STATE OF NORTH CAROLINA v. SHERWOOD DALE ALEX (2023)

Sherwood Alex (“Defendant”) appeals from a judgment entered upon a jury verdict of guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a convicted felon. After careful review of the record and applicable law, we hold Defendant received a fair trial free of error.

I. Factual and Procedural Background

On 13 February 2020 at 9:37 p.m., two men wearing masks entered the front door of a Little Caesars pizza restaurant in Charlotte, North Carolina. The first man wore a blue zip-up hooded sweatshirt and carried a shotgun. He had his face covered and wore a glove on his right hand. The second man also had his face covered and wore socks on both hands. The second man locked the front door and both men entered the back room where three employees were working. The two men ordered the three employees to lay on the floor. The employees were told by the man holding the shotgun that if they moved, he would shoot them.

The second man then took one of the employees to the front of the store to extract money from the restaurant safe. The store employee opened the safe and gave the man money, and the man also took money from a cash register. Meanwhile in the backroom, the man with the shotgun searched an employee, taking his wallet and cell phone. By 9:40 p.m., the two men had exited the restaurant through the backdoor with money taken from the safe and cash register, the three employee's phones, and an employee's wallet. The 911 call center received two calls related to the robbery, one at 9:41 p.m. and another at 9:43 p.m. A patrol officer responded to the 911 calls. The employees attempted to locate their phones with a “Find My iPhone” app, and all the phones pinged nearby.

On 2 March 2020, a grand jury indicted Defendant on charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a convicted felon. On 19 October 2020, a grand jury indicted Defendant on having attained habitual felon status. On 19 April 2021, Defendant gave notice of his intent to offer an alibi defense at trial. On 14 June 2021, the grand jury issued a superseding habitual felon indictment after making corrections to the original indictment.

At trial, Officer Simpson of the Charlotte Mecklenburg Police Department testified to the events which occurred on the night of the robbery. Officer Simpson arrived at the restaurant with his K-9, Levi, between 9:40 to 9:45 p.m. and observed a car parked in a lane of travel on the same road as the restaurant. Officer Simpson deployed K-9 Officer Levi. During the course of their track, they discovered money and clothing on the ground consistent with the robbery and a flight path from the parked car.

Officer Cierpial, a crime scene investigator for the Charlotte Mecklenburg Police Department, testified regarding her collection of evidence related to the robbery. Officer Cierpial photographed the crime scene at the Little Caesars and photographed and collected evidence discovered by officers along the suspects’ flight path. Officer Cierpial testified that she photographed the money discovered on the flight path and then returned it to the store. Additionally, she photographed and collected along the flight path a glove, a pair of socks, a bandana, and a long sleeve blue shirt. She also photographed two of the store employee's phones found on the ground and returned them to the victims.

Officer Cierpial collected evidence from the car parked in the lane of travel and found a store employee's wallet on the driver's seat of the car. A second wallet located on the rear left floorboard contained Defendant's North Carolina driver's license, social security card, and American Express card. Additionally, Officer Cierpial discovered six cell phones in the car, but was unable to collect any fingerprints that could be used for comparison to those taken from inside the car.

Detective Freeman of the Charlotte Mecklenburg Police Department testified regarding his investigation of the robbery. He identified the owner of the vehicle as Shanta Harris (“Ms. Harris”), who had reported the car stolen the morning after the robbery. Detective Freeman met Ms. Harris at her house located near the restaurant, at 11:30 a.m. on 14 February 2020.

Detective Freeman observed Defendant at Ms. Harris’ home when he arrived. On direct examination, the Detective testified he noticed Defendant fit the description of the suspect who carried the shotgun. According to the Detective, Ms. Harris stated to him the last time she had seen her car was around 9:00 p.m. the prior night, and she still was in possession of the car's single set of keys. Ms. Harris’ car had been towed to the impound lot after the robbery. Detective Freeman later went to the impound lot to inspect the vehicle but did not observe any damage.

When asked by the prosecutor if he had “any reason to believe that the car had been stolen,” the following exchange occurred:

[FREEMAN]: No I didn't.

