State v. Taylor
Date Filed2022-12-29
Docket22-243
Cited0 times
StatusPublished
Syllabus
Lay Witness Identification Motion to Dismiss Sufficiency of the Evidence Plain Error Right Against Self-Incrimination
Full Opinion (html_with_citations)
IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-910
No. COA22-243
Filed 29 December 2022
Nash County, Nos. 17CRS054450-51
STATE OF NORTH CAROLINA
v.
DAMIAN R. TAYLOR, Defendant.
Appeal by Defendant from judgments entered 22 April 2021 by Judge Quentin
T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 18 October
2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Taylor H.
Crabtree, for the State.
Joseph P. Lattimore for Defendant-Appellant.
INMAN, Judge.
¶1 Defendant Damian R. Taylor appeals from judgments entered after a jury
found him guilty on two counts of discharging a weapon into an occupied property
inflicting serious injury and one count of possession of a firearm by a felon. On
appeal, Defendant contends that the trial court erred in: (1) allowing several police
officers to offer their lay opinion that Defendant can be identified as the shooter in
surveillance video of the crime; (2) denying Defendantâs motion to dismiss the charges
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of discharging a firearm into an occupied property inflicting serious injury; and (3)
admitting testimony from police that Defendant was not cooperative in the
investigation. After careful review, we hold Defendant has failed to demonstrate
error.
I. FACTUAL AND PROCEDURAL HISTORY
¶2 The evidence of record tends to show the following:
¶3 In the late-night hours of 3 November 2017, Crystal Tyree was in her living
room in Rocky Mount when several gunshots were fired into her home from her front
yard. Ms. Tyree suffered numerous injuries from the gunfire, including a broken leg
and a headwound. Several officers with the Rocky Mount Police Department
promptly arrived at Ms. Tyreeâs home to investigate and render aid to Ms. Tyree.
¶4 The investigating officers located the following evidence at the crime scene: (1)
six stamped .40 caliber shell casings in the front yard; (2) bullet holes in the living
room wall above a couch; (3) a projectile behind Ms. Tyreeâs television; (4) a shattered
glass coffee table on Ms. Tyreeâs porch; (5) bullet holes in the front door; (6) a .40
caliber stamped shell casing in the road in front of the home; and (7) a blood trail left
by Ms. Tyree as she dragged herself from the living room to the kitchen.
¶5 Ms. Tyree gave police surveillance footage from three security cameras placed
around her home. The video, in black and white, shows a Dodge Avenger stop outside
Ms. Tyreeâs home. A driver exits the vehicle, approaches the home, and then moves
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closer toward the home and out of the camera frame. Debris then flies from the home.
Another individual then gets out of the passenger side of the Avenger and points a
gun at the home, though it does not appear to fire. No muzzle flash is shown on the
video, and the person seemingly manipulates the gunâs firing mechanism after
attempting to fire two shots. The driver then reenters the frame and a flash can be
seen after he returns to the car. The video next shows a flash from the driverâs side
of the vehicle as it pulls away from Ms. Tyreeâs home.
¶6 One of the responding officers who viewed the video, Sergeant Keith Miller,
believed he recognized Defendant as the driver and another man, Jerry Green, as the
passenger. Sgt. Miller had seen Defendant before and was able to specifically identify
him as the driver based on his thick glasses, dreadlocks, and slight size.
¶7 Independent of Sgt. Millerâs video identification, another officer, Officer Daryl
Jones, linked Defendant and Jerry Green to the crime as potential suspects. Told
only to be on the lookout for a âdark-in-color sedan,â Officer Jones drove to a home on
Proctor Street where he had observed a dark Dodge Avenger a few days earlier. When
he arrived, Officer Jones found the car parked in a driveway with two men inside.
Officer Jones then drove around the block while waiting for other officers to arrive;
when he next approached the home, Defendant, Jerry Green, and Terry Greenâ
Jerryâs brotherâwere standing beside the Dodge Avenger and a green Toyota Camry
parked nearby. A detective spoke with the three men about the shooting, and all
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three denied any involvement. Police departed without further investigation at that
time.
