State v. Watkins

• Decision Date: 17 January 2012
• Docket Number: No. COA11–770.,COA11–770.
• Citation: 720 S.E.2d 844
• Parties: STATE of North Carolina v. Keenan Montrell WATKINS.
• Court: North Carolina Court of Appeals

720 S.E.2d 844

STATE of North Carolina

v.Keenan Montrell WATKINS.

No. COA11–770.

Court of Appeals of North Carolina.

Jan. 17, 2012.

Appeal by defendant from judgments entered 3 February 2011 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 November 2011.

Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

James N. Freeman, Jr., Elkin, for defendant appellant.

McCULLOUGH, Judge.

On 3 February 2011, a jury convicted Keenan Montrell Watkins (“defendant”) of first-degree burglary, conspiracy to commit first-degree burglary, possession of a weapon of mass destruction, common law robbery, and first-degree kidnapping. On appeal, defendant contends the trial court (1) erred in denying his motions to dismiss the charges of first-degree burglary and common law robbery for insufficiency of the evidence, (2) committed plain error in admitting both out-of-court and in-court identifications of defendant, and (3) erred in awarding restitution not supported by sufficient evidence. We find no error in the trial court's denial of defendant's motion to dismiss the common law robbery charge, the trial court's admission of the identification evidence, and the trial court's award of restitution. However, we vacate the judgment on defendant's first-degree burglary conviction and remand to the trial court for entry of judgment as upon a guilty verdict for felonious breaking or entering.

I. Background

The State's evidence produced at trial tended to show the following events on the evening of 9 May 2009. Jamie Hairston (“Hairston”) was living in a townhome with her boyfriend and his roommate located at 634 Lex Drive in Charlotte, North Carolina, near the University of North Carolina at Charlotte (“UNC Charlotte”) campus. Around 11:00 p.m., Hairston was alone in the townhome and asleep in the downstairs bedroom when she heard what sounded like scratching and prying at the back door. Hairston immediately got out of bed and ran up the stairs of the townhome and out the front door to a neighbor's home. Hairston then called 911. While she was on the phone with emergency services, Hairston heard someone running through the woods located behind the apartment complex. Police officers arrived at the scene within five minutes.

Officer Matthew Horner (“Officer Horner”) of the Charlotte–Mecklenburg Police Department (“CMPD”) responded to the call at 634 Lex Drive that evening. Officer Horner met Hairston in the parking lot of the apartment complex, where she explained what had happened. Officer Horner then went inside the residence to ensure that no one was present. Officer Horner noticed broken glass at the back door area of the ground level bedroom and that the window next to the back door was busted. While searching the residence, Officer Horner discovered a large glass marijuana “bong” and noted a strong odor of marijuana inside the residence. As Officer Horner exited the residence, Hairston informed Officer Horner that she had heard someone running in the woods behind the complex while he was inside searching the residence.

Officer Horner then circled the area and observed Markese Durant (“Durant”) coming out of the woods and crossing an adjacent street approximately 50–100 feet from Hairston's townhome. Officer Horner got out of his vehicle to speak with Durant and noticed Durant was walking stiff-legged and trying to shield his right side from Officer Horner's sight. During questioning, Durant informed Officer Horner that Durant had a shotgun in his pants, upon which Officer Horner placed Durant under arrest and seized the shotgun. Officer Horner confirmed the shotgun barrel was 15.5 inches long and the total length of the gun was less than 25 inches long. Officer Horner detained Durant on the sidewalk and called for backup.

Meanwhile, Victor Smith (“Smith”) was in the parking lot of the Phase 3 complex on the UNC Charlotte campus packing items into a 1998 Honda Accord that he had recently purchased from his roommate, although the car was still titled in Smith's roommate's name. Smith was working as a resident adviser in Building Y of the Phase 3 complex. As Smith was loading the car, he saw an individual approaching him. Smith felt uneasy, so he pulled out his cell phone, dialed 911, and described his surroundings. The individual asked Smith to take him to the “top” of campus. Smith did not know what the individual meant, so he told the individual he could not drive him, but he could get someone else to take him there. Smith then attempted to call campus security, but he did not have the correct number, so he called his building's resident coordinator and began to vaguely describe what was happening. At that point, the individual took Smith's phone, pointed a gun at Smith, and told Smith to get in the car. At first, Smith tried to give the car keys to the individual, but the individual told Smith to get in the car and drive while the individual got into the passenger seat of the car.

