-1446 (d) is in direct conflict withRules 10 and 14 (b) (2) of the Rules of Appellate Procedure and our case law on the point. The Constitution of North Carolina provides that ‘[t]he Supreme Court shall have exclusive authority to make rules of practice and procedure for the Appellate Division.’N.C. Const. Art. IV § 13 (2). The General Assemblywas without authority to enact G.S. 15A-1446 (d) (6). It violates our Constitution.
Elam, 302 N.C. at 160, 273 S.E.2d at 664.
As in Stocks, Bennett, and Elam, the statute in this case,
The “dissenting” opinion2 states that Rule 103 is a rule of evidence and not one of practice and procedure for the appellate courts because it is placed in the Evidence Code of the North Carolina General Statutes. However, “[t]he law is clear that captions of a statute cannot control when the text is clear.” In re Appeal of Forsyth County, 285 N.C. 64, 71, 203 S.E.2d 51, 55 (1974) (citing In re Chisholm’s Will, 176 N.C. 211, 213, 96 S.E. 1031 (1918)). In Rule 103 the text makes it clear that this is a rule of practice and procedure of when evidence is preserved for appellate review. Therefore, regardless of the title and placement of Rule 103 by the General Assembly, the text of the rule makes it one of practice and procedure.
While the separate opinion is lengthy, we point out that we agree with its general statements of law. But we disagree with the conclusion of the separate opinion that Rule 103 is an evidentary rule, not an appellate procedural rule because: (1) the North Carolina Constitution vests with our Supreme Court the authority to make appellate rules of practice and procedure and (2) under N.C. R. App. R 10(b)(1), our Supreme Court has long held that this rule is one of practice and procedure. See Dennison, 359 N.C. 312, 608 S.E.2d 756; State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003); State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001); Hayes, 350 N.C. at 80, 511 S.E.2d at 303; Martin, 348 N.C. at 685, 500 S.E.2d at 665.
We further disagree that a valid distinction of our Supreme Court’s holdings in Stocks, Bennett, and Elam is that “the statute considered and held to be in conflict in each case was
Finally, a protracted discussion of the identical
In sum, we must hold that to the extent that
Nonetheless, as the Supreme Court did in Stocks and Elam, because it would be a manifest injustice to Defendant to not review his appeal on the merits after he relied on a procedural statute that was presumed constitutional at the time of trial, we have reviewed the evidence at our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure.
When a motion to suppress identification testimony is made, the trial judge must conduct a voir dire hearing and make findings of fact to support his conclusion of law and rule as to the admissibility of the evidence. “When the facts found are supported by competent evidence, they are binding on the appellate courts.” State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 470 (1985). Although the trial judge in the instant case did not make written findings of fact and conclusions of law, she did issue oral findings and conclusions, albeit not separated.
Identification procedures so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violate a defendant’s right to due process. State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983); State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982). This Court has said that to determine the suggestiveness of pretrial identification, the test is whether the totality of circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice. Id. If an identification procedure is not impermissibly suggestive, the inquiry is ended. Freeman, 313 N.C. at 544, 330 S.E.2d at 471. If the procedure is impermissibly suggestive, then it is necessary to determine whether “all the circumstances indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification.” State v. Grimes, 309 N.C. 606, 609, 308 S.E.2d 293, 294 (1983).
Due process does not require that all subjects in a photographic lineup be identical in appearance. State v. Montgomery, 291 N.C. 91, 100, 229 S.E.2d 572, 579 (1976). Nor is such a lineup impermissibly suggestive merely because the defendant has a distinctive appearance. Freeman, 313 N.C. at 545, 330 S.E.2d at 471. All that is required is that the lineup be fair and the investigating officers do nothing to induce the witness to select one subject rather than another. Id.
We find no substantial evidence of State action in the pretrial identification procedure that was impermissibly suggestive. As to the selection of the photographs used in the pretrial lineup, the trial court found that “[t]here’s nothing that highlights the defendant as compared to the other six (sic), and nothing about skin tone that makes one person different from any of the other five in any clear and obvious ways[.]” After reviewing the photographic lineup, we agree with the trial court that none of the five other photographs chosen indicates unfairness, nor are they unduly suggestive.
Defendant also argues that the manner in which Detective Marks showed the pretrial photographic lineup to Anh Vu was unduly suggestive. Defendant contends that
Detective Marks testified at the hearing that, although he was unsure of if he showed an individual picture of Defendant to Anh Vu, he would never have shown an individual picture to a witness before a lineup. However, there was some confusion as to Anh Vu’s testimony. While the trial court recognized the witness’s confusion, it gave weight to Detective Marks’s testimony. As there is competent evidence in the record to support this finding of fact, it is binding on appeal. Freeman, 313 N.C. at 544, 330 S.E.2d at 470. Therefore, we agree with the trial court’s conclusion of law that the manner in which the police showed the witness the photographic lineup was not unduly suggestive.
As the pretrial photographic lineup procedures were not imper-missibly suggestive, the inquiry ends here. Grimes, 309 N.C. at 609, 308 S.E.2d at 294.
Affirmed.
Judge ELMORE concurs. Judge TYSON dissents.Notes
. The amendment to
. Since the separate opinion does not address whether the trial court erred in denying Defendant’s motion to suppress, there is no dissent from the ultimate issue presented on appeal. Accordingly, any appeal should be directed towards obtaining discretionary review, which we urge our Supreme Court to grant in this case because of the importance of deciding the
. In State v. Rose, 170 N.C. App. 284, 612 S.E.2d 336, pet. for cert1. filed, (296P05, 9 June 2005) and In re S.W., 171 N.C. App. 335, — S.E.2d — (COA04-1138) (5 July 2005), while this Court cited
Dissenting Opinion
dissenting.
