Opinion
No. COA18-1040
05-21-2019
STATE OF NORTH CAROLINA v. JOSHUA LEE BLACKWELL, Defendant.
Attorney General Joshua H. Stein, by Assistant Attorney General Mollie L. Cozart, for the State. Leslie Rawls for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. Lincoln County, Nos. 14CRS052871, 16CRS000093 Appeal by defendant from judgment entered 29 March 2017 by Judge Carla Archie in Lincoln County Superior Court. Heard in the Court of Appeals 25 April 2019. Attorney General Joshua H. Stein, by Assistant Attorney General Mollie L. Cozart, for the State. Leslie Rawls for defendant-appellant. YOUNG, Judge.
Where there is no civil judgment in the record ordering defendant to pay attorney's fees, this Court is without jurisdiction on the issue, and we grant the State's motion to dismiss it. Where a detective identified a photograph as depicting the defendant in the course of his investigation, the trial court did not commit plain error in permitting the detective to instruct the jury on his investigative process. Where a detective observed in passing that the defendant did not wish to speak with him about his investigation, the trial court did not commit plain error in admitting this testimony.
I. Factual and Procedural Background
Francis and Linda Ford (the Fords) owned a storage building. In July of 2014, they discovered that it had been broken into. The Fords examined the photos from a security camera until they discovered an unfamiliar person in several photos. The Fords then reported the break-in to the Lincoln County Sheriff's Office.
Detective Matt Burgess (Det. Burgess) was assigned to the case. Det. Burgess was contacted by Lisa Bailey, who claimed that her neighbors, Joshua Lee Blackwell (defendant) and Susan Starlene Waldenville (Waldenville), were trying to get rid of suspicious property. Det. Burgess attempted to gather information about defendant and Waldenville, including searching pawn shop databases.
Det. Burgess contacted Waldenville and asked to speak with her. She agreed to come to the sheriff's office to meet with him. Ultimately, she agreed to cooperate with Det. Burgess and Detective Mark Stamey (Det. Stamey), and gave them directions to the Fords' property. Once there, Waldenville described how she and defendant had driven to the property and parked at the gate, and defendant had gone to the building and returned with the stolen property. After the drive, Det. Burgess charged Waldenville. She pleaded guilty to felony breaking and entering and larceny, and received probation.
The day after the ride-along, Det. Burgess attempted to recover some of the stolen property from South Carolina pawn shops. Det. Burgess also attempted to meet with defendant at work, but defendant would not speak with Det. Burgess about the case.
On 8 February 2016, the Lincoln County Grand Jury found a true bill of indictment against defendant on the charges of felonious breaking and entering, felonious larceny, and felonious possession of stolen goods, resulting from the burglary of the storage building. The Grand Jury subsequently entered a superseding indictment on the same charges.
The matter proceeded to trial. The State presented testimony from the Fords, Waldenville, and Dets. Burgess and Stamey, among others. At the close of the State's evidence, defendant moved to dismiss the charges against him. The trial court denied the motion. Defendant did not offer evidence.
The jury returned verdicts finding defendant guilty of all charges. The trial court arrested judgment as to the charge of felonious possession of stolen goods. Defendant pleaded guilty to having attained the status of an habitual felon. The trial court consolidated the remaining charges of felony breaking and/or entering and felony larceny after breaking and entering, as well as having attained habitual felon status, for judgment, and sentenced defendant to a minimum of 88 months and a maximum of 118 months in the custody of the North Carolina Department of Adult Correction. The trial court also ordered that attorney's fees were to be entered as a separate civil judgment.
On 21 March 2018, this Court granted defendant's petition for writ of certiorari for the purpose of reviewing the criminal judgment.
II. Preliminary Issues
As a preliminary matter, we note that the State has filed a motion to dismiss, and defendant has filed a second petition for writ of certiorari, both pertaining to defendant's first argument. This argument concerns defendant's contention that the trial court erred in entering a civil judgment on attorney's fees without first addressing defendant directly.
Notwithstanding defendant's contention, there is no civil judgment in the record on appeal, nor any evidence that a civil judgment was actually entered. Likewise, despite defendant's contention, the trial court's entry on the criminal judgment and commitment did not constitute a civil judgment, but rather a statement of intent to enter a civil judgment at some future date. Our Supreme Court has held that where there is no civil judgment in the record ordering a defendant to pay attorney's fees, this Court lacks subject matter jurisdiction. State v. Jacobs, 361 N.C. 565, 566, 648 S.E.2d 841, 842 (2007).
Accordingly, we deny defendant's petition for writ of certiorari, and grant the State's motion to dismiss this issue.
III. Plain Error
With regard to defendant's remaining arguments on appeal, defendant contends that the trial court committed plain error in permitting a witness to testify that photographs depicted defendant, and in admitting evidence concerning defendant's right to remain silent. We disagree.
A. Standard of Review
"In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).
"Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
B. Lay Opinion Testimony
First, defendant contends that the trial court erred in permitting Det. Burgess to testify that the person in the photographs taken from the Fords' security camera was defendant. Because no objection was raised to this testimony at trial, we review this argument for plain error.
On direct examination, the State presented some of the Fords' photographs to Det. Burgess. He testified that the person in the picture resembled defendant. Defendant now contends that the admission of this testimony constituted plain error.
Rule 701 of the North Carolina Rules of Evidence provides that the testimony of a lay witness "in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.R. Evid. 701. Defendant contends that Det. Burgess' identification of defendant in the photograph constituted improper lay opinion testimony in violation of Rule 701.