¶8 Later that evening, the identification of Defendant and Jerry Green on the
video renewed police interest in the two menâs potential involvement in the crime.
Officers returned to Proctor Street but were unable to locate Defendant or the Greens;
a short time later, however, police detained Terry Green in the green Toyota Camry
during a traffic stop. Jerry Green arrived on the scene while the stop was underway
and was arrested. Moments later, Defendant drove up in the dark-colored Dodge
Avenger seen on the surveillance video; he was then arrested by Sgt. Miller. Police
searched Defendantâs car and found seven 9 mm shell casings in the vehicle.
¶9 Defendant was subsequently indicted on: (1) one count of assault with a deadly
weapon with intent to kill inflicting serious injury; (2) two counts of discharging a
weapon into occupied property inflicting serious bodily injury; and (3) one count of
possession of a firearm by a felon. Prior to trial, Defendant moved to suppress any
witness identification of him as the driver seen in the surveillance video. The trial
court held a pre-trial voir dire hearing on 19 April 2021 before denying Defendantâs
motion. The State also dismissed the charge of assault with a deadly weapon with a
deadly weapon with intent to kill inflicting serious injury.
¶ 10 The jury was impaneled the following day, and various responding officers
testified for the State. The surveillance video was published to the jury, and Sgt.
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Miller was permitted to identify Defendant as the driver seen in the video based on
his glasses, dreadlocks, and small frame. At trial, Defendant was not wearing glasses
and his hair was longer than depicted in the video. Two other officers also testified
that Defendant was the driver seen in the video based on their prior encounters with
him. Defendantâs counsel lodged a continuing objection to these identifications. One
police witness testified without objection that Defendant declined to answer
questions from a detective.
¶ 11 Defendant moved to dismiss all charges at the close of the Stateâs evidence.
The trial court denied that motion. Following closing arguments by counsel,
instruction by the trial court, and deliberation, the jury found Defendant guilty on all
counts. Defendant received a sentence of 120 to 156 months imprisonment on one
count of discharging a weapon into occupied property inflicting serious bodily injury
and a consolidated, consecutive sentence of the same length for the remaining
offenses. Defendantâs counsel told the trial court that he intended to give oral notice
of appeal immediately after entry of judgment and, following sentencing, the trial
court announced that âDefendant gives notice of appeal by way of counsel . . . to the
North Carolina Court of Appeals.â Defendant also filed a petition for writ of certiorari
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with this Court seeking review in the event that the notice of appeal given at trial
failed to comply with the technical requirements of N.C. R. App. P. 4 (2021).1
II. ANALYSIS
¶ 12 Defendant argues that the trial court: (1) erred in permitting three officers to
offer their lay opinions identifying Defendant on the surveillance video; (2) erred in
denying his motion to dismiss; and (3) plainly erred in allowing testimony regarding
his silence into evidence. We hold Defendant has failed to demonstrate error under
each argument.
A. Standards of Review
¶ 13 We review a trial courtâs decision to admit lay opinion testimony for an abuse
of discretion. State v. Williams, 363 N.C. 689, 701,686 S.E.2d 493, 501
(2009). A
denial of a motion to dismiss, by contrast, is reviewed de novo. State v. Smith, 186
N.C. App. 57, 62,650 S.E.2d 29, 33
(2007). Finally, for evidentiary error subject to
plain error review, a defendant must show error and â(i) that a different result
probably would have been reached but for the error or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial of a fair trial.â State v.
Fraley, 202 N.C. App. 457, 465,688 S.E.2d. 778, 785
(2010).
1 The State did not assert a lack of jurisdiction in its brief to this Court, nor did it
oppose certiorari review in its response to Defendantâs petition. In light of these
circumstances, and to the extent that Defendantâs counselâs notice of appeal and the trial
courtâs recognition thereof on the record failed to comply with the technical requirements of
our appellate rules, we allow Defendantâs petition for writ of certiorari in our discretion.
