in the Court of Appeals 1 May 2017.
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.
Loranger for Defendant. Mc
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.
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."
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.
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,
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.
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
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.
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
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 ...