Summary
In Tutt, the threshold issue before this Court was whether the General Assembly unconstitutionally contravened the Supreme Court's " exclusive authority to make rules of procedure and practice for the Appellate Division" when it amended Rule 103 of the North Carolina Rules of Evidence.
Summary of this case from State v. FowlerOpinion
No. COA04-821.
Filed 19 July 2005.
1. Appeal and Error — preservation of issues — necessity of objection at trial — rulemaking authority of Supreme Court
The Constitution of North Carolina vests the Supreme Court with the exclusive authority to make rules of practice and procedure for the appellate courts. Although N.C.G.S. § 8C-1, Rule 103(a)(2)(2004) permits appellate review of an evidentiary ruling without an objection at trial when the trial court has made a definitive ruling on the record admitting or excluding the evidence either at or before trial, that statute is inconsistent with Appellate Rule 10(b)(1). Although this defendant did not object at trial and preserve for appeal his objection to a photographic lineup, the merits of defendant's claim were addressed in the Court's discretion to prevent manifest injustice.
2. Identification of Defendants — photographic lineup — not unduly suggestive
A photographic lineup was not impermissibly suggestive where the photographs were not unduly suggestive and the evidence, although conflicting, supported the court's findings concerning the manner of the lineup.
Judge TYSON dissenting.
Appeal by Defendant from judgment entered 21 November 2003 by Judge Catherine C. Eagles in Superior Court, Guilford County. Heard in the Court of Appeals 8 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State. Terry F. Rose for defendant-appellant.
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. N.C. Const. Art. IV, § 13 ( 2). In this case, N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004) permits appellate review of an evidentiary ruling even though the party fails to object at trial as required by N.C. R. App. P. 10(b)(1). Because N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), we hold that the statute must fail. Nonetheless, in our discretion, we have reviewed the assignment of error and affirm the trial court's admission of the evidence.
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 charges. The arresting officer noticed that Defendant matched the description of the Quick Mart robber and his jacket was similar. The officer notified Detective Marks of the arrest.
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); N.C. R. App. P. 10(b)(1). Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and "thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence." T T Dev. Co. v. S. Nat'l Bank of S.C., 125 N.C. App. 600, 602, 481 S.E.2d 347, 348-49, disc, review denied, 346 N.C. 185, 486 S.E.2d 219 (1997) (citation omitted). Therefore, Tutt's pretrial motion to suppress is not sufficient to preserve for appeal the question of the admissibility of the photographic lineup because he did not object at the time the lineup was offered into evidence.
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." N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004). This amendment applies to rulings made on or after 1 October 2003. 2003 N.C. Sess. Laws ch. 101. As the trial in the instant case began on 18 November 2003, the amended Rule 103(a) is applicable.
However, Rule 103(a)(2) of the North Carolina Rules of Evidence is in direct conflict with Rule 10(b)(1) of the Rules of Appellate Procedure as interpreted by our case law on point. Under the Constitution of North Carolina, "[t]he Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division." N.C. Const. Art. IV, § 13 ( 2). Thus, we address whether N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) seeks to make a rule of "procedure and practice for the Appellate Division" that lies within the exclusive authority of our Supreme Court.
The amendment to Rule 103 is in direct conflict with our Supreme Court's interpretation of Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure. See Dennison, 359 N.C. 312, 608 S.E.2d 756; Hayes, 350 N.C. at 80, 511 S.E.2d at 303. As the Supreme Court has the Constitutional authority to make "rules of procedure and practice" for the State's appellate courts, we defer to its interpretation of Rule 10(b)(1).
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. Gen. Stat. § 15A-1446(d)(5) (1986) to the extent that it conflicted with N.C. R. App. P. 10(b)(3).
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 with N.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 N.C. Gen. Stat. § 15A-1446(d)(13) (1982) and part of N.C. Gen. Stat. § 15A-1231(d) (1982) to the extent that it conflicted with N.C. R. App. P. 10(b)(2).
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 with Rule 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 with Rule 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 N.C. Gen. Stat. § 15A-1446(d)(6) (1980) to the extent that it conflicted with N.C. R. App. P. 10 and 14(b)(2).
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 with Rules 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 Assembly was 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, N.C. Gen. Stat. § 8C-1, Rule 103(a)(2), seeks to make a rule of practice or procedure for the Appellate Division. Moreover, analogous to the statutes in those cases, Rule 103(a)(2) would allow appellate review of an evidentiary ruling even though the party failed to follow the Supreme Court's procedural requirements under N.C. R. App. P. 10(b)(1) mandating that the party further object at trial.
The "dissenting" opinion 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.
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 Rule 103 issue.
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. P. 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 N.C. Gen. Stat. § 15A-1446. . . ." Following that logic would lead to the absurd conclusion that if the General Assembly had moved its enactments in Stocks, Bennett, and Elam to the evidence section, chapter 8C-1 of the North Carolina General Statutes, rather than under section 15A-1446, then our Supreme Court would have found those acts to have been constitutional. Instead, the common element of Stocks, Bennett, and Elam is that in each instance, our Supreme Court had enacted a rule of appellate practice and procedure under the authority granted to it under our Constitution, which the General Assembly sought to contravene by enacting contrary legislation. Likewise, in this case, our Supreme Court has enacted N.C. R. App. P. 10(b)(1), which the General Assembly seeks to contravene by enacting contrary legislation.
Finally, a protracted discussion of the identical Federal Rules of Evidence Rule 103 has no applicability to the issue in this case because North Carolina has, under section thirteen of its Constitution, granted our Supreme Court the exclusive authority to make rules of practice and procedure for the appellate division of the courts. N.C. Const. Art. IV, § 13. In contrast, the United States Constitution has no provision similar to that of section thirteen of the North Carolina Constitution. Accordingly, while in many instances interpretations of identical rules are generally persuasive for this Court, federal case law offers no guidance for deciding this issue.
In sum, we must hold that to the extent that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), it must fail. Stocks, 319 N.C. at 438-39, 355 S.E.2d at 493; Bennett, 308 N.C. at 535, 302 S.E.2d at 790; Elam, 302 N.C. at 160, 273 S.E.2d at 664. Accordingly, we hold that Defendant did not properly preserve his objection to the lineup for appellate review. Golphin, 352 N.C. at 405, 533 S.E.2d at 198.
In State v. Rose, 170 N.C. App. 284, 612 S.E.2d 336, pet. for cert. 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 Rule 103, it neither considered nor addressed the constitutionality of Rule 103.
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. N.C. R. App. P. 2; see also Stocks, 319 N.C. at 439, 355 S.E.2d at 493 ("While we thus are not compelled to do so, we have nevertheless reviewed the evidence in our discretion. . . ."); Elam, 302 N.C. at 161, 273 S.E.2d at 664 ("Within our discretion, and in the exercise of our supervisory powers, we have decided to address the merits of defendant's constitutional claims."). After review, we conclude that the trial court did not err in denying the motion to suppress as the lineup was not impermissibly suggestive.
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 from the testimony one could conclude that Detective Marks first showed Anh Vu an individual photograph of Defendant wearing a gray jacket with writing, and then showed Anh Vu the photographic lineup. However, the trial court found that "there was (sic) some differences about [Anh Vu's] testimony there. But the police officer's testimony was clear that he presented the lineup, M — 1, to her first. And she picked the defendant's picture out. And only after that would he have shown the individual picture."
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 impermissibly suggestive, the inquiry ends here. Grimes, 309 N.C. at 609, 308 S.E.2d at 294.
Affirmed.
Judge ELMORE concurs.
Judge TYSON dissents.