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State v. Riley

Court of Appeals of North Carolina

June 6, 2017

6STATE OF NORTH CAROLINA
v.
CARLOS ANTONIO RILEY JR., Defendant.

          Heard in the Court of Appeals 22 February 2017.

         Appeal 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 CRS 000068.

          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.

          ELMORE, Judge.

         Carlos 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 offender.

         On 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.

         At 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.

         I. Background

         The 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.

         Officer 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 resisting."

         During 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.

         On 7 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.

         Meanwhile, 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."

         Before 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 ...

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