[PROSECUTOR]: Why not?

[FREEMAN]: Based on my training and experience with stolen vehicles, and the fact that Ms. Harris had the keys, the time frame of when she called 911, the state of the vehicle, it didn't make sense.

Officers arrested Defendant at Ms. Harris’ home on 19 February 2020, and Ms. Harris consented to Detective Freeman conducting a search of her home. During the search, the Detective located a pair of plaid pants, gray long john underwear, and a backpack in one of the bedrooms and photographed each. After comparing the photos of the plaid pants and long johns found in Ms. Harris’ home to the clothing shown in the restaurant's security camera video, Detective Freeman testified, “I believe they were the same pants” and the “same long john underwear.”

Detective Freeman testified that the second suspect, Jovante McKenzie (“McKenzie”), was identified by DNA analysis approximately six months after the robbery and was subsequently arrested and charged. When asked about McKenzie the following exchange occurred between the trial prosecutor and the Detective:

Q. Did anything happen after arresting and interviewing Jovante McKenzie to change your opinion about [D]efendant's role in this robbery?

A. No.

Evidence presented at trial established DNA samples taken from the clothing items located along the suspects’ flight path matched the DNA profiles from both Defendant and McKenzie.

Officer Patterson, a digital forensic analyst with the police department, gave testimony addressing his forensic examination of Defendant's cell phone. His examination showed that on the date in question, Defendant had nineteen phone calls with a contact named “Li'l Joe” prior to the robbery, and two after the fact. Defendant also placed a call to Ms. Harris at 9:42 p.m. and received nine calls from her between 9:44 p.m. and 10:00 p.m. Officer Patterson recovered a photo taken on 19 January 2020 showing Defendant wearing a blue zip-up hooded sweatshirt with a polo player logo, identical to the sweatshirt worn by one of the suspects during the robbery.

On 4 August 2021, the jury returned guilty verdicts on the charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a convicted felon. The next day, Defendant pleaded guilty to having attained habitual felon status pursuant to a plea agreement with the State. In accordance with the plea agreement, the trial court sentenced Defendant to 117 to 153 months imprisonment for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, and 117 to 153 months imprisonment for possession of a firearm by a convicted felon to be served at the expiration of the preceding sentence. Defendant filed written notice of appeal on 11 August 2021.

II. Standard of Review

This Court reviews preserved challenges to the admission of opinion testimony by expert and lay witnesses under an abuse of discretion standard. State v. Faulkner, 180 N.C. App. 499, 512, 638 S.E.2d 18, 27 (2006). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).

However, where the defendant fails to preserve a challenge to the admission of testimony through timely objection at trial, it is subject to plain error review. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). Under the plain error standard, Defendant bears the burden of showing that absent the error, it was probable that the jury would have reached a different conclusion. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).

III. Analysis

On appeal, Defendant argues the trial court committed error or plain error in several instances by admitting Detective Freeman's testimony addressing the following: (1) the Detective's belief “Ms. [Harris’] car was not stolen”; (2) his determination that Defendant was one of the robbers; (3) Defendant “ ‘fit the description’ of one of the robbers in the video”; (4) the Detective's statement that the pants found in Ms. Harris’ home were “ ‘the same’ as those worn by one of the robbers on the security video”; and (5) “codefendant McKenzie did not say anything in his interview to change Detective Freeman's opinion that [Defendant] was involved.” Defendant contends the evidence against him is entirely circumstantial and the “admission of [Detective] Freeman's opinions was unfairly prejudicial, probably changed the outcome of the case, and requires a new trial.” Each of these contentions will be addressed in turn.

A. Detective's Belief the Vehicle Had Not Been Stolen.

First, Defendant argues the trial court erred in allowing Detective Freeman to testify that Ms. Harris’ car had not been stolen because it invaded the province of the jury and was prejudicial. Defendant contends the Detective's opinion testimony (1) was based on his own inferences drawn from the evidence, inferences the jury was capable of drawing for itself; (2) violated the prohibition against witnesses opining on credibility and opining on guilt so that it was an improper comment on the credibility of Ms. Harris, who had reported the car stolen; and (3) Detective Freeman's statement the car was not stolen was essentially an opinion that Defendant was guilty. We disagree.

