State v. Carpenter

• Decision Date: 04 March 2014
• Docket Number: No. COA13–898.,COA13–898.
• Citation: 754 S.E.2d 478
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Lamar Monquee CARPENTER, Defendant.

754 S.E.2d 478

STATE of North Carolina

v.Lamar Monquee CARPENTER, Defendant.

No. COA13–898.

Court of Appeals of North Carolina.

March 4, 2014.

Appeal by defendant from Judgments entered on or about 21 March 2013 by Judge V. Bradford Long in Superior Court, Forsyth County. Heard in the Court of Appeals 9 January 2014.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Aimee Margolis, for the State.

Unti & Lumsden LLP, Raleigh, by Sharon L. Smith, for defendant-appellant.

STROUD, Judge.

Lamar Carpenter (“defendant”) appeals from judgments entered on or about 21 March 2013 after a Forsyth County jury found him guilty on two counts of robbery with a dangerous weapon and one count of possession of a firearm by a convicted felon. We conclude that defendant has failed to show error at his trial, but dismiss his ineffective assistance of counsel claim without prejudice to his ability to raise it by motion for appropriate relief.

I. Background

On 7 February 2011, defendant was indicted in Forsyth County for robbery with a dangerous weapon. This indictment was superseded on 23 January 2012 by one charging two counts of robbery with a dangerous weapon and again on 13 August 2012 by indictments charging two counts of robbery with a dangerous weapon and one count of possession of a firearm by a felon. Defendant pled not guilty and the case proceeded to jury trial.

At trial, the State's evidence tended to show that on 23 April 2010, Ahmed Khabiry and Shafic Andraos were working at a gas station and convenience store in Winston–Salem. Mr. Khabiry was working as a manager and clerk, while Mr. Andraos, the owner of the store, was working in the back office. At around 9:00 or 9:30 that morning, a young man walked into the convenience store and attempted to use the ATM. Neither Mr. Khabiry nor Mr. Andraos recognized the man. That same man returned a few minutes later with a second man. Both men were wearing bandanas covering the lower half of their faces. Mr. Khabiry was outside sweeping the parking lot when he saw the men arrive. He started heading back inside to assist them when he noticed the first man was carrying a silver gun in his hand. Mr. Khabiry grabbed for the gun, but the second robber came up, pointed another silver gun at him, and pushed him inside. The first robber took Mr. Khabiry back behind the counter to the cash register, while the second robber went back to the office where Mr. Andraos was working.

Mr. Khabiry recognized the second robber as one of his regular customers, who he had nicknamed “Big Money,” but did not recognize the first robber. He recognized “Big Money” from his build and voice, and also from his tattoo. In court, Mr. Khabiry identified defendant as the second robber and the man he knew as “Big Money.”

The first robber told Mr. Khabiry to open the cash register, which he did, and then demanded Mr. Khabiry hand over his wallet. When Mr. Khabiry informed the first robber that he did not have a wallet on him, the robber told him to hand over whatever money he had in his pocket, which amounted to five dollars. The second robber took about $6,700 from the back office, where Mr. Andraos had been preparing the store's cash for deposit. Both robbers then left the store and Mr. Khabiry called the police.

Around 5 May 2010, the police asked Mr. Khabiry to look at two photo arrays, one of which contained defendant's photograph. The arrays were administered by an officer with no connection to the investigation and no knowledge of which photograph in the array was the suspect. Mr. Khabiry identified defendant as the regular customer who had robbed the store, stating he was “100 percent sure.” He did not identify the man whom police suspected was the first robber.

Sometime in July 2010, defendant returned to the convenience store. Mr. Khabiry recognized him as the second robber and informed Mr. Andraos. Mr. Andraos went out to look at the car defendant was driving, wrote down the license plate number, and called the police. At trial, Mr. Andraos identified defendant as the man he saw in July whom Mr. Khabiry pointed out. Mr. Andraos testified that he noticed the same tattoo on defendant's arm in July as the one he saw on the second robber's arm, but that he did not really know defendant.

