State v. Jackson

• Decision Date: 17 September 2013
• Docket Number: No. COA12–1533.,COA12–1533.
• Citation: 748 S.E.2d 50
• Parties: STATE of North Carolina v. Damian D. JACKSON.
• Court: North Carolina Court of Appeals

748 S.E.2d 50

STATE of North Carolina

v.Damian D. JACKSON.

No. COA12–1533.

Court of Appeals of North Carolina.

Sept. 17, 2013.

Appeal by defendant from judgments entered 27 July 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 May 2013.

Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

Assistant Public Defender Julie Ramseur Lewis for defendant appellant.

McCULLOUGH, Judge.

Damian D. Jackson (“defendant”) appeals from his convictions for simple assault, sexual battery, larceny from the person, and second-degree sexual offense. For the following reasons, we find no error.

I. BACKGROUND

Defendant was indicted by a Mecklenburg County Grand Jury on 24 August 2009 for one count each of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Defendant's case came on for jury trial on 25 July 2012, during the Criminal Session of Mecklenburg County Superior Court, the Honorable F. Lane Williamson presiding. The State's evidence at trial tended to show the following.

At approximately 10:40 p.m. on 30 July 2009, the victim left her home on Blue Hampton Lane and walked up Kingville Drive in search of someone with a cigarette. When the victim noticed no one outside, the victim turned around to walk home. As the victim walked back down Kingville Drive towards Blue Hampton Lane, a “[b]lack male” with “dreadlocks” (the “assailant”) approached the victim from behind in the 600 block of Kingville Drive. The assailant first asked the victim if she had a man. The victim responded that she did. The assailant then touched the victim on the butt. The victim told the assailant not to touch her, but the assailant continued to walk beside her and touched her butt a second time. At that point, the victim told the assailant that she was going to call the police. The assailant then pushed the victim to the ground. While on top of the victim, the assailant put his hands under the victim's shirt and down the victim's pants. The victim testified that the assailant inserted several fingers into her vagina as far as they would go and touched her breasts. During the assault the victim fought back against the assailant by biting, punching, and yelling for help.

The assailant's assault of the victim ended when the assailant jumped up, grabbed the victim's phone, and ran away. At that time, the victim ran in the opposite direction to a neighbor's house and called the police. The police responded within 10 minutes.

Once the police arrived, the victim informed the police of the sexual assault and described the assailant as a black male with dreadlocks, about 5 feet 9 inches tall, wearing a white tank top and gray sweat pants. Soon thereafter, a woman approached the police on the scene with additional information. The woman informed the police that she had heard a woman scream as she was walking down Kingville Drive and then saw a black male running through the woods and a black female walking out of the woods. The woman informed police that the black male looked similar to her neighbor and directed them to a residence at 416 Kingville Drive.

Following the tip, the police responded to 416 Kingville Drive and found defendant, who was wearing an electronic monitoring device. Due to the similarity between the description of the assailant provided by the victim and defendant's appearance, the police performed a “showup” identification. The showup, which took place approximately one hour after the assault, resulted in a positive identification of defendant by the victim. Defendant was then arrested.

In addition to the testimony from the victim and responding officers concerning the events that transpired on 30 July 2009, the victim identified defendant as the assailant a second time at trial and the State introduced evidence from defendant's electronic monitoring device in order to place defendant at the scene of the assault.

On 27 July 2012, the jury returned verdicts finding defendant guilty of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Thereafter, judgments were entered sentencing defendant to consecutive terms totaling 102 to 133 months' imprisonment; a term of 96 to 125 months' imprisonment for the second-degree sexual offense conviction and a consecutive term of 6 to 8 months' imprisonment for the remaining convictions that were consolidated for judgment. In addition, the trial court ordered defendant to register as a sex offender and enroll in satellite-based monitoring, both for the remainder of his natural life, upon release from prison. Defendant gave notice of appeal in open court.

II. ANALYSIS

Now on appeal, defendant contends that the trial court committed plain error by admitting: (1) testimony and evidence of GPS tracking based on data from the electronic monitoring device worn by defendant; and (2) out-of-court and in-court identifications of defendant by the victim. Additionally, defendant contends that, to the extent his counsel failed to object to the admission of the tracking evidence and the identifications, he was denied the effective assistance of counsel.

Standards of Review

In regard to defendant's assertions of plain error, “[i]n criminal cases, an issue that was not preserved by objection noted at trial ... may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” 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) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

In regard to defendant's claims of ineffective assistance of counsel, “[i]t is well established that ineffective assistance of counsel claims ‘brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required....’ ” State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)). “To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006).

Evidence of Tracking

Expanding on the background above, at trial, the State called Sergeant Dave Scheppegrell (“Sgt. Scheppegrell”) to testify concerning the electronic monitoring device worn by defendant and the data produced by that device. Sgt. Scheppegrell testified that he is the supervisor of the electronic monitoring unit of the Charlotte–Mecklenburg Police Department (“CMPD”) and has been a member of the unit since he started it in 2007. Sgt. Scheppegrell further testified that he received training from the vendors of the electronic monitoring devices used by the CMPD and from the National Institute of Justice in the electronic monitoring field. Moreover, Sgt. Scheppegrell noted that he was appointed to the National Standard Developing Committee to develop a national standard for the electronic monitoring industry.

Regarding the specific electronic monitoring device worn by defendant, Sgt. Scheppegrell identified the device as the Omni–Link 210, manufactured by Omni–Link Systems, and described the different components of the device. Sgt. Scheppegrell then testified about how the device operates using a combination of GPS signals and cell phone triangulations to track the location of the electronic monitoring device at least every four minutes. The tracking data is then uploaded from the device to a secured server where it is stored. Sgt. Scheppegrell explained that the device primarily uses GPS signals, which are very accurate, usually within four to ten meters. However, when a GPS signal is unavailable, the device uses cell phone triangulations, which are accurate within forty to fifty meters. Sgt. Scheppegrell testified that he can view the data stored on the secured server via a web service and produce reports based on the data, and routinely does so in the normal course of business. Sgt. Scheppegrell has never had any issue with the accuracy of the data.

Regarding the evidence admitted in this case, Sgt. Scheppegrell described how he retrieved the data for defendant's electronic monitoring device for 28 July 2009 through 31 July 2009 and produced the event log entered into evidence as the State's Exhibit 15. Sgt. Scheppegrell also explained how he used Omni–Link software to produce a video file plotting the tracking data for defendant on the evening of 30 July 2009 from 10:00 p.m. to midnight. The video file contained a sequence of twenty tracking points, each three minutes apart. Sgt. Scheppegrell testified that the video file stored on a CD was a fair and accurate representation of the tracking data and the CD was then admitted into evidence as the State's Exhibit 16 (“Exhibit 16”). As the video file was shown at trial, Sgt. Scheppegrell testified as to certain tracking points in the sequence.

Now on appeal, defendant contends that the trial court plainly erred in admitting testimony and evidence of tracking based on ...