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State v. Crumitie

Court of Appeals of North Carolina

July 16, 2019


          Heard in the Court of Appeals 10 April 2019.

          Appeal 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 defendant-appellant.

          BRYANT, JUDGE.

         Where 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.

         In the 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.

         Defendant 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 Cherry's apartment.

         The 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.

         Officer 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.

         Special 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.

         Defendant was convicted[1] 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.

         On 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.


         Defendant 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"). We disagree.

         Our 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 ...

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