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State v. Moore

Court of Appeals of North Carolina

July 18, 2017


          Heard in the Court of Appeals 21 March 2017.

         Appeal by defendant from judgment entered 20 April 2016 by Judge R. Allen Baddour, Jr. in Orange County, Orange County, Nos. 15 CRS 51309, 51310. Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph E. Herrin, for the State.

          Meghan Adelle Jones for defendant-appellant.

          ZACHARY, Judge.

         Pierre Je Bron Moore (defendant) appeals from the judgment entered upon his convictions of fleeing to elude arrest, resisting an officer, driving without a driver's license, failing to heed a law enforcement officer's blue light and siren, speeding, and reckless driving. On appeal, defendant argues that the trial court erred by denying his motion for a continuance, by allowing the State to introduce into evidence a copy of a convenience store surveillance video, and by denying his motion to suppress statements made by him. We conclude that the trial court did not err by denying defendant's motion for a continuance or his motion to suppress. We further conclude that the trial court erred by admitting the video, but that its admission was not prejudicial.

         I. Factual and Procedural Background

         On 6 July 2015, the Grand Jury of Orange County returned indictments charging defendant with the felony of fleeing to elude arrest and with the related misdemeanors of resisting an officer, reckless driving to endanger, driving without a license, speeding, and failing to heed a law enforcement officer's blue light and siren. Mr. George Doyle was initially appointed to represent defendant, but was permitted to withdraw on 9 March 2016, at which time defendant's trial counsel, Ms. Kellie Mannette, was appointed to represent him. The charges against defendant came on for trial before a jury at the 18 April 2016 criminal session of Superior Court for Orange County, the Honorable R. Allen Baddour, Jr. presiding. Defendant did not testify or present evidence at trial. The State's evidence tended to show, in relevant part, the following.

         During the early morning hours of 21 May 2015, Carrboro Police Officer David Deshaies was on patrol on Jones Ferry Road, in Carrboro, North Carolina. As Officer Deshaies drove past a Kangaroo gas station and convenience store, he noticed a man getting out of the driver's side of a silver Nissan Altima. He recognized the man as defendant from other encounters during the previous two years, and noticed that defendant was wearing a white cloth on his head. A month earlier, Officer Deshaies had attempted to stop a similar car for speeding but the car fled and, because the officer was unable to identify the driver, no one was charged as a result of that incident. At that time, Officer Deshaies had noted that the Altima had a 30 day temporary tag. Upon seeing defendant getting out of a similar silver Nissan Altima on 21 May 2015, Officer Deshaies pulled into the parking lot of the convenience store and checked the license tag number. He learned that the car, which was owned by someone other than defendant, had been issued a license plate about ten days earlier.

         Officer Deshaies suspected that the Altima was the same vehicle that he had tried to stop a month earlier. When he saw defendant and another man enter the convenience store, he contacted other officers, and they agreed to watch the vehicle when it left the store and to stop the car if the driver violated any traffic laws. Officer Deshaies then drove a short distance from the store. Because he was parked several hundred yards from the gas station, Officer Deshaies did not see who was driving when the car left the store's parking lot.

         After the Altima left the parking lot, it drove past Officer Deshaies at a speed above the legal speed limit. The officer contacted the law enforcement center to inform the dispatch officer that he was going to stop the Nissan. When Officer Deshaies activated his blue light and siren, the car accelerated rapidly away from him. Officer Deshaies followed the car for several miles, during which time he saw it run a red light and accelerate to speeds of over 110 miles per hour. Officer Deshaies chased the car for several minutes before his supervisor directed him to discontinue the attempt to stop the vehicle. Officer Deshaies then returned to the Kangaroo gas station and convenience store where he had first noticed the car. Officer Deshaies described defendant's appearance to the store's clerk, who told the officer that he knew a person who fit the description, and that he would recognize the person if he saw him again.

         On 22 May 2015, Officer Deshaies returned to the Kangaroo store and asked the manager if he could review the store's video surveillance footage from the night before. Officer Deshaies was permitted to view the video footage. However, the manager of the store told Officer Deshaies that the ownership of the Kangaroo store was in the process of being transferred to a different company and that, as a result of corporate policies involved in the transfer of ownership, the manager of the Kangaroo store lacked the authority to make a copy of the video. Officer Deshaies then used the video camera in his cell phone to copy the video, and downloaded the video from his cell phone to a computer to make a digital copy. Officer Deshaies testified that the video was an accurate representation of the video that he reviewed at the store.

