State v. Tutt

• Decision Date: 19 July 2005
• Docket Number: No. COA04-821.,COA04-821.
• Citation: 615 S.E.2d 688
• Parties: STATE of North Carolina v. Micah Lee TUTT.
• Court: North Carolina Supreme Court

Page 688

615 S.E.2d 688

STATE of North Carolina v. Micah Lee TUTT.

No. COA04-821.

Court of Appeals of North Carolina.

July 19, 2005.

Appeal by Defendant from judgment entered 21 November 2003 by Judge Catherine C. Eagles in Superior Court, Guilford County. Heard in the Court of Appeals 8 March 2005.

Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.

Terry F. Rose, Smithfield, for defendant-appellant.

WYNN, Judge.

The Constitution of North Carolina vests our Supreme Court with exclusive authority to make rules of practice and procedure for the appellate division of the courts. N.C. Const. Art. IV, § 13(2). In this case, N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) (2004) permits appellate review of an evidentiary ruling even though the party fails to object at trial as required by N.C. R.App. P. 10(b)(1). Because N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R.App. P. 10(b)(1), we hold that the statute must fail. Nonetheless, in our discretion, we have reviewed the assignment of error and affirm the trial court's admission of the evidence.

The underlying facts of this matter tend to show that on 5 November 2002, Defendant Micah Lee Tutt and his brother entered a Quick Mart convenience store owned by Anh Vu's family in Greensboro, North Carolina. The door to the store was kept locked, and the owner's daughter let the two men in. Anh Vu ran to the front of the store after hearing her daughter start screaming. Defendant ran toward Anh Vu, pointed a large knife at her stomach, and pushed her to the cash register. When Anh Vu did not open the cash register, Defendant poked a hole into her stomach, which later became infected. Anh Vu opened the cash register, Defendant and his brother took cash and cigarettes, then fled the store.

After the robbery, J.R. Labarre, an officer with the Greensboro Police Department, arrived at the store. He took the store's security tape, which recorded the robbery, as evidence. He also interviewed Anh Vu, through an interpreter, and obtained a description of the robbers. She described one of the robbers as being an African-American male, about eighteen to nineteen-years-old, short hair, and wearing a gray jacket with writing on the front.

Detective G.R. Marks, also assigned to the case, made a photograph from the security tape to send to other districts in an attempt to locate the suspects. On 13 November 2002, Defendant was arrested on unrelated charges. The arresting officer noticed that Defendant matched the description of the Quick Mart robber and his jacket was similar. The officer notified Detective Marks of the arrest.

Thereafter, Detective Marks created a photographic lineup, consisting of Defendant and five other African-American males of a similar description. Anh Vu identified Defendant from the lineup as one of the robbers. Detective Marks testified that this was the first photograph of Defendant he showed Anh Vu. However, Anh Vu gave inconsistent testimony as to whether the first photograph she saw was the lineup or an individual photograph of Defendant wearing a gray jacket with writing.

Defendant was indicted for robbery with a dangerous weapon and conspiracy. On 3 November 2003, Defendant filed a written motion to suppress the pretrial photographic lineup identification. Following a pretrial hearing, the trial court orally denied the motion to suppress, finding that the photographic lineup was not "unduly suggestive." The photographic lineup was admitted into evidence at trial, without objection by Defendant, and Anh Vu identified Defendant in court.

Defendant was found guilty by a jury of robbery with a dangerous weapon and conspiracy. The trial court sentenced Defendant to twenty-seven to forty-two months imprisonment for the conspiracy charge and a consecutive sentence of 103 to 133 months imprisonment for the robbery with a dangerous weapon charge. Defendant appeals.

Although Defendant failed to object at trial to the admission of the photographic lineup evidence, he argues on appeal that the trial court erred in denying his motion to suppress the pretrial photographic lineup identification.

