State v. Jordan
| Decision Date | 19 June 2012 |
| Docket Number | No. COA12–2.,COA12–2. |
| Citation | 727 S.E.2d 26 |
| Parties | STATE of North Carolina v. Dominick James JORDAN. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgments entered 28 July 2011 by Judge Milton F. Fitch, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 25 April 2012.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.
Marilyn G. Ozer for defendant-appellant.
Defendant Dominick James Jordan appeals from judgments sentencing him to a term of 207 to 258 months imprisonment based upon his conviction for attempted first degree murder; a consolidated term of 96 to 125 months based upon his convictions for first degree kidnapping and assault with a deadly weapon with intent to kill inflicting serious injury; a term of 84 to 110 months based upon his conviction for robbery with a dangerous weapon; a term of 17 to 21 months based upon his conviction for possession of a firearm by a felon; and a term of 10 to 12 months based upon his convictions for felonious larceny of a motor vehicle and felonious fleeing to elude arrest, all of which were to be served consecutively. On appeal, Defendant contends that the trial court erred by (1) failing to instruct the jury that evidence of Defendant's prior felony conviction could only be used to support the charge of possession of a firearm by a felon and allowing the State to use Defendant's prior felony conviction for the purpose of arguing that Defendant was guilty as charged; (2) allowing the admission of highly prejudicial testimony relating to the impact of the crimes upon the alleged victim and his family, Defendant's character, and his own religious beliefs and by failing to deliver appropriate curative instructions after sustaining Defendant's objections to certain portions of the alleged victim's testimony; (3) denying Defendant's request for an instruction concerning the statutory requirements for a valid photographic lineup; and (4) denying Defendant's motion to suppress the alleged victim's pre-trial identification of the Defendant as the perpetrator of the alleged offenses. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that Defendant has not established that any prejudicial or plain error occurred during the trial and that the trial court's judgments should remain undisturbed.
In 2009, Richard Powell traveled from New Jersey to Elizabeth City for the purpose of visiting his family. On the night of 30 November 2009, Mr. Powell drove his rental car, a red Toyota Yaris, to a local motel where he planned on visiting with a friend. Mr. Powell checked into the motel, unloaded the car, showered, and took a nap. Around midnight, Mr. Powell began loading his belongings into the car in preparation for taking an early morning flight.
As Mr. Powell was loading the car, Defendant approached and engaged him in casual conversation. As the two men talked, Defendant mentioned that he was going to the store. At that point, Mr. Powell stated that he was going to the store as well and offered Defendant a ride. After getting into the front passenger seat of Mr. Powell's car, Defendant pulled a gun and pointed it at Mr. Powell's face. When Mr. Powell inquired if Defendant wanted the car or money, Defendant responded that he wanted money. Since Mr. Powell only had twenty dollars and some change on his person, Defendant accepted Mr. Powell's offer to drive him to an ATM for the purpose of getting a larger amount of cash.
After the two men arrived at the ATM, Mr. Powell's cell phone began to ring, causing Defendant to take it from him. At that point, Defendant took the contents of Mr. Powell's pants pockets, including the money in Mr. Powell's possession, his keys, and his driver's license and registration. Acting pursuant to Defendant's instructions, Mr. Powell withdrew $400 from the ATM and gave it to Defendant. After obtaining the money that Mr. Powell had received from the ATM, Defendant ordered Mr. Powell to drive behind a nearby shopping mall and park the car.
Once Mr. Powell had parked the car, Defendant removed the car keys from the ignition, instructed Mr. Powell to walk to the back of the car, opened the trunk, and told Mr. Powell to get inside. Although Mr. Powell refused to enter the trunk and closed the lid, Defendant reopened the trunk and reiterated his order that Mr. Powell get inside. Once again, Mr. Powell refused, closed the trunk and told Defendant to “just take the car, take the money, [and] go.” Upon opening the trunk for a third time, Defendant told Mr. Powell that, if he did not get into the trunk, Defendant would shoot him. Although Mr. Powell said, “please don't shoot me,” Defendant raised the gun, pressed it against Mr. Powell's navel, and shot him.
