United States District Court, M.D. North Carolina
GEORGE B. WILLIAMS, Petitioner,
RICHARD B. NEELY, Respondent.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
Petitioner George B. Williams, a prisoner of the State of North Carolina, has brought a Petition [Doc. #2] seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2010, in the Superior Court of Forsyth County, a jury convicted Petitioner of felony breaking and entering and felony larceny after breaking and entering. (Petition at 1-2.) Sentenced as a habitual felon, he received a sentence of 136-173 months of imprisonment in cases 09 CRS 3309 and 09 CRS 52017. (Id. at 2.) Petitioner pursued a direct appeal, but it proved unsuccessful after the North Carolina Court of Appeals found no error and the North Carolina Supreme Court denied discretionary review. State v. Williams, No. COA10-1482, 2011 WL 3276811, 214 N.C.App. 195, 714 S.E.2d 530 (Table) (Aug. 2, 2011), rev. denied, 365 N.C. 362, 718 S.E.2d 394 (2011). Petitioner filed nothing more in the state courts before filing his Petition in this Court. Respondent responded to the Petition with a Motion for Summary Judgment [Doc. #8], which is now pending before the Court.
The facts of the case, as set out by the North Carolina Court of Appeals in denying Petitioner's direct appeal, are as follows:
On 6 July 2009, Defendant was indicted on charges of felony breaking and/or entering, larceny after breaking and/or entering, and felony larceny for crimes committed on 14 January 2009 and 20 January 2009 against Millennium Landscaping ("Millennium") in Kernersville, North Carolina. On the same day, Defendant was indicted as having attained habitual felon status pursuant to N.C. Gen. Stat. § 14-7.1 (2009). The cases were consolidated and tried during the 9 August 2010 Criminal Session of the Forsyth County Superior Court.
Prior to trial, three motions were offered, two of which are at issue in Defendant's appeal. First, the State moved to admit surveillance video recorded at Millennium as substantive evidence. Second, Defendant moved to suppress testimony by Archdale Police Captain Mickey Denny ("Captain Denny"), identifying Defendant from photographs taken from the surveillance video recorded on 14 January 2009.
In consideration of these motions, the trial court conducted voir dire of several witnesses. Richard Knowles ("Knowles"), owner and general manager of Millennium, testified during voir dire that his company uses several security cameras on the Millennium premises. Knowles narrated two recordings from Millennium's security cameras that were played during his voir dire testimony.
In the 14 January 2009 videotape, Knowles described a pickup truck parked on the ramp to the storage buildings at Millennium. Knowles then described that an individual cut the locks off the storage buildings, and removed several pieces of landscaping equipment from inside. Knowles explained that the person in the video removed a lock from Millennium's office, noticed the surveillance camera, and walked away. It appeared that the same individual returned and broke the camera off the tree to which it was affixed.
The second video captured a second break-in at Millennium on 20 January 2009. Knowles described the video as showing that two individuals exited a pickup truck with a gas can and a hose. The two individuals siphoned gas from another vehicle on the premises and took a ladder, two tires, and an air tank. Knowles also testified that he printed still photographs from the surveillance videos and provided them to the Forsyth County Sherriff's Department with copies of the videos. The trial court noted that none of the photographs depicted the individual completely. Defendant did not cross-examine Knowles. The trial court granted the State's motion to admit the videotape as substantive evidence.
The State then called Captain Denny for voir dire testimony. Captain Denny testified that he viewed the still photographs provided by Knowles at a monthly law enforcement meeting where such photographs and information were routinely shared between law enforcement officials. Captain Denny testified that he recognized the individual in the photographs provided by Knowles and compared Knowles' photographs with a photo of Defendant within his office's in-house computer system. Captain Denny also testified during voir dire that he recognized Defendant from charging Defendant with crimes on two or three occasions and from photographs in sheriffs' department wanted flyers. Defendant moved to suppress Captain Denny's testimony on the grounds that: (1) Captain Denny's testimony would be treated as expert testimony by the jury because of Captain Denny's status as a police officer; and (2) Captain Denny's testimony that he knew Defendant would imply that Defendant had a criminal history.
Defendant also cited State v. Belk, 201 N.C.App. 412, ___, 689 S.E.2d 439, 441-42 (2009), writ denied, review denied, 364 N.C. 129, 695 S.E.2d 761 (2010), in which this Court discussed the factors a trial court should consider when deciding whether to admit lay opinion testimony identifying a person in a photograph or videotape. Defendant's counsel argued that Captain Denny's prior contact with Defendant was not sufficient to "put [ ] him in a better position to identify the individual in the video than the jury."
The trial court denied Defendant's motion in limine to the extent that Captain Denny could testify in order to identify Defendant as the individual in the surveillance video, but granted the motion to the extent that Captain Denny could not testify that he had knowledge of Defendant from prior arrests. The trial court then proceeded with Defendant's trial.
During the trial, the State called Captain Denny to testify. Prior to Captain Denny taking the stand, Defendant renewed his Motion to Suppress Captain Denny's testimony. The trial court denied the Motion. Captain Denny identified the still photographs admitted into evidence as being the same photographs distributed at the area law enforcement meeting he attended. Captain Denny also admitted that he had only seen Defendant in photographs, and had never seen Defendant in person, contrary to his voir dire testimony.
Upon learning Captain Denny had not previously arrested or charged Defendant, the trial court excused the jury and acknowledged a "misunderstanding" of the facts in ruling on Defendant's motion in limine. The trial court struck all references in the record that stated Captain Denny previously arrested or charged Defendant. However, this did not change the ruling on Defendant's Motion; the trial court reasoned Captain Denny's immediate recognition of ...