         The trial court allowed the copy of the surveillance video to be played for the jury, over defendant's objection. The video depicts footage of the convenience store premises taken by four different cameras recording views of the parking lot and the interior of the store. The footage includes images of a man with a white cloth on his head getting out of the driver's side of a car. Officer Deshaies identified this man as defendant. Officer Deshaies testified that he had personally observed defendant get out of the car but that he had moved his patrol vehicle out of view of the store before defendant and the other man got back into the car and drove away. The video also showed defendant getting into the driver's side of the car before it left the parking lot.

         The clerk testified that on 21 May 2015 he was employed at the Kangaroo gas station and convenience store on Jones Ferry Road, in Carrboro. Defendant had been a "regular customer" at the store and at around 1:00 a.m. on 21 May 2015, defendant and another man made a brief visit to the store. The clerk identified defendant in court and on the copy of the surveillance video.

         Carrboro Police Officer Russell Suitt testified that he and defendant had attended high school together. Officer Suitt was not involved in the car chase on 21 May 2015, but the next day he learned that there were outstanding warrants for defendant's arrest. That morning, Officer Suitt saw defendant walking on Homestead Road in Chapel Hill. Officer Suitt stopped defendant and informed him that there were warrants for his arrest. Defendant was arrested and placed in Officer Suitt's patrol vehicle without incident. As Officer Suitt was transporting defendant to the law enforcement center, another officer spoke to Officer Suitt over the police radio in the car, and asked Officer Suitt if he had information about the location of the vehicle that was involved in the incident the night before. Defendant spoke up from the back seat of the patrol vehicle and said that the car was in a secret location. Defendant also told Officer Suitt that he had sped away from the law enforcement officers the night before because he feared being charged with impaired driving.

         On 20 April 2016, the jury returned verdicts finding defendant guilty of the charged offenses. The trial court arrested judgment on the charges of speeding and reckless driving, and consolidated the remaining charges for sentencing. The court sentenced defendant to a term of eight to nineteen months' imprisonment, to be served at the expiration of another sentence that defendant was then serving for an unrelated charge. Defendant noted a timely appeal to this Court.

         II. Denial of Motion for Continuance A. Standard of Review

         On appeal, defendant argues that the trial court erred by denying his motion to continue the trial of this case, on the grounds that (1) the trial court lacked the authority to enter an order that overruled another superior court judge, and (2) the denial of defendant's continuance motion deprived him of his constitutional right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 23 of the North Carolina Constitution. N.C. Gen. Stat. § 15A-952(g) (2015) addresses a trial court's determination of whether to allow a continuance and provides that "the judge shall consider at least the following factors in determining whether to grant a continuance:"

(1) Whether the failure to grant a continuance would be likely to result in a miscarriage of justice; [and] (2) Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that more time is needed for adequate preparation[.]

         The general standard of review of a trial court's ruling on a continuance motion is well-established:

It is, of course, axiomatic that a motion for a continuance is ordinarily addressed to the sound discretion of the trial judge whose ruling thereon is not subject to review absent a gross abuse. It is equally well established, however, that, when such a motion raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case. Denial of a motion for a continuance, regardless of its nature, is, nevertheless, grounds for a new trial only upon a showing by defendant that the denial was erroneous and that [his] case was prejudiced thereby.

State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981) (citations omitted).

         B. Trial Court's Authority to Deny Defendant's Motion to Continue

         Defendant argues that the trial court's denial of his motion to continue constituted an improper overruling or reversal of an earlier order or ruling by another judge. Defendant is correct that:

The well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.

Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). In this case, defendant asserts that a statement by the judge who presided over a pretrial hearing constituted a "ruling" or "decision" which could not be modified by another superior court judge. Upon careful consideration of the facts of this case, we conclude that this argument lacks merit.