After Defendant shot Mr. Powell, the two men began a struggle for control of the gun, during which Defendant shot Mr. Powell in the right leg, causing Mr. Powell to fall face down onto the ground. As Mr. Powell lay on the ground, Defendant shot him in the back. After remaining motionless and quiet in an effort to appear “dead or almost dead” for some time, Mr. Powell heard Defendant drive away, at which point he began screaming for help.1
In the early morning hours of 1 December 2009, Mariann Warren, who lived in a home near the mall parking lot, was awakened by the sounds of an argument and gunshots. As Mrs. Warren looked out of her kitchen window, she observed a red vehicle speeding away from the mall parking lot. Upon making this observation, Mrs. Warren woke her husband and called the police. After arriving on the scene, discovering Mr. Powell, and talking with the Warrens, investigating officers determined that they needed to be on the lookout for a “small, red to burgundy car.” A short time later, Mr. Powell's sisters told investigating officers that Mr. Powell had been operating a rental vehicle, resulting in the dissemination of this information to the law enforcement community as well.
At around 2:52 a.m., Sergeant Ed Kirby of the Elizabeth City Police Department observed a car with rental plates matching the description provided in the earlier report. As a result, Sergeant Kirby activated his blue lights in an attempt to stop the car. However, the car, which was a red Toyota Yaris, did not stop, and Sergeant Kirby and other officers began pursuing the vehicle. When the pursuing officers attempted to form a “running roadblock,” during which Sergeant Kirby planned to pull his vehicle in front of the car while other officers planned to position their vehicles to its left and rear, the car moved to the left, forcing the officer on the left to move his vehicle, and then accelerated in a forward direction, clipping the front bumper of Sergeant Kirby's vehicle as it passed.
After failing to stop the car, the officers continued the chase at approximately 85 to 90 miles per hour. Upon hitting a bump in the road, the car started fish-tailing, travelled across the road, hit a curb, and began to flip and roll. As it rolled, the car struck two vehicles that were sitting in a nearby car dealership lot and became airborne, clipping a telephone pole and hitting the top of a nearby business before falling to the ground.
As Sergeant Kirby approached the car, he observed Defendant crawling out of the driver's side door. At that point, the officers arrested Defendant, searched him incident to arrest, and found fifteen .38 caliber bullets, Mr. Powell's driver's license, $423 in currency, and some change in Defendant's pocket. While searching the interior of the car and the vicinity in which the car had come to rest, the officers found various items of Mr. Powell's property, including his laptop, camcorder, clothing, keys and mail. In addition, the officers recovered eight .38 caliber bullets from the floorboard of the car and five .38 caliber bullets from the ground around the site of the wrecked vehicle. While examining the area adjacent to the crash site, the officers recovered a Dan Wesson Arms .357 magnum revolver, which was loaded with six .38 caliber bullets.
On 1 February 2009, Mr. Powell traveled to the Elizabeth City Police station to meet with Officer Barbara Morgan for the purpose of giving a statement concerning the events that occurred on 30 November and 1 December 2009. At that meeting, Officer Morgan and Mr. Powell had a “small conversation,” during which Mr. Powell mentioned that he had read a newspaper article about the incident in which he had been involved, that he had seen Defendant's “picture in the newspaper [article,]” and that the picture in the news article was of “[the] person that actually shot and robbed him.” As a result of the fact that she had a copy of the article taped to the inside of her case file, Officer Morgan showed it to Mr. Powell, who responded by stating that he had “the same newspaper article” and identifying Defendant's picture as “the subject that shot and robbed him.” Subsequently, as Officer Morgan searched through her case file for a victim witness volunteer statement form, Mr. Powell observed two photos of Defendant and stated that those pictures also depicted the man who had shot him. Officer Morgan denied having shown Mr. Powell a “photographic lineup” or “other photos of anyone else” given that Mr. Powell had previously reviewed the newspaper article containing Defendant's picture and identified Defendant as his assailant.
On 1 December 2009, warrants for arrest were issued charging Defendant with felonious fleeing to elude arrest, attempted first degree murder, first degree kidnapping, robbery with a dangerous weapon, possession of a firearm by a felon, felonious larceny of a motor vehicle, and possession of a stolen motor vehicle. On 14 December 2009, the Pasquotank County Grand Jury returned bills of indictment...
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