State v. Pearson

• Decision Date: 21 August 2001
• Docket Number: No. COA00-647.,COA00-647.
• Parties: STATE of North Carolina v. Marion Edward PEARSON, Jr.
• Court: North Carolina Court of Appeals

551 S.E.2d 471

145 NC App. 506

STATE of North Carolina v. Marion Edward PEARSON, Jr.

No. COA00-647.

Court of Appeals of North Carolina.

August 21, 2001.

Michael F. Easley, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State.

Robert C. Ervin, Morganton, for defendant-appellant.

Ann Groninger, Raleigh, for American Civil Liberties Union of North Carolina Legal Foundation, Inc., amicus curiae.

THOMAS, Judge.

Defendant, Marion Edward Pearson, appeals after pleading guilty as part of a plea agreement to two counts of second-degree rape. All of his assignments of error concern the trial court's denial of his pre-trial motions to suppress evidence.

Defendant based those motions on three grounds. First, he argued evidence resulting from a non-testimonial identification order (NIO) more than twelve years prior to his arrest should have been suppressed by the trial court due to statutory violations after it was obtained. Second, defendant argues evidence from the NIO should have been suppressed because it was not appropriately obtained and because there was no probable cause. Third, defendant contends the evidence resulting from a search warrant should have been suppressed because its taking was in violation of both the federal and state constitutions.

For the reasons discussed herein, we hold the trial court committed no error.

The facts are as follows: On 14 July 1985 at 1:15 a.m., Kathy Richards reported to Morganton Police that a man entered her apartment, held a knife to her throat and raped her. He then took thirty-eight dollars from her purse and left. Although she did not get a clear view of him in the dark, Richards said she thought he was a white male. She also noted he spoke with an accent and was over six feet tall. Police investigators found the screen to Richards's bathroom window had been removed. A Negroid hair unsuitable for scientific comparison was present, but there were no usable latent fingerprints. A sexual assault examination was completed at a local hospital, with evidence turned over to police investigators.

On 23 November 1985 at 1:10 a.m., Arlene K. Holden reported that a man with a dark complexion and an accent entered her apartment at the Village Creek Apartments, tied her with pantyhose, threatened her with pinking shears and then raped her. She also noted the assailant was approximately 5'8" tall and had a lean to medium build. A crime scene examination revealed a window screen had been removed from an unlocked bedroom window. Negroid body and pubic hairs were present but there were no usable latent fingerprints. Later, a sexual assault examination was completed at a local hospital, with evidence turned over to police investigators.

On 17 February 1986 at approximately 11:40 p.m., Ernestine Keyes reported that a black male with a fake Jamaican accent raped her at her Woodbridge Apartments home. The assailant also knew her children's names and where they went to school. She further noted he was from 5'8" to 5'11" tall and had an average build. He took forty dollars from her purse. A sexual assault examination was completed at a local hospital, with evidence turned over to police investigators.

After the second rape, in November 1985, police investigators began to develop defendant as a suspect in the crimes. Defendant was subsequently interviewed by investigators on 26 November 1985, 18 February 1986 and 26 March 1986. During this time period, Agent John H. Suttle (Suttle) of the North Carolina State Bureau of Investigation learned defendant had been seen leaving the Village Creek Apartments on 7 March 1985 after police were called concerning a "peeping tom" offense. Lieutenant James Buchanan observed a black male with a light gray or blue windbreaker and blue jeans squatting beside an air conditioning unit behind an apartment building. When the suspect saw Buchanan, he ran, losing Buchanan in a foot chase. Buchanan notified other officers on the scene to stop two cars he heard leaving the complex. Defendant was operating one of them. Officer Robert Bauer stopped defendant, who was wearing a light blue windbreaker and blue jeans. Defendant was then taken to the police station for questioning. He was subsequently charged with driving while license revoked and released.

After the rape of Keyes in February 1986, Suttle drove straight to defendant's home, where he observed that defendant's car was warmer than other parked cars, as if it had been recently driven. Keyes had also reported that defendant's son was enrolled in the daycare facility where she was the director. She stated defendant would on occasion deliver and pick up his son.