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B. Lay Opinion Testimony
¶ 14 In his first argument, Defendant asserts that the trial court abused its
discretion in allowing three officers to opine to the jury that Defendant is identifiable
as the driver of the Dodge Avenger seen on the surveillance footage. Defendant
requests plain error review to the extent that this argument was unpreserved by
adequate objection. The State disagrees with Defendant as to preservation and on
the merits, noting that the following factors weighed in favor of allowing lay opinion
testimony: (1) the testifying officers had encountered Defendant prior to viewing the
surveillance video; (2) the Defendantâs appearance had changed between the night of
the crime and trial; and (3) the quality of the surveillance video itself was poor. We
agree with the State and hold that, regardless of whether his counselâs objection
preserved this issue below, Defendant has not shown the trial court abused its
discretion in allowing this testimony.
¶ 15 Rule 701 of our Rules of Evidence permits lay opinion testimony that is â(a)
rationally based on the perception of the witness and (b) helpful to . . . the
determination of a fact in issue.â N.C. Gen. Stat. § 8C-1, Rule 701 (2021). In the
specific context of lay identification of a defendant on videotape, such testimony is
admissible if it âis based on the perceptions and knowledge of the witness, the
testimony would be helpful to the jury in the juryâs fact-finding function rather than
invasive of that function, and the helpfulness outweighs the possible prejudice to the
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defendant from admission of the testimony.â State v. Belk, 201 N.C. App. 412, 415,
689 S.E.2d 439, 441 (2009) (citation and quotation marks omitted). By natural
corollary, such testimony is inadmissible when âthe jury is as well qualified as the
witness to draw the inference and conclusion that the person shown in the
surveillance footage is the defendant.â State v. Weldon, 258 N.C. App. 150, 155,811 S.E.2d 683, 688
(2018) (cleaned up) (citation and quotation marks omitted).
¶ 16 This Court has identified the following factors as pertinent to the above
analysis:
(1) the witnessâs general level of familiarity with the
defendantâs appearance; (2) the witnessâs familiarity with
the defendantâs appearance at the time the surveillance
[video] was taken or when the defendant was dressed in a
manner similar to the individual depicted in the [video]; (3)
whether the defendant had disguised his appearance at the
time of the offense; and (4) whether the defendant had
altered his appearance prior to trial. . . .
[C]ourts have also considered the clarity of the surveillance
image and completeness with which the subject is depicted
in their analysis.
Belk, 201 N.C. App. at 415-16,689 S.E.2d at 441-42
(citations omitted). Critically,
we consider the above factors pursuant to the abuse of discretion standard, and âwe
must uphold the admission of . . . lay opinion testimony if there was a rational basis
for concluding that [the witness] was more likely than the jury to correctly identify
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[the] [d]efendant as the individual in the surveillance footage.â Id. at 417,689 S.E.2d at 442
(citation omitted).
¶ 17 Reviewing the evidence in light of the above caselaw, we hold that the trial
court could rationally conclude that the officersâ lay opinion testimony identifying
Defendant on the surveillance video was admissible under Rule 701. First, each of
the officers testified that they had previously encountered Defendant before viewing
the surveillance video. Second, the first officer to so testifyâSgt. Millerânoted that
on the night of the shooting, he recognized Defendant based on the length of his
dreadlocks and his distinctively thick eyeglasses, and that both of those identifying
characteristics had changed between the crime and trial.2 Third, the State notes, and
Defendant does not dispute, the videoâs relatively poor quality. As each of these
factors weighs in favor of admissibility, we decline to hold that the trial court
irrationally allowed the officersâ identifying testimony into evidence and abused its
discretion as a result. See Weldon, 258 N.C. App. at 156,811 S.E.2d at 689
(holding
no abuse of discretion in admission of officerâs lay identification from surveillance
2Though the other two officers did not describe in detail what distinguishing physical
features led them to identify Defendant on the video, their testimony was largely duplicative
and cumulative of Sgt. Millerâs admissible testimony. See, e.g., State v. Parker, 140 N.C. App.