We first address whether Defendant's contention was properly preserved for appellate review. At trial, the prosecutor and Detective Freeman engaged in the following exchange:

[PROSECUTOR]: After speaking with [Ms.] Harris, with [D]efendant, inspecting the vehicle for yourself, did you believe that this car had been stolen?

[FREEMAN]: No.

[PROSECUTOR]: Why not?

[DEFENSE COUNSEL]: Objection, Your Honor.

[TRIAL COURT]: Sustained. Re-ask the question, please?

[PROSECUTOR]: Officer, did you have any reason to believe that the car had been stolen?

[FREEMAN]: No I didn't.

[PROSECUTOR]: Why not?

[FREEMAN]: Based on my training and experience with stolen vehicles, and the fact that Ms. Harris had the keys, the time frame of when she called 911, the state of the vehicle, it didn't make sense.

During this exchange, Defendant's trial counsel objected to the first question which the trial court sustained but did not object to the prosecutor's second question. The transcript reflects Defendant did not state a basis for objecting on the record. Defendant argues the two “questions are essentially identical” as they both “ask for an opinion about the car being stolen and for reasons supporting that opinion.”

According to Rule 10 of the North Carolina Rules of Appellate Procedure, “to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection or motion” and obtain the trial court's ruling on the objection. N.C. R. App. P. 10(a)(1). In the present case, Defendant's trial counsel did not object to the prosecutor's second question and did not state the basis for his objection to the first question on the record. Because Defendant failed to preserve his contested issue by objecting, his contention is subject to plain error review.

Under Rule 701 of our Rules of Evidence, a lay witness may testify “in the form of opinions or inferences ․ 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. Gen. Stat. § 8C-1, N.C. R. Evid. 701. A law enforcement officer may testify about details rationally based on his perception and experience to assist the factfinder in “presenting a clear understanding of [the officer's] investigative process.” State v. O'Hanlan, 153 N.C. App. 546, 562-63, 570 S.E.2d 751, 761-62 (2002). Additionally, an officer may testify about his perceptions, even in making statements “expressing skepticism over [the defendant's] account,” if such statements serve “to provide context and explain [the officer's] rationale for continuing to subject [the defendant] to additional scrutiny” for investigation purposes. State v. Daughtridge, 248 N.C. App. 707, 716, 789 S.E.2d 667, 672 (2016).

In the present case, Detective Freeman's testimony explained both facts uncovered during his investigation and the rationale for continuing his investigative process. The Detective testified that based on his training and experience with stolen vehicles, his inquiry with Ms. Harris, and the evidence of the vehicle's condition, he did not believe Ms. Harris’ car had been stolen. This testimony explains why Detective Freeman did not cease his investigation into Defendant at that juncture. Instead, the Detective gathered additional evidence, returned to Ms. Harris’ home, and gained her written consent to search the residence. Accordingly, the admission of Detective Freeman's testimony did not constitute error, much less plain error as it did not run afoul of Rule 701.

Assuming arguendo the trial court committed error in admitting Detective Freeman's testimony, Defendant has failed to show that such an error would have had a probable impact on the jury finding Defendant guilty.

A review of the record demonstrates the State presented substantial evidence tending to show Defendant's guilt of the crimes. For example, the video footage from the restaurant's cameras which captured the robbery in real time was introduced as an exhibit. Additionally, the State entered into evidence a photograph taken from Defendant's phone of Defendant wearing a sweatshirt; the sweatshirt in the photograph matched the sweatshirt worn by the suspect holding the shotgun in the robbery video. The State entered as an exhibit a photograph of plaid pants and gray underwear recovered from Defendant's home which were similar to the pants and underwear worn by the suspect holding the shotgun in the video. Furthermore, Ms. Harris’ car was found abandoned near the Little Caesars restaurant. Upon searching the vehicle, police found two wallets, one belonging to Defendant and one belonging to one of the robbery victims, inside the car.

