Opinion
No. COA11–1205.
2012-04-17
STATE of North Carolina v. Liston TURNER, Defendant.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Paul Y.K. Castle, for defendant-appellant.
On writ of certiorari from judgment entered 29 April 2009 by Judge W. Allen Cobb, Jr. in Duplin County Superior Court. Heard in the Court of Appeals 9 April 2012. Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State. Paul Y.K. Castle, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was convicted by a jury of felonious breaking and entering, larceny pursuant to breaking and entering, and felonious possession of stolen goods. He pled guilty to attaining habitual felon status. The court arrested judgment on the conviction of felonious possession of stolen goods, consolidated the remaining convictions for judgment, and imposed an active sentence of 168 to 211 months on 29 April 2009. This Court allowed defendant's petition for writ of certiorari on 29 December 2010.
The State presented evidence tending to show that at approximately 9:00 a.m. on 6 June 2008, Allison Dempsey awoke and saw a man standing in her bathroom less than fifteen feet from her. The man, wearing shorts and white shoes but no shirt, subsequently fled from Ms. Dempsey's residence. After the man exited, Ms. Dempsey grabbed her telephone and called 911.
Detective Clarke Beringer of the Duplin County Sheriff's Department arrived at Ms. Dempsey's residence at approximately 10:00 a.m. to investigate a reported breaking and entering. Ms. Dempsey met him and related what she perceived to have happened. Ms. Dempsey described the intruder as a dark-skinned African–American man who was wearing dark shorts and white shoes, but no shirt. Ms. Dempsey also told the officer that some items were missing from her home, including two gold chains, necklaces, earrings and a purse.
Detective Beringer drove from Ms. Dempsey's residence and searched for a person matching the description given by Ms. Dempsey. Detective Beringer rode past a dark-skinned and shirtless African–American man wearing navy blue shorts and white shoes. Detective Beringer subsequently ran after the man and apprehended him. The man, whom Detective Beringer identified as defendant, was holding gold jewelry, money, a pocketknife, a lighter, and a metal pipe in his hands.
Ms. Dempsey was taken to the Wallace Police Department around noon that day. Detective Beringer asked Ms. Dempsey to look through a two-way mirror and to tell him whether the person she saw through the mirror was the intruder she saw in her home. Ms. Dempsey positively identified the person, defendant, as the intruder. Ms. Dempsey also identified some of the jewelry found in the intruder's hands as jewelry discovered missing from her home. Additionally, Ms. Dempsey identified defendant in court as the intruder.
On appeal, defendant contends the court erred by denying his motion in limine to exclude evidence obtained by the show-up identification procedure. He argues the procedure constituted a per se violation of N.C.G.S. § 15A–284.52, known as the “Eyewitness Identification Reform Act.”
At no point, however, did defendant argue to the trial court that the procedure violated the Eyewitness Identification Reform Act. In his written motion, he claimed the identification obtained as a result of the procedure should not be admitted into evidence because it was conducted without benefit of counsel, without benefit of a lineup, and with defendant being the only male person being viewed by the victim. He argued to the court at the conclusion of the voir dire hearing that the procedure violated his right to due process because it was highly suggestive and prejudicial. In response to defendant's argument at the hearing, the prosecutor argued that the procedure was valid and not suggestive. The court subsequently prepared a written order in which it ruled the procedure was not so impermissibly suggestive as to violate defendant's right to due process.
Our appellate courts have long held that, “where a theory argued on appeal was not raised before the trial court, ‘the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court.’ “ State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Defendant's argument, therefore, is not properly presented for our consideration. See State v. Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514, 519 (1999), cert. denied,529 U.S. 1102, 146 L.Ed.2d 783 (2000). Moreover, we have held that the Eyewitness Identification Reform Act does not apply to a show-up identification procedure like the one that occurred here. State v. Rawls, ––– N.C.App. ––––, ––––, 700 S.E.2d 112, 118 (2010). Defendant's contention is overruled.
We hold defendant received a fair trial free of prejudicial error.
No error. Judges STEELMAN and THIGPEN concur.
Report per Rule 30(e).