State v. McIver
| Docket Number | COA22-107 |
| Decision Date | 16 August 2022 |
| Citation | 876 S.E.2d 857 |
| Parties | STATE of North Carolina v. Akeem Devonte MCIVER, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph L. Hyde, for the State.
Glover & Petersen, P.A., Chapel Hill, by James R. Glover, for Defendant-Appellant.
¶ 1 Akeem Devonte McIver ("Defendant") appeals his conviction of first degree murder. On appeal, Defendant argues the trial court erred or plainly erred by 1) allowing an expert to testify about the location of Nakeshia Washington's ("Washington") and his cell phones, and 2) instructing the jury on flight. After a careful review of the record and applicable law, we conclude Defendant received a fair trial free from error.
¶ 2 On the evening of July 16, 2018, Antonio Johnson ("Johnson") visited Defendant at Defendant's house. Johnson drove his girlfriend's white Dodge Charger, which she permitted him to use while she worked a 12 hour shift at the hospital. When Johnson arrived at Defendant's house, Defendant entered the Dodge Charger, sat in the car, and asked Johnson to drive him to visit Alkeen Hair ("Hair").
¶ 3 Defendant and Johnson arrived at Hair's residence around 8:00 p.m. Defendant, Johnson, and Hair talked for a few minutes and then Hair asked Johnson to drive him to Cattail, a location across the river. Johnson agreed and drove Defendant and Hair to Cattail. Approximately one hour later, Hair asked Johnson if he could "take him to go get some weed." Hair offered to give Johnson gas money and some weed for driving him. Johnson agreed, and the three men got back into the Dodge Charger with Johnson driving, Defendant sitting in the front seat, and Hair sitting in the back.
¶ 4 Hair directed Johnson to Washington's house to get the marijuana. Washington lived in a house owned by her mother, Vickey McArthur ("McArthur"), on Slater Avenue in Fayetteville, North Carolina. The house was located across the street from McArthur. Washington was known to sell marijuana in mason jars from this residence and had just received a new shipment of marijuana. When Defendant, Johnson, and Hair arrived at Washington's house, Hair directed Johnson not to park directly in front of the house, because Washington "don't [sic] like just anybody pulling up in front of the house ...." Johnson parked a "[c]ouple hundred yards[ ]" from Washington's house. Defendant and Hair exited the car around 9:40 p.m.
¶ 5 Washington was on the phone with a friend when they arrived. While they were speaking, Washington began saying, "who is it, who is it[ ]" followed by several gun shots before the phone call was terminated.
¶ 6 McArthur was at home that evening. At approximately 9:45 p.m., McArthur heard gunshots she believed to be coming from her daughter's house. She stepped outside to find the source of the sound, looked towards Washington's house, and saw two men leaving Washington's porch. According to McArthur, one man was "a dark-skinned tall male, male or boy, with dreads, blue jeans, white sneakers, hair hat on, blue jeans." McArthur realized she had seen this man "several mornings" at Washington's house. At trial, McArthur identified Defendant as the man she had seen leaving her daughter's porch that night. As McArthur approached her daughter's house, she simultaneously heard one of the men, later identified as Hair, say and saw Washington lying on the sidewalk in front of her house. McArthur saw Defendant and Hair run away from Washington's house, enter a white Dodge Charger, and drive away towards Murchison Road. Another neighbor also observed two black males fleeing the scene with one holding "a cellphone that was glowing." McArthur immediately dialed 911 and attempted to flag down a police officer. McArthur had purchased an iPhone for Washington prior to the date of the shooting but did not see the iPhone in Washington's house after the shooting occurred.
¶ 7 Meanwhile, Johnson, who had waited in the Dodge Charger, heard gunshots coming from "the direction that ... [Defendant and Hair] walked in." He "turned the car on and slowly crept around the corner." Hair then ran up to the Dodge Charger and got into the back seat while holding a mason jar of weed. Approximately ten seconds later Defendant also got into the Dodge Charger. Johnson then "pulled off kind of fast" from the scene towards Murchison Road.