According to Detective Freeman's testimony, Ms. Harris’ vehicle did not have a broken ignition or broken windows, the only set of keys to the car were still in her possession the morning following the robbery, and the car was not reported stolen until more than twelve hours after the robbery. Meanwhile, DNA samples taken from the clothing located along the suspects’ flight path revealed Defendant's DNA in a glove, identical to the glove worn by the suspect in the video, and McKenzie's DNA on clothing worn by the other robbery suspect in the video. Finally, the evidence showed Defendant and “Li'l Joe” exchanged at least nineteen phone calls on the day of robbery, but none were completed during the time of the robbery, and Defendant also called Ms. Harris shortly after the robbery was committed, then missed ten calls from her. This evidence could have been considered by the jury to establish Defendant's guilt; thus, we find no plain error in allowing Detective Freeman's testimony. Plaintiff's argument is overruled.

B. The Security Camera Video Recording as the Basis for Defendant as a Suspect.

Defendant next argues the trial court plainly erred in failing to sua sponte strike Detective Freeman's responses to the following cross-examination by Defendant's trial counsel:

[DEFENSE COUNSEL]: From February 14, 2020 going forward is–it's your theory that the Toyota [owned by Ms. Harris] was used in the robbery. Is that correct?

[FREEMAN]: Yes.

[DEFENSE COUNSEL]: And it was your theory going–at that point that [Defendant] was the robber–one of the robbers.

[FREEMAN]: I made that determination a couple days after I reviewed all the information, and reviewed the car, the items in the car, the video surveillance, the statements, and also speaking with [D]efendant. By reviewing all of his information, I came to that determination.

Defendant argues Detective Freeman's testimony was an improper opinion of Defendant's guilt but concedes that his trial counsel's failure to move to strike the testimony during trial requires the Detective's testimony be reviewed for plain error. However, we note Defendant's trial counsel elicited the responses to which he now assigns error. Because of this elicitation, Defendant invited this error, so that he is not prejudiced by an alleged error resulting from his own conduct. Therefore, we overrule his argument. State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971). See also N.C. Gen. Stat. § 15A-1443(c).

C. Detective's Belief the Clothing Items Found in Ms. Harris’ Home Were the Same as Those in the Video Recording.

Next, Defendant challenges another portion of Detective Freeman's testimony as a violation of Rule 701. After comparing the photos of the plaid pants and long johns found in Ms. Harris’ home to the clothing shown in the robbery video, the Detective opined, “I believe they were the same pants” and the “same long john underwear.” Defendant further contends that Detective Freeman's testimony violated Rule 701 when, after encountering Defendant, the Detective believed he “fit the description” of one of the robbers in the video. Again, Defendant concedes his trial counsel did not object to the challenged statements. Thus, we review his contention for plain error.

Regarding lay opinion testimony, we noted in State v. Buie

The current national trend is to allow lay opinion testimony identifying the person, usually a criminal defendant, in a photograph or videotape where such testimony is based on the perceptions and knowledge of the witness, the testimony would be helpful to the jury in the jury's fact-finding function rather than invasive of that function, and the helpfulness outweighs the possible prejudice to the defendant from admission of the testimony.

194 N.C. App. 725, 730, 671 S.E.2d 351, 354 (2009) (citation omitted).

In State v. Mewborn, this Court permitted “the testimony of an officer that the markings on the defendant's shoes were ‘very consistent’ with shoes worn by the perpetrator in a video of the robbery.” 131 N.C. App. 495, 499, 507 S.E.2d 906, 909 (1998). We found this testimony admissible because “the officer had the opportunity to observe when the defendant was brought in for questioning, and the shoe markings [were] visible in the videotape.” Buie, 194 N.C. App. at 732, 671 S.E.2d at 356.