A pretrial motion to suppress is a type of motion in limine. State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001), disc. review denied, 358 N.C. 157, 593 S.E.2d 84 (2004). Our Supreme Court has consistently held that "[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations omitted); see also State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005) (per curiam) (in light of discussion below the trial judgment was on 20 May 2002, before the amendment); Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998); N.C. R.App. P. 10(b)(1). Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and "thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence." T&T Dev. Co. v. Southern Nat'l Bank of S.C., 125 N.C.App. 600, 602, 481 S.E.2d 347, 348-349, disc. review denied, 346 N.C. 185, 486 S.E.2d 219 (1997) (citation omitted). Therefore, Tutt's pretrial motion to suppress is not sufficient to preserve for appeal the question of the admissibility of the photographic lineup because he did not object at the time the lineup was offered into evidence.

The General Assembly, however, recently amended Rule 103(a) of the North Carolina Rules of Evidence to provide: "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) (2004). This amendment applies to rulings made on or after 1 October 2003. 2003 N.C. Sess. Laws ch. 101. As the trial in the instant case began on 18 November 2003, the amended Rule 103(a) is applicable.

However, Rule 103(a)(2) of the North Carolina Rules of Evidence is in direct conflict with Rule 10(b)(1) of the Rules of Appellate Procedure as interpreted by our case law on point.¹ Under the Constitution of North Carolina, "[t]he Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division." N.C. Const. Art. IV, § 13(2). Thus, we address whether N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) seeks to make a rule of "procedure and practice for the Appellate Division" that lies within the exclusive authority of our Supreme Court.

In State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987), our Supreme Court addressed a similar issue wherein it struck down N.C. Gen.Stat. § 15A-1446(d)(5) (1986) to the extent that it conflicted with N.C. R.App. P. 10(b)(3).

N.C.G.S. 15A-1446(d)(5) provides that errors based upon insufficiency of the evidence may be the subject of appellate review even though no objection, exception or motion has been made in the trial division. N.C.R.App. P. 10(b)(3), however, provides that a defendant "may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial." To the extent that Nwestmate://www.westlaw.com/Find/default.asp? rs=WestMate7.30&vr=1.0&cite=614S.E.2d368 &FindType=F.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R.App. P. 10(b)(3), the statute must fail. Citations omitted.

Stocks, 319 N.C. at 439, 355 S.E.2d at 493.

Moreover, in State v. Bennett, 308 N.C. 530, 302 S.E.2d 786 (1983), our Supreme Court addressed this issue wherein it struck down N.C. Gen.Stat. § 15A-1446(d)(13) (1982) and part of N.C. Gen.Stat. § 15A-1231(d) (1982) to the extent that it conflicted with N.C. R.App. P. 10(b)(2).

G.S. 15A-1446(d)(13) allows for appellate review of errors in the charge to the jury "even though no objection, exception or motion has been made in the trial division." Rule 10(b)(2) states: "No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict. . . ." Rule 10(b)(2) is a rule of appellate practice and procedure, promulgated by the Supreme Court pursuant to its exclusive authority under the Constitution of North Carolina, Article IV, Section 13(2). To the extent that G.S. 15A-1446(d)(13) is inconsistent with Rule 10(b)(2), the statute must fail. See State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981). We also note that G.S. 15A-1231(d) states in part that "[f]ailure to object to an erroneous instruction or to the erroneous failure to give an instruction does not constitute a waiver of the right to appeal on that error in accordance with G.S. 15A-1446(d)(13)." Inasmuch as this section also conflicts with Rule 10(b)(2), it too must fail.

Bennett, 308 N.C. at 535, 302 S.E.2d at 790.

Similarly, our Supreme Court addressed this issue in State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 (1981), when it struck down N.C. Gen.Stat. § 15A-1446(d)(6) (1980) to the extent that it conflicted with N.C. R.App. P. 10 and 14(b)(2).

G.S. 15A-1446 (d)(6) [] provides:

Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.

(6) The defendant was convicted under a statute that is in violation of the Constitution of the United States or the Constitution of North Carolina.

Subsection (6) of G.S. 15A-1446 (d) is in direct conflict with Rules 10 and 14(b)(2) of the Rules of Appellate Procedure and our case law on the point. The Constitution of North...