State v. Belk

• Decision Date: 08 December 2009
• Docket Number: No. COA09-187.,COA09-187.
• Citation: 689 S.E.2d 439
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jerry Lenell BELK.

689 S.E.2d 439

STATE of North Carolina v. Jerry Lenell BELK.

No. COA09-187.

Court of Appeals of North Carolina.

December 8, 2009.

Appeal by defendant from judgment entered 10 September 2008 by Judge Robert C. Ervin in Superior Court, Mecklenburg County. Heard in the Court of Appeals 1 September 2009.

Attorney General Roy Cooper, by Assistant Attorney General, Judith Tillman, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

WYNN, Judge.

Defendant Jerry Lenell Belk appeals his convictions for felony breaking and entering, felony larceny after breaking and entering, and obtaining habitual felon status. He argues that the trial court erred by allowing a police officer to testify that Defendant was the individual depicted in a surveillance video tape. After careful review, we hold that the trial court committed prejudicial error by admitting the testimony of Officer Ring, identifying the Defendant as the person depicted in the video surveillance tape, and remand for a new trial.

At trial, the State presented evidence tending to show the following: On 7 October 2007, Officer Aaron Appleman, a police officer with the Charlotte-Mecklenburg Police Department, responded to an alarm call at 500 West Fifth Street in Charlotte, N.C. at approximately 2:42 p.m. At the scene, the lobby door was open but intact. However, the glass door to the interior office suite occupied by Elder Design Limited (doing business as ESD Architecture¹) "had been smashed into pieces." The rear office door and side window to the back office were also damaged. Elliott Elder, the chief executive officer of ESD Architecture, later reported that a laptop computer worth approximately $2800 had been stolen.

On the day of the break-in, ESD Architecture was equipped with a video security system provided to the company by "a licensed bank security system vendor." The security company downloaded the video surveillance footage from 7 October 2007 onto a compact disk, which Danielle Matuszczk², an operations manager at ESD Architecture, gave to Charlotte-Mecklenburg Police Officer Christopher Eubanks on 23 October 2007. During the course of the investigation, Charlotte-Mecklenburg Police Officer Donna Ring viewed the video surveillance footage and identified Defendant as the individual in the video.

Defendant was indicted for felony breaking and entering and felony larceny after breaking and entering on 10 December 2007, and for attaining habitual felon status on 11 August 2008. After a trial in Superior Court, Mecklenburg County, a jury issued guilty verdicts on all three counts. The trial court entered judgment and commitment on 10 September 2008, sentencing Defendant to a term of 133 to 169 months imprisonment with fifty-three days credit for confinement prior to judgment, and recommended a civil lien against Defendant for attorney's fees ($2460).

On appeal, Defendant argues that the trial court erred by allowing Officer Ring's lay opinion testimony identifying Defendant as the person depicted in the video surveillance footage. Because Officer Ring was in no better position than the jury to identify Defendant as the person in the surveillance video, we hold that the trial court erred by admitting the officer's testimony. Further, finding the error to be prejudicial, we remand for a new trial.

Pursuant to the N.C. Rules of Evidence, admissible lay opinion testimony "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. Gen.Stat. § 8C-1, Rule 701 (2007). Although N.C. appellate courts have not addressed the specific issue of lay opinion testimony identifying a defendant as the person depicted in a surveillance video, "[o]rdinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury." State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980).

In State v. Fulton, our Supreme Court found an officer's testimony that the design of the shoe tracks in a photograph of the crime scene was the same pattern as the tread on the defendant's shoe to be inadmissible lay opinion testimony. The Court reasoned "the jury was apparently as well qualified as the witness to draw the inferences and conclusions from the facts that [the officer] expressed in his opinion." Id. (citations omitted); see also State v. White, 154 N.C.App. 598, 605, 572 S.E.2d 825, 831 (2002) (holding inadmissible an officer's testimony that a recovered television was "more than probably" the victim's where testimony was not based on his perception); State v. Shaw, 106 N.C.App. 433, 417 S.E.2d 262 (holding opinion testimony not based on personal knowledge and not helpful to the jury was inadmissible because the jury was as qualified as the officer to infer from the facts that the defendant had broken into the victim's home), disc. review denied, 333 N.C. 170, 424 S.E.2d 914 (1992).

Because Rule 701 of the Federal Rules Evidence is identical to Rule 701 of the North Carolina Rules of Evidence, the federal jurisdictions' treatment of this issue is persuasive. See Fed.R.Evid. 701 (2007). As this Court 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.

___ N.C.App. ___, ___, 671 S.E.2d 351, 354-55 (internal quotation marks and citation omitted) (holding the trial court erred in admitting detective's testimony interpreting surveillance videotapes, where the tapes were played for the jury), disc. review denied, 363 N.C. 375, 679 S.E.2d 135 (2009). Specifically, courts adopting the majority trend have found the following factors to be relevant to this analysis:

(1) the witness's general level of familiarity with the defendant's appearance; (2) the witness's familiarity with the defendant's appearance at the time the surveillance photograph was taken or when the defendant was dressed in a manner similar to the individual depicted in the photograph; (3) whether the defendant had disguised his appearance at the time of the offense; and (4) whether the defendant had altered his appearance prior to trial.

United States v. Dixon, 413 F.3d 540, 545 (6th Cir.2005) (citing United States v. Pierce, 136 F.3d 770, 774-75 (11th Cir.1998)); see, e.g., United States v. Henderson, 68 F.3d 323 (9th Cir.1995) (upholding the admission of testimony where witness had known defendant for fifteen years and seen him frequently throughout that period); United States v Jackson, 688 F.2d 1121 (7th Cir.1982) (upholding the admission of testimony where witness had met the defendant only once, concluding the amount of time witness spent with the defendant goes to the weight rather than the admissibility of the evidence), cert. denied, 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 797 (1983); United States v. Borrelli, 621 F.2d 1092 (10th Cir.1980) (defendant's stepfather was in a better position than the jury to compare defendant's in-court appearance with that of the individual in the surveillance photograph where defendant had altered his appearance by changing his hairstyle and growing a mustache), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); United States v. Saniti, 604 F.2d 603, 604-05 (9th Cir.1979) (upholding the admission of testimony of defendant's roommates who identified the specific clothing worn by the individual in the surveillance photograph as belonging to the defendant).

These courts have also considered the clarity of the surveillance image and completeness with which the subject is depicted in their analysis. As the Sixth Circuit explained:

Lay opinion identification testimony is more likely to be admissible . . . where the surveillance photograph is of poor or grainy quality, or where it shows only a partial view of the subject. See, e.g., United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir.1995) (upholding the admission of lay opinion identification testimony primarily because "[a]ll the surveillance photographs of the . . . robber are somewhat blurred, and they show only part of the robber's face, primarily the left side from eye-level down"); United States v. Allen, 787 F.2d 933, 936 (4th Cir.1986) (upholding the admission of lay opinion identification testimony where one surveillance photograph showed one individual "with his jacket hood pulled over his head so that his hair, forehead and right eye are not visible," and two other photographs were "incomplete reproductions of the...