In the present case, Detective Freeman based his testimony at trial on his firsthand knowledge and perception when he testified to receiving consent to search Ms. Harris’ home where Defendant also resided and to how he collected evidence, including a backpack containing the plaid pants he found in the master bedroom of the home. The prosecutor introduced the photographs of the scene and the evidence collected from Ms. Harris’ home then asked the Detective if he had compared the plaid pants found during the search to those he observed in the surveillance video. Detective Freeman offered his belief they were the same pants based upon his personal observations and his thorough investigative processes. Thus, the trial court did not plainly err in allowing this portion of his testimony into evidence. Defendant's argument is overruled.

D. Detective's Testimony About the Impact of Mckenzie's Interview on Defendant.

Finally, Defendant argues the trial court committed plain error by failing to strike Detective Freeman's testimony that he did not change his opinion concerning Defendant's involvement in the robbery after interrogating McKenzie. Defendant contends (1) this testimony would have been understood by the jury “as a reiteration of [Detective] Freeman's opinion that [Defendant] was guilty”; (2) the jury would have understood the Detective's testimony as stating his belief that McKenzie was guilty; and (3) admission of this statement violated the Bruton rule on co-defendant confessions.

Pursuant to Rule 704, “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.C. Gen. Stat. § 8C-1, N.C. R. Evid. 704. Rule 704 allows for “admission of lay opinion evidence on ultimate issues.” State v. Elkins, 210 N.C. App. 110, 124, 707 S.E.2d 744, 754 (2011) (cleaned up). However, “to qualify for admission the opinion must be helpful to the jury.” Id. Here, Detective Freeman's testimony concerning McKenzie provides context for his investigative process by explaining why he continued to investigate Defendant despite having identified McKenzie as a suspect. See Daughtridge, 248 N.C. App. at 716, 789 S.E.2d at 672.

Defendant also argues Detective Freeman's testimony regarding McKenzie's identification “through a DNA hit” and his subsequent arrest and charge could have been interpreted by a jury as testimony that the Detective believed McKenzie was guilty. However, these challenged portions of testimony are actually factual statements rather than opinions. A fact is “[s]omething that actually exists” or “[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation.” Fact, Black's Law Dictionary (11th ed. 2019). It is a fact DNA analysis identified McKenzie as a suspect in the robbery. It is also a fact Detective Freeman arrested and charged McKenzie for his participation in the robbery. Because these challenged statements are factual assertions, Rule 701 does not govern.

Additionally, Defendant challenges the following exchange between the State and Detective Freeman:

[PROSECUTOR]: Did you interview him?

[FREEMAN]: Yes.

[PROSECUTOR]: Did anything happen after arresting and interviewing McKenzie to change your opinion about [D]efendant's role in this robbery?

[FREEMAN]: No.

Defendant contends Detective Freeman's testimony that his interview with McKenzie did not change his opinion of Defendant's guilt violated the rule in Bruton v. United States. “In Bruton[,] the United States Supreme Court held that at a joint trial, admission of a statement by a nontestifying codefendant that incriminated the other defendant violated that defendant's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” State v. Evans, 346 N.C. 221, 231, 485 S.E.2d 271, 277 (1997) (citing Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968)).

Bruton stands for the general proposition that the admission of a codefendant's extrajudicial statements against the non-declarant violates the Confrontation Clause of the Sixth Amendment if two circumstances simultaneously co-exist: (1) the statements inculpate the non-declarant and (2) the statements do not fall within an exception to the hearsay rule.

State v. Porter, 303 N.C. 680, 695, 281 S.E.2d 377, 387 (1981).

In the present case, while the exchange between the prosecutor and the Detective established he interviewed McKenzie, there is no record of what statements, if any, McKenzie may have made or whether if made, any had incriminating implications. McKenzie's extrajudicial statements were not disclosed through Detective Freeman's testimony and were not admitted into evidence. Therefore, no Bruton violation occurred. The trial court did not err, much less commit plain error, in admitting Detective Freeman's testimony.

IV. Conclusion

For the foregoing reasons, we conclude Defendant has failed to demonstrate plain error in the trial court's decisions. We hold Defendant received a fair trial free of prejudicial error.

NO ERROR.

Report per Rule 30(e).

WOOD, Judge.

Judges DILLON and ZACHARY concur.