169, 182,539 S.E.2d 656, 665
(2000) (âWhen one witnessâs testimony is properly admitted,
erroneous admission of repetitive or cumulative subsequent testimony is not necessarily
prejudicial.â).
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video when the witness had previously encountered the defendant and the
defendantâs hairstyle changed between the recording and trial).
¶ 18 We are unconvinced by Defendantâs arguments that the trial court could not
have conducted a proper Rule 701 analysis because: (1) it did not expressly reference
the rule in its pre-trial ruling or during trial; (2) the trial court had not viewed the
video at the time of the pre-trial ruling and did not make any express findings as to
its quality; and (3) Defendant was not personally responsible for his changed
appearance because his glasses were seized and introduced into evidence by the
State.
¶ 19 As to Defendantâs first argument, we note that Defendantâs counsel never
expressly argued that the testimony was inadmissible under Rule 701, mentioning
only Rules 901, 1001, and 1002. In any event, the pre-trial ruling was entirely
preliminary because the admissibility of testimony is not finally adjudged until it is
presented into evidence. State v. McCall, 162 N.C. App. 64, 68,589 S.E.2d 896, 899
(2004). The trial court had a full opportunity to consider the admissibility of the
officersâ testimony based on counselâs objection and in due consideration of all
relevant factorsâincluding the self-evident quality of the video published to the jury
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alongside the officersâ testimony.3 Finally, the exact cause of Defendantâs changed
appearance is immaterial, as the rule is primarily concerned with whether the change
in appearance diminishes an unfamiliar jurorâs ability to identify the person seen on
video. See Weldon, 258 N.C. App. at 156,811 S.E.2d at 688-89
(â[B]y the time of trial, the jury was unable to perceive the distinguishing nature of defendantâs hair at the time of the shooting. . . . Accordingly, in that defendant had changed his appearance since the 2 April 2015 surveillance video, not only was [the testifying officer] qualified to identi[f]y defendant in the video, but he was better qualified than the jury to do so.â (citation and quotation marks omitted)). See also U.S. v. Farnsworth,729 F.2d 1158, 1160
(8th Cir. 1984) (âThis criteria is fulfilled where the witness is familiar with the
defendantâs appearance around the time the surveillance photograph was taken and
the defendantâs appearance has changed prior to trial. . . . These [differences in
appearance] made it difficult for the jury to make a positive identification from the
photographs. Because the [witnessesâ] frequent contacts [with the defendant]
familiarized them with his appearance prior to the robbery, the district court
considered their identification testimony helpful to the jury.â).
3 The clarity of the video is not dispositive where the testifying officer knew the
defendant from prior encounters and the defendantâs appearance changed between the video
and trial. See Weldon, 258 N.C. App. at 156,811 S.E.2d at 689
(holding such testimony was
admissible based on the latter two factors without discussion of the surveillance videoâs
quality).
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C. Motion to Dismiss
¶ 20 Defendant next argues that the trial court erred in denying his motion to
dismiss the charges against him, asserting that there was insufficient evidence that
he fired the bullets that struck the victim. We disagree.
¶ 21 A motion to dismiss is properly granted only when the State fails to present
substantial evidence of each essential element of the charged offense. State v. Golder,
374 N.C. 238, 250,839 S.E.2d 782
, 790 (2020). We must view the evidence in the
light most favorable to the State, giving it the benefit of âevery reasonable intendment
and every reasonable inference to be drawn therefrom.â Id. Circumstantial evidence
is considered equally probative as direct evidence. State v. Jenkins, 167 N.C. App.
696, 699,606 S.E.2d 430, 432
(2005). Here, the State was required to introduce
sufficient evidence showing â(1) the willful or wanton discharging (2) of a firearm (3)
into any building (4) while it is occupied,â State v. Jones, 104 N.C. App. 251, 258,409 S.E.2d 322, 326
(1991), and that Defendantâs commission of those acts caused bodily
injury to another, N.C. Gen. Stat. § 14-34.1(c) (2021).
