State v. Brown, No. COA07-843 (N.C. App. 3/4/2008)
| Decision Date | 04 March 2008 |
| Docket Number | No. COA07-843,COA07-843 |
| Parties | STATE OF NORTH CAROLINA v. GEORGE WILLIAM BROWN, JR. |
| Court | North Carolina Court of Appeals |
Sue Genrich Berry for Defendant.
George William Brown, Jr. ("Defendant") appeals from judgments entered 12 April 2007 upon his convictions by a jury of assault with a deadly weapon, possession of a firearm by a convicted felon, and discharging a firearm within city limits.1 We find no error.
Initially, we note sua sponte the lack of evidence in the record on appeal that Defendant properly gave notice of appeal from the judgments entered. A criminal defendant may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within 14 days after entry of the judgment or order [from which appeal is taken] or within 14 days after a ruling on a motion for appropriate relief made during the 14-day period following entry of the judgment or order.
N.C. R. App. P. 4(a). The record on appeal "shall contain . . . a copy of the notice of appeal or an appropriate entry or statement showing appeal taken orally[.]" N.C. R. App. P. 9(a)(3). "[W]hen a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal." State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (citations omitted), appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005).
The record does not contain a written notice of appeal, and, upon inquiry, we have determined that there are no written notices of appeal in the files of the Office of the Clerk of Superior Court of Mecklenburg County. Neither the transcript nor the judgments signed by Judge Albert Diaz on the trial's final day suggest that Defendant gave oral notice of appeal at trial. According to the clerk's minutes, Defendant gave oral notice of appeal in open court on 30 April 2007, the day Judge Diaz signed an appellate entries form which states, "The defendant has given Notice of Appeal to the N.C. Court of Appeals[.]" The appellate entries form, signed eighteen days after the trial, constitutes the only shred of evidence in the record that Defendant ever gave notice of appeal. Nevertheless, oral notice of appeal eighteen days after trial does not satisfy the requirements of N.C. R. App. P. 4(a). Because Defendant has not properly given notice of appeal, this Court is without jurisdiction to hear, and must dismiss, his appeal. See, e.g., In re Me.B., 181 N.C. App. 597, 600, 640 S.E.2d 407, 409 (2007) () (quotation marks and citations omitted). However, pursuant to N.C. R. App. P. 21(a)(1), which "gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner[,]" Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997), we exercise our discretion to review the judgments by issuing a writ of certiorari ex mero motu.
At trial, Jamaal Whiteside ("Whiteside") testified that he was riding his bicycle on Franklin Avenue toward Lucena Street in Charlotte on the morning of 19 April 2005, when he noticed that a sky blue Cadillac was approaching from behind him. When the car stopped at the intersection's stop sign, he heard one of the car's occupants say, "[Y]eah, yeah, that's him, that's him[.]" The car turned left on Lucena Street and stopped. Whiteside recognized the driver of the car as Kristian Davenport ("Davenport"), whom he knew as "Smokey." Defendant, who Whiteside knew from school only as "George" or "Junior," was in the car's front passenger seat and was the car's only other occupant. Defendant leaned across Davenport, both men pointed "similar" black handguns at Defendant, and the men fired approximately ten shots at Defendant through the driver's side window. None of the shots hit Whiteside. Whiteside ran to his uncle's house and called the police. He returned with a police officer to the scene of the shooting, filed a formal report, and provided the police with the license tag of the blue Cadillac. On 5 May 2005, Whiteside selected Defendant's photograph from a lineup and identified him as "George, [the] passenger shooter[.]" He had identified Davenport in a photographic lineup on 21 April 2005.
Charlotte-Mecklenburg Police Officer Brian Smith testified that he responded to the report of shots fired at Franklin and Lucena on the morning of 19 April 2005. He spoke to Whiteside, who identified the driver of the car as Smokey, or Kristian Davenport, and identified the passenger as Junior, or George. Whiteside told Officer Smith that his assailants "were both hanging out or pointing out the driver's side window firing guns at him[.]" Smith collected four brass nine-millimeter shell casings at the site of the shooting but did not find any projectiles.
Officer Brad Tisdale testified that he was at a Bojangles' restaurant on 7 May 2005 when he observed Davenport leaning against a beige Cadillac in the parking lot. Knowing that there was a warrant outstanding for Davenport's arrest, Officer Tisdale approached the car. Officer Tisdale saw Defendant and a female inside the car. After arresting Defendant and Davenport, Officer Tisdale found two loaded nine-millimeter handguns in the woman's purse.
Gene Rivera, an expert in firearm and toolmark identification, testified that all four of the shell casings recovered by Officer Smith at the scene of the shooting were fired from the same gun, one of the nine-millimeter pistols found in the woman's purse.
Upon the jury's verdict, the trial court sentenced Defendant to thirteen to sixteen months in prison for the charges of possession of a firearm by a felon and discharging a firearm within city limits, and an additional seventy-five days for the charge of assault with a deadly weapon.
Defendant first argues the trial court erred by eliciting evidence beneficial to the State's case by posing a question to Officer Smith at the conclusion of his testimony, as follows:
THE COURT: . . . Officer Smith, I have just one question for you. The streets where this alleged incident occurred, is that within the city limits of Charlotte?
A. Yes, sir; it is.
THE COURT: All right. That's all I have.
We find no merit to this claim. Under N.C. Gen. Stat. § 8C-1, Rule 614(b) (2005), the trial judge may "interrogate witnesses, whether called by [the judge] or by a party." The judge may ask questions which clarify a witness's testimony, State v. Smarr, 146 N.C. App. 44, 551 S.E.2d 881 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002), or which "elicit testimony which proves an element of the State's case so long as [the judge] does not comment on the strength of the evidence or the credibility of the witness." State v. Lowe, 60 N.C. App. 549, 552, 299 S.E.2d 466, 468 (198...
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