Some context is in order. In the direct examination leading up to the challenged comments, the State had asked Det. Burgess about his investigative process. Prior to Det. Burgess making the challenged comments, the State inquired about his meeting with defendant. The State then asked about defendant's appearance. The State then presented the photographs to Det. Burgess. The State did not ask Det. Burgess to identify the person in the photographs, but merely asked whether he was "familiar with those[.]" Det. Burgess responded that he was not initially aware of the photographs, but was made aware of them after he had met with defendant. Specifically, he testified:
But that took place after I had met Josh Blackwell, which I notice obvious features that were very similar to Joshua Blackwell. Just his stature, his height, the build, the face recognition, I couldn't hundred percent guarantee just because it is somewhat blurry. But as far as the thinning of the face or just the bone structure and the lines, it looks similar to him. There's many similar characteristics.The State then asked if the photographs were used as part of Det. Burgess' investigation; he responded in the affirmative.
This Court has held that where an officer was familiar with a defendant and was in a better position than the jury to identify the defendant from a recorded image, that officer's testimony was "helpful to the jury and not prejudicial to defendant." State v. Collins, 216 N.C. App. 249, 257, 716 S.E.2d 255, 261 (2011). In the instant case, Det. Burgess' testimony shows that he met with defendant at work and briefly spoke with him prior to seeing the photographs. Pursuant to Collins, Det. Burgess was in a better position than the jury to identify defendant in the photograph, having seen him before, and his testimony was therefore helpful to the jury, rather than prejudicial.
Further, the context of Det. Burgess' testimony makes clear that his identification of defendant in the photographs was part of his investigative process. This Court has long held that an officer's description of his investigative process is generally admissible. For example, in State v. Houser, 239 N.C. App. 410, 768 S.E.2d 626 (2015), a detective was asked whether his version of events was consistent with the defendant's. The detective responded in the negative. The defendant, on appeal, contended that this was expert testimony or impermissible lay opinion testimony. We rejected this argument, noting that the testimony "served to provide the jury a clear understanding" of the reasoning behind the investigation, and that the detective's statements "were rationally based on [his] experience as a detective and were helpful to the jury in understanding the investigative process in this case." Id. at 417, 768 S.E.2d at 631-32. We held that "the trial court's admission of this testimony was not error, let alone plain error." Id. at 417, 768 S.E.2d at 632.
In the instant case, as in Houser, Det. Burgess' statements were designed to explain the investigative process to the jury, and were therefore helpful to the jury's understanding. As we held in Houser, we hold that this did not rise to a level of plain error.
C. Right to Remain Silent
Next, defendant contends that the trial court erred in admitting evidence concerning his right to remain silent. Again, because defendant raised no objection to this evidence at trial, we review this argument for plain error.
During his direct examination, Det. Burgess testified that he had approached defendant at work, but defendant did not wish to discuss the case. Defendant concedes that, standing alone, this testimony might not constitute plain error. However, defendant notes that, subsequently, Det. Burgess testified that it is better for a suspect to speak to police than to remain silent.
Defendant mischaracterizes Det. Burgess' testimony. The first comment with which defendant takes issue occurred during the State's examination of Det. Burgess concerning his investigation into defendant. Specifically, the following exchange occurred:
Q. Okay. And what else, if anything, did you do on this case?Subsequently, on cross-examination, defendant asked Det. Burgess about his investigation of the building. The following exchange occurred:
A. I did locate Joshua Blackwell at work. And I spoke with him briefly, tried to see if he wanted to tell me anything about this case. He didn't.
Q. Okay. Did you do anything else?
A. I don't believe so.
Q. Okay. As to the scene of where it happened, did you ever go back out there?
A. At the time I didn't even know that the building was broken into from the side. I didn't have that information. Because I was kind of going blind and having to rely solely on Susan Starlene Waldenville to tell me everything about that, which actually is better for -- to me it's better for the suspects to actually give us all the information they have. I mean, it shows several things. That, you know, they're maybe sorry for what they did or, you know. It's just --
That's the way I look at it. So I always give them the open option to tell me everything, tell me where to go get stuff, you know, where this property went, what did you get for the property, just anything.It is clear from context that Det. Burgess was discussing the fact that, during his investigation of Waldenville, she cooperated with investigators, informed them of where stolen goods were sold, and pleaded guilty to charges. It is also clear that, despite defendant taking issue with this testimony, defendant solicited it at trial. Perhaps most importantly, it is clear that these comments were neither related to nor directed towards defendant. Tellingly, defendant cannot indicate anywhere in the record where his right to remain silent was explicitly referenced.
Even assuming arguendo that this was an improper observation of defendant's exercise of his right to remain silent, it was not sufficiently prejudicial to rise to a level of plain error. Our Supreme Court has held that, where a defendant raised no objection at trial, the comments at issue were relatively benign, the State made no attempt to emphasize a defendant's post-arrest silence, and the evidence of a defendant's guilt was substantial, any error in admitting the comments was not sufficient to warrant reversal. State v. Alexander, 337 N.C. 182, 196, 446 S.E.2d 83, 91 (1994).
Likewise, in the instant case, no objection was raised, the comments were benign, the State made no reference to defendant's refusal to speak with officers, and the evidence against defendant was substantial. The evidence at issue included photographs, the testimony of investigating officers, and the eyewitness testimony of Waldenville, who was with defendant when he committed the burglary. Certainly, where our Supreme Court found that such comments did not rise to the level of ordinary error in Alexander, they do not rise to the level of plain error in the instant case. As such, we hold that the trial court did not commit plain error in admitting Det. Burgess' statements concerning defendant's unwillingness to speak with him during the investigation.
DISMISSED IN PART, NO PLAIN ERROR IN PART.
Judges INMAN and ARROWOOD concur.
Report per Rule 30(e).