in the Court of Appeals 10 April 2019.
by defendant from judgment entered 21 February 2018 by Judge
Hugh B. Lewis in Mecklenburg County Nos. 16 CRS 230974-75,
23322, 229841-42 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Anne M. Middleton, for the State
Massengale & Ozer, by Marilyn G. Ozer for
an identification by a law enforcement officer was not
subject to the Eyewitness Identification Reform Act, we
affirm the trial court's denial of defendant's motion
to suppress. Where defendant was given an opportunity to
cross-examine testifying expert witness about another
expert's report, the trial court did not err in allowing
the testimony into evidence.
early evening of 5 August 2016, defendant Timothy Lavaun
Crumitie went to the apartment complex of his ex-girlfriend,
Kimberly Cherry, and shot her boyfriend, Michael Gretsinger,
twice in the head. Defendant abducted Cherry and took her to
his house in Rowan County. He eventually took her back to a
field near her apartment complex, shot her twice in the head,
and dumped her in the trunk of the car. Cherry survived and
escaped to call the police. Cherry had difficulty speaking,
due to the bullets in her head causing hemorrhaging and
trauma to the area that controls speech. After speaking with
the police, Cherry was transported to the hospital and
admitted to the intensive care unit. Gretsinger was rushed to
the hospital for surgery. Although the surgery stabilized
Gretsinger, the doctors could not remove the bullets as they
had passed through to the other side of his brain, and
Gretsinger died nine days later.
was indicted on one count of attempted first-degree murder of
Cherry, one count of attempted first-degree murder of
Gretsinger, one count of possession of a firearm by a felon,
one count of first-degree kidnapping, and one count of
assault on a female. After Gretsinger was pronounced dead,
defendant was indicted for murder and one count of
first-degree burglary. The State did not seek the death
penalty. Defendant filed a pre-trial motion to suppress
identification testimony by Officer Bradley Potter of the
Charlotte-Mecklenburg Police Department, who responded to
Cherry's 911 call and observed defendant near
case was tried on 5 February 2018 in Mecklenburg County
Superior Court before the Honorable Hugh B. Lewis, Judge
presiding. Defendant filed a pre-trial motion to suppress and
a hearing was held.
Potter testified that he saw a man at Cherry's apartment
when he responded to a shooting incident at her residence.
The man ran into the breezeway of an adjacent building, and
Officer Potter ran after him. Officer Potter testified that
he thought, from the towel in the man's hands, the man
was running to render aid to a gunshot victim. After he lost
sight of the man, Officer Potter went to try and locate
Cherry, who had sought refuge with people in another
apartment. Cherry told Officer Potter that her boyfriend had
been shot and described the suspect as a black male, fifty
years old, and approximately 5'9" in height. Because
Cherry was having difficulty communicating verbally, Officer
Potter asked her to write down what she needed to tell him on
his notepad. She wrote down defendant's name and her
apartment number where officers soon found Gretsinger.
Officer Potter accessed a DMV photograph of defendant, whom
he identified as the same man he had seen running with a
towel when he arrived at the scene. The trial court denied
defendant's suppression motion and allowed Officer Potter
to testify before the jury. At trial, the State called
Officer Potter to testify about Cherry's 911 call, and
over defendant's objections, the trial court allowed his
testimony identifying defendant.
Agent Michael Sutton of the FBI's Cellular Analysis
Survey Team ("CAST") was called to testify for the
State as an expert in the field of historical cellular site
analysis and cellular technology. Special Agent Warren, the
FBI agent who analyzed the cellphone records of defendant and
Cherry, was unavailable to testify at trial. The State moved
to introduce Agent Warren's cell site analysis report
through Agent Sutton. Defendant objected arguing the State
had committed discovery violations and that admission of the
report would violate defendant's right to confront
witnesses against him. The trial court excluded Agent
Warren's report but allowed Agent Sutton to testify about
the procedures of CAST, his review of the report, and his
independent opinion about the testing.
was convicted of first-degree murder of Gretsinger,
first-degree kidnapping and attempted first-degree murder of
Cherry, second-degree burglary, and possession of a firearm
by a felon. The jury found defendant not guilty of assault on
a female. Defendant received a mandatory life sentence for
first-degree murder and separate sentences for the other
convictions. Defendant gave notice of appeal in open court.
appeal, defendant argues the trial court erred by: I) denying
his motion to suppress eyewitness identification testimony,
and II) allowing an expert witness to testify regarding a
report created by an unavailable witness.
first argues the trial court improperly denied his motion to
suppress Officer Potter's eyewitness testimony.
Specifically, defendant argues that Officer Potter failed to
comply with "show-up" procedures, as set forth in
the Eyewitness Identification Reform Act ("EIRA").
review of a trial court's denial of a motion to suppress
is "strictly limited to determining whether the trial
judge's underlying findings of fact are supported by
competent evidence, in which event they are conclusively
binding on appeal, and whether those factual findings[, ] in
turn[, ] support the judge's ultimate conclusions of
law." State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982). "Conclusions of law are reviewed