in the Court of Appeals 21 February 2017.
by defendant from judgment entered 8 March 2016 by Judge L.
Todd Burke in Guilford County, No. 15 CRS 75540 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Charles G. Whitehead, for the State.
& Cooke, by James R. Parish, for defendant-appellant.
Tirik Little (defendant) appeals from judgment entered upon
his conviction for robbery with a dangerous weapon. On
appeal, defendant argues that the trial court erred in its
colloquy with defendant concerning the scope of
cross-examination to which defendant would be exposed if he
chose to testify. Defendant also contends that the trial
court committed error and plain error by admitting certain
photographs downloaded from the Facebook and Instagram
websites to illustrate the testimony of the State's
witnesses. Upon careful consideration of defendant's
arguments in light of the record and the applicable law, we
conclude that these arguments lack merit and that defendant
is not entitled to relief on appeal.
Factual and Procedural Background
appeal arises from an incident in which a motorcycle was
stolen at gunpoint from the bike's fourteen-year-old
owner. On 12 October 2015, the Grand Jury of Guilford County
indicted defendant for robbery with a dangerous weapon and
for possession of a firearm by a felon. At some point after
these indictments were returned, defendant was also charged
with possession of a controlled substance in a confinement
facility. The charges against defendant came on for trial at
the 17 February 2015 criminal session of Superior Court for
Guilford County, the Honorable L. Todd Burke presiding. At
the outset of the trial, the prosecutor dismissed the charge
of possession of a firearm by a felon and announced that the
State was postponing its prosecution on the charge of
possession of a controlled substance in a confinement
facility. Defendant did not testify or present evidence at
trial. The State's evidence tended to show, in relevant
part, the following:
Garcia testified that he was fifteen years old and attended
high school. On 13 May 2015, the date of the incident giving
rise to the charge against defendant, Mr. Garcia had been
fourteen years old. Mr. Garcia owned a Honda motorcycle and
during the afternoon of 13 May 2015, Mr. Garcia was riding
his motorcycle in his neighborhood. Mr. Garcia's
ten-year-old friend, Anthony Salazar, was a passenger on the
bike. During the ride, a car approached the motorcycle and
stopped about five feet from the boys. The passenger in the
car pointed a gun through the window, and then exited the car
and ran toward Mr. Garcia and Mr. Salazar, pointing the gun
at them. The man demanded that the boys get off the
motorcycle and when they complied, he got on the motorcycle
and drove away. Mr. Garcia testified that when defendant got
out of the car, he approached Mr. Garcia until they were
close together. Mr. Garcia noticed that defendant had tattoos
on his neck and arm, and described defendant's firearm as
a gray handgun with an extended barrel. In court, Mr. Garcia
identified defendant as the man who had stolen his motorcycle
defendant rode away on Mr. Garcia's motorbike, the two
boys walked to Mr. Garcia's home. Soon thereafter, a
neighbor, Victor Rivera-Salazar, came to Mr. Garcia's
house. Mr. Garcia called the police and gave a statement
about the incident. Law enforcement officers later showed Mr.
Garcia a photographic lineup from which he identified
defendant as the person who had robbed him. At trial, Mr.
Garcia was shown several photographic exhibits which he used
to illustrate his testimony about the appearance of his
motorcycle, defendant, and the gun that defendant had
Rivera-Salazar testified that he was a seventeen-year-old
high school senior, that Anthony Salazar was his younger
brother, and that they lived in the same neighborhood as Mr.
Garcia. On 13 May 2015, Mr. Rivera-Salazar heard the sound of
Mr. Garcia's motorcycle and went to look for him. When
Mr. Rivera-Salazar located the motorcycle, defendant was
attempting to start it and Mr. Rivera-Salazar confronted
defendant about his possession of the motorcycle. Defendant
claimed that Mr. Rivera-Salazar's friend had loaned him
the bike and then rode away on the bike. During his
conversation with defendant, Mr. Rivera-Salazar stood very
close, "face to face, " and observed that defendant
had tattoos on his hands and neck. He identified defendant at
trial and testified that he was "a hundred percent"
sure that defendant was the person with whom he had spoken.
After defendant rode away, Mr. Rivera-Salazar went to Mr.
Garcia's house. Mr. Rivera-Salazar later identified
defendant in a photographic line-up. Mr. Rivera-Salazar used
State's Exhibits Nos. 1 - 3 to illustrate his testimony.
Police Officer D.T. Sims testified that on 13 May 2015 he was
dispatched to Mr. Garcia's house, where Mr.
Rivera-Salazar and Mr. Garcia gave statements similar to
their trial testimony. Greensboro Police Detective R. E.
Ferrell testified that, after he had interviewed Mr. Garcia
and read the police reports about the robbery, he then looked
at photographs that had been shared on the social media sites
Facebook and Instagram. On the Facebook page for an
individual who identified himself online as "L-Nice
Little, " Detective Ferrell found the photograph that
was marked as State's Exhibit No. 1, depicting a
motorcycle that matched the description that the detective
had been given for Mr. Garcia's motorbike. On Instagram,
Detective Ferrell found the photographs designated as
State's Exhibits Nos. 4 and 5.In the course of his
investigation, Detective Ferrell also obtained a possible
home address for defendant. Greensboro Police Officer B.E.
Faust testified that on 16 May 2015 he observed a motorcycle
parked behind the house at this address, and used State's
Exhibit No. 1 to illustrate his testimony about this
February 2016, the jury returned a verdict finding defendant
guilty of robbery with a dangerous weapon. The prosecutor
dismissed the charge of possession of a controlled substance
in a confinement facility. The trial court imposed a sentence
of 72 to 99 months' imprisonment. Defendant gave notice
of appeal in open court.
Trial Court's Instructions to Defendant on the Right to
the State rested, defense counsel informed the trial court
outside the presence of the jury that she and defendant had
been discussing whether defendant would testify at trial and
that she thought defendant wanted to testify. Defendant's
counsel asked the court to "just put that on the
record." In response, the trial court conducted the
following colloquy in which the court warned defendant that
he would be subject to cross-examination if he testified at
THE COURT: All right. Mr. Little, you have the right to
BAILIFF: Stand up, sir.
THE COURT: You don't have to testify. You have the right
to remain silent. That's your Fifth Amendment
constitutional right that you not self-incriminate yourself.
However, if you want to waive your right of silence and
testify, you can do that also. Are you trying to determine
which one you're going -- how you're going to ...