         Following defendant's arrest on 22 May 2015, Mr. George Doyle was appointed to represent defendant on the charges that are the subject of this appeal, and that were charged in Orange County Files Nos. 15 CRS 51309 and 51310. The record indicates that Mr. Doyle also represented defendant on what is described by the parties as an unspecified drug-related offense that was charged in Orange County File No. 14 CRS 52224. Defendant was later charged with first-degree murder in an unrelated case. On 9 March 2016, defendant appeared in superior court before the Honorable James E. Hardin, Jr. During this hearing, Mr. Doyle moved to withdraw as counsel and asked that Ms. Kellie Mannette, who was defendant's counsel on the murder charge, be appointed to represent defendant on the less serious charges on which Mr. Doyle had been appointed to represent defendant. During discussion of this possibility, Judge Hardin made a comment indicating a willingness to continue the trial of the charges on which Mr. Doyle represented defendant. On appeal, defendant contends that this remark constituted a decision or ruling establishing that defendant's trial would be continued. We disagree, and conclude that this preliminary and informal remark was clearly disavowed by Judge Hardin's explicit ruling that the case was not being continued and that any decision about a continuance would be made by the judge who presided over the trial.

         We have set out a significant portion of the transcript of the hearing in order to explain the reasoning behind our conclusion that Judge Hardin did not order or rule that the present case be continued. We are not holding that Judge Hardin issued an oral ruling or order that was not reduced to writing, but that the court did not order that the case was continued. At the outset of the hearing, the prosecutor informed the court of the issues for resolution:

THE COURT: Yes, sir.
MR. PROCTOR: . . . Thank you. This is Pierre Moore. The matter that appears on the docket is . . . first degree murder. Ms. Mannette was appointed in district court. This is technically his first appearance in superior court, so we need to address that. And then [the] State has filed notice for a Rule 24 [hearing], and I have an order continuing that to September 13th[.] . . .
THE COURT: May I have that file?
MR. PROCTOR: And I believe he has some other [criminal charges] that Mr. Doyle would like to address the counsel issue on.

         Judge Hardin then questioned defendant and determined that he wished to be represented by his appointed counsel, Ms. Mannette, on the charge of first-degree murder. The next matter addressed by the court was the State's motion to continue a pretrial Rule 24 hearing in the murder case for six months, until September 2016:

THE COURT: All right. [Defendant's representation by Ms. Mannette on the charge of first-degree murder is] allowed, Madam Clerk. Now, do I understand with respect to the Rule 24 hearing, you want to do that when?
MR. PROCTOR: I would just like to continue that to September 13th of 2016. I do have an order that, I believe, would be consented to, if I may approach.
THE COURT: Ms. Mannette?
MS. MANNETTE: We do consent.
THE COURT: That's allowed, Madam Clerk. The Rule 24 hearing will be conducted on -- during the week of September the 13th.

         The next matter for consideration was a defense motion pertaining to forensic testing of certain evidence. The prosecutor explained that "Ms. Mannette had filed and Your Honor had granted a preservation order that dealt with [forensic testing.]" The parties discussed the proposed methodology for testing the ballistics evidence and, because the issue was still under discussion, Judge Hardin concluded that there was no need to amend his previous order at that time:

THE COURT: All right. Well, I don't see that I've got to alter the order at this point[.] . . . So once you all have made that decision, if you want to prepare an order, I'll be glad to consider it.
THE COURT: But at this point, I don't think there's anything that needs to be addressed further.

         Our Supreme Court has held that "a trial court has entered a judgment or order in a criminal case in the event that it announces its ruling in open court and the courtroom clerk makes a notation of its ruling in the minutes being kept for that session." State v. Miller, 368 N.C. 729, 738, 783 S.E.2d 194, 200 (2016) (citing State v. Oates, 366 N.C. 264, 732 S.E.2d 571 (2012)). Accordingly, after Judge Hardin ruled that Ms. Mannette would represent defendant on the charge of first-degree murder and again when he ruled that the Rule 24 hearing would be continued, he specifically directed "Madame Clerk" to record his ruling. After resolving the matters discussed above, the court addressed Mr. Doyle about the charges on which he had asked to be removed as counsel:

THE COURT: Okay. Now, with respect to the other pending charges of which Ms. Mannette does not represent the Defendant, I am aware that Mr. Doyle represents the Defendant in those items, but they are not related in any way to the homicide charge. Is that what you understand, Mr. Proctor?
MR. PROCTOR: That's my understanding and my recollection. . . . I believe those matters are set for trial
April 18th, so just to make sure everyone's on the same page with posture of those charges.
THE COURT: But they have no relation to this homicide charge. That's what I want to make sure the ...

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