The majority holds
I. Standard of Review
A presumption exists that “any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground.” Ramsey v. Veterans Commission, 261 N.C. 645, 647, 135 S.E.2d 659, 661 (1964) (citations omitted). The unconstitutionality of the statute must appear beyond a reasonable doubt. Turner v. Reidsville, 224 N.C. 42, 46, 29 S.E.2d 211, 214 (1944); Assurance Co. v. Gold, Comr. of Insurance, 249 N.C. 461, 463, 106 S.E.2d 875, 876 (1959) (“Every presumption favors the validity of a statute. It will not be declared invalid unless its unconstitutionality be determined beyond a reasonable doubt.”).
II. Rules of Procedure and Practice
Our Supreme Court, under both constitutional and statutory authority, promulgates the North Carolina Rules of Appellate Procedure which includes requirements for the preservation of issues for review by the appellate courts. See
A. N.C. Gen. Stat. $ 15A-1446(d)
Our Supreme Court has interpreted
Three cases above, Stocks, Bennett, and Elam, are cited in the majority’s opinion as authority to support its holding that
In Stocks, the defendant argued the trial court erred in denying his motion to dismiss at the conclusion of the State’s evidence. 319 N.C. at 438-39, 355 S.E.2d at 492-93. The defendant did not renew his motion to dismiss after offering evidence. Id.
In Bennett, the defendant argued the jury instructions were improper. 308 N.C. at 532, 302 S.E.2d at 788. However, defendant failed to request instructions or to object to the instructions given before the jury retired. Id. at 535, 302 S.E.2d at 790. At the time,
In Elam, the defendant argued for the first time on appeal his conviction violated his constitutional rights. 302 N.C. at 159, 273 S.E.2d at 663. This Court overruled his argument for failing to raise the issue before the trial court in violation of Rule 14(b)(2) of the North Carolina Rules of Appellate Procedure. Id. at 160, 273 S.E.2d at 664. The defendant appealed to our Supreme Court arguing this Court erred in overruling “his constitutional attack” of the statute, in contravention of
Here,
B. N.C. Gen. Stat. $ 1A-1. Rule 46(a)(1)
North Carolina’s appellate courts have previously upheld legislative exceptions to the appellate rules requiring an objection to preserve error for appellate review. Under
III.
A. Federal Rule of Evidence
In 2000,
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the 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.
Id. (emphasis supplied).
All federal courts that have considered the 2000 amendment in either a civil, criminal, or administrative context have upheld its validity and not voiced any concerns regarding encroachment upon their appellate rule making or procedural authority. Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 387 (5th Cir. 2004) (“A renewed objection at trial is no longer required to preserve error.”); United States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003) (holding a pretrial objection preserved the issue for review under
Federal cases, although not binding on this Court, are instructive and persuasive authority. House v. Hillhaven, Inc., 105 N.C. App. 191, 195, 412 S.E.2d 893, 896, disc. rev. denied, 331 N.C. 284, 417 S.E.2d 252 (1992). When the North Carolina rule of evidence is “identical” to the Federal rule, “[t]he intent is to make applicable, as an aid in construction, the federal decisional law construing identical or similar provisions of the Federal Rules of Evidence.”
B. North Carolina Rule of Evidence
The basis for and intent of the amendment to the North Carolina rule is to follow the format and language of Federal
This Court recently considered amended
In In re S.W., the juvenile filed a motion to suppress evidence obtained during an alleged illegal search, which the trial court denied. 171 N.C. App. at 337, 614 S.E.2d at 426. The juvenile did not object when the evidence was admitted during trial. However, we held:
the juvenile properly preserved his assignment of error by objecting when the trial court denied his motion to suppress in conformity with the amended North Carolina Rules of Evidence 103. N.C. Gen. Stat. § 8C-1 ,Rule 103 (2003) ; 2003 N.C. Sess. Laws ch. 101, §§ 1-2 (effective 1 October 2003); see also State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, 339 (2005) (holding once the trial court denied the defendant’s motion to suppress, he was not required to object again to preserve argument for appeal).
Id. at 337, 614 S.E.2d at 426; see also In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”) (citations omitted).
IV. The Majority’s Opinion
The majority’s holding will adversely affect forum selection by creating a conflict between the North Carolina and Federal Rules of Evidence. See State v. Bogle, 324 N.C. 190, 202-03, 376 S.E.2d 745, 752 (1989) (“[T]here is merit in uniformity of interpretation of similar rules by state and federal courts. The commentary to Rule 102 (purpose and construction of our Rules of Evidence) notes that federal precedents are not binding on our courts in construing the rules. However, ‘[u]niformity of evidence rulings in the courts of this State and federal courts is one motivating factor in adopting these rules and should be a goal of our courts in construing those rules that are identical.’
Application of Article IV, § 13(2) of the North Carolina Constitution to strike the General Assembly’s enactments which prescribe rules of procedure or practice for the appellate courts has been solely limited to
V. Conclusion
Under their express constitutional authority, our General Assembly enacted the additional language of
Until today, no prior North Carolina court has struck down a rule of evidence as procedurally unconstitutional due to Article IV, § 13(2) of the North Carolina Constitution. This ruling extends beyond the criminal context as the rules of evidence also apply in civil and administrative proceedings.
The majority’s opinion holds defendant’s objection was not preserved by