¶ 22 Defendant argues that the Stateâs evidence fails to establish that he fired the
shots that struck Ms. Tyree. But the testimonial, video, and physical evidence in this
case, as well as the reasonable inferences drawn therefrom, show otherwise.
Specifically, the video shows a man identified as Defendant get so close to the home
that he leaves the cameraâs field of view, and debris flies on screen moments later.
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Defendant reenters the frame and returns to his car, after which he points an object
at the home and a flash is seen on screen. Then, as Defendant drives away, he points
the object at the house again and another flash is observable from the driverâs side of
the vehicle. The officersâ testimony, coupled with the video and several .40 caliber
rounds, all fired from the same gun and recovered by police close to the house and in
the street, support a reasonable inference that Defendant fired several shots into Ms.
Tyreeâs home. And while it is true that another man can be seen on video pointing a
gun at the house, the absence of any casings from another gun at the crime scene, the
lack of any muzzle flash on screen, and the manâs apparent attempts to manipulate
the gunâs firing mechanism all support a reasonable inference that he attempted but
failed to successfully fire an inoperable firearm at the home. Viewed in the light most
favorable to the State, this evidence sufficiently establishes all essential elements of
the crime charged, namely that Defendant fired several bullets into Ms. Tyreeâs home
and injured her as a result.
D. Defendantâs Silence and Plain Error
¶ 23 In his final argument, Defendant argues that the trial court plainly erred in
permitting admission of the following testimony from a police officer:
[THE STATE]: Okay. And, ultimately, you left 1332
Proctor Street?
[THE WITNESS]: Yes. They werenât cooperative on the
scene, and we didnât have charges at the time, so based on
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what we had, we left the scene.
[THE STATE]: And when you say, âThey werenât
cooperative,â what do you mean?
[THE WITNESS]: They werenât answering a lot of
Detective Woodsâs questions. They werenât particularly
happy that we were there speaking to them.
Later, the prosecutor stated in closing argument:
Now, from there, the officers admitted, âWe didnât make an
arrest. They didnât want to cooperate, so we had to clear
the scene.â
Now, ladies and gentlemen, thatâs what we want officers to
do. At that point in time, all they had was a vague vehicle
description, and they had no reason to effectuate an arrest.
So what did they do? They cleared the scene, and gathered
more information.
....
And there is also the fact that it was Sergeant Miller who
stopped the Defendant on that night, after they drove
around the city trying to find these individuals that they
first saw at 1332 Proctor Street. Once law enforcement
said, âHey, can we talk to you about a shooting?â once they
said âWe donât have anything for you,â and gotâyou heard
law enforcement went back to that residence several times
that night trying to locate them and trying to locate that
vehicle.
Defendant claims the admission of this testimony and the prosecutorâs mentions of it
in closing argument violated his constitutional right against self-incrimination under
the Fifth Amendment to the United States Constitution and Article 1, Section 23 of
the North Carolina Constitution.
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¶ 24 Defendant has not shown plain error in the above testimony and closing
argument. On plain error review, we must consider whether the State âemphasize[d],
capitalize[d] on, or directly elicit[ed]â the inadmissible statements. State v. Moore,
366 N.C. 100, 106,726 S.E.2d 168, 173
(2012). The prosecutor did none of those
things here. The prosecutor did not ask the witness to comment on Defendantâs
silence and appears instead to have sought to contextualize law enforcementâs
decision to leave Defendant and Terry Green alone in the immediate aftermath of the
shooting. The prosecutorâs closing argument briefly mentioned Defendantâs lack of
cooperation only to describe law enforcementâs actions in investigating the crime.
Finally, the prosecutor did not rely on the challenged testimony to establish
Defendantâs guilt or any element of the crime charged. We therefore hold that the
trial court did not plainly err under Moore and the applicable law.
III. CONCLUSION
¶ 25 For the foregoing reasons, we hold Defendant received a fair trial, free from
error.
PETITION FOR WRIT OF CERTIORARI ALLOWED; NO ERROR.
Judges GRIFFIN and JACKSON concur.