¶ 8 Hair directed Johnson to drive to Hair's girlfriend's trailer which was located across the river. On the way there, Hair pulled out a loaded gun and handed it to Defendant, who then placed the gun in the Dodge Charger's console. According to Johnson, Defendant kept asking McIver, over and over.1 The three men drove for about ten to twenty minutes, reached Johnson's girlfriend's trailer, and went inside to smoke marijuana from the mason jar Hair had acquired from Washington's house. They stayed there for about an hour and then Johnson drove Hair and Defendant back to their houses before returning to his own house.
¶ 9 Meanwhile, McArthur got the attention of Officer Percy Evans ("Officer Evans") of the Fayetteville Police Department who was patrolling the area. McArthur told Officer Evans that Washington had been shot, and Officer Evans then ran over to Washington and saw her lying on the ground, bleeding from her mouth. Officer Evans immediately called for Emergency Medical Services ("EMS"), the fire department, and police back up, and he attempted to administer first aid. EMS arrived and declared Washington was "deceased on scene." Diana Engel, ("Engel"), a forensic technician, photographed the scene and collected evidence at Washington's house that same evening.
¶ 10 Fayetteville Police Department Homicide detectives arrived on the scene; and after obtaining a search warrant, began an investigation. Inside Washington's house, Detectives determined that the gunshots had been fired within the entrance to Washington's house and gathered several spent 9mm and .40 shell casings. However, Washington's iPhone was not located during their search of the property.
¶ 11 Johnson continued to drive around in the white Dodge Charger while his girlfriend was at work. After noticing that police officers were asking questions about the Dodge Charger, he attempted to conceal it within a wood-lined area behind an apartment complex on Caledonia Drive. Police officers ultimately found the Dodge Charger where Johnson had attempted to conceal it.
¶ 12 On July 16, 2018, Defendant was indicted for first degree murder and robbery with a dangerous weapon. On June 28, 2021, Defendant filed a motion in limine to exclude evidence of the GeoTime Report and the testimony of investigative assistant William Potter ("Potter") asserting it lacks proper evidentiary foundation, uses multiple cell towers, contains prejudicial hearsay, and contains conclusory references and statements.
¶ 13 This case came on for jury trial from July 12 to July 16, 2021. At trial, Potter, an investigative assistant with the homicide unit of Fayetteville Police Department, testified on behalf of the State. When the State tendered Potter as an expert in cell phone analytics, Defendant's counsel was allowed to voir dire outside of the presence of the jury. After voir dire and still outside the presence of the jury, Defense counsel objected to Potter being accepted by the trial court as an expert. The trial court overruled Defendant's objection and accepted Potter as an expert. Potter testified he used GeoTime, based off the call record of Johnson's and Washington's cell phones, to plot the respective locations of their phones at various points of time before and after the shooting. Defense counsel did not object to Potter's testimony during examination or in the presence of the jury. At the end of Potter's testimony and cross-examination, the court stated, in the presence of the jury, "put it on the record so that it is in front of the jury that the objection was overruled as to Mr. Potter being tendered and accepted as an expert."
¶ 14 The jury found Defendant guilty of first-degree murder and robbery with a dangerous weapon. The court sentenced Defendant to life imprisonment without parole for his first-degree murder conviction and arrested judgment on the charge of robbery with a dangerous weapon. Defendant gave oral notice of appeal in open court.
¶ 15 Defendant raises several issues on appeal; each will be addressed in turn.
¶ 16 Defendant first contends the trial court erred by allowing Potter's testimony regarding the location of Washington's and Johnson's cell phones alleging it was based on hearsay because the call detail records were never produced nor authenticated as accurate or confirmed as belonging to Washington and Johnson. We disagree.
¶ 17 As an initial matter, Defendant contends the motion in limine and oral objection at the trial are sufficient to preserve his first issue for appellate review. Alternatively, Defendant contends we should review Potter's testimony under a plain error standard of review. The State, in turn, argues Defendant altogether failed to preserve his first issue.
¶ 18 The North Carolina Appellate Rules of Procedure provide, "[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1) ; see State v. Ray , 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) ().
¶ 19 Defendant first raises this issue concerning Potter's testimony in his motion in...
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