Smith began to drive the car down the street and made a right turn onto Mary Alexander Road. Smith then noticed a police vehicle approaching in their direction. Smith accelerated through the next stop sign in an effort to get the police officer's attention. Smith then opened the car door, jumped out of the car, and rolled onto the pavement, suffering some road rash and bruises. Smith's car then disappeared from his sight. After getting up, Smith was able to run to the police vehicle. Smith explained the situation to the police officer and got inside the police vehicle. In his written statement to the police officer, Smith described the individual who had approached him as a black male, 5'10? tall, with medium build.

Approximately 10–15 minutes after Officer Horner had detained Durant on the sidewalk, a car approached Officer Horner and Durant at a high rate of speed from Mary Alexander Road. The car swerved towards Officer Horner, then drove down a ravine and crashed into some trees. Officer Horner observed an individual jump out of the car and run away from the vehicle and into the woods.

Officer Phillip Greco (“Officer Greco”) with the UNC Charlotte campus police was called to assist with the reported armed robbery in the parking lot of the Phase 3 complex on campus. Officer Greco was informed by radio that the stolen vehicle had crashed and that the suspect had run on foot into the woods away from Mary Alexander Road. Officer Greco drove to the other side of the woods, into the Campus Walk apartment complex and began to search the wood line. Officer Greco located defendant, who matched the description of the suspect he was looking for, lying under some chairs on a rear patio of the apartment complex at the edge of the woods. Officer Greco held defendant at gunpoint until other police officers arrived. Two CMPD officers and another UNC Charlotte campus police officer arrived to assist Officer Greco. Defendant was patted down for weapons, handcuffed, and detained for a show-up. While defendant was being detained for the show-up, a CMPD canine officer tracking the individual who left the car at the scene of the crash emerged from the woods with his handler and alerted to defendant.

The police officer whom Smith was with brought Smith to the back of Campus Walk apartments where the other officers had detained defendant. Spotlights illuminated the back of the apartment complex, and Smith saw defendant sitting in a patio chair. Officer Greco used his flashlight to further illuminate defendant. Standing approximately 10–12 feet away from defendant, Smith identified defendant as the individual who had hijacked him. Smith had never seen defendant before that evening, and defendant was the only individual shown to Smith by the officers on that evening. Smith testified that he was “sure” defendant was the perpetrator when he made the identification on the night of 9 May 2009. Smith likewise identified defendant in court as the individual who approached him that night and testified he was still “sure” defendant was the perpetrator.

Kris Scheuerman (“Scheuerman”), a crime scene investigator for the CMPD, was called to the scene of the car crash. Scheuerman searched and photographed the car, a 1998 Honda Accord, and discovered a black air pistol BB gun located between the driver's seat and front center console.

Detectives John Fish (“Detective Fish”) and Jeffrey Stewart (“Detective Stewart”) of the CMPD were called to the University Medical Center to interview defendant. Defendant was in the emergency room, although neither detective observed any injuries on defendant's person. Detective Stewart advised defendant of his Miranda rights, and defendant stated that he understood his rights and that he agreed to waive those rights and talk to the officers.

Detective Fish and Detective Stewart both testified that defendant stated that he was informed by a friend that someone living at 634 Lex Drive had obtained a quantity of marijuana. Defendant and Durant then took a sawed-off shotgun with them to the residence with the idea to break in and steal the marijuana and/or money. They believed no one would be home in the residence. When they arrived at the residence, defendant used the end of the shotgun to break the glass in the back window. The two then heard someone inside the residence, split up, and ran. Defendant stated he eventually jumped into the passenger side of a car with someone he didn't know, told the driver to drive him away from the area, and the driver jumped out of the car. Detective Stewart testified that defendant stated he then took over the car and drove it and wrecked shortly thereafter. Defendant indicated he had used a BB gun pistol to take the car, but he didn't know what had happened to the gun. Detectives Fish and Stewart also interviewed Durant at the law enforcement center.

Defendant presented no evidence at trial. On 3 February 2011, the...