in the Court of Appeals 21 March 2017.
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.
Adelle Jones for defendant-appellant.
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
Factual and Procedural Background
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.
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
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.
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.
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.
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.
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.
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
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
Denial of Motion for Continuance A. Standard of Review
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
(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
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
State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430,
433 (1981) (citations omitted).
Trial Court's Authority to Deny Defendant's Motion to
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
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.
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.
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
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
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
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.
MR. PROCTOR: Okay.
THE COURT: But at this point, I don't think there's
anything that needs to be addressed further.
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 ...