in the Court of Appeals 22 February 2017.
by defendant from judgment entered 14 August 2015, as amended
11 September 2015, by Judge James K. Roberson in Durham
County Superior Court Durham County, Nos. 12 CRS 062729, 13
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
Antonio Riley Jr. (defendant) pleaded guilty to possession of
a firearm by a felon and was convicted of common law robbery
upon evidence that he fled a traffic stop with an
officer's badge, handcuffs, cell phone, and service
weapon following an altercation with the officer. At
sentencing, the trial court assigned four points to
defendant's prior federal conviction, felon in possession
of a firearm, which was listed as a Class G felony on the
worksheet. He was sentenced as a prior record level IV
appeal, defendant argues that he is entitled to a new
sentencing hearing because the State failed to prove his
federal conviction was "substantially similar" to a
Class G felony in North Carolina. To the extent that the
State failed to meet its burden of proof, any resulting error
was harmless. The record contains sufficient information for
this Court to determine that the federal offense of being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
is substantially similar to the North Carolina offense of
possession of a firearm by a felon, N.C. Gen. Stat. §
14-415.1(a), a Class G felony.
defendant's request, we have also reviewed the sealed
records from Professional Standards Division of the Durham
Police Department to determine if the trial court, after its
in camera review, provided defendant with all
exculpatory material in the records. Based upon our own
review and our understanding of the evidence to which
defendant had access, we have not discovered any
Brady evidence in the sealed records which was not
produced to defendant.
State's evidence tended to show the following: On 18
December 2012, Officer Kelly Stewart of the Durham Police
Department was on patrol in a high drug crime area when he
observed a vehicle parked alongside the curb near an
intersection. A black male was standing outside the vehicle
on the passenger's side. As the man walked away, the
driver took off, burning rubber and fishtailing down the
road. Officer Stewart activated his blue lights in his
unmarked patrol car and pulled the vehicle over.
Stewart exited his patrol car and approached the driver's
side of the vehicle. Defendant, the sole occupant, was in the
driver's seat. In the course of the traffic stop, Officer
Stewart noticed that defendant appeared nervous and
repeatedly reached down to the floorboard. He ordered
defendant out of the vehicle, placed his license and
registration on the roof, and frisked him for weapons to
confirm that he was unarmed. After the frisk, defendant took
his license and registration off the roof of the vehicle and
put them in his pants pocket. When Officer Stewart told
defendant that he was not yet free to leave, defendant jumped
back into his vehicle and revved the engine. Officer Stewart
followed defendant into the vehicle and pulled the emergency
brake as defendant started driving away. The two began
fighting inside the vehicle, "going blow for blow"
as Officer Stewart told defendant to "stop
the fight, defendant ripped the officer's badge off from
his neck chain and knocked away his handcuffs. Positioned on
his back with defendant on top of him, Officer Stewart drew
his service weapon. Defendant grabbed the handgun and, as the
two fought for control, Officer Stewart was shot in his right
thigh. At that point, defendant took control of the handgun,
pulled the officer out of the vehicle, and drove away. He was
apprehended shortly thereafter. Officer Stewart's badge,
handcuffs, and personal cell phone were eventually recovered
elsewhere in Durham but his service weapon was never found.
January 2013, a Durham County grand jury indicted defendant
on charges of possession of a firearm by a felon, careless
and reckless driving, assault on a law enforcement officer
inflicting serious injury, assault on a law enforcement
officer with a deadly weapon, robbery with a dangerous
weapon, and two counts of assault with a firearm on a law
enforcement officer. A superseding indictment was issued on 2
March 2015 for robbery with a dangerous weapon and assault on
a law enforcement officer with a deadly weapon.
the Professional Standards Division of the Durham Police
Department conducted an internal investigation to determine
if Officer Stewart violated the department's professional
standards during the traffic stop. Upon defendant's
motion for production of exculpatory evidence, the trial
court reviewed the internal investigation records in
camera. At the hearing on defendant's motion,
defense counsel indicated that he had been provided many, if
not all, of the reports and statements in the sealed records.
After its in camera review, the trial court ruled
that there was no evidence in the sealed records "that
constitutes exculpatory material under Brady versus Maryland,
or any of its progeny."
trial, defendant pleaded guilty to "possession of a
firearm by a felon" in violation of N.C. Gen. Stat.
§ 14-415.1(a). He had also pleaded guilty in federal
court on 5 August 2013 for being a "felon in possession
of a firearm, " in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2), based on conduct arising from the
same incident. Defense counsel explained to the trial court:
Mr. Riley intends to plead guilty to the possession of a
firearm by a felon . . . Your Honor. You know the federal
equivalent he's pled guilty to, he's serving a
ten-year term, so it's the same admission that he
possessed the firearm at some point after ...