On 28 March 1986, a judge signed an NIO and, after being served with it, defendant went to the Burke County Clerk of Superior Court's office and requested court-appointed counsel. He was told one could not be appointed at that time. Allegedly, defendant also requested counsel at the Morganton Police Department on 8 April 1986 when he gave the samples of blood, pubic hair and saliva, but none was provided. In an analysis of the samples, defendant was not ruled out as a suspect. The laboratory conclusions, however, were not definite.

On 15 May 1986, defendant was arrested after crawling into a women's restroom stall while it was occupied by a female. He subsequently was sentenced to two years in prison for the offense of secret peeping. Afterwards, defendant moved to Maryland, where he was arrested for secret peeping offenses.

In March, 1998, evidence from the rapes of Holden and Keyes was resubmitted to the SBI lab. The results showed defendant's DNA was present in both sexual assault kits containing vaginal swabs from the victims. In November 1998, working with Brenda Bissette (Bissette), an SBI agent assigned to the Molecular Genetics Division, Suttle presented the DNA findings plus other information to a judge and obtained a search warrant for a new sample of defendant's blood. With that test as well singling out defendant as the perpetrator, a warrant for defendant's arrest was issued. True bills of indictment were eventually obtained against defendant alleging five counts of first-degree rape, two counts of first-degree sexual offense, three counts of first-degree burglary and two counts of robbery with a dangerous weapon. Defendant subsequently made three motions to suppress the evidence obtained by the NIO and the search warrant.

The trial court, at hearings on 10 and 11 January 2000, allowed defendant's motion to suppress a blood sample obtained pursuant to the 1986 NIO. Motions to suppress the other samples taken in 1986, and the blood sample taken in 1998 pursuant to the search warrant, were denied. Defendant then tendered an Alford plea to two counts of second-degree rape on 11 January 2000 in Burke County Superior Court. All of the other charges were dismissed by the State as part of a plea agreement.

Additionally, in the plea agreement, defendant reserved his right to appeal the trial court's rulings on his motions to suppress while the State reserved its right to reinstate all of the charges it was dismissing if the appeal proved unsuccessful.

The trial court found defendant's prior record an aggravating factor but also found mitigating factors including that he was gainfully employed and had sought preventive treatment for a "recognized sexual addiction problem." Defendant received two consecutive twenty-five year active sentences. From the convictions and sentences, he appeals.

By his first assignment of error, defendant argues the trial court erred by denying defendant's motion to suppress evidence obtained from an NIO based on statutory violations. We disagree.

Section 15A-271 provides

A nontestimonial identification order ... may be issued by any judge upon request of a prosecutor.... "[N]ontestimonial identification" means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a suspect.

N.C. Gen.Stat. § 15A-271 (1999). The order may only be issued based on an affidavit establishing

(1) That there is probable cause to believe that a felony offense, or a Class A1 or Class 1 misdemeanor offense has been committed;

(2) That there are reasonable grounds to suspect that the person named or described in the affidavit committed the offense; and

(3) That the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.

N.C. Gen.Stat. § 15A-273 (1999). Defendant argues there were never reasonable grounds to believe he committed the offenses and that the State failed to meet the requirements of section 15A-273(2) before obtaining the NIO. The affidavit included information that defendant was a black male, approximately 5'8" tall and "was caught by Lt. James Buchanan secretly peeping into apartments at Village Creek Apartments on March 7, 1985 around 9:00pm." Defendant claims he was never "caught" by anyone looking into apartments on that date and that Suttle, the affiant, did not have personal knowledge of the 7 March 1985 incident.

In an affidavit, "it is the long-standing rule of this Court that affidavits must be `made on the affiant's personal knowledge.'" Glenn-Robinson v. Acker, 140 N.C.App. 606, 629, 538 S.E.2d 601, 618 (2000), rev. denied, 353 N.C. 372, 547 S.E.2d 811 (2001) (quoting Singleton v. Stewart, 280 N.C. 460, 467, 186 S.E.2d 400, 405 (1972)). Further, if an affidavit contains statements not based on an affiant's personal knowledge, the court should not consider those portions. Moore v. Coachmen Industries, Inc., 129 N.C.App. 389, 499 S.E.2d 772 (1998). In the instant case, Suttle submitted statements to the judge for purposes...