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State v. Gullette

Court of Appeals of North Carolina

February 21, 2017

STATE OF NORTH CAROLINA, Plaintiff,
v.
MARIO DONYE GULLETTE, Defendant.

          Heard in the Court of Appeals 8 February 2017.

         Appeal by defendant from judgment entered 25 January 2016 by Judge Hugh B. Lewis in Mecklenburg County No. 14 CRS 238731, 15 CRS 25911 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Susannah P. Holloway, for the State.

          Jarvis John Edgerton, IV, for defendant-appellant.

          ZACHARY, Judge.

         Mario Donye Gullette (defendant) appeals from the judgment entered upon his conviction of trafficking in heroin and having attained the status of a habitual felon. On appeal, defendant argues that the trial court erred by denying his motion to suppress "any in-court and out-of-court identifications conducted in violation of the Eyewitness Identification Reform Act." We have carefully reviewed the record and the transcript of the proceedings in this case, and conclude that defendant did not preserve this issue for appellate review. Accordingly, we do not reach the merits of defendant's argument. Given that this is the only basis upon which defendant has challenged his convictions, we conclude that defendant had a fair trial, free of reversible error.

         I. Factual and Procedural Background

         On 8 April 2014, Charlotte-Mecklenburg Police Officer Charlie Davis was acting as an undercover detective who was assigned to make a purchase of heroin from a suspected drug dealer. In the course of this investigation, Officer Davis met with defendant, who sold the officer heroin for which Officer Davis paid $600. The day after the undercover drug buy, another officer showed Officer Davis a photograph of defendant and Officer Davis confirmed that the photograph depicted the person from whom he had purchased the drugs. Officer Davis had not met defendant prior to conducting the undercover purchase. However, during the sale, Officer Davis spent several minutes in close proximity to defendant, and identified defendant in court as the man who had sold him the heroin.

         On 13 October 2014, the Mecklenburg County Grand Jury indicted defendant for trafficking in heroin by selling a quantity of heroin greater than four grams but less than fourteen grams. On 27 July 2015, defendant was indicted for being a habitual felon. On 15 December 2015, defendant filed a motion to suppress "both the in-court and out-of-court identification" of defendant by Officer Davis, on the grounds that when another officer showed Officer Davis a photograph of defendant, this constituted "a 'show up' procedure seeking identification of the defendant" that was "unnecessarily suggestive" and that was conducted "in deliberate disregard of the identification procedures required by the Eyewitness Identification Reform Act."

         The charges against defendant came on for trial at the 18 January 2016 criminal session of Mecklenburg County Superior Court before the Honorable Hugh B. Lewis, judge presiding. Immediately prior to trial, the trial court conducted a hearing on defendant's suppression motion. The court heard testimony from the law enforcement officers involved in the investigation that resulted in defendant's arrest. The arguments of counsel focused on whether the provisions of the Eyewitness Identification Reform Act, N.C. Gen. Stat. § 15A-284.52 (2015), applied to the facts of this case. The State argued that under the version of N.C. Gen. Stat. § 15A-284.52 in effect at the time that Officer Davis was shown a photograph of defendant, "a single photo did not constitute a lineup and did not fall under the [Eyewitness Identification Reform Act]." The prosecutor cited several cases from this Court in support of this position. The prosecutor also argued that in a subsequent amendment to the Eyewitness Identification Reform Act, under which the Act would arguably be applicable to the situation in this case, the General Assembly explicitly stated that the amended version of the statute was "effective December 1st of 2015 and applies to anything after that date."

         Defendant did not dispute the accuracy of the State's characterization of the history of the Eyewitness Identification Reform Act. Instead, defendant asserted that the State was asking the trial court to "use a technicality in the statute" and asserted that he did not "believe the intent of the legislature was merely to give somebody who was in court on November 30th, versus someone who was in court on December 1st, different treatment." Thus, defendant argued that for equitable reasons the trial court should apply the current version of the statute to this case, despite the fact that the show-up took place prior to the effective date of the amendment.

         After hearing the law enforcement officers' testimony and the arguments of counsel, the trial court ruled that it was denying defendant's motion to suppress. The court found that Officer Davis was an experienced law enforcement officer who had been in defendant's presence during the sale of heroin. Regarding the applicability of the Eyewitness Identification Reform Act, the trial court stated that:

[T]he Court concludes that the identification by Detective Davis on April 9 of 2014 was appropriate and followed the law that was enforced on that date. The Court also finds that the photo lineup act, as is presently enforced and came into force on December the 1st, 2015, was not in place or applicable law at the time of the identification by Detective Davis.

         During the trial, Officer Davis testified about his undercover purchase of heroin from defendant and about the photograph of defendant that he was shown the following day. Defendant did not object when Officer Davis identified defendant as the person from whom he had bought heroin, or when the officer testified about the photograph of defendant he had been ...


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