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State v. Harris

Court of Appeals of North Carolina

September 19, 2017

STATE OF NORTH CAROLINA
v.
MARVIN BURTON HARRIS, JR., Defendant.

          Heard in the Court of Appeals 1 May 2017.

          Appeal by Defendant from judgment entered 30 October 2015 by Judge Arnold O. Jones, II in Superior Court, Carteret County No. 14 CRS 55069-70; 15 CRS 107.

          Attorney General Joshua H. Stein, by Assistant Attorney General Erin O'Kane Scott, for the State.

          Guy J. Loranger for Defendant. Mc

          GEE, Chief Judge.

         Marvin Burton Harris, Jr. ("Defendant") appeals from judgments entered after a jury found him guilty of possession of a firearm by a felon, carrying a concealed weapon, and resisting a public officer.

         I. Background

         Officer Joshua Scales ("Officer Scales"), of the Morehead City Police Department, received a radio dispatch at approximately 2:00 a.m. on 13 November 2014 about a "suspicious subject" in the vicinity of Brook Street in Morehead City, North Carolina. An anonymous female caller described the suspicious person to a 911 operator as a black male with dreadlocks, and reported that the man might have put a black handgun into a backpack. Officer Scales responded to the scene, and saw a man fitting the description given by the caller. Officer Scales stopped his patrol car, identified himself to the man as a police officer, and informed the man that he had "received a call from someone saying that [the man] possibly had a gun on [him]." Officer Scales testified the man "instantly" replied, "[m]an, that girl just mad because I didn't stay the night with her."

         Based on the man's actions and body language, Officer Scales testified he had a "real eerie feeling" interacting with the man. Officer Scales repeatedly asked the man if he had something on him that he was not supposed to have. The suspect replied "no, " and Officer Scales responded by grabbing the man's backpack. Officer Scales put the backpack on the hood of his patrol car and in doing so "heard a solid thump sound, as in metal . . . hitting metal." This "solid thump" sound allowed Officer Scales to "automatically kn[ow] it was a gun" in the man's backpack. The man took off running towards a tree line. Officer Scales gave chase, but slipped and the man escaped. Officer Scales notified dispatch about the encounter and then opened the backpack.

         Among other contents of the backpack, Officer Scales found a black Glock .40 caliber handgun and forty-five pages of documents, including hospital records and a traffic collision report, all of which listed Defendant's full name and birthday. After searching for the man for fifteen to twenty minutes, Officer Scales returned to the police station where he placed the gun in evidence, identified Defendant from a Department of Motor Vehicles' photo as the man he had encountered, [1] and issued a "BOLO" ("Be On The Lookout For") for Defendant. An arrest warrant was issued for Defendant that same night, 13 November 2014, and Defendant later turned himself in to authorities.

         Defendant was indicted on charges of possession of a firearm by a felon, carrying a concealed weapon, resisting a public officer, and attaining the status of a habitual felon. Prior to trial, the State filed two motions that requested, inter alia, "[n]otice to the State of any defenses enumerated in N.C. Gen. Stat. § 15A-905 that the Defendant intends to offer at trial" as well as the "[d]isclosure of the identity of any alibi witnesses no later than two weeks before trial." Defendant's trial began on 29 October 2015. At trial, Brittany Hart ("Hart") testified to being the 911 caller on 13 November 2014 and to being "absolutely certain" that the man she encountered that night was not Defendant, but rather was a man named Demetris Nolan ("Nolan").

         Hart testified that Nolan knocked on her door on 13 November 2014, sometime between 11:00 p.m. and 12:00 a.m., and entered her home. Once Nolan was inside, Hart noticed he was carrying a gun, and Hart asked Nolan to leave. Nolan responded by grabbing a bag that was in her apartment, and quickly leaving. Hart called 911. Hart testified that she observed Nolan placing a gun into the bag he had taken from her apartment. Hart described Nolan as similar in appearance to Defendant: "a tall, skinny, African-American male with dreadlocks." Hart testified Defendant had been at her home two or three days before the incident, and that his bag was at her apartment because she had previously taken him to the hospital. Hart testified she had looked into the bag at some point and had observed only documents therein. Hart testified Defendant had not been in her apartment on the night of 13 November 2014.

         Defendant testified that on 13 November 2014 he was in Pamlico County with his girlfriend. He denied being in Hart's apartment, having a weapon, encountering Officer Scales, or running away from anyone in the early morning hours of 13 November 2014. Defendant testified that he had been diagnosed with bilateral pulmonary emboli, or blood clots in the lungs, which caused him to have problems with exertion and physical exercise. Defendant testified he could not run, had trouble speaking, and could barely breathe. Defendant testified that Hart had taken him to the hospital after he was in a hit-and-run accident about a month prior to 13 November 2014. Defendant admitted to owning a blue book bag that he left at Hart's home and that had his accident report and insurance company letters inside.

         The trial court initially included a pattern jury instruction on alibi, N.C. P.I. - Crim. 301.10, in its proposed jury instructions. During the charge conference, the State objected to the inclusion of N.C. P.I. - Crim. 301.10, and the following colloquy occurred between the prosecutor, the trial court, and Defendant's counsel:

[Prosecutor:] . . . Since [Defendant's counsel] didn't give me notice of alibi, I'm going to object to [an instruction on alibi, N.C. P.I - Crim.] 301.10.
THE COURT: There was no notice given. I agree with that. [Defendant's counsel], do you agree that there was no notice given? It just came up here in trial?
[Defendant's counsel:] I certainly would have to agree with that. That's the first time.
THE COURT: I will not instruct on that, but certainly during [closing] argument, I'm sure you will argue what you believe the ...

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