The State also introduced pictures taken of defendant while he was in jail that showed the tattoo on his right arm and still photographs taken by the store's surveillance cameras during the robbery. The surveillance camera photographs showed that the second robber had a tattoo on his forearm, but the photographs were not of sufficient quality to show the details of the tattoo.

At the close of the State's evidence, defendant moved to dismiss all of the charges against him and the trial court denied the motion. He then elected not to present evidence and renewed his motion to dismiss. Again, the trial court denied the motion. The jury found defendant guilty on two counts of robbery with a dangerous weapon and one count of possession of a firearm by a felon. The trial court sentenced defendant to two consecutive terms of 97–126 months imprisonment and one term of 19–23 months imprisonment. Defendant gave notice of appeal in open court.

II. Admission of Photographs

Defendant first argues that the trial court erred in admitting three photographs of him and his tattoos taken at the jail after his arrest. He contends that the photographs were not properly authenticated, not relevant, and that the trial court erred in denying his motion to exclude them under Rule 403. We hold that the trial court did not err in admitting the photographs.

A. Standard of Review

At trial, defendant only objected to admission of the photographs under N.C. Gen.Stat. § 8C–1, Rule 403 (2011). Defendant did not raise either authentication or relevance below, but asks us to review the trial court's denial of his motion to exclude the photographs on those grounds for plain error.

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).

Defendant did object on the basis that the evidence was inadmissible under Rule 403. We review the trial court's determination under Rule 403 for an abuse of discretion. State v. Cunningham, 188 N.C.App. 832, 836–37, 656 S.E.2d 697, 700 (2008). “An abuse of discretion results only where a decision is manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.” State v. Black, 197 N.C.App. 731, 737, 678 S.E.2d 689, 693 (citation and quotation marks omitted), app. dismissed,363 N.C. 657, 685 S.E.2d 108 (2009), cert. dismissed,365 N.C. 208, 710 S.E.2d 38 (2011).

B. Authentication

“Photographs may be used as substantive evidence upon the laying of a proper foundation, N.C.G.S. § 8–97, and may be admitted when they are a fair and accurate portrayal of the place in question and are sufficiently authenticated.” Sellers v. CSX Transp., Inc., 102 N.C.App. 563, 565, 402 S.E.2d 872, 873 (1991). A photograph is authentic if there is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” N.C. Gen.Stat. § 8C–1, Rule 901(a) (2011).

Here, the photographs that defendant challenges are photographs taken of him, including his tattoo, while he was in custody in October 2010. Defendant argues that because the State introduced no evidence that defendant had that tattoo on 23 April 2010, the date of the robbery, the photographs were not what they purported to be. We disagree.

The custodial photographs did not purport to show defendant's arm at the time of the robbery. The photographs clearly show—and the State introduced them to show—that defendant had a tattoo on a particular place on his forearm at the time the photograph was taken. The officer who took the photographs testified about the procedure used to take them and testified that they fairly and accurately depicted defendant's tattoo as it appeared in October 2010. Indeed, defendant does not contest that the photographs fairly and accurately depict defendant's arm while he was in custody. Therefore, there is no authentication issue with the photographs under either N.C. Gen.Stat. § 8C–1, Rule 901(a) or N.C. Gen.Stat. § 8–97.

C. Relevance

Similarly, defendant argues that the custodial photographs were irrelevant because the State has failed to show that he had the tattoo on 23 April 2010. Defendant contends that the fact that he had a tattoo on his forearm in October 2010 is not probative at all as to identity. Again, we disagree.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2011). “Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case.” State v. Whiteside, 325 N.C. 389, 397, 383 S.E.2d 911, 915 (1989). A piece of evidence does not have to positively identify the perpetrator to be relevant to the issue of identity. See State v. Collins, 35 N.C.App. 250, 252, 241 S.E.2d 98, 99 (1978) (“Under the facts in this case it was not necessary that the victim give testimony positively identifying the clothing as that worn by the robber, only that it was similar.”); State v. Bass, 280 N.C. 435, 449, 186 S.E.2d 384, 394 (1972) (holding that...